Order — United States v. Jerry Baptiste (N.D. Ga., Dkt. 834, January 22, 2024)

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Order in United States v. Jerry Baptiste, Criminal Action No. 1:20-CR-00296-JPB-CMS-13, in the U.S. District Court for the Northern District of Georgia, Atlanta Division, Document 834, filed January 22, 2024. It rules on the Magistrate Judge's Final Report and Recommendation dated August 29, 2022 (Doc. 557) and Baptiste's Objections (Doc. 570) concerning his Motion to Suppress (Doc. 439), which seeks to suppress evidence seized under an August 18, 2020 search warrant for Google LLC e-mail accounts and asks for a hearing under Franks v. Delaware. The Court overrules the objections in their entirety, approves and adopts the Report and Recommendation, and denies the motion.

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“Order — United States v. Jerry Baptiste (N.D. Ga., Dkt. 834, January 22, 2024).” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-1-20-cr-00296-dkt-834-n-d-ga-aedad0380b/, SHA-256 f569c018ebdbe03b92fb974ac807e85a5d89b333fe521558b8e12595be8a6036.

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Case 1:20-cr-00296-JPB-CMS Document 834 Filed 01/22/24 Page 1 of 12

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA,

v. CRIMINAL ACTION NO.
1:20-CR-00296-JPB-CMS-13
JERRY BAPTISTE,

Defendant.

ORDER

This matter is before the Court on the Magistrate Judge’s Final Report and

Recommendation dated August 29, 2022 (“R. & R.”) [Doc. 557] and Jerry

Baptiste’s (“Defendant”) Objections to the R. & R. [Doc. 570]. This Court finds as

follows:

BACKGROUND

Defendant is charged with conspiracy to commit bank and wire fraud;

substantive counts of bank fraud, wire fraud and making false statements; and

money laundering. See [Doc. 290]. The R. & R. sets forth the facts of this case in

considerable detail. See [Doc. 557, pp. 4–12]. The Court incorporates those facts

by reference here in addition to providing a brief summary of the facts most

relevant to Defendant’s objections.
Case 1:20-cr-00296-JPB-CMS Document 834 Filed 01/22/24 Page 2 of 12

On August 18, 2020, United States Magistrate Judge Justin S. Anand issued

a search warrant for several Google LLC (“Google”) e-mail accounts, including

one belonging to the Defendant: netbasedstudios@gmail.com (the “NBS

Account”). [Doc. 439-1, p. 44]. This warrant is the subject of Defendant’s Motion

to Suppress [Doc. 439] and the corresponding R. & R. [Doc. 557]. In Defendant’s

Motion, Defendant seeks to suppress evidence seized pursuant to the search

warrant and asks that the Court conduct a hearing pursuant to Franks v. Delaware

based on alleged misrepresentations contained therein. 438 U.S. 154 (1978).

The search warrant authorized seizure of information “that constitutes

contraband, fruits, evidence and/or instrumentalities of violations of 18 U.S.C. §§

1343, 1344, 1349, 1014, 1956, and/or 1957 involving the target and/or any

associates or accomplices.” [Doc. 439-1, p. 49]. The statutes enumerated in the

warrant concern wire fraud and bank fraud, conspiracy, false statements and

money laundering. See 18 U.S.C. §§ 1343, 1344, 1349, 1014, 1956, 1957. The

search warrant was temporally limited, only permitting seizure of records from

March 31, 2020, through the present, which at the time was on or about August 18,

2020. [Doc. 439-1, pp. 44, 47].

