Harold Edwin O'Leary v. United States, 856 F.2d 1142 (8th Cir. 1988). · Go Syfert
Harold Edwin O'Leary v. United States, 856 F.2d 1142 (8th Cir. 1988). Cases Citing This Book View Copy Cite
“in pleading guilty, a defendant admits -10- all of the factual allegations made in the indictment.”
56 citation events (21 in the last 25 years) across 14 distinct courts.
Strongest positive: United States v. Gary Apker (ca8, 1999-04-19)
Treatment trajectory · 1989 → 2026 · click a year to view as-of
1989 2007 2026
Top citers, strongest first. 47 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) United States v. Gary Apker
8th Cir. · 1999 · signal: see also · quote attribution · 1 verbatim quote · confidence high
in pleading guilty, a defendant admits -10- all of the factual allegations made in the indictment.
cited Cited as authority (rule) Rutledge v. United States
D.S.D. · 2024 · confidence medium
O’Leary v. United States, 856 F.2d 1142, 1143 (8th Cir. 1988) (per curiam).
cited Cited as authority (rule) Woods v. United States
E.D. Mo. · 2021 · confidence medium
“In order to establish a jurisdictional defect, [Movant] must show that the indictment on its face fails to state an offense.” O’Leary v. United States, 856 F.2d 1142, 1143 (8th Cir. 1988).
cited Cited as authority (rule) United States v. Mubarak Hamed
8th Cir. · 2020 · confidence medium
United States v. White, 408 F.3d 399, 402 (8th Cir. 1999); O’Leary v. United States, 856 F.2d 1142, 1143 (8th Cir. 1988) (per curiam).
discussed Cited as authority (rule) United States v. Riley Carnahan
8th Cir. · 2012 · confidence medium
“A plea of guilty is the equivalent of admitting all material facts alleged in the charge.” United States v. Apker, 174 F.3d 934, 940 (8th Cir.1999); see United States v. White, 408 F.3d 399, 402 (8th Cir.), cert. denied, 546 U.S. 1025 , 126 S.Ct. 674 , 163 L.Ed.2d 543 (2005); O’Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988).
cited Cited as authority (rule) Whitepipe v. Weber
D.S.D. · 2007 · confidence medium
O’Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988) (a defendant who pleads guilty “waives all challenges that do not relate to jurisdiction”).
cited Cited as authority (rule) United States v. Rex Breitbach
8th Cir. · 2006 · confidence medium
See United States v. White, 408 F.3d 399, 402 (8th Cir.2005); O’Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.l988)(per curiam).
discussed Cited as authority (rule) United States v. Mathis Implement, Inc.
D.S.D. · 2005 · confidence medium
Farley was also instructed by RICHARD MATHIS to begin filing false Forms 941 with the IRS which failed to report the case wages paid to the employees. [¶ 23] “In pleading guilty, a defendant admits all of the factual allegations made in the indictment.” United States v. White, 408 F.3d 399, 402 (8th Cir.2005), O’Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988), and United States v. DiFonzo, 603 F.2d 1260, 1263 (7th Cir. 1979), cert. denied, 444 U.S. 1018 , 100 S.Ct. 672 , 62 L.Ed.2d 648 (1980).
discussed Cited as authority (rule) United States v. Johnson
N.D. Iowa · 2005 · confidence medium
See, e.g., United States v. Pemberton, 405 F.3d 656 , 659 (8th Cir.2005) (“Even if Pemberton’s characterization of [18 U.S.C.] § 1153(a) as jurisdictional is correct, it is well settled ‘[i]n order for a defendant who has pleaded guilty to sustain a challenge to the district court’s jurisdiction, he must establish that the face of the indictment failed to charge a federal offense.’ ”) (quoting Mack v. United States, 853 F.2d 585, 586 (8th Cir.1988) (citation omitted)); United States v. Fitzhugh, 78 F.3d 1326, 1330 (8th Cir.1996) (“[One] type of jurisdictional defect occurs when …
discussed Cited as authority (rule) United States v. Brian White
8th Cir. · 2005 · confidence medium
But our cases have taken a different approach; they indicate that when a defendant pleads guilty he “admits all of the factual allegations made in the indictment.” O’Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988) (per curiam).
discussed Cited as authority (rule) United States v. Gosselin World Wide Moving, N.V.
