United States Court of Appeals 

For the Seventh Circuit 

Chicago, Illinois 60604 

Submitted February 11, 2019 

Decided February 11, 2019 

Before 

WILLIAM J. BAUER, Circuit Judge 

AMY C. BARRETT, Circuit Judge 

MICHAEL Y. SCUDDER, Circuit Judge

No. 18-1011 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v. 

JAMES D. VICTERY, 

 Defendant-Appellant.

 Appeal from the United States District 

Court for the Southern District of Indiana, 

Indianapolis Division. 

No. 1:17CR00024-001 

Michael J. Reagan, 

Chief Judge. 

O R D E R 

 A jury found James Victery guilty of two counts of wire fraud, 18 U.S.C. § 1343, 

and two counts of money laundering, 18 U.S.C. § 1957, for perpetrating a scheme to 

defraud the United States Air Force and its contractors. He was sentenced to 48 months’ 

imprisonment, below the Sentencing Guidelines range of 51–63 months, and three 

years’ supervised release. He filed a notice of appeal, but his appointed counsel asserts 

that the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 

738 (1967). Victery opposes counsel’s motion. See CIR. R. 51(b). Counsel’s brief explains 

the nature of the case and addresses potential issues that this kind of appeal might 

involve. Because the analysis in counsel’s brief appears thorough, we limit our review 

NONPRECEDENTIAL DISPOSITION 

To be cited only in accordance with Fed. R. App. P. 32.1 
No. 18-1011 Page 2 

to the subjects he discusses and those that Victery raises. See United States v. Bey, 

748 F.3d 774, 776 (7th Cir. 2014). 

 At trial, the government submitted evidence that Victery owned and operated a 

business known as TEAM, a bonding and escrow company that served as a liaison 

between the Air Force and various small contractors. Through TEAM, Victery 

facilitated the sale of contractor invoices to financing companies including FedSTAR, 

the victim in this case, for a percentage of their face value. This process is referred to as 

“factoring” an invoice, and it is often utilized in government contracts to ensure that the 

contractors receive payment for their work sooner. As part of his scheme, Victery 

fabricated two invoices, forged the purported contractors’ signatures and the Air Force 

contracting officer’s on a factoring agreement, and sold them to FedSTAR, which paid 

him almost $590,000 that he then used for his own business expenses. He also 

purported to supply surety bonds for two small contractors who lost their Air Force 

contracts when it was revealed that the bonds were false. To win FedSTAR’s trust, 

Victery falsely represented that he was a graduate of the Air Force Academy, 

established a business called “Old National” that FedSTAR would believe was affiliated 

with Old National Bank, and used social media to create a fake profile for his fictitious 

business associate. 

Counsel concludes that it would be frivolous for Victery to challenge his 

conviction. Because a jury found Victery guilty, we would review the evidence in the 

light most favorable to the government. See United States v. Maldonado, 893 F.3d 480, 484 

(7th Cir. 2018). To establish wire fraud, the government needed to show that Victery 

was involved in a scheme to defraud, had the intent to defraud, and used the wires in 

furtherance of that scheme. See United States v. Johnson, 874 F.3d 990, 998–1000 (7th Cir. 

2017). As mentioned above, the government offered evidence that demonstrated that 

Victery created fraudulent invoices; engaged in acts meant to trick the victim; 

defrauded FedSTAR of over $500,000; and caused the wire transmissions that 

transferred money from FedSTAR to his company. 

Additionally, to prove money laundering, the government needed to show that 

Victery knowingly disbursed the illicit proceeds in a manner to conceal the fraud. See 

United States v. Stewart, 902 F.3d 664, 682 (7th Cir. 2018). The evidence showed that 

Victery attempted to legitimize the ill-gotten proceeds by using them to provide a loan 

from TEAM to another business. Thus, it would be pointless to contend that no rational 

jury could find Victery guilty of wire fraud and money laundering. 
No. 18-1011 Page 3 

Likewise, any challenge to the jury instructions would be doomed to fail. Victery 

did not object to the instructions, so we would review them only for plain error, see

United States v. Natale, 719 F.3d 719, 729 (7th Cir. 2013). But, like counsel, we do not see 

any obvious and prejudicial mistake in the instructions. Further, it does not appear that 

the district court abused its discretion when ruling on evidentiary challenges, and no 

other trial errors stand out from the record. 

