United States of America v. Brian Wilkozek

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1537
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
BRIAN WILKOZEK,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 CR 576 — Matthew F. Kennelly, Judge.
____________________
A RGUED NOVEMBER 4, 2015 — DECIDED M AY 18, 2016
____________________
Before K ANNE, R OVNER , and S YKES, Circuit Judges.
S YKES, Circuit Judge. In 2003 Brian Wilkozek pleaded
guilty to one count of mail fraud for his participation in a
mortgage-fraud scheme. The scheme was straightforward.
Wilkozek drafted phony mortgage applications for in-the-
know buyers to purchase properties from an in-the-know
realtor at artificially high prices. He then submitted these
applications to mortgage lenders, who approved them and

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2 No. 15-1537
distributed the funds to the buyers. The buyers divvied the
funds between all of the schemers and then walked away
from the underwater properties. As Wilkozek expected, the
original mortgage lenders quickly sold the mortgages to
third-party lenders on the strength of the same phony
applications. By the time the third-party lenders uncovered
the scheme, all they could do was foreclose and sell the
properties. They suffered losses of more than $700,000.
After Wilkozek was caught and pleaded guilty, he was
ordered to pay restitution to the victims—namely, the third-
party mortgage lenders. That restitution went unpaid, so the
government asked the district judge to order Wilkozek’s
employer to turn over part of his wages. Wilkozek chal-
lenged the government’s request via petition for coram
nobis—an ancient writ used to collaterally attack a criminal
judgment. Wilkozek claimed to have “new evidence” that
proves the third-party lenders were not actually victims
entitled to restitution. He also argued that the government
miscalculated the amount of unpaid restitution. The judge
disagreed on both fronts and entered the turnover order.
We affirm. The judge properly refused to grant the writ.
Misclassifying a lender as a victim is not a fundamental error
remediable by coram nobis, and even if it were, Wilkozek has
not come close to proving that a misclassification occurred
here. And the government has corrected its mistake in
calculating the unpaid restitution, so no further action is
necessary.
I. Background
Wilkozek worked as a loan officer for JVS, Inc., a mort-
gage lender in the Chicago area. Beginning in 1997 he partic-

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No. 15-1537 3
ipated in a scheme to defraud third-party mortgage lenders
like Bank of America. The scheme was devised by realtor
Theresa Holt, with Wilkozek playing the role of inside man.
Specifically, Holt solicited in-the-know buyers to purchase
relatively inexpensive properties at artificially high prices.
Wilkozek then drafted bogus mortgage applications for the
buyers and submitted them to mortgage lenders for approv-
al. These lenders approved the mortgages and then quickly
resold them to various third-party lenders. Importantly, in
the course of deciding whether to purchase the mortgages,
the third-party lenders relied on the very same phony
applications Wilkozek submitted to the original lenders.
The scheme produced more than $1.4 million in mort-
gage-loan proceeds, far in excess of the market value of the
mortgaged properties. The schemers distributed the funds
between themselves—with Wilkozek pocketing $28,000 for
his efforts—and the buyers walked away from the underwa-
ter properties. Once the third-party lenders caught on, they
initiated foreclosure proceedings, suffering losses of about
$713,400.
The conspiracy was exposed in 2002, and Wilkozek
struck a deal with the government to plead guilty to one
count of mail fraud. See 18 U.S.C. §§ 1341–1342. His deal also
contained an appeal waiver. At sentencing the judge ordered
him to pay $713,400 in restitution to the third-party mort-
gage lenders, jointly and severally with his coconspirators,
and to serve a brief stint in prison.
Fast-forward to 2014 when the events giving rise to this
appeal begin. Wilkozek hasn’t satisfied the restitution judg-
ment, and the government wants to collect. The government
asked the district judge to order Wilkozek’s then-employer

