Court filing
TRANSCRIPT of Proceedings as to Darrell Thomas, Andre Lee Gaines, Kahlil Gibran Green,… — USA v. Thomas et al (Dkt. 895)
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. 895 · 2024-02-02 · Docket on CourtListener
Summary
A transcript of the September 17, 2021 change of plea hearing for Andre Lee Gaines before District Judge J.P. Boulee of the U.S. District Court for the Northern District of Georgia, captioned under 1:20-cr-00296-JPB and 1:21-cr-00206-JPB and filed February 2, 2024 as Document 895. Tal Cohen Chaiken for the government verifies the signatures on the Guilty Plea and Plea Agreement, and Brian Mendelsohn appears for Gaines. After the court and counsel address Gaines's competence to enter a plea, Mendelsohn states that Gaines is pleading to the false statement charge as opposed to the fraud charge. The court explains his right to indictment by a grand jury, which he waives to proceed on an information, and the trial rights given up by pleading guilty. It refers the case to a probation officer for a presentence report.
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.
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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
)
1:21-CR-00206-JPB
ANDRE LEE GAINES,
)
)
DEFENDANT.
)
TRANSCRIPT OF CHANGE OF PLEA PROCEEDINGS
BEFORE THE HONORABLE J.P. BOULEE
UNITED STATES DISTRICT JUDGE
SEPTEMBER 17, 2021
APPEARANCES:
ON BEHALF OF THE GOVERNMENT:
TAL COHEN CHAIKEN, ESQ.
NATHAN KITCHENS, ESQ.
ASSISTANT UNITED STATES ATTORNEY
ON BEHALF OF THE DEFENDANT:
BRIAN MENDELSOHN, ESQ.
STENOGRAPHICALLY RECORDED BY:
PENNY PRITTY COUDRIET, RMR, CRR
OFFICIAL COURT REPORTER
UNITED STATES DISTRICT COURT
ATLANTA, GEORGIA
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(PROCEEDINGS HELD IN OPEN COURT AT 3:09 PM, ATLANTA, GEORGIA)
THE COURT: Good afternoon to all of you. And
apologies again. I know that we were originally set for 2:30
and it's 3:15, but we just had a sentencing that went a little
bit longer -- well, a lot longer than we had expected. So my
apologies to counsel, Mr. Gaines and any family or friends
that may also be here.
So with that, Ms. Walker, if you could call the case
and then if counsel could announce their appearances.
COURTROOM DEPUTY CLERK: Yes, your Honor. This is
case number 21-CR-206 and 20-CR-296, USA v. Gaines.
MS. CHAIKEN: Good afternoon, your Honor. Tal
Chaiken and Nathan Kitchens from the US Attorney's Office for
the United States.
THE COURT: Good afternoon to both of you.
MR. MENDELSOHN: Good afternoon. Brian Mendelsohn
here with Mr. Gaines.
THE COURT: Good to see you, Mr. Mendelsohn.
And, Mr. Gaines, good to see you as well, sir.
Mr. Mendelsohn, if you and Mr. Gaines will please
stand, Ms. Walker will swear him in.
(The defendant was duly sworn)
COURTROOM DEPUTY CLERK: Please say your name into
the microphone, please.
THE DEFENDANT: Andre Lee Gaines.
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THE COURT: Thank you, Ms. Walker.
Ms. Chaiken, if you can please verify the signatures
on the plea agreement.
MS. CHAIKEN: Yes, your Honor.
Mr. Gaines, I'm showing you a document that's titled
"Guilty Plea and Plea Agreement." On page 18 above where it
says your name, is that your signature?
THE DEFENDANT: Yes.
MS. CHAIKEN: And, Mr. Mendelsohn, on page 18 above
where it says your name, is that your signature?
MR. MENDELSOHN: Yes, it is.
MS. CHAIKEN: And for the record, this page 18 is
also signed by a representative for the United States.
Mr. Gaines, on page 19 above where it says your name,
is that your signature?
THE DEFENDANT: Yes.
MS. CHAIKEN: Mr. Mendelsohn, on page 20 above where
it says your name, is that your signature?
