PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 08-3275 & 08-3688
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
Argued June 3, 2010
Before: AMBRO, CHAGARES, and
VAN ANTWERPEN, Circuit Judges
Opinion filed: July 27, 2010
Thomas A. Dreyer, Esquire (Argued)
6 Dickinson Drive
Building 100, Suite 106
Chadds Ford, PA 19317
Counsel for Appellant (Cross-Appellee)
Michael L. Levy
United States Attorney
Robert A. Zauzmer
Assistant United States Attorney
Chief of Appeals
Bernadette A. McKeon (Argued)
Assistant United States Attorney
Jason Bologna, Esquire
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee (Cross-Appellant)
OPINION OF THE COURT
AMBRO, Circuit Judge
Section 115 of Title 18 of the United States Code makes
it a crime to “threaten[] to assault, kidnap, or murder . . . an
2
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
3
prosecuted under § 115 for threatening a federal “employee,” 1
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
1
See, e.g., United States v. Armel, 585 F.3d 182, 185 (4th
Cir. 2009) (affirming conviction under § 115 for threatening
“FBI agents and support staff,” including a secretary, at a local
FBI office); United States v. Cash, 394 F.3d 560, 561 (7th Cir.
2005) (affirming conviction under § 115 for threatening a
“[s]ervice [r]epresentative” at a local Veterans Affairs office).
4
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.
5
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
6
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”).2 Accordingly, Bankoff
2
The defendant in Fenton was charged under § 115 with
threatening a legislative aide to the late Representative John P.
Murtha of Pennsylvania. The District Court granted Fenton’s
motion to dismiss the indictment, concluding that
Representative Murtha’s legislative aide could not be considered
7
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
an “official” or an “officer” because he “undertakes to do only
that which the Congressman directs, and does not exercise
independent authority or discretion in administering the
legislative power of the government.” Id. at 507.
8
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 Bankoff’s three victims were
“officials” under the Court’s proposed definition and seek a
judgment of acquittal on that basis.
The District Court recognized that it had modified its
preliminary ruling. It nonetheless explained that it had
a slight problem with the Government’s
expansive viewpoint. Because if you say that the
word official in [§] 115 by reference to officer or
employee in [§] 1114 . . . incorporates by
reference every employee, no matter how lowly
they may be, I think that’s a leap.
The Court gave one example to explain its concern: a janitor
employed by a federal agency, a person whom the Court
doubted would qualify “in [] lay term[s] as [an] official.”
9
After both sides rested at trial, the District Court gave the
instruction it had proposed (including its definition of an
“official”). The jury found Bankoff guilty of threatening Tonik
and Robinson (Counts Two and Three), but acquitted him of
threatening Sphabmixy (Count One).
D. Bankoff’s Motion for a Judgment of Acquittal
Following the verdict, Bankoff moved for a judgment of
acquittal on the Counts charging him with threatening Tonik and
Robinson, arguing that the trial evidence was insufficient to
prove that they were “officials” within the meaning of § 115.
See Fed. R. Crim. P. 29(c). The District Court denied the
motion as to Tonik, reasoning that she was an “operations
supervisor” who “oversaw the daily operation of the
supplemental security income program in the local field office”
and “supervised ‘claims representatives’ who had the authority
to adjudicate claims on behalf of the federal government.” As
such, the Court determined there was sufficient evidence that
Tonik “made decisions on behalf of the government and
therefore was a federal official.”
The District Court granted the motion as to Robinson
because her “testimony as to her job duties d[id] not indicate
that she made decisions on behalf of the government.”
Robinson “did not have the authority to hire or supervise other
employees,” and her “usual job duties” included “answering the
telephones.” The Court thus concluded that Robinson was not
an “official” and, in light of that conclusion, declined to reach
10
Bankoff’s other two arguments—that the evidence was
insufficient to prove that he (1) made a “true threat” against
Robinson, or (2) acted with the specific intent of interfering with
or retaliating against Robinson for performing her “official
duties.”
E. Bankoff’s Requests to Proceed Pro Se
On several occasions prior to trial, Bankoff told the
District Court that he wished to represent himself during trial.
He reiterated this request during a final pretrial hearing in March
2008. The Court conducted an extensive colloquy with Bankoff
(in accordance with our precedent, see United States v. Peppers,
302 F.3d 120 (3d Cir. 2002)), advised him of the risks of
representing himself, and strongly advised him against doing so.
It also advised Bankoff that his counsel would remain as
standby counsel (and would be available to take over the trial if
Bankoff changed his mind), but stressed that he would not be
allowed to switch back and forth with counsel during trial. At
the end of this colloquy, the Court granted Bankoff’s request to
proceed pro se.
Before the final pretrial conference concluded, Bankoff
changed his mind. During a conversation regarding jury
instructions, the District Court again suggested that it was a bad
idea for Bankoff to represent himself:
[The Court]: I don’t think that, with the limited
education that you have of a GED—but you’re a
11
bright fellow, you know, and I—I want to state
that on the record. You have a good vocabulary.
You’re articulate. You understand my questions.
And, however bright you are, you’re just—I just
don’t think you’re prepared to defend yourself as
well as your lawyers can.
[Bankoff]: I think you’re right, Your Honor.
[The Court]: All right.
