Court filing
TRANSCRIPT of Proceedings as to Darrell Thomas, Andre Lee Gaines, Kahlil Gibran Green,… — USA v. Thomas et al (Dkt. 888)
Record facts
| Court | U.S. District Court for the Northern District of Georgia |
|---|---|
| Filed | 2024-02-01 |
U.S. District Court for the Northern District of Georgia · No. 1:20-cr-00296-JPB-CMS · Doc. 888 · 2024-02-01 · Docket on CourtListener
Summary
A transcript of the January 24, 2024 Jackson-Denno hearing in United States of America v. Teldrin Foster, No. 1:20-cr-00296, before District Judge J.P. Boulee of the U.S. District Court for the Northern District of Georgia, filed February 1, 2024 as Document 888. The hearing addresses motion number 494, which challenges the voluntariness of a recorded interview of Foster in December of 2020. Samir Kaushal for the government argues the motion lacks specific grounds, while Saraliene Durrett for Foster states that he was not Mirandized or told the statement was voluntary. An FBI special agent testifies that the December 10th, 2020 interview was voluntary and that Foster was not under arrest, and Government Exhibit Number 6, text messages arranging the meeting, is admitted. The court tells the defense it may move to renew the motion once it receives further material.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Full text
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TRANSCRIPT. OFFICIAL TRANSCRIPTS MAY ONLY BE FILED IN CM/ECF
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REFERENCING PAGE AND LINE NUMBER, ONLY AFTER THE COURT
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PROHIBITED FROM ATTACHING A FULL OR PARTIAL TRANSCRIPT TO ANY
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA,
)
)
)
-VS-
) DOCKET NO. 1:20-CR-00296
)
TELDRIN FOSTER,
)
)
DEFENDANT.
)
TRANSCRIPT OF JACKSON-DENNO PROCEEDINGS
BEFORE THE HONORABLE J.P. BOULEE
UNITED STATES DISTRICT JUDGE
JANUARY 24, 2024
APPEARANCES:
ON BEHALF OF THE GOVERNMENT:
TAL C. CHAIKEN, ESQ.
SAMIR KAUSHAL, ESQ.
BABASIJIBOMI MOORE, ESQ.
ASSISTANT UNITED STATES ATTORNEYS
ON BEHALF OF THE DEFENDANT:
LEIGH ANN WEBSTER, ESQ.
SARALIENE DURRETT, ESQ.
STENOGRAPHICALLY RECORDED BY:
PENNY PRITTY COUDRIET, RMR, CRR
OFFICIAL COURT REPORTER
UNITED STATES DISTRICT COURT
ATLANTA, GEORGIA
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I N D E X
WITNESS:
PAGE
1. JOSEPH STITES
DIRECT EXAMINATION.............................8
CROSS-EXAMINATION.............................22
- - - - -
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(PROCEEDINGS HELD IN OPEN COURT AT 10:18 AM, ATLANTA, GEORGIA)
THE COURT: The Court has set aside time for a
Jackson-Denno hearing in United States of America v. Teldrin
Foster, Case 1:20-CR-296.
Counsel, will you please state your appearances for
the record.
MR. KAUSHAL: Good morning. Samir Kaushal for the
United States. Seated with me is Tal Chaiken and Siji Moore,
attorneys for the United States as well. I will be handling
the hearing today, your Honor.
MS. DURRETT: Good morning, your Honor, Saraliene
Durrett on behalf of Mr. Foster. And seated at counsel table
with me is Leigh Ann Webster.
THE COURT: Good to see both of you as well.
We have a lot going on in this greater case today. I
know we've got the pretrial conference set for 1:00 with -- I
lost count of how many motions we have on our plate. I don't
know if anyone in the room even has kept count. But even
before we get to that, we've got this separate motion. I
think -- is it number 494? Are my notes correct on that?
MR. KAUSHAL: Yes, your Honor. That's correct.
THE COURT: So, Mr. Kaushal, do you want to put
forward any evidence about this statement?
MR. KAUSHAL: Yes, your Honor. Before I do so, I
wanted to set the stage a little bit. This was a recorded
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interview that is the subject of the motion. The interview
occurred in December of 2020. There's no dispute from the
motion that it was a non-custodial interview. And the only
thing it appears that the motion alleges is that the
government has the burden to prove that the statement was
voluntary. It doesn't state that the statement was, in fact,
involuntary, so there's no specific facts here alleging
involuntariness.
Just as a general matter, your Honor, the government
believes this is a deficient motion because it fails to give
specific grounds for suppression of the statement because
there's no reason provided here for a lack of voluntariness.
And without specific grounds, there isn't -- there's not
really a way that the defendant can at this point prove up --
prove up a suppression -- prove up that suppression is a
proper remedy at this time.
That said, the government has one witness here today.
It's Special Agent Joe Stites. I would be happy to discuss a
little bit more on the law if your Honor is interested in
hearing the standard for motion to suppress, but we're also
prepared to put the witness up and just handle this as swiftly
as possible because I don't believe there's any doubt that
this was a voluntary statement, your Honor.
