United States Court of Appeals

For the Eighth Circuit

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No. 19-2755

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Armin Harcevic

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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 Submitted: December 18, 2020

Filed: June 9, 2021 

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Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges. 

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LOKEN, Circuit Judge.

In May 2013, Abdullah Ramo Pazara, a Bosnian native and naturalized U.S.

citizen, left the United States and traveled to the Middle East to fight in the Syrian

Civil War. To support the efforts of ethnic Bosnians fighting the military forces of

Syrian President Bashar al-Assad, Pazara solicited aid from fellow Bosnian natives

residing throughout the United States, including Armin Harcevic. Using services

such as Western Union and PayPal, these individuals transferred money to Ramiz
Hodzic on numerous occasions between August 2013 and September 2014. Hodzic

transferred the money he collected to third party intermediaries in other countries who

in turn provided the funds to Pazara and other supporters. Hodzic also purchased

military supplies and shipped them to Pazara. As relevant to this appeal, Harcevic

transferred $1,500 to Hodzic on September 24, 2013.

In September 2014, Pazara died fighting in Syria. A federal grand jury later

indicted Harcevic and five others for supporting Pazara during his time in Syria. The

detailed indictment charged Harcevic with conspiring to provide material support to

terrorists (Count 1), and providing material support to terrorists (Count 3), in

violation of 18 U.S.C. §§ 956(a) and 2339A. It alleged that Pazara and individuals

from Montenegro and Bosnia and Herzegovina traveled to and fought in Syria, Iraq

and elsewhere, with and in support of groups designated by the Secretary of State as

foreign terrorist organizations (“FTOs”), see 8 U.S.C. § 1189, including Al-Qa’ida

in Iraq (AQI), the Islamic State of Iraq and the Levant (ISIL), and the Islamic State

of Iraq and Syria (ISIS). 

Defendants moved to dismiss the indictment, arguing they were immune from

prosecution because Pazara and his fellow fighters were lawful combatants in the

Syrian Civil War, and the lawful combatant immunity defense is jurisdictional. The

magistrate judge recommended (i) the motion to dismiss be denied, but (ii) the

combatant immunity defense turned on disputed issues of fact that should be

submitted to the jury at trial. Ruling on cross objections to these recommendations,

the district court1

 adopted the magistrate’s factual findings. However, the court 

concluded that the combatant immunity defense is an issue of law governed by the

Third Geneva Convention Relative to the Treatment of Prisoners of War (commonly

1The Honorable Catherine D. Perry, United States District Judge for the Eastern

District of Missouri.

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referred to as the “GPW”);2

 that the GPW preempts the common law defense of

combatant immunity referenced in United States v. Palmer, 16 U.S. 610, 635 (1818),

on which defendants relied in their motion to dismiss; that the parties agreed the

Syrian Civil War was a non-international armed conflict; and therefore that Pazara

and his fellow fighters were not lawful combatants within the meaning of Article 2

of the GPW. United States v. Hodzic, 355 F. Supp. 3d 825, 827-30 (E.D. Mo. 2019). 

The court relied in part on the Fourth Circuit’s recent decision in United States v.

Hamidullin, 888 F.3d 62 (4th Cir. 2018), cert. denied, 139 S. Ct. 1165 (2019).

 

After the district court denied defendants’ motion to dismiss and rejected their

combatant immunity defense as a matter of law, Harcevic entered an unconditional

guilty plea to the offenses charged in Counts 1 and 3. At the plea hearing, Harcevic

admitted that he transferred $1,500 to Hodzic for Pazara’s benefit but claimed he did

not learn until after the transfer that Pazara had fought for an FTO called Jaish alMuhajireen wal-Ansar (JMA), rather than for the Free Syrian Army engaged in a civil

war against the Assad regime. When the district court asked Harcevic and counsel

whether this meant there was no factual basis for the plea, Harcevic admitted he knew

at the time of the transfer that Pazara’s combat in Syria constituted murder and

maiming outside the United States; the government agreed this satisfied a critical

element of an 18 U.S.C. § 956(a) offense. 

The district court then noted there was no conditional plea agreement between

the parties. Harcevic’s counsel stated his position that an unconditional plea would 

not waive Harcevic’s asserted jurisdiction defense. The court asked Harcevic if he

understood that he could not withdraw his plea if the appellate court disagreed with

his jurisdictional argument. Harcevic acknowledged he did. The district court then

2Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12,

1949, 6 U.S.T. 3316, 75 U.N.T.S. 135. 

