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United States v. Tutis

United States District Court, D. New Jersey

November 13, 2018

TOYE TUTIS, Defendant.

          CRAIG CARPENITO United States Attorney By: DIANA VONDRA CARRIG, Assistant United States Attorney UNITED STATES ATTORNEY'S OFFICE, STANLEY O. KING, ESQ. KING & KING, LLC Attorney for Defendant




         On November 1, 2016, after the jury had been selected and as the trial was about to begin, following extensive plea negotiations between counsel over a period of one week, Defendant Toye Tutis entered a plea of guilty to Count 1 (drug-trafficking conspiracy) and Count 13 (money laundering conspiracy) of the Second Superseding Indictment. The only co- defendant then remaining was his wife, Jazmin Vega, who also entered her plea of guilty to Count 13 of the Second Superseding Indictment (money laundering conspiracy).

         Thereafter, Defendant Tutis, through new counsel, [1] filed the present motion to withdraw his plea of guilty pursuant to Rule 11(d)(1)(B), Fed. R. Crim. P. [Docket Item 443]. Co-defendant Jazmin Vega does not seek to withdraw her guilty plea. Defendant Tutis moves to withdraw his plea of guilty on the ground that “Mr. Tutis' Guilty Plea was not voluntary and the Court was not advised that the plea was part of a ‘Package Deal'” requiring Tutis to plead guilty or Vega would not be permitted to plead guilty. [Docket Item 443-1 at 4.] Tutis alleges that, because Tutis' and Vega's pleas were allegedly a “package deal, ” the Rule 11 hearing violated the rule of United States v. Hodge, 412 F.3d 479, 450 (3d Cir. 2005), requiring “full disclosure to the district court of the material terms of the plea agreements” so that the court can conduct a “colloquy [that] is thorough and searching as to the defendant's knowing, intelligent, and voluntary waiver of the right, among others, to a jury trial.” Id. Tutis argues that the court failed to ask him the special questions related to his decision to accept the alleged package deal, as required by Hodge, 412 F.3d at 491-92. The defense brief asserts that Tutis was “advised by attorney [Farrell] that he should accept the plea and appeal this acceptance post sentencing, ” and he now alleges he “did not understand the heightened standard of withdrawing a guilty plea post sentencing.” [Def. Br., Docket Item 443-1 at 5.]

         Contrary to Tutis' assertions, the Government has argued that the Tutis and Vega pleas were not a “package deal” by the time the plea agreements were executed and the Rule 11 hearings for both defendants were held on November 1, 2016. The Government acknowledged that previous written versions of the Tutis and Vega agreements in late October had contained such language packaging the agreements, conditioning entry of one upon entry of the other. The actual written plea agreements, signed by Tutis and Vega and entered at the hearing on November 1, 2016, had no such coupling language, and were in fact not coupled or “packaged.”

         As explained in more detail below, during plea negotiations, Tutis had at least twice rejected proposed packaged agreements. The prosecutors then proposed uncoupled agreements in late October 2016, whereby Vega could plead guilty independent of her husband's decision, and the final plea agreements were not a “package deal” and the coupling language was removed from both defendants' proposed agreements. After Tutis won major concessions in the final plea agreement such as preserving his right to appeal certain pretrial suppression motion rulings and diminishing the amount of his assets subject to forfeiture, he accepted the plea agreement. Tutis' plea agreement, preserving his right to contest certain pretrial suppression motion rulings on appeal, was thus entered as a “conditional plea” under Rule 11(a)(2), Fed. R. Crim. P.

         The Tutis and Vega plea agreements, entered independently on November 1, 2016, were indeed uncoupled. Because the defendants were husband and wife, there was overlapping language only as to the interests each defendant was forfeiting in the properties that were jointly owned, or at least as to which a spouse might otherwise claim an interest even if not titled in both names. Accordingly, neither the prosecutors nor the defense attorneys suggested to the Court that a special Hodge colloquy was needed, nor did the court regard them as a package deal, as will be discussed below.

         This motion also requires that the defendant's somewhat revised position be addressed -- namely, that Tutis nonetheless thought that the pleas remained coupled, and that he still felt pressured to enter an involuntary plea in order to set up an issue for appeal, namely, the alleged denial of a Hodge colloquy at the Rule 11 hearing. Although Tutis elected not to testify at the evidentiary hearing on this motion, this alternative hypothesis was advanced by former attorney Farrell, who did testify. As explored further, the defense has failed to demonstrate that any Hodge colloquy was required or that if such a colloquy had been undertaken, Tutis would have decided to go to trial or his attempt to plead guilty would have been seen as involuntary. Indeed, Tutis faced multiple counts that pegged him as the leader of a major conspiracy to distribute very large quantities of cocaine, heroin, and crack cocaine in the Atlantic City area over a period of years, together with the prospect of an enhanced sentencing information under 21 U.S.C. § 851 that the Government had delayed filing as plea negotiations continued which, in the event of conviction, would have doubled the mandatory minimum sentences upon the drug distribution charges he faced. See 21 U.S.C. § 841(b)(1)(A). Moreover, Tutis affirmed, in his signed plea agreement, his Application for Permission to Enter Plea of Guilty, and in his Rule 11 colloquy with the Court, that his decision to accept the Government's plea bargain was voluntary, entered of his own free will, and not coerced.

