### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 t he primary issue in this appeal a re a bit confusing. The determining issue is whether the Government unilaterally withdrew from

a p l ea agreement w ith Titus. Titus entered a guilty plea under t h e plea agreement, and the plea agreement stated that the Government would not bring further charges. Af

t er the Government withdrew from the plea agreement, charging Titus with having breached it, Titus moved to w ithdraw his plea of guilty. The distri c t c o urt denied his motion. Titus appeals the denial of his U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Nov em ber 13, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-31083 Document: 00512440400 Page: 1 Date Filed: 11/13/2013No. 12-31083

m o tion, the district court’s holding that h is plea was v oluntary, a n d h i s restitution order. We affirm. I. The defendant a n d a p p e llant, Mark Titus, was the Chief Operating Officer of construction contractor Garner Services, Ltd. (“Ga r n e r Services”), which he

o w n e d w ith his partners Ed Garner and QCI Marine Offshore LLC. Ti t u s proved to be an untrustwor t h y p artner. He and h is brother-in-law, Dominic Fazzio, created a series of fictitious invoices from supposed sub-contractors for work that was never p erformed, for which G arner Services paid approximately $925,000. These payments went to companies Fazzio cont r o l led, 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 c riminal information charged T itus with one count of conspiracy to commit mail fraud. 1 Titus agreed t o plead guilty and waive his

r i gh t t o indictment in exchange for the G o vernment’s foregoing additional charges a g a i n s t him relating to the Garner Services scheme. Under the agreement, Tit u s committed to: (1) e xecute a form used to identify a ssets for forfeiture p urposes; (2) forfeit any proceeds from t he G arner S ervices fraud; (3) submit to law e n forcement 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 t o Titus’s v ersion of t he events, sometime before Titus’s plea agreement was signed, T i m Wil s o n , a p riv at e investigator whom T itus had hired, spoke with t w o o f t he Assistant United States Attorneys (“AUSAs”) for the

1 Cons p iracy to com m it m ail f raud violated 18 U

. S. C. §§371, 1341. 2 Case: 12-31083 Document: 00512440400 Page: 2 Date Filed: 11/13/2013No. 12-31083

Eastern District of L ouisiana on Titus’s behalf. Wilson stated that the AUSAs promised not to execute on t he forfeiture provision of the plea agreement. The story of the secret deal is contested. The two AUSAs deny having made such a promise. Titus t hen pleaded guilty. In a R ule 1 1 colloquy, District Judge Ivan Lemelle asked Titus if anyone had promised him anything outside the written plea agreement. Titus r eplied no. 2 J u d g e L e m elle then accepted the plea as knowing and v oluntary. Sentencing was postponed pending further investigation. Several months l ater, and after beginning to i nitiate for f e i ture proceedings, the Government informed Titus through a letter t h a t he was in serious breach of his plea agreement. Titus was alleged to h a ve engaged in several transactions to shiel d a s s ets from f orfeiture, including h aving his wife sell his mother-in-law real property worth $144,000 for $10. The G overnment also a lleged that he had continued to e ngage in the bribery a nd kickback scheme. 3 Because of this alleged breach, the Government stated itself not bound b y t he p lea agreement and informed T itus that he would be indic t e d f o r additional charges. On September 11, 2012, almost a year after pleading guilty, Titus moved to withdraw his gu ilty plea, his plea agreement, and his w aiver of in d i c t m e n t. On October 10, the district c ourt denied Titus's motion and s entenced h im to 60 months in prison, three years of supervis e d release, a $ 100,000 fine, and $925,320 restitution to Garner Services.

2 Jud ge Lem elle: “D id anyone p rom is e you anything other than a w ritten p lea agreem ent w ith the governm ent to p lead guilty?” Titus : “N o, s ir. ”

3 The Governm ent alleged that Titus had als o: ( 1) ref us ed to exe c u t e a f

orm us ed to id entif y as s ets f

or f orf eiture p urp os es ; ( 2) concealed f inancial inf

orm ation to block f

orf eiture of certain as s ets ; (3) n o t b e e n f u lly f orthcom ing in m eetings w ith the G overnm ent; and ( 4) ref us ed to s ubm it to ad d itional interview s . 3 Case: 12-31083 Document: 00512440400 Page: 3 Date Filed: 11/13/2013No. 12-31083

