United States v. Frederick Banks , 572 F. App'x 162 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-4594
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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. No. 2-04-cr-00176)
District Judge: Hon. Joy Flowers Conti
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Submitted Under Third Circuit LAR 34.1(a)
July 10, 2014
Before: RENDELL, CHAGARES, and JORDAN, Circuit Judges.
(Filed: July 11, 2014)
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OPINION OF THE COURT
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JORDAN, Circuit Judge.
Frederick Banks appeals the revocation of his term of supervised release by the
United States District Court for the Western District of Pennsylvania. We will affirm.
I. Background
Banks was convicted of eight counts of mail fraud in December 2005 and
sentenced in 2006 to 63 months’ imprisonment (to be served consecutively to a separate,
already-imposed sentence) and 36 months of supervised release. We affirmed that
conviction and sentence. See United States v. Banks, 300 F. App’x 145, 147 (3d Cir.
2008). According to the U.S. Probation Office, within three months of his release from
prison in May 2013, Banks had committed wire fraud and aggravated identity theft, thus
violating the supervised-release condition that he not commit another crime. Probation
charged him accordingly, and the District Court, after an extensive violation hearing at
which Banks represented himself, revoked his supervised release and sentenced him to 14
months’ imprisonment to be followed by six months’ supervised release at a community
correctional center. This timely appeal followed.
II. Discussion1
Banks raises three arguments on appeal. First, he contends that the District Court
should not have found him competent to represent himself at the violation hearing, in
1
The District Court had subject matter jurisdiction under 18 U.S.C. §§ 3231 and
3583(e). We exercise jurisdiction over Banks’s appeal pursuant to 28 U.S.C. § 1291. We
review the sentencing decision of a district court for abuse of discretion, looking for
procedural error and then examining the sentence for substantive reasonableness. United
States v. Negroni, 638 F.3d 434, 443 (3d Cir. 2011). We review a district court’s factual
findings regarding competency for clear error. United States v. Leggett, 162 F.3d 237,
241 (3d Cir. 1998). For unpreserved issues, however, we review for plain error. Fed. R.
Crim. P. 52(b). Acknowledging that the legal landscape in our circuit is unclear as to
whether plain-error review applies to unpreserved challenges to competency findings and
sentencing procedures, the Government encourages us to so hold. Banks also seems to
concede that plain error applies to his competency challenge. But we nevertheless
decline the Government’s invitation and instead conclude that Banks’s arguments are
unpersuasive under any standard.
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spite of his own request to waive his right to counsel and proceed pro se. Second, he
argues that, because he is incompetent, the Court erred in finding that he possessed the
requisite mens rea to commit wire fraud and identity theft. Finally, he argues that the
Court committed procedural and substantive error in sentencing him because it failed to
take into account his mental illness.2 We will address each argument in turn.
Banks’s argument that he was not competent to represent himself at the violation
hearing is unpersuasive. Once a trial court finds that a defendant knowingly, voluntarily,
and intelligently waives the right to counsel, that defendant generally must be permitted
to defend himself at trial. Faretta v. California, 422 U.S. 806, 835-36 (1975). But, by a
finding that the defendant “understands the nature of the criminal charges against him
and is able to assist in his defense of such charges,” Godinez v. Moran, 509 U.S. 389, 392
(1993) (internal quotation marks omitted), a trial court must still establish that the
defendant is both competent to stand trial and to represent himself. That competency
determination is entitled great deference: “[T]he trial judge, particularly one … who
presided over … [the defendant’s] competency hearing[] and his … trial[], will often
prove best able to make more fine-tuned mental capacity decisions, tailored to the
individualized circumstances of a particular defendant.” Indiana v. Edwards, 554 U.S.
164, 177 (2008).
2
It is unclear whether Banks is challenging the procedural or substantive
reasonableness of his sentence or both. Like the government, we will address both
issues. The government interprets Banks’s brief to also include an independent
sentencing argument concerning the additional term of supervised release. But Banks
makes no such argument, and we therefore will not reach it.
3
The District Court was well aware of Banks’s unusual claims, including his
assertion that the government had implanted “Voice to Skull” technology in his head.
