IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-31083

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

MARK J. TITUS,

Defendant - Appellant

Appeals from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:11-CR-159-1

Before JOLLY, JONES, and BARKSDALE, Circuit Judges.

PER CURIAM:*

The facts underlying the primary issue in this appeal are a bit confusing. 

The determining issue is whether the Government unilaterally withdrew from

a plea agreement with Titus. Titus entered a guilty plea under the plea

agreement, and the plea agreement stated that the Government would not bring

further charges. After the Government withdrew from the plea agreement,

charging Titus with having breached it, Titus moved to withdraw his plea of

guilty. The district court denied his motion. Titus appeals the denial of his

United States Court of Appeals

Fifth Circuit

F I L E D

November 13, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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motion, the district court’s holding that his plea was voluntary, and his

restitution order. We affirm.

I.

The defendant and appellant, Mark Titus, was the Chief Operating Officer

of construction contractor Garner Services, Ltd. (“Garner Services”), which he

owned with his partners Ed Garner and QCI Marine Offshore LLC. Titus

proved to be an untrustworthy partner. He and his brother-in-law, Dominic

Fazzio, created a series of fictitious invoices from supposed sub-contractors for

work that was never performed, for which Garner Services paid approximately

$925,000. These payments went to companies Fazzio controlled, which then

passed payments to a company that Titus controlled.

The scheme was discovered and a criminal information, plea agreement,

and guilty plea followed. The criminal information charged Titus with one count

of conspiracy to commit mail fraud.1 Titus agreed to plead guilty and waive his

right to indictment in exchange for the Government’s foregoing additional

charges against him relating to the Garner Services scheme. Under the

agreement, Titus committed to: (1) execute a form used to identify assets for

forfeiture purposes; (2) forfeit any proceeds from the Garner Services fraud; (3)

submit to law enforcement interviews “whenever and wherever requested;” and

(4) be “completely truthful.” The agreement contained a “merger clause” stating

that “statements set forth above represent defendant’s entire agreement with

the Government; there are not any other agreements, letters, or notations that

will affect this agreement.”

According to Titus’s version of the events, sometime before Titus’s plea

agreement was signed, TimWilson, a private investigator whom Titus had hired,

spoke with two of the Assistant United States Attorneys (“AUSAs”) for the

1 Conspiracy to commit mail fraud violated 18 U.S.C. §§371, 1341.

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Eastern District of Louisiana on Titus’s behalf. Wilson stated that the AUSAs

promised not to execute on the forfeiture provision of the plea agreement. The

story of the secret deal is contested. The two AUSAs deny having made such a

promise.

Titus then pleaded guilty. In a Rule 11 colloquy, District Judge Ivan

Lemelle asked Titus if anyone had promised him anything outside the written

plea agreement. Titus replied no.2Judge Lemelle then accepted the plea as

knowing and voluntary. Sentencing was postponed pending further

investigation.

Several months later, and after beginning to initiate forfeiture

proceedings, the Government informed Titus through a letter that he was in

serious breach of his plea agreement. Titus was alleged to have engaged in

several transactions to shield assets from forfeiture, including having his wife

sell his mother-in-law real property worth $144,000 for $10. The Government

also alleged that he had continued to engage in the bribery and kickback

scheme.3 Because of this alleged breach, the Government stated itself not bound

by the plea agreement and informed Titus that he would be indicted for

additional charges.

On September 11, 2012, almost a year after pleading guilty, Titus moved

to withdraw his guilty plea, his plea agreement, and his waiver of indictment. 

On October 10, the district court denied Titus's motion and sentenced him to 60

months in prison, three years of supervised release, a $100,000 fine, and

$925,320 restitution to Garner Services.

2

Judge Lemelle: “Did anyone promise you anything other than a written plea

agreement with the government to plead guilty?” Titus: “No, sir.”

3 The Government alleged that Titus had also: (1) refused to execute a form used to

identify assets for forfeiture purposes; (2) concealed financial information to block forfeiture

of certain assets; (3) not been fully forthcoming in meetings with the Government; and (4)

refused to submit to additional interviews.

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The day after Titus’s sentencing, the Government indicted Titus on

additional charges in United States v. Fazzio, No. 2:11-CR-157-HGB-ALC-2 (E.D.

La. June 24, 2011), a case before District Judge Helen Berrigan. This

indictment also charged Fazzio. Titus filed a motion to dismiss the indictment,

arguing that filing additional charges violated theGovernment’s plea agreement. 

Judge Berrigan denied the motion, stating that Titus “breach[ed] the plea

agreement in multiple ways.” Later, three weeks before trial was set to begin,

the United States withdrew the case before Judge Berrigan. It is our

understanding that no further charges were brought against Titus.

