Kevin LeBeau v. United States

This Court has long recognized that juries should be formally and explicitly instructed on the concept of materiality when considering charges of bank fraud, yet no such instruction was given at trial. Thus,

1. Was the omission of the concept of materiality from the bank fraud elements instruction error requiring a new trial? Amcore Bank, the lender at issue, was not simply negligent in issuing this loan—it was reckless. Given the Seventh Circuit’s decision in United States v. Litos, 847 F.3d 906 (7th Cir. 2017), and the government’s own concession in Mr. LeBeau’s alleged co-schemer’s case, United States v. Schlyer, 17 CR 30, which was pending in the United States District Court for the Northern District of Illinois before Judge Amy J. St. Eve, Mr. LeBeau was prejudiced by sentencing counsel’s failure to challenge the $789,000 in restitution sought and ordered to Amcore Bank. As his sentencing counsel did not challenge the restitution amount at sentencing, and Seventh Circuit precedent forecloses restitution challenges in a 28 U.S.C. § 2255 petition:

2. Did the Seventh Circuit erroneously deny a Strickland claim to a restitution judgment brought on direct appeal?