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TRANSCRIPT of Proceedings as to Darrell Thomas, Andre Lee Gaines, Kahlil Gibran Green,… — USA v. Thomas et al (Dkt. 894)
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. 894 · 2024-02-02 · Docket on CourtListener
Summary
A transcript of the September 8, 2021 sentencing of defendant Bern Benoit in United States of America v. Bern Benoit, No. 1:20-cr-00296-JPB, before District Judge J.P. Boulee of the U.S. District Court for the Northern District of Georgia, conducted by Zoom and filed February 2, 2024 as Document 894. The court notes that Benoit pled guilty on March 11, 2021 to Count 7 of the indictment for conspiracy to commit bank fraud and wire fraud, and adopts the presentence report, to which no party objected. Its guideline calculations include a total offense level of 18, Criminal History Category of I, a range of 27 to 33 months and a fine range of $10,000 to $2,210,434. Defense counsel Anthony O. Egbase seeks a departure under 5H1.4 and a variance, and Benoit addresses the court. Nathan Parker Kitchens appears for the government.
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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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
)
BERN BENOIT,
)
)
DEFENDANT.
)
TRANSCRIPT OF SENTENCING PROCEEDINGS
BEFORE THE HONORABLE J.P. BOULEE
UNITED STATES DISTRICT JUDGE
SEPTEMBER 8, 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
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(PROCEEDINGS HELD VIA ZOOM AT 10:19 AM., ATLANTA, GEORGIA)
COURTROOM DEPUTY CLERK: This is case number
20-CR-296, USA v. Benoit.
MR. EGBASE: Good morning, your Honor. Anthony
Egbase on behalf of Mr. Bern Benoit. Bern Benoit is present
with me as the Court can see via Zoom.
THE COURT: Good morning to both of you.
MR. KITCHENS: Good morning, your Honor. Nathan
Kitchens on behalf of the government. I'm here as well with
co-counsel Tal Chaiken and Siji Moore, as well as Special
Agent Joe Stites of the FBI.
THE COURT: Good to see all of you as well.
And I believe we also -- we have Officer Ridley here
as well, correct?
COURTROOM DEPUTY CLERK: Yes, sir.
MS. RIDLEY: Good morning, your Honor. Maria Ridley
on behalf of the United States Probation Office.
THE COURT: Good morning.
All right. Under Section 2 of the Northern District
of Georgia's General Order 20-04, the Court finds that this
hearing cannot be further delayed without serious harm to the
interests of justice.
And, Mr. Egbase, do I understand that your client
consents to waiving his personal appearance before me and
doing this hearing by video conference?
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MR. EGBASE: Yes, your Honor, he does. And if I may
just apologize, I know we are having difficulty this morning
through video conference. It's all my fault. I feel
terrible. It has absolutely nothing to do with my client.
I did not understand this was going to be an
in-person hearing. I tried to read the rules as much as I
can. It was the rules that started coming out -- the
amendments that started coming out during the pandemic, post
pandemic. We are still in pandemic actually.
I just don't know how I missed it, that this was
supposed to be an in-person hearing. So it has absolutely
nothing to do with my client, your Honor.
THE COURT: Okay. Very well. Well, apology
accepted. And, of course, I won't hold any delays or any
confusion against your client in any way or against you. I
understand we all make logistical errors. So no big deal.
And all is forgiven on that front.
Let me ask you, Mr. -- do you pronounce it Benoit?
THE DEFENDANT: Yes, sir.
THE COURT: Mr. Benoit, do you consent to doing this
hearing by video conference and do you waive your right to
have a personal appearance in front of me for this sentencing
hearing?
THE DEFENDANT: Yes, your Honor.
THE COURT: Very well.
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Mr. Benoit pled guilty on March 11th, 2021, to
Count 7 of the indictment for conspiracy to commit bank fraud
and wire fraud.
In accordance with Rule 32 of the Federal Rules of
Criminal Procedure, the United States Probation Office has
conducted a presentence investigation and prepared a
presentence report, a copy of which has been provided to both
the government and the defense.
Mr. Egbase, have you and your client had an
opportunity to read and discuss the presentence report? And I
think you're still muted, sir.
MR. EGBASE: Yes, we did, your Honor.
THE COURT: Thank you.
Do you have any questions about the presentence
report or any amendments at this time?
MR. EGBASE: No questions, your Honor.
THE COURT: It appears from the record that there are
no objections to the findings of fact or conclusions of law in
the presentence report by the government or the defense.
Is that correct?
MR. KITCHENS: That's correct, your Honor.
MR. EGBASE: That's correct, your Honor.
THE COURT: All right. I did want to clarify,
Mr. Egbase, whether you are seeking a departure or a variance
or both. It looked to me from reading your sentencing
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memorandum on behalf of Mr. Benoit that you were seeking both
a departure and variance, is that correct?
MR. EGBASE: That's correct, your Honor.
THE COURT: What I want to clarify is on what grounds
you're seeking the departure. It looked to me like there may
have been some just typographical issues with your sentencing
memorandum. The portion of it that seeks a departure on page
six talks about his medical condition and a departure under
5H1.4, which would go to his physical condition, and that all
made sense to me. But there is a small section at the bottom
of page 10 and going to the top of page 11 that seems to
perhaps be something that inadvertently got picked up from an
earlier sentencing memorandum involving another client that
goes to age, mental condition, military service, et cetera.
I just wanted to make sure that that indeed was just a
typographical error and that what you're seeking is a
departure under just 5H1.4.