         Moreover, as discussed in Parts II.G and III below, the record in general, and this motion in particular, is bereft of any doubt of Tutis' guilt of the crimes to which he has pled guilty. Other than conclusory statements such as that he “continues to maintain his innocence as to the charges brought against him” [Docket Item 443-1 at 2], he has not buttressed this assertion by facts in the record supporting a defense; indeed, no defense to guilt has been proffered, which, as explained below, also weighs against the relief he seeks.

         For the reasons found herein, the motion will be denied.


         A. The Hearing on this Motion

         The facts pertaining to this motion are derived from the docket of this case and from the evidentiary hearing on the motion conducted June 21, 23, and 26, 2017, including exhibits received into the record from the Government and from Defendant Tutis.[2] The hearing witnesses were Jazmin Vega (Tr. 6/21/17 at 13-119); former Tutis attorney J. Michael Farrell (Tr. 6/21/17 at 121-186 and Tr. 6/23/17 at 1-230); and Jazmin Vega's attorney Troy Archie (Tr. 6/26/17 at 4-145). Defendant Tutis waived his right to testify (Tr. 6/26/17 at 148-150), which the Court accepted, (id. at 150:12-14), so Tutis has offered no testimony in support of his motion. No. AUSA or case agent testified.

         B. The Charges in the Second Superseding Indictment

         Defendants Toye Tutis and his wife Jazmin Vega, together with others who entered pleas of guilty on related charges, were charged in a Second Superseding Indictment. [Docket Item 339.][3] Tutis faced the following charges as the alleged leader of major drug distribution and money laundering conspiracies:

Count 1 - drug trafficking conspiracy in Atlantic County, NJ, from February 2010 through December 10, 2014, with Jazmin Vega and others to distribute cocaine (5 kg. or more), and heroin (1 kg. or more), contrary to 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), in violation of 21 U.S.C. § 846;
Counts 7-9 - drug distribution of more than 500 g. cocaine on October 1, November 17, and November 26, 2014, in violation of 21 U.S.C. § 841(b)(1)(B);
Count 13 - money laundering conspiracy in Atlantic County, NJ, from February 2010 through December 10, 2014, with Jazmin Vega with intent to promote carrying on drug distribution activity, to conceal and disguise the nature and source of the proceeds of the unlawful activity, and to avoid the currency transaction reporting requirement set forth in 31 U.S.C. § 5313(a), contrary to 18 U.S.C. §§ 1956(a)(1)(A)(i), 1956(a)(1)(B)(i), and 1956(a)(1)(B)(ii), all in violation of 18 U.S.C. § 1956(h);
Counts 21-25 - use of telephone to further a drug offense on various occasions in 2014, in violation of 21 U.S.C. § 843(b); and
Counts 26-27 - unlawful possession of firearms by a felon, in violation of 18 U.S.C. § 922(g)(1).

         Jazmin Vega was charged in Counts 1, 13, 24, and 25 above.

         In addition, the Second Superseding Indictment contained forfeiture allegations pertaining to the interests, if any, of Tutis and Vega in certain cash and firearms found in Tutis' home in a search warrant, as well as various bank accounts, vehicles, and over 30 pieces of real estate that were alleged to be the proceeds of the charged criminal activity.[4] Further, the Government reserved its right to file an enhanced penalty information pursuant to 21 U.S.C. § 851 in the event no plea agreement was reached. The deadline date for filing the enhanced penalty information was enlarged with Tutis' consent even after jury selection as plea negotiations continued in late October 2016. [Docket Item 391.]

         This Second Superseding Indictment [Docket Item 339], filed in September 2016, a month before the scheduled trial date, was the culmination of several years of investigation including court-authorized electronic interceptions resulting in thousands of intercepted calls and text messages pertaining to drug distribution, money laundering, and other crimes among the alleged co-conspirators. It had taken counsel almost two years to prepare for trial, given the volume of discovery, pretrial motions, substitution of counsel, charges and guilty pleas by other defendants, and the complexity of the case. All co-defendants except Tutis and Vega had entered pleas of guilty prior to trial.

