Order — No. 1:21-cr-00371 (Dkt. 108, N.D. Ala.)

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An order in United States v. Anthony Lamon Frazier, et al., Case No. 1:21-cr-371-CLM-JHE, in the U.S. District Court for the Northern District of Alabama, Eastern Division, filed July 22, 2022 as Document 108 (6 pages) and signed by Judge Corey L. Maze. The defendants Frazier, Dark, Porter and Spencer, charged in a 37-count indictment (Doc. 1), moved to sever counts (Docs. 80, 84, 87 & 92). The court overrules Dark's and Spencer's objections (Docs. 101 & 105), including a Confrontation Clause objection, adopts the magistrate judge's report (Doc. 99), and denies the motions to sever. It concludes that limiting instructions can mitigate any spillover prejudice.

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“Order — No. 1:21-cr-00371 (Dkt. 108, N.D. Ala.).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/order-no-1-21-cr-00371-dkt-108-n-d-ala-29127b7e8d/, SHA-256 5e1af625b1bbaee4006bb48807604d07f46bb1eb7317ce374c13ee83e3f2781b.

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Case 1:21-cr-00371-CLM-JHE Document 108 Filed 07/22/22 Page 1 of 6 FILED
2022 Jul-22 AM 08:59
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION

UNITED STATES OF AMERICA,

v. Case No. 1:21-cr-371-CLM-JHE

ANTHONY LAMON FRAZIER,
et al.,
Defendants.

ORDER

Defendants Anthony Lamon Frazier, Kelvin James Dark, Charleen
Porter, and Frederick Andre Spencer are each charged in one or more counts
of a 37-count indictment. (Doc. 1). Each defendant moved to sever at least one
count of the indictment and for a separate trial on those counts. (Docs. 80, 84,
87 & 92). The magistrate judge has entered a report that recommends that the
court deny the motions. (Doc. 99).

Dark and Spencer have timely objected to the magistrate judge’s
recommendation. (Docs. 101 & 105). For the reasons stated within, the court
OVERRULES their objections, ADOPTS the magistrate judge’s report, and
ACCEPTS his recommendation. So the court will DENY the motions to sever
(docs. 80, 84, 87 & 92).

—

The 37-count indictment alleges four categories of crimes. In Counts 1–
23, the government charges Frazier with money laundering. Counts 24–27
charge Frazier with the related crime of structuring. Count 29 alleges that
Frazier committed money laundering by wiring funds to a Frazier Investments
account. These charges all relate to funds Frazier deposited into either his
Frazier Investments or Head of Game bank accounts. Count 28 charges
Frazier, Dark, and Spencer with conspiring to commit wire fraud related to an
Case 1:21-cr-00371-CLM-JHE Document 108 Filed 07/22/22 Page 2 of 6

alleged scheme to defraud professional football player Q.W. Counts 30–34
charge Porter and Spencer with defrauding the Small Business Administration
(“SBA”) in applying for COVID-19 relief loans under the Paycheck Protection
Program (“PPP”). Finally, Counts 35–37 charge Frazier with filing false tax
returns for the years 2017, 2018, and 2019.

Dark’s motion to sever asks the court to sever Count 28 from the other
counts, asserting that this count—which is the only count he’s charged in—
isn’t part of the same series of acts or transactions as those alleged in the other
counts. (Doc. 80). Frazier’s motion argues that the court should sever the
counts into three trials: one for Counts 1–27 and Counts 35–37, one for Counts
28–29, and one for Counts 30–34. (Doc. 84). Porter contends that the court
should sever Counts 30–34 from the other counts because she’s not charged or
connected with the conduct alleged in the other counts. (Doc. 87). Spencer
argues that Counts 1–27, 29, and 35–37 are misjoined with the counts he’s
charged with because they are different in character from the conduct he’s
alleged to have committed. Spencer also argues that being tried with Frazier
would prejudice him due to the potential of a spillover effect.

