Court filing
Sentencing Hearing Transcript — United States v. Monica Faye Barnes
Record facts
| Court | U.S. District Court, Eastern District of North Carolina |
|---|---|
| Filed | 2023-10-18 |
U.S. District Court, Eastern District of North Carolina · No. 5:23-cr-00094-D · Doc. 64 · 2023-10-18 · Docket on CourtListener
Summary
A transcript of the sentencing hearing held July 28, 2023 in United States v. Monica Faye Barnes, No. 5:23-cr-00094-D, in the U.S. District Court for the Eastern District of North Carolina, before United States District Judge James C. Dever III, filed October 18, 2023 as Document 64. The transcript records the court accepting the plea agreement on a charge of conspiracy to commit wire fraud, placing the presentence report under seal under Rule 32, and sustaining the Government's objection to the restitution amount. It states a total offense level of 13, a criminal history category of I and an advisory guideline range of 12 to 18 months, to which neither side objected. Defense counsel asked for alternative sentencing with community service, and the Assistant United States Attorney argued for a custodial sentence within the guidelines. The transcript runs 20 pages.
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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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
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UNITED STATES OF AMERICA,
Plaintiff,
vs. 5:23-CR-94-2D
MONICA FAYE BARNES,
Defendant.
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JULY 28, 2023
SENTENCING HEARING
(Pursuant to Standing Order 22-SO-1, portions of all guilty
plea and sentencing transcripts are restricted.)
BEFORE THE HONORABLE JAMES C. DEVER III
UNITED STATES DISTRICT JUDGE
A P P E A R A N C E S:
On Behalf of the Government:
DAVID BERAKA, ASSISTANT U.S. ATTORNEY
U.S. Attorney's Office
150 Fayetteville Street, Suite 2100
Raleigh, North Carolina 27601
On Behalf of the Defendant:
DAVID WILLIAM LONG, ESQ.
POYNER SPRUILL, LLP
301 Fayetteville Street, Suite 1900
Raleigh, North Carolina 27601
AMY M. CONDON, CRR, RPR, CSR
Official Court Reporter
United States District Court
Raleigh, North Carolina
Stenotype with computer-aided transcription
Case 5:23-cr-00094-D Document 64 Filed 10/18/23 Page 1 of 20
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(Friday, July 28, 2023, commencing at 9:26 a.m.)
P R O C E E D I N G S
THE COURT: We'll next take up the sentencing of
Monica Barnes.
(Pause in the proceeding.)
THE COURT: Good morning, Mr. Long. Are you and
Ms. Barns ready to proceed?
MR. LONG: We are, Your Honor.
THE COURT: Mr. Beraka, is the United States ready?
MR. BERAKA: Yes, Your Honor. Thank you.
THE COURT: At this time I'd ask that Ms. Barnes be
sworn or affirmed.
(The defendant, Monica Faye Barnes, was duly sworn.)
THE COURT: Ms. Barnes, do you understand that
having been sworn, that your answers to my questions are
subject to the penalty of perjury; and if you were to lie to
me, you could be prosecuted for perjury or for making a false
statement?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Have you taken any kind of medicine or
any other substance in the last 48 hours that affects your
ability to hear and understand this proceeding?
THE DEFENDANT: No, Your Honor.
THE COURT: Do you know why you're here today?
THE DEFENDANT: Yes, Your Honor.
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THE COURT: Mr. Long, do you have any reason to
doubt Ms. Barnes' competence to go forward today?
MR. LONG: I don't, Your Honor.
THE COURT: Does the United States have any reason
to doubt Ms. Barnes' competence to go forward today?
MR. BERAKA: No, Your Honor.
THE COURT: Based on Ms. Barnes' answers to my
questions, my observations of her, and the answers from
counsel, I find that she is competent.
Ms. Barnes, you're here today having entered a plea
of guilty to the charge of conspiracy to commit wire fraud.
You entered a plea of guilty to that charge pursuant to a plea
agreement. I hereby accept the plea agreement.
The sentencing guidelines are no longer mandatory;
they're advisory. Nevertheless, I'm to take into account the
now-advisory guidelines.
I do this by initially making findings of fact and
calculating an advisory guideline range. I'll then consider
any motion that might be made that might move that range
either up or down. I'll then consider all arguments that
Mr. Long makes, both here in court and the ones he's made in
the memo he submitted, any statement you'd like to make, and
the arguments of the Assistant United States Attorney.
I'll then determine your sentence and I'll announce
it here in court today. That'll be the process we'll follow.
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Mr. Long, did you receive a copy of the presentence
report?
