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TRANSCRIPT of Proceedings as to Darrell Thomas, Andre Lee Gaines, Kahlil Gibran Green,… — USA v. Thomas et al (Dkt. 896)
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. 896 · 2024-02-02 · Docket on CourtListener
Summary
A transcript of the October 5, 2021 sentencing of 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 896. The court notes that Gaines pled guilty on June 17, 2021 to Count 1 of the information for a false, fictitious and fraudulent statement to a department or agency of the United States. It adopts the presentence report, with a total offense level of 12, Criminal History Category of I and a range of 10 to 16 months, and raises on its own motion a departure under 5H1.11 for his 20 years of Navy service. Defense counsel Brian Mendelsohn seeks departures under 5H1.1, 1.3, 1.4 and 5K2.20 and asks the court to vary down to probation. Nathan Kitchens and Tal Cohen Chaiken appear 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
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 SENTENCING PROCEEDINGS
BEFORE THE HONORABLE J.P. BOULEE
UNITED STATES DISTRICT JUDGE
OCTOBER 5, 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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COURTROOM DEPUTY CLERK: This is case 21-CR-206,
USA v. Gaines.
MR. KITCHENS: Good afternoon, your Honor. Nathan
Kitchens on behalf of the government. I'm here with my
colleague AUSA Tal Chaiken, as well as Special Agents Joe
Stites and Stefan Bublitz.
MR. MENDELSOHN: Good afternoon, Judge. Brian
Mendelsohn here with Mr. Gaines.
THE COURT: Good to see you, Mr. Mendelsohn.
And good afternoon to you as well, Mr. Gaines.
OFFICER RIDLEY: Maria Ridley on behalf of the United
States Probation Office.
THE COURT: Good to see you, Officer.
Mr. Gaines pled guilty on June 17th, 2021, to Count 1
of the information for false, fictitious and fraudulent
statement and representation to a department or agency of the
United States.
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. Mendelsohn, have you and your client had an
opportunity to read and discuss the presentence report?
MR. MENDELSOHN: Yes, we have.
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THE COURT: Do you have any questions about the
presentence report or any amendments now other than what's
been previously filed?
MR. MENDELSOHN: No, Judge.
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. MENDELSOHN: Yes, that's correct.
THE COURT: And I understand, Mr. Mendelsohn, that
you are seeking a downward departure on various grounds,
correct?
MR. MENDELSOHN: That's correct, Judge. I mean,
it's -- I've asked for a downward departure and a downward
variance. They're overlapping, so I think they -- they're one
and the same in many ways.
THE COURT: Okay. Sometimes when they're not really
overlapping, I will handle the departure requests first and
hear argument from both of you on that and then move on.
Other times when they are overlapping, it's my preference to
just hear argument on everything at once, whether it's a
departure or a variance or just general 3553(a) factors.
Is anyone opposed to just hearing argument on all of
that later in this proceeding?
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MR. KITCHENS: No, your Honor.
MR. MENDELSOHN: That's fine.
THE COURT: I would like to do this at least. I want
to go over which grounds for departure you're seeking so I can
just make sure that the record's clear on that.
And I wanted to note one additional ground that the
Court is considering, I guess, on its own motion, and that is
5H1.11, which is military, civic, charitable or public
service, employment-related contributions, record of prior
good works to consider based on his 20 years of service to the
Navy and his honorable discharge, a downward departure based
on 5H1.11. And I'll be happy to hear from counsel from either
side about the propriety of such departure when you make your
arguments as to sentencing.
Other than that, Mr. Mendelsohn, it looked like
5H1.1, 1.3, 1.4 for starters, is that correct?
MR. MENDELSOHN: That's correct.
THE COURT: And in addition --
MR. MENDELSOHN: 5K2.20.
THE COURT: 5K2.20?
MR. MENDELSOHN: Yes.
THE COURT: And I think that was it. Are there any
others?
MR. MENDELSOHN: That's it.
THE COURT: Okay. All right.
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I will, therefore, adopt the findings of fact and
conclusions of law in the presentence report with the
understanding that I will consider the departure requests
later in this proceeding.
