In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 15-1537

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BRIAN WILKOZEK,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 02 CR 576 — Matthew F. Kennelly, Judge.

____________________

ARGUED NOVEMBER 4, 2015 — DECIDED MAY 18, 2016

____________________

Before KANNE, ROVNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge. In 2003 Brian Wilkozek pleaded 

guilty to one count of mail fraud for his participation in a 

mortgage-fraud scheme. The scheme was straightforward. 

Wilkozek drafted phony mortgage applications for in-theknow buyers to purchase properties from an in-the-know 

realtor at artificially high prices. He then submitted these 

applications to mortgage lenders, who approved them and 
2 No. 15-1537

distributed the funds to the buyers. The buyers divvied the 

funds between all of the schemers and then walked away 

from the underwater properties. As Wilkozek expected, the 

original mortgage lenders quickly sold the mortgages to 

third-party lenders on the strength of the same phony 

applications. 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. He also argued that the government 

miscalculated the amount of unpaid restitution. The judge 

disagreed on both fronts and entered the turnover order.

We affirm. The judge properly refused to grant the writ.

Misclassifying a lender as a victim is not a fundamental error

remediable by coram nobis, and even if it were, Wilkozek has 

not come close to proving that a misclassification occurred 

here. And the government has corrected its mistake in

calculating the unpaid restitution, so no further action is 

necessary.

I. Background

Wilkozek worked as a loan officer for JVS, Inc., a mortgage lender in the Chicago area. Beginning in 1997 he partic-
No. 15-1537 3

ipated in a scheme to defraud third-party mortgage lenders 

like Bank of America. The scheme was devised by realtor 

Theresa Holt, with Wilkozek playing the role of inside man. 

Specifically, Holt solicited in-the-know buyers to purchase 

relatively inexpensive properties at artificially high prices. 

Wilkozek then drafted bogus mortgage applications for the 

buyers and submitted them to mortgage lenders for approval. These lenders approved the mortgages and then quickly 

resold them to various third-party lenders. Importantly, in 

the course of deciding whether to purchase the mortgages, 

the third-party lenders relied on the very same phony 

applications Wilkozek submitted to the original lenders.

The scheme produced more than $1.4 million in mortgage-loan proceeds, far in excess of the market value of the 

mortgaged properties. The schemers distributed the funds 

between themselves—with Wilkozek pocketing $28,000 for 

his efforts—and the buyers walked away from the underwater properties. Once the third-party lenders caught on, they 

initiated foreclosure proceedings, suffering losses of about 

$713,400.

The conspiracy was exposed in 2002, and Wilkozek 

struck a deal with the government to plead guilty to one 

count of mail fraud. See 18 U.S.C. §§ 1341–1342. His deal also 

contained an appeal waiver. At sentencing the judge ordered 

him to pay $713,400 in restitution to the third-party mortgage lenders, jointly and severally with his coconspirators, 

and to serve a brief stint in prison.

Fast-forward to 2014 when the events giving rise to this 

appeal begin. Wilkozek hasn’t satisfied the restitution judgment, and the government wants to collect. The government 

asked the district judge to order Wilkozek’s then-employer 
4 No. 15-1537

Insight Global to periodically turn over a portion of his 

wages in partial satisfaction of the restitution judgment.

Wilkozek’s response was two-fold. First, he petitioned for a 

writ of coram nobis, alleging that “new evidence” proves that 

the third-party lenders were not actually victims entitled to 

restitution. Second, he argued that the government failed to 

properly credit payments by his coconspirators to his remaining unpaid restitution. The judge declined to issue the 

writ, adopted the government’s calculations, and issued the 

wage-turnover order.

II. Discussion

A. The Appeal Waiver

We first address the effect of the appeal-waiver provision 

in Wilkozek’s plea agreement. It reads: “[T]he defendant 

knowingly waives the right to appeal any sentence imposed 

in accordance with paragraph 19 below [(relating to the 

prison term)] or the manner in which that sentence was 

determined.” The government argues that this waiver strips 

the court of jurisdiction to consider Wilkozek’s challenge. 

We disagree.

Two components make up this appeal, neither of which 

implicates the appeal waiver. First and foremost is 

Wilkozek’s petition for a writ of coram nobis. This writ, like 

habeas corpus, is a collateral attack on a criminal judgment. 

See Chaidez v. United States, 133 S. Ct. 1103, 1106 n.1 (2013) 

(citing United States v. Morgan, 346 U.S. 502, 507, 510–11 

(1954)). To be sure, the right to collaterally attack a judgment 

can be waived. See Keller v. United States, 657 F.3d 675, 681 

(7th Cir. 2011). But such a waiver must be stated expressly. 