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accepted the plea and subsequently sentenced Harcevic to 66 months imprisonment. 

This appeal followed.

On appeal, Harcevic presents a number of issues, all related to his contention

that Pazara’s alleged status as a lawful combatant prevented the government from

prosecuting him and therefore deprived the district court of subject matter

jurisdiction. Reviewing the issue de novo, we conclude that Harcevic’s unconditional

guilty plea waived the lawful combatant immunity defense and therefore affirm. See

Hamidullin, 888 F.3d at 74 (standard of review).

1. Section 2339A is a provision in Chapter 113B of Title 18, a Chapter entitled

“Terrorism.” Section 2339A makes it a crime to knowingly or intentionally supply

“material support or resources” in violation of one of a lengthy list of statutes that

includes 18 U.S.C. § 956. Section 2339A(b)(1) broadly defines “material support or

resources.” Section 956(a)(1) makes it a crime to “conspire[] with one or more other

persons, regardless of where such other person or persons are located, to commit at

any place outside the United States an act that would constitute the offense of murder,

kidnapping, or maiming if committed in the special maritime and territorial

jurisdiction of the United States.”

Harcevic argues that Pazara was entitled to lawful combatant immunity for his

fighting in Syria, an immunity “rooted in the customary international law of war.” 

Hamidullin, 888 F.3d at 66. In essence, the immunity grants a lawful combatant

protections afforded to prisoners of war:

Lawful combatants are subject to capture and detention as prisoners of

war by opposing military forces. Unlawful combatants are likewise

subject to capture and detention, but in addition they are subject to trial

and punishment by military tribunals for acts which render their

belligerency unlawful.

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Ex parte Quirin, 317 U.S. 1, 31 (1942). Given this immunity, conspiring with or

providing material support or resources to others who are lawful combatants when

they commit murder, kidnapping, or maiming outside the United States is, at least

arguably, a defense to a § 2339A prosecution based on § 956.3

The current doctrine of combatant immunity is codified in the GPW, drafted

in the wake of World War II and ratified by every country in the world, including the

United States. Thus, the GPW has “the force of law in the United States.” 

Hamidullin, 888 F.3d at 66, citing U.S. Const. art. VI, cl. 2. If Article 2 of the GPW

applies to a conflict, its lawful combatants are considered prisoners of war entitled

to combatant immunity. Article 4 of the GPW defines combatants entitled to the

protections of Article 2 as “Prisoners of war . . . belonging to one of the following

categories, who have fallen into the power of the enemy.” 

Article 2 applies only to international conflicts between Geneva Convention

signatories. Id. at 67. Article 3 then provides that, in a non-international conflict,

each signatory shall provide, “as a minimum,” a list of lesser protections including

refraining from passing sentences that have not been pronounced by “a regularly

constituted court.” Federal district courts are “regularly constituted court[s]” within

the meaning of Article 3. See Hamidullin, 888 F.3d at 75, citing 18 U.S.C. § 3231;

see generally Hamdan v. Rumsfeld, 548 U.S. 557, 631-33 (2006); id. at 633-35

(plurality opinion); id. at 728 (Alito, J., dissenting). Thus, district courts have

jurisdiction to try combatants captured during non-international armed conflicts. See

18 U.S.C. § 2338. The explicit statement in Article 3 that its protections are “a

minimum” leads us to question whether the district court was correct in concluding

3A § 2339A prosecution based upon violation of § 956 requires proof that the

defendant provided material support or resources to one or more terrorists, regardless

of their affiliation. By contrast, § 2339B makes it a crime to provide material support

or resources to an FTO. The elements overlap if the terrorist’s membership in an

FTO deprives him of lawful combatant status.

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that the GPW precludes a signatory from extending lawful combatant immunity to

combatants in a specific non-international conflict. But we need not decide that issue

in this case. 

2. Harcevic argues on appeal that his conviction must be reversed because (i)

Pazara fought for the Free Syrian Army engaged in a civil war against the Assad

regime; (ii) President Obama recognized individuals fighting for the FSA as lawful

combatants in the Syrian Civil War; (iii) this action of the Executive Branch granted

Pazara lawful combatant immunity; and therefore (iv) the district court lacked

jurisdiction over Harcevic’s prosecution for supporting Pazara’s combat actions. 

