In the

United States Court of Appeals

For the Seventh Circuit

No. 17-2816

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LAURANCE H. FREED,

Defendant-Appellant.

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division.

No. 13 CR 00951 — Robert M. Dow, Jr., Judge.

ARGUED FEBRUARY 7, 2019 — DECIDED APRIL 22, 2019

Before BAUER, HAMILTON, and BRENNAN, Circuit Judges.

BAUER, Circuit Judge. 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

underthe 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 andsecurity 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

Taylorrepresented 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 waiveris 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

whetherthe objection was forfeited ratherthan 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 plainerrorif 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 governmentrepeatedly 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 adefendant 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 Freedknowinglymade 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 representationthatthegovernment 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 jurorto inferthat Freed did not intend to abide by

this term when he signed the agreement. Thus, thegovernment

provided ample evidence that Freed did not intend to keep this

promise when he made it.

III. CONCLUSION

Forthe foregoing reasons, the judgment of the district court

is AFFIRMED.