Opinion
05-CR-6116.
July 31, 2009
DECISION AND ORDER
INTRODUCTION
This matter is presently before the Court for a determination of the defendant's competency to proceed to trial. For the reasons stated below, the Court finds that the defendant is competent to stand trial.
PROCEDURAL AND FACTUAL BACKGROUND
A. September 29, 2005 to August 28, 2005
On September 29, 2005, the defendant was arraigned on a multi-count indictment charging him, along with three co-defendants, with conspiracy to commit mail and wire fraud, conspiracy to commit money laundering, and substantive acts of mail fraud, wire fraud, and money laundering in connection with a high yield investment scheme. He appeared at arraignment with his court appointed attorney, Fred S. Gallina, Esq. Based upon his Pre-trial Services Report, he was released from custody. Under the heading of Health, the report, dated September 29, 2005, read:
Melvin Lyttle suffers from the following medical conditions as documented by Dr. Michael Dragan: Anxiety Disorder, Coronary Artery Disease with Heart Catheterization twice and coronary angiography, Irritable Bowel Syndrome from Diverticulitis severe hypertension, lumbar disc disease and Type-2 Diabetes.
Current medications include: Lotrel, Diovan HCT, Lexapro, Lipitor, Nitroglycerin, as needed. It should be noted that Mr. Lyttle is prone to anginal chest pains especially with elevated blood pressure and stress.
In a letter application dated January 5, 2006, that was not docketed, Mr. Gallina sought to have home confinement with electronic monitoring removed as a condition of the defendant's release. In support of his request, Mr. Gallina included a five page letter from the defendant dated December 27, 2005, which the Court has annexed as Addendum #1 to this decision.
By notice of motion (Docket # 33), filed on October 19, 2006, Mr. Galina sought to withdraw as the defendant's counsel. In his sealed affidavit (Docket # 34) in support of his application (which the Court now unseals), Mr. Galina stated:
5. That your deponent has attempted to communicate the importance of considering a possible plea to resolve the matter before the Court; however the Defendant refuses to even consider the appropriateness of this course of action.
6. That your deponent has met with resistance to these discussions is an understatement. The Defendant continues to believe that there may be some intervention by foreign government officials on his behalf and that your deponent has lost his ability to appreciate the Defendant's position on various matters.
7. That your deponent verily believes that it is difficult, if not impossible, to represent the Defendant properly under the circumstances and that Defendant would be better served with another attorney who could establish some rapport and professional trust needed to go forward in this matter.
On October 24, 2006, the Court granted Mr. Gallina's motion to withdraw and appointed Christopher S. Ciaccio, Esq., the defendant's current counsel, to represent him. On March 1, 2007, Mr. Ciaccio filed his omnibus motion on the defendant's behalf (Docket # 55), which was argued before the Court on April 23, 2007. On May 11, 2007, the Court filed a Pre-trial order (Docket # 75), setting October 15, 2007 as the date on which the jury trial was to commence. However, on October 1, 2007, the Court received a letter, dated September 27, 2007, from the defendant's primary care physician, Michael K. Dragan, M.D., indicating that the defendant had been referred to Barry Dick, M.D., a vascular surgeon, to correct a 100% blockage in his right external artery. As a result, it was necessary to adjourn the October 15, 2007, trial date. Dr. Dick in fact operated on the defendant on October 18, 2007.
Following his surgery, the defendant filed a pro se application captioned an "Emergency Motion," along with a supporting affidavit (Docket # 132), in which he sought to have Mr. Ciaccio replaced as his counsel. His supporting affidavit consisted of nine pages, along with an attached exhibit consisting of e-mail communications. Mr. Ciaccio submitted an affidavit in response (Docket # 134). The Court scheduled a court appearance on September 10, 2008, at which time the defendant's application was discussed. The next day, September 11, 2008, the Court held an in camera proceeding, concerning the motion, with the defendant and Mr. Ciaccio, which was taken down by a court reporter and sealed (Docket #141). Based upon the papers and proceedings, the Court denied the defendant's application.
For reasons unrelated to the pending application, the trial was further adjourned, and subsequently by Pre-trial order (Docket # 201) filed on June 9, 2008, was scheduled to begin on September 8, 2008.
On May 21, 2008, Mr. Ciaccio filed a notice of motion seeking to modify the conditions of the defendant's release (Docket # 194). Mr. Ciaccio's supporting affirmation (Docket # 195) attached, as Exhibit C, a three page letter from the defendant.
On August 5, 2008, the defendant filed his second pro se "Emergency Motion" requesting the appointment of new counsel (Docket # 222). In his six page affidavit, supported by three exhibits, the defendant detailed the basis for his application. At a court appearance on August 6, 2008, that had been scheduled concerning unrelated matters, the Court heard from Mr. Lyttle and Mr. Ciaccio, and after doing so, denied the application.
