United States v. J. Patrick Brester

786 F.3d 1335, 2015 U.S. App. LEXIS 8312, 2015 WL 2393697
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 20, 2015
Docket13-15311
StatusPublished
Cited by22 cases

This text of 786 F.3d 1335 (United States v. J. Patrick Brester) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. J. Patrick Brester, 786 F.3d 1335, 2015 U.S. App. LEXIS 8312, 2015 WL 2393697 (11th Cir. 2015).

Opinion

WILLIAM PRYOR, Circuit Judge:

This appeal requires us to decide whether the government’s failure to inform J. *1337 Patrick Brester of an aspect of its plea agreements with three of his co-conspirators in a mortgage fraud scheme violated his rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Brester, Matthew Landsman, Joshua Unger, and Michael Chadwick conspired to charge lenders fraudulent “management fees” when they purchased and immediately re-sold apartment units. Landsman, Unger, and Chadwick each pleaded guilty to a single count of conspiracy to commit wire fraud and agreed to testify against Brester. The government provided Brester with copies of his co-conspirators’ plea agreements, but it failed to inform him that it had separately agreed to recommend a loss amount under the advisory guidelines based only on the fraudulent transactions identified at the time of the plea agreements. The government offered Brester a plea agreement with a sentencing recommendation based on the same loss amount, but he rejected it. At trial, Brester thoroughly cross-examined Landsman, Unger, and Chadwick about several favorable terms of their plea agreements. Afterward, a jury convicted Brester of one count of conspiracy to commit wire fraud and three counts of wire fraud. Because Brester was not prejudiced by the failure to disclose the co-conspirators’ agreements about the loss' amount, we affirm.

I. BACKGROUND

In 2006, Brester, Landsman, Unger, and Chadwick conspired to charge lenders fraudulent “management fees” when they purchased and immediately re-sold apartment units. Brester purchased nine apartments in Sarasota, Florida, and immediately re-sold them to Chadwick. When Chadwick applied for mortgage loans from SunTrust Bank and Fifth Third Bank, Brester charged the banks “management fees” for services he never performed. Although Chadwick and Landsman used some of the cash from the “management fees” to make mortgage payments, Chadwick later declared bankruptcy and all nine units went into foreclosure.

In August 2012, a grand jury indicted Brester for conspiracy to commit wire fraud affecting a financial institution, 18 U.S.C. §§ 1343, 1349, and nine counts of wire fraud, id. § 1343. Before Brester’s indictment, Landsman, Unger, and Chadwick each pleaded guilty to single counts of conspiracy to commit wire fraud. The government offered Brester a plea agreement with the same loss amount as his co-conspirators, but he rejected it.

Landsman, Unger, and Chadwick testified at Brester’s trial. They admitted that they had been convicted of conspiring to commit wire fraud and had agreed to cooperate with the government in exchange for plea agreements. A jury convicted Bres-ter of conspiracy to commit wire fraud and three counts of wire fraud, but it found him not guilty of the other six counts of wire fraud.

At sentencing, the government argued that the loss amount attributed to Brester should include several uncharged transactions it had discovered after Landsman, Unger, and Chadwick pleaded guilty. The government also revealed that it had agreed to recommend a loss amount for the co-conspirators based only on the fraudulent transactions it had identified at the time of their plea agreements. Bres-ter’s counsel denied that he had been informed of this aspect of the co-conspirators’ plea agreements. The prosecutor conceded that although she offered Bres-ter a plea agreement limited to the same fraudulent transactions and provided Bres-ter with a copy of his co-conspirators’ plea agreements, she had not informed him of *1338 the agreement to limit the co-conspirators’ loss amount. The court sentenced Brester to a six-year prison term for each of his convictions, with all terms to run. concurrently, and it ordered restitution in the amount of $1,266,156.

After Brester filed a notice of appeal, he filed a motion to dismiss his convictions, or, alternatively, for a new trial and an evidentiary hearing. He contended that the government violated Brady, 373 U.S. 83, 83 S.Ct. 1194, and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), when it failed to inform him that it had agreed to limit his co-conspirators’ loss amount. The district court denied the motion. The district court concluded that because Brester’s appeal was pending before this Court, it lacked jurisdiction to consider Brester’s motion to the extent that it sought dismissal of his counts of conviction. The district court also ruled that to the extent that Brester’s motion sought a new trial, it did not specify whether it relied on “newly discovered evidence,” Fed.R.Crim.P. 33(b)(1), or “[ojther [gjrounds,” Fed.R.Crim.P. 33(b)(2). If Brester relied on “[ojther [gjrounds,” the district court concluded, his motion was untimely because he had not filed it within 14 days of the verdict. Id. And if Brester relied on “newly discovered evidence,” Fed.R.Crim.P. 33(b)(1), that evidence was “merely impeaching or cumulative,” and “probably would not produce a different result at a new trial.” We directed the parties to submit supplemental briefs to address whether we have jurisdiction to review the denial of Brester’s motion.

II. STANDARDS OF REVIEW

We review an alleged Brady violation de novo. United States v. Schlei, 122 F.3d 944, 989 (11th Cir.1997). We review for abuse of discretion the denial of a motion for a new trial. United States v. Vallejo, 297 F.3d 1154, 1163 (11th Cir.2002).

III. DISCUSSION

We divide our discussion in two parts. First, we explain that we have jurisdiction to review the denial of Brester’s motion. Second, we explain that Brester failed to establish a reasonable probability that the outcome of his trial would have been different had the government disclosed its agreements with his co-conspirators.

A. We Have Jurisdiction to Review the Denial of Brester’s Motion.

As a threshold matter, we must consider whether we have jurisdiction to review the denial of Brester’s post-appeal motion despite his failure to file a separate notice of appeal from the denial of that motion. Federal Rule of Appellate Procedure 3(c) provides that a notice of appeal must “designate the judgment, order, or part thereof being appealed,” Fed. R.App. P.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Sammie Sias
Eleventh Circuit, 2024
United States v. Duronel Loute
Eleventh Circuit, 2023
United States v. Kurt Zamor
Eleventh Circuit, 2021
United States v. Diosme Fernandez Hano
922 F.3d 1272 (Eleventh Circuit, 2019)
United States v. Richard Shelley
Eleventh Circuit, 2019
United States v. Glenn Jasen
693 F. App'x 801 (Eleventh Circuit, 2017)
United States v. Lamar Gibson
678 F. App'x 823 (Eleventh Circuit, 2017)
United States v. Mitchell J. Stein
846 F.3d 1135 (Eleventh Circuit, 2017)
United States v. Sebastian Darone McCoy
636 F. App'x 996 (Eleventh Circuit, 2016)
United States v. Adonay Orlando Cordon
632 F. App'x 990 (Eleventh Circuit, 2015)
Benjamin Burgess v. Religious Technology Center, Inc.
600 F. App'x 657 (Eleventh Circuit, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
786 F.3d 1335, 2015 U.S. App. LEXIS 8312, 2015 WL 2393697, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-j-patrick-brester-ca11-2015.