DLD-047 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 16-3460 

___________

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

November 17, 2016

Before: CHAGARES, VANASKIE and KRAUSE, Circuit Judges

(Opinion filed: December 5, 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 petition for a 

writ of error coram nobis. We will summarily affirm.

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). In August 2016, 

Banks filed a “Petition for Writ of Error Coram Nobis” in his since-closed criminal case 

in the District Court, after his sentence had been completed and after his term of 

supervised release had expired. The District Court denied the petition, and Banks filed a 

notice of appeal.1

The District Court did not err in denying the petition. A writ of error coram nobis 

challenges allegedly invalid convictions which have continuing consequences, when the 

petitioner has served his sentence and is no longer “in custody” for purposes of a motion 

to vacate under 28 U.S.C. § 2255. United States v. Stoneman, 870 F.2d 102, 105-06 (3d 

Cir. 1989). A petitioner must show that he is suffering from continuing consequences of 

the allegedly invalid conviction. Id. at 106. Use of the writ is appropriate to correct 

errors for which there was no remedy available at the time of trial, and where sound 

reasons exist for failing to seek relief earlier. Id. Coram nobis is an extraordinary 

 

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

denial of the petition. The District Court denied the motion for reconsideration, and 

Banks has not appealed that denial.
3

remedy, and the alleged error must go to the jurisdiction of the trial court, thus rendering 

the trial itself invalid. Id.

Banks has not shown that there was no remedy available at the time of trial for 

any of the purported errors that he raised, or that there were sound reasons for failing to 

seek relief earlier. The only point raised by Banks that at all concerns the timing of a 

purported error involves a Supreme Court case that was decided after his trial. See

Rosemond v. United States, 572 U.S. ____, ____, 134 S. Ct. 1240, 1243 (2014) (holding 

that for a defendant to be found guilty of aiding and abetting under 18 U.S.C. § 924(c), 

the government must prove that the defendant “actively participated in the underlying . . . 

crime with advance knowledge that a confederate would use or carry a gun during the 

crime’s commission.”). Even if Rosemond might have applied to Banks’ convictions, 

nothing in the record indicates, and Banks does not show, that Banks was unable to make 

arguments concerning accomplice liability during his trial. Cf., e.g., Montana v. Cross, 

829 F.3d 775, 777 (7th Cir. 2016) (“Our earlier interpretation of the statute did not 

preclude [the defendant] from raising the issue.”). Moreover, Banks has not shown that 

any of the errors he raised implicated the trial court’s jurisdiction. 

Under these circumstances, the District Court properly denied the petition for a 

writ of error coram nobis. Summary action is appropriate if there is no substantial 

question presented in the appeal. See Third Circuit LAR 27.4; Third Circuit I.O.P. 10.6. 

For the above reasons and for the reasons set forth in the District Court’s Order, we will 

summarily affirm the District Court’s judgment on Banks’ petition. 
4

Finally, Banks’ notice of appeal makes a reference to mandamus relief. Because 

Banks has set forth no basis for mandamus relief, and because the ordinary appeals 

process is sufficient to resolve this case, we decline to treat his notice of appeal as a 

mandamus petition and we will take no further action on it. See Madden v. Myers, 102 

F.3d 74, 79 (3d Cir. 1996).