Court filing
TRANSCRIPT of Proceedings as to Darrell Thomas held on 05/09/2022, before Judge JP… — USA v. Thomas et al (Dkt. 603)
Record facts
| Court | U.S. District Court for the Northern District of Georgia |
|---|---|
| Filed | 2022-11-21 |
U.S. District Court for the Northern District of Georgia · No. 1:20-cr-00296-JPB-CMS · Doc. 603 · 2022-11-21 · Docket on CourtListener
Summary
A transcript of sentencing proceedings as to Darrell Thomas held May 9, 2022 before Judge J.P. Boulee in the U.S. District Court for the Northern District of Georgia, Atlanta Division, Docket No. 1:20-CR-00296-JPB, filed November 21, 2022 as Document 603. The court states that the defendant pleaded guilty on June 16, 2021 to Counts 1 and 18 of the indictment for conspiracy to commit bank fraud and wire fraud and money laundering, and that the one unresolved presentence report issue is a four-level enhancement under 3B1.1(a). Ruling on that objection, the court finds that he exercised decision-making authority and had a leadership role, referring to evidence that he procured 14 fraudulent PPP loans and instructed co-defendants in fabricating supporting documents. In closing the court states that it is varying downward four levels. The transcript runs 48 pages.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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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
)
DARRELL THOMAS,
)
)
DEFENDANT.
)
TRANSCRIPT OF SENTENCING PROCEEDINGS
BEFORE THE HONORABLE J.P. BOULEE
UNITED STATES DISTRICT JUDGE
MAY 9, 2022
APPEARANCES:
ON BEHALF OF THE GOVERNMENT:
TAL COHEN CHAIKEN, ESQ.
NATHAN PARKER KITCHENS, ESQ.
BABASIJIBOMI MOORE, ESQ.
ASSISTANT UNITED STATES ATTORNEYS
ON BEHALF OF THE DEFENDANT:
BENJAMIN BLACK ALPER, 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 11:09 A.M., ATLANTA)
THE COURT: Ms. Oduka, if you want to call the case,
please.
COURTROOM DEPUTY CLERK: The Court has set aside time
for a sentencing hearing in case United States of America v.
Thomas, et al. Case Number 1:20-CR-296.
Counsel, will you please make your appearances for the
record.
MS. CHAIKEN: Good morning, your Honor, Tal Chaiken for
the United States. Seated with me at counsel table is AUSA Nathan
Kitchens and DOJ fraud trial attorney CG Moore. And seated behind
us is Special Agent Joseph Stites from FBI.
THE COURT: Good to see all of you this morning.
MR. ALPER: Good morning, your Honor. Benjamin Alper
here with Mr. Thomas.
THE COURT: Good to see you, Mr. Alper. And good to see
you as well, Mr. Thomas.
And we also have Officer Ridley.
OFFICER RIDLEY: Good morning, your Honor.
THE COURT: How are you?
OFFICER RIDLEY: I'm well. Thank you. How are you?
THE COURT: I'm well. Thank you.
Mr. Thomas pled guilty on June 16th, 2021, to Counts 1
and 18 of the indictment for conspiracy to commit bank fraud and
wire fraud and money laundering.
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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. Alper, have you and your client had an opportunity
to read and discuss the presentence report?
MR. ALPER: Yes, your Honor, we have.
THE COURT: Do you have any questions about the
presentence report or any amendments now other than what's been
previously filed?
MR. ALPER: No, sir.
THE COURT: According to the presentence report we have
one unresolved issue. The government and probation agree the
defendant should receive a four-level enhancement under 3B1.1(a)
to account for the defendant's role in the offense. And the
defendant objects to this enhancement.
I have reviewed the presentence report as well as the
memoranda on this issue. But I would be happy to hear more from
counsel on this issue before I rule on that objection.
Ms. Chaiken.
MS. CHAIKEN: Would your Honor like me to address the
Court from the podium?
THE COURT: Wherever you're more comfortable.
MS. CHAIKEN: Your Honor, I'll be brief. I think our
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sentencing memorandum lays out our position on this.
Mr. Thomas, based on the evidence and based on the
undisputed facts in the PSR, was clearly the mastermind of this
PPP loan scheme. Of the 14 loans that are charged in the second
superseding indictment, which is the most recent charging
instrument in this case, he is responsible for every single one.
There's only one other defendant who has been charged with each of
those loans. That's Teldrin Foster, who assisted the defendant
in fabricating documents related to those loans. But it was
Mr. Thomas who was communicating with the recruiters, was
directing them as to what documents to request, what documents he
needed, what documents needed to be created. All of the documents
were being sent to him from the recruiters. He was at the center
of the scheme. The money trail bears that out as well.
Every single business owner that received PPP loan
proceeds -- other than two businesses whose funds were frozen
before we could do anything with them, but the 12 other business
owners who received money sent hundreds of thousands of dollars to
accounts that Darrell Thomas controlled. It was initially to his
business, Bellator Phront Group and Elite Executive Services.
Those were two businesses he controlled, that those businesses
sent money to. Later on in the scheme he switched to using an
account at Rapid Pay Card. And each of the businesses sent
hundreds and hundreds of thousands of dollars to those accounts,
which Mr. Thomas then used to buy luxury vehicles, jewelry and
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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engage in other expenses for himself. And so his claimed right to
such a large share of the proceeds, more than half of the proceeds
flowed through his accounts, shows his leadership role.
We submitted some evidence with our sentencing
memorandum that showed he was directing his co-conspirators about
fabrication of documents. For example, we attached an e-mail
where he directed Ricky Dixon to -- in the fabricated bank
statement for D. Parker Holdings, which is one of the businesses
that Ricky Dixon recruited, to make the payroll $324,000 for the
month of February. And Ricky Dixon then sent back a fabricated
bank statement with two payroll payments that added up to just
about $324,000 in payroll.
We also attached some documents that showed that the
recruiters were all sending their documents to Darrell Thomas, and
that Darrell Thomas was then fabricating those documents with his
co-conspirators.
