United States v. Bankoff

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 08-3275 & 08-3688

UNITED STATES OF AMERICA

v.

MICHAEL BANKOFF,

Appellant / Cross-Appellee

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal Action No. 2-07-cr-00185-001)

District Judge: Honorable Michael M. Baylson

Argued June 3, 2010

Before: AMBRO, CHAGARES, and

VAN ANTWERPEN, Circuit Judges

Opinion filed: July 27, 2010

Thomas A. Dreyer, Esquire (Argued)

6 Dickinson Drive

Building 100, Suite 106

Chadds Ford, PA 19317

Counsel for Appellant (Cross-Appellee)

Michael L. Levy

United States Attorney

Robert A. Zauzmer

Assistant United States Attorney

Chief of Appeals

Bernadette A. McKeon (Argued)

Assistant United States Attorney

Jason Bologna, Esquire

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Counsel for Appellee (Cross-Appellant)

OPINION OF THE COURT

AMBRO, Circuit Judge

Section 115 of Title 18 of the United States Code makes

it a crime to “threaten[] to assault, kidnap, or murder . . . an

2

official whose killing would be a crime under” § 1114 of that

Title. 18 U.S.C. § 115(a)(1)(B). Section 1114, in turn, makes

it a crime to kill “any officer or employee of the United States

or of any agency in any branch of the United States

Government.” 18 U.S.C. § 1114. This case requires us to

determine whether § 115 incorporates by reference all

individuals covered by § 1114—including any “employee of . . .

any agency in any branch of the” federal government—or

instead, by using the term “official,” incorporates only some

limited subset of those individuals.

In March 2008, Michael Bankoff was convicted of

threatening two employees of the Social Security Administration

(“SSA”) in violation of § 115, as charged in Counts Two and

Three of the Indictment. The District Court granted a judgment

of acquittal on Count Three, concluding that the employee in

question—an SSA “claims representative”—did not qualify as

an “official” because she performed only “routine and

subordinate functions.” The Court denied Bankoff’s motion for

a judgment of acquittal on Count Two, concluding that the

employee in question— an SSA “operations

supervisor”—qualified as an “official” because she supervised

persons who “had the authority to adjudicate claims on behalf of

the federal government.”

Though Bankoff is not the first defendant successfully

3

prosecuted under § 115 for threatening a federal “employee,” 1

we are the first federal appellate court faced with the statutory

interpretation issue presented here. We hold that § 115

incorporates by reference all persons covered by § 1114, and,

accordingly, that § 115 applies to threats against federal

“employee[s]” “whose killing would be a crime under” § 1114.

Because § 115 applies to both of the employees Bankoff

threatened, we affirm the District Court’s denial of a judgment

of acquittal on Count Two, vacate its grant of a judgment of

acquittal on Count Three, and remand for further proceedings.

I. Background

A. The Offense Conduct

In 1999, Bankoff began receiving Social Security

disability benefits. In a series of letters sent to Bankoff from

December 2001 through May 2005, the SSA informed him that

it had overpaid $9,000 in benefits to him and that he was

required to repay that amount.

SSA claims adjuster Daniel Sphabmixy was assigned to

1

See, e.g., United States v. Armel, 585 F.3d 182, 185 (4th

Cir. 2009) (affirming conviction under § 115 for threatening

“FBI agents and support staff,” including a secretary, at a local

FBI office); United States v. Cash, 394 F.3d 560, 561 (7th Cir.

2005) (affirming conviction under § 115 for threatening a

“[s]ervice [r]epresentative” at a local Veterans Affairs office).

4

Bankoff’s case in late 2006. Bankoff called Sphabmixy several

times to dispute the overpayment. After reviewing Bankoff’s

file, Sphabmixy determined that Bankoff (1) was responsible for

the error, and (2) had failed to provide sufficient information

regarding his inability to repay the amount overpaid to him.

Accordingly, Sphabmixy denied Bankoff’s request to waive

repayment.

On February 26, 2007, Bankoff called Sphabmixy to

complain about the denial of the waiver. Bankoff was loud and

profane, and told Sphabmixy that he was going to come to the

office and “kick the shit out of him.” Bankoff also left two

voicemails for Sphabmixy that were threatening in nature.

Sphabmixy alerted his “operations supervisor”—Susan

Tonik—and security personnel about Bankoff’s threats. Tonik,

in turn, notified the Federal Protective Service. Bankoff called

Tonik later in the day on February 26 to apologize for his phone

call to Sphabmixy, but again contested the overpayment issue.

Bankoff scheduled a meeting for March 9, 2007 with an

SSA claims representative regarding the overpayment issue.

However, Bankoff called Tonik the morning of March 9 and

cancelled the meeting. He told Tonik that he wanted everything

resolved over the phone, and again was angry, loud, profane,

and, according to Tonik, “out of control.” Tonik told Bankoff

that she was unable to schedule a telephone conference with the

assigned claims representative that day.

5

Following this conversation, Bankoff left a voicemail on

Tonik’s telephone, in which he shouted:

[S]omebody ought to spit in that bitch’s face, she

doesn’t know how to talk to people. She thinks

I’m a child, I’m a grown up . . . . I will smack the

shit out of that bitch. I’ll take the little

misdemeanor charge. What are they gonna do,

fine me?

Tonik became “very worried and very scared” after listening to

this message, and feared Bankoff’s “threat was real.”

Bankoff also spoke with SSA claims representative

Crystal Robinson several times on March 9. In one of these

conversations, Bankoff complained about Tonik and told

Robinson that he would come to the office, take the gun away

from “the pig up front,” and “slap every woman in the place.”

B. Bankoff’s Motion to Dismiss the Indictment

In April 2007, a federal grand jury returned a three-count

indictment charging Bankoff with threatening employees of the

SSA, in violation of 18 U.S.C. § 115. Section 115 provides in

pertinent part:

Whoever . . . threatens to assault, kidnap, or

murder, a United States official, a United States

judge, a Federal law enforcement officer, or an

6

official whose killing would be a crime under [18

U.S.C. § 1114], with intent to impede, intimidate,

or interfere with such official, judge, or law

enforcement officer while engaged in the

performance of official duties, or with intent to

retaliate against such official, judge, or law

enforcement officer on account of the

performance of official duties, shall be punished

as provided in subsection (b).