[Bankoff]: I think I—I changed my mind. I think
I—I think I—
[The Court]: Well, you don’t have to make a
decision today. You ought to sleep on this and
talk to your lawyer some more.
[Bankoff]: Well, I spoke to them, and I was
thinking about it for—for a while, and I—I
think—I think that they’re—they’re—[my
attorney] Ms. Rimmer did very well today. I
think she did real good. [My other attorney,] Mr.
McHugh, sometimes, he did good; sometimes,
there was a couple of things that—I think
I’ll—I’ll stick with my team, Your Honor.
I changed my mind, and I’m sorry to
trouble the Court with these, you know, ups and
12
downs—
[The Court]: All right.
[Bankoff]: —fluctuations, whatever—
Despite Bankoff’s statements that he no longer wished to
proceed pro se, the Court informed him that if he “want[ed] to
represent [himself] next Monday [the first day of trial], [it
would] let [him] do it, but . . . it’s a very bad idea.”
Trial began the following Monday, and neither Bankoff
nor his counsel raised the issue of self-representation prior to
jury selection or opening statements. However, Bankoff
repeatedly interrupted the prosecutor’s opening statement with
argumentative objections, and, after the prosecutor concluded,
Bankoff demanded to give the opening statement for the
defense. The Court informed Bankoff that it would not permit
him to represent himself that day, but would address his
objections at the end of the day (after the jury had been
released). One witness for the Government (Sphabmixy)
testified that day, and Bankoff’s counsel conducted the cross-
examination.
After the jury was dismissed, the District Court held an
on-the-record conference with the parties. Bankoff denied he
had ever withdrawn his request to proceed pro se, and
complained that he had not been permitted to cross-examine
Sphabmixy. The Court again advised Bankoff that he could not
13
“have it both ways,” and asked him if he wanted to represent
himself for the rest of trial. Bankoff declared that it was “too
late,” and that he was “just gonna have to let [his attorney] go
forward from now.”
But on Tuesday morning Bankoff again demanded to
proceed pro se. The District Court ruled that his counsel would
finish the cross-examination of Sphabmixy. Once cross was
completed, however, the Court permitted Bankoff to represent
himself. He cross-examined the Government’s remaining
witnesses (Tonik, Robinson, and Federal Protective Services
Special Agent Jesse Kunkle), and the Court also allowed
Bankoff to cross-examine Sphabmixy after the Government
rested.
Bankoff chose to present a defense, calling his father
and a psychiatrist to testify on his behalf. Bankoff’s father was
unable to answer some of his son’s questions after becoming
emotional, and the District Court—with Bankoff’s
consent—permitted standby counsel to finish the direct
examination.
At the close of trial, Bankoff’s counsel gave the closing
statement for the defense after Bankoff was removed from the
courtroom following an angry, profane, and lengthy outburst
(which occurred outside of the jury’s presence). The District
Court informed the jury that Bankoff had “elected by his words
and conduct to not be present” for the conclusion of
summations. The Court nonetheless took care to instruct the
14
jury that it was “not to use” Bankoff’s “words or his conduct
during the trial” “for any purpose in [its] deliberations.”
As noted, Bankoff was convicted on two of the three
counts and the District Court overturned one of them, leaving
only the conviction for threatening Tonik (Count Two). The
Court then sentenced Bankoff to 60 months’ imprisonment,
which represented a nine-month upward variance from the
advisory Guidelines range of 41-51 months. This timely appeal
followed.3
II. Discussion
Bankoff argues that the District Court erroneously denied
his motion for a judgment of acquittal on the Count charging
him with threatening Tonik (Count Two); the Government
cross-appeals the Court’s grant of a judgment of acquittal on the
Count charging Bankoff with threatening Robinson (Count
Three). In addition, Bankoff contends that the Court deprived
him of his right of self-representation in violation of the Sixth
Amendment.4
3
The District Court had jurisdiction under 18 U.S.C. § 3231.
We have appellate jurisdiction over Bankoff’s appeal under 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a), and over the
Government’s cross-appeal under 18 U.S.C. § 3731.
4
Bankoff also challenges the reasonableness of the District
Court’s sentence. In light of our disposition of the
15
We conclude that the District Court erred in granting a
judgment of acquittal as to Robinson, and thus vacate the
Court’s judgment on that Count. We affirm the Court’s denial
of a judgment of acquittal as to Tonik, but on a different ground.
Finally, we reject Bankoff’s Sixth Amendment claim.
A. Bankoff’s Motion for a Judgment of Acquittal
To determine whether the District Court erred in its
rulings on Bankoff’s motion for a judgment of acquittal, we first
interpret § 115. We have plenary review over a district court’s
interpretation of a statute, United States v. Introcaso, 506 F.3d
260, 264 n.3 (3d Cir. 2007), as well as its grant or denial of a
judgment of acquittal based on sufficiency of the evidence,
United States v. Starnes, 583 F.3d 196, 206 (3d Cir. 2009).
1. The Text of § 115
“Courts in applying criminal laws generally must follow
the plain and unambiguous meaning of the statutory language.”
United States v. Albertini, 472 U.S. 675, 680 (1985) . However,
“the meaning of statutory language, plain or not, depends on
context,” King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991),
and thus “is determined by reference to the language itself, the
specific context in which that language is used, and the broader
Government’s cross-appeal (wherein we vacate the Court’s
grant of a judgment of acquittal as to Count Three), we need not
address that claim.