So, again, he fabricated the documents. He's
responsible for all 14 loans. He directed the recruiters. He is
the one who set up the accounts that received the proceeds from
the businesses. And every defendant that has been before the
Court thus far has expressed in some way or the other that they
were not the most culpable in this offense, that they were
receiving instructions from others about what needed to be done,
about what they needed to submit and that they were essentially
following those instructions. And the evidence shows that it was
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Mr. Thomas who was the one who was giving those instructions.
THE COURT: All right. Thank you.
Mr. Alper.
MR. ALPER: Thank you, Judge. I'll also be brief.
Obviously this was a large conspiracy and everyone had
their own roles in it. Mr. Thomas's role was to process these
applications, submit them and then disburse the proceeds. The
other roles of the other people were to generate these false
documents, submit them to Mr. Thomas and then receive the proceeds
from him. So it's more of a service he's providing, and I don't
think that equates to leadership, you know, compared to an
accountant who prepares my tax return and tells me, hey, I need
your 1099s, I need your receipts, I need this and a third, and
then she files the return and I get the funds back from the
refund, if I hopefully get a refund.
So he's not the mastermind. He's a piece of it. So I
don't think the government has met its burden to establish a
four-level role enhancement, which for him at his level correlates
to seven more years on a guideline sentence, which I'll talk about
when I talk about reasonableness. But I don't think -- when we're
talking about that much time and you have all these different
parts of this conspiracy, it doesn't show that he's the
mastermind, the orchestrator or the leader. He's a participant.
He's doing his job. The other folks in the conspiracy are doing
theirs.
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Thank you.
THE COURT: All right. Thank you.
Mr. Thomas is potentially seeking a significant sentence
here. And as noted by Mr. Alper, this 3B1.1(a) would amount to an
additional four levels and a lot more time. So I'm going to give
a fairly extensive ruling on this, perhaps a little bit longer
than you might expect. But I think given the gravity of the
charges here and the what I think is a potentially very severe
guideline range, I mean, if I apply 3B1.1(a), the guideline is
235 months to 293 months. I've been here for almost three years
now and I am not sure I've seen a guideline sentence this high in
that three years. Or if I have, it's only been -- it's been less
than a handful. So bear with me while I read through my logic in
my ruling here.
Where criminal activity involves five or more
participants or is otherwise extensive, a defendant's offense
level can be increased by four levels if the defendant was an
organizer or leader of the criminal activity.
To receive 3B1.1(a), to receive adjustment under this
section, the defendant must have been organizer, leader, manager
or supervisor of one or more participants. That's application
note two. I would also reference the Brackins case.
The defendant need not be the sole leader or kingpin
of the conspiracy to be considered an organizer or leader. It
applies -- the leadership enhancement applies even if the
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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defendant led or organized only one person.
To distinguish a leadership and organizational role from
one of management or supervision, the Court should consider the
following factors:
Exercise in decision-making authority;
The nature of participation in the commission of the
offense;
The recruitment of accomplices;
The claimed right to a larger share of the fruits of the
crime;
The degree of participation in planning or organizing
the offense;
The nature and scope of the illegal activity;
And the degree of control and authority exercised over
others.
That's application note four.
Not all these elements must be present in every case
but the government must show the defendant's leadership or
organizational role and extensive criminal activity. And that's
from the Alred case, 144 F.3d 1405.
As to the first factor, 3B1.1 requires the exercise of
some authority in the organization, the exertion of some degree of
control, influence or leadership. And the government bears the
burden.
In this case the defendant pled guilty to two counts of
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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the indictment. Count 1, conspiracy to commit bank fraud and wire
fraud. And Count 18, money laundering. The defendant was
involved in a fraudulent Paycheck Protection Program loan and
money laundering scheme. The government and probation agree that
the defendant should receive a four-level enhancement while the
defendant objects to that enhancement.
Turning to the facts at hand. As to his particular role
in the offense, the defendant submitted or assisted in the
submission of 14 fraudulent PPP loans totaling a loss of over
11 Million. He also participated in the fabrication of supporting
documents for each of these loans. And a substantial portion of
the proceeds from the fraudulent loans were sent to Bellator
Phront Group, Inc., or Elite Executive Services, Inc., companies
owned by the defendant, and/or defendant's Rapid Pay Card account.
Having reviewed the facts related to the defendant's
role in the offense, I'll consider these facts in light of the
factors sentencing guideline 3B1.1, application note four. Under
this analysis I find that the government has shown by a
preponderance of the evidence that the defendant should receive a
four-level enhancement for his role in the offense. I make this
finding based on the factors set forth in the guidelines and
Eleventh Circuit case law applying these factors.
First is the consideration of whether the defendant was
a leader or organizer of the offense. Application note four sets
out these factors. And they're also discussed in the Gupta case,
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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463 F.3d 1182.
The exercise of decision-making authority weighs heavily
in favor of finding the defendant had a leadership role. He was
responsible either directly or indirectly for procuring 14
fraudulent PPP loans. As part of that process he fabricated IRS
documents and bank statements. The government has pointed to
evidence that he instructed co-defendants in the fabrication of
supporting documents and fabricated documents himself that he
received from businesses seeking to obtain PPP loans. These facts
show that he exercised decision-making authority.
As to the nature of the participation in the commission
of the offense, that similarly supports the conclusion that he was
a leader or organizer. His participation in the offense was
extensive. He either submitted or assisted in the submission of
these PPP loan applications. And an over $11 Million loss is
attributable to him.
As to recruitment of accomplices, there is evidence that
he directed third parties to recruit fake employees to advance the
fraudulent loan scheme.
And as far as the claim right to a larger share of the
fruits of the crime, that also points to the defendant as a leader
of the activity. Nearly every business that obtained a fraudulent
PPP loan with his assistance sent payments to accounts or
businesses owned or controlled by the defendant. Nearly half of
the -- or about half of the proceeds was deposited into a bank
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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account owned by him or his businesses.
Further, because he was involved in submitting 14
fraudulent loan applications, fabricating documents and submitting
information, his degree of participation or organizing the offense
weighs again heavily in favor of the government's argument that he
held a leadership role.
