United States v. Banks ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
6-20-2006
USA v. Banks
Precedential or Non-Precedential: Precedential
Docket No. 05-1715
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"USA v. Banks" (2006). 2006 Decisions. Paper 790.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/790
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-1715
UNITED STATES OF AMERICA
v.
VAMPIRE NATION
a/k/a
FREDRIK VON HAMILTON
a/k/a
FREDERICK HAMILTON BANKS
Frederick H. Banks,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 03-cr-00245)
District Judge: Honorable Thomas M. Hardiman
Argued: May 16, 2006
Before: RENDELL, VAN ANTWERPEN, and WEIS,
Circuit Judges.
(Filed June 20, 2006)
David B. Chontos (Argued)
Chontos & Chontos, P.C.
561 Beulah Road
Turtle Creek, PA 15145
Counsel for Appellant
Mary Beth Buchanan
Laura Schleich Irwin (Argued)
Office of the United States Attorney
United States Post Office and Courthouse
7th Avenue & Grant Street
Pittsburgh, PA 15219
Counsel for the United States
____
OPINION OF THE COURT
VAN ANTWERPEN, Circuit Judge.
On October 14, 2004, a jury in the Western District of
Pennsylvania convicted Frederick Banks on charges of mail fraud,
criminal copyright infringement, uttering and possessing
counterfeit or forged securities, and witness tampering. These
convictions stemmed from Banks’s sales of illegally copied
(“pirated”) versions of copyrighted Microsoft software products
through an Internet marketplace website, Amazon.com. Following
his conviction, the District Court, on February 25, 2005, imposed
on Banks a sentence that varied upward by three months from the
advisory sentence range set forth in the United States Sentencing
Guidelines (“Guidelines”), and, on the Government’s motion, also
issued an in personam forfeiture judgment in the amount of
Banks’s mail fraud proceeds.
Before us now is Banks’s appeal from his conviction and
sentence, in which he asserts numerous claims of error based on the
District Court’s actions before his trial, on events occurring at his
trial, and on the District Court’s actions at his sentencing. Banks
was sentenced after the Supreme Court announced its landmark
decision in United States v. Booker, 543 U.S. 220 (2005).
Of the seven issues Banks raises on appeal, two are novel to
2
this Court. First, Banks raises the question whether the District
Court was obligated to provide him with advance notice under
Federal Rule of Criminal Procedure 32(h) of its intent, under
Booker, to vary its sentence from the advisory sentence range set
forth in the Guidelines. Second, Banks questions whether the
District Court had statutory authority to order an in personam
forfeiture judgment against him for the amount of the proceeds he
obtained through his mail fraud.
As we explain below, we find no error in the District
Court’s actions before, during, or after Banks’s trial or at his
sentencing. Furthermore, we conclude the District Court had
statutory authority to issue the in personam forfeiture judgment and
was not obligated to provide advance notice of its intent to vary
from Banks’s Guidelines sentencing range. Accordingly, we will
affirm Banks’s convictions and sentence in their entirety.
I.
In setting forth the facts of this case, we construe them in
the light most favorable to the Government, as we must following
the jury’s guilty verdict. Glasser v. United States, 315 U.S. 60, 80
(1942). According to the evidence adduced at trial, in 2002 Banks
opened a seller’s account on Amazon.com, an on-line marketplace,
using the names Rick Burgess and John Cain. When Banks opened
these accounts, Amazon.com informed him that only full retail
versions of software products could be sold through his account
and that sales of copied or duplicated software were prohibited.
Banks then posted for sale on his account various Microsoft
products, for which products he set prices and posted additional
information concerning the products’ condition. Through his
seller’s account, Banks sold copies of Microsoft products to a
variety of buyers from 2002 into 2003. These buyers suspected
that the software they purchased from Banks was illegally copied
because the compact discs (“CDs”) they received from Banks
contained generic white CDs with fake labels and fake package
inserts.
By 2003, Amazon.com had received several complaints
3
about Banks’s activities. In January, 2003, Amazon.com informed
Banks it was blocking his account because of reports of buyers
receiving “recopied” Microsoft software.
Banks then opened a new seller’s account on Amazon.com
under the name Mark Howard. Using this new account, Banks
posted additional advertisements offering various Microsoft
products for sale. One buyer, Action Software, Inc., purchased a
total of $294,859.00 of Microsoft products from Banks. Action
Software expected to receive 50 boxes of product, but only 5 boxes
of product arrived via United Parcel Service (“UPS”), which boxes
contained CDs with the IBM name on them. After opening one of
these boxes, Action Software’s representative, Samantha Belfer,
concluded the company had been defrauded. However, because
Banks had sent the CDs cash-on-delivery, Belfer had already given
UPS a check for $49,000.00 made out to Banks in exchange for the
CDs.
After Banks denied knowledge of the IBM CDs, Belfer
contacted the Federal Bureau of Investigation (“FBI”), which
initiated an investigation. FBI agents went to Banks’s residence,
whereupon Banks informed them he had no knowledge of why
Action Software did not receive its Microsoft products.
In May, 2003, the FBI obtained a search warrant for Banks’s
residence. A search of the residence revealed computers, blank
CDs, a CD duplicating machine, and empty boxes from Microsoft
and IBM software. The FBI also searched the contents of Banks’s
computers, which contents included images of the front and back
sides of Microsoft software boxes.
Meanwhile, Banks continued to sell alleged Microsoft
software and approached VioSoftware, a Colorado-based reseller
of software from which Banks had purchased a Microsoft product
in 2002. Banks convinced Warren Do, the chief executive officer
of VioSoftware, to sell him $58,661 of Microsoft software. Banks
told Do he needed the products immediately, and Do agreed to
accept cash on delivery in lieu of advance payment.
VioSoftware then sent Banks a partial shipment via Federal
4
Express on August 28, 2003, and Banks presented Federal Express
with a check for $58,661 and made payable to VioSoftware, which
check was actually fake. When Do received the fake check, he
contacted Banks to tell him that he wanted VioSoftware’s products
returned and that he knew the check was a fake and had spoken to
the FBI. On September 3, 2003, Banks responded that he would
return the products if Do would return the fake check to him. Do
agreed to return Banks’s fake check upon receipt of VioSoftware’s
products.
On that same date, Do received a subpoena from a grand
jury in the Western District of Pennsylvania. The next day, Do
received only a partial shipment from Banks. Do then emailed
Banks to inform him that he had been subpoenaed, that he had
spoken with the FBI, and again requested the return of
VioSoftware’s products. On September 17, Do emailed Banks:
“I spoke to them on Monday again and told them the truth.
I told them I was trying to work it out with you and if you
paid me back for everything you owe I would send the
check back to you. I’m supposed to call them in a few days
to give them a status.”
S. App. 55. Banks responded:
“Please don’t give them any information they can still
supeana [sic] you if you do! and this would all be for
nothing. it’s up to you of course but I would prefer that.
let’s consider that we owe you and are working off a
credit.”
S. App. 55. Banks eventually sent Do a package, but the package
contained only damaged materials. In the meantime, Banks sold to
other buyers some of the software he had obtained from
VioSoftware.
