Scribd Logo
Upload

Welcome to Scribd!

  • United States v. Banks, 4th Cir. (1998)

    Uploaded by

    Scribd Government Docs
    13 views5 pages
    1) Ricky Banks, a deputy sheriff, was convicted of possessing heroin with intent to distribute after arranging to purchase two ounces of heroin in two separate transactions. He claimed he was doing undercover work, but the government argued he intended to resolve financial troubles. 2) The court found no evidence of entrapment and no abuse of discretion in evidentiary rulings. Comments by the trial judge were also found to not be prejudicial. 3) Banks' sentence was affirmed, including enhancements for obstruction of justice, drug quantity, abuse of trust, and denial of acceptance of responsibility reduction. The court also declined to review the denial of downward departures.

    Original Description:

    Filed: 1998-11-16 Precedential Status: Non-Precedential Docket: 97-4546

    Copyright

    © Public Domain

    Available Formats

    PDF or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    Report this Document
    1) Ricky Banks, a deputy sheriff, was convicted of possessing heroin with intent to distribute after arranging to purchase two ounces of heroin in two separate transactions. He claimed he was doing undercover work, but the government argued he intended to resolve financial troubles. 2) The court found no evidence of entrapment and no abuse of discretion in evidentiary rulings. Comments by the trial judge were also found to not be prejudicial. 3) Banks' sentence was affirmed, including enhancements for obstruction of justice, drug quantity, abuse of trust, and denial of acceptance of responsibility reduction. The court also declined to review the denial of downward departures.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    Download as pdf
    13 views5 pages

    United States v. Banks, 4th Cir. (1998)

    Uploaded by

    Scribd Government Docs
    1) Ricky Banks, a deputy sheriff, was convicted of possessing heroin with intent to distribute after arranging to purchase two ounces of heroin in two separate transactions. He claimed he was doing undercover work, but the government argued he intended to resolve financial troubles. 2) The court found no evidence of entrapment and no abuse of discretion in evidentiary rulings. Comments by the trial judge were also found to not be prejudicial. 3) Banks' sentence was affirmed, including enhancements for obstruction of justice, drug quantity, abuse of trust, and denial of acceptance of responsibility reduction. The court also declined to review the denial of downward departures.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    Download as pdf
    of 5

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.

    No. 97-4546

    RICKY BANKS,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Western District of North Carolina, at Charlotte.
    Richard L. Voorhees, Chief District Judge; Richard L. Williams,
    Senior District Judge, sitting by designation.
    (CR-96-115)
    Submitted: September 29, 1998
    Decided: November 16, 1998
    Before LUTTIG and WILLIAMS, Circuit Judges, and
    PHILLIPS, Senior Circuit Judge.
    _________________________________________________________________
    Affirmed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    Edward A. Fiorella, Jr., HARKEY, LAMBETH, NYSTROM, FIORELLA & MORRISON, L.L.P., Charlotte, North Carolina, for
    Appellant. Mark T. Calloway, United States Attorney, Gretchen C.F.
    Shappert, Assistant United States Attorney, Charlotte, North Carolina,
    for Appellee.
    _________________________________________________________________

    Unpublished opinions are not binding precedent in this circuit. See


    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    Ricky Banks appeals from his conviction and sentence imposed for
    possessing with the intent to distribute heroin. See 21 U.S.C.
    841(a)(1) (1994). Banks was a deputy sheriff working as a jailor. He
    and a prisoner, Joe Richardson, arranged for Banks to purchase two
    ounces of heroin in two separate transactions. Federal agents arrested
    Banks after the first transaction, however, after Richardson alerted
    them to Banks's desire to purchase heroin. Banks claimed at trial that
    he was actually engaged in undercover work when he purchased the
    heroin to impress his newly-appointed Sheriff. The government contended that Banks engaged in the transaction to resolve financial troubles. Finding no reversible error, we affirm.
    We reject Banks's arguments that he was entrapped as a matter of
    law and that he was entitled to a jury instruction on entrapment. A
    valid entrapment defense contains two elements: government inducement and a lack of predisposition to commit the crime by the defendant. See United States v. Phan, 121 F.3d 149, 153-54 (4th Cir. 1997),
    cert. denied, 66 U.S.L.W. 3388 (U.S. Feb. 23, 1998) (No. 97-863). At
    trial, Banks claimed that he was trying to consummate the drug transaction in order to impress his superiors at the Sheriff's Department.
    Therefore, on the facts of this case, there is not even a scintilla of evidence of entrapment.
    Banks next argues that his right to present a defense was violated
    when the district court sustained the government's objection to a portion of the testimony of defense witness Alleyne. The district court
    sustained the objection because the testimony would have been hearsay. See Fed. R. Evid. 802 (hearsay generally not admissible). Banks
    fails to argue that the testimony was not hearsay or fell within an
    exception to the general rule of inadmissibility. Therefore, we find no
    abuse of discretion. Even if the district court had abused its discretion,
    2

