United States v. Tutis ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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Nos. 19-2106 and 19-2380
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UNITED STATES OF AMERICA, Appellant in 19-2380
v.
TOYE TUTIS, a/k/a "AHMAD",
a/k/a "MAHD", a/k/a "SANTANA", Appellant in 19-2106
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1-14-cr-00699-001)
District Judge: Honorable Jerome B. Simandle
____________
Argued on December 9, 2020
Before: MCKEE, PORTER and FISHER, Circuit Judges.
(Filed: February 11, 2021)
Stanley O. King [ARGUED]
King & King
231 South Broad Street
Woodbury, NJ 08096
Counsel for Appellant/Cross-Appellee
Craig Carpenito, United States Attorney
Sabrina G. Comizzoli, Assistant U.S. Attorney [ARGUED]
Mark E. Coyne
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102
Counsel for Appellee/Cross-Appellant
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OPINION *
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FISHER, Circuit Judge.
Toye Tutis pleaded guilty to drug possession and distribution and money
laundering, but reserved his right to appeal two issues. He now exercises that right,
arguing that the District Court erred in denying his motions to suppress evidence and to
withdraw his guilty plea. We will affirm. 1
Tutis first argues that the District Court erred in denying his motions to suppress
evidence from a roving wiretap because the affidavit supporting the wiretap order did not
provide probable cause. He contends that the affidavit contained only barebones,
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291. For the denial of a motion to suppress evidence, we review
factual determinations for clear error and exercise plenary review over the application of
the law to those facts. United States v. Murray, 821 F. 3d 386, 390-91 (3d Cir. 2016). For
the denial of a motion to withdraw a guilty plea, we review for abuse of discretion.
United States v. Siddons, 660 F.3d 699, 703 (3d Cir. 2011).
2
conclusory, and deliberately misleading information. 2
“When faced with a challenge to a . . . probable cause determination, a reviewing
court must remember that its role is limited” 3 and afford “great deference” 4 to the issuing
court’s findings. Thus, we “confine our review to . . . the affidavit” and look to see if
there was a “‘substantial basis’ for finding probable cause” from its contents. 5 The test is
met if, taking “a practical, common-sense” view of the facts, “there is a fair probability
that . . . evidence of a crime will be found in a particular place.” 6 Additionally, a roving
wiretap, which allows the government to “intercept[] any and all identified telephones
used” by an individual, 7 may be authorized if the affidavit includes evidence of that
person “thwarting interception” by law enforcement. 8
Here, the District Court concluded that the affidavit contained sufficient facts to
establish probable cause for a roving wiretap. We agree. The affidavit indicated that
Tutis, his wife, and his brother were subjects of a long-term, state and federal
2
Tutis argues that the affidavit also fails because it does not meet New Jersey’s
stricter standard for roving wiretaps. See State v. Feliciano, 132 A.3d 1245, 1256 (N.J.
2016) (explaining that New Jersey’s standard is “stricter” than the federal one because
the government must “show the target has a ‘purpose . . . to thwart interception’” (citing
N.J.S.A. 2A:156A-9(g)(2)(b))). We have, however, held that federal law governs
admissibility of communications intercepted by state agents in federal cases. United
States v. Williams, 124 F.3d 411, 426-28 (3d Cir. 1997).
3
United States v. Jones, 994 F.2d 1051, 1055 (3d Cir. 1993).
4
United States v. Hodge, 246 F.3d 301, 305 (3d Cir. 2001).
5
Jones, 994 F.2d at 1054, 1055.
6
Illinois v. Gates, 462 U.S. 213, 238 (1983).
7
United States v. Shannon, 766 F.3d 346, 349 n.4 (3d Cir. 2014).
8
18 U.S.C. § 2518(11)(b)(ii).
3
investigation into multiple drug trafficking rings in New Jersey. It also recounted tips
from a confidential informant such as instructions, that were provided by Tutis, to use
code words to refer to specific drugs. The affidavit further described a subsequent
investigation based on those tips, including multiple controlled drug purchases, one of
which occurred in Tutis’s presence. 9 The affidavit also averred that Tutis obtained
fraudulent state-issued identifications and used multiple phones to avoid interception by
the police. While it is true that the affidavit was later found to have included some false
information, the District Court found that it was not knowingly and deliberately
included. 10 Even excluding the affidavit’s incorrect assertion that “Santana” was Tutis’s
nickname, the remaining facts in the affidavit still established probable cause. 11
Next, Tutis argues that the District Court wrongly denied his motion to suppress
evidence obtained through a cell-site simulator, arguing it exceeded the warrant’s scope
because the affidavit referred to the simulator only as “equipment” instead of specifically
listing it. A search warrant complies with the Fourth Amendment when a neutral
9
See United States v. Stearn, 597 F.3d 540, 555 (3d Cir. 2010) (finding that “[a]
magistrate may issue a warrant relying primarily . . . upon the statements of a confidential
informant, so long as” there is “independent ‘[police] corroboration of details of an
informant’s tip’” (quoting Gates, 462 U.S. at 241) (alteration in original)).