MR. EGBASE: I'm seeking departure under 5H1.4, your
Honor. The Court is correct, that may have been inadvertently
entered. But as I state in my brief as well, my client,
Mr. Benoit, does have medical conditions and under that I'm
seeking that -- I'm seeking the departure and a variance.
THE COURT: Understood. Departure and variance.
Given that you're seeking both a departure and a
variance on those grounds, sometimes I'll address the
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departure issue first and make a determination as to whether
or not a departure is warranted and then go through the other
portion of the sentencing hearing. But here, unless anyone
objects, it would seem that the request for a departure and
the request for the variance are overlapping fairly
significantly, so I would recommend that I consider all of
that together in the context of counsel's argument.
Does anyone object to my proceeding in that fashion?
MR. KITCHENS: No objection, your Honor.
THE COURT: Mr. Egbase?
MR. EGBASE: No objection, your Honor.
THE COURT: Very well. I will consider your argument
on that departure along with the variance when I hear your
argument as to the sentence.
Given that there are no objections, I will adopt the
findings of fact and conclusions of law in the presentence
report to which no objection has been made.
Based on the findings of facts and conclusions of
law, the guideline calculations are as follows:
Base offense level of 7;
Adjusted offense level of 21;
Total offense level of 18;
Criminal History Category of I;
Recommended sentencing range of 27 to 33 months;
Fine guideline range of $10,000 to $2,210,434;
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Term of supervised release of 2 to 5 years;
A special assessment of $100.
Any objection to the guideline calculations as stated
by the Court?
MR. KITCHENS: No, your Honor.
MR. EGBASE: No objection, your Honor.
THE COURT: I will now hear from the parties as to
recommendations for a reasonable sentence considering the 18
USC, Section 3553(a) factors and grounds for departure or
variance as discussed.
I have reviewed -- in addition to the presentence
report and the defense memorandum I have reviewed numerous
character letters on behalf of Mr. Benoit sent in from various
individuals.
Before we move on, are there any other documents or
letters for the Court regarding sentencing for the Court's
consideration?
MR. EGBASE: No, your Honor, except I would add that
Mr. Benoit be given an opportunity to just address the Court
for about two to three minutes.
THE COURT: Certainly. I'm going to go through that
and, of course, give him that opportunity. I want to just
make sure we don't have any other witnesses, and I want to
hear arguments as well.
Mr. Kitchens, are there any victims present that wish
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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to speak or present evidence in connection with the evidence
in this case?
MR. KITCHENS: There are not, your Honor. And we do
not have any documents either.
THE COURT: All right. Very well.
And, Mr. Egbase, I know that Mr. Benoit would like to
be heard, but are there any other witnesses on his behalf?
And, again, I have read the numerous letters that were sent in
on his behalf.
MR. EGBASE: No, your Honor.
THE COURT: Mr. Egbase, would you like to make any
argument on behalf of your client regarding sentencing? I
have, of course, reviewed your sentencing memorandum on behalf
of him. I'll be happy to hear any additional argument that
you have.
MR. EGBASE: Yes, your Honor. I just want to
reiterate what I have in my sentencing memorandum already,
your Honor.
In this matter, Mr. -- I have used the term or the
terminology that Mr. Benoit is a victim in this case. I did
receive an e-mail from the government yesterday, and
specifically Mr. Kitchens, who took that to mean that
Mr. Benoit is contesting the culpability in this case. That
is not my intention. And that is not Mr. Benoit's intention.
He does accept responsibility, but I have viewed this in the
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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context of the fact that he was suckered into this -- into
this -- committing this crime based on his lack of
sophistication.
At the very inception of the PPP program Mr. Benoit,
as a business owner, was only interested in getting what he
was entitled to. And I believe that is what the evidence and
discovery has shown in this matter. But what happened was his
advisor, Mr. Jerry Baptiste, gave him a blank form from --
whom happens to be a co-defendant now, gave him a blank form
from other co-defendants that he signed. He never
placed anything -- other than his name, address and business
name, he never list any figure on the blank form. And every
other thing was completed by the co-defendant, submitted to
the appropriate agencies without his input on what was in that
loan application.
And he was shocked to learn that when he received
about 800,000 in his account. And he did question it. So his
inability to stand by his conviction at that point and tell
them I don't deserve this, take it back, is where the
culpability really comes in. And in his words, he was assured
that this money would be paid back and it was going to be
invested in his business or buying PPP, or whatever, emergency
equipment, and he fell for it.
So he's very remorseful. And I believe that he would
express that himself to the Court. But the other issues that
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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I've asked the Court to consider is his medical conditions.
And I believe during discovery we provided enough of that.
And that was also presented to the presentencing officer.
And his lack of sophistication -- in conclusion, his
lack of sophistication, his medical condition and -- his
present medical condition, which he has been going through, I
believe that that is what warrants a departure and variance in
this case, your Honor.
THE COURT: All right. Thank you.
Mr. Benoit, I've had the benefit of hearing from your
counsel, but if there's anything that you personally would
like to say before I sentence you, I would be happy to hear
from you, sir.
THE DEFENDANT: Your Honor, I just wanted to --
THE COURT: I'm sorry. If you could speak up a
little bit, I'm having trouble hearing you.
THE DEFENDANT: Your Honor, I just wanted to say I'm
very remorseful. This is not who I am. I don't have a
record. You know, I try to be -- I try to do good always.
And I don't know how I even got to this.
