Final R&r: Foster motion to dismiss multiplicitous counts — No. 1:20-cr-00296 (Dkt. 661, N.D. Ga.)
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A Final Report and Recommendation filed April 11, 2023 by United States Magistrate Judge Catherine M. Salinas in United States of America v. Teldrin Foster, Criminal Action No. 1:20-cr-296-JPB-CMS, in the U.S. District Court for the Northern District of Georgia, as Document 661. It addresses Foster's Motion to Dismiss Multiplicitous Counts [Doc. 490], which argued that fourteen conspiracy counts under 18 U.S.C. § 1349 describe one conspiracy. A chart lists each count with the alleged coconspirators, the substantive crime, the dates and the loan recipient. The report finds the counts not multiplicitous on their face because each concerns a distinct loan, describing the Government's rimless hub-and-spoke theory. It recommends denial without prejudice to renewal after trial and certifies Foster's case ready for trial.
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“Final R&r: Foster motion to dismiss multiplicitous counts — No. 1:20-cr-00296 (Dkt. 661, N.D. Ga.).”
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Case 1:20-cr-00296-JPB-CMS Document 661 Filed 04/11/23 Page 1 of 12
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA
v. CRIMINAL ACTION NO.
TELDRIN FOSTER, 1:20-cr-296-JPB-CMS
Defendant.
FINAL REPORT & RECOMMENDATION
This case is before the Court on Defendant Teldrin Foster’s Motion to Dismiss
Multiplicitous Counts. [Doc. 490]. For the reasons discussed below, I will
recommend that this motion be denied.
I. BACKGROUND
Foster is charged along with fifteen other people in a sixty-three-count Second
Superseding Indictment stemming from fraudulently obtained Payroll Protection
Program (“PPP”) loans. [Doc. 290]. According to the Government, this case
involves Darrell Thomas and others working with him (including Foster) who found
“recruiters” who located businessowners who were willing to submit fraudulent PPP
loans for their businesses. The indictment alleges that the scheme resulted in
fourteen fraudulently obtained PPP loans being funded. [Id. ¶¶ 56, 59].
Case 1:20-cr-00296-JPB-CMS Document 661 Filed 04/11/23 Page 2 of 12
Foster is charged with fourteen conspiracy counts, each charged under 18
U.S.C. § 1349. He is also charged with other substantive charges associated with
those alleged conspiracies.1 Each of the fourteen conspiracy counts pertains to a
different businessowner and a different loan. As summarized below, the timeframes
of the various conspiracies are either identical or very similar, and there is some
overlap in Foster’s alleged co-conspirators. The alleged conspiracies, however, are
factually distinct from one another because each one focuses on a different PPP loan
with a different business receiving the loan proceeds; none involves the same loan
or borrower.
Count Alleged Co- Substantive Crime Dates Loan Recipient
conspirators
1 M. Thomas Wire Fraud April-May 2020 Bellator Phront Group Inc.
3 Blakely Bank & Wire Fraud April-May 2020 Impact Creations LLC
6 Blakely Bank & Wire Fraud April-May 2020 Gaines Reservation and
John Gaines Travel
9 Christian Bank & Wire Fraud April-May 2020 Transportation Management Services
Petty Inc.
Baptiste
12 Dixon Bank & Wire Fraud April-May 2020 Lee Operations LLC
15 Dixon Bank & Wire Fraud April-May 2020 RK Painting Co.
Blakely
18 Dixon Wire Fraud April-June 2020 D Parker Holdings Inc.
Parker
1
Foster is also charged with fourteen counts of wire fraud, six counts of bank
fraud, six counts of making a false statement to a federally insured bank, and one
count of money laundering.
2
Case 1:20-cr-00296-JPB-CMS Document 661 Filed 04/11/23 Page 3 of 12
Count Alleged Co- Substantive Crime Dates Loan Recipient
conspirators
20 M. Thomas Bank & Wire Fraud April-June 2020 Continuing Success Inc.
Christian
Belgrave
23 Dixon Wire Fraud April-June 2020 All Star Room and Board Services of
Michigan Inc.
