NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 11, 2015
Decided June 3, 2015
Before
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 13‐3182
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff‐Appellee, District Court for the Northern District
of Illinois, Eastern Division.
v.
No. 10 CR 820
ANTHONY L. SIMMONS,
Defendant‐Appellant. Amy J. St. Eve,
Judge.
O R D E R
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 (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,
No. 13‐3182 Page 2
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.
Then 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 456–57; Eckhardt, 843 F.2d at
993–94.
No. 13‐3182 Page 3
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 ending 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, 533 (7th Cir. 2012); United
States v. Davis, 471 F.3d 783, 791 (7th Cir. 2006).
No. 13‐3182 Page 4
Counsel next considers whether Simmons could challenge the denial of his
pretrial motion to sever the wire‐fraud counts from the counts charging bankruptcy
crimes. In his Anders brief counsel confuses severance with misjoinder. Misjoinder
occurs when the government charges in the same indictment crimes not satisfying the
criteria of Federal Rule of Criminal Procedure 8(a). See United States v. Davis, 724 F.3d
949, 955 (7th Cir. 2013); United States v. Blanchard, 542 F.3d 1133, 1141 (7th Cir. 2008). By
contrast, under Federal Rule of Criminal Procedure 14(a), a district court may sever
properly joined charges if separate trials are necessary to avert prejudice to a party.
See United States v. States, 652 F.3d 734, 743 (7th Cir. 2011); United States v. Ervin, 540 F.3d
623, 628–29 (7th Cir. 2008). But neither theory could have benefitted Simmons, and
pressing either on appeal would be fruitless.
We review claims of misjoinder de novo, looking only to the face of the
indictment. See Davis, 724 F.3d at 955; United States v. Hosseini, 679 F.3d 544, 552 (7th Cir.
2012). The district court concluded that the charges of wire fraud and bankruptcy
crimes share “similar character,” see FED. R. CRIM. P. 8(a), and thus were properly joined.
That broad basis for joinder concerns categorical similarity, not temporal or evidentiary
overlap. See United States v. Berg, 714 F.3d 490, 495 (7th Cir. 2013); United States v.
Alexander, 135 F.3d 470, 476 (7th Cir. 1998). And the charged crimes, each of them
involving a form of fraud, are of like character. See Alexander, 135 F.3d at 476
(concluding that mail fraud and bankruptcy fraud are of similar character); United States
v. Koen, 982 F.2d 1101, 1111–12 (7th Cir. 1992) (same for mail fraud and embezzlement).
And as the district court noted, the accusation that Simmons used Unity to target
victims in similar financial straits underlies and directly links all nine counts in the
indictment.
As for severance, Simmons did not renew his motion after the close of evidence,
so an appellate claim challenging the adverse ruling would, most likely, be deemed
waived. See United States v. Alviar, 573 F.3d 526, 538 (7th Cir. 2009); United States v.
Rollins, 301 F.3d 511, 518 (7th Cir. 2002). And waiver aside, Simmons would be unable
to convince us that he was actually prejudiced by having a single trial on all nine
counts. See United States v. Quilling, 261 F.3d 707, 715 (7th Cir. 2001); United States v.
Dixon, 184 F.3d 643, 645 (7th Cir. 1999). The government produced overwhelming
documentary and testimonial evidence to support each charge. See United States v.
Carter, 695 F.3d 690, 701 (7th Cir. 2012); Dixon, 184 F.3d at 645–46; United States v.
Todisijevic, 161 F.3d 479, 484–85 (7th Cir. 1998). Moreover, Simmons was adequately
protected against prejudice because the jury was instructed to separately evaluate each
charge. See Carter, 695 F.3d at 701–02; Quilling, 261 F.3d at 715.
No. 13‐3182 Page 5
Finally, counsel notes that he evaluated the sentencing proceedings but did not
find even colorable support for a procedural or substantive challenge. The district court
calculated a guidelines imprisonment range of 70 to 87 months and decided that 78 was
the appropriate term. Counsel did not identify any possible error in the court’s
application of the guidelines, and we would presume the resulting term of
imprisonment to be reasonable. See Rita v. United States, 551 U.S. 338, 347 (2007); United
States v. Pape, 601 F.3d 743, 746 (7th Cir. 2010). Counsel sees nothing in the record that
would warrant setting aside that the presumption, nor do we.
The motion to withdraw is GRANTED, and this appeal is DISMISSED.