MR. MENDELSOHN: Yes, it is.
MS. CHAIKEN: Your Honor, may I tender the plea
agreement?
THE COURT: Sure.
Mr. Gaines, before I can accept your plea of guilty,
I need to go over several matters with you. As we go through
this process, if anything I state is unclear, let me know and
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I will repeat or rephrase it for you. It's important that you
understand not only my statements to you but also my
questions. You need to understand my questions so that you
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 we can have an accurate record of these
proceedings.
Do you understand, sir?
THE DEFENDANT: Yes.
THE COURT: How old are you, sir?
THE DEFENDANT: Sixty-seven.
THE COURT: How far did you go in school?
THE DEFENDANT: One year in college.
THE COURT: In the last 24 hours have you had any
drugs, medicine, pills or had any alcoholic beverages to
drink?
THE DEFENDANT: No alcohol. I took my regular pills.
THE COURT: Do they affect your judgment or actions
in any manner or your ability to understand these proceedings
and enter a knowing plea?
THE DEFENDANT: No.
THE COURT: Have you been treated recently for any
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mental illness or addiction to alcohol or drugs?
THE DEFENDANT: No.
THE COURT: And, Mr. Mendelsohn, are you aware of any
issues regarding your client's competence to enter a plea?
MR. MENDELSOHN: Judge, he's -- I believe he is
competent to enter a plea. And as I'm sure we'll talk about
later on, he does have a number of cognitive impairments as a
result of a stroke that he had in or around 2018, but he is
able to assist me and does -- and understands the parties and
would satisfy the competency standards.
THE COURT: So I understand he had a stroke. When
was that?
MR. MENDELSOHN: Approximately 2018.
THE COURT: Okay.
Mr. Gaines, when you answered my questions earlier, I
asked a follow-up question about your medicine. And you
mentioned that despite your medicine, you could still
understand these proceedings and enter a knowing plea.
Let me ask you a little bit about your stroke there.
And, again, I just want to make sure that you understand these
proceedings and are competent to enter this plea. I'm not
trying to otherwise or for any reason pry into your medical
condition, but can you tell me a little bit about your stroke
and how that has affected you.
THE DEFENDANT: It's affected me somewhat but not
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much anymore.
THE COURT: Can you expand on that for me? When you
say it doesn't affect you much anymore, what's the current
effect of your stroke?
THE DEFENDANT: Just that it's hard for me to walk
now. And my left side, my muscles, it's hard for me to lift.
THE COURT: It's more physical as opposed to any
mental issues that are affecting your competence, is that
right?
THE DEFENDANT: Right.
MR. MENDELSOHN: Judge, I don't want to mislead the
Court any. I have had Mr. Gaines evaluated by a geriatric
neuropsychologist. And I've shared that report with the
government. And in part because of that report is why we're
pleading to the false statement charge as opposed to the fraud
charge.
The report found that he suffers from cognitive
problems and has some vascular dementia. What that -- the
impact that that has on him is that it causes some memory
issues and some difficulties with executive function, so the
logic, reasoning, decisionmaking ability to process lots of
information.
Because of that, we have spent a lot of time going
over it. I mean, it's not one of these things that it's
impossible he can't do, the stroke has impacted that and
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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caused him some cognitive impairments. But with the work of
going over the information with him, spending a lot of time
doing it and working with him, he is able to understand and to
do it. I mean, the difficulty comes in things like throwing a
lot of information at him really quickly and having him try to
sort all of that out. But since we have been able to spend a
lot of time going over everything, he can be -- he can
understand and he can do it.
THE COURT: Okay.
Mr. Gaines, do you agree with what your attorney just
said?
THE DEFENDANT: Yes.
THE COURT: What's the government's position on this,
Ms. Chaiken? It sounds like it's something y'all have had
some discussions about and evaluation of.
MS. CHAIKEN: Yes, your Honor. We defer to
Mr. Mendelsohn's -- he's obviously spent a lot more time
with his client. We have engaged in discussions with him
especially after receiving the psychological evaluation, and
that is what led to the agreement that we've made here today
to have Mr. Gaines plead to a much lesser charge than what he
was initially charged with.
