Guilty Plea and Plea Agreement — United States v. Andre Lee Gaines (N.D. Ga.)

Record facts

U.S. District Court for the Northern District of Georgia · No. 1:21-cr-00206-JPB · Doc. 4-1 · 2021-06-17 · Docket on CourtListener

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Case 1:21-cr-00206-JPB Document4-1 Filed 06/17/21 Page1of21

FILED JIN N OPEN COURT
D.C. Atlanta

JUN 47 2021

JAMES N. HATTEN, Clerk

GUILTY PLEA and PLEA AGREEMENT 2/1) WME ype. Clerk

United States Attorney
Northern District of Georgia

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CRIMINAL NO. 1:21-CR-206

The United States Attorney for the Northern District of Georgia (“the
Government”) and Defendant Andre Lee Gaines enter into this plea agreement
as set forth below in Part IV pursuant to Rules 11(c)(1)(A) & (B) of the Federal
Rules of Criminal Procedure. Andre Lee Gaines, Defendant, having received a
copy of the above-numbered Information and having been arraigned, hereby

pleads GUILTY to the Information.

I. ADMISSION OF GUILT

1. The Defendant admits that he is pleading guilty because he is in fact guilty

of the crime charged in the Information.

Il. ACKNOWLEDGMENT & WAIVER OF RIGHTS

2. The Defendant understands that by pleading guilty, he is giving up the
right to plead not guilty and the right to be tried by a jury. At a trial, the
Defendant would have the right to an attorney, and if the Defendant could not
afford an attorney, the Court would appoint one to represent the Defendant at
trial and at every stage of the proceedings. During the trial, the Defendant would
be presumed innocent and the Government would have the burden of proving
him guilty beyond a reasonable doubt. The Defendant would have the right to

confront and cross-examine the witnesses against him. If the Defendant wished,
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he could testify on his own behalf and present evidence in his defense, and he
could subpoena witnesses to testify on his behalf. If, however, the Defendant did
not wish to testify, that fact could not be used against him, and the Government
could not compel him to incriminate himself. If the Defendant were found guilty
after a trial, he would have the right to appeal the conviction.

3. The Defendant understands that by pleading guilty, he is giving up all of
these rights and there will not be a trial of any kind.

4. By pleading guilty, the Defendant also gives up any and all rights to pursue
any affirmative defenses, Fourth Amendment or Fifth Amendment claims, and
other pretrial motions that have been filed or could have been filed.

5. The Defendant also understands that he ordinarily would have the right to
appeal his sentence and, under some circumstances, to attack the conviction and
sentence in post-conviction proceedings. By entering this Plea Agreement, the
Defendant may be waiving some or all of those rights to appeal and to
collaterally attack his conviction and sentence, as specified below.

6. Finally, the Defendant understands that, to plead guilty, he may have to
answer, under oath, questions posed to him by the Court concerning the rights
that he is giving up and the facts of this case, and the Defendant's answers, if
untruthful, may later be used against him in a prosecution for perjury or false

statements.

Il. ACKNOWLEDGMENT OF PENALTIES

7. The Defendant understands that, based on his plea of guilty, he will be

subject to the following maximum and mandatory minimum penalties:

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As to the sole charge in the Information

a. Maximum term of imprisonment: 5 years.

b. Mandatory minimum term of imprisonment: None.

c. Term of supervised release: 0 years to 3 years.

d. Maximum fine: $250,000.00, or twice the gain or twice the loss,
whichever is greatest, due and payable immediately.

e. Full restitution, due and payable immediately, to all victims of the
offense and relevant conduct.

f. Mandatory special assessment: $100.00, due and payable
immediately.

g. Forfeiture of any property, real or personal, which represents or is
traceable to the gross receipts obtained, directly or indirectly, as a
result of the offense.

