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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA VS. MARK J. TITUS
* * *
CRIMINAL NO. 11-159 SECTION: “B” (1)
* * *
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.
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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
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
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA VS. MARK J. TITUS
* * *
CRIMINAL NO. 11-159 SECTION: “B” (1)
* * *
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
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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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6
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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7
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
Case 2:11-cr-00159-ILRL-SS Document 58-1 Filed 09/11/12 Page 11 of 13
12
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.
DATED: September 11, 2012.
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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
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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.
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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
2
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA VS. MARK J. TITUS
* * *
CRIMINAL NO. 11-159 SECTION: “B” (1)
* * *
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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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA VS. MARK J. TITUS
* * *
CRIMINAL NO. 11-159 SECTION: “B” (1)
* * *
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.
DATED: September 11, 2012.
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
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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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