MOTION for Bill of Particulars with Brief In Support by Jerry Baptiste as Jerry… — USA v. Thomas et al (Dkt. 438)

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Defendant Baptiste's Motion for a Bill of Particulars, Document 438 filed 03/14/22 in United States of America v. Jerry Baptiste, et al., Criminal Action No. 1:20-CR-296-JPB-CMS-13, in the United States District Court for the Northern District of Georgia, Atlanta Division. Under Rule 7(f) of the Federal Rules of Criminal Procedure, the defendant asks the Court to order the Government to identify the actual electronic communications or transmissions it intends to prove as the execution of the bank fraud scheme in Count Ten, the wire fraud scheme in Count Eleven and the false statement to a financial institution in Count Thirty-Eight. It quotes the Second Superseding Indictment, which alleges that on May 20, 2020 the defendant and others caused false IRS Form 941s, a false bank statement and a PPP Borrower Application Form to be transmitted.

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IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 
ATLANTA DIVISION 
 
UNITED STATES OF AMERICA 
v. 
JERRY BAPTISTE, et al. 
Criminal Action No. 
 
1:20-CR-296-JPB-CMS-13 
 
 
 
DEFENDANT BAPTISTE’S MOTION FOR A BILL OF PARTICULARS 
 
Defendant Jerry Baptiste (“Defendant”), through counsel, pursuant to the 
Rule 7(f) of the Federal Rules of Criminal Procedure respectfully moves this Court 
to order the Government to file a Bill of Particulars identifying the actual 
electronic communication(s) or transmission(s) that the Government intends to 
prove at trial as the execution of the bank fraud scheme charged in Count Ten, the 
execution of the wire fraud scheme charged in Count Eleven, and the making of a 
false statement to a financial institution charged in Count Thirty-Eight.  
SECOND SUPERSEDING INDICTMENT 
 
Count Ten alleges that on May 20, 2020, Defendant and at least six other 
individuals executed the alleged bank fraud scheme in violation of 18 U.S.C. § 
1344 “by causing false IRS Form 941s and a false bank statement for 
Transportation Management Services Inc. to be transmitted to Financial Institution 
1 and making false representations and certifications to Financial Institution 1 
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regarding Transportation Management Services Inc.’s payroll costs and the 
purpose of the applied-for PPP loan.”  (Doc. 290 at ¶ 95.) 
 
Count Eleven alleges that on May 20, 2020, Defendant and at least six other 
individuals executed the alleged wire fraud scheme in violation of 18 U.S.C. § 
1343 by “caus[ing] to be transmitted by means of a wire communication in 
interstate and foreign commerce certain writings, signs, signals and sounds, 
namely, a PPP Borrower Application Form containing false information related to 
Transportation Management Service’s Inc.’s payroll obligations and the purposes 
of the applied-for PPP loan, and attaching falsified tax documentation for each 
quarter of 2019 and a falsified bank statement.”  (Id. at ¶ 97.)   
 
Count Thirty-Eight alleges the May 20, 2020, making of a false statement to 
a financial institution in violation of 18 U.S.C. § 1014.  Specifically, Count Thirty-
Eight alleges that on May 20, 2020, Defendant at least 6 other individuals 
“knowingly made a false statement for the purpose of influencing the actions of the 
financial institutions identified below, the accounts of which were insured by the 
FDIC, in connection with PPP loan applications by the business identified below, 
in that the Defendants did the following . . . . . signed and initialed a PPP Borrower 
Application Form for Transportation Management Services, Inc. falsely certifying” 
the length of time that the business had been in existence, that the funds would be 
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use for permitted PPP purposes, and that the application and all supporting 
documents were true and correct.” (Id. at ¶ 181.)  
LEGAL STANDARDS 
 
Rule 7 of the Federal Rules of Criminal Procedure requires only that an 
indictment “be a plain, concise, and definite written statement of the essential facts 
constituting the offense charged.” Fed. R. Crim. P. 7(c)(1).  An indictment is 
sufficient if it tracks the wording of the statute, so long as the language sets forth 
the essential elements of the crime. See United States v. Critzer, 951 F.2d 306, 307 
(11th Cir. 1992). 
 
