Court filing
TRANSCRIPT of Proceedings as to Darrell Thomas, Andre Lee Gaines, Kahlil Gibran Green,… — USA v. Thomas et al (Dkt. 893)
Record facts
| 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. 893 · 2024-02-02 · Docket on CourtListener
Summary
A transcript of the March 11, 2021 change of plea hearing for defendant Bern Benoit, conducted by Zoom 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 893. Assistant US Attorney Tal Chaiken verifies the signatures on a plea agreement under which Benoit pleads guilty to Count 7 of the indictment, and Anthony Egbase appears for Benoit. Chaiken summarizes the agreement: the government agrees to dismiss the remaining counts, the parties stipulate a 14-level adjustment under 2B1.1(b)(1)(H) for a loss of more than $550,000 but less than $1.5 million, and Benoit agrees to cooperate. The court reviews the trial rights Benoit gives up by pleading guilty.
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
THE FOLLOWING IS THE PDF OF AN OFFICIAL
TRANSCRIPT. OFFICIAL TRANSCRIPTS MAY ONLY BE FILED IN CM/ECF
BY THE OFFICIAL COURT REPORTER AND WILL BE RESTRICTED IN
CM/ECF FOR A PERIOD OF 90 DAYS. YOU MAY CITE TO A PORTION OF
THE ATTACHED TRANSCRIPT BY THE DOCKET ENTRY NUMBER,
REFERENCING PAGE AND LINE NUMBER, ONLY AFTER THE COURT
REPORTER HAS FILED THE OFFICIAL TRANSCRIPT; HOWEVER, YOU ARE
PROHIBITED FROM ATTACHING A FULL OR PARTIAL TRANSCRIPT TO ANY
DOCUMENT FILED WITH THE COURT.
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 1 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
1
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA,
)
)
)
-VS-
) DOCKET NO. 1:20-cr-00296-JPB
)
BERN BENOIT,
)
)
DEFENDANT.
)
TRANSCRIPT OF CHANGE OF PLEA PROCEEDINGS
BEFORE THE HONORABLE J.P. BOULEE
UNITED STATES DISTRICT JUDGE
MARCH 11, 2021
APPEARANCES:
ON BEHALF OF THE GOVERNMENT:
TAL COHEN CHAIKEN, ESQ.
NATHAN PARKER KITCHENS, ESQ.
BABASIJIBOMI MOORE, ESQ.
ASSISTANT UNITED STATES ATTORNEY
ON BEHALF OF THE DEFENDANT:
ANTHONY O. EGBASE, ESQ.
STENOGRAPHICALLY RECORDED BY:
PENNY PRITTY COUDRIET, RMR, CRR
OFFICIAL COURT REPORTER
UNITED STATES DISTRICT COURT
ATLANTA, GEORGIA
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 2 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
2
(PROCEEDINGS HELD VIA ZOOM AT 12:03 PM., ATLANTA, GEORGIA)
COURTROOM DEPUTY CLERK: This is case 20-CR-296,
USA v. Benoit.
MS. CHAIKEN: Good afternoon, Judge. This is
Assistant US Attorney Tal Chaiken for the government. And
with me are Nathan Kitchens from my office, Siji Moore from
the Department of Justice, and Special Agent Joe Stites.
THE COURT: Good to see all of you.
MR. EGBASE: Good afternoon, your Honor. Anthony
Egbase on behalf of Bern Benoit. He's present via Zoom as
well.
THE COURT: Good to see you, Mr. Egbase. And is it
pronounced Mr. -- if the defendant could just pronounce his
name for me.
THE DEFENDANT: Bern Benoit.
THE COURT: Benoit?
THE DEFENDANT: Yes, sir.
THE COURT: Of all the judges on this court, you
would think Judge Boulee would be able to get that one
correctly. So I will do my best, but I won't tell you what my
grade was when I took French in college, okay? It wasn't
good.
We are doing this by Zoom. So, Mr. Egbase and
Mr. Benoit, I want to ask you both some questions.
First off, Mr. Egbase -- well, let's do this.
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 3 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
3
Ms. Walker, if you can swear him in first, please.
COURTROOM DEPUTY CLERK: Yes, your Honor.
Mr. Benoit, please raise your right hand.
(The defendant was duly sworn)
COURTROOM DEPUTY CLERK: State your name again for
the record.
THE DEFENDANT: Bern Benoit.