And as far as his competence to enter his -- this
plea, we defer to Mr. Mendelsohn, who we understand has had
lengthy meetings with him leading up to this proceeding.
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THE COURT: Okay. Well, I'm satisfied based on what
I've heard that both Mr. Gaines and Mr. Mendelsohn are aware
of the issue and have discussed the issue and feel that
Mr. Gaines is competent to enter a plea, but what I'm hearing
is that we want to make sure that we're going slow enough and
not throwing enough -- all at the same time that it gets
confusing.
So I'm going to move a little bit slower than I
normally would. And, Mr. Gaines, if we get to the point that
you feel like it's too much and you don't understand, let me
know or let your attorney know and we will either take a break
and rejoin later today or we can do part of it today, part of
it next week, part of it the week after that.
The bottom line is it sounds like we just need to
make sure we're going slow and make sure you're digesting
this. And you're going to need to be the one telling me.
And, Mr. Mendelsohn, I'll be looking to you as well
to be checking in with your client.
Okay, Mr. Gaines?
THE DEFENDANT: Yes.
THE COURT: All right. What I'm going to do first
is go over 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 your rights.
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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The first thing I want to talk to you about is the
fact that you were charged here by an information as opposed
to an indictment.
Under the Constitution and laws of the United States
you have the right to be -- right to require the government to
present your case to a grand jury for indictment before
entering a plea. The grand jury would receive evidence only
from the government. And based on that evidence, the grand
jury would determine if there was sufficient evidence
presented to require you to answer the charges. If you waive
or give up your right to an indictment, charges may be brought
against you by means of an information filed by the United
States Attorney.
The charges in your case have been brought by an
information. Are you willing to give up your right to require
the government to first present the charges to a grand jury
and proceed on the information that's been filed by the United
States Attorney?
THE DEFENDANT: Yes.
THE COURT: Do you understand that under the
Constitution and laws of the United States you have the right
to plead not guilty and have a trial by jury?
THE DEFENDANT: Yes.
THE COURT: Do you understand that you're entitled to
a speedy and public trial on the charges against you?
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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THE DEFENDANT: Yes.
THE COURT: Bear with me a moment.
I'm sorry, I said "charges against you." I should
have said the charge against you.
Do you understand that you have the right to be
represented by an attorney throughout all proceedings, and if
you cannot afford an attorney, one will be appointed to
represent you at no cost to you?
THE DEFENDANT: Yes.
THE COURT: Do you understand that if you pled not
guilty and went to trial, at the trial you would be presumed
to be innocent and the government would have to overcome that
presumption and prove you guilty beyond a reasonable doubt?
THE DEFENDANT: Yes.
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 guilty beyond a
reasonable doubt?
THE DEFENDANT: Yes.
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.
THE COURT: Do you understand that during a trial
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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witnesses for the government must come to court and testify in
your presence?
THE DEFENDANT: Yes.
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.
THE COURT: Do you understand that at a trial, while
you would have the right to testify if you chose to do so, you
also would have the right not to testify?
THE DEFENDANT: Yes.
THE COURT: And do you understand that if you chose
not to testify or put on any evidence, those facts could not
be used against you?
THE DEFENDANT: Yes.
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.
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 that you're guilty of the charge based on your
admission that you're guilty. Do you understand that?
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THE DEFENDANT: Yes.
THE COURT: Are you willing to give up your right to
a trial and proceed with the plea of guilty at this time?
THE DEFENDANT: Yes.
THE COURT: I'm about to move on to, I guess, the
second group of questions. Are you okay to go forward now or
would you like a short break?
THE DEFENDANT: Yes.
MR. MENDELSOHN: Are you ready to go forward or do
you want a break?
THE DEFENDANT: To go forward?
THE COURT: I took that to say, yes, you're okay to
go forward, sir?
THE DEFENDANT: Yes.
THE COURT: You earlier verified your signature on
the plea agreement that you entered into with the government.
In a moment, I will ask the Assistant US Attorney to review
the terms of the plea agreement other than the potential
penalties and the factual basis of the plea, which we will
discuss a bit later in the proceeding.