Based on the findings of fact and conclusions of law
the guideline calculations are as follows:
Base offense level of 6;
Adjusted offense level of 14;
Total offense level of 12;
Criminal History Category of I;
Recommended sentencing range not more than five years
imprisonment, $250,000 fine or twice the gain or twice the
loss, whichever is greater;
Then fine guideline range of 5,500 to 55,000;
Term of supervised release of one to three years;
Special assessment of $100.
But I also had it as 10 to 16 months.
MR. KITCHENS: That's correct, your Honor.
THE COURT: Okay. Agree, Mr. Mendelsohn?
MR. MENDELSOHN: Yes. That's correct.
THE COURT: So no objections to the guideline
calculations as stated by the Court?
MR. KITCHENS: No objections, your Honor.
MR. MENDELSOHN: Yes, no objections.
THE COURT: All right. I may have some questions --
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specific questions for you later, but let me go ahead and hear
from counsel in a moment. Before I do, I want to let you know
that I've reviewed the presentence report as well as the
defense's sentencing memorandum.
Are there any victims that wish to be heard in this
proceeding?
MR. KITCHENS: No, your Honor.
THE COURT: Any witnesses on behalf of the defendant?
MR. MENDELSOHN: No, Judge.
THE COURT: Any other documents or letters for the
Court?
MR. KITCHENS: No, your Honor.
MR. MENDELSOHN: No.
THE COURT: Mr. Mendelsohn, would you like to make
any argument on behalf of your client regarding sentencing?
MR. MENDELSOHN: Certainly.
THE COURT: Go ahead.
MR. MENDELSOHN: Judge, I believe I've laid out most
of the arguments in the sentencing memo.
You know, it's kind of like the old days where we
used to talk about downward departures. I haven't had to do
that in awhile since these grounds are generally taken up by
the downward variance grounds.
But, you know, on the departure issues, the
Commission and the Supreme Court talked about cases that are
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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outside the heartland in order to qualify for the downward
departure. So if it's a heartland case, it's really not a
ground for a downward departure, but the unusual cases, the
one's that are outside the heartland, are the ones that do
qualify.
And, you know, the factors identified, the age,
mental condition, physical health as well as the aberrant
behavior are what they used to refer to as encouraged factors
under the guidelines. So they identified these grounds as
downward departures and encouraged them in certain situations
where you have a defendant outside of the heartland in an
extraordinary situation.
I think Mr. Gaines, given his medical conditions,
his age and his physical conditions certainly is someone who
is outside the heartland. He is very much atypical of the
defendants that the Court sees in any of these cases.
I counted up I think it was 17 different physical
ailments and 19 different medications. And, you know, the
physical ailments are serious. He's had a number of strokes
predating the incidents here in this case. Those strokes have
affected his cognitive ability pretty substantially. I mean,
he went from somebody who was able to successfully and
honorably serve for 21 years in the military to somebody whose
IQ on the IQ testing is now between the second and the eighth
percentile. And I think that's a really significant drop.
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Plus you add the cognitive difficulties associated
with his executive functioning problems, his ability to reason
and make those higher-level kinds of decisions and thinking.
So, again, that's another extraordinary step.
And then when you factor in his age, at 67 he would
be in the oldest couple percent of a prison population. And
certainly with his medical issues and his physical issues, the
cost of incarceration for him would be extraordinary,
substantially higher than a normal inmate.
So as the guidelines talk about looking for
alternate -- or less costly alternatives to incarceration,
certainly a term of probation would be a less costly term --
alternative to incarceration.
So when you -- and I think when we're talking about
the downward departure grounds, age, physical condition and
mental condition, they sort of refer to each other where they
say it's one thing if you're elderly, but if you're elderly
and infirm, then you're really in the position to qualify for
this. And I think Mr. Gaines certainly meets those
definitions.
As to the issue of aberrant behavior under 5K2.20, I
think his record really speaks for itself. Twenty-one years
of honorable service in the Navy, his successful career at the
post office, going 67 years without having even an arrest
certainly shows that this is some behavior that is far outside
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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the norm for him.