THE COURT: Mr. Egbase, I just want to confirm that
you have discussed the issue of having this hearing done by
Zoom video conference versus in court, live in court with him
before me, and have you discussed that with him and has he
consented, to your knowledge, to doing this by Zoom?
MR. EGBASE: Yes, your Honor. I did, your Honor.
And Mr. Benoit has consented, yes.
THE COURT: And, Mr. Benoit, let me ask you
individually, sir, do you waive your personal appearance
before me in court and consent to doing this hearing by Zoom
video conference, sir?
THE DEFENDANT: I do, sir.
THE COURT: Ms. Chaiken, if you could please verify
the signatures on the plea agreement.
MS. CHAIKEN: Ms. Walker, if you could navigate to
page 19, please.
Mr. Benoit, this is a copy of a plea agreement which
provides that you are pleading guilty to Count 7 against you
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 4 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
4
as charged in the indictment. Is that your signature on the
right line above your name where it says "Bern Benoit"?
THE DEFENDANT: Yes, it is.
MS. CHAIKEN: Mr. Egbase, is that your signature
above the line that says "Anthony Egbase" on the left side of
the page?
MR. EGBASE: Yes, it is.
MS. CHAIKEN: And, Ms. Walker, if you could navigate
to page 20.
Mr. Benoit, is that your signature on the line that
says "Bern Benoit" on page 20 of the plea agreement?
THE DEFENDANT: Yes, it is.
MS. CHAIKEN: Ms. Walker, if you could navigate to
page 21, please.
Mr. Egbase, is that your signature on the line on the
left side of page 21 of the agreement above where it says
"Anthony Egbase"?
MR. EGBASE: Yes, it is.
MS. CHAIKEN: Thank you.
THE COURT: Ms. Chaiken, I know we're doing this
virtually, but do you want to just tender that?
MS. CHAIKEN: Yes, Judge. I virtually tender the
plea agreement to the Court.
THE COURT: Very well.
Mr. Benoit, before I can accept your plea of guilty,
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 5 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
5
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 you 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: Yes, I do.
THE COURT: All right. How old are you, sir?
THE DEFENDANT: Forty-five.
THE COURT: And how far did you go in school?
THE DEFENDANT: I graduated high school.
THE COURT: In the last 24 hours have you taken any
drugs, medicine or pills or had any alcoholic beverages to
drink?
THE DEFENDANT: No.
THE COURT: And have you been treated recently for
any mental illness or addiction to alcohol or drugs?
THE DEFENDANT: No.
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 6 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
6
THE COURT: And, Mr. Egbase, are you aware of any
issues regarding your client's competence to enter a plea this
afternoon?
MR. EGBASE: No, your Honor.
THE COURT: I will now review with you the rights
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 a right to plead not guilty
and have a trial by jury?
THE DEFENDANT: Yes.
THE COURT: And do you understand that you're
entitled to a speedy and public trial on the charge against
you?
THE DEFENDANT: Yes, 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, sir?
THE DEFENDANT: Yes, I do.
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
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 7 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
7
presumption and prove you guilty beyond a reasonable doubt?
THE DEFENDANT: Yes, I do.
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?
THE DEFENDANT: Yes, 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: Yes, 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: Yes, I do.
THE COURT: Do you understand that your attorney
would have the opportunity to cross-examine the witnesses for
the government, object to evidence offered by the government
and offer evidence on your behalf?
THE DEFENDANT: Yes, 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
would also have the right not to testify? And do you
understand if you chose not to testify or put on any evidence,
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 8 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
8
those facts could not be used against you?
THE DEFENDANT: Yes, I do.
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: Yes, I do.
THE COURT: If I accept your plea of guilty, you will
not have a trial and a jury will not decide your guilt, but I
will find you're guilty of the charge based on your admission
that you're guilty, do you understand?
THE DEFENDANT: Yes, I do.
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.
THE COURT: You earlier verified your signature on
the plea agreement that you entered with the government. In a
moment I will ask the Assistant USA Attorney to review the
terms of the plea agreement, other than the potential
penalties which we'll 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 you've reached with the government.
Ms. Chaiken.
MS. CHAIKEN: Thank you, Judge.
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 9 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
9
The plea agreement provides that Mr. Benoit is
pleading guilty to Count 7 of the indictment. And the terms
of the plea are as follows:
Paragraph 11 provides that the government agrees to
dismiss the remaining counts against Mr. Benoit.
Paragraph 12 provides that the government agrees not
to bring further charges against Mr. Benoit related to the
charges to which he's pleading guilty.
