Motion for a Bill of Particulars — Defendant Baptiste

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Defendant Jerry Baptiste's motion for a bill of particulars in United States v. Jerry Baptiste, et al., Criminal Action No. 1:20-CR-296-JPB-CMS-13, U.S. District Court for the Northern District of Georgia, Atlanta Division, Document 438, filed March 14, 2022. Under Rule 7(f) of the Federal Rules of Criminal Procedure, the motion asks the Court to order the Government to file a bill of particulars identifying the electronic communications or transmissions it intends to prove at trial for Count Ten (bank fraud scheme), Count Eleven (wire fraud scheme) and Count Thirty-Eight (false statement to a financial institution). The motion argues that the Second Superseding Indictment alleges the material that was transmitted but not the actual transmissions. The signature block names Douglas W. Gilfillan.

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   Case 1:20-cr-00296-JPB-CMS       Document 438      Filed 03/14/22   Page 1 of 9




                IN THE UNITED STATES DISTRICT COURT
               FOR THE NORTHERN DISTRICT OF GEORGIA
                          ATLANTA DIVISION

 UNITED STATES OF AMERICA                       Criminal Action No.

   v.                                           1:20-CR-296-JPB-CMS-13

 JERRY BAPTISTE, et al.


 DEFENDANT BAPTISTE’S MOTION FOR A BILL OF PARTICULARS

        Defendant Jerry Baptiste (“Defendant”), through counsel, pursuant to the

Rule 7(f) of the Federal Rules of Criminal Procedure respectfully moves this Court

to order the Government to file a Bill of Particulars identifying the actual

electronic communication(s) or transmission(s) that the Government intends to

prove at trial as the execution of the bank fraud scheme charged in Count Ten, the

execution of the wire fraud scheme charged in Count Eleven, and the making of a

false statement to a financial institution charged in Count Thirty-Eight.

                    SECOND SUPERSEDING INDICTMENT

        Count Ten alleges that on May 20, 2020, Defendant and at least six other

individuals executed the alleged bank fraud scheme in violation of 18 U.S.C. §

1344 “by causing false IRS Form 941s and a false bank statement for

Transportation Management Services Inc. to be transmitted to Financial Institution

1 and making false representations and certifications to Financial Institution 1
   Case 1:20-cr-00296-JPB-CMS       Document 438      Filed 03/14/22   Page 2 of 9




regarding Transportation Management Services Inc.’s payroll costs and the

purpose of the applied-for PPP loan.” (Doc. 290 at ¶ 95.)

      Count Eleven alleges that on May 20, 2020, Defendant and at least six other

individuals executed the alleged wire fraud scheme in violation of 18 U.S.C. §

1343 by “caus[ing] to be transmitted by means of a wire communication in

interstate and foreign commerce certain writings, signs, signals and sounds,

namely, a PPP Borrower Application Form containing false information related to

Transportation Management Service’s Inc.’s payroll obligations and the purposes

of the applied-for PPP loan, and attaching falsified tax documentation for each

quarter of 2019 and a falsified bank statement.” (Id. at ¶ 97.)

      Count Thirty-Eight alleges the May 20, 2020, making of a false statement to

a financial institution in violation of 18 U.S.C. § 1014. Specifically, Count Thirty-

Eight alleges that on May 20, 2020, Defendant at least 6 other individuals

“knowingly made a false statement for the purpose of influencing the actions of the

financial institutions identified below, the accounts of which were insured by the

FDIC, in connection with PPP loan applications by the business identified below,

in that the Defendants did the following . . . . . signed and initialed a PPP Borrower

Application Form for Transportation Management Services, Inc. falsely certifying”

the length of time that the business had been in existence, that the funds would be




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use for permitted PPP purposes, and that the application and all supporting

documents were true and correct.” (Id. at ¶ 181.)

                               LEGAL STANDARDS

      Rule 7 of the Federal Rules of Criminal Procedure requires only that an

indictment “be a plain, concise, and definite written statement of the essential facts

constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). An indictment is

sufficient if it tracks the wording of the statute, so long as the language sets forth

the essential elements of the crime. See United States v. Critzer, 951 F.2d 306, 307

(11th Cir. 1992).

