2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-20-2006

USA v. Banks

Precedential or Non-Precedential: Precedential

Docket No. 05-1715

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 05-1715

 

UNITED STATES OF AMERICA

v.

VAMPIRE NATION

a/k/a

FREDRIK VON HAMILTON

a/k/a

FREDERICK HAMILTON BANKS

Frederick H. Banks,

Appellant

 

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Criminal No. 03-cr-00245)

District Judge: Honorable Thomas M. Hardiman

 

Argued: May 16, 2006

Before: RENDELL, VAN ANTWERPEN, and WEIS, 

Circuit Judges.

(Filed June 20, 2006)

David B. Chontos (Argued)

Chontos & Chontos, P.C.

561 Beulah Road
2

Turtle Creek, PA 15145

Counsel for Appellant

Mary Beth Buchanan

Laura Schleich Irwin (Argued)

Office of the United States Attorney

United States Post Office and Courthouse

7th Avenue & Grant Street

Pittsburgh, PA 15219

Counsel for the United States

____

OPINION OF THE COURT

 

VAN ANTWERPEN, Circuit Judge.

On October 14, 2004, a jury in the Western District of

Pennsylvania convicted Frederick Banks on charges of mail fraud,

criminal copyright infringement, uttering and possessing

counterfeit or forged securities, and witness tampering. These

convictions stemmed from Banks’s sales of illegally copied

(“pirated”) versions of copyrighted Microsoft software products

through an Internet marketplace website, Amazon.com. Following

his conviction, the District Court, on February 25, 2005, imposed

on Banks a sentence that varied upward by three months from the

advisory sentence range set forth in the United States Sentencing

Guidelines (“Guidelines”), and, on the Government’s motion, also

issued an in personam forfeiture judgment in the amount of

Banks’s mail fraud proceeds. 

Before us now is Banks’s appeal from his conviction and

sentence, in which he asserts numerous claims of error based on the

District Court’s actions before his trial, on events occurring at his

trial, and on the District Court’s actions at his sentencing. Banks

was sentenced after the Supreme Court announced its landmark

decision in United States v. Booker, 543 U.S. 220 (2005). 

Of the seven issues Banks raises on appeal, two are novel to
3

this Court. First, Banks raises the question whether the District

Court was obligated to provide him with advance notice under

Federal Rule of Criminal Procedure 32(h) of its intent, under

Booker, to vary its sentence from the advisory sentence range set

forth in the Guidelines. Second, Banks questions whether the

District Court had statutory authority to order an in personam

forfeiture judgment against him for the amount of the proceeds he

obtained through his mail fraud. 

As we explain below, we find no error in the District

Court’s actions before, during, or after Banks’s trial or at his

sentencing. Furthermore, we conclude the District Court had

statutory authority to issue the in personam forfeiture judgment and

was not obligated to provide advance notice of its intent to vary

from Banks’s Guidelines sentencing range. Accordingly, we will

affirm Banks’s convictions and sentence in their entirety.

I.

In setting forth the facts of this case, we construe them in 

the light most favorable to the Government, as we must following

the jury’s guilty verdict. Glasser v. United States, 315 U.S. 60, 80

(1942). According to the evidence adduced at trial, in 2002 Banks

opened a seller’s account on Amazon.com, an on-line marketplace,

using the names Rick Burgess and John Cain. When Banks opened

these accounts, Amazon.com informed him that only full retail

versions of software products could be sold through his account

and that sales of copied or duplicated software were prohibited. 

Banks then posted for sale on his account various Microsoft

products, for which products he set prices and posted additional

information concerning the products’ condition. Through his

seller’s account, Banks sold copies of Microsoft products to a

variety of buyers from 2002 into 2003. These buyers suspected

that the software they purchased from Banks was illegally copied

because the compact discs (“CDs”) they received from Banks

contained generic white CDs with fake labels and fake package

inserts. 

By 2003, Amazon.com had received several complaints
4

about Banks’s activities. In January, 2003, Amazon.com informed

Banks it was blocking his account because of reports of buyers

receiving “recopied” Microsoft software. 

Banks then opened a new seller’s account on Amazon.com

under the name Mark Howard. Using this new account, Banks

posted additional advertisements offering various Microsoft

products for sale. One buyer, Action Software, Inc., purchased a

total of $294,859.00 of Microsoft products from Banks. Action

Software expected to receive 50 boxes of product, but only 5 boxes

of product arrived via United Parcel Service (“UPS”), which boxes

contained CDs with the IBM name on them. After opening one of

these boxes, Action Software’s representative, Samantha Belfer,

concluded the company had been defrauded. However, because

Banks had sent the CDs cash-on-delivery, Belfer had already given

UPS a check for $49,000.00 made out to Banks in exchange for the

CDs.

After Banks denied knowledge of the IBM CDs, Belfer

contacted the Federal Bureau of Investigation (“FBI”), which

initiated an investigation. FBI agents went to Banks’s residence,

whereupon Banks informed them he had no knowledge of why

Action Software did not receive its Microsoft products. 

In May, 2003, the FBI obtained a search warrant for Banks’s

residence. A search of the residence revealed computers, blank

CDs, a CD duplicating machine, and empty boxes from Microsoft

and IBM software. The FBI also searched the contents of Banks’s

computers, which contents included images of the front and back

sides of Microsoft software boxes. 

Meanwhile, Banks continued to sell alleged Microsoft

software and approached VioSoftware, a Colorado-based reseller

of software from which Banks had purchased a Microsoft product

in 2002. Banks convinced Warren Do, the chief executive officer

of VioSoftware, to sell him $58,661 of Microsoft software. Banks

told Do he needed the products immediately, and Do agreed to

accept cash on delivery in lieu of advance payment. 

VioSoftware then sent Banks a partial shipment via Federal
5

Express on August 28, 2003, and Banks presented Federal Express

with a check for $58,661 and made payable to VioSoftware, which

check was actually fake. When Do received the fake check, he

contacted Banks to tell him that he wanted VioSoftware’s products

returned and that he knew the check was a fake and had spoken to

the FBI. On September 3, 2003, Banks responded that he would

return the products if Do would return the fake check to him. Do

agreed to return Banks’s fake check upon receipt of VioSoftware’s

products.

On that same date, Do received a subpoena from a grand

jury in the Western District of Pennsylvania. The next day, Do

received only a partial shipment from Banks. Do then emailed

Banks to inform him that he had been subpoenaed, that he had

spoken with the FBI, and again requested the return of

VioSoftware’s products. On September 17, Do emailed Banks:

“I spoke to them on Monday again and told them the truth.

I told them I was trying to work it out with you and if you

paid me back for everything you owe I would send the

check back to you. I’m supposed to call them in a few days

to give them a status.”

S. App. 55. Banks responded:

“Please don’t give them any information they can still

supeana [sic] you if you do! and this would all be for

nothing. it’s up to you of course but I would prefer that.

let’s consider that we owe you and are working off a

credit.”

S. App. 55. Banks eventually sent Do a package, but the package

contained only damaged materials. In the meantime, Banks sold to

other buyers some of the software he had obtained from

VioSoftware. 