8. The Defendant understands that, before imposing sentence in this case, the
Court will be required to consider, among other factors, the provisions of the
United States Sentencing Guidelines and that, under certain circumstances, the
Court has the discretion to depart from those Guidelines. The Defendant further
understands that the Court may impose a sentence up to and including the
statutory maximum as set forth in the above paragraph and that no one can

predict his exact sentence at this time.
9. REMOVAL FROM THE UNITED STATES: The Defendant recognizes that

pleading guilty may have consequences with respect to his immigration status if

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he is not a citizen of the United States. Under federal law, a broad range of
crimes are removable offenses, including the offense to which the Defendant is
pleading guilty. Indeed, because the Defendant is pleading guilty to this offense,
removal is presumptively mandatory. Removal and other immigration
consequences are the subject of a separate proceeding, however, and the
Defendant understands that no one, including his attorney or the District Court,
can predict to a certainty the effect of his conviction on his immigration status.
The Defendant nevertheless affirms that he wants to plead guilty regardless of
any immigration consequences that his plea may entail, even if the consequence

is his automatic removal from the United States.

IV. PLEA AGREEMENT

10. The Defendant, his counsel, and the Government, subject to approval by
the Court, have agreed upon a negotiated plea in this case, the terms of which are

as follows:

Dismissal of Case Number 1:20-CR-296

11. The Government agrees that, upon the entry of the Judgment and
Commitment Order, the indictment in case number 1:20-CR-296 still pending
against the Defendant shall be dismissed pursuant to Standing Order No. 07-04
of this Court and to Rule 48(a) of the Federal Rules of Criminal Procedure. The
Defendant understands that the Probation Office and the Court may still
consider the conduct underlying such dismissed counts in determining relevant
conduct under the Sentencing Guidelines and a reasonable sentence under Title

18, United States Code, Section 3553 (a).
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No Additional Charges

12. 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. The Defendant understands that this provision does

not bar prosecution by any other federal, state, or local jurisdiction.

Sentencing Guidelines Recommendations

13. Based upon the evidence currently known to the Government, the
Government agrees to make the following recommendations and/or to enter into
the following stipulations.

Base/Adjusted Offense Level

14. The Government agrees to recommend and the Defendant agrees that:

a. The applicable offense guideline is Section 2B1.1.

b. The Defendant not receive an adjustment pursuant to Section
2B1.1(b)(1) because the amount of loss resulting from the offense of
conviction is $6,500 or less.

Acceptance of Responsibility

15. The Government will recommend that the Defendant receive an offense
level adjustment for acceptance of responsibility, pursuant to Section 3E1.1, to
the maximum extent authorized by the guideline. However, the Government will
not be required to recommend acceptance of responsibility if, after entering this
Plea Agreement, the Defendant engages in conduct inconsistent with accepting
responsibility. Thus, by way of example only, should the Defendant falsely deny

or falsely attempt to minimize the Defendant's involvement in relevant offense

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conduct, give conflicting statements about the Defendant's involvement, fail to
pay the special assessment, fail to meet any of the obligations set forth in the
Financial Cooperation Provisions set forth below, or participate in additional
criminal conduct, including unlawful personal use of a controlled substance, the

Government will not be required to recommend acceptance of responsibility.

Right to Answer Questions, Correct Misstatements,
and Make Recommendations

16. The parties reserve the right to inform the Court and the Probation Office
of all facts and circumstances regarding the Defendant and this case, and to
respond to any questions from the Court and the Probation Office and to any
misstatements of fact or law. Except as expressly stated elsewhere in this Plea
Agreement, the parties also reserve the right to make recommendations
regarding application of the Sentencing Guidelines. The parties understand,
acknowledge, and agree that there are no agreements between the parties with

respect to any Sentencing Guidelines issues other than those specifically listed.

Right to Modify Recommendations

17. With regard to the Government's recommendation as to any specific
application of the Sentencing Guidelines as set forth elsewhere in this Plea
Agreement, the Defendant understands and agrees that, should the Government
obtain or receive additional evidence concerning the facts underlying any such
recommendation, the Government will bring that evidence to the attention of the
Court and the Probation Office. In addition, if the additional evidence is

sufficient to support a finding of a different application of the Guidelines, the

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Government will not be bound to make the recommendation set forth elsewhere
in this Plea Agreement, and the failure to do so will not constitute a violation of
this Plea Agreement.

