Court filing
Information - United States v. Maurice Fayne related docket
Record facts
| Court | U.S. District Court for the Northern District of Georgia |
|---|---|
| Filed | 2021-06-24 |
U.S. District Court for the Northern District of Georgia · No. 1:20-cr-00228-MHC-JKL · Doc. 202 · 2021-06-24 · Docket on CourtListener
Summary
A transcript of the May 11, 2021 change of plea and bond motion hearing in United States of America v. Maurice Fayne, No. 1:20-cr-00228-MHC-JKL, before District Judge Mark H. Cohen of the U.S. District Court for the Northern District of Georgia, filed June 24, 2021 as Document 202. Assistant United States Attorneys John Russell Phillips and Bernita Malloy appear for the government and Saraliene Durrett for the defendant. Fayne states that he intends to plead guilty to Counts 1 through 6 of the second superseding indictment under a plea agreement, and the court questions him on the rights he gives up by pleading guilty. Phillips summarizes the 20-page plea agreement paragraph by paragraph, including the waiver of appeal and collateral attack. On the bond motion, the court states that it should go back first to Judge Anand, who set and then revoked the bond.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Full text
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
United States of America,
vs. Docket No.
1:20-cr-00228-MHC-JKL
Maurice Fayne,
Defendant.
TRANSCRIPT OF CHANGE OF PLEA AND BOND MOTION
BEFORE THE HONORABLE MARK H. COHEN
UNITED STATES DISTRICT COURT JUDGE
TUESDAY, MAY 11, 2021
Appearance of Counsel:
For the Plaintiff: John Russell Phillips, Esq.
Bernita Malloy, Esq.
Assistant United States Attorneys
For the Defendant: Saraliene Durrett, Esq.
Saraliene Smith Durrett, LLC
Judith M. Wolff, CRR
Official Court Reporter
1914 United States Courthouse
75 Ted Turner Drive, S.W.
Atlanta, Georgia 30303
judith_wolff@gand.uscourts.gov
STENOGRAPHICALLY REPORTED, COMPUTER-AIDED TRANSCRIPT
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(Court was called to order at 3:06 p.m.)
THE COURT: Please be seated.
This is the case of United States of America vs.
Maurice Fayne, Criminal Indictment No. 20-cr-228.
Will counsel for the parties please identify
themselves for the record.
MR. PHILLIPS: Good afternoon, your Honor. Russell
Phillips and Bernita Malloy for the United States.
THE COURT: Good afternoon, counsel.
You can stay seated.
MS. DURRETT: Thank you. Good afternoon, your Honor.
Saraliene Durrett on behalf of Mr. Fayne.
THE COURT: Good afternoon, Ms. Durrett.
I understand the defendant wishes to plead guilty to
charges 1 through 6 of the second superseding indictment, and
that there is a plea agreement; is that correct, Ms. Durrett?
MS. DURRETT: That's correct, your Honor.
THE COURT: All right. Ms. Beck, could you swear in
the defendant, please.
And you can remain seated. Just move the microphone
close to you.
MAURICE FAYNE,
having been first duly sworn, testified as follows:
THE COURT: Does counsel for the government have the
plea agreement?
Tuesday, May 11, 2021 Change of Plea
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MR. PHILLIPS: I do, your Honor.
THE COURT: Could you verify the signatures of the
defendant and his counsel, please.
MR. PHILLIPS: I will, your Honor.
THE COURT: And you can do it -- everyone can stay
seated during this proceeding. Just make sure you speak close
to the microphone.
BY MR. PHILLIPS:
Q.
Mr. Fayne, are you the defendant who is named in Criminal
Case No. 1:20-cr-228-MHC-JKL as Maurice Fayne, also known as
Arkansas Mo?
A.
Yes, sir.
Q.
Is it your intention to plead guilty to Counts 1 through 6
of the second superseding indictment?
A.
Yes, sir.
Q.
Have you received a copy of the guilty plea and plea
agreement?
A.
Yes, sir.
Q.
Are you represented in this case by Saraliene Durrett?
A.
Yes, sir.
Q.
And have you reviewed the plea agreement with Ms. Durrett?
A.
Yes, sir.
Q.
All right. And after reviewing the plea agreement with
her, did you sign the plea agreement on pages 17 and 18?
A.
Yes, sir. I did.
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MR. PHILLIPS: And Ms. Durrett, did you sign the plea
agreement as counsel for the defendant on pages 17 and 19?
MS. DURRETT: I did.
MR. PHILLIPS: Your Honor, at this time I tender
defendant Maurice Fayne's guilty plea and plea agreement.
THE COURT: And Mr. Phillips, just to verify, that is
also your signature and Ms. Malloy's signature, as well as
your supervising official's signature, on page 17 of the plea
agreement; is that correct?
MR. PHILLIPS: Yes, your Honor. It is.
THE COURT: All right.
Q.
Mr. Fayne, before accepting your guilty plea, there are a
number of questions I must ask you to assure it is a valid
plea. If at any time you don't understand any of my
questions, please tell me, and I will repeat or rephrase the
question because it's essential to a valid plea that you
understand each one of my questions before you answer.
Will you agree to do that?
A.
Yes, sir.
Q.
You have just taken an oath to tell the truth. Do you
understand your answers to my questions will be subject to the
penalties of perjury or of making a false statement if you do
not answer truthfully?
A.
Yes, sir.
Q.
Have you been advised by anyone not to tell the complete
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truth today?
A.
No, sir.
Q.
Mr. Fayne, how old are you?
A.
38.
Q.
Where were you born?
A.
Wynne, Arkansas.
Q.
Is that Wynne?
A.
Yes, sir.
Q.
W-y-n-n-e?
A.
Yes, sir.
Q.
How much education do you have?
A.
Junior year of college.
Q.
Are you able to speak and understand English?
A.
Yes, sir.
THE COURT: Ms. Durrett, have you been able to
communicate with your client in English?
MS. DURRETT: Yes, your Honor.
BY THE COURT:
Q.
Mr. Fayne, have you taken any narcotic drugs, medicine or
pills, or drunk any alcoholic beverages within the past 24
hours?
A.
The only medicine I have taken is naproxen, which is a
pain medicine for my shoulder. Other than that, no narcotics,
no drugs or anything else.
