United States v. Brown

• Decision Date: 28 May 2014
• Docket Number: No. 13–10023.,13–10023.
• Citation: 752 F.3d 1344
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Danielle Lenise BROWN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

752 F.3d 1344

UNITED STATES of America, Plaintiff–Appellee,

v.Danielle Lenise BROWN, Defendant–Appellant.

No. 13–10023.

United States Court of Appeals,Eleventh Circuit.

May 28, 2014.

R. Brian Tanner, James D. Durham, Joseph D. Newman, James C. Stuchell, Edward J. Tarver, U.S. Attorney's Office, Savannah, GA, for Plaintiff–Appellee.

Andrew B. Greenlee, Brownstone Law Firm, PA, Winter Park, FL, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Georgia. D.C. Docket No. 4:12–cr–00083–BAE–GRS–1.

Before CARNES, Chief Judge, HULL and GARZA,^* Circuit Judges.

HULL, Circuit Judge:

Defendant–Appellant Danielle Brown pled guilty to knowingly receiving 481 counterfeit United States Postal Money Orders from a foreign country with the intent to pass and publish these same counterfeit money orders as true, in violation of 18 U.S.C. § 473. As part of her plea deal, Brown expressly agreed to waive any appeal to her conviction or sentence. Nonetheless, Brown now appeals her conviction and sentence, contending—for the first time—that her indictment was defective because it did not expressly allege the mens rea element of the § 473 offense. Brown argues that this omission from the indictment deprived the district court of jurisdiction to accept her guilty plea, thus rendering her conviction and sentence null and void. After careful review of the briefs and the record, and with the benefit of oral argument, we affirm Brown's conviction and sentence.

I. BACKGROUND

A. Offense Conduct

In June 2011, federal agents intercepted a package mailed from Nigeria to Brown containing 361 counterfeit money orders totaling $351,975. When agents questioned her, Brown admitted that she received another such package earlier and was expecting to receive the package that was intercepted. She was not prosecuted for that conduct. Instead, she signed a “Voluntary Discontinuance Agreement” in which she (1) admitted receiving notice that the money orders were counterfeit, (2) acknowledged that similar conduct in the future could result in criminal prosecution, and (3) agreed not to engage in such conduct. However, on March 16, 2012, federal agents intercepted another package destined for Brown, this one sent from Ghana and containing 481 counterfeit money orders totaling $471,380. An undercover agent delivered the package to Brown, and she accepted it, stating that she was waiting on its delivery. A search of her apartment later turned up an additional $217,696 in counterfeit money orders and cashier's checks. That search also revealed two U.S. Customs and Border Protection “notice of seizure letters” informing Brown that federal agents had seized two additional packages containing counterfeit money orders that amounted to a total of $688,035. Brown admitted that she read both of the letters.

Brown's role in the illegal counterfeiting scheme was to act as a “dispatcher.” She would receive counterfeit money orders and send them to other people in the United States, either through the United States Postal Service (using counterfeit postage) or through Western Union, under a false name. For her efforts, Brown received $400 a month. Brown does not dispute that she knew her actions were illegal by at least July 2011, but she nevertheless continued to participate. In April 2012, she was indicted for these crimes.

B. Brown's Indictment

Brown's indictment at issue here alleged two counts. Both were based on Brown's receipt of the March 2012 package from the undercover agent. Count One charged Brown with receiving the counterfeit money orders:

That on or about March 21, 2012 ... Brown, with the intent that the same be passed, published and used as true and genuine, did receive counterfeited obligations of the United States, that being approximately 481 counterfeit United States Postal Money Orders with a face value of $471,380, in violation of title 18, United States Code, Section 473.

Although the statute itself, 18 U.S.C. § 473, contains no mens rea requirement, it is well established that the required mental state for this crime is knowledge—a defendant must know that the instrument at issue was counterfeit. See United States v. Carll, 105 U.S. 611, 613, 26 L.Ed. 1135 (1881). However, the indictment did not explicitly allege in Count One that Brown knew the postal money orders were counterfeit at the time she received them.

Count Two of the indictment charged Brown with knowingly importing these counterfeit money orders:

That on or about and between March 10, 2012 and March 21, 2012 ... Brown, aided and abetted by others unknown to the grand jury, did fraudulently and knowingly, clandestinely import into the United States merchandise contrary to law, that being approximately 481 counterfeit United States Postal Money Orders with a face value of $471,380, in violation of Title 18, United States Code, Section 545.