THE COURT: Okay. I had some pause about whether or
not we even needed to have a hearing based on what was in the
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motion myself. I was inclined just in an abundance of caution
to perhaps do it. But since you're raising the issue at the
outset, let me hear from the defense as to why I should even
have this hearing based on what's a very thin motion. And
what's the suspected issue, if any?
MS. DURRETT: Well, your Honor, I think the
government always has the burden to show that the statement
was not involuntary if it's going to try to offer the
statement in trial. So I think the circumstances, as I guess
we'll hear from the agent who testifies, is that they called
him and told him that he needed to come down and talk to them.
And he came down and gave a statement to them. He was not
Mirandized. He was not told it was a voluntary statement. He
was not even told it was about him, that he was being
investigated.
So I think there are some questions here about
whether this was a voluntary statement, your Honor.
MR. KAUSHAL: Your Honor, none of that's in the
motion to start, which, again, under case law of this
district the defendant needs to in every critical respect be
sufficiently definite, specific, detailed and non-conjectural
to enable the Court to conclude that a substantial claim has
been presented. And what she's talking about now isn't --
it's not in her motion at all. And none of it seems to go
towards overall voluntariness at all. It just seems to
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indicate that he agreed to show up for an interview and spoke
to the agent.
That said -- and, your Honor, just as an aside, the
way the Eleventh Circuit, I believe, would look at this is,
yes, the government has the burden to -- the government has a
burden to show voluntariness; however, even in the scenario
where your Honor -- let's say your Honor did not have this
hearing and the defense comes back on appeal and says the
district court should have held this hearing, the test for
that, whether the district court committed an error and
whether there's a remedy there, is whether the appellant's
version of the events, if true -- here, the defendant's
version of the events -- if true, would require the conclusion
that his confession was involuntary.
So their version of events doesn't require that
conclusion. So if we were even looking at it from way down
the road, there's no way that what has been alleged can
actually result in a required hearing.
That said, your Honor, I understand your Honor's
abundance of caution. I just wanted to preface the
government's presentation with that comment because we could
sit here and I could put the agent up -- and the interview is
2 hours and 15 minutes, and we can play the interview for your
Honor. And we can all listen to the defendant talk to the
agent. You can hear them laugh. You can hear them discuss
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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the questions. You can hear them discuss the criminal conduct
for 2 hours and 15 minutes. I don't intend on doing that. I
do intend on admitting the recording. But I was hoping that
the defense could provide a more concrete reason for this
motion so that we could address it rather than have a -- have
a very fulsome hearing about something where there doesn't
appear to be an issue.
That's why I brought it up, your Honor. But I
understand your Honor's view on having this hearing in an
abundance of caution. And we are prepared to go forward.
THE COURT: All right. Yeah, I do have some pause.
But, you know, given what Ms. Durrett has now stated, you
know, I'm happy to just hear from the officer some testimony,
if you want to put him or her up. And then we'll see, you
know, what Ms. Durrett has, you know, on cross or what
argument there is, you know.
I obviously don't want anything coming in that
violates the defendant's constitutional rights. And so since
we're all already here, let's see what there is and we'll go
from there.
MR. KAUSHAL: Thank you, your Honor.
THE COURT: But I agree that this doesn't seem at
this point, unless there's some particular issue or statement
within the tape, that we need to all sit here and watch --
listen to the tape or watch the tape together.
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MR. KAUSHAL: Thank you, your Honor.
The government will call Special Agent Joe Stites to
the stand.
THE COURT: Good morning, sir.
THE WITNESS: Good morning.
_____________________________
JOSEPH STITES
a witness herein, being first duly sworn,
was examined and testified as follows:
____________________________
COURTROOM DEPUTY CLERK: Can you spell your last name
for me.
THE WITNESS: S-T-I-T-E-S.
DIRECT EXAMINATION
BY MR. KAUSHAL:
Q.
Good morning, Special Agent Stites. Can you tell us
where you're employment?
A.
Federal Bureau of Investigation.
Q.
How long have you been employed there?
A.
Nineteen years and six months.
Q.
And what do you do with the Federal Bureau of
Investigation?
A.
For the first 16-and-a-half years I was a case agent in
the Atlanta Field Office on the complex financial crimes
squad. And then for the last three years I've been a
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supervisory special agent in a headquarters unit that is
located here in Atlanta.
Q.
During your time as a special agent, have you conducted
custodial interviews of defendants?
A.
Yes.
Q.
And have you conducted non-custodial interviews of
defendants?
A.
Yes.
Q.
Did you conduct an interview of an individual named
Teldrin Foster?
A.
Yes.
Q.
And was that interview voluntary?
A.
Yes.
Q.
Was Mr. Foster under arrest at the time of that
interview?
A.
No.
Q.
Was there a warrant for Mr. Foster's arrest at the time
of the interview?
A.
No.
Q.
Were there any charges against the -- against Mr. Foster
at the time of the interview?
A.
