United States v. Banks , 300 F. App'x 145 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
11-28-2008
USA v. Banks
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1934
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-1934
_____________
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 Under Third Circuit LAR 34.1(a)
on October 23, 2008
Before: RENDELL and SMITH, Circuit Judges,
and POLLAK, District Judge.
Filed: November 28, 2008
__________
OPINION OF THE COURT
__________
__________________
* Honorable Louis H. Pollak, Senior Judge of the United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
RENDELL, Circuit Judge.
This appeal stems from Frederick Banks’s conviction on eight counts of mail
fraud, 18 U.S.C. § 1341. Banks challenges his conviction, as well as his sentence, in four
assignments of error: first, Banks argues that the District Court failed to ensure a
knowing and intelligent waiver of counsel; second, Banks challenges the sufficiency of
the second superseding indictment; third, Banks argues that the District Court erred in
denying his motions to suppress; and finally, Banks contends that the District Court
ordered an unreasonable sentence. We exercise jurisdiction over this appeal pursuant to
28 U.S.C. § 1291 and 18 U.S.C. § 3742. We address each assignment of error separately,
and as we write solely for the benefit of the parties, we present only those facts relevant to
disposition of the appeal. For the reasons discussed below, we will affirm.
I.
In his first allegation of error, Banks argues that he did not knowingly and
intelligently waive counsel because the District Court failed to conduct a sufficient
colloquy. Although the District Court asked each of the questions that we enumerated in
United States v. Peppers, 302 F.3d 120, 136-37 (3d Cir. 2002), Banks contends that the
colloquy was insufficient because it was merely a “rote rendition” that failed to further
probe Banks’s understanding of the risks of self-representation in light of his answers to
the initial Peppers questions. (Appellant’s Br. at 22.) Our review as to waiver of counsel
is plenary. Peppers, 302 F.3d at127.
2
In Peppers, we described the “weighty responsibility” that a district court bears to
ensure that a defendant’s waiver of counsel is knowing and intelligent, stating that “a
district court cannot make an informed decision as to the knowing and voluntary nature of
a defendant’s request to proceed pro se without a thorough inquiry, on the record, to
assure itself that the defendant fully apprehends the nature of the charges against him, the
perils of self-representation, and the requirements that will be placed upon him.”
302 F.3d at 130, 133. To guide in such inquiry, we enumerated fourteen questions that
“would prove a useful framework for the court to assure itself that a defendant’s decision
to proceed pro se is knowing and voluntary.” Id. at 136-37.
Here, as the District Court inquired as to each of the fourteen Peppers questions,
engaging Banks when he indicated a lack of comprehension, we are satisfied that the
District Court conducted a penetrating and comprehensive colloquy. Compare id. at 135(providing elements of a comprehensive colloquy), with United States v. Jones, 452 F.3d
223, 231-34 (3d Cir. 2006) (holding colloquy insufficient for failure to inquire into
several of elements enumerated in Peppers). Indeed, rather than simply reciting the
Peppers questions, the District Court specifically underscored the risks attendant self-
representation by informing Banks that “a trained lawyer could defend you far better than
you could defend yourself,” and explaining its reasoning for this conclusion. (App. 142.)
While the judge did not probe Banks’s response to each Peppers question, such probing is
only necessary when the defendant exhibits a lack of comprehension. See Peppers,
3
302 F.3d at 137 (“Of course, if, during the course of inquiry, it appears that the defendant
needs further explanation, or it is evident that the defendant does not comprehend what
the court is saying or asking, the court will need to probe further.”). Significantly, Banks
does not allege that he failed to comprehend any of the Peppers questions, that his
responses to particular questions warranted additional probing, or that he possessed a
limited mental capacity that precluded intelligent waiver of his Sixth Amendment rights.
Because the District Court obtained satisfactory responses to each Peppers question,
providing further explanation when necessary, we conclude that the District Court
conducted a sufficiently penetrating colloquy to ensure that Banks knowingly and
intelligently waived his right to counsel.
II.
