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TRANSCRIPT of Proceedings as to Darrell Thomas, Andre Lee Gaines, Kahlil Gibran Green,… — USA v. Thomas et al (Dkt. 891)
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| Court | U.S. District Court for the Northern District of Georgia |
|---|---|
| Filed | 2024-02-02 |
U.S. District Court for the Northern District of Georgia · No. 1:20-cr-00296-JPB-CMS · Doc. 891 · 2024-02-02 · Docket on CourtListener
Summary
A transcript of the November 2, 2021 change of plea hearing for defendant Charles Petty before District Judge J.P. Boulee of the U.S. District Court for the Northern District of Georgia in No. 1:20-cr-00296-JPB, filed February 2, 2024 as Document 891. AUSA Nathan Kitchens verifies the signatures on the Guilty Plea and Plea Agreement, under which Petty pleads guilty to Count 9 of the second superseding indictment, and Kenneth W. Sheppard appears for Petty. Kitchens summarizes stipulations including a 14-level loss adjustment under Section 2B1.1(b)(1)(H) and a three-level adjustment under Section 3B1.1, along with cooperation terms. Petty agrees to pay $830,417 in restitution, $805,504.49 to Cross River Bank and $24,912.51 to the Small Business Administration. The court remands the defendant to the US Marshal Service.
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
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
THE FOLLOWING IS THE PDF OF AN OFFICIAL
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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-JPB
)
CHARLES PETTY,
)
)
DEFENDANT.
)
TRANSCRIPT OF CHANGE OF PLEA PROCEEDINGS
BEFORE THE HONORABLE J.P. BOULEE
UNITED STATES DISTRICT JUDGE
NOVEMBER 2, 2021
APPEARANCES:
ON BEHALF OF THE GOVERNMENT:
NATHAN KITCHENS, ESQ.
ASSISTANT UNITED STATES ATTORNEYS
ON BEHALF OF THE DEFENDANT:
KENNETH W. SHEPPARD, ESQ.
STENOGRAPHICALLY RECORDED BY:
PENNY PRITTY COUDRIET, RMR, CRR
OFFICIAL COURT REPORTER
UNITED STATES DISTRICT COURT
ATLANTA, GEORGIA
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(PROCEEDINGS HELD IN OPEN COURT AT 2:36 PM., ATLANTA, GEORGIA)
COURTROOM DEPUTY CLERK: This is case 20-CR-296,
USA v. Charles Petty.
MR. KITCHENS: Good afternoon, your Honor. AUSA
Nathan Kitchens on behalf of the government. And I'm here
with Special Agent Joe Stites and Stefan Bublitz.
THE COURT: Good to see all of you.
MR. SHEPPARD: Good afternoon, your Honor. Kenneth
Sheppard on behalf of Charles Petty.
THE COURT: Good to see you.
And good to see you as well, Mr. Petty.
Mr. Petty, if you could please stand so that
Ms. Walker could swear you in.
COURTROOM DEPUTY CLERK: Mr. Petty, can you raise
your right hand for me.
(The Defendant was duly sworn)
COURTROOM DEPUTY CLERK: Please be seated and state
your name for the record.
THE DEFENDANT: Charles Petty.
COURTROOM DEPUTY CLERK: Thank you so much.
THE COURT: Thank you, Ms. Walker.
Mr. Kitchens, if you could please verify the
signatures on the plea agreement.
MR. KITCHENS: Yes, your Honor.
Mr. Petty, I'm showing you a document that's titled
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"Guilty Plea and Plea Agreement." Have you had an opportunity
to review that document?
THE DEFENDANT: I have.
MR. KITCHENS: And is this your signature at the top
right on page 17?
THE DEFENDANT: It is.
MR. KITCHENS: Is this also your signature on page 18
of the document?
THE DEFENDANT: It is.
MR. KITCHENS: And, Mr. Sheppard, is this your
signature at the top left of page 17?
THE DEFENDANT: Yes, it is.
MR. KITCHENS: And is this your signature on page 19?
MR. SHEPPARD: Yes, it is.
MR. KITCHENS: On page 17 there are also the
signatures of the government.
And I tender the "Guilty Plea and Plea Agreement" to
the Court.
THE COURT: Thank you.