A defendant “may still be entitled to additional detail from the government 
through a bill of particulars.” United States v. Pendergrass, No. 1:17-CR-224-AT-
CMS, 2020 WL 716747, at *1 (N.D. Ga. Jan. 22, 2020), report and 
recommendation adopted, 2020 WL 709283 (N.D. Ga. Feb. 12, 2020). “A district 
court should require the government to file a bill of particulars where it is 
necessary ‘(1) to inform the defendant of the charge against him with sufficient 
precision to allow him to prepare his defense; (2) to minimize surprise at trial; and 
(3) to enable the defendant to plead double jeopardy in the event of a later 
prosecution for the same offense.’” Id. (quoting United States v. Warren, 772 F.2d 
827, 837 (11th Cir. 1985)). “A bill of particulars, properly viewed, supplements an 
indictment by providing the defendant with information necessary for trial 
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preparation.” United States v. Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986) 
(emphasis in original). 
ARGUMENT AND AUTHORITY 
 
The Counts alleged against Defendant allege the material that was wired or 
transmitted, but do not allege the actual transmission(s) or electronic 
communication(s) that the Government intends to prove at trial to establish Counts 
Ten, Eleven, and Thirty-Eight.  Particularization of this information is necessary to 
the preparation of Defendant’s defense and should be identified by the Government 
in a Bill of Particulars.   
  
An actual communication, whether by electronic communication or 
transmission to a financial institution, is an essential element of each of the crimes 
at issue.  An interstate wire communication is an essential element of the crime of 
wire fraud.  See § 1343; United States v. Estepa, 998 F.3d 898, 908 (11th Cir. 
2021) (to convict a defendant of wire fraud the government must prove “the use of 
the interstate ... wires in furtherance of” the scheme).  Section 1014 requires proof 
that a false statement or report was “made” to a financial institution among other 
elements. See § 1014; United States v. Williams, 785 F. App'x 692, 699 (11th Cir. 
2019).  Similarly, bank fraud requires proof that false statements or representations 
were “made” to obtain property of a financial institution. United States v. De La 
Mata, 266 F.3d 1275, 1298 (11th Cir. 2001).  These essential elements should be 
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alleged in the indictment or in a bill of particulars. But while the SSI alleges the 
material that was wired or transmitted, it does not sufficiently allege the actual 
electronic communication(s) or transmission(s) of such material.  
 
Identification of the precise transmission(s) or electronic communication(s) 
is necessary for Defendant to prepare to address one of the essential elements of 
each of the crimes at issue.  For example, the bare allegations in the SSI do not 
provide Defendant with sufficient information to prepare to test whether the wire at 
issue traveled in interstate commerce – indeed, the bare allegation does not allege 
that the material traveled from any one particular place to any another.  Similarly, 
the SSI does not allege sufficient information for Defendant to prepare to contest 
the making of the actual false statement at issue – again, the bare allegation does 
allege any information showing that the statement was actually made, i.e., by who, 
how, and to who it was actually made.  So too with the bank fraud count, in which 
the SSI alleges the transmission of alleged false material to a financial institution, 
but nothing sufficient to be prepared to meet at trial regarding the actual 
transmission itself.  For each of these, the SSI simply alleges the statutory 
language, which is insufficient here.  
 
Based on these bare allegations, Defendant cannot prepare to contest at trial 
whether the wire actually traveled in interstate commerce, or whether the alleged 
false documents and statement was transmitted or made to a financial institution 
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(as opposed to some other entity). As another example, to the extent that the 
Government relies on the actual transmission(s) or electronic communication(s) to 
establish venue, Defendant has no ability to assess whether venue has been 
properly laid in this case.1  Defendant cannot tell from the SSI whether the 
Government intends to prove one, two, or three separate wires or transmissions at 
trial for each of the counts at issue. Defendant should not be forced to guess or 
speculate based on the similar date allegation for all three.  
 
