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Motion to Sever — Defendant Baptiste
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Defendant Jerry Baptiste's motion to sever in United States v. Jerry Baptiste, et al., Criminal Action No. 1:20-CR-296-JPB-CMS-13, in the United States District Court for the Northern District of Georgia, Atlanta Division, filed March 14, 2022, as Document 440. The motion asks the Court to order a trial separate from any other defendant, citing Rules 12(b)(3) and 14 of the Federal Rules of Criminal Procedure and the Confrontation Clause of the Sixth Amendment. It states that the Second Superseding Indictment alleges 63 counts against 16 defendants and 18 separate conspiracies, and that Baptiste is named in only one conspiracy count, Count Nine, relating to a loan to Transportation Management Services. It also raises Bruton as to co-defendant Christian's statements to law enforcement.
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Cite this document
“Motion to Sever — Defendant Baptiste.”
Original at ecf.gand.uscourts.gov, No. 1:20-cr-00296-JPB-CMS, Doc. 440. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/us-v-dixon/2022-03-14-motion-to-sever-dkt-440/
, SHA-256 752c1d0856b5c0070404f91d742b97bb76a6fad570bcc9ca70da6c3329ad6f17.Full text
Case 1:20-cr-00296-JPB-CMS Document 440 Filed 03/14/22 Page 1 of 13
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 TO SEVER
Defendant Jerry Baptiste (“Defendant”), through counsel, pursuant to the
Rules 12(b)(3) and 14 of the Federal Rules of Criminal Procedure, and the
Confrontation Clause of the Sixth Amendment and Bruton v. United States, 391
U.S. 123 (1968), respectfully moves this Court to sever his case and order that his
trial be separate from any other defendant in this case.
SECOND SUPERSEDING INDICTMENT
The Second Superseding Indictment (“SSI”) alleges 63 counts against 16
defendants, 14 of whom, including Defendant, are still before the Court as of the
filing of this motion.1 (Doc. 290.) The SSI alleges 18 separate conspiracies
allegedly arising from 14 loans made by five financial institutions under the
Paycheck Protection Program (“PPP”) and involving a hodgepodge of defendants
1
Defendants Blakely and Christian have change of plea hearings currently scheduled for March 15 and 23, 2022,
respectively. (February 28, 2022, and March 7, 2022, docket entries).
Case 1:20-cr-00296-JPB-CMS Document 440 Filed 03/14/22 Page 2 of 13
and yet more individuals alleged but not charged in the SSI.2 (Id.) Four of the
alleged conspiracies are money laundering conspiracies relating to the proceeds of
some of the PPP loans alleged in the SSI. (Id. at ¶¶ 184 – 98.) The SSI alleges a
variety of different and overlapping defendants in each of the 18 separate
conspiracies.3 In other words, with one exception, every one of the 18 separate
conspiracies involves a different set of defendants who are alleged to have
conspired together.4 In addition to the 18 separate conspiracies, the SSI alleges 20
wire and bank fraud charges and six counts of making a false statement to a
financial institution, again all involving differing defendants and different loans.
(Doc. 290.) Finally, the SSI alleges 18 individual money laundering counts
involving a variety of defendants and one aggravated identity theft count. (Id.)
Defendant is named in only one of the conspiracy counts, Count Nine,
relating to only one of the 14 loans, made to Bern Benoit’s company
Transportation Management Services (“TMS”). (Id. at ¶¶ 88-92.) Although the
SSI also charges Defendant in Counts Ten and Eleven with substantive bank and
2
Such additional individuals were charged in the original indictment or in other cases pursuant to an information.
For example, in Case No. 1:21-CR-179-JPB, the Government charged and obtained a guilty plea from Denesseria
Slaton, alleged throughout the SSI as a participant in several of the alleged conspiracies.
3
Counts One, Three, Six, Nine, Twelve, Fifteen, Eighteen, Twenty, Twenty-Three, Twenty-Five, Twenty-Seven,
Thirty, Thirty-Two, Thirty-Four, Sixty, Sixty-One, Sixty-Two, and Sixty-Three. (Doc. 290).
