Joseph Banks, yet another sovereign bank robber

[KickahaOta]

Just posting the sovcit aspects of this one, and omitting case citations. Yet another "criminal tries sovereign derpery, crashes and burns, attempts the more physical approach to denying the court's jurisdiction, then blames legal system for letting him try it all."

In the United States Court of Appeals For the Seventh Circuit
No. 14‐3461
UNITED STATES OF AMERICA, Plaintiff‐Appellee, v. JOSEPH BANKS, Defendant‐Appellant.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 08 CR 688 — Rebecca R. Pallmeyer, Judge.
ARGUED DECEMBER 4, 2015 — DECIDED JULY 8, 2016
Before POSNER, FLAUM, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Defendant Joseph Banks was convicted of committing or attempting to commit four separate robberies over a 12‐month period between 2007 and 2008, and was sentenced to 432 months’ imprisonment. On appeal, Banks challenges both his conviction and his sentence. He claims that the district court violated his right to counsel under the Sixth Amendment not only by permitting him to waive his right to counsel and proceed pro se on the eve of trial, but also by not rescinding the waiver when it became clear during trial that he would forgo participating in most of the trial proceedings. We disagree. The district court permitted Banks to proceed pro se only after concluding that his waiver of his right to trial counsel was both knowing and voluntary.

[...]

I. BACKGROUND
Banks was charged with two counts of bank robbery and two counts of attempted bank robbery in connection with four separate incidents that occurred between August 2007 and August 2008. All four incidents involved the use of a gun, and two were particularly violent.

[...]

A. Trial Proceedings
Over four years elapsed between the filing of a criminal complaint against Banks in September 2008 and the commencement of his trial in December 2012. Much of the delay is attributable to Banks repeatedly terminating his counsel—five separate times in total. The final termination—the only relevant one on appeal—took place on the first day of trial.

Shortly before jury selection was to commence, Banks’s counsel informed the district court that Banks had “relieved” him, and that Banks intended to proceed “in propria persona” (which the counsel understood to mean pro se). A colloquy between Banks and the district court ensued in which Banks insisted that the court lacked jurisdiction over him. After the court asked Banks’s counsel to stay on in a stand‐by capacity, the colloquy continued. Banks was informed of the charges against him and the potential penalties he would face if convicted. He confirmed that he intended to represent himself at trial, and noted that he had been studying the law while in custody. He also confirmed he understood that proceeding pro se was a serious decision that no one had pushed him to make, and that the court would not provide him with any advice. The court ultimately concluded that Banks had knowingly and voluntarily waived his right to counsel, and the trial continued.  

Banks’s participation in the trial was minimal. He declined to object to the government’s motions in limine, strike any jurors, present his own witnesses, cross‐examine the government’s witnesses, object to any of the government’s questions, or comment on the jury instructions. Rather, his participation was often confined to stating that he was “captive” and would not be “partaking in this proceeding.” In addition, he repeatedly asked (unsuccessfully) to be excused from attending the trial, and rebuffed the district judge’s numerous suggestions that he permit his standby counsel to represent him. Banks did attempt, however, to make opening and closing statements, but when he failed to confine his remarks to trial evidence (expected or presented) the district judge cut him off. At the conclusion of the trial, the jury convicted him on all four counts.

B. Post‐Trial Proceedings
Several days after the jury rendered its verdict, Banks escaped from the downtown Chicago prison where he was being held pending sentencing. He and his cellmate cut a hole in the cinderblock wall and, using a rope comprised of bedsheets and dental floss, rappelled 17 stories down the building’s exterior wall in the middle of the night. After a two‐
day manhunt, law enforcement apprehended Banks several miles from the prison. (The government initially charged Banks with escaping from federal custody but later dismissed the complaint voluntarily.)