Paragraphs 13 to 15 set forth a series of guideline
stipulations, including that the base offense level -- or the
guideline section is 2B1.1, that a 14-level adjustment applies
under 2B1.1(b)(1)(H) for an amount of loss more than $550,000
but less than $1.5 million, and that a two-level adjustment
under 3C1.1 should not apply for an offense involving
obstruction.
Paragraph 16 provides that the government recommends
an adjustment for acceptance of responsibility to the maximum
extent authorized by the guidelines subject to certain caveats
that are set forth in that paragraph, including if the
defendant engages in conduct inconsistent with acceptance of
responsibility.
Paragraph 17 sets forth that the parties recognize
that each party reserves the right to make recommendations for
sentencing and that the only agreements as to the guidelines
are those mentioned in the plea agreement.
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 10 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
10
Paragraph 18 provides that the United States reserves
the right to modify its sentencing recommendation if it
receives additional information.
Paragraph 19 sets forth a cooperation provision 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 testifying at trial or another
proceeding.
Paragraph 20 provides that the defendant consents to
direct contact with the government outside the presence of his
counsel for purposes of cooperation.
Paragraph 21 provides that the government agrees to
abide by Section 1B1.8 of the sentencing guidelines in that it
will not use information previously unknown for sentencing
purposes with the caveat that if the defendant is not truthful
in his cooperation, he may be prosecuted for perjury, false
statements, obstruction, and that all information he provided
may be used against him.
Paragraph 22 provides that the government agrees to
inform the Court of the defendant's cooperation. And if the
government determines that the defendant's cooperation
qualifies as substantial assistance, it will file a motion for
a downward departure under 5K if that happens before
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 11 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
11
sentencing or Rule 35 if that happens after sentencing. And
the defendant understands that the government alone determines
if the defendant provided substantial assistance. And that
while the government may recommend a sentence if it files such
a motion, the ultimate decision on the defendant's sentence
rests with the Court.
Paragraph 23 provides that the government agrees to a
low-end guideline -- or to recommend a sentence at the low end
of the applicable guideline range subject to the caveats in
paragraph 16 regarding acceptance of responsibility.
Paragraph 24 provides that the United States agrees
to make no specific recommendation as to the fine to be
imposed.
Paragraph 25 provides that the defendant agrees to
pay $1,105,217 plus applicable interest in restitution, which
is $830,417 to Cross River Bank, and $274,800 to the United
States Small Business Administration, plus the applicable
interest for each of those.
Paragraph 26 provides that the defendant agrees to
the forfeiture of $431,408.28 in funds seized from the
JPMorgan Chase account for Transportation Management Services,
Inc., and $30,025.08 in funds seized from the JPMorgan Chase
account for Bern Benoit.
Paragraphs 27 through 31 provide that the defendant
waives interest in the property and agrees to the forfeiture
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 12 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
12
procedure that's set forth in those provisions, those
paragraphs.
Paragraph 32 provides that the defendant agrees to
pay a special assessment of $100.
Paragraphs 33 through 37 provide that the defendant
agrees to cooperate fully in the collection of any restitution
and fine imposed by the Court subject to the terms that are
laid out in paragraphs 33 to 37.
Paragraph 38 provides that the defendant understands
that the recommendations in the plea agreement are not binding
on the Court.
Paragraph 39 sets forth an appeal waiver, which I
will read in full for the record.
It provides to the maximum extent permitted by
federal law the defendant voluntarily and expressly waives the
right to appeal his conviction and sentence and the right to
collaterally attack his conviction and sentence in any
post-conviction proceeding, including but not limited to
motions filed pursuant to 28 United States Code, Section 2255
on any ground except that the defendant may file a direct
appeal of an upward departure or upward variance above the
sentencing guideline range as calculated by the district
court.
Claims that the defendant's counsel rendered
constitutionally ineffective assistance are excepted from this
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 13 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
13
waiver.
The defendant understands that this plea agreement
does not limit the government's right to appeal, but if the
government initiates a direct appeal of the sentence imposed,
the defendant may file a cross-appeal of that same sentence.
Paragraph 40 sets forth that the defendant agrees to
the standard FOIA Privacy Act waiver.
And paragraph 41 provides that there are no other
agreements between the parties other than those set forth in
the plea agreement.
THE COURT: Thank you, Ms. Chaiken.
Mr. Benoit, does that accurately reflect the
agreement that you believe you've reached with the government?