B. August 29, 2008 to Present
By notice of motion filed on August 29, 2008 (Docket # 231), Mr. Ciaccio, on behalf of the Defendant, filed a motion for an order granting a hearing to determine the mental competency of the Defendant. In his affirmation in support of his application, Mr. Ciaccio stated:
4. As set forth in the attached medical reports, Mr. Lyttle has a condition in his brain that was identified in a May 21, 2008 MRI as a "ring-enhancing lesion with a hypodense center with surrounding edema in the deep posterior lobe." A second MRI showed the lesion to be a "demyelinating process, a process which could destroy or damage the nerves."
5. The report of Dr. Otte dated August 29, 2008 also states that the MRI tests were necessitated by Mr. Lyttle's complaints of dizziness, headaches, difficulty walking, etc., suggesting, although it is not spelled out, that the lesion could be the cause of the symptoms. Mr. Lyttle's weakness in the right side of his body is "obvious."
6. Mr. Lyttle also informs me that he is having problems with short and long term memory, being unable to remember conversations, names of persons, dates, etc.
7. Accordingly, Mr. Lyttle's condition, although related to a physical finding, constitutes a mental defect rendering him mentally incompetent to the extent that he is unable to assist properly in his defense. At the present time, due to his headaches and dizziness, he is unable to speak about the substantive defense issues. I doubt he will be able to participate in a meaningful fashion with jury selection, cross-examination, or any other aspect of the trial.
8. Moreover, the trial may interfere with his need for immediate tests and treatment.
9. I am also concerned that for whatever reason Mr. Lyttle's thought processes lack a rational foundation, thus making it difficult for him to participate in his defense.
11. Accordingly, request is made for an examination and hearing to determine the mental competency of this defendant to assist properly in his defense.
As a result of Mr. Ciaccio's application and the issues it raised concerning both the defendant's mental and physical ability to proceed to trial, the starting date for the trial was postponed one week to September 15, 2008. At a court appearance on September 12, 2008, the Government made an oral motion to sever the defendant from his three codefendants, which the Court granted.
In regard to the defendant's ability to proceed to trial, the Court received letters dated September 3, 2008, October 13, 2008, October 15, 2008, November 11, 2008, and November 20, 2008, from Ty Brown, M.D., the defendant's treating neurologist. Copies of these letters are attached to this decision as Addendum # 2.
Based upon Dr. Brown's October 15, 2008, correspondence, the Court authorized Mr. Ciaccio's request for a neuropsychological examination of the defendant by Thomas Sullivan, Ph.D. In a report dated November 13, 2008, Dr. Sullivan stated:
1. The lesions found on Mr. Lyttle's brain have not caused a significant deterioration in his mental functioning. His intelligence, attention, memory, and language skills are sufficient for him to understand courtroom proceedings, and participate in his defense.
2. Mr. Lyttle has a delusional disorder.
3. Because of his Delusional Disorder, Mr. Lyttle is not capable of participating in his own defense. Because of his mental illness, he cannot adequately discern fact from fantasy. In addition, Mr. Lyttle's Delusional Disorder appears to be interfering with his ability to trust his defense counsel and interact with counsel sufficiently to defend himself.
4. Physicians have indicated that Mr. Lyttle is not able to travel at this time because of his medical problems. Such a determination is beyond the expertise of a neuropsychologist such as myself.
In addition to the neuropsychological examination by Dr. Sullivan, the defendant, as reflected in Dr. Brown's November 20, 2008, correspondence, was referred to Istvan Pirko, M.D., a neurologist, specializing in demyelinating disorders. Dr. Pirko diagnosed the Defendant as suffering from multiple sclerosis. In a report dated December 22, 2008, Dr. Pirko observed, "[g]iven the time of lesion development and the history, the most likely explanation is tumeactive presentation of MS." In that same correspondence, Dr. Pirko wrote," [i]t appears the legal system tries to label him as delusional, and of note there was absolutely nothing during my 90 minute encounter with him that would make me think that he is delusional." In a subsequent report dated February 9, 2009, Dr. Pirko assessed the defendant as "57 year old man with newly diagnosed MS."
In response to the opinions of the Defendant's treating physicians, Dr. Brown and Dr. Pirko, and his retained expert, Dr. Sullivan, the Court granted the Government's request that the defendant submit to a medical and psychological examination at the Lexington, Kentucky Federal Medical Center (Docket # 314). In a report dated, April 24, 2009, prepared by Judith (Betsy) Campbell, Ph.D., Forensic Psychologist, and reviewed by Michael Helvey, Ph.D., Chief Psychologist, Dr. Campbell reached the following diagnostic impressions:
Axis I: 309.24 Adjustment Disorder, Chronic, with Anxiety V65.2 Malingering Axis II: 301.9 Personality Disorder Not Otherwise Specified, with Antisocial, Histrionic, Paranoid, and Narcissistic Features She concluded:
In summary, a finding of competency to stand trial requires the defendant to have a factual and rational understanding of the proceedings against him and sufficient ability to consult with his attorney with a reasonable degree of rational understanding. While Mr. Lyttle attempted to portray himself as neurologically impaired and unable to remember and concentrate, the information gathered over the course of the evaluation, in the opinion of the undersigned, examiner, supports a finding that Mr. Lyttle is mentally competent to stand trial
Significantly, at the request of his treating neurologist, Dr. Pirko, the defendant was examined by another neuropsychologist, Daniel Gripshover, Ph. D. In his report issued on or about May 22, 2009, Dr. Gripshover concluded:
While Dr. Gripshover's report is not dated, according to a letter he wrote to Mr. Ciaccio dated April 22, 2009, he expected his report to be completed by May 22, 2009.
