Eleventh Circuit Court of Appeals - Published Opinions

Friday, January 11, 2013

McIntosh: Indictment unnecessary to sustain sentence

In U.S. v. McIntosh, No. 10-15894 (Jan. 7, 2013),

the Court held that the dismissal of an original indictment did not result in the district court’s loss of jurisdiction over a guilty plea entered before dismissal of the indictment. The Court noted that only an indictment’s failure to describe conduct proscribed by a federal statute is a jurisdictional defect. McIntosh’s original indictment did not suffer from this kind of defect (it alleged the wrong date for the commission of the offense).

The Court rejected the argument that because the indictment had been dismissed prior to sentencing, the sentencing violated the Fifth Amendment’s Grand Jury Clause, which provides that a person shall not “answer for” a crime unless indicted. The Court found that once a defendant has been convicted, the indictment no longer serves a function. “An indictment defect that exists only after a conviction is, at most, a technical defect because it has no bearing on the substantive fairness of the conviction or the process by which it was obtained.”

The Court rejected the argument that allowing a district court to proceed with sentencing after the indictment had been dismissed usurped on the Executive Branch’s sole authority to bring cases. The Court noted that the prosecutor retained the power to unequivocally terminate cases by moving to vacate convictions.

Turning to sentencing, the Court agreed with both McIntosh and the government that he should be resentenced in accordance with the Fair Sentencing Act’s revised penalty provisions, because he was sentenced after the FSA took effect. “The FSA’s revised penalties apply to defendants sentenced after the FSA’s effective date, even if their offenses occurred prior to that date.”