In response to these motions, the government proffered evidence that it
said would show that joinder of the 37 counts in the indictment was proper.
According to the government, Dark, Spencer, and Frazier were responsible for
fraudulently persuading Q.W., a young professional athlete, to wire $500,000
into the Head of Game bank account, which he thought was being used to
create his own sports agency. It’s the government’s theory that Frazier
deposited drug trafficking proceeds into the Head of Game account to
commingle them with the proceeds from Q.W. so that his businesses would look
legitimate. And Porter and Spencer used these funds for their own personal
benefit. Porter later listed the bank account where she and Spencer housed the
funds from Q.W. in her allegedly fraudulent PPP loan application.

The magistrate judge found that the government’s proffer sufficiently
connected the charges, noting that there was a commingling of funds and that
the government represented that most of the witnesses at trial would be the
same because the same financial analysts and case agents analyzed the
financial accounts and records at issue. So the magistrate judge recommended
that the court deny the motions to sever. Dark and Spencer object to the

2
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magistrate judge’s report on Confrontation Clause and substantive grounds.
The court will address each category of objection in turn.

A. Confrontation Clause

Both Dark and Spencer assert that the magistrate judge’s failure to hold
an evidentiary hearing where they could confront the witnesses that the
government used as a basis for its proffer violates their rights under the
Confrontation Clause of the Sixth Amendment.

The Confrontation Clause provides that “in all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against
him.” U.S. CONST. amend VI. This guarantee prohibits the admission of
testimonial evidence when the defendant didn’t have a previous opportunity to
cross-examine the witness. See United States v. Lopez, 649 F.3d 1222, 1237
(11th Cir. 2011). But representations from attorneys aren’t “testimony nor any
other kind of evidence.” See id. And the government’s representations about
what the evidence will show is like the nontestimonial statements attorneys
make during opening and closing arguments. See id. (holding that attorney’s
statement during closing didn’t violate the Confrontation Clause). So the court
finds that considering the representations in the government’s briefs without
holding an evidentiary hearing doesn’t violate the Confrontation Clause.

Plus, the Eleventh Circuit has endorsed looking to both the indictment
and the government’s proffer in response to a motion to sever to determine
whether joinder is proper. See United States v. Dominguez, 226 F.3d 1235,
1239–42 (11th Cir. 2000). Indeed, the Eleventh Circuit has said that only “[i]f
the indictment fails to show and the prosecutor fails to proffer a sufficient basis
in the expected evidence to justify joinder” should “a severance . . . be ordered.”
Id. at 1241. Further, “[t]he failure of the government to prove those facts at
trial does not mean joinder was improper, provided that the allegations are
made in good faith.” Id. at 1241 n.8.

Here, there’s nothing to suggest that the allegations provided in the
government’s proffer weren’t made in good faith. So under Dominguez it was
proper for the magistrate judge to consider the government’s proffer in
evaluating Defendants’ motions to sever. Recognizing this, Dark attacks the
validity of Dominguez by pointing to earlier Eleventh Circuit precedent and

3
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the Supreme Court’s more recent Confrontation Clause cases, including
Crawford v. Washington, 541 U.S. 36 (2004).

But in Dominguez the Eleventh Circuit found that district courts could
consider government proffers when ruling on a motion to sever “with full
awareness that this Court has repeatedly said that whether joinder is proper
under Rule 8 is to be determined by examining the allegations in the
indictment alone.” Dominguez, 226 F.3d at 1240. The court then explained that
the “indictment only” rule applies only when evidence at trial suggests that
joinder was improper “even though under the allegations of the indictment
alone joinder would have been proper.” Id. It doesn’t apply when the
government’s proffer establishes a “basis in the expected evidence to justify
joinder.” Id. at 1241. Though Dark disagrees with this reasoning, this court
cannot overrule a binding decision from the Eleventh Circuit. See United States
v. Steele, 147 F.3d 1316, 1317–18 (11th Cir. 1998) (en banc). And Dark hasn’t
shown that anything in Crawford or the Supreme Court’s other more recent
Confrontation Clause cases have undermined the validity of the procedure
endorsed in Dominguez. So the rule that courts can look to a proffer from the
government to see if the expected evidence supports joinder remains good law.

