Criminal Complaint - United States v. Maurice Fayne related docket PPP fraud case (2021-02-19)

Issuer: U.S. District Court for the Northern District of Georgia
Document type: Criminal Complaint
Date: 2021-02-19
Case: United States v. Maurice Fayne related docket
Case number: 1:20-cr-00228

Summary

The government's response in opposition to Maurice Fayne's motion for reconsideration of his detention order, filed February 19, 2021 as Document 167 in United States v. Maurice Fayne, No. 1:20-CR-228-MHC-JKL-1, in the U.S. District Court for the Northern District of Georgia. The response argues that the evidence Fayne relies on is neither new nor material under 18 U.S.C. § 3142(f)(2), and asks that the motion be denied and the hearing scheduled for March 1, 2021 be canceled. It recounts that after a revocation hearing on December 22, 2020, the magistrate judge found that Fayne had violated the release condition barring contact with potential witnesses and revoked Fayne's bond under 18 U.S.C. § 3148(b)(1) & (2). The response is 36 pages and carries the signature blocks of Assistant United States Attorneys Russell Phillips and Bernita B. Malloy.

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Case 1:20-cr-00228-MHC-JKL Document 167 Filed 02/19/21 Page 1 of 36

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

UNITED STATES OF AMERICA
INDICTMENT NUMBER
V. 1:20-CR-228-MHC-JKL-1
(SECOND SUPERSEDING)
MAURICE FAYNE, a/k/a A RKANSAS M O

Government’s Response in Opposition to
Defendant Fayne’s Motion for Reconsideration of his Detention Order

A detention hearing may be reopened at any time before trial if the Court finds that

“information exists that was not known to the [defendant] at the time of the hearing and

[the information] has a material bearing on the issue whether there are conditions of

release that will reasonably assure the appearance of [the defendant] as required and the

safety of any other person and the community.” 18 U.S.C. § 3142(f)(2). Fayne fails to

satisfy either part—let alone both parts—of this two-part test. The evidence on which

Fayne relies is neither new nor material, so his detention hearing should not be reopened.

See, e.g., United States v. Saintvil, No. 1:12-CR-285-03-WSD-AJB, 2013 WL 6196523,

at *2 (N.D. Ga. Nov. 27, 2013) (denying defendant’s motion to reopen detention hearing

because defendant “simply has not offered any further evidence showing that he is not a

flight or safety risk [and he] only reiterates the arguments he presented at his detention

hearing”); see also United States v. Edwards, No. 1:05-CR-097-WSD-JFK, 2007 WL

9724771, at *1 (N.D. Ga. May 9, 2007) (Baverman, Magistrate J.) (“On a motion for

reconsideration of detention, . . . the Court places the burden on the defendant to
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demonstrate that the initial detention decision was based on erroneous considerations,

incomplete or incorrect information, or a material change in circumstances.”). Therefore,

Fayne’s Motion for Reconsideration should be denied. And the hearing currently

scheduled for March 1, 2021 should be canceled.

1. Statement of Facts
This case began when Fayne was arrested on a Criminal Complaint charging him with

bank fraud, in violation of 18 U.S.C. § 1344. (Doc. 144 at 2-3). Because of concern that

Fayne might flee if released on bond, the Government contemplated filing a motion for

detention at Fayne’s initial appearance on May 13, 2020. (Id. at 10). The Government’s

concerns about flight were based on three things. First, Fayne lied to federal agents when

he told them that he had not used any of his PPP loan proceeds for personal purposes. (Id.

at 7-8). Also, a substantial amount of the fraud money was unaccounted for; at least one

of the bank accounts that the Government had looked at had been “cleaned out,” and

large amounts of cash had been withdrawn from, or wire transferred out of, other

accounts before the Government could get to them. (Id. at 13).

Second, a preliminary search of Fayne’s cellphone showed that, shortly after being

interviewed by federal agents, Fayne conducted internet searches concerning “countries

that will not extradite to the United States,” as well as other searches related to

extradition and wire-fraud punishment. (Id. at 8-9).

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Third, when agents went to Fayne’s residence to execute a search warrant a few

days before arresting him, Fayne attempted to leave through the basement door but

stopped when he saw that an agent was posted outside. (Id. at 10). When agents later

searched Fayne’s basement, they found a bag containing $70,000 in cash, which led

agents to believe that Fayne would have attempted to leave the premises, rather than

submit to the search, if there had not been an agent posted outside the basement door.

(Id.).

In spite of these red flags, the Government recommended a bond instead of

detention. (Id.). The Government did so because, immediately after he was interviewed

by federal agents, Fayne hired an attorney. (Id. at 12). And after learning that a warrant

had been issued for Fayne’s arrest, Fayne’s attorney arranged for Fayne to surrender

himself to the FBI. (Id. at 8-9). Only later did the Government learn that the real danger

in releasing Fayne on bond was not risk of flight but danger to the community.

Since the Government did not move for detention at Fayne’s initial appearance,

the Magistrate Judge released Fayne on bond with the following conditions:

THE COURT: You’re to avoid all contact, directly or indirectly, with
anyone who you have reason to believe would be a victim or potential
witness in this case. And I encourage the government to give Ms. Miller a
list of potential witnesses or participants to put Mr. Fayne on as much
notice as possible; however, if they fail to do that, that’s not an excuse. If
there’s someone who it is later proven that you knew or very well should
have known was a potential witness, meaning anyone who has any

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firsthand knowledge of the facts of this case, you’re not to speak to that
person about this case yourself or through any intermediaries other than
your lawyer or investigators working for your lawyer.

(Id. at 23-24).

The Magistrate Judge further instructed Fayne not to commit any federal, state, or

local offenses while on release. (Id. at 27). And the Magistrate Judge warned Fayne that

“a violation of bond is grounds to revoke the bond, . . . meaning put back in jail for the

remainder of the case.” (Id. at 21). A written Order setting conditions of release followed.

(Doc. 9).

On May 18, 2020, Fayne’s Probation Officer sent Fayne a list of potential

witnesses. (Doc. 145 at 17, 19-20; Doc. 154-1). Jimia Cain’s name was not on that “DO

NOT CONTACT” list because, at that time, the Government did not know about Cain.

(Doc. 145 at 26). But the investigation continued, and that led to new and different

charges being filed against Fayne, including wire fraud and conspiracy charges related to

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a Ponzi scheme.1 (Id.). Jimia Cain is a victim of that Ponzi scheme and therefore a

potential witness to that part of the case. (Id. at 32).

