Court filing
Sentencing Hearing Transcript — United States v. Dontrell Barnes
Record facts
| Court | U.S. District Court, Eastern District of North Carolina |
|---|---|
| Filed | 2024-02-22 |
U.S. District Court, Eastern District of North Carolina · No. 5:23-cr-00094-D · Doc. 90 · 2024-02-22 · Docket on CourtListener
Summary
A transcript of the sentencing hearing held February 22, 2024 before Judge James C. Dever III in United States v. Dontrell Barnes, No. 5:23-cr-00094-D, in the U.S. District Court for the Eastern District of North Carolina, Western Division, filed April 26, 2024 as Document 90. The court swears the defendant, finds him competent, and accepts the plea agreement on a charge of conspiracy to commit wire fraud. It places the presentence report under seal and accepts it as accurate under Rule 32 of the Federal Rules of Criminal Procedure except for matters disputed in the addendum. Defense counsel argues that Section 1040 does not apply, relying on an unpublished Fourth Circuit decision and on the statute's tie to a disaster declaration. The transcript notes that portions of guilty plea and sentencing transcripts are restricted by standing order; it runs 40 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
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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-00094-D-1
DONTRELL BARNES,
Defendant.
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FEBRUARY 22, 2024
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:
JEAN-PAUL JACQUET-FREESE, ASSISTANT FEDERAL PUBLIC DEFENDER
Federal Public Defender's Office
150 Fayetteville Street, Suite 450
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 90 Filed 04/26/24 Page 1 of 40
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(Thursday, February 22, 2024, commencing at 1:00 p.m.)
P R O C E E D I N G S
THE COURT: Good afternoon, and welcome to the
United States District Court for the Eastern District of North
Carolina.
We'll take up the sentencing of Dontrell Barnes.
Hello, Mr. Jacquet-Freese. Are you and the
defendant ready?
MR. JACQUET-FREESE: We are, Your Honor. Thank you.
THE COURT: Is the United States ready, Mr. Beraka?
MR. BERAKA: Yes, Your Honor. Good afternoon.
THE COURT: At this time I'd ask that the defendant
be sworn or affirmed.
(The defendant, Dontrell Barnes, was duly sworn.)
THE COURT: Sir, 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, sir.
THE COURT: Do you know why you're here today?
THE DEFENDANT: Yes, sir.
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THE COURT: Mr. Jacquet-Freese, do you have any
reason to doubt Mr. Barnes' competence to go forward today?
MR. JACQUET-FREESE: No, Your Honor.
THE COURT: Mr. Beraka, does the United States have
any reason to doubt Mr. Barnes' competence to go forward
today?
MR. BERAKA: No, Your Honor.
THE COURT: Based on the defendant's answers to my
questions, my observations of him, and the answers from
counsel, I find that he is competent.
Sir, 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 your lawyer
makes on your behalf, 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
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Attorney.
I'll then determine your sentence, and I'll announce
it here in court today. That'll be the process we'll follow.
Mr. Jacquet-Freese, did you receive a copy of the
presentence report?
MR. JACQUET-FREESE: Yes, Your Honor.
THE COURT: And Mr. Barnes, did you speak with your
lawyer about that report?
THE DEFENDANT: Yes, 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. And the addendum does contain objections.
Does the defense want to be heard on those?
MR. JACQUET-FREESE: Briefly, Your Honor, on the
first objection, the Section 1040.
THE COURT: Okay.
MR. JACQUET-FREESE: The second objection I had put
in because the draft PSR had not included sort of that portion
of the plea agreement. It's in the final so I don't need to
be heard on that, but I would like to be heard on the Section
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1040 issue.
THE COURT: Okay. I'll hear you.
MR. JACQUET-FREESE: Your Honor, I understand that I
may have an uphill battle here because in another case you
have already decided that Section 1040 applies. I do persist
in the very strong belief that it does not apply to these
cases.
Now, the only real authority on this issue is the
Redfern decision from the Fourth Circuit. It is an
unpublished decision; but in that decision, as I'm sure the
Court is aware, the Fourth Circuit commented favorably on the
district court's analysis. And in the district court's
analysis, it determined that PPP fraud did not qualify as a
Section 1040 offense while the fraud in EIDL loans did.
I have laid out the argument in my sentencing memo.
I'm sure the Court understands that I would like to emphasize
the statutory interpretation issue here. I think that the
Government's interpretation and the interpretation that
probation has put forward does change the statute. Congress
made an intentional decision to tie the benefit not to the
emergency or the disaster itself but to the declaration, and I
think that the reason for that is that Congress was
specifically attempting to target programs that flow from
Stafford Act declarations, not any sort of fraud that has to
do with any sort of emergency. And I would ask the Court to
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Case 5:23-cr-00094-D Document 90 Filed 04/26/24 Page 5 of 40
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accept Congress's judgment in that case and not to apply the
enhancement.
