2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-6-2011

USA v. Frederick Banks

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1414

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2011

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2011 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Frederick Banks" (2011). 2011 Decisions. Paper 1144.

http://digitalcommons.law.villanova.edu/thirdcircuit_2011/1144
1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-1414

___________

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 Action No. 03-cr-245)

District Judge: Honorable Nora Barry Fischer

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 3, 2011

Before: SCIRICA, SMITH and VANASKIE, Circuit Judges

(Opinion filed: June 6, 2011 )

___________

OPINION

___________

PER CURIAM

Frederick H. Banks appeals from an order of the United States District Court for 

the Western District of Pennsylvania, which denied his “Motion to Modify Special 

Assessment and Restitution for Changed Circumstances” for lack of jurisdiction. For the 
2

reasons that follow, we will affirm.

I.

In October 2004, a federal jury found Banks guilty of mail fraud, criminal 

copyright infringement, uttering and possessing counterfeit or forged securities, and 

witness tampering. These charges stemmed from Banks‟ sales of illegally copied 

(“pirated”) versions of copyrighted Microsoft software products through an Internet 

marketplace website, Amazon.com. The District Court subsequently sentenced Banks to 

sixty months of imprisonment, to be followed by three years of supervised release. The 

Court also imposed restitution in the sum of $70,708.59, and a special assessment of 

$700.00, see 18 U.S.C. § 3013. This Court affirmed the judgment and sentence, United 

States v. Vampire Nation, 451 F.3d 189 (3d Cir. 2006), and the United States Supreme 

Court denied Banks‟ petition for certiorari, Banks v. United States, 127 S. Ct. 424 (2006). 

On December 15, 2009, Banks filed a motion asking the District Court to modify

his financial obligations pursuant to 18 U.S.C. § 3572(d). Banks claimed that he was no 

longer able to pay the special assessment or restitution because he does not earn sufficient 

income in prison, and asked the Court to “set a payment schedule of $0.00 per month.” 

(Supplemental Appendix “SA” at 1.) The government opposed the motion on the 

grounds that: (1) the District Court lacked authority under section 3572(d) to modify the 

special assessment or restitution; and (2) even if it did have authority to do so, 

modification was not warranted under the “economic hardship” provision of § 3572(d). 

The District Court denied the motion, agreeing with the government that it lacked 

authority to modify the special assessment or restitution order imposed as a part of the 
3

judgment in his case. The Court further noted that even if it had jurisdiction to modify 

the assessment, it would deny the motion because Banks‟ alleged change in economic 

circumstances was self-induced. Banks filed a timely appeal.

II.

We have jurisdiction to review the District Court‟s order pursuant to 28 U.S.C. § 

1291.1 We may affirm the District Court on grounds other than those relied on by the 

District Court. Kabakjian v. United States, 267 F.3d 208, 213 (3d Cir. 2001). 

Banks argues that the District Court erred in determining that it lacked jurisdiction 

to modify the order of restitution or special assessment imposed in his case. Indeed, a 

court has jurisdiction to modify a payment schedule if there has been “any material 

change in the defendant‟s economic circumstances that might affect the defendant‟s 

ability to pay restitution.” 18 U.S.C. § 3664(k); United States v. Jaffe, 417 F.3d 259, 267 

(2d Cir. 2005) (district court retains jurisdiction to amend or adjust restitution order if 

there is any material change in defendant‟s economic circumstances).2 

 

1 We do not have jurisdiction, however, to review the District Court‟s Order denying 

Banks‟ motion for reconsideration, which he filed in the District Court 

contemporaneously with his notice of appeal, because Banks did not file a notice of 

appeal from that Order.

2 Banks cited 18 U.S.C. § 3572(d)(3) as authority for allowing the court to adjust the 

payment schedule. While, as Appellee points out, that provision refers to a “fine,” and 

Banks was seeking modification of an order of restitution, “the [Mandatory Victims 

Restitution Act] provides that „all provisions of [§ 3664(m)(1)(A)] are available to the 

United States for the enforcement of an order of restitution,‟ 18 U.S.C. § 3613(f), and § 

3664(m)(1)(A) provides that an order of restitution may be enforced in the same manner 

as a fine.” United States v. Hyde, 497 F.3d 103, 108 n.9 (1st Cir. 2007). However, as 

section 3664(k) refers specifically to modification of a restitution order, the District Court 

could have construed Banks‟ motion as seeking relief pursuant to that section.
4

Here, although the District Court may have erred by failing to recognize that it 

potentially had jurisdiction to entertain Banks‟ motion, any error is without consequence, 

as Banks failed to show that there had been a “material change” in his “economic 

circumstances.” As the District Court noted, at the time that Banks filed his motion in 

December 2009, he held a prison job. (SA at 41.) At that time, Banks had not received 

income since September 2009, however, because he had not been reporting to work. (Id.) 

Because Banks has not provided any records contradicting the information provided by 

the Bureau of Prisons, we agree with the District Court that any change in Banks‟ 

economic circumstances was self-induced and hardly constitutes a material change in 

economic circumstances. 

To the extent that Banks also attempted to challenge in the District Court the 

overall validity of the District Court‟s restitution order, the limited jurisdiction conferred 

by section 3664(k) does not encompass an attack on the overall validity of a restitution 

order. Cf. Matheny v. Morrison, 307 F.3d 709, 711 (8th Cir. 2002) (a motion to suspend 

the payment of a fine is not the “proper vehicle” for bringing such a claim).

For the foregoing reasons, we will affirm the District Court‟s judgment.