Shortly after Banks was returned to custody, he consented to representation by counsel, who filed on his behalf a motion for a new trial and for acquittal. Banks argued that he had not knowingly or voluntarily waived his right to counsel, and that the district court should have permitted his stand‐by counsel to make a closing argument for him upon terminating his closing remarks. The district court denied the motion, concluding that Banks clearly demonstrated that he did not want to be represented by counsel and that the court was not required to compel attorney representation. The court also emphasized that she had repeatedly warned Banks to focus his closing argument on admitted evidence before she cut him off.

[...]

II. ANALYSIS
On appeal, Banks claims that the district court erroneously concluded that he had knowingly and voluntarily waived his right to counsel before jury selection occurred, and that the court should have revoked his waiver when Banks refused to participate in the trial. Banks also argues that the district judge committed various procedural errors in arriving at and explaining his sentence. We disagree.  

A. No Error to Allow Banks to Represent Himself
[...]
1. Banks’s Waiver Was Knowing and Voluntary
The Constitution guarantees all defendants the right to counsel during a criminal trial. It is equally well established, however, that a criminal defendant may waive that right and proceed pro se when he knowingly and voluntarily elects to do so. When such a waiver is timely made by a competent defendant, a trial court may not deny it.

Waiver is permissible even though the defendant “may ultimately conduct his own defense to his detriment.” But he must still “be made aware of the dangers and disadvantages of self‐representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.” To determine whether a waiver was knowing and voluntary, we examine the record as a whole and consider four factors: (1) the extent of the district court’s formal inquiry into the defendant’s decision; (2) the evidence in the record about whether the defendant understood the dangers and disadvantages of self‐representation; (3) the defendant’s background and experience; and (4) the context of the defendant’s decision.

We conclude that Banks knowingly and voluntarily waived his right to counsel. The court’s colloquy with Banks was wide‐ranging and thorough. She inquired into Banks’s legal education, as well as his familiarity with the Federal Rules of Evidence and Criminal Procedure, history of self‐representation, and objection to the court’s jurisdiction over him. In addition, the court stressed that if Banks proceeded pro se, she would not advise him about how to proceed in the courtroom and would follow the Federal Rules of Evidence regardless of whether he made the appropriate objections.  

This colloquy adequately apprised Banks of the dangers of proceeding pro se. The district court had the government explain the charges and possible penalties and reiterated the maximum penalties—80 years in prison and a $1,000,000 fine. She also repeatedly told Banks that deciding to proceed without counsel was a very serious decision, and advised that he should allow his appointed counsel to represent him.

The context of Banks’s decision further suggests that his waiver was knowing and voluntary. Banks fired his trial counsel (at least in part) in order to make his sovereign‐citizen defense that the court lacked jurisdiction over him.1 We have repeatedly observed that “[a] waiver is likely knowing and voluntary if the defendant gave it for strategic reasons or after repeatedly rejecting the assistance of counsel.” Moreover, the district judge clearly informed Banks that, although she was denying his sovereign‐citizen argument, he was free to appeal that ruling at the conclusion of the case.  

1 “Defendants claiming to be ‘sovereign citizens’ assert that the federal government is illegitimate and insist that they are not subject to its jurisdiction. The defense has ‘no conceivable validity in American law.’”

Although Banks was not a legal practitioner, he noted that he had been engaged in legal study while awaiting trial and that he was familiar with the Federal Rules of Evidence and Criminal Procedure. This alone may not demonstrate that Banks “appreciated the gravity of his waiver.” However, all four fac tors, taken together, clearly demonstrate that Banks’s waiver was both knowing and voluntary—a finding that Banks himself supported by expressly confirming during the colloquy that his “decision to proceed here without a lawyer [was] entirely voluntary,” and that no one had “push[ed]” him into his decision.

Banks contends that the waiver inquiry was unnecessary, since he did not “clearly and unequivocally” invoke his right to self‐representation to begin with, but instead merely conveyed his desire to fire his counsel. In support, Banks points to the following discussion at the outset of his colloquy with the district judge:

THE DEFENDANT: Objection, your Honor. I am here. I am appearing in propria persona today.
THE COURT: All right. And that means you want to represent yourself.
THE DEFENDANT: No. I am here in propria persona.
* * * *
THE COURT: Are you representing yourself?
THE DEFENDANT: No.
THE COURT: Who is representing you?
THE DEFENDANT: My status is sui juris. I’m here in propria persona today.

