                                                     [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT            FILED
                     ________________________ U.S. COURT OF APPEALS
                                                      ELEVENTH CIRCUIT
                                                      NOVEMBER 30, 2005
                            No. 05-10990
                                                       THOMAS K. KAHN
                       Non-Argument Calendar
                                                           CLERK
                      ________________________

         D. C. Docket Nos. 00-01043-CV-H-E & 96-00051-CR-H-E

DOUGLAS GENE MAYBERRY,



                                                Petitioner-Appellant,

                                versus

UNITED STATES OF AMERICA,

                                                Respondent-Appellee.


                      ________________________

              Appeal from the United States District Court
                  for the Middle District of Alabama
                     _________________________

                         (November 30, 2005)


Before TJOFLAT, BIRCH and BLACK, Circuit Judges.

PER CURIAM:
       Federal prisoner Douglas Mayberry appeals the district court’s denial of his

28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. Mayberry

asserts count two of his indictment suffered from a jurisdictional defect because it

charged multiple financial transactions as a criminal money laundering offense

under 18 U.S.C. § 1956(a)(1)(A)(i).1 The district court did not err in denying the

motion, and we affirm.

       When reviewing a district court’s denial of a § 2255 motion, we review

questions of law de novo and findings of fact for clear error. Lynn v. United States,

365 F.3d 1225, 1232 (11th Cir.), cert. denied, 125 S. Ct. 167 (2004).

“A jurisdictional defect is one that ‘strip[s] the court of its power to act and

ma[kes] its judgment void.’” McCoy v. United States, 266 F.3d 1245, 1249 (11th

Cir. 2001) (citation omitted). An indictment suffers from a jurisdictional defect

when it charges no crime at all. Id. at 1253; United States v. Peter, 310 F.3d 709,

713–715 (11th Cir. 2002) (citing United States v. Meacham, 626 F.2d 503, 510

(5th Cir. 1980), for the proposition a district court lacks jurisdiction when an

indictment alleges only a non-offense, or rather, when the government alleges a



       1
            18 U.S.C. § 1956(a)(1)(A)(i) provides that, “[w]hoever, knowing that the property
involved in a financial transaction represents the proceeds of some form of unlawful activity,
conducts or attempts to conduct such a financial transaction which in fact involves the proceeds
of specified unlawful activity with the intent to promote the carrying on of specified unlawful
activity . . . .”

                                                2
specific course of conduct outside the reach of the applicable statute). Courts “may

hear a claim that the indictment or information fails to invoke the court’s

jurisdiction or to state an offense” at any time while the case is pending. Fed. R.

Crim. P. 12(b)(3)(B).

      In Peter, we explained a jurisdictional defect in an indictment exists where

the government alleges a specific course of conduct outside the reach of the

applicable statute. Peter, 310 F.3d at 715. For instance, in Meacham, the court

reversed the defendants’ convictions for “conspiring to attempt” to import and

possess with intent to distribute marijuana, holding Congress had not intended for

the statutes at issue to create “the conceptually bizarre crime of conspiracy to

attempt.” Meacham, 626 F.2d at 507–09. In such instances, a defendant’s

“innocence of the charged offense appears from the very allegations made in the

[indictment]. . . .” Peter, 310 F.3d at 715.

      In contrast, “[a] count in an indictment is duplicitous if it charges two or

more ‘separate and distinct’ offenses.” United States v. Schlei, 122 F.3d 944, 977

(11th Cir. 1997). Nevertheless, “[d]uplicity is not a fatal defect,” Reno v. United

States, 317 F.2d 499, 502 (5th Cir. 1963), and an objection to a duplicitous

indictment is waived if not raised before trial, Fed. R. Crim. P. 12(b)(3)(B). See

also United States v. Prescott, 42 F.3d 1165, 1167 (8th Cir. 1994) (finding an



                                           3
indictment duplicitous because it charged multiple financial transactions as a

violation of 18 U.S.C. § 1956(a)(1)(B)(i), but holding the defendant waived this

argument by failing to raise it before trial); United States v. Klinger, 128 F.3d 705,

708 (9th Cir. 1997) (finding the defendant waived his duplicitous indictment

argument by failing to raise it before trial). Notably, “defects in an indictment do

not deprive a court of its power to adjudicate a case.” United States v. Cotton, 122

S. Ct. 1781, 1785 (2002).

      We have yet to address the distinction between a jurisdictionally defective

indictment and a duplicitous indictment. However, the Second Circuit addressed

this issue in the identical context as raised in this case, namely, whether an

indictment charging multiple financial transactions as a criminal money laundering

offense under 18 U.S.C. § 1956(a)(1)(A) “states an offense which is cognizable, in

the sense of charging conduct made illegal by statute.” United States v. Moloney,

287 F.3d 236, 240 (2d Cir. 2002). In addressing this issue, the court noted the

defendant explicitly raised a jurisdictional defect claim and not a duplicity claim.

Id. However, the court stated jurisdictional concerns:

      are only weakly implicated where it is claimed that an indictment fails
      to charge a cognizable offense because it charges a continuing offense
      even though Congress did not expressly prohibit a continuing offense.
      Because these claims acknowledge the illegality of the individual acts
      alleged, they do not truly implicate the possibility of an innocent
      person being convicted. Rather, these claims suggest that the form of

                                           4
      the indictment was wrong, in that it grouped offenses that could have
      been validly charged as individual counts into a collective count that,
      it might be argued, charges no crime. But claims that the indictment
      groups counts impermissibly are sufficiently addressed by the doctrine
      of duplicity, which inherently addresses the form of an indictment and
      protects against issues of confusion, pretrial notice, and jury
      compromises which are not implicated in this case. Raising such
      formalistic errors in framing an indictment to the level of
      jurisdictional defects exalts form over substance without providing
      any additional substantive benefit.

Id.

      The above-cited language from Moloney supports our interpretation that

Mayberry’s jurisdictional defect argument is actually a duplicity argument.

Moreover, those cases relied on by Mayberry, namely United States v. Kramer, 73

F.3d 1067, 1072 (11th Cir. 1996), and United States v. Conley, 826 F. Supp. 1536,

1544 (W.D. Pa. 1993), also support this interpretation, as those cases refer to

duplicity problems with the allegation of multiple financial transactions in an

indictment, not jurisdictional problems. As these cases demonstrate, Mayberry’s

objections are more appropriate as challenges to a duplicitous indictment, rather

than a true jurisdictional challenge.

      One of Mayberry’s codefendants, Marlon Engle, argued on direct appeal that

count two of the indictment was duplicitous. In doing so, Engle cited the Conley

case at length in support of his argument. We rejected Engle’s argument. See

United States v. Pruitt, 174 F.3d 1215, 1221 (11th Cir. 1999). Thus, we reject

                                          5
Mayberry’s argument as well, and affirm the district court’s denial of his § 2255

motion.

      AFFIRMED.




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