Banks next challenges the sufficiency of the second superseding indictment. The
indictment included the initials, but not the full names, of the mail fraud victims. Banks
argues that failure to provide the victims’ full names violated his Fifth and Sixth
Amendment rights, warranting reversal of his conviction. Typically, our review as to the
sufficiency of an indictment is plenary. Gov’t of Virgin Islands v. Moolenaar, 133 F.3d
246, 247 (3d Cir. 1998) (citation omitted). However, Banks failed to challenge the
sufficiency of the indictment in the District Court, and therefore, we must construe the
indictment liberally in favor of validity. See United States v. Cefaratti, 221 F.3d 502, 507
(3d Cir. 2000) (internal citations omitted).
4
Federal Rule of Criminal Procedure 7(c)(1), effectuating the Sixth Amendment
requirement that a defendant be informed of the nature and cause of the accusation,
requires that an indictment contain a “plain, concise, and definite written statement of the
essential facts constituting the offense charged.” Accordingly, to assess the sufficiency of
an indictment, we consider “(1) whether the indictment ‘contains the elements of the
offense intended to be charged and sufficiently apprises the defendant of what he must be
prepared to meet,’ and (2) enables the defendant to plead an acquittal or conviction in bar
of future prosecutions for the same offense.” Moolenaar, 133 F.3d at 248 (quoting
Russell v. United States, 369 U.S. 749, 763-64 (1962)). Under this test, Banks’s second
superseding indictment is sufficient despite its omission of the victims’ full names, as
those names – superfluous identifying information – do not constitute elements of the
mail fraud offense.1 See United States v. Hedaithy, 392 F.3d 580, 590 (3d Cir. 2004)
(quoting United States v. Antico, 275 F.3d 245, 261 (3d Cir. 2001)).
Banks argues that our jurisprudence requires an indictment to include “more than
just the essential elements of the offense.” (Appellant’s Reply Br. at 4 (citing United
States v. Resendiz-Ponce, 549 U.S. 102, 127 S.Ct. 702, 709 (2007); United States v.
Vitillo, 490 F.3d 314, 321 (3d Cir. 2007))). However, none of the precedents upon which
1
This Court has found the elements of mail fraud to include: “(1) the defendant's
knowing and willful participation in a scheme or artifice to defraud, (2) with the specific
intent to defraud, and (3) the use of the mails or interstate wire communications in
furtherance of the scheme.” Hedaithy, 392 F.3d at 590 (quoting Antico, 275 F.3d at 261).
5
Banks relies require an indictment for mail fraud to include the full names of victims;
instead, the cases cited require that the indictment include only those facts necessary to
satisfy the elements of the charging offense. See Vitillo, 490 F.3d at 321; see also
Resendiz-Ponce, 127 S. Ct. at 709 (stating that, for certain offenses, indictments must
include specific facts to demonstrate that statutory element is satisfied, rather than
“simply restat[ing] the language of the statute”). Here, as victims’ names do not establish
that an element of the mail fraud offense is satisfied, their inclusion is unnecessary.
Specification of victims’ full names is also unnecessary to provide Banks with
adequate notice of what to expect at trial, or to avoid re-prosecution for the same offense.
As the indictment included a description of Banks’s mail fraud scheme, the dates of each
fraudulent mailing, and a description of each mail matter, the indictment sufficiently
apprised Banks of the factual predicate of the offense. This information also ensured that
Banks possessed adequate detail about the charged offense to avoid re-prosecution for an
identical crime. Therefore, the indictment’s omission of victims’ full names did not
violate Banks’s Sixth Amendment rights.
As to Banks’s allegation that omission of the victims’ full names violated the
grand jury and due process clauses of the Fifth Amendment, “[i]t is well-established that
‘[a]n indictment returned by a legally constituted and unbiased grand jury, like an
information drawn by the prosecutor, if valid on its face, is enough to call for trial of the
charge on the merits. The Fifth Amendment requires nothing more.’” United States v.
6
Vitillo, 490 F.3d at 320-21 (quoting Costello v. United States, 350 U.S. 359, 363 (1956)).
To be valid, “‘an indictment must allege that the defendant performed acts which, if
proven, constituted a violation of the law that he or she is charged with violating.’”
