defendant mark titus’ motion to withdraw plea …media.nola.com/crime_impact/other/2012-09-11...

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

UNITED STATES OF AMERICA VS. MARK J. TITUS

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CRIMINAL NO. 11-159 SECTION: “B” (1)

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DEFENDANT MARK TITUS’ MOTION TO

WITHDRAW PLEA OF GUILTY, PLEA AGREEMENT AND WAIVER OF INDICTMENT

NOW INTO COURT comes the defendant, Mark J. Titus, through the

undersigned attorney, and pursuant to Rule 11(d) of the Federal Rules of Criminal

Procedure moves the Court to allow him to withdraw his plea of guilty, the plea

agreement and the waiver of indictment entered as to Count One of the information

against him.

WHEREFORE, for the reasons provided in the attached memorandum of law,

Mark Titus prays that the Court grant his motion.

DATED: September 11, 2012.

Case 2:11-cr-00159-ILRL-SS Document 58 Filed 09/11/12 of 2

Respectfully submitted, ARDOINLAW, PLLC 700 Louisiana, Suite 3950 Houston, Texas 77002 Phone: (713) 574-8900 Fax: (713) 574-1404 /s/ James Ardoin________ JAMES ARDOIN State Bar No. 24045420 /s/ Paul Villalobos____ PAUL VILLALOBOS 265 Canal Street, Suite 2360 New Orleans, Louisiana 70130 Phone: (504) 593-0007 Fax: (504) 593-0001 Attorneys for Defendant MARK J. TITUS

Certificate of Service

I hereby certify that a true and correct copy of the above and foregoing was served upon all counsel of record via the CM/ECF system. /s/ James Ardoin____________ JAMES ARDOIN

Certificate of Conference

I hereby certify that I conferred with AUSA Peter Koski who stated that the Government was OPPOSED to the granting of this motion. /s/ James Ardoin___________ JAMES ARDOIN

Case 2:11-cr-00159-ILRL-SS Document 58 Filed 09/11/12 of 2

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MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT MARK TITUS’S MOTION TO WITHDRAW PLEA OF GUILTY, PLEA AGREEMENT, AND

WAIVER OF INDICTMENT

I. Overview

On October 26, 2011, Mark J. Titus was re-arraigned before the Honorable Ivan

L.R. Lemelle and pled guilty to a one count Criminal Information charging him with

Conspiracy in violation of 18 U.S.C. § 371 (DKT 1). The parties filed a Waiver of

Indictment (DKT 11), a Plea Agreement (DKT 30), a Factual Basis (DKT 29)

On April 20, 2012, all but one of the members of the United States Attorney’s

Office for the Eastern District of Louisiana recused themselves from the case following

the misconduct of one of its attorneys. The Public Integrity Unit for the Department of

Justice entered the case to continue the prosecution for the purposes of sentencing.

Sentencing is scheduled for October 3, 2012.

II. Background of the Criminal Information and Plea

The charge arose from Titus’s involvement with his brother in-law Dominic

Fazzio in a scheme to defraud Garner Services of money to which he has pled guilty.

Before the Government filed the charge, Titus agreed to co-operate with law

Case 2:11-cr-00159-ILRL-SS Document 58-1 Filed 09/11/12 Page 1 of 13

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enforcement.1 He had several proffer sessions with the Government, who, at that time,

were represented by the United States Attorney’s Office for the Eastern District of

Louisiana.

Additionally, the Government assured members of Titus’ defense team that,

despite the provision in the plea agreement in which Titus agreed to forfeit the alleged

proceeds, it would not in fact seek forfeiture from him, and he would be “Ok” when it

came to a sentencing recommendation from the Government. See Exhibit “A” Affidavit of

Tim Wilson. This representation by the Government is also reflected and corroborated in

paragraph two of the Presentence Investigation Report (“PSR”)2, which states: “The

government indicated it is not seeking forfeiture in this case.”

Now, after the Public Integrity Unit has entered the case, the Government has

materially changed its position and seeks immediate forfeiture of $1,200,000 from Titus.

Unlike its prior representations during the plea negotiation process, the United States

Attorney’s Office for the Eastern District of Louisiana now denies that the oral

representations made by them were toTitus or his defense team regarding forfeiture,

despite the evidence to the contrary in the PSR.