Previous evaluations have raised the question of a delusional disorder. The patient adamantly denied delusional thoughts and provided documents in support of his beliefs and assertions. Furthermore, his wife indicated that she has never observed him to have psychotic thoughts or behaviors, and also described realty based events that supported the patient's belief system. Pending additional data, I do not find sufficient evidence of a psychotic thought disorder at this time.
Pursuant to Mr. Ciaccio's application (Docket # 231), the Court held a competency hearing on September 3 and 4, 2008. At the outset of the hearing, Mr. Ciaccio clarified that the defendant was no longer challenging his physical ability to stand trial. Two witnesses testified at the hearing: Dr. Sullivan for the defense and Dr. Campbell for the Government. The defendant and the Government stipulated into evidence the November 13, 2008, report of Dr. Sullivan (Exhibit A), the April 24, 2009, report of Dr. Campbell (Exhibit # 2), as well as the curriculum vitae of both psychologists (Exhibit B and # 1, respectively. Additionally, based upon a telephone conference the Court held with Mr. Ciaccio and Assistant United States Attorney Bradley Tyler on July 27, 2009, the Government and the defendant agreed to stipulate into evidence the report of Dr. Gripshover, which the Court has received as Court Exhibit # 1. Significantly, Dr. Sullivan and Dr. Campbell each utilized a psychological test called the Minnesota Multiphasic Personality Inventory-2 ("MMPI-2") and each indicated that the defendant received an elevated score based upon his responses to the validity scales. Both further acknowledged that one possible explanation for such elevated score was malingering or exaggeration of symptoms. However, while Dr. Campbell concluded based upon her overall assessment that the Defendant was in fact malingering, Dr. Sullivan, although considering this possibility, ruled it out in reaching his opinion.
At the conclusion of the hearing, the Court gave the defendant and the Government until June 30, 2009, to submit a post-hearing memorandum of law. On June 30, 2009, the Government filed its submission. However, by letter dated June 30, 2009, Mr. Ciaccio, on behalf of the defendant, in pertinent part, wrote:
I am not making a submission with regard to the outcome of the competency hearing because my client has asked me to move to withdraw any opposition to the Government's effort to have him declared competent.
Standards of Law
A. The Statute and Legal Test
In pertinent part, 18 U.S.C. § 4241 states:
Determination of mental competency to stand trial
(a) Motion to determine competency of defendant. — At any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant, the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant. The court shall grant the motion, or shall order such a hearing on its own motion, if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.
(b) Psychiatric or psychological examination and report. — Prior to the date of the hearing, the court may order that a psychiatric or psychological examination of the defendant be conducted, and that a psychiatric or psychological report be filed with the court, pursuant to the provisions of section 4247(b) and (c).
(c) Hearing. — The hearing shall be conducted pursuant to the provisions of section 4247(d).
(d) Determination and disposition. — If, after the hearing, the court finds by a preponderance of the evidence that the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense, the court shall commit the defendant to the custody of the Attorney General.
The legal test of a defendant's competency to stand trial is found in Dusky v. United States, 362 U.S. 402 (1960):
[W]hether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings.Id.
B. Burden of Proof
The issue arises as to whether the Government bears the burden of establishing competency, or the defendant bears the burden of establishing incompetency. The relevant statute, 18 U.S.C. § 4241, is silent on this point, indicating only that the Court must find by a preponderance of the evidence that the defendant is incompetent to stand trial. The legislative history is also silent. Finally, this Circuit, although acknowledging that "[t]he federal statute providing for competency hearings does not allocate the burden of proof, and neither the Supreme Court nor this Court has decided as a matter of statutory construction whether the government or defendant bears the burden," declined to decide the issue. United States v. Nichols, 56 F.3d 403, 410 (2d Cir. 1995). The Supreme Court, however, commented on this issue in dicta in Cooper v. Oklahoma, 517 U.S. 348 (1996):
Indeed, a number of States place no burden on the defendant at all, but rather require the prosecutor to prove the defendant's competence to stand trial once a question about competency has been credibly raised. The situation is no different in federal court. Congress has directed that the accused in a federal prosecution must prove incompetence by a preponderance of the evidence. 18 U.S.C. § 4241.Id. at 361-362. Following, Cooper, the Eastern District of New York concluded, "[r]ecently, however, the Supreme Court provided guidance, explaining, albeit in dicta, that under Section 4241 it is the accused who must prove incompetence." United Stated v. Gigante, 996 F. Supp. 194, 199 (E.D.N.Y., 1998). In reaching its conclusion, the Eastern District relied on United States v. Morgano, 39 F.3d 1358, 1373 (7th Cir. 1994), cert. denied, 515 U.S. 1133, (1995), where the Seventh Circuit stated "[t]he starting point . . . is the notion that a criminal defendant is presumed to be competent to stand trial and bears the burden of proving otherwise." Id. at 1373. This Court agrees with Gigante. However, the Court further notes that even if the burden of proof was allocated to the Government instead of to the defendant, the evidence presented to the Court, as discussed below, conclusively establishes the defendant's competence to stand trial. Accordingly, whether the Government or the defendant bears the burden would not change the Court's conclusion. In that regard, the Supreme Court has explained, "the allocation of the burden of proof to the defendant will affect competency determinations only in a narrow class of cases where the evidence is in equipoise; that is, where the evidence that a defendant is competent is just as strong as the evidence that he is incompetent." Medina v. California, 505 U.S. 437, 449 (1992) (interpreting California state law).
