Order — No. 1:20-cr-00296 (Dkt. 843, N.D. Ga.)

Summary

An order in United States v. Teldrin Foster, Criminal Action No. 1:20-CR-00296-JPB-CMS-20, in the U.S. District Court for the Northern District of Georgia, Atlanta Division, filed January 23, 2024 as Document 843 (8 pages). It overrules the defendant's objections [Doc. 679] to the Magistrate Judge's Final Report and Recommendation dated April 11, 2023 [Doc. 661] and adopts that report. The defendant's Motion to Dismiss Multiplicitous Counts [Doc. 490] argued that fourteen conspiracy counts under 18 U.S.C. § 1349 describe one conspiracy, while the government described a hub-and-spoke enterprise. The motion is denied without prejudice to renewal after trial.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

       Case 1:20-cr-00296-JPB-CMS Document 843 Filed 01/23/24 Page 1 of 8




                      UNITED STATES DISTRICT COURT
                      NORTHERN DISTRICT OF GEORGIA
                           ATLANTA DIVISION

    UNITED STATES OF AMERICA,


        v.                                      CRIMINAL ACTION NO.
                                                1:20-CR-00296-JPB-CMS-20
    TELDRIN FOSTER,

              Defendant.

                                       ORDER

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

Recommendation dated April 11, 2023 (“R. & R.”) [Doc. 661] and Defendant

Teldrin Foster’s (“Defendant”) Objections to the R. & R. [Doc. 679]. This Court

finds as follows:

                                  BACKGROUND

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

substantive counts of fraud, making false statements and money laundering. See

[Doc. 290]. Defendant’s charges relate to a fraudulent Paycheck Protection

Program (“PPP”)1 loan scheme, involving PPP loan applications submitted by

several businesses. The R. & R. sets forth the facts of this case in detail. See


1
  The PPP was established as part of the Coronavirus Aid, Relief, and Economic Security
(“CARES”) Act.
     Case 1:20-cr-00296-JPB-CMS Document 843 Filed 01/23/24 Page 2 of 8




[Doc. 661, pp. 1–5]. The Court incorporates those facts by reference here in

addition to providing a brief summary of the facts most relevant to Defendant’s

objections.

      In short, Defendant is charged with, among other counts, fourteen

conspiracy counts under 18 U.S.C. § 1349. [Doc. 290]. Each count pertains to a

different business and business owner or group of owners. [Doc. 661, pp. 2–3].

The timeframes of the fourteen conspiracies are similar and, in some cases, the

same, but none of them involve the same loan or borrower. Id.

      On June 10, 2022, Defendant filed a Motion to Dismiss Multiplicitous

Counts, arguing that the fourteen conspiracy counts are multiplicitous because

there was only one large conspiracy, rather than fourteen small ones. [Doc. 490, p.

4]. Defendant contends that he will be prejudiced if he is required to go to trial on

an indictment of fourteen conspiracy counts because he would be presented to the

jury as having committed fourteen separate conspiracy crimes, and the sheer

number of charges would suggest to the jury that he must be guilty. Id. at 4–5.

      In response, the Government argues that the evidence in this case will show

a “rimless hub-and-spoke” criminal enterprise, which under Kotteakos v. United

States, should be charged as multiple conspiracies rather than one large conspiracy.

328 U.S. 750 (1946); [Doc. 532, p. 1]. Thus, the Government avers, the fourteen


                                          2
     Case 1:20-cr-00296-JPB-CMS Document 843 Filed 01/23/24 Page 3 of 8




conspiracy counts are not multiplicitous. Id. In reply, Defendant argues that the

conspiracy was not a hub and spoke conspiracy. See [Doc. 596].

      On April 11, 2023, United States Magistrate Judge Catherine M. Salinas

issued the instant R. & R. recommending that Defendant’s Motion be denied.

[Doc. 661]. The Magistrate Judge determined that the counts should not be

dismissed because the indictment was not multiplicitous on its face. Id. at 7.

Moreover, the Magistrate Judge concluded that the Government has provided

evidence supporting the conclusion that this case involves a rimless hub-and-spoke

enterprise of many small conspiracies, meriting distinct conspiracy counts. Id.

Defendant then filed objections to the R. & R., arguing that the Magistrate Judge

erred by (1) applying the multiplicitous “on its face” standard; (2) concluding that

the indictment is not multiplicitous because the counts involved separate loan

applications; (3) failing to meaningfully address whether the Government had

charged a rimless wheel conspiracy; and (4) finding that Defendant would not be

prejudiced by the multiplicitous indictment. [Doc. 679].

      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


                                          3
     Case 1:20-cr-00296-JPB-CMS Document 843 Filed 01/23/24 Page 4 of 8




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

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

(5th Cir. Unit B 1982)).

