Motion to Suppress Evidence and Fruits Seized Pursuant to the Search Warrant — Defendant Baptiste

Summary

Defendant Jerry Baptiste's Motion to Suppress Evidence and Fruits Seized Pursuant to the Search Warrant Directed to Google, with memorandum of law, filed March 14, 2022 as Document 439 in United States v. Jerry Baptiste, et al., Criminal Action No. 1:20-CR-296-JPB-CMS-13, in the U.S. District Court for the Northern District of Georgia, Atlanta Division. The motion asks the Court to suppress evidence obtained from an August 18, 2020 search warrant directed to Google, Inc. for the emails in an account, and to conduct a hearing under Franks v. Delaware. It argues that the affidavit falsely described and omitted material facts about one email, and that the warrant is an impermissible general warrant. It is signed /s/ Douglas W. Gilfillan.

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   Case 1:20-cr-00296-JPB-CMS       Document 439    Filed 03/14/22      Page 1 of 22




                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 SUPPRESS EVIDENCE AND
FRUITS SEIZED PURSUANT TO THE SEARCH WARRANT DIRECTED
    TO GOOGLE FOR NETBASEDSTUDIOS@GMAIL.COM AND
            MEMORANDUM OF LAW IN SUPPORT

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

Fourth Amendment to the United States Constitution and Rules 12(b)(3) and 41(h)

of the Federal Rules of Criminal Procedure, respectfully moves this Court to

suppress evidence obtained from an August 18, 2020, Search Warrant directed to

Google, Inc., seeking the production of all the emails in the account

netbasedstudios@gmail.com (“Defendant’s email account” or “the target email

account”). For the reasons set forth below, Defendant asks that this Court conduct

a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), and order that all

emails, documents, and other items obtained from Defendant’s email account

pursuant to the warrant be suppressed and inadmissible in any trial.
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                                 INTRODUCTION

      The search warrant at issue, attached as Exhibit 1, is fatally flawed,

overbroad and was issued in violation of Defendant’s Fourth Amendment rights.

The affidavit for the warrant falsely described and made material omissions in

portraying as nefarious and evidence of criminal activity one of only two emails

specifically alleged involving Defendant’s email account. Because the email was

already in the government’s possession when this false description was made, the

Court should conclude that the false description was made either intentionally or

with reckless disregard for the truth. The Court also should conclude that the false

statement was necessary to the finding of probable cause because the remainder of

the affidavit as to Defendant’s email account consists of another email that is not

alleged to be false or contain false information and conclusory statements which

are insufficient to establish probable cause.

      Moreover, the warrant is an impermissible general warrant in two related

ways. First, the warrant compelled Google to produce to the government, among

other information, “[t]he contents of all emails associated with” Defendant’s email

account and other information within a certain time period, despite the lack of

probable cause for such a sweeping, general production. And second, the affidavit

does not set forth a legally sufficient nexus between the alleged criminal activity

and specific, articulable facts sufficient to guide the agent’s discretion in selecting


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items to be seized beyond those relating to the TMS loan. As a result, the warrant

authorized government agents to rummage through Defendant’s email account to

seize emails and information falling well outside the limited alleged probable cause

related to Defendant’s email account. In these respects, the warrant was a

prohibited general warrant.

      The false statement and material omissions remove this warrant from the

Leon good faith exception. The exception would not apply in any event because

no law enforcement officer could reasonably rely on this affidavit in obtaining the

entire contents of Defendant’s email account and seizing all of the items described

in the warrant. As a result, after a Franks hearing, the Court should suppress the

evidence and fruits thereof seized pursuant to the search warrant.

                         RELEVANT BACKGROUND

      On or about July 7, 2020, during the course of his investigation of this

matter, the FBI agent who later obtained the warrant at issue placed a recorded call

to Bern Benoit about a PPP loan obtained for his business Transportation

Management Services, Inc. (“TMS”). During that call, among other things, the

agent asked Benoit about Defendant. Benoit told the agent that Defendant was his

friend and that he had known him for a while. Benoit also told the agent that

Benoit had provided his business information for TMS to Defendant, who Benoit




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believed had in turn had provided it to an individual named Charles Knight (a/k/a

Charles Petty) (“Knight”).

       On August 4, 2020, a federal grand jury in the Northern District of Georgia

returned a 30 count indictment against five defendants, including Benoit, alleging a

scheme to obtain fraudulent loans from the U.S. Small Business Administration

(“SBA”) under the Paycheck Protection Program (“PPP”) established as part of the

Coronavirus Aid, Relief, and Economic Security (“CARES”) Act enacted in or

about March 2020. (Doc. 1.) The charges alleged against Benoit all related to a

single alleged loan obtained by Benoit for his company TMS. (Id. at ¶¶ 51- 60, 71,

73.)