Q.
All right. Is naproxen just over-the-counter, or is it
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prescribed by a physician?
A.
It's prescribed.
Q.
Are you taking the naproxen pursuant to the directions of
the physician?
A.
Yes, sir.
Q.
All right. Is there anything about taking the naproxen
that affects your ability to understand any of my questions
today?
A.
No, sir.
Q.
Anything about taking the naproxen that would affect your
ability to understand this proceeding or anything that happens
in the proceeding?
A.
No, sir.
Q.
All right.
Have you been treated recently for alcoholism or
addiction to narcotic drugs of any kind?
A.
No, sir.
Q.
Have you been treated recently or hospitalized for any
mental illness?
A.
No, sir.
THE COURT: Ms. Durrett, has the defendant told you
anything about medication, pills, drugs, alcohol or other
factors that might affect his actions today, or do you know of
any?
MS. DURRETT: No, your Honor. We talked about the
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pain medication earlier and that's all I knew about.
THE COURT: Okay. And you have no other indication
that there is anything about taking that pain medication that
would implicate his ability to understand what's going on
today; is that right?
MS. DURRETT: That's right, your Honor.
THE COURT: Okay. Do you have any doubt as to the
defendant's competence to plead at this time?
MS. DURRETT: I do not, your Honor.
THE COURT: All right.
Q.
Mr. Fayne, by pleading guilty, you're giving up a number
of rights you have under the constitution and laws of the
United States. I have a series of questions I must ask you to
be sure that you understand the rights you're giving up by
pleading guilty here today.
Do you understand that under the constitution and
laws of the United States you have the right to plead not
guilty, and maintain your plea of not guilty to and through a
jury trial?
A.
Yes, sir.
Q.
You may want to move that mike a little closer to you.
That's great. Thank you very much.
Do you understand you're entitled to a speedy and
public trial by a jury on the charges pending in the
indictment?
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A.
Yes, sir.
Q.
Do you understand that if a trial occurred, you would have
the right to have a lawyer assist you throughout that trial?
A.
Yes, sir.
Q.
Do you understand that at a trial you would be presumed to
be innocent, and the government would have to overcome that
presumption and prove you guilty by competent evidence and
beyond a reasonable doubt?
A.
Yes, sir.
Q.
Do you understand that at a trial you would not have to
prove that you were innocent because the burden would be on
the government to prove you guilty beyond a reasonable doubt?
A.
Yes, sir.
Q.
Do you understand you would have the right at a trial to
subpoena witnesses and to compel their testimony on your
behalf?
A.
Yes, sir.
Q.
Do you understand that in the course of a trial the
witnesses for the government would have to come and testify in
your presence?
A.
Yes, sir.
Q.
Do you understand that in the course of a trial your
lawyer could cross-examine the witnesses for the government,
object to evidence offered by the government, and offer
evidence on your behalf?
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A.
Yes, sir.
Q.
Do you also understand that at a trial, while you would
have the right to testify if you chose to do so, you would
also have the right not to testify?
A.
Yes, sir.
Q.
Do you also understand that at a trial, if you chose not
to testify or put up any evidence, these facts could not be
used against you?
A.
Yes, sir.
Q.
Do you understand that you would have the right at a trial
to have the jury render a unanimous verdict before you could
be convicted?
A.
Yes, sir.
Q.
If I accept your plea, do you understand you will waive
your right to a trial and the other rights that I have just
discussed?
A.
Yes, sir.
Q.
Do you understand that by entering a plea of guilty there
will be no trial, and I will simply enter a judgment of guilty
and you will be sentenced on the basis of your guilty plea?
A.
Yes, sir.
Q.
By pleading guilty do you also understand that you will
have to waive your right not to incriminate yourself because
I'll have to ask you questions about what you did in order to
satisfy myself that you are guilty as charged in Counts 1
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through 6 of the indictment, and you will have to admit your
guilt to Counts 1 through 6?
A.
Yes, sir.
Q.
Once again, are you willing to waive and give up your
right to a trial and the other rights that I have just
discussed?
A.
Yes, sir. I am.
THE COURT: At this time I'm going to ask the
assistant United States attorney to summarize the terms of the
plea agreement, and then I'll ask you, Mr. Fayne, if that's
your understanding of the terms of plea agreement.
Mr. Phillips.
MR. PHILLIPS: Your Honor, the guilty plea and plea
agreement in this case consists of 20 pages. The defendant is
pleading guilty to Counts 1 through 6 of the second
superseding indictment.
Paragraph 1 states that the defendant is pleading
guilty because he is in fact guilty of the crimes charged in
Counts 1 through 6.
Paragraph 2 sets forth the rights that the Court just
explained to the defendant in detail.
Paragraph 3 states that the defendant, by pleading
guilty, is giving up all of these rights and there will not be
a trial of any kind.
Paragraph 4. By pleading guilty, the defendant also
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gives up his right to pursue any affirmative defenses or
Fourth Amendment or Fifth Amendment claims and other pretrial
motions that have been filed or could have been filed.
Paragraph 5 states that the defendant understands
that ordinarily he would have the right to appeal his sentence
but, under some circumstances as set forth later in the plea
agreement, he's giving up those rights, as well as the right
to collaterally attack his conviction and sentence.
And I'll go into much more detail about that later in
the agreement.
In paragraph 6, the defendant states that the --
understands that to plead guilty, he may have to answer
questions posed to him by the Court, under oath, and that his
answers, if untruthful, could result in him being prosecuted
for perjury or false statements.
Paragraph 7 sets forth the maximum and mandatory
minimum penalties as to each count.
Sometimes the Court asks the attorney to do that at a
later time.
THE COURT: That will be the case here. We will go
over those penalties later.
MR. PHILLIPS: Thank you, your Honor.
In paragraph 8, the defendant acknowledges that he
understands the Court will consider the United States
sentencing guidelines in determining an appropriate sentence
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for him, but the Court can still sentence him up to the
statutory maximum on each count, and that no one can predict
his exact sentence at this time.
Paragraph 9 applies if the defendant is not a citizen
of the United States, and he could be removed if he were not a
citizen after being convicted of this felony. It's my
understanding that he is a citizen of the United States.
