Court filing
Information - United States v. Maurice Fayne related docket
Record facts
| Court | U.S. District Court for the Northern District of Georgia |
|---|---|
| Filed | 2021-10-28 |
U.S. District Court for the Northern District of Georgia · No. 1:20-cr-00228-MHC-JKL · Doc. 254 · 2021-10-28 · Docket on CourtListener
Summary
A transcript of the May 24, 2021 Zoom hearing on the defendant's motion for release in United States of America v. Maurice Fayne, No. 1:20-cr-00228-MHC-JKL, before Magistrate Judge Justin S. Anand of the U.S. District Court for the Northern District of Georgia, filed October 28, 2021 as Document 254. Defense counsel Saraliene Durrett asks that Fayne be released pending sentencing to obtain a medical evaluation, citing the government's plea-agreement recommendation of 151 months and offering conditions such as an ankle monitor or house arrest. John Russell Phillips for the government argues that nothing has changed since the December 22, 2020 detention order except the guilty plea and that Fayne has not met his burden under Section 3143. Phillips also states that recorded calls show Fayne continuing fraud schemes while detained. The court denies the motion.
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, ZOOM VIDEOCONFERENCE
vs. Docket No.
1:20-cr-00228-MHC-JKL
Maurice Fayne,
Defendant.
TRANSCRIPT OF HEARING ON DEFENDANT'S MOTION FOR RELEASE
HELD BY ZOOM VIDEOCONFERENCE
BEFORE THE HONORABLE JUSTIN S. ANAND
UNITED STATES MAGISTRATE COURT JUDGE
MONDAY, MAY 24, 2021
Appearance of Counsel:
For the Plaintiff: John Russell Phillips, Esq.
Assistant United States Attorney
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
TRANSCRIBED FROM DIGITALLY-RECORDED AUDIO
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(Court was called to order.)
THE COURT: Hi. Good morning. Can you all hear me
okay?
MR. PHILLIPS: Morning, your Honor.
MS. DURRETT: Yes.
THE COURT: Morning. All right. We're here in the
case of the United States of America vs. Maurice Fayne.
Mr. Phillips is here for the government; Ms. Durrett for the
defense, and Mr. Fayne is present as well.
Everyone -- I'm in court, open court here. Everyone
else is present by videoconference.
We're here for a motion from the defense for release
on bond. So I have reviewed the materials that you all have
filed, I think both sides have filed briefs. So I have read
all that, but I'll let you all have an opportunity to be heard
here as well.
But let's try to keep that short just because I have
read everything so you don't have to repeat in all that
detail. So roughly ten minutes a side, I'll let you be heard,
but to emphasize what's most important. Again, you can rest
assured I have read everything.
So, Ms. Durrett, I'll let you begin.
MS. DURRETT: Thank you, your Honor. And I may not
even take ten minutes.
But I know the Court has read what we filed, and I
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know the Court knows the history of the case.
Mr. Fayne had represented himself for a while in the
case. He had been released on bond after his initial arrest,
he voluntarily reported at that time and was released on bond,
and then was later revoked based on an allegation that he had
contacted a witness.
So I know the Court knows all the history of that and
that he represented himself at a bond revocation and was taken
into custody.
Now he's represented by me. During the time that
he's been represented by me, we have been able to negotiate
the plea agreement with the government and he is awaiting
sentencing at this time.
We're asking that he be released pending sentencing
so that he can have -- he has a shoulder injury that he got in
2019. It has been looked at by the staff at RADD and it has
been looked at by a doctor there. The latest report that I
saw was that they said well, you just need to exercise it.
And it's his contention that he needs a second surgery.
He had a surgery in 2019 and he was supposed to have
another surgery in 2020. That got put on hold because of
COVID.
So his request is that he be permitted to see -- you
know, go out and see the same doctor. He thinks that his
surgery was at Northside Hospital, and I'm trying to get those
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records.
His contention is that he should be able to go and
see the doctor at that same facility to confirm, you know,
that there is nothing that surgery can do for him or that he
doesn't need further treatment on that shoulder.