       On or about August 16, 2020, the government applied for and obtained a

search warrant for Defendant’s email account and others, including Knight’s. Ex.

1. As described below, the warrant required Google to give the government the

entire contents of, and all available information about, Defendant’s email account.

Based on allegations regarding a single loan and the agent’s training and

experience that the information to be seized would identify the user of the target

email account, the warrant allowed government agents to read and review all the

emails in Defendant’s email account and to seize, among other things, evidence

relating to “any” PPP loan, including communications about “any” PPP loan, and

“any fraudulent loan application.” Ex. 1, Attachment B.


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        Almost a year later, on July 13, 2021, the government obtained a

superseding indictment charging Defendant and 14 additional individuals in 62

counts arising from an alleged scheme to obtain fraudulent SBA PPP loans. (Doc.

135.) Despite the number of charges and defendants in this superseding

indictment, Defendant was charged only in connection with the single alleged loan

that Benoit obtained for his company TMS. (Doc. 135.) The superseding

indictment included Knight, among others, as a co-defendant in the charges against

Defendant. (Id.). The Government subsequently obtained a Second Superseding

Indictment adding another defendant and 63rd count not relevant here. (Doc. 290.)

              SEARCH WARRANT APPLICATION AND AFFIDAVIT

        In support of its search warrant for Defendant’s email account, the

Government’s affidavit specifically alleges the following1 regarding Defendant’s

email account:

         Based on documents produced by Benoit, on May 29, 2020, Knight “sent

             an email to” Defendant with a subject line of “Expenses for

             Transportation Management” and including an “itemized list of

             ‘purported’ expenses” for Benoit’s company TMS, which Defendant

             “then forwarded to” Benoit’s email. Ex. 1 at ¶ 34.2 The allegation that



1
  In recounting the affidavit allegations, Defendant does not concede that they are true. Indeed they are not as
described here.
2
  The affidavit alleges that Knight used the email address, charleswilliamknight7@gmail.com, to send this email.

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      the list of expenses for Benoit’s company originated with Knight and that

      he sent the email to Defendant is false, as the only email that Benoit

      produced to the government shows that it was Defendant who sent

      Knight the list of expenses for TMS and that Defendant then forwarded

      his own email to Benoit. See Exhibit 2. Moreover, the affidavit omits

      that Benoit had already told the agent in a recorded interview that

      Defendant was his friend, that he had known Defendant for a while, and

      that he had provided his business information to Defendant to be

      provided to Knight. Ex. 1 at ¶ 34.

    On June 15, 2020, after the TMS loan was funded, Defendant, using an

      email other than the target email account, forwarded Benoit an email

      from Knight with the subject line “disbursement time” and instructions

      from Knight “for the purpose of keeping [Benoit] legal and safe” with

      regard to the disbursement of loan proceeds. On its face, this email

      included instructions for disbursements related to rent and payroll, among

      other things. Id. at ¶ 51. The affidavit does not allege any additional facts

      regarding the payments referenced in the email.

    In May and June 2020 Benoit exchanged emails with Defendant’s email

      account, and that during this period Benoit, via TMS, transferred money




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      to Defendant’s bank account. Id. at ¶ 53. The affidavit does not allege

      any facts regarding the purpose of such transfers.

    In May and June 2020, Defendant’s email address and defendant Knight

      exchanged “many emails” in May and June 2020, including “19 emails”

      on or about June 15, 2020, the date of the disbursement and “safe and

      legal” email described above. Id. at ¶54.

   Similarly, other allegations regarding Defendant and Defendant’s email

account are merely conclusory statements. See, e.g., id. at ¶34 (“Based on text

messages and other information provided by [Benoi] on behalf of [TMS] both

[Defendant] and [Knight] were involved in the preparation and submission of

[TMS’s] fraudulent PPP loan application.”). Nowhere does the affidavit allege

specific facts regarding Defendant, his business or activities, his alleged

involvement in the TMS loan, the use of or relationship of Defendant’s email

account to any loans other than the TMS loan, or any relationship or activities

with Benoit or Knight.

