United States v. Danielle Lenise Brown , 752 F.3d 1344 ( 2014 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10023
________________________
D.C. Docket No. 4:12-cr-00083-BAE-GRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIELLE LENISE BROWN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(May 28, 2014)
Before CARNES, Chief Judge, HULL and GARZA, * Circuit Judges.
HULL, Circuit Judge:
*
Honorable Emilio M. Garza, United States Circuit Judge for the Fifth Circuit, sitting by
designation.
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Defendant-Appellant Danielle Brown pled guilty to knowingly receiving
481 counterfeit United States Postal Money Orders from a foreign country with the
intent to pass and publish these same counterfeit money orders as true, in violation
of 18 U.S.C. § 473. As part of her plea deal, Brown expressly agreed to waive any
appeal to her conviction or sentence. Nonetheless, Brown now appeals her
conviction and sentence, contending—for the first time—that her indictment was
defective because it did not expressly allege the mens rea element of the § 473
offense. Brown argues that this omission from the indictment deprived the district
court of jurisdiction to accept her guilty plea, thus rendering her conviction and
sentence null and void. After careful review of the briefs and the record, and with
the benefit of oral argument, we affirm Brown’s conviction and sentence.
I. BACKGROUND
A. Offense Conduct
In June 2011, federal agents intercepted a package mailed from Nigeria to
Brown containing 361 counterfeit money orders totaling $351,975. When agents
questioned her, Brown admitted that she received another such package earlier and
was expecting to receive the package that was intercepted. She was not prosecuted
for that conduct. Instead, she signed a “Voluntary Discontinuance Agreement” in
which she (1) admitted receiving notice that the money orders were counterfeit, (2)
acknowledged that similar conduct in the future could result in criminal
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prosecution, and (3) agreed not to engage in such conduct. However, on March 16,
2012, federal agents intercepted another package destined for Brown, this one sent
from Ghana and containing 481 counterfeit money orders totaling $471,380. An
undercover agent delivered the package to Brown, and she accepted it, stating that
she was waiting on its delivery. A search of her apartment later turned up an
additional $217,696 in counterfeit money orders and cashier’s checks. That search
also revealed two U.S. Customs and Border Protection “notice of seizure letters”
informing Brown that federal agents had seized two additional packages containing
counterfeit money orders that amounted to a total of $688,035. Brown admitted
that she read both of the letters.
Brown’s role in the illegal counterfeiting scheme was to act as a
“dispatcher.” She would receive counterfeit money orders and send them to other
people in the United States, either through the United States Postal Service (using
counterfeit postage) or through Western Union, under a false name. For her
efforts, Brown received $400 a month. Brown does not dispute that she knew her
actions were illegal by at least July 2011, but she nevertheless continued to
participate. In April 2012, she was indicted for these crimes.
B. Brown’s Indictment
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Brown’s indictment at issue here alleged two counts. Both were based on
Brown’s receipt of the March 2012 package from the undercover agent. Count
One charged Brown with receiving the counterfeit money orders:
That on or about March 21, 2012 . . . Brown, with the intent that the
same be passed, published and used as true and genuine, did receive
counterfeited obligations of the United States, that being
approximately 481 counterfeit United States Postal Money Orders
with a face value of $471,380, in violation of title 18, United States
Code, Section 473.
Although the statute itself, 18 U.S.C. § 473, contains no mens rea
requirement, it is well established that the required mental state for this crime is
knowledge––a defendant must know that the instrument at issue was counterfeit.
See United States v. Carll, 105 U.S. 611, 613 (1881). However, the indictment did
not explicitly allege in Count One that Brown knew the postal money orders were
counterfeit at the time she received them.
Count Two of the indictment charged Brown with knowingly importing
these counterfeit money orders:
That on or about and between March 10, 2012 and March 21,
2012 . . . Brown, aided and abetted by others unknown to the grand
jury, did fraudulently and knowingly, clandestinely import into the
United States merchandise contrary to law, that being approximately
481 counterfeit United States Postal Money Orders with a face value
of $471,380, in violation of Title 18, United States Code, Section 545.
(emphasis added)
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The government contends that Counts One and Two should be read together;
in other words, because Count Two uses the word “knowingly” to allege a
different crime based on the same conduct that is described in Count One, the
indictment as a whole charged Brown with knowing the counterfeit nature of the
money orders.
