United States v. Banks, 4th Cir. (1998)
United States v. Banks, 4th Cir. (1998)
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Affirmed by unpublished per curiam opinion.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.
_________________________________________________________________
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
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