1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-16-1999

USA v. Spinner

Precedential or Non-Precedential:

Docket 98-7353

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Recommended Citation

"USA v. Spinner" (1999). 1999 Decisions. Paper 154.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/154
Filed June 16, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 98-7353 

UNITED STATES OF AMERICA 

v. 

WILLIAM H. SPINNER, III, 

 Appellant 

APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

(D.C. Criminal No. 97-cr-00143) 

(District Judge: Honorable Sylvia H. Rambo) 

ARGUED MARCH 25, 1999 

BEFORE: BECKER, Chief Judge, LEWIS, 

and WELLFORD,* Circuit Judges. 

(Filed June 16, 1999) 

 PETER B. FOSTER (ARGUED) 

 Pinskey & Foster 

 121 South Street 

 Harrisburg, PA 17101 

 Attorney for Appellant 

_________________________________________________________________ 

*Honorable Harry W. Wellford, Senior Circuit Judge for the United States 

Court of Appeals for the Sixth Circuit, sitting by designation. 
 DENNIS C. PFANNENSCHMIDT 

 THEODORE B. SMITH, III (ARGUED) 

 Office of United States Attorney 

 Federal Building 

 228 Walnut Street 

 P.O. Box 11754 

 Harrisburg, PA 17108 

 Attorneys for Appellee 

OPINION OF THE COURT 

LEWIS, Circuit Judge. 

Appellant William H. Spinner, III, appeals the judgment 

of conviction of the United States District Court for the 

Middle District of Pennsylvania. Because the District Court 

lacked jurisdiction over the indictment, we will reverse 

Spinner's conviction and vacate this case to the District 

Court so that Spinner may be reindicted on Count I of the 

indictment and for further proceedings with respect to 

Count II. 

I. 

In Count I of an indictment filed on June 10, 1997,

Spinner was charged with access device fraud in violation 

of 18 U.S.C. S 1029(1)(5). In Count II, Spinner was charged 

with bank fraud, in violation of 18 U.S.C. S 1344. Spinner 

appeared before the District Court on August 15, 1997, and 

entered a plea of guilty to Count I of the indictment. On 

June 4, 1998, the District Court sentenced Spinner to two 

years imprisonment. This timely appeal followed. 

II. 

"Happily, the rule that the indictment, to be sufficient, 

must contain all the elements of a crime . . . is still a vital 

part of our Federal criminal jurisprudence." United States v. 

Wander, 601 F.2d 1251, 1259 (3d Cir. 1979) (quoting

United States v. Knox Coal Co., 347 F.2d 33, 37 (3d Cir. 

1965)). To confer federal jurisdiction in this case, the 

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interstate commerce element of the crime with which

Spinner was charged must be alleged in the indictment. 

The United States, however, failed to allege the interstate 

commerce element of the crime in the indictment. It admits 

that "Count I of the indictment fails to allege that any of the 

transactions affected commerce." Appellant's Br. at 19. 

Nonetheless, it maintains that this is harmless error, 

because Count II of the indictment does allege the federal 

jurisdictional element. We disagree. 

The Supreme Court has stated that a defendant has a

"substantial right to be tried only on charges presented in 

an indictment returned by a grand jury. Deprivation of 

such a basic right is far too serious to be treated as nothing 

more than a variance and then dismissed as harmless

error." Stirone v. United States, 361 U.S. 212, 217 (1960). 

The fact that the United States charged interference with 

interstate commerce in Count II of Spinner's indictment is 

not a sufficient basis on which to find federal jurisdiction: 

 The charge that interstate commerce is affected is 

 critical since the Federal Government's jurisdiction of 

 this crime rests only on that inference. It follows that 

 when only one particular kind of commerce is charged 

 to have been burdened a conviction must rest on that 

 charge and not another, even though it be assumed 

 that under an indictment drawn in general terms a 

 conviction might rest upon a showing that commerce of 

 one kind or another had been burdened. 

Id. at 218. Without alleging an effect on interstate 

commerce in the first count, then, the indictment in this 

case was jurisdictionally defective. 