Hedaithy, 392 F.3d at 589 (quoting United States v. Zauber, 857 F.2d 137, 144 (3d Cir.
1988)). As we have already established that specification of victims’ full names is not an
element of the mail fraud offense, Banks’s allegation of a Fifth Amendment violation for
failure to include the victims’ full names lacks merit. Accordingly, we conclude that
omission of the mail fraud victims’ full names from the second superseding indictment
does not constitute reversible error.2
III.
In his third assignment of error, Banks argues that the District Court erred in
denying his motions to suppress certain evidence, which Postal Service inspectors seized
from his car and his home. In general, we review the denial of a suppression motion “for
clear error as to the underlying facts, and exercise plenary review as to its legality in light
of the court’s properly found facts.” 3 United States v. Guinan, 320 F.3d 452, 458 (3d Cir.
2
The government also argues that omission of victims’ names constitutes harmless
error, as discovery requests provided Banks with most victims’ names. Because we find
no error in the indictment’s omission of victims’ full names, we need not reach the
harmless error issue.
3
With respect to Bank’s second and third assignments of error pertaining to denial of
the suppression motions, the government contends “there is room for doubt” that Banks
preserved these arguments for appeal, and suggests that plain error review may apply.
(Government’s Br. at 47 n.10.) Because Banks filed renewed suppression motions and
presented argument at a pre-trial conference, which advanced the crux of the second and
7
2003) (internal citations and quotations omitted).
A.
First, Banks contends that the District Court erred by failing to hold an evidentiary
hearing prior to ruling on his suppression motions. As Banks’s motions did not request
an evidentiary hearing, and as Banks did not object when the District Court failed to
conduct one, Banks did not preserve this issue for appeal. As such, we review the District
Court’s adjudication of Banks’s suppression motions without a hearing for plain error.
United States v. Olano, 507 U.S. 725, 731-32 (1993).
We find no plain error, as Banks’s motions to suppress did not assert disputed
issues of material fact entitling him to an evidentiary hearing. See United States v.
Voight, 89 F.3d 1050, 1067 (3d Cir. 1996) (stating that, to be entitled to an evidentiary
hearing, defendant must assert a “colorable claim” that raises disputed issues of material
fact). Banks’s motions solely raised legal issues, including the scope of the Postal
Service’s investigative authority, rather than issues of fact. Therefore, the District Court
did not err in adjudicating Banks’s motions without an evidentiary hearing.
B.
Second, Banks argues that Postal Service inspectors exceeded their statutory
authority by searching Banks’s person and home. 18 U.S.C. § 3061 provides in pertinent
third assignment of error– that § 3061(b) limits § 3061(a), and the requirements of
§ 3061(b) were not met – we find that Banks did preserve his second and third
assignments of error, pertaining to denial of the suppression motions, for appeal.
8
part:
(a) Subject to subsection (b) of this section, Postal Inspectors...
may–
(1) serve warrants and subpoenas issued under the authority of
the United States;
(2) make arrests without warrant for offenses against the United
States committed in their presence;
(3) make arrests without warrants for felonies cognizable under
the laws of the United States if there are reasonable grounds to
believe that the person to be arrested has committed or is
committing such a felony;
(4) carry firearms; and
(5) make seizures of property as provided by law.
(b) The powers granted by subsection (a) of this section shall be
exercised only–
(1) in the enforcement of laws regarding property in the custody
of the Postal Service, property of the Postal Service, the use of
the mails, and other postal offenses; and
(2) to the extent authorized by the Attorney General pursuant to
agreement between the Attorney General and the Postal Service,
in the enforcement of other laws of the United States, if the
Attorney General determines that violations of such laws have
a detrimental effect upon the operations of the Postal Service.
Arguing that § 3061(b)(1) and (b)(2) are conjunctive, Banks contends that a search is only
lawful where the requirements provided in both subsections are met. Alternatively,
Banks argues that even if § 3061(b) is disjunctive, neither of its subsections was satisfied
and, therefore, § 3061(a) does not afford a valid basis for the search.