The nature and scope of the illegal activity also
supports a finding that he was a leader or organizer. The illegal
activity in this case was serious and substantial in scope. As
previously noted, the defendant's responsible for a loss of at
least 11.2 Million and for defrauding multiple institutions.
And the government has presented evidence that the
defendant exercised a notable degree of control and authority over
others. He directed his co-conspirators to obtain fabricated
documents such as false bank statements and to provide those
documents for him for the purpose of obtaining the fraudulent
loans.
Every factor need not be present to find that he had a
leadership role as noted in the Ramirez case, 426 F.3d 1344.
However, the factors weigh heavily here in favor of finding that
he was a leader of the offense at issue -- the offenses at issue.
He exercised a substantial decision-making authority here as well
as his participation in the offense, his claimed rights to the
fruits of the crime, the degree of his participation, the nature
and scope of his activity all support this conclusion.
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And as far as a determination whether the criminal
activity involved five or more participants or was otherwise
extensive, I think this factor is straightforward based on the
number of individuals involved here.
It involved more than five participants and was
extensive in scope. Therefore, I conclude that he had a
leadership role and he did so in an extensive criminal offense
that involved at least five participants. Ultimately, when
comparing his role in the conspiracy compared to others and under
the factors described above, I find that the government has shown
the defendant should receive a four-level enhancement to account
for his role in the offense.
And I will add that I think that that -- you know, the
government's argued that it's overwhelming evidence here as to
application of 3B1.1(a), and I agree that it's overwhelming in
this case. And it does show that he was the mastermind here.
I think the cases that the government cited, including
the Galindo, Stinfort and Brackin case, were all helpful as well.
Any additional objections or amendments other than that
to the presentence report that we need to address?
MR. ALPER: Not from the defense, Judge.
MS. CHAIKEN: No, your Honor.
THE COURT: I will adopt the findings of fact and
conclusions of law in the presentence report to which no objection
was made.
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As to the findings of fact and conclusions of law to
which the defense objected, the Court finds that the defendant
should receive a four-level enhancement for his role in the
offense.
Based on the findings of fact and conclusions of law the
guideline calculations for Count 1, conspiracy to commit bank and
wire fraud, are as follows:
Base offense level of 7 and adjusted offense level of
39.
Based on the findings of fact and conclusions of law the
guideline calculations for Count 18, money laundering, are base
offense level of 33 and adjusted offense level of 41.
Under USSG 2S1.1, application note 6, Counts 1 and 18
are grouped pursuant to 3D1.2(c). The greater the adjusted
offense level above is 41, which is therefore used as the adjusted
offense level.
Accordingly, the guideline calculation offense levels is
as follows:
Total offense level of 38;
Criminal History Category of I;
Recommended sentencing range of 235 to 293 months;
Fine guideline range of 50,000 to $29,497,572.70, or
twice the loss;
Term of supervised release for Count 1 is two to five
years, for Count 18 one to three years;
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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And a special assessment of $200.
Any objection to the guideline calculations as stated by
the Court?
MS. CHAIKEN: No, your Honor.
MR. ALPER: No, Judge. Thank you.
THE COURT: I will now hear from the parties as to
recommendations for a reasonable sentence concerning the 18 USC
Section 3553(a) factors. I have reviewed the presentence report
as well as the memoranda from the government and the defense and
the character letters that were provided on behalf of Mr. Thomas.
Are there any other documents or letters for the Court?
MS. CHAIKEN: No, your Honor.
MR. ALPER: Judge, I had two that came in last night
that I didn't get a chance to file. I was just going to mention
them when I talked about 3553(a). They track -- they're from his
sisters and they track what the other letters say. I don't think
you need to review them, but I wanted you to be aware we did have
two additional letters.
THE COURT: Thank you. I'm looking forward to hearing
from you and your argument as to those as well.
Are there any victims present that wish to speak or
present evidence in connection with the sentence in this case?
MS. CHAIKEN: No, your Honor.
THE COURT: Any witnesses on behalf of the defense?
MR. ALPER: No, your Honor.
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THE COURT: Mr. Alper, I would be happy to hear from you
now as to any argument in addition to your sentencing memorandum
on behalf of your client. And then I'll hear from him as well.
MR. ALPER: Thank you, Judge.
You kind of, Judge, took the words out of my mouth when
you said earlier that this 230 guideline range was one of the
highest you've seen, if not the highest. I've been doing this for
about 13 years, which is hard for me to say or believe, but I've
never had a fraud case, you know, white collar fraud case where a
client has pled guilty, accepted responsibility and is still
looking at a potential 20-year -- close to 20-year guideline
sentence.
The only fraud case that I had where a guy got 20 years,
it was a tax fraud case in front of Judge Pannell many years ago.
He went to trial. He testified against my advice, so he didn't
get acceptance. And he had aggravated identity theft as well on
top of that. And he got 20 years after that trial.
So for Mr. Thomas's situation I think it's a great
illustration of how out of whack these guidelines are, especially
when you start getting more down the chart or more up in levels,
however you want to say it. As I said, 4 levels, from a 34 to a
38, is 7 years. When you do 4 levels and you add a 10 to a 14 or
12 to a 16, you're looking at maybe 10, 11 months, something like
that. So once you start tacking on to an already lengthy
sentence, it just shoots up by factors of a lot.
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So I think, again, this just shows that the guideline,
especially in fraud cases, as they are in other cases, are not
equipped to deal with every type of situation. And that's why
thankfully your Honor has discretion to deviate from those
guidelines. And I think that's appropriate here.
The other problem with the guidelines in a fraud case is
that they equate loss amount equally; meaning, if you steal money
or defraud the government of $10 Million or if you have a Ponzi
scheme and you wipe out $10 Million of folks' life savings,
individual family victims, that's treated equally under the
guidelines. And I don't think that's appropriate because the
intents there are different. They're both wrong. I'm not
diminishing defrauding the government, but I think the intent
there is much more different and much more sinister when you're
robbing from individual victims.
I had a case like that where -- that was in front of
Judge Jones. He ran a Ponzi scheme and he took about
two-and-a-half million dollars from 30 immigrant families here in
Atlanta. And he just spent it all. He knew exactly what he was
doing when he took their money and used it for his own purposes,
knowing that it was going to bankrupt them. And he did it anyway
and he got 70 months.
