IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 19, 2008
No. 08-30254 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
EDWARD LEE DAUGHENBAUGH
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
Before BENAVIDES, SOUTHWICK, and HAYNES, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:
Appellant Edward Lee Daughenbaugh pleaded guilty to possession of child
pornography. On appeal, Daughenbaugh asserts that the district court plainly
erred in accepting his guilty plea because he had not been indicted and did not
knowingly and voluntarily waive his right to indictment. Because
Daughenbaugh waived his challenge to the lack of indictment by pleading guilty,
we affirm.
I.
On May 19, 2006, Daughenbaugh was arrested for possession of child
pornography. On May 26, 2006, Daughenbaugh pleaded guilty to a bill of
information charging him with one count of possessing child pornography in
No. 08-30254
violation of 18 U.S.C. § 2252A(a)(5)(B). Prior to entering the guilty plea,
Daughenbaugh and his counsel signed an “Affidavit of Understanding of
Maximum Penalty and Constitutional Rights,” in which Daughenbaugh
acknowledged his understanding of his “right to have the charge against [him]
presented to a Grand Jury for indictment.” At the plea colloquy, however, the
district court did not advise Daughenbaugh of his right to a grand jury
indictment or procure an explicit waiver thereof. On August 31, 2006,
Daughenbaugh was sentenced to 84 months imprisonment to be followed by a
life term of supervised release.
On August 17, 2007, Daughenbaugh filed a pro se motion to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255, alleging that his counsel
in the district court was ineffective for coercing him into pleading guilty, failing
to file a direct appeal, failing to move to dismiss the case, and failing to
investigate and file pretrial motions. The district court scheduled an evidentiary
hearing as to Daughenbaugh’s counsel’s failure to file a direct appeal and denied
the motion with respect to all of Daughenbaugh’s other issues. Before this
hearing was held, however, the parties jointly stipulated that Daughenbaugh’s
counsel did not inform him that the notice appeal had to be filed within ten days
of the entry of judgment and that he had a right to an appointed appellate
attorney if he could not afford one. The district court then granted
Daughenbaugh an out-of-time appeal and ordered the judgment reinstated. On
March 6, 2008, Daughenbaugh timely filed a notice of appeal.
II.
Rule 7(b) of the Federal Rules of Criminal Procedure states that “[a]n
offense punishable by imprisonment for more than one year may be prosecuted
by information if the defendant—in open court and after being advised of the
nature of the charge and of the defendant’s rights—waives prosecution by
indictment.” Daughenbaugh asserts that because he had not been indicted and
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did not knowingly and voluntarily waive his right to grand jury indictment, the
district court plainly erred in accepting his guilty plea. This argument, however,
is waived. It is well-settled that “[w]hen a defendant enters a voluntary and
unconditional guilty plea, the plea has the effect of waiving all nonjurisdictional
defects in the prior proceedings.” 1 United States v. Stevens, 487 F.3d 232, 238
(5th Cir. 2007), cert. denied, 128 S. Ct. 336 (2007). As the Supreme Court stated
in Tollett v. Henderson:
[A] guilty plea represents a break in the chain of events which
has preceded it in the criminal process. When a criminal
defendant has solemnly admitted in open court that he is in
fact guilty of the offense with which he is charged, he may not
thereafter raise independent claims relating to the deprivation
of constitutional rights that occurred prior to the entry of the
guilty plea. He may only attack the voluntary and intelligent
character of the guilty plea by showing that the advice he
received from counsel was not within the standards set forth
in McMann [v. Richardson, 397 U.S. 759, 770, (1970)].
411 U.S. 258, 267 (1973). Daughenbaugh does not here allege that his guilty
plea was not knowing and voluntary. Further, any deprivation of
Daughenbaugh’s right to indictment by grand jury here took place prior to his
entry of a guilty plea, and in light of the Supreme Court’s recent
pronouncements on jurisdiction, we conclude that the use of a bill of information
in the absence of a waiver of indictment is a nonjurisdictional defect, which he
cannot now raise. In United States v. Cotton, the Supreme Court held that
“indictment omissions” do not deprive a court of jurisdiction, noting that while
“subject-matter jurisdiction, because it involves a court’s power to hear a case,
can never be forfeited or waived. . . . the grand jury right can be waived.” 535
U.S. 625, 630–31 (2002) (internal citations omitted); see also Kontrick v. Ryan,
1
A defendant may preserve a claim for appellate review while pleading guilty by
entering a “conditional plea” under Rule 11(a)(2) of the Federal Rules of Criminal Procedure.
See United States v. Bell, 966 F.2d 914, 915–16 (5th Cir. 1992).
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540 U.S. 443, 456 (2004) (“Clarity would be facilitated if courts and litigants
used the label ‘jurisdictional’ . . . only for prescriptions delineating the classes of
cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling
within a court’s adjudicatory authority.”); United States v. Cothran, 302 F.3d
279, 283 (5th Cir. 2002) (noting that while our earlier precedent had treated
certain indictment errors as jurisdictional, “Cotton demonstrates that standard
waiver principles apply to defects in the indictment”). And although we have not
previously addressed whether accepting a plea to a bill of information in the
absence of an indictment waiver—as opposed to proceeding on a defective
indictment, see Cothran, 302 F.3d at 282–83—implicates a district court’s
jurisdiction, we do not see a distinction between the two for the purposes of the
present inquiry. Under the reasoning in Cotton, because criminal defendants
may waive the right to grand jury indictment, see Fed. R. Crim. P. 7(b), a failure
to actually secure such a waiver does not affect a district court’s power to hear
a case. Cotton, 535 U.S. at 630. Thus, any error in the charging procedure here
was nonjurisdictional and was therefore waived by Daughenbaugh’s subsequent
guilty plea. Stevens, 487 F.3d at 238.
III.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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