The charges related to the Ponzi scheme were first lodged against Fayne when the

original Indictment was returned on June 24, 2020. (Doc. 17 ¶¶ 1-3). That was more than

four months before Fayne violated his release conditions by texting Cain in November

2020. Fayne knew before the Government did that Cain was a victim of the Ponzi

1
On June 24, 2020, Fayne was indicted on three counts of wire fraud, in violation of 18 U.S.C.
§ 1343; one count of bank fraud, in violation of 18 U.S.C. § 1344; one count of making a false statement
to a financial institution insured by the FDIC, in violation of 18 U.S.C. § 1014; ten counts of concealment
money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i); and three counts of transactional money
laundering, in violation of 18 U.S.C. § 1957. (Doc. 17).
On July 28, 2020, the grand jury returned a First Superseding Indictment, adding Daniel Eric Jay
as a Defendant on the bank-fraud count, and leaving all charges against Fayne intact. (Doc. 41).
On November 19, 2020, the grand jury returned a Second Superseding Indictment. (Doc. 96). It
charges Fayne, Jay, and two new Defendants—Michael D. Sargent and Mark T. Sargent—with one count
of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349; and three counts of wire fraud, in
violation of 18 U.S.C. § 1343. It also charges Fayne and Jay with one count of bank fraud, in violation of
18 U.S.C. § 1344. And it charges Fayne with one count of making a false statement to a financial
institution insured by the FDIC, in violation of 18 U.S.C. § 1014; ten counts of concealment money
laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i); three counts of transactional money laundering,
in violation of 18 U.S.C. § 1957; and one count of aggravated identity theft, in violation of 18 U.S.C. §
1028A. (Doc. 96).

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scheme. (Doc. 145 at 27). He knew and he had reason to know—because Cain had

invested hundreds of thousands of dollars in his business. (Id.).

Even though Cain’s name was not on the “DO NOT CONTACT” list, the

Magistrate Judge had already warned Fayne not to speak directly to anyone that Fayne

“knew or very well should have known was a potential witness, meaning anyone who has

any firsthand knowledge of the facts of this case.” (Doc. 144 at 23-24). And the

Magistrate Judge also warned Fayne that even if the Government failed to provide him

with a list of potential witnesses, “that’s not an excuse.” (Id.).

On May 29, 2020, Jimia Cain filed a civil lawsuit against Fayne, Fayne’s ex-wife,2

and Fayne’s trucking company. That suit seeks to recover money that Cain lost by

investing in Fayne’s trucking company. (Doc. 145 at 15). Shortly after Cain filed her

lawsuit, two “thugs” came to her house and tried to intimidate her into dismissing her

lawsuit against Fayne. (Id. at 5).

2
Fayne’s ex-wife received a lot of the fraud proceeds, and the Government obtained a seizure warrant
to seize $50,000 from her bank account. (Case Number: 1:20-MJ-387-JSA).

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Sometime during the week of November 2, 2020, Fayne texted Cain and told her

to leave his ex-wife alone. (Id. at 5-6). Cain replied: “I will do everything in my power to

help them put you in jail because what you did was wrong.” (Id. at 6). Fayne responded:

“Ha ha. I won’t spend a day in jail.” (Id.).

On November 9, 2020, Fayne sent another text message to Cain, threatening to file

a lawsuit against Cain for harassment, trespassing, and hot checks if Cain did not

immediately dismiss her lawsuit against him. (Id.). Fayne also said to Cain, “I have

warned you of the trespass3 you all are doing. You don’t scare me. I’m private trust

3
This is part of the same sovereign-citizen litigation strategy that Fayne employed while
proceeding pro se in the criminal case now before this Court. (See e.g., Doc. 28, 29, 31, 32, 33, 35, 36, 54,
61, 76, 83, 84, 92, 113, 129). Fayne seems to think that this strategy is tantamount to a “get-out-of-jail-
free card.” Unfortunately for him, that is not the case. See United States v. Hakim, No. 1:18-CR-126-
MLB-AJB, 2018 WL 6184796, at *7 (N.D. Ga. Aug. 22, 2018) (Baverman, Magistrate J.) (“Not
surprisingly, a prisoner cannot write his own get-out-of-jail-free card by making declarations that amount
to a renunciation of his obligation to conform his conduct to the requirements of the nation’s criminal
laws.”) (citation omitted), report and recommendation adopted, 2018 WL 4791085 (N.D. Ga. Oct. 4,
2018). “[A]n individual does not immunize himself from the jurisdiction of the state or federal courts”
simply by calling himself a sovereign citizen. Utah Dep’t of Workforce Servs. v. Geddes, No. 2:13-CV-24
TS, 2013 WL 1367025, at *2 (D. Utah Apr. 4, 2013). “Jurisdiction is a matter of law, statute, and
constitution, not a child’s game wherein one’s power is magnified or diminished by the display of some
magic talisman.” McCann v. Greenway, 952 F. Supp. 647, 651 (W.D. Mo. 1997). Likewise, a court’s
jurisdiction is not defeated “by the use of special seals . . . on documents, or by the recital of special
words, phrases[,] or arcane incantations, whether capitalized in written text or not.” Richmond v.
Wampanoag Tribal Court Cases, 431 F. Supp. 2d 1159, 1182 (D. Utah 2006) (capital letters omitted). As

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property. Y’all will pay very soon. You can’t sue private private [sic] property. Good luck

and trust all courts with [sic] see my IPP status.” (Id.; see also copies of text messages

between Fayne and Cain, which were introduced at the revocation hearing (doc. 145 at 9)

and which are attached hereto as Ex. 1).

Fayne admits that Jimia Cain was not the first victim or witness that he contacted

in this case, in violation of his release conditions; he also contacted a witness who works

for United Community Bank, the victim of the bank fraud alleged in the Criminal

Complaint and the Indictment. (Doc. 145 at 37). Fayne told the Magistrate Judge that,

after he contacted the witness who works for the victim bank, he received a call from his

Probation Officer, who said, “[H]ey, you weren’t supposed to contact the bank.” (Id.).

According to Fayne, his lawyer apologized, “and then that’s when [Fayne] got the first

list of names” from his Probation Officer. (Id.). Thus, Fayne violated the “DO NOT

CONTACT” condition of his release, not once but twice.

the Eleventh Circuit noted in United States v. Sterling, courts summarily reject as “frivolous” the legal
theories of so-called sovereign citizens. 738 F.3d 228, 233 n.1 (11th Cir. 2013).

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After learning that Fayne had contacted Jimia Cain, Fayne’s Probation Officer

filed a Petition for Revocation alleging that Fayne had violated the Condition of Release

that required him to avoid all contact, directly or indirectly, with anyone who Fayne had

reason to believe would be a victim or potential witness in this case. (Doc. 145 at 4-5). As

a result, the Magistrate Judge conducted a revocation hearing on December 22, 2020.

(Doc. 145).