I have no words to express how deeply sorry that --
that it even happened. I got involved with people that, you
know, I had no idea what their intentions were. And, you
know, I know I'm not innocent at all. I'm just -- I'm sorry.
And I...
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THE COURT: Thank you. I want to make sure, you've
just stated that you don't believe you're innocent at all, and
that certainly was my --
THE DEFENDANT: Yeah.
THE COURT: -- takeaway from your plea hearing
several months ago now. But given some of the arguments your
counsel has made, I want to, before we go forward with the
sentencing, make sure that you do, in fact, believe you are
guilty of the crime charged and what you've pled guilty to
several months ago now.
Do you have any reason to think you want to revisit
that --
THE DEFENDANT: No, sir, your Honor. As I said, I'm
guilty. I'm not innocent on my part for my involvement.
THE COURT: All right. Bear with me a moment.
COURTROOM DEPUTY CLERK: Mr. Benoit, if you can speak
up a little bit louder so we can hear you, okay?
THE DEFENDANT: Okay.
THE COURT: All right. Mr. Kitchens, any response
and thoughts on the plea and where we are at this point?
MR. KITCHENS: Yes, your Honor.
Let me start exactly with your questions about where
I think we stand in light of some of the arguments made by
Mr. Egbase and Mr. Benoit's statement.
As Mr. Egbase noted, we expressed some concern to him
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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yesterday based on some of the language in the sentencing memo
where there was a statement that Mr. Benoit was an unwitting
tool, that he was a victim in this matter, a victim of the
circumstances, and that he accepted responsibility for his
ignorantly induced conduct.
And similarly this morning I think you've heard that
he did not know what various other people were doing, just
submitted a blank form and did not know the overall aim of the
other people he was working with.
Our understanding when we asked Mr. Egbase about
this yesterday was that we understood this rhetoric from the
sentencing memo was designed to express that Mr. Benoit was
not the most culpable actor in the scheme. And the government
readily agrees with that, fully agrees with it.
As your Honor knows, we certainly view Darrell Thomas
as the most culpable person as he received the largest share
of the proceeds from this loan.
Mr. Benoit, as he's noted in the argument this
morning, was brought into the scheme by other people,
Mr. Baptiste, as well as Charles Petty, another individual who
was a co-defendant in this case. And those individuals passed
along instructions to Mr. Benoit regarding how he should wire
fraudulent funds when they were received into the account.
I apologize for my cough, your Honor.
It's my understanding that Mr. Benoit, despite that
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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language and despite some of the argument this morning, and it
may be worth clarifying with him, does not deny that he knew
at some point that the PPP loan that he applied for for
Transportation Management was fraudulent. And that once he
knew that and recognized it, then he continued to facilitate
the loan.
There was never an allegation that he personally put
in the false information, but there was an understanding and
certainly an agreement that that would be the case and that he
would proceed with the fraud. That's our understanding of
what the evidence showed and what Mr. Benoit, at least in the
plea hearing, agreed to.
It is also -- and we'll discuss this a little bit in
my sentencing argument, I think it is undisputed in the PSR
that he submitted roughly around the same time period a couple
fraudulent Economic Injury Disaster Loans for two companies
roughly in the same time span. So this was not an accident.
This was something that -- three separate fraudulent loans in
a very short period of time.
I think any claim that Mr. Benoit did not know what
was going on rings false in light of the evidence that, you
know, we have and that Mr. Benoit has previously admitted to.
So, you know, I'm happy to give the overall argument
but just want to clarify with Mr. Egbase, on behalf of his
client, that he still is in a position where he acknowledges
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that he knew at some point that the loan that he was entering
was, in fact, fraudulent and that after knowing that he
continued to facilitate that fraudulent loan.
THE COURT: Mr. Egbase.
MR. EGBASE: Well, your Honor, if I may just add
regarding the two other applications that Mr. Benoit --
THE COURT: And I'll tell you, I'm not worried about
the two other applications. I'm worried just about the one at
issue in this case.
MR. EGBASE: All right. Submit then, your Honor.
THE COURT: I'm sorry, can you repeat that.
MR. EGBASE: I said I submit, your Honor. I'm done
at this point.
THE COURT: Do I take that to mean that you
understand that your client did indeed at some point learn
that the loan was fraudulent and continued to facilitate it
despite your argument that he was not the most culpable actor?
Is that correct?
MR. EGBASE: Yes. And I believe I hinted to that in
my opening as well, in my argument.
THE COURT: Very well. And let me ask Mr. Benoit as
well.
Mr. Benoit, do you agree that you at some point
learned that this loan was fraudulent and afterwards continued
to facilitate the loan?
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THE DEFENDANT: Yes.
THE COURT: Very well.
Mr. Kitchens or Mr. Egbase, do either of you think
any additional discussion of this most recent issue is
warranted? One thing I can do is go back over the elements
if anyone thinks that's necessary.
MR. EGBASE: Yes, your Honor. The only thing I want
to add regarding that issue is that Mr. Benoit's conduct after
the loan -- after the moneys were wired into his account did
not benefit him substantially. He wired moneys to Baptiste
and Mr. Thomas, I believe, who -- and shortly after doing that
his account was frozen and the balance of the funds are simply
forfeited to the government, your Honor.
THE COURT: Understood.
Here's what I'm going to do. And, Mr. Kitchens, I'll
let you weigh in, but I'm actually inclined to go back over
the elements in an abundance of caution unless you disagree or
unless Mr. Egbase disagrees.