25 M. Thomas Wire Fraud April-July 2020 Infinite Education Services Inc.
Blakely
Christian
Hill
27 Dixon Wire Fraud April-June 2020 ML Exotic Customs Inc.
Whittley
30 Ashong Wire Fraud April-June 2020 Bellevie Corp.
Sall
32 Christian Wire Fraud April-June 2020 Advertising and Then Some Inc.
34 Christian Wire Fraud April-August Mickies Auto and Tires LLC
McDuffie 2020
In his motion, Foster argues that the fourteen conspiracy counts against him
are multiplicitous because in reality, there was only one large conspiracy—not
fourteen small ones. [Doc. 490 at 4]. Foster claims that he will be prejudiced if the
jury sees him charged with fourteen conspiracies, and he asserts that it is unfair for
him to have to defend against so many charges. [Id. at 4–5].
In response, the Government argues that the caselaw requires the Government
to charge multiple conspiracies because this case involves a “rimless hub-and-
spoke” conspiracy, in which it is not proper to charge all the defendants with a single,
large conspiracy. [Doc. 532 at 2–3]. According to the Government, the evidence
will show that Darrell Thomas and Foster acted as the central “hub” and worked
3
Case 1:20-cr-00296-JPB-CMS Document 661 Filed 04/11/23 Page 4 of 12
with various businessowners and recruiters—the “spokes”—to submit false loan
applications. [Id. at 4]. The Government states that, for the most part, the spokes
were aware only of their own specific loan applications, were not aware of the
activities to obtain any other loans, did not interact with the other spokes, and did
not depend on the other spokes for the success of their own fraudulent schemes.
[Id.]. In Kotteakos v. United States, 328 U.S. 750 (1946), the Supreme Court
described this type of situation as a “rimless hub-and-spoke” conspiracy, where the
separate spokes met at a common center, or hub, but without the rim of the wheel to
enclose the spokes. Id. at 755. While this legal principle results in those individuals
who are in the “hub” (like Foster) being charged with multiple smaller conspiracies,
but it also ensures that those individuals who are part of only a single “spoke” are
charged with only the smaller conspiracy. Charging the smaller conspiracies
separately in this situation ensures that individuals are punished only for the illegal
schemes to which they actually agree, rather than for all of the agreements that the
“hub” defendants may have entered into with other “spokes” whom the individuals
had nothing to do with.
In his reply brief, Foster argues that regardless of how the Government’s
charging decision might affect other defendants in the case, the evidence will show
4
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that as it relates to him, there was just one single overarching scheme to fraudulently
obtain funds through the PPP program. [Doc. 596 at 7–8].
II. DISCUSSION
Multiplicity occurs when a single offense is charged in multiple counts.
United States v. Langford, 946 F.2d 798, 802 (11th Cir. 1991). The principal danger
of a multiplicitous indictment is that the defendant may receive multiple sentences
for the same offense, in violation of the Double Jeopardy Clause of the Fifth
Amendment. U.S. CONST. amend. V.2 But a secondary danger can also arise, i.e.,
“an adverse psychological effect on the jury may result from the suggestion that
several crimes have been committed.” United States v. Smith, 591 F.2d 1105, 1108
(5th Cir. 1979); Langford, 946 F.2d at 802. Such prejudice arises where “the mere
2
A double jeopardy issue can be addressed at any time (even post-conviction)
by consolidating the counts or dismissing multiplicitous counts. See United States
v. Ford, No. 1:12-cr-297-TWT-ECS, 2013 WL 1337130, at *2 n.3 (N.D. Ga. Mar.
5, 2013), report and recommendation adopted, No. 1:12-cr-297-TWT, 2013 WL
1320739 (N.D. Ga. Mar. 29, 2013), aff’d, 784 F.3d 1386 (11th Cir. 2015) (“even
after a verdict, any error may be remedied by vacating multiplicitous convictions
and any concurrent convictions based upon those convictions”).
5
Case 1:20-cr-00296-JPB-CMS Document 661 Filed 04/11/23 Page 6 of 12
making of the charges would prejudice the defendant with the jury.” United States
v. Reed, 639 F.2d 896, 904 n.6 (2nd Cir. 1981).
