United States v. Simon, No. 19-1317 (7th Cir. 2020)Annotate this Case
Simon, a CPA, was convicted of filing false tax returns, mail fraud related to financial aid, and federal financial aid fraud. The court imposed a prison term, and restitution of $886,901.69 to the IRS, $48,070.35 to the Department of Education, $17,000 to Canterbury School, and $101,600 to Culver Academies. Simon made no objections to the restitution. The Seventh Circuit affirmed Simon’s convictions. Simon had not challenged his restitution obligations. Simon later unsuccessfully moved to vacate his conviction, alleging ineffective assistance of counsel, but not with respect to restitution. At the government's request, the court removed Canterbury as a payee, directing Simon’s restitution payments to Culver (private victims receive restitution ahead of the government, 18 U.S.C. 3664(i)) and approved an updated balance of $48,376, without a hearing. Days later, Simon received notice of the order.
Seven months later, Simon moved for reconsideration, arguing that he had a due process right to be heard on the government’s motion and that the amended balance constituted a new obligation. The schools had disclaimed any interest in restitution. Simon urged the court to eliminate his restitution and requested that the court strike all restitution to the Department of Education, claiming that his daughter had paid off her student loans so the Department was no longer at risk. The Seventh Circuit affirmed. Most of Simon’s challenges could and should have been raised at sentencing and on direct appeal and were waived; the remainder were untimely.