Titus’s plea was involuntary because it was based on promises made by the

Government that were not contained in the plea agreement and which the Government

has in bad faith failed to honor. Therefore, Mr. Titus moves to withdraw his plea, the

plea agreement, and his waiver of indictment.

1 He agreed to provide information and wear a “wire.” 2 Since the PSR is a sentencing document and is under seal with the Court, Defendant has not attached a copy of the PSR to this motion


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III. Government’s Material Representations to Tim Wilson

In May of 2011 Titus enlisted the help of Tim Wilson, a private investigator, after

FBI agents began their investigation of him. Wilson spearheaded negotiations with the

Government on Titus’ behalf and with the help of Danny Coulson, former Deputy

Director of the FBI, the parameters for a cooperation agreement with Titus were put in

place.

Wilson had numerous conversations in person and over the phone with FBI agent

Malcolm Bezet, AUSA Sal Perricone, and AUSA Jim Mann. In fact, AUSA Mann has

continued to reach out to Wilson even after he was recused from having anything to do

with Titus’ case. Wilson, who knows Titus and his wife personally, was very clear with

the Government that his desire was to ensure that the Government did not take the family

home or the wife’s studio building as part of the forfeiture provision of the plea

agreement. See Exhibit “A”, Wilson Affidavit.

On multiple occasions, members of the Government team assured Wilson that

they would never seek to execute any forfeiture on those items, and in fact AUSA Sal

Perricone told Wilson that he “didn’t care about any of Titus’ assets.” Id.

After his conversations with Perricone, Mann and Bezet, Wilson firmly believed

that there would be no forfeiture against Titus because the Government would never seek

to execute on the forfeiture provision of the plea agreement. Id. Wilson relayed the

assurances made to him by the Government to Titus on multiple occasions prior to Titus

signing and entering into the plea agreement with the Government which included the

forfeiture language. Wilson told Titus that while the language was in there, both

AUSA’s, Mann and Perricone, had repeatedly assured him that they would never seek to


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execute the forfeiture provision. Id. Wilson took AUSA’s Perricone and Mann at their

word and believed so much that there would be no forfeiture against Titus, that Wilson

assured Titus that if he signed the plea agreement the Government had represented that

there would absolutely be no forfeiture of his assets.

Titus in turn relied on Wilson’s representations of the promises made to him by

the Government via Wilson when he decided to enter into the plea. Titus fully believed

that, despite language in the plea agreement to the contrary, the Government would never

seek to forfeit anything from him.

IV. The Government Moves to Revoke Titus’ Bond3

Rather than acknowledge and abide by the representations and assurances made

by the Eastern District of Louisiana, the Government, now led by the Public Integrity

Section, has sought to pretend that the oral agreements never occurred and that the

statement to the Probation Office about the lack of intent to seek forfeiture was never

made despite it’s existence in the PSR. The Government now seeks to create new

charges against Titus, but instead of presenting alleged evidence of new crimes to a

Grand Jury in seeking an indictment against him, the Government has instead set out on a

course to have his bond revoked and to keep his plea intact despite their attempts to

breach the plea agreement.

On August 9, 2012, AUSA Peter Koski sent a letter to counsel seeking to renege

on its obligations under the Plea Agreement while forcing Titus to remain obliged

thereunder. Koski argues that Titus should not be able to avoid the consequences of his

3 Defendant has already filed a lengthy opposition brief to the Government’s Motion to Revoke Titus’s bond outlining in great detail the evidence presented at the hearing and the inconsistencies of that evidence with prior actions and filing of the Government. See DKT 57, Defendant Titus’ Opposition Brief to Government’s Motion to Revoke Bail.


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plea simply by committing additional crimes, the commission of which have caused the

Government to renege. See Exhibit “B”, August 9, 2012 Letter, Pg. 1, ¶3. In their letter,

the Government sets forth a number of things which they believe have breached the plea

agreement including but not limited to failing to fill out a Financial Statement (Form

OBD-500), concealing financial information and documentation to shield assets from

forfeiture, structuring transactions to evade reporting requirements and engaging in a

bribery and kickback scheme. Thereafter, the Government filed a motion with the Court

asking for a show cause hearing seeking to revoke Titus’ bond.