Cooperation

General Requirements

18. The Defendant agrees to cooperate truthfully and completely with the
Government, including being debriefed and providing truthful testimony at any
proceeding resulting from or related to the Defendant's cooperation. The
Defendant agrees to so cooperate in any investigation or proceeding as requested
by the Government. The Defendant agrees that the Defendant's cooperation shall
include, but not be limited to:

a. producing all records, whether written, recorded, electronic, or
machine readable, in his actual or constructive possession, custody,
or control, of evidentiary value or requested by attorneys and agents
of the Government;

b. making himself available for interviews, not at the expense of the
Government if he is on bond, upon the request of attorneys and
agents of the Government;

c. responding fully and truthfully to all inquiries of the Government in
connection with any investigation or proceeding, without falsely
implicating any person or intentionally withholding any

information, subject to the penalties of making false statements
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(18 U.S.C. § 1001), obstruction of justice (18 U.S.C. § 1503) and
related offenses; and
d. when called upon to do so by the Government in connection with
any investigation or proceeding, testifying in grand jury, trial, and
other judicial proceedings, fully, truthfully, and under oath, subject
to the penalties of perjury (18 U.S.C. § 1621), making false statements
or declarations in grand jury or court proceedings (18 U.S.C. § 1623),
contempt (18 U.S.C. §§ 401 - 402), obstruction of justice
(18 U.S.C. § 1503), and related offenses.
The Defendant understands that the Government alone will determine what
forms of cooperation to request from the Defendant, and the Defendant agrees
that the Defendant will not engage in any investigation that is not specifically
authorized by the Government.

Section 1B1.8 Protection

19. Pursuant to Section 1B1.8 of the Sentencing Guidelines, the Government
agrees that any self-incriminating information that was previously unknown to
the Government and is provided to the Government by the Defendant in
connection with the Defendant's cooperation and as a result of this Plea
Agreement will not be used in determining the applicable sentencing guideline
range, although such information may be disclosed to the Probation Office and
the Court. The Government also agrees not to bring additional charges against
the Defendant, with the exception of charges resulting from or related to violent

criminal activity, based on any information provided by the Defendant in

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connection with cooperation that was not known to the Government prior to the
cooperation. However, if the Government determines that the Defendant has not
been completely truthful and candid in his cooperation with the Government, he
may be subject to prosecution for perjury, false statements, obstruction of justice,
and any other appropriate charge, and all information the Defendant has
provided may be used against the Defendant in such a prosecution. Furthermore,
should the Defendant withdraw his guilty plea in this case and proceed to trial,
the Government is free to use any statements and/or other information provided
by the Defendant, pursuant to the Defendant’s cooperation, as well as any
information derived therefrom, during any trial or other proceeding related to
the Government's prosecution of the Defendant for the offense(s) charged in the
above-numbered the Information.
Conditional Section 5K/Rule 35 Motion

20. The Government agrees to make the extent of the Defendant's cooperation
known to the sentencing court. In addition, if the cooperation is completed
before sentencing and the Government determines that such cooperation
qualifies as “substantial assistance” pursuant to Title 18, United States Code,
Section 3553(e) and/or Section 5K1.1 of the Sentencing Guidelines, the
Government will file a motion at sentencing recommending a downward
departure from the applicable guideline range. If the cooperation is completed
after sentencing and the Government determines that such cooperation qualifies
as “substantial assistance” pursuant to Rule 35(b) of the Federal Rules of

Criminal Procedure, the Government will file a motion for reduction of sentence.

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In either case, the Defendant understands that the determination as to whether
the Defendant has provided “substantial assistance” rests solely with the
Government. Good faith efforts by the Defendant that do not substantially assist
in the investigation or prosecution of another person who has committed a crime
will not result in either a motion for downward departure or a Rule 35 motion.
The Defendant also understands that, should the Government decide to file a
motion pursuant to this paragraph, the Government may recommend any
specific sentence, and the final decision as to what credit, if any, the Defendant
should receive for the Defendant's cooperation will be determined by the Court.
If the Defendant fails to cooperate truthfully and completely, or if the Defendant
engages in additional criminal conduct or other conduct inconsistent with
cooperation, the Defendant will not be entitled to any consideration whatsoever

pursuant to this paragraph.