The Magistrate Judge found by clear and convincing evidence that Fayne had

“violated the condition of pretrial release preventing contact with potential witnesses.”

(Doc. 126). Specifically, the Magistrate Judge found that, on November 9, 2020, Fayne

“sent text and email messages to [Jimia Cain,] a potential witness, and to the witness’s

lawyer, accusing them of asserting false claims against him, and demanding that they

withdraw any claims, stop ‘harassing’ [him], and threatening to take unclear legal or other

action against them if they did not comply.” (Id.). The Magistrate Judge also found by

clear and convincing evidence that Fayne is not likely to abide by any conditions of

release. (Id.). Thus, pursuant to 18 U.S.C. § 3148(b)(1) & (2), the Magistrate Judge

Ordered that Fayne’s bond be “REVOKED and that he be DETAINED through trial and,

if applicable, sentencing.” (Id.).

On January 4, 2021, Fayne filed a Motion for Reconsideration asking the

Magistrate Judge to revoke his Detention Order and reinstate his bond. Fayne argues that

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he should be released on bond because “witness Jimia Cain was not on the Bond

conditions paperwork nor the Text message that Probation officer Tutor [sic] sent the

Defendant, as a person NOT to contact.” (Doc. 129 at 2). “Fayne admits that he did have

contact with witness Jimia Cain on November 9, 2020.” (Doc. 152 at 4). But Fayne

argues that he is not at fault and that the Magistrate Judge, the Government, and the

Probation Officer are to blame. (See Id. at 4-5; Doc. 129 at 1). Fayne alleges that,

although the Magistrate Judge “notified him orally at the bond hearing that he should not

be in contact with any victims or witnesses, the written bond conditions did not contain

the names of any victims or witnesses.” (Doc. 152 at 4). And Fayne blames his probation

officer and the prosecutor for failing to include Jimia Cain on the “DO NOT CONTACT”

list. (Doc 129 at 1).

Alternatively, Fayne argues that the text messages he sent to Jimia Cain pertained

solely to a civil “lawsuit she had filed against him in Washington state [and have nothing

to do with] the current federal [criminal] case here.” (Doc. 152 at 5).

In addition, Fayne asserts that he is “concerned for his health” because he has a

“history of Asthma” and thus is “at a higher risk for complications due to Covid-19.” (Id.

at 6).

Finally, Fayne asserts that, if the Court decides to release him on bond and

determines that additional conditions are necessary, he “will abide by those conditions.”

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(Doc. 152 at 5-6). Fayne suggests that the additional conditions could include “home

detention, change of phone number for Mr. Fayne, blocking any numbers that may be

associated with Ms. Cain or other witnesses, requiring that Mr. Fayne to use only one

phone[,] and regularly producing that that [sic] phone to be searched by his probation

officer for improper conduct.” (Id. at 6).

2. Argument and Citation of Authority

(A) This Court should deny Fayne’s Motion for Reconsideration because
Fayne fails to meet either part of the two-part test set forth in 18 U.S.C.
§ 3142(f)(2).
Under 18 U.S.C. § 3142(f)(2), a detention hearing may be reopened only if the Court

finds two things:

 “information exists that was not known to the movant at the time of the
hearing,” and
 the new information “has a material bearing on the issue whether there are
conditions of release that will reasonably assure the appearance of [the
defendant] as required and the safety of any other person and the community.”
18 U.S.C. § 3142(f)(2); see United States v. Hare, 873 F.2d 796, 799 (5th Cir. 1989)

(holding that a detention hearing should not be reopened unless the movant presents “new

evidence . . . that has a material bearing on the issue [of risk of flight or dangerousness]”)

(quoting 18 U.S.C. § 3142(f)(2) (brackets in original); accord Saintvil, 2013 WL

6196523, at *2; Edwards, 2007 WL 9724771, at *1.

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(1) The information that Fayne presents is not new.
Reopening a detention hearing is unwarranted if the evidence on which the movant relies

was available at time of the previous hearing. United States v. Dillon, 938 F.2d 1412,

1415 (1st Cir. 1991). “Indeed, as § 3142(f)(2) makes clear, the sole purpose of reopening

a detention hearing is to give the moving party an opportunity to present evidence that

was unavailable at the initial detention hearing.” United States v. Dermen, 800 F. App’x

665, 669 (10th Cir. 2020). Before the hearing can be reopened, the “defendant must first

establish that the information was not previously known to him. Courts interpret this

requirement strictly, requiring a showing of truly changed circumstances or a significant

event.” United States v. Bothra, No. 20-1364, 2020 WL 2611545, at *1 (6th Cir. May 21,

2020); United States v. Pon, No. 3:14-CR-75-J-39PDB, 2014 WL 3340584, at *3 (M.D.

Fla. May 29, 2014) (“Courts have interpreted [18 U.S.C. § 3142(f)(2)] strictly, holding

that reopening is unwarranted if the newly offered evidence was available at the time of

the hearing.”); United States v. Aguiar, No. 2:05-CR-021-01-WCO, 2006 WL 8441014, at

*2 (N.D. Ga. Oct. 2, 2006) (holding that the magistrate judge correctly “found that

defendant could not reopen the detention order because the correct facts were not

unknown to defendant at the time of the detention hearing”) (O’Kelley, J.).

Furthermore, “conclusory allegations that the information . . . was newly

discovered” will not suffice; a party seeking to reopen a detention hearing must show

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“how the evidence was discovered or why it had been previously unavailable.” United

States v. Stanford, 341 F. App’x 979, 984 (5th Cir. 2009).

Fayne’s Motion for Reconsideration offers no information concerning Jimia Cain

that was unknown to Fayne at the time of the revocation hearing.

(a) At the revocation hearing, Fayne argued that his
communications with Jimia Cain had nothing to do with
this case and that he had no reason to suspect that she
might be a witness in this case; this Court explicitly
rejected those arguments.
At the revocation hearing, Fayne made the following arguments:

 “Jimia Cain has a total separate civil case that she’s suing my ex-wife, myself
and a former company that I owned. All of the text messages are not here. She
actually reached out to me first. . . . And my only conversations with Ms. Jimia
Cain had nothing to do with this case whatsoever, not one single word,
conversation. It was strictly on a civil case that we have in the State of
Washington.” (Doc. 145 at 15).
 “Jimia Cain, she had a crush on me. She was a lady that was trying to be
intimate with me.” (Id. at 17-18).
 “[M]y probation officer . . . gave me a list of people that I do not need to
contact.” (Id. at 17). Jimia Cain’s “name was not listed. (Id. at 22).
 “I just didn’t know she was a potential witness [in] this case.” (Id. at 39).
 “ I haven’t seen her lawsuit. Now, my ex-wife has.” (Id. at 40).