    the error was harmless. Contrary to Banks's assertion, Alleyne's testimony would not have negated Banks's mens rea. Alleyne was prepared to testify about advice he had given Banks on how to conduct
    an undercover drug investigation. The statute in question, 21 U.S.C.
    841(a)(1) (1994) requires only the intent to distribute, it does not
    require the intent to distribute illegally. As a result, Alleyne's testimony would have hurt Banks by providing evidence of his plan to
    distribute heroin.
    Banks next contends that certain comments made by the trial court
    during his trial deprived him of his right to a fair trial. Banks complains, inter alia, that the district court admonished counsel not to go
    on an "Easter egg hunt," referred to certain evidence as irrelevant,
    warned counsel not to waste the jury's time on minutia, and noted that
    a piece of documentary evidence "doesn't have any significance." The
    question is whether the judge's comments rose to a level of prejudice
    that they denied him a fair trial. See United States v. Parodi, 703 F.2d
    768, 776 (4th Cir. 1983). After reviewing the instances cited by
    Banks, we find that they do not rise to such a level of prejudice.
    Rather, we conclude that the judge's statements were either legitimate
    evidentiary rulings or innocuous attempts to keep counsel focused on
    the issues in the case.
    Banks argues that his Fifth Amendment privilege against selfincrimination was violated when the government used his testimony
    from his first trial, which ended in a mistrial, against him in his second trial. The general rule is that a defendant's testimony at a former
    trial is admissible against him in a later proceeding. See Harrison v.
    United States, 392 U.S. 219, 222 (1968). We find that the general rule
    controls here. See United States v. Baker, 850 F.2d 1365, 1369-70
    (9th Cir. 1988). Thus, Banks's Fifth Amendment right was not violated.
    Finally, Banks asserts several arguments that the trial court erred
    in determining his sentence. He first claims that the government failed
    to produce sufficient evidence to enable the district court to properly
    find that he willfully obstructed justice by committing perjury. See
    United States Sentencing Guidelines Manual 3C1.1 (1995). The district court determined that Banks committed perjury when he denied
    that he made the initial contact with Richardson, when he testified
    3

    that his activities were part of an undercover operation, and when he


    testified that he engaged in buying drugs to ingratiate himself with the
    new Sheriff. Banks claims that the evidence supports his version of
    the truth, that he made the drug purchases to impress superiors, as
    much as it supported the government's theory that he made the drug
    purchases to resolve his financial difficulties. After reviewing the evidence, we cannot find that the district court clearly erred in enhancing
    Banks's sentence on this basis. See United States v. Castner, 50 F.3d
    1267, 1279 (4th Cir. 1995).
    Banks next challenges the amount of drugs for which the district
    court held him accountable. Because the evidence amply supports the
    district court's conclusion that Banks had the intent to participate in
    the second one-ounce drug transaction, we reject his argument that
    the evidence shows that he did not intend to purchase, or was not reasonably capable of purchasing, two ounces of heroin. He was, therefore, properly held accountable for the two ounces. See U.S.S.G.
    2D1.1 comment. (n.12).
    Next, Banks argues that the district court should have reduced his
    offense level for acceptance of responsibility under U.S.S.G. 3E1.1.
    He continues to deny having any criminal intent in purchasing the
    heroin, and we find that his denial is sufficient to prevent application
    of the reduction. See United States v. Gordon , 895 F.2d 932, 936 (4th
    Cir. 1990) (defendant must accept responsibility for all criminal conduct).
    Banks also contends that the district court erred in enhancing his
    sentence under U.S.S.G. 3B1.3 because he abused a position of
    trust. He argues that the position of deputy sheriff is not a position of
    trust and that he did not use his position to commit the offense. These
    arguments are without merit. The district court was correct in categorizing his position as a deputy sheriff as a position of trust. Further,
    his duties as a jailor significantly contributed to his commission of
    this drug offense. The district court did not err in enhancing his sentence.
    Finally, Banks argues that the district court erred in denying his
    request for a downward departure under U.S.S.G. 5K2.0 for exemplary conduct while he was on bond and under U.S.S.G. 5K2.10
    4

    based on the victim's conduct. He fails to argue that the district court
    mistakenly viewed its discretionary authority to depart on these bases.
    Thus, these claims are not subject to review. See United States v.
    Hall, 977 F.2d 861, 866 (4th Cir. 1992).
    Accordingly, we affirm Banks's conviction and sentence. We dispense with oral argument because the facts and legal contentions are
    adequately presented in the materials before the court and argument
    would not aid the decisional process.
    AFFIRMED
    5

    You might also like