Based on information that Do supplied, the FBI searched
Banks’s residence a second time on September 29, 2003. That
search uncovered additional evidence of software piracy, including
computers and Microsoft software products and packages.
5
On October 7, 2003, a grand jury returned a five-count
indictment against Banks. A superseding indictment issued on
May 4, 2004, adding counts of uttering and possessing counterfeit
or forged securities, and on August 10, 2004, a grand jury returned
a second superseding indictment charging Banks with three counts
of mail fraud, 18 U.S.C. § 1341 (Counts One, Two, and Three);
one count of copyright infringement, 17 U.S.C. § 506(a)(1) and 18
U.S.C. § 2319(b)(1) (Count Four); one count of money laundering,
18 U.S.C. § 1957 (Count Five); one count of uttering and
possessing counterfeit and forged securities, 18 U.S.C. § 513(a)
(Count Six); and one count of witness tampering, 18 U.S.C. §
1512(b)(2)(A) (Count Seven). The second superseding indictment
also contained forfeiture allegations relating to, inter alia, Banks’s
alleged mail fraud.
The case then proceeded to trial, and after ten days of
testimony, on October 14, 2004, the jury found Banks guilty on all
seven counts. At the close of trial, Banks moved for acquittal,
which motion the District Court denied. Before sentencing, the
Government filed a motion for an in personam money judgment
against Banks, alleging Banks had “acquired the sum of $70,708.59
from his violation of 18 U.S.C. § 1341.” App. 1442-43.
At sentencing on February 25, 2005, the District Court heard
oral argument on the in personam forfeiture judgment issue, at
which Banks’s counsel claimed the District Court lacked statutory
authority to impose such a judgment. The District Court observed
that there was no controlling case law on the question whether the
Government was entitled to an in personam money judgment
without specific reference to any forfeitable property.
Following argument, the District Court sentenced Banks.
Banks’s advisory Guidelines sentence range was 46-57 months, but
the District Court, after considering this advisory range, the
grounds raised by the parties and the factors set forth in 18 U.S.C.
§ 3553(a), sentenced Banks to 60 months imprisonment and three
years’ supervised release. App. 2. The District Court also ordered
an in personam forfeiture judgment against Banks for $70,708.59,
the amount of Banks’s mail fraud proceeds. App. 1444. This
6
timely appeal followed.
II.
We have jurisdiction over the District Court’s Order of
judgment and conviction pursuant to 28 U.S.C. § 1291. We have
jurisdiction to review Banks’s sentence pursuant to 28 U.S.C. §
3742(a). United States v. Cooper, 437 F.3d 324, 327 (3d Cir.
2006).
III.
A.
We first address whether, after United States v. Booker, 543
U.S. 220 (2005), Rule 32(h) required the District Court to provide
advance notice of its intent to impose a sentence that varied from
the advisory Guidelines range. Although Banks’s advisory
Guidelines sentencing range was 46-57 months, the District Court
imposed a sentence of 60 months. The District Court did not,
however, make a formal departure from the Guidelines sentencing
range.
In his brief, Banks contended that the District Court erred by
varying its sentence upward and failing to provide advance notice
of its intention to do so. Banks alleged this failure to provide
advance notice was a violation of Fed.R.Crim.P. 32(h).1 Banks Br.
at 39. In its brief, the Government correctly observed that Banks
did not object to his sentence and took the position that Banks
could not establish plain error because he failed to state what, if
1
Rule 32(h) states,
“Before the court may depart from the applicable sentencing
range on a ground not identified for departure either in the
presentence report or in a party’s prehearing submission, the
court must give the parties reasonable notice that it is
contemplating such a departure. The notice must specify any
ground on which the court is contemplating a departure.”
7
anything, he would have done differently at sentencing had he had
advance notice of the District Court’s intent to vary from the
advisory Guidelines sentence. Gov’t Br. at 45.
The parties, however, took somewhat different positions at
oral argument. Banks’s counsel conceded at that time that the
District Court’s sentence in this case was a “variance” based on an
exercise of its discretion under Booker and the factors set forth in
18 U.S.C. § 3553(a), and conceded that because the District Court
had engaged in a variance and not a departure under the
Guidelines,2 Rule 32(h) was not triggered and advance notice of the
variance was unnecessary. The Government took the position that
district courts should provide advance notice of their intent to vary
from a Guidelines sentencing range, regardless of whether that
variance is upward or downward. Our review of Booker’s effect
on Rule 32 and evolving sentencing jurisprudence leads us to
conclude the District Court was not obligated to provide Banks
with advance notice of the 3-month upward variance in his
sentence, where that variance was based on application of the §
3553(a) factors under Booker and not on a departure from the
Guidelines.
Rule 32(h) was a response to the Supreme Court’s decision
in Burns v. United States, 501 U.S. 129 (1991), where the Court
held that an earlier version of Rule 32 required district courts to
give defendants advance notice before engaging in sua sponte
upward departures from Guidelines sentences. Id. at 136; United
States v. Walker, 447 F.3d 999, 1006 (7th Cir. 2006). Rule 32(h)
was adopted at a time when courts could only avoid a Guidelines
range by departing from the Guidelines. However, the Supreme
Court made clear in Booker that the Guidelines are now advisory.
Thus, district courts, post-Booker, exercise broad discretion in
imposing sentences, so long as they begin with a properly
2
For lexicographic purposes, we adopt the Eighth Circuit’s
terminology from United States v. Sitting Bear, 436 F.3d 929 (8th
Cir. 2006), where that court described post-Booker discretionary
sentences not based on a specific Guidelines departure provision as
“variances.” Id. at 932-33.
8
calculated Guidelines range, fully consider the broad range of
factors set forth in 18 U.S.C. § 3553(a),3 and all grounds properly
advanced by the parties at sentencing. See Cooper, 437 F.3d at
329-30. Thus, district courts continue to consider all grounds
properly advanced by the parties at sentencing, as they did in the
past, and they continue to consider the Guidelines range, which is
now advisory. What has changed post-Booker, is that sentencing
is a discretionary exercise, and now includes a review of the factors
set forth in § 3553(a). These factors are known prior to sentencing.
Because defendants are aware that district courts will consider the
factors set forth in § 3553(a), we believe the element of “unfair
surprise” that Burns sought to eliminate is not present. See Walker,
447 F.3d at 1007 (observing that “defendants are on notice post-
Booker that sentencing courts have discretion to consider any of
the factors specified in § 3553(a)”); cf. United States v. Vaughn,
3
Under 18 U.S.C. § 3553(a), the relevant factors to be
considered at sentencing are:
“(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed-
(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense;
(B) to afford adequate deterrence to criminal
conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed
educational or vocational training, medical care, or
other correctional treatment in the most effective
manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range
established for . . . the applicable category of offense
committed by the applicable category of defendant as set
forth in the guidelines. . . .”
