12-2187-cr
United States v. Simmons

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on
the 27th day of April, two thousand fifteen.

Present: ROBERT A. KATZMANN,
                     Chief Judge,
         PIERRE N. LEVAL,
         ROSEMARY S. POOLER,
                     Circuit Judges.
____________________________________________________________

UNITED STATES OF AMERICA,

                           Appellee,

                           -v-                           No. 12-2187-cr

JOHN SIMMONS, a/k/a AVROM SIMMONS,

                           Defendant-Appellant.

____________________________________________________________

For Appellee:                     JENNIFER L. BEIDEL (Brian A. Jacobs, on the brief), Assistant
                                  United States Attorneys, for Preet Bharara, United States
                                  Attorney for the Southern District of New York, New York,
                                  N.Y.

For Defendant-Appellant:          COLLIN F. HESSNEY (Michael J. Gilbert, on the brief), Dechert
                                  LLP, New York, N.Y.
      Appeal from the United States District Court for the Southern District of New York
(Buchwald, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court be and hereby is AFFIRMED.

       This appeal returns to us following a remand pursuant to the procedures set forth in

United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir. 1994). We remanded the case to the

district court for further documentation of the proper amount of restitution under the Mandatory

Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A. See United States v. Simmons, 544 F.

App’x 21, 24 (2d Cir. 2013). Defendant-Appellant John Simmons now reinstates his appeal,

challenging the district court’s November 14, 2014 amended final judgment awarding restitution

in the amount of $262,418 to The 203 Condominium. We assume the parties’ familiarity with the

underlying facts, procedural history, and issues on appeal.

       At the outset, Simmons contends that the district court lacked the authority to order

restitution to The 203 Condominium on remand. When the district court initially sentenced

Simmons, it ordered that the restitution be paid to Siren Management Corporation (“Siren”), the

managing agent of The 203 Condominium. Our previous order, which concluded that further

documentation of the loss caused by Simmons’ fraud was necessary, thus remanded to the

district court “for determination of the amount of the loss that Siren incurred.” Simmons, 544 F.

App’x at 24 (emphasis added). On remand, however, the district court determined “that the loss

of $262,418 was suffered by The 203 Condominium, the homeowner’s association, rather than

Siren, its managing agent,” United States v. Simmons, No. 09-CR-757-NRB, 2014 WL 6076410,

at *2 (S.D.N.Y. Nov. 14, 2014), and therefore ordered restitution to The 203 Condominium

instead of Siren.



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       Simmons contends that our remand was limited to substantiating the restitution owed to

Siren, and that the district court exceeded the mandate when it changed the recipient of the

restitution. We have previously held, however, that “the mandate rule does not forbid a district

court to resentence beyond the scope of a limited remand for a cogent, compelling reason.”

United States v. Johnson, 378 F.3d 230, 244 (2d Cir. 2004). Ensuring that restitution is paid to

the proper recipient presents just such a “cogent, compelling reason,” and so we see no error in

the district court’s decision to order restitution to The 203 Condominium rather than Siren.

       Turning to the merits of Simmons’s renewed appeal, Simmons first argues that the

district court should have ordered restitution to the other tenants of The 203 Condominium,

rather than to The 203 Condominium itself. Simmons reasons that the other tenants are the actual

victims, because they were forced to pay higher common charges to cover the share of common

charges that should have been paid by the eight apartments involved in Simmons’s fraud.

       Simmons’s argument is unpersuasive. For purposes of the MVRA, restitution is only

owed to a “victim,” which the statute defines as “a person directly and proximately harmed as a

result of the commission of an offense.” 18 U.S.C. § 3663A(a)(2). The district court expressly

concluded that Simmons’s fraud “directly deprived The 203 Condominium of funds to which it

was entitled,” and that the fraud only “indirectly harmed” the other tenants of the condominium.

Simmons, 2014 WL 6076410, at *2 n.2. Because the unpaid common charges for the eight

apartments involved in the fraud were owed to The 203 Condominium in the first instance, the

district court did not commit clear error by ordering restitution to The 203 Condominium rather

than to the individual tenants. See United States v. Qurashi, 634 F.3d 699, 701 (2d Cir. 2011).

       For similar reasons, we reject Simmons’s contentions that (1) the government’s loss

documentation should have detailed the higher common charges paid by the individual tenants


                                                3
and (2) the district court improperly delegated to The 203 Condominium its responsibility to

order restitution to the individual tenants. In both instances, Simmons’s argument turns on the

premise that the individual tenants, rather than The 203 Condominium, were the proper victims

of his fraud under the MVRA; we reject this premise for the reasons set forth above.1

       Finally, Simmons contends that The 203 Condominium failed to mitigate its damages,

both by failing to detect his fraud in the first instance and by not seeking to file liens against and

foreclose on the eight apartments at issue. While our Court has yet to speak to the issue of

whether a crime victim must mitigate losses to qualify for restitution, we need not reach the issue

here. Even assuming arguendo that mitigation is necessary, actions undertaken by The 203

Condominium more than sufficed. The 203 Condominium obtained a judgment against one of

the straw purchasers involved in Simmons’s fraud, but was unable to recover any of the unpaid

common charges from the “essentially judgment-proof” straw purchaser. See J.A. at 241.

Moreover, as the government’s submissions on remand explained, any lien against the

apartments for the unpaid charges would be junior to the liens held by the mortgage lender. See

id. at 241. Based on these facts, the district court found that The 203 Condominium adequately

sought to mitigate its losses. Our review of this conclusion is “extremely deferential,” United

       1
          We also reject Simmons’s argument that the district court should have ordered
restitution to the individual tenants under 18 U.S.C. § 3664(j)(1), which provides that “[i]f a
victim has received compensation from insurance or any other source with respect to a loss, the
court shall order that restitution be paid to the person who provided or is obligated to provide the
compensation.” Even assuming that the higher common charges paid by the individual tenants
could be characterized as “compensation . . . with respect to a loss,” any failure to follow this
provision of the statute was harmless. Because any dollar paid in higher common charges by the
individual tenants is a dollar restored to The 203 Condominium, the total restitution owed by
Simmons would be the same in any event. See United States v. Stevens, 211 F.3d 1, 5 (2d Cir.
2000). In any event, Siren represented that “it will either distribute any restitution payments back
to The 203 Condominium’s members or use such payments to abate future increases in charges
to those members.” Simmons, 2014 WL 6076410, at *2 n.2.


                                                  4
States v. Grant, 235 F.3d 95, 99 (2d Cir. 2000), and after reviewing the facts of this case, we are

not “left with the definite and firm conviction that a mistake has been committed,” U.S. v.

Cuevas, 496 F.3d 256, 267 (2d Cir. 2007) (internal quotation marks omitted). Accordingly, we

decline to upset the district court’s finding that The 203 Condominium did not fail to mitigate its

losses.

          We have considered the parties’ remaining contentions and we find them to be without

merit. Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.



                                                  FOR THE COURT:
                                                  CATHERINE O’HAGAN WOLFE, CLERK




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