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

a d diti o n al c h ar ge s i n United States v. F azzio , No. 2 :11-C R

- 1 5 7

- H G B

- AL C

- 2 ( E

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. La. June 24, 2 011), a case before District Judge Helen Berrigan. This indictment also charged Fazzio. Titus filed a m otion to dismiss t h e indictment,

ar guing that filing additional charg e s vi o l at e d th e G o v e r n m e nt ’ s p l e a a gr e e m e nt

. Judge Berrigan denied the motion, stating t hat T itus “breach[ed] the plea agreement in m ultiple ways.” Later, three weeks before trial was set to begin, the U nited States withdrew t h e case b efore Judge B errigan. I t is our understanding that no further charges were brought against Titus. Titus now appeals Judge L e m e lle’s denial of his motion to withdraw his guilty plea, plea agreement, and waiver o f indictment. He als o a ppeals the restitution a mount he is c harged t o repay. If Titus’s guil t y p l e a i s upheld, all other issues, except the amount of restitution, become moot. I I. This court reviews the denial of a defendant’s motion to withdraw a guilty plea for abuse of discretion. United S tates v. London , 568 F.3d 5 53, 562 (5th Cir. 2009). It r eviews the district court’s factual findings f or cle a r e r r o r . 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 t he Government disavowed that deal, his guilty plea was not voluntary. It i s , of course, basic that a valid plea of guilty must be k n owing and voluntary. Brady v. United States , 397 U.S. 742, 748 (1970). Restated, “[a] plea of guilty entered by one fully aware of t h e d i rect consequences . . . must stand unless in d uced by [among other things] misrepresentation (including u nfulfilled or unfulfillable promises) . .

. .” Id

. at 755 (internal quotation marks and citation omitted)

. When a guilty plea is entered b ecause of an agreement with a

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prosecutor, b reach of that p rosecutor's promise “taints the v oluntariness of [the] guilty plea.” Mont o

ya v. Johnson , 226 F .3d 399, 405 (5th Cir. 2000) (internal quotation marks and citation omitted). The district court conclud e d that the plea w as “very expressed, very knowing, [and] very voluntary.” It did not err in so holding. Neither did it err in d etermining t h a t T itus’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 t hat no one h ad promised him anything outside the written plea agreement. Cf. U nited States v. Lampazianie , 251 F.3d 5 19, 5 24 (5th Cir. 2001) (“[s]olemn d e c l ar ati o n s i n o p e n c o urt carry a strong presumption of verity”) (alteration in original). Titus ne x t c h arges 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 a greements a re interpreted in accordance w ith c o n tract law, Hentz v. Hargett , 71 F.3d 1169, 1173 (5th Cir. 1996), the question h ere is whether t he G overnment or Titus w as the breaching party. The Government argues Titus breached t he a greement by, among other things, concealing assets in contravention o f the p lea agreement. Its letter that it would further indict him w as a response to this alleged b reach by Titus. The district court agreed with the Government and upheld the plea agreement. We review the district c ourt’s holding on breach de novo and review its fact findings under t he clearly erroneous s tandard. United States v. Davis , 393 F.3d 540, 546 (5th Cir. 2004).

4 Titus als o alleges that th e G overnm ent breached by m oving to revok e Titus ’s bond

. The G overnm ent inf

orm ed Titus tha t it p lanned to revok e his bond in the letter inf orm ing Titus that he w ould s oon be ind icted

. Titus treats the m otion to revok e bond andthe notice of ind ictm ent on ad ditional charges as a s ingle is s ue. We d o s o as well. We s ee no reas on how our analys is w ouldd if f er if w e treated the tw o s ep arately.

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The Government c annot unilaterally declare that a defendant has breached a plea agreement and thus relieve i tself from its obligations under the bargain. Instead, t h e G overnment m ust: (1) p r ove to t he court by a preponderance o f e v i d e nce that the defendant has materially breached the

a g r e e m e n t o r ( 2) “[i]f the pleadings show no factual dispute

. . . the court m ay 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 crimin al investigation, a judicial determination of breach is required to comport with due process,” id. at 836 n.25, we later held that the G overnment must prove m aterial breach “prior to prosecuting the defendant.” United States