Paragraph 11 states that the United States attorney
for the Northern District of Georgia agrees not to bring
further criminal charges against the defendant related to the
charges to which he is pleading guilty.
But the defendant understands that this does not bar
any other federal, state or local jurisdiction from
prosecuting him.
Paragraph 12 states that upon entry of the judgment
and commitment order in this case, any and all remaining
counts against the defendant will be dismissed, but the Court
may still consider the conduct underlying those dismissed
counts in determining relevant conduct and an appropriate
sentence.
Paragraph 13 sets forth the agreements between the
government and the defendant concerning the appropriate
sentencing guidelines:
The government and the defendant have stipulated and
agreed that the base offense level is 7; the amount of the
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loss resulting from the offenses of conviction and relevant
conduct is more than $3.5 million, but less than $9.5 million,
which results in an 18-level upward adjustment;
The offense involved ten or more victims; and the
offense resulted in substantial financial hardship to one or
more victims, which results in a two-level upward adjustment;
The defendant relocated and participated in
relocating a fraudulent scheme to another jurisdiction to
evade law enforcement or regulatory officials;
That the offense involved sophisticated means; and
the defendant intentionally engaged in or caused the conduct
constituting sophisticated means, which results in a two-level
upward adjustment;
The defendant derived more than $1 million in gross
receipts from one or more financial institutions as a result
of the offense, which results in a two-level upward
adjustment;
The defendant was an organizer or leader of the
criminal activity that involved five or more participates or
was otherwise extensive, which results in a four-level upward
adjustment;
And the defendant willfully obstructed or impeded or
attempted to obstruct or impede the administration of justice
with respect to the investigation of the instant offense of
conviction, and the obstructive conduct related to the
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defendant's offense of conviction and any relevant conduct or
a closely related offense, which results in a two-level upward
adjustment.
Based on the information known to the government at
this time, the government believes that no other sentencing
enhancements apply.
If the defendant does not engage in conduct that is
inconsistent with accepting responsibility after entering his
guilty plea, the government will recommend that the defendant
receive the maximum adjustment for acceptance of
responsibility under Section 3E1.1, which would be a
three-level downward departure.
The parties understand and acknowledge and agree that
there are no agreements between the parties with respect to
any sentencing guidelines issues other than those specifically
listed in this agreement. That's paragraph 16.
Paragraph 17 states that should the government obtain
or receive additional evidence concerning the facts underlying
any of its recommendations, it will bring that to the
attention of the Court and the probation office.
And if the additional evidence is sufficient to
support a different application of the sentencing guidelines,
the government will not be bound to make the recommendation
set forth elsewhere in this plea agreement, and it's failure
to do so would not result in a violation of the plea
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agreement.
Paragraph 18. Unless the defendant engages in
conduct that's inconsistent with accepting responsibility, the
government agrees to recommend that he be sentenced to a term
of imprisonment of 151 months.
Paragraph 19. The government agrees to make no
specific recommendation as to the amount of any fine to be
imposed.
Paragraph 20. The defendant agrees to pay full
restitution to all victims of the offenses to which he's
pleading guilty, and all relevant conduct, including any
counts that are dismissed as a result of the plea agreement.
The amount of restitution owed to each victim will be
determined at or before sentencing. And the defendant agrees
to cooperate fully with the government in its investigation in
the amount of restitution, the identification of victims and
the recovery of restitution for victims.
The amount of restitution to be paid will be due and
payable immediately. And if the defendant is placed in
custody and does not pay the full amount up front, then the
probation office and the custodial agency can come up with a
restitution payment schedule which would represent defendant's
minimum obligation.
The government would be free to pursue other sources
of recovery and the defendant agrees to cooperate with the
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government's effort to collect restitution by any means the
government deems appropriate.
Paragraph 22. The defendant agrees to forfeit all of
the items that are listed in subparagraphs A through B, and
that's known as the subject property. The defendant waives
and abandons all of his right, title and interest in and to
the subject property, and agrees that all of that can be
judicially or administratively forfeited.
He is also agreeing to sign, have his counsel sign a
consent preliminary order of forfeiture, which I have with me
and I will present to the Court at the appropriate time.
Paragraph 24. The defendant agrees to take all steps
necessarily to ensure that the subject property is not hidden,
sold, wasted, destroyed or otherwise made unavailable for
forfeiture.
And he agrees not to file any claim, answer or
petition for a measure of restitution, and if he has already
filed such a claim, he agrees to withdraw it.
He agrees to hold the United States and its agents
and employees harmless from any claims made in connection with
the seizure and forfeiture of the property in this case and
the disposal of that property.
Paragraph 26. The defendant understands that he is
not entitled to use forfeited assets to satisfy any fine,
restitution, cost of imprisonment, tax obligations or other
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penalty the Court may impose.
Paragraph 27. The defendant consents to the entry of
the preliminary order of forfeiture.
Paragraph 28. The defendant agrees to pay a special
assessment in the amount of $600, which is $100 per count that
he's pleading guilty to. And he agrees to provide proof that
he has made that payment to the assistant United States
attorneys involved in this case.
Paragraph 29 talks about the terms of any fine that
the Court might impose and the restitution -- I'm sorry -- the
schedule for payment of that fine if the defendant does not
pay it in full.
Paragraph 30 talks about the defendant's obligations
concerning financial disclosure. And he agrees that he will
not sell, hide, waste, encumber, destroy or otherwise devalue
any asset worth more than $500 before sentencing without
approval of the government. And he understands that his
failure to comply with this provision could result in his
receiving no credit for acceptance of responsibility.
Paragraph 31. He agrees to -- that is the defendant
agrees to cooperate fully in the investigation in the amount
of forfeiture, restitution, and fine.
Paragraph 32. The defendant agrees to complete the
Department of Justice's Financial Statement of Debtor form.
And he agrees to submit to a financial deposition or interview
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should the government deem it necessary prior to sentencing.
So long as the defendant is completely truthful in
those interviews and filling out those forms, the government
will not use anything that he says against him in this
prosecution.
Paragraph 34. The defendant acknowledges that the
recommendations that the government is making in this plea
agreement are not binding on this Court, and that the Court's
failure to follow the government's recommendation would not
result in the defendant being allowed to withdraw his guilty
plea or to claim a breach of the plea agreement.
Paragraph 35 is entitled Limited Waiver of Appeal.
