United States v. Yousef, No. 12-4822 (2d Cir. 2014)
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Defendant pled guilty to one count of conspiring to provide material support to a designated foreign terrorist organization. On appeal, defendant argued that the indictment to which he pled guilty failed to adequately allege a nexus between his alleged conduct and the United States, as required by the Due Process Clause of the Fifth Amendment before a criminal statute may apply extraterritorially. The court concluded that defendant's argument was waived because the existence of a territorial nexus was not an element of subject-matter jurisdiction. Accordingly, the court affirmed the judgment of the district court.
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12 4822 United States v. Yousef UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2013 (Argued: December 5, 2013 Decided: April 29, 2014) Docket No. 12 4822 UNITED STATES OF AMERICA, Appellee, v. JAMAL YOUSEF, Defendant Appellant. Before: SACK, LYNCH, and LOHIER, Circuit Judges. Appeal from a judgment of conviction entered by the United States District Court for the Southern District of New York (John F. Keenan, Judge) following the defendantʹs plea of guilty to one count of conspiring to provide material support to a designated foreign terrorist organization. We conclude that the defendant, by pleading guilty, waived the claim he seeks to raise in this appeal. AFFIRMED. MELINDA SARAFA, Sarafa Law LLC, New York, NY, for Defendant Appellant. JEFFREY A. BROWN (Justin Anderson, of counsel), Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, for Appellee. 1 SACK, Circuit Judge: It is well settled that a defendantʹs plea of guilty to an indictment or information waives all non jurisdictional challenges to the resulting conviction. The appellant contends that the indictment to which he pled guilty failed to adequately allege a nexus between his alleged conduct and the United States, as required by the Due Process Clause of the Fifth Amendment before a criminal statute may apply extraterritorially. The question presented by this appeal is whether that requirement implicates the subject matter jurisdiction of the federal courts such that it is not waived by a guilty plea. Jamal Yousef is a foreign national transferred into the custody of the United States to face charges in the United States District Court for the Southern District of New York arising from an arms deal he allegedly orchestrated in Honduras. The scheme involved individuals posing as representatives of a Colombian terrorist group. After an unsuccessful attempt to dismiss the indictment against him, Yousef pled guilty to one count of conspiring to provide material support to a designated foreign terrorist organization in violation of 18 U.S.C. § 2339B. He now appeals from the resulting judgment, urging, as he did before the district court (John F. Keenan, Judge), that the government failed to allege a sufficient nexus between the conduct alleged in the indictment and the United States. Because we conclude that the existence of a territorial nexus is not an element of subject matter jurisdiction, however, this argument like other ʺnon jurisdictionalʺ challenges to his conviction was waived by Yousefʹs guilty plea. Since Yousef raises no other objection to the validity of his conviction or sentence, we affirm the judgment of the district court. 2 BACKGROUND In July 2008, confidential sources working with the United States Drug Enforcement Administration reported that the appellant, Jamal Yousef (also known as ʺTalal Hassan Ghantouʺ), was directing an arms trafficking organization from inside a Honduran prison, where he was incarcerated on unrelated charges. In the months that followed, these confidential sources contacted Yousefʹs unincarcerated associates in Honduras, posing as members of the Fuerzas Armadas Revolucionarias de Colombia (the ʺFARCʺ) interested in obtaining weapons.1 The government alleges that Yousef and his associates eventually agreed with those sources to exchange military grade weapons for a large quantity of cocaine to be supplied by the FARC. While Yousef was still imprisoned in Honduras, the government obtained several superseding indictments against him from a grand jury empaneled in the Southern District of New York. After the third such indictment was returned in July 2009, the district court (Andrew J. Peck, Magistrate Judge) issued a warrant for Yousefʹs arrest. Just over one month later, Yousef obtained a conditional release from prison in Honduras. Although Yousef disputes the governmentʹs version of exactly what happened next, his freedom was short lived. He was almost immediately detained and transported from Honduras to the Southern District of New York. Once in the United States, Yousef moved to dismiss the third superseding indictment against him 1 The Secretary of State has designated the FARC as a ʺforeign terrorist organizationʺ pursuant to Section 219 of the Immigration and Nationality Act, 8 U.S.C. § 1189. See, e.g., 73 Fed. Reg. 68489 02 (Nov. 18, 2008) (reaffirming designation). 