Unpublished Disposition, 897 F.2d 533 (9th Cir. 1990)

MEMORANDUM^** 

Michael Ray Martinez pleaded guilty to two counts of bank robbery under 18 U.S.C. § 2113(a). He appeals the district court's denial of his 28 U.S.C. § 2255 motion to vacate sentence. We review de novo, United States v. Mathews, 833 F.2d 161, 163 (9th Cir. 1987), and affirm.

Martinez challenges his conviction on two grounds. First, he argues that the indictment in this case violates both Fed. R. Crim. P. 7(c) (1) and due process because it does not refer to subsection (f) of 18 U.S.C. § 2113.¹  Second, he contends that even though he pleaded guilty, the government must prove facts establishing jurisdiction, and that it failed to do so.

A voluntary and knowing guilty plea waives all but jurisdictional defects in an indictment. United States v. Davis, 452 F.2d 577, 578 (9th Cir. 1971). Therefore, because Martinez does not challenge the validity of his guilty plea, he may only attack the indictment on jurisdictional grounds.

* Liberally construed, Martinez's claims under the Federal Rules of Criminal Procedure and due process appear to attack the indictment for failure to state an offense. Where an indictment fails to state an offense, the federal courts lack subject matter jurisdiction. See United States v. Broncheau, 597 F.2d 1260, 1262 n. 1 (9th Cir.), cert. denied, 444 U.S. 859 (1979). Therefore, Martinez may attack the indictment on this basis. Davis, 452 F.2d at 578. However, unless the statute defining a criminal offense is unconstitutional, an indictment which tracks the language of the statute will be sufficient to state the offense defined by that statute. Broncheau, 597 F.2d at 1262. From our review of section 2113 and the indictment, it is evident that the language of the indictment closely tracks the relevant language of the statute under which Martinez was indicted. As Martinez makes no claim that 18 U.S.C. § 2113 is unconstitutional, the indictment is sufficient. Id.

Martinez further argues that the indictment is defective because it did not refer specifically to subsection (g). We disagree. Because the indictment refers to subsection (a) of section 2113, it adequately warned Martinez that the government would try to prove that the savings and loan in question was federally insured.²  See United States v. Coleman, 656 F.2d 509, 511-12 (9th Cir. 1981). In addition, the language of the indictment tracks the language of subsection (g) in describing the institutions that Martinez was charged with robbing. Beyond this, a specific reference to subsection (g) was not necessary for the indictment to state an offense. See Broncheau, 597 F.2d at 1292.

II

A federal court lacks subject matter jurisdiction over a bank robbery case brought under 18 U.S.C. § 2113 unless the institution that was robbed falls within at least one of the definitions set forth in subsections (f), (g), and (h). See Mathews, 833 F.2d at 163. Therefore, despite his guilty plea, Martinez may also argue that the government must prove the facts upon which jurisdiction is based. Davis, 452 F.2d at 578. However, we have previously rejected a similar argument. See id. Martinez's guilty plea established all factual allegations contained in the indictment, including jurisdictional elements set forth therein. See Mathews, 833 F.2d at 163-64 (regarding 18 U.S.C. § 1201); Mack v. United States, 853 F.2d 585 (8th Cir. 1988) (regarding 18 U.S.C. § 2113). Because both counts to which Martinez pleaded guilty contained an allegation that the "deposits" of the institutions in question were "insured by the Federal Savings and Loan Insurance Corporation," the plea established federal jurisdiction under 18 U.S.C. § 2113(g).

AFFIRMED.