(emphasis added)

The government contends that Counts One and Two should be read together; in other words, because Count Two uses the word “knowingly” to allege a different crime based on the same conduct that is described in Count One, the indictment as a whole charged Brown with knowing the counterfeit nature of the money orders.

In any event, Brown entered into a written plea agreement with the government in which she agreed to plead guilty to Count One in exchange for the dismissal of Count Two. Brown also agreed to waive, “[t]o the maximum extent permitted by federal law, ... the right to appeal the conviction and sentence and the right to collaterally attack the sentence in any post-conviction proceeding, including a § 2255 proceeding, on any ground.” The agreement recited the elements of the § 473 offense to which she would plead guilty, including the element that “the defendant then knew that the Postal Money Orders were counterfeit.” (emphasis added). She also gave up “any defenses to the charges.” However, the factual basis for the plea tracked the language of the indictment exactly—that is, it did not say that she knowingly received the counterfeit instruments.

At the plea hearing, the district court read the allegations contained in the indictment to Brown. The court explained that by pleading guilty to Count One, Brown was admitting that she “received counterfeit obligation[s] of the United States postal money orders” and that she “ knew the postal money orders were not true; that in fact they were counterfeit ” (emphasis added). Brown agreed with these statements.

The district court then heard testimony from the federal agent involved in the investigation, Tyrone Tawil. Agent Tawil testified that, when he interviewed Brown, she “admitted to me that she knew [the money orders] w [ere] counterfeit and she knew that it was wrong, but she continued to do it for the money.” Brown then confirmed that everything Agent Tawil said was true. The court indicated its satisfaction with the factual basis for the plea and accepted it.

In preparation for sentencing, the probation office compiled a presentence investigation report (PSR) which calculated Brown's offense level to be 24 and her criminal history category to be I. That combination yielded a guidelines sentence range of 51 to 63 months' imprisonment. Brown did not object to the sentence or raise the indictment's alleged deficiency before the district court. She did file several objections to the PSR related to enhancements or adjustments in her offense level, but the district court overruled them and adopted the PSR. The court accordingly sentenced her to 63 months' imprisonment.

II. DISCUSSION

Brown appeals her conviction and sentence. For the first time in her case, Brown alleges that the indictment was defective on its face because Count One did not include the required mens rea, an essential element of the § 473 crime. As a result of this omission, Brown contends that the indictment does not state a federal crime and that the district court never had jurisdiction to sentence her.

In response, the government argues that Brown's indictment has no defect because the mens rea element can be inferred from other language in Count One. See United States v. Gray, 260 F.3d 1267, 1283 (11th Cir.2001) (holding that a mens rea element “may be inferred from other allegations in the indictment”). Second, the government argues that the allegations in Count Two provide the mens rea element because Count Two charges Brown with “knowingly” importing the counterfeit money orders into the United States. See United States v. Lang, 732 F.3d 1246, 1249 (11th Cir.2013) (holding that the lenient standard applicable to indictments challenged for the first time on appeal allows a court to “consider the content of other counts of the indictment in order to give context to the challenged count so long as the defendant fails to show actual prejudice”).

We need not reach these two arguments because even assuming Brown's indictment omits a required element of the offense and is defective, we agree with the government that this type of indictment defect is not jurisdictional and was waived by Brown's guilty plea.

“A guilty plea, since it admits all the elements of a formal criminal charge, waives all non-jurisdictional defects in the proceedings against a defendant.” United States v. Fairchild, 803 F.2d 1121, 1124 (11th Cir.1986) (quoting United States v. Jackson, 659 F.2d 73, 74 (5th Cir.1981)); see also United States v. Patti, 337 F.3d 1317, 1320 (11th Cir.2003) (“Generally, a voluntary, unconditional guilty plea waives all non-jurisdictional defects in the proceedings.”). On the other hand, jurisdictional error “can never be waived by parties to litigation” because it “implicates a court's power to adjudicate the matter before it.” United States v. Peter, 310 F.3d 709, 712 (11th Cir.2002). Therefore, the pivotal question here is whether Brown's claim that her indictment was defective for omitting the mens rea element is jurisdictional in nature.

Although ...