We resolve the statutory interpretation first. “It is a ‘fundamental canon of
statutory construction that the words of a statute must be read in their context and with a
view to their place in the overall statutory scheme,’” such that “a court must interpret the
statute ‘as a symmetrical and coherent regulatory scheme,’ and ‘fit, if possible, all parts
9
into a harmonious whole.’” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
133 (2000).
Here, subsection (b)(1) applies to “the enforcement of laws regarding property in
the custody of the Postal Service, property of the Postal Service, the use of the mails, and
other postal offenses;” on the other hand, subsection (b)(2) is applicable to “enforcement
of other laws,” the violation of which the Attorney General determines has a detrimental
effect upon Postal Service operations. § 3061(b)(1)-(2) (emphasis added). If subsections
(b)(1) and (b)(2) were conjunctive, as Banks argues, an inspection would be lawful only if
conducted to enforce laws regarding Postal Service property and operations and to
enforce “other laws” that the Attorney General has determined impair Postal Service
operations – an anomalous result. “Congress plainly intended the investigative authority
conferred upon postal inspectors to extend to conduct that could reasonably be said to
impair the proper operation of the Postal Service,” United States v. Jones, 13 F.3d 100,
102 (4th Cir. 1993). Because subsection (b)(1) already enumerates specific conduct that
impairs Postal Service operations, requiring additional compliance with subsection (b)(2)
would be superfluous. Therefore, fitting § 3061(b)(1) and (b)(2) into a harmonious
whole, we conclude that § 3061(b) is disjunctive.4
4
Although prior case law does not address the issue of whether § 3061(b) is conjunctive
or disjunctive, we find that the lack of case law on this issue supports our interpretation,
as previous decisions have operated under the assumption that § 3061(b) is disjunctive.
See, e.g., Jones, 13 F. 3d at 102-03 (holding that postal investigators acted properly under
§ 3061(a) because defendant’s activities constituted a “postal offense” under § 3061(b));
10
Given this interpretation, we next consider whether the requirements of either
§ 3061(b)(1) or (b)(2) were satisfied. Under § 3061(b)(1), the presence of any one of the
four conditions precedent is sufficient to deem the requirements of § 3061(b)(1) satisfied.
See Jones, 13 F.3d at 102-03 (holding that defendant’s “postal offense” satisfied
§ 3061(b)(1)). Here, Banks’s offense satisfied at least one of the § 3061(b)(1) conditions
Murray v. United States, No. 07-3360, 2008 WL 2622847, *4 (D.N.J. June 30, 2008)
(“Postal Inspectors have the authority to serve warrants, make arrests, and seize property
under 18 U.S.C. § 3061(a) ‘only in the enforcement of laws regarding property in the
custody of the Postal Service, property of the Postal Service, the use of the mails, and
other postal offenses’” (citing 18 U.S.C. § 3061(b)(1))). As further support, Postal
Service regulations omit the word “and” between subsections (b)(1) and (b)(2),
suggesting a disjunctive rather than conjunctive approach:
(b) Limitations. The powers granted by paragraph (a) of this
section shall be exercised only--
(1) In the enforcement of laws regarding property in the
custody of the Postal Service, property of the Postal Service,
the use of the mails, and other postal offenses. With the
exception of enforcing laws related to the mails:
(i) The Office of Inspector General will investigate all
allegations of violations of postal laws or misconduct by
postal employees, including mail theft; and
(ii) The Inspection Service will investigate all allegations of
violations of postal laws or misconduct by all other persons.
(2) To the extent authorized by the Attorney General pursuant
to agreement between the Attorney General and the Postal
Service, in the enforcement of other laws of the United States,
if the Attorney General determines that the violation of such
laws will have a detrimental effect upon the operations of the
Postal Service.
39 C.R.F. § 233.1 (2007).
11
precedent, as mail fraud plainly consists of “use of the mails.” Therefore, as § 3061(b)(1)
was satisfied, the Postal Service inspectors properly exercised investigative authority
under § 3061(a).
C.
Banks also argues that the Postal Service inspectors exceeded their investigative
authority with respect to the eighth count in the indictment, which consisted of Banks
accepting payment, sent via Federal Express, for products never sent to the buyer.
