                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-25-2009

USA v. Banks
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4332




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"USA v. Banks" (2009). 2009 Decisions. Paper 1823.
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DLD-98                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 06-4332


                           UNITED STATES OF AMERICA,
                                                  Appellant

                                            v.

                                FREDERICK H. BANKS


                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              (D.C. Crim. No. 04-cr-00176)
                      District Judge: Honorable Joy Flowers Conti


                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   February 12, 2009

                 Before: BARRY, AMBRO and SMITH, Circuit Judges

                           (Opinion filed : February 25, 2009)


                                        OPINION


PER CURIAM

       Frederick H. Banks was convicted of mail fraud and sentenced in the United States

District Court for the Western District of Pennsylvania to sixty-three months of

imprisonment. Banks filed a counseled notice of appeal. While that appeal was pending,
Banks, proceeding pro se, filed in the District Court a “Motion to Correct Sentence

Pursuant to Fed. R. Crim. P. 35(a)” and a “Motion to Compel Records Pursuant to the

Freedom of Information and Privacy Acts.” Shortly thereafter, the government filed a

motion to stay the District Court proceedings pending resolution of Banks’ direct appeal.

By order entered September 25, 2006, the District Court denied Banks’ motions and

granted the government’s motion to stay.1 Banks appealed.

         We have jurisdiction pursuant to 28 U.S.C. § 1291, and can affirm on any basis

appearing in the record. See Fairview Township v. EPA, 773 F.2d 517, 525 n.15 (3d Cir.

1985).

         The District Court properly denied Banks’ motions. The Rule 35(a) motion was

untimely, as it was filed more than seven days after sentencing. See United States v.

Higgs, 504 F.3d 456, 463 (3d Cir. 2007) (holding that the District Court must act within

seven-day time limit of Rule 35(a)). Furthermore, the District Court did not err in

denying Banks’ motion, filed in post-conviction proceedings, seeking to challenge the

allegedly improper withholding of agency records under the Freedom of Information and

Privacy Acts. See 5 U.S.C. § 552(a)(4)(B) (providing the district court jurisdiction, “[o]n




   1
    The order also denied several pending motions without prejudice, noting that they
could be “refiled, if appropriate, after the stay imposed herein is lifted.” Those motions
were titled “Motion To Strike And Vacate Government Pleadings That Were Not Timely
Served On Defendant,” “Ex Parte Motion For Unfettered Court Access,” and “Motion for
Furlough Transfer Between Prisons.” We also will affirm this portion of the District
Court’s order.

                                              2
complaint,” to “enjoin the agency from withholding agency records and to order the

production of any agency records improperly withheld”) (emphasis added); see also North

v. Walsh, 881 F.2d 1088, 1094 (D.C. Cir. 1989) (declining to “decide whether FOIA

pleas must always be asserted in a separate complaint” but holding that the “statutory

language . . . clearly requires that the person seeking disclosure of information, after

recourse to an administrative process, file a complaint to trigger court action.”).

       Finally, the District Court’s order granting the government’s motion to stay district

court proceedings is not a final order. See Marcus v. Township of Abington, 38 F.3d

1367, 1370 (3d Cir. 1990) (“[s]tay orders are normally not appealable final orders because

they merely delay proceedings in the suit.”). In any event, the appeal from that order is

now moot. Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam) (an action becomes

moot when “the issues presented are no longer ‘live’ or the parties lack a legally

cognizable interest in the outcome.”) (citations omitted). The District Court’s order

provided that the “case is stayed pending resolution of [Banks’ direct] appeal before the

Court of Appeals for the Third Circuit.” Because we recently affirmed Banks’ conviction

and sentence, see United States v. Banks, No. 06-1934, 2008 WL 5051991 (3d Cir. Nov.

28, 2008), his challenge to the order staying the proceedings pending our adjudication of

his direct appeal has been rendered moot.

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

will summarily affirm.



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