United States v. Frederick Banks ( 2015 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 14-4542
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UNITED STATES OF AMERICA
v.
FREDERICK H. BANKS,
Appellant
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On Appeal from United States District Court
for the Western District of Pennsylvania
(W.D. Pa. No. 2-03-cr-00245-001)
District Judge: Honorable Nora B. Fischer
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Submitted Pursuant to Third Circuit LAR 34.1(a)
June 1, 2015
Before: FISHER, JORDAN and SHWARTZ, Circuit Judges.
(Filed: June 17, 2015)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
FISHER, Circuit Judge.
Frederick Banks appeals the revocation of his term of supervised release and two
collateral rulings of the United States District Court for the Western District of
Pennsylvania. We will dismiss the appeal in part and affirm in part.
I.
We write principally for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts that are necessary
to our analysis.
In 2005, Banks was convicted in the United States District Court for the Western
District of Pennsylvania of a series of charges arising from a scheme in which he sold
pirated versions of copyrighted software (the “03-245 case”). He was sentenced to sixty
months of incarceration and three years of supervised release. We affirmed his conviction
and sentence.1 In 2006, Banks was convicted of a series of mail fraud charges in a
separate prosecution in the Western District of Pennsylvania (the “04-176 case”). He
received a sentence of sixty-three months of incarceration and three years of supervised
release; the terms of incarceration in the two cases ran consecutively, but the terms of
supervised release ran concurrently. We affirmed that conviction and sentence as well.2
In 2013, after being released from incarceration and beginning his terms of
supervised release, the Probation Office filed petitions against Banks in both the 03-245
1
United States v. Vampire Nation, 451 F.3d 189 (3d Cir. 2006).
2
United States v. Banks, 300 F. App’x 145 (3d Cir. 2008).
2
and 04-176 cases alleging that he had committed wire fraud and aggravated identity theft
by submitting false financial information and other persons’ personal identifying
information in four applications to open accounts on a foreign exchange trading website.
The commission of a federal crime violated the conditions of his supervised release terms
and justified revocation of his supervised release. The District Court stayed the petition in
this case, the 03-245 case, while the petition proceeded in the 04-176 case. Banks was
found to have violated the conditions of his supervised release in that case, and his
supervised release was revoked. Banks was sentenced to fourteen months of incarceration
and six months of supervised release at a community correctional center. We affirmed the
revocation of his supervised release and his sentence.3
The District Court then proceeded to adjudicate the revocation proceeding in this
case. Banks waived his right to counsel, and the District Court allowed him to proceed
pro se with standby counsel. The parties agreed that the District Court should decide the
petition on the record created in the 04-176 case. After considering that record, the
District Court found by a preponderance of the evidence that Banks had committed the
federal crimes of wire fraud and aggravated identity theft and that Banks’s supervised
release should be revoked. The court sentenced Banks to time served and no further term
of supervised release, although the supervised release term imposed in the 04-176 case
would remain in effect. Banks timely appealed.
3
United States v. Banks, 572 F. App’x 162 (3d Cir. 2014).
3
II.
We begin by addressing our jurisdiction to hear this appeal. Under Article III of
the Constitution, we only have the power to hear live cases or controversies. A case or
controversy must exist at each stage of the litigation, including appellate review.4 When
the revocation of supervised release is challenged, “a litigant who is unconditionally
released from custody must show that she will, in fact, suffer collateral consequences
from the supervised release revocation to present a live case or controversy.”5
In this case, Banks received only time served and no further term of supervised
release as a result of the revocation of his supervised release. Although Banks is still
subject to a term of supervised release, it is in the 04-176 case. Accordingly, because
Banks is not subject to a term of custody in this case and he cannot show any collateral
consequences from the revocation of this case’s term of supervised release,6 no live case
or controversy exists with respect to his challenge to the revocation of his supervised
release. Therefore, we must dismiss his appeal to the extent he challenges the revocation
of his supervised release.
4
United States v. Huff, 703 F.3d 609, 611 (3d Cir. 2013). That the United States
did not raise this issue is irrelevant. We must assure ourselves of jurisdiction regardless
of whether a party raises it. See United States v. Weatherspoon, 696 F.3d 416, 421 (3d
Cir. 2012).
5
Huff, 703 F.3d at 612.
6
Even were this revocation to be vacated, the revocation for the same conduct in
the 04-176 case has already been affirmed and is final. Any hypothetical collateral
consequences that arose already arose when Banks’s supervised release was revoked in
the 04-176 case.
4
However, Banks also challenges two collateral rulings the District Court made in
adjudicating the petition to revoke his supervised release. First, he complains that the
United States has taken and not returned two cars he purchased, a Ferrari and a BMW.
The District Court found that the United States did not possess the Ferrari, and that
finding is not clearly erroneous. And Banks did not bring up the alleged taking of the
BMW before the District Court, so we will not consider it. Second, Banks complains
about the alleged existence of a Foreign Intelligence Surveillance Court warrant for
electronic surveillance directed at him. The District Court found that, aside from Banks’s
uncorroborated assertion, there was no evidence that such a warrant existed, and that
finding is also not clearly erroneous.7
Therefore, we will dismiss Banks’s appeal in part and affirm in part.
7
Banks also attached several documents in this appeal, but none provides a basis
for relief. For instance, Banks submits documents that contest the District Court’s denial
of his request for compensation for having been imprisoned on the basis of a
supplemental petition submitted by the Probation Office. This argument is frivolous, as
he served no jail time on the basis of the supplemental petition, and in any event, as we
have informed Banks at least twice before, he is unable to “assert civil claims for
damages in [a] criminal case.” United States v. Banks, 582 F. App’x 86, 87 (3d Cir. 2014)
(per curiam). Banks also attaches a series of documents pertaining to his earlier failed
attempts to disqualify the U.S. Attorney’s Office from this case. Any effort to appeal
rulings on this subject are untimely.
5