No.
Q.
How did you set up the interview with Mr. Foster?
A.
On December 9th of 2020, we had a phone number for
Mr. Foster, and we reached out to Mr. Foster asking him if he
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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would be willing to come in and talk to us about our
investigation.
Q.
And how did he respond?
A.
He said he would be willing to do that and we would -- we
were looking to schedule it for the following day, which would
have been December 10th, 2020.
Q.
Did you ultimately meet with Mr. Foster on December 10th,
2020?
A.
Yes.
Q.
I'm going to show you what's been marked as Government
Exhibit Number 6. It should show up on the screen in front of
you, Agent Stites. Do you recognize this document, sir?
A.
Yes.
Q.
Is this the text messages that you exchanged with
Mr. Foster?
A.
Yes.
Q.
Pointing to the top row of this document there's a
December 10 entry. Is that your message to Mr. Foster?
A.
Yes.
Q.
And what is that message about? Excuse me, I'm sorry.
MR. KAUSHAL: The government moves to admit
Government Exhibit Number 6. My apologies.
MS. DURRETT: Your Honor, for the purposes of this
hearing, we have no objection to this.
THE COURT: It's admitted.
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MR. KAUSHAL: My apologies, your Honor.
THE WITNESS: Can you repeat the question? I'm
sorry.
BY MR. KAUSHAL:
Q.
What's that first message about?
A.
When we made the call on the previous day, I had told
Mr. Foster we would text him with an address or a location and
a time once we figured out where we would meet him at. And
this is -- this first message at 9:52 AM is just a message to
him, a text message telling him the time and location we would
like to meet him.
Q.
And how does he respond to your message?
A.
He said, okay.
Q.
And how long after your message does he respond?
A.
It looks like about ten minutes.
Q.
And did you later meet with Mr. Foster at the address
that you listed in your text message?
A.
Yes.
Q.
And did you meet with him at the time of -- around
1:00 p.m.?
A.
Yeah. Actually he was early.
Q.
And then that next message, the third row of this
document, is a message from you to Mr. Foster?
A.
Yes.
Q.
And that was when he was arriving at the building?
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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A.
Right.
Q.
When he arrived at the building, did you meet him
somewhere outside the building or inside the building?
A.
Yes. We had directed him to the side entrance of the
building because there was really nobody in the building
because of the pandemic, there was no workers in the building,
so we directed him to the side entrance.
And we had seen a car pull up, which we thought was him,
and that's when we sent the text message and we met him at
the -- at that door.
Q.
When you met him at that door, did you -- what did -- let
me withdraw that.
What did you do when you met him at the door?
A.
Introduced ourselves. My practice would have been
showing him my creds, introducing who I was. And then the
other agent, the IRS agent, Jeff Hale, would have shown his
creds and introduced him.
Q.
Did you search him at that time?
A.
No.
Q.
Did you take any items from him at that time?
A.
No.
Q.
Did you handcuff him at that time?
A.
No.
Q.
Did you tell him he was under arrest?
A.
No.
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Q.
Did you tell him he had to come inside the building with
you?
A.
We told him we would like to talk to him in a conference
room. So he came in the door and we directed him down to the
conference room that we were going to talk to him at.
Q.
Okay. So he followed you into the building?
A.
Yes.
Q.
All right. When you entered the building, I think you
mentioned that -- well, let me withdraw that. This was during
COVID, correct?
A.
Yes.
Q.
How many people were in the building if you know?
A.
I think besides the three of us, including Mr. Foster
there, there was maybe one other person in the building.
Q.
Was there any security gate at the building?
A.
The front entrance to the building was closed off. So
that side entrance there was no security or, you know, nothing
to scan anybody or do anything like that, no security guard.
Q.
So there was no security guard searching y'all when you
came in?
A.
No.
Q.
So nobody searched the defendant when he came in?
A.
No.
Q.
When you entered the building, where did you go?
A.
Just straight down the hall to a conference room/meeting
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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room that was in that facility.
MR. KAUSHAL: Your Honor, if I may approach the
witness?
THE COURT: Sure.
MR. KAUSHAL: Thank you.
BY MR. KAUSHAL:
Q.
Agent Stites, can you look at these photographs. Do you
recognize these?
A.
Yes.
Q.
Are these photos of that conference room that you just
mentioned?
A.
Yes.
MR. KAUSHAL: The government moves to admit
Government Exhibits 2 through 5 into evidence.
MS. DURRETT: Your Honor, I don't object for the
purposes of this hearing. I don't know what the relevance is.
They weren't taken at the time that Mr. Foster was there for
the interview. But for the purposes of this hearing, I don't
object.
THE COURT: They're admitted.
MR. KAUSHAL: Thank you, your Honor.
BY MR. KAUSHAL:
Q.
Agent Stites, I'm going to show you Government Exhibit 2
on the screen. Is this the front entrance to that conference
room?
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A.
Yes, it is.
Q.
And now I'm going to show you Government Exhibit 3. Is
this the door to the conference room?