When, as in this case, an indictment fails to allege all 

elements of an offense, the defect may be raised by the 

court sua sponte. We have held that "[f]ailure of an 

indictment sufficiently to state an offense is a fundamental 

defect . . . and it can be raised at any time." Wander, 601 

F.2d at 1259; see also Fed.R.Crim.P. 12(b)(2); United States 

v. Beard, 414 F.2d 1014, 1015 (3d Cir. 1969) (quoting 

United States v. Manuszak, 234 F.2d 421, 423 (3d Cir. 

1956)). 

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Furthermore, notice alone cannot form a sufficient basis 

to validate a jurisdictionally defective indictment. In United 

States v. Hooker, 841 F.2d 1225 (4th Cir. 1988) (en banc), 

the Fourth Circuit Court of Appeals held that "an effect on 

interstate commerce" was an essential element of a RICO 

offense without which an indictment was insufficient. It 

further held that notice alone was insufficient to validate 

the indictment: "The inclusion of all elements . . . derives 

from the Fifth Amendment, which requires that the grand 

jury have considered and found all elements to be present." 

Id. at 1230. 

Finally, Spinner did not waive this jurisdictional defect by 

entering a guilty plea. In United States v. Caperell, 938 F.2d 

975 (9th Cir. 1991), the Ninth Circuit Court of Appeals held 

that "[a]lthough a guilty plea generally waives all claims of 

constitutional violation occurring before the plea,

`jurisdictional' claims are an exception to this rule." Id. at 

977 (quoting United States v. Montilla, 870 F.2d 549, 552 

(9th Cir. 1989), amended at 907 F.2d 115 (9th Cir. 1990) 

("Claims that `the applicable statute is unconstitutional or 

that the indictment fails to state an offense' are 

jurisdictional claims not waived by the guilty plea.")); see 

also United States v. Riviera, 879 F.2d 1247, 1251 (5th Cir. 

1989); O'Leary v. United States, 856 F.2d 1142, 1143 (8th 

Cir. 1988) (per curiam); United States v. Di Fonzo, 603 F.2d 

1260, 1263 (7th Cir. 1979). While a defendant's guilty plea 

may be thought to waive a jurisdictional defect, see United 

States v. Bentz, 21 F.3d 37, 39 n. 2 (3d Cir. 1994), we are 

faced here not with a defendant who pleads guilty and then 

wishes to challenge the facts that give rise to federal 

jurisdiction (such as an effect on interstate commerce), but 

with an indictment that does not allege those facts. It is 

only in the former case that courts have found 

jurisdictional challenges waived by a guilty plea. See id. 

While a challenge to jurisdiction-defeating factual

allegations requires a court to go beyond the fact of the 

indictment, no such difficulty arises here. See United States 

v. Caperell, 928 F.2d 975, 977-78 (9th Cir. 1991). 

III. 

Since the United States failed to allege an essential 

element of the crime in the indictment, we have no choice 

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but to reverse and vacate Spinner's conviction so that he 

may be properly indicted and remand for further 

proceedings. 

 5 
WELLFORD, Circuit Judge, concurring: 

It is for the judges of this circuit to decide whether 

defendant's guilty plea in this case constituted a waiver of 

the indictment deficiency discussed. This court indicated in 

a footnote, a few years ago, that a guilty plea may (not that 

it necessarily does) waive a jurisdictional defect:

 [W]e need not reach the issuance of whether a guilty 

 plea waives jurisdictional as well as nonjurisdictional 

 defects. Compare United States ex rel. Shank v. 

 Pennsylvania, 461 F.2d 61, 62 (3d Cir. 1972) (asserting 

 that guilty plea waives all nonjurisdictional defects), 

 cert. denied, 409 U.S. 1110, 93 S.Ct. 917, 34 L.Ed.2d 

 691 (1973), and United States ex rel. Jenkins v. 

 Hendricks, 45 F.2d 182, 183 (3d Cir. 1968) (same), 

 with United States v. Mathews, 833 F.2d 161, 164 (9th 

 Cir. 1987) (asserting that guilty plea "establishes the 

 factual basis for jurisdiction") (cited in United States v. 

