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Date: 04-22-2019
Case Style:
United States of America v. Laurance H. Freed
Case Number: 17-2816
Judge: Bauer
Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois (Cook County)
Plaintiff's Attorney: Matthew Francis Madden, Jessica Romero, JOseph A. Steart and Renato T. Mariotti
Defendant's Attorney: Louis David Bernstein, Jacqueline B. Carroll, John D. Cline, Andrew R. DeVooght, Joseph J. Duffy, Corey B. Rubenstein, Barry Spevack
Description:
It appears that Laurance Freed did
everything he could to keep his real estate business alive.
Unfortunately for Freed, much of that was illegal. Freed lied to
prospective lenders about the availability of collateral and to
ensure those lenders remained in the dark about numerous
defaults, he lied to the City of Chicago. The government also
2 No. 17-2816
proved that Freed entered into loan agreements with no
intention of abiding by their terms. We affirm Freed’s convictions
for bank fraud (18 U.S.C. § 1344); mail fraud (18 U.S.C.
§ 1341); wire fraud (18 U.S.C. § 1343); and making false
statements to a financial institution (18 U.S.C. § 1014) .
I. BACKGROUND
Laurance Freed was the president and chief executive
officer of Joseph Freed and Associates (“JFA”), a real estate
development company. Freed also created and managed
several real estate ventures including Uptown Goldblatts
Venture, LLC (“UGV”). UGV was responsible for developing
a building in the Uptown neighborhood and secured tax
increment financing (“TIF”) from the City of Chicago to fund
the project in 2002. Tax increment financing is a mechanism for
funding projects approved by the Chicago City Counsel. After
identifying a region in need, the city assesses the property
taxes collected in that area and freezes the determined amount
in place. Taxes collected in subsequent years that exceed that
amount are funneled into the TIF program. The city issued two
TIF notes that entitled UGV to the payment of TIF funds: a
redevelopment note for $4.3 million and project note for $2.4
million. UGV was required to file an annual requisition form
with the city that certified, among other things, it was not in
default on any loans and it had not entered into any transactions
that would harm its ability to meet its financial obligations.
If any event of default occurred, the city would be
discharged of its obligation to provide UGV with TIF payments.
No. 17-2816 3
Freed obtained a loan from Cole Taylor Bank in 2002 that
was secured in part by the $2.4 million project note. This
agreement provided that attachment of any security interest or
lien to the collateral used to secure the loan would constitute
an event of default.
In 2006, two other Freed entities entered into a loan
agreement with a bank consortium for a $105 million line of
credit. The parties referred to this as “the big line of credit,” as
shall we. To secure this loan they pledged as collateral properties
known as the Evanston Plaza and the Streets of Woodfield,
and Freed personally guaranteed $50 million of the loan. UGV
subsequently entered into an agreement to become a borrower
under the big line of credit and pledged the $2.4 million project
note as collateral. UGV represented that it owned the note free
of any encumbrances despite the fact that the TIF note was
already pledged to Cole Taylor. In August 2008, a representative
from Cole Taylor sent an email to Freed reminding him the
project note was collateral in their still-outstanding 2002 loan.
Freed forwarded this email to JFA’s lawyer who informed him
that the project note was double-pledged—once to Cole Taylor
and once for access to the big line of credit. This constituted an
event of default under the Cole Taylor loan agreement.
By fall of 2008, Freed had withdrawn millions of dollars
from the Streets of Woodfield to meet the ongoing financial
obligations of his various properties and projects. Opposed to
this tactic and citing concerns that these withdrawals would
leave them unable to meet property tax obligations, the chief
financial officer of JFA resigned. JFA failed to make its payment
on the big line of credit in November 2008, an event of
default on this loan. Approximately $900,000 in taxes were due
4 No. 17-2816
on the Evanston Plaza property in November which went
unpaid as well.
Freed sought a $10 million loan modification from a bank
consortium to address these issues. Freed gave presentations
to the bank consortium on December 15, 2008, and January 20,
2009. During these presentations Freed presented slides that
contained three potentially fraudulent statements. The first
indicated that the Streets of Woodfield could serve as collateral
for the loan modification, but failed to explain that approximately
$3.6 million had been withdrawn from the property.
Second, a slide indicated the Evanston Plaza property could
serve as collateral for the loan modification, but failed to alert
the consortium of the $900,000 in unpaid taxes. Finally, a slide
indicated the project note was available to serve as collateral
and worth $2.4 million. In truth, the project note was worthless
to the consortium since it was already serving as collateral for
two different loans. Furthermore, the payments already made
by the city had decreased the value of the project note to $2.1
million.