v. Cantu , 185 F .3d 298, 302 (5th Cir. 1999). Rooted in d u e process concerns, the rationale for requiring proof of material breach is to p rovide the defendant with th e o p p o r t u nity 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 t he case be f o r e Judge Berrigan, the G o vernment twice p roved that T i tus m aterially had breached the p l e a agreement. The first occasion w as before Judge Lemelle in t h i s c ase now on appeal. At Titus’s October 1 0 , 2 0 1 2 , h earing on h i s m otion to withdraw his guilty plea, which was also his sentencing hearing, Judge Lemelle stated: It’s apparent here that there were from what I gat h e r i n this present record at least, I’ve yet to see any new evidence to t h e c o n t rary other than the affidavits from the Defendant a nd M r . Wilson that I didn’t find credible, evidence that t he D efendant tried to conceal his assets. I think that’s obviou s from this particular record . . . . At the same hearing, J udge Lemelle also fined Titus $100,000, s tating “it’s also a finding of t h e C o u r t that based u pon the asset information that I have received in connection with these proceedings that [sic] a f i n e would also be appropriate.” The asset information Judge Lemelle reference d i n c l uded 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 t o Titus’s mother-in-law. As Judge L emelle later stated in his final order of forfeiture, both properties were subject to forfeiture. The second judge to find Titus had breached t h e plea a greement was Judge Berrigan. After Titus w a s indicted o n additional charges, he moved to dismiss the indictment before Judge Berrig a n . Judge Berrigan denied the moti o n , s t a ting that Titus “breach[ed] the plea agreement in multiple ways.” The purpose of r equiring proof of m aterial breach was a lso satisfied here. The G overnment had sent Titus a letter o n April 9, 2 012, informing him that he would be indicted on additional charges, and that it considered him in breach of the plea agreement because h e had shielded assets from forfeiture. Titus had adequate time to “debate this issue to the cour t” b e t w een his receipt of this letter, a nd his October 10, 2012, sentencing hearing or his O c tober 11 indictment. Miller , 406 F.3d at 334-35. T itus’s c a s e i s n o thing like the Government’s unilateral determination of b r each in Castaneda , w here the Government informed the defendant h e w as in breach and indicted him the next day. I d. at 836. In Castaneda and Cantu , w here, in each, there was a possibility that the defendant was not afforded an appropriate hearing o n a b reach of the plea agreement in district court, we, a s an appellate court, supplied a h earing and determined w hether a material breach h ad occurred. See Castaneda, 162 F.3d at 837-839; Cantu , 185 F .3d at 302-03. Thus, even if we w e re t o a ssume that Titus did not receive an a dequate h e aring in the district c ourt, we m ay determine independently that the Government has proved by a preponderance of evidence that a material bre a c h o c c urred, given t h at the defendant has had ample opportunity to present and argue his case for a government b reach in the briefing and argument before us. As in Davis , the breach was material because the defendant’s failure to p erfo r m w a s 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 p lea agreement. 3 93 F.3d at 547. Titus c ontravened

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 o f the plea a greement”). Titus thus deprived the Government of the benefit of the b argain, solid evidence of a material breach. Castaneda , 162 F.3d at 837. III. Finally, Titus challenges Judge Lemelle’s r e stitution order. “The legality of a restitution order is reviewed de novo, and i f the sentence is permitted by law, the [amount of the] award is reviewed for abuse o f d i s cretion.” 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 und e r Title 18, including fraud. See 18 U.S.C. § 3 663A(c)(1)(A)(ii). Restitution is the full a mount of loss that t h e v i c t i m s uffers, and n o more. U nited 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 G a r n e r Services $925,320, the f ull amount of which he had defrauded t he company. Titus argues that t his amount should be reduced in proportion t o his share of o wnership in the c o m p any that was defrauded. This argumen t , h o w e v er, i gnores that he was ordered to restore f u n ds to the company itself – not its shareholders. Furthermore, Titus’s argument asks the court to assume th a t the money he restores to Garner will flow proportionally to t h e c o mpany’s owners, when in fact the company m ay choose to allocate the restitution amount differently.

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Titus also argues t hat the restitution amount s h o u l d b e r educed by the value of the “prop e r t y” h e returned. U nder 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 r eturned.” We understand Titus to a rgue that the value of h i s l abor to Garner Services after his fraud constitutes “property that is return e d

. ” E d G ar n e r , T itus’s partner at Garner Services, submitted an affidavit that the value of Titus’s labor since h is fraud exceeded the loss t h a t t h e f r a u d had caused. Titus cites no authority, however, that c o n t i n u i ng l abor after the malfeasance constitutes “property that is returned.” And h is reading of “property” as encompassing labor goes against the plain meaning of “property.” In any event, we reject his contention. IV. For the r e a s o n s above, the district court’s denial of Titus’s motion to withdraw his guilty plea, his plea agreement, and his waiver of t h e indictment,

as w ell as the d e n i al of modification o f the r e stitution a ward, a nd accordingly, the judgment, are in all respects AFFIRMED.

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