Certainly I think the -- his cognitive deficits got
him into this mess and contributed to his involvement in this
situation. And so it is certainly aberrant and it's rolled up
into the other deficits that he has.
So for all of those grounds I think he would qualify
for a downward departure. Certainly there are also grounds
for a downward variance under 3553 taking into account his
history and characteristics and the circumstances of the
offense.
And, you know, the Court did bring up his honorable
service, his military civic record. Certainly 20 years of
honorable service would qualify under the guidelines. And I
would -- I kind of feel bad that the Court is picking up a
departure ground that I didn't, but certainly I think he would
fit right into that as well. And, of course, that also is a
ground for a downward variance.
I talked about the difficulties in prison in the
sentencing memo. I don't think I need to repeat a lot of
those. I think it's obvious that he would be incredibly
vulnerable in prison, just -- I don't know how he could even
function quite frankly. And certainly would be an easy target
for predators inside the prison system.
Also talked about a little bit in the sentencing
memo, and I don't think it's the key point here, but he agreed
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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to the restitution in this case. I think that could have been
an argument that we had. I mean, the loss amount -- the
government agreed and the probation office found that the loss
amount from the PPP part of the case did not apply here to
these guidelines. And I think there would have been an
argument that he wouldn't have been obligated for restitution.
It could have gone either way potentially. But as part of his
acceptance of responsibility he agreed to that.
Now, it's going to be burdensome for him, it's going
to be something that he's going to have for a long time, but
it's also something that he never, for lack of a better word,
enjoyed the benefits of the money from that case. It all went
to co-defendants who I think were the ones who lured him into
this. And the money that was left sitting in his account was
seized by the government. So, you know, he's not somebody who
was out there buying fancy cars or doing any kind of big
spending. The money was just sitting there.
So, despite that, he is still on the hook for the
restitution, and I think that's a further ground for a
variance. So we would ask the Court to vary down to
probation.
THE COURT: All right. Thank you.
And, I'm sorry, I don't know if Mr. Gaines would like
to make a statement on his own behalf, but let me explain to
you, Mr. Gaines, I've read what your attorney has supplied to
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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the Court in a sentencing memorandum, and I've heard his
arguments, but I would be happy to hear from you as well, sir,
if you would like to say anything on your own behalf before I
sentence you this afternoon.
THE DEFENDANT: No, I would not like to say anything.
THE COURT: Okay. Thank you, sir.
Mr. Kitchens.
MR. KITCHENS: Thank you, your Honor.
We ultimately agree with much of what Mr. Mendelsohn
has said. And, in fact, we agree that a sentence of
probation is ultimately the appropriate one here based on
the consideration of the Section 3553(a) factors.
While I think we agree with that final destination, I
think the parties disagree to some extent about the path to
get there. We think appropriately that a downward variance
should apply to basically get him to that probationary range
rather than the downward departure. So I'll briefly discuss
those downward departures before explaining the basis for why
the government thinks that a downward variance is proper here.
For the various grounds that the -- I'll start with
kind of the preliminary grounds that Mr. Mendelsohn has
raised. His age, the mental and emotional conditions for
Mr. Gaines, and then his physical condition as well.
Under the guidelines there's the same test ultimately
for each of those, which is that the Court should consider a
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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departure if the issues based on age, mental condition or
physical condition are present to an unusual degree that
distinguishes the case from a typical case that the Court
would see.
The downward departure under 5H1.4 adds a little bit
more context and it notes that it may apply in the case of an
extraordinary physical impairment or if a defendant is
seriously infirmed. I think that consideration and what's
described in the guidelines really shows the high legal bar
that the Court needs to reach to find any of those downward
departures apply.
We certainly think that they are significant facts
regarding Mr. Gaines' conditions and his unique conditions
that support a variance, and we'll discuss that. But I don't
think it meets the high bar that's required for the Court to
find that he meets one of those downward departure grounds.
