Guilty Plea to Information Waives Argument That Defendant Did Not Knowingly and Voluntarily Waive Right to Indictment

United States v. Daughenbaugh, No. 08-30254 (5th Cir. Nov. 19, 2008) (Benavides, Southwick, Haynes)

Daughenbaugh agreed to plead guilty to an information charging him with one count of possessing child pornography. "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." He was sentenced to 84 months' imprisonment, followed by a life term of supervsied release.

After some convoluted procedural maneuverings, Daughenbaugh appealed his conviction. He argued "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." He apparently did not argue that, as a result of the lack of an indictment waiver, his guilty plea itself was unknowing and involuntary.

The court, pointing to the rule that a guilty plea waives all nonjurisdictional defects in the prior proceedings, held that Daughenbaugh's guilty plea waived his indictment argument.

[A]ny 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. . . . [A]lthough 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—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, a failure to actually secure such a waiver does not affect a district court’s power to hear a case. Thus, any error in the charging procedure here was nonjurisdictional and was therefore waived by Daughenbaugh’s subsequent guilty plea.

(internal cites omitted).