   The government’s affidavit includes several allegations based on the agent’s

“training and experience,” albeit only regarding how the records sought would

reveal the identity of the user of the email accounts sought by the warrant, i.e.,

attribution evidence. Although the government knew and had already alleged




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that Defendant was the user of the target email account, the affidavit explained

that the agent’s training and experience supported probable cause because:

    “[I]nformation can be used to identify the account’s user or users.” Id. at

      ¶ 59.

    “[E]vidence of who was using an email account” may be found in the

      records sought. Id. at ¶ 60.

    The information maintained by Google “often provides clues to their

      identity, location, or illicit activities.” Id. at ¶ 61.

    Transactional information “can help to identify which computers or other

      devices were used to access the email account.” Id. at ¶ 62.

    “[T]he information can be used to identify the account’s user or users.”

      Id. at ¶ 63.

    “[T]he information stored in connection with an email account can

      indicate who has used or controlled an account.” Id. at ¶ 64.

    The information sought may reveal “user attribution” evidence. Id. at ¶

      65.

    Subsequent paragraphs include the bald allegation, with no reference to

      the agent’s training and experience and no nexus between the TMS loan

      and any other activity or conduct, that the target email account “may

      provide direct evidence” of the offenses under investigation, that search

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           history maintained by Google (which is not related to the contents of

           emails) may be relevant, and that Google may be able to identify other

           accounts used by the user(s) of the target email account (which again is

           not related to the contents of emails). Id. at ¶¶ 66-68.

        Confirming that alleged “training and experience” supports at most probable

cause only for the seizure of attribution evidence, the affidavit concludes by

alleging that “therefore, [Google’s] servers are likely to contain” stored

information “concerning subscribers and their use of email services.” Id. at ¶ 69.

Nowhere does the affidavit allege facts regarding the agent’s training and

experience in other matters establishing a nexus between the use of emails,

Defendant’s email account, and any loans or other activity other than the TMS

loan.

                               LEGAL STANDARDS

        “A search warrant must ‘particularly describ[e] the place to be searched, and

the persons or things to be seized.’” United States v. Alford, 744 F. App'x 650, 652

(11th Cir. 2018) (quoting U.S. Const. amend IV) (alterations in original). “The

Fourth Amendment requires searches be as limited as possible, and the goal is to

prevent ‘rummaging’ through a person’s belongings by requiring warrants to

include a particular description of the things to be seized.” Id. (quoting United

States v. Blake, 868 F.3d 960, 973 (11th Cir. 2017)). “Thus, the Fourth


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Amendment requires that a warrant particularly describe both (1) the place to be

searched and (2) the persons or things to be seized.” United States v. Soviravong,

No. 1:19-CR-146-AT-CMS, 2019 WL 7906186, at *5 (N.D. Ga. Dec. 2, 2019),

report and recommendation adopted, 2020 WL 709284 (N.D. Ga. Feb. 12, 2020)

(internal citations omitted). “A general order to explore and rummage through a

person’s belongings is not permitted.” United States v. Cook, 657 F.2d 730, 733

(5th Cir. Sept. 30, 1981).

      “Probable cause to support a search warrant exists when the totality of the

circumstances allow a conclusion that there is a fair probability of finding

contraband or evidence at a particular location.” United States v. Brundidge, 170

F.3d 1350, 1352 (11th Cir. 1999). “[T]he affidavit should establish a connection

between the defendant and the residence to be searched and a link between the

residence and any criminal activity.” United States v. Rhame, No. 1:16-CR-00067-

SCJ-CMS, 2016 WL 11164144, at *5 (N.D. Ga. Dec. 6, 2016), report and

recommendation adopted, 2018 WL 1082327 (N.D. Ga. Feb. 28, 2018) (alteration

in original and quoting United States v. Martin, 297 F.3d 1308, 1314 (11th Cir.

2002)). “The Eleventh Circuit instructs that the particularity requirement ‘be

applied with a practical margin of flexibility, depending on the type of property to

be seized, and that a description of property will be acceptable if it is as specific as

the circumstances and nature of activity under investigation permit.’” United States


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v. Capote, No. 1:15-CR-00338-MHC-CMS, 2016 WL 11650552, at *2 (N.D. Ga.

May 5, 2016), report and recommendation adopted, 2016 WL 3086412 (N.D. Ga.

May 31, 2016) (quoting United States v. Wuagneux, 683 F.2d 1343, 1349 (11th

Cir. 1982)). “[A] conclusory statement [in a search warrant affidavit], without

more, of course has no probative value.” United States v. Lockett, 674 F.2d 843,

845 (11th Cir. 1982); see also Illinois v. Gates, 462 U.S. 213, 239 (1983) (holding

that a warrant affidavit cannot rely on “mere conclusory statement[s]”).