A.
Yes.
Q.
I'm going to show you Government Exhibit Number 4. Can
you tell me what this is, sir?
A.
That's inside the conference room. That's the table
setup that was in the room.
Q.
And is this substantially similar to how it was set up at
the time you were there?
A.
Yes.
Q.
When was this -- these pictures taken, Government
Exhibits 2 through 5?
A.
They were just taken maybe a couple weeks ago.
Q.
And the interview occurred in December of 2020?
A.
Yes.
Q.
Now, looking at this picture, Government Exhibit
Number 4, when you entered the room, did y'all sit down?
A.
Yes.
Q.
And where were you seated?
A.
I would have been -- Mr. Foster would have been seated
against the wall there where the two chairs are located. And
then I would have been seated directly across from Mr. Foster.
And then Agent Hale would have been kind of on the end of the
table, so there would have been two of us on my side.
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Q.
So along -- so it was you and another agent, you said
Agent Hale?
A.
Yes.
Q.
And where is Agent Hale employed?
A.
IRS.
Q.
How were you dressed on that day?
A.
I believe we were just business casual. So I don't know
if we were in -- it was probably cooler out, so maybe longer
sleeves.
Q.
Would you wearing what you would wear to a normal
workday?
A.
Yes.
Q.
So you weren't wearing, for example --
MS. DURRETT: Objection, your Honor, leading.
BY MR. KAUSHAL:
Q.
Tell me whether you were wearing Kevlar armor?
A.
No.
Q.
Did you have SWAT gear on?
A.
No.
Q.
Did you have your firearm with you?
A.
Yes.
Q.
And where was that?
A.
On my hip.
Q.
Would it have been visible to somebody if you were
standing?
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A.
Yes.
Q.
What about if you were sitting down?
A.
Would my weapon be visible if I was sitting down?
Q.
Yes, at a table like this table in the photograph.
A.
I guess if you looked over the table you could
potentially, but I probably would have been seated below the
table.
Q.
Did you ever pull your firearm out during this interview?
A.
No.
Q.
And for Agent Hale, what was he wearing at the time?
A.
Similar clothing. And he would have had a firearm on his
hip as well.
Q.
Did he ever pull out his firearm during the interview?
A.
No.
Q.
I'm going to show you Government Exhibit Number 5. Is
this the other side of that same room that we were looking at
in Government Exhibit Number 4?
A.
Yes, it is.
Q.
I'm pointing to something in the back of -- kind of
behind those chairs. Do you see what I'm pointing to on the
screen, Agent Stites?
A.
Yes.
Q.
Can you tell me what that is?
A.
That was a shield that they had actually on top of the
table to kind of separate the two sides of the table and --
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due to COVID and the pandemic. That was how they had the room
set up so that if you were talking to individuals in the room,
you would have that shield in between you. And that was --
during the interview with Mr. Foster that shield was up, we
did not take it down.
Q.
What was the temperature like in the room?
A.
Comfortable.
Q.
And what was the lighting like?
A.
Lighting was good.
Q.
When you started the interview, did you record it?
A.
Yes.
Q.
I'm going to show you what's been marked as Government
Exhibit Number 1. Is this a recording of the interview?
A.
Yes, this is the recording.
MR. KAUSHAL: The government moves to admit
Government Exhibit 1 into evidence.
MS. DURRETT: No objection, your Honor.
THE COURT: It's admitted.
BY MR. KAUSHAL:
Q.
When you started the -- well, let me withdraw that.
This was recorded with an electronic device, correct,
sir?
A.
Yes.
Q.
Where was that recording device placed?
A.
On top of the table.
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Q.
So it was visible to the defendant on the table?
A.
Yes.
Q.
How long approximately did the interview last?
A.
I believe it was like 2 hours and 15 minutes or
18 minutes, something like that.
Q.
During that time did the defendant ask for a break?
A.
No.
Q.
Did you take any breaks?
A.
No.
Q.
If the defendant had asked for a break, would you have
taken a break?
A.
Absolutely.
Q.
Can you tell us about the defendant's demeanor during the
interview? Did he appear to be under the influence of drugs
or alcohol?
A.
No.
Q.
Did he appear to have a mental or physical disability?
A.
No.
Q.
Did he -- well, let me withdraw that.
More generally, can you tell us what the tone and tenor
of the interview was like?
A.
I would say Mr. Foster was pretty relaxed. We had a lot
of conversation back and forth. I think it was a pretty
interactive-type setting.
Q.
During that interview were any threats or promises made
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to the defendant?
A.
No.
Q.
Did the defendant ask for any food, water, coffee or
cigarettes, anything else?
A.
No.
Q.
Did the defendant have free access to a telephone?
A.
Yes. I mean, we did not take his phone from him, so he
would -- if he had a phone on him, he would have access to it.
Q.
What about access to a bathroom, would he have been able
to go to the bathroom if he asked to?
A.
Yes.
Q.
Did you make any promises about what the prosecutors
would do?
A.
No.
Q.