4th Cir. · 2005 · confidence medium
A defendant who pleads guilty therefore “admits all of the factual allegations. made in the indictment,” O’Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988) (per curiam), and waives “all non-jurisdictional defects, including the right to contest the factual merits of the charges.” Willis, 992 F.2d at 490 (internal citations omitted); see also United States v. Wiggins, 905 F.2d 51, 52 (4th Cir.1990).
discussed Cited as authority (rule) United States v. Gosselin World Wide Moving, N v. The Pasha Group, United States of America v. Gosselin World Wide Moving, N v. and the Pasha Group, United States of America v. The Pasha Group, and Gosselin World Wide Moving, N.V.
4th Cir. · 2005 · confidence medium
A defendant who pleads guilty therefore "admits all of the factual allegations made in the indictment," O'Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988) (per curiam), and waives "all non-jurisdictional defects, including the right to contest the factual merits of the charges." Willis, 992 F.2d at 490 (internal citations omitted); see also United States v. Wiggins, 905 F.2d 51, 52 (4th Cir.1990).
discussed Cited as authority (rule) United States v. Brian White
8th Cir. · 2005 · confidence medium
But our cases have taken a different approach; they indicate that when a defendant pleads guilty he "admits all of the factual allegations made in the indictment." O'Leary v. United States, 856 F.2d 1142, 1143 (8th Cir. 1988) (per curiam).
discussed Cited as authority (rule) United States v. Adolfo B. Lara
8th Cir. · 2003 · confidence medium
See United States v. Cotton, 535 U.S. 625 , 122 S.Ct. 1781, 1785 , 152 L.Ed.2d 860 (2002) (“defects in an indictment do not deprive a court of its power to adjudicate a case”); O’Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988) (per curiam) (in pleading guilty, defendant admits all factual allegations made in indictment).
discussed Cited as authority (rule) UnitedStates v. Lee Sherman Beene
8th Cir. · 2003 · confidence medium
Also, Beene’s guilty plea forecloses any argument about his intent to commit the offense, see Walker v. United States, 115 F.3d 603, 604 (8th Cir.1997); O’Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988) (per curiam); and any claim of ineffective assistance should be raised in a 28 U.S.C. § 2255 motion, see United States v. Cain, 134 F.3d 1345,1352 (8th Cir.1998).
cited Cited as authority (rule) United States v. Davis
3rd Cir. · 2002 · confidence medium
United States v. Fitzhugh, 78 F.3d 1326, 1330 (8th Cir.1996) (quoting O’Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988)).
cited Cited as authority (rule) United States v. Marilyn M. Moss
8th Cir. · 2001 · confidence medium
O’Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988).
discussed Cited as authority (rule) United States v. Spinner (2×)
3rd Cir. · 1999 · confidence medium
In United States v. Caperell, 938 F.2d 975 (9th Cir.1991), the Ninth Circuit Court of Appeals held that “[although a guilty plea generally waives all claims of constitutional violation occurring before the plea, ‘jurisdictional’ claims are an exception to this rule.” Id. at 977 (quoting United States v. Montilla, 870 F.2d 549, 552 (9th Cir.1989), amended at 907 F.2d 115 (9th Cir.1990) (“Claims that ‘the applicable statute is unconstitutional or that the indictment fails to state an offense’ are jurisdictional claims not waived by the guilty plea.”)); see also United States v. R…
discussed Cited as authority (rule) United States v. Narin Prasert Vong, United States of America v. Khanesavanh Nhalay, Also Known as Khan, United States of America v. David Edward Martin
8th Cir. · 1999 · confidence medium
By pleading guilty, Martin admitted all of the factual allegations made in the indictment, see O'Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988), and he waives all nonjurisdictional defenses.
discussed Cited as authority (rule) United States v. Narin Vong
8th Cir. · 1999 · confidence medium
By pleading guilty, Martin admitted all of the factual allegations made in the indictment, see O’Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988), and he waives all nonjurisdictional defenses.
cited Cited as authority (rule) Fireman v. United States
D. Mass. · 1998 · confidence medium
See Ex Parte Siebold, 100 U.S. 371, 376-77 , 25 L.Ed. 717 (1880); O’Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988).
