USA v. Banks

Filing

PUBLISHED OPINION FILED. [08-20518 Affirmed] Judge: JES , Judge: JLW , Judge: JWE. Mandate pull date is 11/09/2010 for Appellant Brandon Banks [08-20518]

USA v. Banks

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Case: 08-20518

Document: 00511267159

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Date Filed: 10/19/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
October 19, 2010 N o . 08-20518 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee, v. B R A N D O N BANKS, also known as Emekwanem Ibe Biosah, D e fe n d a n t - Appellant.

A p p e a l from the United States District Court fo r the Southern District of Texas

B e fo r e SMITH, WIENER, and ELROD, Circuit Judges. P E R CURIAM:

Brandon Banks appeals his convictions for possession of stolen mail under 18 U.S.C. § 1708 and aggravated identify theft under 18 U.S.C. § 1028A, arguing that his conviction for aggravated identity theft should be vacated for lack of sufficient evidence. Banks is foreclosed from raising his sufficiency argument. Accordingly, we AFFIRM. I. In September 2007, law enforcement officers conducted a warrant search of Brandon Banks's home in Sugar Land, Texas, finding hundreds of "credit card mailing[s]," including credit cards and reports from credit card issuers. The officers also found cellular telephones and subscriber identity module cards

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for cellular telephone numbers. Banks was indicted on ten counts of bank fraud and on one count each of conspiracy to commit bank fraud, fraud in connection with identification documents, possession of stolen mail, and aggravated identity theft. Banks moved to suppress the seized evidence, contending that the search and his consequent arrest were based on an invalid search warrant supported by nothing more than a "barebones" affidavit that failed to state sufficient probable cause. The district court denied his suppression motion. On the day of trial, but before he was placed under oath, Banks stated in open court that he did not want a trial and that he wanted to plead guilty in accordance with the terms of a proposed plea agreement. The court then attempted to confirm whether to re-arraign Banks or to conduct a bench trial on stipulated facts. The prosecutor stated that there would be a bench trial on stipulated facts as "[the parties] had previously agreed to," and Banks's counsel then stated that the prosecutor had all the necessary paperwork. His counsel confirmed that Banks understood both that he was waiving "a right to a trial by jury [and] electing to proceed on stipulated facts," and that he understood "his rights and the shortcomings, in effect, of going to trial based upon stipulated facts." The court then conducted a bench trial on stipulated facts. During the trial, the prosecutor offered into evidence the government's Stipulation of Evidence, which was signed and dated by the parties, and read that stipulation into the record. The parties also informed the court that a Memorandum of Agreement (Memorandum), which was attached to the stipulation, "spelled out very clearly" that the parties were proceeding under a stipulated bench trial so that Banks could reserve his right to appeal the district court's denial of his suppression motion. In the Memorandum, Banks agreed that facts stated in the Stipulation of Evidence "are true and [that he] does not object to their

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admissibility into evidence against him at trial." Furthermore, the parties specifically agreed in the Memorandum "that the facts stated in the Stipulation of Evidence constitute sufficient evidence for the [c]ourt to find [Banks] guilty . . . beyond a reasonable doubt" and that "[t]he defendant acknowledges that by allowing the stipulation to be used as evidence against him he will be found guilty and convicted." Before rendering judgment, however, the court inquired again as to Banks's plea--"just for the record." Although Banks clearly stated again that he pleaded "not guilty," the court noted that he pleaded "guilty." In response to the court reporter's subsequent request for clarification, Banks's counsel stated that his client pleaded "[n]o contest," and Banks confirmed that he pleaded "no contest." Following this exchange, the court declared that Banks's final plea was a "no contest plea" and that "the record will remain as it is." The court, however, then declared Banks guilty "based upon . . . the uncontested evidence and the agreed statement of facts" and, immediately thereafter, approved the Stipulation of Evidence and "waiver of trial by jury" and entered the documents into the record. Then, for the first time, the court placed Banks under oath, and Banks confirmed that he pleaded "no contest to the stipulated facts." The court noted that this is "a procedure we don't use very often" and that there "will be no trial in this case." The written judgment states that Banks "was found guilty . . . after a plea of not guilty." II.
R e c o g n iz in g the lack of clarity as to Banks's plea, this court previously o r d e r e d "a LIMITED REMAND to the district court for the sole purpose of a d v is in g [this court], through an appropriate supplement to the record that is `a d e q u a t e to facilitate our review,' whether Banks was convicted after a trial on s t ip u la t e d facts or on a plea of nolo contendere." United States v. Banks, 343 F.

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No. 08-20518 A p p 'x 992, 994 (5th Cir. 2009) (citation omitted). On remand, the district court c la r ifie d for the record that "Banks pleaded no contest to the stipulated facts," a n d "[b]ased upon the stipulated facts, the [c]ourt found [Banks] guilty as c h a r g e d ." Banks also conceded at oral argument that the district court found h im guilty after a bench trial on stipulated facts.1 Accordingly, we address B a n k s 's argument that his conviction for aggravated identity theft should be v a c a t e d because the government failed to adduce sufficient evidence to prove an e le m e n t of his offense.2 Principally, Banks argues that the Stipulation of