MR. LONG: We did, Your Honor.
THE COURT: Ms. Barnes, did you speak with your
lawyer, Mr. Long, about that report?
THE DEFENDANT: I did, Your Honor.
THE COURT: At this time the Court directs that the
presentence report be placed in the record under seal.
In accordance with Rule 32 of the Federal Rules of
Criminal Procedure, the Court accepts as accurate the
presentence report, except as to matters in dispute as set
forth in the addendum.
I have reviewed the entire report, including the
addendum. The addendum does contain one objection from the
Government as to the restitution amount. I think that
objection is well-taken, and so I'll sustain that objection.
Are there any objections from the defense?
MR. LONG: None, Your Honor.
THE COURT: No other objections from the Government?
MR. BERAKA: That's right, Your Honor.
THE COURT: For purposes of Booker and its progeny
the total offense level is 13, the criminal history category
is I, the advisory guideline range is 12 to 18 months.
Does the defense object to that advisory guideline
range?
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MR. LONG: We don't, Your Honor.
THE COURT: Does the Government object to that?
MR. BERAKA: No, Your Honor.
THE COURT: All right. I'll hear first from
Mr. Long, then I'll hear from Ms. Barnes, and then I'll hear
from Mr. Beraka, and I'll give Mr. Long the last word.
Mr. Long.
MR. LONG: Thank you, Your Honor.
As you mentioned, I submitted a sentencing
memorandum, as I typically do in these cases. I'm going to
deviate a little bit from that because I'm going to say
something in addition to that this morning, if I can.
Minnie's Banana Cups and Catering Service was a
pre-existing legitimate business in Wilson prior to COVID. It
was the type of business the PPP program was designed to
benefit.
Like many, Ms. Barnes was particularly vulnerable
during COVID and was a sitting duck when the vultures swooped
in with their too-good-to-be-true offer. The Whitaker group
prepared the fraudulent paperwork, which Ms. Barnes willingly
signed, on behalf of her business. As a result, the business
received $145,000 plus in PPP funds and thus became a
statistic in the more than 15 million in PPP loans the
Whitaker group fraudulently placed.
For all of this, Ms. Barnes' business paid the
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Case 5:23-cr-00094-D Document 64 Filed 10/18/23 Page 5 of 20
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Whitaker group more than $36,000. She stands before this
Court for sentencing as a result.
She accepts full responsibility. I have discussed
alternative sentencing. You know, the woman has never backed
away from work in her life as you can tell from the letters
that were attached to the sentencing memorandum, as well as
from the PSR. She has worked all her life and she will do
everything in her power to pay back this restitution, albeit
an enormous sum.
The dilemma is, you know, she's going to lose her
business if she gets active time and that will inhibit her
ability to repay. So it's the dilemma that this Court sees on
a regular basis.
I would ask that the Court consider, as I have in my
sentencing memorandum, some alternative sentencing with
community service. She does -- already does an awful lot of
community service; she can do more. And I would ask the Court
just to consider some kind of alternative sentencing in this
case.
THE COURT: Thank you.
At this time I'll hear from Ms. Barnes, if you'd
like to make a statement, ma'am.
THE DEFENDANT: Yes, sir.
Dear Judge James Dever, my name is Monica Barnes,
owner and sole proprietary of Minnie's Banana Cups and
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Case 5:23-cr-00094-D Document 64 Filed 10/18/23 Page 6 of 20
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Catering Service.
Before starting my business in 2016, I worked for
nearly 20 years at Branch Banking and Trust, BB&T, in the IT
section of mortgage.
In 2009, I earned an Associate's degree in business
management; and in 2013, I completed my degree in information
technology, a Bachelor of Science.
In July 2020, I accepted a position back in IT at
Truist, formerly BB&T, where I currently work today.
My dreams of cooking stems from my fond memories of
my mother who officially called Minnie. At a very early age,
she trained me how to cook up -- cook until her untimely
death. In honor of my mother, my business is now owned to
serve in the community and surrounding areas, but also to give
back to my community by providing free food on certain days to
feed those who are in need.
In addition to community outreach, Minnie's Banana
Cups provide hot meals during lunch hours and deliver lunches,
dinners, and cater church events, community colleges,
weddings, reunions, and so much more.
I accept full responsibility for my involvement, but
feel that I preyed -- I was preyed upon as a small business
and now I'm here pleading for mercy today.
I do understand the seriousness of this matter, and
I sincerely apologize. Please understand that it was not my
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Case 5:23-cr-00094-D Document 64 Filed 10/18/23 Page 7 of 20
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intention to be a part of anything fraudulent or anything that
would compromise my integrity.
