United States v. Marilyn M. Moss , 14 F. App'x 749 ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
No. 00-3917WM
_____________
United States of America, *
*
Appellee, * On Appeal from the United
* States District Court
v. * for the Western District
* of Missouri.
Marilyn M. Moss, also known as *
Margaret Whitman Bryant, also known * [Not To Be Published]
as Marilyn M. Bryant, *
*
Appellant. *
___________
Submitted: June 1, 2001
Filed: July 26, 2001
___________
Before MORRIS SHEPPARD ARNOLD, RICHARD S. ARNOLD, and FAGG,
Circuit Judges.
___________
PER CURIAM.
Marilyn Moss appeals pro se from her conviction, entered upon a guilty plea, for
knowingly making a false statement in a bankruptcy proceeding, in violation of 18
U.S.C. § 152. She was sentenced to six months' imprisonment to be followed by two
years' supervised release. Ms. Moss received credit towards the entire prison term in
light of the 15 ½ months she spent in pretrial detention. For reversal, Ms. Moss claims
that she would not have pleaded guilty but for counsel's ineffectiveness in failing to
advise her that (1) the indictment did not set forth an offense because it did not allege
that the false statement was material; (2) she should have received credit for time
served towards the term of supervised release; (3) the government had been guilty of
misconduct surrounding her arrest, warranting dismissal of the indictment; and (4) the
conditions of her supervised release that she not possess a firearm, and that she not file
frivolous papers in her bankruptcy action, are illegal. She also presents these as free-
standing claims. We affirm.
I.
Ms. Moss was arrested in Kansas by Kansas police officers on February 24,
1999, at the request of an FBI agent. On February 25, a federal criminal complaint was
filed against her in the Western District of Missouri charging her with bankruptcy
fraud. On March 2, 1999, she was charged in a two-count federal indictment with
knowingly and fraudulently making false statements under penalty of perjury in a
Chapter 7 bankruptcy case she had filed in the Western District of Missouri. Count I
alleged that in a pleading seeking to postpone the creditors' meeting, she had
misrepresented that she was extremely ill and could not attend the meeting; Count II
alleged that she had subsequently filed a false declaration of her own death. Also on
March 2, following a hearing, Ms. Moss was detained as a flight risk.
On April 16, 1999, Ms. Moss's attorney filed a motion for a judicial
determination of Ms. Moss's competency to stand trial. On July 21, 1999, the District
Court found that Ms. Moss was not competent to stand trial, and she was detained in
a federal medical center until May 25, 2000, when the District Court found her
competent. On June 8, 2000, Ms. Moss pleaded guilty to Count I of the indictment, the
government dismissed the second count, and the District Court released her on bond.
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On November 8, 2000, the District Court sentenced Ms. Moss to six months, the
maximum term of imprisonment under the Sentencing Guidelines, with credit for the
15 ½ months already served, to be followed by two years supervised release.
II.
In pleading guilty, a criminal defendant admits the factual allegations in the
indictment and waives all nonjurisdictional defects. O'Leary v. United States, 856 F.2d
1142, 1143 (8th Cir. 1988). A claim that the indictment on its face fails to state an
offense is a "jurisdictional" claim that is not waived. Id. Here, however, even if
materiality of the false statement is an element of 18 U.S.C. § 152, Count I of the
indictment alleges sufficient facts to satisfy this element. See United States v. Yagow,
953 F.2d 427, 433 (8th Cir.) (materiality of misrepresentation for purposes of
bankruptcy fraud is not limited to statements that relate to the assets of the bankrupt
estate), cert. denied, 506 U.S. 833 (1992).
Ms. Moss's claim of government misconduct surrounding her arrest was waived
by her guilty plea. Her claims concerning the conditions of her supervised release are
without merit. We also conclude that her claim that she is entitled to credit toward her
two-year term of supervised release for the time she served in pretrial detention is
without merit. See United States v. Johnson, 529 U.S. 53, 57 (2000) ("supervised
release does not run while an individual remains in the custody of the Bureau of
Prisons").
Accordingly, we affirm the conviction and sentence.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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