         C. Preparation for Trial and Plea Negotiations - Late October 2016

         Leading up to the trial date of October 18, 2016, all counsel indicated that the case would benefit from having some delay after jury selection and before opening statements to better prepare for trial and attend to recently-filed evidentiary motions. Such a delay would also enable either defendant to attempt to negotiate a satisfactory guilty pleas, if desired, before trial actually commenced. The jury selection process was completed on October 18 and 19, 2016, and the jury was instructed to return on Monday, October 31, 2016 to begin trial. Meanwhile, in addition to the motion practice and hearings on October 19 and 31, 2016, the parties continued plea negotiations among themselves, with Mr. Farrell representing Toye Tutis, Troy Archie, Esq., representing Jazmin Vega, and AUSA's Howard Wiener and Diana Carrig representing the United States.

         In short, the Government offered written plea agreements dated October 27, 2016 to Vega (Ex. D-1) and Tutis (Ex. D-8) which were linked to each other, that is “packaged, ” providing that fully executed copies of plea agreements for both Vega and Tutis had to be received by 9:00 P.M. on October 27, 2016 or both agreements would be null and void. (Id.) The initial coupling of the Tutis and Vega pleas was prominently mentioned in the proposed plea agreements' first paragraph in the same sentence stating the deadline for acceptance, which stated:

This plea agreement supersedes all prior plea offers and is contingent upon the execution of a plea agreement dated October 27, 2016 by co-defendant Toye Tutis [sic: Jazmin Vega], and the entry of her guilty plea pursuant to that agreement.

(Ex. D-8 at p.1.) Similar language appeared prominently in Vega's proposed plea agreement linking it to Tutis'. (Ex. D-1 at p.1.) Vega accepted and signed the October 27th plea agreement on that date (Ex. D-2), but Tutis did not. As a result, Vega's acceptance became a nullity. Tutis told Farrell he did not accept the October 27th plea offer because it did not preserve his right to appeal the suppression rulings and because it did not preserve sufficient assets from forfeiture. (Farrell Testimony, Tr. 6/23/17 at 49:2 to 50:6.) Tutis sought to negotiate a more favorable agreement for himself, including forfeiture of fewer properties and preservation of rights to appeal certain pretrial rulings. (Farrell Testimony, Tr. 6/2/17 at 136:5 to 137:6.) Tutis likewise told Vega he rejected the package deal of October 27th due to Tutis' concerns about the forfeiture of too many properties and to preserve his conditional appeal. (Vega Testimony, Tr. 6/21/17 at 69:10-15.)

         On Friday, October 28th, the Court conferred with all counsel who requested that the jury should not be asked to return on October 31st because a resolution of the cases with Vega and Tutis was still possible; Mr. Farrell advised that if a suitable plea agreement was not negotiated with the Government, that his client might be amenable to a stipulated non-jury trial to preserve rights to appeal pretrial suppression motion denials. (Farrell Testimony, Tr. 6/21/17 at 136:12-22.) Counsel asked for more time over the weekend to see if Tutis and the Government could arrive at a stipulation for an abbreviated non-jury trial on all counts; Jazmin Vega was not to be part of the stipulated trial of Toye Tutis. (See Archie Testimony, Tr. 6/26/17 at 29-32.) That Vega would be free to enter her own plea -- and thus be decoupled from Tutis, who would have a stipulated non-jury trial -- became clear from these procedural developments as of October 28th.

         At a hearing on October 31st, in the presence of all counsel and both defendants, it was revealed that Farrell and AUSA Carrig communicated over the weekend of October 28th-30th, exchanging proposed stipulations for the Tutis-only consent trial, while Farrell and AUSA Wiener resumed plea negotiations regarding Tutis. (Tr. 10/31/16, Ex. D-17 at 3:19 to 8:16.) Farrell's testimony also confirmed that he spent considerable effort with AUSA Carrig over the weekend working on these consent trial stipulations. (Tr. 6/23/17 at 77-79.) The October 31st conference included some discussions of how the stipulated trial of Tutis would be conducted. (Tr. 10/31/16, Ex. D-17, at 3-5, 8.) This is, of course, strong evidence that the fates of Tutis and Vega were diverging and uncoupled by October 31st. The substance of the parties' plea negotiations was not disclosed at that time, since final written agreements had not been made. The undersigned, consistent with Fed. R. Crim. P. 11(c)(1), did not participate in any plea negotiations; the Court's interest at that time was solely in managing the waiting jury and the Court's calendar, and determining whether the parties' requests to defer the start of trial for further negotiations should be accommodated.

         D. The Proposed Plea ...

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