MR. KITCHENS: I have no objection to that, your
Honor.
THE COURT: Ms. Walker, if you can please put
Mr. Benoit under oath.
COURTROOM DEPUTY CLERK: Mr. Benoit, if you can raise
your right hand for me.
(The defendant was duly sworn)
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COURTROOM DEPUTY CLERK: Thank you. Please remember
to speak up.
You can put your hand down and announce your name for
the record.
THE DEFENDANT: Bern Benoit.
COURTROOM DEPUTY CLERK: Thank you, sir.
THE COURT: Thank you, Ms. Walker.
Mr. Benoit, let me, again, ask you a question I asked
you just a few moments ago but now that you're under oath I
want to ask you again, do you agree that at some point you
realized that this loan at issue here was fraudulent and you
continued to facilitate the loan after you knew that it was a
fraudulent loan?
THE DEFENDANT: Yes, your Honor.
THE COURT: And I'm going to go back over the
elements of what you've pled guilty to several months ago and
ask you again if you agree that you're guilty based on these
elements.
So, first off, as to conspiracy to commit bank fraud
and wire fraud, 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, your Honor.
THE COURT: And do you admit that you knew the
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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unlawful purpose of the plan and willfully joined in it?
THE DEFENDANT: I do.
THE COURT: As to bank fraud, 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, your Honor.
THE COURT: And 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, your Honor.
THE COURT: And do you admit that the financial
institution was federally insured?
THE DEFENDANT: Yes, your Honor.
THE COURT: As to wire fraud, do you admit that you
knowingly devised or participated in a scheme to fraud someone
by using false or fraudulent pretenses, representations or
promises?
THE DEFENDANT: Yes, your Honor.
THE COURT: Do you admit that the false pretenses,
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representations or promises were about a material fact?
THE DEFENDANT: Yes, your Honor.
THE COURT: And do you admit that you acted with the
intent to defraud?
THE DEFENDANT: Yes, your Honor.
THE COURT: And, finally, do you admit that you
transmitted or caused to be transmitted by wire some
communication in interstate commerce to help carry out this
scheme to defraud?
THE DEFENDANT: Yes, your Honor.
THE COURT: Very well.
I believe we've sufficiently addressed the issue at
hand here. And I believe that Mr. Benoit continues to confess
and admit to his guilt and the elements of the crime charged.
Does either counsel disagree or think that any
additional study of this issue is warranted at this time?
MR. KITCHENS: No, your Honor.
MR. EGBASE: No, your Honor.
THE COURT: And just so the record reflects it,
Mr. Kitchens and Mr. Egbase both said "no" or "no, your
Honor," at the same time and it may not have gotten picked up
perfectly by the record.
In that case, Mr. Kitchens, let me go ahead and let
you respond as far as sentencing to the defense argument.
MR. KITCHENS: Thank you, your Honor.
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We think in light of those statements, we are at a
guideline range of 27 to 33 months, giving Mr. Benoit credit
for acceptance of responsibility. And we understand, and
we'll talk about this, that he has, you know, a certain view
of his role. But our view is, and as he just confirmed, that
he very much accepts that he understood that there was a fraud
and that he worked to facilitate that loan. And we'll talk
about really what would have been the benefits to him as part
of that scheme.
But the government recommendation in this case is a
27-month sentence, which is the low end of that guidelines
range. We think that low end properly accounts for
Mr. Benoit's conduct after charging, which has been largely
constructive, as well as his history and characteristics,
which show fairly minimal criminal history and certainly
nothing related to fraud before this.
But we do believe that a guideline sentence is
necessary under Section 3553(a) to properly account for the
seriousness of the offense, the need for deterrence, as well
as the need to avoid unwarranted sentencing disparities.
So we understand the defendant's reasoning for his
request for a downward departure or variance, but we don't
think ultimately that it's supported by the facts in the law
and that a guideline sentence here is appropriate.
In terms of the seriousness of the fraud, there's a
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couple aspects of this. First is the fact that this was a
scheme that targeted a government aid program at a time really
of national crisis. And I don't think that is overstating it
one bit.
What the defendant and his co-conspirators did is
they exploited a COVID relief fund that by its very design was
meant to streamline the normal due process for applying for
loans and getting bank loans in order to get critical funds to
small businesses in need as quickly as possible.
Your Honor I'm sure recalls kind of the fears that
happened in the immediate aftermath of the pandemic sweeping
through last March, from March 2020 when there was genuine
fears about the economy collapsing, as the world entered a
shutdown for the sake of public health. And we saw as a
result that unemployment immediately skyrocketed to its worse
levels since the Great Depression.
The Paycheck Protection Program was set up really as
a lifeline for businesses and by extension their employees to
incentivize employment and to try to address that problem and
give people an opportunity to make a living and make their
ends meet. The need at that time could not have been greater
for those funds. And the program did that by both matching a
massive amount of funding, hundreds of millions of dollars,
with a streamlined application process that was designed to
send relief to those most in need as quickly as possible.
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The fact that in this case Mr. Benoit and his
co-conspirators were willing to engage in a scheme that took
advantage of those efforts by the government to keep our
citizens, you know, able to make their ends meet underscores,
I think, the extent of the greed involved in this scheme.
The dollar amount here to some extent really
understates the harm because he did not just steal money from
the government or from the bank in this case that ultimately
extended the loan, but each dollar that was taken as a result
of this PPP loan was a dollar that was not available to the
intended beneficiaries of this relief program, which were the
struggling small businesses that needed a lifeline and needed
support to try to keep their employees on the payroll. This
is a significant and serious offense that happened and really
struck at a time when our nation was at one of its most
vulnerable points.