Sentencing Recommendations

Specific Sentence Recommendation

21. Unless the Defendant engages in conduct inconsistent with accepting
responsibility, as described more fully in paragraph 15, the Government agrees
to recommend that the Defendant be sentenced at the low end of the adjusted
guideline range.
Fine--No Recommendation as to Amount

22. The Government agrees to make no specific recommendation as to the
amount of the fine to be imposed on the Defendant within the applicable

guideline range.

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Forfeiture

23. The Defendant acknowledges that each asset listed below is subject to
forfeiture pursuant to 21 U.S.C. § 982(a)(3) and agrees that he shall immediately
forfeit to the United States any property, real or personal, which represents or is
traceable to the gross receipts obtained, directly or indirectly, as a result of such
violation, including, but not limited to:

a. $177,828.46 in funds seized from JPMorgan Chase account number

XXXXX6500, held in the name of Gaines Reservation and Travel.

b. $9,314.28 in funds seized from PNC Bank account number XXXXXX5124,

held in the name of Gaines Reservation and Travel.

24. The Defendant waives and abandons all right, title, and interest in the
property listed above (hereinafter, collectively, “Subject Property”) and agrees to
the administrative or judicial forfeiture of the Subject Property. In addition, the
Defendant waives and abandons his interest in any other property that may have
been seized in connection with this case. The Defendant agrees to the
administrative or judicial forfeiture or the abandonment of any seized property.

25. The Defendant agrees to take all steps requested by the United States to
facilitate transfer of title of the Subject Property, including providing and
endorsing title certificates, or causing others to do the same where third parties
hold nominal title on the Defendant’s behalf, to a person designated by the
United States. The Defendant agrees to take all steps necessary to ensure that the
Subject Property is not hidden, sold, wasted, destroyed, or otherwise made

unavailable for forfeiture. The Defendant agrees not to file any claim, answer, or

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petition for remission or restitution in any administrative or judicial proceeding
pertaining to the Subject Property, and if such a document has already been filed,
the Defendant hereby withdraws that filing.

26. The Defendant agrees to hold the United States and its agents and
employees harmless from any claims made in connection with the seizure,
forfeiture, or disposal of property connected to this case. The Defendant
acknowledges that the United States will dispose of any seized property, and
that such disposal may include, but is not limited to, the sale, release, or
destruction of any seized property, including the Subject Property. The
Defendant agrees to waive any and all constitutional, statutory, and equitable
challenges in any manner (including direct appeal, a Section 2255 petition,
habeas corpus, or any other means) to the seizure, forfeiture, and disposal of any
property seized in this case, including the Subject Property, on any grounds.

27. The Defendant acknowledges that he is not entitled to use forfeited assets,
including the Subject Property, to satisfy any fine, restitution, cost of
imprisonment, tax obligations, or any other penalty the Court may impose upon
the Defendant in addition to forfeiture. However, the United States Attorney’s
Office for the Northern District of Georgia will recommend to the Chief of the
Money Laundering and Asset Recovery Section (MLARS) of the United States
Department of Justice that property forfeited in this case, or any related civil
forfeiture case, be used to compensate the victim(s) specified in the restitution
order, provided that the Government determines that the requirements for

restoration as set forth in MLARS Asset Forfeiture Policy Manual (2019), Section

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I1.B.3, are met. The Defendant understands that the decision on any petition for
remission or request for restoration is not within the ultimate control of the
United States Attorney’s Office, and that final approval for any restoration
decisions is retained by MLARS.

28. The Defendant consents to the Court's entry of a preliminary order of
forfeiture against the Subject Property, which will be final as to him, a part of his
sentence, and incorporated into the judgment against him.

Restitution

29. The Defendant agrees to pay $806,710, plus applicable interest, to the
Clerk of Court for distribution to all victims of the offense to which he is
pleading guilty and all relevant conduct, including, but not limited to, any
counts dismissed as a result of this Plea Agreement:

$24,201.30 Small Business Administration
$782,508.70 Cross River Bank

30. The Defendant also agrees to cooperate fully in the investigation of the
amount of restitution, the identification of victims, and the recovery of restitution

for victims.