C. Factors
"In making a determination of competency, the district court may rely on a number of factors, including medical opinion and the court's observation of the defendant's comportment." United States v. Nichols, 56 F.3d at 411 (citation omitted); see also United States, v. Quintieri, 306 F.3d 1217, 1233 (2d Cir. 2002) ("A district court must consider many factors when determining whether it has "reasonable cause" to order a competency hearing. Id. The district court's own observations of the defendant's demeanor during the proceeding are relevant to the court's determination. . . .").
ANALYSIS
As clarified by the Defendant and the Government at the competency hearing, both agree that the defendant has a rational as well as factual understanding of the proceedings. Dusky v. U.S., 362 U.S. at 402. Consequently, the only issue for the Court to resolve is whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding. Id.
In resolving the question of the defendant's competency, the Court first considers its own observations. At the outset, the Court observes that it was not until August 29, 2008, almost three years after he first appeared before the Court, that the defendant's competency was challenged. While the defendant may have been a difficult client with respect to his refusal to consider a plea agreement and his commitment to his own particular strategy of defense-as evidenced in Mr. Gallina's affidavit in support of his application to withdraw-this does not mean that he lacks the ability to assist his attorney. Although the Pre-trial Services Report, dated September 29, 2005, indicated that the defendant suffered from anxiety disorder, Mr. Gallina, a very experienced criminal defense attorney, never requested a competency determination during the approximately thirteen months that he represented the defendant, and Mr. Ciaccio, an equally experienced criminal defense attorney, never requested a competency determination until August 29, 2008, some twenty-two months after he began his representation of the defendant. Beyond this fact, the Court had the chance to interact with the defendant during court appearances and more extensively in the in camera proceeding on September 11, 2007. The defendant always appeared to the Court to be intelligent, oriented in time and place, and very aware of the facts and circumstances related to his case. He responded to the questions that were put to him in a coherent fashion. Additionally, the defendant's own submissions to the Court, his two motions to change counsel and the two letters he submitted in support of first Mr. Gallina's and then Mr. Ciaccio's request to modify the conditions of his release, evidence his ability to "to consult with his lawyer with a reasonable degree of rational understanding." Id.
Turning to the competency hearing, the Court finds the opinions expressed by Dr. Campbell and her ultimate conclusion that the defendant is competent to stand trial more convincing for several reasons. As evidenced by their curriculum vitae, both Dr. Sullivan and Dr. Campbell have impressive qualifications. However, while Dr. Sullivan observed the defendant for seven hours on November 6, 2008, in a solely clinical environment, Dr. Sullivan supervised a forty-five day inpatient examination of the defendant, during which she had the opportunity to observe him in a non-clinical setting. Moreover, although Mr. Ciaccio's affirmation in support of his motion for a competency hearing suggested organic deficits as a basis for incompetency, both Dr. Sullivan and Dr. Campbell agree that the defendant does not suffer from any physical condition that would impair his competency. Additionally, Dr. Sullivan, in contrast to Dr. Campbell, dismissed the observations of the defendant's wife, Susan Lyttle, who reported that her husband acted in a normal manner and that she had never observed the defendant experiencing delusions. In this regard, the Court agrees with Dr. Sullivan, and finds that it would be unusual to spend twenty-four hours a day with a person purportedly suffering from delusions and never observe any irrational or abnormal behavior whatsoever.
Next, the Court accepts Dr. Campbell's analysis of the defendant's elevated score on the F-scale of the MMPI-2 psychological test as more persuasive than that of Dr. Sullivan's. Dr. Campbell concluded that such elevated score was consistent with an attempt to manipulate the test. Dr. Sullivan, on the other hand, concluded that the elevated score could better be explained as indicative of a delusional disorder rather than malingering. In placing more credence in Dr. Campbell's opinion, the Court considers the timing of the defendant's request for a competency hearing, less than two weeks before the scheduled trial, as well as Dr. Sullivan's own suggestion that the defendant was exaggerating his symptoms. As to the latter, Dr. Sullivan, on page 10 of his report under the heading of Memory, wrote: "Mr. Lyttle complained vociferously about his memory functioning. However, his performance on standardized tests of memory was consistently good."
