United States District Court, D. South Dakota, Western Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO
WITHDRAW GUILTY PLEA AND DENYING MOTION TO WITHDRAW AS
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE
Robert Larry Lytle, a.k.a. Larry Lytle ("Lytle")
entered into a plea agreement and then pleaded guilty on
January 26, 2018, to one count of criminal contempt in
violation of 18 U.S.C. § 401(3), one count of conspiracy
to introduce misbranded medical devices into interstate
commerce with the intent to defraud and mislead in violation
of 18 U.S.C. § 371 and 21 U.S.C. §§ 331 and
333(a)(2), and one forfeiture allegation pursuant to 21
U.S.C. §§ 334 and 853, and 28 U.S.C. § 2461.
Doc. 178. On April 10, 2018, Lytle moved to withdraw his
guilty plea and submitted an affidavit asserting 11 different
bases to attempt to justify his proposed withdrawal. Doc.
210; Doc. 210-1. For the reasons stated below, this Court
denies Lytle's motion.
Standard for a Motion to Withdraw a Guilty Plea
defendant may withdraw a guilty plea after a court accepts
the plea but before it imposes sentence if the defendant
"can show a fair and just reason for requesting the
withdrawal." United States v. Arafat, 789 F.3d
839, 843 (8th Cir. 2015) (quoting Fed. R. Grim. P.
11(d)(2)(B)). "While the standard is liberal, the
defendant has no automatic right to withdraw a plea."
United States v. Sharp. 879 F.3d 327, 333 (8th Cir.
2018). "A defendant bears the burden of establishing a
fair and just reason." Id. Indeed,
"[p]leading guilty is a solemn act not to be set aside
lightly." United States v. Briggs, 820 F.3d
917, 919 (8th Cir. 2016) (internal quotation marks omitted).
if a defendant shows a fair and just reason for withdrawal,
the court must consider other factors before granting the
motion, namely, whether the defendant asserts his innocence
of the charge, the length of time between the guilty plea and
the motion to withdraw it, and whether the. government will
be prejudiced if the court grants the motion."
United States v. McHenry, 849 F.3d 699, 705 (8th
Gir. 2017) (internal quotation marks omitted). However, a
court need not consider these additional factors if a
defendant fails to demonstrate fair and just grounds
justifying the withdrawal of his plea. United States v.
Norvell 729 F.3d 788, 793 (8th Cir. 2013).
makes numerous contentions to seek to justify granting his
motion to withdraw his guilty plea. Some of these reasons are
closely related and this Court addresses them together where
Legal Basis for Prosecution
argues that his motion to withdraw his guilty plea should be
granted because no law, which is valid under the Constitution
of the United States, has been violated, nor is there a
victim who has been injured by any of Lytle's actions.
These claims are frivolous. Lytle has been charged with, and
pleaded guilty to, crimes under statutes whose
constitutionality is established. See Bloom v. State of
111., 391 U.S. 194, 203-04 (1968) (recognizing that 18
U.S.C. § 401 codifies the power to punish criminal
contempt); United States v. Hiland, 909 F.2d 1114,
1127 (8th Cir. 1990) (holding that Federal Food, Drug, and
Cosmetic Act provision prohibiting marketing of unapproved
drug with intent to defraud or mislead was not
unconstitutionally vague). As to Lytle's claims that
there are no victims, such assertions by a defendant do not
constitute fair and just reasons to allow him to withdraw his
guilty plea when he is charged pursuant to valid laws.
Indeed, the absence of identifiable victims- which is
actually not the case here-does not render behavior outlawed
by criminal statutes to be lawful, as a panoply of federal
drug offenses demonstrate.
counsel's performance can serve as the requisite
'fair and just reason' for withdrawal only if the
defendant demonstrates both that his attorney's
performance was deficient and that he was prejudiced by
it." Norvell. 729 F.3d at 795 (quoting
United States v. McMullem 86 F.3d 135, 137 (8th Cir.
1996)). However, while ineffective assistance of counsel may
constitute a ground upon which to withdraw a guilty plea, the
Eighth Circuit has observed that such claims are
"usually best litigated in collateral proceedings,
" with the benefit of a more fully developed record.
United States v. Ramirez-Hernandez, 449 F.3d 824,
826-27 (8th Cir. 2006) (declining to consider, on
defendant's direct appeal, his argument that he should
have been permitted to withdraw his guilty plea due to
ineffective assistance of counsel).
ineffective assistance claims appear to be meritless. Lytle
alleges that his attorney Ellery Grey ("Grey")
"forgot" to put a clause in the plea agreement to
protect his "constitutionally secured right to [a]ppeal,
trial by jury and other rights[, ]" and that Lytle would
"never knowingly or willingly" have waived his
right to challenge his indictment. Doc. 210-1 at ¶ 31.
Lytle argues that Grey's failure to inform him of the
procedures for entering a conditional plea thus constitute
ineffective assistance. Doc. 210-1 at ¶ 32. The United
States Attorney of course would never enter into a plea
agreement where a defendant preserves his jury trial rights
because a primary purpose of a plea agreement is to obtain a
conviction on some count or counts without the time and
expense of a jury trial. The United States Attorney rarely
enters into a plea agreement where a defendant preserves
rights to challenge an indictment on appeal, and regardless
Lytle has the right to challenge jurisdiction of this Court
on appeal. Lytle was fully informed during his change of plea
hearing that he was waiving his rights to appeal most aspects
of his case.
The Court: In your Plea Agreement it indicates you
have waived, which means you've given up, your right to
appeal everything about your case, except if I sentence you
higher than your advisory guideline range. You can appeal
whether that's reasonable or not. Or if you think the
Court doesn't have jurisdiction over you or your case,
you can appeal whether there's jurisdiction. But