18 U.S.C. § 115(a)(1) (emphasis added).

Bankoff moved to dismiss the indictment on the ground

that his alleged victims— Sphabmixy, Tonik, and

Robinson—did not qualify as “official[s] whose killing would

be a crime under” § 1114. 18 U.S.C. § 115. Relying on United

States v. Fenton, 10 F. Supp. 2d 501 (W.D. Pa. 1998)—the

single reported decision by a federal court that addresses the

meaning of the term “official” in § 115—Bankoff argued that

§ 115 does not incorporate all persons protected by § 1114, but

only “officer[s].” See id. at 503 n.2 (reasoning that the terms

“official” and “officer” are “closely related and . . . can only be

construed to have the same meaning”).2 Accordingly, Bankoff

2

The defendant in Fenton was charged under § 115 with

threatening a legislative aide to the late Representative John P.

Murtha of Pennsylvania. The District Court granted Fenton’s

motion to dismiss the indictment, concluding that

Representative Murtha’s legislative aide could not be considered

7

argued that § 115 does not apply to threats made against

“employees” like Sphabmixy, Tonik, and Robinson.

The District Court disagreed, concluding that “the plain

language” of §§ 115 and 1114, “taken as a whole, indicates that

‘official’ encompasses [an] ‘officer or employee.’” It stated,

however, that its conclusion regarding the definition of

“official” was only preliminary, and it invited Bankoff to raise

the issue again at trial. The Court thus denied Bankoff’s motion.

C. The District Court’s Jury Instructions

Near the end of trial, and despite its preliminary

conclusion that § 115 applies to any “officer or employee”

covered by § 1114, the District Court proposed to instruct the

jury that, in addition to finding beyond a reasonable doubt that

Sphabmixy, Tonik, and Robinson were “officer[s]” or

“employees” whose killing would be a crime under § 1114, it

must also find that they were “federal officials.” The Court

proposed to define “official” as a person

authorized to exercise governmental functions and

to make decisions on behalf of the Government.

An official is a person who is authorized to

an “official” or an “officer” because he “undertakes to do only

that which the Congressman directs, and does not exercise

independent authority or discretion in administering the

legislative power of the government.” Id. at 507.

8

exercise his or her discretion in the performance

of his or her governmental duties, as

distinguished from an employee who performs

routine and subordinate functions.

The Government objected, arguing that the proposed

instruction was inconsistent with the Court’s conclusion (in

denying Bankoff’s motion to dismiss the indictment) that the

term “official” in § 115 encompasses any “officer or employee”

whose killing would be a crime under § 1114. The Government

(presciently) expressed concern that, following the conclusion

of trial, Bankoff would attempt to argue that the Government

had failed to prove that any of Bankoff’s three victims were

“officials” under the Court’s proposed definition and seek a

judgment of acquittal on that basis.

The District Court recognized that it had modified its

preliminary ruling. It nonetheless explained that it had

a slight problem with the Government’s

expansive viewpoint. Because if you say that the

word official in [§] 115 by reference to officer or

employee in [§] 1114 . . . incorporates by

reference every employee, no matter how lowly

they may be, I think that’s a leap.

The Court gave one example to explain its concern: a janitor

employed by a federal agency, a person whom the Court

doubted would qualify “in [] lay term[s] as [an] official.”

9

After both sides rested at trial, the District Court gave the

instruction it had proposed (including its definition of an

“official”). The jury found Bankoff guilty of threatening Tonik

and Robinson (Counts Two and Three), but acquitted him of

threatening Sphabmixy (Count One).

D. Bankoff’s Motion for a Judgment of Acquittal

Following the verdict, Bankoff moved for a judgment of

acquittal on the Counts charging him with threatening Tonik and

Robinson, arguing that the trial evidence was insufficient to

prove that they were “officials” within the meaning of § 115.

See Fed. R. Crim. P. 29(c). The District Court denied the

motion as to Tonik, reasoning that she was an “operations

supervisor” who “oversaw the daily operation of the

supplemental security income program in the local field office”

and “supervised ‘claims representatives’ who had the authority

to adjudicate claims on behalf of the federal government.” As

such, the Court determined there was sufficient evidence that

Tonik “made decisions on behalf of the government and

therefore was a federal official.”

The District Court granted the motion as to Robinson

because her “testimony as to her job duties d[id] not indicate

that she made decisions on behalf of the government.”

Robinson “did not have the authority to hire or supervise other

employees,” and her “usual job duties” included “answering the

telephones.” The Court thus concluded that Robinson was not

an “official” and, in light of that conclusion, declined to reach

10

Bankoff’s other two arguments—that the evidence was

insufficient to prove that he (1) made a “true threat” against

Robinson, or (2) acted with the specific intent of interfering with

or retaliating against Robinson for performing her “official

duties.”

E. Bankoff’s Requests to Proceed Pro Se

On several occasions prior to trial, Bankoff told the

District Court that he wished to represent himself during trial.

He reiterated this request during a final pretrial hearing in March

2008. The Court conducted an extensive colloquy with Bankoff

(in accordance with our precedent, see United States v. Peppers,

302 F.3d 120 (3d Cir. 2002)), advised him of the risks of

representing himself, and strongly advised him against doing so.

It also advised Bankoff that his counsel would remain as

standby counsel (and would be available to take over the trial if

Bankoff changed his mind), but stressed that he would not be

allowed to switch back and forth with counsel during trial. At

the end of this colloquy, the Court granted Bankoff’s request to

proceed pro se.

Before the final pretrial conference concluded, Bankoff

changed his mind. During a conversation regarding jury

instructions, the District Court again suggested that it was a bad

idea for Bankoff to represent himself:

[The Court]: I don’t think that, with the limited

education that you have of a GED—but you’re a

11

bright fellow, you know, and I—I want to state

that on the record. You have a good vocabulary.

You’re articulate. You understand my questions.

And, however bright you are, you’re just—I just

don’t think you’re prepared to defend yourself as

well as your lawyers can.

[Bankoff]: I think you’re right, Your Honor.

[The Court]: All right.

