United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
H. LEFKOW, U.S. DISTRICT JUDGE.
Brown filed a timely pro se motion under 28 U.S.C.
§ 2255 to vacate his conviction and sentence, arguing
ineffective assistance of trial counsel, prosecutorial
misconduct, and that his sentence should be corrected. (Dkt.
1, 36.) For the reasons stated below, Brown's
motion is denied in part and stayed in part.
February 23, 2011, Brown was charged with six counts of wire
fraud in violation of 18 U.S.C. § 1343 (counts one
through five, and eight), two counts of mail fraud in
violation of 18 U.S.C. § 1341 (counts six and seven),
and one count of bank fraud in violation of 18 U.S.C. §
1344 (count nine) as a result of his involvement in a
mortgage fraud scheme. (Cr. dkt. 60.) Brown was charged along
with seven co-defendants: Walker Smith, Brigitte Grose, Mario
Moore, Anne Taylor, John Rucker, Johnny Williams, and Bernard
Sheppard. (Id.) All but Brown and Moore pleaded
guilty. Several of the defendants testified at Brown's
trial, including Grose, Moore, and Smith.
mortgage fraud scheme involved six mortgage transactions
related to properties in the Chicago area. United States
v. Brown, 779 F.3d 486, 491 (7th Cir. 2014). Beginning
in about May 2005 and lasting for approximately one year,
Brown recruited buyers to purchase houses with mortgages
obtained using falsified information. Id. at 490-91.
Brown arranged to have a “decorating allowance”
of $5, 000 to $10, 000 included in each purchase agreement
from which he received a 40 percent commission. (Dkt. 18 at
5.) The decorating allowance was not used for renovations on
some of the properties. (Id. at 5-11.) Approximately
$1.8 million in mortgage proceeds were obtained through the
scheme, inflicting over $1 million of losses on the lenders
after the properties went into foreclosure. Brown,
779 F.3d at 491.
government dropped one count of mail fraud (count seven)
during trial (cr. dkt. 218), and on November 10, 2011, a jury
found Brown guilty of the remaining counts of wire, mail, and
bank fraud (counts one through six, eight and nine), (cr.
dkt. 222). Brown was sentenced on September 20, 2012 to 60
months' imprisonment on each count to run concurrently,
three years of supervised release, and restitution in the
amount of $1.067 million. (Cr. dkt. 318.)
criminal history is relevant to the current proceedings. In
2003, Brown pleaded guilty to one count of filing a false
income tax return and was sentenced to five years of
probation and four months of home confinement.
Brown, 779 F.3d at 488. In 2005, Brown pleaded
guilty to one count of money laundering and was sentenced to
three years of probation with credit for time he had already
spent in custody. Id. at 488-89. Before trial in the
present criminal case, Brown filed a motion to dismiss the
indictment, arguing that the plea agreement in the 2005 money
laundering case barred his prosecution in the mortgage fraud
scheme unless he breached its terms, which he argued he had
not. Id. at 491. He also requested that his trial be
postponed while the motion to dismiss was being briefed.
Id. The court denied Brown's request to postpone
the trial but allowed him to file a reply brief after trial.
Id. Brown filed his reply before sentencing, and his
motion was ultimately denied in a written opinion, United
States v. Brown, No. 10 CR 516-1, 2012 WL 182214 (N.D.
Ill. Jan. 20, 2012). Id. Brown appealed the district
court's denial of his motion to dismiss the indictment
(cr. dkt. 326), but the denial was affirmed. Brown,
779 F.3d at 495.
August 24, 2015, Brown filed this motion to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255.
(Dkt. 1.) Brown claims ineffective assistance of counsel,
prosecutorial misconduct, and that his sentence needs to be
corrected because of issues with how his 2005 criminal case
was treated at his sentencing. (Id.) Many of his
claims are based on the date he was taken into custody on the
charges in his 2005 criminal case. On May 18, 2016, Brown
filed a motion to expand the scope of his § 2255
proceedings. (Dkt. 23.) The court granted this motion and
agreed to consider an affidavit filed by Brown, a copy of his
2005 arrest warrant, and the minute order granting the
revocation of Brown's bond in the 2005 criminal case when
deciding the pending § 2255 motion. (Dkt. 26.) On
October 21, 2016, the court granted Brown's motion for
leave to amend or supplement his § 2255 motion, (dkt.
36), in which he modified aspects of the claims regarding his
allegations of prosecutorial misconduct. (Dkt. 40.)
2255 allows a person held in federal custody to petition the
sentencing court for an order vacating, setting aside, or
correcting his sentence. 28 U.S.C. § 2255(a). Relief
under § 2255 is “reserved for extraordinary
situations.” Hays v. United States, 397 F.3d
564, 566 (7th Cir. 2005) (quoting Prewitt v. United
States, 83 F.3d 812, 816 (7th Cir. 1996)). A movant must
establish that “the district court sentenced him in
violation of the Constitution or laws of the United States or
that the sentence was in excess of the maximum authorized by
law or is otherwise subject to collateral attack.”
Hays, 397 F.3d at 566-67 (quoting Prewitt,
83 F.3d at 816). It is proper to deny a § 2255 motion
without an evidentiary hearing if “the motion and the
files and records of the case conclusively demonstrate that
the prisoner is entitled to no relief.” 28 U.S.C.
makes three overarching claims in his § 2255 motion: (1)
that he was deprived of due process by the prosecutor
suborning perjury by two witnesses; (2) that his trial
counsel provided constitutionally ineffective assistance
before and during his trial; and (3) that his sentence must
be recalculated because his 2005 criminal case was not
treated correctly in the calculation of his sentencing
guidelines sentence range. (Dkt. 1; Dkt 36.)