16
context of the statute as a whole.” Robinson v. Shell Oil Co.,
519 U.S. 337, 341 (1997); see also Beecham v. United States,
511 U.S. 368, 372 (1994) (“The plain meaning that we seek to
discern is the plain meaning of the whole statute, not of isolated
sentences.”); Kokoszka v. Belford, 417 U.S. 642, 650 (1974)
(“When interpreting a statute, the court will not look merely to
a particular clause in which general words may be used, but will
take in connection with it the whole statute . . . .” (internal
quotation marks and citation omitted)). In that light, though we
“presume that Congress expressed its legislative intent through
the ordinary meaning of the words it chose to use,” United
States v. Knox, 32 F.3d 733, 744 (3d Cir. 1994), “[t]he
circumstances of . . . particular legislation may persuade a court
that Congress did not intend words of common meaning to have
their literal effect,” Watt v. Alaska, 451 U.S. 259, 266 (1981).
Bankoff’s argument in support of his interpretation of
§ 115 is straightforward. He contends that, because the terms
“official” and “employee” have different ordinary meanings,
Congress could not have intended that § 115 apply to threats
against employees “whose killing would be a crime under”
§ 1114 by referring to threats against “official[s] whose killing
would be a crime under” § 1114. 18 U.S.C. § 115(a)(1)(B). See
also Webster’s Third New Int’l Dictionary 743 (1971)
(“employee” means “one employed by another[,] usu[ally] in a
position below the executive level and usu[ally] for wages”); id.
at 1566 (“official” means “a person authorized to act for a
government, corporation, [or] organization”). Though
Bankoff’s argument is not without surface appeal, we reject it.
17
Section 115 prohibits threats against four categories of
individuals—“United States official[s],” “United States
judge[s],” “Federal law enforcement officer[s],” and “official[s]
whose killing would be a crime under” § 1114—but includes
specific definitions for only the first three. “United States
official”—a term that would encompass a wide class of persons
if construed consistent with its ordinary meaning—is defined
narrowly to include only “the President, President-elect, Vice
President, Vice President-elect, a Member of Congress, a
member-elect of Congress, a member of the executive branch
who is the head of a department listed in 5 U.S.C. § 101, or the
Director of the Central Intelligence Agency.” 18 U.S.C.
§ 115(c)(4). By contrast, a “Federal law enforcement officer”
is defined more broadly than its ordinary meaning to include
“any officer, agent, or employee of the United States authorized
by law or by a Government agency to engage in or supervise the
prevention, detection, investigation, or prosecution of any
violation of Federal criminal law.” 5 Id. § 115(c)(1).
In this context, it appears to us that Congress intended
terms like “official” and “officer” to have a special meaning in
§ 115 that was not the same as their ordinary, dictionary
definitions. As noted, § 115 itself defines a federal law
enforcement “officer”—a term Bankoff contends is synonymous
5
To complete the definitional trilogy, a “United States
judge” is “any judicial officer of the United States, and includes
a justice of the Supreme Court and a United States magistrate
judge.” Id. § 115(c)(3).
18
with “official” for purposes of the cross-reference to § 1114—as
including federal “employee[s] . . . authorized to engage in or
supervise the prevention, detection, investigation, or prosecution
of any violation of Federal criminal law.” Id. (emphasis added).
Nor is § 115 unusual in this regard; indeed, other sections
of the Criminal Code specifically define the term “official” to
include “employees.” For example, the federal bribery statute
defines “public official” to include a
Member of Congress, Delegate, or Resident
Commissioner, either before or after such official
has qualified, or an officer or employee or person
acting for or on behalf of the United States, or any
department, agency or branch of Government
thereof, including the District of Columbia, in any
official function, under or by authority of any
such department, agency, or branch of
Government, or a juror.
18 U.S.C. § 201(a)(1) (emphasis added). Similarly, the statute
prohibiting the murder or manslaughter of foreign officials
defines a “foreign official” to include
any person of a foreign nationality who is duly
notified to the United States as an officer or
employee of a foreign government or international
organization, and who is in the United States on
official business, and any member of his family
19
whose presence in the United States is in
connection with the presence of such officer or
employee.
18 U.S.C. § 1116(b)(3)(B) (emphasis added).
Finally, we believe it especially significant that § 115
defines the first three categories of covered persons but provides
no definition for the fourth category. This strongly suggests that
Congress intended for § 1114 itself to define that category by
incorporating it by reference into § 115. Cf. Stenberg v.
Carhart, 530 U.S. 914, 942 (2000) (when a statute defines a
term, a court “must follow that definition, even if it varies from
that term’s ordinary meaning”).
Notwithstanding this statutory context, Bankoff asks us
to compare § 115 with § 111 of Title 18, which makes it a crime
to “forcibly assault[], resist[], oppose[], impede[], intimidate[],
or interfere[] with any person designated in section 1114 of this
title while engaged in or on account of the performance of
official duties.” 18 U.S.C. § 111(a)(1) (emphasis added).
Bankoff argues that, “[h]ad Congress intended [§] 115 to cover
the exact same class of victims as [§] 1114, it would have
employed the exact same language which it used in” § 111—i.e.,
§ 115 would refer to any “person designated” in § 1114 instead
20
of an “official whose killing would be a crime” under § 1114.6
(Appellant’s Reply Br. at 5.)
