U.S. v. Banks
| Decision Date | 21 April 2005 |
| Docket Number | No. 03-3176.,03-3176. |
| Citation | 405 F.3d 559 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Rickey Earl BANKS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Debra Riggs Bonamici (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
Juliet E. Boyd, Richardson, Stasko, Boyd & Mack, Chicago, IL, Marc D. Wolfe (argued), Woodridge, IL, for Defendant-Appellant.
Before FLAUM, Chief Judge, and COFFEY and KANNE, Circuit Judges.
In March 2002, a jury convicted Rickey Earl Banks of possession with intent to distribute cocaine in federal district court. Banks was sentenced to 97 months in prison pursuant to the Sentencing Guidelines. He directly appeals the conviction on five different grounds. We review the sentence sua sponte in light of the Supreme Court's recent decision on the constitutionality of the Sentencing Guidelines. For the reasons stated herein, we affirm the conviction and order a limited remand to the district court to determine whether resentencing is warranted.
On March 1, 1996, Joliet Police Officer James Reilly received a tip from a confidential informant that a drug transaction was going to occur that evening. The informant, Johnny Banks, was the brother of Rickey Banks ("Banks") and had agreed to cooperate with the police in order to improve his own bargaining position with respect to a pending charge of cocaine possession. Johnny Banks advised Reilly that "Rickey and the boys" planned to deliver two to three kilograms of cocaine to Raymond Jackson at 2132 California Avenue (the home of Rickie Evans) between 9 and 10 P.M.1 Reilly and three other police officers set up surveillance of the address in two different unmarked cars.
Shortly after 9 P.M., two vehicles arrived on the premises: a car driven by Jackson, and a Jeep driven by Banks. The occupants of the vehicles briefly met in the driveway. The two vehicles then left the address, with Jackson driving the car and Banks driving the Jeep. Rickie Evans, who had been standing in the yard, joined Banks and his other passenger, Michael Poston, in the Jeep. One unmarked police car followed Jackson's car and after a few minutes attempted to stop it. Before Jackson pulled over, he ejected a package from the window which the police recovered and suspected to be cocaine.2 The officers in this car radioed the information about the suspected cocaine to the other unmarked car, which had been following the Jeep. The police then tried to stop the Jeep, which drove several blocks before pulling over. Banks, Evans, and Poston were arrested, and in a subsequent search of the Jeep a handgun was found under the right rear passenger seat. After being advised of his Miranda rights, Banks admitted that both the Jeep and the gun belonged to him.
Later on March 1, Rickie Evans agreed to cooperate with the police. Based on information received from Evans, a search warrant for Darlene April's apartment was obtained and executed early on March 2. April is the mother of Banks's nephew, and Evans had gone with Banks to check on the nephew on February 29. While the men were in the apartment, Banks also "checked on" a kilo of cocaine that he was storing in a kitchen light fixture. April allowed Banks to store cocaine in her apartment so she could take some of it for her personal use. The March 2 search led to the discovery of over 800 grams of cocaine stored in the kitchen light fixture. The bag in which the cocaine was stored bore Banks's fingerprint.
A grand jury indicted Banks on two counts of possession with intent to distribute cocaine (one count for the 999 grams of cocaine ejected from Jackson's car and one count for the 870 grams of cocaine seized from April's light fixture). Attorney Harvey Bass represented Banks prior to his trial. Bass filed a motion to quash arrest and suppress evidence related to the prosecution, which was denied. The day the trial was scheduled to begin, R. Eugene Pincham began assisting Bass as defense counsel. The defense team orally renewed Banks's motion to suppress evidence, and after a hearing complete with witnesses and argument, the motion was again denied.
During trial, Pincham conducted all witness examinations, participated in sidebar conferences, and gave opening statement and closing argument. After a nine-day trial, the jury acquitted Banks of count one (the cocaine ejected from Jackson's car) and convicted him of count two (the cocaine seized from April's apartment).