I know the government has a concern that he's going
to be released until sentencing. Mr. Fayne has told me that
he does not mind at all if his sentencing hearing is moved up.
We did not ask for that September date. If the Court
determines that there is a time to sentence him earlier than
that, he's fine with that.
If the Court determines that he should only be
released for a limited period of time, 60 days or 30 days, to
try to get that medical evaluation done, he's fine with that.
His concern is that he wants to make sure that if he
does need a second surgery, that that's done before he goes
into the B.O.P. system.
And I know the Court is very well aware of the
medical system at the B.O.P. and I understand courts often
tell me he can get fine care in the Bureau of Prisons, and I
believe that is true, but he would like to go back to the same
doctor that saw him initially, did the surgery, and just to
confirm that either he does need to get the surgery before he
goes in or he doesn't need the surgery.
Now, I know the government has argued that he is a
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flight risk based on the potential sentence in the case. I
would argue that he -- because he's entered into this plea
agreement and he has this acceptance of responsibility hanging
over his head, he doesn't want to do anything that could
jeopardize that.
If he does anything inconsistent with accepting
responsibility in this case, he's going to lose the
government's recommendation for a sentence of 151 months in
this case. And he knows that.
So yes, there is a potential for a high sentence on
each count, but if he complies with his plea agreement, and he
complies with the acceptance of responsibility conditions,
then he's going to get a lower recommendation from the
government and maybe that will be enough to sway the district
court to give him a lower sentence.
But he certainly is aware that getting out on bond
and doing something to mess that up is going to be risking
more than just his bond at this point.
So he's done everything he can when I have been his
attorney to try to resolve this case and he's let me talk with
the government about trying to get a resolution, and we have
done that.
And I just think that he is ready to comply. He's
ready to meet the conditions of his plea agreement. And, like
I said, if the Court determines that an earlier sentencing --
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I know this Court doesn't decide that, but he has no problem
with that. If he gets sentenced in July or August, there is
no problem with that.
I will note the Court, I'm sure knows, that when a
defendant is allowed to self-surrender to the B.O.P. facility,
he gets lower security points. So if a defendant is actually
taken from the marshal's custody to a B.O.P. facility, his
security score is higher than a defendant who gets to
self-surrender.
So it could effect his B.O.P. facility of
designation, it could effect the security of that designation.
So that is a big -- it is an important factor for Mr. Fayne
and he doesn't want to mess that up, either.
And I just think that based on all of these things,
Mr. Fayne wants to comply. He has an attorney now who can
advise him if he has any questions at all.
But I'll tell Court that he has explained me that he
wants to get out, do the things that we have asked, talk with
his daughter and help her plan as she's getting ready for
college. The most important factor for him right now is for
someone to look at that shoulder and get that taken care of.
So we do think there are conditions that could be
crafted that would ensure his appears in court and ensure the
safety of the community.
I think the conditions that were previously on were
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successful, and I think that if the Court were inclined to say
he needed an ankle monitor or house arrest, he would abide by
those things just so that he could get out and go see the
doctor, if he needed to do that.
But otherwise I think it would be appropriate if the
Court determined that house arrest was something that should
be imposed in this case.
So that's the gist of our argument, your Honor.
THE COURT: All right. One thing I forgot to ask
initially, but let me just confirm. Does he consent to,
today, this being by video, the remote proceedings?
It's not the initial bond hearing, obviously. It's a
motion -- or a hearing that we're having on the motion to
consider, but does he consent to this being by remote?
MS. DURRETT: He does, your Honor. I asked him, and
he does.
THE COURT: Okay. All right.
Mr. Phillips, again, I have read your response, but
if you wanted to be heard as well in response to Ms. Durrett,
now is the time.
MR. PHILLIPS: Thank you, Judge.
I think the thing that I would like to just
emphasize, which I talked a lot about in my brief, is that the
only thing that has changed since December 22, 2020, when this
Court found that defendant Fayne had violated the conditions
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of his pretrial release and ordered him detained, and stated
that the Court found by clear and convincing evidence that no
condition or combination of conditions would be sufficient to
ensure his appearance at trial or to protect other people and
the public from him, nothing has changed except that he has
pleaded guilty.