9
430 F.3d 518, 524 (2d Cir. 2005) (concluding application of
Booker to cases on direct review was not ex post facto violation,
observing that “[j]ust as appellants had fair warning that their
conduct was criminal, they also had fair warning of the potential
penalties they faced. . .”). Thus, in the words of the Seventh
Circuit, “[n]ow that Booker has rendered the Guidelines advisory,
the concerns that animated the Court’s decision in Burns no longer
apply.” Walker, 447 F.3d at 1006. Accordingly, given that
defendants are aware that courts will consider the broad range of
factors set forth in § 3553(a) at sentencing, we perceive none of the
“unfair surprise” considerations that motivated the enactment of
Rule 32(h).
Furthermore, the requirement of Rule 32(h) that the court
specify “any ground” of contemplated departure from the
Guidelines range was designed for pre-Booker departures, which
were constrained by the provisions of the Guidelines pertaining to
departures. See Guidelines Chapter 5, Part K. The Guidelines
have now become advisory and they no longer limit the grounds a
court can consider at sentencing. Thus, the Guidelines are now
only one factor among many which can influence a discretionary
sentence. Application of the advance notice requirement of Rule
32(h) to discretionary sentence would elevate the advisory
sentencing range to a position of importance that it no longer can
enjoy. See Cooper, 437 F.3d at 331 (rejecting argument that a
within-Guidelines sentence was necessarily reasonable and
observing that holding otherwise “would come close to restoring
the mandatory nature of the guidelines excised in Booker”) (citing
United States v. Crosby, 397 F.3d 103, 115 (2d Cir. 2005)).
Booker contemplates that the district court will impose a
discretionary sentence after consideration of the advisory
Guidelines, the grounds raised by counsel, the defendant’s
allocution, victim statements,4 other evidence, and the factors set
4
The right of victims to be heard is guaranteed by the Crime
Victims’ Rights Act (“CVRA”), Pub. L. No. 108-405, §§ 101-104
(2004) (codified at 18 U.S.C. § 3771). The right is in the nature of
an independent right of allocution at sentencing. See 18 U.S.C. §
10
forth in § 3553(a). Cooper, 437 F.3d at 332. Booker does not
contemplate that the court will somehow arrive at its sentence prior
to sentencing, and requiring advance notice of “any ground”
beyond the factors set forth in § 3553(a) would undoubtedly prove
to be unworkable.
The First, Seventh, Eighth, and Eleventh Circuits have all
concluded that, post-Booker, a sentencing court need not provide
advance notice of a variance – based on a review of the case’s
history and considerations of the § 3553(a) factors – from an
advisory Guidelines sentence.5 United States v. Mateo, 2006 WL
1195676, at *1 (1st Cir. May 5, 2006) (unpublished) (district
court’s failure to provide advance notice of variance not plain
error); Walker, 447 F.3d at 1006-07; United States v. Egenberger,
424 F.3d 803, 805 (8th Cir.), cert. denied, 126 S. Ct. 1106 (2006)
3771(a)(4) (affording victims a “right to be reasonably heard at any
public proceeding in the district court involving release, plea,
sentencing, or any parole proceeding”). Under the CVRA, courts
may not limit victims to a written statement. See Kenna v. United
States District Court, 435 F.3d 1011, 1017 (9th Cir. 2006)
(Kozinski, J.) (“Limiting victims to written impact statements,
while allowing the prosecutor and the defendant the opportunity to
address the court, would treat victims as secondary participants in
the sentencing process. The CVRA clearly meant to make victims
full participants.”). Given that it would be impossible to predict
what statements victims might offer at sentencing, it would be
unworkable to require district courts to provide advance notice of
their intent to vary their discretionary sentence based on victim
statements that had not yet been made.
5
We recognize that two other circuits have held to the
contrary. United States v. Davenport, 445 F.3d 366, 371 (4th Cir.
2006); United States v. Dozier, 444 F.3d 1215, 1216-17 (10th Cir.
2006). While according due respect to the decisions of our sister
Circuits, we reiterate that our conclusion is consonant with the fact
that post-Booker, defendants are on full notice that a sentencing
court will consider the § 3553(a) factors and in doing so, may
exercise its discretion to vary from a Guidelines sentence in a way
that is not based on a specific Guidelines departure provision.
11
(notice under Rule 32(h) not required where “the court properly
calculated the advisory Guidelines range, and only then, after
considering all of the additional § 3553(a) factors as required by
Booker, did the district court enter a sentence that was above the
advisory Guidelines range); United States v. Simmerer, 156 Fed.
Appx. 124, 127-28 (11th Cir. 2005) (post-Booker, failure to give
prior notice under Rule 32(h) of a contemplated upward “variance”
from the Guidelines sentencing range not plain error). We join
these courts of appeals and conclude Banks was not entitled to
advance notice under Rule 32(h) of the District Court’s intent to
vary its sentence from the advisory Guidelines sentencing range
where that variance was based on the Court’s discretion under
Booker and § 3553(a) and not on a departure from the advisory
Guidelines range. Nevertheless, if a court is contemplating a
departure, it should continue to give notice as it did before Booker,
see Cooper, 437 F.3d at 327, and district courts should be careful
to articulate whether a sentence is a departure or a variance from an
advisory Guidelines range.6
B.
In his next claim of error, Banks argues the District Court
erred by issuing an in personam forfeiture judgment against him in
the amount of $70,708.59, in direct relation to the proceeds of his
mail fraud crimes. Banks takes the position that (1) the District
Court lacked statutory authority under 28 U.S.C. § 2461(c) to issue
a criminal forfeiture of his mail fraud proceeds; and (2) the District
Court could not issue a forfeiture order for an amount that
exceeded Banks’s available assets at the time of sentencing. These
are both issues of first impression in this Court. Because these
issues present questions of law, we exercise plenary review.
United States v. Ledesma-Cuesta, 347 F.3d 527, 530 (3d Cir.
2003).
1.
6
While Banks does not raise the issue on appeal, we are
satisfied the District Court engaged in sufficient review of the
§ 3553(a) factors. See Cooper, 437 F.3d at 329.
12
To place the issue of the District Court’s statutory authority
to issue the in personam forfeiture judgment in perspective, we
consider the applicable statutory framework. In the second
superseding indictment and its motion for a forfeiture judgment,
the Government relied upon 28 U.S.C. § 2461(c) as grounds for
obtaining criminal forfeiture of the proceeds of Banks’s mail fraud
proceeds.7 The applicable edition of that statute reads,
“If a forfeiture of property is authorized in connection with
a violation of an Act of Congress, and any person is charged
in an indictment or information with such violation but no
specific statutory provision is made for criminal forfeiture
upon conviction, the Government may include the forfeiture
in the indictment or information in accordance with the
Federal Rules of Criminal Procedure, and upon conviction,
the court shall order the forfeiture of the property in
accordance with the procedures set forth in section 413 of
the Controlled Substances Act (21 U.S.C. 853), other than
subsection (d) of that section.”
28 U.S.C. § 2461(c).8
7
Section 2461(c) is part of the Civil Asset Forfeiture Reform
Act of 2000 (“CAFRA”), Pub L. 106-185, § 16.