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This Court disagreed with Fayne and Ordered him detained:

THE COURT: I do find the defendant has violated his conditions of
release. The conditions stated that the defendant was not to have contact
directly or indirectly with anyone who would be a potential witness in the
case. And I was very clear. I was extremely clear. Mr. Phillips read [part of
the transcript of the bond hearing, specifically Doc. 144 at 23-24] here this
morning. I didn’t need him to, because it’s what I say in every case, but I
was very clear as to what I meant by that. I meant -- I encouraged the
government to give you a list, but I was very clear that that list was not the
complete list of the folks you were supposed to avoid. It was to give you, as
much as they could, a list, but I also made very clear it was to include
anyone else, whether listed or not, whether named in the indictment or
listed by the government in this list or not, that you knew were potential
victims or participants or had knowledge, firsthand knowledge, about the
facts of the case. So you focused this morning on it wasn’t on the list, I
wasn’t told, so if I wasn’t told not to talk to them, then I could talk to them.
That’s not the order that -- or the condition of release that was in place. It
didn’t work that way. And I could not have been clearer. . . . And what I
said wasn’t legalese, it was crystal clear, you are not to speak to anyone
directly or indirectly about this case that’s a potential victim or witness, and
that was not limited to the people they gave you a list of. So then the
question is, is this person, Ms. Cain, a potential victim or witness, and I
believe she is, that that’s been established here. . . . [The] allegations [in
her] civil case . . . mirror the claims in this criminal case.

(Id. at 30-32).

THE COURT: And I can’t find that you weren’t on notice that this was a
potential witness, because from what I’m hearing, the subject matter of her
claims is exactly the subject matter of the fraud scheme that’s in the
complaint. She’s even referencing being a part of the group that’s going to
put you away, so she’s clearly referencing that she’s involved in criminal
matters against you.

(Id. at 33).

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THE COURT: I could not have been clearer [at the original bond hearing]
when I said not getting the list, someone’s name on a list, will not be an
excuse. . . . [T]hat was not ambiguous. . . . I told you clearly myself looking
in your eyes that . . . you cannot contact potential victims or witnesses and
it does not matter whether they’re listed, that does not make it right.

(Id. at 38-39).

(b) In his Motion for Reconsideration, Fayne merely restates
the arguments that he made and lost at his revocation
hearing.
In his Motion for Reconsideration, Fayne makes the following arguments:

 Although the Magistrate Judge “notified [Fayne] orally at the bond hearing that
he should not be in contact with any victims or witnesses, the written bond
conditions did not contain the names of any victims or witnesses.” (Doc. 152 at
4).
 The probation officer and the prosecutor failed to include Jimia Cain on the
“DO NOT CONTACT” list. (Doc 129 at 1).
 Alternatively, the text messages that Fayne sent to Jimia Cain pertained solely
to a civil “lawsuit she had filed against him in Washington state [and have
nothing to do with] the current federal [criminal] case here.” (Doc. 152 at 5).
Fayne’s Motion merely repackages the arguments that he made and lost at the revocation

hearing. Having offered no new information on the specific issue that led to his

detention—i.e., his communications with witness Jimia Cain—Fayne is not entitled to

reopen his detention hearing, and his Motion for Reconsideration should be denied. See

18 U.S.C. § 3142(f)(2); Edwards, 2007 WL 9724771, at *1; Saintvil, 2013 WL 6196523,

at *2.

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Fayne’s Motion does not address the fact that Fayne had previously violated this

same condition of release by contacting a witness who worked for United Community

Bank, the victim of the bank fraud alleged in the Indictment. (See Doc. 145 at 37). As

Judge Baverman said in Martin, “‘sending signals’ is not a legitimate purpose of a §

3148(b)(1) proceeding, but if it was, ignoring [this] Defendant’s violations certainly

would send the ‘wrong signal.’” 2006 WL 2590888, at *2.

(2) The information that Fayne presents is not material.
New information is not deemed “material” unless it increases “the likelihood that the

defendant will appear at trial and [shows] that the defendant is less likely to pose a danger

to the community.” United States v. Watson, 475 F. App’x 598, 600 (6th Cir. 2012); see

also United States v. Leake, No. 19-CR-194 (KBJ), 2020 WL 1905150, at *1 (D.D.C.

Apr. 17, 2020) (holding that, to be considered “material,” the new information must

pertain to one of the four factors set forth in 18 U.S.C. § 3142(g): (1) the nature and

circumstances of the offense charged; (2) the weight of the evidence against the

defendant; (3) the history and characteristics of the defendant; and (4) the nature and

seriousness of the danger to any person or the community that would be posed by the

defendant’s release); United States v. Jerdine, No. 1:08 CR 00481, 2009 WL 4906564, at

*3 (N.D. Ohio Dec. 18, 2009) (“New and material information for Section 3142(f)(2)(B)

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purposes consists of . . . truly changed circumstances, something unexpected, or a

significant event.”), aff’d, 511 F. App’x 391 (6th Cir. 2013).

Fayne’s Motion for Reconsideration offers no information that has a material

bearing on the issue whether there are conditions of release that will reasonably assure his

appearance as required and the safety of any other person and the community. See 18

U.S.C. § 3142(f)(2).

Also, Fayne’s generalized health concerns are insufficient to warrant

reconsideration of his detention order for at least five reasons. First, “[t]he existence of

the Coronavirus pandemic—and its effect on [Fayne’s] health . . . is not material to either

the likelihood that [Fayne] will appear or to the risk posed to the public if he is released.”

United States v. Ramadan, 458 F. Supp. 3d 657, 662 (E.D. Mich. 2020), aff’d, No. 20-

1450, 2020 WL 5758015 (6th Cir. Sept. 22, 2020); see also United States v. Clark, 448 F.

Supp. 3d 1152, 1156 (D. Kan. 2020) (holding that defendant’s concerns about contracting

COVID-19 while incarcerated do not factor into a § 3142(f) analysis, which focuses on

whether the defendant is a flight risk or a danger to the community, and stating that “[t]he

risk of harm to the defendant does not usually bear on this analysis”); United States v.

Rowe-Hodges, 454 F. Supp. 3d 618, 622 (E.D. Tex. 2020) (denying motion to reconsider

the issue of detention where defendant suffered from asthma and was required “to use a

home nebulizer on a regular basis,” because defendant “offered no new information or

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evidence that has a material bearing on the issue of whether there are conditions of

release that will reasonably assure his appearance and the safety of any other person and

the community”).

