USA v. Anthony Simmons

Filing

Filed Nonprecedential Disposition PER CURIAM. The district court's judgment is AFFIRMED. Simmons also has moved for default judgment and to renew bail pending appeal. Those motions are DENIED. Diane P. Wood, Chief Judge; Richard A. Posner, Circuit Judge and Frank H. Easterbrook, Circuit Judge. [6829083-2] [6815996-2] [6835374-1] [6835374] [16-3315]

Case: 16-3315

Document: 33
Filed: 04/20/2017
Pages: 3
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604

Submitted April 13, 2017 *
Decided April 20, 2017
Before
DIANE P. WOOD, Chief Judge
RICHARD A. POSNER, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
No. 16-3315
UNITED STATES OF AMERICA,
Plaintiff-Appellee,

Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.

v.

No. 10 CR 820

ANTHONY SIMMONS,
Defendant-Appellant.

Amy J. St. Eve,
Judge.
ORDER

Anthony Simmons appeals the denial of his request for a new trial, see FED. R.
CRIM. P. 33. Simmons had orchestrated schemes to defraud distressed homeowners
facing foreclosure, and in April 2013 a jury found him guilty of wire fraud, 18 U.S.C.
§ 1343, bankruptcy fraud, id. § 157, and falsifying records in a bankruptcy proceeding,
id. § 1519. See United States v. Simmons, 606 F. App’x 848 (7th Cir. 2015). Simmons did not

We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
*

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request a new trial until more than three years later, and the district court denied both
this request and a subsequent request for reconsideration as untimely. We affirm.
In his motion for a new trial, filed in April 2016, Simmons alleged that newly
discovered evidence showed that the government introduced at trial three “false” pieces
of evidence. These included a stipulation describing three interstate electronic wire
transfers of mortgage-loan funds related to properties involved in the scheme; alleged
testimony that Simmons was a “bankruptcy preparer”; and a chart summarizing the
mortgages and bank transactions related to the properties. On July 29 the district court
denied the motion. Accepting the arguments put forth by the government, the court
concluded that Simmons had not identified any relevant evidence that was newly
discovered, and thus had brought his motion far outside the fourteen-day window for
seeking a new trial based upon other grounds, see FED. R. CRIM. P. 33(b)(2). Even if the
motion were based on newly discovered evidence, the court added, it was filed one day
past the three-year window for that type of motion, see FED. R. CRIM. P. 33(b)(1). On the
merits, the court continued, Simmons would fail because the evidence was within his
own knowledge at the time of trial and could have been discovered with due diligence.
Simmons filed a motion for reconsideration seventeen days later, on August 15,
2016. He attached to the motion a certificate of service, signed that day, stating that the
motion was being hand-delivered to the courthouse by a relative or friend. In the
motion, Simmons did not contest the issue of timeliness and instead largely repeated the
allegations in his motion for a new trial and blamed his attorney for failing to uncover
new evidence. The district court summarily denied the motion that same day.
On August 29 Simmons filed a notice of appeal, and in his appellate brief he
asserts that his motion for a new trial was timely. His motion was timely, he says,
because the three-year deadline fell on a Sunday and he filed his motion the following
day, as permitted by FED. R. CRIM. P. 45(a)(1)(C). But as the government points out,
Simmons’s August 29 notice of appeal was timely only with regard to the district court’s
August 15 denial of his motion for reconsideration. See FED. R. APP. P. 4(b)(1)(A). Under
Rule 4(b)(1)(A), Simmons had fourteen days to appeal the July 29 denial of his motion
for a new trial, and this deadline he did not meet. Filing a motion for reconsideration
within those fourteen days would have rendered the district court’s decision nonfinal
and restarted the time for filing a notice of appeal. See United States v. Healy, 376 U.S. 75,
78–80 (1964); United States v. Beard, 745 F.3d 288, 291 (7th Cir. 2014); United States v.
Rollins, 607 F.3d 500, 501–02 (7th Cir. 2010). But Simmons filed his motion three days
beyond that window.

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Simmons argues that his motion for reconsideration should be deemed timely
under the “prison mailbox rule” because he e-mailed the motion within fourteen days to
a family member who later hand-delivered the motion to the court. Under the mailbox
rule, however, the filing date for inmates is the date when they place the document in the
prison mail system. See FED. R. APP. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 271 (1988);
Armstrong v. Louden, 834 F.3d 767, 769 (7th Cir. 2016). But even if the mailbox rule were to
apply to a situation where a prisoner sends the motion to a third party for delivery,
see, e.g., Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002) (mailbox rule inapplicable when
inmate mailed habeas corpus petition to third party); Paige v. United States, 171 F.3d 559,
561 (8th Cir. 1999) (same), Simmons had to establish timely filing through a sworn
declaration, 28 U.S.C. § 1746, notarized statement, or other evidence such as a postmark,
see FED. R. APP. P. 4(c)(1)(A). See Ford v. Wilson, 747 F.3d 944, 948 (7th Cir. 2014); Ray v.
Clements, 700 F.3d 993, 1012 (7th Cir. 2012). Simmons submitted two e-mails from an
unidentified person saying that an unidentified document could not be delivered before
the courthouse closed. But neither of these attachments complies with Rule 4(c);
moreover, Simmons signed and dated the certificate of service three days after the date
he allegedly e-mailed the motion.
Because Simmons did not file his motion to reconsider within fourteen days of the
district court’s underlying decision, it is in substance another motion for a new trial,
see Beard, 745 F.3d at 291; United States v. Redd, 630 F.3d 649, 650 (7th Cir. 2011), which if
based on newly discovered evidence had to be filed within three years of the jury’s
verdict, see FED. R. CRIM. P. 33(b)(1). Simmons did not file his motion until nearly four
months past that three-year limit; his motion was therefore untimely.
Accordingly, the district court’s judgment is AFFIRMED. Simmons also has
moved for default judgment and to renew bail pending appeal. Those motions are
DENIED.