Based on information that Do supplied, the FBI searched

Banks’s residence a second time on September 29, 2003. That

search uncovered additional evidence of software piracy, including

computers and Microsoft software products and packages. 
6

On October 7, 2003, a grand jury returned a five-count

indictment against Banks. A superseding indictment issued on

May 4, 2004, adding counts of uttering and possessing counterfeit

or forged securities, and on August 10, 2004, a grand jury returned

a second superseding indictment charging Banks with three counts

of mail fraud, 18 U.S.C. § 1341 (Counts One, Two, and Three);

one count of copyright infringement, 17 U.S.C. § 506(a)(1) and 18

U.S.C. § 2319(b)(1) (Count Four); one count of money laundering,

18 U.S.C. § 1957 (Count Five); one count of uttering and

possessing counterfeit and forged securities, 18 U.S.C. § 513(a)

(Count Six); and one count of witness tampering, 18 U.S.C. §

1512(b)(2)(A) (Count Seven). The second superseding indictment

also contained forfeiture allegations relating to, inter alia, Banks’s

alleged mail fraud. 

The case then proceeded to trial, and after ten days of

testimony, on October 14, 2004, the jury found Banks guilty on all

seven counts. At the close of trial, Banks moved for acquittal,

which motion the District Court denied. Before sentencing, the

Government filed a motion for an in personam money judgment

against Banks, alleging Banks had “acquired the sum of $70,708.59

from his violation of 18 U.S.C. § 1341.” App. 1442-43. 

At sentencing on February 25, 2005, the District Court heard

oral argument on the in personam forfeiture judgment issue, at

which Banks’s counsel claimed the District Court lacked statutory

authority to impose such a judgment. The District Court observed

that there was no controlling case law on the question whether the

Government was entitled to an in personam money judgment

without specific reference to any forfeitable property. 

Following argument, the District Court sentenced Banks.

Banks’s advisory Guidelines sentence range was 46-57 months, but

the District Court, after considering this advisory range, the

grounds raised by the parties and the factors set forth in 18 U.S.C.

§ 3553(a), sentenced Banks to 60 months imprisonment and three

years’ supervised release. App. 2. The District Court also ordered

an in personam forfeiture judgment against Banks for $70,708.59,

the amount of Banks’s mail fraud proceeds. App. 1444. This
Rule 32(h) states, 

1

“Before the court may depart from the applicable sentencing

range on a ground not identified for departure either in the

presentence report or in a party’s prehearing submission, the

court must give the parties reasonable notice that it is

contemplating such a departure. The notice must specify any

ground on which the court is contemplating a departure.” 

7

timely appeal followed.

II.

We have jurisdiction over the District Court’s Order of 

judgment and conviction pursuant to 28 U.S.C. § 1291. We have

jurisdiction to review Banks’s sentence pursuant to 28 U.S.C. §

3742(a). United States v. Cooper, 437 F.3d 324, 327 (3d Cir.

2006). 

III.

A.

We first address whether, after United States v. Booker, 543

U.S. 220 (2005), Rule 32(h) required the District Court to provide

advance notice of its intent to impose a sentence that varied from

the advisory Guidelines range. Although Banks’s advisory

Guidelines sentencing range was 46-57 months, the District Court

imposed a sentence of 60 months. The District Court did not,

however, make a formal departure from the Guidelines sentencing

range. 

In his brief, Banks contended that the District Court erred by

varying its sentence upward and failing to provide advance notice

of its intention to do so. Banks alleged this failure to provide

advance notice was a violation of Fed.R.Crim.P. 32(h). Banks Br. 1

at 39. In its brief, the Government correctly observed that Banks

did not object to his sentence and took the position that Banks

could not establish plain error because he failed to state what, if
For lexicographic purposes, we adopt the Eighth Circuit’s 2

terminology from United States v. Sitting Bear, 436 F.3d 929 (8th

Cir. 2006), where that court described post-Booker discretionary

sentences not based on a specific Guidelines departure provision as

“variances.” Id. at 932-33.

8

anything, he would have done differently at sentencing had he had

advance notice of the District Court’s intent to vary from the

advisory Guidelines sentence. Gov’t Br. at 45.

The parties, however, took somewhat different positions at

oral argument. Banks’s counsel conceded at that time that the

District Court’s sentence in this case was a “variance” based on an

exercise of its discretion under Booker and the factors set forth in

18 U.S.C. § 3553(a), and conceded that because the District Court

had engaged in a variance and not a departure under the

Guidelines, Rule 32(h) was not triggered and advance notice of the 2

variance was unnecessary. The Government took the position that

district courts should provide advance notice of their intent to vary

from a Guidelines sentencing range, regardless of whether that

variance is upward or downward. Our review of Booker’s effect

on Rule 32 and evolving sentencing jurisprudence leads us to

conclude the District Court was not obligated to provide Banks

with advance notice of the 3-month upward variance in his

sentence, where that variance was based on application of the §

3553(a) factors under Booker and not on a departure from the

Guidelines. 

Rule 32(h) was a response to the Supreme Court’s decision

in Burns v. United States, 501 U.S. 129 (1991), where the Court

held that an earlier version of Rule 32 required district courts to

give defendants advance notice before engaging in sua sponte

upward departures from Guidelines sentences. Id. at 136; United

States v. Walker, 447 F.3d 999, 1006 (7th Cir. 2006). Rule 32(h)

was adopted at a time when courts could only avoid a Guidelines

range by departing from the Guidelines. However, the Supreme

Court made clear in Booker that the Guidelines are now advisory.

Thus, district courts, post-Booker, exercise broad discretion in

imposing sentences, so long as they begin with a properly
 Under 18 U.S.C. § 3553(a), the relevant factors to be 3

considered at sentencing are:

“(1) the nature and circumstances of the offense and the

history and characteristics of the defendant;

(2) the need for the sentence imposed-

(A) to reflect the seriousness of the offense, to

promote respect for the law, and to provide just

punishment for the offense;

(B) to afford adequate deterrence to criminal

conduct;

(C) to protect the public from further crimes of the

defendant; and

(D) to provide the defendant with needed

educational or vocational training, medical care, or

other correctional treatment in the most effective

manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range

established for . . . the applicable category of offense

committed by the applicable category of defendant as set

forth in the guidelines. . . .”

9

calculated Guidelines range, fully consider the broad range of

factors set forth in 18 U.S.C. § 3553(a), and all grounds properly 3

advanced by the parties at sentencing. See Cooper, 437 F.3d at

329-30. Thus, district courts continue to consider all grounds

properly advanced by the parties at sentencing, as they did in the

past, and they continue to consider the Guidelines range, which is

now advisory. What has changed post-Booker, is that sentencing

is a discretionary exercise, and now includes a review of the factors

set forth in § 3553(a). These factors are known prior to sentencing.

