United States v. Banks

29 F. App'x 276
Court of Appeals for the Sixth Circuit·Decided February 5, 2002·No. No. 00-6335·Published·Cited by 7 cases

Opinion

NELSON, Circuit Judge.

Found guilty by a federal jury on two counts of transporting stolen computers across state lines in violation of 18 U.S.C. § 2314 and 18 U.S.C. § 2, the defendant was sentenced to imprisonment for a term of 33 months. He now appeals his conviction and sentence, contending, among other things, that he was the victim of prosecutorial misconduct and that the introduction of evidence of his refusal to talk with federal investigators violated his Fifth Amendment privilege against self-incrimination.

We conclude that there were occasions during the trial when the prosecutor overstepped the bounds of propriety, and we agree with the defendant that the prosecutor should not have elicited evidence, during the government’s case-in-chief, of the defendant’s unwillingness to speak to the investigators. In light of the record as a whole, however, and given the inherent improbability of the defendant’s contention that he did not realize the computers had been stolen, we conclude that the errors were harmless. Accordingly, and because we find no error in the district court’s calculation of the sentence under the sen[281]*281tencing guidelines, we shall affirm the challenged judgment.

I

Christopher Banks, the defendant, is an attorney whose primary business is the operation of a lottery ticket store and U-Haul rental establishment in Cincinnati, Ohio. Mr. Banks was a social acquaintance of William Nieman, who worked as an inbound freight manager for a freight forwarder in Erlanger, Kentucky. Each month, six or seven truckloads of IBM Thinkpad laptop computers passed through the freight forwarder’s facilities; some of the computers arrived without proper documentation. Beginning in July of 1996, Mr. Nieman stole approximately 150 undocumented computers from six different IBM shipments.

Thanks to Mr. Banks, Mr. Nieman did not find it difficult to dispose of the stolen computers. Nieman initially offered to give Banks a laptop in satisfaction of a $500 gambling debt, according to Nieman’s account at trial. Nieman testified that he told Banks the computer had been stolen from the forwarder’s freight dock; that after inspecting the computer, Banks agreed to accept it as payment for the debt; and that Banks told Nieman to let him know if any more computers became available.

Mr. Nieman made four subsequent deliveries of stolen computers to the defendant. The final transaction occurred on Sunday, October 6, 1996, when Defendant Banks picked up 106 computers from the freight dock and drove them back to Cincinnati in a U-Haul. (All but six of these computers appear to have been in unopened boxes.) In total, Nieman sold Banks between 141 and 150 IBM Thinkpad computers for $52,500. Mr. Banks — to whom none of the computers was ever invoiced — resold the machines at prices reflecting large markups.

Mr. Nieman testified that he asked' Mr. Banks what Banks was telling his customers about the origin of the equipment. Banks allegedly replied that he told them he was liquidating the computers for a company called Tech Marketing, which was going out of business. There was no such company, of course.

The first person to whom Mr. Banks offered computers was Steve O’Bryan. It is uncontested that Steve O’Bryan was told that the computers belonged to “Tech Marketing” and that this company was liquidating its inventory. Agreeing to an initial purchase of 15 computers, Steve O’Bryan contacted his father, Tom O’Bryan, to arrange financing. Tom O’Bryan took some of the serial numbers and called IBM, he testified at trial, to make sure that the serial numbers were consistent with the model numbers and that the machines were configured as represented. IBM said nothing about the computers having been stolen. Steve O’Bryan subsequently paid Banks $12,000 for the 15 machines.

Early in September of 1996, Banks told Tom O’Bryan that he had seven more computers for sale. O’Bryan agreed to buy them for $6,700, paying with a check drawn to the order of Tech Marketing. He purchased another 20 computers a week later, again making the check payable to Tech Marketing. In October of 1996, Tom O’Bryan agreed to buy an additional 100 computers for $250,000. He picked up the computers from the defendant’s place of business in Cincinnati, but paid only $40,000 of the agreed price. The O’Bryans sold the computers to Computer Products Corporation at a price of $511,750, and that company resold them to users throughout the United States at prices totaling $697,135.

[282]*282Meanwhile, the freight forwarder’s principal had reported as stolen 100 of the computers picked up by Mr. Banks on October 6, 1996. By tracing the serial numbers to Computer Products’ customers, the FBI followed the trail back to Messrs. Nieman and Banks. Mr. Nieman testified that while the FBI’s investigation was ongoing, he and Defendant Banks had numerous conversations about covering up Banks’ role in the affair. Tom O’Bryan cooperated in the government’s investigation, and he was promised that he would not be prosecuted.

In April of 1998 Mr. Nieman pleaded guilty to stealing the computers; he agreed to testify against Mr. Banks in exchange for a decreased sentence pursuant to U.S.S.G. § 5kl.l. On June 9, 1999, Mr. Banks was indicted by a federal grand jury on four counts of transporting stolen computers across state lines in violation of 18 U.S.C. § 2314 and 18 U.S.C. § 2, aided and abetted by William Nieman. On the government’s motion, the district court later dismissed the first two counts. Counts Three and Four were renumbered Counts One and Two, respectively, when the case went to trial.

Defendant Banks took the stand at trial, giving testimony that contradicted Nieman’s on key points. Mr. Banks testified that his first interaction with Mr. Nieman concerning computers occurred when Nieman asked him to repair an IBM Think-pad. Banks said that after making the repairs he offered to buy the computer for $1,000, paying $500 in cash and forgiving Nieman’s $500 gambling debt. Banks further testified that he asked where Nieman had got the computer and was told that it came from Tech Marketing, a company that was closing its offices and was returning computers to the freight forwarder.

In describing his subsequent transactions with Mr. Nieman, Mr. Banks claimed that the computers came in open boxes and were already registered to Tech Marketing. Mr. Banks also testified that he had his buyers make out checks to Tech Marketing for the reason that Nieman told him that his contact at Tech Marketing, Paul Keller, wanted to be paid in cash. Banks said that he gave these checks to Nieman, who would return several days later with the checks endorsed. The checks would then be cashed at Banks’ lottery store, with Banks taking his markup out of the proceeds and the rest of the cash being turned over to Nieman. Banks further testified that not until after the FBI began its investigation did Nieman tell him the computers had been stolen.

The jury ultimately found Banks guilty on both of the counts against him. The court sentenced him to imprisonment for a term of 33 months, to be followed by three years of supervised release.

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United States v. Banks, 29 F. App'x 276 (6th Cir. 2002).

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