Did you make any promises about what the courts would do?
A.
No.
Q.
Were you ever untruthful with the defendant during the
interview?
A.
No.
Q.
Did you try and play any tricks to get him to confess
during the interview?
A.
No.
MR. KAUSHAL: Your Honor, if I can have one moment,
please.
THE COURT: Sure.
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(Pause in proceedings.)
BY MR. KAUSHAL:
Q.
Did the defendant ever ask for an attorney during the
interview?
A.
No.
Q.
Did the defendant ask if he was under arrest during the
interview?
A.
No.
MR. KAUSHAL: Nothing further. Thank you.
THE COURT: Any cross?
MR. KAUSHAL: If I can have a moment, your Honor, I
apologize.
THE COURT: Yes.
MR. KAUSHAL: Your Honor, if I can ask two more
questions.
BY MR. KAUSHAL:
Q.
After the interview was concluded, where did the
defendant go?
A.
We let him back out to the door that he came in, and he
went to his car and left.
Q.
So you didn't arrest him after the interview?
A.
No.
MR. KAUSHAL: Thank you. Thank you, your Honor.
CROSS-EXAMINATION
BY MS. DURRETT:
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Q.
Good morning. I'm Saraliene Durrett. I represent
Mr. Foster in this case.
So the government admitted an exhibit, I think it was
Exhibit Number 5, that showed your text messages. Do you
remember that exhibit?
A.
Yes.
Q.
But this isn't the entire phone communication that you
had with Mr. Foster, right?
A.
Right. There was a telephone call the day before, so on
the 9th.
Q.
And there was actually a telephone call later, right? So
you had a telephone call to set up the interview, you had the
interview, and then at a later time, probably sometime in
2021, you had another telephone call, correct?
A.
Yes.
MR. KAUSHAL: Objection. Irrelevant. The second
phone call is past the interview.
MS. DURRETT: Okay. Your Honor, if I can ask a few
questions about that.
THE COURT: Go ahead.
BY MS. DURRETT:
Q.
That second phone call you did in 2021, you recorded that
phone call, correct?
A.
Yeah. Well, I can explain.
Q.
Well, did you, sir?
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A.
Yes, we did record that.
Q.
So you recorded the phone call after this interview and
after Mr. Foster received the target letter, correct?
A.
Correct.
Q.
But the phone call to tell him, hey, come down to the IRS
building tomorrow, you didn't record that phone call, right?
A.
No.
Q.
And so you -- I understand you said that you had talked
with Mr. Foster on December 9th I think, the day before the
interview, but you had also spoken with his wife, correct?
A.
Yes.
Q.
And did you see her in person or did you see her on the
phone?
A.
We saw her in person.
Q.
So you had gone down and talked to his wife at their
house, is that correct?
A.
Yes.
Q.
And during Mr. Foster's interview you make sure to say,
you know, we've already talked to your wife about this, right?
A.
Yes.
Q.
Because she was going to pass a message about the need to
come and talk with you, right?
A.
Say that again.
Q.
Because she was supposed to pass the message to him about
the need to come and talk with you, right?
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A.
Yes. I think in that interview we had asked her if he
would be willing to talk to us. And if she saw him, tell him
we would like to talk to him.
Q.
And during that phone call that you had on December 9th,
you made it clear that you were with the FBI, correct?
A.
Yes.
Q.
And you made it clear that you were going to meet at the
IRS building, right?
A.
I wasn't sure on the 9th if we knew exactly what location
we would be meeting at. I don't think we knew that until the
10th.
Q.
Just as far as the timing of this call goes, there are a
bunch of other defendants in this case, but Darrell Thomas had
been indicted about maybe four months before this interview?
A.
That's about -- that's accurate.
Q.
And, like I said, you had already talked to his wife the
day before, and then you call him and tell him he needs to
come down and speak to you, correct?
A.
We told him we would like to talk to him.
Q.
Well, the expectation is if he didn't come down and speak
with you, there would be a warrant for his arrest, just like
Mr. Thomas, right?
A.
I wouldn't say that would be the expectation. There was
never an expectation from my part about that.
Q.
But we just don't have the ability to check that phone
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call because you didn't record it, right?
A.
Correct.
Q.
Okay. And you picked the location of the interview,
correct?
A.
It was somewhere close to where we believed he lived and
close to where his wife's house was at.
Q.
Now, you said that -- and we've seen -- the government
has admitted an exhibit here that's the recording of the
interview portion of your meeting that day, right?
A.
Yes.
Q.
But the recorder wasn't turned on from the moment he
walked to the building, right?
A.
No.
Q.
It started later when you got into this room, right?
A.
Correct.
Q.
So there was some conversation leading up to the room,
correct?
A.
Very limited introduction is about it. The recording --
I think the text message was at 12:51, and that's when we
would have got him from the door. We made the introductions.
And I believe the preamble on the recording was at 12:53. So
we're talking two minutes, two minutes from the time that he
had probably entered into the parking space to when we got to
the interview room.
Q.
