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Government’s Trial Brief — United States v. Frazier (Dkt. 167, N.D. Ala.)

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The government's trial brief in United States v. Anthony Lamon Frazier and Frederick Andre Spencer, Case No. 1:21-cr-371-CLM-JHE, in the U.S. District Court for the Northern District of Alabama, filed February 9, 2024 as Document 167 by Assistant U.S. Attorney Allison J. Garnett. It states that in January 2018 ATF agents and the Talladega County Drug Task Force began investigating drug trafficking networks in Talladega County, and that the investigation pointed to people working with and for Frazier in a drug trafficking and money laundering ring, with the IRS joining in 2020. The brief says Frazier was a Talladega County Tax Assessor who also ran side businesses, including a purported used car dealership called FF Autos.

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Filed February 9, 2024 in Anthony Lamon Frazier; one of 1 filings from this case.

Record facts

Court	U.S. District Court for the Northern District of Alabama
Filed	2024-02-09

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“Government’s Trial Brief — United States v. Frazier (Dkt. 167, N.D. Ala.).” U.S. District Court for the Northern District of Alabama, No. 1:21-cr-00371, Doc. 167, filed 2024-02-09. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/us-v-anthony-lamon-frazier/2024-02-09-government-s-trial-brief-dkt-167/, SHA-256 aa0b6654b721e273f70a52e1b003e5e873389eed4409608e4d820642f04bcaaa.

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Case 1:21-cr-00371-CLM-JHE Document 167 Filed 02/09/24 Page 1 of 26 FILED
2024 Feb-09 PM 08:16
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION

UNITED STATES OF AMERICA )
)
v. )
)
ANTHONY LAMON FRAZIER, ) Case No. 1:21-cr-371-CLM-JHE
also known as “Tony” )
and )
FREDERICK ANDRE SPENCER )

GOVERNMENT’S TRIAL BRIEF

Comes now the United States, by and through its United States Attorney, and

respectfully submits this Trial Brief to aid the Court in presiding over the upcoming

trial of United States v. Anthony Frazier, et.al.

I. Underlying Facts

In January 2018, agents with the Bureau of Alcohol, Tobacco, and Firearms

(ATF), in coordination with the Talladega County Drug Task Force (TCDTF),

began an investigation into various drug trafficking networks in Talladega County.

This investigation ultimately revealed that several individuals were working with

and for Anthony Lamon Frazier as part of a drug trafficking and money laundering

ring. The Internal Revenue Service (IRS) joined with ATF in 2020 to assist with

the financial investigation.

Case 1:21-cr-00371-CLM-JHE Document 167 Filed 02/09/24 Page 2 of 26

Frazier was a Talladega County Tax Assessor during the period of

investigation, but he was also engaged in several money-making enterprises on the

“side,” which constituted the bulk of his income for the years of investigation and

are detailed below. He purported to own “FF Autos,” a used car dealership which

only has a single sign and a very small grassy area at its physical location. It

appears that any car sales Frazier may have engaged in likely took place at and

through “Scott and Sons,” a different car repair shop in Talladega operated by

Clevious Porter. Frazier also purported to own “Frazier Investments,” which does

business as “FF Autos” among other endeavors. He was also the sole owner of the

business bank account for “Head of Game,” a purported sports agency discussed in

further detail below.

In 2019, Frazier delivered methamphetamine to a cooperating source during

a controlled purchase conducted by ATF. Frazier was federally indicted in

September 2020, and convicted at trial in November 2020, on a single count of

Possession with Intent to Distribute Methamphetamine. He is currently serving a

ten-year federal sentence in Talladega FCI. Around the time of his indictment, the

United States seized two bank accounts connected to Frazier and believed to be

used in laundering drug proceeds for Frazier and his co-conspirators. These PNC

bank accounts were in the names of “Frazier Investments” and “Head of Game

Case 1:21-cr-00371-CLM-JHE Document 167 Filed 02/09/24 Page 3 of 26

Management,” and Frazier maintained signatory authority on both accounts.

Contemporaneous with the beginning of this money laundering activity,

Frazier and Fred Spencer, were engaged in fraudulently obtaining funds from a

soon-to-be professional athlete, Q.W., under false pretenses.