After that I'll be asking you whether the agreement
as presented accurately reflects your understanding of the
agreement that you've reached with the government.
Ms. Chaiken.
MS. CHAIKEN: Thank you, your Honor.
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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The plea agreement provides that Mr. Gaines will be
pleading to Count 1 of the criminal information.
Pursuant to paragraph 11, the government agrees to
dismiss the indictment against the defendant in case number
1:20-CR-296.
Paragraph 12 sets forth that the government agrees
not to bring further charges related to the charges to which
Mr. Gaines is pleading guilty.
Paragraphs 13 and 14 set forth a series of guideline
stipulations. Specifically, paragraph -- specifically the
applicable offense guideline is Section 2B1.1, and that there
will be no adjustment pursuant to Section 2B1.1(b)(1) because
the amount of loss is $6,500 or less.
Paragraph 15 provides that the government will
recommend an adjustment for acceptance of responsibility to
the maximum extent authorized by the guidelines subject to the
exceptions that are listed in that paragraph.
Paragraph 16 provides that the parties recognize
each party reserves the right to make recommendations for
sentencing and that there are no agreements on the guidelines
other than those mentioned in the agreement.
Paragraph 17 provides that the United States reserves
the right to modify its sentencing recommendation if it
receives additional information.
Paragraph 18 provides a cooperation agreement, that
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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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 other proceedings.
Paragraph 19 provides that the government agrees to
abide by Section 1B1.8 of the United States Sentencing
Guidelines to not use information previously unknown to the
government for sentencing purposes with the caveat that if the
defendant is not truthful or candid in cooperation, he may be
prosecuted for perjury, false statements, obstruction and all
information he provided may be used against him.
Paragraph 20 sets forth a conditional 5K and Rule 35
motion. The government agrees to inform the Court of the
defendant's cooperation. And if the government determines
that that cooperation qualifies as substantial assistance, it
will file a motion for downward departure if that happens
before sentencing, or Rule 35 motion for reduction of sentence
if that happens after sentencing.
The defendant understands that the government alone
determines if the defendant provided substantial assistance.
And he understands that the government may recommend a
sentence if it files such a motion but that the ultimate
decision on his sentence rests with the Court.
Paragraph 21 provides that the government agrees to a
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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low-end recommendation subject to the caveat in paragraph 15
related to acceptance of responsibility.
Paragraph 22 provides that the government agrees to
make no specific recommendation as to the fine to be imposed.
Paragraphs 23 through 28 provide that the defendant
agrees to forfeiture of $177,828.46 seized from a JPMorgan
Chase account held in the name of Gaines Reservation & Travel,
and $9,314.28 from a PNC Bank account in the name of Gaines
Reservation & Travel. And the defendant agrees to the
forfeiture procedure set forth in paragraphs 23 through 28.
Paragraphs 29 through 30 provide that the defendant
agrees to pay $806,710, plus applicable interest in
restitution to the two victims and in the amounts identified
in the plea agreement. And that the defendant agrees to
cooperate fully in the collection of restitution.
Paragraph 31 provides that the defendant agrees to
pay a special assessment of $100.
Paragraphs 32 through 36 provide that the defendant
agrees to cooperate fully in the collection of any restitution
or fine pursuant to the terms that are laid out in those
paragraphs.
Paragraph 37 provides that the defendant understands
the recommendations in the plea agreement are not binding on
the Court.
Paragraph 38 sets forth a limited waiver of appeal,
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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which I will read in full into the record.
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
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 39 sets forth the defendant agrees to the
standard FOIA and Privacy Act waiver.
And paragraph 40 provides there are no other
agreements between the parties.
THE COURT: Thank you.
Mr. Gaines, does that accurately reflect the
agreement you believe you've reached with the government?
THE DEFENDANT: Yes.
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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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?
THE DEFENDANT: Yes.
THE COURT: In other words, if I choose not to follow
some recommendation that the government makes, do you
understand that you will still be bound by your plea of guilty
and would not be entitled to withdraw the plea based on the
Court not following the recommendation?