We are not persuaded. The different language used to
incorporate § 1114 is readily explained by § 111’s unique
statutory history. Both § 111 and § 1114 originate from a 1934
Act “[t]o provide punishment for killing or assaulting [f]ederal
officers.” Pub. L. No. 73-230, 48 Stat. 780 (1934).
Section 1114 stems from § 1 of the 1934 Act; § 111 flows from
§ 2, which “forbade forcible resistance or interference with, or
assault upon,” “any person designated in section 1 hereof.” 48
Stat. 780, 781; see United States v. Feola, 420 U.S. 671, 679
(1975). Section 111 assumed its current form in 1948 when it
was re-codified as a separate section of Title 18, 62 Stat. 688
(1948); see Feola, 420 U.S. at 678 n.13, and in re-codifying that
section it appears that Congress simply retained the original
language used in the 1934 Act (i.e., a “person designated”).
In any event, that Congress used different language to
incorporate § 1114 in different statutes that were codified nearly
four decades apart—§ 111 in 1948, and § 115 in 1984, Pub. L.
6
We note that at least one other section of Title 18
incorporates § 1114 using language similar to § 115. See 18
U.S.C. § 876(c) (providing for a ten-year statutory maximum
term of imprisonment where a defendant mails a threatening
communication to “a United States judge, a Federal law
enforcement officer, or an official who is covered by section
1114” (emphasis added)).
21
No. 98-473, 98 Stat. 2140 (1984)—does not, standing alone,
demonstrate that it used the term “official” (as opposed to
“person”) in § 115 with the intention of limiting its scope.7 And
though Congress could have used a term other than “official” to
achieve the same result, its choice makes sense when § 115 is
viewed in context, given both its title (“[i]nfluencing, impeding,
or retaliating against a Federal official by threatening or injuring
a family member”) and the kinds of threats to which it applies
(e.g., those made to retaliate against such an official “on account
of the performance of official duties”). 18 U.S.C. § 115
(emphases added).
7
Though not raised by the parties, we note that another
section of Title 18, § 119, contains incorporating language
similar to § 111. See 18 U.S.C. § 119(a), (b)(2)(A) (making it
a crime in certain circumstances to “make[] restricted personal
information about a covered person . . . publicly available,” and
defining a “covered person” to include “an individual
designated in section 1114” of Title 18 (emphasis added)).
Section 119 was enacted in 2008, Pub. L. No. 110-177, 121 Stat.
2536 (2008), more than two decades after § 115 was enacted in
1984. In any event, there is no indication from either the text or
legislative history of § 119 that its reference to an “individual
designated” in § 1114 was chosen to distinguish its scope from
that of § 115.
22
2. The Text of § 1114
This interpretation of § 115 is confirmed by an
examination of the version of § 1114 that was in force when
§ 115 was enacted in 1984. As noted, § 1114 originates from
§ 1 of the 1934 Act, and, in its original form, made it a crime to
kill seven types of “federal officers” while they were “engaged
in the performance of [their] official duties, or on account of the
performance of [their] official duties.” 8 That section was
separately codified as 18 U.S.C. § 1114 in 1948, 62 Stat. 756
(1948), and in the decades that followed Congress “greatly
expanded” the categories of persons protected by that provision.
Feola, 420 U.S. at 679 n.15. By 1984 (when § 115 was
enacted), § 1114 applied to any “officer or employee” of, among
many federal agencies and departments, the Secret Service, the
Drug Enforcement Administration, the Veterans’ Administration
(now the Department of Veterans Affairs), the Department of
Agriculture, the Federal Depository Insurance Corporation, the
Federal Communications Commission, and the National
8
These “federal officers” were: “any United States marshal
or deputy United States marshal, special agent of the Division
of Investigation of the Department of Justice, post-office
inspector, Secret Service operative, any officer or enlisted man
of the Coast Guard, any employee of any United States penal or
correctional institution, any officer of the customs or of the
internal revenue, [or] any immigrant inspector of any
immigration patrol inspector.” 48 Stat. 780.