He is now assured of facing a lengthy prison
sentence. He is no longer able to claim that he's innocent.
So a significant motivation for him to show up has
disappeared. Judge Thrash talked about that in the Hill case,
that he now has an overwhelming motivation to flee.
So I think that is key. And I think most importantly
he has the burden, and that burden is by clear and convincing
evidence, which the Supreme Court has said means that he must
show that it's highly probable, highly probable.
In the face of this Court having previously said that
there are no conditions or combinations of conditions that
would assure his appearance or protect the public, he
certainly hasn't done anything in the meantime to show that
things have become highly probable in the other direction.
That statute that I talked about, Section 3143
provides three things: It says that he has to show both that
he is not a risk of flight and not a danger to another person
or to the community. He has to show that by clear and
convincing evidence.
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Not only has he not done that, but, respectfully, I
believe the opposite is true. I think that the government has
established by clear and convincing evidence that he is both a
flight risk and a danger to other people and to the community.
And as the Court knows and as I explained in the
brief, it's not just a danger of physical violence, it's a
danger of economic harm to the community.
And I can't go into all the evidence because it would
just take too long, but it is a staggering, overwhelming
amount of evidence that shows him just defrauding one person
after another.
This is not just a one-time opportunity where the
defendant and some other people made a bad choice or did
something. They repeatedly targeted innocent people and stole
their money. And he just spent it as quickly as he could get
it. $5 million just going to a casino.
Also, the Court will recall from the phone calls that
were recorded while he was at RADD, it shows that he has
continued to violate the law even after this Court revoked his
bond. He has been engaging in schemes to defraud other people
while locked up on bond -- after his bond was revoked, while
locked up.
So nothing has changed for him. He has continued to
use this network of flunkies and coconspirators to do his
dirty work for him while he has been locked up.
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If you read the transcripts of those phone calls,
it's just -- it's clear, he is a hardcore fraudster. And he
talks about, you know, getting other people to make calls to
the DOT and to make false representations to the DOT to get
trucking authority to create these fictitious companies and
continue to operate fraudulent schemes while he was locked up.
He is a menace. He is a danger to the public.
The last thing I want to say, Judge, is I think that
it is extremely important to keep in mind that he lied to this
Court at the revocation hearing.
And that may not be a gentlemanly thing to say, it's
not most genteel way to describe it. But someone once said --
a famous person once said that the beginning of wisdom is
calling a thing by its correct name.
And this was not a mistake. This was not a simple
difference of opinion. This was an outright lie to this
Court. It was material to this Court's decision on bond. He
did it to try to trick you into believing that this was no
connection between the civil lawsuit brought by Mrs. Cain and
this indictment.
And then he lied to you again and he told you that he
had never seen her summons and complaint, her lawsuit, as he
called it. And I have shown beyond a reasonable doubt that he
was personally served with that summons and complain. He lied
to you and told you that he had never seen it.
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He lied to you and told you that it had nothing to do
with the allegations in this indictment. I counted, I went
through that civil complaint, and it says, a hundred times,
the words "truck" or "trucking."
It is beyond any dispute whatever that that civil
complaint, as this Court found at the revocation hearing,
mirrors the allegations in the indictment.
So it's clear that he lied to the Court for the
purpose of trying to get out or stay out on bond. And that
shows that he is a danger to the public, that he is a risk of
flight.
The reason he's willing to make all these promises
now and double down on all these things, he told you in the
past is because he is desperate to get out. And if he gets
out, we're going to have a hard time finding him again.
And I urge this Court, as strenuously as I can, to
keep this man detained. He is a danger to the public.
Thank you, Judge. Thank you for the time for
listening to me.
THE COURT: Ms. Durrett, as the movant, I'll give you
a couple of minutes, if you wanted to have a rebuttal.
MS. DURRETT: Your Honor, I'll just -- I know the
Court knows, this is a nonviolent case. There is no
allegation that he committed violence against anyone or that
he had firearms.
