2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-14-2008

USA v. Banks

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4786

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Recommended Citation

"USA v. Banks" (2008). 2008 Decisions. Paper 370.

http://digitalcommons.law.villanova.edu/thirdcircuit_2008/370
BLD-208 

 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 07-4786

___________

UNITED STATES OF AMERICA

v.

FREDERICK H. BANKS,

 Appellant

__________________________

Appeal from the United States District Court

for the Western District of Pennsylvania

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

District Judge: Honorable Nora Barry Fischer

__________________________

Submitted for Possible Summary Action

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

May 22, 2008

Before: McKEE, RENDELL and SMITH, Circuit Judges

Filed: October 14, 2008

_________

 OPINION OF THE COURT

_________

PER CURIAM

In 2004, a jury convicted Frederick H. Banks of mail fraud, copyright

infringement, money laundering, uttering and possession of counterfeit and forged
 To the extent that Banks now seeks to appeal from other orders entered on December 1

13, 2007, we affirm. Those orders directed the Clerk to strike as frivolous a “Notice of

Non-Acceptance and Discharge of Debt Restitution and Special Assessment Fees” and a

“Notice to Perform,” in which Banks demanded payment from one of the District Court’s

staff who used his name in correspondence without permission. 

2

securities, and witness tampering. He was sentenced to sixty months of imprisonment, to

be followed by three years of supervised release. We affirmed the judgment and sentence

in June 2006. See United States v. Vampire Nation, 451 F.3d 189 (3d Cir. 2006). The

Supreme Court denied Banks’ petition for certiorari. See Banks v. United States, 127 S.

Ct. 424 (2006). Banks next filed a motion to vacate his conviction and sentence under 28

U.S.C. § 2255. The District Court denied the § 2255 motion and Banks appealed. 

In the meantime, Banks filed various “notices” in the District Court, alleging that

his sentence must be suspended under admiralty law, that he is a “foreign sovereign

agent” protected by the “act of state doctrine,” and that he is immune from prosecution as

a Lakota Sioux Indian. The District Court treated the notices as motions attacking his

conviction, and held that it was without jurisdiction to entertain them while this Court

considered Banks’ appeal of the order denying his § 2255 motion. Accordingly, the

District Court denied the motions without prejudice to their re-submission following our

adjudication of Banks’ § 2255 appeal. Banks filed a motion for reconsideration, which

the District Court denied by order entered December 13, 2007. He then filed the present

appeal.1

As a general rule, a District Court should not entertain a habeas corpus petition
3

while there is an appeal pending in the court of appeals or in the Supreme Court. See

Feldman v. Henman, 815 F.2d 1318, 1320-21 (9th Cir. 1987). Such actions are

disfavored as a matter of judicial economy and concern that disposition of the appeal may

make the District Court’s efforts a nullity. See, e.g., Kapral v. United States, 166 F.3d

565, 570-72 (3d Cir. 1999); Venen v. Sweet, 758 F.2d 117, 121 (3d Cir. 1985). These

principles apply with equal force in this case. Banks’ motions sought to invalidate his

conviction and sentence, the same type of relief sought through the appeal of the denial of

his § 2255 motion. Therefore, adjudication of Banks’ § 2255 appeal may have rendered

moot the issues raised in the motions filed in the District Court. Under these

circumstances, the District Court properly rejected Banks’ motions. 

Because this appeal presents us with no substantial question, see I.O.P. 10.6, we

will summarily affirm.