In support of the search warrant, FBI Special Agent Joseph D. Stites

prepared a thirty-four-page affidavit. Id. at 3–36. In it, Special Agent Stites

2
Case 1:20-cr-00296-JPB-CMS Document 834 Filed 01/22/24 Page 3 of 12

provided information to show that based on fraudulent conduct, a federally-insured

lender issued a Paycheck Protection Program (“PPP”)1 loan to Transportation

Management Services, Inc. (“Transportation Management”)2. Id. at 7–18, 25. The

affidavit also included facts to show that evidence regarding the Transportation

Management PPP loan (and related money laundering activities) would be found in

the NBS Account. Id. at 11–18, 23–27. Moreover, the affidavit contained

information suggesting that the Transportation Management PPP loan was

connected to four other fraudulent PPP loan applications, all of which were nearly

identical to each other. Id. at 10–12. As such, the search warrant authorized

agents to seize evidence relating to communications about any PPP loan and

fraudulent loan application. Id. at 49–50.

One piece of evidence supporting the affidavit was a May 29, 2020 email

exchange involving the NBS Account, which included an itemized list of purported

expenses for Transportation Management. Id. at 17. In the affidavit, Special

Agent Stites erroneously stated that the Defendant received the email when, in

reality, Defendant sent the email. See [Doc. 439-2, p. 4]. This email is a focus of

1
The PPP was established as part of the Coronavirus Aid, Relief, and Economic Security
(“CARES”) Act.
2
Ben Benoit (a codefendant in this case) claimed sole ownership of Transportation
Management. [Doc. 439-1, p. 16].

3
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Defendant’s Motion to Suppress and the basis for his request for a Franks hearing.

See [Doc. 439].

In the R. & R. dated August 29, 2022, United States Magistrate Judge

Catherine M. Salinas recommended denying Defendant’s Motion. [Doc. 557, p.

29]. Defendant filed objections to the R. & R. on September 13, 2022. [Doc. 570].

The R. & R. is ripe for review.

LEGAL STANDARD

A district judge has broad discretion to accept, reject or modify a magistrate

judge’s proposed findings and recommendations. United States v. Raddatz, 447

U.S. 667, 680 (1980). Pursuant to 28 U.S.C. § 636(b)(1), the Court reviews any

portion of the R&R that is the subject of a proper objection on a de novo basis and

any non-objected-to portion under a “clearly erroneous” standard. Notably, a party

objecting to a recommendation “must specifically identify those findings objected

to. Frivolous, conclusive, or general objections need not be considered by the

district court.” Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988). Placing

this burden on the objecting party “facilitates the opportunity for district judges to

spend more time on matters actually contested and produces a result compatible

with the purposes of the Magistrates Act.” United States v. Schultz, 565 F.3d

4
Case 1:20-cr-00296-JPB-CMS Document 834 Filed 01/22/24 Page 5 of 12

1353, 1361 (11th Cir. 2009) (quoting Nettles v. Wainwright, 677 F.2d 404, 409–10

(5th Cir. Unit B 1982)).

ANALYSIS

As stated above, Defendant filed objections to the R. & R. See [Doc. 570].

The objections are discussed in turn below.

I. First Objection

Defendant first objects to the R. & R.’s conclusion that the affidavit alleges

specific, articulable facts sufficient to justify the seizure of emails beyond those

relating to the Transportation Management loan. Id. at 6. Defendant maintains

that the search warrant, supported by an affidavit containing facts regarding

Defendant that related to only a single loan (the Transportation Management loan),

authorized agents to conduct a general search of the NBS Account for evidence

pertaining to other potentially fraudulent PPP loans. Id. at 1. As a result,

Defendant contends, the search warrant amounts to an impermissible general

search warrant. Id. at 6. In making his objection, Defendant raises United States

v. Christine, noting that although he relied heavily on the case in his Motion, the R.

& R. did not address it. Id. at 8; 563 F. Supp. 62 (D.N.J. 1983).

5
Case 1:20-cr-00296-JPB-CMS Document 834 Filed 01/22/24 Page 6 of 12

This Court discerns no error in the Magistrate Judge’s determination and

finds that the warrant is supported by probable cause. The Eleventh Circuit Court

of Appeals has explained that

[p]robable cause exists when under the totality-of-the-
circumstances . . . there is a fair probability that contraband or
evidence of a crime will be found in a particular place. In other
words, probable cause exists where the facts lead a reasonably
cautious person to believe that the search will uncover evidence
of a crime.

