Banks v. U.S., 04-SP-789.

• Decision Date: 14 June 2007
• Docket Number: No. 04-SP-789.,04-SP-789.
• Citation: 926 A.2d 158
• Parties: Simon BANKS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

926 A.2d 158

Simon BANKS, Appellant, v. UNITED STATES, Appellee.

No. 04-SP-789.

District of Columbia Court of Appeals.

Argued May 22, 2007.

Decided June 14, 2007.

Cynthia Nordone, appointed by the court, for appellant.

John P. Mannarino, with whom Jeffrey A. Taylor, United States Attorney, and Roy W. McLeese III, Lisa Schertler, and John D. Griffith, Assistant United States Attorneys, were on the brief, for appellee.

Before REID and BLACKBURNERIGSBY, Associate Judges, and WAGNER, Senior Judge.

REID, Associate Judge:

This is our fourth case involving appellant, Simon Banks, a 1975 law school graduate who has never been admitted to the Bar of the District of Columbia, nor to any other bar, and who previously has been held in civil contempt, convicted of criminal contempt, and found in violation of trade practices, for acts relating to the unauthorized practice of law. See In re Simon Banks, 805 A.2d 990, 993 (D.C.2002)(Banks III) (sustaining contempt orders "resulting from appellant's disregard of injunctions issued by this court against the unauthorized practice of law" and affirming an "order directing appellant to pay partial attorney's fees of members of the Committee on Unauthorized Practice of Law [], which sought to enforce the court's prior injunction"); Banks v. District of Columbia Dep't of Consumer and Regulatory Affairs, 634 A.2d 433, 439-40 (D.C. 1993)(Banks II) (sustaining a determination by the District's Department of Consumer and Regulatory Affairs that appellant "engaged in three deceptive trade practices," in violation of the District's Consumer Protection Procedures Act, "based on the unauthorized practice of law"); and In re Simon Banks, 561 A.2d 158, 167-69 (D.C.1987) (Banks I) (finding, after a hearing conducted by a senior judge of this court on the petition of the court's Committee on Authorized Practice of Law, that "appellant has violated this court's rule prohibiting the unauthorized practice of law," and enjoining appellant from engaging in specified acts relating to the practice of law or the status of a lawyer).

The case before us grew out of a 2002 request by the United States Attorney for the District of Columbia for contempt proceedings against Mr. Banks for violation of a 1995 order.¹ After the issuance of a show cause order, a hearing took place before a Superior Court judge, sitting by designation. The judge "[found] beyond a reasonable doubt that [Mr. Banks] is guilty of contempt as charged ...." Mr. Banks filed an appeal. In his brief on appeal, submitted by a court-appointed attorney, Mr. Banks mainly argues that this court "acted beyond its authority in convicting him of contempt ... [because] [t]he conduct complained about here is beyond the scope [of the rule regulating unauthorized practice of law]," since it occurred outside the District of Columbia. Alternatively, he asserts that "the evidence was insufficient to prove beyond a reasonable doubt that [he] committed criminal contempt," that is, that he "willfully violated" the court's order. We affirm the order of April 8, 2004, adjudging Mr. Banks guilty of criminal contempt as charged.

FACTUAL SUMMARY

In our prior cases we recounted part of the protracted history of complaints against Mr. Banks, beginning in 1984, and his persistent violation of court orders enjoining him from holding himself out as a lawyer and engaging in related conduct. We do not repeat that history, except as necessary to an understanding of the case now before us. In January 1995, after finding that Mr. Banks had "flagrantly, intentionally, repeatedly and contumaciously violated virtually every provision of the Court's 1987 injunction," Banks III, supra, 805 A.2d at 995, the Honorable Richard A. Levie, sitting by designation as a member of this court, imposed "an expanded and stricter injunction" ("Order # 18"). Id. In 1996, Mr. Banks was convicted on five counts of criminal contempt for violations of the 1995 injunction, but his sentence was suspended and he was placed on five years of conditional probation. In light of allegations that Mr. Banks violated the conditions of his probation, Judge Levie held a hearing. Upon finding repeated violations of the conditions of his probation in August 1997, the judge revoked Mr Banks' probation, sentenced him to 175 days of incarceration, suspended execution except for twenty-one days, and again placed him on probation. His probation terminated on August 27, 2001.