In any event, Brown entered into a written plea agreement with the
government in which she agreed to plead guilty to Count One in exchange for the
dismissal of Count Two. Brown also agreed to waive, “[t]o the maximum extent
permitted by federal law, . . . the right to appeal the conviction and sentence and
the right to collaterally attack the sentence in any post-conviction proceeding,
including a § 2255 proceeding, on any ground.” The agreement recited the
elements of the § 473 offense to which she would plead guilty, including the
element that “the defendant then knew that the Postal Money Orders were
counterfeit.” (emphasis added). She also gave up “any defenses to the charges.”
However, the factual basis for the plea tracked the language of the indictment
exactly––that is, it did not say that she knowingly received the counterfeit
instruments.
At the plea hearing, the district court read the allegations contained in the
indictment to Brown. The court explained that by pleading guilty to Count One,
Brown was admitting that she “received counterfeit obligation[s] of the United
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States postal money orders” and that she “knew the postal money orders were not
true; that in fact they were counterfeit” (emphasis added). Brown agreed with
these statements.
The district court then heard testimony from the federal agent involved in
the investigation, Tyrone Tawil. Agent Tawil testified that, when he interviewed
Brown, she “admitted to me that she knew [the money orders] w[ere] counterfeit
and she knew that it was wrong, but she continued to do it for the money.” Brown
then confirmed that everything Agent Tawil said was true. The court indicated its
satisfaction with the factual basis for the plea and accepted it.
In preparation for sentencing, the probation office compiled a presentence
investigation report (PSR) which calculated Brown’s offense level to be 24 and her
criminal history category to be I. That combination yielded a guidelines sentence
range of 51 to 63 months’ imprisonment. Brown did not object to the sentence or
raise the indictment’s alleged deficiency before the district court. She did file
several objections to the PSR related to enhancements or adjustments in her
offense level, but the district court overruled them and adopted the PSR. The court
accordingly sentenced her to 63 months’ imprisonment.
II. DISCUSSION
Brown appeals her conviction and sentence. For the first time in her case,
Brown alleges that the indictment was defective on its face because Count One did
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not include the required mens rea, an essential element of the § 473 crime. As a
result of this omission, Brown contends that the indictment does not state a federal
crime and that the district court never had jurisdiction to sentence her.
In response, the government argues that Brown’s indictment has no defect
because the mens rea element can be inferred from other language in Count One.
See United States v. Gray, 260 F.3d 1267, 1283 (11th Cir. 2001) (holding that a
mens rea element “may be inferred from other allegations in the indictment”).
Second, the government argues that the allegations in Count Two provide the mens
rea element because Count Two charges Brown with “knowingly” importing the
counterfeit money orders into the United States. See United States v. Lang, 732
F.3d 1246, 1249 (11th Cir. 2013) (holding that the lenient standard applicable to
indictments challenged for the first time on appeal allows a court to “consider the
content of other counts of the indictment in order to give context to the challenged
count so long as the defendant fails to show actual prejudice”).
We need not reach these two arguments because even assuming Brown’s
indictment omits a required element of the offense and is defective, we agree with
the government that this type of indictment defect is not jurisdictional and was
waived by Brown’s guilty plea.
“A guilty plea, since it admits all the elements of a formal criminal charge,
waives all nonjurisdictional defects in the proceedings against a defendant.”
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United States v. Fairchild, 803 F.2d 1121, 1124 (11th Cir. 1986) (quoting United
States v. Jackson, 659 F.2d 73, 74 (11th Cir. 1981)); see also United States v. Patti,
337 F.3d 1317, 1320 (11th Cir. 2003) (“Generally, a voluntary, unconditional
guilty plea waives all nonjurisdictional defects in the proceedings.”). On the other
hand, jurisdictional error “can never be waived by parties to litigation” because it
“implicates a court’s power to adjudicate the matter before it.” United States v.
Peter, 310 F.3d 709, 712 (11th Cir. 2002). Therefore, the pivotal question here is
whether Brown’s claim that her indictment was defective for omitting the mens rea
element is jurisdictional in nature.
Although this Court has not faced the precise indictment question presented
in this case, we have addressed omissions in indictments before, including where
an indictment omits an element of the charged crime. And, in each case, we have
found this type of indictment defect to be non-jurisdictional. We review these
cases first.