But when viewed in context of the remainder of the colloquy, however, it’s clear that Banks was preoccupied with making his sovereign‐citizen defense known to the court; he was not asking that replacement counsel be appointed. For example, the district court began asking questions relating to knowledge and voluntariness immediately after the exchange below:

THE COURT: All right. Well, I will tell you what. I understand that you are relieving Mr. Brindley and his office from representing you. I am going to ask that they remain here as standby counsel. But you are certainly free under the Constitution to proceed on your own.  
THE DEFENDANT: Exactly. That’s what I so choose, your Honor.

(emphasis added). So the district court correctly understood Banks was waiving his right to counsel.  

2. No Error in Not Rescinding Waiver During Trial
Banks argues that his refusal to participate in the trial proceedings should have prompted the district court to rescind his waiver. But Banks was not completely unwilling to participate—he attempted to make opening and closing statements. And his unwillingness to focus on facts during those arguments, coupled with his general inaction, underscores his strategy of pressing his sovereign‐citizen viewpoint. The fact that that strategy was unwise, without more, is irrelevant.

Nor did Banks engage in the sort of obstructionist behavior that warranted waiver rescission in United States v. Brock and United States v. Brown. Although Banks’s refusal to participate in the proceedings, repeated challenges to the court’s jurisdiction, and repeated requests to be removed from the courtroom may have delayed the proceedings and tested the patience of the district court and the government, they in no way “made it practically impossible [for the trial] to proceed.” More importantly, even if Banks’s actions did warrant rescission—and they did not—the district judge was not obligated to rescind.

Banks’s reliance on Cain v. Peters is misplaced. As Banks notes, we observed in Cain that “defendants forfeit self-representation by remaining silent at critical junctures before or during trial.” Id. at 750. What Banks ignores, however, is the fact that Cain involved a defendant who acquiesced to representation by counsel by staying silent throughout the proceedings. In doing so, he effectively forfeited any right to argue later on that he was denied his right to represent himself. This aspect of Cain does not apply to defendants who proceed pro se but decide for strategic reasons to remain silent.  

3. Banks’s Other Arguments Are Meritless
Banks attacks the district court’s waiver decision on several other grounds, all of which lack merit. First, he suggests that the court should have rejected his waiver as untimely. But the request was timely, since it was made before the jury was empaneled. And even if the request was untimely, Banks does not claim that the court was required to reject it. Nor could he.

Banks also contends that the trial itself somehow violated his due process rights because the government was not forced to present its case subject to an adversarial process (because of Banks’s nonparticipation). But poor self‐representation alone does not amount to a due process violation.

Lastly, Banks argues that the district court erred in failing to acknowledge her authority to reject his pro se request. However, Banks has not cited any case law (and we are not aware of any) that requires a judge to expressly reference this authority. Nor does the record suggest that the district court misunderstood her authority; indeed, had she believed she was obligated to approve Banks’s pro se request, both the lengthy colloquy and her ultimate knowledge/voluntariness finding would have been unnecessary. In sum, the court correctly permitted Banks to represent himself during the trial.

[...]

[morrand]

For the sake of cross-referencing: Mr. Banks has made a previous appearance here, his initial trial and escape from the Metropolitan Correctional Center having been discussed (improbably) under the Cherron Phillips case. But he's earned a thread of his own.

[NYGman]

Mr. Banks, robber of banks, who would have thought.

[notorial dissent]

But apparently not any better at the bank robbing part as he was at the sovcitery or the representing himself thing, all fails and not even epic, jsut fails.

[grixit]

Yeah, as soon as you point a gun at somebody, it ratchets up the eventual penalties, but in his case he didn't even get to enjoy any temporary wealth since his robberies failed.