United States v. Gerald Singer ( 2015 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0043p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
│ No. 13-2562
v. │
>
│
GERALD EUGENE SINGER, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:11-cr-00257-1—Gordon J. Quist, District Judge.
Decided and Filed: March 13, 2015
Before: KETHLEDGE and DONALD, Circuit Judges; McCALLA, District Judge.*
_________________
COUNSEL
ON BRIEF: Kevin M. Schad, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cincinnati,
Ohio, for Appellant. Michael A. MacDonald, Christopher M. O’Connor, UNITED STATES
ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.
_________________
OPINION
_________________
BERNICE BOUIE DONALD, Circuit Judge. Gerald Eugene Singer appeals his
convictions and sentence on multiple criminal charges, including mail fraud, use of fire to
commit mail fraud, arson, tax fraud, and obstruction of the administration of the internal revenue
laws. After a jury rendered a guilty verdict on twelve of fifteen counts, the district court
*
The Honorable Jon P. McCalla, United States District Judge for the Western District of Tennessee, sitting
by designation.
1
No. 13-2562 United States v. Singer Page 2
sentenced Singer to a total term of fifty-five years in prison. On appeal, Singer argues that:
(1) the mail-fraud count of his indictment was duplicitous; (2) the district court should have
severed the tax-fraud counts from the other charged offenses; (3) certain counts in the indictment
were outside of the relevant statute of limitations or brought within an improper venue; and
(4) the district court erred by imposing consecutive sentences under 18 U.S.C. § 844(h). For the
reasons discussed below, we AFFIRM Singer’s convictions and sentence.
I.
The government alleged that Singer, a landlord in Muskegon, Michigan, devised an
“arson for profit” scheme in which he acquired various properties at below-market prices,
obtained insurance policies well exceeding the purchase prices, and then caused the destruction
of the properties by deliberately setting fires in order to obtain insurance payments for his
personal benefit. Singer owned or had a legal interest in numerous investment, rental, and
commercial properties, mostly in the Muskegon area. Between 1993 and 2007, nine of Singer’s
properties suffered significant damage from arson. A 2009 investigation by the Bureau of
Alcohol, Tobacco, Firearms and Explosives uncovered numerous witnesses, including Singer’s
tenants, who admitted at trial that Singer and his son encouraged them to set fire to various
properties.
The following table summarizes each of the fires charged in the indictment, as well as
Singer’s insurance demands and ultimate payouts:
Fire Location Purchase Fire Insurer Insurance Payment
Price Date Demand
530 Elliott St. $16,000 03/01/93 Allstate Insurance $26,153 $25,903
Grand Haven, MI Co.
2809 Hoyt St. $7,000 07/23/95 Michigan Millers $60,665 $60,665
Muskegon Heights, MI Mutual Insurance
3101 8th St. $6,000 08/25/96 American States $45,800 $7,500
Muskegon Heights, MI Insurance
2820 Peck St. $150,000 09/01/97 Auto Owners $325,000 $40,000
Muskegon Heights, MI Insurance
1292 E. Broadway $49,000 06/20/99 Hartford Insurance, $657,000 $500,000
Norton Shores, MI Westport Insurance
No. 13-2562 United States v. Singer Page 3
Fire Location Purchase Fire Insurer Insurance Payment
Price Date Demand
$12,000 08/22/02 Farm Bureau $105,000 $0.001
2340 Wood St.
General Insurance
Muskegon Heights, MI
Co.
1019 E. 35th Place $10,000 06/21/06 Ohio Casualty $40,405 $17,500
Gary, IN Insurance
250 Myrtle St. $12,151 11/09/06 $69,000 $59,196
Foremost Insurance
Muskegon, MI
$33,269 08/28/07 Farm Bureau $273,000 ($4,000)2
2608-2614 7th St.
General Insurance
Muskegon Heights, MI
Co.
TOTALS $295,420 $1,602,023 $706,764
The government further alleged that Singer filed false tax returns for the years 2005
through 2008. Specifically, the government asserted that Singer falsely reported “net operating
losses” (“NOL”) despite his receipt of insurance payments offsetting them. An agent of the
Internal Revenue Service (“IRS”) interviewed Singer on July 18, 2011. During that interview,
Singer told the agent that the $500,000 NOL he reported on his tax returns represented his
financial loss arising from the 1999 fire at the 1292 E. Broadway property—a fabric store known
as “The Fair”—in Norton Shores, Michigan. Singer never reported his receipt of $500,000 in
insurance proceeds, which would have eliminated his NOL claims, to the IRS. Singer’s false
NOL claims reduced his taxable income by $100,000 in 2005, $10,000 in 2006, $40,000 in 2007,
and $30,000 in 2008.
