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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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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.).” Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/final-r-r-foster-motion-to-dismiss-multiplicitous-counts-no-1-20-cr-00-14372e9723/, SHA-256 3b4d8b4ecf159d6a20768edc5a67f9ec7e804c4805553c6202b417d8c0949175.

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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
   Case 1:20-cr-00296-JPB-CMS         Document 661    Filed 04/11/23   Page 5 of 12




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
   Case 1:20-cr-00296-JPB-CMS      Document 661     Filed 04/11/23   Page 7 of 12




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.

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  Case 1:20-cr-00296-JPB-CMS       Document 661      Filed 04/11/23   Page 10 of 12




      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
  Case 1:20-cr-00296-JPB-CMS       Document 661     Filed 04/11/23   Page 11 of 12




      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).



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  Case 1:20-cr-00296-JPB-CMS           Document 661    Filed 04/11/23   Page 12 of 12




                                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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