So, again, when you look at intent, when you look at
harms to the community, I just don't think that adds up. Again,
I'm not diminishing what he did. Neither is he. But I think you
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
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need to compare the overall harm and the impact on the community
when you look at loss in this case.
PPP cases are huge now. I'm going to be doing them for
the next five years or more probably because when this program
started, everyone started ripping off the program. The government
acknowledges that a large percentage of this money -- of all this
money is probably fraudulent or has indicia of fraudulent
activity. And that's not surprising. When I hear my PPP clients
talk to me, they say -- they almost always say the same thing,
that, Well, I knew I shouldn't have done it, I knew it was wrong,
but to me it was a loan that I could pay back. And if there was a
problem with the process, if there was a problem with what I did,
I would just say all right and I would find a way to pay the money
back.
Again, that's not an excuse. You can't get a loan
fraudulently and expect to not suffer some consequences. That's
why we're here today. But I do think when you look at the intent
of Mr. Thomas, that wasn't just to rob the government blind and go
crazy. He had a business, he was developing a real estate
project. He expected to be earning a substantial portion of money
from that project. And he felt he would use it as a form of a
bridge loan in order to get the project up and running and then
pay the money back.
Did he spend it on some things he shouldn't have as
well? Yeah, he did. And he takes responsibility for that. But
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it wasn't this let's just rob everyone blind and go party.
So I think in this case for the reasons that I talked
about, the guidelines just don't do it justice. I can't
understand how we can rationally say that Mr. Thomas should be
looking at 20 years in prison for a first-time offender in a fraud
case with no history of violence, nothing like that.
So I respectfully ask the Court to consider that and
consider a variance downward below the guidelines because, you
know, the guidelines, they're not mandatory, thank God they're
not, because they don't always make sense. And this is exactly
that type of situation.
So we would ask for, as I said, a below-guideline
sentence, your Honor. Thank you.
And Mr. Thomas, do you want him to address the Court
now?
THE COURT: Yes. I was about to ask. Although let me
explain to him.
Mr. Thomas, I've had the benefit of hearing from your
counsel both through the materials that he's provided, but I would
also be happy to hear from you in a moment.
Mr. Alper, before I do that, I think you referenced a
couple letters you were going to tell me about from his sisters.
Do you want to tell me about those?
MR. ALPER: Yes, your Honor. I forgot to mention that.
Thank you.
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But, yes, I did receive two additional letters from both
of his sisters, all stating that he is a very important member of
their family and having him being taken away from them for so long
would be extremely difficult on the family. And they just ask
your Honor for leniency. They understand that he has done wrong,
he's made mistakes, but they're asking that your Honor show him
mercy and let him come home soon. Thank you.
THE COURT: Thank you.
And, Mr. Thomas, your counsel stated you did want to
make a statement, so I would be happy to hear from you now, sir.
THE DEFENDANT: Stand?
THE COURT: You can stand if you like. You can move
that mic closer to you. You can stay seated. Actually it might
be easier to talk into the mic while staying seated.
THE DEFENDANT: Excuse me, I'm a little nervous.
Thank you for -- thank you for your time today.
First -- can you hear me?
THE COURT: Yes.
THE DEFENDANT: First I wanted to just elaborate on what
my attorney said. There's a lot of documentation showing the
development, which is very important to me. And I hope to still
be able to get it done, you know, no matter where I'm at. But I
do want to let the Court know that for all intents and purposes,
yes, that was my -- I went about it the wrong way but that's
exactly what I initially wanted to do this for.
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I wrote a letter, I wrote a letter to you, so I'm going
to read it now.
Your Honor, thank you for your time today. First and
foremost, I would like to say I take full responsibility for my
actions and I apologize.
Growing up I was exposed to love, both parents and
wonderful siblings, along with a few adopted children that I
helped my parents raise. My parents made sure that we never
experienced poverty, but I saw the constant worry and fear of
losing the things that they worked for. When my father's health
deteriorated to the point where he was admitted to hospice care,
I understood then watching my mother struggle to hold things
together poverty is always a decision or a paycheck away.
I experienced firsthand the sacrifices that you make for
family when I had my first son. The feeling of his heartbeat as
we slept together a few nights after he was born and just touching
him, I realized then and I vowed that I would do anything to keep
my family close.
Leaving from Louisiana after doing construction
following Katrina I obtained a job doing maintenance in an
apartment complex. And due to squabbles in the family I was
homeless at the time, but the manager allowed me to live there
while working on the vacant units until I earned enough money to
get a place for my family. That situation always stayed with me,
your Honor, and it's the driving factor for me to always achieve
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the things that I set out for. Unfortunately, I took improper
steps to get there, which has led me here today.
I've never been in trouble, Judge Boulee. I've always
been the person to steer people away from things that could get
them into trouble and try to be a voice of reason. I don't plan
on ever being in trouble again.
During this incarceration the violence, beatings,
stabbings and death that I've witnessed, coupled with the
loneliness and inability to touch my children has broken me. If
given -- if given the opportunity by you, I would like to be able
to take my youngest son to his first day of kindergarten. Hearing
him call me dad through a video visit, it makes me happy but at
the same time it breaks my heart because -- I'm sorry, I'm
sorry -- because I know I should be there with him now.
Any stipulations that could release me to these boys,
my three, they're welcomed. They'll be followed. I'm a very
hard-working person. And I've always went above and beyond in any
endeavor that I tried to undertake, from construction to going
overseas to procure rough diamonds to come back and sell. That
determination and drive I know will help me pay back my
restitution in full. But it will also provide jobs for other
people, which is one of the things that I've always tried to do
but unfortunately I did things the wrong way.
I do have a clear-cut plan for my future and for this
restitution. From a person whose last brush with the law was a
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speeding ticket and last brush with violence involved me being
pistol whipped and robbed over the course of hours while overseas
to being exposed to living with men who have been locked up, some
before puberty, this last year has been a living nightmare.
Incarceration hurts. And you don't realize it until you've been
through it.
