United States v. Bankston, 14–3723.
| Citation | 820 F.3d 215 |
| Decision Date | 14 April 2016 |
| Docket Number | No. 14–3723.,14–3723. |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Angelique BANKSTON, Defendant–Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
ARGUED: Nadia Wood, Office of the Federal Public Defender, Columbus, Ohio, for Appellant. Mark S. Bennett, United States Attorney's Office, Cleveland, Ohio, for Appellee. ON BRIEF: Nadia Wood, Office of the Federal Public Defender, Columbus, Ohio, for Appellant. Mark S. Bennett, United States Attorney's Office, Cleveland, Ohio, for Appellee.
Before: STRANCH, DONALD, and LIPEZ,* Circuit Judges.
Asserting that her trial on twenty-three fraud-related charges was flawed by numerous errors, Defendant–Appellant Angelique Bankston asks us to vacate all of her convictions and remand for a new trial. In particular, she argues that (1) her waiver of counsel was invalid, (2) she was improperly charged in count 23 with making false statements to a judge in violation of 18 U.S.C. § 1001, (3) the trial proceedings were procedurally deficient due to judicial bias, prosecutorial misconduct, and ineffective assistance of counsel, and (4) the evidence was insufficient to support her convictions for wire and mail fraud. She further contends that, even if we reject her claims of trial error, she is entitled to resentencing.
Having carefully considered her claims, we conclude that only her claims of error as to the count 23 conviction and sentencing have merit. Therefore, we VACATE Bankston's conviction on count 23 of making false statements in violation of 18 U.S.C. § 1001, AFFIRM her convictions on all other counts, and REMAND the case for resentencing.
On August 28, 2013, Bankston was charged in a twenty-three-count Second Superseding Indictment with committing wire fraud, mail fraud, bank fraud, money laundering, identity theft, and a false statement offense in connection with three separate fraudulent schemes that occurred between March 2011 and June 2012. Unlike the previous indictments, this superseding indictment (and the final and operative Third Superseding Indictment) included count 23, which charged Bankston with making false statements in matters within the jurisdiction of the judiciary, based on a letter she wrote to the district judge accusing the government of planting evidence in her home.
Although Bankston asks that we vacate her convictions on every count, the fraudulent activity pertinent to her claims on appeal concerns primarily one of the three fraudulent schemes—the so-called “Citizens Bank and Lending Club Scheme.” Hence, we limit our recitation of the facts to that particular scheme and provide additional details as necessary in our analysis. Similarly, we briefly sketch out the procedural background in this section, reserving a more complete account of the trial proceedings until our discussion of Bankston's claims.
All of Bankston's fraudulent schemes followed one fundamental pattern. She unlawfully obtained the personal identification information of individuals and used it to defraud commercial banks and the state and federal government. In the Citizens Bank and Lending Club Scheme, she instructed her co-conspirator, Jocelyn Hale, to open an account at Citizens Bank in the name of Rachelle Butler—whose personal identifiers Bankston had illegally obtained—at the bank's branch office in Erie, Pennsylvania. When opening the account, Hale also opened a Citizens Bank credit card in Butler's name. Bankston then deposited funds in Butler's Citizens Bank account, which she acquired in part from a fraudulent Lending Club loan application that she had filled out online using Butler's identifiers. Bankston then instructed Hale to withdraw a portion of these funds in the form of two cashier checks. Bankston and Hale failed to cash those checks, however, and a dispute arose shortly thereafter over Bankston's refusal to pay Hale as promised.
On September 5, 2012, Postal Inspector L.E. Macek searched Bankston's home pursuant to a warrant. While the search uncovered certain evidence of Bankston's fraudulent schemes, such as a list of individuals whose identifiers she had obtained unlawfully, most of the search involved the postal inspector asking Bankston a series of questions about her acquaintance with a co-conspirator and her reasons for placing mail holds.1 Bankston answered these questions, having signed a waiver of her Miranda rights.