Mr. Petty, before I can accept your plea of guilty, I
need to go over several matters with you. As we go through
this process, if anything I state is unclear, let me know and
I will repeat or rephrase it for you. It's important that you
understand not only my statements to you but also my
questions. You need to understand my questions so that you
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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can answer them truthfully. A failure to truthfully answer
any question could result in additional charges being brought
against you.
Also, as I ask questions, please answer the questions
out loud. This will allow the court reporter to take down
your responses so that we can have an accurate record of these
proceedings.
Do you understand, sir?
THE DEFENDANT: I do.
THE COURT: How old are you, sir?
THE DEFENDANT: Forty-nine.
THE COURT: And how far did you go in school?
THE DEFENDANT: Second -- graduate education.
THE COURT: In the last 24 hours have you taken any
drugs, medicine, pills or had any alcoholic beverages to
drink?
THE DEFENDANT: I have not.
THE COURT: Have you been treated recently for any
mental illness or addiction to alcohol or drugs?
THE DEFENDANT: I have not.
THE COURT: And, Mr. Sheppard, are you aware of any
issues regarding your client's competence to enter a plea this
afternoon?
MR. SHEPPARD: I am not, your Honor.
THE COURT: I will now review with you the rights
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that you're guaranteed under the Constitution and laws of the
United States. I want to be sure that you understand your
rights and that by entering this plea of guilty, you're giving
up many of these rights.
Do you understand that under the Constitution and
laws of the United States you have the right to plead not
guilty and have a trial by jury?
THE DEFENDANT: I do.
THE COURT: Do you understand that you're entitled to
a speedy and public trial on the charges against you?
THE DEFENDANT: I do.
THE COURT: Do you understand that you have the right
to be represented by an attorney throughout all proceedings
and that if you cannot afford an attorney, one will be
appointed to represent you at no cost to you?
THE DEFENDANT: I understand.
THE COURT: Do you understand that if you pled not
guilty and went to trial, at the trial you would be presumed
to be innocent and the government would have to overcome that
presumption and prove you guilty beyond a reasonable doubt?
THE DEFENDANT: I understand.
THE COURT: Do you understand that at a trial you
would not have to prove that you're innocent because the
burden would be on the government to prove you're guilty
beyond a reasonable doubt?
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THE DEFENDANT: I do.
THE COURT: Do you understand that at a trial you
would have the right to subpoena witnesses which would be an
order from the Court compelling their appearance at trial to
testify on your behalf?
THE DEFENDANT: I do.
THE COURT: Do you understand that during a trial
witnesses for the government must come to court and testify in
your presence?
THE DEFENDANT: I do.
THE COURT: Do you understand that your attorney
would have the opportunity to cross-examine the witnesses for
the government --
THE DEFENDANT: I understand.
THE COURT: -- object to evidence offered by the
government and offer evidence on your behalf?
THE DEFENDANT: I do.
THE COURT: Do you understand that at a trial, while
you would have the right to testify if you chose to do so, you
also would have the right not to testify?
THE DEFENDANT: I understand.
THE COURT: Do you understand that if you chose not
to testify or put on any evidence, those facts could not be
used against you?
THE DEFENDANT: I do.
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THE COURT: Do you understand that in order to
convict you at a trial the jury would have to reach a
unanimous verdict that you were guilty of the crime with which
you're charged?
THE DEFENDANT: I do.
THE COURT: If I accept your plea of guilty, you will
not have a trial and the jury will not decide your guilt, but
I will find that you're guilty of the charge based on your
admission that you're guilty. Do you understand?
THE DEFENDANT: I understand.
THE COURT: Are you willing to give up your right to
a trial and proceed with a plea of guilty at this time?
THE DEFENDANT: Yes, I am.
THE COURT: You earlier verified your signature on
the plea agreement that you entered into with the government.
In a moment I will ask the Assistant US Attorney to review the
terms of the plea agreement other than the factual basis for
the plea and the potential penalties which we will discuss a
bit later in this proceeding.
After that I will be asking you whether the agreement
as presented accurately reflects your understanding of the
agreement that you reached with the government.
Mr. Kitchens.
MR. KITCHENS: Thank you, your Honor.
The plea agreement provides that Mr. Petty will plead
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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guilty to Count 9 of the second superseding indictment. The
government is agreeing in turn to dismiss the remaining counts
in that indictment against Mr. Petty and agrees not to bring
further charges related to the charges to which he's pleading
guilty.
The parties also agree to a series of guideline
stipulations.