THE DEFENDANT: Yes, sir.
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 that recommendation?
THE DEFENDANT: Yes.
THE COURT: Is this the only agreement that you've
entered into with the government?
THE DEFENDANT: Yes.
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 14 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
14
THE COURT: Other than the terms of this agreement
has any promise of any kind been made to you to cause you to
plead guilty?
THE DEFENDANT: No.
THE COURT: Per the terms of the plea agreement the
United States has agreed not to bring any additional charges
relating 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 that if you do not plead guilty,
further charges will be brought against you or other adverse
action taken against you?
THE DEFENDANT: No.
THE COURT: Mr. Egbase, are you aware of any plea
agreement or promise being made to your client other than
what's been discussed here in open court?
MR. EGBASE: No, your Honor.
THE COURT: In a moment I will ask the Assistant US
Attorney to state the elements of the offense to which you're
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.
Ms. Chaiken.
MS. CHAIKEN: Thank you, Judge. Mr. Benoit is
pleading guilty to Count 7 of the indictment, which charges
conspiracy to commit bank and wire fraud in violation of Title
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 15 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
15
18 United States Code, Section 1349.
The elements of conspiracy to commit bank fraud and
wire fraud are, one, two or more persons in some way or manner
agree to try to accomplish a common and unlawful plan to
commit bank fraud and wire fraud as charged in the indictment.
And, two, the defendant knew the unlawful purpose of
the plan and willfully joined in it.
The elements of bank fraud are as follows:
One, 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.
Two, the false or fraudulent pretenses,
representations or promises were material.
Three, the defendant intended to defraud the
financial institution.
And, four, the financial institution was federally
insured.
And, finally, the elements of wire fraud are as
follows:
One, the defendant knowingly devised and participated
in a scheme to defraud someone by using false or fraudulent
pretenses, representations or promises.
Two, the false pretenses, representations or promises
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 16 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
16
were about a material fact.
Three, the defendant acted with the intent to
defraud.
And, four, the defendant transmitted or caused to be
transmitted by wire some communication in interstate commerce
to help carry out the scheme to defraud.
THE COURT: Thank you.
Mr. Benoit, do you understand that those are the
elements the government would have to prove beyond a
reasonable doubt in order to convict you of the charge?
THE DEFENDANT: Yes.
THE COURT: In a moment I will ask the Assistant US
Attorney to summarize the evidence that the government would
expect to present at a trial to prove each of these elements.
In other words, these are what the government contends 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
time.
Ms. Chaiken.
MS. CHAIKEN: Thank you, Judge.
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 17 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
17
If this case were to go to trial, the United States
would prove by admissible evidence and beyond a reasonable
doubt the following facts:
The Paycheck Protection Program, which is 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 must be used for payroll expenses, interest on mortgage,
rent and/or utilities.
The amount of the PPP loan that a business could
receive was generally two-and-a-half times, or 250 percent, of
the business's average monthly payroll cost.
While the United States Small Business Administration
oversaw the PPP, individual PPP loans were issued by private
approved lenders, including Cross River Bank, which is a
federally insured financial institution.
The PPP borrower 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 purpose of
the loan, with options for payroll, lease or mortgage
interest, utilities or other.
The lender then used this information to calculate
the amount of the loan that the business was eligible to
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 18 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
18
receive.
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. And the
certification that the funds would be used to retain workers
and maintain payroll or to make mortgage interest payments,
lease payments and utilities payments.
Defendant Bern Benoit is the owner of Transportation
Management Services, Inc., which I'll refer to as
Transportation Management.
On or around May 20th, 2020, Transportation
Management electronically submitted a PPP loan application to
Bluevine Capital, LLC, which is a company based in Redwood
City, California, that processes PPP loan applications on
behalf of lenders.
In its PPP loan application Transportation Management
represented that it had 66 employees and an average monthly
payroll of $332,167 and that it would use the funds for
payroll, lease payments or mortgage interest and utilities.
However, documents produced by Transportation
Management show that Transportation Management does not have
any employees. To support its payroll figures, Transportation
Management submitted with its PPP application IRS Form --
(Technical difficulty.)
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 19 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
19
THE COURT: Ms. Chaiken, let me --
MS. CHAIKEN: I'm sorry. Did I lose you guys?
THE COURT: I think you did. We had a little bit of
a pause there.
MS. CHAIKEN: I'm sorry. What was the last thing you
heard? Say that again.