I think Mr. Mendelsohn fairly notes in his sentencing
memorandum that as a 67-year-old defendant Mr. Gaines would
surely be on the older side of defendants that are in the
prison system. That is certainly the case, the government
agrees. However, it's also the case that we certainly have
defendants in our district that are older. It is not uncommon
in fraud cases that you will have defendants in their late 60s
that are facing punishment for crimes that they did against
others. It's not the case that every defendant who is in
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their late 60s qualifies for a downward departure just based
on their age.
Similarly with those physical conditions that are
outlined in paragraphs 47 through 50 of the PSR, I think
Mr. Mendelsohn fairly notes that, again, many of those
conditions -- and there are a lot of them, some of them are
significant and they are chronic issues. But I think based on
the case law that have developed regarding a departure based
on physical conditions, it would not qualify as extraordinary
by themselves.
The cases interpreting the guidelines and this
downward departure have really underscored how rare it is
that this downward departure would apply. I think in
deVegter, and the Eleventh Circuit certainly noted, that this
was a discouraged ground for a downward departure.
The Court may recall in Mr. Benoit's sentencing some
of the cases that were cited, I think they were mostly
out-of-circuit cases, but they were cited describing some of
the few instances where those type of departures would apply.
And it was a case -- I think one was a defendant suffering
from a brain tumor. And there was a 78-year-old with
depression and coronary artery disease.
Other cases actually in the Eleventh Circuit have
denied the application of a downward departure when the
defendant similarly faced very serious health conditions,
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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things like lymphoma, renal kidney disease, Sickle cell
anemia, HIV. The fact is that the way that the case law has
developed it takes a truly extraordinary amount of physical
infirmity for that downward departure to apply.
And then it's similar ultimately for the mental and
emotional health downward departure. I think, again, the PSR
outlines this and describes this very well in paragraphs 51
through 52. And then, of course, there's the report attached
to the PSR as well. And those are significant issues. We do
not diminish them in any way. And I think that, again, is an
important factor in the government's ultimate sentencing
recommendation. But based on the case law and how it is
developed does not seem to meet the legal requirement of what
is present in an unusual degree.
There's a case, just to give an example, United
States v. Astudillo-Carvajal, that's 788 Fed.Appx. 677. It's
an Eleventh Circuit case from 2019 where the district court
there denied a request for downward departure when there was a
finding that the defendant suffered from major depression,
post-traumatic stress disorder, had low intelligence, various
other cognitive issues. And the Eleventh Circuit noted it did
not have jurisdiction essentially to review the denial of that
downward departure. But I thought it was telling in that case
with the district court, while it denied the downward
departure, it ultimately varied downward 30 months in that
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case. And I think that analysis is instructive and ultimately
what the government recommends here in terms of the proper
context in which to consider those unique history and
characteristics of the defendant.
With the aberrant conduct downward departure under
5K2.20, there's also an Eleventh Circuit case that I think is
instructive on this. It's United States v. Orrega, that's 363
F.3d, 1093. That's an Eleventh Circuit case from 2004. It,
again, has very similar language in noting that that downward
departure applies only in extraordinary cases. And it held
that the commission of two criminal acts by, in that case,
having two separate conversations with an undercover agent in
an enticement case barred the defendant from receiving that
particular downward departure under 5K2.20.
Here we don't disagree at all with Mr. Mendelsohn in
terms of Mr. Gaines' lifetime of good acts in the community
and his military service and civic service as well, but he
did, in fact, commit two separate criminal acts as part of
this 1001 offense. This was two separate calls and
conversations containing false statements with Special Agent
Joe Stites.
Paragraph 16 of the PSR describes the first one in
which Mr. Gaines, when he was initially called by Agent
Stites, reported that Gaines Reservation & Travel had five to
six employees. And when at that point Special Agent Stites
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noted the fact there was 69 employees listed in the PPP loan
application for Gaines Reservation & Travel, Mr. Gaines said
he needed to review the full documents. Now, of course, at
that time Mr. Gaines knew full well that Gaines Reservation &
Travel had no employees, and yet he made those false
statements and said that he needed to review documents.