And there's no video of the interview or anything like
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that?
A.
No video.
Q.
So if we were to listen to the recording of the
interview, that would be the entirety of what you guys said to
him that day as far as the interview goes?
A.
As far as the interview goes.
Q.
And we know that you're in the room with him, the door's
closed, right?
A.
I think at times it was open. There was nobody else in
the building, so I'm not -- at times the door might have been
opened, closed. It was not much of an issue because there was
nobody else in the building, so it wasn't needing privacy or
creating any noise for anybody else.
Q.
And let me ask you, I can't remember -- or I couldn't
really tell clearly from your discussion about Exhibit 4 as to
where Mr. Foster was sitting. Was it your testimony that he
was the one sitting back against the wall?
A.
Yes.
Q.
And the two of you were on the outside?
A.
I would have been directly across from him. And then
Agent Hale would have been kind of to the left of me.
Q.
So you were across from him and he -- I'm sorry?
A.
Agent Hale would have been kind of on the end of the
table.
Q.
But he was on the inside toward the wall, toward the
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corner, is that what you're saying?
A.
Mr. Foster?
Q.
Yes.
A.
No. He would have been right in the middle of the table,
not in the corner.
Q.
So the photographs you've provided have four chairs in
them, so it's a little confusing to me. I'll hold them up for
you, Exhibits 4 and 5. So it's hard for me to tell where
Mr. Foster was. Can you just explain that to us.
A.
In Exhibit 4, if you're looking at -- the chair to the
left would be more accurate of where Mr. Foster was sitting.
This chair right there (indicating).
Q.
And was anyone else on that side with him?
A.
On that side, no.
Q.
On his side?
A.
No.
Q.
So the two of you were on the other side, across from
him?
A.
Yes.
Q.
Okay. And you both had firearms on your hip that day?
A.
Yes.
Q.
Now, you're saying that the recorded interview was
everything that happened in the interview. Nowhere in that
interview do you tell him this is a voluntary interview,
right?
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A.
No, I don't think that was explicitly stated.
Q.
And nowhere in the interview do you say, you're free to
leave any time you want?
A.
No.
Q.
I'm sorry?
A.
No.
Q.
And I think we've established you didn't read him Miranda
rights, right?
A.
Correct.
Q.
So the government got up and said, well, did he ever ask
you for a lawyer, but you never told him he could get a
lawyer, right?
A.
Correct.
MS. DURRETT: Just one moment.
BY MS. DURRETT:
Q.
Oh, and I think you testified that he responded -- when
you were talking about your text messages, he responded very
quickly to you, right? You texted with him and he responded
quickly?
A.
On the first message?
Q.
Uh-huh (affirmative).
A.
I think I said it was ten minutes later, so I would say
that's pretty quick.
Q.
Uh-huh (affirmative).
And he came to see you a little bit early, he got to your
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office a little bit early, right?
A.
He was early.
Q.
Because he understood if he didn't come and meet with
you, that the answer to that would be a warrant for his
arrest?
MR. KAUSHAL: Objection. The agent doesn't know what
Mr. Foster understood.
MS. DURRETT: Well, the agent knows what he talked
with him about the day before the interview.
MR. KAUSHAL: It's asking for speculation about the
defendant.
THE COURT: Sustained.
MS. DURRETT: One moment, your Honor.
BY MS. DURRETT:
Q.
Again, on the interview, if we listen to that recording,
it's very clear when you introduce yourselves that you tell
him you're going to be asking him questions about Darrell
Thomas, correct?
A.
Correct.
Q.
And there's never a point in time where you say, you know
what, we're changing this interview from an interview about
Darrell Thomas to an interview about you, Mr. Foster, right?
A.
There was not a -- the interview was from the beginning
about him and Darrell Foster (sic).
Q.
But when you told him during the recording, you say,
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We're going to be asking you some questions about Darrell
Thomas today.
Right?
A.
Darrell Thomas and the PPP loan process.
Q.
Right. So there was never a time where you explicitly
said, guess what, this interview is actually about you and
your criminal activity, right?
A.
That was never specifically stated, but that's where the
conversation went very quickly.
Q.
Right. Because that was your intent the entire time?
A.
The intent was to talk about the investigation into
Darrell Thomas and the PPP loan fraud that was -- that
Mr. Foster was involved in.
Q.
Right. But when you introduced yourself to him, you told
him, we're going to be asking you questions about Darrell
Thomas today, you did not say, we're here to ask you questions
about your own involvement in this case --
A.
Correct.
Q.
-- correct?
A.
Right at the beginning, correct.
Q.
At the beginning of the interview, that's what you said?
A.
Yes.
Q.
And you never made any different statement about that?
A.
The conversation went quickly to the involvement with
Mr. Foster and Darrell Thomas.
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Q.
I know you've testified a couple of times before the
grand jury, I think three times. Have you testified in any
other hearings in this case?
A.
I don't believe so.
Q.
Just the three grand juries?
A.
I believe that's correct.
MS. DURRETT: One moment.