Harcevic bases his jurisdictional argument on dicta in the concluding portion

of Chief Justice Marshall’s opinion in United States v. Palmer. In Palmer, the

Supreme Court considered whether a federal statute criminalizing piracy on the high

seas applied to a robbery committed on the high seas on a vessel belonging to a

foreign state against persons who were foreign subjects. The Court concluded the

statute did not apply and then, in briefly addressing broader questions, observed:

It may be said, generally, that if the government remains neutral, and

recognizes the existence of a civil war, its courts cannot consider as

criminal those acts of hostility which war authorizes, and which the new

government may direct against its enemy. To decide otherwise, would

be to determine that the war prosecuted by one of the parties was

unlawful, and would be to arrange the nation to which the court belongs

against that party. This would transcend the limits prescribed to the

judicial department.

16 U.S. at 635. We find no hint in this passage that Chief Justice Marshall was

addressing the jurisdiction of federal courts to decide cases raising this type of issue. 

Indeed, in Palmer, the Supreme Court exercised its Article III and statutory

jurisdiction to interpret how a federal criminal statute applied to the federal

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prosecution at issue. Yet in arguing defendants’ motion to dismiss to the district

court, Harcevic’s attorney asserted, “this is a jurisdictional issue. It was in Palmer.

. . . It’s a jurisdictional issue, and the reason is that lawful soldiers, you know, people

who are engaging in lawful acts of combat, aren’t to be tried.” Now, appealing the

district court’s decision that Pazara and his cohorts were not, as a matter of law,

lawful soldiers engaging in lawful acts of combat, Harcevic asserts the district court

did not have subject matter jurisdiction to decide the question. We conclude this

assertion is without merit.

“[A] federal court always has jurisdiction to determine its own jurisdiction.” 

United States v. Ruiz, 536 U.S. 622, 628 (2002). In this context, the term

“jurisdiction” refers to “the courts’ statutory or constitutional power to adjudicate the

case.” United States v. Cotton, 535 U.S. 625, 630 (2002) (emphasis in original)

(quotation omitted). The power of federal courts to adjudicate criminal cases flows

from 18 U.S.C. § 3231, which vests federal district courts with original jurisdiction

over “all offenses against the laws of the United States.” United States v. Hayes, 574

F.3d 460, 471-72 (8th Cir. 2009), quoting § 3231. “It is firmly established in our

cases that the absence of a valid (as opposed to arguable) cause of action does not

implicate subject matter jurisdiction.” Steel Co. v. Citizens for a Better Env’t, 523

U.S. 83, 89 (1998). For example, in United States v. Pemberton, we held that a

defendant’s disputed Indian status did not affect the district court’s jurisdiction over

a prosecution that required proof he was an Indian; because “a guilty plea admits

factual allegations in the indictment that form the basis for federal jurisdiction,”

Pemberton’s guilty plea waived the issue. 405 F.3d 656, 659 (8th Cir. 2005). 

In cases dating back to the 1800s, the Supreme Court has distinguished defects

in indictments -- errors affecting the merits of a case -- from a federal court’s

jurisdiction to adjudicate the criminal case. As Justice Holmes put it for a unanimous

Court in Lamar v. United States: 

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Jurisdiction is a matter of power, and covers wrong as well as right

decisions. . . . [T]he district court, which has jurisdiction of all crimes

cognizable under the authority of the United States, acts equally within

its jurisdiction whether it decides a man to be guilty or innocent under

the criminal law, and whether its decision is right or wrong. The

objection that the indictment does not charge a crime against the United

States goes only to the merits of the case.

240 U.S. 60, 64-65 (1916) (citations omitted); see United States v. Williams, 314 U.S.

58, 68-69 (1951) (federal courts do not lack jurisdiction merely because “the facts

stated in the indictment do not constitute a crime”); Cotton, 535 U.S. at 630-31. 

Here, the indictment charged in great detail that Pazara fought for FTOs like

AQI and ISIS, and that Harcevic conspired with Hodzic and others to provide

material support and resources to Pazara and others committing acts outside the

United States that would be offenses of murder and maiming if committed in this

country. The district court had jurisdiction to adjudicate whether the indictment

charged Harcevic with conduct that violated 18 U.S.C. §§ 2339A and 956. See 18

U.S.C. § 3231. Like other courts, we agree with the government that Harcevic’s

assertion that Pazara was entitled to lawful combatant immunity is an affirmative

defense. See Hamidullin, 888 F.3d at 72 (the combatant immunity defense “does not

deprive the district court of its authority to hear Hamidullin’s case”), aff’g 114 F.

Supp. 3d 365, 381 (E.D. Va. 2015); accord United States v. Harun, 258 F. Supp. 3d

265, 273 n.6 (E.D.N.Y. 2017), aff’d, 922 F.3d 129 (2d Cir.), cert. denied, 140 S. Ct.