And should the Court decide it applies anyway, we
have arguments later on as to the equities.
THE COURT: Okay. I'll hear from the United States.
MR. BERAKA: Yes, Your Honor.
The Government believes that it is applicable not
just to EIDL fraud but to PPP fraud as in this case.
Starting with the statutory interpretation, "in
connection with" is broad language that Congress used. Of
course it could have used narrower language such as "pursuant
to." There's also a list of numerous verbs in the statute
that generally suggest breadth.
You also have to read, the Government would submit,
the statute harmoniously. There's -- in the definitional
section of benefits, it includes state and local. Of course
that would be -- the Government would contend surplus -- that
would be surplus language if the benefit would have had to
have been directly authorized by a declaration, then that
language really wouldn't be necessary. Same for the
jurisdictional requirement, that there be an interstate --
nexus to interstate commerce.
THE COURT: What about this the equity argument in
terms of I didn't apply it to his mother? I mean, putting
aside sort of the legal argument.
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MR. BERAKA: Of course, Your Honor.
So that would go under the Court's analysis under 18
U.S.C. 3553, the Government could contend that -- excuse me.
The Court, I think, should still apply the guideline if it's
legally correct, which it is, and then the Court would be free
to consider within the guidelines potentially lower than it
might or, you know, in the Court's kind of -- I think it goes
to the need to avoid unwarranted sentencing disparities
truthfully, and we'd be prepared to address that, you know,
when the Government makes its recommendation.
THE COURT: Okay. Anything else on the -- from the
defense?
MR. JACQUET-FREESE: Very briefly, Your Honor.
On the legal question as to the statute's inclusion
of state and local governments, that's actually not surplusage
at all. The Stafford Act, when a Stafford Act declaration is
made, it permits FEMA to disburse money, but it also unleashes
money that goes to states that they can then distribute in
their own disaster program. So, you know, tying it to the
declaration in no way makes any part of the statute
surplusage.
The Court has the rest of the arguments. And on the
equity, Your Honor, if we're ready for that discussion --
THE COURT: Sure.
MR. JACQUET-FREESE: As the Court acknowledged, you
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Case 5:23-cr-00094-D Document 90 Filed 04/26/24 Page 7 of 40
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did not apply it to Mr. Barnes' mother, the co-defendant in
this case.
I think more broadly, the Government's position on
whether or not the 1040 has -- applies to COVID loans has
changed -- I mean, they changed in the course of the Redfern
decision where at the district court level the government was
arguing that the position of the United States Federal
Government was that they were not going to apply the
enhancement because they wanted one rule to apply nationally
and then that position changed at the appellate level.
So broadly, and more specifically for Mr. Barnes, I
would urge the Court for equitable reasons not to apply the
enhancements.
THE COURT: What about the argument about whether
it's just part of the 3553(a) -- I mean, I understand the
equity about just -- and I didn't apply it to his mother. I
mean, that makes sense to me that just from an equitable
standpoint it's a co-defendant in the same case.
Do you view that as a guideline calculation issue or
more of a 3553(a)?
MR. JACQUET-FREESE: I think that's a 3553(a) -- the
equity, sort of, avoidable unwarranted disparities.
THE COURT: I'll overrule the objection, but I'll
hear from the Government. But I think there's force in the
equity argument associated with I didn't apply this to his
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Case 5:23-cr-00094-D Document 90 Filed 04/26/24 Page 8 of 40
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mother and so, you know, I think probation properly calculated
this, but I'm acutely aware that it would be an 11 and a I and
an 8 to 14 if I did -- if I did sustain the objection instead
of the 12 to 18 in terms of just treating for guideline
calculation purposes and -- well, it's really more of the
3553(a) component of avoiding unwarranted sentencing
disparities. I think it's just more fair to treat him like I
treated his mother. So that's my ruling.
So with that, I'll hear on the -- there's no other
objections from the United States, right?
MR. BERAKA: That's right, Your Honor.
I did want to ask the Court to impose restitution
that takes into account the interest and processing fees per
paragraph 16, and I think in other cases I've styled that as
an objection.
THE COURT: And what's that figure?
MR. BERAKA: That figure would be $153,711.46.
THE COURT: Okay. Any objection to that from the
defense?
MR. JACQUET-FREESE: I believe that's the amount
that the Court imposed in his mother's case, so no objection.
THE COURT: Okay. Thank you.
Okay. All right. I'll hear from the defense on the
3553(a) factors, then hear from Mr. Barnes, then hear from the
United States, and I'll give Mr. Jacquet-Freese the last word
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Case 5:23-cr-00094-D Document 90 Filed 04/26/24 Page 9 of 40
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on the argument.
MR. JACQUET-FREESE: Thank you, Your Honor.