Undeterred by his criminal contempt conviction and punishment, Mr. Banks engaged in other acts — from October 2001 to December 2001, and in February 2002, July 2002, and October 2002 — ostensibly prohibited by Order # 18. As a result of Mr. Banks' renewed efforts to circumvent the 1995 permanent injunction, the United States Attorney for the District of Columbia filed an application (with a sworn affidavit and exhibits) in this court on December 11, 2002, requesting the initiation of a criminal contempt proceeding against Mr. Banks "for his willful disobedience of this [c]ourt's Order # 18," specifically paragraphs (3), (4) and (6).² In response to the application and to the accompanying government request for the appointment of a presiding judge, the issuance of a show cause order to Mr. Banks, and the scheduling of a status hearing, the Chief Judge of this court at the time issued an order on December 17, 2002, designating and assigning the Honorable Noel Anketell Kramer, then an Associate Judge of the Superior Court of the District of Columbia, "to serve as a judge of this court for the purposes of conducting a contempt hearing in [Mr. Banks' case]."³

On March 5, 2003, Judge Kramer ordered Mr. Banks to appear and show cause on March 24, 2003, "why [he] should not be held in criminal contempt and punished for such criminal contempt by reason of his failure and refusal to comply with Order # 18." The order to show cause contained four counts of contempt, as proposed by the United States Attorney. These counts related to (1) Mr. Banks' advertisements in a federal publication and on the radio using language prohibited by Order # 18 and his failure to include the disclaimer, required by Order # 18, pertaining to his lack of authority to practice law in this or any other jurisdiction in the United States; (2) his description of himself in a notice of representation sent to the federal Department of Education "as a former administrative law judge and a provider of nationwide representation," and his omission of the required disclaimer; and (3) his description of himself in a telephone conversation (with a criminal investigator employed by the United States Attorney's office) "as a former administrative law judge and a provider of nationwide representation."

The hearing on the show cause order took place on January 16 and 20, 2004. The government presented testimony from Diane Eickman, a criminal investigator for the United States Attorney's office in the District of Columbia, who on July 10, 2002, called a Virginia telephone number listed in an advertisement placed by Mr. Banks in the Federal Times, a government publication "routinely distributed in the District." She made the call from her office in the District. The purpose of her call was "to see how Mr. Banks would identify himself."⁴ Ms. Eickman called herself "Diane Eckard" and said she was a federal government employee who "was having a problem with [her] supervisor," and that "the agency [she] worked for was in the District of Columbia." In answering the telephone, Mr. Banks stated, "Judge Banks Group."⁵ When Ms. Eickman responded, "Judge Banks," the person on the other end of the line replied, "yes."

Tamika Williams, a credit and billing manager for the Army Times (the Federal Times "is a subsidiary of Army Times Publishing" and is "geared toward federal employees"), testified that about 65,000 copies of the Federal Times, a weekly publication, are distributed in the Washington Metropolitan area with the District of Columbia as "a high target area"; that "Dr. Simon Banks and Associates" of Alexandria, Virginia, requested that an advertisement be placed in the Federal Times for nine consecutive weeks beginning on October 8, 2001 and continuing through December 17, 2001. The advertisement stated in pertinent part:

DR. SIMON BANKS & ASSOCIATES FORMER ADMINISTRATIVE LAW JUDGES VICTIMS OF WRONGFUL EMPLOYMENT ACTS

If you have been a victim of discrimination, reverse discrimination or wrongful Employment action because of your race, sex, age, disability, or because you have filed a previous complaint, or because you were a whistle blower, call [the listed Virginia telephone number]. E-Mail: drsbanks@msn.com, and be represented by a former Judge* Nationwide Representation.

(Emphasis in original).

Gregory Pack, a sales representative with Verizon Communications, examined telephone billing records for Mr. Banks during the period October 2001 through February 2002. Mr. Banks is identified in the billing as "Judge S. Banks-ALJ," with a Virginia billing address; the Virginia address is the same one which appeared in Mr. Banks' Federal Times advertisement. Mr. Pack also testified concerning a District of Columbia telephone number assigned to "Simon Banks, Judge" as of September 23, 2002. Calls to the District number were forwarded to Mr. Banks' Virginia telephone number.⁶

Laura Skelly Gonzalez, general sales manager for WJZW-FM, an affiliate of ABC, provided information pertaining to a broadcast contract between the radio station, located in the District, and Mr. Banks. Mr. Banks used the name "Judge Simon Banks Group" or "Judge Simon Banks" for a sixty-second and a ten-second commercial aired on WJZW-FM for the period October 21, 2002 to May 4, 2003.⁷ The sixty-second radio advertisement stated, in part:

GOVERNMENT EMPLOYEES PROTECT YOUR RIGHTS. If you are a victim of employment discrimination, on the basis of race, sex, age, handicap, or if you've been denied a promotion,...