[Bankoff]: I think I—I changed my mind. I think

I—I think I—

[The Court]: Well, you don’t have to make a

decision today. You ought to sleep on this and

talk to your lawyer some more.

[Bankoff]: Well, I spoke to them, and I was

thinking about it for—for a while, and I—I

think—I think that they’re—they’re—[my

attorney] Ms. Rimmer did very well today. I

think she did real good. [My other attorney,] Mr.

McHugh, sometimes, he did good; sometimes,

there was a couple of things that—I think

I’ll—I’ll stick with my team, Your Honor.

I changed my mind, and I’m sorry to

trouble the Court with these, you know, ups and

12

downs—

[The Court]: All right.

[Bankoff]: —fluctuations, whatever—

Despite Bankoff’s statements that he no longer wished to

proceed pro se, the Court informed him that if he “want[ed] to

represent [himself] next Monday [the first day of trial], [it

would] let [him] do it, but . . . it’s a very bad idea.”

Trial began the following Monday, and neither Bankoff

nor his counsel raised the issue of self-representation prior to

jury selection or opening statements. However, Bankoff

repeatedly interrupted the prosecutor’s opening statement with

argumentative objections, and, after the prosecutor concluded,

Bankoff demanded to give the opening statement for the

defense. The Court informed Bankoff that it would not permit

him to represent himself that day, but would address his

objections at the end of the day (after the jury had been

released). One witness for the Government (Sphabmixy)

testified that day, and Bankoff’s counsel conducted the cross-

examination.

After the jury was dismissed, the District Court held an

on-the-record conference with the parties. Bankoff denied he

had ever withdrawn his request to proceed pro se, and

complained that he had not been permitted to cross-examine

Sphabmixy. The Court again advised Bankoff that he could not

13

“have it both ways,” and asked him if he wanted to represent

himself for the rest of trial. Bankoff declared that it was “too

late,” and that he was “just gonna have to let [his attorney] go

forward from now.”

But on Tuesday morning Bankoff again demanded to

proceed pro se. The District Court ruled that his counsel would

finish the cross-examination of Sphabmixy. Once cross was

completed, however, the Court permitted Bankoff to represent

himself. He cross-examined the Government’s remaining

witnesses (Tonik, Robinson, and Federal Protective Services

Special Agent Jesse Kunkle), and the Court also allowed

Bankoff to cross-examine Sphabmixy after the Government

rested.

Bankoff chose to present a defense, calling his father

and a psychiatrist to testify on his behalf. Bankoff’s father was

unable to answer some of his son’s questions after becoming

emotional, and the District Court—with Bankoff’s

consent—permitted standby counsel to finish the direct

examination.

At the close of trial, Bankoff’s counsel gave the closing

statement for the defense after Bankoff was removed from the

courtroom following an angry, profane, and lengthy outburst

(which occurred outside of the jury’s presence). The District

Court informed the jury that Bankoff had “elected by his words

and conduct to not be present” for the conclusion of

summations. The Court nonetheless took care to instruct the

14

jury that it was “not to use” Bankoff’s “words or his conduct

during the trial” “for any purpose in [its] deliberations.”

As noted, Bankoff was convicted on two of the three

counts and the District Court overturned one of them, leaving

only the conviction for threatening Tonik (Count Two). The

Court then sentenced Bankoff to 60 months’ imprisonment,

which represented a nine-month upward variance from the

advisory Guidelines range of 41-51 months. This timely appeal

followed.3

II. Discussion

Bankoff argues that the District Court erroneously denied

his motion for a judgment of acquittal on the Count charging

him with threatening Tonik (Count Two); the Government

cross-appeals the Court’s grant of a judgment of acquittal on the

Count charging Bankoff with threatening Robinson (Count

Three). In addition, Bankoff contends that the Court deprived

him of his right of self-representation in violation of the Sixth

Amendment.4

3

The District Court had jurisdiction under 18 U.S.C. § 3231.

We have appellate jurisdiction over Bankoff’s appeal under 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a), and over the

Government’s cross-appeal under 18 U.S.C. § 3731.

4

Bankoff also challenges the reasonableness of the District

Court’s sentence. In light of our disposition of the

15

We conclude that the District Court erred in granting a

judgment of acquittal as to Robinson, and thus vacate the

Court’s judgment on that Count. We affirm the Court’s denial

of a judgment of acquittal as to Tonik, but on a different ground.

Finally, we reject Bankoff’s Sixth Amendment claim.

A. Bankoff’s Motion for a Judgment of Acquittal

To determine whether the District Court erred in its

rulings on Bankoff’s motion for a judgment of acquittal, we first

interpret § 115. We have plenary review over a district court’s

interpretation of a statute, United States v. Introcaso, 506 F.3d

260, 264 n.3 (3d Cir. 2007), as well as its grant or denial of a

judgment of acquittal based on sufficiency of the evidence,

United States v. Starnes, 583 F.3d 196, 206 (3d Cir. 2009).

1. The Text of § 115

“Courts in applying criminal laws generally must follow

the plain and unambiguous meaning of the statutory language.”

United States v. Albertini, 472 U.S. 675, 680 (1985) . However,

“the meaning of statutory language, plain or not, depends on

context,” King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991),

and thus “is determined by reference to the language itself, the

specific context in which that language is used, and the broader

Government’s cross-appeal (wherein we vacate the Court’s

grant of a judgment of acquittal as to Count Three), we need not

address that claim.

16

context of the statute as a whole.” Robinson v. Shell Oil Co.,

519 U.S. 337, 341 (1997); see also Beecham v. United States,

511 U.S. 368, 372 (1994) (“The plain meaning that we seek to

discern is the plain meaning of the whole statute, not of isolated

sentences.”); Kokoszka v. Belford, 417 U.S. 642, 650 (1974)

(“When interpreting a statute, the court will not look merely to

a particular clause in which general words may be used, but will

take in connection with it the whole statute . . . .” (internal

quotation marks and citation omitted)). In that light, though we

“presume that Congress expressed its legislative intent through

the ordinary meaning of the words it chose to use,” United

States v. Knox, 32 F.3d 733, 744 (3d Cir. 1994), “[t]he

circumstances of . . . particular legislation may persuade a court

that Congress did not intend words of common meaning to have

their literal effect,” Watt v. Alaska, 451 U.S. 259, 266 (1981).

