United States of America v. Andrew J. Johnston

NONPRECEDENTIAL DISPOSITION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 June 26, 2024*
Decided June 27, 2024
Before
F RANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON , Circuit Judge
THOMAS L. K IRSCH II, Circuit Judge
No. 24-1515
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A NDREW J. JOHNSTON ,
Defendant-Appellant.
Appeal from the United States
District Court for the Northern
District of Illinois, Eastern Division.
No. 1:17-cr-00517
Rebecca R. Pallmeyer,
Chief Judge.
O R D E R
Andrew Johnston has filed a multitude of post-judgment motions in his criminal
case. Last year we warned him that further frivolous motions would lead to an order
under Alexander v. United States, 121 F.3d 312 (7th Cir. 1997). See United States v.
Johnston, No. 23-2792 (7th Cir. Nov. 27, 2023).
The warning was ineffectual. Johnston is back with another appeal, this time
contending that he is entitled to relief under Fed. R. Civ. P. 60(b) because he has
evidence justifying a new trial. A similar motion was filed in 2022, under Fed. R. Crim.
* This successive appeal has been submitted to the original panel under Operating Procedure 6(b). We
have unanimously agreed to decide this case without argument because the brief and record adequately
present the facts and legal arguments, and argument would not significantly aid the court. See Fed. R.
App. P. 34(a)(2)(C).

-- 1 of 2 --

No. 24-1515 Page 2
P. 33, and denied. Related arguments also were advanced in an unsuccessful collateral
attack under 28 U.S.C. §2255. The three-year time limit under Rule 33 has expired, as we
informed Johnston last November, but this did not deter him from citing a different rule
in support of the same arguments. The district court denied his motion in a brief order.
We do not address the merits of this motion. It is a disguised collateral attack on
the judgment, which goes nowhere because Johnston has not received (or for that
matter sought) this court’s permission. See 28 U.S.C. §2255(h), incorporating 28 U.S.C.
§2244. Criminal Rule 33 provides an alternative to §2255 in some situations, but that
rule is no longer available to Johnston. Civil Rule 60 is not a means to evade limits on
Criminal Rule 33 or collateral review. See Gonzalez v. Crosby, 545 U.S. 524 (2005). The
district court was obliged to deny the motion, as it did.
Because Johnston did not heed our warning, we now fine him $1,000. Until the
fine is paid, this court will treat any further post-judgment appeals in this criminal case
as summarily affirmed on the 30th day after filing. The district court likewise may
choose to deem Johnston’s motions denied without the need for an explanation. He has
received quite enough judicial attention to these frivolous motions.
Any request for permission to file a successive collateral attack will be
distributed to this panel for review, and a non-frivolous request will be addressed on
the merits. We stress “non-frivolous”. A frivolous request will be deemed denied on the
30th day under the Alexander procedure.

-- 2 of 2 --