On August 15, 2012, Magistrate Chasez held a show cause hearing on the

Government’s motion to revoke Titus’ bond. Amazingly, the Government showed up

and attempted to present evidence about real estate transactions that are unsupported by

any documented fact and made claims of structuring offenses that are based solely upon

unsubstantiated hearsay without any of the evidence that their key witness was testifying

to. The Show Cause hearing is seemingly motivated by the Government’s bad faith

efforts to void, any way it can, the cooperation and plea agreements entered into with

Titus. Ironically for the Government, the evidence adduced at the show cause hearing

actually helped to prove Titus’ claim that prior to the Public Integrity Unit entering the

case, the Government never intended to pursue the forfeiture provision contained in

Titus’ plea agreement.

At the hearing FBI agent Paul Duplessis took the stand to testify about the ways

in which the Government believes Titus had violated the conditions of his bond.

Duplessis’ testimony did not materially support any of the allegations made by the

Government in its Order To Show Cause or August 9th letter. However, the evidence


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adduced there not only shows the lengths at which the Government is willing to go in

order to circumvent due process, but also shows that Titus’ claim that there was a side

agreement to the plea agreement regarding forfeiture is genuine. Duplessis’ testimony

along with the Government filings clearly illustrate that it has done nothing with regard to

freezing assets or preventing the withdrawal of funds belonging to Titus for over year,

thus proving that this was nothing more than a sham forfeiture provision contained in the

plea agreement that was intended to give every appearance to the outside world that a

forfeiture would take place all the while knowing that it would never occur because of

oral agreement between the Government and Titus to the contrary.

Duplessis testified that he began to investigate Titus in or about May, 2011. See,

HT, Pg. 30 lines 10-13. Duplessis claims his purpose was to locate assets of Titus that

could be subject to forfeiture. HT, Pg. 13, lines 22-23. He was monitoring Titus’ bank

accounts in real time and knew exactly when Titus received the $367,000 dissolution

distribution from Garner Services LLC and when Titus received the $150,000 loan

repayment from Ed Garner which the Government now claims were forfeitable under the

plea agreement. Despite knowledge of the distribution and loan repayment, the

Government did nothing to freeze those assets for purposes of executing the forfeiture

provision. Further, even in the face of alleged depletion of forfeitable funds by Titus’

withdrawal of them from the banks, Duplessis’ testimony was completely devoid of any

proof of efforts taken by the Government to stop this action when they were fully aware

that it was going on. He also testified that he knew back in May of 2011 exactly which

properties Titus had purchased during the time of the alleged scheme. Once again, the

Government did nothing to place a lien on those properties or any other substitute


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property such as vehicles in order to perfect their interests in the monetary judgment that

issued as a result of the forfeiture provision in the plea agreement.

Despite evidence showing that the Government knew full well of Titus assets and

receipt of over $500,000.00, when the Government filed it’s Motion and Brief of the

United States for Issuance of a Preliminary Order of Forfeiture on February 15, 2012

(some 2 months after the Government told the Probation Office that it would NOT be

seeking forfeiture), the Government said it had not identified any specific assets that were

derived from the offense nor had they identified any property that could be forfeited as a

substitute. See DKT 45 at ¶ 5. These positions are wholly inconsistent with one another

and the Public Integrity Unit’s new position and are further proof that the Government is

now trying to cover up their promises and assurances to Titus that there would be no

forfeiture, which is corroborated by the PSR.

V. Legal Argument

A guilty plea must be knowing and voluntary. Boykin v. Alabama, 395 U.S. 238

(1969); Fed. R. Crim. P. 11 (b)(2). A defendant may move to withdraw his guilty plea

before sentencing upon a showing of “a fair and just reason.” Fed. R. Crim. P.

11(d)(2)(B). This rule should be construed and applied liberally. United States v.

Badger, 925 F.2d 101, 103 (5th Cir. 1991). Fair and just reasons for withdrawal include

intervening circumstances or any other reason for withdrawing the plea that did not exist

when the defendant entered the plea. United States v. Ortega-Ascanio, 376 F.3d 879,

883 (9th Cir. 2004). A defendant need not prove that his plea was invalid to meet this

burden. Id. at 884.