Bankoff’s argument in support of his interpretation of

§ 115 is straightforward. He contends that, because the terms

“official” and “employee” have different ordinary meanings,

Congress could not have intended that § 115 apply to threats

against employees “whose killing would be a crime under”

§ 1114 by referring to threats against “official[s] whose killing

would be a crime under” § 1114. 18 U.S.C. § 115(a)(1)(B). See

also Webster’s Third New Int’l Dictionary 743 (1971)

(“employee” means “one employed by another[,] usu[ally] in a

position below the executive level and usu[ally] for wages”); id.

at 1566 (“official” means “a person authorized to act for a

government, corporation, [or] organization”). Though

Bankoff’s argument is not without surface appeal, we reject it.

17

Section 115 prohibits threats against four categories of

individuals—“United States official[s],” “United States

judge[s],” “Federal law enforcement officer[s],” and “official[s]

whose killing would be a crime under” § 1114—but includes

specific definitions for only the first three. “United States

official”—a term that would encompass a wide class of persons

if construed consistent with its ordinary meaning—is defined

narrowly to include only “the President, President-elect, Vice

President, Vice President-elect, a Member of Congress, a

member-elect of Congress, a member of the executive branch

who is the head of a department listed in 5 U.S.C. § 101, or the

Director of the Central Intelligence Agency.” 18 U.S.C.

§ 115(c)(4). By contrast, a “Federal law enforcement officer”

is defined more broadly than its ordinary meaning to include

“any officer, agent, or employee of the United States authorized

by law or by a Government agency to engage in or supervise the

prevention, detection, investigation, or prosecution of any

violation of Federal criminal law.” 5 Id. § 115(c)(1).

In this context, it appears to us that Congress intended

terms like “official” and “officer” to have a special meaning in

§ 115 that was not the same as their ordinary, dictionary

definitions. As noted, § 115 itself defines a federal law

enforcement “officer”—a term Bankoff contends is synonymous

5

To complete the definitional trilogy, a “United States

judge” is “any judicial officer of the United States, and includes

a justice of the Supreme Court and a United States magistrate

judge.” Id. § 115(c)(3).

18

with “official” for purposes of the cross-reference to § 1114—as

including federal “employee[s] . . . authorized to engage in or

supervise the prevention, detection, investigation, or prosecution

of any violation of Federal criminal law.” Id. (emphasis added).

Nor is § 115 unusual in this regard; indeed, other sections

of the Criminal Code specifically define the term “official” to

include “employees.” For example, the federal bribery statute

defines “public official” to include a

Member of Congress, Delegate, or Resident

Commissioner, either before or after such official

has qualified, or an officer or employee or person

acting for or on behalf of the United States, or any

department, agency or branch of Government

thereof, including the District of Columbia, in any

official function, under or by authority of any

such department, agency, or branch of

Government, or a juror.

18 U.S.C. § 201(a)(1) (emphasis added). Similarly, the statute

prohibiting the murder or manslaughter of foreign officials

defines a “foreign official” to include

any person of a foreign nationality who is duly

notified to the United States as an officer or

employee of a foreign government or international

organization, and who is in the United States on

official business, and any member of his family

19

whose presence in the United States is in

connection with the presence of such officer or

employee.

18 U.S.C. § 1116(b)(3)(B) (emphasis added).

Finally, we believe it especially significant that § 115

defines the first three categories of covered persons but provides

no definition for the fourth category. This strongly suggests that

Congress intended for § 1114 itself to define that category by

incorporating it by reference into § 115. Cf. Stenberg v.

Carhart, 530 U.S. 914, 942 (2000) (when a statute defines a

term, a court “must follow that definition, even if it varies from

that term’s ordinary meaning”).

Notwithstanding this statutory context, Bankoff asks us

to compare § 115 with § 111 of Title 18, which makes it a crime

to “forcibly assault[], resist[], oppose[], impede[], intimidate[],

or interfere[] with any person designated in section 1114 of this

title while engaged in or on account of the performance of

official duties.” 18 U.S.C. § 111(a)(1) (emphasis added).

Bankoff argues that, “[h]ad Congress intended [§] 115 to cover

the exact same class of victims as [§] 1114, it would have

employed the exact same language which it used in” § 111—i.e.,

§ 115 would refer to any “person designated” in § 1114 instead

20

of an “official whose killing would be a crime” under § 1114.6

(Appellant’s Reply Br. at 5.)

We are not persuaded. The different language used to

incorporate § 1114 is readily explained by § 111’s unique

statutory history. Both § 111 and § 1114 originate from a 1934

Act “[t]o provide punishment for killing or assaulting [f]ederal

officers.” Pub. L. No. 73-230, 48 Stat. 780 (1934).

Section 1114 stems from § 1 of the 1934 Act; § 111 flows from

§ 2, which “forbade forcible resistance or interference with, or

assault upon,” “any person designated in section 1 hereof.” 48

Stat. 780, 781; see United States v. Feola, 420 U.S. 671, 679

(1975). Section 111 assumed its current form in 1948 when it

was re-codified as a separate section of Title 18, 62 Stat. 688

(1948); see Feola, 420 U.S. at 678 n.13, and in re-codifying that

section it appears that Congress simply retained the original

language used in the 1934 Act (i.e., a “person designated”).

In any event, that Congress used different language to

incorporate § 1114 in different statutes that were codified nearly

four decades apart—§ 111 in 1948, and § 115 in 1984, Pub. L.

6

We note that at least one other section of Title 18

incorporates § 1114 using language similar to § 115. See 18

U.S.C. § 876(c) (providing for a ten-year statutory maximum

term of imprisonment where a defendant mails a threatening

communication to “a United States judge, a Federal law

enforcement officer, or an official who is covered by section

1114” (emphasis added)).

21

No. 98-473, 98 Stat. 2140 (1984)—does not, standing alone,

demonstrate that it used the term “official” (as opposed to

“person”) in § 115 with the intention of limiting its scope.7 And

though Congress could have used a term other than “official” to

achieve the same result, its choice makes sense when § 115 is

viewed in context, given both its title (“[i]nfluencing, impeding,

or retaliating against a Federal official by threatening or injuring

a family member”) and the kinds of threats to which it applies

(e.g., those made to retaliate against such an official “on account

of the performance of official duties”). 18 U.S.C. § 115

(emphases added).

