The opinion of the court was delivered by: Judge Joan H. Lefkow
MEMORANDUM OPINION AND ORDER
Defendant Bruce Brown moves to dismiss the indictment on the ground that the instant prosecution is barred by his plea agreement in a prior case. Dkt. #160.*fn1 For the reasons that follow, Brown's motion will be denied.
I. The Instant Mortgage Fraud Prosecution
On February 23, 2011, the government filed a superseding indictment alleging that Brown had orchestrated a mortgage fraud scheme related to the purchase of several residential properties in the Chicago area. The indictment charges Brown with mail fraud, wire fraud, and bank fraud. The case proceeded to a jury trial on October 24, 2011, and Brown was convicted on all counts.
II. Prior Income Tax and Money Laundering Prosecutions
Brown has been prosecuted and entered guilty pleas in two other cases in this district, case numbers 03 CR 397 (the "income tax prosecution") and 05 CR 73 (the "money laundering prosecution").
On September 23, 2004, Brown pleaded guilty to filing a false federal income tax return for the calendar year 1997. See Case No. 03 CR 397, Dkt. #30. Brown was sentenced to five years' probation with a condition of home confinement on January 26, 2005. See Case No. 03 CR 397, Dkt. #34. That same day, another complaint was filed under seal, alleging that Brown had laundered money obtained from illegal drug trafficking by the Black Disciples gang. See Case No. 05 CR 73, Dkt. #1.
Brown was subsequently indicted for money laundering, conspiracy to commit money laundering, and engaging in monetary transactions in property derived from unlawful activity. See Case No. 05 CR 73, Dkt. #12. On August 21, 2006, Brown pleaded guilty to count VI of the indictment, admitting in his plea agreement that he had purchased a Mercedes Benz on behalf of Kenyatta Coates and concealed the fact that Coates gave him a portion of the funds that he used to pay for the car.
Brown entered into a written plea agreement with the government. The second paragraph of the plea agreement states, "This Plea 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." See Ex. A to Gov't Resp. to Mot. to Dismiss at 1. In exchange for Brown's guilty plea, the government promised to recommend a sentence of probation and intermittent confinement within the applicable Guideline range. Id. ¶ 17. Paragraph 21 of the agreement provides, "Defendant and his attorney acknowledge that no threats, promises, or representations have been made, nor agreements reached, other than those set forth in ths Agreement, to cause defendant to plead guilty." Id. ¶ 21. Paragraph 20 sets forth the consequences for Brown's failure to abide by the terms of the plea agreement:
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 terms of the plea agreement is a violation of the plea agreement. He further understands that in the event he violates this plea agreement, the government, at its option, may move to revoke 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 agreement and the commencement of such prosecutions.
Id. ¶ 20. On December 6, 2006, Brown was sentenced to four months' intermittent confinement, with credit for time served. The sentence was modified on December 26, 2006, to a sentence of three years' probation.
Brown argues that the indictment must be dismissed because the government agreed not to prosecute him for other conduct, including the instant offense conduct, in exchange for his ...