Financial Cooperation Provisions

Special Assessment

31. The Defendant understands that the Court will order him to pay a special

assessment in the amount of $100.

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Fine/Restitution - Terms of Payment

32. The Defendant agrees to pay any fine and/or restitution, plus applicable
interest, imposed by the Court to the Clerk of Court for eventual disbursement to
the appropriate account and/or victim(s). The Defendant also agrees that the full
fine and/or restitution amount shall be considered due and payable
immediately. If the Defendant cannot pay the full amount immediately and is
placed in custody or under the supervision of the Probation Office at any time,
he agrees that the custodial agency and the Probation Office will have the
authority to establish payment schedules to ensure payment of the fine and/or
restitution. The Defendant understands that this payment schedule represents a
minimum obligation and that, should the Defendant's financial situation
establish that he is able to pay more toward the fine and/or restitution, the
Government is entitled to pursue other sources of recovery of the fine and/or
restitution. The Defendant further agrees to cooperate fully in efforts to collect
the fine and/or restitution obligation by any legal means the Government deems
appropriate. Finally, the Defendant and his counsel agree that the Government
may contact the Defendant regarding the collection of any fine and/or restitution
without notifying and outside the presence of his counsel.

Financial Disclosure

33. The Defendant agrees that the Defendant will not sell, hide, waste,
encumber, destroy, or otherwise devalue any such asset worth more than $500
before sentencing, without the prior approval of the Government. The Defendant

understands and agrees that the Defendant's failure to comply with this

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provision of the Plea Agreement should result in the Defendant receiving no
credit for acceptance of responsibility.

34. The Defendant agrees to cooperate fully in the investigation of the amount
of forfeiture, restitution, and fine; the identification of funds and assets in which
he has any legal or equitable interest to be applied toward forfeiture, restitution,
and/or fine; and the prompt payment of restitution or a fine.

35. The Defendant's cooperation obligations include: (A) fully and truthfully
completing the Department of Justice’s Financial Statement of Debtor form, and
any addenda to said form deemed necessary by the Government, within ten days
of the change of plea hearing; (B) submitting to a financial deposition or
interview (should the Government deem it necessary) prior to sentencing
regarding the subject matter of said form; (C) providing any documentation
within his possession or control requested by the Government regarding his
financial condition and that of his household; (D) fully and truthfully answering
all questions regarding his past and present financial condition and that of his
household in such interview(s); and (E) providing a waiver of his privacy
protections to permit the Government to access his credit report and tax
information held by the Internal Revenue Service.

36. So long as the Defendant is completely truthful, the Government agrees
that anything related by the Defendant during his financial interview or
deposition or in the financial forms described above cannot and will not be used
against him in the Government's criminal prosecution. However, the

Government may use the Defendant's statements to identify and to execute upon

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assets to be applied to the fine and/or restitution in this case. Further, the
Government is completely free to pursue any and all investigative leads derived
in any way from the interview(s)/deposition(s)/ financial forms, which could
result in the acquisition of evidence admissible against the Defendant in
subsequent proceedings. If the Defendant subsequently takes a position in any
legal proceeding that is inconsistent with the

interview(s) / deposition(s) / financial forms-whether in pleadings, oral argument,
witness testimony, documentary evidence, questioning of witnesses, or any other
manner-the Government may use the Defendant's

interview(s) /deposition(s) /financial forms, and all evidence obtained directly or
indirectly therefrom, in any responsive pleading and argument and for cross-
examination, impeachment, or rebuttal evidence. Further, the Government may
also use the Defendant's interview(s)/deposition(s) / financial forms to respond
to arguments made or issues raised sua sponte by the Magistrate or District

Court.

Recommendations/Stipulations Non-binding

37. The Defendant understands and agrees that the recommendations of the
Government incorporated within this Plea Agreement, as well as any
stipulations of fact or guideline computations incorporated within this Plea
Agreement or otherwise discussed between the parties, are not binding on the
Court and that the Court's failure to accept one or more of the recommendations,
stipulations, and/or guideline computations will not constitute grounds to

withdraw his guilty plea or to claim a breach of this Plea Agreement.