The victim, Q.W., met Fred Spencer when he was a freshman in high school.

Spencer is ten years older than Q.W. and functioned as a parental figure for Q.W.

when his mother died in high school. Q.W. reconnected with Spencer in his junior

year of college, as he prepared to declare for the NFL Draft and was going through

the process of screening various sports agencies. During this time, Q.W. decided

that he wanted to create his own sports agency and informed Spencer of his plan.

Prior to the 2018 National Championship game, he told Spencer that he would

need someone to help with marketing exposure and that he wanted to be signed to

himself.

Q.W. screened several sporting agencies, but Young Money (Lil’ Wayne’s

agency) was the only agency agreeable to his terms. He signed with Young Money

and immediately began the process of starting his own agency, under the name

“Head of Game” or “HOG.” At the time of his signing, Q.W. was 19. Around this

time, Spencer introduced Q.W. to Kelvin Dark, who Q.W. knew as “KDigga.”

Q.W. thought that having Dark assist with marketing would be helpful, since Dark

Case 1:21-cr-00371-CLM-JHE Document 167 Filed 02/09/24 Page 4 of 26

was a rapper with connections in the music industry. When Q.W. met with DARK,

he pitched the name “Head of My Time,” as he was 19 and already creating his

own agency. However, Dark was already making use of the “HOG” moniker and

Q.W. decided that it would be good to associate with that name.

On November 27, 2018, Frazier opened a bank account under the name

“Head of Game,” for which he retained sole signatory authority. One night in late

November or early December 2018, Q.W., Dark, and Spencer went out to dinner in

Atlanta to discuss the plan for HOG. At dinner, Dark provided Q.W. with a sheet

of paper that contained handwritten details of the HOG bank account. Dark told

Q.W. that this was their (“HOG’s”) bank account. The paper contained the

handwritten names of all three individuals and handwritten bank account

information including an account number. As part of their representation, Young

Money had created a line of credit for Q.W., who was given a $1 million advance

to cover personal expenses prior to signing an NFL contract. As a result of the

conversation with Dark and Spencer, and their representations to him about how

they would create and market a sports agency, Q.W. wired $500,000 of his

advance to the HOG account on January 15, 2019, and the remaining $500,000 to

his personal bank account. At the time of this wire, Q.W. did not know Frazier. On

Case 1:21-cr-00371-CLM-JHE Document 167 Filed 02/09/24 Page 5 of 26

January 16, 2019, Frazier wired $214,825 of Q.W.’s money from the “Head of

Game” account to an account held by Charleen Porter, Frederick Spencer’s mother.

Initially, the first month of operations went well from Q.W.’s perspective.

He was sent sample merchandise for the agency, he observed marketing on social

media outlets, and partnered with a Disney star for a public service announcement

(PSA) on bullying. Q.W. did voiceover work for this PSA, but never saw it air on

television as promised. At the time, Spencer was allegedly working on securing

commercial space for HOG in Atlanta. Things changed when Q.W. moved back to

Atlanta from California, which provided him with a first-hand perspective of daily

operations. At that time, he discovered that the merchandise being mass-produced

was of much lower quality than what he had been sent.

At the same time, Spencer and his team were in the process of selecting an

agent for the sports agency. It was at this time that Q.W. met Anthony Frazier. He

had a business dinner with Frazier, a marketing agent, a football agent, Spencer,

and Dark. Frazier had not yet been hired to be the agent for HOG and was still in

school retaining credentials to be a sports agent. Frazier was ultimately hired as the

second football agent. Q.W. understood Dark and Frazier to be cousins. After that

dinner, HOG only signed one player, “D.J.”. Q.W. was growing frustrated, as he,

at that point, did not believe he was receiving a return on his investment and was

Case 1:21-cr-00371-CLM-JHE Document 167 Filed 02/09/24 Page 6 of 26

losing money. Although Spencer and Dark told Q.W. that they had a realtor in

Atlanta looking for commercial real estate, he saw no evidence that anyone was

actually securing real property for HOG.