Though he explores whether Victery could challenge his sentence, counsel 

correctly concludes that any such argument would be frivolous. The district court 

correctly calculated Victery’s 51- to 63-month guidelines range based on his criminal 

history category of I and total offense level of 24. The court reached that offense level 

based on Victery‘s intent to cause over $550,000 in loss, U.S.S.G. § 2B1.1(b)(1), his use of 

sophisticated means (including creating a Facebook profile for the non-existent vice 

president of Victery’s non-existent bank), id. § 2B1.1(b)(10)(c), and his conviction for 

money laundering under 18 U.S.C. § 1957, U.S.S.G. § 2S1.1(b)(2)(A). The court 

thoroughly explained its sentence based on Victery’s age, lack of prior criminality, and 

the sophistication involved in the offense. 

Victery received the 2-level sophisticated means enhancement under U.S.S.G. 

§ 2B1.1(b)(10)(c). But counsel concludes that, although the district judge said that 

Victery’s offense “might be a rather sophisticated scheme, [but] not to the point that it 

received any additional points,” it would be frivolous to argue that this “misstatement” 

was reversible error. We agree. Based on the facts that the government offered at trial, 

the sophisticated-means enhancement, which was recommended in the presentence 

investigation report, easily applied to Victery’s scheme. See U.S.S.G. § 2B1.1, cmt. 9(B). 

Victery did not object to the PSR’s guidelines calculation, and the judge adopted the 

PSR in full. Therefore, we agree with counsel that the judge’s misstatement did not 

affect the sentence, and any argument otherwise would be frivolous. 

In his response brief, Victery argues that he could make a nonfrivolous argument 

that the district court’s loss calculation—to which he did not object—was wrong 

because it failed to account for money recouped by FedSTAR. But, as counsel correctly 

recognizes, no money was returned “by the defendant or other persons acting jointly 

with the defendant,” and not “before the [fraud] was detected.” See U.S.S.G. § 2B1.1 

cmt. n.3(E)(i). It would, therefore, be frivolous to contend that Victery was entitled to an 

offset in the loss amount, although the money returned to the victim was appropriately 

deducted from the restitution obligation. 
No. 18-1011 Page 4 

Counsel next explores whether it would be frivolous to argue that the district 

court erred in denying Victery’s pretrial motion to substitute his appointed counsel. 

When reviewing the denial of such a request, we analyze whether it was timely, 

whether the district court adequately inquired into the matter, and whether the asserted 

breakdown between counsel and defendant “was so great as to result in a total lack of 

communication, precluding an adequate defense.” United States v. Ryals, 512 F.3d 416, 

419 (7th Cir. 2008). 

Victery moved to substitute counsel three days before trial was to begin, and the 

judge immediately held a hearing at which he investigated Victery’s allegation of a 

breakdown with his attorney; so the first two factors would work against Victery. In 

regard to the third, Victery claimed that his attorney was disclosing confidential 

information to third parties and that he no longer trusted him. If true, as counsel on 

appeal posits, that could constitute an ethical violation, and Victery could make a 

nonfrivolous argument that the district court abused its discretion. But after considering 

what both Victery and his attorney had to say at the hearing, the judge did not believe 

that Victery’s appointed attorney was acting inappropriately. Rather, the judge credited 

the attorney’s contention that he was reaching out to potential witnesses and enlisting 

Victery’s son to persuade Victery to be more cooperative. On the other hand, the judge 

found that it was Victery who apparently refused, unreasonably, to interact with 

counsel despite counsel’s attempts to communicate. 

Given the district court’s findings, we agree that it would be frivolous to argue 

that it abused its discretion when denying Victery’s last-minute motion to substitute 

counsel. See United States v. Thomas, 833 F.3d 785, 792 (7th Cir. 2016). Despite the 

breakdown, Victery’s appointed counsel was still responding to Victery’s questions 

about defense strategies, documents, and witnesses that Victery thought important to 

his case. But counsel found them to be irrelevant or damaging, and arguments over trial 

strategy do not constitute grounds for substitution of counsel. See United States v. 

Volpentesta, 727 F.3d 666, 673–74 (7th Cir. 2013). 

Counsel next questions whether Victery could make a nonfrivolous argument 

that his appointed attorney was ineffective. But we agree with counsel that Victery 

should pursue any claim of ineffective assistance through a motion under 28 U.S.C. 

§ 2255, so that a record can be made. See Massaro v. United States, 538 U.S. 500, 504–06 

(2003); United States v. Flores, 739 F.3d 337, 341 (7th Cir. 2014) (“[I]t is imprudent to 

present an ineffective-assistance argument on direct appeal.”). 
No. 18-1011 Page 5 

Accordingly, we GRANT counsel’s motion to withdraw and DISMISS Victery’s 

appeal.