E v id e n c e used by the district court to determine his guilt was insufficient to s u p p o r t a conviction for aggravated identity theft. His argument, however, is s p e c ific a lly foreclosed by his undisputed agreements with the government. E v id e n t i a r y stipulations are binding on the parties, United States v. C a n tu , 510 F.2d 1003, 1004 (5th Cir. 1975); cf. Jackson v. Louisiana, 980 F.2d 1 0 0 9 , 1011 n.7 (5th Cir. 1993) (noting in a civil case that a defendant cannot r e n o u n c e a stipulation on appeal). Moreover, they may provide sufficient

e v id e n c e of the elements of a charged offense. United States v. Kleinschmidt, 5 9 6 F.2d 133, 136 (5th Cir. 1979). In the Memorandum, which was attached to t h e Stipulation of Evidence, Banks specifically agreed that the stipulated e v id e n c e was sufficient for the court to find Banks guilty beyond a reasonable d o u b t . That is, reading both documents together, Banks not only stipulated to

In his briefs before this court, Banks argues that the district court committed plain error by accepting a nolo contendere plea from him in violation of Rule 11 of the Federal Rules of Criminal Procedure. Because he conceded at oral argument that the district court found him guilty after a bench trial on stipulated facts, however, we need not address Banks's Rule 11 concerns. See United States v. Robertson, 698 F.2d 703, 708 (5th Cir. 1983) ("By its express terms, Rule 11 applies only to guilty or nolo contendre pleas." (citing Fed. R. Crim. P. 11(c), (d), (e), (f)). Notably, Banks does not appeal the district court's denial of his suppression motion, which, according to the Memorandum and his statements before the district court, was the reason why Banks decided to proceed with a bench trial on stipulated facts in the first place.
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the veracity of the facts contained in the Stipulation of Evidence, but also agreed with the government that such facts "constitute sufficient evidence for the [c]ourt to find him guilty as charged . . . beyond a reasonable doubt." In fact, he acknowledged that "by allowing the stipulation to be used as evidence against him he will be found guilty and convicted of these counts of the indictment." Although he had an opportunity during the bench trial to object to the evidentiary sufficiency, he abided by the Memorandum and did not do so. See United States v. Robertson, 698 F.2d 703, 709 (5th Cir. 1983) (recognizing the binding nature of evidentiary stipulations where the defendant "had ample opportunity during the trial to protest the procedure if he disagreed with it" and made "no allegation that he was under any compulsion to make the challenged stipulations or that he had ineffective assistance of counsel" (citations omitted)).
B a n k s does not dispute that he had agreed in the Memorandum that the s t ip u la t e d facts were sufficient. Nevertheless, Banks fails to explain in his briefs w h y this court should now permit him to change his mind and argue sufficiency o n appeal. Only at oral argument did Banks attempt to provide an explanation, u r g in g that (1) the Stipulation of Evidence, itself, did not specify that the e v id e n c e was sufficient, (2) the Memorandum is not a stipulation of evidence, a n d (3) the Memorandum does not prevent Banks from challenging the s u ffic ie n c y of the evidence because it is not a formal plea agreement. These a r g u m e n t s , however, are waived, and we need not consider them. See Cinel v. C o n n ic k , 15 F.3d 1338, 1345 (5th Cir. 1994) (citations omitted) ("An appellant a b a n d o n s all issues not raised and argued in its initial brief on appeal."). F u r t h e r m o r e , even assuming arguendo that these arguments are not w a iv e d , they are unpersuasive. Contrary to Banks's suggestion, the Stipulation o f Evidence should not be read in a vacuum but rather in tandem with the a t t a c h e d Memorandum, which was approved by the court without objection and a d m it t e d into the record. Here, the documents should be viewed together as a 5

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No. 08-20518 s in g le , binding agreement wherein Banks stipulates to the truthfulness of c e r t a in facts and agrees that such evidence is sufficient. Indeed, this is the only lo g ic a l way to interpret these documents. I n this case, the two documents were attached to each other, and the g o v e r n m e n t offered both documents into evidence simultaneously. Moreover, t h e government specifically referenced the Memorandum on the record as e v id e n c e of the parties' underlying reasoning for proceeding with a bench trial o n stipulated facts in the first place. Here, the parties agreed to that procedure s o that Banks could reserve his right to appeal the denial of his motion to s u p p r e s s . Furthermore, following the verdict, the government asked the court t o formally approve the Stipulation of Evidence and waiver of trial by jury. Although the government did not specifically ask the court to approve the M e m o r a n d u m , it is the only agreement in the record that includes Banks's w a iv e r of a right to trial by jury, and it is clear that the government was r e fe r e n c in g the Memorandum. The district court then signed the Stipulation of E v id e n c e and entered both the Stipulation of Evidence and the attached M e m o r a n d u m into the record. T h u s , given the record as a whole, Banks's attempt to differentiate b e tw e e n the Memorandum and the Stipulation of Evidence highlights nothing m o r e than an overly technical distinction without a difference. Banks should not b e permitted to avoid an explicit signed agreement that was entered into e v id e n c e with no objection at trial. Accordingly, we reject Banks's first two a rg u m en ts. Similarly, Banks's third untimely argument--that the

M e m o r a n d u m is not binding because it is not a formal plea agreement--is u n p e r s u a s iv e . See, e.g., Cantu, 510 F.2d at 1004 (holding that Appellant "is b o u n d by his stipulation").

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No. 08-20518 III. B a n k s pleaded not guilty to the charges and agreed to both the truth and t h e sufficiency of the stipulated facts. Based on that agreement, the district c o u r t found Banks guilty after a bench trial on the stipulated facts. Because his a g r e e m e n t with the government forecloses any challenge to the sufficiency of the e v id e n c e , the judgment is AFFIRMED.

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