Q.W. logged in using Spencer’s information a few times to monitor the

account activity for the HOG bank account in January and February 2019. In July

2019, Dark was arrested on drug trafficking charges in Georgia, and Q.W. told his

agent at Young Money that he wanted to be removed from all HOG social media

accounts and to disassociate from Spencer and his friends. Spencer attempted to

reach out to Q.W. a few times after Dark’s arrest, but Q.W. did not respond.

Two days prior to Dark’s arrest, Q.W. had spoken with Spencer and told him

he learned that HOG’s sole signee, “D.J.”, was about to be cut from his football

team. Spencer reassured him that things were fine and said he was about to sign

someone else. Again, Q.W. did not have contact with Spencer after Dark’s arrest.

Frazier called Q.W. on Dark’s behalf in July or August 2019 to apologize.

When Spencer was contacted by IRS agents during the course of this

investigation, Spencer told agents that Q.W. gave him the money from HOG to

start a night club. However, Q.W. asserts that he never told Spencer to use the

money he transferred to the HOG account for a night club and was explicit that his

intention for the money was that it be used to launch HOG, the sports agency.

Case 1:21-cr-00371-CLM-JHE Document 167 Filed 02/09/24 Page 7 of 26

According to Q.W., Spencer and Dark did not have an official salary that was

discussed, but that HOG was used to fund any business expenses they might have.

Q.W. did not know that Frazier had sole signatory authority on the HOG bank

account.

In July 2019, Frazier used a portion of Victim Q.W.’s money to purchase

property in Atlanta, Georgia, wiring the funds from the Head of Game account to

the seller to effectuate the purchase. Frazier then sold the property, initiating a wire

transfer on August 27, 2019, for the proceeds from that sale, not into the Head of

Game account, but instead into the Frazier Investments account.

On January 14, 2019, Charleen Porter opened a bank account at Iberia bank

for “Mom & Son’s Towing.” On January 16, 2019, Anthony Frazier wired

$214,825 of Q.W.’s money to that Mom & Son’s bank account. Victim Q.W. did

not authorize this transfer or even know that it had taken place. According to the

Alabama Secretary of State’s website, Porter is the registered agent, director, and

incorporator of Mom & Son’s Towing. Over the next year, Porter made

withdrawals on behalf of herself and Spencer, and used the account to pay for

personal expenses. These withdrawals were not consistent with regular payroll or

legitimate business expenses. Having depleted the majority of the funds in the

Iberia account by May 2020, Porter closed the Iberia account and used the

Case 1:21-cr-00371-CLM-JHE Document 167 Filed 02/09/24 Page 8 of 26

remaining $27,000 in the account to open a new business bank account for Mom &

Son’s Towing at Cadence Bank on May 5, 2020. Porter and Spencer jointly held

the account and were both signatory authorities for the account.

On June 17, 2020, Spencer1 caused a loan application to be submitted to

Kabbage, Inc. under the Paycheck Protection Program (a federal program

providing relief for businesses impacted by the COVID-19 pandemic) for Mom

and Son’s Towing, making certain representations regarding the business and its

expenses. Kabbage, Inc., is a lender who works with the Small Business

Administration to finance loans generated under the PPP. In the application, Porter

was listed as the 100% owner and CEO of Mom and Son’s Towing. Spencer

further claimed that the loan would be utilized the fund payroll, pay utilities, and

pay the lease and mortgage interest for the business. Spencer listed monthly payroll

of $34,472 and claimed that Mom & Son’s had five employees.

As supporting documentation for his loan application, Spencer submitted a

copy of a 2019 Schedule C. Spencer was listed as the sole proprietor on the copy of

the Schedule C, which reported gross receipts on line 1 of $866,412, and wages on

line 26 of $396,000. Spencer also attached a copy of a Form W3 (Transmittal of

1 Although the application purported to have Porter’s signature on it, Spencer has recently admitted that he forged
her signature on the paperwork and submitted the application himself.

Case 1:21-cr-00371-CLM-JHE Document 167 Filed 02/09/24 Page 9 of 26

Wage and Tax Statements) as supporting documentation to support the claims of

monthly wages reported on the application. The wages listed on line 1 of that Form

W3 were $396,000. Spencer submitted Porter’s driver’s license and a copy of a

voided check for the Mom & Son’s Towing business account to serve as Porter’s

identification as the borrower. As discussed above, an applicant is required to

initial certain certifications on the application regarding the veracity of the

information contained therein, and the initials “CP” were signed on those

certifications in the application. As a result of the statements provided on the loan

application, Mom & Son’s Towing received a loan disbursement in the amount of

$86,178.

