USA v. Lytle et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA, 5:17-CR-50020-RAL
Plaintiff,
OPINION AND ORDER GRANTING
vs. DEFENDANT IN FORMA PAUPERIS
STATUS, APPOINTING COUNSEL, AND
ROBERT LARRY LYTLE, DENYING DEFENDANT'S MOTION FOR
PLACEMENT ON HOME CONFINEMENT
Defendant.
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 Ljhie to 60 months on the conspiracy count
followed by 84 months on the contempt charge, with service of the time consecutively, together with
forfeiture ofcertain 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 IFF status
for his appellate proceedings only and because this Court was aware that there was a substantial
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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 IFF
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 IF? 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. IFF 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 offees 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
ofan Order Denying Motion for Release Pending Appeal and Regarding IFF 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 Ljdle, Lytle reportedly transferred very
significant assets to family members and then agreed to forfeiture of
much ofhis 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 ofconsequential 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
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that, if not indigent, he is nearly devoid of assets in his own name
presently. 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.
Doe. 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
attomey Nathaniel F. Nelson to represent Ljdle 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 ofthe 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.
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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) ofthis title; and
(B) that the appeal is not for the purposes of delay and raises a
substantial question oflaw or fact likely to result in—
(i) reversal,
(ii) an order for a new trial,
(iii) a sentence that does not include a term ofimprisonment,
or
(iv) a reduced sentence to a term ofimprisonment less than
the total of the time already served plus the expected
duration ofthe appeal process.
18 U.S.C. § 3143(b)(1)(emphasis added). Lytle's appeal is premised on three primary bases: 1)
that the permanent injunction entered in his civil case violated certain commercial rights
guaranteed to him under the Constitution; 2)that he had ineffective assistance of counsel in both
his civil and criminal cases; and 3)that this Court lacked jurisdiction over his criminal case because
of an invalid indictment. Doc. 292 at 5. These claims strike this Court as lacking merit, and
certainly not "likely to result" in a reversal, new trial, or a reduced or eliminated sentence. The
Eighth Circuit has previously doubted Lytle's theory that his alleged commercial rights place him
beyond the strictures of the Food, Drug, and Cosmetic Act(FDCA). See Lvtle v. U.S. Dept. of
Health & Human Servs.. 612 F. App'x 861, 862(8th Cir. 2015)(per curiam)("That a product is
sold through a [Private Membership Association] does not exempt it from application of this
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provision [ofthe FDCA].")■ Lytle's privately retained attorney appeared to this Court to provide
proper counsel and assistance. This Court repeatedly has reviewed and rejected Lytle's assertion
that the indictment was somehow invalid. Doc. 102; Doc. 136; Doc. 265. Because there is no
substantial question presented by Ljdle's appeal, he should not be released from confinement
during the pendency of his appeal. See United States v. Powell. 761 F.2d 1227, 1233-34 (8th Cir.
1985) (holding that "a defendant who wishes to he released on bail after the imposition of a
sentence including a term of imprisonment must first show that the question presented by the
appeal is substantial, in the sense that it is a close question or one that could go either way"). ^
In addition, Lytle believes his current incarceration is invalid because there was no
detention hearing prior to his pre-sentencing incarceration which he believes was mandated by 18
U.S.C. § 3142(Q. However, that provision mandates that a detention hearing be held in order to
determine whether a defendant charged with certain offenses (including an offense which carries
a maximum sentence of life imprisonment) can be released pending trial. At the time Lytle was
taken into custody on a report of apparent bond violation, he had already plead guilty and was
awaiting sentencing, not trial. The reference in § 3143(b)(2) to the offenses listed in § 3142(f)(1)
is merely to establish that defendants who have been found guilty of those particular offenses may
not be released from custody during the pendency of an appeal. Whether or not a detention hearing
to which he was not entitled was held prior to Lytle's pre-sentencing incarceration is irrelevant to
Lytle's current motion; he is not facing trial but has pleaded guilty to and been sentenced for his
' Lytle further argues that he is not guilty of an offense carrying a maximum sentence of life
imprisonment because under the United States Sentencing Guidelines, Lytle "could not have been
given a sentence of life imprisonment." Doc. 292 at 4. Lytle's guideline range did indeed provide
for a maximum sentence of life imprisonment, but as Lytle cannot satisfy the requirements of 18
U.S.C. § 3143(b)(1) for release from custody during the pendency of his appeal, his incorrect
assertions regarding the Sentencing Guidelines are irrelevant to the disposition of this motion.
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crimes. Any release from incareeration during the pendency of his appeal must be premised upon
the criteria set out in 18 U.S.C. § 3143(h)(1), and as explained above this is a bar that Lytle cannot
meet.
Lytle also argues that the language of 18 U.S.C. § 3143(b) that a person "who has been
found guilty of an offense" be detained renders the statute inapplicable to him beeause he was not
found guilty "in any trial by a jury of his peers." Doc. 292 at 3. Having pleaded guilty in lieu of
trial, Lytle is correct in contending that he was not found guilty by a jury of his peers. However,
the statutory language does not mandate that a defendant be found guilty by a jury, hut simply
found guilty. Despite his eurrent contentions to the eontrary, Lytle knowingly and voluntarily
entered into his plea agreement and pleaded guilty, the Court accepted his guilty plea and adjudged
him guilty, and thus he "has been found guilty" of an offense and must he detained during the
pendency of his appeal.
Lastly, Lytle argues that this Court showed "bias and prejudice against [Lytle] by stating
'anyone who believes in the healing powers oflasers is crazy(or words to that effect). Doc. 292
at 4. Lytle is misquoting this Court, although this Court doubted the medieal efficaey ofthe QLaser
produet to treat the wide array of medical conditions as claimed by Lytle, whieh is the basis ofthe
civil and criminal actions taken against him by the United States, and expressed that Lytle had
targeted a vulnerable group including desperately ill people and those gullible about alternative
homeopathic remedies for serious medieal conditions. Regardless, statements such as those, based
in faet under the cireumstanees, do not amount to bias, and the fact that this Court sentenced Lytle
to a total of 12 years of incareeration when he faeed a guideline range of up to life imprisonment
belies the idea that this Court was biased or prejudiced against him. Lytle is free to make this
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argument to the Eighth Circuit on his appeal, but it does notjustify his release to home confinement
at this time.
Lytle also requests to be placed on home confinement because his incarceration is
preventing him from properly preparing for his restitution hearing. While Lytle's motion to be
placed on home confinement is denied, this Court has directed that arrangements be made to retum
Lytle to Rapid City. Lytle should be able to work with his court-appointed attorney to prepare for
his restitution hearing both before and after his transport.
II. Conclusion
For the reasons stated above, it is hereby
ORDERED that Ljdle s motion to proceed in forma pauperis as to his restitution hearing.
Doc. 278, is granted. It is further
ORDERED that attorney Nathaniel F. Nelson is appointed to represent Lytle at his
restitution hearing. It is finally
ORDERED that Lytle's motion to be placed on home confinement pending his restitution
hearing and appeal. Doc. 292, is denied.
DATED this day of July, 2018.
BY THE COURT:
ROBERTO A. LANGI
UNITED STATES DISTRICT JUDGE
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