THE DEFENDANT: Yes.
THE COURT: Is this the only agreement that you've
entered into with the government?
THE DEFENDANT: Yes.
THE COURT: Other than the terms of this agreement
has any promise of any kind been made to you to cause you to
plead guilty?
THE DEFENDANT: Yes.
THE COURT: Okay. What other promise --
THE DEFENDANT: No. No, there's -- there's nothing
else.
THE COURT: All right. So the answer to my
question -- other than the terms of this agreement has any
promise of any kind been made to you, the answer to that
question is no?
THE DEFENDANT: The answer is no.
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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THE COURT: Okay. Thank you.
Per the terms of the plea agreement, the United
States Attorney has agreed not to bring any additional charges
related to the offense to which you're pleading guilty.
Other than those terms, has anyone threatened or
forced you to plead guilty or told you that if you do not
plead guilty further charges will be brought against you or
other adverse action taken against you?
And that's a mouthful, so I'm going to let
Mr. Mendelsohn talk with you a second just to make sure that
you understand my question.
MR. MENDELSOHN: Judge, I boiled that down to has
anybody made a threat against you or is anybody holding a gun
to your head to make you plead guilty.
THE COURT: All right. What's the answer to that
question, sir?
THE DEFENDANT: No.
THE COURT: All right. And, Mr. Mendelsohn, 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. MENDELSOHN: No.
THE COURT: All right. Mr. Gaines, I'm going to now
have Ms. Chaiken go over the factual basis for the plea.
Would you like to take a break or are you okay to kind of go
into this next section of the plea colloquy?
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MR. MENDELSOHN: He feels okay to go forward.
THE COURT: What's that?
MR. MENDELSOHN: He feels okay to go forward.
THE COURT: So now I'm going to 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: Your Honor, just so it's clear for the
record, although Mr. Gaines was previously charged by a
criminal indictment, this is his first appearance on the
criminal information. And we do have the waiver of indictment
form. And we just want to make sure that we have an
opportunity to review the nature of the charge with him before
that information is deemed filed and we get too far into the
plea hearing.
THE COURT: Okay. I was not aware of that. So you
want to take a moment and do that now?
MS. CHAIKEN: Yes, your Honor, if we could.
THE COURT: Go ahead.
MS. CHAIKEN: Would you like me to --
THE COURT: Sure. I've already asked him the
question about the waiver of indictment, so go ahead.
MS. CHAIKEN: Mr. Gaines, do you understand that the
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criminal information that we gave you a copy of charges you
with a violation of Title 18 United States Code, Section 1001,
which makes it a crime to make false statements to a federal
law enforcement officer?
THE DEFENDANT: Yes.
MS. CHAIKEN: And have you had an opportunity to
review the criminal information with your attorney?
THE DEFENDANT: Yes.
THE COURT: And do you understand that you have the
right to be charged by criminal indictment rather than by this
information, meaning that we would have to present your case
to the grand jury and have them return an indictment as
opposed to us coming to court in this information and making
the allegation against you?
MR. MENDELSOHN: One second.
MS. CHAIKEN: That was a mouthful, sorry.
(Pause in the proceedings.)
MR. MENDELSOHN: So I translated that to do you
understand that we could present -- you have the right to have
this presented to a grand jury as opposed to having a charge
made by the US Attorney. And his response is, yes, he does
understand.
MS. CHAIKEN: Would you like us to read a copy of the
information to you or do you waive a formal reading of the
information?
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THE DEFENDANT: Waive.
THE COURT: And given your understanding of these
rights and of the nature of the charge in the information, is
it your desire to waive formal indictment and proceed with
charges pursuant to the criminal information?
THE DEFENDANT: Yes.
THE COURT: And is this your signature on the waiver
of indictment form above your name?
THE DEFENDANT: Yes.
THE COURT: And, Mr. Mendelsohn, is that your
signature on the waiver of indictment form above your name?
MR. MENDELSOHN: Yes, it is.
MS. CHAIKEN: Your Honor, may I tender the waiver of
indictment form?
THE COURT: Sure. Thank you.
