Douglas Gene Mayberry v. United States , 156 F. App'x 265 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 30, 2005
No. 05-10990
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket Nos. 00-01043-CV-H-E & 96-00051-CR-H-E
DOUGLAS GENE MAYBERRY,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(November 30, 2005)
Before TJOFLAT, BIRCH and BLACK, Circuit Judges.
PER CURIAM:
Federal prisoner Douglas Mayberry appeals the district court’s denial of his
28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. Mayberry
asserts count two of his indictment suffered from a jurisdictional defect because it
charged multiple financial transactions as a criminal money laundering offense
under 18 U.S.C. § 1956(a)(1)(A)(i).1 The district court did not err in denying the
motion, and we affirm.
When reviewing a district court’s denial of a § 2255 motion, we review
questions of law de novo and findings of fact for clear error. Lynn v. United States,
365 F.3d 1225, 1232 (11th Cir.), cert. denied, 125 S. Ct. 167 (2004).
“A jurisdictional defect is one that ‘strip[s] the court of its power to act and
ma[kes] its judgment void.’” McCoy v. United States, 266 F.3d 1245, 1249 (11th
Cir. 2001) (citation omitted). An indictment suffers from a jurisdictional defect
when it charges no crime at all. Id. at 1253; United States v. Peter, 310 F.3d 709,
713–715 (11th Cir. 2002) (citing United States v. Meacham, 626 F.2d 503, 510
(5th Cir. 1980), for the proposition a district court lacks jurisdiction when an
indictment alleges only a non-offense, or rather, when the government alleges a
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18 U.S.C. § 1956(a)(1)(A)(i) provides that, “[w]hoever, knowing that the property
involved in a financial transaction represents the proceeds of some form of unlawful activity,
conducts or attempts to conduct such a financial transaction which in fact involves the proceeds
of specified unlawful activity with the intent to promote the carrying on of specified unlawful
activity . . . .”
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specific course of conduct outside the reach of the applicable statute). Courts “may
hear a claim that the indictment or information fails to invoke the court’s
jurisdiction or to state an offense” at any time while the case is pending. Fed. R.
Crim. P. 12(b)(3)(B).
In Peter, we explained a jurisdictional defect in an indictment exists where
the government alleges a specific course of conduct outside the reach of the
applicable statute. Peter, 310 F.3d at 715. For instance, in Meacham, the court
reversed the defendants’ convictions for “conspiring to attempt” to import and
possess with intent to distribute marijuana, holding Congress had not intended for
the statutes at issue to create “the conceptually bizarre crime of conspiracy to
attempt.” Meacham, 626 F.2d at 507–09. In such instances, a defendant’s
“innocence of the charged offense appears from the very allegations made in the
[indictment]. . . .” Peter, 310 F.3d at 715.
In contrast, “[a] count in an indictment is duplicitous if it charges two or
more ‘separate and distinct’ offenses.” United States v. Schlei, 122 F.3d 944, 977
(11th Cir. 1997). Nevertheless, “[d]uplicity is not a fatal defect,” Reno v. United
States, 317 F.2d 499, 502 (5th Cir. 1963), and an objection to a duplicitous
indictment is waived if not raised before trial, Fed. R. Crim. P. 12(b)(3)(B). See
also United States v. Prescott, 42 F.3d 1165, 1167 (8th Cir. 1994) (finding an
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indictment duplicitous because it charged multiple financial transactions as a
violation of 18 U.S.C. § 1956(a)(1)(B)(i), but holding the defendant waived this
argument by failing to raise it before trial); United States v. Klinger, 128 F.3d 705,
708 (9th Cir. 1997) (finding the defendant waived his duplicitous indictment
argument by failing to raise it before trial). Notably, “defects in an indictment do
not deprive a court of its power to adjudicate a case.” United States v. Cotton, 122
S. Ct. 1781, 1785 (2002).
We have yet to address the distinction between a jurisdictionally defective
indictment and a duplicitous indictment. However, the Second Circuit addressed
this issue in the identical context as raised in this case, namely, whether an
indictment charging multiple financial transactions as a criminal money laundering
offense under 18 U.S.C. § 1956(a)(1)(A) “states an offense which is cognizable, in
the sense of charging conduct made illegal by statute.” United States v. Moloney,
287 F.3d 236, 240 (2d Cir. 2002). In addressing this issue, the court noted the
defendant explicitly raised a jurisdictional defect claim and not a duplicity claim.
Id. However, the court stated jurisdictional concerns:
are only weakly implicated where it is claimed that an indictment fails
to charge a cognizable offense because it charges a continuing offense
even though Congress did not expressly prohibit a continuing offense.
Because these claims acknowledge the illegality of the individual acts
alleged, they do not truly implicate the possibility of an innocent
person being convicted. Rather, these claims suggest that the form of
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the indictment was wrong, in that it grouped offenses that could have
been validly charged as individual counts into a collective count that,
it might be argued, charges no crime. But claims that the indictment
groups counts impermissibly are sufficiently addressed by the doctrine
of duplicity, which inherently addresses the form of an indictment and
protects against issues of confusion, pretrial notice, and jury
compromises which are not implicated in this case. Raising such
formalistic errors in framing an indictment to the level of
jurisdictional defects exalts form over substance without providing
any additional substantive benefit.
Id.The above-cited language from Moloney supports our interpretation that
Mayberry’s jurisdictional defect argument is actually a duplicity argument.
Moreover, those cases relied on by Mayberry, namely United States v. Kramer, 73
F.3d 1067, 1072 (11th Cir. 1996), and United States v. Conley, 826 F. Supp. 1536,
1544 (W.D. Pa. 1993), also support this interpretation, as those cases refer to
duplicity problems with the allegation of multiple financial transactions in an
indictment, not jurisdictional problems. As these cases demonstrate, Mayberry’s
objections are more appropriate as challenges to a duplicitous indictment, rather
than a true jurisdictional challenge.
One of Mayberry’s codefendants, Marlon Engle, argued on direct appeal that
count two of the indictment was duplicitous. In doing so, Engle cited the Conley
case at length in support of his argument. We rejected Engle’s argument. See
United States v. Pruitt, 174 F.3d 1215, 1221 (11th Cir. 1999). Thus, we reject
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Mayberry’s argument as well, and affirm the district court’s denial of his § 2255
motion.
AFFIRMED.
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