First, the parties agree that the base offense level
is in Section 2B1.1.
Second, the parties agree that a 14-level adjustment
should apply for loss under Section 2B1.1(b)(1)(H). And
that's for an amount of loss exceeding $550,000 but less than
$1.5 million.
The parties also agree that a three-level adjustment
should apply under Section 3B1.1 for the defendant serving as
a manager or supervisor and for the criminal activity
involving five or more participants.
And, lastly, the parties are agreeing that a
two-level adjustment under Section 3C1.1 should not apply for
an offense involving obstruction of justice.
The government recommends an adjustment for the
acceptance of responsibility to the maximum extent authorized
by the guidelines with the caveats that are listed in
paragraph 17 of the plea agreement.
The parties further recognize that each party
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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reserves the right to make recommendations for sentencing and
that there are no agreements on the sentencing guidelines
other than those expressly mentioned in the plea agreement.
The government is also reserving the right to modify
its sentencing recommendation with any additional information
it gains before sentencing.
There are also agreements covering the defendant's
cooperation in this matter that specifically provides that the
defendant agrees to cooperate truthfully and completely with
the government, including producing all records requested,
making himself available for interviews, responding truthfully
to all government inquiries, and at the government's request
to testify at trial or any other proceeding.
The defendant is also consenting to direct contact
with the government outside presence of his counsel for
purposes of cooperation.
The government in turn is agreeing to abide by
Section 1B1.8 of the sentencing guidelines in which it will
agree not to use information previously unknown to it for
purposes of making any arguments under the sentencing
guidelines.
Now, the caveat that's provided in the plea agreement
for the defendant's cooperation is that if he is not truthful
and candid in his cooperation, that he may be prosecuted for
perjury, false statements, obstruction of justice. And all
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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information that Mr. Petty provided may be used against him in
a future proceeding.
There is a conditional Section 5K and Rule 35 motion
in which the government is agreeing to inform the Court about
the full extent of the defendant's cooperation.
If the government determines that that cooperation
qualifies as substantial assistance, it will file a motion for
downward departure under Section 5K if that occurs before
sentencing, or under Rule 35 it will file a motion for
reduction of sentence if that cooperation occurs after
sentencing.
The defendant understands that the government alone
determines if the information that the defendant has provided
constitutes substantial assistance.
The defendant also understands that the government
may recommend a specific sentence if it files a motion or
requests for downward departure, but the ultimate decision on
the sentence rests at all times, of course, with the Court.
The government in the agreement is agreeing to make
a low-end sentencing recommendation, subject again to the
caveats that are listed in paragraph 17 of the agreement.
The government further agrees to make no specific
recommendation as to the amount of any fine to be imposed.
The defendant is agreeing to pay $830,417 in
restitution to the victims of the offense. And specifically
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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that's as listed in the plea agreement $805,504.49 to Cross
River Bank, and $24,912.51 to the Small Business
Administration.
The defendant waives his interest in property and
agrees to the forfeiture procedure that is outlined in
paragraphs 27 through 28 of the agreement.
And the defendant also agrees to pay a special
assessment of $100 as well as any fine imposed by the Court.
The defendant fully agrees to cooperate fully in the
collection of any restitution or fine. And the terms for that
financial cooperation are laid out in paragraphs 31 through 34
of the plea agreement.
The defendant understands that the recommendations in
the agreement are not binding on the Court.
The defendant is also agreeing to the maximum extent
permitted by federal law to waive his right to appeal his
conviction and sentence and the right to collaterally attack
his conviction and sentence in any post-conviction proceeding
with three limited exceptions.
First, if there's any upward departure or variance
above the guidelines range as calculated by the Court, the
defendant may appeal in that instance.
Second, if there's any claim that his counsel
rendered ineffective assistance, the defendant also may make
that claim on appeal.
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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And, lastly, there's no limit to the government's
right to appeal. And if the United States does a direct
appeal of the sentence imposed in this case, the defendant may
in that instance do a cross-appeal of his sentence.
The parties are agreeing to the standard FOIA and
Privacy Act waiver.
And the parties recognize that there are no other
agreements between the parties other than that specified in
the plea agreement.
THE COURT: Thank you, Mr. Kitchens.
Mr. Petty, does that accurately reflect the agreement
that you believe that you've reached with the government?
