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United States v. Bankoff

July 27, 2010

UNITED STATES OF AMERICA
v.
MICHAEL BANKOFF, APPELLANT / CROSS-APPELLEE



Appeal from the United States District Court for the Eastern District of Pennsylvania, (D.C. Criminal Action No. 2-07-cr-00185-001), District Judge: Honorable Michael M. Baylson.

The opinion of the court was delivered by: Ambro, Circuit Judge

PRECEDENTIAL

Argued June 3, 2010

Before: AMBRO, CHAGARES, and VAN ANTWERPEN, Circuit Judges

OPINION OF THE COURT

Section 115 of Title 18 of the United States Code makes it a crime to "threaten[] to assault, kidnap, or murder... an official whose killing would be a crime under" § 1114 of that Title. 18 U.S.C. § 115(a)(1)(B). Section 1114, in turn, makes it a crime to kill "any officer or employee of the United States or of any agency in any branch of the United States Government." 18 U.S.C. § 1114. This case requires us to determine whether § 115 incorporates by reference all individuals covered by § 1114-including any "employee of... any agency in any branch of the" federal government-or instead, by using the term "official," incorporates only some limited subset of those individuals.

In March 2008, Michael Bankoff was convicted of threatening two employees of the Social Security Administration ("SSA") in violation of § 115, as charged in Counts Two and Three of the Indictment. The District Court granted a judgment of acquittal on Count Three, concluding that the employee in question-an SSA "claims representative"-did not qualify as an "official" because she performed only "routine and subordinate functions." The Court denied Bankoff's motion for a judgment of acquittal on Count Two, concluding that the employee in question-an SSA "operations supervisor"-qualified as an "official" because she supervised persons who "had the authority to adjudicate claims on behalf of the federal government."

Though Bankoff is not the first defendant successfully prosecuted under § 115 for threatening a federal "employee,"*fn1 we are the first federal appellate court faced with the statutory interpretation issue presented here. We hold that § 115 incorporates by reference all persons covered by § 1114, and, accordingly, that § 115 applies to threats against federal "employee[s]" "whose killing would be a crime under" § 1114. Because § 115 applies to both of the employees Bankoff threatened, we affirm the District Court's denial of a judgment of acquittal on Count Two, vacate its grant of a judgment of acquittal on Count Three, and remand for further proceedings.

I. Background

A. The Offense Conduct

In 1999, Bankoff began receiving Social Security disability benefits. In a series of letters sent to Bankoff from December 2001 through May 2005, the SSA informed him that it had overpaid $9,000 in benefits to him and that he was required to repay that amount.

SSA claims adjuster Daniel Sphabmixy was assigned to Bankoff's case in late 2006. Bankoff called Sphabmixy several times to dispute the overpayment. After reviewing Bankoff's file, Sphabmixy determined that Bankoff (1) was responsible for the error, and (2) had failed to provide sufficient information regarding his inability to repay the amount overpaid to him. Accordingly, Sphabmixy denied Bankoff's request to waive repayment.

On February 26, 2007, Bankoff called Sphabmixy to complain about the denial of the waiver. Bankoff was loud and profane, and told Sphabmixy that he was going to come to the office and "kick the shit out of him." Bankoff also left two voicemails for Sphabmixy that were threatening in nature.

Sphabmixy alerted his "operations supervisor"-Susan Tonik-and security personnel about Bankoff's threats. Tonik, in turn, notified the Federal Protective Service. Bankoff called Tonik later in the day on February 26 to apologize for his phone call to Sphabmixy, but again contested the overpayment issue.

Bankoff scheduled a meeting for March 9, 2007 with an SSA claims representative regarding the overpayment issue. However, Bankoff called Tonik the morning of March 9 and cancelled the meeting. He told Tonik that he wanted everything resolved over the phone, and again was angry, loud, profane, and, according to Tonik, "out of control." Tonik told Bankoff that she was unable to schedule a telephone conference with the assigned claims representative that day.

Following this conversation, Bankoff left a voicemail on Tonik's telephone, in which he shouted:

[S]omebody ought to spit in that bitch's face, she doesn't know how to talk to people. She thinks I'm a child, I'm a grown up.... I will smack the shit out of that bitch. I'll take the little misdemeanor charge. What are they gonna do, fine me?

Tonik became "very worried and very scared" after listening to this message, and feared Bankoff's "threat was real."

Bankoff also spoke with SSA claims representative Crystal Robinson several times on March 9. In one of these conversations, Bankoff complained about Tonik and told Robinson that he would come to the office, take the gun away from "the pig up front," and "slap every woman in the place."

B. Bankoff's Motion to Dismiss the Indictment

In April 2007, a federal grand jury returned a three-count indictment charging Bankoff with threatening employees of the SSA, in violation of 18 U.S.C. § 115. Section 115 provides in pertinent part:

Whoever... threatens to assault, kidnap, or murder, a United States official, a United States judge, a Federal law enforcement officer, or an official whose killing would be a crime under [18 U.S.C. § 1114], with intent to impede, intimidate, or interfere with such official, judge, or law enforcement officer while engaged in the performance of official duties, or with intent to retaliate against such official, judge, or law enforcement officer on account of the performance of official duties, shall be punished as provided in subsection (b).

18 U.S.C. § 115(a)(1) (emphasis added).

Bankoff moved to dismiss the indictment on the ground that his alleged victims-Sphabmixy, Tonik, and Robinson-did not qualify as "official[s] whose killing would be a crime under" § 1114. 18 U.S.C. § 115. Relying on United States v. Fenton, 10 F. Supp. 2d 501 (W.D. Pa. 1998)-the single reported decision by a federal court that addresses the meaning of the term "official" in § 115-Bankoff argued that § 115 does not incorporate all persons protected by § 1114, but only "officer[s]." See id. at 503 n.2 (reasoning that the terms "official" and "officer" are "closely related and... can only be construed to have the same meaning").*fn2 Accordingly, Bankoff argued that § 115 does not apply to threats made against "employees" like Sphabmixy, Tonik, and Robinson.

The District Court disagreed, concluding that "the plain language" of §§ 115 and 1114, "taken as a whole, indicates that 'official' encompasses [an] 'officer or employee.'" It stated, however, that its conclusion regarding the definition of "official" was only preliminary, and it invited Bankoff to raise the issue again at trial. The Court thus denied Bankoff's motion.

C. The District Court's Jury Instructions

Near the end of trial, and despite its preliminary conclusion that § 115 applies to any "officer or employee" covered by § 1114, the District Court proposed to instruct the jury that, in addition to finding beyond a reasonable doubt that Sphabmixy, Tonik, and Robinson were "officer[s]" or "employees" whose killing would be a crime under § 1114, it must also find that they were "federal officials." The Court proposed to define "official" as a person

authorized to exercise governmental functions and to make decisions on behalf of the Government. An official is a person who is authorized to exercise his or her discretion in the performance of his or her governmental duties, as distinguished from an employee who performs routine and subordinate functions.

The Government objected, arguing that the proposed instruction was inconsistent with the Court's conclusion (in denying Bankoff's motion to dismiss the indictment) that the term "official" in § 115 encompasses any "officer or employee" whose killing would be a crime under § 1114. The Government (presciently) expressed concern that, following the conclusion of trial, Bankoff would attempt to argue that the Government had failed to prove that any of ...


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