Bank of America was willing to provide the loan modification
and Freed signed the agreement on April 2, 2009. The
agreement prohibited withdrawal of funds from the Streets of
Woodfield unless the money that remained with the entity was
sufficient to cover property tax payments and security deposits
for all tenants. When Freed signed the agreement the Streets of
Woodfield had only $19,000 in its reserves, a tax obligation of
around $4 million per year, and several tenants with security
deposits. The next day, when funds were distributed to the
Streets of Woodfield, Freed immediately withdrew $273,000
No. 17-2816 5
and in the following weeks made seven withdrawals totaling
around $1.3 million.
Shortly thereafter, Cole Taylor sought to amend the UGV
loan and discovered the project note had been double pledged.
Cole Taylor drafted an amendment that stated Freed would
obtain a release of the project note from Bank of America by
October 2009. One of Freed’s associates at a meeting with Cole
Taylor represented that UGV was already in talks with Bank of
America to obtain a release. But Freed never discussed the
release with Bank of America and they failed to even discover
the double pledge until 2010.
The final part of Freed’s scheme was the annual requisition
forms he provided the city pursuant to the TIF note agreement,
which required him to certify UGV was not in default on any
loans. Freed claimed none of his entities were in default in
signed affidavits he provided the city in December of 2008,
2009, and 2010, in order to continue receiving TIF payments.
A jury convicted Freed on three bank fraud counts, one
mail fraud count, and four false-statement counts. On appeal,
Freed makes two principal arguments. Freed asserts two jury
instructions were incorrect and there was insufficient evidence
for several of his convictions. We disagree and affirm.
II. ANALYSIS
A. Jury Instructions
Before we reach the merits of Freed’s appeal, we must
determine whether waiver is appropriate because Freed failed
to object to the assailed instructions at the jury instruction
conference. Waiver is often the result when a party fails to
6 No. 17-2816
object, but recently we have acknowledged the harshness of
this rule may be inappropriate if it appears counsel merely
“negligently bypassed a valid argument rather than [making]
a knowing intentional decision.” United States v. Pust, 798 F.3d
597, 602 (7th Cir. 2015) (quoting United States v. Natale, 719 F.3d
719, 729–30 (7th Cir. 2013)). “The touchstone of waiver is a
knowing and intentional decision.” United States v. Al-Awadi,
873 F.3d 592, 597 (7th Cir. 2017). When it appears a reflexive
“no objection” response was given during a rote colloquy with
the district court, we may examine the record to determine
whether the objection was forfeited rather than waived. Natale,
719 F.3d at 730–31. The necessity of review may also arise
absent an objection if the jury instruction “inaccurately state[d]
the law by minimizing or omitting elements required for
conviction.” Id. at 731.
The record demonstrates that the jury instruction conference
was anything but an exercise in the reflexive. The failure
to object was not part of a series of call-and-response “no
objections,” but occurred between in-depth discussions of
other instructions. If this is not waiver, appellant has forfeited
these arguments and we must review for plain error. Because
the defendant could not meet his burden, even under plain
error review, we need not decide the waiver issue.
This court will find plain error if the defendant can establish
(1) an error or defect, (2) the error is clear or obvious and not
subject to reasonable dispute, (3) the error affected substantial
rights, and (4) the error seriously affects the fairness, integrity,
or public reputation of judicial proceedings. United States v.
Navarro, 817 F.3d 494, 499 (7th Cir. 2015). If the defendant
No. 17-2816 7
meets this high bar, this Court, in its discretion, may remedy
the error. United States v. Ajayi, 808 F.3d 1113, 1122 (7th Cir.
2015); Puckett v. United States, 556 U.S. 129, 135 (2009)).
Pattern instructions are presumed to accurately state the
law. United States v. Marr, 760 F.3d 733, 744 (7th Cir. 2014).
Freed assails Seventh Circuit Pattern Jury Instruction § 5.06,
which covers the criminal liability of principals codified at 18
U.S.C. §§ 2(a) and (b). See Pattern Criminal Jury Instructions of
the Seventh Circuit § 5.06, at 64 (2012). The instruction the
district court gave mirrored § 5.06(a): “Any person who
knowingly aids; counsels; commands; induces; or procures the
commission of an offense may be found guilty of that offense
if he knowingly participated in the criminal activity and tried
to make it succeed.”1
A person is liable for aiding and abetting a crime if he takes
an affirmative act in furtherance of that offense with the intent
of facilitating commission of the offense. Rosemond v. United
States, 572 U.S. 65, 71 (2014) (citing Central Bank of Denver, N.A.
v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 181 (1994)).