I spent some time thinking about what I would like
the Court's takeaways to be from our discussion of Dontrell
Barnes, and I think these are the highlights:
Mr. Barnes is a hard worker, a hard worker to the
point that whenever we needed to schedule an in-person
meeting, it had to be two weeks in advance because that's what
he needed to do in order to request time off of work. He is
working all the time. He's a medical transporter. He
coordinates music for funerals. He's a choir director at his
church. He's engaged in both sort of gainful employment
activities and volunteer activities in his church in the
community. This is someone who keeps busy, and I think that's
relevant to a number of factors.
But I think at base, it indicates that he's not a
bad person, Your Honor. He's someone who did a bad thing, and
we will discuss the offense conduct certainly. But at base,
Dontrell is a hard worker. He's someone who loves his family,
and that's gotten him in trouble and it's gotten him in
trouble in the past.
His only conviction is -- and I appreciate the Court
taking into account in reading my late-filed sentencing
memorandum, but his only criminal conviction was essentially a
result of similar conduct. His cousin asking him to deliver a
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Case 5:23-cr-00094-D Document 90 Filed 04/26/24 Page 10 of 40
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package, him either turning a blind eye or just not asking
sort of what was in it, and it turns out there was contraband
in it. That caused him to lose his job. It gave him a
criminal record. That -- it messed up his life, Your Honor.
I think that's an indication that this is someone who is
unfortunately somewhat susceptible to being swayed to doing
things for family members. And that's not to suggest that he
does not have responsibility in this case, because he does.
But I think that it is a mitigating factor that we ask the
Court to take into consideration.
I would also ask the Court to take into
consideration that he understands that what he did was wrong.
Mr. Barnes has struggled and -- I mean, he and his mother
together have struggled. He did not have a sort of very
well-off upbringing. They had food insecurity. They had sort
of utilities insecurity that he'll talk to you about himself.
And that's not a position that he wanted himself to be in
anymore; it's not a position that he wanted his mother to be
in anymore, and that's why he helped her -- sort of separate
and apart from the offense conduct, that's why he helped her
to establish this business and why he worked so hard to try
and make it successful. That's why he works so hard now
because he knows that he has to work hard to sort of get ahead
in life.
That being said, the folks that the PPP program --
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Case 5:23-cr-00094-D Document 90 Filed 04/26/24 Page 11 of 40
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that the PPP was designed to help are people in similar
situations. And I think I would be remiss if I did not point
out to the Court that he and his mother are engaged in a small
business in Eastern North Carolina that was negatively
affected by the pandemic and that is the type of person that
the program was intended to help.
Now, they went around trying to get that help, they
went about it the wrong way, but they are of the same class.
And because of that, Mr. Barnes understands that he cut in
line; that he took something from other folks that were in his
same position, and he is sorry for that and he feels that I
think in a way that he didn't at the time of the offense
conduct.
But he understands that he needs to make amends. He
came today with a check for $300 so that he can start to
make -- to make those amends, to pay toward the restitution
that he knows is going to be ordered in this case. That's
something that he wants to continue to do. And if the Court
were to grant him the opportunity of accepting our sentencing
recommendation, then he could continue to do that. He could
continue to work, set aside money to pay off the debt that he
and his mother owe.
Finally, Your Honor, on the offense conduct itself.
It was wrongful, and Mr. Barnes understands that. He is the
less-culpable person in this case.
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And if I can sort of take a moment to take a step
back. Obviously, the Court has a broader view of this scheme,
knows that the Barneses and people on their level were not
sort of the main people perpetrating this scheme; that they
themselves were targeted. That being said, they went along
with it; they submitted fraudulent statements and took money
that didn't belong to them.
Mr. Barnes, I think, is on a level that is slightly
less culpable. He was there, he knew that what he was doing
was wrong, but he was essentially following instructions from
Mr. Whitaker and from his mother. And we know from his past
that he's someone who's somewhat susceptible of being
influenced in that way. And I'd ask the Court to take that
into account as well.
The Government has agreed that he should get the
mitigating role adjustment in conversations with both us and
counsel and Ms. Barnes, and I would ask the Court to take that
seriously. Ms. Barnes received a sentence of 12 months and a
day, I think. As a less-culpable person, it should be below
that, and we ask the Court to strongly consider the sentencing
recommendation that we've made of probation with an
eight-month period of home detention which --
THE COURT: What about general deterrence?
MR. JACQUET-FREESE: Certainly important, Your
Honor. And I think the fact that someone has gone to prison
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for this loan is a factor in support of general deterrence and
it sends the message that the Court has, I think, made in
other cases; that this is very serious, and it is.
And I think if you give Mr. Barnes a sentence of
probation with eight months of home detention, then it is
still the case that for every loan that was taken out that you
sentenced, someone will have gone to prison. And that's an
important message that the community will get. But it
balances the severity of the offense conduct with Mr. Barnes'
history and characteristics, with the fact that he is a little
less culpable than some of the other defendants, that he and
his mother had an actual bona fide business. They didn't sort
of make up something in order to engage --
THE COURT: Most of the people had -- I mean, are
you saying that on the offense conduct that the lies
associated with the scope of the business and the amount of
the loan -- I mean, people had businesses but then they just
lied about saying how big the business was and then they got
other people involved to say, I've got to write these fake
checks to you and then you got to give me the money back but
I'll give you a cut. I mean, are you saying they didn't do
that?
