The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
Defendant, Robert W. "Bear" Taylor, proceeding pro se with standby counsel William C. Zukosky of the Federal Defenders' Office, filed his Motion to Withdraw Guilty Plea and Vacate Plea Agreement (#50), Motion for Revocation or Amendment of Detention Order (#51), and Motion for Discovery (#52) on June 1, 2009. The government filed its Responses (#56-58) to all three of Defendant's motions on June 19, 2009. For the following reasons, all three of Defendant's motions are DENIED.
Defendant was indicted on May 5, 2006, with two counts of wire fraud in violation of 18 U.S.C. § 1343. A corrected indictment was filed on July 28, 2006. The corrected document alleged that Defendant, from about August 2003 to March 2005, in Coles County, Illinois, knowingly devised a scheme and artifice to defraud and obtain money and property by means of false and fraudulent pretenses, representations, and promises from an individual with whom he had a fiduciary relationship. Defendant was a licensed real estate broker doing business as Century 21 Bear Real Estate in Charleston, Illinois. As a broker, he was required to maintain escrow moneys separate and apart from any personal, business, or operating accounts. Defendant maintained a personal bank account at The Bank in Charleston and a business and escrow account at First Mid-Illinois Bank and Trust in Charleston.
Around April and May of 2003 Defendant entered into a written listing agreement with "A.K." to sell real estate owned by A.K. that was located at 15009 East Country Road, 420 North, Charleston, Illinois and listed for around $199,000. Around August 2003 A.K. left the United States to reside in Germany and gave Defendant written power of attorney as A.K.'s fiduciary to handle the sale of the 420 North property. In August 2003 certain buyers entered into a written agreement to purchase the 420 North property from A.K. for $185,000 with a closing date scheduled in October 2003. The buyers also agreed to purchase some personal property that A.K. had left at the residence for $10,000 and to pay $1,000 rent to reside at the 420 North property up until closing.
The closing on the 420 North property took place on October 20, 2003, and at the closing Defendant received an $11,000 commission for the sale of the property and took possession of a $170,519.08 check payable to A.K. that represented the property's proceeds of sale. It was part of Defendant's scheme that on or about October 22, 2003, Defendant, without A.K.'s knowledge or permission, deposited the $170,519.08 check into Defendant's own personal account at The Bank, rather than into his escrow account. Defendant's personal checking account had a balance of $467.72 at the time of deposit. In furtherance of the scheme, Defendant represented to A.K. that the closing had not taken place because the buyers had been unable to sell their previous home. Defendant falsely represented to A.K. that the buyers had agreed to stay at the 420 North property until they could sell their house and A.K. agreed to let them stay and pay rent. Over the next 90 days, Defendant spent all of A.K.'s $170,519.08 from the closing, including transferring over $80,000 to other accounts Defendant controlled from which the money was spent, making over $40,000 in payments on outstanding personal loans, writing $9,750 in checks to himself, and spending over $6,000 on improvements to his personal residence. To avoid detection, Defendant kept forwarding rent payments to A.K.
In December 2004 Defendant told A.K. that he wanted to borrow $330,000 from him to refinance his office and personal residence. Defendant promised to give A.K. a mortgage on his office to secure the loan. Defendant falsely represented to A.K. that someone had agreed to purchase Defendant's office property for $385,000. Defendant knew full well that the offer had only been for $214,000 and had been made in September 2004 and was no longer on the table in December 2004. On December 28, 2004, Defendant sent an email to A.K. with a fraudulent mortgage. Defendant did not, as he claimed, possess the office property in fee simple or have title to it or possess a deed.
On March 8, 2005, Defendant sent an email to A.K. to further avoid detection of his scheme, apologizing for misinformation and various "untruths" about the 420 North property, but falsely told A.K. that the "net proceeds from the 420 North property were coupled with other monies and invested in other real estate....Once the property is sold your investment with interest will be returned to you..." In fact, as Defendant knew full well, the net proceeds from the 420 North property had not been invested in real estate but had been spent by him 15 months earlier.
The official charges in the July 28, 2006, corrected indictment were as follows: On or about January 13, 2005, in Coles County, in the Central District of Illinois, and elsewhere, Robert W. Taylor, (Also known as "Bear"), defendant herein, for the purpose of executing the scheme did cause to be transmitted in interstate and foreign commerce, by means of a wire communication, certain signs, signals, and sounds, that is, a wire transfer of $350,000 from a bank account in Germany under A.K.'s control to A.K.'s personal bank account at First Mid-Illinois Bank and Trust in Charleston, Illinois, $330,000 of which was transferred that same day to Defendant's Century 21 Bear Real Estate account at First Mid-Illinois Bank and Trust in Charleston, Illinois. In violation of Title 18, United States Code, Section 1343.
On or about March 28, 2005, in Coles County, in the Central District of Illinois and elsewhere, Robert W. Taylor, for the purpose of executing the scheme did cause to be transmitted in interstate and foreign commerce, by means of a wire communication, certain signs, signals, and sounds, that is, an email message from Defendant in Charleston, Illinois to A.K. in Germany that falsely represented the net proceeds from the sale of 420 North property were invested in real estate. In violation of Title 18, United States Code, Section 1343.