In short, the magistrate judge employed the appropriate procedure when
he considered both the indictment and the government’s proffer to determine
that joinder was proper. So the court OVERRULES the objection that the
magistrate judge should have held an evidentiary hearing before considering
the government’s proffer.

B. Substantive Arguments

Both Dark and Spencer’s objections also challenge the magistrate judge’s
report on the merits. The court will address these arguments in turn.

1. Dark: In his objections, Dark asserts that the count charging him with
conspiring to defraud Q .W. is misjoined with the other counts because the
government hasn’t argued that one illegal activity was the impetus for the
other illegal activity in the indictment. As Dark points out, that the defendant
submitted fraudulent income tax returns to conceal that he had derived his
income from drug activity led the court in Dominguez to find that joinder was
proper. See Dominguez, 226 F.3d at 1242.

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But one crime being the impetus for other crimes alleged in the
indictment isn’t the only way for joinder to be proper. Instead, joinder of
defendants is proper so long as “they are alleged to have participated in the
same act or transaction, or in the same series of acts or transactions,
constituting an offense or offenses.” Fed. R. Crim. P. 8(b). And this court “must
construe Rule 8 broadly in favor of . . . initial joinder.” United States v. Montes-
Cardenas, 746 F.3d 771, 776 (11th Cir. 1984). As recounted in the magistrate
judge’s report, most of the charged conduct here stems from the alleged
defrauding of Q.W. And the government alleges that Dark participated in
fraudulently obtaining the funds from Q.W. some of which were later moved
into bank accounts connected to Spencer and Porter. For the reasons explained
by the magistrate judge, the court finds that there is enough of a connection
between the conduct Dark is charged with and the other conduct alleged in the
indictment. So the court OVERRULES this objection to the magistrate judge’s
report and recommendation.

2. Spencer: Spencer makes two arguments for why the court should sever
the offenses charging Frazier with money laundering, structuring, and filing
false tax returns from the charges against Spencer. According to Spencer, the
only thing that ties the counts together is the Head of Game bank account. And
Spencer asserts that because he wasn’t the signatory on the Head of Game
account or the Mom and Sons Towing account allegedly used to defraud the
SBA there isn’t an adequate connection between the charges against Frazier
and the charges against Spencer.

The government alleges that Spencer is the one who introduced Q.W. to
Frazier and Dark. The government also alleges that Frazier used the Head of
Game account to commingle drug proceeds with the funds that Q.W.
transferred to that account. And Frazier transferred some of Q.W.’s funds from
the Head of Game account to Spencer and Porter who used those funds for their
personal expenses. Porter, who is Spencer’s mother, opened the Mom & Son’s
Towing account to hold the money from Q.W. and then allegedly later used that
account to help her and Spencer receive fraudulent PPP loans. So the court
agrees with the magistrate judge that Spencer “is directly connected to the
alleged fraudulent activities of all three of his co-defendants.” (Doc. 99 at 17).
The court thus rejects Spencer’s first argument for severance.

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Spencer also challenges the magistrate judge’s recommendation that the
court deny his Rule 14 motion to sever. According to Spencer, even if the
charges against him are properly joined with the charges against Frazier under
Rule 8, the court should order different trials because there’s a danger of a
spillover effect prejudicing Spencer. The court agrees with the magistrate
judge that it can mitigate potential prejudice from a spillover effect through
limiting instructions. And as the magistrate judge noted, “it is relatively easy
to separate out the conduct alleged in this case.” (Id. at 14). So the court
OVERRULES Spencer’s substantive objections to the magistrate judge’s
report and recommendation.

***

In sum, having reviewed the entire record, including the magistrate’s
report, the court OVERRULES the objections, ADOPTS the magistrate
judge’s report, and ACCEPTS his recommendation. So the court DENIES the
motions to sever (docs. 80, 84, 87 & 92).

Done and Ordered on July 22, 2022.

_________________________________
COREY L. MAZE
UNITED STATES DISTRICT JUDGE

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