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So I understand the government's argument that this
could be an economic crime or something like that when he gets
out. But I do think the conditions that the Court could craft
would ensure the safety of the community and persons in the
community.
And I will also note that he did comply with the
coming to court condition, your Honor. He came to court when
he was required. He voluntarily surrendered at the beginning
of the case.
When he was called into probation on the day he was
actually arrested, he came to probation and voluntarily came
in. I don't think there was any problem when he was arrested
at that time and then held for his revocation hearing.
So he does come to court. And this isn't a violent
case, so I understand the government' argument. But I do
think there has been no showing -- and I think we have shown
that he is not likely to flee. He's going to continue coming
to court as the Court has ordered.
And I think the Court could set conditions that would
ensure that there is no, you know, potential for criminal
activity. I don't think he's going to be involved in that.
And just as far as the Jimia Cain thing goes, your
Honor, I know that the Court has heard this and you have seen
the back and forth filing on this. She had a separate civil
lawsuit against him and she was not named as one of the people
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that the probation office told him not to contact.
I understand the government's argument that her
complaint mirrors the allegations in the case. But I do think
there is ambiguity there, and I raised this in a prior motion
that I had filed before we entered our plea.
But I think there's ambiguity as far as that
condition goes. So the idea that he stood in court and lied
to this Court, I just could not think that's true, your Honor.
I think that he was trying to explain to the Court his
understanding of what the conditions were.
He should not have contacted her. That is absolutely
right. There should have been no contact with her. But I
don't think that him saying she has a separate civil lawsuit
against me and I didn't know it was involved in this case is a
lie to the Court.
And that's all I will say.
THE COURT: Okay. All right.
Give me one second.
All right. So I originally revoked the defendant's
bond back in December based primarily on the contact with the
potential witness, Ms. Cain, that was in violation of the
bond.
There had been a motion to reconsider which we had
originally scheduled for a hearing, and I think that ended up
not occurring. You all had in the meantime, I think, worked
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things out.
I think I had indicated that I was open to hearing --
not foreclosed from hearing arguments about reconsideration in
part because I did recognize there was some -- I don't think I
would use the word ambiguity. I don't think it was ambiguous
that that was a violation of my order of the bond.
But there were some facts in the chronology that were
not as clear as they could have been. And I was disappointed
by the probation officer's initial text or emails to Mr. Fayne
that gave him a list of folks not to contact, without
reminding him that that was not an exclusive list. Because I
had been I think crystal clear in my original bond order in
the hearing that whatever list of names the government gives
would not be exclusive, that that would just be among the
names, but it would include anyone that the defendant had
reason to believe would be a witness in the case.
It also ended up being a little bit, chronologically
-- again, I don't think I would use the word ambiguous -- but
I recognize that at the time of the original indictment and
bond hearing and at the time he was given those names, if I
recall the chronology correctly -- because it's a little bit
confusing and it occurred over time -- the original indictment
dealt mainly with the PPP fraud, and subsequently was
superseded to add the investment, if I'm characterizing it
correctly, or the Ponzi scheme fraud. And it's the latter
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that Ms. Cain was considered to be a witness in, not the
former, if I recall correctly.
And I think maybe at the time of the original bond
hearing he was given the list and all that, and maybe at the
time she even files her complaint in the civil case the case
had not been superseded with the new charges.
So there is a little bit of chronological -- I'm
struggling with the word because I don't want to say -- it's
not ambiguous, but it's not as clear as it could have been
that she at least originally would be a witness in the case.
So I was willing to hear this again on
reconsideration.
The problem now though, is, first of all, the
standard has changed legally. When we first were addressing
the question of revocation, the burden was on the government
and, of course, originally in talking about conditions of bond
and revocation, the burden is on the government.
The burden now lies on the defendant to show by clear
and convincing evidence -- which is among the highest
standards that the law assigns -- to show that he is neither a
risk of flight nor a danger to the community now that we are
postconviction.
That's a very difficult standard to meet that he has
the burden to meet. It's not just a presumption of detention,
the way the Bail Reform Act has presumption of detention in
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drug trafficking in similar cases and in some other categories
of cases.
That's something that's a burden of production only.