MS. CHAIKEN: Thank you.
THE COURT: Anything else on that front, Ms. Chaiken?
MS. CHAIKEN: No, your Honor. Would you like me to
proceed with the elements?
THE COURT: Yes. Thank you.
MS. CHAIKEN: Thank you, your Honor.
Mr. Gaines is pleading guilty to Count 1 of the
criminal information, which charges making a false statement
to a department or agency of the United States in violation of
Title 18 United States Code, Section 1001.
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The elements of that offense are as follows:
One, the defendant made a statement or
representation;
Two, the statement was false, fictitious or
fraudulent;
Three, the statement or representation was material;
Four, the defendant acted knowingly and willfully;
And, five, the statement or representation pertained
to a matter within the jurisdiction of the executive branch of
the United States Government.
THE COURT: Thank you. And, Mr. Gaines, do you
understand that those are the elements that the government
would have to prove beyond a reasonable doubt in order to
convict you of the charge?
THE DEFENDANT: 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 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.
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If you do, tell me, and we will discuss those facts at that
time.
Ms. Chaiken.
MS. CHAIKEN: Thank you, your Honor.
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 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 a 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 asked the applicant
to provide information related to their loan application,
including the amount of the business's average monthly
payroll, the number of the business's employees and the
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purpose of the loan, with options for payroll, lease or
mortgage interest, utilities and/or other.
The lender then used this information to calculate
the amount of the loan that the business was eligible to
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 a
certification that the funds would be used to retain workers
and maintain payroll or to make mortgage interest payments,
lease payments and utility payments.
Defendant Andre Lee Gaines is the owner of a Georgia
company called Gaines Reservation & Travel, which I'll refer
to as Gaines Reservation.
On or about May 18th, 2020, Gaines Reservations
submitted a PPP loan application. In the PPP loan
application, Gaines Reservation represented that it had 69
employees and $322,684 in average monthly payroll and that the
purpose of the loan was payroll, lease, mortgage interest or
utilities.
To support these payroll figures, Gaines Reservations
submitted IRS Form 941s, which are quarterly employer's tax
returns for Gaines Reservations for each quarter of 2019 and a
JPMorgan Chase Bank statement for Gaines Reservation for
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February of 2020.
The documents submitted with Gaines Reservations PPP
loan application were fabricated. The IRS confirmed that
Gaines Reservation did not file a Form 941 for any quarter in
2019 and bank records for Gaines Reservations show that the
bank statement submitted with the PPP loan application was
fake.
In reality, Gaines Reservation did not have any
employees or any monthly payroll costs.
Based on the false representations in Gaines
Reservations' PPP loan application and the fabricated
supporting documents, Cross River Bank issued a $806,710
PPP loan to Gaines Reservations.
On or about July 2nd, 2020, a special agent of the
Federal Bureau of Investigation interviewed Mr. Gaines by
telephone. During that telephonic interview, Gaines made
various false statements about Gaines Reservations and its PPP
loan application which were material facts of the
investigation.
Among these false statements, Gaines represented that
Gaines Reservation has 69 employees. At the time that he made
that statement, Mr. Gaines knew that Gaines Reservations did
not have any employees.
THE COURT: Thank you.
MR. MENDELSOHN: Judge, typically I know you would
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ask Mr. Gaines about this. If I could add a couple of little
details here to explain sort of what was going on just so the
bigger picture is clear.
THE COURT: Sure.
MR. MENDELSOHN: The events that happened in this
case happened in 2020, two years after Mr. Gaines' stroke.
Mr. Gaines did not file the PPP loan application.
They were filed electronically by an individual who's named as
a co-defendant in the PPP indictment.
Mr. Gaines never saw the application. Mr. Gaines
never saw the supporting documentation.
He was misled as to what was being filed and what the
whole purpose of this information was and only found out that
a PPP loan was filed in the name of his company after the
fact.
And as I've said to the government, it's argued that
the evidence at trial would show that Mr. Gaines was a victim
of some hustlers out there who took advantage of his cognitive
impairments to file the loan on his behalf or in the name of
his company.
