USA v. Frederick Bank

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: AMBRO, RESTREPO and NYGAARD, Circuit Judges. Total Pages: 3. BLD-062

Case: 17-2874

Document: 003112794939

Page: 1

BLD-062

Date Filed: 12/05/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-2874
___________
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. Criminal Action No. 2-03-cr-00245-001)
District Judge: Honorable Nora B. Fischer
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
November 30, 2017
Before: AMBRO, RESTREPO and NYGAARD, Circuit Judges
(Opinion filed: December 5, 2017)
_________
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.

Case: 17-2874

Document: 003112794939

Page: 2

Date Filed: 12/05/2017

Frederick Banks appeals the District Court’s order denying his motion for the
appointment of counsel. For the reasons below, we will summarily affirm the District
Court’s order.
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). His sentence,
including a period of supervised release, expired in May 2015. See United States v.
Banks, 612 F. App’x 643, 643 (3d Cir. Aug. 19, 2015) (per curiam). In August 2017,
Banks filed a motion to appoint counsel in his closed criminal case. Banks asserted that
the District Court, in another ongoing criminal case against Banks, had declared that he
was incompetent. Thus, Banks argued, he was entitled to the appointment of counsel
pursuant to Fed. R. Civ. P. 17(c)(2) (providing for appointment of guardian to protect
incompetent person). The District Court denied the motion, and Banks filed a notice of
appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291. See Isidor Paiewonsky
Assoc. v. Sharp Props., Inc., 998 F.2d 145, 149-50 (3d Cir. 1993) (post-judgment orders
are final and immediately appealable).
The District Court did not err in denying Banks’s motion. The criminal
proceedings at issue here were completed years ago, and Banks has finished serving his
sentence. He has no active challenge to this criminal conviction that has reached a stage
where the appointment of counsel would be necessary. Nor does the finding of
incompetency by the District Court in Banks’s active criminal case, where he is
represented by counsel, entitle him to the appointment of counsel to challenge closed
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Case: 17-2874

Document: 003112794939

Page: 3

Date Filed: 12/05/2017

criminal cases. In any event, to the extent that the Federal Rules of Civil Procedure apply
to a closed criminal proceeding, Rule 17(c)(2) addresses the appointment of a guardian,
not an attorney.
For the above reasons, we will summarily affirm the District Court’s order.

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