7

Though not raised by the parties, we note that another

section of Title 18, § 119, contains incorporating language

similar to § 111. See 18 U.S.C. § 119(a), (b)(2)(A) (making it

a crime in certain circumstances to “make[] restricted personal

information about a covered person . . . publicly available,” and

defining a “covered person” to include “an individual

designated in section 1114” of Title 18 (emphasis added)).

Section 119 was enacted in 2008, Pub. L. No. 110-177, 121 Stat.

2536 (2008), more than two decades after § 115 was enacted in

1984. In any event, there is no indication from either the text or

legislative history of § 119 that its reference to an “individual

designated” in § 1114 was chosen to distinguish its scope from

that of § 115.

22

2. The Text of § 1114

This interpretation of § 115 is confirmed by an

examination of the version of § 1114 that was in force when

§ 115 was enacted in 1984. As noted, § 1114 originates from

§ 1 of the 1934 Act, and, in its original form, made it a crime to

kill seven types of “federal officers” while they were “engaged

in the performance of [their] official duties, or on account of the

performance of [their] official duties.” 8 That section was

separately codified as 18 U.S.C. § 1114 in 1948, 62 Stat. 756

(1948), and in the decades that followed Congress “greatly

expanded” the categories of persons protected by that provision.

Feola, 420 U.S. at 679 n.15. By 1984 (when § 115 was

enacted), § 1114 applied to any “officer or employee” of, among

many federal agencies and departments, the Secret Service, the

Drug Enforcement Administration, the Veterans’ Administration

(now the Department of Veterans Affairs), the Department of

Agriculture, the Federal Depository Insurance Corporation, the

Federal Communications Commission, and the National

8

These “federal officers” were: “any United States marshal

or deputy United States marshal, special agent of the Division

of Investigation of the Department of Justice, post-office

inspector, Secret Service operative, any officer or enlisted man

of the Coast Guard, any employee of any United States penal or

correctional institution, any officer of the customs or of the

internal revenue, [or] any immigrant inspector of any

immigration patrol inspector.” 48 Stat. 780.

23

Aeronautics and Space Administration.9 And in addition to

9

In full, the version of 18 U.S.C. § 1114 in force when § 115

was enacted provided as follows:

Whoever kills or attempts to kill any judge of the

United States, any United States Attorney, any

Assistant United States Attorney, or any United

States marshal or deputy marshal or person

employed to assist such marshal or deputy

marshal, any officer or employee of the Federal

Bureau of Investigation of the Department of

Justice, any officer or employee of the Postal

Service, any officer or employee of the [S]ecret

[S]ervice or of the Drug Enforcement

Administration, any officer or member of the

United States Capitol Police, any member of the

Coast Guard, any employee of the Coast Guard

assigned to perform investigative, inspection or

law enforcement functions, any officer or

employee of any United States penal or

correctional institution, any officer, employee or

agent of the customs or of the internal revenue or

any person assisting him in the execution of his

duties, any immigration officer, any officer or

employee of the Department of Agriculture or of

the Department of the Interior designated by the

Secretary of the Interior to enforce any Act of

Congress for the protection, preservation, or

restoration of game and other wild birds and

animals, any employee of the Department of

24

Agriculture designated by the Secretary of

Agriculture to carry out any law or regulation, or

to perform any function in connection with any

Federal or State program or any program of

Puerto Rico, Guam, the Virgin Islands of the

United States, or the District of Columbia, for the

control or eradication or prevention of the

introduction or dissemination of animal diseases,

any officer or employee of the National Park

Service, any civilian official or employee of the

Army Corps of Engineers assigned to perform

investigations, inspections, law or regulatory

enforcement functions, or field-level real estate

functions, any officer or employee of, or assigned

to duty in, the field service of the Bureau of Land

Management, or any officer or employee of the

Indian field service of the United States, or any

officer or employee of the National Aeronautics

and Space Administration directed to guard and

protect property of the United States under the

administration and control of the National

Aeronautics and Space Administration, any

security officer of the Department of State or the

Foreign Service, or any officer or employee of the

Department of Health, Education, and Welfare,

the Consumer Product Safety Commission,

Interstate C om m e rc e Commission, the

Department of Commerce, or the Department of

Labor or of the Department of the Interior or of

the Department of Agriculture assigned to

25

perform investigative, inspection, or law

enforcement functions, or any officer or employee

of the Federal Communications Commission

performing investigative, inspection, or law

enforcement functions, or any officer or employee

of the Veterans’ Administration assigned to

perform investigative or law enforcement

functions, or any United States probation or

pretrial services officer, or any United States

magistrate, or any officer or employee of any

department or agency within the Intelligence

Community (as defined in Section 3.4(F) of

Executive Order 12333, December 8, 1981, or

successor orders) not already covered under the

terms of this section,[] any attorney, liquidator,

examiner, claim agent, or other employee of the

Federal Depository Insurance Corporation, the

Federal Savings and Loan Insurance Corporation,

the Comptroller of the Currency, the Federal

Home Loan Bank Board, the Board of Governors

of the Federal Reserve System, any Federal

Reserve bank, or the National Credit Union

Administration, or any other officer, agency, or

employee of the United States designated for

coverage under this section in regulations issued

by the Attorney General engaged in or on account

of the performance of his official duties, or any

officer or employee of the United States or any

agency thereof designated to collect or

compromise a Federal claim in accordance with

26

“officer[s] or employee[s]” of such agencies and departments,

§ 1114 also covered, among others, any “agent of the customs

or of the internal revenue,” any “member of the United States

Capitol Police,” and any “member of the Coast Guard.” 10 18

U.S.C. § 1114 (1984) (emphasis added). Congress did not

shorten this list until 1996—twelve years after it enacted

sections 3711 and 3716–3718 of title 31 or other

statutory authority[,] shall be punished as

provided under sections 1111 and 1112 of this

title, except that any such person who is found

guilty of attempted murder shall be imprisoned

for not more than twenty years.

