Court filing
Information - United States v. Maurice Fayne related docket
Record facts
| Court | U.S. District Court for the Northern District of Georgia |
|---|---|
| Filed | 2021-03-01 |
U.S. District Court for the Northern District of Georgia · No. 1:20-cr-00228-MHC-JKL · Doc. 173 · 2021-03-01 · Docket on CourtListener
Summary
A transcript of the February 4, 2021 Zoom hearing on a motion for bond reconsideration in United States of America v. Maurice Fayne, a/k/a Arkansas Mo, No. 1:20-cr-00228-MHC-JKL, before Magistrate Judge Justin Anand of the U.S. District Court for the Northern District of Georgia, filed March 1, 2021 as Document 173. Defense counsel Saraliene Durrett argues that the no-contact instructions may have been ambiguous, that Fayne has been in custody for 44 days on the bond revocation, and that conditions such as home detention, curfew or location monitoring could be crafted. John Russell Phillips for the government responds that the instructions were clear and that the motion does not meet the reconsideration standard under Local Rule 7.2(e). He reviews the charging history, stating that the defendant has been on notice of the Ponzi scheme charge since his indictment.
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
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA,
:
:
vs.
: DOCKET NUMBER
: 1:20-CR-0228-1
MAURICE FAYNE A/K/A ARKANSAS MO, :
: ATLANTA, GEORGIA
DEFENDANT.
: FEBRUARY 4, 2021
TRANSCRIPT OF ZOOM HEARING ON MOTION FOR BOND RECONSIDERATION
PROCEEDINGS
BEFORE THE HONORABLE JUSTIN ANAND
UNITED STATES MAGISTRATE JUDGE
APPEARANCES OF COUNSEL:
FOR THE GOVERNMENT:
JOHN RUSSELL PHILLIPS
UNITED STATES ATTORNEY'S OFFICE
FOR THE DEFENDANT:
SARALIENE DURRETT
SARALIENE SMITH DURRETT, LLC
MECHANICAL STENOGRAPHY OF PROCEEDINGS AND COMPUTER-AIDED
TRANSCRIPT PRODUCED BY:
OFFICIAL COURT REPORTER:
SHANNON R. WELCH, RMR, CRR
2394 UNITED STATES COURTHOUSE
75 TED TURNER DRIVE, SOUTHWEST
ATLANTA, GEORGIA 30303
(404) 215-1383
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P R O C E E D I N G S
(Atlanta, Fulton County, Georgia; February 4, 2021.)
(The transcript begins with the audio-recording
in progress, as follows:)
MS. DURRETT: ...involved with witnesses or victims.
And I know Mr. Fayne understands that.
As to the contact that he had with Ms. Cain in
November, it is unclear to me from her text chain and from his
text chain exactly what happened. The Government had stated at
the last hearing that he had contacted her on November 2nd. I
don't see information from her text chain about that. I don't
see information from his text chain about that.
What I do see in his is her initiating contact with
him on November 9 saying, I can't wait to work with the FBI to
put you in jail. I can't wait to work with Attorney General
Sara Oliver to put you in jail, basically and then
inappropriate responses. There should have been no contact.
There is no doubt about that.
But what I want the Court -- I hope the Court will
understand is there may have been ambiguity as far as the
instructions that Mr. Fayne received. And he, I think, is
clear from the record was attempting to comply with all court
orders. He wasn't failing drug tests or failing to appear for
court. He repeatedly appeared for court because the indictment
has been superseded several times.
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So there was an initial indictment, a first
superseding indictment, and a second. And he has always
appeared for court. He has always appeared voluntarily to
check in with his probation officer. There's never been any
issue with that.
I have not heard other allegations of him trying to
contact other witnesses or victims or doing anything else that
would be inappropriate or would be a violation of this Court's
order. So certainly he was attempting to comply with what he
believed the Court's orders were.
I'm sorry? Oh.
So we would ask the Court to consider that.
In addition to that, he has now been in custody for
44 days on the bond revocation. And certainly that is going to
be a deterrent for any future idea that he might try to break
the Court's orders. I don't think he has any plan to do
anything that would put him back where he is right now.
Certainly the Court -- he made the reference, I
think, at the last hearing to the fact that he's an asthma
sufferer and has an inhaler. As you can see, he has got his
mask on there at the facility. And so COVID is a concern.