MR. JACQUET-FREESE: No.
THE COURT: So in terms of the core of the scheme, I
mean -- my memory is, you know -- and sadly, there's a lot of
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thieves in our district who see an ocean of money flowing buy
and say, "I'm going to steal some of it."
So, you know, if I've had some of just the pure
completely fictitious business, it's distinct from people that
say, well, I have this sort of LLC, or I have some business
but now I'm going to lie and say, oh, I got a business with 10
employees. That that's kind of the core of at least the
heartland of the cases I see -- that I've seen in this, and
they strike me as being in the heartland.
So if the argument is that they're not in the
heartland because they actually had a business, I don't see
it.
MR. JACQUET-FREESE: I understand, Your Honor. And
you obviously have a broader view of these cases than I do.
And sort of what is in my mind is that person who,
you know, completely makes something up --
THE COURT: Right. I mean, I would agree that that
would be even more aggravated behavior if somebody just was
approached by Whitaker who had no business and just said, I'll
just completely make everything up and then get, you know,
friends and family to be felons, even if they don't get to be
charged with me I'll get them ultimately to be criminals by
participating in a kickback scheme. But I understand your
position.
Let me hear what Mr. Barnes has to say.
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MR. JACQUET-FREESE: Thank you, Your Honor.
THE DEFENDANT: To the Honorable Judge Dever. Your
Honor, I want to begin by apologizing to the Court and to the
Government for the wrong that I've done.
While I didn't realize at the time, I understand now
that the fraud my mother and I were involved in hurt real
people, people who were struggling just like us. That was
wrong, and I'm going to do whatever I can to make it right.
I want to explain to the Court how I got to this
point. I was primarily brought up by my courageous mother who
served as a single parent and faced significant financial
challenges because of her extended medical absence from work.
Her health struggles required her to take a prolonged leave
creating substantial hardships for us during that time.
Despite the obstacles that came our way, my mother's
unwavering determination shone through. She never gave up,
preserved, ultimately triumphed over the adversities we faced
demonstrating incredible strength and fortitude throughout our
journey.
The struggle of not knowing if we will have enough
food to eat, if we would have the necessity of electricity
weighed very heavy on us. It was a constant source of stress
and worry that impacted us both physically and emotionally,
but the uncertainty of those circumstances at that time
created a sense of instability that was hard to bear.
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Case 5:23-cr-00094-D Document 90 Filed 04/26/24 Page 16 of 40
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Which brings me to my work history and why it's so
extensive. My professional background showcase a range of
experiences that highlight my versatility and adaptability. I
have held positions in corporate America, nonprofit
organizations, Wilson County Fire and Rescue Service
headquarters, and I served four years in law with the Wilson
County Sheriff's Office.
I currently work as a medical transporter, a music
instructor for Jackson Chapel and Carrons Funeral Home.
Excelling as a music instructor, I've contributed my
expertise as an executive board member for the awards, EDDY
awards, a prominent independent artist award show televised on
the Impact Network.
Building on my very professional experiences, I
leveraged my skills and insights to help my mom establish her
food business in 2018 filed with the North Carolina Secretary
of State.
Cooking has always been a passion for her, and it
was important for me that I help her accomplish her goals just
as our parents would do for us for greater.
In the food catering business, we maintain a strong
commitment to professionalism by delivering a high quality
culinary experience tailored to each client's needs. Services
offered included menu planning, exquisite presentation,
exceptional attention to detail, and a focus on customer
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Case 5:23-cr-00094-D Document 90 Filed 04/26/24 Page 17 of 40
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satisfaction, until we were faced with the pandemic that
caused changes in consumer behavior, supply change disruption,
health and safety regulations, and a decrease in sales,
economic impact.
During this time my mother was introduced to Edward
by someone she knew in reference to the PPP loan. I didn't
learn until after the initial discussion between my mom and
Edward that what was required from me.
If my mom wasn't available to send over the legal
documents for the business requested by Edward, she would have
him reach out to me or she would instruct me to send over what
was needed for him. Those main documents that were requested
were documents such as articles of assumed name, EIN,
certificate of existence. Once the process was completed
after a few months, I was instructed by Edward and my mother
to issue checks that were for more than what we normally pay
employees. That was failing on my part and that is what I
want to make right.
I honestly believe if my mother knew the upfront
logistics and paid attention to documents at signing, she
wouldn't have embarked on this hurdle of chaos.
I assume that I am committed to rectify the
situation and ensuring that such conduct will not happen
again. I am actively taking steps to address the underlying
issue improving moving forward. My vision for the future
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first and foremost is to continue working hard and getting the
debt paid off me and my mother owe collectively.