The second aspect of this, and I've referenced this
briefly earlier, was the fact that the defendant engaged in a
separate unrelated scheme to apply for a fraudulent EIDL loan.
That was the Economic Injury Disaster Loan program. And
that's covered in paragraph 95 of the PSR, which there's no
objection to that. It describes the fact that Mr. Benoit
obtained two fraudulent loans under the EIDL program that
exceeded about $250,000.
Now, he submitted that application right around the
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same time period in which he submitted the PPP application
that led to the charges in this case. It was a month before
that he submitted the loan for Premier Choice Office Supplies
for this EIDL program that happened a month before the PPP
loan program that we're talking about in this case.
I think the fact that we're dealing with not one but
three fraudulent loans really shows that this is a crime of
deliberation and calculation over a period of time. This is
not an isolated event, but this was a pattern of efforts by
Mr. Benoit to take advantage of disaster relief programs set
up by the government, which they saw essentially as an easy
mark given the desperation to get those funds out to people
who really needed the relief. And that in itself, again,
supports a higher sentence.
I think all that ties into the second 3553(a) factor,
which is the need for general deterrence given the nature of
the crime. Now, I don't think specific deterrence is a
particularly big factor here in light of the defendant's
relatively minimal criminal history. But given the nature of
the harm caused, the need for deterrence is high not because
of the defendant's background but really because of the nature
of the offense, and that's where general deterrence is a
critical factor here.
The Eleventh Circuit has a long line of cases where
it has noted the importance of general deterrence in fraud
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cases, including the Coleman case and Hays case. And the
reasoning behind that really holds true here, that these are
really crimes of opportunity conducted by cool and rational
actors that if they do not get a significant sentence that
really expresses the message that they will be punished for
engaging in this kind of conduct, they're likely to engage in
a similar deliberation down the road and to try to do it in
the future, or other people will look at that and decide, you
know, cost benefits support trying to engage in a similar
scheme. And I think that really is true in the case of these
COVID relief programs.
As we discussed, the federal government really pushed
to get the relief funds out as quickly as possible and that
meant, of course, it came as a sacrifice, an oversight. I
think an audit that came out from the Small Business
Administration in December of 2020 found that there were over
2 million loans in its estimation that were approved for
nearly $200 million of funding that were potentially not in
conformance with the CARES Act requirements.
Another study, just looking in the news from a few
weeks ago, reported that about 15 percent of the overall loans
obtained from the PPP program were likely fraudulent.
The DOJ, of course, for its part, as well as its law
enforcement partners, have been working constantly since
last -- the spring of 2020 to uncover PPP loan fraud and to
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really prosecute it in an effort to deter it. And for all
that effort, you know, the department nationwide has managed
to prosecute a few hundred people for PPP loan fraud, but
we're at that point we're talking about a few hundred people
compared to literally more than a million loans that likely
were fraudulent. That means that the government's ability to
enforce this as a criminal matter has barely been able to
scratch the surface given that the full extent of the PPP
fraud is likely something that will never be determined, much
less prosecuted by the government, and that heightens the need
in cases like this to send a proper message when that fraud is
detected and is prosecuted.
The last factor I want to mention is the need to
avoid unwarranted sentencing disparities. In this case the
Court has sentenced one defendant already. That was Kahlil
Green. Now, he is not similarly situated to Mr. Benoit, and
it really is a result of a different history and
characteristics of the two defendants.
Mr. Green, the Court may recall, had a fairly
extensive criminal history. And as a result, he was in
Criminal History Category 4. And his guidelines range was 41
to 51 months as a result. But he had the same role in the
offense as Mr. Benoit. He was a business owner. His claims
were very similar to Mr. Benoit's in terms of he provided the
business name, had a rough understanding of what the scheme
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was but did not fill in the particulars in terms of making the
specific claims for the number of employees, the amount of
revenue, various other facts like that.
And one other differentiating factor again is that
Mr. Benoit in this case, unlike what the evidence showed with
Mr. Green, applied for the separate fraudulent EIDL loans,
which are discussed in paragraph 95.
Now, Mr. Green, he received a low-end sentence, which
in his case was 41 months. And, again, the higher guidelines
range appropriately reflected the fact that he had a more
extensive criminal history.
It is the government's position that Mr. Benoit
should similarly receive a low-end guideline sentence. It's
appropriate given the nature of their very similar roles in
the offense and their similar understanding of the wrongdoing
that they conducted with the PPP scheme.
I'm going to just briefly address a couple of
additional arguments that have been raised by Mr. Egbase both
in the sentencing memorandum as well as his argument this
morning. There was an effort in both, I think, by Mr. Benoit
to somewhat minimize the harm that he caused by noting that he
really did not receive funds as a result of this PPP loan
fraud. I think the memo says that he did not touch or spend a
cent on himself from the fraud.
The memo, to its credit, however, I think
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acknowledges and concedes the reason why this was the case,
which was that the government fairly early in its
investigation froze the account where a substantial portion of
the funds were still sitting at Mr. Benoit's disposal. And,
in fact, I think the record again shows that Mr. Benoit would
have retained a substantial amount of the funds if the
government had not at an early stage detected the fraud and
stopped the scheme.
