U.S. v. Banks

Decision Date13 April 2007
Docket NumberNo. 06-4216.,06-4216.
Citation482 F.3d 733
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Gregory Wayne BANKS, Defendant-Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Denise Charlotte Barrett, Assistant Federal Public Defender, Office of the Federal Public Defender, Baltimore, Maryland, for Appellant. Martin Joseph Clarke, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.

Before WILKINS, Chief Judge, and WILLIAMS and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge DUNCAN wrote the opinion, in which Chief Judge WILKINS and Judge WILLIAMS concurred.

OPINION

DUNCAN, Circuit Judge:

Gregory Wayne Banks ("Banks") appeals, on various grounds, his convictions for drug and conspiracy charges relating to a prescription-drug fraud scheme that spanned a period from 1999 to 2004. Specifically, Banks asserts that the trial court erred in denying his motion to suppress evidence obtained from an inventory search of two duffle bags brought to the police station during a 2000 arrest. Banks also seeks a new trial because the trial court admitted certain notations written on fingerprint cards by an evidence technician at the scene of a 2001 raid of one of the conspirators' sham medical clinics. Finally, Banks requests a remand to allow the trial court to conduct a retrospective evaluation of his competency to stand trial.

For the reasons discussed below, we affirm his convictions.

I.

Banks was one of several persons arrested in connection with a prescription-drug fraud scheme occurring in the Baltimore, Maryland area. The evidence at trial revealed a conspiracy in furtherance of which Banks and Oliver Hudson ("Hudson"), his half-brother and codefendant, coordinated the creation and "passing" of fraudulent prescriptions for oxycodone products. The conspirators wrote the prescriptions on prescription pads bearing the names and Drug Enforcement Administration ("DEA") registration numbers of seven legitimate area physicians. However, the pads falsely associated each physician with a sham medical clinic. The physicians had no knowledge of the appropriation of their names.

During the five-year conspiracy, Banks and Hudson created ten medical clinics to lend seeming authenticity to the prescriptions they wrote. Banks had primary responsibility for leasing office space for each clinic and connecting the telephone lines, though the clinics did not actually serve any patients. Banks also ensured that the clinics were staffed during business hours, by himself, Hudson, or a person they hired.

Banks and Hudson hired runners to pass the prescriptions at area pharmacies. If a pharmacist became suspicious while filling the prescription and called the listed telephone number, the person staffing the clinic was available to verify its legitimacy. Overall, Banks coordinated the passing of prescriptions at seventeen different pharmacies.

Government witness Nadira Jenkins-El, a former runner for Banks and Hudson in 2000-2001, testified as to Banks's daily routine in furtherance of the conspiracy. Banks and Hudson would meet privately in the morning to discuss the agenda for the day. Banks would then drive Hudson, Jenkins-El, and another runner or two from pharmacy to pharmacy in Banks's van. Banks or Hudson would fill out the fake prescription en route. Upon arrival, Banks would drive around the pharmacy, looking for a parking space far from any security cameras. The runner would then attempt to fill the prescription. Only a small copay, or sometimes no copay, was required to procure the pills because the runner used one of several medical assistance cards (e.g., Medicaid cards) that Banks and Hudson "leased" from "other drug addicts off of the street." J.A. 553.

At the end of a typical day, Banks would drop the runners off at the Metro Therapy and Wellness Center (the "Metro Center"), the sham clinic supporting the conspiracy during Jenkins-El's tenure. Banks and Hudson would sell the day's cache of pills to a local drug dealer, and would then return to the Metro Center to pay the runners from the proceeds. Jenkins-El agreed that both Banks and Hudson were "calling the shots" from day-to-day. J.A. 560.

The conspiracy did not escape detection by law enforcement for long, however. In April 2000, a runner, Nicholas Eggleston, raised the suspicion of a pharmacist at a Target pharmacy. The pharmacist called Detective Scott Gunn of the Anne Arundel County Police Department (the "AACOPD") after Eggleston dropped off the forged prescription. When Eggleston returned the following day to pick up the filled prescription, the pharmacist again called Det. Gunn, who asked the pharmacist to stall Eggleston until Det. Gunn could make his way to the Target. Det. Gunn then called the AACOPD station-house and requested that a uniformed officer respond to the Target.

