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D ock e t 98-7353

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. e du/thir dc ir c uit_1999/154Filed 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 judg ment
of conviction of the United States District Court f or the Middle District of Pennsylvania. Because the Distri ct Court lacked jurisdiction over the indictment, we will re verse Spinner's conviction and vacate this case to the Di strict 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 vio lation 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, 19 97, and entered a plea of guilty to Count I of the indictme nt. 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 suffi cient,
must contain all the elements of a crime . . . is s till 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

2interstate commerce element of the crime with which

Spinner was charged must be alleged in the indictme nt. The United States, however, failed to allege the in terstate
commerce element of the crime in the indictment. It admits that "Count I of the indictment fails to allege tha t any of the transactions affected commerce." Appellant's Br. at 19. Nonetheless, it maintains that this is harmless err or, 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 pres ented 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 interferenc e with interstate commerce in Count II of Spinner's indict ment is not a sufficient basis on which to find federal jur isdiction:

The charge that interstate commerce is affec ted is critical since the Federal Government's juri sdiction 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 as sumed that under an indictment drawn in general te rms a conviction might rest upon a showing that co mmerce of
one kind or another had been burdened.

Id. at 218. Without alleging an effect on interstat e commerce in the first count, then, the indictment i n this case was jurisdictionally defective.

When, as in this case, an indictment fails to alleg e all elements of an offense, the defect may be raised by the court sua sponte. We have held that "[f]ailure of a n indictment sufficiently to state an offense is a fu ndamental defect . . . and it can be raised at any time." Wan der, 601 F.2d at 1259; see also Fed.R.Crim.P. 12(b)(2); Unit ed States v. Beard, 414 F.2d 1014, 1015 (3d Cir. 1969) (quoti ng United States v. Manuszak, 234 F.2d 421, 423 (3d Ci r. 1956)).

3Furthermore, 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 e ffect on
interstate commerce" was an essential element of a RICO
offense without which an indictment was insufficien t. 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 g rand jury have considered and found all elements to be p resent."
Id. at 1230.

Finally, Spinner did not waive this jurisdictional defect by entering a guilty plea. In United States v. Caperel l, 938 F.2d 975 (9th Cir. 1991), the Ninth Circuit Court of App eals 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 ru le." Id. at 977 (quoting United States v. Montilla, 870 F.2d 54 9, 552 (9th Cir. 1989), amended at 907 F.2d 115 (9th Cir. 1990) ("Claims that `the applicable statute is unconstitu tional 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, 114 3 (8th Cir. 1988) (per curiam); United States v. Di Fonzo, 603 F.2d 1260, 1263 (7th Cir. 1979). While a defendant's gui lty plea may be thought to waive a jurisdictional defect, se e 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 a nd then wishes to challenge the facts that give rise to fed eral jurisdiction (such as an effect on interstate comme rce), 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 Uni ted States v. Caperell, 928 F.2d 975, 977-78 (9th Cir. 1991).

III.

Since the United States failed to allege an essenti al element of the crime in the indictment, we have no choice

4but to reverse and vacate Spinner's conviction so t hat he

may be properly indicted and remand for further proceedings.

5WELLFORD, Circuit Judge, concurring:

It is for the judges of this circuit to decide whet her defendant's guilty plea in this case constituted a waiver of the indictment deficiency discussed. This court ind icated 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 nonjur isdictional defects. Compare United States ex rel. Shank v. Pennsylvania, 461 F.2d 61, 62 (3d Cir. 1972) (asserting that guilty plea waives all nonjurisdictiona l defects), cert. denied, 409 U.S. 1110, 93 S.Ct. 917, 3 4 L.Ed.2d 691 (1973), and United States ex rel. Jenkin s 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 "esta blishes the factual basis for jurisdiction") (cited in U nited 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 indica te that a criminal defendant may forfeit (or waive) a constitutional right in a criminal case:

"No procedural principle is more familiar t o this Court than that a constitutional right," or a right of any other sort, "may be forfeited in crimina l as well as civil cases by the failure to make timely as sertion of the right before a tribunal having jurisdiction to determine it." Yakus v. United States, 321 U.S. 414, 4 44 (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 jurisd iction 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 119 5, 1201 (7th Cir. 1994). But the nexus with intersta te commerce, which courts frequently call the "jurisdictional element," is simply one of t he essential

6elements of S 844(i). Although courts freque ntly 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 S tates, 118 F.3d 527, 530 (7th Cir. 1997). It is not jur isdictional 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, 11 0, 140 L.Ed.2d 210 (1998). This court has recognize d for decades that, despite defendants' tendency t o "confuse[ ] facts essential to be alleged as elements of the crime with jurisdictional requirements a rising as a matter of law," once a defendant plead guilt y in"[a] court which has jurisdiction of the subject matter and of the defendant, as did the court in the in stant case," the court's judgment cannot be assailed on g rounds that the government has not met its burden o f proving "so-called jurisdictional facts." United Sta tes v. Hoyland, 264 F.2d 346, 352-53 (7th Cir. 1959 ); La Fever v. United States, 279 F.2d 833, 834 (7 th Cir. 1960). Even if the government fails to estab lish the connection to interstate commerce, the distr ict court is not deprived of jurisdiction to hear the cas e. 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 pursua nt to a plea agreement in this case whereby he pleaded gu ilty to count one in exchange for dismissal of count two. T here was, at sentencing, a full discussion of the nature of both charges, including the count two defrauding of"cert ain financial institutions by fraudulent use of access devices." The district court explained that "he must establis h for the record your involvement in these charges." (Emphasi s added.)

Although I am inclined to believe that defendant ma y have waived his objection to the interstate aspect deficiency in count one, I am prepared to concur in the majori ty's

7determination as to that count, but I also believe that

matter may be remanded to the district court to con sider whether defendant should be put to trial on count t wo (if he pleads not guilty), or whether defendant may choose to enter a guilty plea. The parties, represented by co unsel, agreed that defendant was in fact guilty of the fac tual bases stated by the United States Attorney with respect t o the charges. If, on technical grounds, we set aside the guilty plea to count one not based on any objection made b y defendant to the district court, I believe the matt er should
in fact be remanded to the district court for furth er proceedings as to count two. This court has sua spo nte negated the plea agreement; defendant should be cal led upon to answer to the count two charges in fairness . I
believe the defendant had real notice of the true n ature of the charges made against him.

I concur with the majority that Spinner may also be reindicted by means of a technically sufficient cha rge 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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