I currently have two other businesses that I own.
D.R. Truffle Factory and D.R. Dynasty Logistics (phonetic)
with three pending bids.
In my closing, I humbly ask for your understanding
and forgiveness in this matter. I am truly sorry for my
actions and my negative consequences because of harm they
caused, which this doesn't define my character.
Thank you for your time, your consideration, and
dedication to justice. Respectfully, myself, Dontrell Barnes.
THE COURT: Thank you. Now, was this when you were
working for the sheriff's office?
THE DEFENDANT: Yes, sir. So when I -- when -- the
days that I would be off if he couldn't get her or she
couldn't send over, I would send the documents on. I was
currently with the Wilson County Sheriff's Office at that
time.
THE COURT: Thank you.
I'll hear from the United States.
MR. BERAKA: Yes, Your Honor. Thank you.
Starting with the nature and circumstances of the
offense. The Court knows in hearing many of these cases that
the PPP program was a critical program designed to help
struggling small businesses during an extremely scary and
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tumultuous economic time. As we know, many of those
businesses didn't make it; many people lost their jobs.
Mr. Barnes and his mother saw that program and took
the opportunity to steal from it, and that's why we're here
today.
I agree with defense counsel that Mr. Barnes and his
wife were not the main people, of course --
THE COURT: Mother.
MR. BERAKA: I'm sorry. Thank you.
Were not the main people, but they also weren't the
lowest people either. They enlisted others, presumably people
who had worked for them in the past or were friends and family
who they trusted and trusted them and engaged them to
participate in a money laundering scheme. So I think I need
to stress that to the Court.
As far as the defendant's history and
characteristics, I do agree also with defense counsel when he
described Mr. Barnes' prior conviction as similar conduct. It
was lying. It was a breach of trust. He was in charge of,
you know, other -- of people in jail. He had enormous
responsibility placed in him and he violated that trust.
The timing is also important. He was arrested in
June of 2021, which was right in the middle of this
conspiracy, and that didn't lead him to put the brakes on it.
He went forward with it anyway.
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THE COURT: Arrested on the contraband charge?
MR. BERAKA: Correct, Your Honor, yes.
And also, it's also, I think, worth pointing out to
the Court that he pled guilty to this offense while he was
still on probation. And luckily, for whatever reason, wasn't
violated when, of course, he should have been because he
violated that probation.
Respectfully, Your Honor, a probationary sentence or
home confinement would not reflect the seriousness of the
offense, it would not promote respect for the rule of law or
provide just punishment. A noncustodial sentence does not
provide adequate deterrence to criminal conduct, and I
appreciate that the Court has stressed that correctly in all
of these cases.
When another pandemic hits or there's a, for
example, a hurricane that hits Eastern North Carolina, and
everyone needs to know, I think, that you'll go to prison if
you steal the money that's allocated to help people who are
impacted and who are hurt and struggling by those disasters.
A custodial sentence, Your Honor, also avoids
unwarranted sentencing disparities. Twelve months, Your
Honor, is an appropriate sentence in this case, especially in
those involving a loan like this of just under $150,000.
We do -- we stand by the stipulation of Mr. Barnes'
lesser role; but as I said, that doesn't -- that doesn't mean
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he had the lowest role. He still was an active participant in
the conspiracy. He was supervising others. He was directly
communicating with Mr. Whitaker, and he profited financially
from this fraud.
So even though he did play a lesser role, he
financially benefited and he actively participated. He was
texting Mr. Whitaker just like his mother was.
For all those reasons, Your Honor, the Government
recommends 12 months as the sentence that is no greater than
necessary in this case to meet the goals set forth in 18
U.S.C. 3553.
The Government would also ask for three years of
supervised release to give Mr. Barnes an opportunity to pay
restitution, as his counsel has already stressed that he's
eager to do and is making a small step today towards that
goal, and I do believe he's sincere in that and I do accept
his contrition as sincere.
THE COURT: Thank you.
Anything else from the defense?
MR. JACQUET-FREESE: Briefly, Your Honor.
As to Mr. Barnes' role in the offense, it's not in
dispute. Everyone agrees that it was less culpable.
As to him texting with Edward Whitaker, it's true
that there was some communication between them by text. There
was also a number of e-mails that were exchanged primarily
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between Monica and Mr. Whitaker and Dontrell was copied on
them, but I think that indicates just sort of like who was in
the driver's seat and sort of what the hierarchy was.
As to the timing, I disagree with the Government's
characterization of the offenses as being similar in that way.
I do think that the way they are similar is that he's being
influenced by a family member, but --
THE COURT: I tell you, an aggravating factor to
me -- and I want to give you a chance to respond -- is that
he's a law enforcement official when he's doing this. That's
a terrible fact, I mean, to me. It's just like -- I know that
was involved in his other crime, but he's doing this crime and
he's working for the Wilson County Sheriff's Office. So I
want to give you a chance to respond, because I think that's
just terrible.
