United States v. Banks , 269 F. App'x 152 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
3-14-2008
USA v. Banks
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4485
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DLD-123 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-4485
___________
UNITED STATES OF AMERICA
v.
FREDERICK H. BANKS,
Appellant
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 04-cr-00176)
District Judge: Honorable Joy Flowers Conti
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
Before: BARRY, CHAGARES AND GREENBERG, CIRCUIT JUDGES.
Opinion filed: March 14, 2008
_________
OPINION
_________
PER CURIAM
A jury sitting in the United States District Court for the Western District of
Pennsylvania found Frederick H. Banks guilty of mail fraud. He was sentenced to sixty-
1
three months of imprisonment, to be followed by three years of supervised release. The
District Court ordered this sentence to run consecutively to the five-year term Banks is
serving for separate convictions. See United States v. Banks, 03-cr-00245 (W.D. Pa.).
Banks filed a counseled notice of appeal, which is currently pending in this Court. See
United States v. Banks, C.A. No. 06-1934.
Following the jury’s verdict and the sentencing hearing, Banks made numerous pro
se submissions in the District Court, including the two series of filings that are at issue
here. In these documents, Banks offered various grounds for challenging his conviction.1
The District Court denied relief. Banks filed a timely motion for reconsideration, which
the District Court ordered stricken from the docket as frivolous. Banks appealed.
“As a general rule, the timely filing of a notice of appeal is an event of
jurisdictional significance, immediately conferring jurisdiction on a Court of Appeals and
divesting a district court of its control over those aspects of the case involved in the
appeal.” 2 Venen v. Sweet, 758 F.2d 117, 120 (3d Cir. 1985) (citations omitted); see also
1
Banks also submitted a “Certified Promissory Note,” ostensibly as payment for the
restitution, fines, and assessments imposed as part of his sentences. The Clerk of the
District Court returned the so-called promissory note, advising Banks that payment must
be in the form of cash, check, or money order. Banks then filed a “Notice of Non-
Acceptance and Discharge of Debt Restitution and Special Assessment Fees,” contending
the Clerk’s action violated the Uniform Commercial Code and discharged his debt. The
District Court directed the Clerk to strike the “Notice” as frivolous. To the extent that
Banks now seeks to appeal from this order, we affirm.
2
Although we have recognized exceptions to this rule, none apply here. See Mary
Ann Pensiero, Inc. v. Lingle, 847 F.2d 90 (3d Cir. 1988) (noting that “[t]he district court
retains jurisdiction [after the filing of a notice of appeal] . . . to issue orders staying,
2
Hudson United Bank v. LiTenda Mortg. Corp., 142 F.3d 151, 158 (3d Cir. 1998)
(“[J]urisdiction that is originally and properly vested in the district court becomes vested
in the court of appeals when a notice of appeal is filed.”). As the Court explained in
Venen, this rule “has the salutary purpose of preventing the confusion and inefficiency
which would of necessity result were two courts to be considering the same issue or
issues simultaneously.” 758 F.2d at 121. The Court added that “[t]he rule is a
judge-made, rather than a statutory, creation . . . [and thus, as] a prudential doctrine, the
rule should not be applied when to do so would defeat its purpose of achieving judicial
economy.” Id. In the context of collateral attacks upon convictions, courts have
concluded that there is no jurisdictional bar to a district court’s adjudication of a § 2255
motion while the movant’s direct appeal is pending, but that such actions are disfavored
as a matter of judicial economy and concern that the results on direct appeal may make
the district court’s efforts a nullity. See, e.g., United States v. Prows, 448 F.3d 1223,
1228-29 (10 th Cir. 2006); Kapral v. United States, 166 F.3d 565, 570-72 (3d Cir. 1999).
Banks’ pro se submissions, like his counseled direct appeal, seek to challenge his
conviction and sentence. Therefore, adjudication of Banks’ direct appeal may render
moot the issues raised in the pro se filings. Under these circumstances, the District Court
properly rejected Banks’ claims. See Feldman v. Henman, 815 F.2d 1318, 1320-21 (9th
modifying or granting injunctions, to direct the filing of supersedeas bonds, and to issue
orders affecting the record on appeal, the granting of bail, and matters of a similar
nature.”).
3
Cir. 1987) (holding that a “district court should not entertain a habeas corpus petition
while there is an appeal pending in [the court of appeals] . . . [because] disposition of the
appeal may render the [habeas corpus writ] unnecessary.”). This case does not present the
type of extraordinary circumstance that would warrant simultaneous review. See
Womack v. United States, 395 F.2d 630, 631 (D.C. Cir. 1968).
Because this appeal presents us with no substantial question, see I.O.P. 10.6, we
will summarily affirm.3
3
Banks’ “motion opposing summary action” and his motion for appointment of
counsel are denied.
4