Additionally, it is axiomatic that one cannot aid and abet a
crime unless a crime was actually committed. See United States
v. Motley, 940 F.2d 1079 (7th Cir. 1991). Freed latches onto this
requirement and asserts the district court’s aiding and abetting
instruction was deficient because it did not require the jury to
find a crime was actually committed. But the district court
instructed the jury that the defendant must have “knowingly
1 Section 2(a), states that “[w]hoever commits an offense against the United
States or aids, abets, counsels, commands, induces or procures its commission,
is punishable as a principal.” 18 U.S.C. § 2(a).
8 No. 17-2816
participated in the criminal activity” to be found guilty of aiding
and abetting. Transcript at 2162 (emphasis added). The
requirement that the defendant knowingly participated in
“criminal activity” logically requires underlying criminal
activity. Therefore, even though the district court did not
explicitly explain an underlying crime was required to support
an aiding and abetting conviction, it was sufficiently implied
by the instruction.
The “willfully causing” pattern instruction corresponds to
18 U.S.C. § 2(b), which states, “Whoever willfully causes an act
to be done which if directly performed by him or another
would be an offense against the United States, is punishable as
a principal.” The district court instructed: “If the defendant
knowingly causes the acts of another then the defendant is
responsible for those acts as though he personally committed
them.”2 The difference between the use of willfully in the
statute and knowingly in the jury instructions is obviously
problematic.
However, we find no indication in the record that the jury
relied upon the aiding and abetting or the willfully causing
instruction. The government did not advance a theory at trial
that Freed was assisting in this scheme or willfully causing
other people to perform criminal acts in furtherance of his
scheme. Rather, the government repeatedly asserted Freed was
in charge of the whole operation. They asserted he was the
2 The district court simply adopted the pattern instructions which include
the incorrect mens rea. Section 5.06(b) states that “[i]f a defendant knowingly
causes the acts of another, then the defendant is responsible for those acts
as though he personally committed them.”
No. 17-2816 9
individual who gave the presentation to the banks with the
false information being projected on the slides behind him. The
government asserted Freed signed the documents containing
falsehoods that were submitted to the city. And they asserted
that Freed himself never intended to abide by the promises
that he made when he signed the loan modification with Cole
Taylor and the amended loan agreement with Bank of America.
If the government had argued otherwise the outcome of
this case might be different, but Freed’s role in the scheme
makes it highly unlikely that the instructions had any effect on
the jury.
Additionally, the district court laboriously described each
element of each crime and stated after each that the government
must prove every element, including the correct mens rea,
beyond a reasonable doubt or a verdict of not guilty must be
rendered. This further mitigates the likelihood that the jury
believed they could convict Freed for a mens rea other than the
one described by the district court in detailing the requirements
of each substantive offense. See United States v. Valencia,
907 F.2d 671, 681 (7th Cir. 1990); United States v. Brown, 739 F.2d
1136, 1143 (7th Cir. 1984) (defendant argued that the district
court’s definition of knowingly negated the specific intent to
defraud, but the court held that including the intent to defraud
in the elements of the substantive offense was sufficient). We
assume juries follow the instructions they are given and
nothing in the record indicates this presumption should be
discarded. United States v. Keskes, 703 F.3d 1078, 1086 (7th Cir.
2013). We find no plain error.
10 No. 17-2816
B. Sufficiency of the Evidence
Freed also argues the government produced insufficient
evidence to prove Counts 6, 7, 10, 11, 14, and 16. We conduct
this review de novo and construe the evidence in the light most
favorable to the government. United States v. Weimert, 819 F.3d
351, 354 (7th Cir. 2016). A verdict will be overturned on appeal
only if “the record is devoid of evidence from which a rational
trier of fact could find guilt beyond a reasonable doubt.” United
States v. Memar, 906 F.3d 652, 656 (7th Cir. 2018).
i. Counts 6 and 7
Counts 6 and 7 charged Freed with bank fraud in violation
of 18 U.S.C. § 1344 for lying in UGV’s annual submissions to
the city. Freed argues there was no evidence that he lied to the
city in order to defraud the banks. A bank fraud conviction
requires the government prove (1) there was a scheme to
defraud a financial institution; (2) the defendant knowingly
executed or attempted to execute the scheme; (3) the defendant
acted with the intent to defraud; (4) the scheme involved a
materially false or fraudulent pretense, representation, or
promise; and (5) at the time of the charged offense the entity
was a “financial institution” within the meaning of 18 U.S.C.