4
In essence, the SSI and the original indictment in this case charge a central, hub conspiracy and individual
conspiracies, or spokes, radiating outward from the central hub, with the separate spokes acting independently of
and unaware of the other spokes. “The Supreme Court has characterized such a conspiracy as a ‘rimless wheel’
because there is no rim to connect the spokes into a single scheme.” United States v. Chandler, 388 F.3d 796, 807
(11th Cir. 2004) (quoting Kotteakos v. United States, 328 U.S. 750, 755 (1946)). The one exception referenced
above are Counts Twelve and Twenty-Three, which allege the same two defendants as co-conspirators, but
otherwise involve different loans.
2
Case 1:20-cr-00296-JPB-CMS Document 440 Filed 03/14/22 Page 3 of 13
wire fraud counts, in Count Thirty-Eight with a false statement to a financial
institution, and three money laundering counts in Counts Forty-Eight through
Fifty, all of these counts relate only to the TMS loan. (Id. at ¶¶ 93-97, 180-81, 182-
83. ) The SSI does not charge Defendant, or even allege anything about him, in any
of the other loans, conspiracies, or counts.
Counts Nine, Ten, Eleven, and Thirty-Eight in which Defendant is named
included only three co-defendants: Foster, Christian, and Petty, who has since
plead guilty and been sentenced. (Id. at ¶¶ 93-97, 180-81, 182-83); (Doc. 393,
427.) Unlike Defendant, Foster is charged in 14 separate conspiracy counts, i.e.,
with conspiracies related to each of the PPP loans at issue, and in 22 substantive
counts relating to such loans. (Doc. 290.) Like Foster, Christian is charged in 5
alleged separate conspiracies and 9 other counts relating to several PPP loans in
addition to the TMS loan. (Id.) If Christian enters a guilty plea as scheduled on
March 23, 2022, then Foster will be the only remaining defendant charged in the
same counts as Defendant. None of the remaining individuals before the court are
charged in the money laundering counts alleged against Defendant (Petty was the
sole codefendant in the money launder charges). (Id. at ¶ 183.)
STATEMENTS TO LAW ENFORCEMENT DURING THE
INVESTIGATION BY CHRISTIAN
During the course of the government’s investigation, government agents
conducted recorded interviews of co-defendant Christian. During the first recorded
3
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interview, the government agent specifically asked Christian about Defendant.
Christian responded to this question with statements allegedly about Defendant’s
conduct. The agent also asked Christian about the TMS loan, which she said that
she could not recall. In April 2021, prior to her indictment in this case, the
government again interviewed Christian pursuant to a “proffer” letter. During this
interview, the AUSA and government agent asked Christian numerous questions
about Defendant, both related and unrelated to the TMS loan, Petty, and the loan to
TMS, among many other things. In response to these questions, Christian made
various statements about these subjects and also allegedly Defendant’s conduct.
LEGAL STANDARDS
Rule 14(a) states “[i]f the joinder of offenses or defendants in an indictment
... appears to prejudice a defendant or the government, the court may order separate
trials of counts, sever the defendants' trials, or provide any other relief that justice
requires.” Fed. R. Crim. P. 14(a). The Court must grant a severance if (1) “there is
a serious risk that a joint trial would compromise a specific trial right of one of the
defendants,” or (2) if a joint trial would “prevent the jury from making a reliable
judgment about guilt or innocence.” United States v. Thompson, 422 F.3d 1285,
1292 (11th Cir. 2005) (quoting Zafiro v. United States, 506 U.S. 534, 539 (1993)).
Among other reasons, courts sever defendants in a multi-count, multi-defendant
case where defendants rely on mutually antagonistic defenses; where inculpatory
4
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evidence will be admitted against one defendant that is not admissible against the
other; and where cumulative and prejudicial “spill over” effect may prevent the
jury from sifting through the evidence to make an individualized determination as
to each defendant. United States v. Chavez, 584 F.3d 1354, 1360-61 (11th Cir.
2009). Severance is appropriate “where one defendant is being charged with a
crime that, while somehow related to the other defendants or their overall criminal
scheme, is significantly different than those of the other defendants.” United States
v. Blankenship, 382 F.3d 1110, 1125 (11th Cir. 2004).
“[I]f the defendant can demonstrate that a joint trial would result in specific
and compelling prejudice to the conduct of his defense,” a Rule 14 severance
should be granted. United States v. Blasingame, 219 Fed. App’x 934, 948 (11th
Cir. 2007). To determine “compelling prejudice,” the Court must assess “whether
under all the circumstances of a particular case, as a practical matter, it is within
the capacity of the jury to follow the [instructions] and accordingly . . . appraise the
independent evidence against each defendant’s own acts, statements and conduct.”