18 U.S.C. § 1114 (1984).

10

In addition to these “officers,” “employees,” “members,”

and “agents,” the 1984 version of § 1114 also applied to “any

civilian official . . . of the Army Corps of Engineers.” 18 U.S.C.

§ 1114 (1984) (emphasis added). In that light, accepting

Bankoff’s argument that § 115 does not incorporate fully the

persons listed in § 1114 would lead to an absurd result. Because

we presume that Congress was aware of the language of § 1114

when it enacted § 115, see, e.g., United States v. Mohammed, 27

F.3d 815, 821 (2d Cir. 1994)—and thus presume that Congress

knew that § 1114 referred to only one type of “official”—it

would follow that § 115’s prohibition of threats against an

“official whose killing would be a crime under” § 1114 was

limited to threats against “civilian official[s] . . . of the Army

Corps of Engineers.” That could not have been Congress’

intent.

27

§ 115—when it amended § 1114 to refer simply to “any officer

or employee of the United States or of any agency in any branch

of the United States Government.” 18 U.S.C. § 1114 (1996).

(One suspects that the queue of requests for additional

inclusions had grown too long.)

This statutory context confirms our conclusion that

Congress used “official” in § 115 as a general term to

incorporate by reference all the “officers,” “employees,”

“members,” and “agents” of the federal departments and

agencies listed in § 1114. By doing so, Congress avoided the

need to restate that lengthy list in § 115 itself. See, e.g., Hassett

v. Welch, 303 U.S. 303, 314 (1938) (“Where one statute adopts

the particular provisions of another by a specific and descriptive

reference . . . , the effect is the same as though the statute or

provisions adopted had been incorporated bodily into the

adopting statute.” (internal quotation marks and citation

omitted)); see also Norman J. Singer & J.D. Shambie Singer, 2B

Sutherland Statutes and Statutory Construction § 51:8 (“When

[a] reference is made to a specific section of [a] statute, that part

of the statute is applied as though written into the reference

statute.”). Moreover, we think it implausible that Congress used

the term “official” as a limitation on the persons enumerated in

§ 1114, yet declined to define that term or provide any

indication as to how courts (or, presumably, juries) were to

determine which of the enumerated “employees,” “officers,”

“members,” and “agents” listed in § 1114 also qualify as

28

“officials.” 11

In sum, we conclude that when § 115’s reference to an

“official whose killing would be a crime under” § 1114 is read

in context, its meaning is plain; “official” is not used as a term

11

Though employees of the SSA were not included among

the federal employees listed in the 1984 version of § 1114, that

version of the statute authorized the Attorney General to

designate “any other officer or employee of the United States or

any agency thereof . . . for coverage under” § 1114. 18 U.S.C.

§ 1114 (1984). And before the 1996 amendment to § 1114, the

Attorney General had designated “[e]mployees of the Social

Security Administration assigned to Administration field offices,

hearing offices and field assessment offices” as employees

covered under § 1114. 28 C.F.R. § 64.2(x) (1992).

Accordingly, we need not determine in this case whether

Congress intended for § 115 to incorporate the 1996 amendment

to § 1114, as employees of the SSA were covered even under

the prior version of that statute. See Norman J. Singer & J.D.

Shambie Singer, 2B Sutherland Statutes and Statutory

Construction § 51:8 (noting the general rule that “[a] statute of

specific reference incorporates the provisions referred to from

the statute as of the time of adoption without subsequent

amendments, unless the legislature has expressly or by strong

implication shown its intention to incorporate subsequent

amendments with the statute”); see also United States v. Smith,

296 F.3d 344, 347 n.1 (5th Cir. 2002) (noting that § 1114 “in its

current form provides even broader coverage” than the pre-1996

version).

29

of limitation, but as a general term that incorporates by reference

all the individuals protected under § 1114, both “officer[s] and

employee[s].” 12

12

Bankoff argues that our construction of the phrase “an

official whose killing would be a crime” under § 1114 renders

superfluous the first three categories of persons covered by

§ 115 (“United States official[s],” “United States judge[s],” and

“Federal law enforcement officer[s]”). (Appellant’s Reply Br.

at 8.) He apparently means that, if the fourth category of § 115

covers every “officer” or “employee” of the federal government,

there would be no purpose for the first three categories. See

United States v. Cooper, 396 F.3d 308, 312 (3d Cir. 2005) (“It

is a well known canon of statutory construction that courts

should construe statutory language to avoid interpretations that

would render any phrase superfluous.”)

Though we need not consult the canons of construction

where, as here, the meaning of statutory language is clear, see

United States v. Jones, 471 F.3d 478, 480 (3d Cir. 2006), we in

any event reject Bankoff’s argument. When § 115 was enacted

in 1984, the version of § 1114 then in force did not apply to any

“officer or employee of the United States,” but only to certain

“officers,” “employees,” “agents,” and “members” employed by

various (and numerous) specific federal agencies. In any event,

that there was some overlap between the individuals covered by

§ 1114 and the first three categories of persons protected by

§ 115—for example, the 1984 version of § 1114 already

protected “any judge of the United States” or “United States

magistrate,” thus rendering § 115’s enumeration of a “United

States judge” unnecessary—does not mean that the first three

categories are rendered superfluous by § 115’s incorporation of

30

3. The Legislative History

Even were we to lay aside the plain language of § 115

and consult its legislative history as a course marker, it would

not aid Bankoff. Cf. Albertini, 472 U.S. at 680. He argues that

the legislative history “‘indicates that Congress was concerned

with high policymaking, judicial and law enforcement officers,

but that that legislative concern did not extend to federal

employees in general.’” (Appellant’s Br. at 17–18 (quoting

Fenton, 10 F. Supp. 2d at 505).) He relies on the Senate Report

that accompanies § 115, which begins:

[Section 115] is a new provision designed to

§ 1114. Cf. United States v. Naftalin, 441 U.S. 768, 778 (1979)

(“‘[t]he fact that there may well be some overlap’” between two

statutes “‘is neither unusual nor unfortunate’”) (quoting SEC v.

Nat’l Sec., Inc., 393 U.S. 453, 468 (1969) (alteration in

original)).