The US Supreme Court has held that:


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“When the consideration for a contract fails—that is, when one of the exchanged promises is not kept—we do not say that the voluntary bilateral consent to the contract never existed, so that it is automatically and utterly void; we say that the contract was broken. See 23 R. Lord, Williston on Contracts § 63.1 (4th ed.2002) (hereinafter Williston). The party injured by the breach will generally be entitled to some remedy, which might include the right to rescind the contract entirely, see 26 id., § 68.1 (4th ed.2003); but that is not the same thing as saying the contract was never validly concluded. So too here. When a defendant agrees to a plea bargain, the Government takes on certain obligations. If those obligations are not met, the defendant is entitled to seek a remedy, which might in some cases be rescission of the agreement, allowing him to take back the consideration he has furnished, i.e., to withdraw his plea. But rescission is not the only possible remedy; in Santobello [v. NY, 404 U.S. 257 (1971)] we allowed for a resentencing at which the Government would fully comply with the agreement—in effect, specific performance of the contract. 404 U.S., at 263, 92 S.Ct. 495. In any case, it is entirely clear that a breach does not cause the guilty plea, when entered, to have been unknowing or involuntary. It is precisely because the plea was knowing and voluntary (and hence valid) that the Government is obligated to uphold its side of the bargain.”

Puckett v. US, 556 U.S. 129, 137-38, 129 S. Ct. 1423, 1430, 173 L. Ed. 2d 266 (2009)[Emphasis Added].

In considering a Defendant’s motion to withdraw a plea, the district court

considers: (1) whether the defendant has asserted his innocence; (2) whether withdrawal

would prejudice the government; (3) whether the defendant delayed in filing the motion,

and, if so, the reason for the delay; (4) whether withdrawal would substantially

inconvenience the court; (5) whether close assistance of counsel was available to the

defendant; (6) whether the plea was knowing and voluntary; and (7) whether withdrawal

would waste judicial resources. US v. Hurtado, 846 F.2d 995, 997 (5th Cir.), cert. denied,

488 U.S. 863, 109 S.Ct. 163, 102 L.Ed.2d 133 (1988).


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No single factor or combination of factors mandates a particular result. US v.

Badger, 925 F.2d 101, 104 (5th Cir.1991). Instead, the district court should make its

determination based on the totality of the circumstances. US v. Still, 102 F.3d 118, 123-

24 (5th Cir. 1996), citing, US v. Badger, 925 F.2d at 104.

Where a defendant has offered a fair and just reason for withdrawal, the Court

must also consider the prejudice to the government in granting the motion. US v.

DeSimone, 736 F. Supp. 2d 477, 489 (D.R.I. 2010). Despite the fact that the government

may face difficulty trying to assemble the witnesses due to the length of delay from plea,

withdrawal, and subsequent trial; lacking a claim that witnesses are now unavailable, or

that evidence has been destroyed or the like, “[t]he prejudice amounts to inconvenience to

the government and its witnesses.” Id. Such inconveniences do not amount to substantial

prejudice to the government to bar withdrawal of a guilty plea. Id.

Titus’s case is similar to United States v. Amaya, 111 F.3d 386 (5th Cir. 1997).

There, the defendant pled guilty pursuant to a plea agreement that included the

government’s option to file a §5K1.1 motion for downward departure based on

substantial assistance. At re-arraignment, the defendant said that his plea was in

exchange for the §5K1.1 motion and that he feared the government would not abide by

that agreement. The district court told him that, if it believed he substantially assisted the

government and deserved a §5K1.1 downward departure, it would depart downward at

sentencing even if the government did not file a motion. At the time of the plea, the law

permitted a district court to make such a downward departure without a government

motion. After the plea but before sentencing, the Supreme Court decided Wade v. United

States, 504 U.S. 181 (1992), which held that a district court cannot depart downward


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based on substantial assistance without a motion from the government. The Fifth Circuit

held that Amaya’s plea was involuntary because he lacked a full understanding of his

plea and its consequences as a result of the misimpression created by the district court.