Second, Fayne does not allege that he currently has COVID-19 symptoms or that

since he has been locked up, he has been exposed to an individual who tested positive for

COVID-19. See Bothra, 2020 WL 2611545, at *1 (holding that “a generalized risk of

contracting COVID-19” does not constitute a material change of circumstances

warranting review of a detention order); United States v. Ford, 455 F. Supp. 3d 512, 521

(S.D. Ohio 2020) (holding that “mere possibility of contracting COVID-19” is not a

compelling enough reason to justify defendant’s release).

Third, Fayne provides no evidence that his confinement increases his risk of

actually contracting COVID-19. Moreover, Fayne does not say whether the detention

facility he is assigned to has implemented any COVID safety measures and, if so,

whether such measures have been effective, nor does he provide any insight as to the

exposure levels of the people he proposes to live with if released. Thus, he “fails to

establish that releasing him would put him at a lower risk of contracting COVID-19.”

United States v. Lewis, No. 19-60034-CR, 2020 WL 6262984, at *4 (S.D. Fla. Oct. 23,

2020).

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Fourth, Fayne has not demonstrated that his asthma condition warrants his

release. See id. (noting that “virtually every person over the age of 50 has some health

condition that could conceivably put that person at a greater risk of succumbing to the

coronavirus, but this does not entitle every inmate over 50 to be released”) (citation

omitted).

Fifth, Fayne does not dispute that he suffered from the very same asthma condition

“when he was working to steal the victims’ hard-earned money.” Id. (citing United States

v. Stuyvesant, 454 F. Supp. 3d 1236, 1244 (S.D. Fla. 2020) (“The Court cannot agree that

a defendant who is physically and mentally well enough to commit a serious federal

crime is somehow not well enough to serve the sentence to which that crime inevitably

exposes him.”)).

(B) This Court should not exercise its inherent authority to reconsider its
previous ruling.
As originally passed, the Bail Reform Act of 1984 did not include a “reopening”

provision; the First Circuit concluded that the omission must have been inadvertent and

held that “the magistrate and district court nonetheless possess inherent power to

reconsider previous detention orders.” United States v. Angiulo 755 F.2d 969, 972 (1st

Cir. 1985). The following year, Congress added the reopening provision codified at 18

U.S.C. § 3142(f)(2). See Criminal Law and Procedure Technical Amendments Act of

1986, Pub. L. No. 99–646, 100 Stat. 3592 (1986). A Senate Judiciary Committee report

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explained that the addition of this reopening provision sought to “clarify that a court has

the authority to reopen a detention hearing to consider further relevant information not

known to the movant at the time of the original hearing.” S. Rep. No. 99-278, at 2 (1986)

(emphasis added). Thus, 18 U.S.C. § 3142(f)(2) codifies “a court’s inherent

reconsideration authority tempered by the understanding that, to promote finality,

preserve judicial resources, and discourage piecemeal presentations, a court should not

reconsider a decision based on information that could have been presented the first time

around.” Pon, 2014 WL 3340584, at *9; see also Christianson v. Colt Indus. Operating

Corp., 486 U.S. 800, 817, 108 S. Ct. 2166, 2178, 100 L. Ed. 2d 811 (1988) (stating that,

“as a rule courts should be loathe to [revisit their prior rulings] in the absence of

extraordinary circumstances such as where the initial decision was clearly erroneous and

would work a manifest injustice”) (citation and quotation marks omitted).

(1) If this Court were to exercise its inherent authority to reconsider
Fayne’s Detention Order without requiring Fayne to meet both
prongs of the test set forth in 18 U.S.C. § 3142(f)(2), it would
negate that provision.
“[E]ven if an inherent reconsideration authority remains after the addition of the

reopening provision to the Bail Reform Act,” Pon, 2014 WL 3340584, at *10, Fayne’s

Motion for Reconsideration should be denied without a hearing. A court has inherent

authority to “reconsider, rescind, or modify an interlocutory order” only in the “absence

of prohibition by statute or rule.” Flintlock Const. Servs., LLC v. Well-Come Holdings,

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LLC, 710 F.3d 1221, 1225 (11th Cir. 2013); see also United States v. Barragan-

Mendoza, 174 F.3d 1024, 1028 (9th Cir. 1999) (holding that, while district courts

generally have inherent authority to decide motions for reconsideration in criminal

proceedings, they may not exercise that authority in the face of an “express rule to the

contrary”); United States v. Jetton, No. 1:05-CR-316-8-BBM, 2008 WL 11384040, at *2

(N.D. Ga. Oct. 9, 2008) (Martin, J.) (holding that a district court may not exercise its

inherent authority to decide a motion for reconsideration “in the face of an express

prohibition of reconsideration of a particular issue”) (citation omitted). Here, the

reopening provision in 18 U.S.C. § 3142(f)(2) controls. See Pon, 2014 WL 3340584, at

*10 (“stating that “the Bail Reform Act’s reopening provision—with its new-and-

material-fact prerequisite—applies”). Hence, if this Court were to reconsider Fayne’s

Detention Order based on its inherent authority—without requiring Fayne to meet both

prongs of the test set forth in § 3142(f)(2)—it “would negate that provision.” Id.

Also, allowing Fayne to bypass the requirements of § 3142(f)(2) would undermine

the Bail Reform Act, which provides that a defendant unhappy with his detention order

may appeal the magistrate judge’s ruling to the district court and appeal the district

court’s ruling to the court of appeals. Pon, 2014 WL 3340584, at *10 (citing 18 U.S.C.

§ 3145(b) & (c)).

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(2) Fayne’s Motion for Reconsideration should be denied because
Fayne has not met his burden of demonstrating that
his Detention Order was based on erroneous considerations,
incomplete or incorrect information, or a material change in
circumstances.
“[N]o statute or Federal Rule of Criminal Procedure authorizes the filing of a motion for

reconsideration in a criminal case.” United States v. Vives, 546 F. App’x 902, 905 (11th

Cir. 2013). Thus, when courts in this district have entertained motions for reconsideration

in criminal cases, “they have generally employed those standards underlying civil

motions for reconsideration.” United States v. Kight, No. 1:16-CR-99-WSD, 2018 WL

10700899, at *2 n.3 (N.D. Ga. Mar. 22, 2018).

“Motions for reconsideration, assuming they are even appropriate in criminal

cases, ‘should be reserved for certain limited situations, namely the discovery of new

evidence, an intervening development or change in the law, or the need to correct clear

error or prevent a manifest injustice.’” Kight, 2018 WL 10700899, at *2 (quoting Brinson

v. United States, No. 1:04-CR-0128-01-RWS, 2009 WL 2058168, at *1 (N.D. Ga. July

14, 2009) (Story, J.)); see also Pon, 2014 WL 3340584, at *10 (“[I]n civil and criminal

cases alike, the exercise of inherent reconsideration authority is prudently reserved for

instances in which . . . the court applied the wrong law, the court overlooked a material

fact, or to do otherwise would result in an injustice.”). “In those instances, correction of

the error to avoid the need for district-judge or appellate-court review with inevitable

results promotes judicial efficiency. The exercise of inherent reconsideration authority

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based on information or arguments that a party could have presented the first time

around, on the other hand, does not.” Pon, 2014 WL 3340584, at *10.