In his motion, Foster does not raise the double-jeopardy issue, but rather
argues only that he will be prejudiced if he has to go to trial on an indictment
containing fourteen conspiracy counts. Foster argues:
it is critical for the issue to be resolved now, prior to trial, because the
prejudice resulting from the multiplicitous indictment at trial will be
great. Instead of facing one conspiracy count, Mr. Foster will be
presented to the jury as having committed 14 separate conspiracy
crimes, in addition to the other substantive counts. Instead of asking a
jury to find him not guilty on one conspiracy count, he will have to ask
the jury to find him not guilty on all 14 counts, and the sheer number of
charges will undoubtedly suggest to the jury that he must be guilty of
something.
[Doc. 490 at 4–5].
When, as here, the issue of multiplicity is raised in a pretrial motion to dismiss,
courts have discretion to dismiss multiplicitous counts, but only if the indictment is
multiplicitous on its face. See United States v. O’Sullivan, No. 20 Cr. 272, 2021
WL 1979074, at *6 (E.D.N.Y. May 18, 2021); United States v. Eichholz, No.
CR409-166, 2009 WL 10688080, at *4 (S.D. Ga. Dec. 14, 2009) (noting that
multiplicity is a pleading rule, the violation of which is not fatal to an indictment).
Otherwise, the question whether the proof establishes a single conspiracy or multiple
conspiracies is an issue of fact for the jury. See United States v. Potamitis, 739 F.2d
6
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784, 787 (2d Cir. 1984); United States v. Carrozza, 728 F. Supp. 266, 274 (S.D.N.Y.
1990) (holding that indictment charging different conspiracies that occurred at
different times, for different durations, and extorted different victims was not
multiplicitous).
Having reviewed the indictment, I conclude that the fourteen conspiracy
counts summarized in the chart above are not facially multiplicitous because the
counts appear to depend upon proof of different facts. Each count represents a
distinct loan for a borrower. Moreover, the Government has proffered evidence
supporting the conclusion that Foster is the “hub” of a “rimless hub-and-spoke”
conspiracy, and therefore Foster is properly charged in each count. The
businessowners, however, appear to be the “spokes” who directed their efforts
toward obtaining a fraudulent PPP loan for their own businesses, without regard for
any other potential loan, and the success of one loan application did not depend on
the success of any other loan application. [Doc. 532 at 4].
Moreover, I note that Foster has not directed the Court to any cases in which
a court has done what he proposes—dismiss a conspiracy count prior to trial, as
multiplicitous. Instead, he relies on post-conviction cases arising in a different
procedural posture, including United States v. Anderson, 872 F.2d 1508 (11th Cir.
1989) and Ward v. United States, 694 F.2d 654 (11th Cir. 1983).
7
Case 1:20-cr-00296-JPB-CMS Document 661 Filed 04/11/23 Page 8 of 12
In Anderson, the Eleventh Circuit was presented with an argument about
sentencing. The indictment in that case charged three separate conspiracies, each
alleging a violation of the same general conspiracy statute as alleged here, 18 U.S.C.
§ 371. The three counts charged a different statutory provision as the singular object
of that particular conspiracy. After the defendants were convicted of all three counts,
they argued on appeal that the trial court erred in failing to consolidate or require an
election among the three conspiracy counts, and thereafter in imposing consecutive
sentences upon these multiplicitous counts. The Eleventh Circuit agreed with the
appellants, concluding that
the proof at trial revealed an overall agreement, with the same overt
acts, covering the same general time frame, to violate various statutory
provisions concerning the procurement and sale or transfer of the same
government munitions and explosives. Where the gist of the crime is a
conspiracy or an agreement to commit one or more unlawful acts
proscribed by different statutes, but each count charges a violation of
the same general conspiracy statute, and the proof reveals a single
ongoing conspiratorial agreement, only a single penalty under that
conspiracy statute can be imposed.
Anderson, 872 F.2d at 1520. The Eleventh Circuit vacated the convictions and
ordered that the defendants be resentenced. Id. at 1520–21.
