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United States v. Simon

United States District Court, N.D. Indiana, South Bend Division

February 4, 2019



          Robert L. Miller, Jr. Judge

         James A. Simon, proceeding pro se, filed a motion for reconsideration and, in the alternative, sought a grant of an evidentiary hearing regarding this court's amendment of Mr. Simon's restitution obligation [Doc. No. 241]. Mr. Simon also moved to reduce restitution owned to the Department of Education, with a similar alternative request for an evidentiary hearing [Doc. No. 242]. The court denies Mr. Simon's motions.

         I. BACKGROUND

         In 2010, Mr. Simon was convicted of numerous financial crimes, including filing false tax returns, failing to file reports of foreign bank accounts, mail fraud, and financial aid fraud. Mr. Simon, among other things, fraudulently misrepresented his financial status to two private schools-Canterbury School and Culver Academies-to obtain financial aid for his children to attend those schools. As part of Mr. Simon's criminal sentence, he was ordered to pay restitution to the schools - $101, 600 to Culver Academies and $17, 000 to Canterbury School. Mr. Simon was also directed to pay $48, 070.35 in restitution to the Department of Education. Mr. Simon has completed his prison sentence but hasn't made full restitution.

         On March 6, 2018, the government moved to amend Mr. Simon's restitution order to reflect the updated totals that he owed to the schools. [Doc. No. 231]. The government attached two exhibits to its motion - one indicated that Canterbury School didn't want any more restitution and the other indicated that Mr. Simon still owed Culver Academies $48, 376. The same day the government filed its motion with the court, the government also mailed a copy of the motion to Mr. Simon directly, since he no longer has counsel. On March 7, the court ordered that Canterbury School would no longer be a payee for restitution, effectively reducing the original restitution order by $17, 000. [Doc. No. 232]. The court also amended the original restitution order to indicate that Mr. Simon still owed Culver Academies $48, 376. A copy of the order was mailed to Mr. Simon. Mr. Simon says he didn't get the government's motion until March 9, and that the government hadn't attached the two exhibits in to its motion. Mr. Simon received the two exhibits from the government on March 15 after requesting them. In the interim (on March 13), Mr. Simon received a copy of this court's order amending his restitution.

         II. Discussion

         Because a pro se document is to be “liberally construed” by the court, Ray v. Clements, 700 F.3d 993, 1002-03 (7th Cir. 2012), the court reads Mr. Simon's first motion for reconsideration as raising three distinct claims. First, Mr. Simon claims his Due Process rights have been denied because he wasn't given an opportunity to be heard regarding the motion to amend the restitution order. Second, he urges that in addition to the $17, 000 struck from the restitution order, the court should also strike the remaining $48, 376 owed to Culver Academies; alternatively, says the court should hold an evidentiary hearing regarding missing pages that document the amount owed in restitution to Culver Academies. Third, Mr. Simon's second motion requests the court strike the restitution owed to the Department of Education and, in the alternative, a grant for an evidentiary hearing regarding the computation of the restitution.

         1. Motion for Reconsideration

         A. Due Process Claim

         Mr. Simon contends that his Due Process rights under the Fifth and Fourteenth Amendments were violated because this court amended his restitution order before he received notice of the government's motion in the first place. Essentially, Mr. Simon argues that he had a procedural due process right to receive notice and to be heard regarding the government's motion to reduce the restitution.

         To prevail on a procedural due process claim, Mr. Simon must demonstrate the existence of “(1) a cognizable property interest; (2) a deprivation of that property interest; and (3) a denial of due process.” Khan v. Bland, 630 F.3d 519, 527 (7th Cir. 2010) (quoting Hudson v. City of Chi., 374 F.3d 554, 559 (7th Cir. 2004)). Our court of appeals hasn't addressed the question of whether a defendant has a due process right to be heard on a reduction of his restitution order on a motion brought by the government, however the Eighth Circuit has encountered a similar issue. In Dyab v United States, the government sought to amend a prisoner's restitution order to indicate that “one of [the prisoner's] co-conspirators was jointly and severally liable for a portion of [the prisoner's] restitution obligation.” 855 F.3d 919, 921 (8th Cir. 2017). Mr. Dyab didn't get notice of the amendment for eleven months, and he alleged a due process violation for not receiving notice and opportunity to be heard regarding the amendment. The Dyab court suggested that district courts do not have “unlimited license to amend a restitution order to the detriment of a [Defendant] . . . without giving the [Defendant] notice and an opportunity to be heard, ” Dyab v United States, 855 F.3d at 922 (emphasis added). But the court was silent about circumstances in which restitution orders affect the defendant either neutrally or positively.[1] Mr. Dyab then brought a claim in federal district court under the All Writs Act, 28 U.S.C. § 1651, alleging essentially the same due process claim. Dyab v. United States, No. 09-cr-0364 (1), 2018 WL 3031944, at *1 (D. Minn. June 19, 2018).[2] The district court ruled against Mr. Dyab, in part, because he couldn't show that the government had deprived him of a property interest-he still owed exactly the same amount of restitution as before. Dyab v. United States, 2018 WL 3031944, at *1.

         The reasoning of the Dyab courts is compelling. It is difficult to see how a protected interest of Mr. Simon's has been detrimentally affected or deprived when he owes “[n]ot one penny” more than when he was sentenced. Dyab v. United States, 2018 WL 3031944, at *1. The government didn't increase Mr. Simon's restitution, so it can't be said that the restitution order was amended to Mr. Simon's detriment. If anything, the government amended Mr. Simon's restitution to his benefit: he now owes $17, 000 less. Because Mr. Simon can't demonstrate that he has suffered a deprivation of a cognizable property interest, he can't succeed on his due process claim.

         Since the decision to amend Mr. Simon's restitution order to his benefit did not contravene any law or right, Mr. Simon's motion, at this stage, is inappropriate. “It is well established that a motion to reconsider is only appropriate where a court has misunderstood a party, where the court has made a decision outside the adversarial issues presented to the court by the parties, where the court has made an error of apprehension (not of reasoning), where a significant change in the law has occurred, or where significant new facts have been discovered.” Iqbal v. Patel, 2017 WL 3580137, at *1 (N.D. Ind. Aug. 18, 2017), citing Broaddus v. Shields, 665 F.3d 864, 860 (7th Cir. 2011), overruled on other grounds by Hill v. Tangherlini, 724 F.3d 967, n.1 (7th Cir. 2013). No. such circumstances are evident in the current case.

         B. ...

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