      A defendant “may still be entitled to additional detail from the government

through a bill of particulars.” United States v. Pendergrass, No. 1:17-CR-224-AT-

CMS, 2020 WL 716747, at *1 (N.D. Ga. Jan. 22, 2020), report and

recommendation adopted, 2020 WL 709283 (N.D. Ga. Feb. 12, 2020). “A district

court should require the government to file a bill of particulars where it is

necessary ‘(1) to inform the defendant of the charge against him with sufficient

precision to allow him to prepare his defense; (2) to minimize surprise at trial; and

(3) to enable the defendant to plead double jeopardy in the event of a later

prosecution for the same offense.’” Id. (quoting United States v. Warren, 772 F.2d

827, 837 (11th Cir. 1985)). “A bill of particulars, properly viewed, supplements an

indictment by providing the defendant with information necessary for trial


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preparation.” United States v. Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986)

(emphasis in original).

                            ARGUMENT AND AUTHORITY

       The Counts alleged against Defendant allege the material that was wired or

transmitted, but do not allege the actual transmission(s) or electronic

communication(s) that the Government intends to prove at trial to establish Counts

Ten, Eleven, and Thirty-Eight. Particularization of this information is necessary to

the preparation of Defendant’s defense and should be identified by the Government

in a Bill of Particulars.

       An actual communication, whether by electronic communication or

transmission to a financial institution, is an essential element of each of the crimes

at issue. An interstate wire communication is an essential element of the crime of

wire fraud. See § 1343; United States v. Estepa, 998 F.3d 898, 908 (11th Cir.

2021) (to convict a defendant of wire fraud the government must prove “the use of

the interstate ... wires in furtherance of” the scheme). Section 1014 requires proof

that a false statement or report was “made” to a financial institution among other

elements. See § 1014; United States v. Williams, 785 F. App'x 692, 699 (11th Cir.

2019). Similarly, bank fraud requires proof that false statements or representations

were “made” to obtain property of a financial institution. United States v. De La

Mata, 266 F.3d 1275, 1298 (11th Cir. 2001). These essential elements should be


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alleged in the indictment or in a bill of particulars. But while the SSI alleges the

material that was wired or transmitted, it does not sufficiently allege the actual

electronic communication(s) or transmission(s) of such material.

      Identification of the precise transmission(s) or electronic communication(s)

is necessary for Defendant to prepare to address one of the essential elements of

each of the crimes at issue. For example, the bare allegations in the SSI do not

provide Defendant with sufficient information to prepare to test whether the wire at

issue traveled in interstate commerce – indeed, the bare allegation does not allege

that the material traveled from any one particular place to any another. Similarly,

the SSI does not allege sufficient information for Defendant to prepare to contest

the making of the actual false statement at issue – again, the bare allegation does

allege any information showing that the statement was actually made, i.e., by who,

how, and to who it was actually made. So too with the bank fraud count, in which

the SSI alleges the transmission of alleged false material to a financial institution,

but nothing sufficient to be prepared to meet at trial regarding the actual

transmission itself. For each of these, the SSI simply alleges the statutory

language, which is insufficient here.

      Based on these bare allegations, Defendant cannot prepare to contest at trial

whether the wire actually traveled in interstate commerce, or whether the alleged

false documents and statement was transmitted or made to a financial institution


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(as opposed to some other entity). As another example, to the extent that the

Government relies on the actual transmission(s) or electronic communication(s) to

establish venue, Defendant has no ability to assess whether venue has been

properly laid in this case.1 Defendant cannot tell from the SSI whether the

Government intends to prove one, two, or three separate wires or transmissions at

trial for each of the counts at issue. Defendant should not be forced to guess or

speculate based on the similar date allegation for all three.