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4 No. 15-1537
Insight Global to periodically turn over a portion of his
wages in partial satisfaction of the restitution judgment.
Wilkozek’s response was two-fold. First, he petitioned for a
writ of coram nobis, alleging that “new evidence” proves that
the third-party lenders were not actually victims entitled to
restitution. Second, he argued that the government failed to
properly credit payments by his coconspirators to his re-
maining unpaid restitution. The judge declined to issue the
writ, adopted the government’s calculations, and issued the
wage-turnover order.
II. Discussion
A. The Appeal Waiver
We first address the effect of the appeal-waiver provision
in Wilkozek’s plea agreement. It reads: “[T]he defendant
knowingly waives the right to appeal any sentence imposed
in accordance with paragraph 19 below [(relating to the
prison term)] or the manner in which that sentence was
determined.” The government argues that this waiver strips
the court of jurisdiction to consider Wilkozek’s challenge.
We disagree.
Two components make up this appeal, neither of which
implicates the appeal waiver. First and foremost is
Wilkozek’s petition for a writ of coram nobis. This writ, like
habeas corpus, is a collateral attack on a criminal judgment.
See Chaidez v. United States, 133 S. Ct. 1103, 1106 n.1 (2013)
(citing United States v. Morgan, 346 U.S. 502, 507, 510–11
(1954)). To be sure, the right to collaterally attack a judgment
can be waived. See Keller v. United States, 657 F.3d 675, 681
(7th Cir. 2011). But such a waiver must be stated expressly.
See id. (“To bar collateral review, the plea agreement must

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No. 15-1537 5
clearly state that the defendant waives his right to collateral-
ly attack … in addition to waiving his right to a direct ap-
peal.”). That plainly wasn’t done here. Wilkozek’s petition
for coram nobis is not barred by his appeal waiver.
The second component of Wilkozek’s appeal is a chal-
lenge to the government’s calculation of the outstanding
restitution balance. This is merely a defense to the govern-
ment’s motion to collect on the judgment. That is, Wilkozek
is partially defending against the attempt to enforce the
restitution judgment by arguing that the government is
seeking to collect more than the amount authorized by the
judgment. That plainly is not barred by the appeal waiver
either.
B. Coram Nobis
Before we proceed to the merits, a word about jurisdic-
tion, which is the subject of some confusion between the
parties. Even though coram nobis is a collateral attack on a
criminal judgment, a petition for the writ is considered
simply another “step in the criminal case and not, like
habeas corpus … , the beginning of a separate civil proceed-
ing.” Morgan, 346 U.S. at 505 n.4; see also United States v.
Denedo, 556 U.S. 904, 913 (2009). That means the district
court’s power to hear a petition for the writ derives from the
statute conferring subject-matter jurisdiction in the original
criminal case. See Denedo, 556 U.S. at 914. That statute here is
18 U.S.C. § 3231, which confers on the district court original
jurisdiction over “all offenses against the laws of the United
States.” The government asserts that the district court’s
power to hear Wilkozek’s petition flows from the All Writs
Act, 28 U.S.C. § 1651. But the All Writs Act “is not a font of
jurisdiction.” Denedo, 556 U.S. at 914. Rather, the Act simply

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6 No. 15-1537
gives the district court the power to grant a writ of coram
nobis when appropriate. See Morgan, 346 U.S. at 511.
Moving to the merits, “[t]he writ of coram nobis is an an-
cient common-law remedy” originally “designed ‘to correct
errors of fact.’” Denedo, 556 U.S. at 910 (quoting Morgan,
346 U.S. at 507). However, the scope of the writ has been
broadened in modern times to claims of both legal and
factual error, but only in criminal cases. See id. at 912–13;
F ED. R. C IV. P. 60(e) (abolishing the writ of coram nobis in civil
proceedings).
In our circuit coram nobis relief is available when: (1) the
error alleged is “of the most fundamental character” as to
render the criminal conviction “invalid”; (2) there are
“sound reasons” for the defendant’s “failure to seek earlier
relief”; and (3) “the defendant continues to suffer from his
conviction even though he is out of custody.” See United
States v. Sloan, 505 F.3d 685, 697 (7th Cir. 2007) (quotation
marks omitted); see also United States v. Keane, 852 F.2d 199
(7th Cir. 1988) (discussing elements in more detail). In
considering a district judge’s denial of the writ, we review
conclusions of law de novo and findings of fact for clear
error. See Chaidez v. United States, 655 F.3d 684, 687 (7th Cir.
2011) aff’d 133 S. Ct. 1103 (2013); accord United States v.
George, 676 F.3d 249, 256 (1st Cir. 2012).
We begin and end our analysis with the first element. A
fundamental error that invalidates a criminal proceeding is
one that undermines our confidence that the defendant is
actually guilty. See Morgan, 346 U.S. at 511. Only errors of
this magnitude justify the cost of putting aside the interest in
finality. See Keane, 852 F.2d at 206 (“At some point the judi-
cial system must close old files and turn to the future, regret-