Finally, the government alleged that Singer corruptly endeavored to obstruct the due
administration of the tax laws, in violation of 26 U.S.C. § 7212(a). Specifically, the government
asserted and introduced evidence that Singer (1) filed false tax returns; (2) made false and
misleading statements to IRS officials; (3) misled his tax return preparer; (4) concealed income
1
In a related criminal proceeding against one of Singer’s tenants, Ray Martin Haynes, Jr., the district court
ordered Haynes to pay restitution of $106,261.83 to Farm Bureau Insurance. See United States v. Haynes, No. 1:09-
cr-00254-GJQ-1, ECF No. 21 at PageID 55 (W.D. Mich. Apr. 2, 2010). We affirmed Haynes’ sentence on appeal.
United States v. Haynes, 579 F. App’x 473 (6th Cir. 2014).
2
After Farm Bureau Insurance denied his claim on the 7th Street building, Singer filed a civil lawsuit in the
Muskegon County Circuit Court. Singer later filed a voluntary stipulation of dismissal and paid $4,000 to Farm
Bureau to compensate its legal expenses in defending the lawsuit.
No. 13-2562 United States v. Singer Page 4
from the IRS by storing it in a “safe haven” bank account; (5) concealed insurance proceeds
through several “structured” individual payments of $10,000 from his attorney; and (6) caused
multiple tenants to file false tax returns claiming first-time homebuyer credits with the IRS,
portions of which they then paid over to Singer.
On September 7, 2011, a grand jury in the Western District of Michigan returned a
fourteen-count indictment against Singer. On October 6, 2011, the grand jury returned a
superseding indictment adding a fifteenth count. Count 1 charged Singer with mail fraud related
to the above-referenced arson scheme, in violation of 18 U.S.C. § 1341. Counts 2-7 charged
Singer with use of fire to commit mail fraud related to the arsons at 3101 8th Street (Count 2),
1292 E. Broadway (Count 3), 2340 Wood Street (Count 4), 1019 E. 35th Place (Count 5),
250 Myrtle Street (Count 6), and 2608-2614 7th Street (Count 7), in violation of 18 U.S.C.
§ 844(h). Counts 8-10 charged Singer with the arsons of 2340 Wood Street (Count 8),3
250 Myrtle Street (Count 9), and 2608-2614 7th Street (Count 10), in violation of 18 U.S.C.
§ 844(i). Counts 11-14 charged Singer with making false statements on his tax returns, in
violation of 26 U.S.C. § 7206(1). Finally, Count 15 charged Singer with obstructing the due
administration of the internal revenue laws, in violation of 26 U.S.C. § 7212(a).
After a trial lasting more than three weeks, the jury convicted Singer of mail fraud
(Count 1), three counts of using fire to commit mail fraud (Counts 3, 6, and 7), two counts of
arson (Counts 9 and 10), four counts of making false statements on tax returns (Counts 11-14),
and one count of obstructing tax administration (Count 15). The jury acquitted Singer of three
counts of using fire to commit mail fraud (Counts 2, 4, and 5).
On November 7, 2013, the district court sentenced Singer to a total of fifty-five years’
imprisonment: five-year terms on each of Counts 1, 9, and 10, and three-year terms on each of
Counts 11-15, all to run concurrently; a ten-year term on Count 3, to run consecutively to all
other counts; a twenty-year term on Count 6, to run consecutively to all other counts; and a
twenty-year term on Count 7, to run consecutively to all other counts. The court rejected
Singer’s argument that the court should not “stack” his § 844(h) sentences consecutively because
3
Upon Singer’s motion under Federal Rule of Criminal Procedure 29(a), the district court dismissed
Count 8—the arson charge related to the 2340 Wood Street property—finding that the property was a private
residence and not a “property used in interstate or foreign commerce” as required by 18 U.S.C. § 844(i).
No. 13-2562 United States v. Singer Page 5
his underlying convictions did not involve the use of explosives and because his “second or
subsequent” § 844(h) convictions stemmed from the same prosecution as his first. In addition,
the court ordered Singer to pay $653,140 in restitution to various insurance companies and the
IRS and to forfeit $559,196 to the United States.
Singer timely appealed.
II.
We first address Singer’s claim that Count 1 of the indictment was duplicitous. We then
address Singer’s arguments regarding misjoinder, the statute of limitations and venue, and
sentencing under § 844(h).
A.
