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United States v. Lytle

United States District Court, D. South Dakota, Western Division

July 6, 2018




         Defendant 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 20, 2018, this Court sentenced Lytle to 60 months on the conspiracy count followed by 84 months on the contempt charge, with service of the time consecutively, together with forfeiture of certain assets, supervised release and special assessment. The United States, pursuant to 18 U.S.C. § 3664, requested this Court to hold the issue of restitution open and a hearing was set for July 30, 2018, to make a final determination on that issue.

         Subsequent to his sentencing, Lytle filed an appeal of his conviction to the Eighth Circuit, discharged his previously retained counsel, and sought to proceed in forma pauperis ("IFP") and to have the Court appoint counsel to represent him. Doc. 278. Because Lytle sought IFP status for his appellate proceedings only and because this Court was aware that there was a substantial issue about whether Lytle in fact was indigent, this Court deferred to the Eighth Circuit to rule on Lytle's motion. Doc. 279. The Eighth Circuit ultimately granted Lytle's motion to proceed IFP despite the objection of the United States and appointed counsel to represent Lytle in his appeal. Doc. 293, Doc. 296. Lytle has filed another motion with this Court to be placed on home confinement pending his appeal. Doc. 292. For the reasons stated below, this Court grants Lytle's motion to proceed IFP as to his restitution hearing, and denies Lytle's motion to be placed on home confinement during the pendency of his appeal.

         I. Analysis

A. IFP Status and Court-Appointed Counsel

         Pursuant to the authority granted in 28 U.S.C. § 1915, this Court "may authorize the commencement, prosecution, or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security" when an individual is unable to pay those fees or give security. 28 U.S.C. § 1915(a)(1). This Court may also "request an attorney to represent any person unable to afford counsel." 28U.S.C. § 1915(e)(1). On May 16, 2018, as part of an Order Denying Motion for Release Pending Appeal and Regarding IFP Status, Doc. 279, this Court discussed the issue of whether Lytle is indigent as follows:

         The Eighth Circuit, even after an appeal is filed, commonly looks to the District Court to evaluate whether a pro se inmate appellant is indigent. Lytle's case presents a difficult circumstance for this Court to rule on indigency. Lytle grossed some $16 million off of sales of lasers for treatment of medical conditions for which they were not approved. But as the United States first civilly and then criminally pursued Lytle, Lytle reportedly transferred very significant assets to family members and then agreed to forfeiture of much of his remaining assets to prompt the United States not to seek detention pending sentencing. Lytle also has had privately retained counsel throughout the pendency of his case, which no doubt has been of consequential expense apparently covered by Lytle's family members. Lytle's Motion and Affidavit for Permission to Appeal in Forma Pauperis, Doc. 278, might well be incomplete but suggests that, if not indigent, he is nearly devoid of assets in his own name presently1. Absent an objection from the United States, which has more information on Lytle's worth than does this Court, this Court would be inclined to recommend granting of the IFP request.

         Doc. 279 at 2. The United States did file an objection with the Eighth Circuit, which this Court has read, but the Eighth Circuit nonetheless granted Lytle's motion to proceed IFP. Doc. 293.

         This Court believes it appropriate to grant Lytle IFP status and appoint counsel to represent him at his restitution hearing. The objection to Lytle's motion filed with the Eighth Circuit by the United States was based largely upon the transfer of assets which this Court noted in its earlier Order made the question of IFP status a difficult one. However, the Eighth Circuit apparently agreed with this Court's earlier inclination to grant Lytle IFP status despite the objections of the United States. As Lytle appears to be nearly devoid of assets at the present time, this Court grants his motion to proceed IFP as to his restitution hearing scheduled for July 30, 2018, and will appoint attorney Nathaniel F. Nelson to represent Lytle at that hearing.

         B. Placement on Home Confinement

         Lytle's motion to be placed on home confinement pending his restitution hearing and appeal is primarily based upon his misinterpretation of the Bail Reform Act. Lytle quotes from 18 U.S.C. § 3143(b)(2), which mandates that a person found guilty of certain offenses be detained pending appeal without exception. One such offense is "an offense for which the maximum sentence is life imprisonment or death." 18 U.S.C. § 3142(f)(1)(B). Lytle argues that because 18 U.S.C. § 401 does not provide a specific term of incarceration, but rather provides for the imposition of "a fine or imprisonment, or both at [the Court's] discretion," he is not guilty of an offense which carries a maximum sentence of life imprisonment, and thus § 3143(b)(2) does not bar his release to home confinement. 18 U.S.C. § 401.

         However, even if the provision barring the release of an individual found guilty of a crime carrying a maximum sentence of life imprisonment does not apply to Lytle, he is still not entitled to be released during the pendency of his appeal because he does not meet the statutory standards for such release. The Bail Reform Act mandates that, subject to the exception in § 3143(b)(2), a person who has been found guilty of an offense and sentenced be detained during the pendency of an appeal unless a judicial officer finds

         (A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142(b) or (c) of this title; and

         (B) that the appeal is not for the purposes of delay and raises a substantial question ...

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