So, your Honor, I'm asking you to make an investment in
me and go below the guidelines so that I can come out and do
better and be an example that there are other ways to rehabilitate
without oppressive sentences. I know I can achieve the goals that
I've set out for, even after this setback and my poor decisions.
Thank you.
THE COURT: All right. Thank you, sir.
Does the government wish to respond?
MS. CHAIKEN: Yes, your Honor.
THE COURT: Okay. Go ahead.
MS. CHAIKEN: I'm going to come to the podium because
it's easier.
THE COURT: Sure.
MS. CHAIKEN: Thank you, your Honor.
I want to start out by acknowledging that we recognize
that this is a very significant sentence, especially in a white
collar case. Like you, it's the highest one that I have seen in
my time practicing, which I think is similar to yours in this
building.
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However, that is a guideline range that is largely
driven by the various guideline enhancements that squarely apply
in this case. And we think it does support the recommendation of
a low-end guideline sentence. We think that the very unique
conduct in this case does support that recommendation.
Starting first with the seriousness of the offense. As
the Court knows, it happened in the context of an unprecedented
global crisis. Many struggling small businesses were not able to
stay open, were struggling to pay their employees, which had
far-ranging impacts on the employees, their families and the
entire community. And the PPP program was purposefully designed
to have streamlined procedures so that business owners could get
this money into their hands quickly. And part of that streamlined
procedure was not very many checks and balances within the
program. The lenders could rely on representations in the
application and on documentation without verifying it. And
Mr. Thomas took advantage of those streamlined procedures in order
to get money for himself quickly knowing that he would be able to
do it without much of a dive into the supporting documentation
that he had fabricated.
And one of the aspects of this program was that there
was a limited pot of money. There was only a certain amount of
money that was available and whichever businesses got to it first
were able to apply, were the ones that got the money. So every
single dollar that was taken by Mr. Thomas was a dollar that was
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not made available to other legitimate small business owners who
needed that money in order to keep their employees on the payroll,
to support their families and to try to stay open during this
pandemic.
Mr. Alper spoke about impact on the community and taking
someone's life savings versus stealing from the government. But
this was not just government funding, it was funding that was made
available to try to keep struggling small business owners in
business and to keep their employees employed. And the money
that Mr. Thomas took did have an actual impact on those other
businesses that were not otherwise able to get funding or to have
the opportunity to apply for that funding.
Mr. Thomas's actions also caused harm to his
co-defendants who have been before this Court. There are 22
other defendants who have been or are still before this Court in
connection with Mr. Thomas's scheme. And to be clear, they made
their choices and they made bad choices and wrong choices to steal
this money and to participate in Mr. Thomas's scheme. But I think
from the people that the Court have seen before it, many of whom
did not have criminal histories, many of whom have never engaged
in this kind of conduct, they would not have engaged in that
conduct if it were not for Mr. Thomas bringing them into his
scheme, encouraging them, enabling them to commit this fraud. And
they've also been impacted by his actions. He's brought all of
those people down with him.
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Mr. Thomas's offense was motivated by greed. He has
tried to say that this was meant to be for a development or for a
property and that this was some sort of investment, but the money
shows otherwise. He used the money to buy luxury cars, to buy
jewelry. He took out massive amounts of cash. And after his
arrest when he still had $3 Million that he laundered, and I'll
get to that in a moment, he didn't use that to buy property or to
make an investment, he took that money out in cash, millions and
millions of dollars in cash. And so the fact is there is -- I
think the government seized around $4 or $5 Million of the $11
Million in PPP funds. The rest of the money is unaccounted for.
There's no development, there's no property, there's no investment
to show for it, so that belies the claim that this was motivated
by some sort of investment.
I think it's also important to note, your Honor, that
this wasn't a momentary lapse in judgment. The applications and
money laundering continued for more than six months, including
after Mr. Thomas's money had been frozen by the FBI, after it had
been seized, after he had been served with subpoenas, after he had
been arrested. It wasn't a split-second, heat-of-passion
decision. It was a calculated ongoing decision to continue to
commit this fraud every day for months, even after he knew that he
was under investigation and even after he had been indicted for
this conduct.
Another important aspect of the seriousness of the
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offense is the sophistication. And, in particular, I think the
Rapid Pay Card money laundering is the most -- is the part that
most underscores that. And so I'll just explain a little bit of
that because I'm not sure how much of that was in our sentencing
memo.
But Rapid Pay Card is a legitimate payroll company that
allows employers to issue payroll cards to their employees so that
instead of doing direct deposit or instead of giving them paper
checks, each employee gets a debit card that they can then use to
make cash withdrawals, to make purchases, to transfer money,
et cetera. And Mr. Thomas used that legitimate company in order
to try to conceal the fraud and to launder the proceeds from it.
So he recruited over 100 people who gave their personal
information, some voluntarily and some not, to serve as fake
employees. And he issued over 150 payroll cards in those people's
names. When he was arrested, 9 of those payroll cards were found
in his home. So those fake employees didn't actually have the
cards, those were cards that Mr. Thomas used for himself and for
his co-conspirators to launder the money and to make it look as if
these businesses were sending money for payroll when really they
were just sending money to Mr. Thomas and his co-conspirators.
And that also, your Honor, undercuts the claim that this
was just going to be a loan that could be paid back. There was
never a plan to pay back this loan. The entire scheme was
designed to obtain fraudulent forgiveness. That's why all the
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money that the businesses spent and sent to Mr. Thomas were
labeled as being for payroll or for rent because those were
approved expenses. And the plan was to then submit to the lender
documentation showing that when the business received its
proceeds, it sent the money to Rapid Pay Card for payroll, when
really that was just Mr. Thomas taking the money out in cash on
the back end.
So this offense was serious, your Honor. It lasted for
a long time. It involved a significant amount of money. And it
was money that was stolen from people who desperately needed it
during a time -- an unprecedented time in our country.
As far as history and characteristics and deterrence,
your Honor, I'll address those together because there's some
overlap. Both specific and general deterrence are critically
important here and are relatively unique in the context of a white
collar offense.