                                     ANALYSIS

      Upon review of the R. & R., the Court finds no reason to depart from the

Magistrate Judge’s findings. First, Defendant argues that the Magistrate Judge

relied on non-binding case law in applying the “multiplicitous on its face”

standard. However, Defendant provides no contradictory authority and offers no

alternative standard to apply. Further, upon review of the cases on which the

Magistrate Judge relies, the Court finds that those cases adequately support the




                                           4
     Case 1:20-cr-00296-JPB-CMS Document 843 Filed 01/23/24 Page 5 of 8




standard adopted by the Magistrate Judge. Defendant’s objection on this basis is

OVERRULED.

      Next, Defendant objects to the Magistrate Judge’s conclusion that the

indictment is not multiplicitous because the counts involved separate loan

applications. In United States v. Anderson, the Eleventh Circuit Court of Appeals

held that a defendant may be charged for multiple counts under the same general

conspiracy statute only if there exist multiple conspiratorial agreements. 872 F.2d

1508, 1520 (11th Cir. 1989). The Magistrate Judge concluded the government

proffered evidence that this case involves an alleged hub-and-spoke enterprise,

involving many distinct conspiratorial agreements. See Kotteakos, 328 U.S. at

754–55. Each of these distinct conspiracies justifies a unique count under

Anderson. Moreover, the Eleventh Circuit has held that “charges in an indictment

are not multiplicitous if the charges differ by even a single element or alleged

fact.” United States v. Woods, 684 F.3d 1045, 1060 (11th Cir. 2012). The

Government has alleged that each of the fraudulent loan applications are supported

by different facts, involving independent loans for different businesses and owners.

Defendant’s objection on this basis is likewise OVERRULED.

      In his third objection, Defendant contends that the Magistrate Judge’s

findings did not meaningfully address whether the government had charged a


                                          5
     Case 1:20-cr-00296-JPB-CMS Document 843 Filed 01/23/24 Page 6 of 8




rimless wheel conspiracy. The Court finds that the Magistrate Judge sufficiently

considered this issue and, upon review, agrees with the Magistrate Judge’s

determination. See [Doc. 661, pp. 3–4, 7]. The Government has proffered that, at

trial, the evidence will show that Defendant acted as a central “hub,” working with

various businessowners and recruiters (the “spokes”) to submit different false loan

applications for various businesses. [Doc. 532, p. 4]. The Government has also

averred that the “spokes” were generally unaware of the activities associated with

the other loan applications, and the success of their independent loan applications

did not depend upon the success of the other fraudulent loans. See id. And, in

finding that the government proffered evidence of a rimless hub-and-spoke

conspiracy, the Magistrate Judge correctly determined that the Court may deny

Defendant’s pretrial motion and permit the case to proceed to trial, allowing the

jury to determine whether the government’s proof, in fact, established a single

conspiracy or multiple. See United States v. Miller, 156 F. App’x 281, 291 (11th

Cir. 2005).

      Finally, because this Court has concluded that the Magistrate Judge did not

err in finding that the indictment is not multiplicitous on its face (and, based on the

Government’s proffer of evidence, Defendant is properly charged with fourteen

conspiracy counts), the Court is not persuaded that Defendant will be unfairly


                                           6
     Case 1:20-cr-00296-JPB-CMS Document 843 Filed 01/23/24 Page 7 of 8




prejudiced by the indictment at trial. Moreover, the Court agrees with the

Magistrate Judge that “this is not a case where the mere making of the charges

themselves would prejudice [Defendant] with the jury,” given his corresponding

charges of substantive violations of law; “[a]ll the same evidence likely will be

introduced at trial even if he were not charged in multiple conspiracies.” [Doc.

661, p. 10] (internal quotation omitted); see United States v. Carrozza, 728 F.

Supp. 266, 274 (S.D.N.Y. 1990). And, as the Magistrate Judge made clear in the

R. & R., if the evidence at trial shows that some or all of his conspiracy counts are

in fact mutiplicitous, Defendant is free to renew his motion after trial, and the

Court may provide adequate relief at that time. See United States v. Smith, 591

F.2d 1105, 1108 (5th Cir. 1979) (explaining that the principal danger of a

multiplicitous indictment is that the defendant may receive multiple sentences for

the same offense and that a remedy is available to a defendant at any time should

that occur). 2 Defendant’s objection is OVERRULED.




2
 “[D]ecisions of the United States Court of Appeals for the Fifth Circuit . . . handed
down by that court prior to the close of business on [September 30, 1981], shall be
binding as precedent in the Eleventh Circuit.” Bonner v. City of Prichard, 661 F.2d 1206,
1207 (11th Cir. 1981) (en banc).

                                           7
     Case 1:20-cr-00296-JPB-CMS Document 843 Filed 01/23/24 Page 8 of 8




                                 CONCLUSION

      The Court has carefully reviewed both the 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. 661] as

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

Motion [Doc. 490] is DENIED without prejudice to renew after trial if desired.

      SO ORDERED this 23rd day of January, 2024.




                                         8


File and source

File

843.pdf

Size

134,469 bytes

SHA-256

50a6f8b9fa06ea663de953dcbd06528d045d4b06e0a6c31f4bde1a7b6025ee04

Our copy

843.pdf

Original

archive.org