3 on the ground that it failed to allege a sufficient nexus between him and the United States. Because the government had made no allegation that Yousef ʺhad any knowledge, intention or expectation that the weapons he allegedly agreed to provide the FARC would be used to produce any effect on the United States or United States nationalsʺ and because ʺ[h]e [was] not even alleged to have any knowledge of the FARCʹs activities,ʺ Yousef claimed it would be arbitrary and fundamentally unfair to allow the indictment to stand. Mem. in Support of Motion to Dismiss, United States v. Yousef, 08 CR 1213 (S.D.N.Y. filed June 28, 2010), ECF No. 20. In an Opinion and Order dated August 23, 2010, the district court denied the motion. The court based its decision in part on recorded conversations between a confidential source and one of Yousefʹs alleged co conspirators, which indicated that the weapons at issue ʺwere taken from the United States military arsenalʺ in Iraq. Op. and Order, United States v. Yousef, 08 CR 1213 (S.D.N.Y. filed Aug. 23, 2010), ECF No. 23. In February 2012, following additional motion practice including a failed attempt to have the indictment dismissed on the ground that the governmentʹs conduct in transferring him to the United States was improper Yousef filed a motion seeking reconsideration of the district courtʹs August 2010 decision denying his motion to dismiss the indictment. Yousef asserted that discovery and discussions with the government had revealed that prosecutors had long known that the weapons alleged to have been stolen from a U.S. arsenal did not exist. Decl. in Support of Mot., United States v. Yousef, 08 CR 1213 (S.D.N.Y. filed Feb. 21, 2012), ECF No. 55. This revelation, Yousef argued, undermined the primary ground on which the district court relied in denying his original motion that the provenance of the weapons established the 4 necessary territorial nexus between Yousef and the United States. Id. In a Memorandum Opinion and Order dated March 5, 2012, the district court denied Yousefʹs motion for reconsideration, finding that it was filed after an inexcusable delay and that in any event the third superseding indictment contained sufficient information on its face to establish the required nexus because it alleged both that Yousef believed he was supplying weapons to the FARC and that the FARC is a terrorist organization that had directed violent acts against the United States. Following the district courtʹs decision, the government obtained a fourth superseding indictment against Yousef, charging him with one count of conspiracy to engage in narco terrorism, see 21 U.S.C. § 960a, and one count of conspiracy to provide material support to a foreign terrorist organization, see 18 U.S.C. § 2339B. On May 4, 2012, Yousef entered an unconditional plea of guilty to the material support count. In a judgment entered on October 15, 2012, the district court sentenced Yousef principally to twelve yearsʹ incarceration. In the instant appeal, Yousef again asserts that the government failed to allege the requisite territorial nexus, asking us to vacate his conviction and sentence and to dismiss the indictment. 5 DISCUSSION We have held that ʺ[i]n order to apply extraterritorially a federal criminal statute to a defendant consistently with due process, there must be a sufficient nexus between the defendant and the United States, so that such application would not be arbitrary or fundamentally unfair.ʺ United States v. Al Kassar, 660 F.3d 108, 118 (2d Cir. 2011) (quoting United States v. Yousef, 327 F.3d 56, 111 (2d Cir. 2003)). ʺIt is well settled that a defendantʹs plea of guilty admits all of the elements of a formal criminal charge and, in the absence of a court approved reservation of issues for appeal, waives all challenges to the prosecution except those going to the courtʹs jurisdiction.ʺ2 Hayle v. United States, 815 F.2d 879, 881 (2d Cir. 1987) (citation omitted). Yousef maintains that the due process requirement of a territorial nexus is just such a non waivable jurisdictional question. We conclude that it is not. As Judge Friendly once put it, ʺthe legal lexicon knows no word more chameleon like than 2 The Supreme Court has recognized two narrow exceptions to this principle, neither of which is relevant here. In Blackledge v. Perry, 417 U.S. 21 (1974), the Court held that, to protect defendants from the risk of vindictive prosecution, a defendant had a non waiveable due process right not to be charged with a greater offense on remand from a successful appeal. Id. at 30 31. In Menna v. New York, 423 U.S. 61 (1975) (per curiam), the Court explained that a guilty plea ʺsimply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction, if factual guilt is validly established.