Singer first argues that Count 1 of the indictment was fatally duplicitous because it
charged numerous separate mail-fraud offenses involving distinct mailings and arsons in one
mega-count. “An indictment is duplicitous if it sets forth separate and distinct crimes in one
count.” United States v. Boyd, 640 F.3d 657, 665 (6th Cir. 2011) (quoting United States v.
Davis, 306 F.3d 398, 415 (6th Cir. 2002)) (internal quotation marks omitted). When a defendant
asserts that an indictment is duplicitous for the first time on appeal, we apply plain-error review
unless the defendant objected to the district court’s jury instructions. United States v. Kakos,
483 F.3d 441, 445 (6th Cir. 2007). Because Singer did not so object, plain-error review applies
to his duplicity challenge. Accordingly, we may overturn Singer’s conviction on Count 1 only if
there was plain error that affected his “substantial rights.” United States v. Lloyd, 462 F.3d 510,
514 (6th Cir. 2006); see also United States v. Page, 520 F.3d 545, 548 (6th Cir. 2008)
(characterizing the plain-error standard as a “high burden”).
A mail-fraud conviction requires proof of three elements: “(1) devising or intending to
devise a scheme to defraud (or to perform specified fraudulent acts); (2) involving a use of the
mails; and (3) for the purpose of executing the scheme or attempting to do so.” United States v.
Frost, 125 F.3d 346, 354 (6th Cir. 1997). Count 1 of the indictment charged that Singer
“knowingly and unlawfully devise[d] a scheme and artifice to defraud” several insurance
companies and other persons “of money, funds, credits and similar property rights.” The count
No. 13-2562 United States v. Singer Page 6
described the particulars of the scheme and then listed seventeen mailings in furtherance of the
scheme between November 10, 2006, and May 7, 2009. We hold that the count was not
duplicitous.
In United States v. Robinson, we held that an indictment charging conspiracy to commit
wire and mail fraud in the first count, and substantive wire and mail fraud in the second and third
counts, was not duplicitous. 651 F.2d 1188, 1194-95 (6th Cir. 1981). In doing so, we approved
the government’s decision “[t]o avoid unnecessarily complex and confusing allegations and the
concomitant prejudice to [the defendant] of charging him with scores of substantive counts
arising out of the same scheme” by “particulariz[ing] in one count the different acts that were
part of the single scheme.” Id. Our sister circuits have employed similar reasoning. See, e.g.,
United States v. Olmeda, 461 F.3d 271, 281 (2d Cir. 2006) (“[A]cts that could be charged as
separate counts of an indictment may instead be charged in a single count if those acts could be
characterized as part of a single continuing scheme.” (quoting United States v. Tutino, 883 F.2d
1125, 1141 (2d Cir. 1989)) (internal quotation marks omitted)); United States v. Morse, 785 F.2d
771, 774 (9th Cir. 1986) (holding that an indictment alleging involvement in a mail-fraud scheme
comprised of four different investment programs could “fairly be read to charge but a single
scheme and [was] therefore not duplicitous”).
Even if we assumed that Count 1 of Singer’s indictment was duplicitous, however,
duplicity is only reversible if it prejudices the defendant. See Olmeda, 461 F.3d at 281
(“Duplicitous pleading . . . is not presumptively invalid.”). Singer argues that the duplicity of
Count 1 prejudices him because it hinders his ability to plead a defense under the Double
Jeopardy Clause of the Fifth Amendment if the government pursues additional mail-fraud
charges against him for the arsons referenced in Count 1. Additionally, he argues that the
evidence at trial demonstrated the impermissibly wide scope of the conduct alleged in Count 1,
as confirmed by the fact that the jury acquitted him of certain arsons referenced in the count. We
reject Singer’s arguments.
As an initial matter, we note that the proof at trial is irrelevant to the question of whether
an indictment is duplicitous. See United States v. Gordon, 844 F.2d 1397, 1400 (9th Cir. 1988)
(“Our task is solely to assess whether the indictment can be read to charge only one violation in
No. 13-2562 United States v. Singer Page 7
each count.”). Moreover, it is unclear how the government could initiate any future prosecution
based on the conduct set forth in Count 1 without violating the Double Jeopardy Clause. In any
event, we have no difficulty concluding that Count 1 of the indictment acceptably charged Singer
with a single scheme to defraud that included multiple mailings. See United States v. Robinson,
294 F. App’x 630, 632 (2d Cir. 2008) (“It does not follow . . . from the difference of the identity
of the recipients . . . in, and the time elapsed between, the earlier and later charged offense
conduct, that [the defendant] was not engaged in a single continuing scheme.”); see also United
States v. Damrah, 412 F.3d 618, 622 (6th Cir. 2005) (“It is not duplicitous to allege in one count
that multiple means have been used to commit a single offense.”). And it is difficult to imagine
how a single mail-fraud count—as opposed to seventeen or more—prejudiced Singer. See
United States v. Margiotta, 646 F.2d 729, 733 (2d Cir. 1981) (noting that the placement of
multiple mailings arising out of a mail-fraud scheme “in a single count achieves the obvious
benefit of limiting the maximum penalties defendant may face if convicted of mail fraud and also
avoids the unfairness of portraying the defendant to the jury as the perpetrator of 50 crimes”).