10
See Franks v. Delaware, 438 U.S. 154, 171 (1978) (to obtain an evidentiary
hearing and ultimately exclude evidence obtained under a warrant issued based on a false
affidavit, “[t]here must be allegations of deliberate falsehood or of reckless disregard for
the truth”).
11
See United States v. Yusuf, 461 F.3d 374, 384 (3d Cir. 2006) (“When faced with
an affirmative misrepresentation, the court is required to excise the false statement from
the affidavit” and then assess probable cause.).
4
magistrate finds in the affiant’s application: (1) “probable cause to believe that the
evidence sought will aid in a particular apprehension” and particular descriptions of “the
things to be seized, as well as the place to be searched.” 12 The affidavit here did just that.
It described where the equipment would search and what it would obtain. Based on
physical surveillance of Tutis, the officers would use the equipment in “close proximity”
to Tutis “at different geographical locations.” 13 It would then obtain “Electronic Serial
Number (ESN), Mobile Telephone Number (MSISSDN), and International Mobile
Subscriber Identification (IMSI)” to “ascertain the [additional cellular telephone] facility
or facilities” utilized by Tutis. 14 Indeed, it described the equipment in detail despite not
actually naming it, stating that it “is capable of retrieving wireless instrument
identification information” and would be used “to identify additional telephone facility
numbers being utilized by” Tutis. 15 Therefore, the government’s search did not exceed
the scope of the warrant.
Furthermore, Tutis disputes the legitimacy of his own guilty plea, which he tried
to withdraw twice. A defendant may withdraw a plea if he can demonstrate a “fair and
just reason for . . . withdrawal,” 16 which is a “substantial burden.” 17 In determining if a
12
Dalia v. United States, 441 U.S. 238, 255 (1979) (internal quotation marks
omitted).
13
Appellant’s Brief at 38.
14
Id. at 37.
15
Id. at 38-39.
16
Fed. R. Crim. P. 11(d)(2)(B).
17
Siddons, 660 F.3d at 703.
5
fair and just reason exists, “a district court must consider whether: (1) the defendant
asserts his innocence; (2) the defendant proffered strong reasons justifying the
withdrawal; and (3) the government would be prejudiced by the withdrawal.” 18
In his first motion, Tutis contended that his plea was involuntary because he only
agreed to it “based on pressure stemming from the packaged nature of his and his wife’s
plea offers.” 19 For the first factor of the test for withdrawing a plea, asserting innocence,
Tutis provided no facts to support his general statement that he continued to maintain his
innocence. A “[b]ald assertion of innocence is . . . insufficient to permit [a defendant] to
withdraw his guilty plea.” 20
For the second factor, Tutis argues there are strong reasons to withdraw his plea
because he did not know it was uncoupled from his wife’s plea deal. He contends that
initial plea negotiations involved a packaged deal and his attorney did not inform him
that, in the end, the pleas were not packaged. Additionally, Tutis argues that the District
Court failed to conduct the special colloquy that is required for packaged pleas. 21
However, the District Court found that Tutis’s and his wife’s agreements had no
18
Id. (internal quotation marks and citations omitted).
19
Appellant’s Brief at 42-43.
20
United States v. Wilson, 429 F.3d 455, 458 (3d Cir. 2005).
21
We require that package deals be disclosed to the district court, and that the
district court conduct a special colloquy, because package deals “pose special risks,
particularly when a trial court is unaware that defendants’ pleas are tied together.” United
States v. Hodge, 412 F.3d 479, 489-90 (3d Cir. 2005).
6
“coupling language,” were “entered independently,” and “were indeed uncoupled.” 22 Our
review of the plea agreement confirms that the District Court did not err on this point.
Tutis also “affirm[ed] . . . that his decision to accept the government’s plea bargain was
voluntary, entered of his own free will, and not coerced,” and the District Court
confirmed him to be “an intelligent, articulate, and self-directed person” who was
actively involved in negotiating plea offers. 23
Nor does our decision change because Tutis’s lawyer subsequently testified that he
decided not to inform the District Court about the packaged deal in order “to inject . . .
error in the Court’s plea hearing so that it could serve as a basis for setting his plea
aside.” 24 The District Court found the lawyer to be incredible, “uneasy” on the witness
stand, and trying hard “to keep his ‘story’ straight.” 25 Additionally, Tutis’s wife’s
attorney testified that he knew that the pleas were ultimately uncoupled and that Tutis’s
lawyer should have known as well.