Mr. Benoit himself in the interview with the
government told Special Agent Stites with the FBI that his cut
of the fraudulent loan was supposed to be about 20 percent of
the loan proceeds. And there was an e-mail that was sent from
Mr. Baptiste to Mr. Benoit that stated that his cut from the
fraudulent loan would be over $300,000. And that's consistent
I think if you look at the withdrawals that are discussed
after the loan is funded in paragraph 92 of the PSR. And that
shows that after the funds come in, the fraudulent funds come
in from the loan application, that Mr. Benoit makes a series
of transactions, transfers money to various other
co-conspirators, and at the end of all that there's more than
$300,000 left in the account.
According to the plea agreement it notes and
recognizes that he had over $450,000 seized in two separate
bank accounts in forfeiture as part of his role in the scheme.
I think all of that means that -- it does not suggest that
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Mr. Benoit deserves somehow a break because the government in
this case was able to do its job and caught the fraud at an
early stage before he was able to spend assets, launder the
assets or do anything else to disburse the funds.
In addition to that, of course, there's this claim
about Mr. Benoit's medical conditions. Those medical
conditions are also discussed in the PSR itself. And I do
not mean to minimize those conditions and how they affect
Mr. Benoit when I would make an argument on this front. But I
think the language from the guidelines in 5H1.4 is telling and
instructive to the Court about how rare a downward departure
is in these circumstances.
It notes that medical conditions essentially should
be grounds for downward departure only if there's an
extraordinary physical impairment, such as the case of a
seriously infirmed defendant. And I also note that those
health conditions need to be present in an unusual degree.
I think the cases interpreting the guidelines have
shown how rare this applies in order to take a defendant like
Mr. Benoit out of the heartland of many other defendants who
also suffer from their share of physical ailments. I think
the facts of the defendant's own cases help to underscore this
in pages six through eight of his memo.
Just to cite some of the examples from those cases,
you're dealing with one case with a double amputee that needed
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medical care, a defendant that was recovering from a brain
tumor and had ongoing health issues. There's a discussion of
a 78-year-old defendant with depression and coronary artery
disease.
The record here I think just in comparison to those
other cases and the cases that find a downward variance or
departure based on health conditions I think is just a far cry
from those extraordinary physical impairments you see in those
other cases.
He mentions the gastric sleeve from 13 years ago.
There's no statement in either the PSR or medical evidence
provided about how that could not be treated in BOP custody.
The other conditions in terms of high blood pressure and
depression are more recent conditions, but we also do not have
any more documentation to describe really the impact of those
as well as the inability of BOP to address that. And that's
where I think, again, in addition to the missing medical
documentation what we're missing from the argument is any
showing that the Bureau of Prisons would be unable to care for
the defendant when he's put in custody.
The Health Services Division of the Bureau of Prisons
has more than 3,000 healthcare professionals, including 750
Public Health Service staff that are commissioned officers
detailed from HHS. The Bureau of Prisons also has, of course,
a record of treating inmates with serious health conditions,
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including, of course, it has clinical practice guidelines for
the treatment of depression.
As part of that, during the initial classification
and designation stage after a sentence is imposed the Bureau
of Prisons evaluates the medical care that may be needed by
any defendant and assigns and makes to appropriate
institutions that are capable of providing the medical care
that may be required. It has in addition to that medical
referral centers that it can send people outside of the prison
system.
So these are not uncommon conditions that Mr. Egbase
has raised. And there's no showing that the Bureau of Prisons
medical facilities are unable to treat these conditions or
that these conditions are so extraordinary that he would need
to be treated outside of the BOP system.
If, however, there were ever a situation where his
health conditions were not able to be addressed adequately in
incarceration, there's still a fail-safe, which is in
Section 3582(c). And that provides, again, the ability for
the Bureau of Prisons to seek a modification or sentence
reduction if there's a compelling reason for reduction,
including the fact -- and I know the Court is well aware of
this since there's been many pleas for this in light of the
pandemic, changes that may result due to a defendant's health
condition certainly can support a motion for a reduction if
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it's determined that the Bureau of Prisons is not adequately
suited to address those conditions.
So overall we believe that a guideline sentence, and
specifically that low-end 27-month sentence, properly reflects
the seriousness of the offense and the magnitude of the harm
to the many, many businesses that would have needed those --
that desperately needed PPP loan funding, as well as
reflecting the need for specific and general deterrence in
this case. We think that's a fair result and we think that's
a proper result under Section 3553(a).
THE COURT: Thank you, Mr. Kitchens.
Is there any other matter that the Court needs to
take up or anything else from either side before I issue a
sentence in this case, counsel?
MR. KITCHENS: Not from the government, your Honor.
MR. EGBASE: No, your Honor, except to just add that
if the Court is inclined to impose incarceration, that
Mr. Benoit is requesting electronic monitoring or home
incarceration. And the reason for that is that -- I heard the
government's arguments and we are still in a pandemic and
Mr. Benoit has a preexisting condition. I don't think he'll
be suitable to be in a group incarceration or in a prison at
this point. I would like the Court to take that into
consideration.
THE COURT: All right. Thank you, Mr. Egbase.
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Mr. Benoit, if you could please stand, sir. Thank
you.
Pursuant to the Sentencing Reform Act of 1984, it's
the judgment of the Court that you, Bern Benoit, are hereby
committed to the custody of the Federal Bureau of Prisons to
be imprisoned for a term of 27 months custody as to Count 7.
You must pay to the United States a special
assessment of $100 due immediately. The assessment should be
paid to the Clerk, US District Court, Northern District of
Georgia.