Contending that “[t]he interstate predicate for this count was a private courier service,”
rather than the U.S. mail, Banks argues that Postal Service inspectors lacked authority to
investigate under § 3061(a). (Appellant’s Br. at 56.)
We disagree. Although Banks’s victim used Federal Express, Banks used the U.S.
mail, on at least two occasions, to communicate with his victim. As Banks’s mail fraud
scheme utilized both a third-party carrier as well as the U.S. mail, Postal Service
inspectors were authorized to investigate. See United States v. Mariscal, 166 Fed. Appx.
425, 425-27 (11th Cir. 2006) (affirming denial of suppression motion on ground that use
of Federal Express in conjunction with U.S. mail constitutes “use of mail” under
18 U.S.C. § 3061(b), such that Postal Service inspectors acted within their authority);
cf. United States v. Dobson, 419 F.3d 231, 241-42 (3d Cir. 2005) (finding evidence that
defendant utilized both U.S. mail and third-party carriers sufficient to affirm mail fraud
conviction). Therefore, we find no reversible error in the District Court’s denial of the
12
suppression motions.5
IV.
In his final allegation of error, Banks argues that the District Court ordered an
unreasonable sentence. First, Banks contends that the District Court improperly applied
United States Sentencing Guideline § 2J1.7 6 by failing to identify the specific sentence
increment tied to the enhancement. Second, Banks argues that the District Court erred in
ordering a consecutive sentence under United States Sentencing Guideline § 5G1.3(c),
rather than a concurrent sentence under § 5G1.3(b). Because Banks raises both
assignments of error for the first time in this appeal, we review the District Court’s
sentencing determination for plain error. See, e.g., United States v. Dragon, 471 F.3d
501, 505 (3d Cir. 2006); United States v. Lloyd, 469 F.3d 319, 325-26 (3d Cir. 2006).
5
The government contends that even if Postal Service inspectors did exceed their
authority, no basis for suppressing the evidence seized exists. As we conclude that the
inspectors acted within their authority, we need not address the propriety of suppression.
6
The parties agree that, at the time of Banks’s March 2006 sentencing, the applicable
U.S. Sentencing Commission Guidelines Manual was the 2005 edition. Accordingly, we
refer to § 2J1.7 in the 2005 Guidelines Manual, of which the Commentary provides in
relevant part:
[T]he court, in order to comply with the statute, should divide the sentence on
the judgment form between the sentence attributable to the underlying offense
and the sentence attributable to the enhancement. . . . For example, if the
applicable adjusted guideline range is 30-37 months and the court determines
“total punishment” of 36 months is appropriate, a sentence of 30 months for
the underlying offense plus 6 months under 18 U.S.C. § 3147 would satisfy
this requirement.
U.S. Sentencing Guidelines Manual § 2J1.7 (2005) (emphasis added).
13
A.
As to Banks’s first contention – that the District Court did not apportion his
sentence pursuant to U.S.S.G. § 2J1.7 – no plain error was committed. We initially
observe that the sentencing guidelines are advisory rather than binding. See United States
v. Davis, 407 F.3d 162, 163 (3d Cir. 2005) (quoting United States v. Booker, 543 U.S.
220, 245 (2005)). In any event, Banks’s argument is meritless, as the District Court did
apportion Banks’s sentence at the sentencing hearing:
. . . the first part of the imprisonment is for the 19 points and the
criminal history category, and then there is the additional
enhancement for the Section 2J1.7, which brings that from the
level of 46 to 57 months up to the 51 to the 63 months. So the
Court chose to sentence at the higher end of the sentencing
range. . . . So when you add the term for Counts One through
Eight, which was being served concurrently, to the term being
served under Section 2J1.7, that brings it to a total of 63 months.
(App. 387.) Further, in the judgment form, to which the § 2J1.7 Commentary specifically
refers, the District Court again specified the portion of the sentence attributable to the
offense and enhancement, respectively:
Defendant’s sentence of 63 months for the eight counts of mail
fraud is within the advisory guidelines range, which proscribes
(sic) a sentence of 37 to 46 months (which the court found to be
46 months) and which by reason of the defendant’s sentence
[sic] enhanced pursuant to United States Sentencing Guideline
Section 2J1.7 by an increase in the total offense level by three
points resulting in the sentence falling within the advisory
guideline range of 51 to 63 months (which the court found to be
63 months).