This is Mr. Thomas's first time being charged with a
crime, but it's not his first time committing a crime. He just
didn't get caught last time. He committed a massive auto loan
fraud scheme before he started his COVID relief fraud scheme.
He's accepted responsibility in his plea agreement to that
separate scheme, which involved at least 44 fraudulent automobile
loans totaling more than $2.4 Million. So that was another
separate fraud that he committed. That shows this is not the
first time he's done this.
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As far as this offense the timeline here really shows
the need for specific deterrence and the fact that Mr. Thomas has
not been deterred by any steps in the criminal justice process
that normally would deter a first-time offender. Bellator and
Elite's accounts, which were Mr. Thomas's accounts, were frozen by
mid-June of 2020, at which point he would have known there was
some indication that he was being suspected in engaging in some
sort of fraudulent activity. The funds in those accounts were
seized, all of them, around the end of June of 2020.
On July 1st we served grand jury subpoenas on both
Bellator and Elite, which would have put Mr. Thomas again on
notice that there was an FBI investigation or an investigation
into PPP loans associated with those businesses. At that time he
continued submitting loan applications. There's at least five
loan applications that were submitted after the time that his
funds were frozen. And even more after the time that the grand
jury subpoenas were served. Mr. Thomas was indicted under seal on
August 5th of 2020 and arrested on August 6th of 2020.
And one thing to mention, your Honor, is that one of the
things that Mr. Thomas agreed to in his plea agreement and that
the evidence shows is that he provided fabricated documentation to
the grand jury in response to that subpoena. So, again, not
deterred, continued to believe that he could perpetuate his fraud
and that he could get out of it.
He continued submitting fraudulent loan applications.
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And then after he was arrested and released on bond, he laundered
more than two-and-a-half million dollars through the Rapid Pay
Card account between August and around October of 2020. That's
the conduct that ultimately led to him having his bond revoked by
Judge Vineyard.
And the government agreed as part of the plea agreement
not to file an enhancement under Title 18 United States Code,
Section 3147 for committing an offense while on release. But if
the government had done so, that would have increased Mr. Thomas's
guidelines by three levels. It would have taken him to 324 months
as the low end, nearly seven-and-half years higher. So he's
already received a benefit from the plea agreement. But the fact
that he continued to commit what in and of itself would have been
a massive money laundering scheme, almost $3 Million, while he was
on release for these very serious charges shows that he was not
deterred by any of those steps that for everyone else in this case
deterred them from continuing to engage in those actions. It
didn't have that impact on him. And that's why significant
sentence is needed to deter him from committing fraud in the
future.
He has accepted responsibility. He pled guilty. He
as part of his cooperation agreement did come in for a lengthy
proffer. He provided information that is -- was relevant to our
investigation as well as to a separate investigation in another
district. And we do view that as a good first step in the
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cooperation. We're not at the position at this point that we
could file a 5K. And we think there's more work that he would
need to do before we would be in a position to file a Rule 35
motion it would be at that point. But we did want to let the
Court know that he has engaged in those activities.
But despite his acceptance of responsibility, he
continues to minimize his conduct and to show that he does not
fully grasp the impact that it had on those around him, on the
community. He does not acknowledge his role as the mastermind of
the offense. He attempts to paint it as some sort of investment
or property development that he was going to do when the evidence
shows otherwise. So his acceptance of responsibility and his
expression of remorse, while it's obviously worthy of being
considered, it doesn't outweigh the other very significant factors
here with respect to his history and characteristics and
deterrence.
General deterrence is also a key factor here in this
kind of sentencing because it's a white collar case. White collar
crime is a rational decision. It's not a heat-of-the-moment,
split-second decision. It's an economic decision that what is to
be gained is worth the potential of what is -- what the cost is.
And a 48-month sentence, which is what Mr. Thomas has requested,
for the scale of the fraud that he committed here would be a slap
on the wrist. It would be unlikely to deter almost anyone from
committing this type of fraud especially because, your Honor, as I
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said, more than half of the money that has been taken is
unaccounted for. We seized $4 or $5 Million of it, but we don't
know where the rest of it is. And it may be sitting somewhere in
a bank account in someone else's name waiting to be used once
Mr. Thomas comes out of prison. We don't know. But if someone
can commit this type of fraud and get over $11 Million and then
get a 48-month sentence and come out on the other side a
millionaire, there's people who would choose that bargain.
There's people who would deem that worth the cost especially since
this type of crime is difficult to detect and prosecute. And
that's something that the Eleventh Circuit has highlighted a
particularly relevant area for general deterrence where there's
not a high likelihood of getting caught.
In the context of the PPP there was a lot of fraud and
the government has limited resources. People are not going to be
prosecuted for every fraud that they committed as part of the PPP
program. And for that reason when people do get caught and do get
prosecuted, a significant sentence is needed in order to send that
message.
As far as unwarranted sentencing disparities, your
Honor, every defendant that the Court has sentenced thus far has
been involved in only one loan, either as a recruiter or as a
business owner, but only one loan. Mr. Thomas was involved in 14
loans and was the mastermind, as the Court has found.
With two exceptions all of the defendants received a
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low-end guideline sentence according to their guidelines. And the
exceptions were Charles Hill, who had a rare autoimmune disease.
And for that reason we recommended that he serve the same length
of time as his low-end guideline sentencing but in home
confinement rather than in prison. And Andre Gaines, who pleaded
guilty to making false statements to law enforcement, he did
not plead guilty to a conspiracy count. And he had unique
circumstances in terms of his age and his cognitive condition that
warranted a downward variance.
But Mr. Thomas's conduct was vastly different than the
conduct of each of the defendants that the Court has sentenced
thus far. And giving him a sentence that varies so far below his
guideline range would create unwarranted sentencing disparities
with those defendants who are serving guideline sentences.
Finally, your Honor, with respect to restitution, the
Eleventh Circuit has held, and we cited a case in our brief, that
the fact that there's a high restitution amount doesn't weigh in
favor of a lower sentence because that would create backwards in
sentence essentially where a higher loss amount would be to lower
prison sentences so people could pay restitution.
There has not been a financial disclosure made in this
case. There has not been any voluntary restitution payment made.