After all of this happened and after all the funds
were disbursed an FBI agent came -- or made phone calls to
Mr. Gaines to ask him about the PPP loan. There was one phone
call in which they had a discussion where I don't believe any
false statements were made. There was a call later in the day
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in which Mr. Gaines did make the false statement. In between
that, it's my understanding that Mr. Gaines spoke with one of
the individuals who had misled him and told him what to say.
So he acknowledges he made the false statement, but
with that background about what happened with the PPP loan, I
think it's important to have on the record that were this case
to go to trial, that Mr. Gaines did not actually file the PPP
loan application.
THE COURT: Mr. Gaines, let me ask you, do you
disagree with anything that Ms. Chaiken has said with the
caveats that Mr. Mendelsohn has given?
And I think -- Ms. Chaiken, Mr. Kitchens, chime in,
but I think as far as the elements for false statements, even
with those caveats, it seems like there is still a factual
basis from my perspective, unless anyone disagrees.
MS. CHAIKEN: We agree, your Honor.
MR. MENDELSOHN: And we are in no way denying any
part of -- what happened on July 2nd, he made the false
statement. We totally --
THE COURT: I understand.
Mr. Gaines, my question is pending to you?
THE DEFENDANT: Yes.
THE COURT: All right. So you do not disagree with
anything, correct?
THE DEFENDANT: Correct.
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THE COURT: Let me ask you about those elements.
Do you admit that you made a statement or a
representation that was false, fictitious or fraudulent?
THE DEFENDANT: Yes.
THE COURT: And do you admit that that statement or
representation was material?
THE DEFENDANT: Yes.
THE COURT: Is the answer to my question "yes," sir?
THE DEFENDANT: Yes, sir.
THE COURT: And do you admit that you acted knowingly
and willfully?
THE DEFENDANT: Yes.
THE COURT: Do you admit that the statement or
representation pertained to a matter within the jurisdiction
of the executive branch of the United States Government?
THE DEFENDANT: Yes.
THE COURT: And, sir, I'm now going to have
Ms. Chaiken talk about the potential penalties that you face
for the charge, including the maximum penalties and any
mandatory minimums.
Are you okay to go forward with that now or would you
like to take a break?
THE DEFENDANT: I would like to go forward.
THE COURT: All right. Ms. Chaiken, go ahead.
MS. CHAIKEN: Thank you, your Honor.
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Mr. Gaines faces the following maximum and mandatory
minimum penalties as to the offense charged:
The maximum term of imprisonment is five years.
There is no mandatory minimum term of imprisonment.
The authorized term of supervised release is zero to
three years.
The maximum fine is $250,000 or twice the gain or
twice the loss, whichever is greatest.
He will also have to pay full restitution, a
mandatory special assessment of $100 and forfeiture of any
property, real or personal, constituting or derived from
proceeds obtained directly or indirectly as a result of the
offense.
THE COURT: Thank you. Mr. Gaines, do you understand
that those are the possible penalties that you could receive
in this case?
THE DEFENDANT: Yes.
THE COURT: Do you understand that it's not possible
for me to state to you today what your exact 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
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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guidelines?
THE DEFENDANT: Yes.
THE COURT: And bear with me a moment.
In the plea agreement that was reviewed with you a
little while 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.
The defendant in every criminal case has the right
to file a direct appeal immediately after his conviction and
sentence. In that appeal you may raise any issue concerning
the handling of your case in this court that you wish to
raise. Those issues would be reviewed by the Court of
Appeals. If errors were found, the Court of Appeals could
order that action be taken to correct those errors.
Besides 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.
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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 the right to file
a direct appeal challenging that sentence.
Second, if the government files an appeal for any
reason, you have a right to file a cross-appeal raising any
issues that you wish to raise.
Finally, you always reserve the right to challenge
constitutionally ineffective assistance of counsel.
But aside from these three very narrow circumstances,
you will have no right of appeal and will be essentially bound
by my decision.
Do you understand that, sir?
THE DEFENDANT: Yes.
THE COURT: And, Mr. Mendelsohn, have you reviewed
the rights with your client such that you're comfortable he
understands both his rights and the waiver of those rights?