As I am sure you are aware, I have never been in any
trouble with the law. I wish to continue to run my business
as I have so much more to offer to the community. I have
worked extremely hard for many years to build my brand, and I
would like to continue to run and grow my business to its full
potential.
Judge Dever, thank you for giving me this
opportunity to be heard. I hope that I have said something
today that has made a positive difference in your judgment.
THE COURT: Thank you, ma'am.
At this time I'll hear from Mr. Beraka on behalf of
the United States.
MR. BERAKA: Yes, Your Honor. Thank you.
Again, the Government in this case is going to
advocate for a custodial sentence within the guidelines, most
importantly, to avoid unwarranted sentencing disparities where
we have so many defendants in this scam who engaged in nearly
identical conduct.
Ms. Barnes is another defendant here who has
otherwise led an upstanding lifestyle. I don't believe that
she's going to re-offend. I think this is out of character
for her; but nonetheless, it's an extremely serious offense
involving a six-figure loss to the Government of an extremely
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Case 5:23-cr-00094-D Document 64 Filed 10/18/23 Page 8 of 20
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important program, and the need for deterrence can be greater
where we have just -- every several months there's a new kind
of total figure of the amount of COVID fraud nationally and
every time we see that, I worry that it's going to give --
it's going to give pause for the next time -- the next time
the national legislature is called on to be generous.
I know the Court, the Court has emphasized how
generous it has been and will be, and I hope that's the case
but these types of cases certainly compromise that.
As I said, I don't believe that Ms. Barnes is a
danger to the community. I don't think she's likely to
re-offend; but based on the nature and circumstances of the
offense, the need for deterrence, the need to avoid
unwarranted sentencing disparities, a guideline sentence is
appropriate, Your Honor.
THE COURT: Thank you.
Mr. Long, anything else? And any recommendations?
DEF ATTY: Nothing, Your Honor.
(Pause in the proceeding.)
THE COURT: All right, Ms. Barnes. The Court
recognizes its obligation to impose a sentence sufficient but
not greater than necessary to comply with the purposes set
forth in the statute.
I have considered all arguments that Mr. Long has
made, both here in court and in the memo. I have considered
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Case 5:23-cr-00094-D Document 64 Filed 10/18/23 Page 9 of 20
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your statement, ma'am. I have considered the position of the
United States. I have considered the advisory guideline
range.
Among other things, I'm to consider the nature and
circumstances of the offense and the history and
characteristics of the defendant, the need for the sentence
imposed to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment; the need
for the sentence imposed to deter others who might choose to
engage in the criminal behavior that brings you here; the need
for the sentence imposed to protect the public from further
crime by you; the need for the sentence imposed to provide you
with needed educational or vocational training, medical care,
or other correctional treatment in the most effective manner;
the need to avoid unwarranted sentencing disparities.
The statute lists numerous other factors. I've
considered all those factors, although I won't mention each
one individually.
As for the nature and circumstances of the offense,
you did participate in this conspiracy to commit wire fraud.
As Mr. Long mentioned and Mr. Beraka mentioned, Congress set
up a system of PPP loans as a result of the pandemic to assist
small businesses who were adversely affected by COVID. And
the system, as with many government programs, is fundamentally
based on the honor system. It's based on people not lying,
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Case 5:23-cr-00094-D Document 64 Filed 10/18/23 Page 10 of 20
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not cheating, not stealing, people being virtuous, people not
trying to get something for nothing. And I think we have a
history in this nation, and I don't think that history is
going to change notwithstanding the rampant fraud in this
program, that when the least among us are hurting, we will set
up systems in our -- through our government, our national
government to help people. And those systems will
fundamentally be based on honesty and people being truthful
and people not lying and people not prioritizing greed over
virtue. And yet, that's what we have here.
I mean, you in your allocution said that you felt
you were preyed upon. As I understand it from reading your
report, it was your son, Dontrell, who got you involved in
this and shame on him for that.
But you also said, "It was not my intention to be
part of anything fraudulent." Well, filling out completely
fraudulent documents or signing them is being part of
something abjectly, absolutely, unequivocally fraudulent. It
is shameful behavior.
I've taken into account the arguments that you don't
have a criminal history, and you don't. It is a shame that
someone as intelligent and hardworking as you, you've got your
Associate's degree, your BS degree, had a career at BB&T and
Truist, had this other business, but decided to -- decided
essentially that your integrity could be bought for a little
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Case 5:23-cr-00094-D Document 64 Filed 10/18/23 Page 11 of 20
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more than $100,000.