ʺ Id. at 63 n.2. Where the prosecution is facially unconstitutional, however, a guilty plea does not waive the constitutional challenge. Id. 6 ʹjurisdiction.ʹʺ United States v. Sabella, 272 F.2d 206, 209 (2d Cir. 1959). In this context, however, it is clear that ʺjurisdictionʺ refers to subject matter jurisdiction ʺthe courtsʹ statutory or constitutional power to adjudicate the case,ʺ see United States v. Cotton, 535 U.S. 625, 630 (2002) (internal quotation marks omitted; emphasis in original); United States v. Rubin, 743 F.3d 31, 36 (2d. Cir 2014) (quoting Cotton) (internal quotation marks omitted). Accordingly, we have held that in order ʺto attack a conviction post plea, a defendant must establish that the district court lacked the ʹpower to entertain the prosecution.ʹʺ United States v. Kumar, 617 F.3d 612, 620 (2d Cir. 2010) (quoting Hayle, 815 F.2d at 882, and citing Cotton, 535 U.S. at 630). Federal courts have subject matter jurisdiction over federal criminal prosecutions by virtue of 18 U.S.C. § 3231, which vests the district courts with the power to hear ʺall offenses against the laws of the United States.ʺ Thus, in United States v. Williams, 341 U.S. 58 (1951), the Supreme Court held that section 3231 conferred ʺjurisdiction of the subject matterʺ in that case, an alleged violation of a federal conspiracy statute ʺand, of course, of the persons charged,ʺ id. at 66; see also Hugi v. United States, 164 F.3d 378, 380 (7th Cir. 1999) (stating that section 3231 is ʺthe beginning and the end of the ʹjurisdictionalʹ inquiryʺ). The allegation that the defendant violated a federal criminal statute ʺmade the trial take place before ʹa competent tribunalʹ: a court authorized to render judgment on the indictment.ʺ Williams, 341 U.S. at 66. A defendant who pleads guilty may therefore obtain dismissal of his indictment on appeal only if he can ʺestablish that the face of the indictment discloses that the count or counts to which he pleaded guilty failed to charge a federal offense.ʺ3 3 This requirement does not, however, render ʺjurisdictionalʺ a defendantʹs contention that the indictment 7 Hayle, 815 F.2d at 881; cf., e.g., United States v. Shellef, 507 F.3d 82, 96 (2d Cir. 2007) (ʺThe district court had jurisdiction over the prosecution of [defendants] pursuant to 18 U.S.C. § 3231 because they were charged with violating federal criminal laws.ʺ); United States v. Keigue, 318 F.3d 437, 439 (2d Cir. 2003) (similar). As we recently reiterated in Rubin, our inquiry into whether an indictment charges a federal offense for the purposes of establishing subject matter jurisdiction under § 3231 is exceedingly narrow. 743 F.3d at 38 39. We ask only whether ʺthe indictment alleges all of the statutory elements of a federal offense.ʺ Hayle, 815 F.2d at 882. Defects in an indictment short of a failure to charge all of the statutory elements do not undermine subject matter jurisdiction, and do not implicate the power of the federal courts to decide a case. See Cotton, 535 U.S. at 631 (quoting Williams, 341 U.S. at 66 (ʺʹ[T]hat the indictment is defective does not affect the jurisdiction of the trial court to determine the case presented by the indictment.ʹʺ)). ʺ[T]he defendantʹs contention . . . that in fact certain of [the statutory] elements are lacking . . . goes to the merits of the prosecution, not to the jurisdiction of the court to entertain the case or to punish the defendant if all of the alleged elements are proven.ʺ Hayle, 815 F.2d at 882; accord United States v. Weinberg, 852 F.2d 681, 684 85 (2d Cir. 1988). charges a ʺnon offenseʺ i.e., conduct that the legislature has not clearly prohibited. Rubin, 743 F.3d at 34, 38 n.6 (recognizing abrogation of United States v. Moloney, 287 F.3d 236, 240 (2d Cir. 2002) (holding that a defendantʹs ʺclaim that the indictment charges a non offense implicates the jurisdiction of the federal courtsʺ), by Cotton, 535 U.S. 625 (2002)). Charging an offense requires no more than charging the violation of a specific statute. See, e.g., United States v. Lasaga, 328 F.3d 61, 63 64 (2d Cir. 2003). 8 Even a defendantʹs persuasive argument that the conduct set out in the indictment does not make out a violation of the charged statute does not implicate subject matter jurisdiction. See Rubin, 743 F.3d at 37. In Lamar v. United States, 240 U.S. 60 (1916), the defendant challenged his conviction under an indictment for ʺhaving falsely pretended to be an officer of the government of the United States, to wit, a member of the House of Representatives.