MR. MENDELSOHN: I have.
THE COURT: Mr. Gaines, I'm going to now go through
some other issues. Are you okay to go forward or would you
like to take a break?
THE DEFENDANT: I would like to go forward.
THE COURT: All right.
First, do you understand that parole has been
abolished in the federal system and that if you're sentenced
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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to prison, you will not be released early on parole?
(Pause in the proceedings.)
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: Bear with me a moment.
Do you understand you may be ordered to pay
restitution to any victim of the offense?
THE DEFENDANT: Yes.
THE COURT: Are you a citizen of the United States
Government, sir?
MR. MENDELSOHN: Are you a United States citizen?
THE DEFENDANT: Yes.
THE COURT: Do you understand that as part of your
sentence certain property that's been identified by the
government may be forfeited by you to the government?
THE DEFENDANT: Yes.
THE COURT: Is there anything we've talked about
today that you do not feel you fully understand?
THE DEFENDANT: Yes.
MR. MENDELSOHN: Well -- I'm sorry, Judge. I just
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said to him do you feel like you've understood everything.
THE COURT: Let me just ask it that way.
Sir, Mr. Gaines, have you understood everything we've
discussed today?
THE DEFENDANT: Yes.
THE COURT: Have you had a sufficient opportunity to
talk about your case with your attorney and have your attorney
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 plea to the information,
guilty or not guilty?
THE DEFENDANT: Guilty.
THE COURT: Mr. Mendelsohn, do you feel that you've
had a sufficient opportunity to investigate your client's case
and advise him concerning the entry of this plea?
MR. MENDELSOHN: I do.
THE COURT: Are you aware of any reason I should not
accept the plea?
MR. MENDELSOHN: I am not.
THE COURT: Is there anything else you want me to
address with your client on the record at this time?
MR. MENDELSOHN: No. Thank you.
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THE COURT: Ms. Chaiken, is there anything further
that the government wishes the Court to address at this time?
MS. CHAIKEN: No, your Honor. Thank you.
THE COURT: Does the government object to the
defendant remaining on bond subject to the previous
conditions?
MS. CHAIKEN: No, your Honor.
THE COURT: Mr. Gaines, tell me in your own words
what we've done here today.
THE DEFENDANT: We've discussed my plea agreement
of -- my guilty plea with the US Attorney today. And I waived
my right to -- and -- so that I could plead guilty to the
charge of making a false statement to a federal agent.
THE COURT: Okay. Thank you, sir.
I find 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.
I've also discussed at length his competence to enter
the plea, and I'm satisfied that he is competent to enter a
knowing plea here today and understands these proceedings.
I normally don't ask that final question of a
defendant, what happened here today, what are we doing. And
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the defendant stated without any prompting by his attorney I
think exactly the purpose of today's proceeding and what we've
done. And I thought he did so artfully.
So 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 knowing plea of guilty as just
discussed in more detail.
I find that the plea is freely and voluntarily
entered.
It's, therefore, entered that the plea of guilty of
the defendant to the information is accepted and entered.
Mr. Gaines, you are hereby adjudged guilty of the
charge contained in the information.
I will now be referring your case to a probation
officer who will prepare a presentence report. Before I
receive the report, Mr. Gaines, 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.
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Do you understand that, sir?
THE DEFENDANT: Yes.
THE COURT: Counsel, anything else?
MS. CHAIKEN: Not from the government, your Honor.
MR. MENDELSOHN: No, Judge. Thank you.
THE COURT: All right. Good to see everyone.
And, Ms. Walker, Ms. Coudriet, Officer, thank you all
very much.
We're adjourned.
(PROCEEDINGS REPORTED WERE CONCLUDED AT 4:03 PM.)
___________________________
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C E R T I F I C A T E
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
I do hereby certify that the foregoing pages are a true
and correct transcript of the proceedings taken down by me in
the case aforesaid.
This the 25th day of January, 2024.
________________________________
PENNY PRITTY COUDRIET, RMR, CRR
OFFICIAL COURT REPORTER
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