In re: Frederick Bank

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: JORDAN, GREENBERG and NYGAARD, Circuit Judges. Total Pages: 4. ELD-003. Banks's "motion to order BOP to provide six month trust funds statement," which we construe as a request to be relieved from filing a prison account statement, is granted. Banks's IFP application is granted.

Case: 17-2727

Document: 003112756860

Page: 1

ELD-003

Date Filed: 10/19/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-2727
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In re: FREDERICK H. BANKS,
Petitioner
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the Western District of Pennsylvania
(Related to W.D. Pa.No. 2-15-cr-00168-001)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
October 12, 2017
Before: JORDAN, GREENBERG and NYGAARD, Circuit Judges
(Opinion filed: October 19, 2017)
_________
OPINION*
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PER CURIAM
Pro se petitioner Frederick Banks has filed a petition for writ of mandamus. For
the reasons below, we will deny the petition.
In August 2015, Banks was charged in the United States District Court for the
Western District of Pennsylvania with one count of interstate stalking. He was later

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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Date Filed: 10/19/2017

charged by a superseding indictment with aggravated identity theft, making false
statements, and wire fraud.
Later that month, appointed defense counsel moved the District Court to inquire
into whether Banks was competent to stand trial. In support of the motion, counsel noted,
inter alia, that Banks was under the impression that the Government had been tracking his
communications under the authority of the Foreign Intelligence Surveillance Act (FISA),
50 U.S.C. § 1801. The District Court granted counsel’s motion and ordered Banks to
undergo a psychological evaluation.
Banks promptly filed a petition for a writ of mandamus asking us to direct the
District Court to rescind the order. Banks claimed that counsel had requested the
competency evaluation in an effort to delay the resolution of his criminal case and to
conceal the Government’s unlawful electronic surveillance activity. We denied
mandamus relief. In re Banks, 628 F. App’x 73, 75 (3d Cir. 2015) (per curiam) (not
precedential). We stated that we perceived no grave injustice in the District Court’s
decision to evaluate Banks’s competency, and observed that Banks had not provided any
support for his allegation that counsel had questioned his competency in order to delay
his case. Banks has since filed at least three additional petitions for a writ of mandamus
claiming that the competency proceedings are part of a conspiracy to delay his criminal
case. We have rejected each of these petitions. In re Banks, 670 F. App’x 52, 53-54 (3d
Cir. 2016) (per curiam) (not precedential); In re Banks, 670 F. App’x 54, 55 (3d Cir.

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2016) (per curiam) (not precedential); In re Banks, 674 F. App’x 238, 239 (3d Cir. 2017)
(per curiam) (not precedential).
In the mandamus petition now before us, Banks continues to argue that appointed
counsel requested the competency evaluation in order to delay his criminal case and to
conceal the Government’s unlawful electronic surveillance activity. He contends that,
although counsel previously cited Banks’s concerns about FISA surveillance as evidence
of his incompetency, a July 2017 email from appointed counsel to the prosecutor reveals
that counsel in fact believed that FISA surveillance evidence existed. As relief, Banks
asks us to enjoin the District Court from further delaying his trial, order the Government
to release the FISA materials to him, and release him from custody.
A writ of mandamus is a drastic remedy available in only extraordinary
circumstances. In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005). In
order for the writ to issue, a petitioner must establish that there is no alternative remedy
or other adequate means to obtain the desired relief, and must demonstrate a clear and
indisputable right to the relief sought. Kerr v. U.S. Dist. Court, 426 U.S. 394, 403
(1976).
We will deny Banks’s petition. The July 2017 email reflects appointed counsel’s
effort to advocate for Banks by requesting the surveillance his client has been seeking for
years. Contrary to Banks’s contention, nothing in the email supports his theory that
defense counsel requested the competency evaluation in order to delay the criminal
proceedings.
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Document: 003112756860

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Date Filed: 10/19/2017

Because Banks has not shown that his “right to issuance [of a writ of mandamus]
is clear and indisputable,” Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996), the petition
for writ of mandamus is denied.1

Banks’s “motion to order BOP to provide six month trust funds statement,” which we
construe as a request to be relieved from filing a prison account statement in support of
his application to proceed in forma pauperis (IFP), is granted. Banks’s IFP application is
deemed complete and is hereby granted. We emphasize that Banks’s request to be
relieved from filing a prison account statement is granted for the purpose of this
mandamus petition only; all future IFP applications must comply with L.A.R. 24.1 and
all requirements of this Court.
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