Prior to Banks’s trial on the underlying mail-fraud charges, it had presided over a
competency hearing where it allowed him to represent himself, which decision we
affirmed on appeal. See Banks, 300 F. App’x at 148. Based on its experience in those
proceedings, the Court ordered a psychiatric evaluation of Banks prior to the violation
hearing. Afterward, it held another competency hearing where the evaluating doctor
testified and the Court questioned Banks. The doctor stated that Banks was mentally ill
but ultimately able to “waive his right to counsel and proceed pro se … [because h]e has
intact cognitive functioning in many respects, especially outside of the area of …
electronic harassment[, the subject of his paranoia].” (Supp. App. at 1, 8-9.) The doctor
was also satisfied that Banks’s mental issues would not render him unable to represent
himself, and, notably, Banks’s counsel “defer[red] to [the doctor]’s expert report” when
asked whether he believed that Banks was competent to waive his right to counsel and
proceed pro se. (App. Vol. II at 46.) This finding is in line with the Supreme Court’s
view that “[m]ental illness … is not a unitary concept … [but] interferes with an
individual’s functioning at different times in different ways.” Edwards, 554 U.S. at 175;
see also United States v. Leggett, 162 F.3d 237, 244 (3d Cir. 1998) (noting that “[i]t does
not follow that because a person is mentally ill [that person] is not competent to stand
trial” (alterations in original) (internal quotation marks omitted)). After a review of the
record, we find that the District Court, which was in the best position to (twice) evaluate
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Banks’s faculties, did not commit clear error in deeming Banks competent after relying
on the evaluating doctor’s report and testimony.3
The District Court also correctly found that Banks possessed the required mens rea
to commit the crimes constituting his supervised-release violations. Banks’s argument
either boils down to an insanity defense that he had the burden of proving or an attempt
to negate the specific intent related to his crimes. See United States v. Pohlot, 827 F.2d
889, 905-06 (3d Cir. 1987) (citing 18 U.S.C. § 17) (approving both insanity defense and
negating mens rea as valid methods of using mental disease to defend against criminal
prosecutions). Because he failed to proffer any evidence of insanity and because the
record is devoid of anything to rebut the evidence that his mental condition did not
interfere with his capacity for conscious action, his argument fails.
Finally Banks cannot point to any procedural or substantive defect in his sentence.
We review sentencing decisions in two steps. First, we “ensure that the district court
committed no significant procedural error.” United States v. Wise, 515 F.3d 207, 217 (3d
Cir. 2008). A common challenge to a sentencing procedure is, for example, to attack the
sufficiency of the court’s review of the factors enumerated in 18 U.S.C. § 3553(a). E.g.,
United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009). We then review for
3
We note that a defendant charged with violating a condition of supervised release
has limited due process rights. See Morrissey v. Brewer, 408 U.S. 471, 480 (1972)
(holding that revocation of parole does not impinge upon “absolute liberty” but only on
“the conditional liberty properly dependent on observance of special parole restrictions”);
see also United States v. Manuel, 732 F.3d 283, 291 (3d Cir. 2013) (holding that “there is
no constitutional right to representation by counsel at a parole revocation”). But we need
not decide whether a less-stringent process applies for determining whether Banks
knowingly waived his right to counsel because even the full panoply of constitutional
protections cannot support his argument.
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substantive reasonableness, looking at “the totality of the circumstances.” Id. at 567. We
will affirm a sentence as substantively reasonable “unless no reasonable sentencing court
would have imposed the same sentence on that particular defendant for the reasons the
district court provided.” Id. at 568. If a sentence is within the range of reasonable
alternatives set by the U.S. Sentencing Guidelines Manual, we may apply a presumption
of reasonableness to it. Id. at 575.
Although Banks concedes that the Court addressed his mental illness prior to
imposing sentence, he nonetheless contends that it did not properly consider his condition
under 18 U.S.C. § 3553(a). There is, however, nothing in the record to suggest that the
Court’s § 3553 analysis was procedurally defective. The Court acknowledged that Banks
had psychiatric problems but echoed the evaluating doctor’s conclusion that it was not
“the direct cause of [Banks] engaging in [his] fraudulent activity.” (App. Vol. II at 274.)
Indeed, it is plain that the Court thoroughly considered all of the § 3553(a) factors in
fashioning an appropriate sentence for Banks. That the Court sentenced him within the
Sentencing Guidelines’ recommended range further indicates the reasonableness of the
sentence. Therefore, the District Court did not abuse its discretion.
III. Conclusion
We will accordingly affirm the District Court’s judgment of sentence.
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