Finally, we note that Bankoff’s proposed interpretation

itself violates the anti-superfluousness canon. Had Congress

intended, as Bankoff argues, to limit § 115’s scope to only

“officers” protected by § 1114, it presumably would have used

the term “officer” instead of “official” in § 115. As we “assume

that Congress used two terms because it intended each to have

a particular, non-superfluous meaning,” Bailey v. United States,

516 U.S. 137, 146 (1995), we cannot accept Bankoff’s

contention that Congress used the term “official” in § 115 to

limit its scope to “officers” whose killing would be a crime

under § 1114.

31

protect the close relatives of certain high level

officials, such as the President, Vice-President,

members of Congress, cabinet officers, and

federal judges, as well as federal law enforcement

officers. . . .

The Committee believes that serious

crimes against family members of high level

federal officials, federal judges, and federal law

enforcement officers, which are committed

because of their relatives’ jobs are, generally

speaking, proper matters of federal concern.

Clearly it is a proper federal function to respond

to terrorists and other criminals who would seek to

influence the making of federal policies and

interfere with the administration of justice by

attacking close relatives of those entrusted with

these tasks.

S. Rep. No. 98-225, at 263–64 (1983) (emphases added).

This argument falls short. Protecting the family

members 13 of such “high policymaking” officials was

undoubtedly an important (and probably the primary) purpose

13

As initially enacted, § 115 applied only to threats against

the family members of federal officials. In 1986, § 115 was

amended to “extend[] protection to . . . the officials themselves.”

H. Rep. No. 99-797, at 14 (1986).

32

of the statute. However, we decline to draw from this the

negative inference that Bankoff urges, i.e., that because

Congress was primarily concerned with protecting high-ranking

policy makers, it must not have intended for § 115 to protect

mere “employees.” See, e.g., United States v. Turkette, 452 U.S.

576, 591 (1981) (“that the legislative history forcefully

supports” a “major purpose” of the statute, but does not address

the statute’s scope regarding the issue at hand, does not compel

the “negative inference” that the statute does not also have other

purposes (and thus scopes)).

Moreover, this excerpt from the Conference Report

appears to address only the first three categories of individuals

protected by § 115: “United States officials,” “United States

judges,” and “Federal law enforcement officers.” A later

statement in the Conference Report specifically addresses the

fourth category of persons covered by § 115:

It should be noted that the new section [§ 115]

covers attacks on family members of all the

persons listed in 18 U.S.C. 1114 as well as on

family members of other law enforcement officers

not there listed. Included in this latter category

would be, for example, the Inspectors General

and their staffs, and Department of Justice Strike

Force attorneys.

S. Rep. No. 98-225, at 264 (1983) (emphases added). Even

assuming that the conference report’s use of “persons” instead

33

of “officials” was a “stray choice of words,” Fenton, 10 F. Supp.

2d at 505, its reference to “all the persons listed” in § 1114

comports with our conclusion that Congress intended § 115 to

incorporate by reference all the individuals listed in § 1114 (and

thus avoid restating that list in § 115 itself).14

In sum, even were we required to consult legislative

history for § 115, it is consistent with our conclusion that

Congress did not use “official” as a limitation on the categories

of individuals protected by § 1114.

* * * * *

14

We also reject Bankoff’s contention that we should

presume that Congress did not intend to extend § 115’s

protection to “mere employees” in light of the principle that

courts “should not interpret a statute in a manner that

significantly alters the federal-state balance unless Congress has

clearly indicated that it intended to do so.” United States v.

Zwick, 199 F.3d 672, 686 (3d Cir. 1999), abrogated on other

grounds by Sabri v. United States, 541 U.S. 600 (2004). Section

115 is not a “general threat” statute. Even under our

construction of that statute, it protects only employees of the

federal government, and even then only when a threat is made

in connection with (or in retaliation against) the performance of

such a person’s “official duties.” Given that Congress has made

it a crime to kill or attempt to kill such individuals (in § 1114),

we see no “significant[] alter[ation in] the federal-state balance”

that results from interpreting § 115 as applying to threats against

them. Zwick, 199 F.3d at 686.

34

We hold that § 115 applies to all persons, be they

“officer[s]” or “employee[s],” “whose killing would be a crime”

under § 1114. We thus conclude that the District Court erred in

ruling that an individual does not qualify as an “official” within

the meaning of § 115 unless he or she is “authorized to make

decisions on behalf of the government.” This dispute over the

correct interpretation of § 115 is the sole basis on which Bankoff

challenges the District Court’s denial of a judgment of acquittal

on Count Two (the threats made against Tonik). Accordingly,

we affirm the Court’s denial of a judgment of acquittal on that

Count, as we have no dispute that Tonik qualifies as an

employee whose killing would be a crime under § 1114.

Like Tonik, it is undisputed that Robinson qualifies as a

federal “employee” whose killing would be a crime under

§ 1114. Accordingly, we conclude the District Court erred in

granting a judgment of acquittal on Count Three. However,

Bankoff sought a judgment of acquittal on that Count on two

additional grounds—that the evidence was insufficient to prove

that he (1) made a “true threat” against Robinson, or (2) acted

with the specific intent to impede, intimidate, or interfere with

Robinson while she was engaged in the performance of her

“official duties,” or to retaliate against her “on account of the

performance of h[er] official duties.” 18 U.S.C. § 115(a)(1).

The District Court did not reach those arguments, and neither

Bankoff nor the Government addresses them in each’s briefing.

We decline to consider them in the first instance, and thus

remand for the District Court to do so. Cf. Gov’t of the V.I. v.

Charleswell, 24 F.3d 571, 577 n.4 (3d Cir. 1994).

35

B. Sixth Amendment Claim

Bankoff argues that the District Court violated his Sixth

Amendment right to represent himself when the Court denied

his requests to (1) give the opening statement for the defense,

and (2) cross-examine the Government’s first witness

(Sphabmixy). The Government argues that there was no

constitutional deprivation because Bankoff’s request was

untimely, having been made after trial began (and after Bankoff

had already withdrawn his request to proceed pro se mere days

before trial).