And it states: Limited Waiver of Appeal. To the maximum
extent permitted by federal law, the defendant voluntarily and
expressly waives the right to appeal his conviction and
sentence and the right to collaterally attack his conviction
and sentence in any postconviction proceedings, including, but
not limited to, motions filed pursuant to 28 U.S.C.
Section 2255, on any ground, except that the defendant may
file a direct appeal of an upward departure or upward variance
above the sentencing guideline range as calculated by the
district court.
Claims that the defendant's counsel rendered
constitutionally ineffective assistance are excepted from this
waiver.
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And the defendant understands that this plea
agreement does not limit the government's right to appeal.
But if the government initiates a direct appeal of the
sentence imposed, the defendant may file a cross appeal of
that same sentence.
Paragraph 36 contains a Freedom of Information Act, a
privacy act waiver.
And paragraph 37 states that there are no other
agreements, promises, representations or understandings
between the defendant and the government.
Page 18 is an acknowledgment that the defendant has
read the agreement, understands the agreement, has consulted
with his attorney. And he has signed and dated that.
And then paragraph 19 is a similar acknowledgment by
his lawyer, that she has read the agreement and that the
defendant is making an informed and voluntary decision to
plead guilty and enter into the plea agreement.
THE COURT: All right. Thank you, Mr. Phillips.
Q.
Mr. Fayne, the assistant United States attorney has
disclosed a plea agreement that you and all counsel have
entered into and the terms of that agreement.
Do you agree with the description of the plea
agreement?
A.
Yes, sir. I agree.
Q.
Do you understand the plea agreement?
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A.
Yes, sir. I understand.
Q.
Do you understand the terms of the plea agreement are mere
recommendations to the Court, that the Court can reject the
recommendations without permitting you to withdraw your plea
of guilty and impose a sentence that may be more severe than
you anticipate?
A.
Yes, sir.
Q.
Is this the only agreement you've entered into with the
government?
A.
Yes, sir.
Q.
Has anyone made any promise other than the plea agreement
that has caused you to plead guilty?
A.
No, sir.
Q.
Has anyone made a promise to you as to what your actual
sentence will be?
A.
No, sir.
Q.
Other than the plea agreement, has anyone threatened or
forced you to plead guilty, or told you that if you did not
plead guilty further charges would be brought against you or
some other adverse action would be taken against you?
A.
No, sir.
THE COURT: Ms. Durrett, have you advised the
defendant concerning the legality of any statements or
confessions or other evidence the government may have against
him?
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MS. DURRETT: I have, your Honor.
THE COURT: Is the defendant pleading guilty because
of any illegally-obtained evidence in the possession of the
government, to your knowledge?
MS. DURRETT: No, your Honor.
THE COURT: Have you made any promise to the
defendant of a particular sentence in the event of a plea of
guilty?
MS. DURRETT: No, your Honor.
THE COURT: Do you have any knowledge of any plea
agreement or bargain affecting the plea being tendered in this
case other than what has been discussed in open court?
MS. DURRETT: No, your Honor.
THE COURT: Do you know of any reason why the Court
should not accept Mr. Fayne's plea of guilty today?
MS. DURRETT: No, your Honor.
THE COURT: Have you had sufficient time to discuss
the matter fully with the defendant prior to his entry of his
plea of guilty today?
MS. DURRETT: Yes, your Honor.
BY THE COURT:
Q.
Mr. Fayne, do you feel you've had sufficient time to think
about and discuss this matter fully with your lawyer before
entering your plea of guilty today?
A.
Yes, sir.
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Q.
Are you satisfied with the representation of your attorney
in this case?
A.
Yes, sir.
THE COURT: All right. At this time I'm going to ask
the assistant United States attorney to state the elements of
the offenses to which you are pleading guilty to, Mr. Fayne,
and then I'll ask you whether you understand that those are
the matters that the government would have to prove beyond a
reasonable doubt in order to convict you at a trial.
Mr. Phillips.
MR. PHILLIPS: Your Honor, first, the defendant is
pleading guilty to Count 1, which charges him with conspiracy
to commit wire fraud, in violation of 18 U.S.C. Section 1349.
To convict the defendant of that at trial, the
government would have to prove beyond a reasonable doubt that
two or more persons in some way or manner agreed to try to
accomplish a common and unlawful plan to commit wire fraud,
and that the defendant knew the unlawful purpose of the plan
and willfully joined in it.
In addition, the defendant is pleading guilty to
Counts 2, 3, and 4, which charge him with wire fraud in
violation 18 U.S.C. Section 1343.
To convict the defendant of that offense at trial,
the government would have to prove beyond a reasonable doubt
that the defendant knowingly devised or participated in a
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scheme to defraud or to obtain money or property by using
false pretenses, representations or promises;
That the false pretenses, representations or promises
were about a material fact; that the defendant acted with
intent to defraud; and that the defendant transmitted or
caused to be transmitted by wire some communication in
interstate commerce to help carry out the scheme to defraud.
The defendant is also pleading guilty to Count 5,
which charges him with bank fraud, in violation of 18 U.S.C.
Section 1344.
To convict the defendant of that offense at trial,
the government would have to prove beyond a reasonable doubt
that the defendant knowingly carried out or attempted to carry
out a scheme to defraud a financial institution or to get
money from a financial institution by using false or
fraudulent pretenses, representations or promises about a
material fact;
The false or fraudulent pretenses, representations or
promises were material; the defendant intended to defraud the
financial institution; and the financial institution was
federally insured.
Finally, the defendant is pleading guilty to Count 6,
which charges him with making a false statement to a financial
institution insured by the FDIC, in violation of 18 U.S.C.
Section 1014.
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To convict the defendant of that offense at trial,
the government would have to prove beyond a reasonable doubt
that the defendant made a false statement or a report; the
defendant did so knowingly and with intent to influence an
action of the financial institution described in Count 6
regarding an application or loan; and that the deposits of the
institution were insured by the FDIC.
BY THE COURT:
Q.
Mr. Fayne, do you understand the elements of the charges
that the government would have to prove beyond a reasonable
doubt in order to convict you at a trial?
A.
Yes, sir.
Q.
Have you discussed with your attorney the charges in the
second superseding indictment to which you are pleading guilty
to?