Spencer’s representations on the business’ loan application are not supported

by bank records. The gross deposits into the business bank account for 2019 were

approximately $244,338.98. Of that amount, $214,825 represented Victim Q.W.’s

money that Frazier wired from the HOG bank account, on which Frazier was the

sole signatory. This is far less than the gross receipts amount claimed on Spencer’s

loan application. Furthermore, the total withdrawals from the business bank

account in 2019 were approximately $230,443.67. However, in the loan

application, Spencer claimed to have paid out wages of $396,000, a number far

greater than the total withdrawals for the account in that year. Other

Case 1:21-cr-00371-CLM-JHE Document 167 Filed 02/09/24 Page 10 of 26

inconsistencies were also identified. For example, the inconsistent patterns of

credits made it impossible to identify monthly payroll. Spencer sporadically

received $33,000 over the course of 2019 from the business checking account;

Porter made $87,202.94 of counter withdrawals. None of the payments out of the

account resembled regular monthly payroll payments. The majority of the

remaining withdrawals were spent on personal living expenses such as various

retail purchases, grocery purchases, ATM withdrawals, and car expenses.

On June 19, 2020, Kabbage, Inc. disbursed a loan payment of $86,178,

which was wired to the Cadence bank account for Mom & Son’s Towing, jointly

held by Spencer and Porter. This loan was subsequently used to pay for Spencer

and Porter’s personal expenses, and not for the purposes designated on their loan

application.

On June 22, 2020, Spencer opened a new business bank account for Direct

Playa, Inc., and on that same day, caused $5,000 to be wired from the Cadence

Mom and Son’s account to the Direct Playa, Inc. account, for which he was the

sole signatory authority. Two days later, on June 24, 2020, Spencer filed a PPP

loan application with Kabbage, Inc. for Direct Playa’s purported business. As part

of his application, he submitted supporting tax documentation, including a

Schedule C and Form W3 reporting gross receipts of $704,765, and wages paid out

Case 1:21-cr-00371-CLM-JHE Document 167 Filed 02/09/24 Page 11 of 26

in the amount of $315,000 for tax year 2019. There were no deposits or

withdrawals in the business bank account in 2019, which did not exist until two

days before the application was filed. Spencer initialed and signed the paperwork

for the loan application in the same way as discussed with the prior loan and

attached a copy of his driver’s license and a voided check for Direct Playa’s bank

account as his identification. As a result of Spencer’s fraudulent representations,

Kabbage, Inc. paid out a loan disbursement of $78,248.

In addition to the above criminal activity, Frazier filed false tax returns for

tax years 2017, 2018, and 2019. These returns materially understated Frazier’s

total income for these years, resulting in a lower tax due and owing than would

otherwise have been generated. Specifically, Frazier failed to report the fraud and

money laundering proceeds from the activities described above on his tax returns,

as is required by law.

II. Summary of Offenses2

A. Money Laundering

Counts One through Twenty-Three charge Defendant Frazier with money

2 Of note, there are five counts charged in the Indictment that will not be before the jury at trial. Frederick Spencer
has indicated his intention to plead guilty to Counts 30, 33, and 34 on February 12, 2024, and Charleen Spencer has
entered a pre-trial diversion agreement as to Counts 30, 31, and 32. Although the Government will offer evidence of
those offenses at trial as part of its case-in-chief as to Count 28, the Government will not summarize them here.

Case 1:21-cr-00371-CLM-JHE Document 167 Filed 02/09/24 Page 12 of 26

laundering, in violation of Title 18, United States Code, Sections 1956(a)(1)(B)(i)

and (a)(1)(B)(ii). The Government must prove (1) the Defendant knowingly

conducted or tried to conduct financial transactions; (2) the Defendant knew that

the money or property involved in the transaction were the proceeds of some kind

of unlawful activity; (3) money or property did come from an unlawful activity,

specifically distribution and possession with intent to distribute controlled

substances, and attempt and conspiracy to do the same; and (4) the Defendant knew

that the transaction was designed, in whole or in part, to conceal or disguise the

nature, location, source, ownership, or the control of the proceeds, or

(4) the Defendant participated in the transaction to avoid a transaction-

reporting requirement under state or Federal law.