23
Aeronautics and Space Administration.9 And in addition to
9
In full, the version of 18 U.S.C. § 1114 in force when § 115
was enacted provided as follows:
Whoever kills or attempts to kill any judge of the
United States, any United States Attorney, any
Assistant United States Attorney, or any United
States marshal or deputy marshal or person
employed to assist such marshal or deputy
marshal, any officer or employee of the Federal
Bureau of Investigation of the Department of
Justice, any officer or employee of the Postal
Service, any officer or employee of the [S]ecret
[S]ervice or of the Drug Enforcement
Administration, any officer or member of the
United States Capitol Police, any member of the
Coast Guard, any employee of the Coast Guard
assigned to perform investigative, inspection or
law enforcement functions, any officer or
employee of any United States penal or
correctional institution, any officer, employee or
agent of the customs or of the internal revenue or
any person assisting him in the execution of his
duties, any immigration officer, any officer or
employee of the Department of Agriculture or of
the Department of the Interior designated by the
Secretary of the Interior to enforce any Act of
Congress for the protection, preservation, or
restoration of game and other wild birds and
animals, any employee of the Department of
24
Agriculture designated by the Secretary of
Agriculture to carry out any law or regulation, or
to perform any function in connection with any
Federal or State program or any program of
Puerto Rico, Guam, the Virgin Islands of the
United States, or the District of Columbia, for the
control or eradication or prevention of the
introduction or dissemination of animal diseases,
any officer or employee of the National Park
Service, any civilian official or employee of the
Army Corps of Engineers assigned to perform
investigations, inspections, law or regulatory
enforcement functions, or field-level real estate
functions, any officer or employee of, or assigned
to duty in, the field service of the Bureau of Land
Management, or any officer or employee of the
Indian field service of the United States, or any
officer or employee of the National Aeronautics
and Space Administration directed to guard and
protect property of the United States under the
administration and control of the National
Aeronautics and Space Administration, any
security officer of the Department of State or the
Foreign Service, or any officer or employee of the
Department of Health, Education, and Welfare,
the Consumer Product Safety Commission,
Interstate C om m e rc e Commission, the
Department of Commerce, or the Department of
Labor or of the Department of the Interior or of
the Department of Agriculture assigned to
25
perform investigative, inspection, or law
enforcement functions, or any officer or employee
of the Federal Communications Commission
performing investigative, inspection, or law
enforcement functions, or any officer or employee
of the Veterans’ Administration assigned to
perform investigative or law enforcement
functions, or any United States probation or
pretrial services officer, or any United States
magistrate, or any officer or employee of any
department or agency within the Intelligence
Community (as defined in Section 3.4(F) of
Executive Order 12333, December 8, 1981, or
successor orders) not already covered under the
terms of this section,[] any attorney, liquidator,
examiner, claim agent, or other employee of the
Federal Depository Insurance Corporation, the
Federal Savings and Loan Insurance Corporation,
the Comptroller of the Currency, the Federal
Home Loan Bank Board, the Board of Governors
of the Federal Reserve System, any Federal
Reserve bank, or the National Credit Union
Administration, or any other officer, agency, or
employee of the United States designated for
coverage under this section in regulations issued
by the Attorney General engaged in or on account
of the performance of his official duties, or any
officer or employee of the United States or any
agency thereof designated to collect or
compromise a Federal claim in accordance with
26
“officer[s] or employee[s]” of such agencies and departments,
§ 1114 also covered, among others, any “agent of the customs
or of the internal revenue,” any “member of the United States
Capitol Police,” and any “member of the Coast Guard.” 10 18
U.S.C. § 1114 (1984) (emphasis added). Congress did not
shorten this list until 1996—twelve years after it enacted
sections 3711 and 3716–3718 of title 31 or other
statutory authority[,] shall be punished as
provided under sections 1111 and 1112 of this
title, except that any such person who is found
guilty of attempted murder shall be imprisoned
for not more than twenty years.
18 U.S.C. § 1114 (1984).
10
In addition to these “officers,” “employees,” “members,”
and “agents,” the 1984 version of § 1114 also applied to “any
civilian official . . . of the Army Corps of Engineers.” 18 U.S.C.
§ 1114 (1984) (emphasis added). In that light, accepting
Bankoff’s argument that § 115 does not incorporate fully the
persons listed in § 1114 would lead to an absurd result. Because
we presume that Congress was aware of the language of § 1114
when it enacted § 115, see, e.g., United States v. Mohammed, 27
F.3d 815, 821 (2d Cir. 1994)—and thus presume that Congress
knew that § 1114 referred to only one type of “official”—it
would follow that § 115’s prohibition of threats against an
“official whose killing would be a crime under” § 1114 was
limited to threats against “civilian official[s] . . . of the Army
Corps of Engineers.” That could not have been Congress’
intent.
27
§ 115—when it amended § 1114 to refer simply to “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 (1996).
(One suspects that the queue of requests for additional
inclusions had grown too long.)
This statutory context confirms our conclusion that
Congress used “official” in § 115 as a general term to
incorporate by reference all the “officers,” “employees,”
“members,” and “agents” of the federal departments and
agencies listed in § 1114. By doing so, Congress avoided the
need to restate that lengthy list in § 115 itself. See, e.g., Hassett
v. Welch, 303 U.S. 303, 314 (1938) (“Where one statute adopts
the particular provisions of another by a specific and descriptive
reference . . . , the effect is the same as though the statute or
provisions adopted had been incorporated bodily into the
adopting statute.” (internal quotation marks and citation
omitted)); see also Norman J. Singer & J.D. Shambie Singer, 2B
Sutherland Statutes and Statutory Construction § 51:8 (“When
[a] reference is made to a specific section of [a] statute, that part
of the statute is applied as though written into the reference
statute.”). Moreover, we think it implausible that Congress used
the term “official” as a limitation on the persons enumerated in
§ 1114, yet declined to define that term or provide any
indication as to how courts (or, presumably, juries) were to
determine which of the enumerated “employees,” “officers,”
“members,” and “agents” listed in § 1114 also qualify as
28
“officials.” 11
In sum, we conclude that when § 115’s reference to an
“official whose killing would be a crime under” § 1114 is read
in context, its meaning is plain; “official” is not used as a term
11
Though employees of the SSA were not included among
the federal employees listed in the 1984 version of § 1114, that
version of the statute authorized the Attorney General to
designate “any other officer or employee of the United States or
any agency thereof . . . for coverage under” § 1114. 18 U.S.C.