MR. JACQUET-FREESE: Certainly, Your Honor. I
think -- I'm inclined to agree if you just sort of look at it
on its face, but I think if you think about sort of like what
this process looked like. His mom has this business. He's
trying to help her out. She comes to him at some point and
says, Hey -- and they previously applied unsuccessfully for
loans. She comes to him and says, Hey, someone has approached
me and they are going to help me -- they are going to help us
to apply for these loans successfully. Okay. I need you to
send these documents. I need you to do this. I need you to
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do that.
And he's not reviewing -- he doesn't sign the
application, right? As far as I'm aware, the only thing that
exists really to set off alarm bells for someone who's not
normally in this space, who doesn't know that it's maybe a
little suspicious if someone e-mails you from a Gmail and
says, Hey, I can help you to apply for this PPP loan --
THE COURT: That you didn't get already. I mean,
he's 30 years old and he's got some college, right? I mean,
it's not like -- he's not a person that has an IQ of like 68.
He's an intelligent adult.
MR. JACQUET-FREESE: Certainly, Your Honor.
But I think that sort of the first signal that
something is amiss is when he's asked to write these checks
for better -- for more than people normally get. And frankly,
I don't know at what point that happens, whether it happens
when he's employed by the sheriff's office or not.
But I would suggest to the Court that in terms of
the timing that he's a law enforcement officer. I don't think
it's apparent to him at the beginning that he's doing anything
wrong. I think what --
THE COURT: Certainly at that point though -- again,
I appreciate the -- trying to sort of address the chronology.
But let's say for discussion that he's arrested on
the contraband, giving the contraband in the jail in Wilson
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County and he loses his job and then he's involved in this
with his mother and he's kind of aware of what her business is
and what it's not. And then the mom says as part of this or
just as part of it, it's like, write these checks that are not
true checks to people who are really working, and he's just
been arrested and presumably on bond because he doesn't
resolve that charge for another year. And it's kind of -- the
first rule of being out on bond is don't commit any more
crimes and he's like, Okay, mom, I'm going to help you.
I mean, it's just not good.
MR. JACQUET-FREESE: I understand that perspective
certainly, Your Honor. I --
THE COURT: Again, I just want to -- I'm just trying
to get an understanding. That's at least how it appears. And
if you think I'm wrong on the chronology or the facts, I'm
listening because I've tried -- every case is unique, every
defendant is unique, and I try to treat every sentencing as a
unique sentencing to the best of my ability.
MR. JACQUET-FREESE: And the thing that I would
emphasize is this is his mother who raised him sort of alone,
and I think there's a very strong influence there.
In terms of his ability to perform on release, I'd
ask the Court to look to his performance on pretrial release
in this case, and it's my understanding that it's been
sterling; that he moved to low-tensity supervision. I think
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he's had very positive interactions with his officers.
That, again, he's come with money to try and start
paying restitution. He's going to be best able to do that if
there was not another interruption to his ability to work,
someone that has already gone to prison for this loan. I'd
ask the Court to take all of that into consideration when
considering our sentencing requests.
THE COURT: Thank you.
(Pause in the proceeding.)
THE COURT: All right, Mr. 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 your counsel
has made, both here in court and in the memo that he
submitted. I have considered your statements, sir. 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
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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,
we talked about it here. You did participate in this
conspiracy to commit wire fraud.
As we've talked about, your mother had a business,
tried to get a loan through the PPP process, didn't get it,
then is contacted by a person who's, you know, perpetrating a
fraud and she goes down that path and you get involved, and
you do it when you're -- at least the beginning of it, it
starts when you're working for the Wilson County Sheriff's
Office as described in the PSR employment history section
where you had -- in paragraph 37.
And, again, I take what your lawyer said about your
mother initially having the principal interaction and really
the principal interaction throughout and you're being copied,
but certainly during the course of this -- again, you're an
intelligent man and at the time you're -- and you're now 33 so
this -- you were 31 or 30, in the window, and you have some
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college.
I understand that you grew up and your mom raised
you as a single mom and there were challenges during the
course of that period, but I also know you knew right from
wrong and you knew that there were lies in this.
And, it was -- again, they're lies associated with a
program, and I think it highlights kind of the seriousness, at
least to me. We live in an extraordinarily generous country.
And the generosity of the national legislature when there's
something like a pandemic or a hurricane or some other natural
disaster, these programs that are designed to help people who
are hurting are all premised on the honor system.
They premise it on the honor system, Congress does,
so that the money can get pushed out to people who are
hurting, who the legislature has decided need to get the help
through taxpayer money. And when people are dishonest about
it, it is harmful.
I just don't think as long as the republic survives,
however long that is, that the generosity of the people of
this country will change. And as a body politic, we will try
to help those who are hurting and we will build programs
premised on the honor system.