The district court sentenced Banks under the federal Sentencing Guidelines. His total offense level was 29: the jury's conviction led to a base offense level of 26, and the judge added two two-point enhancements (for presence of a firearm and obstruction of justice) before granting a one-point reduction for post-offense rehabilitation. U.S.S.G. §§ 2D1.1(a)(3), 2D1.1(c)(7), 2D1.1(b)(1), 3C1.1, 3E1.1(b). Banks was placed in Criminal History Category II because of his three prior convictions for battery, unlawful use of a weapon, and harassment. As a result, Banks's sentence was 97 months.
Banks filed his notice of appeal on August 15, 2003, ten days after being sentenced. His opening appellate brief indicated that he was challenging his conviction on several grounds, including ineffective assistance of counsel with respect to Attorney Bass.3 Approximately two weeks after filing his opening brief, Banks filed a motion in the district court to supplement the record with Attorney Registration and Disciplinary Commission ("ARDC") proceedings. The district court granted this motion over the government's objection.
At the outset, we note that the transcripts include many open court musings of the district judge as she decided the issues before her. In verbally weighing both sides of each issue on the record, the judge obviously vocalized points weighing in favor of Banks's position on a number of occasions. On appeal, Banks supports many of his arguments with citations to these musings. We must review the decisions of the district court in the same way as if they were decisively made with no back and forth commentary: that is, based on the applicable law and the evidence in the record. That said, we will consider in turn each of the grounds upon which Banks challenges his conviction and then discuss the sentencing issue.
Banks claims that he was deprived of his right to a fair trial because of repeated prosecutorial misconduct. This argument is not well founded; we do not find improper conduct on the part of the Assistant United States Attorney ("AUSA") on any of the four bases discussed by Banks.
In Brady v. Maryland, the Supreme Court held that an AUSA's failure to disclose favorable, material evidence to a defendant violates due process. 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Fed.R.Crim.P. 16(a). "Evidence is `material' if there is a `reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" United States v. Bastanipour, 41 F.3d 1178, 1181 (7th Cir.1994) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). The three elements of a Brady violation are: (1) evidence favorable to the defendant because it is exculpatory or impeaching; (2) suppression of such evidence by the government; and (3) ensuing prejudice. See Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). In this case, Banks did not raise a Brady issue in the district court, so we review for plain error. See United States v. Stott, 245 F.3d 890, 900 (7th Cir.2001).
Banks's Brady argument revolves around the confidential informant (his brother, Johnny Banks) whose tip led to the investigation and conviction at issue here. Banks claims that the existence of the informant was not disclosed to him until February 24, 2002, the day before his trial was to begin, and that he therefore was unable to effectively challenge probable cause for his arrest and Reilly's credibility in obtaining the search warrant of April's apartment. Banks also takes issue with the fact that the identity of the confidential informant was never revealed to him, again claiming that he was unable to attack the veracity of the officer (Reilly) preparing the affidavit for the search warrant.
There is no Brady violation here. First of all, there is no evidence of suppression: the record shows that Banks knew a confidential informant existed well before trial. The government's written response in opposition to defendant's motion to quash arrest and suppress evidence, filed in December 2001, states that "[o]n or about March 1, 1996, law enforcement officers received information from a confidential informant that Raymond Jackson, an individual known to be involved in narcotics trafficking, was going to pick up a quantity of cocaine at 2132 California, Lockport, Illinois that evening between 9:00 and 10:00 p.m." (R. 18 at 1-2.)4 It is well established that the government may withhold the identity of a confidential informant in furtherance of the public interest in law enforcement unless the identity is relevant or helpful to the defense or essential to a fair determination of cause. See Roviaro v. United States, 353 U.S. 53, 59-61, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). Banks knew an informant existed and could have litigated the issue of whether he was entitled to learn the informant's identity.
Even without knowledge of the existence or identity of the informant, Banks would not have been prejudiced. He was able to discern the identity of the informant based on the police testimony given in the first suppression hearing, and, because the district court reopened the hearing on Banks's motion to suppress, he was able to examine Johnny Banks. On the issue of probable...
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