Therefore, a motion for reconsideration “may not be employed as a vehicle to

tender new legal theories or to introduce new evidence that could have been presented in

conjunction with the previously filed motion or response.” Escareno v. Noltina Crucible

& Refractory Corp., 172 F.R.D. 517, 519 (N.D. Ga. 1994) (Carnes, J.). “A motion for

reconsideration is not an opportunity for the moving party and their counsel to instruct

the court on how the court ‘could have done it better’ the first time.” Pres. Endangered

Areas of Cobb’s History, Inc. v. U.S. Army Corps of Engineers, 916 F. Supp. 1557, 1560

(N.D. Ga. 1995) (O’Kelley, J.), aff’d, 87 F.3d 1242 (11th Cir. 1996). “Similarly, motions

for reconsideration may not be used to present the court with arguments already heard

and dismissed,” id., or to “repackage familiar arguments to test whether the Court will

change its mind,” Brogdon ex rel. Cline v. Nat’l Healthcare Corp., 103 F. Supp. 2d 1322,

1338 (N.D. Ga. 2000) (Murphy, J.). “If a party presents a motion for reconsideration

under any of these circumstances, the motion must be denied.” Lewis v. Nationstar

Mortg., LLC, No. 1:18-CV-4455-MHC-AJB, 2019 WL 5460662, at *1 (N.D. Ga. Aug. 2,

2019) (Cohen, J.) (quoting Bryan, 246 F. Supp. 2d at 1259).

Fayne has not met his burden of demonstrating that his Detention Order was based

on “erroneous considerations, incomplete or incorrect information, or a material change

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in circumstances.” Edwards, 2007 WL 9724771, at *1. Therefore, his Motion for

Reconsideration should be denied.

With respect to Fayne’s request that his bond be reinstated with additional

conditions—based on his promise to abide by those conditions—Judge Baverman

rejected a similar request in United States v. Martin:

Martin presents an alternative to revoking his release by proffering that
removing computers from his household and preventing his access to any
computers, in order to forestall any further trading, are additional
conditions with which he would abide. The Court disagrees. The release
conditions violated by Martin could not have been more clear. They
specifically applied to trading on his own behalf as well as for third parties.
At the hearing when bond was set and the release terms were imposed, the
Court made it clear that Martin could not trade in securities for any
purpose, and that one of the consequences for doing so would be revocation
of release. Additional conditions imposed to prevent the exact same
mischief do not convince the Court that Martin is any more likely to
comply with those conditions, given that his need for funds remains the
same.

No. 1:06-CR-286 TCB-AJB, 2006 WL 2590888, at *3 (N.D. Ga. Sept. 7, 2006). Judge

Baverman’s reasoning in Martin is sound, and the Government respectfully asks this

Court to follow it here.

(C) This Court should cancel the hearing currently scheduled for March 1,
2021.
There is no need for this Court to conduct another hearing on the subject of detention

because Fayne has offered no new and relevant information. Furthermore, any

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information that the Government would present at a new hearing would only make it less

likely that the Court would reinstate Fayne’s bond. See United States v. Little, No. CR20-

149 RAJ, 2020 WL 6203099, at *1 (W.D. Wash. Oct. 22, 2020) (“The Court does find

that there is new information relevant to Defendant’s bail determination but that the new

information supports the continued detention of Defendant and therefore a new hearing

before this Court is not appropriate.”).

(1) If Fayne’s detention hearing is reopened, the Government will
introduce evidence that Fayne lied at the revocation hearing.
Giving materially false information at a bond hearing constitutes obstruction of justice.

United States v. Prozer, 544 F. App’x 844, 845 (11th Cir. 2013) (citing United States v.

Doe, 661 F.3d 550 (11th Cir. 2011)). “Material” means that the information, if believed,

“would tend to influence or affect the issue under determination.” United States v. Doe,

661 F.3d 550, 566 (11th Cir. 2011) (citation omitted). “The relevant considerations are the

kind of information provided and its tendency to influence the court, not the actual effect

of a particular misstatement.” United States v. Bedolla-Zavala, 611 F.3d 392, 396 (7th

Cir. 2010). Information that sheds light on a defendant’s honesty “is a highly relevant

factor in determining whether a defendant should remain in custody or be granted bond,

and thus is material not only at sentencing, but at arraignment.” Id.; see also United

States v. Tann, No. CRIM.A.04-392(CKK), 2006 WL 1313334, at *5 (D.D.C. May 12,

2006) (denying defendant’s request for a hearing on her bond motion because defendant’s

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behavior “forces the Court to question her personal characteristics, such as her capacity

for honesty, her respect for the law, and her ability to be cabined by legal consequences”).

(a) Fayne knew that Jimia Cain had invested hundreds of
thousands of dollars in his trucking business and that
Cain was suing him personally to recover the money that
he had stollen from her; therefore, Fayne lied at the
revocation hearing when he stated that the reason Cain
was suing him had nothing to do with this case and that he
just didn’t know she was a potential witness.
Fayne lied to the Magistrate Judge at the revocation hearing when he stated that the

reason Jimia Cain was suing him “had nothing to do with this case” and that he “just

didn’t know she was a potential witness.” (Doc. 145 at 39). It is beyond dispute that

Fayne’s statements were material to the issue of detention.

At the revocation hearing, the Magistrate Judge found that the allegations in Jimia

Cain’s civil complaint “mirror the claims in this criminal case.” (Id. at 32). Even so,

without having had an opportunity to conduct a side-by-side comparison of Cain’s civil

complaint and Fayne’s Indictment, the Court might not have realized that Fayne’s claim

that Cain’s civil lawsuit “had nothing to do with this case” (id. at 39) was an outright lie,

not a mere misunderstanding or a difference of opinion. See United States v. Ramadan,

458 F. Supp. 3d 657, 664 (E.D. Mich. 2020) (denying defendant’s motion for release

from pretrial detention because of defendant’s “lies, deceitful activity and general

untrustworthiness, [which] further increases his risk of flight and the danger he would

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pose to the community if he were released”), aff’d, No. 20-1450, 2020 WL 5758015 (6th

Cir. Sept. 22, 2020).