Specifically, Defendant Frazier is charged with two separate theories of

money laundering—first, that he made cash deposits and obtained postal money

orders for purported automobile sales that did not occur, and placed those proceeds

into business bank accounts, all the while knowing that the money was in fact

proceeds of drug trafficking. Second, Defendant Frazier is charged with making

these deposits in an attempt to avoid reporting requirements—in other words,

laundering the money such that it avoided detection.

Defendant Frazier is also charged with money laundering under 18 U.S.C. §

Case 1:21-cr-00371-CLM-JHE Document 167 Filed 02/09/24 Page 13 of 26

1957 in Count 29, which alleges that he took money he received from Q.W. for

purposes of starting a sports agency, and instead used it to purchase property and

then caused funds from the sale of that property to be deposited into his own bank

account for his own personal use.

B. Structuring

Counts Twenty-Four through Twenty-Seven charge Defendant Frazier with

money laundering, in violation of Title 31, United States Code, Sections 5324(a)(3)

and (d)(2). There two separate reporting requirements at issue in these charges—the

$10,000 threshold amount for domestic financial institutions such as banks, and the

$3,000 threshold amount for postal money orders. Frazier is charged with structuring

to evade both, as the evidence will show that he traveled to banks and post offices

around the Talladega/Lincoln area, often within days of each other, depositing

amounts less than $10,000 in an effort to avoid generating a report.

C. Conspiracy to Commit Wire Fraud

Count Twenty-Eight of the Superseding Indictment charges both Defendants

with conspiracy to commit wire fraud. The Government must prove 1) a conspiracy

to commit the offense 2) knowledge of the conspiracy; and 3) that Defendant

knowingly joined the conspiracy. United States v. Feldman, 931 F.3d 1245, 1257

(11th Cir. 2019) (citing United States v. Gonzalez, 834 F.3d 1206, 1220 (11th Cir.

Case 1:21-cr-00371-CLM-JHE Document 167 Filed 02/09/24 Page 14 of 26

2016)). There is no overt act requirement in a conspiracy charged pursuant to 18

U.S.C. § 1349. Id. at 1258. Specifically, the Government alleges that the Defendants

joined in a conspiracy to defraud Q.W. by inducing him to wire $500,000 to an

account held by Frazier, claiming that they would start a sports agency on his behalf.

In fact, Frazier and Spencer used these funds to personally enrich themselves in

several ways. Frazier used the funds to “flush out” his drug proceeds and legitimize

his businesses, to pay down credit card debt, and for various other personal items.

Spencer used the funds for personal items and to substantiate business bank accounts

for the purpose of soliciting PPP loans for those businesses. Spencer ultimately

obtained over $150,000 in PPP loans for purported businesses, whose only major

source of income or deposits were money stolen from Q.W.

D. Tax Fraud

Finally, Defendant Frazier is charged with three counts of 26 U.S.C. §

7206(1), Filing a False Tax Return. The Government must prove that 1) the

Defendant made or caused to be made a tax return for the years charged, 2) the

returns were filed under penalty of perjury, 3) that when the Defendant made the

false return, he knew it contained false material information, and 4) when he did so,

he intentionally violated a known legal duty. Specifically, Frazier underreported his

income for the years charged in the Indictment, in that he failed to report the

Case 1:21-cr-00371-CLM-JHE Document 167 Filed 02/09/24 Page 15 of 26

proceeds of his drug trafficking and the proceeds of money received from Q.W.

Because he failed to report his income, his tax due and owing was substantially lower

than it otherwise would have been, resulting in a materially false return.

III. Proof of Conduct

A. Money Laundering Evidence of Specified Unlawful Activity

As further discussed in the Government’s Rule 404(b) notice, the Government

intends to use evidence of Defendant Frazier’s prior drug trafficking conviction in

2020 as part of its case-in-chief to prove the requisite specified unlawful activity for

the charged money laundering counts. This conduct is contemporaneous with the

charged money laundering activity and is intrinsic to the government’s case. The

Government will also offer testimony regarding undercover and surveillance

operations contemporaneous with the events in the Indictment to demonstrate

Frazier’s movements and operations in the drug trafficking and money laundering

world.