Id. (alterations and omission in original). A defendant can show compelling
prejudice “by showing that the jury [would be] unable to sift through the evidence
and make an individualized determination as to each defendant.” United States v.
Cassano, 132 F.3d 646, 651 (11th Cir. 1998).
5
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“Under Bruton, severance may be required where the Government seeks to
introduce a non-testifying co-defendant's extrajudicial confession that directly
incriminates the defendant, even when introduced only against the co-defendant. If
the confession is introduced, and the co-defendant does not testify, the defendant's
Sixth Amendment right to directly confront adverse witnesses against him may be
infringed.” United States v. Hardwick, No. 1:16-CR-65-ELR-CMS, 2016 WL
7638476, at *2 (N.D. Ga. Dec. 12, 2016), report and recommendation adopted,
2017 WL 36402 (N.D. Ga. Jan. 4, 2017) (citing Bruton, 391 U.S. at 126). While a
statement can be redacted to comply with Bruton, the statement must be redacted
to remove all incriminating references. Richardson v. Marsh, 481 U.S. 200, 211
(1987); United States v. Gonzalez, 183 F.3d 1315, 1321-22 (11th Cir. 1999).
However, even when the statement is redacted, “a defendant's confrontation right is
violated when the court admits a codefendant statement that, in light of the
Government's whole case, compels a reasonable person to infer the defendant's
guilt.” United States v. Schwartz, 541 F.3d 1331, 1351 (11th Cir. 2008).
ARGUMENT AND AUTHORITY
Under the above standards, Defendant will be impermissibly prejudiced and
his constitutional rights will be violated if he is tried jointly with the other
defendants in this case. Faced with a blizzard of evidence regarding 18 separate
conspiracies and the associated numerous wire and bank fraud, false statement, and
6
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money laundering charges all involving a hodgepodge of 14 defendants, no jury in
a joint trial will be able to segregate the evidence relevant to the charges against
Defendant and make “a reliable judgment about guilt or innocence even if limiting
instructions are given.” United States v. Lopez, 649 F.3d 1222, 1235 (11th Cir.
2011). Moreover, assuming that she does not plead guilty as currently scheduled,
admission of Christian’s statements against her at a joint trial with Defendant will
violate Defendant’s Confrontation Clause Rights and Bruton.
I. A Joint Trial Will Deny Defendant A Fundamentally Fair Trial And
Prevent the Jury From Making a Reliable Judgment About Guilt or
Innocence.
The Government did not allege facts differentiating the individuals charged
in the SSI or individuals that are alleged in the SSI but that have been charged in
other instruments. Had it done so, the Court would readily understand that
Defendant’s alleged role is different than that allegedly played by other individuals
who the Government seeks to jointly try him with. Defendant was not a borrower,
did not have a company that allegedly received one of the PPP loans at issue, and
did not sign any of the alleged loan applications, which distinguishes him from
many of the other individuals charged in the SSI. For example, Benoit, who has
plead guilty, was the sole borrower and sole signatory on the loan application for
his company TMS. With regard to the remaining non-borrower defendants, such
as Foster and Christian and others similarly situated, such defendants allegedly
7
Case 1:20-cr-00296-JPB-CMS Document 440 Filed 03/14/22 Page 8 of 13
participated in multiple loans in various ways the Government claims are
fraudulent. That is not the case with Defendant.
Unlike other defendants then, Defendant was neither a borrower nor a
participant in the central hub of the alleged scheme. A joint trial will create the
impermissible risk that Defendant will be found guilty because he is being tried
with individuals who allegedly signed false loan applications (which Defendant did
not) or who allegedly helped submit false loan documents for numerous loans (in
which Defendant was not involved). The Government will not tender any evidence
that Defendant dealt with anyone alleged in the SSI or related charging documents
other than Benoit, Christian, and Petty in connection with the TMS loan – i.e.,
there should be no evidence that Defendant communicated with Foster, Slaton, or
Thomas, or any of the other defendants or individuals alleged in connection with
this case. Among other things, Defendant will argue at trial that he relied on
Benoit, Christian, and Petty for the accuracy and appropriateness of matters related
to Benoit’s TMS loan. Defendant should not be dragged into a joint, multi-
defendant, multi-count trial where the vast majority of the evidence will not be
directly relevant to the relatively narrow charges and evidence against him. Such
evidence will serve only as to him to impermissibly prejudice the jury’s
independent evaluation of his defense with regard the single relevant TMS loan.