I know the Court has had lots of defendants who have
talked about that. But certainly it is an issue that I think
is relevant to the Court's consideration.
So I know the Court made the finding at the last
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hearing that he had inappropriate contact. For the reasons
that I'm saying -- that I have stated, I think that there is a
question about that.
But even if the Court says, look, I find by clear and
convincing evidence that that was inappropriate contact, the
second part of the statute that the Court has to look at is
whether you can craft any conditions that would ensure his
appearance in court and assure the safety of the community --
certain persons and also the safety of the community in
general.
I don't think there is any question that he is going
to appear in court. He has done that from the beginning of the
case. And I don't think there has ever been an issue with him
not reporting to probation as required.
As I noted in the motion, the conditions of his -- of
his bond were loosened at one point. So he didn't have to have
a curfew, and he didn't have to have location monitoring. And
it is my experience that that happens when defendants are
complying. When they are doing what the probation office wants
and what the Court wants, then we let them have a little bit
more leeway.
So I wasn't on the case when that happened. But in
general, that is my experience is that we let the people who
are out and complying have more leeway. And that appears to be
what happened in this case.
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So I do think there are conditions that can be
crafted that would ensure that he follows all the regulations
of the Court and doesn't break any of the rules or contact any
other witnesses.
I listed some of those conditions in my motion. But
that could be a return to either home detention, curfew,
location monitoring, more frequent checks with probation, if
that is necessary. He is willing to change his phone number.
He is willing to do the things the Court tells him to do to
make sure he is not receiving contact and that he is not making
contact.
And so I do think there are conditions that could be
crafted that would meet the requirements of the statute. And
with that, I'll -- I'll take a break unless the Court has
questions.
THE COURT: I mean, I may have some questions for you
before we're finished. But let me first turn to Mr. Phillips.
MS. DURRETT: Okay.
MR. PHILLIPS: Thank you, Judge.
I disagree respectfully with defense counsel. I
don't think there is any ambiguity in the instructions that
Mr. Fayne received from probation. And this Court made clear
at the bond revocation hearing that this Court, Your Honor,
instructed Mr. Fayne personally that even if the Government did
not provide him with a list of witnesses that he was under the
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obligation not to have contact with any witness or any victim
in the case.
And the Court repeated that several times during the
revocation hearing and pointed out how you had looked him in
the eye and you had instructed him personally. He was not
relying on a list from the Government. And there is no
ambiguity in this case at all about what the defendant was
obligated to do. So that first part is just simply not true.
It is not supported by the facts.
And to suggest that because the defendant was
originally charged in a criminal complaint and only charged
with bank fraud that somehow that that enters into this
calculus is also misleading.
Let me just go over some of the important dates about
the charging in this case. Mr. Fayne was charged in the
criminal complaint on May 12th. He was indicted on June 24th.
And in that June 24th indictment, he was charged with running a
Ponzi scheme in violation of the wire fraud statute. So that
has been in play ever since June 24th.
The contact that the Court revoked Mr. Fayne's bond
for took place in November of 2020. So he was indicted in
June. And the conduct that is at issue in this case took place
in November, five months later. The fact that he was
originally charged in May in a criminal complaint that didn't
include a Ponzi scheme is a red herring.
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Again, the indictment was superseded on July 28th.
The Ponzi scheme was also included in that, of course. And on
November the 19th, there was the second superseding indictment
that fleshed out the Ponzi scheme in much more detail and added
a conspiracy count that charged three of Mr. Fayne's
co-conspirators with participating in that Ponzi scheme. And
those would be Dan Jay and Mike Sargent and Mark Sargent.
So the defendant has been noticed -- on notice of
this since June 24th that he was being charged in a Ponzi
scheme. So to suggest otherwise is untrue and it is
misleading. So that is the first part that deals with the
timeline and the facts of that.
Also it -- the fact that defendant is now represented
by counsel does not give him a second bite at the apple. This
Court has made clear that a motion for reconsideration in a
criminal case, quote, may not be used to present the Court with
arguments already heard and dismissed or to repackage familiar
arguments to test whether the Court will change its mind.
That's exactly what is going on here, Judge.
