O'Brien v. United States
| Docket Number | 22 C 00083 |
| Decision Date | 20 March 2023 |
| Parties | Jessica Arong O'Brien, Petitioner, v. United States of America, Respondent. |
| Court | U.S. District Court — Northern District of Illinois |
Pro se petitioner Jessica Arong O'Brien (“O'Brien”) was charged and convicted in 2018 of a scheme to commit bank and wire fraud. The Court sentenced O'Brien to two concurrent one-year sentences followed by two concurrent two-year terms of supervised release. United States v. O'Brien, No. 17 CR 239 (N.D. Ill.Dec. 21, 2018), ECF 325.[1] The Seventh Circuit affirmed her conviction on appeal. United States v O'Brien, 953 F.3d 449 (7th Cir. 2020). O'Brien then filed a timely petition for relief under 28 U.S.C § 2255, raising numerous issues regarding the underlying proceedings. R. 10. For the following reasons, the Court denies O'Brien's Petition in its entirety.
On April 11, 2017, O'Brien, a former Cook County judge who had an extensive background in real estate as a loan originator, mortgage consultant, real estate broker, and owner of a real estate company, and an accomplice, Maria Bartko, were charged with mail and bank fraud. C.R. 1. The indictment charged that, from approximately 2004 to 2007, O'Brien and Bartko participated in a scheme related to two investment properties that O'Brien owned in Chicago at 625 West 46th Street (“the 46th Street property”), and at 823 West 54th Street (“the 54th Street property”). Specifically, in 2004, O'Brien purchased the 46th Street property by falsifying her income and liabilities in order to obtain a mortgage. Id. at 5. In 2005, she refinanced both properties through Bartko by submitting applications with false statements as to her income. Id. at 5-6. In 2006, O'Brien fraudulently obtained a commercial line of credit, which she used to pay expenses on both properties. Id. at 6-7. And finally, in 2007, O'Brien agreed to sell the properties to Bartko through a straw buyer, Christopher Kwan, who was fraudulently qualified to purchase the properties. Id. at 7-9. O'Brien wrote checks to Bartko for her role in acquiring the properties. Id. Count One of the indictment alleged that O'Brien committed mail fraud under 18 U.S.C. § 1341 when, on April 16, 2007, she and Bartko caused the mailing of a check to pay off O'Brien's mortgage on the 46th Street property. Count Two of the indictment alleges that O'Brien committed bank fraud under 18 U.S.C. § 1344 on the same day when she caused Citibank, N.A. (“Citybank”), a financial institution, to fund a home equity line of credit in the amount of $73,000 (the “HELOC”) for Kwan's purchase of the 46th Street property. On January 26, 2018, Bartko entered a guilty plea by which she admitted to Count One of the indictment. C.R. 205. She did not testify at trial.
On May 16, 2017, O'Brien filed a motion to dismiss the indictment based on duplicity, alleging that each of the 2004, 2005, 2006, and 2007 transactions constituted separate offenses, and that the indictment improperly joined two or more offenses into a single count. C.R. 45, 46. The motion argued that, by charging earlier, separate conduct as a “scheme,” the government was inappropriately attempting to evade the ten-year statute of limitations. C.R. 46 at 18-19. This Court denied the motion, holding that the government acted within its discretion to charge a single scheme, that the transactions “are fairly characterized as one scheme,” and that any potential prejudice would be cured by “a jury instruction and special verdict form making clear that the jury ‘must unanimously agree' that each element of the mail and bank fraud statutes have been met based on the 2007 executions.” C.R. 116 at 18, 24.
On September 18, 2017, O'Brien filed a motion to compel Citibank and CitiMortgage, Inc. (“CitiMortgage”) to produce documents responsive to her multiple subpoenas seeking the identity of “the entity that funded the $73,000 loan, namely the owner of Account 38682027.” C.R. 100 at 3. Citibank and CitiMortgage responded that neither entity found any responsive documents and provided a declaration that the account was “assigned to the broker channel (a/k/a wholesale lending),” but did not specify which entity it was referring to. Id. at 4. O'Brien sought to compel Citibank and CitiMortgage to conduct a search for any documents that would reveal the identity of the entity that owned the account. Id. at 6. O'Brien contended that this was important because she believed that CitiMortgage, not Citibank (as alleged in the indictment), funded the HELOC. Id. at 1. CitiMortgage was not insured by the FDIC in 2007, and thus it did not meet the definition of a “financial institution” under the bank and mail fraud statutes at the time. Id. If CitiMortgage alone funded the HELOC, she argued, the government would not be able to prove she defrauded a financial institution, as required to prove bank fraud, and a five-year statute of limitations would apply to her mail fraud charge and cause it to be time-barred. Id.