“A situation in which a defendant is induced by . . . an unfulfillable promise[] or

misrepresentation to enter a plea of guilty does not meet the standard for voluntariness

articulated by the Supreme Court. Such renders a plea involuntary.” Id. at 389.

In this case, the Government made clear orally that it would not seek forfeiture

from Mr. Titus in this matter. That representation is reflected in the Pre-Sentence Report

(CITE) which makes clear that communications by Probation with the Government

indicated that no forfeiture would be sought in this case. However, since federal

prosecutors from the Eastern District of Louisiana have been replaced in this case by their

cohorts from the Public Integrity Unit from Washington, D.C., the Government has

reneged on that promise.

Applying the seven factors that the District Court may consider in reviewing

Titus’ motion to withdraw his plea yields the following results:

(1) Asserted innocence is not at issue as Mr. Titus plead to the

conspiracy. However, the Government is alleging via the

Order To Show Cause and August 9th Letter that he has

engaged in continuing criminal activity that seems to be

part and parcel to the original conspiracy to which he pled

guilty. To those new allegations Mr. Titus professes his

innocence.

(2) The withdrawal of the plea would not prejudice the


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Government in anyway. Mr. Titus was accused of

engaging in a conspiracy with Mr. Fazzio, his brother in

law. Fazzio’s case, arising from the identical facts and

activities, has yet to go to trial. The witnesses and evidence

would be virtually the same. The Government cannot

credibly claim prejudice by delay since it has made clear in

the August 9th letter that it intends to bring additional

charges against Titus.

(3) Mr. Titus has not delayed in filing the motion as the

Government’s failures to abide by its promises which

induced the plea agreement have been reneged upon

recently. In light of those reneges, which are fundamental

to the meeting of the minds between the parties vis

forfeiture, Mr. Titus swiftly seeks to withdraw the plea.

(4) The inconvenience to the Court would not be tremendous

as the Fazzio trial is set to go forward in the near future and

the Government is going to bring additional charges against

Mr. Titus regardless of the plea. Therefore, the Court is

going to be burdened by a trial and additional charges

regardless of whether the plea is withdrawn.

(5) Close assistance of counsel was available to the defendant

throughout the plea negotiations and reaching the

agreement, but Counsel could not control the decision of


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the Government to renege on fundamental promises that

induced the agreement

(6) the plea cannot be considered knowing and voluntary if the

primary promise not to seek forfeiture, as evidenced in the

PSR, will not be abided by the Public Integrity Unit who

replaced the local federal prosecutor who was removed

from the case for unethical conduct; and

(7) withdrawal would not waste judicial resources because the

Fazzio trial and the additional charges against Mr. Titus are

going forward regardless of the withdrawal of his plea.

This motion is brought before sentencing, and Titus’s plea, plea agreement, and

waiver of indictment were conditioned on representations made by the Government that

were not in the plea agreement (but reflected and corroborated in the PSR) and which the

Government has failed to honor. Accordingly, the plea, plea agreement, and waiver of

indictment were involuntary. Thus, the Court must permit Titus to withdraw his plea,

plea agreement, and waiver of indictment.

IV. Prayer

Defendant moves to withdraw his plea, plea agreement, and waiver of indictment

as to Count One of the information.



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Respectfully submitted, ARDOINLAW, PLLC 700 Louisiana, Suite 3950 Houston, Texas 77002 Phone: (713) 574-8900 Fax: (713) 574-1404 /s/ James Ardoin________ JAMES ARDOIN State Bar No. 24045420 /s/ Paul Villalobos____ PAUL VILLALOBOS 265 Canal Street, Suite 2360 New Orleans, Louisiana 70130 Phone: (504) 593-0007 Fax: (504) 593-0001 Attorneys for Defendant MARK J. TITUS


United States Department of Justice

Criminal Division

Washington, DC 20530-0001

August 9, 2012

Via E-mail and Federal Express

Mr. James M. Ardoin, IIIArdoin Law, PLLC700 Louisiana, Suite 3950Houston, TX 77002

Re: Mark J. Titus

Dear Mr. Ardoin:

This letter confirms that the United States views your client, Mark J. Titus, as being inbreach of his plea agreement, memorialized in a letter dated June 20, 2011, and filed with theCourt at docket number 30 in case number 2:11-cr-159-ILRL. Specifically, Mr. Titus’agreement “is predicated upon the fact that the defendant agrees to submit to interviewswhenever and wherever requested by law enforcement authorities. The defendant understandshe must be completely truthful.” Dkt. No. 30 at 3. The agreement goes on to declare that “[t]hedefendant understands if he is not truthful, this agreement will be null and void . . . .” Id. Theagreement further requires Mr. Titus to “fully cooperate in providing any and all financialinformation and documentation,” and “to voluntarily execute a complete and thorough FinancialStatement, Form OBD-500.” Id.

Mr. Titus has refused to complete a Financial Statement, Form OBD-500, concealedfinancial information and documentation in a clear attempt to shield assets from forfeiture, notbeen fully forthcoming during meetings with the Government, refused to submit to additionalinterviews, and, the United States has recently discovered, continued to engage in numerouscriminal acts after entering his guilty plea. Specifically, while on supervised release Mr. Titushas structured transactions to evade reporting requirements, illegally concealed assets, andcontinued to engage in a bribery and kickback scheme. Based upon Mr. Titus’ repeated breachof the agreement, the United States is no longer bound by its terms. In short, Mr. Titus canexpect to be indicted for the full scope of his criminal activity.

Mr. Titus’ breach of his agreement with the United States, however, does not impact theviability of his guilty plea entered on October 26, 2011. Dkt. No. 28. Any contrary positionwould be inconsistent with the terms of the agreement and have the perverse effect of permittinga defendant to escape the consequences of a guilty plea merely by breaching the terms of his pleaagreement and engaging in additional criminal acts.


After Mr. Titus entered his guilty plea, the Court issued an order setting conditions ofrelease. The very first condition says the following: “The defendant must not violate anyfederal, state or local law while on release.” Dkt. No. 9 at 1. As noted above, Mr. Titus hasrepeatedly violated that condition. Mr. Titus’ sentencing is currently scheduled for October 3,2012. Dkt. No. 47. The Government will oppose any motion to continue that sentencing, and isfiling today a motion requesting a hearing to show cause why Mr. Titus should not have his bondrevoked for violating the terms of his supervised release.

Please do not hesitate to contact me if you have any questions.

Sincerely,

JACK SMITH ChiefPublic Integrity Section

By: /s/Peter Koski

Peter KoskiDeputy ChiefBrian LichterTrial AttorneyPublic Integrity Section1400 New York Ave. NWWashington, DC 20005(202) 514-1412

Gregory M. KennedyAssistant United States AttorneyUnited States Attorney’s OfficeEastern District of Louisiana

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ORDER

The Court having considered Defendant Mark Titus’ Motion to Withdraw Plea of

Guilty, Plea Agreement and Waiver of Indictment, along with the arguments of counsel,

is of the opinion that the motion should be GRANTED.

SIGNED on this the _____ day of _____________________, 2012.

_____________________________ HON. IVAN L.R. LEMELLE U.S. DISTRICT JUDGE




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NOTICE OF HEARING

Please take notice that Defendant Mark Titus’ Motion to Withdraw Plea of Guilty,

Plea Agreement, and Waiver of Indictment will be heard by United States Judge Ivan

L.R. Lemelle on Wednesday, October 3, 2012 at 2:00pm at United States District Court,

500 Poydras St., Room C552, New Orleans, LA 70130.


Respectfully submitted, ARDOINLAW, PLLC 700 Louisiana, Suite 3950 Houston, Texas 77002 Phone: (713) 574-8900 Fax: (713) 574-1404 /s/ James Ardoin______ JAMES ARDOIN State Bar No. 24045420 /s/ Paul Villalobos____ PAUL VILLALOBOS 265 Canal Street, Suite 2360 New Orleans, Louisiana 70130 Phone: (504) 593-0007 Fax: (504) 593-0001 Attorneys for Defendant MARK J. TITUS


CERTIFICATE OF SERVICE

I hereby certify that September 11, 2012 that the foregoing document was filed via the CM/ECF system which notified all parties of the filing. /s/ James Ardoin________ JAMES ARDOIN


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