This Court also said that, when evaluating a motion
for reconsideration, a Court should proceed cautiously
realizing that in the interests of finality and the
conservation of scarce judicial resources, reconsideration of a
previous order is an extraordinary remedy to be employed
sparingly.
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Under Local Rule 7.2(e), motions for reconsideration
shall not be filed as a matter of routine practice. As
indicated by the language of this rule, motions for
reconsideration are not to be filed as a matter of course but
only when absolutely necessary. That was Judge Martin in Bryan
vs. Murphy, a 2003 case from this district.
Reconsideration is only absolutely necessary where
one of the following things is in play: One, there is newly
discovered evidence. We don't have any new evidence here.
Two, an intervening development or change in
controlling law. That is not applicable either.
Or the third thing, a need to correct a clear error
or a law -- I'm sorry -- a clear error of law or fact. There
was no clear error of law or fact at the bond revocation
hearing. And so there is no basis on which this Court should
entertain a motion for reconsideration.
In addition, Your Honor, other courts in this
district have said motions for reconsideration may not be used
to present the Court with arguments already heard and dismissed
or to repackage familiar arguments to test whether the Court
will change its mind.
Also, a reconsideration motion may not be used to
offer new legal theories or evidence that could have been
presented in conjunction with the previously filed motion or
response, unless a reason is given for failing to raise the
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issue at an earlier stage of litigation.
That is not the case here. Mr. Fayne said he didn't
get a list. And then he lied to this Court -- he flat-out lied
when he told you that there was no connection between Ms. Cain,
the person that he contacted, and the Ponzi scheme that he is
charged with in this case.
And I'll go into that in more detail in a minute.
And it is a little bit lengthy, but I think it is important for
the Court to see exactly what is going on here and to realize
that this defendant is desperate. He is a dangerous man -- a
very, very dangerous man. And he will do and say anything to
try to get out of jail.
And this Court has also said that if a party presents
a motion for reconsideration under any of these circumstances
the motion must be denied. This defendant has not met the
standard required by this Court to get reconsideration of the
Court's previous order.
In the bond revocation hearing, this Court expressly
questioned defendant about whether Jimia Cain was involved in
the Ponzi scheme that the defendant is charged with in this
case. And I would like to go into a little bit of detail about
that.
I pointed out to the Court at that time that Ms. Cain
had filed a civil lawsuit against the defendant in Washington
state. And the defendant, you will recall, told this Court the
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following: He said that Ms. Cain actually reached out to me
first. So that is another argument that he is repackaging and
bringing back for reconsideration today. And he said, my only
conversations with Ms. Jimia Cain had nothing to do with this
case whatsoever, not one single word, conversation. It was
strictly on a civil case that we have in the State of
Washington.
And the Court said, is she not a potential witness in
this case in the Ponzi scheme? And the defendant said, no,
sir, no, sir. We had a separate total civil matter going on in
Washington prior to the indictment ever happening.
And then he went on to say, and then as far as the
other set of communications that was to her attorney, that was
in reference to the civil case. Had nothing to do with this
indictment in any form or fashion. Now, the Government has sat
here and said numerous things, false allegations of things that
I have done or supposedly done. I can assure this Court that I
respect this Court. Ever since the original release in May, I
have not violated any bond conditions.
Keep that in mind. That is going to come up later
too. He said my probation officer, Mr. Tudor, gave me a list
of people that I do not need to contact. And I have followed
their list thoroughly. I have not contacted not one single
person on that list not one single time. So that is the same
argument he is bringing back today for reconsideration.
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He said these text messages that are at issue between
him and Ms. Cain -- it is about a legal suit. She's not suing
me in this indictment. This is not me -- this is not her
versus me or anything. It has nothing to do with this court
case whatsoever.
He said two things: Jimia Cain had a crush on me.
She was a lady that was trying to be intimate with me. So he's
misleading the Court.
Now let's talk about the actual document. Let's talk
about the lawsuit that is at issue in this case. If the Court
will just give me one second, I'll bring that up.
This is styled Jimia Cain and the name of her
companies -- this is the first amended complaint against Fayne
Trucking, LLC, specifically named in the indictment in this
case. That is Defendant Fayne's company that he was using --
one of the companies he was using to commit this Ponzi scheme
and also naming Maurice Fayne and Fayne's wife or possibly
ex-wife, according to him, Karlie Redd, R-E-D-D.