A.
Yes, sir.
THE COURT: At this time I'm going to ask the
assistant United States attorney to summarize what the
evidence would show if this case went to trial, and then I'll
ask you, Mr. Fayne, if you agree or disagree with what the
prosecutor has said.
Mr. Phillips.
MR. PHILLIPS: Your Honor, if this case were to go to
trial, the government would prove the following facts beyond a
reasonable doubt:
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From approximately March 2013 through approximately
May 2020, defendant Fayne held himself out to be the owner of
a profitable trucking business. In truth, however, defendant
Fayne's trucking company did not generate enough revenue to
cover its expenses. And because defendant Fayne's trucking
company repeatedly failed to pay its bills on time, it was hit
with multiple tax liens, civil lawsuits, and judgments.
In an effort to stay one step ahead of his creditors
and to avoid scrutiny by government agencies that regulated
the trucking industry, defendant Fayne repeatedly changed the
name of his trucking business and its address.
Some of those names that the defendant used to
operate his company included M-O hyphen G, Mo-G Trucking, LLC,
an Arkansas entity; Flame Trucking, LLC, an Arkansas entity;
Diamond Freight, LLC, also an Arkansas entity; and finally --
or rather, next, Flame Trucking, Inc., which is a Georgia
entity; and then finally, C.R. Wilkins Trucking, LLC, an
Arkansas company.
In approximately 2014, a man named Darron Brown
introduced defendant Fayne to the other defendants, Dan Jay,
Mike Sargent and Mark Sargent, when they all lived in Texas.
Defendant Fayne later moved to Georgia; defendant Jay
moved to Pennsylvania; and the Sargent brothers, they are
twins, they remained in Texas.
Defendant Fayne asked the other defendants to help
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him recruit people to invest in his trucking company and the
other defendants agreed.
The defendants caused more than 20 people to invest
money in defendant Fayne's trucking company, including various
friends and family members.
The Sargent brothers also targeted women that they
met through on-line dating sites such as Match.com and Plenty
of Fish or POF.com.
The defendants took money from investors by cash,
check, electronic payment, credit card, debt card, and wire
transfer. The defendants fraudulently led the investors to
believe that defendant Fayne's trucking company was capable of
generating enormous profits for investors when, as the
defendants knew and had reason to know, that was not true.
The defendants also misled investors by providing
them with fraudulent documents.
In addition, defendant Fayne provided and caused
others to provide false and misleading information to various
government agencies, including the Arkansas Secretary of
State, United States Department of Transportation, and the
Federal Motor Carriers Safety Administration, knowing and
having reason to know that the information would be viewed
online by investors and others who were checking up on his
trucking company.
Also, the defendants told investors a variety of
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lies. For example, the defendants fraudulently overstated the
number of trucks and drivers that defendant Fayne's trucking
company actually had.
The defendants also falsely told investors that
defendant Fayne's trucking company was on the verge of
obtaining a multi-million dollar contract with Walmart.
Defendant Jay and the Sargent brothers claimed to be defendant
Fayne's partners in the alleged Walmart deal.
The defendants falsely told investors that Walmart
was ready to sign the contract as soon as defendant Fayne's
trucking company paid a particular bill, a bill that in truth
did not exist.
The defendants asked investors for money to pay the
fictional bill and promised to repay the investors in full
with a generous amount of interest as soon as the contract was
signed.
Within a short time after that, the defendants would
go back to the investors and ask for more money to pay another
nonexistent bill which the defendants would falsely say had to
be paid to prevent the alleged deal from falling apart.
The investors would usually find a way to come up
with the additional money because they were afraid of losing
everything they had invested up to that point.
That cycle repeated itself time, after time, after
time, until the investors either ran out of money or simply
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refused to turn over any more money because they finally
realized that they had been conned.
The defendants falsely claimed that a senior Walmart
executive whose initials were M.B. -- they used the real name,
but I'm using that here -- had invested a large amount of his
own money in defendant Fayne's trucking company and was
helping defendants secure the contract with Walmart.
The defendants even pretended that M.B. was providing
them with, quote, insider, close quote, information concerning
the status of the contract approval process.
Further, the defendants sent investors phony text
messages from someone posing as M.B., and someone posing as
T.M., a nonexistent Walmart insider.
In addition, defendant Fayne disguised his voice and
posed as M.B. and T.M. in phone conversations with investors.
M.B. is, in fact, a real person and really was a
senior executive at Walmart. But neither M.B. nor any other
Walmart executive ever invested in defendant Fayne's trucking
company and the defendants never even talked to M.B. who
worked at Walmart.
To prevent investors from discovering the truth about
the phony Walmart deal, the defendants told investors not to
contact Walmart directly. The defendants falsely claimed that
secrecy was necessary because Walmart would cancel the
contract if it found out that one of its executives had
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invested in defendant Fayne's trucking company.
During the course of the conspiracy, the defendants
acknowledged that they were participating in an illegal scheme
to defraud investors.
For example, on November 6, 2017, defendant Jay told
defendant Mike Sargent that an investor was, quote,
"questioning whether he will get payback because the deal
doesn't seem real."
On June 20, 2018, defendant Mark Sargent told Darron
Brown, quote, "There is NO Walmart. Same scam every few days.
Just steel [sic] more and more money. It's conspiracy, money
laundering, wire fraud!!!! God knows what else the feds are
going to charge us all with!!!! Because there is no Walmart
deal!!!!"
Also on June 20, 2018, that same date, defendant Mark
Sargent sent a text message to his brother, defendant Mike
Sargent, attaching a screenshot of a bank record showing that
defendant Fayne had used investor money to pay his personal
expenses.
In that same text message, defendant Mark Sargent
also told his brother that defendant Fayne, quote, "flies
everywhere on the money you steel [sic]." And defendant Mike
Sargent responded, "Yes, I saw it."
On February 13, 2019, defendant Jay told defendant
Fayne, quote, I don't know if investor L.W. is bluffing, but I
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don't think we need attorneys calling Walmart's legal
department.
Not all investors were told that the company offering
the contract was Walmart. Some were told that it was Amazon
or UPS, but defendant Fayne's trucking company did not have a
contract with Amazon or UPS either.