United States v. Tobin, 923 F.2d 1506, 1510 (11th Cir. 1991) (citation and

quotations omitted). The affidavit in support of a search warrant, then, must “state

facts sufficient to justify a conclusion that evidence or contraband will probably be

found at the [location] to be searched.” United States v. Martin, 297 F.3d 1308,

1314 (11th Cir. 2002) (citation omitted). The task of this Court is “only to

determine whether there is substantial evidence in the record supporting the

magistrate judge’s decision to issue the warrant,” rather than conduct a de novo

determination of probable cause. United States v. Bushay, 859 F. Supp. 2d 1335,

1379 (N.D. Ga. 2012) (citing Massachusetts v. Upton, 466 U.S. 727, 728 (1984)).

Indeed, reviewing courts are to accord “great deference” to a magistrate judge’s

determination of probable cause to issue a search warrant. United States v. Leon,

468 U.S. 897, 914 (1984); Martin, 297 F.3d at 1317.

6
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In arguing only about the seizure of items “beyond” those relating to the

Transportation Management loan, Defendant seems to concede that there existed

probable cause to search his NBS Account for evidence related to that loan only.

See [Doc. 570, p. 6]. But Special Agent Stites’s affidavit also contained facts

showing that the Transportation Management loan was one of five nearly identical

fraudulent PPP loans, suggesting that the Transportation Management loan was

one piece of a pattern of fraudulent conduct. [Doc. 439-1, pp. 10–12]. Given

these facts, this Court finds no reason to disturb Judge Anand’s determination that

under the totality of the circumstances, the facts contained in the affidavit

sufficiently showed a “fair probability” that evidence of other fraudulent PPP loans

would be found in the NBS Account. See Leon, 468 U.S. at 914; Tobin, 923 F.3d

at 1510.

Before discussing Defendant’s second objection, the Court briefly addresses

Defendant’s arguments regarding United States v. Christine, 563 F. Supp. at 62–

68. This case, which is nonbinding, does not persuade this Court to reach a

different conclusion. The court in Christine found that “[t]he affidavit did not

establish probable cause to believe that the defendants were engaged in widescale

fraud.” 563 F. Supp. at 66. Here, however—as discussed above—the affidavit

contained facts to support Judge Anand’s determination that there was probable

7
Case 1:20-cr-00296-JPB-CMS Document 834 Filed 01/22/24 Page 8 of 12

cause (1) to believe that the fraudulent Transportation Management loan was part

of a pattern of fraudulent loans, as the affidavit describes four other nearly-

identical loans and (2) that the Defendant was involved in one of the pattern loans

(the Transportation Management loan). Under these facts, the Court agrees that

there was probable cause to search for evidence of other fraudulent PPP loans and

applications. Defendant’s objection is OVERRULED.

II. Second Objection

Second, Defendant objects to the R. & R.’s conclusion that the two-step

process employed by the warrant and agents satisfied the Fourth Amendment.

[Doc. 570, p. 13]. Defendant appears to link his second objection entirely to his

first: “When considered in connection with the lack of articulable probable cause

extending beyond the [Transportation Management] loan, the Court should

conclude that the warrant is an impermissible general warrant . . . .” Id. (emphasis

added). As already discussed, the Court agrees that there was probable cause to

execute the search warrant for evidence extending beyond the Transportation

Management loan. To the extent that Defendant’s second objection is premised on

the alleged lack of probable cause to search for evidence of additional fraudulent

PPP loans, the objection is overruled.

8
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However, to the extent that Defendant argues that—irrespective of whether

probable cause existed to search for evidence of other potentially fraudulent PPP

loans—the two-step search process was impermissibly overbroad, his argument is

unavailing. The Eleventh Circuit has determined that warrants are sufficiently

particular where the items to be seized are limited by the crimes that are the subject

of the investigation. See Signature Pharmacy, Inc. v. Wright, 438 F. App’x 741,

746 (11th Cir. 2011); United States v. Santarelli, 778 F.2d 609, 614–15 (11th Cir.

