                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-9-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4437




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"USA v. Banks" (2006). 2006 Decisions. Paper 1605.
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DPS-85
                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     NO. 05-4437
                               ______________________

                           UNITED STATES OF AMERICA

                                            V.

                                 FREDERICK BANKS,

                                    Appellant
                      ____________________________________

                     On Appeal From the United States District Court
                        For the Western District of Pennsylvania
                            (W.D. Pa. Crim. No. 96-cr-00064)
                      District Judge: Honorable Gary L. Lancaster
                      ____________________________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                December 30, 2005

         Before: ROTH, FUENTES AND VAN ANTWERPEN, Circuit Judges

                                 (Filed February 9, 2006)

                               ______________________

                                       OPINION
                               _______________________


PER CURIAM

       Frederick Banks appeals an order of the United States District Court for the

Western District of Pennsylvania denying his petition for a writ of error coram nobis.
Because this appeal does not raise a substantial question, we will summarily affirm the

District Court’s order.

       In 1996, Banks pled guilty to one count of mail fraud in violation of 18 U.S.C.

§ 1341. The District Court sentenced Banks to four months incarceration at a community

correction center, and three years of supervised release. Banks did not file a direct

appeal. In 2005, Banks filed a petition for a writ of error coram nobis seeking to vacate

his conviction. The District Court denied the petition, and this appeal followed.

       The writ of error coram nobis is used to attack allegedly invalid convictions which

have continuing consequences, when the petitioner has served his sentence and is no

longer “in custody” for purposes of 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 remedy, and the alleged error must go to the jurisdiction of the trial

court, thus rendering the trial itself invalid. Id.

       Citing Neder v. United States, 527 U.S. 1 (1999), Banks argues that the

Government omitted the element of materiality from the information charging him with

mail fraud, and that he was not told about the materiality requirement. As a threshold

matter, Banks has not shown that his conviction carries continuing consequences, or that



                                                2
sound reasons exist for his failure to seek relief earlier. On the merits of his claim, the

information charges Banks with devising a scheme to defraud and obtain money by

means of false and fraudulent pretenses through use of the mail in violation of 18 U.S.C.

§ 1341. Neder, which held that materiality is an element of the offense of mail fraud, was

decided three years after Banks’ conviction became final. In any event, the materiality of

Banks’ misrepresentations is not a question in this case. At the plea hearing, Banks

admitted that he operated a company that falsely represented that it located missing

persons with a ninety-seven percent success rate, collected fees from customers, and then

failed to provide customers with any information. Under these circumstances, the District

Court properly denied the petition for a writ of error coram nobis.1

        Accordingly, we will summarily affirm the District Court’s order.2




   1
    The District Court did not address Banks’ additional claim that the District Court did
not inform him of the minimum penalty for a mail fraud conviction. Coram nobis relief is
not warranted on this claim.
   2
    We will also deny a certificate of appealability in Banks’ separate appeal of the
District Court’s denial of his motion to vacate sentence (C.A. No. 05-4429).

                                              3