§ 1114 (1984). And before the 1996 amendment to § 1114, the
Attorney General had designated “[e]mployees of the Social
Security Administration assigned to Administration field offices,
hearing offices and field assessment offices” as employees
covered under § 1114. 28 C.F.R. § 64.2(x) (1992).
Accordingly, we need not determine in this case whether
Congress intended for § 115 to incorporate the 1996 amendment
to § 1114, as employees of the SSA were covered even under
the prior version of that statute. See Norman J. Singer & J.D.
Shambie Singer, 2B Sutherland Statutes and Statutory
Construction § 51:8 (noting the general rule that “[a] statute of
specific reference incorporates the provisions referred to from
the statute as of the time of adoption without subsequent
amendments, unless the legislature has expressly or by strong
implication shown its intention to incorporate subsequent
amendments with the statute”); see also United States v. Smith,
296 F.3d 344, 347 n.1 (5th Cir. 2002) (noting that § 1114 “in its
current form provides even broader coverage” than the pre-1996
version).
29
of limitation, but as a general term that incorporates by reference
all the individuals protected under § 1114, both “officer[s] and
employee[s].” 12
12
Bankoff argues that our construction of the phrase “an
official whose killing would be a crime” under § 1114 renders
superfluous the first three categories of persons covered by
§ 115 (“United States official[s],” “United States judge[s],” and
“Federal law enforcement officer[s]”). (Appellant’s Reply Br.
at 8.) He apparently means that, if the fourth category of § 115
covers every “officer” or “employee” of the federal government,
there would be no purpose for the first three categories. See
United States v. Cooper, 396 F.3d 308, 312 (3d Cir. 2005) (“It
is a well known canon of statutory construction that courts
should construe statutory language to avoid interpretations that
would render any phrase superfluous.”)
Though we need not consult the canons of construction
where, as here, the meaning of statutory language is clear, see
United States v. Jones, 471 F.3d 478, 480 (3d Cir. 2006), we in
any event reject Bankoff’s argument. When § 115 was enacted
in 1984, the version of § 1114 then in force did not apply to any
“officer or employee of the United States,” but only to certain
“officers,” “employees,” “agents,” and “members” employed by
various (and numerous) specific federal agencies. In any event,
that there was some overlap between the individuals covered by
§ 1114 and the first three categories of persons protected by
§ 115—for example, the 1984 version of § 1114 already
protected “any judge of the United States” or “United States
magistrate,” thus rendering § 115’s enumeration of a “United
States judge” unnecessary—does not mean that the first three
categories are rendered superfluous by § 115’s incorporation of
30
3. The Legislative History
Even were we to lay aside the plain language of § 115
and consult its legislative history as a course marker, it would
not aid Bankoff. Cf. Albertini, 472 U.S. at 680. He argues that
the legislative history “‘indicates that Congress was concerned
with high policymaking, judicial and law enforcement officers,
but that that legislative concern did not extend to federal
employees in general.’” (Appellant’s Br. at 17–18 (quoting
Fenton, 10 F. Supp. 2d at 505).) He relies on the Senate Report
that accompanies § 115, which begins:
[Section 115] is a new provision designed to
§ 1114. Cf. United States v. Naftalin, 441 U.S. 768, 778 (1979)
(“‘[t]he fact that there may well be some overlap’” between two
statutes “‘is neither unusual nor unfortunate’”) (quoting SEC v.
Nat’l Sec., Inc., 393 U.S. 453, 468 (1969) (alteration in
original)).
Finally, we note that Bankoff’s proposed interpretation
itself violates the anti-superfluousness canon. Had Congress
intended, as Bankoff argues, to limit § 115’s scope to only
“officers” protected by § 1114, it presumably would have used
the term “officer” instead of “official” in § 115. As we “assume
that Congress used two terms because it intended each to have
a particular, non-superfluous meaning,” Bailey v. United States,
516 U.S. 137, 146 (1995), we cannot accept Bankoff’s
contention that Congress used the term “official” in § 115 to
limit its scope to “officers” whose killing would be a crime
under § 1114.
31
protect the close relatives of certain high level
officials, such as the President, Vice-President,
members of Congress, cabinet officers, and
federal judges, as well as federal law enforcement
officers. . . .
The Committee believes that serious
crimes against family members of high level
federal officials, federal judges, and federal law
enforcement officers, which are committed
because of their relatives’ jobs are, generally
speaking, proper matters of federal concern.
Clearly it is a proper federal function to respond
to terrorists and other criminals who would seek to
influence the making of federal policies and
interfere with the administration of justice by
attacking close relatives of those entrusted with
these tasks.
S. Rep. No. 98-225, at 263–64 (1983) (emphases added).
This argument falls short. Protecting the family
members 13 of such “high policymaking” officials was
undoubtedly an important (and probably the primary) purpose
13
As initially enacted, § 115 applied only to threats against
the family members of federal officials. In 1986, § 115 was
amended to “extend[] protection to . . . the officials themselves.”
H. Rep. No. 99-797, at 14 (1986).
32
of the statute. However, we decline to draw from this the
negative inference that Bankoff urges, i.e., that because
Congress was primarily concerned with protecting high-ranking
policy makers, it must not have intended for § 115 to protect
mere “employees.” See, e.g., United States v. Turkette, 452 U.S.
