Indictment - United States v. Maurice Fayne related docket

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U.S. District Court for the Northern District of Georgia · No. 1:20-cr-00228-MHC-JKL · Doc. 273 · 2022-06-30 · Docket on CourtListener

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The government's response to defendant Daniel Eric Jay's motion in limine (Doc. 269) and motion for production of PSRs of government witnesses (Doc. 271), filed June 30, 2022 as Document 273 in United States v. Daniel Eric Jay, No. 1:20-cr-00228-MHC-JKL, in the U.S. District Court for the Northern District of Georgia. The government agrees to keep racial epithets from the jury and states that it does not intend to introduce evidence of Jay's alleged involvement in a giant ruby scheme at trial, though it may raise it at sentencing under USSG § 1B1.3. Citing 18 U.S.C. § 2511(2)(d), it opposes excluding calls recorded by a participant without Jay's consent. It says it will file an ex parte motion under seal on disclosing parts of Maurice Fayne's PSR and will wait on the Court's direction, and it states that it plans to call Fayne to testify.

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IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 
ATLANTA DIVISION 
UNITED STATES OF AMERICA 
V. 
DANIEL ERIC JAY 
CRIMINAL INDICTMENT 
1:20-CR-228-MHC-JKL 
SECOND SUPERSEDING 
Government’s Response to Defendant’s Motion in Limine and 
Defendant’s Motion for Production of PSRs of Government Witnesses 
The United States of America hereby responds to Defendant Jay’s Motion in 
Limine (Doc. 269) and his Motion for Production of PSRs of Government 
Witnesses (Doc. 271), showing the Court as follows: 
1. Motion to exclude racial epithets uttered by Defendant Jay. 
As Defendant Jay notes in his Motion in Limine, the Rule 16 discovery 
includes emails, texts messages, and digital recordings in which Defendant Jay 
makes racist and anti-Semitic remarks. (See Doc. 269 at 2). Defendant Jay moves 
to exclude all such evidence on the grounds that it would “unduly prejudice 
[him] in the eyes of the jury.” (Id.). Accordingly, Defendant Jay asks the 
Government to (1) instruct its witnesses not to refer to any such racial epithets, 
and (2) redact all documents and recordings as needed to prevent the jury from 
being exposed to any such racial epithets. (Id. at 3). The Government believes 
that is a good suggestion and intends to do exactly that. 
 
 
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2. Motion to exclude allegations about Defendant Jay’s involvement in a 
“giant ruby” investment scheme. 
Defendant Jay moves to exclude all evidence concerning his participation in 
an uncharged scheme to defraud investors who purchased shares in a fictitious 
giant ruby. (Id.). The discovery shows that Defendant Jay was indeed involved in 
a scam involving a fictitious giant ruby.  
Although Rule 404(b) does not permit the government to admit evidence of 
other bad acts simply to prove a defendant’s bad character, it does permit such 
evidence to show intent, knowledge, plan, or absence of mistake. FED. R. EVID. 
404(b). Evidence is admissible under Rule 404(b) if (1) it is “relevant to an issue 
other than the defendant’s character” and (2) “the probative value of the 
evidence must not be substantially outweighed by its undue prejudice.” United 
States v. Jackson, 761 F.2d 1541, 1543 (11th Cir. 1985); see also United States v. 
LaSpesa, 956 F.2d 1027, 1036 (11th Cir. 1992) (holding that evidence of defendant’s 
involvement in other fraudulent schemes was admissible to show his intent to 
commit fraud when he engaged in the transactions charged in the indictment) 
“Extrinsic act evidence is especially relevant when the government has, as it 
[does] here, the burden to prove the defendant’s intent to commit the charged 
offense.” United States v. Hooshmand, 931 F.2d 725, 736 (11th Cir. 1991). 
Even though the Government believes that evidence of Defendant Jay’s 
involvement in the “giant ruby” scam would be admissible under Rule 404(b), 
the Government does not intend to introduce such evidence at Defendant Jay’s 
trial. If, however, Defendant Jay is convicted of any charges relating to the 
scheme to defraud investors in Fayne’s trucking company (Counts 1 through 4 of 
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the Second Superseding Indictment), the Government believes that evidence of 
Defendant Jay’s involvement in the “giant ruby” scam would be part of the 
relevant conduct for sentencing purposes under USSG § 1B1.3. 
3. Motion to exclude any emails, text messages or documents to which 
Defendant Jay was a party, which the government allegedly obtained in 
violation of the attorney-client privilege. 
Defendant Jay moves “to exclude any emails, text messages or documents 
which were [allegedly] seized in violation of the attorney-client privilege.” (Doc. 
269 at 5). He offers no details and no explanation as to why he thinks such 
documents might exist. 
The Government did not obtain any emails, text messages or documents in 
violation of the attorney-client privilege, and it does not intend to offer any such 
documents into evidence. 
4. Motion to exclude single-party recorded conversations made in violation of 
state laws. 
Defendant Jay states in his Motion in Limine that the discovery provided by 
the Government includes recorded telephone conversations between Defendant 
Jay and a Ponzi victim, which the victim recorded without Defendant Jay’s 
consent and without being asked to do so by the Government. (See id. at 6). 
Defendant Jay argues that the Government should not be allowed to play any 
such recordings for the jury because, “[w]hile single-party consent is allowed in 
many states including Georgia, it is not allowed in several states.” (Id.). 
 