MR. SHEPPARD: If I may, your Honor, there's only one
additional. I believe the restitution is actually joint and
several with the other co-defendants. And that the entities
who suffered the loss cannot double, triple or quadruple
recover from each individual, that if some of the money was
recovered or one of the other co-defendants pays back the
money they receive, then that would be a credit for all people
who are joint and several, like a civil lawsuit.
MR. KITCHENS: I do agree, your Honor -- and I think
this is not specified in the plea agreement itself. I do
agree, of course, that for the restitution that would be
imposed, of course, if there are other defendants that are
liable for the specific loss caused here, which we believe
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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there are, that that restitution would be jointly and
severally, you know, liable for those co-defendants.
THE COURT: All right. I think my question, though,
remains the same because I'm asking him about the agreement he
believes he's reached with the government. And the agreement
as reached with the government is the document I have in front
of me. So I'm going to ask him that question.
Mr. Petty?
THE DEFENDANT: Yes, subject to my attorney's
statement.
THE COURT: Okay. Well, I don't want to be a
stickler on this point but --
MR. SHEPPARD: We are --
THE COURT: -- your attorney may have a caveat to it
but I think -- and what he's explained is the way the law I
believe would work, and the AUSA has agreed with that
statement of the law, but all I'm asking about right now is
the document that we have in front of us --
THE DEFENDANT: Understood, your Honor.
THE COURT: -- the agreement.
THE DEFENDANT: Understood. Sorry. I agree.
Understood.
THE COURT: All right. Let me just ask you again so
the record is clear.
Mr. Petty, does that accurately reflect the agreement
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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that you believe you've reached with the government?
THE DEFENDANT: It does.
THE COURT: And you've also heard your attorney make
an argument about joint and several liability as to that
restitution amount, correct?
THE DEFENDANT: Correct.
THE COURT: And it's your understanding that that's
how the law will be applied here?
THE DEFENDANT: Correct. Understood.
THE COURT: You heard the prosecutor agree with that
understanding of the law, correct?
THE DEFENDANT: Correct.
THE COURT: Do you understand that any provisions in
the agreement regarding recommendations to be made by the
government are not binding on the Court. In other words, if I
choose not to follow some recommendation that the government
makes, do you understand that you will still be bound by your
plea of guilty and would not be entitled to withdraw the plea
based on the Court not following the recommendation?
THE DEFENDANT: Understood.
THE COURT: Is this the only agreement that you've
entered into with the government?
THE DEFENDANT: Yes.
THE COURT: Other than the terms of this agreement
has any promise of any kind been made to you to cause you to
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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plead guilty?
THE DEFENDANT: No.
THE COURT: Per the terms of the agreement the United
States Attorney for the Northern District of Georgia has
agreed not to bring any additional charges related to the
offense to which you're pleading guilty.
Other than those terms, has anyone threatened or
forced you to plead guilty or told you if you do not plead
guilty further charges will be brought against you or other
adverse action taken against you?
THE DEFENDANT: No, your Honor.
THE COURT: Mr. Sheppard, are you aware of any plea
agreement or promise being made to your client other than
what's been discussed here in court?
MR. SHEPPARD: I am not, your Honor.
THE COURT: Thank you.
In a moment I will ask the AUSA to state the elements
of the offense to which you are pleading guilty. The elements
of the offense are those matters that the government must
prove beyond a reasonable doubt in order to convict you of the
charge.
Mr. Kitchens.
MR. KITCHENS: Thank you, your Honor.
Mr. Petty is pleading guilty to Count 9 of the second
superseding indictment, which charges conspiracy to commit
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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bank and wire fraud in violation of Title 18, United States
Code, Section 1349.
The elements of conspiracy to commit bank and wire
fraud are as follows:
First, that two or more persons in some way or manner
agreed to try to accomplish a common and unlawful plan to
commit bank and wire fraud as charged in the indictment.
And, second, that the defendant knew the unlawful
purpose of the plan and willfully joined in it.
For those underlying objects, the first one is bank
fraud, and the elements of the bank fraud are as follows:
First, that the defendant knowingly carried out or
attempted to carry out a scheme to defraud a financial
institution or to get money, assets or other property from a
financial institution by using false or fraudulent pretenses,
representations or promises about a material fact.
Second, that the false or fraudulent pretenses,
representations or promises were material.
Third, that the defendant intended to defraud the
financial institution.
And, lastly, that the financial institution was
federally insured.