As for the final factor for withdrawing a plea, the District Court did not find the
Government would have been prejudiced by withdrawal. However, this third factor does
not outweigh the first two, which Tutis failed to demonstrate. Thus, the District Court did
22
JA 83-84. Moreover, even if Tutis’s plea deal had been packaged together with
his wife’s, a packaged-plea colloquy was never triggered because neither party informed
the District Court there was a package deal. See Hodge, 412 F.3d at 489-90.
23
JA 85, 102.
24
JA 109, 986.
25
JA 111.
7
not abuse its discretion when it concluded that Tutis did not establish a fair and just
reason to withdraw his plea.
In his second motion to withdraw his plea, Tutis argued the plea was involuntary
due to ineffective assistance of counsel. Although we typically do not evaluate claims of
ineffective assistance of counsel on direct appeal, “a narrow exception to the rule . . .
exists ‘[w]here the record is sufficient to allow’” it. 26 Because the District Court held a
hearing and “created an adequate record,” we will proceed. 27 Accordingly, Tutis must
demonstrate that (1) “his attorney’s advice was under all the circumstances unreasonable
under prevailing professional norms; and (2) . . . he suffered sufficient prejudice from his
counsel’s errors.” 28 He satisfies the latter by proving that “he would not have pleaded
guilty and would have insisted on going to trial” but for his attorney’s errors. 29
As with his first motion to withdraw, Tutis maintains that he entered his plea
involuntarily because his counsel misled him into believing that he had a packaged deal
with his wife. The District Court, however, found that Tutis’s lawyer “attempted to
manufacture an ineffective assistance of counsel claim in a corrupt post-plea attempt to
help his former client” 30 and that Tutis’s contention that he falsely admitted to his guilt
26
United States v. Jones, 336 F.3d 245, 254 (3d Cir. 2003) (quoting United States
v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991)).
27
Id.28
Id. at 253-54 (internal quotation marks and citations omitted).
29
Hill v. Lockhart, 474 U.S. 52, 59 (1985).
30
JA 143.
8
was unbelievable. There was no indication that Tutis would have gone to trial if he had
not pleaded guilty, much less that he was prejudiced by his lawyer’s alleged errors.
Lastly, Tutis indicated his intention to file a pro se appellate brief, and in response,
the Government filed a cross-appeal. Apparently, the Government was attempting to
prepare for the possibility that Tutis would raise issues on appeal other than the ones
reserved in his plea agreement, and thus would violate the agreement. However, the
Government should not have cross-appealed. 31 To put it succinctly, the Government was
not aggrieved by the judgment and is not permitted to appeal it. 32 Therefore, we dismiss
the cross-appeal.
31
United States v. Erwin, 765 F.3d 219, 234-35 (3d Cir. 2014) (where defendant
violates terms of plea agreement by raising issues not reserved in the agreement, no
cross-appeal is permitted or needed and this Court has the power to order appropriate
remedies, including de novo resentencing).
32
Id. at 232.
9
For these reasons, we will affirm. 33
33
Judge McKee does not agree that the affidavit contained sufficient assertions to
establish probable cause for a roving wiretap. The assertions that would establish
probable cause in the affidavit all stem from the informant, but they establish probable
cause only if the informant is shown to be reliable under Gates. 462 U.S. at 239. Judge
McKee does not believe that the affidavit establishes that the informant is reliable as to
Tutis. In his view, the affiant merely asserts that the informant is reliable without
establishing what that conclusion is based upon. It alleges only that physical surveillance
has been conducted, primarily of the narcotics transactions conducted with the reliable
confidential informant. The language about the informant’s reliability is conclusory and
similar to the language that was held inadequate in Gates. There, the affidavit stated only
that the affiant “[has] received reliable information from a credible person . . . ” Gates,
462 U.S. at 239. Here, as in Gates, such an assertion is a “mere conclusory statement that
gives the magistrate virtually no basis at all for making a judgment regarding probable
cause. Id.Judge McKee notes that the affiant does state that he had relied upon the informant
in a prior investigation of Tutis. However, that investigation was fruitless. In this
investigation, the informant’s tips about drug activity were corroborated only as to
Tutis’s brother, but not as to the appellant himself. Accordingly, Judge McKee would
hold that the affidavit in support of the September 26, 2014 roving wiretap order lacked
probable cause and that evidence derived from that wiretap should therefore be
suppressed as the “fruit of the poisonous tree.” Wong Sun. v. United States, 371 U.S. 471(1963).
10