DLD-017 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 16-3189 

___________

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 Judges: Honorable Nora Barry Fischer

____________________________________

Submitted for Possible Summary Action 

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

October 20, 2016

Before: CHAGARES, VANASKIE and KRAUSE, Circuit Judges

(Opinion filed: November 22, 2016)

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OPINION*

_________

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.
2

Frederick H. Banks appeals the District Court’s order denying his motion to 

compel. 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). 

His sentence, including a period of supervised release, expired in May 2015. See

United States v. Banks, 612 F. App’x 643, 643 (3d Cir. Aug. 19, 2015) (per curiam). 

In July 2016, Banks filed a “Motion to compel Government to affirm or deny 

existence of electronic surveillance.” The District Court denied the motion. Banks 

filed a notice of appeal.1

In his motion to compel, Banks requested that the Government report to him 

whether there had been any surveillance that contributed to the indictment in his case. 

The District Court denied the motion to compel because the criminal proceeding was 

closed. The District Court did not err in denying the motion. The criminal 

proceeding is closed, and his sentence has expired. Banks had no pending challenge 

to his conviction that had reached the stage of entitling him to discovery from the 

Government. 

 

1 The notice of appeal also included a motion for reconsideration of the Court’s denial of 

the motion to compel. The District Court denied the motion for reconsideration, and 

Banks has not appealed that denial.
3

Pursuant to Rule 6 of the Rules Governing § 2255 Proceedings, discovery may 

be authorized for good cause if the party provides reasons for the request. Thus, even 

if a challenge to his conviction had reached the discovery stage, Banks did not show 

good cause for the District Court to authorize discovery. Banks did not point to any 

evidence used against him at trial which might have involved undisclosed electronic 

surveillance2 or explain how the disclosure of any purported surveillance would 

undermine his conviction; his boilerplate motion provided few details specific to his 

case. 

Summary action is appropriate if there is no substantial question presented in the 

appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by 

the District Court, we will summarily affirm the District Court’s order. See Third Circuit 

I.O.P. 10.6. 

 

2 Banks was convicted for his selling illegally copied versions of copyrighted software 

online. In affirming his conviction on direct appeal, we did not mention any evidence 

used against Banks that might have come from undisclosed electronic surveillance by the 

Government. Vampire Nation, 451 F.3d at 192-94. The Government’s brief on appeal 

details the evidence against Banks, and none appears to involve undisclosed electronic 

surveillance. Brief for Appellee, United States v. Vampire Nation, Nos. 05-1715 & 05-

3047, 2005 WL 5988328 (3d Cir. 2005).