Furthermore, in reaching her determination of the defendant's competency, Dr. Campbell spoke by telephone, in the defendant's presence, with Boris Parad, the attorney who represented the defendant in a related civil proceeding before the Securities and Exchange Commission. In regard to this conversation, there was no indication that the defendant had any trouble working with Mr. Parad. On the other hand, the defendant told Dr. Campbell that he did not respect Mr. Ciaccio and wanted someone else to represent him. While the defendant may be unhappy with Mr. Ciaccio, his apparent ability to work with Mr. Parad suggests that he is able, if he so chooses, to consult with Mr. Ciaccio with a reasonable degree of rational understanding.
Finally, the defendant's own treating neurologist, Dr. Pirko, and the neuropsychologist to whom he referred the defendant, disagree with Dr. Sullivan's conclusion that the defendant has a delusional disorder. In his December 22, 2008, report, issued more than a month after Dr. Sullivan's, Dr. Pirko indicated that there was nothing in his examination of the defendant that led him to believe that the defendant was delusional. Likewise, in his report issued approximately six months after Dr. Sullivan's, Dr. Gripshover, stated "I do not find sufficient evidence of a psychotic thought disorder at this time."
CONCLUSION
Accordingly, the Court finds by a preponderance of the evidence that the defendant is not "presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense." 18 U.S.C. § 4241(d). It is So Ordered.ADDENDUM #1
705 Ridge Avenue
Lawrenceburg, IN 47025
27 December, 2005
FREDERICH GALLINA, Esquire
1 East Main Street, Suite 100
Rochester, NY 14614
Dear Mr. Gallina,
This letter is a request for your assistance of discussing with the presiding Judge to lessen the conditions of my Home Incarceration due to the following:
Please do not misunderstand. I really do appreciate the fact that I am in this environment as opposed to where I was. It is much more pleasant, but still, it is true incarceration, based solely on accusations, distorted presentation of facts and factual events, and without the Justice Department and/or the U.S. Government abiding by their own agreements and Judicial Orders.
The first event was the day I was arrested. The Federal Magistrate made a condition of me being remanded to custody that the U.S. Marshals would continue all of my medications as prescribed, to which they agreed in the courtroom. As we left the building to be taken to the jail across the street, the U.S. Marshal stated, "That will never happen." It did not. The following day, my medication was refused to me. They decided better than my doctors, even after calling the pharmacy that filled the prescriptions to make sure I did not have illegal medications on me. After arriving at the Federal Prison in Oklahoma City, their in-house doctor did a 2 minute question session within a few days to go over what I was taking and for what. The next day, I was taken into a small treatment room, as I was having severe chest pains. They performed an EKG and did a six inch long paper reading from the EKG showing about 6 or 7 heartbeats and determined there was nothing wrong with me. I was sent back to my cell. The doctor in the prison prescribed all different medications for me for blood pressure and heart conditions. Instead of the Xanax that I have been taking for years for my anxiety, they wanted to give me Prozac, a mind-altering psychotic drug, that has a bad reputation for causing numerous problems in many people. They attempted to give me Prozac every day I was incarcerated in facilities, which was wrong.
All of the medications I have been taking for a considerable time, after numerous treatments and surgical procedures over the last number of years at special clinics, heart specialists and therapy, was changed by the prison doctors. In addition to changing all the medication, I was denied all or part of those medications 26 out of the 39 days held in 5 federal prisons and 3 jails. I was at least allowed to keep the nitroglycerin tablets with me, which I had to take daily to keep down the chest pain because I did not have the regular medication for blood pressure, heart problems and anxiety.
I have been to my local doctor numerous times and worked on restoring my health from problems caused by the changes and lack of medications by the U.S. Marshals contrary to the Federal Magistrate's Order and by correcting medications in proper dosages since being incarcerated at home after release from U.S. Marshal custody on September 29. This is the end of December and I am just starting to gain physical stability again. At this time, I need to go to several other specialists and doctors for further treatment to correct other problems, but cannot easily, under the circumstances.
I have had back problems for a long time and surgery on L-2, L-3 and L-4, L-5 three years ago this coming January, by a highly rated surgeon and facility in Asheville, NC. I also went to a very good chiropractor locally to help with temporarily relieving some of the pain. Even though I had a doctor signed and ordered "top bunk pass" at the federal prisons, I had to climb up and sleep in a `top bunk' in all facilities except Batavia. Now I am having severe problems again and need treatment and/or surgery for my back, as I am having problems with walking, sitting, standing, laying down and especially lifting anything, including my small grandchildren. I cannot go to the chiropractor locally for temporary relief due to the fact that this is a `small town' and I will not expose myself to questioning of the bracelet. It was bad enough before from the publicity and notoriety from the SEC Federal Lawsuit being on the front page of the local newspaper and Cincinnati television news for a week. (Copy of the article attached)
The probation officer `stated' to me that in order to accommodate having the required and necessary MRI done, they would remove the bracelet in order not to have problems with the magnetism of the MRI. I would have to drive 3 hours one way to take it off, drive 3 hours back, have the MRI, then drive 3 hours back to have it replaced, then drive 3 hours to get home. I have a problem with my health and sitting that long in a car with my back problem is difficult. I can hardly walk now. After the doctor has an opinion on what to do, I would need to go to Asheville, NC at least twice. I would go once for the consultation and setup and then again for the surgery. There may have to be a follow-up visit after the surgery, also. There was the last time. The probation officer `stated' that he would stop the monitoring for the surgery if necessary and/or make the same number of trips again to his office to have the bracelet removed and replaced. While in North Carolina for the surgeon, I could also get the check-up past due for my heart in Greensboro, NC, where the heart specialist is located in conjunction with Duke University. My second catheterization was done just at the beginning of this year and I was supposed to have it checked long before now.