B. Defendant’s Prior Statements

The Government intends to offer prior statements by Defendant Spencer as to

the intended use for the money he obtained from Q.W. Specifically, in a consensual

interview with IRS agent Lisa Fontanette, Spencer stated that Q.W. had given him

the money to purchase a night club in Atlanta. The Government expects that Q.W.

Case 1:21-cr-00371-CLM-JHE Document 167 Filed 02/09/24 Page 16 of 26

and the records introduced will directly refute this claim, and that Spencer’s

untruthful statements to law enforcement about the purpose for the wire transfer are

evidence of his guilt.

C. IRS Records and Witnesses

The Government will introduce a number of relevant IRS records, including

tax returns and transcripts, as self-authenticating certified copies of public records,

pursuant to Federal Rule of Evidence 902. While these documents are self-

authenticating, the Government will use an IRS Service Center witness to briefly

explain the contents of the records to the jury. The Service Center witness will

primarily speak to the maintenance of records and explain the mechanics of different

documents introduced, and will not be providing expert testimony. These documents

are also admissible as exceptions to hearsay under FRE 803(6), (8), and (10). The

Government will redact these returns in compliance with Court requirements and

privacy laws prior to publishing at trial, and, subject to instruction otherwise from

the Court, will only provide a redacted copy of records for the jury to review during

its deliberation.

The Government also intends to call a Revenue Agent from the Internal

Revenue Service to explain the tax implications of the returns used and filed in the

scheme. It is the Government’s position that this testimony does not qualify as expert

Case 1:21-cr-00371-CLM-JHE Document 167 Filed 02/09/24 Page 17 of 26

testimony under the Rules of Evidence, however, the Government provided notice

to opposing counsel on February 5, 2024 of its intention to call this witness out of

an abundance of caution.

D. Bank Records

The Government will introduce a number of bank records related to the

conspiracy in this case, to show how fraudulent tax refunds were deposited and

withdrawn for the benefit of the Defendants. These documents will be introduced

pursuant to Federal Rule of Evidence 902 as self-authenticating business records, as

they will be introduced with their respective 902(11) certifications. Because these

records are voluminous, and primarily introduced in their entirety for the purpose of

summarizing the scope of the conspiracy, the Government is unable to fully redact

all records it seeks to admit. The Government will certainly redact any pages that it

seeks to publish, but requests that the Court allow for the admission of the remainder

of the records unredacted and under seal. It is further the Government’s

understanding that in addition to their independent admissibility under FRE 902, the

exhibits and their admission will also be stipulated to by both Defendants.

E. Summary Witnesses

To assist the jury’s examination of the bank records and postal money orders

with respect to the charged money laundering and structuring counts in this case, the

Case 1:21-cr-00371-CLM-JHE Document 167 Filed 02/09/24 Page 18 of 26

Government intends to present summary witness testimony in its case-in-chief

through ATF Investigator Jonathan Esworthy. Investigator Esworthy has examined

the underlying bank records, postal money orders, car sales documentation, and

other relevant documents in this case and is prepared to summarize what they contain

to the jury. Although all of the underlying records and reports will be submitted into

evidence, Investigator Esworthy’s synopsis of their contents will serve as an aid to

explain and process voluminous evidence.

In addition, to assist the jury’s examination of the false items on the

Defendant’s tax returns, and the tax consequences of those false items, the

Government intends to present summary witness testimony in its case-in-chief

through IRS Special Agent Dylan Owens.

Summary witness testimony is routinely admitted in tax prosecutions. See

United States v. Barnette, 800 F.2d 1558 (11th Cir. 1986) (superseded by statute on

other grounds). Here, Agent Owens will listen to the testimony of the relevant tax

witnesses and summarize how Defendant Frazier falsified his returns in light of all

of the other charged criminal conduct, including money laundering, structuring, and

wire fraud. He will further summarize voluminous bank records, pursuant to Federal

Rule of Evidence 1006. The Government does not believe that this testimony

requires Agent Owens to be qualified as an expert.