ʺ Id. at 64. He argued that the court lacked jurisdiction to hear the case because a member of Congress is not an ʺofficerʺ of the United States.4 Id. But, as Justice Holmes explained, ʺnothing can be clearer than that the District Court, which has jurisdiction of all crimes cognizable under the authority of the United States . . . acts equally within its jurisdiction whether it decides a man to be guilty or innocent under the criminal law, and whether its decision is right or wrong.ʺ Id. at 65 (citation omitted). The defendantʹs argument went, therefore, ʺonly to the merits of the case.ʺ Id.; accord Cotton, 535 U.S. at 630 31 (quoting Lamar); Rubin, 743 F.3d at 36; Weinberg, 852 F.2d at 684 85; Hayle, 815 F.2d at 882. Even post plea appeals that call into question the governmentʹs authority to bring a prosecution or congressional authority to pass the statute in question are generally not ʺjurisdictionalʺ in the sense required by Lamar and its progeny. Thus we have denied as waived post plea challenges to the constitutionality of a prosecution or criminal statute based on the Commerce Clause, United States v. Lasaga, 328 F.3d 61, 63 (2d Cir. 2003); the Double Jeopardy Clause, United States v. Leyland, 277 F.3d 628, 631 32 (2d Cir. 2002) (citing United States v. Mortimer, 52 F.3d 429, 435 (2d Cir. 1995)); and 4 Under the prevailing law in 1916, this challenge to the trial courtʹs jurisdiction allowed the defendant a direct appeal to the Supreme Court following his conviction. Id. at 64. 9 the Sixth Amendmentʹs guarantee of a speedy trial, United States v. Mann, 451 F.2d 346, 347 (2d Cir. 1971) (per curiam).5 And we have similarly held that ʺan indictment states an offense even though the crime alleged appears to be barred by limitation.ʺ United States v. Doyle, 348 F.2d 715, 718 (2d Cir. 1965) (citing United States v. Cook, 84 U.S. (17 Wall.) 168 (1872)). Against this backdrop, we cannot agree that the absence of a territorial nexus between the defendantʹs alleged conduct and the United States implicates the authority of a court to decide a case presented by an otherwise valid criminal indictment, where, as here, a nexus requirement is not mentioned anywhere among the elements of the charged offense. And although Yousef contends that his appeal implicates ʺthe [district] courtʹs very authority to hear the case,ʺ Appellantʹs Br. at 35, he fails to identify any element of the offense to which he pled guilty that is not adequately alleged in the indictment. We nevertheless pause to consider the sufficiency of the indictment in fulfillment of our ʺobligat[ion] to consider sua sponte issues that the parties have disclaimed or have not presentedʺ where subject matter jurisdiction may be in question. Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012). Yousef pled guilty to ʺknowingly provid[ing] material support or resources to a foreign terrorist 5 In the context of assessing whether jeopardy attaches for the purposes of a Double Jeopardy Clause defense, we have also held that a district court has jurisdiction under 18 U.S.C. § 3231 to convict a defendant of committing a federal offense, even if there is no basis in law for the court to impose any penalty based on that conviction. Sabella, 272 F.2d at 209. 10 organization, or attempt[ing] or conspir[ing] to do so,ʺ with knowledge that the organization is a designated terrorist organization (as defined in subsection [18 U.S.C. § 2339B](g)(6)), that the organization has engaged or engages in terrorist activity (as defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989). 18 U.S.C. § 2339B(a)(1). The definition of ʺmaterial support or resourcesʺ includes ʺany property, tangible or intangible, or service, including . . . weapons, lethal substances, [or] explosives.ʺ 18 U.S.C. § 2339A(b)(1); see 18 U.S.C. § 2339B(g)(4). And section 2339B asserts jurisdiction over foreign conduct constituting an offense defined in subsection 2339B(a) if, among other things, ʺthe offense occurs in or affects interstate or foreign commerce.ʺ Id. § 2339B(d)(1)(E). Count Two of the fourth superseding indictment, to which Yousef pled guilty, unambiguously alleges each of these elements. The indictment therefore conferred subject matter jurisdiction on the district court that is, the court had the power to hear the Governmentʹs prosecution of Yousef even if the allegations were defective in some way. In concluding that Yousef has failed successfully to raise a question of the district courtʹs jurisdiction to hear his case, we nevertheless cannot deny that he may claim support for his position in several of our prior decisions upon which he relies. 