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Defendant Jay’s argument is based entirely on his understanding of state law 
and ignores the controlling federal law. Under federal law, it is legal for a person 
“not acting under color of law to intercept a wire, oral, or electronic 
communication where such person is a party to the communication.” 18 U.S.C. 
§ 2511(2)(d); accord United States v. Turk, 526 F.2d 654, 657 (5th Cir. 1976) (stating 
that Ҥ 2511(2)(d) specifically exempts situations in which one party to the 
conversation is himself the interceptor”); United States v. Wright, 573 F.2d 681, 684 
(1st Cir. 1978) (“It is clear that the tapes were not illegal wiretaps since in every 
instance one party to the conversation consented to the tapes being made.”); see 
also United States v. White, 401 U.S. 745, 752 (1971) (stating that “one 
contemplating illegal activities must realize and risk that his companions may be 
reporting to the police”). 
Defendant Jay lived in Pennsylvania when the calls were recorded. “Even if 
Pennsylvania law was violated, that fact would not render the recordings 
inadmissible in a federal criminal trial.” United States v. Felton, 592 F. Supp. 172, 
193 (W.D. Pa. 1984), rev’d on other grounds, 753 F.2d 256, 276 (3d Cir. 1985). “So 
long as the information was lawfully obtained under federal law and met federal 
standards of reasonableness, it is admissible in federal court despite a violation 
of state law.” United States v. Armocida, 515 F.2d 49, 51-52 (3rd Cir. 1975). 
Furthermore, Defendant Jay does not allege that his telephone conversations 
were recorded “for the purpose of committing any criminal or tortious act in 
violation of the Constitution or laws of the United States or of any State,” which 
would make them inadmissible. See 18 U.S.C. § 2511(2)(d). 
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5. Renewed request for Brady material, and Motion for Production of PSRs of 
Government Witnesses. 
In his Motion in Limine, Defendant Jay “renews his request for any all Brady 
material.” (Doc. 269 at 6). The Government understands its obligations under 
Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), 
and the Jencks Act, 18 U.S.C. § 3500. 
The Government provided early Jencks Act disclosures with its original Rule 
16 discovery production, including all available 302s and MOIs. That is beyond 
what is required by law. See United States v. Mitrovic, 286 F.R.D. 683, 686 (N.D. 
Ga. 2012) (noting “that investigative interview summaries are excluded from 
Rule 16 production,” and that “the production of witness statements is governed 
by the Jencks Act, 18 U.S.C. § 3500, and Rule 26.2, Fed. R. Crim. P, which together 
provide that the Court may order production of a witness’s statement only ‘after 
[the] witness . . . has testified on direct examination’”); see also United States v. 
Jordan, 316 F.3d 1215, 1252 (11th Cir. 2003) (citing cases and holding that 
interview notes and any memoranda prepared from those notes “are not Jencks 
Act statements of the witness unless they are substantially verbatim and were 
contemporaneously recorded, or were signed or otherwise ratified by the 
witness”). 
On June 29, 2022, the Government provided defense counsel with the 
following transcripts: 
 2020_07_27 - status conference; 
 2020_08_14 - status conference; 
 Fayne’s bond revocation hearing; 
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 hearing on Fayne’s motion to reconsider bond; 
 Fayne’s guilty-plea hearing; 
 Fayne’s sentencing; and 
 Mike Sargent’s sentencing. 
On June 30, 2022, the Government provided defense counsel with the 
