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United States v. Rubin

United States Court of Appeals, Second Circuit

February 19, 2014

UNITED STATES OF AMERICA, Appellee,
v.
IRA RUBIN, Defendant-Appellant, DANIEL TZVETKOFF, ISAI SCHEINBERG, RAYMOND BITAR, SCOTT TOM, BRENT BECKLEY, NELSON BURTNICK, PAUL TATE, RYAN LANG, BRADLEY FRANZEN, CHAD ELIE, JOHN CAMPOS, Defendants.

Argued December 12, 2013.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Southern District of New York. No. 10 CR 336(10) -- Lewis A. Kaplan, Judge.

Defendant-Appellant Ira Rubin appeals from the August 6, 2012 judgment of the United States District Court for the Southern District of New York (Lewis A. Kaplan, Judge), sentencing him principally to 36 months' imprisonment for: (1) conspiracy to violate the Unlawful Internet Gambling Enforcement Act of 2006 (the " UIGEA" ), in violation of 18 U.S.C. § 371 and 31 U.S.C. § 5363; (2) conspiracy to commit bank fraud and wire fraud in violation of 18 U.S.C. § § 1343, 1344, and 1349; and (3) conspiracy to commit money laundering in violation of 18 U.S.C. § § 1956(a)(2)(A), 1956(h), and 1957(a). Rubin's principal contention on appeal is that the indictment alleges conduct exempt from prosecution under the UIGEA--a so-called " non-offense" --depriving the District Court of jurisdiction to accept his guilty plea.

We hold that, in light of United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002), the purported defect in Rubin's indictment is non-jurisdictional in nature, and therefore could be, and was, waived by Rubin's unconditional guilty plea. Accordingly, we AFFIRM the judgment of the District Court.

TIMOTHY J. STRAUB[1] (James A. Cohen, Ian S. Weinstein, Laura Jereski, on the brief), Fordham University School of Law, Lincoln Square Legal Services, Inc., New York, NY, for Ira Rubin.

JARED LENOW (Brent S. Wible, on the brief), Assistant United States Attorneys, for Preet Bharara, United States Attorney, United States Attorney's Office for the Southern District of New York, NY, for United States of America.

Before: CABRANES, HALL, AND CHIN, Circuit Judges.

OPINION

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José A. Cabranes, Circuit Judge :

Defendant-Appellant Ira Rubin appeals from the judgment of the United States District Court for the Southern District of New York (Lewis A. Kaplan, Judge ), sentencing him principally to 36 months' imprisonment for: (1) conspiracy to violate the Unlawful Internet Gambling Enforcement Act of 2006 (the " UIGEA" ), in violation of 18 U.S.C. § 371 and 31 U.S.C. § 5363, (2) conspiracy to commit bank fraud and wire fraud, in violation of 18 U.S.C. § § 1343, 1344, and 1349, and (3) conspiracy to launder money, in violation of 18 U.S.C. § § 1956(a)(2)(A), 1956(h), and 1957(a). Rubin's principal contention on appeal is that the indictment alleges conduct exempted from prosecution under the UIGEA--a so-called " non-offense" --depriving the District Court of jurisdiction to accept his guilty plea.

We hold that, in light of United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002), the purported defect in Rubin's indictment is non-jurisdictional in nature, and therefore could be, and was, waived by Rubin's unconditional guilty plea.

BACKGROUND

On March 10, 2011 the Government filed a nine-count Superseding Indictment (the " Indictment" ), Count One charging Rubin and others with conspiring to violate the UIGEA, 31 U.S.C. § § 5361-5367, in violation of 18 U.S.C. § 371.[2] Section 5363 of the UIGEA makes it a federal offense for gambling businesses to " knowingly accept" most forms of payment " in connection with the participation of another person in unlawful Internet gambling." See 31 U.S.C. ยง 5363. The Indictment alleged that from 2006 to 2011, the three leading internet poker companies doing business in the United States (the " Internet Poker Companies" ) violated this prohibition by deceiving ...


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