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No. 15-1537 7
fully accepting the risk of error lest the quest for perfect
justice become the enemy of adequate justice.”). An obvious
example is deprivation of counsel. See Morgan, 346 U.S. at
511–12.
Wilkozek has not argued that he is not guilty of mail
fraud. His claims of error relate only to the restitution com-
ponent of his criminal sentence. Restitution to a victim must
be ordered when a defendant commits a property offense by
fraud. See 18 U.S.C. § 3663A(a)(1), (c)(1)(A)(ii). As relevant
here, a “victim” is defined as “a person directly and proxi-
mately harmed as a result of” the defendant’s fraud. Id.
§ 3663A(a)(2). We have said that a person must actually rely
on the defendant’s fraudulent statements to his detriment in
order to be a victim under this definition. See United States v.
Farano, 749 F.3d 658, 666 (7th Cir. 2014). (“There is as yet no
evidence … of such reliance by the refinancing banks, and in
its absence those banks cannot be counted as ‘victims’ for
restitution purposes, though their loss is loss” for sentencing
purposes.). Here Wilkozek primarily argues that new evi-
dence uncovered after the 2008 financial crisis proves that
the third-party lenders did not rely upon his fraudulent
statements and were therefore not victims entitled to restitu-
tion.
An error of this type is not of the “most fundamental
character” as to render the conviction invalid. Sloan, 505 F.3d
at 697; accord id. (“Restitution orders that sweep too much
conduct into their calculations … do not rise to the level of a
constitutional violation.”). Misclassifying a third-party
lender as a victim results in a windfall to that lender in that
it will recover money it lost due to the defendant’s criminal
behavior that was otherwise unrecoverable as restitution.

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8 No. 15-1537
This kind of error doesn’t cast doubt on Wilkozek’s guilt. So
even assuming the district judge misclassified the lenders as
victims here, there is no fundamental injustice to Wilkozek
because all of the money received from the mortgage-fraud
scheme was ill-gotten, regardless of whether the lenders
actually relied on the bogus mortgage applications he draft-
ed. Cf. § 1341 (defining elements of mail fraud).
But even if misclassifying a lender as a victim were a
fundamental error, Wilkozek has not shown that such an
error occurred here. In his plea agreement, Wilkozek admit-
ted that the third-party lenders actually relied on the fraudu-
lent applications he prepared. To prove that a misclassifica-
tion error occurred, he must have evidence to overcome this
admission. He has none. The only “evidence” he submitted
were news articles and press releases describing troubling
behavior by mortgage lenders (including some of the third-
party lenders here) leading up to the 2008 financial crisis.
This “evidence” doesn’t overcome Wilkozek’s admission
that the third-party lenders actually relied on his fraudulent
mortgage applications. Accordingly, the judge properly
declined to issue the extraordinary writ of coram nobis.
C. Miscalculation of the Outstanding Restitution Balance
Wilkozek also argues that the government did not
properly credit him for restitution payments made by his
coconspirators. The government admits that it failed to
credit Wilkozek for $51,851.49 in payments made by Theresa
Holt (the realtor) and has reduced Wilkozek’s outstanding
restitution balance by that amount. No more need be done.
A FFIRMED.

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