Titus now appeals Judge Lemelle’s denial of his motion to withdraw his

guilty plea, plea agreement, and waiver of indictment. He also appeals the

restitution amount he is charged to repay. If Titus’s guilty plea is upheld, all

other issues, except the amount of restitution, become moot.

II.

This court reviews the denial of a defendant’s motion to withdraw a guilty

plea for abuse of discretion. United States v. London, 568 F.3d 553, 562 (5th Cir.

2009). It reviews the district court’s factual findings for clear error. United

States v. Oliver, 630 F.3d 397, 405 (5th Cir. 2011).

Titus first contends that the secret deal he struck with the AUSAs not to

bring forfeiture proceedings against him induced him to plead guilty. Therefore,

because the Government disavowed that deal, his guilty plea was not voluntary. 

It is, of course, basic that a valid plea of guilty must be knowing and voluntary. 

Brady v. United States, 397 U.S. 742, 748 (1970). Restated, “[a] plea of guilty

entered by one fully aware of the direct consequences . . . must stand unless

induced by [among other things] misrepresentation (including unfulfilled or

unfulfillable promises) . . . .” Id. at 755 (internal quotation marks and citation

omitted). When a guilty plea is entered because of an agreement with a

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prosecutor, breach of that prosecutor's promise “taints the voluntariness of [the]

guilty plea.” Montoya v. Johnson, 226 F.3d 399, 405 (5th Cir. 2000) (internal

quotation marks and citation omitted).

The district court concluded that the plea was “very expressed, very

knowing, [and] very voluntary.” It did not err in so holding. Neither did it err

in determining that Titus’s secret plea deal was likely fictitious. In direct

opposition to this later story of an anti-forfeiture deal, Titus told Judge Lemelle

when pleading guilty that no one had promised him anything outside the written

plea agreement. Cf. United States v. Lampazianie, 251 F.3d 519, 524 (5th Cir.

2001) (“[s]olemn declarations in open court carry a strong presumption of verity”)

(alteration in original).

Titus next charges the Government with anticipatory breach of the plea

agreement by later informing him that it would indict him on additional charges,

contrary to the agreement.4 Because plea agreements are interpreted in

accordance with contract law, Hentz v. Hargett, 71 F.3d 1169, 1173 (5th Cir.

1996), the question here is whether the Government or Titus was the breaching

party. The Government argues Titus breached the agreement by, among other

things, concealing assets in contravention of the plea agreement. Its letter that

it would further indict him was a response to this alleged breach by Titus. The

district court agreed with the Government and upheld the plea agreement.

We review the district court’s holding on breach de novo and review its fact

findings under the clearly erroneous standard. United States v. Davis, 393 F.3d

540, 546 (5th Cir. 2004).

4 Titus also alleges that the Government breached by moving to revoke Titus’s bond.

The Government informed Titus that it planned to revoke his bond in the letter informing

Titus that he would soon be indicted. Titus treats the motion to revoke bond and the notice

of indictment on additional charges as a single issue. We do so as well. We see no reason how

our analysis would differ if we treated the two separately.

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The Government cannot unilaterally declare that a defendant has

breached a plea agreement and thus relieve itself from its obligations under the

bargain. Instead, the Government must: (1) prove to the court by a

preponderance of evidence that the defendant has materially breached the

agreement or (2) “[i]f the pleadings show no factual dispute . . . the court may

determine breach as a matter of law.” United States v. Castaneda, 162 F.3d 832,

836 (5th Cir. 1998). Although we had declined to say “when, during the progress

of a criminal investigation, a judicial determination of breach is required to

comport with due process,” id. at 836 n.25, we later held that the Government

must prove material breach “prior to prosecuting the defendant.” United States

v. Cantu, 185 F.3d 298, 302 (5th Cir. 1999). Rooted in due process concerns, the

rationale for requiring proof of material breach is to provide the defendant with

the opportunity to debate the issue in court. See United States v. Miller, 406

F.3d 323, 334-35 (5th Cir. 2005).

Before Titus’s prosecution began in the case before Judge Berrigan, the

Government twice proved that Titus materially had breached the plea

agreement. The first occasion was before Judge Lemelle in this case now on

appeal. At Titus’s October 10, 2012, hearing on his motion to withdraw his

guilty plea, which was also his sentencing hearing, Judge Lemelle stated:

It’s apparent here that there were from what I gather in this

present record at least, I’ve yet to see any new evidence to the

contrary other than the affidavits from the Defendant and Mr.

Wilson that I didn’t find credible, evidence that the Defendant tried

to conceal his assets. I think that’s obvious from this particular

record . . . .