There's then a second call which is described in
paragraph 17. And that occurs the same day but it's two
separate incidents. And in that second call Mr. Gaines
claimed that Gaines Reservation & Travel did, in fact, have 69
employees, that it had a large monthly payroll. And that, of
course, and we do not dispute, that those were based on
essentially, you know, items that Darrell Thomas coached him
to say in response.
We do not, you know, again, have any dispute about
that; however, there were two separate incidents in which
Mr. Gaines provided false statements to Special Agent Stites.
And based on that, the departure under 5K2.20 does not apply.
The Court notes 5H1.11 also could apply and provide a
measure -- or reason for downward departure. I confess, I
have not reviewed that and researched it to figure out cases
that have interpreted it to see if it has been in a similar
context.
But Mr. Gaines certainly does have significant
military service, you know, more than two decades of service
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for the Navy. I'm not sure, but ultimately, you know, the
cases that have applied to that, it does have -- that same
language about the military service has to be present in an
unusual degree and it is otherwise discouraged. Again, that's
consistent with our view, which is that the appropriate way to
consider all of those factors for Mr. Gaines and all the
things that would point towards a probationary sentence is
taken through the lens of a downward variance rather than
through a downward departure. And that is just simply as a
result of how the case law has developed, that it is truly the
rare case where a downward departure based on those grounds
would apply.
And I think Mr. Mendelsohn himself ultimately, you
know, recognized that in his sentencing memo where he notes
that the Court could apply a downward variance based on very
similar grounds without -- I think his words were apt, without
essentially jumping through the hoop of finding a downward
departure.
And that ultimately is the government's
recommendation based on our full consideration of the Section
3553(a) factors. We do think a probationary sentence here is
proper.
I think the primary thing that is guiding that
recommendation is the history and characteristics of
Mr. Gaines. And that I think has been eloquently stated by
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Mr. Mendelsohn both in his sentencing memorandum as well as
his argument today.
It is clear to us that while the -- each individual
factor, even taken in combination of his age and health
conditions and his cognitive issues, are not enough to meet
kind of that legal bar of a downward departure. It is a
significant factor not only in terms of his commission of the
underlying offense, but also in terms of the outcomes that he
could face and the propriety of the sentence that the Court
would impose in terms of what he would be looking at and how
he would respond to a prison sentence.
In terms of his commission -- how it affected his
conduct in the commission of the offense, we certainly have
heard defendants that have noted that they were duped by
Darrell Thomas and others in certain cases, that they were
roped into this scheme, maybe did not know each and every
detail but yet still knowingly participated in the fraud.
We do think to some measure that that is true for
even all those other defendants, that they were -- to some
degree may have been misled by Darrell Thomas and others. But
what distinguishes Mr. Gaines here from the other defendants
and I think takes him out of the heartland of those other
defendants is the unique role that his health conditions
played in making him vulnerable. And that is I think the
language that was highlighted specifically in Mr. Mendelsohn's
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sentencing memo, that it essentially noted that he was
exceptionally vulnerable to manipulation. He did not have any
sort of understanding of the larger scheme. Was used
essentially as a tool for others simply because he had a
dormant corporation that he had funded and that was
essentially taken advantage of by a family member.
As a result of that, you know, ultimately, as we
learned more about the case, this is why I think the Court
heard that we have a sentence being imposed not on an
underlying participation in the PPP loan fraud but based on
the lies that were told to Special Agent Stites.
We also agree with Mr. Mendelsohn that prison is not
the proper environment for someone with Mr. Gaines'
conditions. Mr. Gaines is not one who would benefit from the
educational or vocational training at a prison facility. He's
not someone that needs rehabilitation. He would have to
receive medical care, of course, provided by the Bureau of
Prisons. And that would be not only, as Mr. Mendelsohn notes,
extremely costly for the government, but it would not
ultimately serve a beneficial role really for the justice
system in terms of either deterrence or rehabilitation for a
defendant that is facing Mr. Gaines' unique circumstances.
The countervailing concern, of course, in many cases
is the seriousness of the offense and the need to afford
adequate deterrence. I don't think ultimately that the
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government's recommendation of probation in this case
diminishes the seriousness of the offense or the need for
deterrence.