Even with the conditions of me driving so many hours and trips to work with my bracelet, I am worried about scheduling appointments and not being able to make them and causing more confusion and/or doing something that would be construed wrong and be in violation of `MY' conditions. The first probation officer I was working with allowed me to contact him by e-mail, which made it convenient (what few times there have been) to make any sort of request and/or report in compliance with `MY' conditions of home incarceration. On page 2 of 3 of my conditions of release signed in Rochester, it states under item (t) (iii). . . . restricted . . . except for . . . religious services. My first request was for an extension of time to attend a wedding and reception at a church in Kentucky for very close friends until 2:00AM to allow for the reception and travel time (1 1/2 hours drive. I was permitted until 12:00AM only and had to make excuses and leave as the bride and groom arrived at the reception in order to get home in time. That was okay as it was better than nothing and better than regular prison, but it did not allow me to be a part of the function as a religious ceremony fully. My second request was denied to allow me to drive up to my son's house with our truck to help them move home as his wife was preparing for graduation from Purdue University and need to move back here to get a permanent job for both of them, allowing me to not have to help them so much in financial support, especially with their two small children. At least it was permissible for me to go there to attend the actual graduation ceremony and the short reception afterward a week ago. I had to hurry to get home on time to not be in violation. It was a 3 hour trip each way.
The worst event happened from my written request of attending a Christmas Musical Performance at the church across the street from our house (about 200 feet outside of my boundary) that was on December 3. I adhered to the 5 business days advance notice, November 28, in writing. No response. The second request for the same was sent December 2 (I sent you a copy). Again, denial by no response. This was a Christmas church event (by written invitation and tickets) across the street from my house and dinner and all I requested was to be allowed to be gone until 11:00PM. This is permissible under the terms of the above listed condition of my release, but I was ignored. The probation officer was here about a week or so later and when I asked him about it, he said "Sorry about that . . ." This was a request for a religious ceremony. At least with him, he agreed to respond to anything in writing, as I did not want any mistakes to cause me a problem.
We welcomed the opportunity to attend church services at a different church as my wife will not go back to the church she attended for 53 years. The probation officer, Ross Carothers, after the first visit to inspect my home, immediately informed the next person he is monitoring and told them about monitoring me. (Being on monitored probation automatically makes you guilty of something, without the truth) The next day, my wife was confronted at a local store in town by the lady on probation since her release from prison, her mother and sister that we both had the same probation officer and they talked to my wife all about her prison term and everything that happened. Remember, this is a small town and they go to the same church and the mother was very close friends with my wife's parents when they were alive. It has been very difficult to go anywhere or do anything in this town since the `front page' and TV new of more than 2 years ago. I have the `bubonic plague.' The facial reactions when people recognize me are ridiculous. It has been a slow climb for us, but my wife and I go on and have continued to go to church, but now, with this event, it is impossible. Small town gossips love to talk and if she or I are not seen, then maybe it will die down again. The lady is one of the gossipers we need to avoid They may relish in their own mess, but the fact that I have a probation officer controlling me publicly infers guilt and that the process is done, otherwise, why would I be on probation. The difference is that I have been `Accused' of something using distorted and out of context information, but the fact remains that I have not been tried or convicted of anything.
That has now changed. I have a new probation officer from a different office (further away) and he will not allow e-mails or faxes of any kind. It has to be regular U.S. Mail, which cannot be verified of receipt and it takes at least 2 extra days to get there. He gave me his cell phone number as a way of contacting him in an emergency, but he does not answer it. It is only voice mail. He will not put anything in writing, therefore, I cannot trust a verbal okay on anything. It would be his word against mine if there is a discrepancy and guess who the authorities would believe. He could forget or intentionally forget to change the time in the computer and I would take the fall. I do not trust my freedom to such loose rules and actions.
The other codefendants in this case are not under electronic monitoring/home incarceration. I am the only one. Trust me, I am thankful to be here instead of where I was, but this is difficult, at best, with the electronic monitoring, lack of response from the probation officers and failure to adhere to the Court conditions allowing me to attend religious ceremonies and functions. The reason given for the electronic monitoring by the prosecution is that I am a `flight risk'. Why? They can say anything and accuse people of whatever they want, using distorted information and twisting the facts. They stated that I was an experienced world traveler, but the fact remains that Paul Knight traveled the world with me and especially Gail Eldridge, who has worked and traveled the world as a Government Contract Agent. They are not considered a flight risk under the same rules?