8
We observe that § 2461(c) was amended on March 9, 2006,
and now states:
“If a person is charged in a criminal case with a violation of
an Act of Congress for which the civil or criminal forfeiture
of property is authorized, the Government may include
notice of the forfeiture in the indictment or information
pursuant to the Federal Rules of Criminal Procedure. If the
defendant is convicted of the offense giving rise to the
forfeiture, the court shall order the forfeiture of the property
as part of the sentence in the criminal case pursuant to the
Federal Rules of Criminal Procedure and section 3554 of
title 18, United States Code. The procedures in section 413
of the Controlled Substances Act (21 U.S.C. 853) apply to
13
As pertains to mail fraud proceeds, criminal forfeiture for
such proceeds is specifically authorized when special
circumstances are present, such as when the mail fraud affects a
financial institution, see 18 U.S.C. § 982(a).9 Because no financial
institution was involved in this case, the Government accordingly
seeks criminal forfeiture for Banks’s mail fraud proceeds under 28
U.S.C. § 2461(c) through the civil forfeiture provision, 18 U.S.C.
§ 981(a)(1)(C),10 which does not require any special circumstances
all stages of a criminal forfeiture proceeding, except that
subsection (d) of such section applies only in cases in which
the defendant is convicted of a violation of such Act.”
9
In relevant part, 18 U.S.C. § 982 states,
Ҥ 982. Criminal forfeiture
(a)(1) The court, in imposing sentence on a person
convicted of an offense in violation of section 1956, 1957,
or 1960 of this title, shall order that the person forfeit to the
United States any property, real or personal, involved in
such offense, or any property traceable to such property.
(2) The court, in imposing sentence on a person convicted
of a violation of, or a conspiracy to violate--
(A) section . . . 1341 [mail fraud] . . . of this title,
affecting a financial institution . . . .”
10
In relevant part, 18 U.S.C. § 981 states,
Ҥ 981. Civil forfeiture
(a)(1) The following property is subject to forfeiture to the
United States:
(C) Any property, real or personal, which constitutes
or is derived from proceeds traceable to a violation
of . . . any offense constituting “specified unlawful
14
as a prerequisite to forfeiture for mail fraud crimes.
Banks contends that 28 U.S.C. § 2461(c) does not authorize
such forfeiture because 18 U.S.C. § 982(a)(2)(A) provides for
criminal forfeiture only in specific circumstances of mail fraud
(i.e., mail fraud perpetrated against financial institutions) and no
such circumstances are present here. Banks Br. at 48. As support
for his argument, Banks cites to a district court opinion, United
States v. Croce, 345 F. Supp. 2d 492 (E.D. Pa. 2004) (“Croce II”),
in which that court stated, “18 U.S.C. § 982(a)(2)(A) is a specific
statutory provision made for criminal forfeiture upon conviction of
mail fraud . . . so [28 U.S.C.] § 2461(c) does not authorize us to
order criminal forfeiture of mail fraud proceeds.” Id. at 496; see
also id. at n.9. Thus, we must resolve whether 28 U.S.C. § 2461(c)
authorizes criminal forfeiture of mail fraud proceeds that are not
the result of mail fraud perpetrated against a financial institution.
To interpret the statute, we begin with its plain language.
In re Armstrong World Indus., Inc., 432 F.3d 507, 512 (3d Cir.
2005). Ascribing plain meaning to the words of 28 U.S.C. §
2461(c), criminal forfeiture is not permitted unless (1) a substantive
provision exists for civil forfeiture of the criminal proceeds at
issue; and (2) there is no specific statutory provision that permits
criminal forfeiture of such proceeds. Thus, we read the statute,
enacted eight years after Congress last amended 18 U.S.C. §
982(a)(2), as a “bridge” or “gap-filler” between civil and criminal
forfeiture, in that it permits criminal forfeiture when no criminal
forfeiture provision applies to the crime charged against a
particular defendant but civil forfeiture for that charged crime is
nonetheless authorized. Accordingly, under our reading, § 2461(c)
permits criminal forfeiture for general mail fraud because (1) 18
activity” (as defined in section 1956(c)(7) of this
title), or a conspiracy to commit such offense.”
Section 1956(c)(7) of Title 18 in turn references the offenses
identified in 18 U.S.C. § 1961(1), which list of offenses includes
mail fraud without any limitation to mail fraud perpetrated against
financial institutions.
15
U.S.C. § 981(a)(1)(C) authorizes civil forfeiture for general mail
fraud; and (2) no statutory provision specifically authorizes
criminal forfeiture for general mail fraud.11 See United States v.
Schlesinger, 396 F. Supp. 2d 267, 275 (E.D.N.Y. 2005) (construing
§ 2461(c) as “a broad ‘gap-filler’” that enables criminal forfeiture
when civil forfeiture is permitted).
The district court in Croce II, on which case Banks relies,
took a different, more restrictive view of § 2461(c). That court
concluded that by drafting 18 U.S.C. § 982(a)(2)(A) to permit
criminal forfeiture only for mail fraud carried out against financial
institutions, Congress had concluded that criminal forfeiture for
mail fraud was “only appropriate when the mail fraud affected a
financial institution.” 345 F. Supp. 2d at 496 n.9. In that court’s
view, “[i]t seems highly unlikely that, in passing the broad
language of § 2461(c), Congress intended to silently remove the
limitations on criminal forfeiture in mail fraud cases that it had
carefully inserted into § 982(a)(2)(A).” Id.
Although Croce II presents a plausible construction of the
statute, we are not persuaded. Section 2461(c) authorizes criminal
forfeiture where “a forfeiture is authorized in connection with a
violation of an Act of Congress,” which Act in this case is the civil
forfeiture statute, 18 U.S.C. § 981. Section 981 in turn permits
forfeiture of proceeds from the crimes identified in 18 U.S.C. §
1956(c)(7). Section 1956(c)(7) in turn includes the list of crimes
set forth in 18 U.S.C. § 1961(1), which list of crimes includes
“mail fraud,” not only mail fraud “affecting a financial institution.”
Accordingly, we read the plain language of § 2461(c), by virtue of
11
Thus, § 2461(c) would not by itself enable criminal
forfeiture proceeds from mail fraud against financial institutions,
because a statutory provision for criminal forfeiture of proceeds
from that kind of mail fraud, 18 U.S.C. § 982(a)(2)(A), already
exists. See United States v. Thompson, 2002 WL 31667859, at *2
(N.D.N.Y. Nov. 26, 2002) (disallowing criminal forfeiture of drug
crime proceeds under § 2461(c) because charged drug crime had
associated statutory provision for criminal forfeiture upon
conviction).
16
the chain of cross-references leading to § 1956(c)(7) and §
1961(1), to explicitly permit criminal forfeiture for general mail
fraud, not just for mail fraud against financial institutions. See
United States v. Lebed, 2005 WL 2495843, at *8 (E.D. Pa. Oct. 7,
2005) (concluding that “by virtue of the cross reference from the
civil forfeiture statute to the money laundering statute (§
1956(c)(7)) and its cross reference to the RICO statute [§ 1961(1),
listing crimes including general mail fraud], criminal forfeiture
may now be invoked for general instances of mail and wire fraud,
since these crimes do not contain any specific statutory provisions
for criminal forfeiture.”). Were we to conclude otherwise, we
would be ignoring § 2461(c)’s cross-reference to a list of crimes
that includes general mail fraud, and we are mindful that “[i]t is a
cardinal principle of statutory construction that a statute ought,
upon the whole, to be so construed that, if it can be prevented, no
clause, sentence, or word shall be superfluous, void, or
insignificant.” TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001).