For that second object of the conspiracy, wire fraud,
the elements of that offense are as follows:
First, that the defendant knowingly devised or
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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participated in a scheme to defraud someone by using false or
fraudulent pretenses, representations or promises.
Second, that those false pretenses, representations
or promises were about a material fact.
Third, that the defendant acted with the intent to
defraud.
And, lastly, that the defendant transmitted or caused
to be transmitted by wire some communication in interstate or
foreign commerce to help carry out the scheme to fraud.
THE COURT: Thank you.
Mr. Petty, do you understand that those are the
elements that the government would have to prove beyond a
reasonable doubt in order to convict you of the charge?
THE DEFENDANT: I do.
THE COURT: In a moment I will ask the Assistant US
Attorney to summarize the evidence that the government would
expect to present at trial to prove each of these elements.
In other words, these are what the government contend are the
facts of the case.
It's necessary for the government to state these
facts because I must determine whether there's a factual basis
for you to enter this plea of guilty.
After this statement I will ask you whether you
disagree with any of the facts as stated by the prosecutor.
If you do, tell me and we will discuss those facts at that
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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time.
Mr. Kitchens.
MR. KITCHENS: Thank you, your Honor.
Had this case proceeded to trial, the government
would have proven beyond a reasonable doubt that the Paycheck
Protection Program, also known as the PPP, was authorized as
part of the Coronavirus Aid, Relief and Economic Security Act
to provide forgivable loans to eligible small businesses.
Under the PPP, small businesses could apply for loans
that would be used and -- would have to be used for payroll
expenses, interest on mortgage, rent or utilities.
The amount of a PPP loan that a business could
receive is generally 2.5 times the business's average monthly
payroll cost.
While the Small Business Administration oversaw the
PPP, individual loans were issued by private approved lenders,
including Cross River Bank, which is a federally-insured
financial institution.
The PPP application form asks the applicant to
provide information related to their loan application,
including the amount of the business's average monthly
payroll, the number of the business's employees and the
purpose of the loan with options that the applicant could
select for payroll, lease or mortgage interest, utilities or
other. The lender then uses this information to calculate the
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amount of the loan that the business was eligible to receive
under the PPP.
The application form also included certain
representations and certifications, including certifications
as to the accuracy of the information included in the
application itself and in any supporting documents as well as
a certification that the funds would be used to retain workers
and maintain payroll or to make mortgage interest payments,
lease payments and utility payments.
Defendant Charles Petty conspired with Darrell
Thomas, Denesseria Slaton, Bern Benoit and others to obtain --
to submit a fraudulent PPP loan application for Transportation
Management Services, which Mr. Benoit owns.
On or about May 20th, 2020, Transportation Management
electronically submitted a PPP loan application to Bluevine
Capital, LLC, a company that processes PPP loan applications
on behalf of lenders that's based in California.
In its PPP loan application Transportation Management
represented that it had 66 employees and an average monthly
payroll of $332,000 and that it would use the funds obtained
from the loan for payroll, lease payments, mortgage interest
and utilities. In reality, Transportation Management had no
employees and no average monthly payroll.
To support its payroll figures, Transportation
Management submitted with its PPP loan application false IRS
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Form 941s, which are an employer's quarterly federal tax
return for each quarter of 2019. And IRS records would prove
at trial that Transportation Management, in fact, did not file
any IRS Form 941s for any quarter of 2019.
Transportation Management also included with its PPP
loan application a fraudulent bank statement from JPMorgan
Chase. It purported to show a beginning balance of $674,000
and an ending balance of nearly $800,000 in February of 2020.
In fact, however, JPMorgan Chase records would show
that Transportation Management did not open its bank account
until April 2020, so there was no bank statement that existed
for February 2020.
Mr. Petty -- the evidence would show that Mr. Petty
facilitated Transportation Management's fraudulent PPP loan by
directing Mr. Benoit, both directly and indirectly, regarding
Transportation Management's loan application and the money
laundering of the proceeds.
The evidence would show based on communications and
text messages that Mr. Petty directed Mr. Benoit to provide
information and documentation necessary for the submission of
the loan and provided that information and documentation to
other individuals acting on Darrell Thomas's behalf knowing
that Transportation Management did not have any employees and
that Darrell Thomas would use that information and
documentation to submit a fraudulent PPP loan application on
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behalf of Transportation Management.