The burden of persuasion would remain on the government. This
is a burden of persuasion by clear and convincing evidence
that the defendant bears.
Also, I am concerned that the -- while I'm open to
considering that there was some chronological sort of lack of
simplicity in that the probation officer could have given
clearer or better instructions, there's also a lot more that I
have been supplied with by way of the original briefing and
motion materials, including the jail calls which I have
reviewed all of those materials supplied by the government in
the original motion papers.
And there remains some of the facts that have always
been there, but that just never were originally grounds for
revocation or detention but were always issues of concern in
the case, including that this was a case where the defendant
was Googling extradition-free options. Countries that he
could flee to that wouldn't have extradition to the U.S.
before he was ever even arrested, knowing that there was the
possibility of arrest.
That was not, ultimately, a ground for detention.
The ghost didn't move for it in part because he did
voluntarily surrender and was cooperative, ultimately.
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But it has not gone away in terms of a fact that was
proffered and never been disputed and something that is of
obvious concern.
The issue with Ms. Cain, even if the defendant were
not -- there could be some argument that well, Mr. Tudor
didn't tell me not to speak to her. It remains that that -- I
couldn't have said clearer in my original bond order that
that, the names given would not be exclusive, it would be
anyone -- you can't just rely on the absence of being told.
I have to be able to trust that you're not going to
contact even others that you have reason to believe would be a
witness.
And that gives great concern. It gave me concern in
December and it still does, that what I say won't be what's
focused on or remembered.
Even if it wasn't at the time an intentional
violation because he had the text from Mr. Tudor that didn't
list her name, it's still a situation where I can't trust that
my orders are going to be faithfully and carefully even
remembered, let alone complied with.
And when we're approaching sentencing, things are not
lessened. The concern about witness contact and intimidation
is not lessened. This is a time in the case that is, in a lot
of ways, the victim's time.
I mean, the victims are going to all be receiving,
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including presumably Ms. Cain, and others, contacts whether
from the U.S. Attorney's Office or from the probation office,
inviting them to make statements and to write in their -- how
this has impacted them or to even appear for court if they
want to.
And it's a time when they may be particularly
vulnerable to being influenced, contacted or intimidated.
Given -- even in looking at things in the light most favorable
to Mr. Fayne, even assuming that maybe it was unintentional,
the issues with Ms. Cain before in terms of how it related to
my bond, I really have no way of concluding that that sort of
thing wouldn't happen again.
But looking back at the contacts with her, there was
one thing that really sticks in my mind now as being of
particular concern as it relates to the potential flight. One
of the things that he said in the text to Ms. Cain was -- and
I don't know that I'm quoting this verbatim, but it's close --
that "I'm not going to spend a day in jail."
She said something like I can't wait to put you in
jail, and his response was "Ha-ha. I'm not going to spend a
day in jail."
And I don't know if that reflected a view of optimism
as to his ability to talk his way out of the case in front of
a jury or the Court, in other words, that it was simply a view
on the merits that he was going to win. If so, that's now
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gone by the wayside.
Or if it was a reflection of no matter what it takes,
I'm not spending a day in jail, which can't help but in my
mind trigger the memory that this was a defendant who was
Googling how to escape to non-extradition countries prior to
arrest.
I mean, of course it also could be braggadocio,
right, bragging, and just not reflecting an intention to flee
but just sort of making a statement about bragging.
But again, this is the defendant's burden to show by
clear and convincing evidence, he has to convince me by clear
and convincing evidence that that didn't mean that he was
harboring a temptation to flee. I have to be concerned that
that's what that meant.
If it simply meant a view that I'm going to win on
the merits, I'm optimistic, they're never going to be able to
prove this and I am legitimately going to defend at trial and
win, then again, that's -- I mean, that's less of a concerning
statement in terms of flight, except that it's now a view that
he is no longer able to hold.
He has now been dispossessed, I would assume, of that
optimism because he has pled guilty and been convicted.
And I don't know how that's going to impact his
compliance with conditions. He was compliant while on bond
except for the issues that -- I mean, in terms of appearance
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for court. And I acknowledge that.