In sum, we reject Croce II and read the plain language of 28
U.S.C. § 2461(c) as permitting criminal forfeiture of proceeds from
general mail fraud because a statutory provision – 18 U.S.C. §
981(a)(2)(C) – permits civil forfeiture of such proceeds and no
criminal forfeiture provision applies to general mail fraud. Accord
Lebed, 2005 WL 2495843, at *7-8; Schlesinger, 396 F. Supp. 2d at
275 (“[U]nder the plain terms of sec. 2461(c), criminal forfeiture
for mail and wire fraud is permitted.”).
To the extent that the text of the statute is ambiguous, our
conclusion is bolstered by the legislative history of CAFRA and §
2461. Before Congress enacted CAFRA in 2000, if a forfeiture
statute did not authorize a mode of recovery, that statute was
deemed to authorize civil forfeiture only. Congress then enacted
28 U.S.C. § 2461(c) to extend the availability of criminal forfeiture
to certain enumerated crimes that lacked an associated criminal
forfeiture provision, observing:
“[I]t makes sense to extend the availability of forfeiture to
these other crimes. Rather then simply making civil
forfeiture available for all federal crimes, some of which do
not generate criminal proceeds, [CAFRA] would amend
17
sections 981(a)(1) and 982(a)(2) of title 18 to extend
proceeds forfeiture (both civil and criminal) to the crimes
enumerated in the money laundering statute, 18 U.S.C. §
1956(c)(7).”
H.R. Rep. 105-358, at *35 (1997); see also id. (“H.R. 1965 would
amend section 2461 of title 28 to give the government the option
of pursuing criminal forfeiture as an alternative to civil forfeiture
if civil forfeiture is otherwise authorized.”). Thus, Congress
intended to expand the availability of criminal forfeiture to the
comprehensive list of crimes referenced in 18 U.S.C. § 1956(c)(7),
which list includes general mail fraud, not only mail fraud
perpetrated against a financial institution.
The intent to provide for criminal forfeiture in general mail
fraud cases is further demonstrated by Congress’s decision in 2000
to amend the civil forfeiture statute, 18 U.S.C. § 981, by striking
the language “affecting financial institutions” for mail and wire
fraud crimes and inserting language permitting civil forfeiture for
the crimes listed in 18 U.S.C. § 1956(c)(7). See Pub. L. 106-185,
at § 20 (2000). In our view, Congress’s expansion of the crimes
for which civil forfeiture is available taken in conjunction with its
decision to enact 28 U.S.C. § 2461(c), which broadened the range
of crimes for which criminal forfeiture was available, can only be
viewed as intent to make criminal forfeiture essentially co-
extensive with civil forfeiture. Accordingly, we conclude the
legislative history of 28 U.S.C. § 2461(c) provides additional
support for our reading of the statute and our ultimate conclusion
that the District Court had statutory authority to issue the in
personam criminal forfeiture judgment.
2.
In his second attack on the District Court’s in personam
forfeiture order, Banks takes the position that the District Court
could not issue a criminal forfeiture order for an amount that
exceeded the value of his assets at the time of sentencing. See
Banks Br. at 50-55 (citing United States v. Croce, 334 F. Supp. 2d
781 (E.D. Pa. 2004) (“Croce I”)). The Croce I court reasoned,
based on a review of the history of forfeiture, that a defendant who
18
had obtained and subsequently dissipated unlawful proceeds could
not be subject to a forfeiture order for those now-dissipated
proceeds because one can not forfeit that which she does not own.
See 334 F. Supp. 2d at 794. Based on our review of the applicable
statutes, we disagree with Banks and reject the reasoning of Croce
I.
In 28 U.S.C. § 2461(c), Congress stated that criminal
forfeitures are to be carried out pursuant to the procedures set forth
in 18 U.S.C. § 853. Section 853 states that the amount of a
criminal forfeiture is directly related to the amount of the criminal
proceeds: “[m]andatory forfeiture is concerned not with how much
an individual has but with how much he received in connection
with the commission of the crime.” United States v. Casey, 444
F.3d 1071, 1077 (9th Cir. 2006) (citing 18 U.S.C. § 853). Thus,
“[w]hen a defendant has been convicted of committing $1.6 million
in money laundering offenses . . . the government has proved
beyond a reasonable doubt that it is entitled to $1.6 million in
criminal forfeiture.” United States v. Voigt, 89 F.3d 1050, 1084
(3d Cir. 1996). Given that § 853 does not contain any language
limiting the amount of money available in a forfeiture order to the
value of the assets a defendant possesses at the time the order is
issued, we think it clear that an in personam forfeiture judgment
may be entered for the full amount of the criminal proceeds.12
In the interest of clarity, we emphasize that the District
Court ordered a forfeiture judgment in personam. The in personam
designation distinguishes this judgment from one in rem. See
United States v. Sandini, 816 F.2d 869, 872-73 (3d Cir. 1987);
12
As further evidence the statute was not intended to limit
forfeitures to those assets available at the time of a forfeiture order,
we observe that 18 U.S.C. § 853(o) states that “[t]he provisions of
this section shall be liberally construed to effectuate its remedial
purposes.” By requiring a defendant to return his illicit gains
without regard to his solvency, we believe the forfeiture judgment
issued in this case serves the remedial purposes of 18 U.S.C. § 853
by combating mail fraud schemes and deterring those who would
commit such crimes.
19
United States v. Hall, 434 F.3d 42, 59 (1st Cir. 2006) (“criminal
forfeiture is a sanction against the individual defendant rather than
against the property itself”) (citations omitted). Furthermore, the
in personam forfeiture judgment may also be distinguished from a
general judgment in personam. The judgment in personam here is
one in forfeiture and is limited by the provisions of 21 U.S.C. §
853(a) to:
“(1) any property constituting, or derived from any proceeds
the person obtained, directly or indirectly, as a result of such
violation;
(2) any of the person’s property used, or intended to be
used, in any manner or part, to commit, or to facilitate the
commission of, such violations; . . . .”
21 U.S.C. § 853(a). In the event that property traceable to the
crime is not available, the Court may direct forfeiture of “substitute
property” subject to the conditions set out in 21 U.S.C. § 853(p).
That provision applies, however, only if the traceable property:
“A. Cannot be located upon the exercise of due diligence;
B. Has been transferred or sold to, or deposited with, a
third party;
C. Has been placed beyond the jurisdiction of the Court;
D. Has been substantially diminished in value; or
E. Has been commingled with other property which cannot
be divided without difficulty.”
21 U.S.C. § 853(p). Federal Rule of Criminal Procedure
32.2 sets out the steps to be followed in forfeiture proceedings. It
is apparent, therefore, that the scope of in personam judgment in
forfeiture is more limited than a general judgment in personam.