208 (2019); United States v. Khadr, 717 F. Supp. 2d 1215, 1223 (Ct. Mil. Comm’n

Rev. 2007); United States v. Lindh, 212 F. Supp. 2d 541, 557 & n.36 (E.D. Va. 2002). 

To our knowledge, no court has held that lawful combatant immunity is anything

other than an affirmative defense, as it was treated in United States v. Farah, 899 F.3d

608, 615 (8th Cir. 2018), cert. denied, 139 S. Ct. 1275 (2019). Harcevic’s affirmative

defense is an attack on the merits of the government’s prosecution rather than the

district court’s jurisdiction.

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3. The jurisdiction issue is important because it is well-established that “[a]

valid guilty plea is an admission of guilt that waives all non-jurisdictional defects and

defenses.” United States v. Limley, 510 F.3d 825, 827 (8th Cir. 2007); see Tollett v.

Henderson, 411 U.S. 258, 267 (1973).

Application of this general rule has raised difficult issues. A divided Supreme

Court recently held that a guilty plea “by itself” does not “bar[] a federal criminal

defendant from challenging the constitutionality of the statute of conviction on direct

appeal.” Class v. United States, 138 S. Ct. 798, 803 (2018). The Court noted that 

prior decisions had held that a guilty plea bars on appeal claims of some, but not all,

“antecedent constitutional violations.” Id. A valid plea “relinquishes any claim that

would contradict the ‘admissions necessarily made upon entry of a voluntary plea of

guilty.” Id. at 805, quoting United States v. Broce, 488 U.S. 563, 573-74 (1989). But

a plea does not bar a claim that implicates “the very power of the State” to prosecute

the defendant. Id. at 803, quoting Blackledge v. Perry, 417 U.S. 21 (1974), and citing

Menna v. New York, 423 U.S. 61 (1975). 

Harcevic argues that his lawful combatant immunity defense falls within these

exceptions. We disagree. Unlike the defendant in Class, Harcevic does not challenge

“the constitutionality of the statute of conviction.” United States v. Jennings, 930

F.3d 1024, 1027 (8th Cir. 2019). Harcevic asserts that, like the constitutional claim

in Class, his assertion of a lawful combatant immunity defense challenges “the very

power of the Government to bring the prosecution and secure the conviction.” But

this is nothing more than a claim “that the indictment does not charge a crime against

the United States,” Lamar, 240 U.S. at 65, which does not deprive the district court

of jurisdiction to decide the issue and which, like other affirmative fact-based

defenses, is waived by a valid unconditional guilty plea. 

Harcevic attempts to put a separation-of-powers gloss on the claim by asserting

that only the Executive Branch may decide who is entitled to lawful combatant

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immunity. But here, Congress granted the district court “original jurisdiction . . . of

all offenses against the laws of the United States,” 18 U.S.C. § 3231, and the

Executive Branch invoked the district court’s jurisdiction by prosecuting Harcevic

for violations of § 2339A and § 956 and then arguing to the court that Harcevic is not

entitled to the lawful combatant immunity defense. Harcevic’s unsuccessful assertion

of that defense followed by a voluntary plea of guilty does not entitle him to the

proverbial get-out-of-jail-free card.

Harcevic’s guilty plea “is the equivalent of admitting all material facts alleged

in the charge.” United States v. Carnahan, 684 F.3d 732, 737 (8th Cir.), cert. denied,

568 U.S. 1016 (2012); see Pemberton, 405 F.3d at 659. The indictment alleged that

Pazara fought for designated FTOs and engaged in acts that would constitute the

offense of murder or maiming if committed in the United States. Harcevic’s assertion

that Pazara was involved with the Free Syrian Army and was therefore entitled to

lawful combatant immunity directly “contradict[s] the terms of the indictment.” 

Class, 138 S. Ct. at 804; see Broce, 488 U.S. at 576 (“admissions inherent in . . .

guilty pleas” foreclose claims contradicting the indictment). Therefore, Harcevic’s

unconditional guilty plea failed to preserve his lawful combatant immunity claim for

appeal. See Class, 138 S. Ct. at 805.4

The judgment of the district court is affirmed.

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4

If Harcevic wished to avoid trial but preserve the issues he is raising on 

appeal, he could have sought the consent of the government and the court to enter a

conditional plea of guilty. See Fed. R. Crim. P. 11(a)(2); Limley, 510 F.3d at 827;

Fed. R. Crim. P. 11, Advisory Committee’s Notes on 1983 Amendments. 

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