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US v. Brian Wilkozek, No. 15-1537.    In 2003 Brian Wilkozek pleaded guilty to one count of mail fraud for his participation in a mortgage-fraud scheme. 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 thirdparty 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 challenged 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.     

Moving to the merits, “[t]he writ of coram nobis is an ancient common-law remedy” originally “designed `to correct errors of fact.’” Denedo, 556 U.S. at 910 .  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; FED. R. CIV. 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)  

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   

Wilkozek has not argued that he is not guilty of mail fraud. His claims of error relate only to the restitution component 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 proximately 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).  

Here Wilkozek primarily argues that new evidence 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 restitution.

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 drafted.

Wilkozek admitted that the third-party lenders actually relied on the fraudulent applications he prepared. To prove that a misclassification error occurred, he must have evidence to overcome this admission. He has none. 

Accordingly, the judge properly declined to issue the extraordinary writ of coram nobis.

By:  Chicago White Collar Defense Attorney Michael J. Petro