        The issue raised here is all the more important because of the multiple

entities involve in the making of the Transportation Management Services

(“TMS”) loan alleged in the counts against Defendant. The SSI alleges that the

TMS loan involved a financial institution, Cross River Bank, but that another

entity, Blue Vine, which was not a financial institution, acted as “a service

provider” and “review[ed]” loan applications. (Doc. 290 at ¶ 35.) Yet another

entity, the U.S. Small Business Administration, was also involved in some

unspecified fashion in the making of the TMS loan. (Id. at ¶ 22.) Although the SSI

does not allege details about that involvement, the Government produced the TMS

loan application and related documents in discovery only from the SBA, not from

Cross River Bank or Blue Vine. The Court should require the Government to




1
 One can scrutinize the SSI in vain for any factual allegations supporting venue for the charges against Defendant
beyond the repetitive bald allegation “In the Northern District of Georgia and elsewhere.”

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particularize the specific wire(s) and transmission(s) that it intends to prove so that

Defendant can prepare for trial and not have to guess the specific wire(s),

transmission(s), and entities at issue.

      Courts have required particularization of indictments that fail to allege the

information requested here. In United States v. Kernell, No. 3:08-CR-142, 2010

WL 1408438, at *4 (E.D. Tenn. Apr. 2, 2010), the Court found that

“particularization of the electronic transmissions that form the basis of Count 2 [a

wire fraud count] is appropriate so that the Defendant can prepare to defend this

count at trial.” Similarly, in United States v. Reale, No. S4 96 CR. 1069 (DAB),

1997 WL 580778, at *14 (S.D.N.Y. Sept. 17, 1997) the court granted the

defendants “request for a Bill of Particulars identifying the specific mailings and

wire transfers and the approximate dates alleged in Counts Nine through Eleven on

which they occurred.” In United States v. Dorfman, 335 F. Supp. 675, 680

(S.D.N.Y. 1971), addressing a request to particularize wire fraud counts, the court

concluded that “[t]he use of telephonic communication is a jurisdictional element

in these counts. If the defendant can successfully move against these counts for

jurisdictional deficiency, he should be given the means to do so.” See also United

States v. Crisona, 271 F. Supp. 150, 156 (S.D.N.Y. 1967) (ordering the

government to provide a bill of particulars “[w]ith respect to each count alleging

the transmittal of a telephone call, telegram, or letter in furtherance of the alleged


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scheme to defraud, the identity of the person or persons who made the telephone

call or sent the telegram and letter, the identity of the person or persons, or the

number to which, the telephone call was made, [and] the identity of the addressee

of the telegram or letter.”).

                                   CONCLUSION

       For all of the foregoing reasons, the Court should order the Government to

file a Bill of Particulars identifying the specific wiring(s) and transmission(s)

alleged in Counts Ten, Eleven, and Thirty-Eight that the Government intends to

prove at trial.

       Respectfully submitted this 14th day of March, 2022.

                                        /s/ Douglas W. Gilfillan
                                        Douglas W. Gilfillan
                                        Georgia Bar No. 294713
                                        Kilpatrick Townsend & Stockton, LLP
                                        Suite 2800
                                        1100 Peachtree Street NE
                                        Atlanta, Georgia 30309
                                        (404) 815-6019 (Phone)
                                        (404) 795-9047 (Facsimile)
                                        dgilfillan@kilpatricktownsend.com

                                        Counsel to Jerry Baptiste




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                      LOCAL RULE 7.1D CERTIFICATE

      The undersigned hereby certifies that the foregoing has been formatted in

Times New Roman font, 14 point type, which complies with the font size and point

requirements of Local Rule 5.1C.


                          CERTIFICATE OF SERVICE

      I hereby certify that the foregoing document was electronically filed with the

Clerk of Court using the CM/ECF system, which automatically serves notification

of such filing to all counsel of record, including:

             Tal C. Chaiken
             Assistant United States Attorney
             Nathan P. Kitchens
             Assistant United States Attorney
             U.S. Attorney’s Office
             75 Ted Turner Drive, Suite 600
             Atlanta, GA 30303

      This 14th day of March, 2022.

                                        /s/ Douglas W. Gilfillan
                                        Douglas W. Gilfillan
                                        Georgia Bar No. 294713
                                        dgilfillan@kilpatricktownsend.com




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