The Court finds that you do not have the ability to
pay a fine and cost of incarceration. The Court will,
therefore, waive the fine and cost of incarceration in this
case.
It's further ordered that you shall make restitution
in the amount of $1,105,217 for distribution to the following
victims:
Cross River Bank Legal Department, 400 Kelby
Street, 14th Floor, Fort Lee, New Jersey, 07024,
legaldepartment@crossriverbank.com, $830,417;
Also the US Small Business Administration, the
address will be provided by the government, in the amount of
$274,800.
Restitution shall be paid in full immediately.
You must pay the above-noted financial penalties in
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accordance with the schedule of payment sheet of the judgment.
Payment of criminal monetary penalties is due during
the period of imprisonment. All criminal monetary penalties,
except those payments made through the Federal Bureau of
Prisons Inmate Financial Responsibility Program, are to be
made payable to the Clerk, US District Court,
2211 US Courthouse, 75 Ted Turner Drive, Southwest, Atlanta,
Georgia, 30303.
Any balance that remains unpaid at the commencement
of the term of supervision shall commence within 60 days after
release from imprisonment on the following terms:
Payable at a rate of no less than 250 monthly to the
US District Court Clerk.
You must notify the Court of any changes in economic
circumstances that might affect the ability to pay this
financial penalty.
The Court determines that you do not have the ability
to pay interest and it's ordered that the interest requirement
is waived for restitution.
Upon release from imprisonment you will be on a term
of supervised release for five years. And I want to explain
those terms to you as well, but, Mr. Benoit, you can be seated
for that portion of my sentence.
You must comply with the mandatory conditions of
release, including you must not commit another federal, state
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or local crime.
You must not unlawfully possess a controlled
substance.
You must refrain from any unlawful use of a
controlled substance.
You must submit to one drug test within 15 days of
release from imprisonment, and at least two periodic drug
tests thereafter as determined by the Court.
You must cooperate in the collection of DNA as
directed by the probation officer.
You must make restitution in accordance with 18 USC,
Sections 3663 and 3663(a) or any other statute authorizing a
sentence of restitution.
As part of your supervised release you must comply
with the standard conditions of supervision. These conditions
are imposed because they establish basic expectations for your
behavior while on supervision and identify the minimum tools
needed by a probation officer to keep informed, report to the
court and bring about improvements in your conduct and
condition. Standard conditions of supervision will be
included in the judgment.
You must comply with the following special conditions
during the term of supervised release:
You must make full and complete disclosure of your
finances and submit to an audit of your financial documents at
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the request of your probation officer.
You must provide your probation officer with full and
complete access to any requested financial information and
authorize the release of any financial information.
The probation office may share the financial
information with the United States Attorney's Office.
You must not incur new credit card charges or open
additional lines of credit without the approval of the
probation officer.
You must participate in a mental health treatment
program and follow the rules and regulations of that program.
Such program may require that you submit to an
evaluation and/or testing. The probation officer, in
consultation with the treatment provider, will supervise your
participation in the program, provider, location, modality,
duration, intensity and et cetera. You must pay all or part
of the cost of the program based on your ability to pay unless
excused by the probation officer.
You must take all mental health medication prescribed
by your treating provider.
You must pay for all or part of the cost of
medication based on your ability to pay unless excused by the
probation officer.
You must refrain from excessive use of alcohol.
You must submit your person, property, house,
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residence, vehicle, papers, computers, other electronic
communications or data storage devices or media or office to a
search conducted by a United States Probation Officer.
Failure to submit to a search may be grounds for revocation of
release. You must warn any other occupants that the premises
may be subject to searches pursuant to this condition.
An officer may conduct a search pursuant to this
condition only when reasonable suspicion exists that you
violated a condition of your supervision and that areas to be
searched contain evidence of this violation. Any search must
be conducted at a reasonable time and in a reasonable manner.
You must permit confiscation and/or disposal of any
material considered to be contraband or any other items which
may be deemed to have evidentiary value of violations of
supervision.
And given that this is a remote video conference, I
assume that the defense is requesting a voluntary surrender.
And I assume that the government does not oppose that
voluntary surrender. Is that correct, Counsel?
MR. KITCHENS: We do not oppose it, your Honor.
THE COURT: And, Mr. Egbase, do you have any
suggested time range for when he will surrender?
MR. EGBASE: I'm -- just a minute, your Honor. I
would like to confer with my client, please.
THE COURT: Very well. If you'll mute your line.
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(Pause in the proceedings)
MR. EGBASE: I'm back, your Honor, if the Court can
hear me.
THE COURT: Yes.
MR. EGBASE: My client is requesting 30 days, your
Honor.
THE COURT: Any objection, Mr. Kitchens?
MR. KITCHENS: No. No, your Honor.
THE COURT: Very well. The defendant is to report
for service of sentence in 30 days -- no later than 30 days
from today.
Release conditions previously established will
continue to apply.
Failure to report for service of the sentence is a
criminal offense.
The Court does not have the authority to select the
detention facility but can recommend a specific detention
facility and the Bureau of Prisons will ultimately decide.
Mr. Egbase, any particular requests on behalf of your
client?
MR. EGBASE: Any facility that is close to the
Los Angeles area, your Honor, is okay with my client.
THE COURT: Very well.
The Court recommends to the Bureau of Prisons that
Mr. Benoit be confined in a facility as close to Los Angeles,
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California, as possible. And the Court will note that he has
significant family and friend ties in that area, so that's
particularly warranted in this case.