See id. (“To bar collateral review, the plea agreement must 
No. 15-1537 5

clearly state that the defendant waives his right to collaterally attack ... in addition to waiving his right to a direct appeal.”). That plainly wasn’t done here. Wilkozek’s petition 

for coram nobis is not barred by his appeal waiver.

The second component of Wilkozek’s appeal is a challenge to the government’s calculation of the outstanding 

restitution balance. This is merely a defense to the government’s motion to collect on the judgment. That is, Wilkozek 

is partially defending against the attempt to enforce the 

restitution judgment by arguing that the government is 

seeking to collect more than the amount authorized by the

judgment. That plainly is not barred by the appeal waiver 

either.

B. Coram Nobis

Before we proceed to the merits, a word about jurisdiction, which is the subject of some confusion between the 

parties. Even though coram nobis is a collateral attack on a 

criminal judgment, a petition for the writ is considered 

simply another “step in the criminal case and not, like 

habeas corpus ... , the beginning of a separate civil proceeding.” Morgan, 346 U.S. at 505 n.4; see also United States v. 

Denedo, 556 U.S. 904, 913 (2009). That means the district 

court’s power to hear a petition for the writ derives from the 

statute conferring subject-matter jurisdiction in the original 

criminal case. See Denedo, 556 U.S. at 914. That statute here is

18 U.S.C. § 3231, which confers on the district court original 

jurisdiction over “all offenses against the laws of the United 

States.” The government asserts that the district court’s 

power to hear Wilkozek’s petition flows from the All Writs 

Act, 28 U.S.C. § 1651. But the All Writs Act “is not a font of 

jurisdiction.” Denedo, 556 U.S. at 914. Rather, the Act simply 
6 No. 15-1537

gives the district court the power to grant a writ of coram 

nobis when appropriate. See Morgan, 346 U.S. at 511.

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 (quoting Morgan, 

346 U.S. at 507). 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) (quotation 

marks omitted); see also United States v. Keane, 852 F.2d 199 

(7th Cir. 1988) (discussing elements in more detail). In 

considering a district judge’s denial of the writ, we review 

conclusions of law de novo and findings of fact for clear 

error. See Chaidez v. United States, 655 F.3d 684, 687 (7th Cir. 

2011) aff’d 133 S. Ct. 1103 (2013); accord United States v. 

George, 676 F.3d 249, 256 (1st Cir. 2012).

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 (“At some point the judicial system must close old files and turn to the future, regret-
No. 15-1537 7

fully accepting the risk of error lest the quest for perfect 

justice become the enemy of adequate justice.”). An obvious 

example is deprivation of counsel. See Morgan, 346 U.S. at 

511–12.

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). (“There is as yet no 

evidence ... of such reliance by the refinancing banks, and in 

its absence those banks cannot be counted as ‘victims’ for 

restitution purposes, though their loss is loss” for sentencing 

purposes.). 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.

An error of this type is not of the “most fundamental 

character” as to render the conviction invalid. Sloan, 505 F.3d 

at 697; accord id. (“Restitution orders that sweep too much 

conduct into their calculations ... do not rise to the level of a 

constitutional violation.”). Misclassifying a third-party 

lender as a victim results in a windfall to that lender in that

it will recover money it lost due to the defendant’s criminal 

behavior that was otherwise unrecoverable as restitution. 
8 No. 15-1537

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. Cf. § 1341 (defining elements of mail fraud).

But even if misclassifying a lender as a victim were a 

fundamental error, Wilkozek has not shown that such an 

error occurred here. In his plea agreement, 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. The only “evidence” he submitted 

were news articles and press releases describing troubling 

behavior by mortgage lenders (including some of the thirdparty lenders here) leading up to the 2008 financial crisis. 

This “evidence” doesn’t overcome Wilkozek’s admission 

that the third-party lenders actually relied on his fraudulent 

mortgage applications. Accordingly, the judge properly 

declined to issue the extraordinary writ of coram nobis.

C. Miscalculation of the Outstanding Restitution Balance

Wilkozek also argues that the government did not 

properly credit him for restitution payments made by his 

coconspirators. The government admits that it failed to 

credit Wilkozek for $51,851.49 in payments made by Theresa 

Holt (the realtor) and has reduced Wilkozek’s outstanding 

restitution balance by that amount. No more need be done.

AFFIRMED.