Claim That Indictment Charged a “Non-Offense” Was Waived By Guilty Plea

United States v. Rubin, No. 12-3777-cr (2d Cir. Feb. 19, 2014) (Cabranes, Hall, and Chin), available here

Rubin was charged principally with conspiracy to violate the Unlawful Internet Gambling Enforcement Act of 2006 (“Gambling Act”). He pled guilty under an unconditional, written plea agreement, and was sentenced to 36 months of imprisonment.

On appeal, the defendant argued that he was convicted of a “non-offense” when he pled guilty because the indictment did not charge him with conspiring in the business of “betting or wagering;” it alleged only that he handled gambling funds, conduct which, he claimed, was exempt from prosecution under the Gambling Act.

The Circuit held that, even assuming that the indictment charged a “non-offense,” Rubin’s guilty plea waived his right to challenge this purported defect in the indictment. The Court reasoned that, under the Supreme Court’s decision in United States v. Cotton, 535 U.S. 625 (2002), the alleged defect in the indictment was non-jurisdictional, and therefore could be, and was, waived by the defendant’s unconditional guilty plea.

The Court also rejected the defendant’s argument that his 36-month prison sentence was unreasonable. The Circuit noted that the district court justified the sentence — an upward variance from the Guidelines range — by stating that the crime was “particularly reprehensible,” that the defendant’s conduct was “brazen, quite deliberate, and deceptive,” and that the defendant was likely to commit new crimes upon release from imprisonment. Under these circumstances, the sentence was both procedurally and substantively reasonable.

Commentary: This decision holds merely that the defendant, by pleading guilty, waived his right to challenge an alleged non-jurisdictional defect in the indictment. But it never resolves a rather important question: Was this defendant actually guilty of the crime to which he pled guilty?