This Court set a hearing on the motion and ordered Citibank employees Tonya Cwach and Judy Taylor to appear. C.R. 108, 109, 113. Taylor, a Citibank vice president, testified during the hearing that the $73,000 for the HELOC were “Citibank funds,” that the HELOC “was a Citibank product,” and that the funds were “requested from the Citibank cash account and transferred over to the wholesale lending account.” C.R. 113 at 62-63, 77-79, 105. The Court denied the motion to compel, finding that the Citi entities had properly responded to the subpoenas as they understood them. Id. at 122-27. O'Brien's attorney was counseled to work with Citi's counsel to craft a subpoena directed at the specific documents O'Brien was seeking. Id.
O'Brien then issued more subpoenas directed to Citibank and CitiMortgage, resulting in Citibank filing a motion to quash, O'Brien filing additional motions to compel, and a government report on O'Brien's inappropriate use of subpoenas. C.R. 120, 122, 124, 129, 132. The Court reviewed documents that Citibank withheld from O'Brien in camera and determined that they were privileged and did not answer her question regarding ownership of the funds. C.R. 142 at 4. Citi's counsel informed the Court that the documents O'Brien sought regarding the wire transfer information for the HELOC funds were no longer available per Citibank's document retention policy. Id. at 5.
On December 19, 2017, O'Brien moved to dismiss the indictment on the basis that a five-year statute of limitations, rather than the ten-year statute applicable to fraud that “affects a financial institution,” barred the charges against her. C.R. 139. She again argued that the documents produced so far showed that CitiMortgage, not Citibank, funded the HELOC, and CitiMortgage was not an FDIC-insured institution at the time. Id. This Court denied that motion because it found that there was “significant evidence” that Citibank funded the loan, including Taylor's testimony at the evidentiary hearing on O'Brien's motion to compel and multiple documents which identified Citibank as the lender. C.R. 201 at 7-8. The Court further found that even if CitiMortgage funded the loan, the jury could find that O'Brien's scheme affected a financial institution because it exposed Citibank, CitiMortgage's parent company, to increased risk. Id. at 11-15.
O'Brien also moved to dismiss the indictment on the grounds that the government allegedly knowingly presented Bartko's perjured testimony to the grand jury, and that the indictment was based on this testimony. C.R. 131. Specifically, she alleged that Bartko lied about O'Brien concealing Bartko's identity as a purchaser from the lenders. Id. at 5. As proof that Bartko committed perjury, O'Brien produced acknowledgements signed and notarized by Bonnie Pemreze, the closing agent for the 2007 purchases, which read, “Acknowledgment & Agreements Between Christopher Kwan/Maria Bartko (‘Buyers') and Jessica O'Brien (‘Seller')” (the “Acknowledgments”). C.R. 131-2, 131-3. Citibank, however, stated that the
Acknowledgments were not given to it and could not be found anywhere in its system. O'Brien also argued that Bartko lied about the condition of the properties when she told the grand jury that they were in “excellent condition” and not in need of repairs. O'Brien argued that the Acknowledgements stated the properties were being sold “as is” and noted some minor repairs to be done. Id. O'Brien therefore contended that the checks she wrote to Bartko were not illegitimate payments for purchasing the properties, but rather legitimate payments used to make those repairs. C.R. 131.
The Court denied the motion and held that O'Brien had merely shown that there was some exculpatory evidence, and that the government was under no obligation to present such evidence to the grand jury. C.R. 159. It further emphasized that it could not find that Bartko had lied to the grand jury without improperly weighing competing evidence and taking on the role of factfinder. Id.
On January 30, 2018, less than a week before trial, Citibank produced documents responsive to a government request for “a statement from the Citibank treasury . . . which would evidence the debits made on April 16, 2007 to the CitiMortgage, Inc. account, a portion of which was then debited to the CMI Wholesale Lending account to fund the Kwan loan.” C.R. 264 at 7; C.R. 203. The government initially moved to continue the trial on the basis that there might be more documents. At a status...
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