No further questions, your Honor. Thank you.
THE COURT: Any additional evidence from the
government?
MR. KAUSHAL: Nothing further, your Honor.
THE COURT: All right. Any evidence from the
defense?
MS. DURRETT: Your Honor, just to be clear, if there
is other testimony by Agent Stites in this case, we think
we're entitled to that as Jencks, and we would make that
request.
MS. CHAIKEN: We're not aware of any.
THE COURT: All right.
Your motion, so go ahead.
MS. DURRETT: Thank you, your Honor.
THE COURT: Sir, you can step down. Thank you.
Any redirect?
MR. KAUSHAL: No, your Honor, no, no. But we need
to -- we need to talk about the Jencks issue because there are
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more documents unrelated to this interview.
(Witness excused.)
THE COURT: Let's do this. I'm happy that now we
have in addition to our motion to suppress the Jencks issue,
but let's deal with the motion to suppress and then you can
have an additional pow-wow about the Jencks after we at least
deal with this first motion. Okay?
MR. KAUSHAL: Yes, your Honor.
MS. DURRETT: Thank you, your Honor.
Your Honor, I think the Court understands the
argument here is that this was an involuntary statement. When
the FBI calls you, identifies themselves, tells you to come
down to their office the next day to be interviewed, I think
there is an element of coercion there.
On top of that, the FBI had met with Mr. Foster's
wife the day before and told her to pass the message that he
needed to come down and meet with the FBI.
He responded as quickly as he could. He immediately
went down there, was early on his arrival because he was under
the impression that if he did not meet with them, that there
would be a warrant for his arrest. Mr. Thomas had already
been arrested, other people had been charged in the case, and
he felt that he needed to go meet with them, that was his only
choice.
It's clear from the agent's testimony -- I know the
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agent testified he thought it was a voluntary interview, but I
know the Court knows that the agent's subjective belief about
what the defendant felt is not relevant here. What's relevant
is the objective perception that's given when you have an FBI
agent and an IRS agent telling you to meet them at their
office with guns on their hips, come into our office and we
have some questions to ask you. I think none of us would feel
completely free to leave in that moment or completely free to
leave the interview or in the interview. And I think that's
the standard the Court has to look at here.
But I think the interesting part about the interview
is that it was the agent's intent the entire time to question
Mr. Foster in a way that would elicit incriminating
information. That's their intent, is to interview him, get
incriminating information from him. There's no doubt about
that.
But when they meet Mr. Foster, they don't read him
his Miranda rights, they don't tell him it's a voluntary
interview, and they tell him we're here to ask you questions
about Darrell Thomas. So I think there's a misleading nature
in the way that they treated him.
And he said, oh, we quickly moved from that to asking
about Mr. Foster. I understand but nowhere in time in the
interview does the agent say, hey, we're going to move now to
talk about your criminal activity, or, we're investigating you
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in this case. They presented as an investigation of Darrell
Thomas and we have some questions for you about Darrell
Thomas, and then they start asking him questions that they
think will elicit incriminating information. And I think that
under the circumstances the Court should find that the
statement was not voluntary because it was not a knowing
interview, he did not have enough information to understand
they were investigating him. They easily could have read him
his Miranda rights. They chose not to do that. They easily
could have told him it was voluntary --
(Clarification by the court reporter.)
MS. DURRETT: And they easily could have told him it
was voluntary, but they chose not to do that.
I think it's telling that when they wanted to have a
recording of something, like the interview or the later phone
call, they did record it. But when they called him to tell
him to come meet with them, they chose not to record that
phone call. So we don't have that for the Court's review, and
I think the Court should consider that in Mr. Foster's favor
when it's considered in this motion.
THE COURT: Thank you.
Mr. Kaushal.
MR. KAUSHAL: Your Honor, I think it's pretty clear
that this was a voluntary interview. The attempt to flip the
burden here is a little bizarre, that the defense is
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suggesting that their witness, their defendant who is here --
there are no allegations that this agent said anything
improper in terms of setting up the interview. There is no
allegation of that in the motion. There's no evidence of that
here today.
The government simply can't, you know -- we can't
disprove something that they have not presented any evidence
on. And the agent has explained that he did not coerce the
defendant, he didn't trick him, he didn't lie to him, he
didn't threaten him.
And under the standard of voluntariness, the
defendant showed up -- he got a phone call, he showed up the
next day, he entered the building, he answered questions for 2
hours and 15 minutes.
And if your Honor chooses to listen to the recording,
you will hear that very swiftly after the first couple
sentences the agent starts to ask questions -- or starts to
ask about the actions of this very defendant. And when he
says almost immediately -- the agent says something along the
lines of, this is about -- he says, it's about Darrell Thomas,
it's about these Paycheck Protection Plan or Program loans,
the defendant says, Yeah, I know what it's about.
And then the agent says, Okay, you know what your
involvement was, correct?
And then the defendant says, No.
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And then there's a long conversation, 2 hours and 15
minutes of background about the defendant and the defendant's
relationship with co-defendant Darrell Thomas.
