United States District Court, W.D. Pennsylvania
NORA BARRY FISCHER, District Judge.
Presently before the Court is a Petition on Supervised Release ("Petition") filed by the U.S. Probation Office against pro se Defendant Frederick H. Banks on October 24, 2013 alleging that he committed the federal crimes of wire fraud and aggravated identity theft while on supervised release in this case. (Docket No. ). The allegations in the Petition are identical to another Petition filed against Defendant Banks at Criminal Number 04-176. After holding contested violation proceedings, during which Banks waived his right to counsel and represented himself, Chief Judge Joy Flowers Conti found that Defendant Banks violated the conditions of supervised release by committing wire fraud and aggravated identity theft and sentenced him to 14 months' incarceration and 6 months' supervised release, to be served in community confinement, such as the Renewal Center, Inc. See United States v. Banks, Crim. No. 04-176, Docket No. 715 (W.D. Pa. Nov. 26, 2013). Chief Judge Conti's decisions were affirmed on appeal by the United States Court of Appeals for the Third Circuit. ( See id. at Docket No. 801). At a status conference/violation hearing held on October 28, 2014, Defendant Banks and the Government entered into a series of agreements, including that the Court should determine whether he violated the conditions of his release as set forth in the Petition by reviewing the record of the proceedings before Chief Judge Joy Flowers Conti in Criminal No. 04-176, the transcripts of which were admitted into evidence in this case, without objection by Defendant Banks. (Govt Exs. 1, 2, 3). After careful consideration of the record in Criminal Number 04-176 and for the following reasons, the Court finds that the Government has demonstrated by a preponderance of the evidence that Defendant Banks committed a Grade "B" violation as alleged in the Petition.
II. FINDINGS OF FACT
A. Procedural History
On October 15, 2004, a federal jury convicted Defendant Banks of all seven counts of the Second Superseding Indictment at Criminal Number 03-245, including charges of: mail fraud (Counts 1-3); criminal copyright infringement (Count 4); money laundering (Count 5); uttering and possession of a counterfeit or forged security (Count 6); and witness tampering (Count 7). (Docket No. 93). Defendant Banks was sentenced by the Honorable Thomas M. Hardiman on February 25, 2005 to a total sentence of 60 months' incarceration to be followed by 36 months' of supervised release with standard and additional conditions. (Docket No. 207). Relevant here, Defendant Banks was subject to the standard condition that he "shall not commit another federal, state or local crime while on supervised release." ( Id. at 4). After serving a consecutive sentence of 63 months' incarceration imposed by now Chief Judge Conti at Criminal No. 04-176, Defendant Banks was released from custody to supervision of the U.S. Probation Office on May 24, 2013. (Docket No. 537).
The U.S. Probation Office charges that Defendant Banks committed the federal offenses of wire fraud in violation of 18 U.S.C. § 1343 and aggravated identity theft in violation of 18 U.S.C. § 1028A while on supervised release. (Docket No. 937). As noted, Chief Judge Conti held an evidentiary hearing over several sessions, after which she concluded that the Government proved by a preponderance of the evidence that Defendant Banks committed the crimes, revoked his supervised release and sentenced him to 14 months' incarceration, followed by 6 months' supervised release to be served in community confinement. (Govt. Exs. 1-3). The United States Court of Appeals for the Third Circuit affirmed. This Court stayed the proceedings in this case until the conclusion of Defendant Banks' appeal and then lifted the stay during the hearing/status conference on October 28, 2014.
Pursuant to Rule 32.1 of the Federal Rules of Criminal Procedure, Defendant Banks has been given notice of the violations, an opportunity to respond to same and to present evidence and witnesses. In the proceedings before Chief Judge Conti, he was able to cross examine all testifying witnesses. (Govt. Exs. 2, 3). In this case, Defendant Banks has knowingly and voluntarily agreed to permit the Court to rule on the record before Chief Judge Conti and to not further contest the Government's evidence of the violations. He has also been provided with counsel, although he has knowingly and voluntarily waived his right to counsel and elected to represent himself with standby counsel to assist, as needed. (Docket No. 670).