And I think that people who lie and steal that money
commit a very serious wrong. And I also think there are a lot
of people that get the opportunity to do that who don't do it,
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right? They basically are like, No, I'm not doing that.
That's not right. I'm not lying to get this money. It's not
intended for me. So it's very serious.
And I think it's particularly serious, at least in
part of the time period of this, this window, that I tried to
explore in the discussion with your counsel and with the
Assistant U.S. Attorney, is during part of it, you're working
for the Wilson County Sheriff's Office. You get arrested --
again, I understand your counsel said, you know, there's a
cousin in jail and a different cousin says can you give this
to the cousin that's in jail, but you have a responsibility as
a correctional officer not to just do that, right? I mean,
contraband in jail itself is a very serious problem. It's
just -- that's a serious violation. And so there's an arrest
in the midst of this for that contraband-related issue.
And then, as I understand it, these checks on the
back end of the fraud get written after you've been arrested
on that other charge. Where, again, to the extent that you're
not really focusing on things until then, I think it's just
absolutely clear by then that it's like, you know, mom and I
are writing fake checks and then we're getting money kicked
back and it's -- and you're getting some, and it's all
stealing.
And so it's very serious. And I think that is an
aggravator that wasn't present with respect to -- in terms of
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your mom wasn't an employee of the Wilson County Sheriff's
Office at any point when she was involved in this criminal
activity. And so that's a very negative fact in my mind when
I sort of think about this case.
And so even accounting for your lesser role relative
to your mother and even accounting for the fact that your
mother got a custodial sentence, I don't accept the argument
that one person went to prison associated with the loan and
that that should suffice and that a noncustodial sentence
would be the sentence that would promote respect for the law
or provide just punishment or would serve as a general
deterrent.
You know, again, I would be surprised if you
offended again. It's disappointing that you offended in part
on this when you were on bond after getting arrested and then
terminated from the job in the Wilson County Sheriff's Office.
But I think throughout you've kind of known right from wrong.
And you certainly have a work history that your counsel
detailed in the memo that he submitted that I read and that
the PSR reflects that. You're a very intelligent man. You're
able-bodied. You have a strong work ethic. You know right
from wrong.
You obviously did wrong in connection with this, but
I think that to promote respect for the law and to provide
just punishment that there needs to be and will be a custodial
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sentence in this case. And then when I think about your mom
in connection with this and unwarranted sentencing disparities
and even the arguments about 1040 and where the guideline
would be if it were -- you know, if I accepted the 1040
argument and the guideline were 8 to 14, I really am deeply
troubled that part of the time you engaged in this behavior
you're working for the Wilson County Sheriff's Office. And
then you get arrested with respect to the criminal conduct and
your one criminal conviction and then the false statements and
fraud continue after that in terms of being out on bond on
that and knowing better and promising basically not to commit
any crimes and then doing that.
So having fully considered all of that and the
entire record, and the need to promote respect for the law, to
provide just punishment, the need for general deterrence,
accounting for the concept of unwarranted sentencing
disparities but finding that there aren't any, even when I,
you know, consider the absence of the 1040 issue with your
mom, your lesser role that's in the plea agreement, which I
accept, but then what I consider to be the aggravating thing
associated with you being a Wilson County Sheriff's Office
employee in the midst of this and then getting arrested for
separate conduct associated with that and then continuing to
do this, I don't think there's anything unwarranted ultimately
about imposing a sentence and committing you to the custody of
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the Bureau of Prisons to be imprisoned for 12 months and one
day.
Upon release, you'll be placed on supervised release
for three years.
After carefully considering the provisions of 18
U.S.C., Section 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.
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, your need to pay restitution, and the
need to supervise you:
One, you shall submit to financial or consumer
credit counseling as directed by probation.
Two, you shall not incur new credit charges or open
additional lines of credit without approval of probation.
Three, You shall provide probation with access to
any requested financial information.
You shall make restitution in accordance with 18
U.S.C., Section 3663 and 3663(a) or any other statute
authorizing restitution.
If you have any unpaid amounts of restitution,
fines, or special assessments, you'll notify probation of any
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material change in economic circumstances that might affect
your ability to pay.
You'll cooperate in the collection of DNA as
directed by probation.
I suspend the drug testing condition of 18 U.S.C.,
Section 3608 because I think you pose a low risk of future
substance abuse.
Again, I acknowledge that you have performed well on
supervision. And, again, I don't think I'll see you again. I
think you'll serve this sentence, and then I think you'll
successfully complete supervised release.
You'll pay a special assessment of $100.
You owe restitution to the Small Business
Administration in the amount of $153,711.
Interest is waived on the restitution amount.
Any amount that is not payment in full will be
divided proportionally among the victims named.
You're jointly and severally liable along with your
co-defendants in this case and related cases to include Monica
Faye Barnes in the amount of $153,711.46; Quentin Allen
Jackson in that same amount; Schunda Coleman in that same
amount; and Edward Shelton Whitaker in that same amount.