Before trial, Bankston wrote a letter to the district judge complaining of a disagreement with her attorney about trial strategy. Bankston wanted to present as a defense her theory that the evidence of the fraudulent schemes that was recovered from her home had been planted by a federal agent. Specifically, she claimed that Postal Inspector Macek, who performed the search of her home, was in fact the same person as one of the two local police officers who had visited her home several months earlier on a separate investigation. Bankston explained in her letter that her attorney's refusal to present the planted evidence theory as a defense resulted in a breakdown of the attorney-client relationship.
The district court treated Bankston's letter as a pro se motion to suppress the evidence and held a suppression hearing. The court also appointed new counsel to represent Bankston. At the suppression hearing, the two local police officers testified that they were not aware of the federal investigation of Bankston when they visited Bankston's home earlier that year on a separate investigation, and that they did not enter her residence or plant evidence. Instead, they left a card in the door for Bankston to call. Macek testified that he was not aware of the local police investigation of Bankston, and he was not at Bankston's home when the local police officers paid a visit earlier that year. The district court denied Bankston's motion to suppress.
Meanwhile, before the suppression hearing, the government filed the Second Superseding Indictment that included the count 23 false statement charge. That charge relied solely on Bankston's letter as the factual basis for the offense, excerpting, for instance, portions of the letter in which Bankston explained her planted evidence theory. The indictment also stated that, in addition to deceiving the district court by presenting the planted evidence theory, the letter “caused the FBI and IRS agents assigned to the case to perform additional investigation.”
Trial commenced on November 5, 2013. During voir dire, Bankston's attorney informed the district court that Bankston wished to proceed pro se. While the district judge was initially reluctant to allow Bankston to represent herself, the judge ultimately conducted an inquiry to determine if Bankston's decision to waive her right to counsel was knowing and intelligent. The court found that it was, and Bankston remained pro se throughout the trial. The jury found Bankston guilty on all twenty-three counts.
At the sentencing hearing, Bankston was again represented by an attorney. After hearing argument on various proposed enhancements to the base offense level, the court determined Bankston's base offense level to be 27, with a criminal history category of VI, which resulted in the guideline range of 130 to 162 months. The court sentenced Bankston to 144 months on counts other than the aggravated identity theft counts, added a mandatory two-year consecutive sentence for Bankston's aggravated identity theft convictions, and imposed a total sentence of 168 months. This appeal followed.
Bankston raises five arguments on appeal. First, she argues that her waiver of counsel was invalid because the district court failed to conduct a full Faretta inquiry, as required by United States v. McDowell, 814 F.2d 245 (6th Cir.1987). Second, Bankston contends that count 23 in the indictment was defective because the underlying conduct for the charge—here, writing a letter to the district judge as part of a criminal defense—is explicitly exempted from criminal liability under the statute. Third, and relatedly, Bankston argues that there were numerous errors throughout the trial relating to count 23, which, individually and collectively, warrant a new trial on all counts. These alleged errors include: ineffective assistance of counsel in failing to object to or move to dismiss count 23; prosecutorial misconduct in overzealously pursuing that charge; and judicial bias resulting from the district judge's failure to recuse himself, despite the fact that he was the recipient of Bankston's letter and hence a victim of the false statement crime. Fourth, Bankston argues that her convictions on counts 16 (wire fraud) and 18 (mail fraud) should be vacated because the government failed to prove essential elements of the crimes in those respective counts—namely, the use of an interstate wire communication for wire fraud and the use of the mails for mail fraud. Finally, Bankston argues that the district court committed a series of errors in sentencing, such as incorrectly calculating the base offense level and failing to provide an explanation for departure in the criminal history category, which require resentencing. We address each claim in turn.
The parties agree that plain error review applies to the claim that Bankston's waiver of counsel was invalid. Hence, in order to prevail, Bankston must show that the district judge's Faretta inquiry constituted a plain error that “affect[ed][her] substantial rights” and that implicated the “fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 466–69, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (internal quotation marks omitted); see also United States v. Oliver,
397 F.3d 369, 375–76 (6th Cir.2005).
The legal standards governing the validity of waiver of counsel are well-developed, though they are not without complexities in...
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