United States District Court, M.D. Pennsylvania
Christopher C. Conner, United States District Court Chief
government and defendant GTBK Marketing (“GTBK”)
have entered into a deferred prosecution agreement
(“DPA”). In that agreement, GTBK agrees to waive
indictment, consents to the filing of a single-count criminal
information, and accepts responsibility for improper conduct.
In exchange, the government promises to defer prosecution on
the information for three years, conditioned on GTBK's
law-abiding behavior during that period. We previously
approved the DPA for the limited purpose of suspending the
Speedy Trial Act clock during the deferral period. New
information compels the court to reverse course and deny
tolling the speedy trial clock for such purposes going
Factual Background & Procedural History
2016, a grand jury returned an indictment against Dennis
Tubbergen (“Tubbergen”) and Christopher Ostrowski
(“Ostrowski”) charging, inter alia,
conspiracy and multiple counts of wire fraud. United
States v. Tubbergen, No. 1:16-CR-213, Doc. 1 (M.D. Pa.
Aug. 3, 2016). According to the indictment, Tubbergen and
Ostrowski-through GTBK-orchestrated a marketing scheme
involving the sale of a “patent-pending”
financial system known as the Immediate Legacy Program (the
“Program”). Id. ¶ 2. The Program
purportedly allowed wealthy individuals to make immediate
charitable contributions without incurring costs or taxes by
utilizing a system that involved development of a limited
liability company and purchase of annuities and life
insurance policies. Id. The Program claimed that
“at the death of the donor, the full amount of the
annuity used to pay the donor and fund the charitable
donation would be paid back to the person's estate by the
life insurance policy.” Id.
as CEO of GTBK, marketed the Program extensively to financial
planners and insurance agents across the country.
Id. ¶ 3. Ostrowski, a GTBK sales
representative, likewise traveled the nation putting on live
presentations and pitching the Program to potential
investors. Id. ¶ 4. The indictment alleges that
Tubbergen and Ostrowski made multiple false and fraudulent
representations to encourage potential investors to purchase
the Program and its various products. Id. ¶ 5.
For example, Tubbergen and Ostrowski purportedly told victims
that well-known charities and nonprofit organizations,
including Children's Memorial Hospital of Chicago, the
Grid Iron Greats Assistance Fund, Harvard University, and
Johns Hopkins University, were successfully using the
Program, which was not true. Id. ¶¶ 8, 12.
Potential investors were also allegedly told that GTBK had
preexisting relationships with numerous charities and
nonprofits that were waiting to be contacted about the
Program; this too was materially false. Id.
¶¶ 9, 10. Those who signed up for the Program paid
GTBK, on average, between $35, 000 and $50, 000. Id.
and Ostrowski pled not guilty to the charges.
Tubbergen, No. 1:16-CR-213, at Docs. 19, 20. Over
the following two and a half years, trial was repeatedly
continued at the parties' request. See id. at
Docs. 34, 35, 41-44, 46-51, 53-56, 59-60, 63, 67-68, 72-73.
In late January 2019, the government filed a one-count
information charging GTBK with mail fraud and included the
instant DPA, which had been executed one week prior.
United States v. GTBK Mktg., 1:19-CR-53, Docs. 1, 3
(M.D. Pa. Jan. 31, 2019).
salient terms of the DPA are as follows. GTBK agrees to waive
indictment; the United States Attorney's Office will file
a single-count information charging GTBK with mail fraud;
GTBK accepts responsibility for the fraudulent conduct as
described in the preamble of the DPA, which largely mirrors
the allegations in the Tubbergen and Ostrowski indictment;
GTBK will pay the total sum of $300, 000 over a three-year
deferral period, which funds are to provide restitution to
the fraud victims; GTBK will not commit any crimes or violate
any regulations during the deferral period; and after the
three-year deferral period has expired, if GTBK has satisfied
its obligations under the DPA, the United States will move to
dismiss the information with prejudice. Id. at Doc.
3 ¶¶ 7-13. Although not explicitly stated in the
DPA, the agreement also contemplates dismissal of the
criminal charges pending against Tubbergen and Ostrowski.
See Tubbergen, 1:16-CR-213, at Doc. 72 ¶ 2.
court held a hearing during which we provided the parties and
victims an opportunity to present their respective positions
on the DPA. Thereafter, we approved the DPA in the limited
context of excluding time under the Speedy Trial Act, 18
U.S.C. § 3161, in prosecuting the information against
GTBK. See United States v. GTBK Mktg., No.
1:19-CR-53, 2019 WL 2023581, at *2-3 (M.D. Pa. May 8, 2019).
Specifically, we found that there was “no evidence or
intimation that the DPA is not a good-faith agreement meant
to allow ‘the defendant to demonstrate [its] good
conduct' and compliance with the law, ” and were
thus “convinced that the DPA does not implicate any of
the precious few defects that would permit this court to
reject it.” Id. at *3 (alteration in original)
(quoting 18 U.S.C. § 3161(h)(2)) (citing United
States v. Fokker Servs. B.V., 818 F.3d 733, 745 (D.C.