 Parker, 874 F.2d 174, 178 (3d Cir. 1989)). 

United States v. Bentz, 21 F.3d 37, 39 n.2 (3d Cir. 1994). 

The Supreme Court has used broad language to indicate 

that a criminal defendant may forfeit (or waive) a 

constitutional right in a criminal case: 

 "No procedural principle is more familiar to this 

 Court than that a constitutional right," or a right of 

 any other sort, "may be forfeited in criminal as well as 

 civil cases by the failure to make timely assertion of the 

 right before a tribunal having jurisdiction to determine 

 it." Yakus v. United States, 321 U.S. 414, 444 (1944). 

United States v. Olano, 507 U.S. 725, 731 (1993). 

Another circuit has recently used broad language in

considering this issue in the context of the jurisdiction of 

the court: 

 Martin's argument rests on the concept that a guilty 

 plea does not waive jurisdictional defenses to the crime 

 at issue. United States v. Nash, 29 F.3d 1195, 1201 

 (7th Cir. 1994). But the nexus with interstate 

 commerce, which courts frequently call the 

 "jurisdictional element," is simply one of the essential 

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 elements of S 844(i). Although courts frequently call it 

 the "jurisdictional element" of the statute, it is 

 "jurisdictional" only in the shorthand sense that 

 without that nexus, there can be no federal crime 

 under the bombing statute. Kanar v. United States, 118 

 F.3d 527, 530 (7th Cir. 1997). 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, here authorized by 18 

 U.S.C. S 3231. See Steel Co. v. Citizens for a Better 

 Env't, ___ U.S. ___, ___, 118 S.Ct. 1003, 110, 140 

 L.Ed.2d 210 (1998). This court has recognized for 

 decades that, despite defendants' tendency to 

 "confuse[ ] facts essential to be alleged as elements of 

 the crime with jurisdictional requirements arising as a 

 matter of law," once a defendant plead guilty in"[a] 

 court which has jurisdiction of the subject matter and 

 of the defendant, as did the court in the instant case," 

 the court's judgment cannot be assailed on grounds 

 that the government has not met its burden of proving 

 "so-called jurisdictional facts." United States v. 

 Hoyland, 264 F.2d 346, 352-53 (7th Cir. 1959); La 

 Fever v. United States, 279 F.2d 833, 834 (7th Cir. 

 1960). Even if the government fails to establish the 

 connection to interstate commerce, the district court is 

 not deprived of jurisdiction to hear the case. See 

 generally Steel Co., 118 S.Ct. at 1010-13. 

United States v. Martin, 147 F.3d 529, 531-32 (7th Cir. 

1998). 

Defendant Spinner entered into a guilty plea pursuant to 

a plea agreement in this case whereby he pleaded guilty to 

count one in exchange for dismissal of count two. There 

was, at sentencing, a full discussion of the nature of both 

charges, including the count two defrauding of"certain 

financial institutions by fraudulent use of access devices." 

The district court explained that "he must establish for the 

record your involvement in these charges." (Emphasis 

added.) 

Although I am inclined to believe that defendant may 

have waived his objection to the interstate aspect deficiency 

in count one, I am prepared to concur in the majority's 

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determination as to that count, but I also believe that 

matter may be remanded to the district court to consider 

whether defendant should be put to trial on count two (if he 

pleads not guilty), or whether defendant may choose to 

enter a guilty plea. The parties, represented by counsel, 

agreed that defendant was in fact guilty of the factual bases 

stated by the United States Attorney with respect to the 

charges. If, on technical grounds, we set aside the guilty 

plea to count one not based on any objection made by 

defendant to the district court, I believe the matter should 

in fact be remanded to the district court for further 

proceedings as to count two. This court has sua sponte 

negated the plea agreement; defendant should be called 

upon to answer to the count two charges in fairness. I 

believe the defendant had real notice of the true nature of 

the charges made against him. 

I concur with the majority that Spinner may also be

reindicted by means of a technically sufficient charge as to 

the factual basis of the count one charge. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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