following additional documents concerning Fayne: 
 Fayne’s criminal history, updated June 29, 2022; and 
 FBI-302 of Fayne’s interview on 04-28-2022. 
Defendant Jay has also filed a Motion for Production of PSRs of Government 
Witnesses. (Doc. 271). Maurice Fayne, a/k/a Arkansas Mo, is expected to testify 
at trial on behalf of the Government. The Government intends to file an ex parte 
motion under seal, seeking permission to disclose to the defense all parts of 
Fayne’s PSR that are arguably covered by Brady, Giglio, or the Jencks Act. The 
Government will highlight in its ex parte motion which parts of Fayne’s PSR it 
believes should be disclosed. But before actually turning over any PSR material 
to the defense, the Government will wait on direction from the Court. 
Defendant Jay also asks the Government to produce two PSRs of his other 
convicted Co-Defendant, Mike Sargent—one pertaining to this case and one 
pertaining to Sargent’s 2003 bank fraud conviction in the Northern District of 
Texas. (Doc. 271 at 2 n.1). The Government does not plan to call Sargent as a 
witness at Defendant Jay’s trial. “[A] defendant may be entitled to a witness’s 
PSR if it is in the hands of the prosecutor as distinguished from the probation 
officer.” United States v. Ventura, 132 F.3d 44, *2 (10th Cir. 1997). The prosecution 
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team in the instant case does not have, and has never had, access to Sargent’s 
PSR from his 2003 case in the Northern District of Texas. 
“A presentence report . . . is not a statement made by the witness. Instead, it is 
a statement that a probation officer makes to aid the court in sentencing a 
defendant.” United States v. Jackson, 978 F.2d 903, 908 (5th Cir. 1992). “Every court 
has supervisory power over its own records and files.” Nixon v. Warner 
Communications, Inc., 435 U.S. 589, 598 (1978). “Control over these documents is a 
discretionary matter with the district court.” United States v. Gomez, 323 F.3d 
1305, 1307-08 (11th Cir. 2003). 
“[C]ourts have been very reluctant to give third parties access to the 
presentence investigation report prepared for some other individual or 
individuals.” United States Dep’t of Justice v. Julian, 486 U.S. 1, 12 (1988) (citations 
omitted). For example, the former Fifth Circuit held that “requiring disclosure of 
a presentence report is contrary to the public interest as it may adversely affect 
the sentencing court’s ability to obtain data on a confidential basis from the 
accused, and from sources independent of the accused, for use in the sentencing 
process.” United States v. Martinello, 556 F.2d 1215, 1216 (5th Cir. 1977). 
The Seventh Circuit has held that “[o]nly where a compelling, particularized 
need for disclosure is shown should the district court disclose the report; even 
then, however, the court should limit disclosure to those portions of the report 
which are directly relevant to the demonstrated need.” United States v. Corbitt, 
879 F.2d 224, 239 (7th Cir. 1989). In the Seventh Circuit’s view, a party to 
“pending or contemplated litigation” who requires access to a presentence report 
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“to impeach a witness, or to establish an affirmative proposition” would 
normally meet this requirement. Id. at 238-39. 
“In camera review by the trial court of a cooperating witness’s PSR to 
determine whether it contains any discoverable information protects the 
witness’s interest in confidentiality while preserving the defendant’s trial rights.” 
Ventura, 132 F.3d at *2; see also United States v. Wallace, 32 F.3d 921, 930 (5th Cir. 