The fact, as I already noted, was that Mr. Gaines did
not knowingly participate in the underlying PPP fraud. He is,
of course, being sentenced just based on that false statement
to the agents. And that is significant by itself. He did
knowingly lie to Special Agent Stites. Mr. Gaines understood
at the time the difference between the truth and a lie, he
knew that he was lying to the federal agent, and he knew it
was wrong when he did it.
Lying to a federal agent during an investigation can
have meaningful consequences to the whole justice system.
Those lies can be corrosive and they have a corrosive effect
on others. It can impede the ability for law enforcement to
detect and deter criminal conduct. And indeed criminal
conduct in this case was ongoing after Mr. Gaines had this
interview with Special Agent Stites.
So the nature of this offense itself is significant,
and I don't mean to diminish the seriousness of it. And
general deterrence is a fair factor for the Court's
consideration to deter others from making similar lies.
But ultimately I think that our concern with those
two factors is lessened for two reasons. First, again, is
Mr. Gaines' health conditions that make him a very unique
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defendant. And second is Mr. Gaines' conduct after sentencing
in this case. I won't belabor the point because we've already
I think on both sides discussed more details about Mr. Gaines'
unique cognitive and physical conditions but it certainly
affected his decision making here.
It is unlikely that a prison sentence here would
deter those with the same condition. And those without the
same condition would not be deterred either by sending
Mr. Gaines to prison.
I think also that Mr. Gaines' conduct since he was
charged in this case also shows not only his remorse but also
constructive steps that he's taken that reaffirm really the
lower need for deterrence and the fact that probation is
proper here.
As Mr. Mendelsohn noted he agreed to pay full
restitution here in this case. He pled early. He did not
file any sort of motions. Furthermore, he provided, you know,
a statement to the government clarifying his role in the
offense and the role of others. All of those steps I think
are constructive and show Mr. Gaines' acceptance of
responsibility to a significant degree and his understanding
of what he did was wrong. And it does not seem in light of
all those circumstances that a sentence of imprisonment would
serve either Mr. Gaines or the justice system.
So overall we agree with Mr. Mendelsohn that a
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downward variance is proper. We think that it -- under
the Section 3553(a) factors it reflects the history and
characteristics of the defendant while also taking into
account the seriousness of the offense and the need for
deterrence.
We think it is a fair result based on the offense
and it is the just result given Mr. Gaines' unique health
conditions and making sure that, you know, he has accepted
responsibility for his offense.
THE COURT: Thank you, Mr. Kitchens.
I'm attempted to ask you for a few of those case
cites. I got some of them but not all of them, and I don't
have realtime right now, but before I do that I'm going to ask
Mr. Mendelsohn a question. I may not need them.
And I will say that I tend to agree with you,
Mr. Kitchens, as to 5H1.1, age and 5K2.20, aberrant behavior.
I think it's probably a closer call 5H1.3 as to mental health,
5H1.4, physical condition, and 5H1.11 as far as his military
service. So I'm conditioned on my question for
Mr. Mendelsohn here in a second, I may want some of those case
cites, and I'm probably going to want to look at those cases.
But I may not need to.
Mr. Mendelsohn, you've asked me for, on behalf of
your client, a sentence of probation either via variance or
via departure. Mr. Kitchens has stood up on behalf of the
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government and said, your Honor, we agree there should be a
variance to a probationary sentence here. If I were to agree
with your argument and Mr. Kitchens' argument about variance
and be prepared to sentence your client to a sentence of
probation, would you be waiving your request for a departure
or would you still want me to rule on the formality of the
departure request?
MR. MENDELSOHN: I think the Court's determination
that it would vary would probably moot out the departure
request, so I would be happy to withdraw that.
THE COURT: Very well.
Is there any other matter that the Court needs to
take up or anything else from either side before I issue
sentence in this case?
MR. KITCHENS: Just this is, again, sort of a
formality, but to be clear again, we -- and this is consistent
with the plea agreement, we will be dismissing the charges
against Mr. Gaines that are in the original indictment.
That's in case number 1:20-CR-296.