The Court also recommends to the Bureau of Prisons
that the defendant be placed in an institution with mental
health counseling.
This sentence is made in view of the sentencing goals
delineated in 18 USC, Section 3553(a), and the parties'
arguments as to those factors, including:
The nature and circumstances of the offense and the
history and characteristics of the defendant;
The need for the sentence imposed to reflect the
seriousness of the offense, to afford adequate deterrence and
to protect the public;
The kinds of sentences available;
The kinds of sentence in the sentencing range
established for the applicable category of offense committed
as set forth in the sentencing guidelines;
Any pertinent policy statement;
The need to avoid sentencing disparity;
And the need to provide restitution to victims.
This sentence meets the criteria of punishment,
deterrence and incapacitation and is sufficient but not
greater than necessary to comply with the directives of
Section 3553(a).
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Based on these considerations, I find that this
sentence is just and appropriate, particularly based on
several factors that I found particularly important. One is
the amount at issue here, which was substantial; however, I
recognize and accept the argument that Mr. Benoit was not the
most culpable actor in this scheme.
It was also important to me to learn about
Mr. Benoit, both in the presentence report as well as the many
letters, Mr. Egbase, that you had sent in on behalf of
Mr. Benoit. I thought those were very compelling. It painted
a picture for me of someone who is a good friend and a good
son, particularly to his mother.
I was also moved by the fact that he unfortunately
grew up without having a father in his life, which is
something that I see quite often in sentencing cases
unfortunately. So I'm sorry that that was his situation as
well.
MR. EGBASE: Thank you, your Honor.
THE COURT: And I'm also cognizant of his both
physical and mental health issues; however, I do not think
they rise to the level of being an extraordinary physical
impairment such that would allow a departure under guidelines
5H1.4, nor do I believe the variance that was requested should
be given in this case given my review of the various factors
at issue. However, I'm cognizant of those physical and mental
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
39
impairments. And one reason I'm at the very low end of the
guideline range is because I do take some pause really on the
mental health aspect of it. I understand that he did have
some issues fairly recently, and he's now in counseling with a
psychiatrist that seems to be helping him.
So it's not lightly, I would like Mr. Benoit and you
to know, that I issue a sentence that includes a term of
confinement. In a perfect world he would keep sessions with
the same -- with the same counselor. I'm hopeful that they'll
be able to continue that counseling for him while he's
confined but someone who can do hopefully as good of a job.
But I'm wary of that and understand the situation certainly.
Therefore, I will not be departing or varying in this sentence
as announced.
Before I advise the defendant of his appeal rights,
does the government or defendant have any further objections
to the findings of the Court, the guideline calculation or to
the sentence or the manner in which it's been pronounced?
MR. EGBASE: No, your Honor.
MR. KITCHENS: No objections, your Honor, but just
want to note there's a consent preliminary order of forfeiture
that's been entered in this case. That's Docket Number 101.
And that covers two separate JPMorgan Chase Bank accounts.
$431,408.28 in one account. And $30,025.08 in the other
JPMorgan Chase account. We would just ask that the forfeiture
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be incorporated as part of the judgment.
THE COURT: All right. Not hearing any objection
from Mr. Egbase, I will grant that request.
And I think I said this, but in an abundance of
caution I also note that this sentence meets the criteria of
punishment, deterrence and incapacitation and is sufficient
but not greater than necessary to comply with the directives
of Section 3553(a).
Mr. Benoit, you can appeal your conviction if you
believe your guilty plea was somehow unlawful or involuntary
or if there is some other fundamental defect in the
proceedings that was not waived by your guilty plea.
You also have a statutory right to appeal your
sentence under certain circumstances, particularly if you
think the sentence is contrary to law. However, a defendant
may waive those rights as part of a plea agreement, and you've
entered into a plea agreement which, with very limited
exceptions, waives most of your rights to appeal the sentence
itself. Such waivers are generally enforceable, but if you
believe the waiver is unenforceable, you can present that
theory to the Appellate Court.
With few exceptions, any notice of appeal must be
filed within 14 days of a judgment being entered in your case.
If you're unable to pay the cost of your appeal, you
may apply for leave to appeal in forma pauperis or without
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payment of fees. If you so request, the Clerk of Court will
prepare and file a notice of appeal on your behalf. On appeal
you may also apply for court-appointed counsel.
If you have any further questions about your right to
appeal, I'm sure that Mr. Egbase would be happy to advise you
further on this matter.
Mr. Benoit, do you have any further questions about
anything I've said today at this sentencing hearing, sir?
THE DEFENDANT: No, your Honor.
THE COURT: Counsel, anything else further that we
need to discuss?
MR. EGBASE: No, your Honor.
MR. KITCHENS: No, your Honor.
THE COURT: All right. Good to see both of you.
Ms. Walker, Ms. Coudriet and Officer Ridley, thank
you for your assistance in today's proceedings as well.
Mr. Benoit, best of luck to you, sir. I know that
you have many people out there, friends and family, who care
about you very much and that you're important to them and
their lives. And I wish you future success. And I hope that
you're able to complete this term of imprisonment without
issue and get back to your family and friends that I know need
you very much.
That concludes this proceeding.
Thank you, everyone.
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(PROCEEDINGS REPORTED WERE CONCLUDED 11:20 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 23rd Day of January, 2024.
________________________________
PENNY PRITTY COUDRIET, RMR, CRR
OFFICIAL COURT REPORTER
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