(App. 12.) The sentence increment tied to the enhancement is readily calculated by
14
subtracting from Banks’s total sentence – 63 months – the portion linked to the
underlying offense – 46 months. No plain error was committed.
B.
The District Court’s imposition of a consecutive, rather than a concurrent, sentence
also did not constitute plain error. U.S.S.G. § 5G1.3 is no longer binding. See Booker,
543 U.S. at 264. Instead, a sentence is reasonable if the District Court considers “the
§ 3553(a) factors and any sentencing grounds properly raised by parties which have
recognized legal merit and factual support in the record.” United States v. Cooper,
437 F.3d 324, 332 (3d Cir. 2006). Here, Banks failed to invoke U.S.S.G. § 5G1.3(b) at
his sentencing hearing. Because the District Court was not bound to consider U.S.S.G.
§ 5G1.3(b), and Banks failed to request its consideration, no plain error was committed.
Further, the District Court’s decision to sentence consecutively also was not
plainly erroneous. When a defendant is subject to an undischarged term of imprisonment,
as was Banks, it is within a district court’s discretion to impose a concurrent or
consecutive sentence. See, e.g., United States v. Gonzales, 133 Fed. Appx. 1, 3 (3d Cir.
2005) (quoting United States v. Velasquaez, 304 F.3d 237, 243 (3d Cir. 2002)). The
commentary to U.S.S.G. § 5G1.3(c) provides several factors for the court to consider in
deciding whether to sentence concurrently or consecutively,7 yet “[n]othing in the
7
The Commentary to U.S.S.G. § 5G1.3(c) provides in pertinent part:
Under subsection (c), the court may impose a sentence
15
language [of section 5G1.3(c)] or its Commentary requires district courts to make specific
findings with respect to any or all of the factors listed in the Commentary or [18 U.S.C.]
section 3553(a).” United States v. Saintville, 218 F.3d 246, 249 (3d Cir. 2000) (citation
omitted). Here, in deciding to impose a consecutive sentence, the District Court
considered the nature and circumstances of Banks’s “serious mail frauds,” as well as
Banks’s criminal history, which suggested that his “life is geared to taking money from
individuals, devising schemes to deprive individuals of money and then showing no
remorse for it.” (App. 393.) Next, the court reasoned that a consecutive sentence was the
only way to “reflect the seriousness of these very serious mail crimes, the harm that has
been caused to the victims,” and the only way to “promot[e] respect for the law.”
concurrently, partially concurrently, or consecutively to the
undischarged term of imprisonment. In order to achieve a
reasonable incremental punishment for the instant offense and
avoid unwarranted disparity, the court should consider the
following:
(i) the factors set forth in 18 U.S.C. § 3584 (referencing 18
U.S.C. § 3553(a));
(ii) the type (e.g., determinate, indeterminate/parolable) and
length of the prior undischarged sentence;
(iii) the time served on the undischarged sentence and the
time likely to be served before release;
(iv) the fact that the prior undischarged sentence may have
been imposed in state court rather than federal court, or
at a different time before the same or different federal
court; and
(v) any other circumstance relevant to the determination of
an appropriate sentence for the instance offense.
U.S. Sentencing Guidelines Manual § 5G1.3 cmt. n.3(A) (2005).
16
(App. 393-94.) Further, the court reasoned that imposing a consecutive sentence was
necessary to deter, and protect society from, the Defendant, who had engaged in mail
fraud in “three separate instances.” (App. 394.) Finally, the court noted that a
consecutive sentence would avoid unwarranted sentence disparities, as another court
would “have imposed the same sentence,” given Banks’s history. (App. 396.) Thus, the
District Court reasonably exercised its discretion in ordering a consecutive sentence.
V.
For the reasons set forth above, we will AFFIRM the Judgment and Commitment
Order of the District Court on all grounds.
17