THE COURT: All right. Very well.
Mr. Gaines, if you could please stand, sir.
Pursuant to the Sentencing Reform Act of 1984, it's
the judgment of the Court that you, Andre Lee Gaines, are
sentenced to five years probation as to Count 1.
Sir, I'm going to read some other portions of your
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sentence, but you can have a seat at this point, sir.
It's further ordered that the defendant shall pay to
the United States a special assessment of $100 which shall be
due immediately. The Court finds that the defendant does not
have the ability to pay a fine, therefore, the Court will
waive the fine in this case.
It's further ordered that the defendant shall make
restitution in the amount of $806,710 to the Clerk of Court
for distribution to the following victims:
Cross River Bank in the amount of $782,508.70. And
the US Small Business Administration, $24,201.30.
And I will say to my able law clerk, I appreciate her
writing out those numbers for me. I've had a sentencing
recently with a lot of big numbers in it and she must have
been here and heard me butcher those. So thank you.
Restitution shall be paid in full immediately. The
Court determines that you do not have the ability to pay
interest and it is ordered that the interest requirement is
waived for restitution.
You must pay the above-noted financial penalties in
accordance with the schedule of payment sheet of the judgment.
All criminal monetary penalties 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
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of the term of supervision shall commence within 30 days of
this judgment 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.
You must report to the probation office in the
federal judicial district where you are authorized to reside
within 72 hours of the time you are sentenced unless the
probation officer instructs you to report to a different
probation office or within a different time frame.
While on probation you must comply with the following
mandatory conditions:
You must not commit another federal, state or local
crime.
You must not unlawfully possess a controlled
substance.
You must refrain from any unlawful use of a
controlled substance.
The drug testing condition is suspended based on
the Court's determination that you pose low risk of future
substance abuse.
You must cooperate in the collection of DNA as
directed by the probation officer.
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You must make restitution in accordance with 18 USC,
Sections 2248, 2259, 2264, 2327, 3663, 3363(a) and 3664.
As part of your probation 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 probation officers to keep informed, report to the
Court and bring about improvements in your conduct and
condition. The standard conditions of supervision will be
included in your judgment.
You must comply with the following special conditions
during the term of probation:
You must make full and complete disclosure of your
finances and submit an audit to your -- of your financial
documents at the request of your probation officer.
You must provide the 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 submit your person, property, house,
residence, vehicle, papers, computers, other electronic
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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 item which
may be deemed to have evidentiary value of violations of
supervision.
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;
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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).
Based on these considerations, I find that this is a
just and appropriate sentence, particularly in light of the
defendant's age, his mental issues, his physical issues, the
fact that other than this offense he has not engaged in
criminal activity in his life to any degree.
I think also that his military service is important
as I consider the history and characteristics of the
defendant. The record will reflect that he served 20 years.
I think it was '73 to '94, so it might have even been
21 years. I'm not sure what part of each year, but you served
20 years in the Navy, including overseas service, and was
honorably discharged.
So, sir, I appreciate your service to our country and
your willingness to take an oath to give your life so that the
rest of us can live free.
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However, this is still a serious crime and warrants
punishment and warrants the punishment of probation.
But based on all of the 3553(a) factors, I do believe
that it's warranted to vary downward here. Given that I have
varied downward, I understand the defense has withdrawn their
request for departure, so I do not reach the departure
grounds.
Is that correct, Mr. Mendelsohn?
MR. MENDELSOHN: That is.
THE COURT: Before I advise the defendant of his
appeal rights, does the government or the defendant have any
further objections to the findings of the Court, the guideline
calculations or to the sentence or manner in which it's been
pronounced?
MR. KITCHENS: No objections, your Honor. Just two
notes.
First, with the restitution order that your Honor
imposed, I wanted to note that it should be joint and several
with several other defendants that are in the indictment in
20-CR-296.
THE COURT: All right. Let me just put that on the
record.
And, yes, that wasn't in the materials I received but
that would seem to make sense. The restitution that I've
announced earlier, and Mr. Mendelsohn I'm assuming you don't
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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disagree or have any argument on this, will be joint and
several with the other defendants in indictment number --
MR. KITCHENS: 20-CR-296.