A. Non-jurisdictional Indictment Defects
In Alikhani v. United States, 200 F.3d 732 (11th Cir. 2000), the defendant
pled guilty to an indictment charging him with violating executive orders and
regulations forbidding all exports to and certain transactions with Libya. Id. at
733. Much later, Alikhani, a Cypriot, filed a coram nobis petition arguing that (1)
the regulations and executive orders could apply only to U.S. persons, and (2) the
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indictment’s failure to allege that he was a U.S. person rendered the indictment
defective. Id. at 734. He further contended that this indictment defect stripped the
district court of jurisdiction. Id.
This Court acknowledged that a “genuine claim that the district court lacked
jurisdiction to adjudicate the petitioner guilty may well be a proper ground for
coram nobis relief as a matter of law.” Id. But this Court said that Alikhani’s
“statutory arguments, even if meritorious, would not implicate the district court’s
subject-matter jurisdiction.” Id. Even if the government had to prove that
Alikhani was a U.S. person, and even if the indictment failed to allege that
Alikhani was a U.S. person, “the district court would still have had subject-matter
jurisdiction over the case.” Id. at 735.
The Court explained that “[s]ubject-matter jurisdiction defines the court’s
authority to hear a given type of case,” and that “Congress bestows that authority
on lower courts by statute.” Id. at 734. For federal crimes, Congress did so in 18
U.S.C. § 3231, providing district courts with “original jurisdiction, exclusive of the
courts of the States, of all offenses against the laws of the United States.” 18
U.S.C. § 3231. As such, all that mattered for purposes of the district court’s
subject-matter jurisdiction was that “[t]he United States filed an indictment
charging Alikhani with violating ‘laws of the United States.’” Alikhani, 200 F.3d
at 734. This empowered the district court under § 3231 “to enter judgment upon
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the merits of the indictment, such as dismissing the indictment on the ground that it
does not allege facts showing that the defendant committed the charged offense.”
Id. at 734-35. This Court noted that Alikhani “has cited no case . . . holding that
the failure of an indictment to state an offense—as Alikhani at bottom contends
here—divests the district court of the power even to enter a judgment of acquittal.”
Id. 1
Accordingly, Alikhani’s arguments were not jurisdictional and could not be
raised for the first time in a coram nobis petition. Id. For purposes of this case, it
is important to note that Alikhani essentially argued that (1) U.S.-person status was
an element of the offense and (2) the indictment’s failure to allege this element
deprived the district court of jurisdiction. But this Court held that even if the
indictment had to allege that Alikhani was a U.S. person, the district court still had
jurisdiction. In other words, the indictment’s failure to allege U.S.-person status
was not a jurisdictional defect—even if U.S.-person status were an element of the
charged offense.
Additionally, in a trilogy of cases decided in the fall of 2001, this Court held
that an indictment’s omission of an element of the crime does not create a
1
The Alikhani Court used two analogies to support its conclusion that the alleged
indictment omission did not deprive the district court of jurisdiction over Alikhani’s case. First,
in the civil law context, “the absence of a valid (as opposed to arguable) cause of action does not
implicate subject-matter jurisdiction, i.e., the courts’ statutory or constitutional power to
adjudicate the case.” Alikhani, 200 F.3d at 735. Second, courts have rejected similar assertions,
for example “that a failure of allegation or proof on an interstate-commerce element deprives the
district court of jurisdiction.” Id.
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jurisdictional defect. United States v. Sanchez, 269 F.3d 1250, 1273-75 (11th Cir.
2001) (en banc); United States v. Cromartie, 267 F.3d 1293, 1295-97 (11th Cir.
2001); McCoy v. United States, 266 F.3d 1245, 1248-49 (11th Cir. 2001). In all
three cases, the defendants challenged the jurisdiction of the district court on the
basis that their indictments were defective under Apprendi v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348 (2000). The Supreme Court held in Apprendi that, except for
a prior conviction, any fact that increases the statutory-maximum penalty for a
crime is an element of the charged offense and must be charged in the indictment,
submitted to a jury, and proved beyond a reasonable doubt. See id. at 476, 490,
120 S. Ct. at 2355, 2362-63. The Apprendi Court reached this conclusion because
this type of sentencing fact is the “functional equivalent of an element of a greater
offense than the one covered by the jury’s guilty verdict.” Id. at 494 n.19, 120 S.
