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,
OPDHON AND ORDER DENYING
vs. DEFENDANT'S MOTION TO DISMISS
INDICTMENT
ROBERT LARRY LYTLE,
A.K.A. LARRY LYTLE
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 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, restitution left open, supervised release and special assessment. The
sentence was well below the guideline range of life faced by Lytle. At the conclusion of Lytle's
sentencing hearing, Lytle filed a motion arguing for dismissal of his indictment on the basis of a lack
of jurisdiction, bad faith, and prosecutorial misconduct. Doc. 259. Lytle additionally argues, once
again, that he should be allowed to withdraw his guilty plea based on ineffective assistance of counsel.
Lytle's claims regarding lack of jurisdiction, bad faith, and prosecutorial misconduct are all
hased upon his mistaken contention that the indictment in this case is invalid because the grand jury
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foreperson, Lytle believes contrary to the record, did not appear before and return the indictment to a
magistrate judge in violation ofFed. R. Crim. P. 6(f). Doc. 259 at 2. This Court has already addressed
this claim and found it to be meritless when it denied Lytle's first motion to dismiss the indictment.
Doc. 102. Lytle's conspiratorial claims of bad faith on the part of Judge Schreier in failing to properly
scrutinize the transcript of the grand jury proceeding and prosecutorial misconduct on the part of
Magistrate Judge Wollman, attorney Goldstein and attomey MeBride in manufacturing that transcript,
are without merit and will not occupy this Court's time any further.
Lastly, Lytle argues that he should be permitted to withdraw his guilty plea based on claims
that his attomey, Ellery Grey ("Grey") provided ineffective assistance of counsel. Doc. 259 at 3-8.
Part of Grey's allegedly deficient performance is based on the failure to preserve Lytle's rights to
appeal by failing to negotiate a conditional guilty plea with the United States Attomey's Office on
Lytle's behalf. This Court addressed these claims when it denied Lytle's prior motion to withdraw his
guilty plea, and denies them again for the reasons stated in that opinion. See Doc. 246 at 3-4.
Lytle further asserts that he was denied effective assistance of counsel because Grey failed to
file an interlocutory appeal when his motion to dismiss his indictment based on Rule 6(f) was denied.
Doc. 259 at 4-5. However, Ljdle could not seek an interlocutory appeal from this Court's denial of
his motion to dismiss his indictment, thus Grey's failure to file for such an appeal does not constitute
ineffective assistance of counsel. "Claims in a motion to dismiss other than double jeopardy claims
are appealable if and only if they fall within Cohen's collateral-order exception to the final-judgment
mle." United States v. Lewis. 844 F.3d 1007, 1010 (8th Cir. 2017)(alterations omitted) (intemal
citations and quotation marks omitted). Under the Supreme Court's holding in Cohen v. Beneficial
Indus. Loan Com.. 337 U.S. 541 (1949),"the collateral order exception applies, and a pretrial order is
immediately appealable, if(1)the order conclusively determines the disputed question,(2) it resolves
an important issue separate from the merits of the action, and (3) it [is] effectively umeviewable on
appeal from a final judgment." Lewis. 844 F.3d at 1011 (alteration in original)(intemal quotation
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marks omitted). Lytle's claim that the indictment is deficient under Rule 6(f) is not "effectively
unreviewable on appeal from a final judgment" and therefore does not fall within the collateral order
exception. Thus, the Eighth Circuit would not have heard an interlocutory appeal on that issue, and
the fact that Grey did not seek one does not constitute ineffective assistance of counsel.
Lytle's motion then focuses on how a guilty plea does not waive all rights to appeal the
constitutionality of the statute ofconviction. Indeed, even after waiving most rights to appeal his case
by entering into a guilty plea, Lytle still maintains the right to challenge this Court's jurisdiction on
appeal. An interlocutory appeal was not available to Lytle when his motion to dismiss his indictment
was originally denied by this Court on October 30,2017, nor after he entered his guilty plea on January
26,2018. Now that Lytle's sentence has been entered, he is free to challenge this Court's jurisdiction
to the Eighth Circuit and can attempt to present to the Ei^th Circuit his arguments for dismissal of his
indictment or withdrawal of his guilty plea.
For the reasons stated above, it is hereby
ORDERED that Lytle's motion to dismiss his indictment, Doc. 259, is denied.
DATED this day of April, 2018.
BY THE COURT:
ROBERTO A. LANG
UNITED STATES DISTRICT JUDGE
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