MS. DURRETT: Your Honor, if I could just -- I'm
sorry to interrupt. I don't have a copy of this. I don't know
what he is reading from. I haven't seen it. I would love to
have a copy of it.
MR. PHILLIPS: You do have it. It is in the
discovery that I gave you. It is in the witness folder for
Jimia Cain.
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MS. DURRETT: Okay. That came to me on February 2nd.
So I have it.
MR. PHILLIPS: That is not my fault. Your client had
the discovery shipped to him --
THE COURT: Okay.
MR. PHILLIPS: -- at the very beginning, and he
rejected it. He sent it back to me. So that is not my fault.
THE COURT: Hold on. Hold on, Mr. Phillips.
Mr. Phillips, were these exhibits in the original hearing?
Could they be identified that way?
MR. PHILLIPS: No, Your Honor. This is not an
exhibit in the original hearing. This is to talk about the
fact that Mr. Fayne lied to this Court to try to get out on
bond. When this Court was asked to revoke his bond when the
probation office brought that -- that charge against Mr. Fayne
for contacting this witness and the Court found that the
Government had presented clear and convincing evidence of that,
we didn't bring it up at that time.
But now that the defendant is coming back for another
bite at the apple and he is trying to relitigate these same
issues, I'm pointing out that the defendant lied to this Court
at the bond revocation hearing.
And if the Court will just bear with me for one
second and let me point out how clear it is in that lawsuit
brought by Ms. Cain that it has to do with the exact same facts
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that is the subject of the Ponzi scheme charged in this
indictment, the Court will understand that defendant lied. To
suggest that he had some sort of a romantic relationship with
her and that this lawsuit was somehow brought against him out
of jealousy because Mr. Fayne had reconciled with his wife,
Karlie Redd, is preposterous. It is a lie. And there is no
other way to say that.
This lawsuit, this complaint says that on April 18,
2019, Ms. Cain met in Seattle with a man named Deon Garnett and
that he was a loan broker. And the purpose of their meeting
was to discuss a truck leasing investment in which this man
said he was involved.
This gentleman told Ms. Cain that he and others had
invested with Maurice Fayne and Fayne Trucking and had made
money on their investments with him. And he referred Ms. Cain
to another man named Tyriece Vaughn. And Tyriece Vaughn is an
unindicted co-conspirator. He is a middleman who was
recruiting investors for this Ponzi scheme, just like the folks
who are charged in the indictment, Dan Jay and Mike Sargent and
Mark Sargent.
And if the Court will look at the -- the text that
the Court had Ms. Evans send out to counsel yesterday that
documented the names on that list that Mr. Tudor, the former
probation officer, had provided to the defendant, one of those
people is Tyriece Vaughn.
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And so he is expressly named in this civil lawsuit as
a person who was a middleman who recruited Ms. Cain into this
Ponzi scheme.
And so this gentleman told Ms. Cain to talk to
Tyriece Vaughn and he could provide her more detail about the
investments with Mr. Fayne and his trucking company.
See, they talk about the trucking company investments
over and over and over. That is the sole subject of this civil
lawsuit. And yet that defendant, Mr. Fayne, sat in court and
lied to you, Judge. He lied to you at the bond revocation
hearing when he told you that there was no connection between
Jimia Cain and the Ponzi scheme that is charged in this case.
They go on to allege that beginning in April 2019 Ms.
Cain who spoke to Mr. Vaughn in Miami -- Ms. Cain was in the
State of Washington. They talked over interstate telephone
network. And Mr. Vaughn -- Tyriece Vaughn said he owned a
company called Ground Level Logistics. And he told Ms. Cain
that his company was a trucking brokerage company and that he
was working with Fayne on a huge contract with Amazon.
And he said that in his experience investors were
realizing great returns by leasing trucks pursuant to this
Amazon contract and that they would be paid a weekly return on
their investment.
And he described himself as Mr. Fayne's, quote,
partner, close quote. And he and Ms. Cain discussed the truck
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leasing business and the potential investment in Fayne
trucking. And he also told her that he had made money with
Fayne and was getting a good return on his investments. That
was obviously not true.
He described the investment and how much she would
have to put in and told her how much she would get back. I
won't read every word of that. But it is in the document. If
the Court would like to see it, I'm happy to provide it.