Ct. at 2365 n.19.
The defendants in McCoy, Cromartie, and Sanchez all received enhanced
sentences applicable to drug offenses involving certain drug types and drug
quantities. McCoy, 266 F.3d at 1247; Cromartie, 267 F.3d at 1295; Sanchez, 269
F.3d at 1256-57. But their respective indictments did not allege the threshold
levels of drug quantity required to trigger these enhanced penalties. McCoy, 266
F.3d at 1247; Cromartie, 267 F.3d at 1295; Sanchez, 269 F.3d at 1253. The three
defendants argued that the district court lacked jurisdiction “because the grand jury
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failed to set forth the critical element[] of . . . drug quantity in the indictment.”
Cromartie, 267 F.3d at 1295; see also McCoy, 266 F.3d at 1247-48; Sanchez, 269
F.3d at 1270.
This Court squarely rejected the jurisdictional argument in all three cases.
In McCoy, the Court explained that “[a] jurisdictional defect is one that strips the
court of its power to act and makes its judgment void.” 266 F.3d at 1249
(quotation marks and alterations omitted). But “[t]he constitutional right to be
charged by a grand jury is a personal right of the defendant and does not go to the
district court’s subject matter jurisdiction because it may be waived.” Id. (citing to
Rule 7(b) of the Federal Rules of Criminal Procedure, which allows a defendant to
waive in open court prosecution by indictment). In other words, “the constitutional
right to be charged by grand jury indictment simply does not fit the mold of a
jurisdictional defect, because it is a right that plainly may be waived.” Id.
The McCoy Court’s conclusion was buttressed by many prior cases in which
this Court employed a plain or harmless error analysis to Apprendi and analogous
indictment errors. Id. at 1249 & n.4 (collecting cases). If such indictment defects
were jurisdictional, this Court could not have used plain or harmless error to affirm
the sentences in those cases. Id. at 1249. Even further, other circuits explicitly
held that “‘the failure of an indictment to allege an essential element of a crime
does not deprive a district court of subject matter jurisdiction; rather, such a failure
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is subject to harmless error review.’” Id. (quoting United States v. Prentiss, 256
F.3d 971, 981 (10th Cir. 2001) (en banc)).
This Court applied McCoy’s holding and rationale in Cromartie, again
rejecting the argument that the omission of the drug-type and-quantity elements in
the defendant’s indictment deprived the district court of jurisdiction. Cromartie,
267 F.3d at 1297. The Court noted that this type of indictment defect “was
analogous to the omission of an element in a jury instruction,” an error that is
subject to harmless error analysis. Id.
Subsequently, the Sanchez en banc Court held that the alleged omission of
an element from the indictment was not jurisdictional. 269 F.3d at 1273-75. The
en banc Court explained that “[a] jurisdictional defect occurs only where a federal
court lacks power to adjudicate at all. The constitutional rights to be charged by a
grand jury, be informed of an accusation, and to have a jury trial are the personal
rights of the defendant and do not go to the district court’s subject matter
jurisdiction.” Id. at 1273-74. The Sanchez en banc Court therefore found no
jurisdictional defect, even though the “indictment failed to allege an element of the
charged offense.” Id. at 1275 n.48.
The following spring, the Supreme Court decided the very question
presented in Sanchez, Cromartie, and McCoy. In United States v. Cotton, the
defendants argued that the district court lacked jurisdiction to impose an enhanced
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sentence because their indictment failed to allege the drug-quantity element. See
Cotton, 535 U.S. at 627-28, 122 S. Ct. at 1783. The Cotton defendants raised this
alleged indictment defect for the first time on appeal. Id. at 628-29, 122 S. Ct. at
1784. The Fourth Circuit vacated the sentences, reasoning that “because an
indictment setting forth all the essential elements of an offense is both mandatory
and jurisdictional, a [district] court is without jurisdiction to impose a sentence for
an offense not charged in the indictment.” Id. at 629, 122 S. Ct. at 1784 (quotation
marks omitted and alterations adopted).