No further payment shall be required after the sum
of the amount is actually paid by all defendants has been
fully covered for the compensable victim injuries.
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I'm not imposing a fine in light of the restitution
amount.
Payment of restitution is due in full immediately;
but because you cannot pay in full immediately, you'll pay
through the Inmate Financial Responsibility Program in the
amount of $25 a quarter.
When you get out you'll pay in installments of $200
a month to begin 60 days after your release.
At the time of your release, probation will take
into account your ability to pay and notify me of any needed
modification of the payment schedule.
I do think I've properly calculated the advisory
guideline range -- and, again, I understand the legal issue
about the 1040 enhancement -- but even if that ruling was
incorrect, I would impose the same sentence as an alternative
variant sentence. It actually would still be within the
guideline, but even if I committed any other errors in
calculating the advisory guideline range, the guidelines are
advisory, and I think 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 Mr. Barnes in light of all the 3553(a) factors.
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I recommend that he serve his sentence at Butner.
I recommend vocational/educational opportunities so
that he can continue to develop skills so that when he returns
home that he'll live in a law-abiding and productive way.
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.
Do you want him to be able to self-report?
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MR. JACQUET-FREESE: Yes, Your Honor. Could I have
just a moment with him?
THE COURT: Sure. Does the United States want to be
heard on that?
MR. BERAKA: No objection.
(Pause in the proceeding.)
MR. JACQUET-FREESE: Your Honor, if the Court would
consider a self-report date, if this is even something you can
do, after his mother is released. They live together. They
rent the home. I believe --
THE COURT: When does she get out?
MR. JACQUET-FREESE: I think that she was sentenced
July 28th, if I remember correctly. And I think 12 months and
a day would end up being about 10 and a half months. 11
months, I think, would be the end of June, but I'm not
entirely sure. I haven't checked to see what her release date
is.
(Pause in the proceeding.)
THE COURT: So what date do you want? I mean,
because it would be easy -- well, assuming the BOP's website
is accurate, they actually list -- they assume a person is
going to get good-time credit and they list the date that she
should get out.
Do you know when she went in?
MR. JACQUET-FREESE: I don't, Your Honor.
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THE DEFENDANT: September the 27th, I think.
THE COURT: She went in September the 27th?
I'll ask our probation officer to go to the BOP
website and look at what her release date is.
MR. JACQUET-FREESE: Thank you, Your Honor.
(Pause in the proceeding.)
THE PROBATION OFFICER: Your Honor, they have her
potential release date as June the 19th of this year.
THE COURT: Okay. Does the Government want to be
heard on that?
MR. BERAKA: No, Your Honor.
THE COURT: Okay. All right. Well, then I'll have
a -- I'm fine with him not reporting any sooner than
June 20th, 2024.
There's some paperwork that your counsel needs to go
over with you, Mr. Barnes, and so Mr. Jacquet-Freese can come
get it.
I'll write in on that fourth line that date, that it
will be no earlier than June 20th, 2024.
So Mr. Barnes, what's going to happen is I
recommended Butner, which is about an hour from here. I don't
know that's where they are going to designate you. They could
designate you somewhere else in the country. You have to get
there on your own nickel. You cannot be one second late. If
you're one second late, you're in violation of this Court's
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Case 5:23-cr-00094-D Document 90 Filed 04/26/24 Page 37 of 40
38
order and you're subject to further imprisonment. I expect
you to abide by all the same conditions that you've been
abiding by while you're waiting to go.
Once you get your designation, I'm going to put in
the order that it will be no sooner than June 20th, 2024; but
whatever date they tell you, you got to be there; you got to
get there on your own nickel, and you can't be one second
late.
Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Okay.
(Pause in the proceeding.)
MR. JACQUET-FREESE: Thank you, Your Honor. May I
approach?
THE COURT: All right, Mr. Barnes. So I have signed
the order and said you'll report no sooner than June 20th,
2024. You'll be notified when and where.
You will need to speak with the probation officer
here in court before you leave.
Is there anything else from the defense today?
MR. JACQUET-FREESE: No, Your Honor.
THE COURT: Anything else from the Government?
MR. BERAKA: No, Your Honor.
If I may, I wanted to take the opportunity to
introduce the new AUSA with our office. This is
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Case 5:23-cr-00094-D Document 90 Filed 04/26/24 Page 38 of 40
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Mr. Christopher Cogburn who has just joined the economic
crimes section, particularly to prosecute COVID fraud.
THE COURT: Good to have you, Mr. Cogburn. Look
forward to working with you.
That'll conclude the matter of Mr. Barnes.
Good luck to you, sir.
* * *
(The proceedings concluded at 1:55 p.m.)
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Case 5:23-cr-00094-D Document 90 Filed 04/26/24 Page 39 of 40
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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 26th day of April, 2024.
_____________________________
/s/ Amy M. Condon
Amy M. Condon, CRR, CSR, RPR
U.S. Official Court Reporter
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