United States v. Frederick Banks , 693 F. App'x 124 ( 2017 )

ALD-287 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-1723
___________
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. Crim. No. 2-03-cr-00245-001)
District Judge: Honorable Nora Barry Fischer
____________________________________
Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P.
10.6 and Whether a Certificate of Appealability Should Issue
June 22, 2017
Before: MCKEE, JORDAN and RESTREPO, Circuit Judges
(Opinion filed July 20, 2017)
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OPINION *
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PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Frederick Banks appeals the District Court’s order denying his motion to vacate a
prior order and reopen his case. For the reasons below, we will summarily affirm the
District Court’s order.
In 2004, Banks was convicted of mail fraud, criminal copyright infringement,
uttering and possession of a counterfeit or forged security, and witness tampering. See
United States v. Vampire Nation, 451 F.3d 189, 192 (3d Cir. 2006). He was sentenced to
60 months in prison and 36 months of supervised release. After serving his prison
sentence, Banks began to serve his supervised release.
By order entered October 29, 2014, the District Court determined that Banks’s
supervised release was subject to revocation because he had committed wire fraud and
aggravated identity theft. It also denied a motion to compel that Banks had filed,
rejecting his arguments that he was subject to a warrant issued pursuant to the Foreign
Intelligence Surveillance Act (FISA). See 50 U.S.C. § 1801 et seq. The District Court
noted that the Government had not sought to introduce any evidence from a FISA warrant
and there was no evidence any such warrant existed. Banks was subsequently sentenced
to time served.
Banks appealed. We affirmed the denial of the motion to compel and concluded
that the District Court’s finding that there was no evidence of a warrant was not clearly
erroneous. United States v. Banks, 618 F. App’x 82, 84 (3d Cir. 2015). We also noted
that, at the time of his appeal, Banks was no longer in custody for that conviction. Id.2
On March 17, 2017, Banks filed a “Motion to Vacate Court Order Denying Oral
Motion for FISA Electronic Surveillance (October 29, 2014) and to Reopen Case.” The
District Court denied the motion, and Banks filed a notice of appeal.
The District Court has already addressed the issue of whether there was a FISA
warrant, and we affirmed its denial of the motion to compel. Citing to a civil case in
which a motion based on Fed. R. Civ. P. 60(b)(3) was granted, see Lonsdorf v. Seefedlt,
47 F.3d 893, 897 (7th Cir. 1995), Banks argues that the District Court can vacate an order
based on misrepresentations. However, even if Federal Rule of Civil Procedure 60(b)(3)
could be applied to criminal cases, Banks’s motion would be untimely. A motion made
pursuant to Rule 60(b)(3) must be made no more than one year after entry of the order at
issue. Here, Banks filed his motion in March 2017 and seeks to vacate an order from
October 2014. Moreover, even if the Rule 60(b)(3) motion were timely and appropriate,
or if some other kind of motion were viable, Banks has alleged no misrepresentations that
would support vacating the District Court’s order.
Banks requests that we construe his notice of appeal as a petition for a writ of
mandamus. We decline to do so. Banks has already unsuccessfully requested evidence
regarding purported FISA warrants and electronic surveillance. He has not demonstrated
a clear and indisputable right to mandamus relief. See Kerr v. U.S. Dist. Court, 426 U.S.
394, 403 (1976).
Summary action is appropriate if there is no substantial question presented in the
appeal. See Third Circuit LAR 27.4. For the above reasons, we will summarily affirm
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the District Court’s order. See Third Circuit I.O.P. 10.6. To the extent that a certificate
of appealability is necessary, we decline to issue one.
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