Cir. 2016)). After careful consideration of new information,
we now reach the opposite conclusion.
again, the only issue before the court is approval of the DPA
in the limited context of excluding time under the Speedy
Trial Act. Section 3161(h)(2) excludes from the speedy trial
clock “[a]ny period of delay during which prosecution
is deferred by the attorney for the Government pursuant to
written agreement with the defendant, with the approval
of the court, for the purpose of allowing the
defendant to demonstrate his good conduct.” 18
U.S.C. § 3161(h)(2) (emphasis added). Circuit courts
considering this provision and its legislative history agree
that the district court's review of DPAs generally is
confined to determining-before granting a speedy trial
waiver-whether the agreement is made in good faith for the
purposes of the Act, viz., “allowing the
defendant to demonstrate his good conduct.” See
Fokker Servs., 818 F.3d at 740-41, 744-45; United
States v. HSBC Bank USA, N.A., 863 F.3d 125, 137-38 (2d
Cir. 2017); 18 U.S.C. § 3161(h)(2). The proper focus is
to ensure that the DPA “is bona fide before
granting a speedy trial waiver, ” HSBC Bank,
863 F.3d at 138; that is, assuring “that the DPA in
fact is geared to enabling the defendant to demonstrate
compliance with the law, ” Fokker Servs., 818
F.3d at 744. Any further evaluation of the substantive merits
of the DPA or supervision of the DPA's out-of-court
implementation risks infringing on “the Executive's
constitutionally rooted primacy over criminal charging
decisions.” Id. at 742.
also possess inherent supervisory authority to reject a DPA
if it contains illegal or unethical provisions. See
id. at 747. Examples of illegality or impropriety that
could warrant disapproval of a DPA include constitutional
violations or egregious prosecutorial misconduct. See
HSBC Bank, 863 F.3d at 136-37; Fokker Servs.,
818 F.3d at 747. This extraordinary authority, however,
should be exercised sparingly. HSBC Bank, 863 F.3d
at 136. Absent clear evidence to the contrary, DPAs carry
“the presumption of regularity that federal courts are
obliged to ascribe to prosecutorial conduct and
we issued our decision approving the DPA for Speedy Trial Act
purposes, new information came to light regarding GTBK. The
court was directed to a 2016 interview for MLive.com, wherein
Tubbergen is quoted as saying that GTBK “closed in
2011” and since that time he has been working for PLP
Advisors, LLC (“PLP Advisors”), which “has
no relationship” to GTBK. Tubbergen also informed the
Financial Industry Regulatory Authority that “GTBK
Marketing . . . closed in 2011” and that it “had
no relationship with PLP Advisors LLC . . . or its
clients.” Filings with the Michigan Department of
Licensing and Regulatory Affairs (“LARA”) further
confirm that GTBK ceased operations around 2011. Annual
limited liability company statements for GTBK stopped being
filed after 2010. Then, on a single day in July 2018,
Tubbergen filed the annual statements for years 2011 through
2018. He also filed a “certificate of
restoration of good standing” on the same
This evidence suggests that GTBK closed in 2011 and was
revived in 2018 around the time that the DPA was being
that this new information, which was previously unknown and
undisclosed to this court, is material to our decision of
whether to approve the DPA for Speedy Trial Act purposes.
Section 3161(h)(2) explicitly provides that the purpose of
excusing delay for deferred prosecution agreements is to
“allow the defendant to demonstrate [its] good
conduct.” 18 U.S.C. § 3161(h)(2). Those
agreements, after all, are intended to encourage defendants
to modify their past misconduct and behave better going
forward. See HSBC Bank, 863 F.3d at 142-43 (Pooler,
J., concurring) (explaining and quoting legislative history
to Section 3161(h)(2)). However, if a corporate defendant
will have no future conduct-good or bad-because it has ceased
operations and is not truly a going concern, the DPA would be
meaningless because there will be no “behavior”
for the government to monitor.
raised these concerns with the parties and invited them to
respond. GTBK essentially admits that it closed in 2011 and
has been operationally dormant since that time. (See
Doc. 13 at 1-2, 4). GTBK cites bad publicity from the
victims' “disparagement campaign, ” Obama-era
proposed regulations, and indictment of its former CEO,
Tubbergen, as reasons for its inactivity. (Id. at
2-3). The company contends that Tubbergen has
“always” planned to “reinvigorate GTBK and
forge ahead with a new business model upon the resolution of
the criminal case” pending against him. (Id.
at 4). GTBK asserts that “the same corporate entity
with the same ownership and operators . . . will continue on
in existence and operate its business as a DBA known as
‘Advocacy Practice Systems.'” (Id. at
5). The government, for its part, relies entirely on the
explanation provided by GTBK, but ...