1994) (holding, with respect to the defendants’ Brady request, that the district 
court “fulfilled its duty and afforded the defendants all the rights to which they 
were entitled” by conducting an in camera review of the PSI of a government 
witness/co-conspirator and determining that it need not be produced because it 
was not “favorable to the defense”). 
In case this Court wishes to conduct an in camera review of Sargent’s PSR 
from this case, the Government will provide it to the Court along with Fayne’s 
PSR when the Government files its ex parte motion. The Government will not 
disclose any material from Sargent’s PSR unless and until directed to do so by 
this Court. 
6. Duty not to call witnesses who are likely to commit perjury. 
Defendant Jay moves in limine “to exclude from the witness stand any 
witnesses whom the government could reasonably foresee or suspect of being 
likely to commit perjury.” (Doc. 269 at 9). Defendant Jay cites no authority in 
support of that sweeping proposition, and it does not appear to be in keeping 
with applicable law. 
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This Court’s Local Rules require all lawyers practicing before this Court (not 
just the Government’s lawyers, but all lawyers) to comply with the Georgia Rules 
of Professional Conduct contained in the Rules and Regulations of the State Bar 
of Georgia, one of which states that “[a] lawyer shall not knowingly . . . offer 
evidence that the lawyer knows to be false. . . . The maximum penalty for a 
violation of this Rule is disbarment.” Montgomery v. Georgia Power Co., No. 1:15-
CV-02980-SCJ, 2017 WL 5244175, at *6 n.14 (N.D. Ga. Feb. 28, 2017) (quoting Rule 
3.3 of the Georgia Rules of Professional Conduct); see also Comment (8) of Rule 
3.3 (“A lawyer’s knowledge that evidence is false . . . can be inferred from the 
circumstances.”). The Government has no intention of offering any evidence that 
it knows to be false. 
The Government plans to call Defendant Jay’s convicted co-defendant, 
Maurice Fayne, to testify at Defendant Jay’s trial. There is nothing improper or 
unusual about that. See, e.g., United States v. Dees, 131 F. App’x 170, 173 (11th Cir. 
2005) (affirming defendant’s conviction and noting that “the backbone of the 
government’s case against [defendant] was formed through the testimony of 
[defendant’s] convicted co-conspirators”). Defendant Jay’s counsel will have 
ample opportunity to impeach Fayne’s credibility on cross-examination and 
make appropriate arguments in his closing, based on Fayne’s prior criminal 
history, Fayne’s conviction in this case, and the compelled nature of Fayne’s 
testimony. “Nothing more [is] required.” United States v. Hozian, 622 F.2d 439, 
442 (9th Cir. 1980). The same goes for any unindicted coconspirators who may be 
called to testify. 
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Respectfully submitted, 
 
RYAN K. BUCHANAN 
United States Attorney 
/s/ JOHN RUSSELL PHILLIPS 
Assistant United States Attorney 
Georgia Bar No. 576335 
/s/ BERNITA B. MALLOY 
Assistant United States Attorney 
Georgia Bar No. 718905 
600 U.S. Courthouse 
75 Ted Turner Drive, SW 
Atlanta, GA 30303 
(404) 581 6000 
 
 
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CERTIFICATE OF SERVICE 
I hereby certify that, on June 30, 2022, I electronically filed the foregoing 
document with the Clerk of Court using the CM/ECF system. 
 
JOHN RUSSELL PHILLIPS 
ASSISTANT UNITED STATES ATTORNEY 
GEORGIA BAR NO. 576335 
 
 
 
600 U.S. Courthouse 
75 Ted Turner Drive, SW 
Atlanta, GA 30303 
(404) 581-6000 
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