The issue raised here is all the more important because of the multiple 
entities involve in the making of the Transportation Management Services 
(“TMS”) loan alleged in the counts against Defendant. The SSI alleges that the 
TMS loan involved a financial institution, Cross River Bank, but that another 
entity, Blue Vine, which was not a financial institution, acted as “a service 
provider” and “review[ed]” loan applications.  (Doc. 290 at ¶ 35.)  Yet another 
entity, the U.S. Small Business Administration, was also involved in some 
unspecified fashion in the making of the TMS loan.  (Id. at ¶ 22.) Although the SSI 
does not allege details about that involvement, the Government produced the TMS 
loan application and related documents in discovery only from the SBA, not from 
Cross River Bank or Blue Vine.  The Court should require the Government to 
                                                 
1 One can scrutinize the SSI in vain for any factual allegations supporting venue for the charges against Defendant 
beyond the repetitive bald allegation “In the Northern District of Georgia and elsewhere.”   
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particularize the specific wire(s) and transmission(s) that it intends to prove so that 
Defendant can prepare for trial and not have to guess the specific wire(s), 
transmission(s), and entities at issue.   
 
Courts have required particularization of indictments that fail to allege the 
information requested here. In United States v. Kernell, No. 3:08-CR-142, 2010 
WL 1408438, at *4 (E.D. Tenn. Apr. 2, 2010), the Court found that 
“particularization of the electronic transmissions that form the basis of Count 2 [a 
wire fraud count] is appropriate so that the Defendant can prepare to defend this 
count at trial.”  Similarly, in United States v. Reale, No. S4 96 CR. 1069 (DAB), 
1997 WL 580778, at *14 (S.D.N.Y. Sept. 17, 1997) the court granted the 
defendants “request for a Bill of Particulars identifying the specific mailings and 
wire transfers and the approximate dates alleged in Counts Nine through Eleven on 
which they occurred.” In United States v. Dorfman, 335 F. Supp. 675, 680 
(S.D.N.Y. 1971), addressing a request to particularize wire fraud counts, the court 
concluded that “[t]he use of telephonic communication is a jurisdictional element 
in these counts. If the defendant can successfully move against these counts for 
jurisdictional deficiency, he should be given the means to do so.”  See also United 
States v. Crisona, 271 F. Supp. 150, 156 (S.D.N.Y. 1967) (ordering the 
government to provide a bill of particulars “[w]ith respect to each count alleging 
the transmittal of a telephone call, telegram, or letter in furtherance of the alleged 
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scheme to defraud, the identity of the person or persons who made the telephone 
call or sent the telegram and letter, the identity of the person or persons, or the 
number to which, the telephone call was made, [and] the identity of the addressee 
of the telegram or letter.”). 
CONCLUSION 
For all of the foregoing reasons, the Court should order the Government to 
file a Bill of Particulars identifying the specific wiring(s) and transmission(s) 
alleged in Counts Ten, Eleven, and Thirty-Eight that the Government intends to 
prove at trial. 
Respectfully submitted this 14th day of March, 2022. 
/s/ Douglas W. Gilfillan  
Douglas W. Gilfillan 
Georgia Bar No. 294713 
Kilpatrick Townsend & Stockton, LLP 
Suite 2800 
1100 Peachtree Street NE 
Atlanta, Georgia 30309 
(404) 815-6019 (Phone) 
(404) 795-9047 (Facsimile) 
dgilfillan@kilpatricktownsend.com  
 
Counsel to Jerry Baptiste 
 
 
 
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LOCAL RULE 7.1D CERTIFICATE 
 
 
The undersigned hereby certifies that the foregoing has been formatted in 
Times New Roman font, 14 point type, which complies with the font size and point 
requirements of Local Rule 5.1C. 
 
CERTIFICATE OF SERVICE 
 
I hereby certify that the foregoing document was electronically filed with the 
Clerk of Court using the CM/ECF system, which automatically serves notification 
of such filing to all counsel of record, including: 
Tal C. Chaiken 
Assistant United States Attorney 
Nathan P. Kitchens 
Assistant United States Attorney 
U.S. Attorney’s Office 
75 Ted Turner Drive, Suite 600 
Atlanta, GA 30303 
 
This 14th day of March, 2022. 
/s/ Douglas W. Gilfillan 
Douglas W. Gilfillan 
Georgia Bar No. 294713 
dgilfillan@kilpatricktownsend.com 
 
 
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