United States v. Anthony Simmons
683 F. App'x 522
| 7th Cir. | 2017Background
- Anthony Simmons was convicted in April 2013 by a jury of wire fraud, bankruptcy fraud, and falsifying bankruptcy records arising from schemes to defraud homeowners facing foreclosure.
- Simmons waited until April 2016—more than three years after the verdict—to move for a new trial under Federal Rule of Criminal Procedure 33, alleging the government introduced three pieces of “false” evidence (a stipulation of wire transfers, testimony labeling him a “bankruptcy preparer,” and a summary chart).
- The district court denied the Rule 33 motion on July 29, 2016 as untimely: Simmons did not show newly discovered evidence for the 14-day window under Rule 33(b)(2), and a new-trial motion based on newly discovered evidence under Rule 33(b)(1) was filed after the three-year limit. The court also held Simmons could have discovered the evidence with due diligence.
- Simmons filed a motion for reconsideration on August 15, 2016 with a certificate of service claiming hand delivery; the district court denied it the same day. Simmons appealed; his August 29 notice of appeal was timely only as to the August 15 order.
- On appeal, Simmons argued the reconsideration motion was timely under the prison-mailbox rule because he emailed the motion to a family member who hand-delivered it. The court rejected that argument because (1) the mailbox rule requires filing via prison mail and supporting evidence (declaration, notarization, or postmark) when relying on third-party delivery, and (2) Simmons’ attachments did not satisfy Rule 4(c) and contained timing inconsistencies.
- The court held the August 15 filing was in substance a new Rule 33 motion subject to the three-year deadline; Simmons’s motion was nearly four months late. The Seventh Circuit affirmed and denied Simmons’ ancillary motions for default judgment and renewed bail.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of Rule 33 motion | Government: Simmons’ Rule 33 motion was untimely because he did not show newly discovered evidence for the 14-day rule and the three-year window had passed | Simmons: Motion was timely because Rule 33(b)(1) three-year deadline fell on a Sunday, so filing the next day complied with Rule 45 | Court: Motion untimely—Simmons filed past both the 14-day and three-year limits; even if timely argument, evidence was discoverable with diligence |
| Timeliness of motion for reconsideration and effect on appeal period | Government: Reconsideration was filed after the 14-day window to toll appeal; thus July 29 order was final and appeal was untimely | Simmons: Motion for reconsideration was timely under the prison-mailbox rule because he emailed it to a family member within 14 days | Court: Reconsideration untimely; mailbox rule did not apply without prison-mailing evidence or proper sworn/postmarked proof; thus appeal was timely only as to the August 15 denial |
| Application of prison-mailbox rule to third-party delivery | Government: Mailbox rule requires inmate deposit in prison mail; third-party delivery requires evidentiary proof of timely transmission | Simmons: Relied on emails from a third party and a certificate of service asserting hand-delivery | Court: Mailbox rule inapplicable absent proper proof; Simmons’ emails and belated certificate of service insufficient |
| Substance vs. form of filings (reconsideration treated as new Rule 33 motion) | Government: Late reconsideration should be treated as another Rule 33 motion subject to three-year limit | Simmons: Characterized filing as a timely reconsideration to preserve appeal rights | Court: Substance controls; the late reconsideration was effectively another new-trial motion and therefore barred by the three-year limit |
Key Cases Cited
- United States v. Healy, 376 U.S. 75 (1964) (tolling appeal period by filing posttrial motions)
- United States v. Beard, 745 F.3d 288 (7th Cir. 2014) (posttrial motions toll finality; substance-over-form for successive motions)
- United States v. Rollins, 607 F.3d 500 (7th Cir. 2010) (timeliness of notices and tolling rules)
- Houston v. Lack, 487 U.S. 266 (1988) (prisoner mailbox rule for filing)
- Armstrong v. Louden, 834 F.3d 767 (7th Cir. 2016) (application of mailbox rule and filing date rules)
- Ford v. Wilson, 747 F.3d 944 (7th Cir. 2014) (requirement for evidence supporting mailbox-rule filing when third parties involved)
- Ray v. Clements, 700 F.3d 993 (7th Cir. 2012) (evidentiary support needed to prove timely mailing)
- Redd v. United States, 630 F.3d 649 (7th Cir. 2011) (characterizing late postjudgment filings as new motions)
- Cook v. Stegall, 295 F.3d 517 (6th Cir. 2002) (mailbox rule inapplicable when inmate mails to third party for filing)
- Paige v. United States, 171 F.3d 559 (8th Cir. 1999) (same: third-party mailing does not invoke mailbox rule)