Because defendants are aware that district courts will consider the

factors set forth in § 3553(a), we believe the element of “unfair

surprise” that Burns sought to eliminate is not present. See Walker,

447 F.3d at 1007 (observing that “defendants are on notice postBooker that sentencing courts have discretion to consider any of

the factors specified in § 3553(a)”); cf. United States v. Vaughn,
The right of victims to be heard is guaranteed by the Crime 4

Victims’ Rights Act (“CVRA”), Pub. L. No. 108-405, §§ 101-104

(2004) (codified at 18 U.S.C. § 3771). The right is in the nature of

an independent right of allocution at sentencing. See 18 U.S.C. §

10

430 F.3d 518, 524 (2d Cir. 2005) (concluding application of

Booker to cases on direct review was not ex post facto violation,

observing that “[j]ust as appellants had fair warning that their

conduct was criminal, they also had fair warning of the potential

penalties they faced. . .”). Thus, in the words of the Seventh

Circuit, “[n]ow that Booker has rendered the Guidelines advisory,

the concerns that animated the Court’s decision in Burns no longer

apply.” Walker, 447 F.3d at 1006. Accordingly, given that

defendants are aware that courts will consider the broad range of

factors set forth in § 3553(a) at sentencing, we perceive none of the

“unfair surprise” considerations that motivated the enactment of

Rule 32(h). 

Furthermore, the requirement of Rule 32(h) that the court

specify “any ground” of contemplated departure from the

Guidelines range was designed for pre-Booker departures, which

were constrained by the provisions of the Guidelines pertaining to

departures. See Guidelines Chapter 5, Part K. The Guidelines

have now become advisory and they no longer limit the grounds a

court can consider at sentencing. Thus, the Guidelines are now

only one factor among many which can influence a discretionary

sentence. Application of the advance notice requirement of Rule

32(h) to discretionary sentence would elevate the advisory

sentencing range to a position of importance that it no longer can

enjoy. See Cooper, 437 F.3d at 331 (rejecting argument that a

within-Guidelines sentence was necessarily reasonable and

observing that holding otherwise “would come close to restoring

the mandatory nature of the guidelines excised in Booker”) (citing

United States v. Crosby, 397 F.3d 103, 115 (2d Cir. 2005)). 

Booker contemplates that the district court will impose a

discretionary sentence after consideration of the advisory

Guidelines, the grounds raised by counsel, the defendant’s

allocution, victim statements, other evidence, and the factors set 4
3771(a)(4) (affording victims a “right to be reasonably heard at any

public proceeding in the district court involving release, plea,

sentencing, or any parole proceeding”). Under the CVRA, courts

may not limit victims to a written statement. See Kenna v. United

States District Court, 435 F.3d 1011, 1017 (9th Cir. 2006)

(Kozinski, J.) (“Limiting victims to written impact statements,

while allowing the prosecutor and the defendant the opportunity to

address the court, would treat victims as secondary participants in

the sentencing process. The CVRA clearly meant to make victims

full participants.”). Given that it would be impossible to predict

what statements victims might offer at sentencing, it would be

unworkable to require district courts to provide advance notice of

their intent to vary their discretionary sentence based on victim

statements that had not yet been made.

We recognize that two other circuits have held to the 5

contrary. United States v. Davenport, 445 F.3d 366, 371 (4th Cir.

2006); United States v. Dozier, 444 F.3d 1215, 1216-17 (10th Cir.

2006). While according due respect to the decisions of our sister

Circuits, we reiterate that our conclusion is consonant with the fact

that post-Booker, defendants are on full notice that a sentencing

court will consider the § 3553(a) factors and in doing so, may

exercise its discretion to vary from a Guidelines sentence in a way

that is not based on a specific Guidelines departure provision. 

11

forth in § 3553(a). Cooper, 437 F.3d at 332. Booker does not

contemplate that the court will somehow arrive at its sentence prior

to sentencing, and requiring advance notice of “any ground”

beyond the factors set forth in § 3553(a) would undoubtedly prove

to be unworkable. 

The First, Seventh, Eighth, and Eleventh Circuits have all

concluded that, post-Booker, a sentencing court need not provide

advance notice of a variance – based on a review of the case’s

history and considerations of the § 3553(a) factors – from an

advisory Guidelines sentence. United States v. Mateo, 2006 WL 5

1195676, at *1 (1st Cir. May 5, 2006) (unpublished) (district

court’s failure to provide advance notice of variance not plain

error); Walker, 447 F.3d at 1006-07; United States v. Egenberger,

424 F.3d 803, 805 (8th Cir.), cert. denied, 126 S. Ct. 1106 (2006)
While Banks does not raise the issue on appeal, we are 6

satisfied the District Court engaged in sufficient review of the 

§ 3553(a) factors. See Cooper, 437 F.3d at 329.

12

(notice under Rule 32(h) not required where “the court properly

calculated the advisory Guidelines range, and only then, after

considering all of the additional § 3553(a) factors as required by

Booker, did the district court enter a sentence that was above the

advisory Guidelines range); United States v. Simmerer, 156 Fed.

Appx. 124, 127-28 (11th Cir. 2005) (post-Booker, failure to give

prior notice under Rule 32(h) of a contemplated upward “variance”

from the Guidelines sentencing range not plain error). We join

these courts of appeals and conclude Banks was not entitled to

advance notice under Rule 32(h) of the District Court’s intent to

vary its sentence from the advisory Guidelines sentencing range

where that variance was based on the Court’s discretion under

Booker and § 3553(a) and not on a departure from the advisory

Guidelines range. Nevertheless, if a court is contemplating a

departure, it should continue to give notice as it did before Booker,

see Cooper, 437 F.3d at 327, and district courts should be careful

to articulate whether a sentence is a departure or a variance from an

advisory Guidelines range.6

B.

In his next claim of error, Banks argues the District Court

erred by issuing an in personam forfeiture judgment against him in

the amount of $70,708.59, in direct relation to the proceeds of his

mail fraud crimes. Banks takes the position that (1) the District

Court lacked statutory authority under 28 U.S.C. § 2461(c) to issue

a criminal forfeiture of his mail fraud proceeds; and (2) the District

Court could not issue a forfeiture order for an amount that

exceeded Banks’s available assets at the time of sentencing. These

are both issues of first impression in this Court. Because these

issues present questions of law, we exercise plenary review.

United States v. Ledesma-Cuesta, 347 F.3d 527, 530 (3d Cir.

2003).

1. 
Section 2461(c) is part of the Civil Asset Forfeiture Reform 7

Act of 2000 (“CAFRA”), Pub L. 106-185, § 16. 

We observe that § 2461(c) was amended on March 9, 2006, 8

and now states:

“If a person is charged in a criminal case with a violation of

an Act of Congress for which the civil or criminal forfeiture

of property is authorized, the Government may include

notice of the forfeiture in the indictment or information

pursuant to the Federal Rules of Criminal Procedure. If the

defendant is convicted of the offense giving rise to the

forfeiture, the court shall order the forfeiture of the property

as part of the sentence in the criminal case pursuant to the

Federal Rules of Criminal Procedure and section 3554 of

title 18, United States Code. The procedures in section 413

of the Controlled Substances Act (21 U.S.C. 853) apply to

13

To place the issue of the District Court’s statutory authority

to issue the in personam forfeiture judgment in perspective, we

consider the applicable statutory framework. In the second

superseding indictment and its motion for a forfeiture judgment,

the Government relied upon 28 U.S.C. § 2461(c) as grounds for

obtaining criminal forfeiture of the proceeds of Banks’s mail fraud

proceeds. The applicable edition of that statute reads, 7

“If a forfeiture of property is authorized in connection with

a violation of an Act of Congress, and any person is charged

in an indictment or information with such violation but no

specific statutory provision is made for criminal forfeiture

upon conviction, the Government may include the forfeiture

in the indictment or information in accordance with the

Federal Rules of Criminal Procedure, and upon conviction,

the court shall order the forfeiture of the property in

accordance with the procedures set forth in section 413 of

the Controlled Substances Act (21 U.S.C. 853), other than

subsection (d) of that section.” 