Case 1:21-cr-00371-CLM-JHE Document 167 Filed 02/09/24 Page 19 of 26

As is standard practice in federal tax prosecutions, the Government will

request that Agent Owens be permitted to remain in the courtroom throughout the

presentation of evidence. Agent Owens is a person whose presence is essential to the

presentation of the Government’s case. Indeed, his role as a summary witness is to

know and summarize the evidence, as well as summarize his investigation and the

information it revealed. As a result, the Government requests that the summary

witness (and case agent) be exempted from any Rule 615 request to exclude

witnesses from the courtroom. See, e.g., United States v. Moore, 997 F.2d 55, 58

(5th Cir. 1993).

F. Summary Evidence/Demonstratives

The use of summary evidence is governed by Federal Rule of Evidence 1006,

which is interpreted broadly. The Rule allows admission of summaries when the

admitted evidence is voluminous, and review by the jury would be inconvenient.

FRE 1006 requires that the summarized evidence is voluminous, admissible, and

available for inspection. United States v. Daniels, 986 F.2d 451 (11th Cir. 1993).

As an aid to the jury, Agent Owens, Investigator Esworthy, and IRS Revenue

Agent Rolanda Rooney will make use of summary charts, based upon admitted

evidence. The summary schedules, because they will reflect only evidence that is

admitted or admissible at trial, by necessity will not be finalized until shortly before

Case 1:21-cr-00371-CLM-JHE Document 167 Filed 02/09/24 Page 20 of 26

their testimony. As such, final copies of their summary schedules will be provided

to the Defendant shortly before their testimony. However, draft summaries and

demonstratives have been prepared based on the anticipated admission of certain

underlying records, and those drafts have been provided to the defense.

The Government intends to use, in closing argument and during the testimony

of its summary witness, visual aids to help explain its case to the jury, based upon

the admitted evidence. Federal Rule of Evidence 611(a), which gives the trial court

control over the mode of presenting evidence, also pertains to visual aids. Visual

aids are typically used as pedagogical devices either to simplify complex evidence

or to assist counsel in the presentation of argument to the jury. These will be

provided to the defense for inspection prior to trial.

Rule 611(a) and Rule 1006 are not mutually exclusive. For instance, a chart

originally offered as a pedagogical device under Rule 611(a) could alternatively be

admitted into evidence if it accurately summarizes the underlying documents and

the court concludes that the underlying documents are too voluminous to be

examined conveniently in court. See United States v. Milkiewicz, 470 F.3d 390, 396-

97 (1st Cir. 2006). Despite the potential for overlap between the two types of visual

aids, the differences are important. A Rule 611(a) visual aid must be based on

admitted evidence but is generally not admitted into evidence itself. But see

Case 1:21-cr-00371-CLM-JHE Document 167 Filed 02/09/24 Page 21 of 26

Milkiewicz, 470 F.3d at 398 (noting that Rule 611(a) visual aids may be admissible).

Furthermore, a Rule 1006 Summary chart must “fairly represent the underlying

documents and be accurate and non prejudicial” while a Rule 611(a) pedagogical

device may be less neutral and may reflect the inferences and conclusions of the

party offering the summary. See id. at 398 (internal quotation marks omitted).

Regardless of whether a visual aid is admitted into evidence under Rule 1006 or used

as a pedagogical device under Rule 611(a), a cautionary jury instruction may be

appropriate.

Here, the Government intends to make use of several demonstratives during

the testimony of its summary witnesses and also during its closing arguments.

However, the Government will be explicit as to which of these exhibits are

demonstratives and will not offer them for admission, merely for publication as an

aid to the jury.

Stipulations

Based on conversations with defense, it is the Government’s understanding

that there will be several stipulations regarding the admissibility of business and

bank records. These signed stipulations will be provided to the Court at the pre-trial

conference, and will be read into the record during trial at a time and in a manner

that the Court deems appropriate.