The defendants falsely told investors that one of
defendant Fayne's bank accounts had millions of dollars in it,
and they falsely claimed that the IRS had temporarily frozen
that account.
To further that illusion, the defendants sent
investors a fraudulently altered bank record which overstated
the amount of money in that account. The defendants then
convinced investors to pay expenses related to defendant
Fayne's trucking company, promising them that they would be
repaid with interest as soon as that account was unfrozen.
Defendant Fayne falsely told investor Bryan Alexander
that defendant Mike Sargent had purchased 40 trucks for
defendant Fayne's trucking company.
The defendants falsely promised other investors that
their investment proceeds would be used to purchase new trucks
for defendant Fayne's trucking company and that they would
receive a steady income stream from the profits generated by
those trucks.
In an attempt to make defendant Fayne's trucking
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company appear legitimate and to lull investors into a false
sense of security or prevent their complaints to law
enforcement, the defendants paid "make-believe" profits to a
few investors. In other words, the defendants returned a
small amount of the investors' own money to certain investors
and told them, falsely, that it was from profits earned by
defendant Fayne's trucking company.
But most investors never received any of their
investment proceeds back, much less the huge profits that they
were promised.
Instead, the defendants used most of the investors'
money to pay their own personal debts and expenses and to fund
a lifestyle for themselves that they otherwise could not have
afforded.
Defendant Fayne, the organizer and leader of the
fraudulent scheme, kept the majority of the fraud proceeds for
himself. During the course of the conspiracy, defendant Fayne
transferred more than $5 million to the Choctaw Casino and
Resort, in Oklahoma, to cover his personal gambling and
entertainment expenses.
The defendants, having devised this fraudulent
scheme, caused interstate wires to be sent for the purpose of
executing the scheme, including the ones identified in Counts
2, 3, and 4. And those are set forth in detail in the
indictment.
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Count 2 states that a $175,000 wire transfer was sent
from United Community Bank, Account No. 1408, held in the name
of Flame Trucking, Inc., to Navy Federal Credit Union, Account
No. 6082, in the name of Tyrece Vaughn. And that's dated
April 23, 2020.
Count 3 alleges that on the following day, April 24,
2020, a $30,000 wire transfer was sent from United Community
Bank, Account No. 1408, held in the name of Flame Trucking,
Inc., to JPMorgan Chase Bank, N.A., Account No. 0180, held in
the name of Daniel E. Jay.
And finally, Count 4 states that on or about May 1,
2020, a $25,000 wire transfer from United Community Bank,
Account No. 1408, held in the name of Flame Trucking, Inc.,
was sent to Bank of America, N.A., Account No. 2851, held in
the name of Michael Sargent.
In late 2018 or early 2019, defendant Fayne relocated
the fraudulent scheme to Georgia to evade law enforcement and
regulatory officials.
United Community Bank participated as a lender in the
Paycheck Protection Program, also known as the PPP, a loan
program created by the United States Small Business
Administration to help small businesses pay payroll costs,
including benefits, interest on mortgages, rent and utilities
during the COVID-19 pandemic.
On March 29, 2020, defendant Jay suggested to
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defendant Fayne that defendant Fayne obtain a PPP loan under
false pretenses and use the loan proceeds for an illegal
purpose, specifically, to make payments related to the Ponzi
scheme described in Count 1 and Counts 2, 3, and 4.
Defendant Jay later said to defendant Fayne, quote,
if we can somehow justify 100-plus drivers on 1099 for Flame,
we have something, close quote.
Defendant Jay then helped defendant Fayne create
fraudulent documents to support a PPP loan application.
On April 15, 2020, defendant Fayne signed and
submitted to United Community Bank a PPP loan application in
the name of Flame Trucking, Inc., which requested a loan in
the amount of $3,725,500, and which falsely represented that
Flame Trucking, Inc., had 107 employees and an average monthly
payroll of $1,490,200.
After the loan was funded, defendant Jay admitted to
a witness whose initials are E.B. that he had falsified bank
statements to help defendant Fayne get the PPP loan.
Defendant Jay also admitted to E.B. that he had made
up a list of fake employees for Flame Trucking, Inc., and that
defendant Fayne had submitted that list to United Community
Bank in connection with the PPP Loan application.
Defendant Fayne used the PPP Loan proceeds to pay his
own personal debts and expenses, including the following:
$40,000 for past due child support; $50,000 for
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restitution owed in a previous fraud case; $65,000 in cash
withdrawals; $85,000 for custom-made jewelry; $136,000 to
lease a new Rolls Royce;
$230,000 in Ponzi payments; and $907,000 for start-up
expenses related to a new company called C.R. Wilkins
Trucking, LLC, which was not incorporated until after
defendant Fayne applied for the PPP loan.
At all times material to this case, the accounts of
United Community Bank were insured by the FDIC.
On April 24, 2020, defendant Fayne knowingly made a
false statement for the purpose of influencing the action of
United Community Bank with respect to Flame Trucking's PPP
loan application when he sent an email to United Community
Bank attaching what he represented to be October, November,
and December 2019 bank statements for Flame Trucking's account
at Arvest Bank.
In truth and in fact, as defendant Fayne knew, those
bank statements were phony because Arvest Bank had shut down
Flame Trucking's account in September, 2019.
THE COURT: All right.
Ms. Durrett, do you have any material disagreements
with the assistant United States attorney's summary of the
evidence the government could prove if this case went to
trial?
MS. DURRETT: We don't have any material
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disagreements.
The amounts that the government listed as far as
payments that went out from the PPP loans, I don't have reason
to doubt those. I just don't have them in front of me.
THE COURT: All right.
Q.
Mr. Fayne, do you degree with the prosecutor's summary of
what you did?
A.
Yes, sir.
Q.
And with respect to Count 1 of the indictment, which
charges you with conspiracy to commit wire fraud, do you agree
that you committed conspiracy to commit wire fraud in
basically devising a scheme to defraud investors in your
trucking company?
A.
Yes, sir.
Q.
And with respect to Counts 2 through 4, which charge you
with wire fraud, it is true that as part of this scheme to
defraud investors, that there were three different wire
transfers sent from United Community Bank, from an account
held in the name of Flame Trucking, to three different
recipients?
A.
Yes, sir.
Q.
