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United States v. Brester

United States Court of Appeals, Eleventh Circuit

May 20, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
J. PATRICK BRESTER, Defendant-Appellant

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 8:12-cr-00337-RAL-TGW-1.

For United States of America, Plaintiff - Appellee: Cherie Krigsman, Susan Hollis Rothstein-Youakim, Arthur Lee Bentley III, Matthew J. Mueller, James A. Muench, Amanda Lynn Riedel, U.S. Attorney's Office, Tampa, FL.

For Victor Daniel Martinez, Defendant - Appellant: J. Patrick Brester, Tampa, FL; Fritz J. Scheller, Fritz Scheller, PL, Orlando, FL.

Before TJOFLAT, WILLIAM PRYOR, and BALDOCK,[*] Circuit Judges.

OPINION

Page 1336

WILLIAM PRYOR, Circuit Judge

This appeal requires us to decide whether the government's failure to inform J.

Page 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 bye 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 Brester 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. Brester's counsel denied that he had been informed of this aspect of the co-conspirators' plea agreements. The prosecutor conceded that although she offered Brester a plea agreement ...


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