      “To be entitled to an evidentiary hearing on a motion to suppress based on

misrepresentations or omissions in a search warrant affidavit, a defendant must

make a substantial preliminary showing that: (1) the affiant made false statements;

(2) the false statements were made either intentionally or with reckless disregard

for the truth; and (3) the false statements were necessary to the finding of probable

cause. Material omissions from a supporting affidavit may also give rise to

entitlement to a Franks hearing.” Rhame, 2016 WL 11164144, at *5 (citing Franks,

438 U.S. at 171-72 and United States v. Kapordelis, 569 F.3d 1291, 1309 (11th

Cir. 2009)). “When assessing whether the alleged false statements and omissions

were material, the trial court is to disregard those portions of the affidavit which

the defendant has shown are arguably false and misleading.” United States v.

Kapordelis, 569 F.3d 1291, 1309 (11th Cir. 2009).




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        The Leon good faith exception does not apply, among other circumstances,

where the magistrate “‘in issuing a warrant was misled by information in an

affidavit that the affiant knew was false or would have known was false except for

his reckless disregard of the truth[;]’ . . . . where the affidavit supporting the

warrant is ‘so lacking in indicia of probable cause as to render official belief in its

existence entirely unreasonable;’ and [] where, depending upon the circumstances

of the particular case, a warrant is ‘so facially deficient—i.e., in failing to

particularize the place to be searched or the things to be seized—that the executing

officers cannot reasonably presume it to be valid.’” United States v. Martin, 297

F.3d 1308, 1313 (11th Cir. 2002) (quoting United States v. Leon, 468 U.S. 897,

922 (1984)).

                         ARGUMENT AND AUTHORITY

I.      The Affidavit Included False and Misleading Allegations And Material
        Omissions.

        The affidavit alleges only two specific emails from Defendant’s email

account, one of which is incorrectly alleged in a way that is misleading and

portrays the email as evidence of knowing criminal activity. Specifically, the

affidavit falsely alleged that the May 29, 2020, email listing expenses for TMS

originally came from Knight, who sent it to Defendant and that Defendant then

forwarded that email to Benoit. In doing this and alleging that the expenses were

“purported” expenses, the affidavit creates the inference that this was nefarious
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activity in furtherance of the alleged TMS loan – i.e., why else would information

about Benoit’s company originate with Knight? The affidavit made this allegation

“based on documentation provided by [Benoit] on behalf of [TMS].” Ex. 1 at ¶ 34.

Additionally, the false statement about this email dovetails with the allegation

regarding the second email alleged regarding Defendant’s email account – the

email allegedly sent by Knight with disbursement instructions to keep Benoit “safe

and legal.” Thus, the false description bolsters the inference that Knight is sending

in both instances information to Benoit and Defendant about Benoit’s company

TMS.

       But in truth and fact, the TMS expenses were coming the other direction,

that is from Benoit to Defendant and on to Knight. Attached at Exhibit 2 is the

email from TMS’s grand jury production on which the government was relying in

alleging the May 29, 2020 email at issue. In that email Defendant sent Knight the

list of expenses, and then forwarded the email he had sent Knight on to Benoit.

       Indeed, that is what Benoit told the agent on July 7, 2020, about a month

before the agent obtained the warrant at issue. Benoit told the agent that he knew

and had dealings with Defendant, and had provided his business information to

Defendant to be passed on to Knight. When these statements are considered with

the true and correct email, this episode does not support the inference of alleged




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criminal activity involving Defendant’s email account as it is alleged in the

affidavit.

       Similarly, there are no allegations supporting the characterization of the

expenses as “purported” expenses or the inference created by the affidavit that they

were not true – no allegations that is other than the false description that such

expenses had originated with a third party and not Benoit. The government simply

wrongly portrayed the information as coming from Knight to create the inference

and allegation that such expenses were not true.

       Disregarding the email and related allegations in paragraph 34 of the

affidavit leaves the Court with the following regarding Defendant’s email account:

an alleged email that on its face states its purpose as keeping Benoit “safe and

legal” with regard to disbursements relating to rent and payroll, conclusory

statements about Defendant and his email account, and unexplained money

transfers. The Court should conclude that these remaining allegations do not

establish probable cause for the sweeping search of Defendant’s email account

authorized by warrant.

       For the foregoing reasons, the Court should order a Franks hearing and

suppress the evidence obtained pursuant to the warrant.