THE COURT: -- 20-CR-296.
Mr. Mendelsohn, is that correct?
MR. MENDELSOHN: That is correct. And I was actually
going to bring up specifically John Gaines, Darrell Thomas and
Carla Jackson.
THE COURT: The Court concurs. So noted.
You had something else, Mr. Kitchens?
MR. KITCHENS: We think -- those three I think, the
additional defendants that were charged in connection with
Gaines Reservation & Travel, of that loan, and the superseding
indictment would include Teldrin Foster and we believe Jesika
Blakely as well. We can double-check, but we think it's
Jesika Blakely.
THE COURT: Mr. Mendelsohn.
MR. MENDELSOHN: That's fine. We dropped out of that
case largely before the others were added, but to the extent
these others participated in preparing the paperwork for that
case, we would concur.
THE COURT: What I'll do is it will be joint and
several with the other two names just mentioned by
Mr. Kitchens as well, which are --
MR. KITCHENS: Teldrin Foster and Jesika Blakely.
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THE COURT: Very well.
And, Mr. Kitchens, if you after getting back to your
office realize that that's incorrect, please let us know and
we'll correct that in the record.
MR. KITCHENS: We certainly will, your Honor.
THE COURT: Go ahead.
MR. KITCHENS: I was going to say just the second
point real quick, but I believe the Court has also entered a
consent preliminary order of forfeiture in this case. And we
would just ask that the forfeiture be included, incorporated
in the judgment and commitment order as well.
THE COURT: Okay. It will be.
And, Ms. Walker, have I already signed that or do you
have it for me?
COURTROOM DEPUTY CLERK: I'll have to print it out
for you, sir.
THE COURT: That will be included, and I will sign
that at the conclusion of this proceeding.
Anything else from either side?
MR. MENDELSOHN: Nothing from the defense. Thank
you.
MR. KITCHENS: Nothing else from the government.
THE COURT: Mr. Gaines, you can appeal your
conviction if you believe that your guilty plea was somehow
unlawful or involuntary or if there's some other fundamental
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defect in the proceedings that was not waived by your guilty
plea. You also have the 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 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
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. Mendelsohn would be happy to advise
you further on this matter.
And Ms. Walker just advised me that I did sign the
consent order it looks like on August 4th of this year.
Mr. Gaines, do you have any questions about anything
that I've said at today's sentencing hearing, sir?
THE DEFENDANT: No, your Honor.
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THE COURT: Counsel, anything else that we need to
discuss?
MR. KITCHENS: No, your Honor.
MR. MENDELSOHN: No, Judge. Thank you.
THE COURT: All right. Good to see all of you.
Ms. Walker, Ms. Coudriet, Officer and Officer Ridley,
thank you as well.
Mr. Gaines, best of luck to you, sir. I think
Mr. Mendelsohn did a fine job of advocating for you in this
proceeding, both before me but as importantly I would say I'm
sure in his communications with Mr. Kitchens. It made it an
easy decision for me here that counsel for both the government
and your counsel agreed on the results here.
I obviously considered the 3553(a) factors
independent of their arguments, but one thing I always
consider, and I believe the law requires me to consider, is
the arguments they make as to those factors. And when, like
here, they agree, it can sometimes be difficult for me to do
anything but that under the facts, and that's what I thought
was appropriate here.
I do applaud you for your service to our country.
And I'm sorry that you got involved in this. I hope that you
will be infinitely more careful going forward and make sure
that you have close family or friends helping you and advising
you as you go through the rest of your life so that no one
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else hopefully will take advantage of your condition.
Does that make sense, sir?
THE DEFENDANT: Yes, your Honor.
THE COURT: Okay. Best of luck to you.
Everybody takes care.
That concludes this proceeding.
(PROCEEDINGS REPORTED WERE CONCLUDED AT 1:52 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 29th Day of January, 2024.
________________________________
PENNY PRITTY COUDRIET, RMR, CRR
OFFICIAL COURT REPORTER
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