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United States v. Tutis

United States District Court, D. New Jersey

April 29, 2019

UNITED STATES OF AMERICA
v.
TOYE TUTIS, Defendant.

          Craig Carpenito, United States Attorney By: Diana Carrig, Assistant U.S. Attorney

          Stanley O. King, Esq. King & King, LLC Attorney for Defendant

          OPINION

         JEROME B. SIMANDLE U.S. DISTRICT JUDGE

         Presently before the Court is the second motion of Defendant Toye Tutis to withdraw his plea of guilty pursuant to Rule 11(d)(1)(B), Fed. R. Crim. P., filed February 22, 2019.

         I. BACKGROUND AND PROCEDURAL HISTORY

         On November 1, 2016, after his jury had been selected, Defendant Toye Tutis pled guilty under a written plea agreement to being a leader or supervisor of a major drug trafficking conspiracy and an associated money laundering conspiracy. The sole remaining co-defendant was Tutis' wife, Jazmin Vega, who also entered her plea of guilty to the money laundering conspiracy charge on November 1, 2016.

         Thereafter, Tutis moved to withdraw his guilty plea under Rule 11(d)(1)(B), Fed. R. Crim. P. [Docket Item 443], raising two main contentions. Initially, he claimed he understood his plea agreement to be a package deal with that of his wife, Jazmin Vega, and that this Court conducted a Rule 11 hearing that failed to include the colloquy required by United States v. Hodge, 412 F.3d 479 (3d Cir. 2005) (applicable to joint plea agreements to assure each co-defendant's knowing, intelligent, and voluntary acceptance of the plea and waiver of jury trial rights). Alternately, Tutis argued that even if the pleas were not coupled -- as indeed they weren't -- his decision to plead guilty was nonetheless not knowing or voluntary because he mistakenly thought he had to accept his plea agreement or his wife would not be permitted to plead guilty, which he blamed on his ex-attorney, J. Michael Farrell, whom Tutis had retained as the case moved toward trial in 2016.

         The Court conducted three full days of hearings exploring the evolution of Tutis' plea agreement, the conduct and knowledge of Tutis' prior attorney J. Michael Farrell, and the knowledge of Jazmin Vega and her attorney, Troy Archie, Esq., as plea negotiations unfolded, together with detailed analysis of the Rule 11 hearings of Tutis and Vega, the Tutis application for permission to enter a plea of guilty, the various draft plea agreements, and the final plea agreements of Tutis and Vega. Mr. Farrell, Mr. Archie, and Ms. Vega all testified and were cross-examined. Mr. Tutis declined to testify at the end of those hearings, placing his waiver on the record. (Tr. June 26, 2017 at 147-150.)

         This Court held, in a 51-page Opinion filed November 13, 2018 [Docket Item 556] (hereafter “November 13th Opinion”), that Defendant Tutis failed to demonstrate a fair and just reason for requesting the withdrawal of his guilty plea. Namely, the Court found: (1) the Defendant does not assert his innocence in any plausible way (as explained in Part III.A.1 of the November 13th Opinion); (2) the Defendant does not present a strong reason justifying the withdrawal of the plea for lack of a Hodge colloquy because the pleas were not packaged, or because Tutis did not understand the pleas were unpackaged and would not have pled guilty in any event (as explained in Part III.A.2 of the November 13th Opinion). As to the later point, the Court did not credit the testimony of former attorney Farrell that he himself misunderstood the pleas to be packaged, and the Court found that Farrell's testimony and self-confession of being inadequate defense counsel in advising the guilty plea was false and motivated by the corrupt desire to help his former client with untruthful testimony (as explained in Parts II.H and III.A.2.b of that Opinion). Moreover, after considering all the circumstances, the Court found Mr. Tutis had not shown he would have gone to trial and rejected the final plea offer that had achieved the favorable bargaining points that Tutis had demanded as negotiations evolved, including preservation of the right to appeal certain pretrial rulings, dismissal of substantial weapons charges, and dismissal of the prospect of an enhanced penalty under 21 U.S.C. § 851, all in order to confront the mountain of evidence consisting of numerous inculpatory taped conversations, documents, surveillances, and testimony awaiting at trial (as explained in Parts II. (I) and III.B.2.b of the November 13th Opinion). Moreover, the Court rejected Defendant's claim and Farrell's testimony that Farrell had been confused and ineffective as Tutis' counsel in advising him to accept the final plea agreement, finding “Farrell's testimony amounts to a clumsy and unethical attempt by ex-counsel to ‘fall on his sword,' albeit a fabricated sword, for the benefit of setting aside a conviction.” (November 13th Opinion at pp. 32-33 & 44-45; see Parts II.H & III.A.2).