Then it starts to transition into more explicit
discussion about this defendant's role in the scheme and this
defendant's actions in the scheme. And it is clear that the
questions are about the defendant.
There's no requirement that the government tell
somebody, I'm now going to ask you a question about you,
here's the question. The questions were obviously about him
the entire time.
The suggestion that this was not knowing I think --
first of all, that's not in their motion. They only
challenged voluntariness, not whether it was knowing. But we
do know, your Honor, that the defendant's demeanor was normal
and that he did not appear to be under the influence of drugs
or alcohol and he doesn't appear to have a mental or physical
disability. And if your Honor chooses to listen to the
recording, you will hear that there is a coherent,
knowledgeable back-and-forth between the defendant and the
agent about the facts of the investigation.
I think this is squarely a voluntary interview, your
Honor. The defendant was never arrested. He was never
charged with anything immediately after -- excuse me, he
wasn't charged immediately after that interview. He wasn't
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arrested immediately after that interview. And the defense
hasn't identified any specific facts showing coercion or any
other improper tactic by the agent, your Honor.
THE COURT: All right. Thank you.
I'm going to deny the motion. I don't think the
motion really went to whether Miranda was triggered, but to
the extent that was even touched on or argued, I don't think
Miranda was triggered based on what I've heard and what's been
presented.
And as far as voluntariness, you know, there's 100,
maybe a thousand cases out there about the various standards.
I think the US v. Jones, 32 F.3d, 1512 at 1516, Eleventh
Circuit from 1994, gives a fairly succinct list of some of the
things to consider. Sufficiently coercive conduct normally
involves:
One, subjecting the accused to an exhaustingly long
interrogation;
Two, the application of physical force or the threat
to do so;
Or, three, making him a promise that induces a
confession, isolated incidents of police deception, discussion
of realistic penalties for cooperative and non-cooperative
defendants are normally insufficient to preclude free choice.
The defense cites Colorado v. Connelly, 479 US 157 at
170, and writes in the motion, The focus of voluntariness is
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on whether the defendant was coerced by the government in
making this statement, quote, the relinquishment of the right
must have been voluntary in the sense that it was a product of
free and deliberate choice rather than intimidation, coercion
or deception.
You know, based on the evidence that's been presented
to me and the arguments made, I -- you know, first, it doesn't
look like this was an exhaustingly long interrogation. There
was no application of physical force or the threat to do so.
There was no promise to induce a confession. I don't think
there was any intimidation, coercion or deception. I just see
absolutely nothing, and the defense has pointed me to nothing;
therefore, the motion is denied. All right.
I will see you at 1:00 for our pretrial conference.
Thanks, everyone.
Sorry. We were going to have a discussion about any
Jencks issue.
MR. KAUSHAL: Yes, your Honor. I didn't want to make
it sound like there was a major dispute about this.
We have provided the grand jury transcripts for
Special Agent Stites. We've provided the 302 that describes
the interview that was recorded --
(Clarification by the court reporter.)
MR. KAUSHAL: The interview that was recorded,
there's a 302 memorializing the fact that there was a recorded
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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interview.
The thing that I wanted to just clarify for the
defense is that there is additional Jencks about the substance
of this investigation from this agent that we will provide but
we have not yet provided, but it is not about this particular
interview, the subject of his testimony here today.
And under Jencks the requirement is that the witness'
statements about the subject matter of the testimony at that
time is what's going to be disclosed, and that's what we've
provided, your Honor.
We intend on providing Jencks hopefully a week in
advance of trial, which is before what is required under the
law. And we've already provided some form of Jencks. We're
in the process of producing Jencks on a rolling basis. And we
intend to be as completely finished with that production
process a week before trial.
That's -- I just wanted to clarify that because I
think defense counsel's question first was, Have you testified
in any other hearing?
And the answer to that, your Honor, I believe, was
no. And then, you know, that kind of triggered in my head
that there is something else that we will be producing to the
defendant but it is not pertinent to this particular hearing,
your Honor.
THE COURT: All right.
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MS. DURRETT: Your Honor, I'll just say if it's
related to our -- if it's related to our client or the
investigation into our client, the things that they discussed,
we do think it's relevant and we do think it should be
produced early because it goes to the credibility of the
agent. If we're going to be questioning him about something,
I think it goes to that.
THE COURT: Okay. Well, you know, I don't know that
I can parse out all of that right now, but when you get it, if
you think we need to revisit this motion, please move to renew
and we'll go back and relook at it.
MS. DURRETT: Thank you, your Honor.
THE COURT: Thanks, everyone.
(PROCEEDINGS REPORTED WERE CONCLUDED AT 11:31 AM.)
___________________________
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C E R T I F I C A T E
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
I do hereby certify that the foregoing pages are a true
and correct transcript of the proceedings taken down by me in
the case aforesaid.
This the 30th Day of January, 2024.
________________________________
PENNY PRITTY COUDRIET, RMR, CRR
OFFICIAL COURT REPORTER
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