And they allege that these representations were false
and that Vaughn knew they were false and he had never
successfully invested any money with Fayne or Fayne Trucking
and had no basis to believe that these investments were
legitimate and would be profitable.
Then they go on to allege that in May of 2019, the
next month, Mr. Fayne talked to Ms. Cain personally over the
phone. Mr. Fayne represented himself as a self-made
millionaire who had founded and operated Fayne Trucking, which
he described as a well-respected trucking company out of
Arkansas and Texas.
He asked her to invest $100,000 with his company,
Fayne Trucking. And he said that he had a lucrative contract
with Amazon for which he needed 200 trucks and that the money
would be used to acquire those trucks. And so one thing led to
another. And she decided to invest.
And they allege that on May 30th of 2019, Mr. Fayne
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sent Ms. Cain a text message telling her that he needed the
money by June 1st. So the following day or two days later, he
needed the money; said he would repay it next week.
So as a result of these misrepresentations, she
started investing in Fayne's company starting with a
100,000-dollar investment and then more amounts later on. And
she describes the bank where she sent the money. We have
reviewed those bank records. We have those.
They show that Fayne was taking money from investors
all over the country and that he took at least $5 million,
which he blew at a casino in Oklahoma. We have records to
prove that.
Then they allege that on June 7th Mr. Fayne again
texted Ms. Cain and told her that he had another deal on ten
more trucks. And he asked her to invest more money and said
this was all related to the Amazon contract. And he made
additional misrepresentations to her, which caused her to
invest even more money.
They go into great detail about the promises that he
made and how the money would be repaid. He never paid her any
money back. Not one penny. And in June of 2019, he started
making excuses about why he couldn't repay her. He falsely
told her that he had received a check from Amazon and that she
would be getting her money in five days. Of course, that was
not true.
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And then he insisted that she give him another
$50,000 so that he could obtain the monies that others owed to
him. And she was very nervous about this. She knew that it
was probably a scam. But she was concerned that if she didn't
do it she wouldn't get any of her original investment back. So
she put in even more money in the company because of these
lolling representations, these additional false
representations.
And then she wired money to Fayne Trucking at
SunTrust Bank in Atlanta, Georgia, on August 22, 2019. She
executed a number of documents, loan agreements and so forth,
related to these various investments, all of which had to do
with the trucking business.
Then on April 22nd, 2020, after she texted the
defendant's wife, Karlie Redd -- I'm sorry. On April 30th of
2020, she was approached by two men at her home. And they
asked her if she was Jimia Cain. And she said yes. And one of
the men stated that, quote, if you know what is good for you,
you will drop this bullshit case if you know what is good for
you. You know what I'm talking about. And then they made
disparaging references to her and called her a, quote, dumb,
fucking bitch and left.
And so that is important for this Court to know the
kind of people that the defendant is using to do his bidding.
And he is a dangerous person, Your Honor. And if you let him
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out, this community is in danger. People all over this country
will be in danger.
And then they go on to point out in this lawsuit that
the frauds that the defendant and Tyriece Vaughn committed
against Ms. Cain were not isolated crimes. And they point out
a number -- I'm talking about one, two, three, four, five, six,
seven, eight -- eight other frauds that this defendant had
committed against other people. One of them was for over
$2 million, which was the PPP loan in this case.
So they went into great detail about that. There is
nothing in that lawsuit that would indicate that that was just
a woman who was jealous of the defendant's relationship with
Karlie Redd. It clearly involves the same facts and the same
circumstances as the Ponzi scheme that is alleged in this case.
And so for the defendant to lie to you at the bond
revocation hearing is just inexcusable. And now to come back
and ask for a second bite at the apple with no new evidence,
but to simply repackage the arguments that he has already made
does not meet the standard that the United States District
Court for the Northern District of Georgia and the Eleventh
Circuit have set for motions for reconsideration.
And that is just -- that is just part of it, Your
Honor. My presentation is actually quite lengthy. And the
Court should know that we have obtained Defendant Fayne's jail
calls from RAD. When this Court revoked his bond on December
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the 22nd of 2020, the defendant was still committing fraud. He
has been committing fraud while he was on bond. We didn't know
about this at the time of the original reconsideration --
revocation hearing. But because he filed this motion for
reconsideration, we continued to dig and we found that out.
We found out that he has been committing additional
fraud against the United States Department of Transportation.