28 U.S.C. § 2461(c). 

8
all stages of a criminal forfeiture proceeding, except that

subsection (d) of such section applies only in cases in which

the defendant is convicted of a violation of such Act.”

In relevant part, 18 U.S.C. § 982 states, 9

“§ 982. Criminal forfeiture

(a)(1) The court, in imposing sentence on a person

convicted of an offense in violation of section 1956, 1957,

or 1960 of this title, shall order that the person forfeit to the

United States any property, real or personal, involved in

such offense, or any property traceable to such property.

(2) The court, in imposing sentence on a person convicted

of a violation of, or a conspiracy to violate--

(A) section . . . 1341 [mail fraud] . . . of this title,

affecting a financial institution . . . .”

In relevant part, 18 U.S.C. § 981 states, 10

“§ 981. Civil forfeiture

(a)(1) The following property is subject to forfeiture to the

United States:

(C) Any property, real or personal, which constitutes

or is derived from proceeds traceable to a violation

of . . . any offense constituting “specified unlawful

14

As pertains to mail fraud proceeds, criminal forfeiture for

such proceeds is specifically authorized when special

circumstances are present, such as when the mail fraud affects a

financial institution, see 18 U.S.C. § 982(a). Because no financial 9

institution was involved in this case, the Government accordingly

seeks criminal forfeiture for Banks’s mail fraud proceeds under 28

U.S.C. § 2461(c) through the civil forfeiture provision, 18 U.S.C.

§ 981(a)(1)(C), which does not require any special circumstances

10
activity” (as defined in section 1956(c)(7) of this

title), or a conspiracy to commit such offense.”

Section 1956(c)(7) of Title 18 in turn references the offenses

identified in 18 U.S.C. § 1961(1), which list of offenses includes

mail fraud without any limitation to mail fraud perpetrated against

financial institutions.

15

as a prerequisite to forfeiture for mail fraud crimes. 

Banks contends that 28 U.S.C. § 2461(c) does not authorize

such forfeiture because 18 U.S.C. § 982(a)(2)(A) provides for

criminal forfeiture only in specific circumstances of mail fraud

(i.e., mail fraud perpetrated against financial institutions) and no

such circumstances are present here. Banks Br. at 48. As support

for his argument, Banks cites to a district court opinion, United

States v. Croce, 345 F. Supp.2d 492 (E.D. Pa. 2004) (“Croce II”),

in which that court stated, “18 U.S.C. § 982(a)(2)(A) is a specific

statutory provision made for criminal forfeiture upon conviction of

mail fraud . . . so [28 U.S.C.] § 2461(c) does not authorize us to

order criminal forfeiture of mail fraud proceeds.” Id. at 496; see

also id. at n.9. Thus, we must resolve whether 28 U.S.C. § 2461(c)

authorizes criminal forfeiture of mail fraud proceeds that are not

the result of mail fraud perpetrated against a financial institution.

To interpret the statute, we begin with its plain language. 

In re Armstrong World Indus., Inc., 432 F.3d 507, 512 (3d Cir.

2005). Ascribing plain meaning to the words of 28 U.S.C. §

2461(c), criminal forfeiture is not permitted unless (1) a substantive

provision exists for civil forfeiture of the criminal proceeds at

issue; and (2) there is no specific statutory provision that permits

criminal forfeiture of such proceeds. Thus, we read the statute,

enacted eight years after Congress last amended 18 U.S.C. §

982(a)(2), as a “bridge” or “gap-filler” between civil and criminal

forfeiture, in that it permits criminal forfeiture when no criminal

forfeiture provision applies to the crime charged against a

particular defendant but civil forfeiture for that charged crime is

nonetheless authorized. Accordingly, under our reading, § 2461(c)

permits criminal forfeiture for general mail fraud because (1) 18
Thus, § 2461(c) would not by itself enable criminal 11

forfeiture proceeds from mail fraud against financial institutions,

because a statutory provision for criminal forfeiture of proceeds

from that kind of mail fraud, 18 U.S.C. § 982(a)(2)(A), already

exists. See United States v. Thompson, 2002 WL 31667859, at *2

(N.D.N.Y. Nov. 26, 2002) (disallowing criminal forfeiture of drug

crime proceeds under § 2461(c) because charged drug crime had

associated statutory provision for criminal forfeiture upon

conviction). 

16

U.S.C. § 981(a)(1)(C) authorizes civil forfeiture for general mail

fraud; and (2) no statutory provision specifically authorizes

criminal forfeiture for general mail fraud. See United States v. 11

Schlesinger, 396 F. Supp.2d 267, 275 (E.D.N.Y. 2005) (construing

§ 2461(c) as “a broad ‘gap-filler’” that enables criminal forfeiture

when civil forfeiture is permitted). 

The district court in Croce II, on which case Banks relies,

took a different, more restrictive view of § 2461(c). That court

concluded that by drafting 18 U.S.C. § 982(a)(2)(A) to permit

criminal forfeiture only for mail fraud carried out against financial

institutions, Congress had concluded that criminal forfeiture for

mail fraud was “only appropriate when the mail fraud affected a

financial institution.” 345 F. Supp.2d at 496 n.9. In that court’s

view, “[i]t seems highly unlikely that, in passing the broad

language of § 2461(c), Congress intended to silently remove the

limitations on criminal forfeiture in mail fraud cases that it had

carefully inserted into § 982(a)(2)(A).” Id. 

Although Croce II presents a plausible construction of the

statute, we are not persuaded. Section 2461(c) authorizes criminal

forfeiture where “a forfeiture is authorized in connection with a

violation of an Act of Congress,” which Act in this case is the civil

forfeiture statute, 18 U.S.C. § 981. Section 981 in turn permits

forfeiture of proceeds from the crimes identified in 18 U.S.C. §

1956(c)(7). Section 1956(c)(7) in turn includes the list of crimes

set forth in 18 U.S.C. § 1961(1), which list of crimes includes

“mail fraud,” not only mail fraud “affecting a financial institution.”

Accordingly, we read the plain language of § 2461(c), by virtue of
17

the chain of cross-references leading to § 1956(c)(7) and §

1961(1), to explicitly permit criminal forfeiture for general mail

fraud, not just for mail fraud against financial institutions. See

United States v. Lebed, 2005 WL 2495843, at *8 (E.D. Pa. Oct. 7,

2005) (concluding that “by virtue of the cross reference from the

civil forfeiture statute to the money laundering statute (§

1956(c)(7)) and its cross reference to the RICO statute [§ 1961(1),

listing crimes including general mail fraud], criminal forfeiture

may now be invoked for general instances of mail and wire fraud,

since these crimes do not contain any specific statutory provisions

for criminal forfeiture.”). Were we to conclude otherwise, we

would be ignoring § 2461(c)’s cross-reference to a list of crimes

that includes general mail fraud, and we are mindful that “[i]t is a

cardinal principle of statutory construction that a statute ought,

upon the whole, to be so construed that, if it can be prevented, no

clause, sentence, or word shall be superfluous, void, or

insignificant.” TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001). 