It's always interesting to see from where I sit what
is the price, what is the price, what can a person be bought
for? How many pieces of silver does it take to buy somebody?
And here we know, right? Here we know, a little more than
$100,000. What does the fraudster say? Hey, you get this
money, you lie and you pay us $36,000 and you get to keep a
little more than $100,000 that you know you're not entitled
to.
And I think in these cases it's critically important
as a matter of general deterrence because I do not think this
nation's generosity is going to change. We will continue as a
people to try to help the least among us. And we will do it
through government programs that are based on the honor
system, based on people not lying to get money they don't
deserve. And as a result, everyone should know when they
think about it, if they think, "Hey, I'm going to lie to get
money I'm not entitled to," if they come here, they should
know you're going to prison.
And that's fair, because everybody is on notice.
Everybody is on notice. And I think it will stop some people.
I hope it does, because, as I said, I don't think our
generosity is going to change. We are always going to try and
help folks if there's a hurricane, there's another natural
disaster, heaven forbid, if there's another pandemic, that we
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Case 5:23-cr-00094-D Document 64 Filed 10/18/23 Page 12 of 20
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as a people will try and help folks.
And we do it in other programs like Medicare and
Medicaid. We have systems -- we cannot possibly hire enough
auditors on the front end to say, Oh, yeah, all of this is
honest. It all checks out. No. They pay. And sadly, there
have always been with us and always will be with us those who
prioritize greed over other things, and those who do that in
connection with programs like this are going to go to prison.
So I'm not going to impose a noncustodial sentence.
I don't think that would meet the objective of general
deterrence, and I don't think it would be just punishment
because there undoubtedly were people who were approached with
this scheme who said, "These are lies. This isn't true. I'm
not entitled to that money. I'm not going to submit this
paperwork." And good for them for doing the right thing. But
I suspect some of those people said, "Look at my neighbor, she
lied and got that money and she got this and that and paid
this and that and I didn't do it and I'm struggling, and I
don't think that's fair." But them doing the right thing and
hearing that justice is done on the back end I suspect will
help validate for them that they, in fact, did the right thing
by choosing not to lie, by choosing not to let greed rule the
day when they made these types of decisions.
So having fully considered the entire record in the
case, all the 3553(a) factors, all the arguments that have
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been made by each side, it's the judgment of the Court that
Monica Faye Barnes is hereby committed to the custody of the
Bureau of Prisons to be imprisoned for 12 months and one day.
Upon release from imprisonment, you'll be placed on
supervised release for three years.
After carefully considering the provisions of
3583(d) and 3553(a), you shall comply with the mandatory and
standard conditions of supervision adopted in the Eastern
District of North Carolina as referenced in the governing
standing order.
The Court finds that those conditions reasonably
relate to the 3553(a) factors, impose no greater deprivation
of liberty than necessary under 3553(a), and comport with
Fourth Circuit cases to include U.S. v. Singletary, 984 F.3d
341 (4th Cir. 2021).
You shall comply with the following special
conditions which the Court imposes based on statutory
requirements, the nature of the offense conduct, your history
and characteristics, the need to pay restitution and to
adequately supervise you based on these factors, including the
restitution amount:
You shall submit to financial or consumer credit
counseling as directed by probation.
You shall not incur new credit charges or open
additional lines of credit without approval of probation.
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You shall provide probation with access to any
requested financial information.
You must make restitution in accordance with 18
U.S.C., Section 3663 and 3663(a) or any other statute
authorizing restitution.
You shall cooperate in the collection of DNA as
directed by probation.
The drug testing conditions required by 18 U.S.C.,
Section 3608 are suspended based upon my determination that
you impose a low risk of future substance abuse.
You shall pay a special assessment of $100, which is
due immediately.
You owe restitution to the Small Business
Administration in the amount of $153,711.46.
You're without the ability to pay interest,
therefore, interest is waived. Any payment that is not
payment in full shall be divided proportionately among the
victims named.
You shall be held jointly and severally liable for
restitution along with your co-defendants in this and related
cases to include Dontrell Rayshare Barnes, in that same
amount; Quentin Allen Jackson, in that same amount; Schunda
Coleman, in that same amount; Edward Sheldon Whitaker, in that
same amount. However, no further payment shall be required
after the sum of the amount actually paid by all defendants
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has been fully covered as to the compensable victim injuries.
I'm not going to impose a fine in light of the
restitution.