We observe that adopting Banks’s position would permit
defendants who unlawfully obtain proceeds to dissipate those
proceeds and avoid liability for their ill-gotten gains. Several other
courts of appeals have rejected Banks’s view of forfeiture. In
United States v. Hall, the First Circuit observed that a money
judgment permits the Government to collect on a forfeiture order
“even if the defendant does not have sufficient funds to cover the
20
forfeiture at the time of conviction.” 434 F.3d at 59. The First
Circuit went on to note that permitting a money judgment as part
of a forfeiture order “prevents a [criminal] from ridding himself of
his ill-gotten gains to avoid the forfeiture sanction.” Id. The
Seventh Circuit reached the same conclusion in United States v.
Baker, 227 F.3d 955 (7th Cir. 2000), where it reasoned that a
forfeiture order “places a judgment lien against [defendant] for the
balance of his prison term and beyond.” Id. at 970. More recently,
the Ninth Circuit concluded in United States v. Casey that a
defendant’s lack of assets at the time of his conviction does not
allow him to sidestep a forfeiture judgment in the amount of his
criminal proceeds: “money judgments are appropriate under § 853,
even in cases of insolvent defendants.” 444 F.3d at 1077 (emphasis
added); see also United States v. Amend, 791 F.2d 1120, 1127 n.6
(4th Cir.), cert. denied, 479 U.S. 930 (1986) (observing that under
§ 853, “the government need not have offered evidence that the
forfeitable assets were still in existence at the time of [defendant’s]
conviction”). Accordingly, we join these courts of appeals in
concluding that in personam forfeiture judgments are appropriate
under 18 U.S.C. § 853, even where the amount of the judgment
exceeds the defendant’s available assets at the time of conviction.
C.
Next, Banks argues the evidence was insufficient to support
his conviction for criminal copyright infringement. Banks takes
the position that the Government did not prove, as is necessary to
convict under 17 U.S.C. § 506(a),13 that all of the items of software
13
In relevant part, 17 U.S.C. § 506 states,
“(a) Criminal infringement. –
(1) In general.– Any person who willfully infringes
a copyright shall be punished as provided under
section 2319 of title 18, if the infringement was
committed –
(A) for purposes of commercial advantage or
21
with which he was charged in the second superseding indictment
with copying were in fact copyrighted works. Because Banks did
not argue this theory before the District Court in his oral motion for
acquittal, see App. 1140-41, we review only for plain error. United
States v. Wolfe, 245 F.3d 257, 260 (3d Cir. 2001).
Under this standard, before we can correct an error not
raised at trial, we must find: (1) an error; (2) that is plain; and (3)
that affected substantial rights. United States v. Dobson, 419 F.3d
231, 236 (3d Cir. 2005) (citing United States v. Olano, 507 U.S.
725, 733-35 (1993)). If all three of these conditions are met, we
may, in our discretion, grant relief, but only if “the error seriously
affects the fairness, integrity, or public reputation of [the] judicial
proceedings.” Id. (citations omitted).
With our constrained standard of review in mind, we turn to
the evidence offered at trial. The Government offered the
testimony of an antipiracy specialist associated with the Microsoft
company, who testified that Banks’s copies of the Microsoft
software in question were counterfeit, testimony that was not
rebutted, and stated her belief that Microsoft’s copyrights covered
all of the software products at issue. Furthermore, the antipiracy
specialist testified that Microsoft sent cease-and-desist letters to
Banks, which letters were sent only to individuals who have
allegedly infringed Microsoft software. We are persuaded that the
jury’s conclusion from this evidence that the software in question
was copyrighted was not error and, in any event, given the
testimony, was not an error that was plain. Accordingly, we
conclude Banks has not shown the Government’s evidence that the
software in question was covered by copyright was so insufficient
private financial gain;
(B) by the reproduction or distribution,
including by electronic means, during any
180-day period, of 1 or more copies or
phonorecords of 1 or more copyrighted
works, which have a total retail value of more
than $1,000 . . . .”
22
as to constitute plain error.
D.
Banks next alleges the District Court’s jury instruction
regarding his charge of uttering and possessing counterfeit
securities, under 18 U.S.C. § 513(a),14 constituted reversible error
because the instruction constructively amended his indictment.
Banks Br. at 16. Because Banks did not object to this instruction
at trial, we review it only for plain error. Dobson, 419 F.3d at 236.
A constructive amendment of an indictment occurs where
a defendant is deprived of his “substantial right to be tried only on
charges presented in an indictment returned by a grand jury.”
United States v. Syme, 276 F.3d 131, 148 (3d Cir. 2002) (Becker,
J.) (citing United States v. Miller, 471 U.S. 130, 140 (1985)).
Constructive amendments are “presumptively prejudicial under
plain error review.” Syme, 276 F.3d at 155.
Count Six of Banks’s indictment charged him with uttering
and possessing counterfeit and forged securities in violation of 18
U.S.C. § 513(a). App. 1401. The jury instructions, tracking the
wording of the statute, informed the jury that Banks could be found
guilty for uttering and possessing counterfeit or forged securities.
App. 1264-65, 1267.
We considered this issue in United States v. Cusumano, 943
F.2d 305 (3d Cir. 1991). In that case, the defendant was indicted
under a statute that presented multiple routes to a conviction in the
14
Title 18, section 513(a) reads
“Whoever makes, utters or possesses a counterfeited
security of a State or a political subdivision thereof or of an
organization, or whoever makes, utters or possesses a
forged security of a State or political subdivision thereof or
of an organization, with intent to deceive another person,
organization, or government shall be fined under this title or
imprisoned for not more than ten years, or both.”
23
disjunctive. As in this case, although the indictment was written in
the conjunctive, the district court charged the jury in the
disjunctive. On appeal, Cusumano argued the district court should
have charged the jury in the conjunctive. We rejected that
argument, observing that “the general rule is that when a jury
returns a guilty verdict on an indictment charging several acts in
the conjunctive . . . the verdict stands if the evidence is sufficient
with respect to any of the acts charged,” id. at 311, and held that
the rule extended to cases where the indictment is in the
conjunctive, but the jury instructions were in the disjunctive. Id.
Here, like Cusumano, while Banks’s indictment was phrased
in the conjunctive, the jury instructions – which tracked the
language of the statute – were phrased in the disjunctive.
Furthermore, Banks does not argue the evidence was insufficient
with respect to any of the acts charged under 18 U.S.C. § 513. See
Cusumano, 943 F.2d at 311. Accordingly, we perceive no plain
error in the District Court’s jury instructions regarding 18 U.S.C.
§ 513.
E.
Banks next argues that the District Court’s jury instruction
on the witness tampering charge at Count Seven was defective
because the District Court judge did not instruct the jury on the
requirement, recently clarified by the Supreme Court in Arthur
Andersen LLP v. United States, 125 S. Ct. 2129 (2005), that a
conviction under 18 U.S.C. § 1512(b)(2)(A) requires there be a
nexus between the persuasion Banks allegedly directed at Do and
a particular proceeding.15 Because Banks did not object to the jury
15
In relevant part, § 1512 reads,
“(b) Whoever knowingly uses intimidation, threatens, or
corruptly persuades another person, or attempts to do so, or
engages in misleading conduct toward another person, with
intent to –
(2) cause or induce any person to –
24
instruction at trial, we are constrained to plain error review,
Dobson, 419 F.3d at 236, and further note that “[i]t is a rare case in
which an improper instruction will justify reversal of a criminal
conviction when no objection has been made in the trial court.”
