United States of America v. Frederick Banks

DPS-85
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-4437
______________________
UNITED STATES OF AMERICA
V.
FREDERICK BANKS,
Appellant
____________________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(W.D. Pa. Crim. No. 96-cr-00064)
District Judge: Honorable Gary L. Lancaster
____________________________________
Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
December 30, 2005
Before: ROTH, FUENTES AND VAN ANTWERPEN, Circuit Judges
(Filed February 9, 2006)
______________________
OPINION
_______________________
PER CURIAM
Frederick Banks appeals an order of the United States District Court for the
Western District of Pennsylvania denying his petition for a writ of error coram nobis.

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Because this appeal does not raise a substantial question, we will summarily affirm the
District Court’s order.
In 1996, Banks pled guilty to one count of mail fraud in violation of 18 U.S.C.
§ 1341. The District Court sentenced Banks to four months incarceration at a community
correction center, and three years of supervised release. Banks did not file a direct
appeal. In 2005, Banks filed a petition for a writ of error coram nobis seeking to vacate
his conviction. The District Court denied the petition, and this appeal followed.
The writ of error coram nobis is used to attack allegedly invalid convictions which
have continuing consequences, when the petitioner has served his sentence and is no
longer “in custody” for purposes of 28 U.S.C. § 2255. United States v. Stoneman, 870
F.2d 102, 105-06 (3d Cir. 1989). A petitioner must show that he is suffering from
continuing consequences of the allegedly invalid conviction. Id. at 106. Use of the writ
is appropriate to correct errors for which there was no remedy available at the time of
trial, and where sound reasons exist for failing to seek relief earlier. Id. Coram nobis is
an extraordinary remedy, and the alleged error must go to the jurisdiction of the trial
court, thus rendering the trial itself invalid. Id.
Citing Neder v. United States, 527 U.S. 1 (1999), Banks argues that the
Government omitted the element of materiality from the information charging him with
mail fraud, and that he was not told about the materiality requirement. As a threshold
matter, Banks has not shown that his conviction carries continuing consequences, or that

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The District Court did not address Banks’ additional claim that the District Court did1
not inform him of the minimum penalty for a mail fraud conviction. Coram nobis relief is
not warranted on this claim.
We will also deny a certificate of appealability in Banks’ separate appeal of the2
District Court’s denial of his motion to vacate sentence (C.A. No. 05-4429).
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sound reasons exist for his failure to seek relief earlier. On the merits of his claim, the
information charges Banks with devising a scheme to defraud and obtain money by
means of false and fraudulent pretenses through use of the mail in violation of 18 U.S.C.
§ 1341. Neder, which held that materiality is an element of the offense of mail fraud, was
decided three years after Banks’ conviction became final. In any event, the materiality of
Banks’ misrepresentations is not a question in this case. At the plea hearing, Banks
admitted that he operated a company that falsely represented that it located missing
persons with a ninety-seven percent success rate, collected fees from customers, and then
failed to provide customers with any information. Under these circumstances, the District
Court properly denied the petition for a writ of error coram nobis.1
Accordingly, we will summarily affirm the District Court’s order.2

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