United States v. Frederick Banks ( 2022 )

CLD-050 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-2770
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UNITED STATES OF AMERICA
v.
FREDERICK H. BANKS,
Appellant
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Crim. No. 2:03-cr-00245-001)
District Judge: Honorable Nora Barry Fischer
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Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
December 29, 2021
Before: AMBRO, SHWARTZ and BIBAS, Circuit Judges
(Opinion filed: January 5, 2022)
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OPINION *
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PER CURIAM
Frederick Banks appeals pro se from the District Court’s order denying his petition
for a writ of error coram nobis. For the following reasons, we will summarily affirm.
In October 2004, following a jury trial in the United States District Court for the
Western District of Pennsylvania, Banks was convicted of mail fraud, copyright
infringement, and related offenses. We affirmed. See United States v. Vampire Nation,
451 F.3d 189, 192 (3d Cir. 2006). The District Court later denied Banks’s motion under
28 U.S.C. § 2255, and we denied him a certificate of appealability. United States v.
Banks, C.A. No. 06–3671 (order entered Dec. 17, 2007). Since then, Banks has filed
dozens of other motions and petitions in the District Court challenging his 2004
convictions, and those filings have generated numerous unsuccessful appeals. Banks has
now completed serving his sentence and term of supervised release for the convictions in
question. See United States v. Banks, 618 F. App’x 82, 83–84 (3d Cir. 2015).
At issue here is Banks’s August 2021 petition for writ of error coram nobis, in
which he asserted that the District Court lacked jurisdiction to try him because: (1) the
indictment did not allege the requisite mens rea element for one of the charged offenses;
(2) there was no grand jury empaneled at the time subpoenas were issued; and (3) those
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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subpoenas were served by fax and email. The District Court denied Banks’s petition and
he timely appealed. The Government has moved for summary affirmance.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise de novo review
over legal issues arising from the denial of coram nobis relief. See United States v.
Rhines, 640 F.3d 69, 71 (3d Cir. 2011) (per curiam). We may take summary action if an
appeal fails to present a substantial question. See 3d Cir. L.A.R. 27.4 and I.O.P. 10.6.
A petitioner seeking a writ of coram nobis must, inter alia, assert an error of a
fundamental kind that had no remedy at the time of the criminal proceeding. Ragbir v.
United States, 950 F.3d 54, 62 (3d Cir. 2020). A fundamental error is one that
undermines the jurisdiction of the trial court and invalidates the proceeding. Id. at 63. The
Supreme Court has noted, “it is difficult to conceive of a situation in a federal criminal
case today where a writ of coram nobis would be necessary or appropriate.” Carlisle v.
United States, 517 U.S. 416, 429 (1996) (internal alteration and quotation marks
omitted).
Banks asserted in his motion that the District Court lacked jurisdiction to try him
due to various alleged defects in the indictment and irregularities with the grand jury.
Even if Banks’s allegations were true, they would not constitute jurisdictional defects.
See United States v. Cotton, 535 U.S. 625, 630–31 (2002) (holding that a defect in an
indictment does not deprive a court of jurisdiction). Moreover, as the District Court
correctly noted here—and has told Banks repeatedly—because remedies for these
purported errors existed earlier in his proceedings, coram nobis relief is not available to
him now. See Mendoza v. United States, 690 F.3d 157, 159 (3d Cir. 2012) (explaining
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that the writ of error coram nobis is appropriate only when sound reasons exist for failing
to seek relief earlier).
Accordingly, we conclude that this appeal presents no substantial question, grant
the Government’s motion, and will summarily affirm the District Court’s order.
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