BLD-003 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-2453
___________
IN RE: FREDERICK H. BANKS,
Petitioner
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the Western District of Pennsylvania
(Related to W.D. Pa. Crim. No. 2-15-cr-00168-001)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
October 6, 2016
Before: AMBRO, GREENAWAY, JR., and SCIRICA, Circuit Judges
(Opinion filed: November 3, 2016)
_________
OPINION*
_________
PER CURIAM
Pro se Petitioner Frederick H. Banks has filed a petition for a writ of mandamus
concerning the ongoing criminal case against him. In August 2015, Banks was indicted
on a federal criminal charge of Interstate Stalking (18 U.S.C. §§ 2261A(2) and 2); a
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
superseding indictment was filed in January 2016, on charges of Interstate Stalking, Wire
Fraud (18 U.S.C. §§ 1343 and 2), Aggravated Identity Theft (18 U.S.C. § 1028A(a)(1)),
and Making False Statements (18 U.S.C. § 1001(a)(3)). Counsel was appointed to
represent Banks in his criminal case. In September 2015, upon defense counsel’s motion,
the District Court ordered Banks to undergo a psychological evaluation concerning his
competence to understand the nature and consequences of the criminal charges and his
ability to participate in his defense. The order deemed the period from the date of the
order through thirty days after the filing of the report to be excludable delay under the
Speedy Trial Act. Over the months that followed, Banks filed a number of pro se
motions, which the District Court denied without prejudice, subject to reassertion by
defense counsel.1
A hearing concerning Banks’s competency was held on December 30, 2015. On
January 8, 2016, the District Court issued an order relating to the competency hearing,
allowing for additional consideration of material by the examiner, and for supplemental
reports and memoranda to be filed by the examiner and by the parties. Pursuant to that
order, the last supplemental memorandum was filed in March 2016. On March 31, 2016,
the District Court issued an order regarding its consideration of the matter, again deeming
the time pending the determination of Banks’s competency to be excludable for purposes
of the Speedy Trial Act. In April 2016, the District Court ordered another psychiatric or
1
In October 2015, Banks filed in this Court a petition for a writ of mandamus, docketed
at C.A. No. 15-3518. We denied the petition on December 31, 2015.
2
psychological evaluation to be performed at the Federal Bureau of Prisons (“BOP”)
facility in Butner, North Carolina.
While the evaluation was pending, Banks filed this mandamus petition. He alleges
that the District Judge, the Assistant United States Attorney prosecuting the case, and
defense counsel violated his right to a speedy trial by refusing to accept the initial
competency evaluation and ordering another to be conducted. Banks also alleges, among
other things, that the trial delay is intended to prevent him from exposing the unlawful
electronic surveillance activity being conducted by the CIA, as well as the lack of
evidence against him. As relief, Banks seeks an order for his trial to commence
forthwith, as well as for his release from custody.
Mandamus is a drastic remedy available only in the most extraordinary of
circumstances. See In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir.
2005). To justify such a remedy, a petitioner must show that he has (i) no other adequate
means of obtaining the desired relief and (ii) a “clear and indisputable” right to issuance
of the writ. See Haines v. Liggett Group, Inc., 975 F.2d 81, 89 (3d Cir. 1992) (citing
Kerr v. United States District Court, 426 U.S. 394, 403 (1976)). It is well-settled that the
manner in which a district court disposes of the cases on its docket is committed to its
sound discretion. In re Fine Paper Antitrust Litigation, 685 F.2d 810, 817 (3d Cir. 1982).
Some delays, however, are so intolerable as to warrant appellate intervention. See
Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996).
3
Upon consideration of the circumstances in Banks’s case, we conclude that the
trial postponement pending determination of the competency issue does not constitute a
denial of due process or a failure by the District Court to exercise jurisdiction. See
Madden, id. During the months since Banks’s mandamus filing, the proceedings have
remained active. Banks was transferred into BOP custody, the prosecution furnished
information that had been requested for the purposes of the forensic psychologist’s
evaluation, and the evaluation was accomplished. The record reflects that the District
Court has remained engaged in receiving status updates and conducting several status
conferences with the parties, all leading to a September 29, 2016 competency hearing and
October 3, 2016 commitment order for treatment.2 Under these circumstances, we cannot
conclude that Banks has shown a clear and indisputable right to mandamus relief.
Accordingly, we will deny the petition for a writ of mandamus.
2
The October 3, 2016 order specifies that the treatment is to determine whether there is a
substantial probability that Banks will attain the capacity to permit the criminal
proceedings to resume in the foreseeable future. A status update is due no later than
November 14, 2016.
4