Henderson v. Kibbe, 431 U.S. 145, 154 (1977).
In Arthur Andersen, the Supreme Court made clear that a
prosecution under this same statute cannot succeed if the
Government fails to show a “nexus between the ‘persuasion’ to
[impede] and any particular proceeding.” 125 S. Ct. at 2136. As
the Second Circuit recently observed in the wake of Arthur
Andersen, “[t]he touchstone for the nexus requirement, therefore,
is an act taken that would have the natural and probable effect of
interfering with a judicial or grand jury proceeding that constitutes
the administration of justice; that is, the act must have a
relationship in time, causation, or logic with the judicial
proceedings.” United States v. Quattrone, 441 F.3d 153, 171 (2d
Cir. 2006).
We turn to the jury instructions in this case. The witness
tampering instruction read, in relevant part, as follows:
“. . . The second element the Government must prove
beyond a reasonable doubt is that the Defendant acted
knowingly and with the specific intent to cause or induce
any person to withhold a record document or other object
from an official proceeding. By ‘specific intent,’ I mean
that the Defendant must have acted with the unlawful intent
to cause or induce Warren Do to withhold evidence from an
official proceeding. It is not necessary for the Government
to prove the Defendant knew he was breaking any particular
criminal law, nor need the government prove that the
Defendant knew that the official proceeding was before a
federal grand jury. An official proceeding includes a
(A) withhold testimony, or withhold a
record, document, or other object, from an
official proceeding.”
25
proceeding before a federal grand jury. The grand jury
proceeding need not be pending or about to be instituted at
the time of the offense.”
App. 1271-72. Following a discussion of attempt, the District
Court instructed,
“Thus, in order to prove the offense of attempted witness
tampering . . . it is necessary that the totality of the evidence
of the Defendant’s objective actions, wholly apart from any
evidence of his state of mind, be consistent with the purpose
of the commission of the crime of witness tampering.”
App. 1273-74.
With our restrictive standard of review in mind, we perceive
no error with the jury instructions in this case, and conclude that
Arthur Andersen does not compel a different conclusion. As is
evident, the jury was instructed that Banks could be found guilty of
witness tampering only if he acted with the specific intent to induce
Do to withhold evidence from an official proceeding, and that
Banks did not have to intend to affect a grand jury proceeding –
other types of proceedings would suffice. App. 1272. We read this
instruction as requiring the jury to find some connection – i.e., a
nexus – between Banks’s actions and an official proceeding in that
Banks could not be convicted unless the jury found he intended to
persuade Do to impede an official proceeding, which official
proceeding – given Do’s email regarding his subpoena – Banks
was well aware of. Thus, we perceive no plain error in the District
Court’s witness tampering instruction as reviewed against Arthur
Andersen.16
16
Arthur Andersen is perhaps distinguishable because the
district court in that case led the jury to believe that no nexus
between the persuasion and any particular proceeding was
necessary to convict. See 125 S. Ct. at 2136-37; see also
Quattrone, 441 F.3d at 180-81 & 180 n.27 (vacating conviction for
jury instruction’s lack of nexus requirement; instruction read “there
is no requirement there be a nexus between the defendant’s
26
F.
Next, Banks claims the District Court committed reversible
error by failing to rule on what he alleges was a motion for self-
representation, docketed by the District Court on January 28, 2005.
Banks Br. at 26. As to this issue, we exercise plenary review over
the District Court’s legal conclusions and review its factual
findings for clear error. United States v. Peppers, 302 F.3d 120,
127 (3d Cir. 2002).
In evaluating a district court’s treatment of a defendant's
request to act pro se at trial, Peppers, 302 F.3d at 132, and at
sentencing, cf. United States v. Salemo, 61 F.3d 214, 219 (3d Cir.
1995), this Court applies a three-step analysis. This analysis
requires that the Court (1) inquire into whether the defendant has
asserted his desire to proceed pro se clearly and unequivocally; (2)
inquire into whether the defendant understands “the nature of the
charges, the range of possible punishments, potential defenses,
technical problems that the defendant may encounter, and any other
facts important to a general understanding of the risks involved”;
and (3) “assure itself” that the defendant is competent to stand trial.
Peppers, 302 F.3d at 132 (citations and quotations omitted).
Because Banks contests only whether his motion was sufficiently
unequivocal, Banks Br. at 26, our analysis in this case does not
proceed beyond the first step.
Although Banks was represented by counsel, he
nevertheless filed multiple pro se requests with the District Court.
See App. 14-37 (District Court docket entries).17 The written
conduct and the federal proceeding such that the defendant’s
conduct would have had a natural and probable effect of interfering
with the federal proceeding”) (emphasis added). Unlike these
cases, the jury instruction in this case did not direct the jury to
reach a guilty verdict without regard to a nexus between Banks’s
conduct and the official proceeding.
17
We observe that the District Court docket is replete with
pro se motions that Banks filed while represented by counsel. See,
27
request at issue read as follows:
“Motion/Defendant Invokes his Constitutional Right to
Represent Himself prose Until Such a Time that it is
determined that [AUSA] Paul Hull Will Acknowledge his
pro se Motions As The Defendant Has a Constitutional
Right To File Motion’s pro se that the Court Rules on And
Are Responded To by the USA At Such A Time THAT IT
IS DETERMINED THAT DEFENDANT Pro se
MOTIONS WILL NOT BE IGNORED BY PAUL HULL
THE DEFENDANT INTENDS TO INVOKE HIS RIGHT
TO COUNSEL BY MR. DAVID CHONTOS BUT UNTIL
THAT TIME DEFENDANT IS PRO SE AT Criminal No.
03-245
And Now comes the defendant pro se and avers :
1. See Header
2. Any responses should be forwarded to the defendant
e.g., App. 28 (Dkt. No. 153 – “MOTION by FREDERICK H.
BANKS for Additional Law Library Access”); App. 29 (Dkt. No.
162 – “MOTION by FREDERICK H. BANKS Demanding that
Angelica Bonta, U.S. Probation Officer and Paul Hull, Assistant
U.S. Attorney Acknowledge the PSI Objections he filed with and
FOIA/Privacy Act Request to the Probation Office”); App. 29 (Dkt.
No. 169 – “MOTION by FREDERICK H. BANKS to Receive
Pleadings (document numbers indicated in motion) and all of
Brady/Jencks material”). We note that the District Court, perhaps
in an attempt to retain control of the proceedings in the face of the
Banks’s onslaught of pro se motions, ordered on March 8, 2005,
that the Clerk of Court was not to accept any further pro se filings
from Banks. App. 34. The District Court was within its authority
to do so. Cf. United States v. Essig, 10 F.3d 968, 973 (3d Cir.
1993) (observing that this Court is not required to review a
counseled defendant’s pro se argument; “[i]ssues that counseled
parties attempt to raise pro se need not be considered except on a
direct appeal in which counsel has filed a [brief under Anders v.
