United States of America v. FREDERICK H. BANKS On Appeal from the United States District Court for the Western…

DLD-98 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4332
UNITED STATES OF AMERICA,
Appellant
v.
FREDERICK H. BANKS
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Crim. No. 04-cr-00176)
District Judge: Honorable Joy Flowers Conti
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
February 12, 2009
Before: BARRY, AMBRO and SMITH, Circuit Judges
(Opinion filed : February 25, 2009)
OPINION
PER CURIAM
Frederick H. Banks was convicted of mail fraud and sentenced in the United States
District Court for the Western District of Pennsylvania to sixty-three months of
imprisonment. Banks filed a counseled notice of appeal. While that appeal was pending,

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The order also denied several pending motions without prejudice, noting that they1
could be “refiled, if appropriate, after the stay imposed herein is lifted.” Those motions
were titled “Motion To Strike And Vacate Government Pleadings That Were Not Timely
Served On Defendant,” “Ex Parte Motion For Unfettered Court Access,” and “Motion for
Furlough Transfer Between Prisons.” We also will affirm this portion of the District
Court’s order.
2
Banks, proceeding pro se, filed in the District Court a “Motion to Correct Sentence
Pursuant to Fed. R. Crim. P. 35(a)” and a “Motion to Compel Records Pursuant to the
Freedom of Information and Privacy Acts.” Shortly thereafter, the government filed a
motion to stay the District Court proceedings pending resolution of Banks’ direct appeal.
By order entered September 25, 2006, the District Court denied Banks’ motions and
granted the government’s motion to stay. Banks appealed.1
We have jurisdiction pursuant to 28 U.S.C. § 1291, and can affirm on any basis
appearing in the record. See Fairview Township v. EPA, 773 F.2d 517, 525 n.15 (3d Cir.
1985).
The District Court properly denied Banks’ motions. The Rule 35(a) motion was
untimely, as it was filed more than seven days after sentencing. See United States v.
Higgs, 504 F.3d 456, 463 (3d Cir. 2007) (holding that the District Court must act within
seven-day time limit of Rule 35(a)). Furthermore, the District Court did not err in
denying Banks’ motion, filed in post-conviction proceedings, seeking to challenge the
allegedly improper withholding of agency records under the Freedom of Information and
Privacy Acts. See 5 U.S.C. § 552(a)(4)(B) (providing the district court jurisdiction, “[o]n

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complaint,” to “enjoin the agency from withholding agency records and to order the
production of any agency records improperly withheld”) (emphasis added); see also North
v. Walsh, 881 F.2d 1088, 1094 (D.C. Cir. 1989) (declining to “decide whether FOIA
pleas must always be asserted in a separate complaint” but holding that the “statutory
language . . . clearly requires that the person seeking disclosure of information, after
recourse to an administrative process, file a complaint to trigger court action.”).
Finally, the District Court’s order granting the government’s motion to stay district
court proceedings is not a final order. See Marcus v. Township of Abington, 38 F.3d
1367, 1370 (3d Cir. 1990) (“[s]tay orders are normally not appealable final orders because
they merely delay proceedings in the suit.”). In any event, the appeal from that order is
now moot. Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam) (an action becomes
moot when “the issues presented are no longer ‘live’ or the parties lack a legally
cognizable interest in the outcome.”) (citations omitted). The District Court’s order
provided that the “case is stayed pending resolution of [Banks’ direct] appeal before the
Court of Appeals for the Third Circuit.” Because we recently affirmed Banks’ conviction
and sentence, see United States v. Banks, No. 06-1934, 2008 WL 5051991 (3d Cir. Nov.
28, 2008), his challenge to the order staying the proceedings pending our adjudication of
his direct appeal has been rendered moot.
Because this appeal presents us with no substantial question, see I.O.P. 10.6, we
will summarily affirm.

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