Before addressing the violations, the Court first turns to the issue of Defendant Banks' competency. Due to certain disclosures Defendant Banks made during court proceedings and in civil filings concerning the Central Intelligence Agency's alleged use of "voice-to-skull" technology against him, Chief Judge Conti ordered a competency evaluation of Defendant Banks and appointed Dr. Robert Wettstein, a licensed psychiatrist in the Commonwealth of Pennsylvania, to conduct the evaluation. (Govt. Ex. 1; Govt. Ex. 2). Dr. Wettstein reviewed the relevant records of Defendant Banks' criminal case and several of his civil filings, his pertinent medical background information, conducted an evaluation of Defendant Banks on November 15, 2013, produced a report dated November 17,  2013 and provided testimony at a hearing held on November 20, 2013. (Govt. Ex. 2 at 10-11). Dr. Wettstein was accepted by Chief Judge Conti as an expert in the field of psychiatry and this Court concurs that he is an expert in this field given his qualifications, significant experience in this field and his having been accepted by numerous courts as an expert witness. ( Id. at 9). Dr. Wettstein's opinion was that Defendant Banks suffers from a serious mental disorder, specifically, paranoid schizophrenia or psychosis not otherwise specified, but that such conditions did not render him unable to waive his right to counsel and proceed to represent himself pro se. ( Id. at 11-12). Dr. Wettstein further elaborated that:
the area of - the area in his mind of the illness is not directly related to the present proceedings and - in other words - and this is true in many individuals who have such a condition - they can function in certain areas of their lives and have impairments in other areas of their lives. So there's certain preserved, intact areas of functioning that he has that aren't going to directly relate to the particular case here.
( Id. at 14). Defendant Banks disputed the diagnosis by Dr. Wettstein and his reliance on a Bureau of Prisons Report stating that he suffered from similar mental health impairments. ( Id. at 12). Nevertheless, after conducting a colloquy with Defendant Banks, and in reliance on Dr. Wettstein's opinions that Defendant Banks was competent to represent himself, Chief Judge Conti determined that Defendant Banks was competent to participate meaningfully in the proceedings, to knowingly and voluntarily waive his right to counsel and to represent himself. ( Id. at 17-28).
At the status conference/violation hearing conducted on October 28, 2014, this Court conducted a similar colloquy with Defendant Banks. Based on his appropriate demeanor and responses to the Court's questioning, this Court independently found that Defendant Banks was competent to meaningfully participate in the supervised release proceedings and that he had knowingly and voluntarily waived the right to counsel, despite this Court's recommendation that he not do so. Defendant Banks also agreed to the appointment of standby counsel, Ms. Diane McClelland, Esquire and the Court reiterated that it had made such appointment on his behalf. Having further considered these matters in light of Dr. Wettstein's report and testimony, which the Court has now reviewed in full, the Court's rulings made on the record at the October 28, 2014 status conference/violation hearing stand.
C. Government's Evidence
The Government presented the testimony of a number of witnesses and introduced a number of exhibits into evidence at the violation hearing conducted before Chief Judge Conti on November 20, 2013 and November 25, 2013. (Govt. Exs. 2-3). Defendant Banks was provided with notice of the hearing, and an opportunity to present evidence, but he did not present any witnesses and instead presented his case through cross-examination of the Government's witnesses. ( Id. ). The Government's witnesses included Special Agent Sean Langford of the Federal Bureau of Investigation ("FBI"); Benjamin Orrisson of the United States Probation Office; George Cole, a representative of Eureka Bank; and Adam Corcoran, III a former friend and employee of an entity Defendant Banks operated. ( Id. ). Chief Judge Conti generally found their respective testimony to be credible. (Govt. Ex. 3).
Having independently reviewed the record, this Court finds that the Government proved the following facts by a ...