And the evidence in the case shows that Mr. Thomas has used
accounts in other people's names and has put assets in other
people's names in order to hide -- and to hide those assets. For
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example, your Honor, when Mr. Thomas was arrested, we had a
seizure warrant for a Mercedes vehicle. At that time Mr. Thomas
told the agents that the car had been sold and so we didn't seize
it at that time. We later learned that Mr. Thomas moved to
Florida after he had been arrested and released on bond and that
he was living in a condo building down there in a lease that was
signed in other people's names and the Mercedes was parked in that
parking garage where Mr. Thomas was living and we were then able
to seize it.
But multiple of the money laundering transactions that
are involved in this scheme involve accounts that were in other
people's names. And we have text messages between Mr. Thomas and
those people showing that he was the one directing all of those
transactions through those accounts. But that is money that, you
know, is in another individual's name. And we have no way of
knowing what other assets he has out there that are in other
people's names. All we know is his practice and what he has done
so far is to prevent us from being able to find those assets as
easily by putting them in other people's names. So the ability to
pay restitution I don't think should way in favor of a downward
variance in this case.
So, again, your Honor, based on the seriousness of the
offense, the history and characteristics of the defendant, the
very unique need for specific deterrence and general deterrence
and the need to avoid creating unwarranted sentencing disparities
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we recommend a sentence of 235 months.
THE COURT: Thank you, Ms. Chaiken.
MS. CHAIKEN: Thank you.
THE COURT: 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?
MR. ALPER: Not from the defense, Judge.
MS. CHAIKEN: No, your Honor. Thank you.
THE COURT: All right. Thank you.
Mr. Thomas, if you could please stand, sir.
Pursuant to the Sentencing Reform Act of 1984, it's the
judgment of the Court that you, Darrell Thomas, are hereby
committed to the custody of the Federal Bureau of Prisons to be
imprisoned for a term of 180 months custody as to Count 1 and
Count 18 to be served concurrently. Sir, you can have a seat
while I read the remainder of your sentence.
You must pay the United States a special assessment of
$200 due immediately. The assessment should be paid to the Clerk,
US District Court, Northern District of Georgia.
The Court finds you do not have the ability to pay a
fine and cost of incarceration, the Court will waive the fine and
cost of incarceration in this case.
It is further ordered that you shall make restitution in
the amount of $13,206,752.10 to the following victims:
CDC Small Business Finance, $2,406,727.80. And that
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will be -- each of these will be -- well, this one will be jointly
and severally with Meghan Thomas, Amanda Christian, Charles Hill,
IV, Teldrin Foster, Dwan Ashong, Denesseria Slaton, Jesika
Blakely, Ricky Dixon, El Hadj Sall, Ryan Whittley and Rick
McDuffie.
Harvest Small Business Finance $2,285,341.68 jointly and
severally with Meghan Thomas, Derek Parker, Ricky Dixon, Teldrin
Foster, Dwan Ashong and Charmaine Redding.
Cross River Bank $2,393,113.19 jointly and severally
with Khalil Green, Jesika Blakely, Teldrin Foster, Bern Benoit,
Amanda Christian, Charles Petty, Denesseria Slaton, Jerry
Baptiste, John Gaines, Andre Gaines and Carla Jackson.
Small Business Administration DFC $1,478,198.82 jointly
and severally with Meghan Thomas, Amanda Christian, Charles Hill
IV, David Belgrave, Teldrin Foster, Dwan Ashong, Denesseria
Slaton, Jesika Blakely, Ricky Dixon, El Hadj Sall, Ryan Whittley,
Jerry Baptiste, John Gaines, Andre Gaines, Carla Jackson, Charles
Petty, Bern Benoit, Khalil Green and Derek Parker.
Customers Bank $1,456,940 jointly and severally with
Meghan Thomas, Amanda Christian, Dwan Ashong, David Belgrave,
Ricky Dixon, Jesika Blakely, Denesseria Slaton and Teldrin Foster.
PNC Bank of $1,193,500.
Celtic Bank $781,638.61 jointly and severally with Ricky
Dixon and Teldrin Foster.
State Farm Bank $527,127.
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Digital Federal Credit Union, $227,365.
Bank of America $140,000.
Navy Federal Credit Union, $104,000.
Regions Bank $85,000.
Del Norte $57,000.
BB&T $40,000.
USAA $30,800.
Restitution shall be paid in full immediately.
You must pay the above-noted financial penalties in
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 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 is ordered that the interest requirement is
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waived for restitution.
Forfeiture. Forfeiture of your right, title and
interest in certain property as specifically set forth here is
ordered consistent with the plea agreement and as set forth in the
consent preliminary forfeiture order filed August 4th, 2021.
That's already in that order. Does anyone believe I
need to read this into the record?
MS. CHAIKEN: No, your Honor.
MR. ALPER: No, sir. Thank you.
THE COURT: All right.
Supervised release. Upon release from imprisonment
you'll be on supervised release for a term of five years on
Counts 1 and 3 -- and 3 years on Count 18 to be served
concurrently for a total term of 5 years.
You must comply with the mandatory conditions of
release.
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 a low risk of future substance
abuse.
You must cooperate in the collection of DNA as directed
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by the probation officer.
You must make restitution in accordance with 18 USC,
Sections 2248, 2259, 2264, 2327, 3663, 3663(a) and 3664.
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 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 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 the
request of your probation officer.
You must provide the probation officer with full and
complete access to any requested financial information and
authorize 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 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 communications or
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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 within 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.
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. Alper, are there any particular requests on that
front?
MR. ALPER: Could your Honor request a designation in
the State of Florida, please.
THE COURT: Yes.
MR. ALPER: Thank you.
THE COURT: I hereby respectfully recommend to the
Bureau of Prisons that Mr. Thomas be housed in the State of
Florida.
This sentence is made in view of the sentencing goals
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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 guideline, any
pertinent policy statement, the need to avoid sentencing disparity
and the need to provide restitution to victims.