B.
Singer next argues that the district court should have severed the tax charges in the
indictment (Counts 11-15) from the rest of the case because they were unrelated to the mail-
fraud and arson charges and carried a risk of spillover prejudice. “A defendant must move for
severance based on misjoinder before trial or waive the objection.” United States v. Rox,
692 F.2d 453, 454 (6th Cir. 1982) (citing Fed. R. Crim. P. 12(b)(5)). Here, Singer concedes that
he did not move for severance at the district court. Thus, he has waived this argument.
C.
Singer’s third argument is two-pronged. First, he asserts that Count 2 is outside the
applicable ten-year statute of limitations4 because the fire undergirding that count took place in
April 1996—more than fifteen years before the grand jury returned the first indictment in this
case in September 2011. Second, he argues that the government should not have charged
Count 5 in an indictment in the Western District of Michigan because the fire undergirding that
4
See 18 U.S.C. § 3295 (“No person shall be prosecuted . . . under [18 U.S.C. § 844(h)] unless the
indictment is found . . . not later than 10 years after the date on which the offense was committed.”).
No. 13-2562 United States v. Singer Page 8
count took place in Gary, Indiana. Singer failed to raise these issues in the district court, so we
review them under the plain-error standard. See United States v. Damra, 621 F.3d 474, 501 &
n.8 (6th Cir. 2010) (holding that failure to raise a statute-of-limitations argument in the district
court subjects the argument to plain-error review on appeal); United States v. Grenoble, 413 F.3d
569, 573 (6th Cir. 2005) (holding that, where a defendant does not object to a defect in venue
that is “apparent on the face of the indictment” before trial, the objection is waived).
Singer’s argument that the ten-year statute of limitations on Count 2 began to run in
April 1996, when the fire occurred, misses the mark. An offense under 18 U.S.C. § 844(h) is not
“committed” until a fire or explosive is used to commit another felony—in this case, mail fraud.
See United States v. Beardslee, 197 F.3d 378, 385 (9th Cir. 1999) (“[A] violation of
section 844(h) is not complete until both a fire and a ‘felony which may be prosecuted in a court
of the United States’ have occurred.”). “The statute of limitations begins to run when a crime is
complete, that is, when each element of the crime charged has occurred.” United States v.
Grenier, 513 F.3d 632, 636 (6th Cir. 2008). As noted above, an essential element of mail fraud
is use of the mails. Frost, 125 F.3d at 354. Count 2 alleges a mailing occurring as recently as
April 30, 2003. That renders the count—first alleged on September 7, 2011, and restated in a
superseding indictment a month later—well within the ten-year statute of limitations. Therefore,
the crime alleged in Count 2 was not outside the relevant statute of limitations and no plain error
arose from its consideration at trial.
Singer’s venue argument also fails. Pursuant to 18 U.S.C. § 3237(a), “any offense . . .
begun in one district and completed in another, or committed in more than one district, may be
inquired of and prosecuted in any district in which such offense was begun, continued, or
completed.” The government need only prove that venue was appropriate by a preponderance of
the evidence. United States v. Zidell, 323 F.3d 412, 420-21 (6th Cir. 2003). That standard is
satisfied here; Count 5 specifically alleged, and trial testimony confirmed, that Singer sent a
mailing from Muskegon, Michigan, to Gary, Indiana, on June 30, 2006. Thus, venue in the
Western District of Michigan was proper in this case. Cf. United States v. Parlier, 570 F. App’x
509, 513-14 (6th Cir. 2014).
No. 13-2562 United States v. Singer Page 9
D.
Finally, Singer argues that we must vacate his 55-year sentence because the district court
impermissibly “stacked” his § 844(h) convictions consecutively to one another. At the district
court, Singer argued that a “second or subsequent” conviction under § 844(h) must occur in a
separate proceeding from one giving rise to his first § 844(h) conviction. On appeal, however,
Singer makes a different argument: that a defendant may only be convicted of one § 844(h)
count where the defendant is only charged with one substantive felony. Singer failed to make
this argument at the district court, so we review for plain error.