If Fayne’s detention hearing is reopened, the Government will introduce Jimia

Cain’s civil complaint against Fayne (a copy of which is attached hereto as Ex. 2). Cain’s

civil complaint, which was filed in the Superior Court of Benton County, Washington on

May 29, 2020, alleges, in relevant part, as follows:

From at least 2014 to the present date, defendant Maurice Fayne . . . ,
Defendant FAYNE TRUCKING, LLC, . . . and others . . . fraudulently
induced plaintiff Jimia Cain . . . to loan hundreds of thousands of dollars to
them by means of misrepresentations and with no intent to repay them.
They have conducted similar frauds against others, by means of wire
communications in interstate commerce, in several states, and judgments
have accordingly been entered against them in consequence of some of that
wrongdoing[.] [Fayne’s wife] knowingly reaped the benefits of Mr. Fayne’s
fraud and caused two men to threaten Ms. Cain with violence if she did not
discontinue this action.

(Id. ¶ 1.1).

Cain’s civil complaint plainly and unambiguously alleges claims against Fayne

that arise from Cain’s investment in Fayne’s trucking company; in fact, the words truck

and trucking appear 100 times in Cain’s complaint. (See id.). Likewise, the Indictment in

this case plainly and unambiguously charges Fayne with conspiracy and wire fraud

arising from a Ponzi scheme that defrauded more than 20 investors in that same trucking

company. (See Doc. 41 ¶¶ 1-3; Doc. 96 ¶¶ 1-7). Therefore, it defies logic and common

sense for Fayne to suggest—as he did at the revocation hearing (see doc. 145 at 15, 17,

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19, 39) and as he does again in his Motion for Reconsideration (see doc. 152 at 5)—that

Cain’s civil lawsuit has nothing to do with this case. See Holsworth v. Berg, No. CIV.A.

05-1116, 2005 WL 1799409, at *3 (E.D. Pa. July 26, 2005) (“Not only are [defendant’s]

excuses patently insufficient to meet the legal standard for a motion for reconsideration,

but they are also insulting to this Court.”), aff’d, 322 F. App’x 143 (3d Cir. 2009).

(b) Fayne knew that Jimia Cain had filed a civil lawsuit
against him because a process server personally handed
the summons and complaint to him on June 12, 2020;
therefore, Fayne lied at the revocation hearing on
December 22, 2020 when he stated that he had not seen
Jimia Cain’s lawsuit.
At the revocation hearing, Fayne told the Magistrate Judge that he had never seen Jimia

Cain’s lawsuit. (Doc. 145 at 40). That was an outright lie. If Fayne’s detention hearing is

reopened, the Government will introduce the Affidavit of Service filed by the process

server who personally served Cain’s summons and complaint on Fayne (a copy of which

is attached hereto as Ex. 3). It states, in relevant part, as follows:

On the 12th day of June, 2020 at 7:11 PM at the address of 4029
MOUNTAIN SIDE TRAIL, DACULA, Gwinnett County. GA 30019; this
declarant served the above described documents upon MAURICE FAYNE
and KARLIE REDD by then and there personally delivering 2 true and
correct copy(ies) thereof, by then presenting to and leaving the same with
MAURICE FAYNE, REGISTERED AGENT, SPOUSE, who tried to
refuse service by refusing to take documents and did not state reason for
refusal, with identity confirmed by subject saying yes when named, a bald
black male approx. 45-55 years of age, 5’6”-5’8” tall and weighing 140-

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160 lbs., a person of suitable age and discretion who stated they reside at
the defendant’s/respondent’s usual place of abode listed above.

(Id.).

(2) If Fayne’s detention hearing is reopened, the Government will
introduce evidence that Fayne committed federal crimes while
on release.
A court is required to revoke a previous release order if, after a hearing, it finds “probable

cause to believe that the [defendant] has committed a Federal, State, or local crime while

on release.” 18 U.S.C. § 3148(b)(1)(A). To revoke the release order, the court must also

find that “there is no condition or combination of conditions of release that will assure

that the [defendant] will not flee or pose a danger to the safety of any other person or the

community,” or the defendant “is unlikely to abide by any condition or combination of

conditions of release.” Id. § 3148(b)(2). If the court finds “probable cause to believe that,

while on release, the person committed a Federal, State, or local felony, a rebuttable

presumption arises that no condition or combination of conditions will assure that the

person will not pose a danger to the safety of any other person or the community.” Id.

§ 3148(b). The phrase safety of any other person refers to the danger that the defendant

might pose to “a particular identifiable individual, perhaps a victim or witness,” while the

phrase safety of the community “refers to the danger that the defendant might engage in

criminal activity to the detriment of the community.” United States v. King, 849 F.2d 485,

487 n.2 (11th Cir. 1988) (citation omitted).

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“Courts have long recognized that ‘danger’ in the context of § 3148 refers to

unlawful conduct, with little distinction between whether the nature of the conduct is

economic or physical.” United States v. Wong, No. CR 12-00645 LEK, 2012 WL

5464178, at *4 (D. Haw. Nov. 8, 2012); see also United States v. Jalloh, No. SACR 15-

00129-CJC, 2016 WL 4939102, at *1-2 (C.D. Cal. Sept. 13, 2016) (finding probable

cause to believe that defendant “committed additional acts of wire fraud, a federal

felony” while on release, and ordering that he be detained prior to trial).

The Indictment establishes probable cause to believe that Fayne is a serial

fraudster, and “a serious economic danger to the community. Simply stated, [the

Indictment alleges that Fayne] repeatedly targets individuals and then defrauds them out

of their money.” Jalloh, 2016 WL 4939102, at *2.

If Fayne’s detention hearing is reopened, the Government will introduce evidence

that, while on release, Fayne violated the wire-fraud statute in connection with one or

more schemes to defraud Rod Darby, Darby’s company—CTC Transportation, LLC

(CTC)—and a Nebraska corporation called RFG Leasing, Inc. (RFG). In furtherance of

these schemes, Fayne provided and caused others to provide false and fraudulent

information to the United States Department of Transportation. See United States v.

Ellison, 804 F. App’x 153, 155-56 (3d Cir. 2020) (affirming defendants’ convictions for

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conspiracy, wire fraud, and bank fraud arising from “their role in a scheme to violate

Department of Transportation (‘DOT’) regulations”).

Darby lives in South Carolina. His company, CTC, operated briefly in 2009 but

was dormant until Fayne called him and proposed a deal in late 2019 or early 2020.

Fayne said that he owned three trucks, and he said that he wanted to lease them to CTC

and pay Darby 10% of the profit.