He has committed fraud against a man named Rod Darby who owns a
trucking company in South Carolina. He has used people on the
outside while he has been locked up through his cell phones
that were in someone else's possession, which he has now
provided to his current counsel. And she's used -- she's got
the PIN codes for them. And she has been using them to get
information for this hearing.
And he talks about that in his jail calls that he has
provided -- he didn't discuss any communications with her.
There is nothing privileged about it. He is talking to someone
else and saying that he's going to give her the phones.
Those phones were in someone else's possession. And
Mr. Fayne has repeatedly made calls to this person whose name
is Will; that he tells other people that this is his brother.
I don't know whether it is his real brother or he just says
that. But he uses Will and various other people to continue to
run his criminal enterprise while he is locked up.
And on one of the calls, he calls Will. And then
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Will connects Mr. Fayne on a three-way call, which is
prohibited by jail rules. But he did it anyway. And they
talked to Rod Darby on one of these calls.
And Mr. Fayne says, quote, anything Will asks for,
that is good to go because that is coming directly to me. He
wouldn't have your number if I wasn't cool with it. And then
as far as DOT -- that is the Department of Transportation --
you need to call them to see if they going to cancel out so we
know if we need to do this other company yet or not. My name
ain't on none of this shit. So I don't know. I don't know the
address. I don't know the PIN number. I ain't -- I ain't got
access to none of that. You know what I'm saying? So you are
going to have to handle that part so we keep everything going
in transition. That is $4000 a week profit just off that one
truck.
Okay. Lots of things going on there. Number 1,
Mr. Fayne told this Court that he had no money to hire his own
attorney. And so now the taxpayers are paying for Ms. Durrett
to represent him. And he tells this man on the phone that they
are making $4000 a week profit on just one truck.
He goes on and tells Will in another call to try to
get him a lawyer. And he says not for the case --
MS. DURRETT: Your Honor, I just want to -- I'm -- I
don't understand if we're on a new petition that the Government
is trying to file to suggest there have been other violations.
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The Government is the one saying we can't come back on this
first violation. But now it sounds like it is alleging new
violations, which I am not privy to at this point.
So I don't -- I'm not sure exactly where we're going.
I haven't seen the lawsuit. I haven't heard the jail calls.
There was no notice that the Government wanted to try to
violate him on some of these other allegations that it is
making. So I just want to make that clear in the record.
I don't have any ability to respond to what the
Government is saying because they haven't given me notice that
they are going to be raising these issues.
THE COURT: I understand.
All right. Here is what I think makes sense to do at
this point. Let me just make the initial comment here -- it
sounded like, Mr. Phillips, you were quoting from something
that I have issued before. I don't know what case or what
context that was in.
I think the issue of reconsideration under an issue
of bond is governed more specifically by the Bail Reform Act,
which is Title 18 U.S. Code 3142, Subsection (f), which states
that a detention order can be revisited at any time prior to
trial or the hearing to be reopened before or after any
determination by the judicial officer at any time before trial
if the judicial officer finds that information exists that was
not known to the movant at the time of the hearing and has a
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material bearing on the issue of whether there are conditions
of release that would reasonably assure the appearance of such
person as required and the safety of the community.
And so -- and, you know, I think while there does
have to be a showing of new and material evidence as that
states, we're also in the context of pretrial detention, which
is something that the Court does have to err on the side of
caution in every respect to make sure is warranted.
And so if there is any question about new evidence or
evidence that was not fully in the record previously, I think I
have the discretion to make sure -- before we keep someone
detained that is presumed innocent that we make sure we fully
hear all of that.
So I'm not sure the context of all those other quotes
in the Eleventh Circuit. The general rule on motions for
reconsideration I don't believe applies to the extent it
conflicts with the Bail Reform Act.
The -- is there new and material evidence? I mean,
we'll get to all the things Mr. Phillips just alleged in a
second. But the communications from Mr. Tudor are not new I
mean in the sense that they were referenced in the original
bond hearing. Although I didn't have them. And maybe I should
have asked Mr. Tudor at the time for them. I did not. They
existed. But I didn't have them in the record.
The fact that the May 18 text does not reference Ms.