Case 1:21-cr-00371-CLM-JHE Document 167 Filed 02/09/24 Page 22 of 26

Rebuttal Witnesses

Defense counsel has relayed that they may have defense exhibits or witnesses

as part of their case. In light of this information, the Government may call witnesses

on rebuttal to counter defense claims or theories. The Government will provide any

rebuttal information to the defense as expeditiously as possible once the need for it

is identified.

IV. Other Trial Issues

Chain of Custody

To avoid unnecessary delay and reduce the number of chain of custody

witnesses, the United States does not anticipate calling every witness included in the

chain of custody with each item of evidence. The witnesses who will testify in the

Government’s case-in-chief regarding the recovery of evidence will be able to testify

as to the chain of custody. The United States would note, however, that any breaks

in the chain of custody merely go to the weight of the evidence rather than to its

admissibility. See United States v. Roberson, 897 F.2d 1092 (11th Cir. 1990) and

United States v. Lopez, 758 F.2d 1517, 1521 (11th Cir.1985), cert. denied, 474 U.S.

1054, 106 S.Ct. 789 (1986).

Case 1:21-cr-00371-CLM-JHE Document 167 Filed 02/09/24 Page 23 of 26

Witnesses

The government has provided the Court and opposing counsel with an

anticipated witness list under separate cover.

Exhibit List

The government has provided the Court and opposing counsel with a list of

proposed exhibits under separate cover.

Post-Verdict Forfeiture Proceeding

Should the fact-finder find the Defendant guilty on any indictment count for

which forfeiture is sought, the Court must determine what property is subject to

forfeiture. Fed. R. Crim. P. 32.2(b)(1)(A). If forfeiture is contested by either party,

the Court must conduct a hearing as soon as practical following the verdict. Fed. R.

Crim. P. 32.2(b)(1)(B). In a case tried before a jury, the court should ascertain, before

the jury begins deliberating, whether either party will request that the jury be retained

to determine forfeitability of property at the forfeiture hearing. Fed. R. Crim. P.

32.2(b)(5)(A). In such a hearing, the Defendant may not re-litigate his guilt, as the

only question in such a proceeding is the nexus between the property and the offense.

United States v. Warshak, 631 F.3d 266, 331 (6th Cir. 2010). The Court can make

its determination based on evidence already in the record or on additional evidence

submitted by the parties. Fed. R. Crim. P. 32.2(b)(1)(B).

Case 1:21-cr-00371-CLM-JHE Document 167 Filed 02/09/24 Page 24 of 26

Because forfeiture is an aspect of sentencing, the United States need only

prove the elements of forfeiture by a preponderance of the evidence. United States

v. Hasson, 333 F.3d 1264, 1277 (11th Cir. 2003). Furthermore, the Federal Rules of

Evidence do not apply in forfeiture proceedings. Fed. R. Evid. 1101(d)(3); United

States v. Smith, 770 F.3d 628, 641 (7th Cir. 2014).

V. Conclusion

The foregoing is a summary of points the Government expects may arise at

trial. If any legal issues arise that have not been covered in this memorandum, the

Government respectfully requests permission to file a supplemental memorandum

of law, or to otherwise make argument as the issues arise in trial.

Respectfully submitted this 9th day of February, 2024.

Respectfully submitted,

PRIM F. ESCALONA
United States Attorney

/s/ Allison J. Garnett
ALLISON J. GARNETT
Assistant United States Attorney

/s/ M. Blake Milner
M. BLAKE MILNER
Assistant United States Attorney

Case 1:21-cr-00371-CLM-JHE Document 167 Filed 02/09/24 Page 25 of 26

/s/ Austin D. Shutt
AUSTIN D. SHUTT
Assistant United States Attorney

Case 1:21-cr-00371-CLM-JHE Document 167 Filed 02/09/24 Page 26 of 26

CERTIFICATE OF SERVICE

I hereby certify that, on February 9, 2024, I filed the foregoing with the Clerk

of the Court using the CM/ECF system, which will cause a copy to be served on all

counsel of record.

/s/ Allison J. Garnett
ALLISON J. GARNETT
Assistant United States Attorney

ADDRESS OF COUNSEL:

United States Attorney’s Office
1801 Fourth Avenue North
Birmingham, AL 35203
Telephone: (205) 244-2001
Fax: (205) 244-2182
Email: Allison.Garnett@usdoj.gov

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