In sum, we reject Croce II and read the plain language of 28

U.S.C. § 2461(c) as permitting criminal forfeiture of proceeds from

general mail fraud because a statutory provision – 18 U.S.C. §

981(a)(2)(C) – permits civil forfeiture of such proceeds and no

criminal forfeiture provision applies to general mail fraud. Accord

Lebed, 2005 WL 2495843, at *7-8; Schlesinger, 396 F.Supp. 2d at

275 (“[U]nder the plain terms of sec. 2461(c), criminal forfeiture

for mail and wire fraud is permitted.”). 

To the extent that the text of the statute is ambiguous, our

conclusion is bolstered by the legislative history of CAFRA and §

2461. Before Congress enacted CAFRA in 2000, if a forfeiture

statute did not authorize a mode of recovery, that statute was

deemed to authorize civil forfeiture only. Congress then enacted

28 U.S.C. § 2461(c) to extend the availability of criminal forfeiture

to certain enumerated crimes that lacked an associated criminal

forfeiture provision, observing:

“[I]t makes sense to extend the availability of forfeiture to

these other crimes. Rather then simply making civil

forfeiture available for all federal crimes, some of which do

not generate criminal proceeds, [CAFRA] would amend
18

sections 981(a)(1) and 982(a)(2) of title 18 to extend

proceeds forfeiture (both civil and criminal) to the crimes

enumerated in the money laundering statute, 18 U.S.C. §

1956(c)(7).”

H.R. Rep. 105-358, at *35 (1997); see also id. (“H.R. 1965 would

amend section 2461 of title 28 to give the government the option

of pursuing criminal forfeiture as an alternative to civil forfeiture

if civil forfeiture is otherwise authorized.”). Thus, Congress

intended to expand the availability of criminal forfeiture to the

comprehensive list of crimes referenced in 18 U.S.C. § 1956(c)(7),

which list includes general mail fraud, not only mail fraud

perpetrated against a financial institution. 

The intent to provide for criminal forfeiture in general mail

fraud cases is further demonstrated by Congress’s decision in 2000

to amend the civil forfeiture statute, 18 U.S.C. § 981, by striking

the language “affecting financial institutions” for mail and wire

fraud crimes and inserting language permitting civil forfeiture for

the crimes listed in 18 U.S.C. § 1956(c)(7). See Pub. L. 106-185,

at § 20 (2000). In our view, Congress’s expansion of the crimes

for which civil forfeiture is available taken in conjunction with its

decision to enact 28 U.S.C. § 2461(c), which broadened the range

of crimes for which criminal forfeiture was available, can only be

viewed as intent to make criminal forfeiture essentially coextensive with civil forfeiture. Accordingly, we conclude the

legislative history of 28 U.S.C. § 2461(c) provides additional

support for our reading of the statute and our ultimate conclusion

that the District Court had statutory authority to issue the in

personam criminal forfeiture judgment. 

2.

In his second attack on the District Court’s in personam

forfeiture order, Banks takes the position that the District Court

could not issue a criminal forfeiture order for an amount that

exceeded the value of his assets at the time of sentencing. See

Banks Br. at 50-55 (citing United States v. Croce, 334 F. Supp.2d

781 (E.D. Pa. 2004) (“Croce I”)). The Croce I court reasoned,

based on a review of the history of forfeiture, that a defendant who
As further evidence the statute was not intended to limit 12

forfeitures to those assets available at the time of a forfeiture order,

we observe that 18 U.S.C. § 853(o) states that “[t]he provisions of

this section shall be liberally construed to effectuate its remedial

purposes.” By requiring a defendant to return his illicit gains

without regard to his solvency, we believe the forfeiture judgment

issued in this case serves the remedial purposes of 18 U.S.C. § 853

by combating mail fraud schemes and deterring those who would

commit such crimes.

19

had obtained and subsequently dissipated unlawful proceeds could

not be subject to a forfeiture order for those now-dissipated

proceeds because one can not forfeit that which she does not own.

See 334 F.Supp. 2d at 794. Based on our review of the applicable

statutes, we disagree with Banks and reject the reasoning of Croce

I.

In 28 U.S.C. § 2461(c), Congress stated that criminal

forfeitures are to be carried out pursuant to the procedures set forth

in 18 U.S.C. § 853. Section 853 states that the amount of a

criminal forfeiture is directly related to the amount of the criminal

proceeds: “[m]andatory forfeiture is concerned not with how much

an individual has but with how much he received in connection

with the commission of the crime.” United States v. Casey, 444

F.3d 1071, 1077 (9th Cir. 2006) (citing 18 U.S.C. § 853). Thus,

“[w]hen a defendant has been convicted of committing $1.6 million

in money laundering offenses . . . the government has proved

beyond a reasonable doubt that it is entitled to $1.6 million in

criminal forfeiture.” United States v. Voigt, 89 F.3d 1050, 1084

(3d Cir. 1996). Given that § 853 does not contain any language

limiting the amount of money available in a forfeiture order to the

value of the assets a defendant possesses at the time the order is

issued, we think it clear that an in personam forfeiture judgment

may be entered for the full amount of the criminal proceeds. 

12

In the interest of clarity, we emphasize that the District

Court ordered a forfeiture judgment in personam. The in personam

designation distinguishes this judgment from one in rem. See

United States v. Sandini, 816 F.2d 869, 872-73 (3d Cir. 1987);
20

United States v. Hall, 434 F.3d 42, 59 (1st Cir. 2006) (“criminal

forfeiture is a sanction against the individual defendant rather than

against the property itself”) (citations omitted). Furthermore, the

in personam forfeiture judgment may also be distinguished from a

general judgment in personam. The judgment in personam here is

one in forfeiture and is limited by the provisions of 21 U.S.C. §

853(a) to:

“(1) any property constituting, or derived from any proceeds

the person obtained, directly or indirectly, as a result of such

violation; 

(2) any of the person’s property used, or intended to be

used, in any manner or part, to commit, or to facilitate the

commission of, such violations; . . . .”

21 U.S.C. § 853(a). In the event that property traceable to the

crime is not available, the Court may direct forfeiture of “substitute

property” subject to the conditions set out in 21 U.S.C. § 853(p).

That provision applies, however, only if the traceable property: 

 “A. Cannot be located upon the exercise of due diligence;

B. Has been transferred or sold to, or deposited with, a

third party; 

C. Has been placed beyond the jurisdiction of the Court; 

D. Has been substantially diminished in value; or 

E. Has been commingled with other property which cannot

be divided without difficulty.”

 21 U.S.C. § 853(p). Federal Rule of Criminal Procedure

32.2 sets out the steps to be followed in forfeiture proceedings. It

is apparent, therefore, that the scope of in personam judgment in

forfeiture is more limited than a general judgment in personam.