Target security officers had earlier observed Eggleston exiting a black Lincoln Town Car1 with Banks. While Eggleston was waiting for the prescription to be filled, Banks walked around the store. By the time Det. Gunn arrived, the requested uniformed officer had arrested both Eggleston and Banks, and was holding them in the Target security office. Det. Gunn recognized Banks's name because he had issued a warrant for Banks several months prior for passing a forged prescription. A routine check revealed four outstanding warrants for Banks's arrest. Eggleston was arrested for passing the forged prescription at Target, but Banks was arrested only in connection with the outstanding warrants.

Det. Gunn asked Banks if there was anything in the Lincoln that he wished to bring with him to the stationhouse. Banks requested two black bags located in the trunk of the Lincoln. Det. Gunn retrieved the keys from Banks, and then Banks was taken to the stationhouse by the arresting officer. Eggleston remained with Det. Gunn.

Det. Gunn found Hudson and Cathy Jones, a runner, asleep in the back seat of the Lincoln. Det. Gunn woke them and, when a query failed to reveal any outstanding warrants for either, released them. Det. Gunn then retrieved the two bags that Banks had requested. These bags were the trunk's only contents. After securing the Lincoln, Det. Gunn drove Eggleston to the stationhouse.

As booking personnel conducted intake procedures of Banks and Eggleston, Det. Gunn opened the two bags for the first time. He immediately noticed contraband in the form of medical assistance cards and prescriptions and informed Banks that the contents of the bags would not be returned to him upon his release from detention.2

Over the next few days, Det. Gunn inventoried the contents of the bags in his office, itemizing the contraband on an investigative report. The inventory revealed numerous prescriptions, dozens of prescription labels, and a blank prescription pad. Det. Gunn contacted the DEA, requesting that the items be collected. After being stored for "a long time" under Det. Gunn's desk, J.A. 212, the bags were finally transferred to the DEA.

In 2001, a search warrant was executed at the Metro Center. AACOPD Det. Leslie Stickles led the raiding team, while evidence technician Lorraine Stieff ("Stieff") dusted and collected latent finger-prints from inside the Metro Center. According to later testimony by the fingerprint examiner, Ernest Lowman ("Lowman"), Stieff hand-wrote notations on two fingerprint cards indicating that the prints had been lifted from inside the Metro Center and then placed those finger-print cards in Lowman's lockbox for analysis. These actions complied with AACOPD procedures. Lowman identified Banks's fingerprints on the two fingerprint cards.

Eventually, the Federal Bureau of Investigation (the "FBI") began investigating Banks's and Hudson's operations, and subjected them to wiretaps and surveillance. A survey of area pharmacies yielded two fraudulent passed prescriptions with Banks's fingerprints on them. In December 2004, Banks was indicted on numerous drug charges, including one count of conspiracy to distribute a controlled substance, 21 U.S.C. § 846.3

Banks was initially represented by Frank Draper ("Draper" or "Counsel"), of the federal public defender's office. In August 2005, however, Banks and Hudson each filed a series of spurious pro se motions arguing that the court had no subject matter jurisdiction because each was a "real, live flesh and blood Man." J.A. 119-20. At his next appearance, Banks informed the magistrate judge for the first time that he did not understand the proceedings against him. He reiterated his jurisdictional argument, moved to fire his attorney, and was ultimately removed from the courtroom for being disruptive. Hudson had engaged in similar behavior earlier in the same hearing.

At a subsequent hearing before the district court to decide Banks's and Hudson's motions to terminate counsel, Banks insisted that Draper labored under a conflict of interest because he worked for the government. Draper reported that, despite Banks's initial cooperation, he now refused to meet with him or to open mail from him. Draper expressed surprise at Banks's sudden change in behavior, speculating that Hudson was directing Banks's actions. After the district court denied the motions, Banks and Hudson refused to participate further in their joint trial. They refused to attend subsequent proceedings, which nevertheless continued in their absence.

Prior to trial, Banks's counsel moved to suppress all evidence recovered as a result of Det. Gunn's search of Banks's two bags. The district court denied the motion, finding Det. Gunn's search to be an "inventory search" and thus allowable without a warrant.

During the trial testimony of Lowman, the fingerprint examiner, the...

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