11 First, in two cases involving appeals from convictions following jury trials, we suggested that the question of whether Congress intended a statute to apply extraterritorially implicates subject matter jurisdiction. See United States v. Al Kassar, 660 F.3d 108, 117 18 (2d Cir. 2011) (referring to the nexus requirement as a ʺjurisdictional nexusʺ), cert. denied, 132 S. Ct. 2374 (2012); United States v. Yousef, 327 F.3d 56, 85 & n.16 (2d Cir. 2003) (characterizing extraterritorial jurisdiction as a question of a courtʹs ʺsubject matter jurisdictionʺ). Ours is not the only court to have understood subject matter jurisdiction in this way. See, e.g., United States v. Ayesh, 702 F.3d 162, 165 66 (4th Cir. 2012) (referring to statuteʹs applicability to extraterritorial conduct as a question of subject matter jurisdiction), cert. denied, 133 S. Ct. 1619 (2013). But the Supreme Court definitively rejected this analysis even before Al Kassar in Morrison v. National Australia Bank Ltd., 130 S. Ct. 2869 (2010). In that case, the Court called our treatment of the extraterritorial reach of section 10(b) of the Securities Exchange Act as a question of subject matter jurisdiction a ʺthreshold error.ʺ Id. at 2876 77. As the Court explained, ʺto ask what conduct § 10(b) reaches is to ask what conduct § 10(b) prohibits, which is a merits question.ʺ Id. at 2877. There, subject matter jurisdiction was established by 15 U.S.C. § 78aa, which grants district courts original jurisdiction over federal securities law claims.6 Id. at 2877 & n.3. In the criminal context, 18 U.S.C. § 3231 is 6 Section 78aa was subsequently amended by Section 929P(b) of the Dodd Frank Act so that it now refers specifically to extraterritorial jurisdiction, but that provision did not exist at the time Morrison was decided and played no role in the Courtʹs conclusion that the district court had the power to hear that case and decide whether the statute in question applied extraterritorially. 12 all that is necessary to establish a courtʹs power to hear a case involving a federal offense, whether or not the conduct charged proves beyond the scope of Congressʹ concern or authority in enacting the statute at issue. In recognizing Morrisonʹs teaching on extraterritoriality and Cottonʹs holding with respect to what sorts of indictment defects implicate subject matter jurisdiction, we also acknowledge the abrogation of one aspect of our holding in United States v. Gatlin, 216 F.3d 207 (2d Cir. 2000). In that case, the defendant pled guilty to sexual abuse of a minor while ʺin the special maritime and territorial jurisdiction of the United States,ʺ in violation of 18 U.S.C. § 2243(a). Id. at 209. The conduct in question had occurred at an overseas military housing complex. Id. We concluded that 18 U.S.C. § 7(3), which defines the term ʺspecial maritime and territorial jurisdiction of the United States,ʺ did not apply extraterritorially and that crimes committed at the complex in question were therefore beyond its reach. Id. at 210, 220. Accordingly, we held that section 2243(a) did not apply to the defendantʹs acts ʺand that the District Court lacked jurisdiction to try him.ʺ Id. at 220. The latter conclusion is inconsistent with Morrison. Under Morrison, whether section 2243(a) is intended to reach overseas conduct by reference to the definition contained in section 7(3) is a merits question that does not implicate the power of the district court to hear and decide the case. * * * A courtʹs power to hear a case does not, of course, conclusively establish the governmentʹs authority to prosecute it. Our jurisprudence is replete with limitations on the exercise of that authority, whether by virtue of constitutional provisions, like the Due Process Clause, or judicially created doctrines, like the presumption against extraterritoriality. See United States 13 v. Vilar, 729 F.3d 62, 72 74 (2d Cir. 2013). The due process requirement that a territorial nexus underlie the extraterritorial application of a criminal statute is just such a limitation. It protects criminal defendants from prosecutions that are ʺarbitrary or fundamentally unfair.ʺ See Al Kassar, 660 F.3d at 118 (quoting Yousef, 327 F.3d at 111) (internal quotation marks omitted). The absence of the required nexus, if indeed it were lacking here, may have been grounds for dismissing the indictment before the district court, or on appeal, had there been a trial in this case or an explicit reservation of the issue for appeal. But unlike the requirements of subject matter jurisdiction, nothing in our jurisprudence suggests that this limitation on the reach of criminal statutes falls within the narrowly circumscribed range of exceptions to the bar on raising non jurisdictional challenges to a conviction following a guilty plea. CONCLUSION Because Yousef has offered no reason to doubt the validity of his plea or to question the power of the district court to hear his prosecution, we conclude that, by pleading guilty, he waived the only objection to his conviction he raises in this appeal. The judgment of the district court is therefore AFFIRMED. 14
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