If I were a real flight risk, why would I have remained here to fight the SEC Federal lawsuit since early 2001? Knowing full well of the ongoing Federal Grand Jury investigation and pending indictment, why would I have stayed if I were trying to avoid anything? Even my SEC Lawyer, Boris Parad, wrote in a brief to the Court that a criminal indictment was imminent. My local attorney was called and went to Rochester in/or around April of this year. If I were going to try get away or to avoid being arrested, I would have done it a long time ago. I am working on eventually clearing my name and get on with my life. That also depends on getting out the truth as opposed to the prosecution's twisting and burying pertinent facts and information of what really happened in this supposed case.
This is about the same as religious zealots and preachers using the bible for their own purpose or to create a new story. They take one line out of this chapter and a line out of another. By continuing this, they create a brand new story for their own benefit without even resembling the original. But it is in the Bible. When the original lawsuit was filed, the SEC posted it like a web page of my name on the internet, which cost me numerous relationships and ability to make an income of any kind. I cannot even open a bank account. I was physically escorted out of a bank in Switzerland where I had an invitation by the bank prior to them putting my name into Google. Now, I am under electronically monitored home incarceration without clear and or changing rules and not allowed to even attend religious activities as stated by the Court. The real facts are:
1. I am not a risk to the community
2. Very poor health (letter to prison attached) and require numerous treatments and or surgery very soon
3. Strong family ties in local community
4. Cannot freely visit lawyer in Chicago to prepare for SEC lawsuit properly which is to be scheduled for trial very soon
5. No evidence of ever having tried to avoid or run from prosecution
6. Do not own nor possess weapons
7. No funds to finance any flight
If there is any way you can help solve some of the issues, I would appreciate it. Removing the electronic monitoring would be very helpful in that it would at least allow me to freely seek medical attention without problems. I will admit, though, it is much better this way than it was before.
Thank you in advance for your help and cooperation.
Regards,
Melvin R. Lyttle
ADDENDUM #2
September 3, 2008
Honorable Charles J. Siragusa
United States District Court Judge
1360 US Courthouse
100 State Street
Rochester, NY 14614
Re: Melvin R. Lyttle
Dob: 6-8-51
Dear Judge Siragusa:
I am writing on behalf of Mr. Lyttle. He is a patient that I saw in consultation on September 3, 2008. He had an MRI performed that documented a brain enhancing lesion on May 21, 2008. He initially opted for alternative treatment and has had an enlargement of the lesion that was previously seen based on an MRI performed in August, 2008. The diagnosis is currently unclear as to what exactly the lesion is. This lesion is suspicious for a demyelinating process such as multiple sclerosis; however it is very possible that this could represent an intracranial neoplasm. If this does represent an intracranial neoplasm, this is a potentially life threatening condition. Based on the fact that it has grown in size over a period of only three months, the suspicion for malignancy has to be relatively high. He also has a very long smoking history and thus puts him at increased risk for lung cancer and the potential for malignant lung cancer.
I stressed the urgency of this evaluation to Mr. Lyttle who notified me of his current predicament. It is my opinion that the patient will likely need to hold off any type of travel or participating in any type of trial at this point. He currently is suffering from some periods of confusion, inability to concentrate and word finding difficulties that would make it very difficult for him to participate in a meaningful way in any type of trial. In addition to those facts, the patient also will require an urgent workup to determine what this lesion is. I will be seeing in him urgent follow up in one week's time after all of his testing has been performed. The patient may be able to participate in a trial at some point in the future, but at this point I would recommend against it. If there are any questions or concerns please do not hesitate to call me at the number provided.
Sincerely,
Ty D. Brown, MD
TDB/smm
October 13, 2008
RE: Melvin Lyttle
DOB: 6/8/51
To Whom It May Concern:
Melvin Lyttle is a patient of mine whom I have been following for a brain lesion of unclear etiology. The patient has been reporting worsening and worsening symptoms since the onset of this lesion. He has complaints that are being evaluated by the ENT specialist Dr. Rubenstein for which he has an appointment this week. The patient also has a follow up MRI scheduled for later this week to assess for continued resolution of this lesion versus possible worsening. Given the patient's reports of extreme fatigue and inability to concentrate or think he has reported that he is unable to travel and participate in any type of trial. I am writing on his behalf to notify whoever it is that needs to be notified that this is his current issue. The patient also will have a neuropsychological evaluation preformed at some point to assess for these other complaints that Mr. Lyttle has.
At this point the appointment date is set for 12/11/08 although I am attempting to get this done sooner as I know that there are some time constraints. Please do not hesitate to call with further questions or concerns regarding Mr. Lyttle.
Sincerely,
Ty D. Brown, M.D.
