United States v. Banks
761 F.3d 1163
| 10th Cir. | 2014Background
- Six defendants (Banks, Barnes, Harper, Stewart, Walker, Zirpolo) ran IRP/Leading Team/DKH offering software and claimed imminent law-enforcement contracts; staffing firms payrolled preselected workers based on those representations and were left unpaid for over $5M.
- Indicted June 9, 2009 on conspiracy, mail and wire fraud; trial began Sept. 26, 2011; defendants proceeded pro se at trial and were convicted; sentences 87–135 months.
- Defense requested multiple continuances pretrial; district court granted four ends-of-justice continuances after finding voluminous discovery, multiple defendants, complex multi-year scheme and need for witness interviews.
- At trial defendants called co-defendant Barnes; after direct (favorable) testimony he later invoked the Fifth on cross; dispute whether the court coerced him to testify during an untranscribed sidebar.
- Defendants attempted to call two additional experts (Albarelle, Baucom) without proper Rule 16/702 disclosure; court excluded them but admitted a different witness (Thurman); defendants claimed prejudice and Sixth Amendment violation.
- On appeal the Tenth Circuit affirmed: Speedy Trial Act and Sixth Amendment not violated; Barnes was not compelled to testify and had waived Fifth by testifying; exclusion of experts was a permissible Rule 16/702 sanction; no cumulative error.
Issues
| Issue | Plaintiff's Argument (Gov't) | Defendant's Argument | Held |
|---|---|---|---|
| Speedy-trial (statutory & Sixth Amendment) | Continuances were proper ends-of-justice exclusions; no statutory violation; delays mainly defendant-caused | Continuances (requested by defendants) nonetheless violated Speedy Trial Act and Sixth Amendment right to speedy trial | Affirmed: Act satisfied (court made required findings); Sixth Amendment claim fails after Barker balance (only delay factor favored defendants) |
| Compulsion of co-defendant Barnes to testify (Fifth Amendment) | Court did not compel Barnes; a non-defendant witness (Agent Smith) was available; Barnes testified voluntarily and thus waived Fifth for cross | Court compelled Barnes at sidebar and then allowed him to invoke Fifth, prejudicing all defendants; curative instruction inadequate | Affirmed: No compulsion; testimony voluntary; Barnes waived selective Fifth; offered curative instruction adequate and not plain error |
| Exclusion of two proposed expert witnesses (Rule 16 / Rule 702) | Exclusion was a lawful sanction for failure to disclose under Rule 16; district court properly acted as gatekeeper under Rule 702; testimony would be cumulative | Disclosure failures were in good faith; exclusion impaired defendants’ ability to present defense | Affirmed: Abuse-of-discretion standard—Wicker factors support exclusion; proposed letters failed Rule 702 reliability; lay-opinion route rejected |
| Cumulative error / right to present a complete defense | No reversible errors to aggregate; defendants had opportunity to present expert testimony via admitted witness (Thurman) | Multiple harmless errors cumulatively deprived defendants of fair trial | Affirmed: No errors found to aggregate; cumulative-error doctrine inapplicable |
Key Cases Cited
- Toombs v. United States, 574 F.3d 1262 (10th Cir. 2009) (standards for ends-of-justice continuances under Speedy Trial Act)
- Larson v. United States, 627 F.3d 1198 (10th Cir. 2010) (Speedy Trial Act findings and requirements for record)
- Barker v. Wingo, 407 U.S. 514 (1972) (four-factor Sixth Amendment speedy-trial balancing test)
- Doggett v. United States, 505 U.S. 647 (1992) (presumptively prejudicial delay threshold)
- Zedner v. United States, 547 U.S. 489 (2006) (requirements for ends-of-justice continuance findings)
- Bloate v. United States, 559 U.S. 196 (2010) (scope of Speedy Trial Act exclusions)
- Wicker v. United States, 848 F.2d 1059 (10th Cir. 1988) (factors for sanctions under Rule 16 disclosure failures)
- Nacchio v. United States, 555 F.3d 1234 (10th Cir. en banc 2009) (district court’s gatekeeping role under Rule 702)
- Russell v. United States, 109 F.3d 1503 (10th Cir. 1997) (prejudice from late witness disclosure; refusal of continuance)
- Lauder v. United States, 409 F.3d 1254 (10th Cir. 2005) (harmless-error test for improper comments about silence)
- Mitchell v. United States, 526 U.S. 314 (1999) (limitations on invoking Fifth after voluntary testimony)
- Taylor v. Illinois, 484 U.S. 400 (1988) (exclusion of defense witness as sanction; Sixth Amendment limits)
- Bruton v. United States, 391 U.S. 123 (1968) (admission of co-defendant confession and confrontation concerns)