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II.     The Warrant is an Impermissible General Warrant.
        The Court should conclude that the warrant is an impermissible general

warrant because it both requires Google to produce the entire contents of

Defendant’s email account from a particular date forward and did not allege a

sufficient nexus between the one alleged TMS loan, Defendant, his email account,

and evidence of any other loans or activity. The affidavit did not allege sufficient

facts to sufficiently connect the target email account to any other activity, much

less any other loans. As a result, the warrant allowed agents to rummage through

Defendant’s email and conduct a general search in violation of the Fourth

Amendment.

        In United States v. Blake, 868 F.3d 960, 973-75 (11th Cir. 2017), the

Eleventh Circuit found that the two-step seizure process employed here violates the

Fourth Amendment’s particularity requirement in the absence of meaningful

limitations on the scope of the first step, here Google’s production of “virtually

every kind of data that could be found” in Defendant’s email account. In reaching

this conclusion, Blake relied on the absence of any time period limitation or

limitation on the seizure of “messages sent to or from persons suspected at that

time of being” involved in the criminal activity. Id. at 974.3 Subsequently, the

Eleventh Circuit applied Blake in reviewing a warrant that, unlike here, “was as


3
 Blake ultimately concluded that the Leon good faith exception applied to the warrant. 868 F.3d at 974-75. That
decision, however, came five years ago and should not be made here as to this warrant as explained below.

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specific as the circumstances and nature of the activity under investigation

permitted.” United States v. Alford, 744 F. App'x 650, 653 (11th Cir. 2018). In

Alford, the Court held that “the warrant was as limited as possible because all of

the evidence seized could have helped identify the owner of the Google account.”

Id.

      At least one lower court has applied Blake to a similar two-step warrant and

imposed restrictions not present here on the government’s review. In United States

v. Matter of Search of Info. Associated With Fifteen Email Addresses, No. 2:17-

CM-3152-WC, 2017 WL 4322826, at *3 (M.D. Ala. Sept. 28, 2017), the

Magistrate Judge denied the government’s applications for 15 two-step search

warrants for individual email accounts because the applications did not have a

temporal limitation and allowed the government to retain indefinitely the entire

contents of the email accounts. The District Court approved the warrant

applications only after imposing a temporal limitation and the requirement that

“the searches be conducted through keyword searches and other appropriate

protocols so as to limit the universe of data to be reviewed to that which is more

likely to be pertinent.” Id. at *10. On the government’s motion for reconsideration,

the District Court removed the keyword search in favor of a sealed search protocol

or framework submitted by the government, because “the users of the accounts are

intentionally hiding their personal lives from their digital ones,” thus justifying a


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“broader search than what otherwise might be reasonable.” United States v. Matter

of Search of Info. Associated with Fifteen Email Addresses Stored at Premises

Owned , Maintained, Controlled or Operated by 1&1 Media, Inc., No. 2:17-CM-

3152-WKW, 2017 WL 8751915 (M.D. Ala. Dec. 1, 2017). 4

         The affidavit here is most notable for what it does not contain – any facts

regarding Defendant, any business or work that he may have conducted, or any

facts regarding any relationship he may have had to the other individuals that are

alleged in connection with his email account, Knight or Benoit. Rather, the

affidavit alleges a purported fraud scheme involving PPP loans obtained using

similar or the same fake bank statements and tax forms, one allegedly fraudulent

loan that Benoit obtained for TMS, one email purportedly relating to disbursement

of proceeds of that loan, and conclusory statements regarding Defendant’s alleged

connection to the TMS loan.5 This is an insufficient basis to conduct a general

search of Defendant’s email for evidence related to any other activity.

         The Eleventh Circuit has held that in cases “involving complex financial

transactions and widespread allegations of various types of fraud,” the warrant

should be read with “an awareness of the difficulty of piecing together the ‘paper


4
  Undoubtedly, numerous federal courts have approved two-step email search warrants. See, e.g., In re Search of
Recs., Info., & Data Associated with 14 Email Addresses Controlled by Google, LLC, 438 F. Supp. 3d 771, 778
(E.D. Mich. 2020) (collecting cases). Those cases are distinguishable because in this case the two-step process here
was overbroad in both steps – that is, the government was allowed to obtain the entire contents of Defendant’s email
account from a specific date forward and then in the second step, search for evidence relating to loans other than the
TMS loan, despite an insufficiently alleged factual nexus between Defendant, his account, and any such other loans.
5
  As explained above, the Court should disregard the falsely alleged email and the related facts.