A unanimous Supreme Court reversed the Fourth Circuit’s holding that the
omission of an element from the indictment deprived the district court of
jurisdiction. Noting that the Fourth Circuit’s view stemmed from Ex parte Bain,
121 U.S. 1, 7 S. Ct. 781 (1887), the Cotton Court explained that “Bain’s elastic
concept of jurisdiction is not what the term ‘jurisdiction’ means today, i.e., the
courts’ statutory or constitutional power to adjudicate the case.” Cotton, 535 U.S.
at 630, 122 S. Ct. at 1785 (quotation marks omitted). “This latter concept of
subject-matter jurisdiction, because it involves a court’s power to hear a case, can
never be forfeited or waived. Consequently, defects in subject-matter jurisdiction
require correction regardless of whether the error was raised in district court. In
contrast, the grand jury right can be waived.” Id. (citations omitted).
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The Cotton Court explained that “[p]ost-Bain cases confirm that defects in
an indictment do not deprive a court of its power to adjudicate a case.” Id. at 630-
31, 122 S. Ct at 1785. “Thus, this Court some time ago departed from Bain’s view
that indictment defects are ‘jurisdictional.’” Id. at 631, 122 S. Ct. at 1785. Insofar
as [Bain] held that a defective indictment deprives a court of jurisdiction, Bain is
overruled.” Id. The Supreme Court declared itself “[f]reed from the view that
indictment omissions deprive a court of jurisdiction.” Id.
This review of the relevant precedent shows that an omission of an element
from an indictment does not deprive the district court of jurisdiction, contrary to
Brown’s contention in this case.2 Cotton, Sanchez, Cromartie, McCoy, and
Alikhani all indicate that the omission of an element from the indictment is non-
jurisdictional.
Brown attempts to distinguish these cases on the ground that most of them
dealt with the omission of an Apprendi element—as opposed to the omission of a
mens rea element. But this argument overlooks Apprendi’s central lesson: that
sentencing factors –– “any fact[s] that increase[] the penalty for a crime beyond the
prescribed statutory maximum,” –– are essential elements of the offense that must
be included in the indictment and “proved beyond a reasonable doubt.” 530 U.S.
2
To the extent Brown suggests that United States v. Carll, 105 U.S. 611 (1881) supports
her argument, we note that the Supreme Court in Carll addressed only the sufficiency of an
indictment—not the district court’s jurisdiction. See id. at 613. Instead, the Supreme Court’s
decision in Cotton and the cases cited therein discuss the impact of indictment defects on the
district court’s subject-matter jurisdiction.
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at 490, 120 S. Ct. at 2362–63. Therefore, the omitted elements in Cotton, Sanchez,
Cromartie, and McCoy were just as essential as the omitted mens rea element in
Brown’s case. And, the indictment omission in Brown’s case is just as non-
jurisdictional as it was in Cotton, Sanchez, Cromartie, and McCoy. 3
This conclusion is also supported by a comparison with the few cases where
this Court has found a jurisdictional defect in an indictment. In those cases, the
indictments failed to invoke the district court’s subject-matter jurisdiction over all
offenses against the laws of the United States. We closely examine those cases too
because doing so helps demonstrate both what makes an indictment defect
jurisdictional and why Brown’s indictment defect is not jurisdictional.
B. Jurisdictional Indictment Defects
Perhaps the best place to start is United States v. Peter, 310 F.3d 709 (11th
Cir. 2002). There, Peter pled guilty to specific conduct that the Supreme Court
ultimately determined did not constitute a crime. Id. at 710–11. Peter’s conviction
3
Our sister circuits have reached the same conclusion, applying Cotton and its non-
jurisdictional rule not only to drug cases with enhanced penalties but also to other federal crimes
where an indictment omitted an essential element of the charged offense. See, e.g., United States
v. Scruggs, 714 F.3d 258, 262-64 (5th Cir.), cert. denied, 134 S. Ct. 336 (2013) (citing Cotton
and rejecting the defendant’s argument that the district court lacked jurisdiction because the
information for “honest-services fraud” failed to allege the judicially-created element of a
“bribe,” and thus stated a non-offense); United States v. George, 676 F.3d 249, 259-60 (1st Cir.
2012) (same); see also United States v. Rayborn, 312 F.3d 229, 231 (6th Cir. 2002) (holding,
without citing Cotton, that while the interstate-commerce requirement is an “essential element”
of the federal-arson statute, it “is not jurisdictional in the sense that it affects a court’s subject
matter jurisdiction, i.e., a court’s constitutional or statutory power to adjudicate a case,” and that
the district court therefore erred when it dismissed the indictment for lack of subject-matter
jurisdiction because the interstate-commerce element was missing in the indictment).
