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Precedential or Non-Precedential: Non-Precedential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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"USA v. Banks" (2008). 2008 Decisions. Paper 1442.
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DLD-123                                                        NOT PRECEDENTIAL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, 

, 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, 

(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., 

, 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 

. 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.” 

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, 

,

1228-29 (10 th Cir. 2006); Kapral v. United States, 

, 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, 

, 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, 

, 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