The 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 following
factors:
First, as far as the nature and circumstances of the
offense and to reflect the seriousness of the offense I believe
that this indeed was an incredibly -- these are incredibly serious
offenses as outlined in the government's memorandum. Many
American businesses were struggling at the onset of the
coronavirus. And Congress passed the PPP loans as a way to
provide relief for those struggling businesses. And instead the
defendant took advantage of those loans and convinced others to
join in his scheme and stole from the taxpayers' funds and
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deprived other legitimate business owners of the opportunity to
obtain the financing that they needed to purchase, among other
things, luxury vehicles and jewelry. This involved 14 such loans.
And it was a calculated and methodical offense. It was a
sophisticated offense, even involving the use of a legitimate
payroll company to launder the proceeds.
I'm also cognizant of the defendant's history and the
auto loans, fraudulent auto loans in the amount of $2.4 Million as
well here.
I will say, though, when I look at this defendant and
his history and characteristics, I am sympathetic in some regards.
I have read in the PSR -- the PSR notes that he reported diagnoses
of depression and anxiety while housed at the Robert A. Deyton
Detention Facility and was prescribed Lexapro and Artane. And the
defense further clarified in response to that that in addition to
those medical issues Mr. Thomas has been suffering night terrors,
cold sweats and has had trouble sleeping and, again, is taking
medication for those health issues.
I'll tell you, I agreed with a lot of what Ms. Chaiken
said, but having been to the Robert A. Deyton facility, I'm not
sure many people would want even 48 months there in exchange for
$11.2 Million. So I am very cognizant of what his confinement
thus far, how that's affected him.
I'm also, you know, very troubled for the situation this
puts his four (sic) boys in. Caleb -- and these ages might be a
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little bit off, but Caleb 14, Brett 12 and Dominick age 1. I
assume they've maybe gotten a little bit older since this was
written. But to give him a 235-month sentence, almost 20 years,
and basically make it so those three boys don't have a father for
almost 20 years I was not convinced I should do here when I look
at his history -- his characteristics and those three boys.
As far as disparities in sentence are concerned, I do
not think this sentence of 180 months creates an unwarranted
sentencing disparity. There are other defendants in this case
that received much lesser sentences but none of them are similarly
situated to the defendant. They are either individual business
owners or recruiters who recruited business owners to participate
in this scheme. None of them played as significant of a role as
the defendant did here. They participated in 1 loan versus the 14
loans at issue here.
Ultimately I was asked by the defense to vary downward.
The defense would have had me -- the defense didn't state a
specific amount today I don't think. I think in the sentencing
memorandum the defense asked for 48 months. I was not prepared
to vary downward that extensive amount. But I did opt to vary
downward 4 offense levels to a range that included 180 months.
The record should reflect that my sentence here would
have been the same irrespective of my ruling on the disputed
guideline issue that I resolved in favor of the government. In
other words, I would have sentenced the defendant to the same term
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UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
43
of incarceration even if I had not ruled in the favor of the
government on those grounds.
Before I advise the defendant on his appeal rights, does
the government or defense have any further objections to the
findings of the Court, the guideline calculations or sentence or
manner in which it's been pronounced?
MS. CHAIKEN: Your Honor, no objections. The one thing
is that since the preliminary order of forfeiture was filed, there
was one additional asset seized. It was the funds that were
remaining in the Rapid Pay Card account. I do have a supplemental
consent preliminary order of forfeiture and I would ask the Court
to file that and pronounce the forfeiture as to that asset as
well.
THE COURT: Sure. Thank you.
Any objection by the defense?
MR. ALPER: No, sir. Thank you.
THE COURT: I've signed the supplemental consent
preliminary order of forfeiture to include that additional amount.
MS. CHAIKEN: Thank you.
THE COURT: Nothing on behalf of the defense?
MR. ALPER: That's correct, Judge. Thank you.
THE COURT: Mr. Thomas, you can appeal your conviction
if you believe that your guilty plea was somehow unlawful or
involuntary or if there was some other fundamental defect in the
proceedings that was not waived by your guilty plea.
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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 should be
filed within 14 days of judgment being entered in your case. If
you're unable to pay for 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 Mr. Alper would be happy to advise you further on
this matter.
Mr. Thomas, do you have any questions about anything
I've said at today's sentencing hearing, sir?
THE DEFENDANT: No, sir. No, your Honor.
THE COURT: All right.
Counsel, anything else that we need to discuss this
afternoon?
MS. CHAIKEN: Not for the government, your Honor. Thank
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you.
MR. ALPER: No, sir. Thank you.
THE COURT: All right. Thanks to all of you for the
materials and for the arguments today.
Ms. Oduka, thank you.
Ms. Coudriet, thank you.
To the court security officer and the deputy marshals, I
appreciate their assistance this morning as well.
Mr. Thomas, I know it may seem ungenuine for me after
giving you 15 years in federal prison to wish you the best of
luck, so I won't be flippant and say best of luck to you. I will
say, though, that I struggled very much with your case and with
this sentence.
The crime was egregious. And the amount of money
involved is astronomical. So I felt that the sentence needed to
be a stern one. But as noted, I considered all of those factors,
but I did think about what your confinement has done to you and
how hard it can be to be confined, especially to be away from your
boys. And I'm sorry for you, that you're not with them. But I'm
even more sorry for the three of them that you're not with them,
especially your youngest who will lose out on having a father at
least with him physically.
But I genuinely hope that you can do everything you can
do to still be a part of all of their lives. I think it's
certainly easy not to be and probably a lot harder to be a part of
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their lives, but I certainly do hope that you can find a way to
still be an important part of their lives, sir.
I believe Mr. Alper has done an excellent job of
convincing me that the full 235 the government had requested was
not necessary here. So I hope that that will at least give you a
little more time with your sons by varying downward four levels,
not as much as he would have liked me to or you would have liked
me to but certainly some more time with your sons.
Again, I don't mean it to be flippant but I do wish you
luck. And I wish you success with staying a part of your sons'
lives in some way.
All right. That concludes this proceeding. Thank you,
everyone.
(PROCEEDINGS REPORTED WERE CONCLUDED AT 12:20 P.M.)
___________________________
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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 10th of November, 2022.
________________________________
PENNY PRITTY COUDRIET, RMR, CRR
OFFICIAL COURT REPORTER
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