Prosecutor's Alleged Use of False Testimony
amendment to his § 2255 motion, Brown claims that he
suffered a violation of due process through the
prosecutor's subornation of perjury from witnesses Grose
and Smith. (Dkt. 36 at 6.) Brown alleges that Grose
committed perjury when she stated that he was present at the
closing of 6610 South Lowe on July 18, 2005 (cr. dkt. 374 at
60) and that Smith committed perjury when he testified that
he and Brown twice discussed the refinancing of the property
at 6608 South Lowe during July or August of 2005. (Cr. dkt.
390 at 4, 6). Brown argues that he was in custody from July
13, 2005 through August 30, 2005, so he could not have been
involved in these transactions. (Dkt. 36 at 7.) Brown's
claim fails because he has not met his burden of showing that
his conviction was obtained through the prosecutor's
knowing use of false testimony.
conviction obtained through the knowing use of perjured
testimony violates due process. Morales v. Johnson,
659 F.3d 588, 606 (7th Cir. 2011) (citing Napue v.
Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d
1217 (1959)). To obtain a new trial, a movant must show that
“(1) there was false testimony; (2) the prosecution
knew or should have known it was false; and (3) there is a
likelihood that the false testimony affected the judgment of
the jury.” Morales, 659 F.3d at 606 (citing
United States v. Freeman, 650 F.3d 673, 678 (7th
Cir. 2011)). This standard does not require “conclusive
proof that the testimony was false or that the witness could
be successfully prosecuted for perjury, ” and it covers
“half-truths” and other statements that
“give a false impression to the jury.”
Freeman, 650 F.3d at 680. The knowing use of false
testimony alone, however, is not sufficient to warrant a new
trial if the evidence against the defendant is otherwise so
strong that the testimony in question was not necessary to
obtain the conviction. Id. at 682 (citing United
States v. Beck, 625 F.3d 410, 421 (7th Cir. 2010)).
first claim, that the prosecution knowingly used false
testimony from Grose regarding the July 18, 2005 closing, is
without merit. In his first appearance before the court, on
January 26, 2005, Brown was released on a $4, 500 unsecured
bond. (No. 05 CR 73, Dkt. 7.) Brown was arrested and brought
before the court for arraignment on the indictment in the
case on July 13, 2005. (No. 05 CR 73, Dkt. 20.) At the
arraignment hearing, the government moved to revoke
Brown's bond, and a detention hearing was set for July
19, 2005. (Id.) On July 19, Brown's bond was
revoked and he was taken into custody. (No. 05 CR 73, Dkt.
18.) This is consistent with the United States Marshals
Service Custody Report provided by the government showing
that Brown was in custody from July 19, 2005, through August
30, 2005. (Dkt. 18 at 37.) Thus, the period that Brown was in
custody does not foreclose the possibility that he was
present at the July 18 closing.
strongest challenge to Grose's testimony is based on her
statement that she, Brown, Powell, Powell's lawyer, and
Smith were all present at the July 18 closing of 6610 South
Lowe (cr. dkt. 374 at 60), whereas Smith testified that only
he and Grose were present (cr. dkt. 373 at 101). Powell
stated that he did not recall being present at this closing,
but that his lawyer was there. (Cr. dkt. 389 at 49, 66.)
While the conflicting information calls Grose's testimony
into doubt, nothing suggests that she was intentionally
lying, and “mere inconsistencies in testimony by
government witnesses do not establish the government's
knowing use of false testimony.” United States. v.
Saadeh, 61 F.3d 510, 523 (7th Cir. 1995) (citing
United States. v. Verser, 916 F.2d 1268, 1271 (7th
Cir. 1990)). “Rather, the alleged[ly] perjured
testimony must bear a direct relationship to the
defendant's guilt or innocence.” Saadeh,
61 F.3d at 523 (citing United States v. Adcox, 19
F.3d 290, 295 (7th Cir. 1994)).
Grose had perjured herself and the government knew it,
Brown's physical presence at the July 18 closing was not
necessary for the jury to convict him on the relevant count
of the indictment (count nine). (See Cr. dkt. 60 at
17-18.) Count nine involves the overall scheme to defraud a
mortgage lender and “knowingly submit[ing]” or
“caus[ing] to be submitted” false documents to
the lender. (Id. at 17.) Since the combined
testimony of Smith, Powell, and Grose unambiguously
establishes Brown's involvement in this transaction, it
is unlikely that this fact would have affected the jury's
judgment of conviction. Brown therefore fails to meet his
burden of showing that the government knowingly used false
testimony from Grose that affected the jury outcome. See
Morales, 659 F.3d at 606.
also claims that Smith committed perjury when he testified
that he and Brown had two conversations during July or August
2005 about refinancing the mortgage for 6608 South Lowe,
because these conversations would have occurred while Brown
was in custody. Smith's testimony regarding the dates of
the telephone calls is not consistent. Smith testified both
to having two conversations about the refinance in August,
and to talking sometime in July or August. (Cr. dkt. 390 at
3-7, 111-12.) Smith further testified that Brown called him
for the first telephone conversation, but that he could not
remember who called whom the second time. (Id. at
112.) It would not, however, have been impossible for Brown
to call Smith while in custody, and Brown has not produced
phone records from his time in custody nor other evidence to
corroborate his contention that Smith's testimony was
false. By failing to establish that Smith's
testimony was false, Brown fails to meet his burden of
showing that the government knowingly used false testimony.