576, 591 (1981) (“that the legislative history forcefully
supports” a “major purpose” of the statute, but does not address
the statute’s scope regarding the issue at hand, does not compel
the “negative inference” that the statute does not also have other
purposes (and thus scopes)).
Moreover, this excerpt from the Conference Report
appears to address only the first three categories of individuals
protected by § 115: “United States officials,” “United States
judges,” and “Federal law enforcement officers.” A later
statement in the Conference Report specifically addresses the
fourth category of persons covered by § 115:
It should be noted that the new section [§ 115]
covers attacks on family members of all the
persons listed in 18 U.S.C. 1114 as well as on
family members of other law enforcement officers
not there listed. Included in this latter category
would be, for example, the Inspectors General
and their staffs, and Department of Justice Strike
Force attorneys.
S. Rep. No. 98-225, at 264 (1983) (emphases added). Even
assuming that the conference report’s use of “persons” instead
33
of “officials” was a “stray choice of words,” Fenton, 10 F. Supp.
2d at 505, its reference to “all the persons listed” in § 1114
comports with our conclusion that Congress intended § 115 to
incorporate by reference all the individuals listed in § 1114 (and
thus avoid restating that list in § 115 itself).14
In sum, even were we required to consult legislative
history for § 115, it is consistent with our conclusion that
Congress did not use “official” as a limitation on the categories
of individuals protected by § 1114.
* * * * *
14
We also reject Bankoff’s contention that we should
presume that Congress did not intend to extend § 115’s
protection to “mere employees” in light of the principle that
courts “should not interpret a statute in a manner that
significantly alters the federal-state balance unless Congress has
clearly indicated that it intended to do so.” United States v.
Zwick, 199 F.3d 672, 686 (3d Cir. 1999), abrogated on other
grounds by Sabri v. United States, 541 U.S. 600 (2004). Section
115 is not a “general threat” statute. Even under our
construction of that statute, it protects only employees of the
federal government, and even then only when a threat is made
in connection with (or in retaliation against) the performance of
such a person’s “official duties.” Given that Congress has made
it a crime to kill or attempt to kill such individuals (in § 1114),
we see no “significant[] alter[ation in] the federal-state balance”
that results from interpreting § 115 as applying to threats against
them. Zwick, 199 F.3d at 686.
34
We hold that § 115 applies to all persons, be they
“officer[s]” or “employee[s],” “whose killing would be a crime”
under § 1114. We thus conclude that the District Court erred in
ruling that an individual does not qualify as an “official” within
the meaning of § 115 unless he or she is “authorized to make
decisions on behalf of the government.” This dispute over the
correct interpretation of § 115 is the sole basis on which Bankoff
challenges the District Court’s denial of a judgment of acquittal
on Count Two (the threats made against Tonik). Accordingly,
we affirm the Court’s denial of a judgment of acquittal on that
Count, as we have no dispute that Tonik qualifies as an
employee whose killing would be a crime under § 1114.
Like Tonik, it is undisputed that Robinson qualifies as a
federal “employee” whose killing would be a crime under
§ 1114. Accordingly, we conclude the District Court erred in
granting a judgment of acquittal on Count Three. However,
Bankoff sought a judgment of acquittal on that Count on two
additional grounds—that the evidence was insufficient to prove
that he (1) made a “true threat” against Robinson, or (2) acted
with the specific intent to impede, intimidate, or interfere with
Robinson while she was engaged in the performance of her
“official duties,” or to retaliate against her “on account of the
performance of h[er] official duties.” 18 U.S.C. § 115(a)(1).
The District Court did not reach those arguments, and neither
Bankoff nor the Government addresses them in each’s briefing.
We decline to consider them in the first instance, and thus
remand for the District Court to do so. Cf. Gov’t of the V.I. v.
Charleswell, 24 F.3d 571, 577 n.4 (3d Cir. 1994).
35
B. Sixth Amendment Claim
Bankoff argues that the District Court violated his Sixth
Amendment right to represent himself when the Court denied
his requests to (1) give the opening statement for the defense,
and (2) cross-examine the Government’s first witness
(Sphabmixy). The Government argues that there was no
constitutional deprivation because Bankoff’s request was
untimely, having been made after trial began (and after Bankoff
had already withdrawn his request to proceed pro se mere days
before trial).
The Sixth Amendment guarantees criminal defendants
the right to represent themselves at trial. Faretta v. California,
422 U.S. 806, 819–20 (1975). The right of self-representation
and the right to counsel are “two faces of the same coin, in that
the waiver of one right constitutes a correlative assertion of the
other.” United States v. Conder, 423 F.2d 904, 908 (6th Cir.
1970) (internal quotation marks and citation omitted). However,
because criminal defendants will likely fare better with the
assistance of counsel than without, a defendant will be permitted
to represent himself only when he “knowingly and intelligently”
relinquishes his right to counsel. Faretta, 422 U.S. at 835
(internal quotation marks and citation omitted).
We have established three requirements that must be met
before a defendant may be allowed to proceed pro se: (1) he
must “assert his desire to proceed pro se clearly and
unequivocally”; (2) the court must “inquire thoroughly to satisfy
36
itself that” the request is knowing and intelligent; and (3) the
court must “assure itself that the defendant is competent to stand
trial.” Peppers, 302 F.3d at 132 (internal quotation marks and
citations omitted). Our review over a district court’s findings
regarding these requirements is plenary. See United States v.