On June 8, 2006, Defendant was released on a $10,000 unsecured bond with no special conditions after appearing for arraignment before Magistrate Judge David G. Bernthal. Defendant hired private counsel William Tapella. On January 10, 2007, Tapella withdrew from representing Defendant. On January 25, 2007, Defendant informed the court he could retain counsel by the end of February. On February 28, 2007, Defendant told the court he had retained counsel. On April 10, 2007, Defendant appeared before Judge Bernthal and said he would represent himself. An arrest warrant for Defendant was also issued that day. On April 17, 2007, at Defendant's request, the Federal Defenders Office was appointed to represent him. On April 19, 2007, following a hearing, Judge Bernthal revoked Defendant's bond. On July 12, 2007, a superseding indictment was filed containing a third count that Defendant allegedly committed while out on bond for the first two counts.
Third Count in Superseding Indictment
On March 17, 2005, Defendant accepted $7,500 in earnest money from MVC Land Development to be held in escrow by Defendant pursuant to a real estate contract in which MVC was to purchase real estate from a seller whom Defendant represented. Defendant did not maintain the $7,500 in an escrow account, but spent it for his own purposes without the permission of the principals to the real estate transaction. When the transaction was terminated, MVC requested in writing on March 7, 2006, that Defendant return the $7,500 in earnest money under the real estate contract. Defendant did not respond to the letter, so a MVC representative contacted him by telephone. Defendant falsely told him that the seller was not happy that the transaction was terminated and that the seller may not be willing to relinquish the $7,500 earnest money because the seller had made improvements to the property pursuant to the real estate contract. In fact, the seller had not made improvements to the property, nor was the seller unwilling to relinquish the $7,500 earnest money. Defendant never returned the money to MVC.
Beginning in 2006, Defendant acted as the real estate agent for the purchase of several tracts of real estate in Charleston, Illinois, by 12 CRAEB, LLC ("the Purchaser"), an entity created by Gemini Development Group specifically for the purchase of real estate in Charleston. In April 2006 Defendant began accepting earnest money from the Purchaser to hold in escrow.
In January 2007, while the real estate transaction was still pending, Defendant requested additional earnest money from the Purchaser by falsely representing that he was being investigated by the licensing agency for real estate agents, the Illinois Department of Financial and Professional Regulation (DFPR), because the Purchaser had not made timely earnest money deposits. In support of his representation, Defendant provided Purchaser with a letter he had fraudulently created that was purportedly from the DFPR and stated they were investigating Defendant based on a failure for timely earnest money deposits to be made regarding two of the subject properties. As a result, Purchaser provided Defendant with an additional $33,000 in earnest money.
The total earnest money provided to Defendant by the Purchaser to be held in escrow was $103,000. Defendant did not maintain the $103,000 in an escrow account, but spent $100,000 of it for his own purposes without the permission of the principals to the real estate transaction. Defendant was to transfer the earnest money to Land America Title, Chicago, Illinois, on March 9, 2007, as part of the real estate transaction. On that date, Defendant transferred only $3,000. Defendant falsely told the Purchaser that he was having issues with First-Mid Bank and Trust in Charleston, Illinois in getting the additional $100,000 wired. On March 12, 2007, Defendant went to the Purchaser's office and falsely told representatives of the Purchaser that he could not provide the $100,000 earnest money because of issues with First Mid-Bank and Trust in Charleston. In fact, Defendant no longer had the earnest money, which he had spent for his own personal benefit. Defendant never provided the Purchaser or the title company with the $100,000 earnest money.
On or about January 31, 2007, in Coles County, in the Central District of Illinois, and elsewhere, Robert W. Taylor defendant herein, for the purpose of executing the scheme did knowingly cause to be deposited to be sent and delivered by a commercial interstate carrier and cause to be delivered by such carrier according to the direction thereon a parcel containing an earnest money check payable to Century 21 Bear Real Estate, which parcel was sent by UPS from Gemini Companies, Inc., and delivered by the UPS to the defendant at Century 21 Bear Real Estate. In violation of Title 18, United States Code, Section 1343.
Furthermore, Defendant committed this offense at a time while he was released pursuant to an order dated June 8, 2006, from the United States District Court for the Central District of Illinois, case No. 06-20030, which order notified the defendant of the potential effect of committing an offense while on pretrial release. In violation of Title 18, United States Code, Section 3147.
On February 19, 2008, Defendant appeared before Judge Bernthal and entered a plea of guilty to counts 2 and 3 of the superseding indictment. The court found the plea knowing and voluntary. On March 25, 2008, this court entered an Order (#32) adopting the Report and Recommendations of Judge Bernthal accepting Defendant's plea of guilty to counts 2 and 3. On April 2, 2009, Defendant appeared in court with his appointed counsel John Taylor and William Zukosky. Defendant made an oral motion to dismiss Taylor and retain Zukosky as standby counsel. The court granted Defendant's motion to proceed pro se and on April 24, 2009, allowed Zukosky to be standby counsel.
DEFENDANT'S CURRENT MOTIONS
On June 1, 2009, Defendant filed three motions: A Motion to Withdraw Guilty Plea and Void Plea Agreement (#50), A Motion for Revocation or Amendment of the Revocation Order (#51), and a Motion for Discovery (#52). On June 19, 2009, the government filed its Responses to all three motions (#56-58). Each motion will be dealt with in turn.
I. Motion to Withdraw Guilty Plea Defendant's Motion In his Motion for Leave to Withdraw Plea of Guilty and Void Plea Agreement (#50)
Defendant moves the court, per Federal Rule of Civil Procedure 11(d)(2)(B) to grant him leave to withdraw his guilty plea "for fair and just reason" prior to sentencing. In support of his motion, Defendant filed a 14-page affidavit, explaining in great detail his problems with assigned counsel Assistant Federal Defender John Taylor and why he would not have plead guilty but for the bad and ...