And with respect to Count 5, which charges you with bank
fraud, it is true that in order to obtain loans from United
Community Bank, you falsified or were aware of falsified bank
statements that were submitted to United Community Bank in
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conjunction with a loan application in order it get that loan?
A.
Yes, sir.
Q.
And finally, with respect to Count 6, which charges you
with false statements made to an FDIC-insured financial
institution, that you, again, in connection with a loan
application on behalf of Flame Trucking, sent an email which
attached bank statements which were phony; is that correct?
A.
Yes, sir.
THE COURT: All right. I find that there is a
factual basis for the plea of guilty to Counts 1 through 6 of
the second superseding indictment in this case.
At this time I'll ask the assistant United States
attorney to state the maximum penalty and fine that can be
imposed on these charges and any mandatory minimums that might
apply at sentencing.
MR. PHILLIPS: Your Honor, as to each count to which
the defendant is pleading guilty, that is, Counts 1 through 6,
the maximum term of imprisonment is 30 years. There is no
mandatory minimum term of imprisonment.
The term of supervised release is zero to five years.
The maximum fine is $1 million, or twice the gain or twice the
loss, whichever is greatest, due and payable immediately.
Full restitution due and payable immediately to all
the victims of the offenses and relevant conduct.
There is a mandatory special assessment of $100 as to
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each count, due and payable immediately.
And forfeiture of any and all proceeds obtained
directly or indirectly from the commission of the offense.
I will note that this Court has previously signed an
order of forfeiture with respect to a default judgment that
was entered against certain property that was seized in this
case. So that is not included in this forfeiture section of
this agreement or in the consent preliminary order of
forfeiture because this Court has already dealt with that.
But we do have a consent preliminary order of
forfeiture that pertains to additional property that was not
included in the default judgment.
THE COURT: All right. Ms. Durrett, do you agree
with Mr. Phillips's statement?
MS. DURRETT: I do, your Honor.
BY THE COURT:
Q.
Mr. Fayne, do you understand the maximum and minimum
penalties that may be imposed as a result of your guilty plea?
A.
Yes, sir.
THE COURT: Ms. Durrett, is your client a United
States citizen?
MS. DURRETT: He is, your Honor.
THE COURT: So there are no immigration consequences
to this plea; is that correct?
MS. DURRETT: That's correct.
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BY THE COURT:
Q.
Mr. Fayne, the United States Sentencing Commission has
issued guidelines which judges are obligated to consider in
determining a sentence in a criminal case.
Have you and your attorney talked about how the
sentencing guidelines might apply to your case?
A.
Yes, sir.
Q.
Do you understand it's not possible to determine the exact
guidelines for your case until after a presentence report has
been completed and you and the government have had a chance to
object to the facts as reported by the probation office?
A.
Yes, sir.
Q.
Do you also understand that after it has been determined
what guidelines apply to a case, the Court has the authority
to impose a sentence that may be more severe or less severe
than that called for by the guidelines?
A.
Yes, sir.
Q.
Do you also understand that as part of your plea
agreement, with three narrow exceptions which I'll review with
you in a moment, you're giving up the rights you would have to
appeal the sentence that is imposed in this case?
A.
Yes, sir.
Q.
Specifically, unless there has been what's called an
upward departure or variance from the guidelines, in other
words, if I sentence you to a term of imprisonment that was
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higher than that called for by the guidelines, you can appeal
that sentence.
Or if the government took an appeal from the sentence
that I imposed, you could file a cross appeal to their appeal.
Or if you had a claim your lawyer rendered
constitutionally ineffective assistance, you can raise that as
a ground for appeal.
But aside from those three narrow exceptions, you are
giving up your right to appeal, which means you will be bound
by the Court's determination as to your sentence.
Do you understand this?
A.
Yes, sir.
Q.
Do you understand you are also giving up what's called the
right to collaterally attack your conviction and sentence in a
postconviction proceeding?
What that means is that after you are convicted, you
can never file a complaint which says there was some defect in
the prosecution of your case that justifies your release from
incarceration.
Do you understand that?
A.
Yes, sir.
Q.
Other than the plea agreement, has anyone made any promise
to you that has caused you to give up your right to appeal
your sentence?
A.
No, sir.
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THE COURT: Ms. Durrett, have you and the defendant
discussed the appeal waiver and determined it's in Mr. Fayne's
best interest to agree to the waiver?
MS. DURRETT: We have, your Honor.
BY THE COURT:
Q.
Mr. Fayne, do you also understand that parole as been
abolished and, if you are sentenced to prison, you will not be
released on parole?
A.
Yes, sir.
Q.
Do you understand you may be sentenced to a term of
supervised release, and if you violate any of the terms or
conditions of that supervised release you can be sent back to
prison for the entire term of the supervised release?
A.
Yes, sir.
Q.
Do you understand you will be ordered to pay a special
assessment of $600, which is $100 for each of the charges you
are pleading guilty to?
A.
Yes, sir.
Q.
Do you understand you may be ordered to pay restitution to
any victim of these offenses?
A.
Yes, sir.
Q.
Do you understand that the offenses to which you're
pleading guilty to are felonies, and that if your plea is
accepted, you will be judged guilty of those offenses, and
that such adjudication may deprive you of valuable civil
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rights, such as the right to vote, the right to hold public
office, the right to serve on a jury, and the right to possess
a firearm?
A.
Yes, sir.
Q.
Do you understand that if the sentence is more severe than
you expected, you will still be bound by your plea and you
will have no right to withdraw it?
A.
Yes, sir.
Q.
The government has agreed to make certain recommendations
as a part of your plea agreement. Do you understand if the
Court does not accept the sentencing recommendations contained
in your plea agreement, you will still be bound by your plea
and you will have no right to withdraw it?
A.
Yes, sir.
Q.
Is there anything I have said or any of the questions I
have asked you this afternoon that you did not understand or
you would like for me to review with you again?
A.
No, sir.
THE COURT: All right. Thank you.
Ms. Durrett, is there anything else you wish for me
to address with your client at this time?
MS. DURRETT: Not before you accept the plea, your
Honor.
I would like to address the issue of bond.
THE COURT: Okay. Sure.
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Mr. Phillips, do you believe there are any other
inquiries of the defendant I should make before announcing my
findings concerning his plea?
MR. PHILLIPS: No, your Honor.