We observe that adopting Banks’s position would permit

defendants who unlawfully obtain proceeds to dissipate those

proceeds and avoid liability for their ill-gotten gains. Several other

courts of appeals have rejected Banks’s view of forfeiture. In

United States v. Hall, the First Circuit observed that a money

judgment permits the Government to collect on a forfeiture order

“even if the defendant does not have sufficient funds to cover the
In relevant part, 17 U.S.C. § 506 states, 13

“(a) Criminal infringement. – 

(1) In general.– Any person who willfully infringes

a copyright shall be punished as provided under

section 2319 of title 18, if the infringement was

committed – 

(A) for purposes of commercial advantage or

21

forfeiture at the time of conviction.” 434 F.3d at 59. The First

Circuit went on to note that permitting a money judgment as part

of a forfeiture order “prevents a [criminal] from ridding himself of

his ill-gotten gains to avoid the forfeiture sanction.” Id. The

Seventh Circuit reached the same conclusion in United States v.

Baker, 227 F.3d 955 (7th Cir. 2000), where it reasoned that a

forfeiture order “places a judgment lien against [defendant] for the

balance of his prison term and beyond.” Id. at 970. More recently,

the Ninth Circuit concluded in United States v. Casey that a

defendant’s lack of assets at the time of his conviction does not

allow him to sidestep a forfeiture judgment in the amount of his

criminal proceeds: “money judgments are appropriate under § 853,

even in cases of insolvent defendants.” 444 F.3d at 1077 (emphasis

added); see also United States v. Amend, 791 F.2d 1120, 1127 n.6

(4th Cir.), cert. denied, 479 U.S. 930 (1986) (observing that under

§ 853, “the government need not have offered evidence that the

forfeitable assets were still in existence at the time of [defendant’s]

conviction”). Accordingly, we join these courts of appeals in

concluding that in personam forfeiture judgments are appropriate

under 18 U.S.C. § 853, even where the amount of the judgment

exceeds the defendant’s available assets at the time of conviction.

C.

Next, Banks argues the evidence was insufficient to support

his conviction for criminal copyright infringement. Banks takes

the position that the Government did not prove, as is necessary to

convict under 17 U.S.C. § 506(a), that all of the items of software 13
private financial gain;

(B) by the reproduction or distribution,

including by electronic means, during any

180-day period, of 1 or more copies or

phonorecords of 1 or more copyrighted

works, which have a total retail value of more

than $1,000 . . . .”

22

with which he was charged in the second superseding indictment

with copying were in fact copyrighted works. Because Banks did

not argue this theory before the District Court in his oral motion for

acquittal, see App. 1140-41, we review only for plain error. United

States v. Wolfe, 245 F.3d 257, 260 (3d Cir. 2001). 

Under this standard, before we can correct an error not

raised at trial, we must find: (1) an error; (2) that is plain; and (3)

that affected substantial rights. United States v. Dobson, 419 F.3d

231, 236 (3d Cir. 2005) (citing United States v. Olano, 507 U.S.

725, 733-35 (1993)). If all three of these conditions are met, we

may, in our discretion, grant relief, but only if “the error seriously

affects the fairness, integrity, or public reputation of [the] judicial

proceedings.” Id. (citations omitted). 

With our constrained standard of review in mind, we turn to

the evidence offered at trial. The Government offered the

testimony of an antipiracy specialist associated with the Microsoft

company, who testified that Banks’s copies of the Microsoft

software in question were counterfeit, testimony that was not

rebutted, and stated her belief that Microsoft’s copyrights covered

all of the software products at issue. Furthermore, the antipiracy

specialist testified that Microsoft sent cease-and-desist letters to

Banks, which letters were sent only to individuals who have

allegedly infringed Microsoft software. We are persuaded that the

jury’s conclusion from this evidence that the software in question

was copyrighted was not error and, in any event, given the

testimony, was not an error that was plain. Accordingly, we

conclude Banks has not shown the Government’s evidence that the

software in question was covered by copyright was so insufficient
Title 18, section 513(a) reads 14

“Whoever makes, utters or possesses a counterfeited

security of a State or a political subdivision thereof or of an

organization, or whoever makes, utters or possesses a

forged security of a State or political subdivision thereof or

of an organization, with intent to deceive another person,

organization, or government shall be fined under this title or

imprisoned for not more than ten years, or both.”

23

as to constitute plain error.

D.

Banks next alleges the District Court’s jury instruction 

regarding his charge of uttering and possessing counterfeit

securities, under 18 U.S.C. § 513(a), constituted reversible error 14

because the instruction constructively amended his indictment.

Banks Br. at 16. Because Banks did not object to this instruction

at trial, we review it only for plain error. Dobson, 419 F.3d at 236.

A constructive amendment of an indictment occurs where

a defendant is deprived of his “substantial right to be tried only on

charges presented in an indictment returned by a grand jury.”

United States v. Syme, 276 F.3d 131, 148 (3d Cir. 2002) (Becker,

J.) (citing United States v. Miller, 471 U.S. 130, 140 (1985)).

Constructive amendments are “presumptively prejudicial under

plain error review.” Syme, 276 F.3d at 155. 

Count Six of Banks’s indictment charged him with uttering

and possessing counterfeit and forged securities in violation of 18

U.S.C. § 513(a). App. 1401. The jury instructions, tracking the

wording of the statute, informed the jury that Banks could be found

guilty for uttering and possessing counterfeit or forged securities.

App. 1264-65, 1267. 

We considered this issue in United States v. Cusumano, 943

F.2d 305 (3d Cir. 1991). In that case, the defendant was indicted

under a statute that presented multiple routes to a conviction in the
In relevant part, § 1512 reads, 15

“(b) Whoever knowingly uses intimidation, threatens, or

corruptly persuades another person, or attemptsto do so, or

engages in misleading conduct toward another person, with

intent to – 

(2) cause or induce any person to – 

24

disjunctive. As in this case, although the indictment was written in

the conjunctive, the district court charged the jury in the

disjunctive. On appeal, Cusumano argued the district court should

have charged the jury in the conjunctive. We rejected that

argument, observing that “the general rule is that when a jury

returns a guilty verdict on an indictment charging several acts in

the conjunctive . . . the verdict stands if the evidence is sufficient

with respect to any of the acts charged,” id. at 311, and held that

the rule extended to cases where the indictment is in the

conjunctive, but the jury instructions were in the disjunctive. Id. 

Here, like Cusumano, while Banks’s indictment was phrased

in the conjunctive, the jury instructions – which tracked the

language of the statute – were phrased in the disjunctive.

Furthermore, Banks does not argue the evidence was insufficient

with respect to any of the acts charged under 18 U.S.C. § 513. See

Cusumano, 943 F.2d at 311. Accordingly, we perceive no plain

error in the District Court’s jury instructions regarding 18 U.S.C.

§ 513.

E. 

Banks next argues that the District Court’s jury instruction

on the witness tampering charge at Count Seven was defective

because the District Court judge did not instruct the jury on the

requirement, recently clarified by the Supreme Court in Arthur

Andersen LLP v. United States, 125 S. Ct. 2129 (2005), that a

conviction under 18 U.S.C. § 1512(b)(2)(A) requires there be a

nexus between the persuasion Banks allegedly directed at Do and

a particular proceeding. Because Banks did not object to the jury 15
(A) withhold testimony, or withhold a 

record, document, or other object, from an

official proceeding.”