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was predicated on mail fraud; he admitted to making misrepresentations on
applications for alcohol licenses which he mailed to state authorities. Id. at 711.
But after Peter pled guilty and served his sentence, the Supreme Court held in
Cleveland v. United States that the offense of mail fraud requires the object of the
fraud to be property in the hands of the victim. 531 U.S. 12, 15, 121 S. Ct. 365,
368 (2000). The Supreme Court also concluded that state and municipal licenses
do not rank as “property” in the hands of the official licensor for purposes of the
mail fraud statute. Id.
Given that Peter’s indictment alleged that the property in the victim’s hands
was a state license, those very allegations in the indictment affirmatively negated
that Peter committed the offense of mail fraud. For that reason, the Peter Court
granted coram nobis relief, rejecting the government’s contention that the
indictment defect was non jurisdictional and therefore waived. 310 F.3d at 714-16.
As the Peter Court explained, the government’s “proof of the alleged
conduct, no matter how overwhelming, would [bring] it no closer to showing the
crime charged than would . . . no proof at all.” Id. at 715. The problem is not that
the government failed to allege a fact or an element that would have made the
indictment’s criminal charge complete. Instead, “it is that the Government
affirmatively alleged a specific course of conduct that is outside the reach of the
mail fraud statute.” Id. Importantly, “Peter’s innocence of the charged offense
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appears from the very allegations made in the superseding information, not from
the omission of an allegation requisite to liability.” Id.
The Peter Court noted the critical distinction between mere “indictment
omissions,” which are non-jurisdictional defects, and “the affirmative allegation of
specific conduct that is not proscribed by the charging statute,” which is a
jurisdictional defect. Id. at 714. Put differently, there is no jurisdictional defect
when the “indictment fail[s] to allege an element of the charged offense,” but there
is one when the indictment affirmatively alleges conduct that does not constitute a
crime at all because that conduct falls outside the sweep of the charging statute. Id.
Brown’s indictment omitted the mens rea element, but that is merely “an allegation
requisite to liability,” which Peter teaches does not implicate a court’s jurisdiction.
Id. at 715.
The other cases in which this Court has found a jurisdictional indictment
defect further demonstrate this point. In United States v. Meacham, 626 F.2d 503
(5th Cir. 1980),4 the indictment charged a conspiracy to attempt to import
marijuana, but there was no such “conspiracy to attempt” offense enacted in the
United States Code. Id. at 509-10. Because the Meacham indictment contained
affirmative allegations of conduct that was not a crime against the laws of the
4
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
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United States, the indictment did not invoke the district court’s jurisdiction to enter
judgment or accept a guilty plea.5 Id.
Similarly, in United States v. Izurieta, 710 F.3d 1176 (11th Cir. 2013), the
indictment contained an affirmative allegation that the defendant violated a
regulation that carried only civil penalties and was not intended to impose criminal
liability. Id. at 1179. Thus, the indictment affirmatively alleged facts that
negated a crime against the laws of the United States, leaving the district court
without jurisdiction. See id.
In other words, Meacham, Peter, and Izurieta are examples of indictments
that affirmatively allege facts that conclusively negated the existence of any
offense against the laws of the United States. These cases involve indictments
charging (1) a crime that simply did not exist in the United States Code, Meacham,
626 F.2d at 505, 509-10; (2) conduct that undoubtedly fell outside the sweep of the
mail fraud statute, Peter, 310 F.3d at 710–11; and (3) a violation of a regulation
that was not intended to be a “law” for purposes of criminal liability, Izurieta, 710
F.3d at 1179, 1184. In those specific and narrow circumstances, a district court
5
Meacham, a pre-1981 decision from the Fifth Circuit, remains good law in our Circuit.
It is worth noting that, in light of Cotton, the Fifth Circuit has “disavowed Meacham’s
classif[ication] as jurisdictional the requirement that the indictment state an offense.” Scruggs,
714 F.3d at 263 (quoting United States v. Cochran, 302 F.3d 279, 283 (5th Cir. 2002)). But,
consistent with our decision today, the Fifth Circuit explained that “the statutory offense alleged
in the [Meacham] indictment did not exist,” and that Meacham “may remain good law in that
very narrow circumstance because an indictment that charges a violation of a non-statute does
not give rise to subject matter jurisdiction under [18 U.S.C.] § 3231.” Scruggs, 714 F.3d at 263
n.22.