THE COURT: All right.
At this time I find the defendant understands the
charges and the consequences of his plea of guilty. I have
observed the defendant during this proceeding and he does not
appear to be under the influence of any substance which might
affect his judgment or actions in any manner.
The Court finds that the offer of the plea of guilty
of the defendant to Counts 1 through 6 of the second
superseding indictment has a factual basis. It is free of any
coercive influence of any kind.
It is voluntarily made with full knowledge of the
charges against him and the consequences of his plea.
I find that the defendant is competent to understand
these proceedings and to enter a knowing plea of guilty.
I find there have been no promises of any kind made
to him by anyone except as incorporated into the plea
agreement as set out in open court.
It is hereby ordered that the plea of guilty of the
defendant to Counts 1 through 6 of the second superseding
indictment in Case No. 20-cr-228 is accepted and entered.
Mr. Fayne, you are hereby adjudged guilty of Counts 1
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through 6 of the second superseding indictment in this case.
The clerk will set the date for sentencing.
COURTROOM DEPUTY: Wednesday, September 8, 2021, at
10:00 a.m.
THE COURT: All right. There has been an order of
detention previously entered in this case. Ms. Durrett, do
you want to speak as to that?
MR. PHILLIPS: Excuse me. I apologize for
interrupting. One thing before we turn to a different issue.
I would like to present the preliminary order of
forfeiture.
THE COURT: Yes. Come up and I'll sign that.
MR. PHILLIPS: (Handing.)
THE COURT: All right.
The record should show I have signed the consent
preliminary order of forfeiture in this case.
Ms. Beck just pointed out, on page 18 of the plea
agreement in this case, Mr. Fayne's signature under the waiver
says, I have read the "information" against me, instead of the
"indictment" against me.
Should we change that and have the parties initial
that?
MS. DURRETT: Yes. I thought I marked that out. I
did not initial it.
MR. PHILLIPS: That's my fault, your Honor. We
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should have caught that in proofreading.
THE COURT: All right. We will get that taken care
of.
All right. Good catch, Ms. Beck.
MR. PHILLIPS: Your Honor, I would note for the
record I initialed that change from "information" to
"indictment."
MS. DURRETT: And so did I.
MR. PHILLIPS: Defense counsel initialed it, and
defendant initialed it as well.
THE COURT: All right. That is done. I appreciate
it.
All right. Ms. Durrett.
MS. DURRETT: Thank you, your Honor.
I know it's an unusual posture to be asking for bond
after a defendant has pleaded guilty, but I think that 18
U.S.C. 3143 permits the Court to release a defendant at this
stage if the Court finds by clear and convincing evidence that
he's not liking to flee or pose a danger to the community.
Mr. Fayne had been on bond initially in this case and
an unsecured bond for about seven months. And that bond was
revoked due to the fact that he had contact with a witness in
the case. There was a detention hearing about the
circumstances surrounding that.
At that point in time Mr. Fayne was represented -- or
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he was representing himself in this case and he had stand-by
counsel, and stand-by counsel was not available to him at that
detention hearing so he represented himself at that hearing.
Then when I came on board, we raised the issues of
bond again, and then we started discussing a resolution of the
case so that was -- we let that go at that point in time.
I have discussed with the government over the last --
however long we have been negotiating -- the fact that
Mr. Fayne has an injury to his shoulder that resulted from a
2019 ATV accident.
He received surgery on that shoulder in October of
2019, and was supposed to go back to have another surgery in
2020, but then things kind of went haywire.
So he would like to be released to be seen by another
outside doctor and to go and get that surgery, if he can do
that. He is on pain medication.
I have obtained his medical records from the
detention center up until about February of this year. That
was the last request I had, and I put in another request to
get more recent records. But I have submitted to the
government information about the x-ray that they did on his
shoulder.
It's my understanding the government objects to bond,
I'll put that right up front. But I do think he is a good
candidate for bond. He was released for seven months without
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issue until that issue came up with contacting witnesses.
I think he can abide by the conditions of the Court.
I don't think he's likely to flee. He has been in a long-term
relationship with a woman named Jasmine Fisher. They live in
the same residence that they have been living in.
Probation has been to that residence while he was on
release and has approved that residence.
So I think that especially now that he has this plea
agreement in place and the acceptance of responsibility in
play and wanting to make sure he gets that, he would certainly
comply with any conditions of this Court.
He really just wants to get out, get the surgery or
at least be seen by an outside doctor to figure out what can
be done.
His daughter is also 18 years old and will be
starting college in the fall. He wants to work with her on
any financial aid or anything else that she might --
applications that she might need as she's getting ready to do
that.
So he would ask the Court to permit him to be on bond
pending either sentencing or designation to his facility so he
can handle those things.
THE COURT: All right. I was looking through the
docket here to see who had originally set bond and then who
revoked the bond. I think it was Magistrate Judge Anand.
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MS. DURRETT: That's correct.
THE COURT: What I would ask you to do is to go back
to Judge Anand and present your motion to grant him bond at
this stage.
Because Judge Anand is the one that set the bond and
then revoked the bond, I think it's more appropriate that it
go back to him first.
Obviously, if you are dissatisfied with what Judge
Anand does, you can file a motion for review of that order.
MS. DURRETT: Thank you, your Honor. I appreciate
it.
THE COURT: All right. Anything further, on behalf
of the government?
MR. PHILLIPS: No, your Honor.
THE COURT: Anything further, on behalf of the
defendant?
MS. DURRETT: No, your Honor.
THE COURT: All right.
Court stands in recess.
(Proceedings were adjourned at 4:02 p.m.)
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REPORTER'S CERTIFICATE
I, Judith M. Wolff, Certified Realtime Reporter and
Official Court Reporter for the United States District Court
for the Northern District of Georgia, with offices at Atlanta,
do hereby certify:
That I reported on the Stenograph machine the
proceedings held in open court on Tuesday, May 11, 2021, in
kithe matter of USA v Maurice Fayne, Case No.
1:20-cr-00228-MHC;
That said proceedings in connection with the hearing
were reduced to typewritten form by me; and that the foregoing
transcript is a true and accurate record of the proceedings.
This the 24th day of June, 2021.
_______________________________
/s/ Judith M. Wolff, RPR, CRR
Official Court Reporter
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