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puzzle.’” United States v. Wuagneux, 683 F.2d 1343, 1349 (11th Cir. 1982). The

Court should not give the government the benefit of Wuagneux in this case. First,

the straightforward alleged fraud scheme is hardly “complex” and does not involve

“widespread allegations of various types of fraud” as in Wuagneux. Second, the

government did not provide sufficient “pieces” of the “puzzle” to fit together here

as it relates to anything beyond the TMS loan. The Court should not supply the

missing pieces, i.e., the nexus between the target email account and any other

activity that the Government failed to allege.

      Significantly, the agent did not aver anywhere in the affidavit that in his

training and experience evidence of any other loans, whether PPP, fraudulent, or

any other kind, would be found in Defendant’s email account. The only training

and experience allegations relate to the discovery of attribution evidence, which

the government already knew for Defendant’s email account.

      The affidavit is insufficient to warrant a search broader than for TMS loan

related items. Although the affidavit contained a date limitation, the warrant and

affidavit at issue were not “as specific as the circumstances and nature of the

activity under investigation permitted” and as it was alleged in the affidavit. See,

e.g., Alford, 744 F. App’x. at 653. In United States v. Christine, 563 F. Supp. 62,

66 (D.N.J. 1983), the court found that the warrant affidavit “established probable

cause to believe that the defendants had bribed an officer of Collective Federal


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Savings and Loan (“Collective”) to approve [title loans] for a limited number of

uncreditworthy individuals.” The court also found that the affidavit

      did not establish probable cause to believe that the suspect dealings
      extended to other loan officers or to other lending institutions. The
      affidavit did not establish probable cause to believe that the suspect
      dealings involved other than [title loans]. The affidavit did not
      establish probable cause to believe that the defendants were engaged
      in widescale fraud.

Id. Assessing each of the items to be seized against the articulated probable cause,

the Court held invalid four clauses that failed to “tie the items sought” to either the

savings and loan at issue, Collective, or to the types of loans at issue, “title” loans.

Id. at 67. Because these four clauses were not tied to the basis for probable cause

in the affidavit, the court found these clauses “unjustifiably overbroad” and

ordered a hearing to determine which items had been legitimately seized, without

regard to the invalid clauses. Id. at 67-68.

      Similarly, the Court here should order suppressed any items seized beyond

what was authorized by the limited probable cause in the affidavit. The warrant

and affidavit were overbroad in each of the two steps, in the first instance for

ordering Google to produce the entire contents of Defendant’s email account from

a date forward and in authorizing the government to seize evidence for which no

probable cause basis was alleged. As a result, the warrant permitted government

agents to rummage generally through Defendant’s email. See, e.g., United States

v. Shah, No. 5:13-CR-328-FL, 2015 WL 72118, at *12 (E.D.N.C. Jan. 6, 2015)

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(“In order to satisfy particularity, the warrant must ‘at least minimally confine[ ]

the executing officers' discretion by allowing them to seize only evidence of a

particular crime.’”) (emphasis and alteration in original) (quoting United States v.

Dickerson, 166 F.3d 667, 693 (4th Cir. 1999).

IV.   The Leon Good Faith Exception Does Not Apply.

      The Leon good faith exception does not apply in the first instance because

the government obtained this warrant based on a deliberately or recklessly false

affidavit. United States v. Leon, 468 U.S. 897, 923 (1984). But even if the Court

does not conclude that this exception to the Leon rule applies here, the good faith

exception should still not apply. It has been four years since Blake and Alford, in

which the Eleventh Circuit made it clear that two step warrants must be

accompanied by limitations “as specific as the circumstances and nature of the

activity under investigation permitted.” Alford, 744 F. App'x at 653.

      As shown above, in extending to evidence other than in relation to the TMS

loan, this warrant and affidavit were far from as specific as the circumstances and

nature of the activity under investigation permitted. As such, the government

agents who executed the warrant here could not have reasonably believed them to

be valid because of the missing nexus between Defendant, the target email

account, and any activity other than in relation to the TMS loan.




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  Case 1:20-cr-00296-JPB-CMS     Document 439     Filed 03/14/22   Page 21 of 22




                                CONCLUSION

      For all of the foregoing reasons, the Court should order a Franks hearing and

grant this Motion To Suppress Evidence And Fruits Seized Pursuant To The

Search Warrant Directed To Google Regarding netbasedstudios@gmail.com.

      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




                                        21
  Case 1:20-cr-00296-JPB-CMS        Document 439      Filed 03/14/22   Page 22 of 22




                      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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