1985). For two-step email search warrants, like the one employed in this case, the

Eleventh Circuit has explained that such warrants are permissible when there are

meaningful limitations on the warrant’s scope. See United States v. Blake, 868

F.3d 960, 974–75 (11th Cir. 2017).

Here, as Judge Salinas discussed in her R. & R., the warrant was temporally

limited; authorized seizure of evidence that constituted “contraband, fruits,

evidence and/or instrumentalities” of violations of only the statutes enumerated

therein; and identified specific categories of information to be seized relating

specifically to the NBS Account and potential PPP loan fraud. Defendant’s second

objection is OVERRULED.

9
Case 1:20-cr-00296-JPB-CMS Document 834 Filed 01/22/24 Page 10 of 12

III. Third Objection

Defendant next objects to the R. & R.’s conclusion that he is not entitled to a

Franks hearing regarding alleged misstatements contained in the affidavit, which

Defendant maintains were made intentionally or with reckless disregard for the

truth. [Doc. 570, pp. 15–16]. The alleged misstatement in this case is the

erroneous transposition of the May 29, 2020 email’s sender and recipient. See id.

at 15. Having reviewed this portion of the R. & R. de novo, this Court agrees with

Judge Salinas’s conclusion.

The Court is not persuaded that simply because the government was in

possession of the email3—and, in that sense, was aware of the email’s true sender

and recipient—and because Special Agent Stites received a “non-nefarious”

explanation for the email from Mr. Benoit, the agent’s transposition of the two

constituted a false statement made intentionally or with reckless disregard for the

truth. The Court is not convinced that these facts alone, combined with

Defendant’s theory of the agent’s potential motivation for misstating the sender

and recipient, constitute a sufficient “offer of proof” to require an evidentiary

hearing. See Franks, 438 U.S. at 171; [Doc. 570, pp. 16–17].

3
In his brief, Defendant argues: “The Court should conclude this allegation was made
either intentionally or with reckless disregard for the truth because the agent already had
the email being alleged.” [Doc. 570, p. 16].

10
Case 1:20-cr-00296-JPB-CMS Document 834 Filed 01/22/24 Page 11 of 12

And, in any case, the Court does not find that the misstatement was material

to Judge Anand’s issuance of the search warrant. The Court agrees with Judge

Salinas that what mattered was not who sent or received each email, but rather that

the email participants communicated regarding Transportation Management’s

purported expenses during the timeframe of Transportation Management’s

fraudulent PPP loan. [Doc. 557, p. 27]. Even if Special Agent Stites had

accurately portrayed the sender and recipient of this email, the facts contained in

the affidavit would still have been sufficient to support a finding of probable cause.

And, since “[n]egligent mistakes and immaterial omissions do not implicate

Franks,” the Court finds that Defendant is not entitled to a Franks hearing on this

issue. United States v. Goldstein, 989 F.3d 1197 (11th Cir. 2021). Defendant’s

third objection is OVERRULED.

IV. Fourth Objection

Finally, Defendant objects to the R. & R.’s conclusion that the Leon good

faith exception would apply to the warrant requirement in the event the warrant

had been unconstitutional. [Doc. 570, p. 18]; 468 U.S. 897. Because the Court

finds that the warrant was constitutional, Defendant’s fourth objection need not be

addressed and is OVERRULED.

11
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CONCLUSION

The Court has carefully reviewed both R. & R. and all objections thereto.

The Court finds that the Magistrate Judge’s factual and legal conclusions are

correct, and therefore Defendant’s objections are OVERRULED in their entirety.

Accordingly, the Court APPROVES AND ADOPTS the R. & R. [Doc. 557] as

the order of the Court. For the reasons stated by the Magistrate Judge, Defendant’s

motion [Doc. 439] is DENIED.

SO ORDERED this 22nd day of January, 2024.

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