TDB/crs
October 15, 2008
Honorable Charles J. Siragusa
United States District Court
1360 U.S. Courthouse
100 State Street, Rochester, NY 14614
Fax: 585-613-4055
Re: Melvin Lyttle
D.O.B: 6/8/51
Dear Judge Siragusa,
This letter is to clarify and/or expound upon my most recent letter regarding Mr. Lyttle. In terms of Mr. Lyttle's medical condition, he does have an abnormality that is felt to likely represent either an inflammatory or demyelinating process within his brain that does appear to be improving in terms of MRI appearance. There is still definitely a possibility that the lesion could cause problems such as seizures. He has clumsiness and weakness on the right side. This could also be related to his known lesion in the left frontal head region. He also has problems with concentration, easy fatigue, dizziness and what he describes as very severe headaches. I have tried treatments for most of these conditions. I also have referred him to Dr. Rubinstein, who is an ear, nose and throat specialist, who is working up possible sinus infections.
The best way to determine whether or not the patient would be fit to undergo a trial or traveling would be to have him undergo formal neuropsychological testing. Unfortunately, an appointment for this type of specialist takes months to obtain typically. Ideally, I would like to defer to the neuropsychological evaluation to determine the patient's ability to travel or not to travel and to be able to participate in a trial. Due to the fact that it will take a few months to get in to see a neuropsychologist and there are time constraints make waiting impossible, I will give my medical advice that the patient not drive or travel at this time. This is also due to the fact that there are some outstanding studies and evaluations that need to be worked up. Once this workup is complete, I feel that the patient will likely be able to participate in his trial as long as his medical condition improves.
Please do not hesitate to call with further questions or concerns. I will be more than happy to discuss this case over the phone with you if necessary.
Sincerely,
Ty D. Brown, M.D.
TDB/kjk
November 11, 2008
Honorable Charles J. Siragusa
United States District Court
1360 U.S. Courthouse
100 State Street
Rochester, NY 14614
Fax: 585-613-4055
RE: Melvin Lyttle
Date of Birth 6/8/51
Dear Judge Siragusa,
This is a letter to update you on the condition of Mr. Lyttle. He has had follow up studies showing no resolution of his lesion that was previously noted in the left frontal head region. He continues to complain of worsening symptoms. Specifically, he notes that he is having "excruciating headaches", dizziness, and inability to drive or ride in a car. He describes significant motion sickness that occurs when riding in a car. He states that even when getting out of the car after riding he is unable to walk. When trying to drive himself he swerves over the lane divider lines. Given the lack of resolution of the patient's symptoms and MRI findings. I am referring him to a specialist for demyelinating disorders. He is undergoing neuropsychological testing and I am awaiting the results of these tests. This will be a very good evaluation for determining how well he will do in a clinical trial and/or if there is any evidence of significant confusion. In the meantime. based on the patient's symptoms and current complaints he is likely not able to participate in a trial at this point. I am referring him to vestibular rehab to help with his motion sickness. If this rehabilitation is helpful then there will be less of a reason for the patient to not be able to participate in his trial. This should be something that can take place relatively quickly.
Please do not hesitate to call with further questions or concerns, or if you would like to discuss Mr. Lyttle's case further.
Sincerely,
Ty D. Brown, M.D.
TDB/jmt
November 20, 2008
Honorable Charles J. Siragusa
United States District Court Judge
1360 U.S. Courthouse
100 State Street
Rochester, NY 14614
Re: Melvin Lyttle DOB: 6/8/51
Dr. Judge Siragusa,
This is a letter to update you on Mr. Lyttle's progress. I saw Mr. Lyttle today in the office, and he continues to complain of severe headaches and inability to concentrate. He recently was seen by Dr. Rubenstein who is an ear, nose and throat specialist. He had bilateral ear tubes placed that seemed to help his dizziness to some degree. He also saw a Dr. Thomas Sullivan who is a clinical neuropsychologist. He had his neuropsychological evaluation, and I was told that you have the results of this evaluation. If you do not, please contact my office for a copy of this.
At this point, the patient's symptoms appear to be worsening although his lesions in the brain have been relatively stable. I have referred the patient to a specialist, Dr. Istvan Pirko, who is a renowned specialist in demyelinating disorders. It is very difficult to get an appointment in to see Dr. Pirko and he has one scheduled for December 18, 2008. Mr. Lyttle has informed me that he is to go to a prison hospital for mental "observation" for 30 days beginning very soon to determine his mental capacity to stand trial. Although I do believe that an evaluation is a good idea, I am unsure if the timing of this is going to be beneficial for the patient. If there is any way possible, I would recommend that the patient not be sent to any prolonged hospitalization for evaluation until he has been seen by Dr. Pirko on December 18, 2008.
Mr. Lyttle also informed me that during a prior prison hospitalization resulted in him not receiving any of his medications. He has voiced some serious concerns that this would happen again. I informed Mr. Lyttle that this should not be the case and any medications that he is on should be continued regardless of which hospital that he was admitted to. If there are any concerns or problems with this, please again, do not hesitate to contact me.
Please do not hesitate to call me if there are any questions or concerns regarding Mr. Lyttle's case. I would be more than happy to discuss this with you.
Sincerely,
Ty D. Brown, M.D.
TDB/kjk