Based on the untrue statements in Transportation
Management's PPP application, Bluevine processed
Transportation Management's loan and submitted it to Cross
River Bank for funding.
On or about May 21st, 2020, the PPP loan of $830,417
was deposited into Transportation Management's JPMorgan Chase
bank account.
After receiving those PPP loan proceeds, Mr. Petty
provided instructions to Mr. Benoit through another individual
as to how the PPP loan proceeds would be disbursed in a manner
designed to further conceal the fraud.
THE COURT: Thank you.
Mr. Petty, do you disagree with any of the facts as
stated by the Assistant US Attorney?
THE DEFENDANT: I do not.
THE COURT: I'm now going to go over those elements
with you one by one and ask you whether or not you admit them.
First off, do you admit that two or more persons in
some way or manner agreed to try to accomplish a common and
unlawful plan to commit bank fraud and wire fraud as charged
in the indictment?
THE DEFENDANT: I do.
THE COURT: And do you admit that you knew the
unlawful purpose of the plan and willfully joined in it?
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THE DEFENDANT: I do.
THE COURT: Do you admit that you knowingly carried
out or attempted to carry out a scheme to defraud a financial
institution or to get money, assets or other property from a
financial institution by using false or fraudulent pretenses,
representations or promises about a material fact?
THE DEFENDANT: I do.
THE COURT: Do you admit that the false or fraudulent
pretenses, representations or promises were material?
THE DEFENDANT: I do.
THE COURT: Do you admit that you intended to defraud
the financial institution?
THE DEFENDANT: I do.
THE COURT: Do you admit that the financial
institution was federally insured?
THE DEFENDANT: I do.
THE COURT: Do you admit that you knowingly devised
or participated in a scheme to defraud someone by using false
or fraudulent pretenses, representations or promises?
THE DEFENDANT: I do.
THE COURT: Do you admit that the false pretenses,
representations or promises were about a material fact?
THE DEFENDANT: I do.
THE COURT: Do you admit you acted with the intent to
defraud?
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THE DEFENDANT: I do.
THE COURT: And do you admit that you transmitted or
caused to be transmitted by wire some communication in
interstate commerce to help carry out the scheme to defraud?
THE DEFENDANT: I do.
THE COURT: Mr. Kitchens, if you could please state
the potential penalties that the defendant faces for the
charge, including the maximum penalties and any mandatory
minimums.
MR. KITCHENS: Yes, your Honor.
For Count 9 of the second superseding indictment the
maximum term of imprisonment is 30 years.
There is no mandatory minimum for this offense.
The term of supervised release is zero to five years.
The maximum fine that may be imposed is $1 million or
twice the amount of gain or twice the loss, whichever is
greatest, which is due and payable immediately.
And also full restitution is owed, as well as a
mandatory special assessment of $100 due and payable
immediately and any forfeiture of proceeds from the commission
of the offense.
THE COURT: Thank you.
Mr. Petty, do you understand that those are the
possible penalties that you could receive in this case?
THE DEFENDANT: I do.
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THE COURT: Do you understand it's not possible for
me to state to you today what your sentence will be?
THE DEFENDANT: I do.
THE COURT: Do you understand that in deciding your
sentence I will consider sentencing guidelines and that the
guidelines are advisory, which means that I have the
discretion to impose a sentence that is either within the
guidelines, greater than the guidelines or less than the
guidelines?
THE DEFENDANT: I understand.
THE COURT: In the plea agreement that was reviewed
with you a few moments ago you waived certain appeal rights.
I want to be sure that you understand the meaning of that
waiver.
Let me first state to you the rights you would have
had if you did not waive or give up those rights.
The defendant in every criminal case has the right to
file a direct appeal immediately after his conviction and
sentence. In that appeal you may raise any issues concerning
the handling of your case in this court that you wish to
raise. Those issues would be reviewed by the Court of
Appeals. If errors were found, the Court of Appeals could
order that action be taken to correct those errors.
Besides the right to a direct appeal, you would have
an additional opportunity to have your case reviewed by filing
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a writ of habeas corpus, pursuant to 28 USC, Section 2255.
That's another opportunity for you to challenge the legality
of your conviction and/or your sentence. These are the rights
that every defendant has unless he waives or gives them up.
In your plea agreement you have, for the most part,
given up these rights. Your right of review will be limited
to three specific circumstances.