The Sixth Amendment guarantees criminal defendants

the right to represent themselves at trial. Faretta v. California,

422 U.S. 806, 819–20 (1975). The right of self-representation

and the right to counsel are “two faces of the same coin, in that

the waiver of one right constitutes a correlative assertion of the

other.” United States v. Conder, 423 F.2d 904, 908 (6th Cir.

1970) (internal quotation marks and citation omitted). However,

because criminal defendants will likely fare better with the

assistance of counsel than without, a defendant will be permitted

to represent himself only when he “knowingly and intelligently”

relinquishes his right to counsel. Faretta, 422 U.S. at 835

(internal quotation marks and citation omitted).

We have established three requirements that must be met

before a defendant may be allowed to proceed pro se: (1) he

must “assert his desire to proceed pro se clearly and

unequivocally”; (2) the court must “inquire thoroughly to satisfy

36

itself that” the request is knowing and intelligent; and (3) the

court must “assure itself that the defendant is competent to stand

trial.” Peppers, 302 F.3d at 132 (internal quotation marks and

citations omitted). Our review over a district court’s findings

regarding these requirements is plenary. See United States v.

Goldberg, 67 F.3d 1092, 1097 (3d Cir. 1995).

We have previously stated that “the timing of the request

is only one factor that a court must consider in ruling upon a

motion to proceed pro se.” Buhl v. Cooksey, 233 F.3d 783, 795

(3d Cir. 2000); cf. Martinez v. Ct. of Appeal of Cal., Fourth App.

Dist., 528 U.S. 152, 161–62 (2000) (recognizing that “most

courts” have interpreted Faretta to require that a defendant

assert his right to self-representation “in a timely manner”).

Accordingly, we have held requests to proceed pro se timely

even when made on the “eve of trial.” Buhl, 233 F.3d at 795

(internal quotation marks and citation omitted); Gov’t of the V.I.

v. James, 934 F.2d 468, 470 (3d Cir. 1991) (request made on the

first day of trial, but before jury selection, was timely); see also,

e.g., Williams v. Bartlett, 44 F.3d 95, 99 (2d Cir. 1994) (a

defendant’s right to represent himself is “unqualified if invoked

prior to the start of the trial” (internal quotation marks and

citation omitted) (emphasis in original)); Jackson v. Ylst, 921

F.2d 882, 888 (9th Cir. 1990) (request is timely if made before

the jury is empaneled); Chapman v. United States, 553 F.2d 886,

894 (5th Cir. 1977) (same).

However, after trial has “commenced”—i.e., at least after

the jury has been empaneled—“the right of self-representation

37

is curtailed.” Buhl, 233 F.3d at 797 n.16. In that context,

district courts have discretion to deny an untimely request to

proceed pro se after weighing the “‘prejudice to the legitimate

interests of the defendant’ against the ‘potential disruption of

proceedings already in progress.’”15 Id. (quoting United States

v. Stevens, 83 F.3d 60, 66–67 (2d Cir. 1996)); accord United

States v. Beers, 189 F.3d 1297, 1303 (10th Cir. 1999); United

States v. Martin, 25 F.3d 293, 296 (6th Cir. 1994); United States

v. Betancourt-Arretuche, 933 F.2d 89, 96 (1st Cir. 1991);

Horton v. Dugger, 895 F.2d 714, 717 (11th Cir. 1990); United

States v. Oakey, 853 F.2d 551, 553 (7th Cir. 1988); United

States v. Matsushita, 794 F.2d 46, 51 (2d Cir. 1986); United

States v. Lawrence, 605 F.2d 1321, 1325 (4th Cir. 1979). “How

this balance should be struck is ultimately within the sound

discretion of the district court,” Stevens, 83 F.3d at 67, and we

will review its decision under a highly deferential abuse-of-

discretion standard. Cf. Gen. Elec. Co. v. Joiner, 522 U.S. 136,

143 (1997) (noting that deference “is the hallmark of abuse-of-

discretion review”).

Even assuming that the District Court’s refusal to address

Bankoff’s untimely request until the end of the first day of trial

resulted in a cognizable (though brief) “denial” of his right of

self-representation, the Court did not abuse its discretion. In

15

To be clear, we do not suggest that district courts are

required to deny a request to proceed pro se made after a trial

begins. See United States v. Cocivera, 104 F.3d 566, 570 (3d

Cir. 1996).

38

light of Bankoff’s repeated changes-of-heart and angry outburst

during the prosecutor’s opening statement, we think it apparent

the Court was concerned that Bankoff’s renewed request was

equivocal (a finding that would justify denying even a timely

request to proceed pro se). See Williams, 44 F.3d at 101

(“[W]hen a defendant changes his mind [about being

represented by counsel] after trial begins, or does so repeatedly

at any stage, . . . the conduct can be considered vacillation, and

a trial judge may find the request equivocal.”); see also United

States v. Stine, 675 F.2d 69, 72 (3d Cir. 1982) (“In discretionary

matters dependent upon observation of the litigants, an appellate

court’s review is limited because it cannot replicate the trial

judge’s superior vantage point.”).

In that light, we have no trouble concluding that, by

deferring an inquiry of Bankoff’s renewed request until the end

of the first day of trial (and outside the presence of the jury), the

District Court appropriately balanced the “prejudice to

[Bankoff’s] legitimate interests . . . against the potential

disruption” of the trial. Buhl, 233 F.3d at 797 n.16 (internal

quotation marks and citation omitted). We thus reject Bankoff’s

implicit contention that the Court was required to adjourn the

trial immediately to address his request once he interrupted the

prosecutor’s opening statement and renewed his demand to

proceed pro se.

In addition, the District Court not only permitted Bankoff

to begin representing himself the second day of trial, but (1)

allowed him to re-call the first Government witness (whom his

39

attorney already had cross-examined), and (2) permitted standby

counsel to take over the questioning of Bankoff’s father when

his father became (understandably) emotional and had difficulty

answering questions. In this context, we believe the Court not

only acted well within its discretion, but treated Bankoff with

the utmost fairness. Accordingly, we reject Bankoff’s Sixth

Amendment claim.

* * * * *

We vacate the District Court’s grant of a judgment of

acquittal on Count Three, affirm its other rulings on appeal, and

remand this case for further proceedings.

40