Goldberg, 67 F.3d 1092, 1097 (3d Cir. 1995).
We have previously stated that “the timing of the request
is only one factor that a court must consider in ruling upon a
motion to proceed pro se.” Buhl v. Cooksey, 233 F.3d 783, 795
(3d Cir. 2000); cf. Martinez v. Ct. of Appeal of Cal., Fourth App.
Dist., 528 U.S. 152, 161–62 (2000) (recognizing that “most
courts” have interpreted Faretta to require that a defendant
assert his right to self-representation “in a timely manner”).
Accordingly, we have held requests to proceed pro se timely
even when made on the “eve of trial.” Buhl, 233 F.3d at 795
(internal quotation marks and citation omitted); Gov’t of the V.I.
v. James, 934 F.2d 468, 470 (3d Cir. 1991) (request made on the
first day of trial, but before jury selection, was timely); see also,
e.g., Williams v. Bartlett, 44 F.3d 95, 99 (2d Cir. 1994) (a
defendant’s right to represent himself is “unqualified if invoked
prior to the start of the trial” (internal quotation marks and
citation omitted) (emphasis in original)); Jackson v. Ylst, 921
F.2d 882, 888 (9th Cir. 1990) (request is timely if made before
the jury is empaneled); Chapman v. United States, 553 F.2d 886,
894 (5th Cir. 1977) (same).
However, after trial has “commenced”—i.e., at least after
the jury has been empaneled—“the right of self-representation
37
is curtailed.” Buhl, 233 F.3d at 797 n.16. In that context,
district courts have discretion to deny an untimely request to
proceed pro se after weighing the “‘prejudice to the legitimate
interests of the defendant’ against the ‘potential disruption of
proceedings already in progress.’”15 Id. (quoting United States
v. Stevens, 83 F.3d 60, 66–67 (2d Cir. 1996)); accord United
States v. Beers, 189 F.3d 1297, 1303 (10th Cir. 1999); United
States v. Martin, 25 F.3d 293, 296 (6th Cir. 1994); United States
v. Betancourt-Arretuche, 933 F.2d 89, 96 (1st Cir. 1991);
Horton v. Dugger, 895 F.2d 714, 717 (11th Cir. 1990); United
States v. Oakey, 853 F.2d 551, 553 (7th Cir. 1988); United
States v. Matsushita, 794 F.2d 46, 51 (2d Cir. 1986); United
States v. Lawrence, 605 F.2d 1321, 1325 (4th Cir. 1979). “How
this balance should be struck is ultimately within the sound
discretion of the district court,” Stevens, 83 F.3d at 67, and we
will review its decision under a highly deferential abuse-of-
discretion standard. Cf. Gen. Elec. Co. v. Joiner, 522 U.S. 136,
143 (1997) (noting that deference “is the hallmark of abuse-of-
discretion review”).
Even assuming that the District Court’s refusal to address
Bankoff’s untimely request until the end of the first day of trial
resulted in a cognizable (though brief) “denial” of his right of
self-representation, the Court did not abuse its discretion. In
15
To be clear, we do not suggest that district courts are
required to deny a request to proceed pro se made after a trial
begins. See United States v. Cocivera, 104 F.3d 566, 570 (3d
Cir. 1996).
38
light of Bankoff’s repeated changes-of-heart and angry outburst
during the prosecutor’s opening statement, we think it apparent
the Court was concerned that Bankoff’s renewed request was
equivocal (a finding that would justify denying even a timely
request to proceed pro se). See Williams, 44 F.3d at 101
(“[W]hen a defendant changes his mind [about being
represented by counsel] after trial begins, or does so repeatedly
at any stage, . . . the conduct can be considered vacillation, and
a trial judge may find the request equivocal.”); see also United
States v. Stine, 675 F.2d 69, 72 (3d Cir. 1982) (“In discretionary
matters dependent upon observation of the litigants, an appellate
court’s review is limited because it cannot replicate the trial
judge’s superior vantage point.”).
In that light, we have no trouble concluding that, by
deferring an inquiry of Bankoff’s renewed request until the end
of the first day of trial (and outside the presence of the jury), the
District Court appropriately balanced the “prejudice to
[Bankoff’s] legitimate interests . . . against the potential
disruption” of the trial. Buhl, 233 F.3d at 797 n.16 (internal
quotation marks and citation omitted). We thus reject Bankoff’s
implicit contention that the Court was required to adjourn the
trial immediately to address his request once he interrupted the
prosecutor’s opening statement and renewed his demand to
proceed pro se.
In addition, the District Court not only permitted Bankoff
to begin representing himself the second day of trial, but (1)
allowed him to re-call the first Government witness (whom his
39
attorney already had cross-examined), and (2) permitted standby
counsel to take over the questioning of Bankoff’s father when
his father became (understandably) emotional and had difficulty
answering questions. In this context, we believe the Court not
only acted well within its discretion, but treated Bankoff with
the utmost fairness. Accordingly, we reject Bankoff’s Sixth
Amendment claim.
* * * * *
We vacate the District Court’s grant of a judgment of
acquittal on Count Three, affirm its other rulings on appeal, and
remand this case for further proceedings.
40