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United States v. Titus

United States District Court, E.D. Louisiana

March 27, 2015



IVAN L.R. LEMELLE, District Judge.

Before the Court is Defendant Mark Titus's "Motion to Recuse District Judge from Post-Conviction Relief Proceedings" (Rec. Doc. 251), seeking the Court's recusal pursuant to 28 U.S.C. § 455(a) from Defendant's presently pending motion for post-conviction relief (Rec. Doc. 249). For the reasons that follow, IT IS ORDERED that Defendant's motion is DENIED.


The Court assumes familiarity with the facts of the instant case, the details of which may be ascertained from the record ( See, e.g., Rec. Doc. 249-1 at 2). In brief, Mark Titus was sentenced on October 10, 2012, to a term of 60 months imprisonment, after pleading guilty to a charge of Conspiracy to Commit Mail Fraud in violation of 18 U.S.C. § 371. (Rec. Doc. 72). That plea was entered pursuant to an agreement under which the Government declined to charge Titus with additional offenses in return for his cooperation in an investigation into alleged fraud perpetrated by his brother-in-law, Dominic Fazzio, in connection with the so-called "River Birch Probe." See United States v. Fazzio, Civil Action No. 11-157(C) (E.D La. 2011). Issues which are the subject of Titus's motion for postconviction relief (and need not be addressed in detail here) exist as to whether, as part of this agreement, the Government obligated itself not to pursue forfeiture of property owned by Titus. (Rec. Doc. 249-1). Ultimately, Titus's conviction and sentence were affirmed on appeal to the United States Court of Appeals for the Fifth Circuit on November 13, 2013. (Rec. Doc. 194). Rehearing was denied on January 3, 2014. (Rec. Doc. 249-1 at 10). Titus did not petition the United States Supreme Court for certiorari, causing his judgment of conviction to become final on April 3, 2014. (Rec. Doc. 249-1 at 10). Thereafter, on February 23, 2015, within the one-year period allowed for doing so, Titus filed an application for post-conviction relief pursuant to 28 U.S.C. § 2255. In that application, Titus alleges ineffective assistance on the part of his retained trial counsel, James Ardoin, relating to the forfeiture provisions of his plea agreement and Ardoin's alleged failure to timely move to withdraw Titus's plea when it became clear that the Government intended, after all, to pursue forfeiture of Titus's assets. Titus now moves this Court to recuse from the postconviction proceedings, alleging that intrajudicial comments pertaining to Titus's credibility in his sentencing proceedings would cause a reasonable observer to question the Court's partiality for purposes of the post-conviction proceedings, as required for recusal under 28 U.S.C. § 455(a).


The grounds for Titus's § 2255 motion are two claims of ineffective assistance of counsel. Titus first argues that his trial counsel, James Ardoin, suffered from an actual conflict of interest in connection with instructions from Titus to move to withdraw his previously entered guilty plea. (Rec. Doc. 249-1 at 10). Titus's strongest argument for withdrawal of the plea was that he would not have pleaded guilty but for oral assurances from Assistant United States Attorneys assigned to the case that the Government did not intend to pursue forfeiture. Ardoin did not bring this issue to the Court's attention until shortly before Titus's sentencing hearing. Titus argues that Ardoin succumbed to personal interest when the issue was raised to the Court by insisting that he himself had only recently been made aware of allegations relating to the Government's assurances and that admitting otherwise would have caused him to expose himself to disciplinary action for misleading the Court, both at hearings and in correspondence with the Court and opposing counsel (of which Titus claims he was not aware). Titus argues evidence reflects that Ardoin was instead aware of the alleged assurances by the Government far earlier than he represented to the Court and that Ardoin's failure to timely raise issues relating thereto led the Court to believe that no such agreement ever existed because it was not credible that Titus (and his private investigator) would have failed to inform counsel of such assurances for an entire year. The details of this claim are set forth in Titus's § 2255 motion. (Rec. Doc. 249).

Titus's second argument pertaining to ineffective assistance is that Ardoin failed to negotiate a favorable application of the forfeiture clause in his plea agreement. (Rec. Doc. 249-1 at 18). According to Titus, he initially voiced concerns about inclusion of such a provision in the agreement, to which Ardoin responded that the provision's failure to identify specific property would afford an opportunity to negotiate favorable application of that term over the course of the ensuing proceedings. (Rec. Doc. 249-1 at 19). Titus alleges however that Ardoin never undertook any such negotiations and further that Ardoin neglected even to inform Titus when the Government filed a Motion for Preliminary Order of Forfeiture on February 15, 2012. (Rec. Doc. 249-1 at 19). The Government moved to amend the notice of forfeiture to identify specific property four days before Titus's sentencing. Id. When the Court granted a continuance on a conditional grant of that motion for purposes of allowing the defense to respond, Ardoin failed to respond or oppose the motion, resulting in the Court's granting it and entering an order of forfeiture on November 20, 2012. (Rec. Doc. 249-1 at 20). The order was not appealed.

At Titus's sentencing hearing on October 10, 2012, Ardoin finally raised concerns relating to the alleged assurances by the Government as to the issue of forfeiture and further permitted Titus to address the Court pertaining thereto. It is the Court's comments in response to these developments that form the basis of the instant motion for recusal. Titus argues:

A reasonable person who observed the proceedings during the October 10, 2012 hearing would believe that the Court firmly believed that Titus was lying about assurances of no-forfeiture from AUSAs Perricone and Mann and was not open to reconsidering its position. The Court repeatedly stated that it did not believe Titus or his investigator, Tim Wilson. You want me to believe all this?' the Court asked Titus's lawyer.... A few minutes later, the Court asked again, And so why should I believe Mr. Wilson, a non-lawyer, is negotiating on behalf of someone that he's not authorized to represent as a lawyer? That sounds ridiculous to me. Why should I believe that?' With regard to the timing of the filing, the Court said:
I don't fault Ardoin for that. It apparently is something that was recently told to him by his client, concerning some secret plea agreement that his client told him about a year later, as well as an investigator who tells him about this almost a year alter [sic] and says that there was a secret plea agreement where the Government agreed that they would not seek to forfeit the Defendant's property and as part of a quid pro quo so to speak for his plea of guilty. I don't find that credible because of the late filing as well and [sic] the reasons I've already stated. There is no basis for a delay that long and I don't find credible Mr. Wilson or Mr. Titus in that regard.

(Rec. Doc. 251-1 at 2). Titus further cites an exchange between the Court and Ardoin at the sentencing hearing, where the latter indicated that he intended to put his client on the record making statements pertaining to a claim of actual innocence. Rec. Doc. 251-1 at 3). In response, the Court stated: "I'll give him the shovel, " which Titus now argues indicates: "the Court had developed a predisposition to disbelieve Titus based on the representation about the Pericone-Mann assurances." (Rec. Doc. 251-1 at 3).

Titus's § 2255 motion challenges the Court's conclusion that the no-forfeiture representations by the Government were last-minute inventions of which Ardoin was not made aware until a year into his representation of the defendant. Because these arguments may require the Court to re-visit its credibility determinations relating to Titus, he argues the Court should recuse from the instant post-conviction proceedings.


The instant motion to recuse is governed by 28 U.S.C. § 455(a), which provides: "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Such a determination is objective, "so that what matters is not the reality of bias or prejudice but its appearance." Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988). This objective standard is established with reference to "the well-informed, thoughtful and objective observer, rather than the hypersensitive, cynical, and suspicious person." Andrada v. Chojnacki, 338 F.3d 448, 454-55 (5th Cir. 2003)(citing United States v. Jordan, 49 F.3d 152, 156 ...

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