First, if after calculating the sentencing guidelines
that apply in your case, I then impose a sentence that is
greater than the guidelines, you would have a right to file a
direct appeal challenging that sentence.
Second, if the government files an appeal for any
reason, you have a right to file a cross-appeal raising any
issues that you wish to raise.
Finally, you always reserve the right to challenge
constitutionally ineffective assistance of counsel.
But aside from these three very narrow circumstances,
you will have no right of appeal and will be essentially bound
by my decision. Do you understand that, sir?
THE DEFENDANT: I do.
THE COURT: Mr. Sheppard, have you reviewed the
rights with your client such that you're comfortable he
understands both his rights and the waiver of those rights?
MR. SHEPPARD: I have, your Honor.
THE COURT: Thank you.
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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Mr. Petty, do you understand that parole has been
abolished in the federal system and if you are sentenced to
prison you will not be released early on parole?
THE DEFENDANT: I understand.
THE COURT: Do you understand that you may be
sentenced to a term supervised release that will follow any
term of imprisonment and will include rules governing your
conduct that if you violate could result in more time in
prison?
THE DEFENDANT: Understood.
THE COURT: Do you understand that you may be ordered
to pay restitution to any victim of the offense?
THE DEFENDANT: I understand.
THE COURT: Are you a citizen of the United States
Government, sir?
THE DEFENDANT: I am.
THE COURT: Do you understand that as part of your
sentence certain property that's been identified by the
government may be forfeited by you to the government?
THE DEFENDANT: I understand.
THE COURT: Is there anything we've talked about
today that you do not feel you fully understand?
THE DEFENDANT: There is not.
THE COURT: Have you had a sufficient opportunity to
talk about your case with your attorney and have your attorney
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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answer any questions that you have before entering your plea?
THE DEFENDANT: I have.
THE COURT: Are you satisfied with the representation
that your attorney has provided to you?
THE DEFENDANT: I am.
THE COURT: How do you plead to Count 9 of the
indictment?
THE DEFENDANT: Guilty.
THE COURT: Mr. Sheppard, do you feel that you've had
a sufficient opportunity to investigate your client's case and
advise him concerning the entry of this plea?
MR. SHEPPARD: I do, your Honor.
THE COURT: Are you aware of any reason I should not
accept the plea?
MR. SHEPPARD: I do not.
THE COURT: Is there anything else you want me to
address with your client on the record at this time?
MR. SHEPPARD: Not at this time.
THE COURT: Mr. Kitchens, is there anything further
that the government wishes the Court to address at this time?
MR. KITCHENS: No, your Honor.
THE COURT: I find that the defendant understands the
charge and the consequences of the plea. I've observed the
defendant during this proceeding and he does not appear to be
under the influence of any substance that might affect his
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
28
judgment or actions in any manner.
The Court finds the plea has a factual basis and is
free of any coercive influence of any kind.
I find that there have been no promises made to the
defendant except those set out in the plea agreement.
I find that the defendant is competent to understand
these proceedings and enter a knowingly plea of guilty.
I find that the plea is freely and voluntarily
entered.
It's, therefore, ordered that the plea of guilty of
the defendant to Count 9 of the indictment is accepted and
entered.
Mr. Petty, you are hereby adjudged guilty of the
charge contained in Count 9 of the indictment.
I will now be referring your case to a probation
officer who will prepare a presentence report. Before I
receive the report, sir, you and your attorney will receive a
copy of the report and will have an opportunity to object to
any findings in the report.
At your sentencing hearing I will hear from the
government and any witnesses it wishes to present and from
you, your attorney and any witnesses you wish to present. At
that time I will decide the proper sentence in your case.
Do you understand?
THE DEFENDANT: I do.
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THE COURT: Counsel, anything else?
MR. KITCHENS: Nothing further, your Honor.
MR. SHEPPARD: Nothing further, your Honor.
THE COURT: All right.
The defendant will be remanded to the US Marshal
Service.
Ms. Walker, Ms. Coudriet, thank you.
Officer, thank you.
Deputy marshal, thank you as well.
We are hereby adjourned.
(PROCEEDINGS REPORTED WERE CONCLUDED AT 3:05 PM.)
___________________________
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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 1st Day of February, 2024.
________________________________
PENNY PRITTY COUDRIET, RMR, CRR
OFFICIAL COURT REPORTER
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