USA v. Timothy Bankston

Filing

UNPUBLISHED OPINION FILED. [16-60645 Affirmed ] Judge: FPB , Judge: JLD , Judge: ECP Mandate pull date is 08/03/2017 for Appellant Timothy Bankston [16-60645]

Case: 16-60645

Document: 00514071053

Page: 1

Date Filed: 07/13/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-60645
Summary Calendar

United States Court of Appeals
Fif h Circuit

FILED
July 13, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TIMOTHY BANKSTON,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 2:10-CR-48-4
Before BENAVIDES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *

Timothy Bankston was convicted by a jury of one count of conspiring to
possess with intent to distribute more than 500 grams of cocaine and more
than five grams of cocaine base and two counts of using a communication
facility to facilitate the distribution of cocaine. For the first time, Bankston
argues that the district court violated his Sixth Amendment right of
confrontation by allowing his attorney to stipulate to certain evidence––that

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

Case: 16-60645

Document: 00514071053

Page: 2

Date Filed: 07/13/2017

No. 16-60645
certain drugs and drug quantities were purchased by and seized from other
coconspirators––without ascertaining whether he understood and agreed with
his attorney’s decision to enter into the stipulation.
The right of confrontation is susceptible of waiver by counsel. See United
States v. Ceballos, 789 F.3d 607, 616 (5th Cir. 2015). A criminal defendant’s
attorney “may waive his client’s Sixth Amendment right of confrontation by
stipulating to the admission of evidence, ‘so long as the defendant does not
dissent from his attorney’s decision, and so long as it can be said that the
attorney’s decision was a legitimate trial tactic or part of a prudent trial
strategy.’” Id. at 614 (quoting United States v. Stephens, 609 F.2d 230, 232-33
(5th Cir. 1980)). We have “found a valid waiver of the right of confrontation
without evidence that the defendant himself expressed agreement with the
stipulation.” Id. at 615. Moreover, a district court is not required to ascertain
whether the defendant agrees with trial counsel’s decision to stipulate to the
admission of evidence. See id. at 613-17. Bankston did not dissent from
counsel’s decision to enter into the stipulation, and trial counsel’s decision
could be viewed as a strategic one given that his defense strategy was not to
deny that the codefendants distributed or possessed drugs but to deny that he
was involved in the drug distribution conspiracy.
Thus, Bankston’s Sixth Amendment right of confrontation was waived
by counsel’s stipulation, and Bankston’s confrontation claim is unreviewable.
See id. at 614; United States v. Rodriguez, 602 F.3d 346, 350-51 (5th Cir. 2010);
United States v. Olano, 507 U.S. 725, 733 (2003). Further, the district court
was not required to question Bankston personally regarding the stipulation
and therefore committed no error in not doing so. See Ceballos, 789 F.3d at
615-16.
Accordingly, the district court’s judgment is AFFIRMED.

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