Singer asserts that because each of his § 844(h) convictions arises out of the same
indictment, the sentences on those convictions must merge under the reasoning espoused in
United States v. Sims, 975 F.2d 1225, 1235-36 (6th Cir. 1992). In Sims, we held that where an
indictment contains only one substantive drug-trafficking offense and separate counts under
18 U.S.C. § 924(c) “for weapons which fall into more than one weapons category as defined by
that section, the court must consolidate those section 924(c) counts, either pre- or post-trial so
that no defendant will be convicted on more than one gun count relative to the one drug
trafficking offense.” Id. at 1235. Consequently, we held, “defendants who have been convicted
of section 924(c) violations involving weapons carrying different penalties must be sentenced to
the highest applicable sentence” contemplated by the statute. Id. at 1236.
Here, as Singer points out, he was indicted on only one stand-alone count of mail fraud.
But each of his § 844(h) convictions was based on a different fraudulent mailing and a different
fire. Thus, for each § 844(h) charge, the government had to prove that Singer committed a
different predicate felony. Sims is therefore inapposite: in that case, the government indicted the
defendant on two § 924(c) counts based on the same underlying drug transaction. Id. at 1230.
We recognize that the government’s decision to charge each fire as a separate § 844(h) offense is
arguably in conflict with its theory that the fires all were part of the same underlying scheme.
But the government could have charged each fraud individually—indeed, Singer argues
elsewhere that the government was required to do so. And Singer cites to no case that holds that
the government’s decision to charge one substantive mail-fraud count instead of several
No. 13-2562 United States v. Singer Page 10
precludes multiple convictions under § 844(h). Thus, it was not plain error for the district court
to decline to merge Singer’s § 844(h) convictions.
Singer’s argument that only one sentence under § 844(h) was appropriate because the
government did not offer proof that he used explosives is equally unavailing. Singer preserved
this argument at the district court, so we review the district court’s conclusion de novo. United
States v. Elliott, 757 F.3d 492, 494 (6th Cir. 2014); see also United States v. Thompson, 728 F.3d
1011, 1015 n.6 (9th Cir. 2013) (explaining that questions of statutory interpretation related to
§ 844(h) are reviewed de novo). Section 844(h) provides that second or subsequent convictions
shall not “run concurrently with any other term of imprisonment including that imposed for the
felony in which the explosive was used or carried.” Singer asserts that the statute’s omission of
fire and explicit mention of explosives indicates Congress’ intent to limit consecutive sentences
to those where the defendant used an explosive. The federal courts of appeals repeatedly have
rejected this well-worn argument. Singer acknowledges the most recent case to do so—United
States v. Creech, 408 F.3d 264 (5th Cir. 2005)—but argues that its reasoning was not extensive
and actually contravenes the plain language of § 844(h). We disagree. In Creech, the Fifth
Circuit correctly held that the statute’s language is inclusive rather than exclusive, and that the
statute “in no way attempts to limit the stacking provision to felonies in which explosives are
used but explicitly merely includes such felonies.” 408 F.3d at 272-73; see also 18 U.S.C.
§ 844(h) (“[N]or shall the term of imprisonment imposed under this subsection run concurrently
with any other term of imprisonment including that imposed for the felony in which the
explosive was used or carried.” (emphases added)). Other federal appellate courts universally
agree. See United States v. Colvin, 353 F.3d 569, 574 (7th Cir. 2003) (en banc) (“[T]he structure
of [18 U.S.C. § 844(h)] suggests that Congress intended to treat fires and explosives as
interchangeable[.]”); United States v. Grassie, 237 F.3d 1199, 1215 (10th Cir. 2001) (“It is
irrational to view § 844(h)(1) as first explicitly linking fire and explosives for additional
punishment when used in committing any felony then, sub silentio, delinking fire from that
pairing for purposes of the cumulative punishment clause . . . .”); Sicurella v. United States,
157 F.3d 177, 178-79 (2d Cir. 1998) (per curiam) (confirming that “§ 844(h)’s requirement of
consecutive sentencing does apply to fire-related felonies”). In rejecting Singer’s argument that
No. 13-2562 United States v. Singer Page 11
his consecutive sentences under § 844(h) were illegal, we join in the reasoning of the above-cited
decisions.
III.
For the foregoing reasons, we AFFIRM Singer’s convictions and sentence.