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Cain specifically is not a new fact. It was undisputed that
the defendant had never been told specifically not to contact
her by name. However, I think the wording of the text now that
I have it is something that I am a little concerned about in
that, while it does not negate what I had told the defendant
during his bond hearing, in other words, that he's not to
contact anyone who he has reason to believe may be a potential
witness or victim in the case regardless of whether they are
specifically listed or not in any communication.
The -- I would have liked it if it had -- if this
text had been less specific. In other words, it says that he's
advised not to have contact with these specific people. And
then defendant responds, thanks, I didn't know that. I won't
make contact in the future, presumably meaning with these
people.
Well, again, I had told him previously it is not
limited to specific people. It is anyone who he has reason to
believe may be a potential victim or witness. But I do believe
there can be the potential for misunderstanding or
miscommunication.
And I had also told him that the pretrial officer,
Mr. Tudor, is an agent of the Court and speaks for the Court.
And I don't know that it is impossible that there could be a
source of miscommunication here.
And then at this point in time, I don't believe the
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Ponzi scheme charges were yet pending, which isn't to say that
he should have -- meaning the defendant -- been excused for not
later remembering that I had told him nobody that is a
potential victim or witness in the case can be contacted, even
if the case expands at a future time.
But the fact is when I said those words the case did
not include the Ponzi scheme allegations, I don't believe.
Again, is that a potential source for some miscommunication?
That is why I set this hearing with an open mind to hearing
argument about.
Now, there's all this new stuff that Mr. Phillips had
talked about, which Ms. Durrett has not had a chance --
opportunity to respond to. And she's entitled to that.
I cannot -- I mean, if I was able to sit here and say
none of that is relevant, it is all gravy, in other words that
I don't have to even reach any of that because I'm not going to
grant the Government -- the defendant's motion anyway, then we
wouldn't have to cross that bridge.
I'm not able to make that determination. I may
ultimately make it. I haven't made a final ruling on anything.
But I can't sit here and say it is so clear now that I look at
this text that there might not be conditions of release that I
could add perhaps relating to communications restrictions that
might not warrant release. In other words, I can't say that I
wouldn't find that detention is not necessary at this time and
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reconsider or reopen that question.
So all this new stuff is important and would meet the
criteria of new material information that is not previously
known, it sounds like. But I can't make a finding on that at
this point because Ms. Durrett has just heard it for the first
time and presumably the defendant as well.
So I think the only thing I can do here now is to
have the Government file a response to the motion for
reconsideration that lays this out. And we can reconvene once
that has been presented and the defense has an opportunity to
prepare an argument in response. This is all new stuff that I
cannot ask them to respond to at this time.
So how quickly, Mr. Phillips, would you be able to
respond?
MR. PHILLIPS: Well, I'll do whatever the Court
orders me to. I can say that there's a good bit more to the
phone calls than the part that I have already told the Court
about. There is some very, very significant, very troubling
things that show ongoing felonies being committed.
I'm talking about wire fraud conspiracy, obstruction
of justice, income tax violations, a variety of things that
these phone calls shed light on. And they certainly show that
someone is -- that Mr. Fayne is a danger to the community,
regardless of whether, you know, the Government would decide to
go ahead and file charges on any of those other things. I
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don't think that is necessary. That is not the standard.
I'm happy to brief it. The calls are lengthy. It
is -- you know, there is no way around it other than to just
play them one at a time. There are quite a few of them. And
each one of them kind of leads you down a little bit different
rabbit hole.
So I haven't finished listening to all the calls yet.
There are a good many of them still to go. And I think that I
would probably need, you know, two weeks at least to be able to
listen to all of that and brief that appropriately for the
Court.
I will also say that there is a lot going on where
the defendant is using people to create fictitious trucking
companies, that he is violating federal DOT regulations by
providing false and misleading information and causing other
people to provide false and misleading information to the DOT
to create these companies. So it is a -- it is a very complex,
troubling process.
But what these calls show -- this is a man who is
locked up who doesn't have a cell phone who is beating the
system.
THE COURT: And we don't need more argument on it
right now. Because, again, I can't make any findings based on
this. I just wanted to see where we go from here. It sounds
like you think you would be able to serve a response in two
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weeks.
And then, Ms. Durrett, you tell me how you want to
proceed. I was thinking that at that point we could -- I mean,
you are free to file something in reply or -- and/or we just go
ahead and schedule an additional hearing here.