25

instruction at trial, we are constrained to plain error review,

Dobson, 419 F.3d at 236, and further note that “[i]t is a rare case in

which an improper instruction will justify reversal of a criminal

conviction when no objection has been made in the trial court.”

Henderson v. Kibbe, 431 U.S. 145, 154 (1977). 

In Arthur Andersen, the Supreme Court made clear that a

prosecution under this same statute cannot succeed if the

Government fails to show a “nexus between the ‘persuasion’ to

[impede] and any particular proceeding.” 125 S.Ct. at 2136. As

the Second Circuit recently observed in the wake of Arthur

Andersen, “[t]he touchstone for the nexus requirement, therefore,

is an act taken that would have the natural and probable effect of

interfering with a judicial or grand jury proceeding that constitutes

the administration of justice; that is, the act must have a

relationship in time, causation, or logic with the judicial

proceedings.” United States v. Quattrone, 441 F.3d 153, 171 (2d

Cir. 2006). 

We turn to the jury instructions in this case. The witness

tampering instruction read, in relevant part, as follows: 

“. . . The second element the Government must prove

beyond a reasonable doubt is that the Defendant acted

knowingly and with the specific intent to cause or induce

any person to withhold a record document or other object

from an official proceeding. By ‘specific intent,’ I mean

that the Defendant must have acted with the unlawful intent

to cause or induce Warren Do to withhold evidence from an

official proceeding. It is not necessary for the Government

to prove the Defendant knew he was breaking any particular

criminal law, nor need the government prove that the

Defendant knew that the official proceeding was before a

federal grand jury. An official proceeding includes a
Arthur Andersen is perhaps distinguishable because the 16

district court in that case led the jury to believe that no nexus

between the persuasion and any particular proceeding was

necessary to convict. See 125 S. Ct. at 2136-37; see also

Quattrone, 441 F.3d at 180-81 & 180 n.27 (vacating conviction for

jury instruction’s lack of nexus requirement; instruction read “there

is no requirement there be a nexus between the defendant’s

26

proceeding before a federal grand jury. The grand jury

proceeding need not be pending or about to be instituted at

the time of the offense.” 

App. 1271-72. Following a discussion of attempt, the District

Court instructed, 

“Thus, in order to prove the offense of attempted witness

tampering . . . it is necessary that the totality of the evidence

of the Defendant’s objective actions, wholly apart from any

evidence of his state of mind, be consistent with the purpose

of the commission of the crime of witness tampering.” 

App. 1273-74. 

With our restrictive standard of review in mind, we perceive

no error with the jury instructions in this case, and conclude that

Arthur Andersen does not compel a different conclusion. As is

evident, the jury was instructed that Banks could be found guilty of

witness tampering only if he acted with the specific intent to induce

Do to withhold evidence from an official proceeding, and that

Banks did not have to intend to affect a grand jury proceeding –

other types of proceedings would suffice. App. 1272. We read this

instruction as requiring the jury to find some connection – i.e., a

nexus – between Banks’s actions and an official proceeding in that

Banks could not be convicted unless the jury found he intended to

persuade Do to impede an official proceeding, which official

proceeding – given Do’s email regarding his subpoena – Banks

was well aware of. Thus, we perceive no plain error in the District

Court’s witness tampering instruction as reviewed against Arthur

Andersen.16
conduct and the federal proceeding such that the defendant’s

conduct would have had a natural and probable effect of interfering

with the federal proceeding”) (emphasis added). Unlike these

cases, the jury instruction in this case did not direct the jury to

reach a guilty verdict without regard to a nexus between Banks’s

conduct and the official proceeding. 

We observe that the District Court docket is replete with 17

pro se motions that Banks filed while represented by counsel. See,

27

F.

Next, Banks claims the District Court committed reversible

error by failing to rule on what he alleges was a motion for selfrepresentation, docketed by the District Court on January 28, 2005.

Banks Br. at 26. As to this issue, we exercise plenary review over

the District Court’s legal conclusions and review its factual

findings for clear error. United States v. Peppers, 302 F.3d 120,

127 (3d Cir. 2002).

In evaluating a district court’s treatment of a defendant's

request to act pro se at trial, Peppers, 302 F.3d at 132, and at

sentencing, cf. United States v. Salemo, 61 F.3d 214, 219 (3d Cir.

1995), this Court applies a three-step analysis. This analysis

requires that the Court (1) inquire into whether the defendant has

asserted his desire to proceed pro se clearly and unequivocally; (2)

inquire into whether the defendant understands “the nature of the

charges, the range of possible punishments, potential defenses,

technical problems that the defendant may encounter, and any other

facts important to a general understanding of the risks involved”;

and (3) “assure itself” that the defendant is competent to stand trial.

Peppers, 302 F.3d at 132 (citations and quotations omitted).

Because Banks contests only whether his motion was sufficiently

unequivocal, Banks Br. at 26, our analysis in this case does not

proceed beyond the first step. 

Although Banks was represented by counsel, he

nevertheless filed multiple pro se requests with the District Court.

See App. 14-37 (District Court docket entries). The written 17
e.g., App. 28 (Dkt. No. 153 – “MOTION by FREDERICK H.

BANKS for Additional Law Library Access”); App. 29 (Dkt. No.

162 – “MOTION by FREDERICK H. BANKS Demanding that

Angelica Bonta, U.S. Probation Officer and Paul Hull, Assistant

U.S. Attorney Acknowledge the PSI Objections he filed with and

FOIA/Privacy Act Request to the Probation Office”); App. 29 (Dkt.

No. 169 – “MOTION by FREDERICK H. BANKS to Receive

Pleadings (document numbers indicated in motion) and all of

Brady/Jencks material”). We note that the District Court, perhaps

in an attempt to retain control of the proceedings in the face of the

Banks’s onslaught of pro se motions, ordered on March 8, 2005,

that the Clerk of Court was not to accept any further pro se filings

from Banks. App. 34. The District Court was within its authority

to do so. Cf. United States v. Essig, 10 F.3d 968, 973 (3d Cir.

1993) (observing that this Court is not required to review a

counseled defendant’s pro se argument; “[i]ssues that counseled

parties attempt to raise pro se need not be considered except on a

direct appeal in which counsel has filed a [brief under Anders v.

California, 386 U.S. 738 (1967)]”).

28

request at issue read as follows:

“Motion/Defendant Invokes his Constitutional Right to

Represent Himself prose Until Such a Time that it is

determined that [AUSA] Paul Hull Will Acknowledge his

pro se Motions As The Defendant Has a Constitutional

Right To File Motion’s pro se that the Court Rules on And

Are Responded To by the USA At Such A Time THAT IT

IS DETERMINED THAT DEFENDANT Pro se

MOTIONS WILL NOT BE IGNORED BY PAUL HULL

THE DEFENDANT INTENDS TO INVOKE HIS RIGHT

TO COUNSEL BY MR. DAVID CHONTOS BUT UNTIL

THAT TIME DEFENDANT IS PRO SE AT Criminal No.