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Limited Waiver of Appeal

38. 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 post-conviction proceeding (including, but not limited to,
motions filed pursuant to 28 U.S.C. § 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. 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.

Miscellaneous Waivers

FOIA/Privacy Act Waiver

39. The Defendant hereby waives all rights, whether asserted directly or by a
representative, to request or receive from any department or agency of the
United States any records pertaining to the investigation or prosecution of this
case, including, without limitation, any records that may be sought under the
Freedom of Information Act, Title 5, United States Code, Section 552, or the

Privacy Act of 1974, Title 5, United States Code, Section 552a.

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No Other Agreements

40. There are no other agreements, promises, representations, or

understandings between the Defendant and the Government.

Ee AA Court this ly As or of Yume ROO |

7x LA i s Attorney) SIGNATURE 2 KW

Brian Mendelsohn Andre Lee Gaines

BLOC,

SIGNATURE (Assistant US. Attorney)
Tal Chaiken

At hl

SIGNATURE (Assistant U.S. Attorney)
Nathan P. Kitchens

_ s/f /.

SIGNATURE (Approving Official)
Stephen H. McClain

DANIEL S. KAHN (ACTING CHIEF, FRAUD SECTION)

ye Wleore
SIGNATURE (Trial Attorney)
Babasijibomi Moore

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I have read the Information against me and have discussed it with my
attorney. I understand the charges and the elements of each charge that the
Government would have to prove to convict me at a trial. I have read the
foregoing Plea Agreement and have carefully reviewed every part of it with my
attorney. I understand the terms and conditions contained in the Plea
Agreement, and I voluntarily agree to them. I also have discussed with my
attorney the rights I may have to appeal or challenge my conviction and
sentence, and I understand that the appeal waiver contained in the Plea
Agreement will prevent me, with the narrow exceptions stated, from appealing
my conviction and sentence or challenging my conviction and sentence in any
post-conviction proceeding. No one has threatened or forced me to plead guilty,
and no promises or inducements have been made to me other than those
discussed in the Plea Agreement. The discussions between my attorney and the
Government toward reaching a negotiated plea in this case took place with my
permission. I am fully satisfied with the representation provided to me by my

attorney in this case.

nde tee Kanes L/ (1/ab2\

SIGNATURE (Defendant)
Andre Lee Gaines

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Iam Andre Lee Gaines’s lawyer. I have carefully reviewed the charges and
the Plea Agreement with my client. To my knowledge, my client is making an
informed and voluntary decision to plead guilty and to enter into the Plea

Agreement.

qe AM ¢,/ 13/2084

SIGNATURE (Defendant's Attorney) DATE
Brian Mendelsohn

Brian Mendelsohn Andre Lee Gaines
Federal Defender Program, Inc.

101 Marietta Street, N.W.

Suite 1500

Atlanta, GA 30303

(404) 688-7530

KOL53 (State Bar of Georgia Number

Filed in Open Court
This ___ day of 20.
By

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U.S. DEPARTMENT OF JUSTICE
Statement of Special Assessment Account
This statement reflects your special assessment only. There may be other
penalties imposed at sentencing.

ACCOUNT INFORMATION
CRIMINAL ACTION NO.: | 1:21-CR-206
DEFENDANT’S NAME: ANDRE LEE GAINES
PAY THIS AMOUNT: $100
Instructions:

1. Payment must be made by certified check or money order payable to:
Clerk of Court, U.S. District Court
*personal checks will not be accepted*
2. Payment must be made to the clerk’s office by the day of sentencing.
3. Payment should be sent or hand delivered to:

Clerk, U.S. District Court
2211 U.S. Courthouse

75 Ted Turner Drive SW
Atlanta, Georgia 30303
(Do Not Send Cash)

4. Include the defendant's name on certified check or money order.

gl

Enclose this coupon to insure proper and prompt application of payment.

6. Provide proof of payment to the above-signed AUSA within 30 days of the

guilty plea.

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