§ 20. Shaw v. United States, 137 S. Ct. 462, 465 (2016); see also
Pattern Criminal Jury Instructions of the Seventh Circuit &
Comment, at 447–48 (2012).
The government produced persuasive evidence demonstrating
Freed knew the affidavits he submitted to the city were
false. At the time the documents were submitted for 2009 and
2010, UGV had missed several payments on the big line of
credit and had been sent multiple notices of default. The
No. 17-2816 11
government also presented evidence that Freed knew the
project note was double pledged, an event of default for the
Cole Taylor loan, which UGV’s in-house counsel confirmed.
Thus, the falsehood of the affidavits submitted to the city was
firmly established.
However, the rub of Freed’s appeal lies in how his falsehoods
affected the banks. Freed argues that his lies actually
benefitted the banks because they allowed UGV to acquire
capital to pay them. But what Freed leaves out is that with the
city unaware of the defaults, he was able to keep them hidden
from the banks and maintain his lie regarding the availability
of the TIF notes as collateral. Freed admits that if he had
disclosed the defaults “the City would have declared a default
under the Uptown Goldblatts redevelopment agreement and
refused to make any future payments on the notes. Indeed, this
is exactly what happened when the City later became aware of
the defaults.” But there is no fraud exemption for schemes that
benefit one’s creditors and Freed’s admission shows the truth
would have destroyed his scheme. Thus, by suppressing the
likelihood that the bank consortium would discover the
defaults and ensuring the city did not alert them, Freed was
able to lie about the availability and value of the TIF notes as
collateral. Because a reasonable juror could find that Freed’s
lies to the city prevented the banks from discovering his
scheme, we affirm the district court’s denial of Freed’s motion
for acquittal on these counts.
12 No. 17-2816
ii. Counts 10, 11
Freed also asserts that the proof of Counts 10 and 11 lacks
sufficient evidence demonstrating Freed knowingly made false
statements to a banking institution under 18 U.S.C. § 1014.
Section 1014 makes it a crime to “knowingly make[] any false
statement … for the purpose of influencing in any way the
action of … any institution the accounts of which are insured
by the Federal Deposit Insurance Corporation.” Freed was
convicted of Counts 10 and 11 for presenting false information
to a bank consortium on December 15, 2008, and January 20,
2009, respectively. Both counts are based on a slide describing
the proposed “Line of Collateral” which included representations
that UGV owned one hundred percent of the TIF notes,
the cost to sell them was $0, and the proceeds of that sale
would be $7,698,000. Freed asserts his statements were
technically true. However, Freed’s representations at these
meetings would not naturally be understood as simply stating
facts about unavailable collateral, information that would have
been useless to the banks. The presentation clearly indicated
the project note was available to serve as collateral for the loan
modification, a representation that the government proved was
false. See Williams v. United States, 458 U.S. 279, 296 (1982)
(Marshall, J., dissenting) (noting that “the Courts of Appeals
have held that the failure to disclose material information
needed to avoid deception in connection with loan transaction
covered by § 1014 constitutes a ‘false statement or report,’ and
thus violates the statute.”). The notes were already double
pledged and thus unavailable to serve as collateral. A reasonable
juror could find these representations were false.
No. 17-2816 13
iii. Counts 14 and 16
Counts 14 and 16 involve Freed’s fraudulent violation of
two loan agreements. The statutory language of § 1014 is
capacious; it is cast in broad disjunctive terms because “Congress
hoped to protect federally insured institutions from
losses stemming from false statements or misrepresentations
that mislead the institutions into making financial commitments,
advances, or loans.” Williams, 458 U.S. at 294 (Marshall,
J., dissenting); see also United States v. Krilich, 159 F.3d
1020, 1028 (7th Cir. 1998). Freed expounds a restrictive reading
of the statute and asserts that agreeing to the covenants within
the loan agreements was a nonactionable promise of future
conduct. The government’s theory at trial was not that Freed
eventually broke a promise after agreeing to it, but rather that
Freed made a false statement of present intent. Put another
way, Freed made a false statement to the bank because he had
no intention of abiding by certain provisions of the loan
agreement when he signed it.
Whether a promise made with a present intent not to keep
it results in criminal liability pursuant to § 1014 is apparently
one of first impression in this circuit. Freed principally relies on
Williams, to establish that promises of future intent cannot be
considered false statements under § 1014. 458 U.S. at 285.