Fayne never had permission from Darby to enter into contracts on behalf of CTC,

and Fayne never had any ownership interest in CTC. On or about November 14, 2019,

however, Fayne—acting in the name of CTC—signed a contract to lease three trailers

from RFG Leasing. On November 17, 2020, RFG filed civil lawsuit against CTC seeking

approximately $35,000 in damages and alleging that CTC (i.e., Fayne pretending to be

CTC) defaulted on the lease agreement and failed to return the trailers to RFG. Darby had

no knowledge that Fayne had entered into any agreement with RFG until Darby was

served with the complaint. Darby never did any business with RFG.

From approximately August 2020 through December 22, 2020 (when Fayne’s

bond was revoked), Fayne’s three trucks secretly operated under CTC’s DOT number and

under its authority, in violation of DOT rules and regulations. According to Darby, by

approximately October 2020, Fayne’s three trucks were making approximately $30,000-

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$40,000 per month. Darby told federal agents that Fayne never paid him his share of the

profits.

Fayne also defrauded Darby by engaging in unauthorized transactions with J.B.

Hunt Transport Services, Inc., which has asserted a claim against Darby and CTC for

approximately $14,000. Until Fayne got arrested in December 2020, Darby and Fayne

were running loads for Amazon through J.B. Hunt. Darby told federal agents that Fayne

was (without Darby’s knowledge) taking fuel advances from J.B. Hunt, which put Darby

“in the hole.” Fayne was the only one able to take fuel advances because Fayne prepared

and submitted the “packets” to J.B. Hunt. The “packets” falsely showed that CTC was

operating in accordance with DOT regulations. Fayne’s name was on the “packet,” so

Fayne was the only person entitled to receive fuel advances. Fayne promised Darby that

he would put Darby’s name on the packets, but Fayne used his own name instead. See

United States v. Gill, No. CR S-06-0312LKK(GGH), 2008 WL 2120069, at *1 (E.D. Cal.

May 20, 2008) (“Gill was indicted on an alleged wire fraud scheme involving his

trucking business. Pared to its essence, the indictment allege[d] that Gill would agree

with a party to transport freight, but then hire out the actual transportation of goods with

another carrier. . . . Gill would receive payment from the party whose goods were

shipped, but Gill would not pay the carriers who he retained.”).

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The Government has obtained copies of telephone calls that Fayne made while

detained at RAD, including the following, which show Fayne conspiring to commit wire

fraud by starting new, fictitious trucking companies under false and fraudulent pretenses.

 On December 31, 2020, Fayne called a male associate named Will and an
unidentified woman. Together, they called Rod Darby, owner of CTC
Transportation in South Carolina. They talked about running Fayne’s criminal
enterprise from jail and creating another new company (not in Fayne’s name) if
necessary. Fayne said: “Anything Will ask for, that’s good to go cause that’s
coming directly to me. He wouldn’t have your number if I wasn’t cool with it.
And then as far as DOT, you need to call them to see if they gonna cancel out,
so we know if we need to do this other company yet or not. Uh, my name ain’t
on none of this shit. So, I don’t know. I don’t know the address. I don’t know
the PIN number. I ain’t, I ain’t got access to none of that. You know what I’m
saying? So, you gonna have to handle that part so we can keep everything
going in transition. . . . [T]hat’s $4,000 a week profit, just off that one truck a
week.”
 On January 19, 2021, Fayne said to Will: “I’m fixing to start working all angles
to get Felicia’s authority situated real quick. We got to get some movement
going.” Fayne also told Will to call Ryan and find out “what he needs to get his
authority. I thought he was working on it. We got to figure something out to get
shit moving.”
 On January 20, 2021, Fayne called an unidentified male and said: “If I don’t
get out of here next week, man, I’m gonna have to just kinda, how can I say
this? Pretty much like this. You’re going to have to start a new company. I can
walk you through the whole process. It’ll take about. It’ll take about 20 days,
21 days for it to be set up, though. And then money’ll start being made
immediately. I’ll get you access to drivers, trucks, everything. You’ll have to go
get a bank account. Everything’ll be coming to you. Just, you know, we’ll just
be pretty much be partners. You see what I’m saying? . . . . I’m kinda just
preplanning ahead. You know what I’m saying? Just in case, you know. I might
stay in here another two weeks. But whatever. I still need. . . We still need the
money to be flowing. You see what I’m saying? It don’t make sense for me to
flow the money right now and can’t nobody access it. You see what I’m
saying? . . . . Next week, if I don’t get out, like I said, we’ll set up the business

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side of things. You just run it. You know what I’m saying? We’ll split it right
down the middle, 50-50. You see what I’m saying? I can walk you through
everything, how to set up everything, how to get everything going. Get you all
the drivers’ info, stuff like that. I’ll get my phones over to you—for business
contacts, etc. You see what I’m saying? Just run it up. You know what I’m
saying? Take that as a blessing and run it up. You know what I’m saying?” The
man Fayne was talking to said, “I got you 1,000 percent.”
Fayne’s jail calls show that Fayne has a network of flunkies who assist him in

carrying out his fraudulent schemes, and that he routinely provides false and fraudulent

documents to government agencies, including the United States Department of

Transportation and the Federal Motor Carrier Safety Administration. The Indictment

includes similar allegations. (Doc. 96 ¶ 5(f)). This Court may take into account the

activities of others that Fayne “supervises and controls” in determining whether Fayne is

a danger to the community and whether his supervision of criminal activity can be

“curtailed by any condition or combination of conditions of release.” United States v.

Ciccone, 312 F.3d 535, 539-543 (2d Cir. 2002).

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Case 1:20-cr-00228-MHC-JKL Document 167 Filed 02/19/21 Page 35 of 36

3. Conclusion
For all of the foregoing reasons, Fayne’s Motion for Reconsideration should be denied

without an additional hearing.

Respectfully submitted,

KURT R. ERSKINE
ACTING UNITED STATES ATTORNEY
Russell Phillips
RUSSELL PHILLIPS
ASSISTANT UNITED STATES ATTORNEY
GEORGIA BAR NO. 576335
Bernita B. Malloy
BERNITA B. MALLOY
ASSISTANT UNITED STATES ATTORNEY
GEORGIA BAR NO. 718905

600 U.S. COURTHOUSE
75 TED TURNER DRIVE, SW
ATLANTA, GA 30303
(404) 581-6000

Page 35 of 36
Case 1:20-cr-00228-MHC-JKL Document 167 Filed 02/19/21 Page 36 of 36

CERTIFICATE OF SERVICE

I hereby certify that, on February 19, 2021, I electronically filed the foregoing document

with the Clerk of Court using the CM/ECF system.

RUSSELL PHILLIPS
ASSISTANT UNITED STATES ATTORNEY
GEORGIA BAR NO. 576335

600 U.S. COURTHOUSE
75 TED TURNER DRIVE, SW
ATLANTA, GA 30303
(404) 581-6000

Page 36 of 36

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