(Record read back by the court reporter.)
MS. CHAIKEN: To support its payroll figures
Transportation Management submitted with its PPP application
IRS Form 941s, which are the employer's quarterly federal tax
return documents for each quarter of 2019.
Transportation Management's Form 941s had identical
figures for employees and payroll costs as the Form 941
submitted by at least six other businesses with their PPP loan
applications, including those forms submitted by Bellator
Phront Group, Inc., which is owned by co-defendant Darrell
Thomas.
A search of IRS records revealed that Transportation
Management had not, in fact, filed any Form 941s in 2019.
Transportation Management also included with its PPP
loan application a fraudulent bank statement from JPMorgan
Chase. The bank statement purported to be for Transportation
Management's bank account from February 1, 2020, through
February 28, 2020, and reflected a beginning balance of
$674,776.42 and an ending balance of $790,576.16.
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 20 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
20
In fact, however, Transportation Management opened
that JPMorgan Chase bank account on April 21, 2020, such that
Transportation Management had no bank statement for
February 1, 2020, through February 28, 2020.
Based on the untrue statements in Transportation
Management's PPP application and accompanying documents,
Bluevine processed Transportation Management's loan and
submitted it to Cross River Bank for funding.
On or about May 21, 2020, the PPP loan amount of
$830,417 was deposited into Transportation Management's
JPMorgan Chase bank account.
On or about May 29th, 2020, Mr. Benoit on behalf of
Transportation Management sent a cashier's check for $185,000
to Bellator, Mr. Thomas's Atlanta-based company, for warehouse
rent.
And on or about June 15th, 2020 --
(Technical difficulty.)
COURTROOM DEPUTY CLERK: I'm going to suggest that
she call in.
MR. KITCHENS: I think she may be almost done.
COURTROOM DEPUTY CLERK: Okay.
(Clarification by the court reporter.)
MS. CHAIKEN: On or about May 29th, 2020, Mr. Benoit,
on behalf of Transportation Management, sent a cashier's check
for $185,000 to Bellator, Mr. Thomas's Atlanta-based company,
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 21 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
21
for warehouse rent.
On or about June 15th, 2020, Mr. Benoit, on behalf of
Transportation Management, sent a $100,000 cashier's check to
Bellator for warehouse rent and made a wire transfer for
$169,998.72 to Elite Executive Services, Inc., which is
another Atlanta-based company owned by Darrell Thomas.
Mr. Benoit knew that the payments from Transportation
Management to Darrell Thomas's companies, Bellator and Elite,
were not legitimate payments for payroll, mortgage interest or
lease or utilities and were instead disseminations to other
members of the conspiracy to conceal the true nature of the
fraudulently-obtained funds.
THE COURT: Thank you, Ms. Chaiken. Anything else?
MS. CHAIKEN: No, Judge. And I apologize to everyone
for my connectivity issues.
THE COURT: No, no apology necessary. I think we
managed it okay.
Mr. Benoit, do you disagree with any of the facts as
stated by the Assistant USA Attorney?
THE DEFENDANT: No.
THE COURT: Do you admit that you and at least one
other person, one more person, 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: Yes.
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 22 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
22
THE COURT: And do you admit that you knew the
unlawful purpose of the plan and willfully joined in it?
THE DEFENDANT: Yes.
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: Yes.
THE COURT: Do you admit that the false or fraudulent
pretenses, representations or promises were material?
THE DEFENDANT: Yes.
THE COURT: Do you admit that you intended to defraud
the financial institution?
THE DEFENDANT: Yes.
THE COURT: And do you admit that the financial
institution was federally insured?
THE DEFENDANT: Yes.
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: Yes.
THE COURT: Do you admit that the false pretenses,
representations or promises were about a material fact?
THE DEFENDANT: Yes.
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 23 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
23
THE COURT: Do you admit that you acted with intent
to defraud?
THE DEFENDANT: Yes.
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: Yes.
THE COURT: Ms. Chaiken, if you could please state
the potential penalties the defendant faces for the charge,
including the maximum penalties and any mandatory minimums.
MS. CHAIKEN: Yes, your Honor.
Mr. Benoit faces the following maximum and mandatory
minimum penalties:
The maximum term of imprisonment is 30 years. There
is no mandatory minimum.
The possible term of supervised release is zero to
five years.
The maximum fine is $1 million, or twice the gain or
twice the loss, whichever is greatest, due and payable
immediately.