8
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If discovery is any indication, the Government’s evidence in a joint trial will
consist of a mountain of evidence, including numerous witnesses, recorded
statements to law enforcement made by several defendants (but not Defendant,
who was never interviewed), loan applications and related documents, emails, bank
records, and other evidence relating to the 14 loans alleged in the SSI and any
similar act evidence regarding the numerous other defendants that the Government
is allowed to present. Putting evidence regarding the TMS loan aside, none of this
will involve Defendant. See United States v. Erwin, 793 F.2d 656, 666 (5th Cir.
1986) (holding that severance of a particular co-defendant was required because
“[t]he charges against her were only peripherally related to those alleged against
the other [co-defendants, and] [a]s the trial progressed it became increasingly
apparent that very little of the mountain of evidence was usable against her”).
A joint trial in this case will involve proof of 18 separate conspiracies, no
two of which, with one exception, are alleged to have the same co-conspirators.5
And, as a result of guilty pleas, there is a very good chance that only one other co-
defendant, or at most two co-defendants, at trial will even be charged in and
standing trial on the counts alleged against Defendant. In other words, Defendant
5
Counts Twelve and Twenty-Three allege the same two conspirators although the counts involve different loans.
9
Case 1:20-cr-00296-JPB-CMS Document 440 Filed 03/14/22 Page 10 of 13
would be tried with as many as 10 co-defendants with whom he is not jointly
charged.6
That is too many for a fair trial where as here, Defendant is charged in
connection with one transaction, occupies a role different than the other co-
defendants, and the other defendants are charged in 17 other separate and varying
conspiracies. This will swamp the jury’s ability to “to collate and appraise the
independent evidence against” Defendant and judge his guilt or innocence “solely
upon [Defendant’s] own acts, statements and conduct.” See United States v. Zicree,
605 F.2d 1381, 1389 (5th Cir. 1979); United States v. Fergerson, No. 2:11-CR-
00048-MEF, 2011 WL 4530576, at *4 (M.D. Ala. Sept. 12, 2011), report and
recommendation adopted, 2011 WL 4530598 (M.D. Ala. Sept. 30, 2011) (quoting
Zicree). A joint trial in this case “will result in specific and compelling prejudice
to the conduct of” Defendant’s defense. United States v. Schlei, 122 F.3d 944, 984
(11th Cir. 1997). Even with limiting instructions, the jury cannot reasonably sift
the evidence relevant to Defendant in a joint trial and “make an individualized
determination as to” him. Cassano, 132 F.3d at 651.
6
There are currently 14 remaining defendants, including Defendant Baptiste. If Blakely and Christian enter guilty
pleas as currently scheduled, Defendant and 11 other defendants remain for trial. Foster will be the only remaining
defendant with whom Defendant is jointly charged.
10
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II. A Joint Trial Will Deny Defendant His Sixth Amendment
Confrontation Clause Rights and Violate Bruton.
As recounted above, co-defendant Christian made two recorded statements
to law enforcement agents. Assuming the Government would offer Christian’s
statements at trial against her, Defendant must be severed from Christian if she
does not enter a plea as currently scheduled. Christian gave two interviews and
made direct statements about Defendant’s conduct. While the second statement
was made pursuant to a proffer letter, the standard proffer letter used by the U.S.
Attorney’s Office does not bar use of Christian’s statements at trial in all
circumstances. Rather, the proffer letter sets forth exceptions allowing the
Government to use Christian’s statements against her at trial if she takes a different
position at trial than in the proffer session or if she lied in the proffer session.
Based on the recording of her proffer produced by the Government in discovery,
the Government can readily claim that either exception is met here and use her
statements against her at trial.
Defendant Christian is scheduled to enter a guilty plea on March 23, 2022
See (March 7, 2022 Docket entry.) Obviously, this will obviate this basis for
severance. Defendant respectfully requests the opportunity to promptly perfect this
basis for severance and particularize Christian’s statements that would violate
Bruton in the event that she does not enter a guilty plea as expected.
11
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CONCLUSION
For all of the foregoing reasons, the Court should sever Defendant’s case
and order that his trial be separate from any other defendant in this case.
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
12
Case 1:20-cr-00296-JPB-CMS Document 440 Filed 03/14/22 Page 13 of 13
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
13
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