He appeared every time we had something. He
responsibly was in touch with pretrial. Every time he made a
request to travel -- he made several requests to travel and we
had several hearings. I granted some of his requests and
denied others. But he, very responsibly, raised them very
frequently, through probation and through the Court directly.
We let him travel, if I recall correctly, at least
once to Arkansas. We let him extend that trip. And I think
there were other requests.
The fact that he came to Court asking was
commendable. That was what his responsibility was. And he
knew that he needed to ask the Court and only engage in travel
or other things if we gave him permission. And I gave him
some permission and denied others.
And I acknowledge that and, far from thinking poorly
of him because he was asking for lots of things, I think
better of him in his candidacy for being on bond that he was
asking.
But I have to be concerned that all of that was under
the time period when he may have convinced himself that he was
not going to spend a day in jail because either he was going
to win ultimately or, if it came to it, there would always be
the option to flee.
Even if it was never the former, always the I'm going
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to win here, now he knows he's not going to win.
And a lot of that prior compliance that I have
acknowledged, I have to place less reliance on that now
because I don't know that that's what will be the case now
that we're in a very different world of postconviction.
That's one of the reasons why the rules are crafted
the way they are with the different burdens of proof. That
postconviction, the burdens change very dramatically.
And this is one of the reasons, that now there is no
longer a hope of avoiding the guilty finding, and probably a
hope of avoiding substantial jail time.
It may not be what the government recommends. That
will be for the district judge, and I know it will be
disputed, the amount of punishment. But it really can't be
realistically assumed any more that there wouldn't be
substantial punishment.
So all that is to say I acknowledge and remember his
compliance on bond, but I have to put that -- when I say
compliance on bond, I mean expect for the stuff that led to
revocation. The compliance of reporting, appearing and only
traveling when under permission and request, I acknowledge all
that and I remember all that.
But it's of limited weight now because of the
different circumstances that we find ourselves in here. And
because of some of the things that have occurred, including
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the statement, "I'm not going to spend a day in all."
So you can see where I'm going here. I'm going to
have to deny the motion.
I can't find by clear and convincing evidence that
the defendant wouldn't flee, and that he wouldn't be a risk of
witness contact and intimidation, and that he wouldn't
continue to be a potential economic danger.
It was of concern that there continued to be calls
from the jail about the operation of the trucking company in
ways that did appear to potentially be -- I don't know, but
again, I'm under the -- it's his burden to show otherwise by
clear and convincing evidence -- had some potential for fraud.
So I'm going to have to deny the motion.
I am sympathetic for the medical situation, but
that's not really something that I can use as an exception, a
ground for release in the face of everything else.
The marshals and, ultimately, the B.O.P. do have the
responsibility to give adequate care. Whether or not there is
-- he will get everything that he -- and of course, we don't
even know whether there is a surgery needed or not. I'm
hearing no from the medical evaluations in custody.
But his hope or desire or belief that another doctor
might give him a second opinion, really, in light of the
entire record that I have discussed here now, I really can't
-- is not a ground for release at this time.
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So I'm going to have to deny the motion.
MS. DURRETT: Thank you, your Honor.
THE COURT: All right.
Thank you all. We will be adjourned.
(Proceedings were adjourned.)
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TRANSCRIBER'S CERTIFICATION
I, Judith M. Wolff, a Certified Realtime Reporter,
with offices in Atlanta, Georgia, do hereby certify:
That I transcribed the proceedings digitally recorded
on May 24, 2021, in the matter of USA vs. Maurice Fayne, aka
Arkansas Mo, Case No. 1:20-cr-00228-MHC;
That said audio recording of the proceedings were
reduced to typewritten form by me;
That "indiscernible audio" designations are the
result of technological limitations beyond my control;
And that the foregoing transcript is a true and
accurate record of the proceedings.
Date: October 28, 2021
s/ JUDITH M. WOLFF, CERTIFIED REALTIME REPORTER
Signature of Transcriber
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Case 1:20-cr-00228-MHC-JKL Document 254 Filed 10/28/21 Page 24 of 24File and source
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