Argued, December 5, 2013
Petition for certiorari filed at, 07/24/2014
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 defendant's 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.
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.
Before: SACK, LYNCH, and LOHIER, Circuit Judges.
Sack, Circuit Judge
It is well settled that a defendant's 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 " non-jurisdictional" challenges to his conviction--was waived by Yousef's guilty plea. Since Yousef raises no other objection to the validity of his conviction or sentence, we affirm the judgment of the district court.
In July 2008, confidential sources working with the United States Drug Enforcement Administration reported that the appellant, Jamal Yousef (also known as " Talal Hassan Ghantou" ), 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 Yousef's unincarcerated associates in Honduras, posing as members of the Fuerzas Armadas Revolucionarias de Colombia (the " FARC" ) interested in obtaining weapons. 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 Yousef's arrest. Just over one month later, Yousef obtained a conditional release from prison in Honduras. Although Yousef disputes the government's version of exactly what happened next, ...