At the same hearing, Judge Lemelle also fined Titus $100,000, stating “it’s

also a finding of the Court that based upon the asset information that I have

received in connection with these proceedings that [sic] a fine would also be

appropriate.” The asset information Judge Lemelle referenced included an

affidavit from an FBI agent describing sales of two properties by Titus’s wife to

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her mother for nominal sums. Also included were two contracts for the sale of

these properties to Titus’s mother-in-law. As Judge Lemelle later stated in his

final order of forfeiture, both properties were subject to forfeiture.

The second judge to find Titus had breached the plea agreement was

Judge Berrigan. After Titus was indicted on additional charges, he moved to

dismiss the indictment before Judge Berrigan. Judge Berrigan denied the

motion, stating that Titus “breach[ed] the plea agreement in multiple ways.” 

The purpose of requiring proof of material breach was also satisfied here. 

The Government had sent Titus a letter on April 9, 2012, informing him that he

would be indicted on additional charges, and that it considered him in breach of

the plea agreement because he had shielded assets from forfeiture. Titus had

adequate time to “debate this issue to the court” between his receipt of this

letter, and his October 10, 2012, sentencing hearing or his October 11

indictment. Miller, 406 F.3d at 334-35. Titus’s case is nothing like the

Government’s unilateral determination of breach in Castaneda, where the

Government informed the defendant he was in breach and indicted him the next

day. Id. at 836.

In Castaneda and Cantu, where, in each, there was a possibility that the

defendant was not afforded an appropriate hearing on a breach of the plea

agreement in district court, we, as an appellate court, supplied a hearing and

determined whether a material breach had occurred. See Castaneda, 162 F.3d

at 837-839; Cantu, 185 F.3d at 302-03. Thus, even if we were to assume that

Titus did not receive an adequate hearing in the district court, we may

determine independently that the Government has proved by a preponderance

of evidence that a material breach occurred, given that the defendant has had

ample opportunity to present and argue his case for a government breach in the

briefing and argument before us. As in Davis, the breach was material because

the defendant’s failure to perform was not innocent and because “[t]he

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government did not receive the honest, truthful disclosure of information that

it had bargained for” in the plea agreement. 393 F.3d at 547. Titus contravened

one of the purposes of the plea agreement, asset forfeiture, by concealing assets

from the Government. Cf. id.(defendant materially breached by “contraven[ing]

the purpose of the plea agreement”). Titus thus deprived the Government of the

benefit of the bargain, solid evidence of a material breach. Castaneda, 162 F.3d

at 837.

III.

Finally, Titus challenges Judge Lemelle’s restitution order. “The legality

of a restitution order is reviewed de novo, and if the sentence is permitted by

law, the [amount of the] award is reviewed for abuse of discretion.” United

States v. Ingles, 445 F.3d 830, 838-39 (5th Cir. 2006).

The Mandatory Victim Restitution Act requires that federal courts order

restitution to victims of offenses against property under Title 18, including

fraud. See 18 U.S.C. § 3663A(c)(1)(A)(ii). Restitution is the full amount of loss

that the victim suffers, and no more. United States v. Beydoun, 469 F.3d 102,

107 (5th Cir. 2006). The Government must prove restitution by a preponderance

of evidence. United States v. Reese, 998 F.2d 1275, 1282 (5th Cir. 1993) (citing

18 U.S.C. § 3664(d)).

Titus was ordered to pay Garner Services $925,320, the full amount of

which he had defrauded the company. Titus argues that this amount should be

reduced in proportion to his share of ownership in the company that was

defrauded. This argument, however, ignores that he was ordered to restore

funds to the company itself – not its shareholders. Furthermore, Titus’s

argument asks the court to assume that the money he restores to Garner will

flow proportionally to the company’s owners, when in fact the company may

choose to allocate the restitution amount differently.

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Titus also argues that the restitution amount should be reduced by the

value of the “property” he returned. Under 18 U.S.C. §3663A(b)(1)(B)(ii), the

sum the defendant must pay in restitution is reduced by the value “of any part

of the property that is returned.” We understand Titus to argue that the value

of his labor to Garner Services after his fraud constitutes “property that is

returned.” Ed Garner,Titus’s partner at Garner Services, submitted an affidavit

that the value of Titus’s labor since his fraud exceeded the loss that the fraud

had caused. Titus cites no authority, however, that continuing labor after the

malfeasance constitutes “property that is returned.” And his reading of

“property” as encompassing labor goes against the plain meaning of “property.” 

In any event, we reject his contention.

IV.

For the reasons above, the district court’s denial of Titus’s motion to

withdraw his guilty plea, his plea agreement, and his waiver of the indictment,

as well as the denial of modification of the restitution award, and accordingly,

the judgment, are in all respects

AFFIRMED.

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