There's full restitution to all victims of the
offense and relevant conduct.
A mandatory special assessment of $100.
And forfeiture of any and all proceeds from the
commission of the offense and any and all property used or
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 24 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
24
intended to be used to facilitate the offense and any property
involved in the offense.
THE COURT: Thank you, Ms. Chaiken.
Mr. Benoit, do you understand that those are the
possible penalties that you could receive in this case?
THE DEFENDANT: Yes, sir.
THE COURT: And you understand it's not possible for
me to state to you today what your sentence will be?
THE DEFENDANT: Yes.
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: Yes.
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
if you did not waive or give up those rights.
A 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
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 25 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
25
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 that right to a direct appeal, you would have
an additional opportunity for review of your case by filing 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 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 to 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 have -- 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
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 26 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
26
by my decision. Do you understand all that, sir?
THE DEFENDANT: Yes, sir.
THE COURT: Mr. Egbase, have you reviewed the rights
with your client such that you're comfortable he understands
both his rights and the waiver of those rights?
THE DEFENDANT: Yes, I have, your Honor.
THE COURT: Thank you.
Mr. Benoit, do you understand that parole has been
abolished in the federal system and that if you're sentenced
to prison, you will not be released early on parole?
THE DEFENDANT: Yes.
THE COURT: Do you understand that you may be
sentenced to a term of 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: Yes.
THE COURT: Do you understand that you may be ordered
to pay restitution to any victims of the offense?
THE DEFENDANT: Yes.
THE COURT: Sir, are you a citizen of the United
States Government?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand that as part of your
sentence certain property that's been identified by the
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 27 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
27
government may be forfeited by you to the government?
THE DEFENDANT: Yes.
THE COURT: Is there anything that we've talked about
today that you do not feel you fully understand?
THE DEFENDANT: No.
THE COURT: Have you had a sufficient opportunity to
talk about your case with your attorney and have him answer
any questions that you have before entering your plea?
THE DEFENDANT: Yes.
THE COURT: Are you satisfied with the representation
that your attorney has provided to you?
THE DEFENDANT: Yes.
THE COURT: How do you plead to Count 7 of the
indictment?
THE DEFENDANT: Guilty.
THE COURT: Mr. Egbase, 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?
THE DEFENDANT: I do, your Honor.
THE COURT: Are you aware of any reason I should not
accept the plea?
THE DEFENDANT: No, your Honor.
THE COURT: Is there anything else that you want me
to address with your client on the record at this time?
MR. EGBASE: Not at this time, your Honor.
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 28 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
28
THE COURT: Ms. Chaiken, is there anything further
that the government wishes the Court to address at this time?
MS. CHAIKEN: No, Judge.
THE COURT: Does the government object to the
defendant remaining on bond subject to the previous
conditions?
MS. CHAIKEN: No, Judge.
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
judgment or actions in any manner.
The Court finds that 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 7 of the indictment is accepted and
entered.
Mr. Benoit, you are hereby adjudged guilty of the
charge contained in Count 7 of the indictment.
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 29 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
29
I will now be referring your case to a probation
officer who will prepare a presentence report. Before I
receive the report, 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 that you wish to present.
At that time I will decide the proper sentence in your case.
Do you understand, sir?
THE DEFENDANT: Yes, sir.
THE COURT: Counsel, anything else?
MS. CHAIKEN: Not for the government, your Honor.
MR. EGBASE: No, your Honor.
THE COURT: All right. Good to see all of you.
And, Ms. Walker, Ms. Coudriet, thank you for your
assistance this afternoon.
We are adjourned. You all take care.
(PROCEEDINGS REPORTED WERE CONCLUDED AT 12:38 PM.)
- - - - -
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 30 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
30
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 23rd Day of January, 2024.
________________________________
PENNY PRITTY COUDRIET, RMR, CRR
OFFICIAL COURT REPORTER
___________________________
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 31 of 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
31
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 20TH DAY OF JANUARY, 2024.
________________________________
PENNY PRITTY COUDRIET, RMR, CRR
OFFICIAL COURT REPORTER
Case 1:20-cr-00296-JPB-CMS Document 893 Filed 02/02/24 Page 32 of 32File and source
- File
- gov.uscourts.gand.292218.893.0.pdf
- Size
- 254,364 bytes
- SHA-256
- 8869850f99e25541ce0c17191a5dac79b1090f3a2d64b0b59623437be3d326c6
- Original
- PACER (login required)