And if this is going to get more involved, then I
mean, I'm happy to do it in this format if everyone agrees.
But I think the defendant would have the right to come into
court if he wants to instead. So we can do it in court as
well.
So let me look at my calendar here. I'm sorry. One
problem with Zoom is I've got to get out of Zoom and pull up
Outlook. And that way if we're here in court and if there's
things that need to be played, then we can play them.
All right. Mr. Phillips, why don't I give you until
Friday the 19th -- that will be two weeks and a day, because
there is also a holiday in the middle there -- to file your
response? And then things are a little bit tight.
But are y'all free Monday, March 1st?
MR. PHILLIPS: Yes, Your Honor.
THE COURT: Let's say 9:30. I have something at
9:30. But I think we can move that. It is just a pretrial
conference.
Ms. Durrett, does that work for you?
MS. DURRETT: It does, Your Honor. I would ask that
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we are in person, if that is possible at that time, if it is
going to be an extended hearing.
And I also -- just as a courtesy, I would ask the
Government to point me to the calls it is going to rely on so
that I can prepare more quickly if there are specific calls.
It sounds like there are a lot of calls in general. And so if
there are specific calls that they are relying on that they are
going to play for the Court, I would ask -- not that I'm only
going to listen to those. But it would help me if I had a
heads-up about exactly which calls they were going to be
focusing on so I could listen to those too.
THE COURT: Well, I mean, I'm expecting their
response on the 19th to put you on notice of the arguments and
evidence. That is what the response -- the purpose would be.
So I'm expecting that would be served by the response on the
19th.
MR. PHILLIPS: Judge, is the defendant going to file
a reply brief to my response before the hearing so that we can
tee up all of those issues?
THE COURT: Ms. Durrett, do you -- do you want to be
able to file -- do you want to file something before?
MS. DURRETT: Sure. I can file something on the
26th, if that is okay.
THE COURT: Yeah. That is fine by me. I can't
promise to have studied it in as much detail as if it was
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earlier. But I know that you are jammed there too on that
timing. So that should be fine.
MR. PHILLIPS: Does that give us enough time for the
hearing on March 1st since that is just the -- the next
business day?
MS. DURRETT: If the Court finds that is not enough
time, I would prefer not to file a reply. My client is sitting
in custody. He has the right to have this issue heard, and he
wants to be heard sooner rather than later. So I will file it
on the 26th if the Court permits that. But if not, I'm happy
to go to --
THE COURT: I mean, I'll permit it. There is no
downside in you doing it. If you find you are able to do it a
day or two earlier, that might be more helpful. But that's
asking a lot. So I won't require that.
And if you are electing to have the hearing earlier
rather than later understanding I will have a little bit less
time to digest the reply brief, that's -- I think you are
within your rights to make that election.
And I'll read it. It is not like I won't be able to
read it. It is just a business day. So -- and the reality is
I'm on criminal duty for part of the rest of March and my
calendar gets a little complicated. So -- so really the 1st
would be the best time.
So let's say 9:30 on the 1st. And we'll do it in
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court unless there is a change of heart on that from the
defense side because I think the defendant has the right to --
would have to consent and waive his right to be present if
he -- so we'll just assume it is in court and calendar it that
way.
All right. Anything else then for today?
MR. PHILLIPS: Not --
MS. DURRETT: No, Your Honor.
MR. PHILLIPS: -- from the Government.
THE COURT: All right. Very good. Thank you. We'll
be in recess.
MS. DURRETT: Thank you.
THE COURT: Bye-bye.
(The audio-recorded Zoom proceedings were
thereby concluded.)
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C E R T I F I C A T E
UNITED STATES OF AMERICA
NORTHERN DISTRICT OF GEORGIA
I, SHANNON R. WELCH, RMR, CRR, Official Court Reporter of
the United States District Court, for the Northern District of
Georgia, Atlanta Division, do hereby certify that the foregoing
30 pages constitute a true transcript of said audio-recorded
Zoom proceedings had before the said Court, held in the City of
Atlanta, Georgia, in the matter therein stated.
In testimony whereof, I hereunto set my hand on this, the
26th day of February, 2021.
________________________________
SHANNON R. WELCH, RMR, CRR
OFFICIAL COURT REPORTER
UNITED STATES DISTRICT COURT
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