         Having failed in his effort to withdraw his guilty plea on the ground that it was not voluntary, and that he felt coerced to help his wife and would otherwise have gone to trial, and arguing that Farrell was ineffective counsel in the guilty plea process, Tutis now claims that he should be permitted to withdraw his plea on the ground it was not knowing and intelligent, due to the ineffective assistance of his prior counsel J. Michael Farrell who mistakenly advised him to accept the plea. The two claims -- lack of voluntariness in the 2017 motion to withdraw his guilty plea and his present motion claiming a mistaken advice from his attorney causing Tutis' lack of knowledge that he did not have to plead guilty to “save” his wife -- are directly related. Both depend on the essential factual predicate that Tutis and attorney Farrell were both confused about whether Tutis' plea had to be a package deal with Vega's plea; similarly, both depend upon determining whether this mistake or confusion actually mattered, that is, whether Tutis would have elected to go to trial, facing substantially increased charges that were otherwise mooted by the guilty plea, if he understood that his wife's guilty plea no longer depended on his decision.

         Moreover, both the 2017 motion and the current one are motions to withdraw the plea pursuant to Rule 11(d)(1)(B), which requires consideration, as a first factor, whether the defendant asserts his innocence, United States v. Siddons, 660 F.3d 699, 703 (3d Cir. 2011), which “must be buttressed by facts in the record that support a claimed defense” and must “sufficiently explain the contradictory position he took during the plea colloquy.” Id. Regarding Defendant's 2017 motion, the Court found the motion was “bereft of any proffer of facts in the record casting doubt on Tutis' guilt, ” nor was there any proffer that some element of guilt was missing or even debatable. (November 13th Opinion at 38) [Docket Item 556]. The Court also found that Defendant's initial motion failed to explain how his prior Rule 11 hearing testimony under oath, admitting that he was guilty as an organizer, leader, manager, or supervisor of the charged conspiracy to distribute 150 to 450 kilograms of cocaine and approximately 26 kilograms of heroin, coupled with similar detailed admissions of money laundering, was incorrect or untrue. (Id. at 25-26, 38-40).

         The same is true of the present motion, namely, there is not one word about having a viable defense to the charges or an explanation of why his admissions of factual guilt in 2016 should be disregarded now, other than his claim that he lied to the Court when he pled guilty, to be discussed below. Accordingly, Defendant fails to demonstrate any plausible claim of innocence to the charges to which he pled guilty.

         This was confirmed by Tutis' testimony upon the present motion at a hearing on April 4, 2019. He admitted he reviewed the wiretap calls from the extensive criminal investigation of the drug distribution conspiracy and heard himself on tape talking about purchasing and selling multi-kilogram quantities of cocaine and shipping drug proceeds to California and arranging for others to receive shipments of the drugs to the locations he arranged in New Jersey. He testified he was aware that a firearm and $62, 000 cash as drug proceeds were found in the closet of his premises. He was aware that if he went to trial, the Government's § 851 penalty enhancement notice would increase his mandatory minimum penalty to 240 months just for the drug conspiracy in the event of conviction.

         When asked why he admitted guilt in the Rule 11 colloquy in his testimony of November 1, 2016, Tutis testified on April 4, 2019 that “[m]y testimony was not truthful, ” that he basically lied to protect his wife. This time, Tutis testified in effect that he “conspired with nobody, ” and that while he was “selling drugs, ” he “didn't conspire.” This, of course, makes no sense, in light of his admission, once again, in his April 4, 2019 testimony, that he bought drugs from the alleged co-conspirators, and that this group trafficked in 150 to 450 kilograms of cocaine and 26 kilograms of heroin. He acknowledged he had agreements with the others to buy or sell specified quantities of cocaine and heroin at agreed-upon prices, the essence of the agreement required for conspiracy to distribute drugs. Similarly, concerning the money laundering conspiracy, he again admitted on April 4, 2019, as he had in his Rule 11 colloquy on November 1, 2016, that he conspired with his wife, Jazmin Vega, to ...


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