Payment of restitution shall be due and payable in
full immediately. However, because you can not pay in full
immediately, you'll pay through the Inmate Financial
Responsibility Program in installments of $25 a quarter.
Having considered your financial resources and
ability to pay, I order that any balance still owed at the
time of release shall be paid in installments of $200 a month
to begin 60 days after your release from prison.
At the time of your release, probation shall take
into account your ability to pay restitution and the Court can
make any needed modification of the payment schedule.
I do think I properly calculated the advisory
guideline range, but I announce pursuant to U.S. v.
Gomez-Jimenez, 750 F.3d 370 (4th Cir. 2014) and U.S. v.
Hargrove, 701 F.3d 156 (4th Cir. 2012), that I'd impose the
same sentence as an alternative variant sentence if I have in
any way miscalculated the advisory guideline range.
This is the sentence sufficient but not greater than
necessary for Monica Barnes.
In imposing this sentence, I've carefully considered
all the arguments Mr. Long made for a different sentence.
I've rejected the arguments. Even if I haven't parroted back
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each specific argument, I think -- and I've explained my
balance of the 3553(a) factors and rejected his arguments for
a different balance and a noncustodial sentence.
I recommend FCI Alderson.
I recommend vocational/educational opportunities.
You can appeal your conviction if you believe that
your guilty plea was somehow unlawful or involuntary or if
there's some other fundamental defect in the proceeding that
was not waived by your guilty plea.
You also have a statutory right to appeal your
sentence under certain circumstances, particularly if you
think your sentence is contrary to law.
However, you did enter into a plea agreement that
contains an appellate waiver. In light of your sentence, I
believe you've waived your right to appeal.
If you believe the waiver is unenforceable or
inapplicable for any reason, you can present that theory to
the Appellate Court.
With few exceptions, any Notice of Appeal must be
filed within 14 days of the judgment being entered on the
docket in your case.
If you're unable to pay the cost of an appeal, you
may apply for leave to appeal in forma pauperis.
If you so request, the Clerk of Court will prepare
and file a Notice of Appeal on your behalf.
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What's the Government's position on liberty status?
MR. BERAKA: Your Honor, the Government would have
no objection to a self-report.
THE COURT: All right. I gather you want her to be
able to self-report?
MR. LONG: I do, Your Honor.
THE COURT: All right. Ms. Barnes, I will allow you
to self-report. What that means is -- I've recommended that
you serve your sentence at FCI Alderson which is the closest
Federal Bureau of Prisons facility for women. It's up in West
Virginia.
I'm not sure that's where the BOP is going to
designate you to; they might designate you to a different
facility. But by allowing you to self-report, you are
promising not to engage in any criminal conduct between now
and then, and then to appear at the facility on time. You
can't be one second late, wherever they designate you to. It
lets you get your affairs in order between now and that date
before you go serve your sentence.
Do you understand that, ma'am?
THE DEFENDANT: I do, Your Honor.
THE COURT: Mr. Long, you may come get the
paperwork.
(Pause in the proceeding.)
THE COURT: All right, Ms. Barnes. I have signed
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Case 5:23-cr-00094-D Document 64 Filed 10/18/23 Page 18 of 20
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the order allowing you to self-report. So you'll be notified
when and where to report.
Again, you have to report on time. You cannot be
one second late. If you are late, you're subject to further
imprisonment.
You will need to speak with the probation officer
before you leave court here this morning.
Anything else from the defendant?
MR. LONG: Nothing from us, Your Honor.
THE COURT: Anything else from the United States?
MR. BERAKA: No, Your Honor.
THE COURT: I thank counsel for their work in this
case. That'll conclude the matter of Ms. Barnes.
Good luck to you, ma'am.
* * *
(The proceedings concluded at 9:51 a.m.)
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Case 5:23-cr-00094-D Document 64 Filed 10/18/23 Page 19 of 20
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UNITED STATE DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
CERTIFICATE OF OFFICIAL REPORTER
I, Amy M. Condon, CRR, RPR, CSR, Federal Official
Court Reporter, in and for the United States District Court
for the Eastern District of North Carolina, do hereby certify
that pursuant to Section 753, Title 28, United States Code,
that the foregoing is a true and correct transcript of the
stenographically reported proceedings held in the
above-entitled matter and that the transcript page format is
in conformance with the regulations of the Judicial Conference
of the United States.
Dated this 19th day of October, 2023.
_____________________________
/s/ Amy M. Condon
Amy M. Condon, CRR, CSR, RPR
U.S. Official Court Reporter
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Case 5:23-cr-00094-D Document 64 Filed 10/18/23 Page 20 of 20File and source
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