Ward arose in an even more remote posture; it was an appeal of the denial of
a post-conviction § 2255 motion. That case involved a multi-year conspiracy to
receive stolen farm equipment, alter the identification numbers, and sell the
8
Case 1:20-cr-00296-JPB-CMS Document 661 Filed 04/11/23 Page 9 of 12
equipment. The defendant argued that the indictment was multiplicitous as to two
conspiracy counts—one large conspiracy and one smaller conspiracy—and the
Eleventh Circuit agreed. In reaching its ruling, the Eleventh Circuit stated that where
“the separate conspiracies are both founded upon a general conspiracy statute, the
relevant inquiry is whether there existed more than one agreement to perform some
illegal act or acts.” Ward, 694 F.2d at 661. The Court evaluated the evidence that
had been presented at trial and determined that there was “substantial overlap”
between the two charged conspiracies, that the smaller of the two conspiracies “was
entirely subsumed in the larger conspiracy,” and that the only significant differences
between the counts were the different vehicles involved. Id. at 663. The Eleventh
Circuit vacated the conviction and sentence as to the smaller conspiracy. Id. at 663–
64.
While instructive on the legal concept of multiplicity, Anderson and Ward do
not support Foster’s request for pretrial dismissal of his conspiracy charges. Those
cases evaluated the evidence that had been admitted at trial; they did not analyze
whether the face of the indictment revealed multiplicitous counts. As demonstrated
by the chart above and the Government’s proffer, there appear to be sufficient
differences between the proof needed to convict on the various charged conspiracy
counts for those counts to survive pretrial scrutiny for multiplicity concerns.
9
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Moreover, I am unpersuaded by Foster’s claim of prejudice. This is not a case
where “the mere making” of the charges themselves would prejudice Foster with the
jury, given that he is also charged with corresponding substantive violations of law,
i.e., twenty substantive fraud counts, six counts of making a false statement to a
bank, and one count of money laundering. All of the same evidence likely will be
introduced at trial even if he were not charged in multiple conspiracies. See
Carrozza, 728 F. Supp. at 274 (rejecting the prejudice argument and noting that in
such a situation, “[a]ny prejudice the defendants may suffer results from the strength
of the Government’s case and nothing else.”).
For the reasons discussed above, I conclude that the fourteen conspiracy
counts with which Foster is charged are not multiplicitous on their face. If the
evidence at trial shows that some (or all) of the counts are multiplicitous, the Court
can address the multiplicity issue post-conviction and provide adequate relief at that
time. Additionally, any concerns about prejudice at trial can be addressed through
proper jury instructions, if necessary. See United States v. Siegelman, No. 2:05 CR
119 MEF, 2006 WL 752951, at *3 (M.D. Ala. Mar. 22, 2006) (recognizing the
dangers inherent in a multiplicitous indictment, but noting that the court can cure
any defects in the indictment by offering appropriate instructions to the jury).
10
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As such, Foster’s motion to dismiss should be denied. See United States v.
Stapleton, Case Nos. 13-80201-CR & 14-80151-CR, 2018 WL 9538225, at *2 (S.D.
Fla. Nov. 27, 2018) (denying pretrial motion to dismiss conspiracy counts as
multiplicitous where the defendant was charged with three counts of conspiracy to
encourage and induce an alien to enter the United States, the dates of each charged
conspiracy were different, the co-conspirators were different, and the aliens who
were smuggled were different); United States v. O’Sullivan, No. 20-CR-272 (PKC),
2021 WL 1979074, at *6 (E.D.N.Y. May 18, 2021) (denying pretrial motion to
dismiss conspiracy counts and concluding that it was not clear from the face of the
indictment that challenged counts were multiplicitous); United States v. Robinson,
No. 16-cr-545-ADS-AYS-1, 2017 WL 5135598, at *8 (E.D.N.Y. Nov. 1, 2017)
(denying motion to compel election between conspiracy counts and concluding that
whether the defendant engaged in multiple conspiracies to rob different individuals
was “a question of fact properly submitted to a jury”); Carrozza, 728 F. Supp. at 274
(denying pretrial motion to dismiss on multiplicity grounds and ruling that the
indictment charging different conspiracies that occurred at different times, for
different durations, and extorted different victims was not multiplicitous because
proof of each count required proof of different facts).
11
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III. CONCLUSION
I therefore RECOMMEND that Foster’s Motion to Dismiss Multiplicitous
Counts [Doc. 490] be DENIED without prejudice to renewal after trial. There are
no other pending matters before me in this case. Accordingly, Foster’s case is hereby
CERTIFIED ready for trial. Among the multiple codefendants in this case, Foster
is the final defendant to be certified.
This 11th day of April, 2023.
CATHERINE M. SALINAS
United States Magistrate Judge
12
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