However, Williams cannot be read to mean that promises are
categorically beyond the reach of § 1014. In Williams, the
Supreme Court merely held that checks cannot be considered
factual assertions that can be categorized as true or false. Id. at
284. Williams did not hold, as Freed asserts, that a false promise
14 No. 17-2816
cannot be a false statement sufficient to establish criminal
liability under § 1014.
We find a case from our sister circuit, United States v. Shah,
44 F.3d 285 (5th Cir. 1995), more instructive. In Shah, the
defendant challenged his conviction under 18 U.S.C. § 1001,
which prohibits making a false statement to a government
agency with the intent to deceive or mislead. Id. at 289. Shah
violated an agreement related to government solicitation by
disclosing his bid to a competitor before the contract was
awarded. Id. The court held that “to establish a violation … the
government must find … that the statement [implied by the
term], ‘I will not disclose price information before the contract
award’ was false when made.” Id. at 290–91. Shah contended, as
Freed does, that the statement was neither true nor false when
made, but was merely a prediction of future performance. Id.
at 290. The court rejected this argument as we do today. “Since
a promise necessarily carries with it the implied assertion of an
intention to perform it follows that a promise made without
such an intention is fraudulent and actionable in deceit.”
Restatement (Second) of Torts § 530(1) cmt. c.; See also Elmore v.
United States, 267 F.2d 595, 603 (4th Cir. 1959) (holding that a
statute making it a crime to knowingly make a false statement
to influence the action of the Commodity Credit Corporation
should include “not only false statements of existing fact but
also false and fraudulent promises which the maker does not
intend to perform.”).3
3 This Court impliedly held as much regarding 18 U.S.C. § 1001 in United
States v. Elliott, 771 F.2d 1046, 1049–50 (7th Cir. 1985). In Elliott, an
(continued...)
No. 17-2816 15
With that, we move to the case at hand. In particular, we
must determine whether the government put forth sufficient
evidence to establish that Freed had a present intent not to
abide by the provisions in the contracts when each were made.
We conclude it did.
Count 14 involved a covenant in the amended loan agreement
between UGV and Cole Taylor. The agreement Freed
signed declared that “[t]he Borrower and Co-Borrower
covenant and agree to provide to [Cole Taylor] a release and
termination of the [pledge of the TIF note to Bank of America]
by no later than October 31, 2009.” The record indicates that in
a meeting before the loan amendment was approved, Freed
agreed to obtain a release from Bank of America by August 20.
Additionally, one of Freed’s associates during a meeting just
before the amended loan agreement was signed stated that
they were already in talks with Bank of America to obtain the
release. But Freed failed to even notify Bank of America of the
double pledge during the relevant time period. In fact, Bank of
America did not learn of the double pledge until 2010. Based
on Freed’s failure to alert Bank of America to the double
pledge during the relevant time period, and his repeated
promise and failure to remedy the situation, a reasonable juror
3 (...continued)
ambitious real estate agent was convicted of knowingly making a false
statement to an agency in violation of 18 U.S.C. § 1001. Id. at 1049. The
Court noted that Elliott’s claim that he intended to inhabit a residence was
false when he signed the loan agreement because his loan application did
not include information about other properties he owned, he never put the
utilities in his own name, and he entered into a contract to rent the property
less than sixty days after the purchase. Id. at 1049.
16 No. 17-2816
could infer that Freed never intended to obtain the release
when he promised to do so.
Finally, Count 16 involved the following provision in a
construction loan agreement between Bank of America and the
Streets of Woodfield:
Borrowers may make Distributions provided …
cash and cash equivalents remaining after such
a distribution shall be not less than an amount
equal to the aggregate of (A) the total amount of
[tenant security deposits], (B) an amount sufficient
to provide for the real estate taxes on the
Premises to be paid in the current year …, and
(C) a reasonable working capital reserve.
The government provided evidence that when the agreement
was signed the Streets of Woodfield only had $19,000 in
its cash reserves, despite the fact that the yearly property taxes
were around $4 million. Furthermore, the day after signing the
agreement, Freed withdrew $273,000 and his withdrawals in
April alone totaled $1.3 million. The lack of capital in the
Streets of Woodfield reserves, along with Freed’s immediate
and continuous withdrawal of substantial funds, could cause
a reasonable juror to infer that Freed did not intend to abide by
this term when he signed the agreement. Thus, the government
provided ample evidence that Freed did not intend to keep this
promise when he made it.
Outcome: III. CONCLUSION
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
Plaintiff's Experts:
Defendant's Experts:
Comments: