United States of America v.  Gregory Wayne Banks

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 06-4216 
GREGORY WAYNE BANKS,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, District Judge.
(1:04-cr-00578-JFM-2)
Argued: January 31, 2007
Decided: April 13, 2007
Before WILKINS, Chief Judge, and WILLIAMS and
DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opinion, in
which Chief Judge Wilkins and Judge Williams concurred.
COUNSEL
ARGUED: Denise Charlotte Barrett, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Bal-
timore, Maryland, for Appellant. Martin Joseph Clarke, Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: James
Wyda, Federal Public Defender, Baltimore, Maryland, for Appellant.

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Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for
Appellee.
OPINION
DUNCAN, Circuit Judge:
Gregory Wayne Banks ("Banks") appeals, on various grounds, his
convictions for drug and conspiracy charges relating to a prescription-
drug fraud scheme that spanned a period from 1999 to 2004. Specifi-
cally, Banks asserts that the trial court erred in denying his motion to
suppress evidence obtained from an inventory search of two duffle
bags brought to the police station during a 2000 arrest. Banks also
seeks a new trial because the trial court admitted certain notations
written on fingerprint cards by an evidence technician at the scene of
a 2001 raid of one of the conspirators’ sham medical clinics. Finally,
Banks requests a remand to allow the trial court to conduct a retro-
spective evaluation of his competency to stand trial.
For the reasons discussed below, we affirm his convictions.
I.
Banks was one of several persons arrested in connection with a
prescription-drug fraud scheme occurring in the Baltimore, Maryland
area. The evidence at trial revealed a conspiracy in furtherance of
which Banks and Oliver Hudson ("Hudson"), his half-brother and
codefendant, coordinated the creation and "passing" of fraudulent pre-
scriptions for oxycodone products. The conspirators wrote the pre-
scriptions on prescription pads bearing the names and Drug
Enforcement Administration ("DEA") registration numbers of seven
legitimate area physicians. However, the pads falsely associated each
physician with a sham medical clinic. The physicians had no knowl-
edge of the appropriation of their names.
During the five-year conspiracy, Banks and Hudson created ten
medical clinics to lend seeming authenticity to the prescriptions they
wrote. Banks had primary responsibility for leasing office space for
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each clinic and connecting the telephone lines, though the clinics did
not actually serve any patients. Banks also ensured that the clinics
were staffed during business hours, by himself, Hudson, or a person
they hired.
Banks and Hudson hired runners to pass the prescriptions at area
pharmacies. If a pharmacist became suspicious while filling the pre-
scription and called the listed telephone number, the person staffing
the clinic was available to verify its legitimacy. Overall, Banks coor-
dinated the passing of prescriptions at seventeen different pharmacies.
Government witness Nadira Jenkins-El, a former runner for Banks
and Hudson in 2000-2001, testified as to Banks’s daily routine in fur-
therance of the conspiracy. Banks and Hudson would meet privately
in the morning to discuss the agenda for the day. Banks would then
drive Hudson, Jenkins-El, and another runner or two from pharmacy
to pharmacy in Banks’s van. Banks or Hudson would fill out the fake
prescription en route. Upon arrival, Banks would drive around the
pharmacy, looking for a parking space far from any security cameras.
The runner would then attempt to fill the prescription. Only a small
copay, or sometimes no copay, was required to procure the pills
because the runner used one of several medical assistance cards (e.g.,
Medicaid cards) that Banks and Hudson "leased" from "other drug
addicts off of the street." J.A. 553.
At the end of a typical day, Banks would drop the runners off at
the Metro Therapy and Wellness Center (the "Metro Center"), the
sham clinic supporting the conspiracy during Jenkins-El’s tenure.
Banks and Hudson would sell the day’s cache of pills to a local drug
dealer, and would then return to the Metro Center to pay the runners
from the proceeds. Jenkins-El agreed that both Banks and Hudson
were "calling the shots" from day-to-day. J.A. 560.
The conspiracy did not escape detection by law enforcement for
long, however. In April 2000, a runner, Nicholas Eggleston, raised the
suspicion of a pharmacist at a Target pharmacy. The pharmacist cal-
led Detective Scott Gunn of the Anne Arundel County Police Depart-
ment (the "AACOPD") after Eggleston dropped off the forged
prescription. When Eggleston returned the following day to pick up
the filled prescription, the pharmacist again called Det. Gunn, who
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asked the pharmacist to stall Eggleston until Det. Gunn could make
his way to the Target. Det. Gunn then called the AACOPD station-
house and requested that a uniformed officer respond to the Target.
Target security officers had earlier observed Eggleston exiting a
black Lincoln Town Car1 with Banks. While Eggleston was waiting
for the prescription to be filled, Banks walked around the store. By
the time Det. Gunn arrived, the requested uniformed officer had
arrested both Eggleston and Banks, and was holding them in the Tar-
get security office. Det. Gunn recognized Banks’s name because he
had issued a warrant for Banks several months prior for passing a
forged prescription. A routine check revealed four outstanding war-
rants for Banks’s arrest. Eggleston was arrested for passing the forged
prescription at Target, but Banks was arrested only in connection with
the outstanding warrants.
Det. Gunn asked Banks if there was anything in the Lincoln that
he wished to bring with him to the stationhouse. Banks requested two
black bags located in the trunk of the Lincoln. Det. Gunn retrieved the
keys from Banks, and then Banks was taken to the stationhouse by the
arresting officer. Eggleston remained with Det. Gunn.
Det. Gunn found Hudson and Cathy Jones, a runner, asleep in the
back seat of the Lincoln. Det. Gunn woke them and, when a query
failed to reveal any outstanding warrants for either, released them.
Det. Gunn then retrieved the two bags that Banks had requested.
These bags were the trunk’s only contents. After securing the Lincoln,
Det. Gunn drove Eggleston to the stationhouse.
As booking personnel conducted intake procedures of Banks and
Eggleston, Det. Gunn opened the two bags for the first time. He
immediately noticed contraband in the form of medical assistance
cards and prescriptions and informed Banks that the contents of the
bags would not be returned to him upon his release from detention.2
1Testimony at trial revealed that Banks and Hudson sometimes used
rental cars instead of Banks’s van to coordinate a day’s activities.
2The record does not reveal for how long Banks was detained, or under
what conditions he was released.
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Over the next few days, Det. Gunn inventoried the contents of the
bags in his office, itemizing the contraband on an investigative report.
The inventory revealed numerous prescriptions, dozens of prescrip-
tion labels, and a blank prescription pad. Det. Gunn contacted the
DEA, requesting that the items be collected. After being stored for "a
long time" under Det. Gunn’s desk, J.A. 212, the bags were finally
transferred to the DEA.
In 2001, a search warrant was executed at the Metro Center.
AACOPD Det. Leslie Stickles led the raiding team, while evidence
technician Lorraine Stieff ("Stieff") dusted and collected latent finger-
prints from inside the Metro Center. According to later testimony by
the fingerprint examiner, Ernest Lowman ("Lowman"), Stieff hand-
wrote notations on two fingerprint cards indicating that the prints had
been lifted from inside the Metro Center and then placed those finger-
print cards in Lowman’s lockbox for analysis. These actions complied
with AACOPD procedures. Lowman identified Banks’s fingerprints
on the two fingerprint cards.
Eventually, the Federal Bureau of Investigation (the "FBI") began
investigating Banks’s and Hudson’s operations, and subjected them to
wiretaps and surveillance. A survey of area pharmacies yielded two
fraudulent passed prescriptions with Banks’s fingerprints on them. In
December 2004, Banks was indicted on numerous drug charges,
including one count of conspiracy to distribute a controlled substance,
21 U.S.C. § 846.3
Banks was initially represented by Frank Draper ("Draper" or
"Counsel"), of the federal public defender’s office. In August 2005,
however, Banks and Hudson each filed a series of spurious pro se
motions arguing that the court had no subject matter jurisdiction
because each was a "real, live flesh and blood Man." J.A. 119-20. At
3The other counts against Banks included six counts of possession of
a controlled substance with intent to distribute, 21 U.S.C. § 841(a)(1);
five counts of health care fraud, 18 U.S.C. § 1347; five counts of obtain-
ing a drug by fraud, 21 U.S.C. § 843(a)(3); five counts of misbranding
drugs, 21 U.S.C. § 331(k); and one count of engaging in a continuing
criminal enterprise, 21 U.S.C. § 848(a). Hudson was also charged in
these and other counts.
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his next appearance, Banks informed the magistrate judge for the first
time that he did not understand the proceedings against him. He reit-
erated his jurisdictional argument, moved to fire his attorney, and was
ultimately removed from the courtroom for being disruptive. Hudson
had engaged in similar behavior earlier in the same hearing.
At a subsequent hearing before the district court to decide Banks’s
and Hudson’s motions to terminate counsel, Banks insisted that Dra-
per labored under a conflict of interest because he worked for the gov-
ernment. Draper reported that, despite Banks’s initial cooperation, he
now refused to meet with him or to open mail from him. Draper
expressed surprise at Banks’s sudden change in behavior, speculating
that Hudson was directing Banks’s actions. After the district court
denied the motions, Banks and Hudson refused to participate further
in their joint trial. They refused to attend subsequent proceedings,
which nevertheless continued in their absence.
Prior to trial, Banks’s counsel moved to suppress all evidence
recovered as a result of Det. Gunn’s search of Banks’s two bags. The
district court denied the motion, finding Det. Gunn’s search to be an
"inventory search" and thus allowable without a warrant.
During the trial testimony of Lowman, the fingerprint examiner,
the government sought to introduce the two fingerprint cards com-
pleted by Stieff during the 2001 raid of the Metro Center. The govern-
ment also asked Lowman to read Stieff’s notations from the cards,
identifying whence the fingerprints originated. Counsel objected to
the admission of the cards and the reading of the notations on the
basis that Stieff’s absence from trial rendered the notations inadmissi-
ble hearsay. The district court overruled the objection and admitted
the cards and the reading of the notations under the business records
hearsay exception, Fed. R. Evid. 803(6). Lowman proceeded to testify
that the fingerprint cards identified that both prints were lifted from
inside the Metro Center, one "[f]rom a Burger King cup . . . in a
closet," and the other "[f]rom a glass mug that was in the closet." J.A.
512.
The jury ultimately convicted Banks on all but one count. The dis-
trict court sentenced Banks to sixteen years’ confinement. Banks
timely appealed, highlighting three purported errors in his trial, each
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one of which, he argues, requires that he be granted a new trial. We
discuss each contention in turn.
II.
Banks argues first that the district court erred in denying his motion
to suppress, on Fourth Amendment grounds, the evidence obtained
from Det. Gunn’s search of the two bags.4 Banks contends that the
search was illegal and that all evidence against him that was obtained
subsequent to this search is thus "fruit of the poisonous tree . . .
because it would not have come to light but for the illegal actions of
the police," Wong Sun v. United States, 371 U.S. 471, 488 (1963).
The government insists that the district court properly found that the
search, though warrantless, is valid under the "inventory search" doc-
trine, South Dakota v. Opperman, 428 U.S. 364, 374-76 (1976).
In examining a district court’s "ruling on a motion to suppress, we
review conclusions of law de novo and underlying factual findings for
clear error." United States v. Buckner, 473 F.3d 551, 553 (4th Cir.
2007) (emphasis omitted).
"The Fourth Amendment generally requires police to secure a war-
rant before conducting a search." Maryland v. Dyson, 527 U.S. 465,
466 (1999); see also United States v. Currence, 446 F.3d 554, 556
(4th Cir. 2006). Any evidence obtained in violation of the Fourth
Amendment may be suppressed under the exclusionary rule. United
States v. Perez, 393 F.3d 457, 460 (4th Cir. 2004). A warrantless
search is nevertheless valid, and the evidence obtained from the
search admissible, if the search "‘falls within one of the narrow and
well-delineated exceptions’ to the Fourth Amendment’s warrant
requirement." Currence, 446 F.3d at 556 (quoting Flippo v. West Vir-
ginia, 528 U.S. 11, 13 (1999)). One such exception arises when the
search is merely an "inventory search." Opperman, 428 U.S. at 374-
76.
4Banks does not challenge on appeal the seizure of the two bags from
the trunk of the Lincoln, but rather only the search thereof after they
were properly within police custody.
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A proper inventory search is merely "an incidental administrative
step following arrest and preceding incarceration," Illinois v. Lafay-
ette, 462 U.S. 640, 644 (1983), conducted to protect the arrestee from
theft of his possessions, to protect the police from false accusations
of theft, and to remove dangerous items from the arrestee prior to his
jailing, id. at 646. Such inventory searches, however, must "be con-
ducted according to standardized criteria." Colorado v. Bertine, 479
U.S. 367, 374 n.6 (1987).
Such standardized criteria are often codified by a police department
into a uniform inventory-search policy. For such a policy to be valid,
it must curtail the discretion of the searching officer so as to prevent
searches from becoming "a ruse for a general rummaging in order to
discover incriminating evidence." Florida v. Wells, 495 U.S. 1, 4
(1990). Otherwise, the policy might devolve into "‘a purposeful and
general means of discovering evidence of a crime.’" Id. (quoting Ber-
tine, 479 U.S. at 376 (Blackmun, J., concurring)). Nevertheless, an
inventory-search policy may leave the inspecting officer "sufficient
latitude to determine whether a particular container should or should
not be opened in light of the nature of the search and characteristics
of the container itself." Id.
Standardized search procedures must be "administered in good
faith" for their attendant searches to satisfy the Fourth Amendment.
Bertine, 479 U.S. at 374. That is, an inventory search conducted pur-
suant to standardized procedures is valid "so long as the purpose of
the inventory is . . . not to gather incriminating evidence against the
owner." United States v. Brown, 787 F.2d 929, 932 (4th Cir. 1986).
At the time of Det. Gunn’s search of the bags in the instant case,
the AACOPD had in place a written inventory-search policy that
specified with particularity the intake steps that should be followed by
booking personnel in processing detainees.5 Banks does not challenge
5The policy provides, in relevant part:
VII. DETAINEE PROCESSING
A. Weapon Search
Any officer who brings a prisoner to a holding facility will
search the prisoner and remove and safeguard any weapons
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the constitutional sufficiency of the inventory-search policy itself.
Instead, he highlights six discrepancies between Det. Gunn’s actions
in searching the two bags and the procedures required by AACOPD
policy: (1) the policy required the initial search of Banks to be con-
ducted by "the officer in custody of" him, who was the arresting offi-
cer, not Det. Gunn, see J.A. 263; (2) booking personnel, not Det.
Gunn, should have performed the inventory; (3) all items found in the
found on the prisoner before taking the prisoner into the booking
area or placing him in a holding cell.
B. Inventory Search
Once inside the booking area or holding facility, the officer in
custody of the prisoner will conduct an inventory search of the
prisoner before the prisoner is booked or placed in a holding cell.
The officer will seize and remove any weapons, contraband, evi-
dence, and property that is not permitted to accompany the pris-
oner into the holding cell, prior to proceeding with booking or
placing the prisoner in a holding cell. . . .
C. Itemized Inventory of Prisoner Property
Booking personnel will inventory and prepare an itemized list of
all property taken from a prisoner, and all property (including
paper currency) retained by the prisoner. The inventory will be
documented on the "Holding Facility Intake" form (PD 2004).
Booking personnel will sign and date the property inventory
sheet.
The prisoner will be asked to sign the inventory form acknowl-
edging the property that was taken. Prisoners with no property
will sign an inventory form marked "No Property". If the pris-
oner refuses to sign, another employee will sign the form as a
witness to its accuracy.
. . .
E. Secure Storage of Prisoner Property
Booking personnel are responsible for the secure storage of all
property taken from a prisoner. Each prisoner’s property will be
segregated from all other property and locked in secured facili-
ties until it is returned to the prisoner or placed in the property
management system.
J.A. 263-64.
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bag, not just the contraband, should have been inventoried; (4) the
inventory should have been recorded on the proper inventory form,
not on an investigative report; (5) booking personnel, not Det. Gunn,
should have secured the property; and (6) the property should have
been securely stored, not placed under Det. Gunn’s desk.
Banks makes two arguments based on these six discrepancies.
First, he contends that the discrepancies themselves amount to a con-
stitutional violation, even if the search was conducted innocuously.
Second, he argues that the discrepancies revealed that Det. Gunn’s
purpose in conducting the inventory was to gather incriminating evi-
dence. The government insists that the discrepancies do not evince a
pretextual motive for the search, but that instead Det. Gunn "fortuit-
ous[ly] discover[ed the] evidence during a routine booking proce-
dure." Appellee’s Br. at 26.
We find Banks’s focus on Det. Gunn’s alleged lack of technical
compliance with the written policy governing the intake of arrestees
by booking personnel to misunderstand the requirement that inventory
searches "be conducted according to standardized criteria," Bertine,
479 U.S. at 374 n.6. To be sure, the written policy of the AACOPD
establishes certain standards for the processing of the typical arrestee
and the inventory of the possessions he carries. The policy does not,
however, specify the precise procedures to be followed in every cir-
cumstance. Indeed, the policy details only the search required of
"[a]ny officer who brings a prisoner to a holding facility," guiding
that officer to "conduct an inventory search of the prisoner before the
prisoner is booked." J.A. 263. The policy is silent regarding the
proper procedures to be followed in the unusual scenario here, in
which the non-arresting officer is nevertheless in possession of certain
of the arrestee’s belongings that the arrestee himself requested be
delivered to the stationhouse.
In Lafayette, the Supreme Court upheld a search of a shoulder bag
carried into a stationhouse by an arrestee, not because of technical
compliance with a written policy, but because it was "standard proce-
dure to inventory ‘everything’ in the possession of an arrested per-
son." 462 U.S. at 642. Similarly, the question before us is not whether
Det. Gunn complied with all the written directives governing one par-
ticular application of the standardized procedures for inventory
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searches at the AACOPD, but whether, in light of the unusual circum-
stances leading to Det. Gunn’s possession of the two bags at the sta-
tionhouse, he acted in accordance with standard procedures more
generally.
The written policy reveals that the end result of an inventory search
in the typical arrest scenario is that the arrestee’s person and posses-
sions are searched, with paper currency returned immediately to the
arrestee, other personal property stored until the arrestee’s release,
and contraband seized and secured. Det. Gunn’s search of the bags
mirrored this routine practice. Just as the bags would have been
searched and their contents confiscated and secured by booking per-
sonnel in a typical arrestee processing, they were searched, confis-
cated and secured by Det. Gunn.
Banks may only succeed in challenging the search of the bags,
then, by showing that Det. Gunn’s search was motivated by "an inves-
tigatory police motive," Opperman, 428 U.S. at 376. See id.; Brown,
787 F.2d at 932 (allowing searches "so long as the purpose of the
inventory is . . . not to gather incriminating evidence against the
owner"). This second argument is fatally weakened, however, by the
district court’s finding that Det. Gunn’s actions were "perfectly rea-
sonable . . . under the circumstances and do[ ] not betoken bad faith
on his part." J.A. 259. This factual finding must be upheld on appeal
unless clearly erroneous. Buckner, 473 F.3d at 553.
Banks presented no evidence that Det. Gunn initiated the search of
the bags or conducted the inventory search because he suspected that
he would find incriminating evidence therein. To be sure, Det. Gunn’s
decision to perform the inventory himself in his office, instead of fol-
lowing the usual procedures, was irregular. The irregularity was due
in part, however, to the unusual circumstances of the arrest. The
arresting officer, though he responded first to the Target, was only
involved because of Det. Gunn’s distance from the pharmacy at the
time Eggleston and Banks arrived at the store. Furthermore, the bags
were not in Banks’s physical possession because they were procured
by Det. Gunn, at Banks’s specific request, after his arrest.
The district court credited Det. Gunn’s explanation that "[b]ased on
the information that [he] found in the bags, [he] knew that this [case]
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was beyond [him]," J.A. 213, and he thus proceeded to inventory the
bags himself and to contact the DEA instead of leaving the bags full
of facially incriminating evidence with the booking personnel to be
inventoried and stored. The district court found that Det. Gunn’s
explanation in fact "add[ed] to his credibility." J.A. 258. The district
court finally noted that once the bags were lawfully brought into the
stationhouse with Banks, it was inevitable that some AACOPD
employee would have "to look through it to see what’s there." J.A.
259.
We hold that because Det. Gunn did replicate standard procedures
in conducting the search of Banks’s bags to the extent possible on
these facts, and because the district court’s finding that Det. Gunn
acted in good faith was not clearly erroneous, Banks cannot show that
the search of the bags was constitutionally improper.
III.
Banks next argues that the notations of evidence technician Stieff
on the fingerprint cards were erroneously admitted into evidence for
two reasons: (1) the notations are inadmissible hearsay; and (2) their
admission would violate the Confrontation Clause under Crawford v.
Washington, 541 U.S. 36 (2004). We need not decide whether the dis-
trict court erred, however, because we hold that any error would be
harmless in light of the other evidence inculpating Banks.
Evidentiary rulings are "subject to harmless error review." United
States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997). Similarly, a Con-
frontation Clause violation may be found harmless on appeal. United
States v. Khan, 461 F.3d 477, 496 (4th Cir. 2006); Crawford, 541
U.S. at 76 (Rehnquist, C.J., concurring in the judgment) (reading the
majority opinion to "implicit[ly] recogni[ze]" that Confrontation
Clause violations continue to be "subject to harmless-error analysis").
"[I]n order to find a district court’s error harmless, we need only be
able to say with fair assurance, after pondering all that has happened
without stripping the erroneous action from the whole, that the judg-
ment was not substantially swayed by the error." Brooks, 111 F.3d at
371 (alteration in original) (internal quotation omitted).
First, we note that the evidence technician’s notations may not
have been necessary to link the fingerprint cards to the situs of the
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lifted prints. Det. Stickles, who supervised the raid at the Metro Cen-
ter, testified at trial that Stieff collected, and later submitted impres-
sions of, fingerprints found at the scene. Lowman, the fingerprint
examiner, then testified that he had dispatched the evidence techni-
cian to the Metro Center with the raiding party and had later retrieved
the fingerprint cards from his lockbox. Even without the admission of
Stieff’s notations, then, a reasonable jury might have inferred that the
fingerprint cards contained fingerprints lifted from the Metro Center.
More significantly, the government presented a substantial amount
of evidence tending to inculpate Banks. The uncontradicted testimony
of Jenkins-El, for example, revealed firsthand knowledge of Banks’s
involvement in the conspiracy and in the other charged crimes. The
contents of Banks’s two bags, including a blank fraudulent prescrip-
tion pad and medical assistance cards, provided strong corroborating
evidence of his guilt. Finally, Banks’s fingerprints were also found on
two fraudulently passed prescriptions, one of which was issued by the
Metro Center. Together with wiretap and surveillance recordings, this
evidence was more than sufficient to support Banks’s conviction.
Therefore, even if the admission of the evidence technician’s nota-
tions did constitute an evidentiary or constitutional error, Banks’s
substantial rights were not violated and any error would be harmless.
IV.
Finally, Banks argues that the district court should have ordered
sua sponte a competency hearing and requests that we remand for a
new trial or retrospective competency evaluation. We hold that the
district court did not abuse its discretion in failing to so order.
It would be a violation of due process to convict a defendant when
he is legally incompetent. United States v. Mason, 52 F.3d 1286, 1289
(4th Cir. 1995). "Congress has safeguarded this [due process] right by
providing that trial courts conduct competency hearings" under speci-
fied circumstances. Id. (citing 18 U.S.C. § 4241(a)). Of relevance
here, when neither party to a criminal trial moves for a competency
hearing, the district court
shall order such a hearing on its own motion[ ] if there is
reasonable cause to believe that the defendant may presently
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be suffering from a mental disease or defect rendering him
mentally incompetent to the extent that he is unable to
understand the nature and consequences of the proceedings
against him or to assist properly in his defense.
§ 4241(a); see also Mason, 52 F.3d at 1289 (recognizing that the exis-
tence of reasonable cause requires the sua sponte ordering of a com-
petency hearing). Whether such reasonable cause exists, however, is
left to the discretion of the district court. Mason, 52 F.3d at 1289.
Thus, the challenge here is a "procedural competency claim"; Banks
need not demonstrate on appeal that he was in fact incompetent, but
merely that the district court should have ordered a hearing to deter-
mine the ultimate fact of competency. See United States v. General,
278 F.3d 389, 396 (4th Cir. 2002). We review such a challenge for
abuse of discretion, under which standard "this Court may not substi-
tute its judgment for that of the district court; rather, we must deter-
mine whether the court’s exercise of discretion, considering the law
and the facts, was arbitrary or capricious." Mason, 52 F.3d at 1289.
We defer so to the district court because it is in a superior position
to adjudge the presence of indicia of incompetency constituting rea-
sonable cause to initiate a hearing.
Banks argues that he exhibited a sudden change of behavior in the
months before the trial began, metamorphosing from a cooperative
client and defendant into an irrational and paranoid incompetent.
Banks cites as predicates for reasonable cause his accusation at a pre-
trial hearing that his court-appointed counsel was sharing secrets with
the government; his frivolous "real, live flesh and blood Man"
motions, J.A. 119-20; his refusal to meet with counsel or participate
in his trial; and his insistence throughout the hearings and trial that
he did not understand the proceedings against him.
There was nothing before the district court to suggest that Banks’s
behavior reflected anything other than an ill-advised, self-defeating
legal strategy. Indeed, both Banks and Hudson were initially coopera-
tive with the court, then abruptly began pursuing the same strategy of
refusing to recognize the subject matter jurisdiction of the court and
refusing to participate in the proceedings. Far from suggesting that
Banks was suffering from mental delusion, his parroting of Hudson’s
arguments intimated instead his trust in his brother’s blueprint for
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gaining a successful outcome. See, e.g., J.A. 307-09 (recounting Hud-
son’s detailed explication at trial of his subject-matter-jurisdiction
argument, followed by Banks’s rejoinder, "I state the same thing. . . .
Same position. . . . Thank you"). Furthermore, Banks’s attorney
informed the district court that Banks’s and Hudson’s legal strategy
is available for sale over the Internet and enjoys relative popularity
within the prison population.
The district court viewed Banks’s behavior as reflective of a strat-
egy to provide the basis for success on appeal. Were we to adopt
Banks’s argument and remand for a competency hearing, we would
validate Banks’s trial strategy. The requirement of § 4241(a) that the
district court grant a competency hearing when reasonable cause
exists cannot be expanded to require such a hearing any time that a
defendant engages in disruptive tactics or pursues a frivolous legal
strategy. We therefore find that the district court did not abuse its dis-
cretion in failing to order sua sponte a hearing to determine Banks’s
competency to stand trial.
V.
Ultimately, Banks’s attempts to recharacterize ministerial law
enforcement functions as improper investigatory overreaching must
fail, as must his deliberate but ill-conceived trial strategy to gain a
successful appeal. Accordingly, we affirm Banks’s convictions.
AFFIRMED
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