Argued December 12, 2014.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10 CR 516 -- Joan Humphrey Lefkow, Judge.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: Elizabeth Rose Pozolo, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL.
For BRUCE BROWN, Defendant - Appellant: Mark S. Rosen, Attorney, ROSEN & HOLZMAN, Waukesha, WI.
Before ROVNER, WILLIAMS, and TINDER, Circuit Judges.
Rovner, Circuit Judge.
A jury found Bruce Brown guilty of wire, mail, and bank fraud in connection with a scheme to defraud mortgage lenders. Brown contends that a prior plea agreement resolving 2005 money laundering charges against him barred the government from pursuing charges in the mortgage fraud scheme, and he contends on that basis the district court should have dismissed the indictment in this case. We affirm.
In 2005, a federal grand jury in Chicago charged Brown with multiple acts of money laundering. The indictment alleged that Brown conspired with others to engage in financial transactions aimed at concealing the proceeds of illegal narcotics sales, principally through the purchase of luxury cars. The conspiracy allegedly began in 2002 and ended early in 2005 and involved more than $1.5 million in drug proceeds. In addition to conspiracy, Brown was charged with seven substantive acts of money laundering. The case was assigned to Judge Gottschall.
This was, by the way, Brown's second indictment in the Northern District of Illinois. A 2003 indictment had charged him with multiple acts of income tax evasion. That prosecution was resolved by way of a written plea agreement pursuant to which
Brown pleaded guilty to one count of filing a false income tax return. He was sentenced to a five-year term of probation that included four months of home confinement.
The 2005 money laundering case against Brown largely fell apart when a key government witness, Kenyatta Coates, refused to testify against Brown as he had promised the government he would do. Against the backdrop of a weakened prosecution case, the parties negotiated a written agreement pursuant to which Brown committed to plead guilty to one count of money laundering involving the June 2003 purchase of a Mercedes Benz automobile by Brown on behalf of Coates. Brown acknowledged that between $5,000 and $10,000 of the $63,000 cash down payment he made on the car constituted the proceeds of narcotics activity. In exchange for Brown's agreement to plead guilty to this count and to waive his appellate rights, the government agreed to dismiss the other charges and to recommend a sentence of probation and intermittent confinement within the Sentencing Guidelines advisory range of four to ten months. The agreement was executed by the parties on August 21, 2006.
The first page of the plea agreement stated that the agreement " is entirely voluntary and represents the entire agreement between the United States Attorney and defendant regarding defendant's criminal liability in case 05 CR 73." R. 192 at 2. The charges asserted in that case were set forth on the next page of the agreement. R. 192 at 3 ¶ 1. Beyond a brief notation that Brown's criminal history included his prior conviction in the 2003 tax case (R. 192 at 5 ¶ 6(e)), there was no mention in the agreement of any criminal charges other than those set forth in the 2005 indictment -- be they past, present, anticipated, or under investigation. Elsewhere, the agreement confirmed that " no threats, promises, or representations have been made, nor agreements reached, other than those set forth in this Agreement, to cause defendant to plead guilty." R. 192 at 11 ¶ 21.
Paragraph 20 of the plea agreement spelled out the government's rights in the event that Brown breached the terms of the agreement. As it is this provision that Brown believes barred the subsequent mortgage fraud indictment, we reproduce the paragraph in full here:
Defendant understands that his compliance with each part of this Plea Agreement extends throughout and beyond the period of his sentence, and failure to abide by any term of the Plea Agreement is a violation of the Agreement. He further understands that in the event he violates this Agreement, the government, at its option, may move to vacate the Plea Agreement, rendering it null and void, and thereafter prosecute defendant not subject to any of the limits set forth in this Agreement, or to resentence defendant. Defendant understands and agrees that in the event that this Plea Agreement is breached by defendant, and the Government elects to void the Plea Agreement and prosecute defendant, any prosecutions that are not time-barred by the applicable statute of limitations on the date of the signing of this Agreement may be commenced against defendant in accordance with this paragraph , notwithstanding the expiration of the statute of limitations between the signing of this [A]greement and the commencement of such prosecutions.
R. 192 at 10-11 ¶ 20 (emphasis ours). As we discuss in greater detail below, Brown's argument in this appeal ...