United States v. Simmons

606 F. App'x 848
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 3, 2015
DocketNo. 13-3182
StatusPublished
Cited by2 cases

This text of 606 F. App'x 848 (United States v. Simmons) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Simmons, 606 F. App'x 848 (7th Cir. 2015).

Opinion

ORDER

Anthony Simmons was convicted after a jury trial of wire fraud, see 18 U.S.C. § 1343, and bankruptcy crimes, see id. §§ 157, 1519. The district court sentenced him within the guidelines range to a total of 78 months’ imprisonment. Simmons filed a notice of appeal, but his appointed attorney asserts that the appeal is frivolous and seeks to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Simmons opposes counsel’s motion. See Cir. R. 51(b). Counsel has submitted a brief that explains the nature of the case and addresses potential issues that an appeal of this kind might be expected to involve. We limit our discussion to those issues plus the additional points that Simmons, disagreeing with counsel, believes have merit. See United States v. Bey, 748 F.3d 774, 776 (7th Cir.2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996). For the reasons that follow, we dismiss Simmons’s appeal.

Simmons used wholly owned Unity Management & Development Corporation to target unsophisticated homeowners in financial straits. In one scheme, which ran for two years beginning in 2004, Simmons represented that homeowners with equity but falling behind on their mortgage could sell to a Unity “investor” and stay in the house as a renter until better fortune allowed a repurchase. The “investors,” though, actually were straw purchasers paid $10,000 by Simmons to lend their names to loan applications full of falsehoods. Simmons- never discussed selling price with a distressed owner, so when a house sold he simply kept as his “fee” the difference between the straw purchaser’s loan and the retired mortgage. In one instance, that was nearly 25% of the new loan. The straw purchasers predictably defaulted, and so the homes still ended up in foreclosure. For this scheme Simmons Was convicted of three counts of wire fraud.

[849]*849Then in 2007, Simmons, again through Unity, began preparing and filing skeletal bankruptcy petitions on behalf of distressed homeowners willing to pay his exorbitant fees. The homeowners typically had no intention of pursuing the bankruptcy case but hoped that the automatic stay, see 11 U.S.C. § 362, would stall a foreclosure suit. On the bankruptcy petitions Simmons failed to disclose his status as a non-attorney preparer, see id. § 110(b)(2)(B)(i), and with those petitions he submitted false certifications that the debtor had engaged in credit counseling, see id. § 109(h)(1). This scheme led to three convictions for bankruptcy fraud and another three for falsifying records in a bankruptcy proceeding.

Appellate counsel begins by questioning whether Simmons could argue that the wire-fraud charges were barred by the statute of limitations, which is 5 years. See 18 U.S.C. § 3282(a); United States v. McGowan, 590 F.3d 446, 456 (7th Cir. 2009). A § 1343 violation occurs each time an interstate wire is used to execute a scheme to defraud, see United States v. Sheneman, 682 F.3d 623, 629-30 (7th Cir. 2012); United States v. Turner, 551 F.3d 657, 666 (7th Cir.2008), and for each use a new 5-year limitations period begins to run, see United States v. Baldwin, 414 F.3d 791, 795 & n. 1 (7th Cir.2005), overruled in unrelated part by United States v. Parker, 508 F.3d 434 (7th Cir.2007); United States v. Eckhardt, 843 F.2d 989, 993 (7th Cir.1988). Thus, an appellate claim would be frivolous because Simmons was indicted in September 2010, less than 5 years after each wire transfer underlying a § 1343 count. See McGowan, 590 F.3d at 456-57; Eckhardt, 843 F.2d at 993-94.

Regardless, Simmons never asked the district court to dismiss the § 1343 counts as untimely. Instead, trial counsel filed a “notice” of his intention to object, based on the statute of limitations, to any evidence concerning events that occurred more than 5 years before he was indicted. Counsel asserted that, even if the scheme to defraud had started in 2004 as alleged, anything Simmons did before September 2005 (5 years before the grand jury indicted) was too old to prosecute and thus, according to counsel, constituted “other crimes” evidence excluded by Federal Rule of Evidence 404(b). This premise is frivolous. As Simmons’s new lawyer recognizes, the statute of limitations and Rule 404(b) do not place temporal constraints on the government’s proof of a single scheme to defraud, no matter how long before indictment that scheme was commenced. See United States v. Tadros, 310 F.3d 999, 1007 n. 5 (7th Cir.2002); United States v. Barnes, 230 F.3d 311, 315 (7th Cir.2000); United States v. Wellman, 830 F.2d 1453, 1464 (7th Cir.1987). Moreover, an appellate claim resting on trial counsel’s “notice” would be especially meritless since he never followed through by objecting to particular evidence as stale.

In his Rule 51(b) response, Simmons offers two contentions related to the points discussed by counsel. First, Simmons posits that we lack appellate jurisdiction because, he believes, the proceedings in the district court will not be final until the district court discusses trial counsel’s “notice.” That belief is mistaken; the judge’s handling of the “notice” does not affect our jurisdiction. Second, Simmons contends that the district court should have instructed the jury that it could not find him guilty of wire fraud without agreeing unanimously that all of his conduct comprising that offense was committed within five years of indictment. This proposed argument rests on the mistaken belief that, because of the statute of limitations, the indictment necessarily charges two schemes to defraud by means of wire, one reaching back 5 years before indictment and the other end[850]*850ing before then. Cf. United States v. Jackson, 479 F.3d 485, 491 (7th Cir.2007) (explaining that jury unanimity might be a concern if indictment alleges two crimes in single count). In fact, the indictment alleges a single scheme running from 2004 into 2006, and, as we’ve already noted, it is the date that a scheme to defraud is executed by use of an interstate wire, not the date that the scheme began, that matters for purposes of the statute of limitations. Thus, we would conclude that the district court’s admonishment that the jury needed to find the existence of a scheme beyond a reasonable doubt, coupled with the general unanimity instruction, adequately instructed the jury. See United States v. Schiro, 679 F.3d 521

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Related

United States v. Simmons
N.D. Illinois, 2018
United States v. Anthony Simmons
683 F. App'x 522 (Seventh Circuit, 2017)

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Bluebook (online)
606 F. App'x 848, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-simmons-ca7-2015.