                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             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Precedential or Non-Precedential: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


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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)).

                               3
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

                               4
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

                               6
       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

                               7
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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