03-245

And Now comes the defendant pro se and avers :

1. See Header

2. Any responses should be forwarded to the defendant
29

directly and the defendants standby counsel/counsel

withholding responses to motion and motions made by the

USA violates defendants due process.

WHEREFORE, the defendant respectfully demands that the

motion/Defendant invokes, et al. be GRANTED.” 

App. 1439 (capitals in original). We must “indulge every

reasonable presumption against waiver of the right to counsel,”

United States v. Stubbs, 281 F.3d 109, 117 (3d Cir. 2002) (citing

Johnson v. Zerbst, 304 U.S. 458, 464 (1938)), and observe that an

inquiry into the nature of an alleged request to proceed pro se at

sentencing “need not be as exhaustive and searching as a similar

inquiry before the conclusion of trial.” Salemo, 61 F.3d at 219

(emphasis added). With this in mind, we conclude Banks’s written

request did not require any action on the part of the District Court.

The first step of the Peppers inquiry requires an

investigation into whether the defendant “clearly and

unequivocally” asserted his request. Here, while Banks’s request

was titled, “Defendant Invokes his Constitutional Right to

Represent Himself prose,” Banks in actuality requested only

temporary self-representation in that he stated he would engage

Attorney Chontos to represent him as soon as AUSA Hull ceased

ignoring his other pro se motions. We view this only as an

expression of Banks’s frustration with AUSA Hull’s refusal to

respond to his other pro se motions and not as a clear request to

proceed pro se, further noting that Banks was complaining only

about AUSA Hull and not about his own counsel. See Buhl v.

Cooksey, 233 F.3d 783, 792 (3d Cir. 2000) (noting concern with

permitting a defendant’s waiver of counsel based on mere

“musings on the benefits of self-representation”). Hence, we read

Banks’s motion as an expression of his frustration with our judicial

process’s requirement that communications take place between

attorneys, not between parties and attorneys, and not as a clear

request for self-representation. Cf. Jackson v. Ylst, 921 F.2d 882,

888-89 (9th Cir. 1990) (“The trial court properly may deny a

request for self-representation that is ‘a momentary caprice or the

result of thinking out loud.’”) (citation omitted).

In addition, Banks does not identify any motions to which
Banks raised the issue of recusal only after the District 18

Court trial and sentencing proceedings at issue had ended, which

we deem a failure to timely raise the issue which accordingly

constrains us to plain error review. See United States v. Viscome,

144 F.3d 1365, 1370 (11th Cir. 1998) (reviewing defendant’s

constitutional challenge to statute of conviction for plain error

where defendant did not raise constitutional challenge to statute

until after trial); see also Lyons v. Jefferson Bank & Trust, 994

F.2d 716, 722-23 (10th Cir. 1993) (observing that “an untimely

motion, by itself, is not sufficient to preserve an issue for appellate

review”).

30

AUSA Hull failed to respond after Banks filed his motion for pro

se representation, and, when asked, expressed no dissatisfaction

with his counsel’s performance at sentencing. See App. 1337.

Accordingly, we conclude, on the facts of this case, that Banks’s

written request was not sufficiently clear so as to trigger any duty

on the part of the District Court to address the request as a bona

fide motion to proceed pro se and perform a full Peppers inquiry.

G.

Banks finally argues that Judge Hardiman should have sua

sponte recused himself from this case before sentencing. Banks’s

argument is based on a judicial misconduct complaint he filed

against Judge Hardiman before sentencing took place on February

25, 2005, but Banks did not file a motion for recusal until April 25,

2005, well after his sentencing. App. 36. We review the District

Court’s decision not to sua sponte recuse for plain error. Selkridge

v. United of Omaha Life Ins. Co., 360 F.3d 155, 166 (3d Cir.

2004).18

Under 28 U.S.C. § 455, a judge must “disqualify himself in

any proceeding in which his impartiality might reasonably be

questioned.” United States v. Bertoli, 40 F.3d 1384, 1412 (3d Cir.

1994). Beliefs or opinions that merit recusal must involve an

extrajudicial factor; “[f]or example, if a judge has acquired a

dislike of a litigant because of events occurring outside of the

courtroom, a duty to recuse might ensue.” United States v. Antar,
The record is at best unclear as to when Judge Hardiman 19

actually learned of Banks’s misconduct complaint.

We observe that Banks’s own comments at the March 17, 20

2005, recusal hearing before Judge Hardiman indicate an

agreement with our conclusion on this issue. At that hearing, Judge

Hardiman recused himself from a separate criminal case involving

Banks, Case Number 04-176, on the ground that Banks had filed

a judicial misconduct complaint against him in the instant case, and

the following exchange took place:

The Court: In light of the pending complaint of judicial

misconduct that Mr. Banks filed against me, I think

31

53 F.3d 568, 574 (3d Cir. 1995). To have cause to recuse, a judge

must have actual knowledge of the alleged grounds for recusal;

“[t]he evil that a timeliness requirement is intended to prevent –

namely, holding in reserve a recusal demand until such time that a

party perceives a strategic advantage – is served by requiring actual

knowledge.” In re Kensington Int’l. Ltd., 368 F.3d 289, 294 (3d

Cir. 2004). 

On the circumstances presented here, we perceive no need

for Judge Hardiman to have recused himself on his own initiative

from Banks’s sentencing. Even assuming that Judge Hardiman had

actual knowledge of Banks’s complaint before sentencing, Banks 19

had already deluged the District Court with numerous and frivolous

pro se motions throughout the proceedings, and we are unwilling

to conclude that Judge Hardiman erred by not sua sponte recusing

himself from sentencing simply because Banks, a convicted

defendant who had already clogged the proceedings with pro se

motions, also filed a judicial misconduct complaint in addition to

his other pro se motions. Cf. Martin v. Monumental Life Ins. Co.,

240 F.3d 223, 237 (3d Cir. 2001) (“We also believe that there must

be a more compelling standard for recusal under § 455(a) after the

conclusion of a trial than before its inception. After a massive

proceeding such as this, when the court has invested substantial

judicial resources and there is indisputably no evidence of

prejudice, a motion for recusal of a trial judge should be supported

by substantial justification, not fanciful illusion.”).20
my impartiality might reasonably be questioned. So

for that reason, I’m going to recuse myself from

presiding over case 04-176, pursuant to Title 28

United States Code, Section 455(a).

Banks: Your Honor, I don’t think that that is appropriate

because anyone can file a judicial misconduct

complaint and we can’t have judges recusing

themselves because somebody filed a complaint.

Anybody can do that.

32

IV. 

For the foregoing reasons, we will affirm Banks’s 

convictions for mail fraud, criminal copyright infringement,

uttering and possessing counterfeit or forged securities, and witness

tampering in their entirety. We will also affirm Banks’s sentence,

concluding (1) the District Court was not obligated to provide

advance notice under Rule 32(h) of its intent to vary from a

Guidelines sentence where that variance was based on full

consideration of the § 3553(a) factors and not on the Guidelines;

and, (2) that the District Court had statutory authority to issue an in

personam criminal forfeiture judgment, regardless of whether the

amount of that judgment exceeded Banks’s available assets at the

time of conviction.