California, 386 U.S. 738 (1967)]”).
28
directly and the defendants standby counsel/counsel
withholding responses to motion and motions made by the
USA violates defendants due process.
WHEREFORE, the defendant respectfully demands that the
motion/Defendant invokes, et al. be GRANTED.”
App. 1439 (capitals in original). We must “indulge every
reasonable presumption against waiver of the right to counsel,”
United States v. Stubbs, 281 F.3d 109, 117 (3d Cir. 2002) (citing
Johnson v. Zerbst, 304 U.S. 458, 464 (1938)), and observe that an
inquiry into the nature of an alleged request to proceed pro se at
sentencing “need not be as exhaustive and searching as a similar
inquiry before the conclusion of trial.” Salemo, 61 F.3d at 219
(emphasis added). With this in mind, we conclude Banks’s written
request did not require any action on the part of the District Court.
The first step of the Peppers inquiry requires an
investigation into whether the defendant “clearly and
unequivocally” asserted his request. Here, while Banks’s request
was titled, “Defendant Invokes his Constitutional Right to
Represent Himself prose,” Banks in actuality requested only
temporary self-representation in that he stated he would engage
Attorney Chontos to represent him as soon as AUSA Hull ceased
ignoring his other pro se motions. We view this only as an
expression of Banks’s frustration with AUSA Hull’s refusal to
respond to his other pro se motions and not as a clear request to
proceed pro se, further noting that Banks was complaining only
about AUSA Hull and not about his own counsel. See Buhl v.
Cooksey, 233 F.3d 783, 792 (3d Cir. 2000) (noting concern with
permitting a defendant’s waiver of counsel based on mere
“musings on the benefits of self-representation”). Hence, we read
Banks’s motion as an expression of his frustration with our judicial
process’s requirement that communications take place between
attorneys, not between parties and attorneys, and not as a clear
request for self-representation. Cf. Jackson v. Ylst, 921 F.2d 882,
888-89 (9th Cir. 1990) (“The trial court properly may deny a
request for self-representation that is ‘a momentary caprice or the
result of thinking out loud.’”) (citation omitted).
In addition, Banks does not identify any motions to which
29
AUSA Hull failed to respond after Banks filed his motion for pro
se representation, and, when asked, expressed no dissatisfaction
with his counsel’s performance at sentencing. See App. 1337.
Accordingly, we conclude, on the facts of this case, that Banks’s
written request was not sufficiently clear so as to trigger any duty
on the part of the District Court to address the request as a bona
fide motion to proceed pro se and perform a full Peppers inquiry.
G.
Banks finally argues that Judge Hardiman should have sua
sponte recused himself from this case before sentencing. Banks’s
argument is based on a judicial misconduct complaint he filed
against Judge Hardiman before sentencing took place on February
25, 2005, but Banks did not file a motion for recusal until April 25,
2005, well after his sentencing. App. 36. We review the District
Court’s decision not to sua sponte recuse for plain error. Selkridge
v. United of Omaha Life Ins. Co., 360 F.3d 155, 166 (3d Cir.
2004).18
Under 28 U.S.C. § 455, a judge must “disqualify himself in
any proceeding in which his impartiality might reasonably be
questioned.” United States v. Bertoli, 40 F.3d 1384, 1412 (3d Cir.
1994). Beliefs or opinions that merit recusal must involve an
extrajudicial factor; “[f]or example, if a judge has acquired a
dislike of a litigant because of events occurring outside of the
courtroom, a duty to recuse might ensue.” United States v. Antar,
18
Banks raised the issue of recusal only after the District
Court trial and sentencing proceedings at issue had ended, which
we deem a failure to timely raise the issue which accordingly
constrains us to plain error review. See United States v. Viscome,
144 F.3d 1365, 1370 (11th Cir. 1998) (reviewing defendant’s
constitutional challenge to statute of conviction for plain error
where defendant did not raise constitutional challenge to statute
until after trial); see also Lyons v. Jefferson Bank & Trust, 994
F.2d 716, 722-23 (10th Cir. 1993) (observing that “an untimely
motion, by itself, is not sufficient to preserve an issue for appellate
review”).
30
53 F.3d 568, 574 (3d Cir. 1995). To have cause to recuse, a judge
must have actual knowledge of the alleged grounds for recusal;
“[t]he evil that a timeliness requirement is intended to prevent –
namely, holding in reserve a recusal demand until such time that a
party perceives a strategic advantage – is served by requiring actual
knowledge.” In re Kensington Int’l. Ltd., 368 F.3d 289, 294 (3d
Cir. 2004).
On the circumstances presented here, we perceive no need
for Judge Hardiman to have recused himself on his own initiative
from Banks’s sentencing. Even assuming that Judge Hardiman had
actual knowledge of Banks’s complaint before sentencing,19 Banks
had already deluged the District Court with numerous and frivolous
pro se motions throughout the proceedings, and we are unwilling
to conclude that Judge Hardiman erred by not sua sponte recusing
himself from sentencing simply because Banks, a convicted
defendant who had already clogged the proceedings with pro se
motions, also filed a judicial misconduct complaint in addition to
his other pro se motions. Cf. Martin v. Monumental Life Ins. Co.,
240 F.3d 223, 237 (3d Cir. 2001) (“We also believe that there must
be a more compelling standard for recusal under § 455(a) after the
conclusion of a trial than before its inception. After a massive
proceeding such as this, when the court has invested substantial
judicial resources and there is indisputably no evidence of
prejudice, a motion for recusal of a trial judge should be supported
by substantial justification, not fanciful illusion.”).20
19
The record is at best unclear as to when Judge Hardiman
actually learned of Banks’s misconduct complaint.
20
We observe that Banks’s own comments at the March 17,
2005, recusal hearing before Judge Hardiman indicate an
agreement with our conclusion on this issue. At that hearing, Judge
Hardiman recused himself from a separate criminal case involving
Banks, Case Number 04-176, on the ground that Banks had filed
a judicial misconduct complaint against him in the instant case, and
the following exchange took place:
The Court: In light of the pending complaint of judicial
misconduct that Mr. Banks filed against me, I think
31
IV.
For the foregoing reasons, we will affirm Banks’s
convictions for mail fraud, criminal copyright infringement,
uttering and possessing counterfeit or forged securities, and witness
tampering in their entirety. We will also affirm Banks’s sentence,
concluding (1) the District Court was not obligated to provide
advance notice under Rule 32(h) of its intent to vary from a
Guidelines sentence where that variance was based on full
consideration of the § 3553(a) factors and not on the Guidelines;
and, (2) that the District Court had statutory authority to issue an in
personam criminal forfeiture judgment, regardless of whether the
amount of that judgment exceeded Banks’s available assets at the
time of conviction.
my impartiality might reasonably be questioned. So
for that reason, I’m going to recuse myself from
presiding over case 04-176, pursuant to Title 28
United States Code, Section 455(a).
Banks: Your Honor, I don’t think that that is appropriate
because anyone can file a judicial misconduct
complaint and we can’t have judges recusing
themselves because somebody filed a complaint.
Anybody can do that.
32