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indeed lacks subject-matter jurisdiction because the indictment fails to invoke the
district court’s statutory authority under 18 U.S.C. § 3231 over “offenses against
the laws of the United States.” See Alikhani, 200 F.3d at 734-35 (holding that the
district court’s subject matter jurisdiction depends on whether the indictment
charged the defendant with violating “laws of the United States”).
Both Peter and Izurieta acknowledged Cotton, where the Supreme Court
stated that “defects in an indictment do not deprive a court of its power to
adjudicate a case.” 535 U.S. at 631, 122 S. Ct at 1785. Notably, this Court
concluded in Izurieta that Cotton did not alter “our established precedent
recognizing that the failure to allege a crime in violation of the laws of the United
States is a jurisdictional defect.” Izurieta, 710 F.3d at 1179; see also Peter, 310
F.3d at 714 (“[T]he Supreme Court [in Cotton] did not address whether the
insufficiency of an indictment assumes a jurisdictional dimension when the only
facts it alleges, and on which a subsequent guilty plea is based, describe conduct
that is not proscribed by the charging statute.”).
Thus, we learn from our case law that in examining whether an indictment
defect is jurisdictional, we must ask the question whether the indictment charged
the defendant with a criminal “offense[] against the laws of the United States.” In
Brown’s case, the answer is yes. The indictment charged Brown with violating 18
U.S.C. § 473, a valid federal statute in the United States Code. Brown’s
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indictment not only cites the statute, it also tracks the statutory language of § 473
in its entirety. As such, § 3231 empowered the district court with jurisdiction to
act over Brown’s indictment. See Alikhani, 200 F.3d at 734-35.
The district court’s power over Brown’s case did not vanish simply because
the indictment omitted one element of the charged offense. The omission of an
element may render the indictment insufficient, see, e.g., Lang, 732 F.3d at 1247
(holding that an indictment must set forth all essential elements of the offense),
but it does not strip the district court of jurisdiction over the case, see Cotton, 535
U.S. at 630-31, 122 S. Ct. at 1785; Sanchez, 269 F.3d at 1273-75; Cromartie, 267
F.3d at 1295-97; McCoy, 266 F.3d at 1249; Alikhani, 200 F.3d at 734-35 (all
holding that the omission of an essential element of the offense does not deprive
the district court of jurisdiction over the case); see also Peter, 310 F.3d at 714-15.
So long as the indictment charges the defendant with violating a valid
federal statute as enacted in the United States Code, it alleges an “offense against
the laws of the United States” and, thereby, invokes the district court’s subject-
matter jurisdiction. Alikhani, 200 F.3d at 734-35. The omission of an element of
that offense does not mean that the indictment fails to do so, see id.; it means only
that the indictment is missing “an allegation requisite to liability,” Peter, 310 F.3d
at 715. This may allow the defendant to argue before a guilty plea that the
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indictment is insufficient and should be dismissed—but it does not deprive the
district court of jurisdiction to act over the indictment or to accept a guilty plea. 6
In sum, we hold that the omission from indictment of an element of the
charged offense is a non-jurisdictional defect. Given that the omission in Brown’s
indictment is not jurisdictional, Brown waived any challenge to her indictment in
two different ways: First, she entered into an unconditional guilty plea; second, she
signed an appeal waiver. Either one of these actions alone waived Brown’s belated
challenge to the indictment. See Fairchild, 803 F.2d at 1124; Jackson, 659 F.2d at
74; Patti, 337 F.3d at 1320.
III. CONCLUSION
For the foregoing reasons, we affirm Brown’s conviction and sentence.
6
We note that Brown makes no argument that the statute charged in her indictment is
preempted or unconstitutional. See United States v. Tomeny, 144 F.3d 749, 751 (11th Cir. 1998)
(stating that a defendant’s argument that the charged statute was preempted is a jurisdictional
claim); United States v. Saac, 632 F.3d 1203, 1208 (11th Cir. 2011) (stating that a defendant’s
argument that the charged statute was unconstitutional is a jurisdictional claim).
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