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Brown v. United States

United States District Court, N.D. Illinois, Eastern Division

January 4, 2018




         Bruce 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.)[1] For the reasons stated below, Brown's motion is denied in part and stayed in part.


         On 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.

         The mortgage fraud scheme involved six mortgage transactions related to properties in the Chicago area.[3] 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.

         The 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.[4] (Cr. dkt. 318.)

         Brown's 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.

         On 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.)


         Section 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. § 2255(b).


         Brown 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.)

         I. Prosecutor's Alleged Use of False Testimony

         In the 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.[5] (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.

         A 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)).

         Brown's 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.)[6] Thus, the period that Brown was in custody does not foreclose the possibility that he was present at the July 18 closing.

         Brown's 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)).

         Even if 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.

         Brown 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.[7] 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. ...

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