discussed Cited as authority (rule) United States v. Eugene Fitzhugh
8th Cir. · 1996 · confidence medium
Another type of jurisdictional defect occurs when “the indictment on its face fails to state an offense.” O’Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988); see United States v. Caperell, 938 F.2d 975, 977-78 (9th Cir.1991).
discussed Cited as authority (rule) United States v. Eugene Fitzhugh
8th Cir. · 1996 · confidence medium
Another type of jurisdictional defect occurs when "the indictment on its face fails to state an offense." O'Leary v. United States, 856 F.2d 1142, 1143 (8th Cir. 1988); see United States v. Caperell, 938 F.2d 975, 977-78 (9th Cir. 1991). 1 On August 5, 1994, Kenneth W.
discussed Cited as authority (rule) United States v. Jones
unknown court · 1996 · confidence medium
If this allegation of selective prosecution is such a constitutional violation, then Jones’ motion to withdraw his guilty plea may nonetheless be justified. “[A] plea of guilty admits all of the elements of a criminal charge, and waives all challenges to the prosecution either by direct appeal or by collateral attack, except challenges to the court’s jurisdiction.” Mack v. United States, 853 F.2d 585, 586 (8th Cir.1988) (citing Hayle v. United States, 815 F.2d 879, 881 (2d Cir.1987)); see also United States v. Broce, 488 U.S. at 570 , 109 S.Ct. at 762 (noting that guilty pleas are more…
examined Cited as authority (rule) Max Weisberg v. State of Minnesota (4×)
8th Cir. · 1994 · signal: cf. · confidence medium
We have often interpreted these Supreme Court cases to foreclose claims that raise “nonjuris-dictional” issues and to permit only claims that question the trial court’s “jurisdiction.” See, e.g., Vaughan, 13 F.3d at 1188 (holding that guilty plea forecloses double jeopardy claim unless breach of prior plea agreement is “apparent ‘on the face of the record’”); United States v. Stewart, 972 F.2d 216, 217-18 (8th Cir.1992) (holding that guilty plea forecloses Fourth Amendment claim); Smith v. United States, 876 F.2d 655, 657 (8th Cir.) (holding that guilty plea forecloses Fourth…
discussed Cited as authority (rule) Juan Jose Arriaga v. United States
8th Cir. · 1993 · confidence medium
By entering a valid plea of guilty, Arriaga waived all challenges to nonjurisdictional claims, see O'Leary v. United States, 856 F.2d 1142, 1143 (8th Cir. 1988) (per curiam), including challenges to the validity of a search and seizure, see Smith v. United States, 876 F.2d 655, 657 (8th Cir.), cert. denied, 493 U.S. 869 (1989).
cited Cited as authority (rule) United States v. Wayne Mark Burns
8th Cir. · 1992 · confidence medium
United States v. O'Leary, 856 F.2d 1142, 1143 (8th Cir. 1988) (per curiam) (guilty plea is admission to all factual allegations in the indictment).
discussed Cited as authority (rule) United States v. Gerald Caperell
9th Cir. · 1991 · confidence medium
See United States v. Rivera, 879 F.2d 1247, 1251 (5th Cir.), cert. denied, — U.S. -, 110 S.Ct. 554 , 107 L.Ed.2d 550 (1989); O’Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988) (per curiam); United States v. Di Fonzo, 603 F.2d 1260, 1263 (7th Cir.1979), cert. denied, 444 U.S. 1018 , 100 S.Ct. 672 , 62 L.Ed.2d 648 (1980).
discussed Cited as authority (rule) Elijah Hill v. United States
8th Cir. · 1991 · confidence medium
See Smith v. United States, 876 F.2d 655, 657 (8th Cir.) (per curiam) (habeas petitioner’s guilty plea waived claim of failure to disclose favorable evidence), cert. denied, — U.S. —, 110 S.Ct. 195 , 107 L.Ed.2d 149 (1989); O’Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988) (per curiam) (defendant who pleads guilty admits factual allegations in indictment and waives all non-jurisdictional challenges).
cited Cited as authority (rule) Cornelius Smith v. United States
8th Cir. · 1989 · confidence medium
O’Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988) (per curiam).
cited Cited "see" United States v. Jamie Charles
8th Cir. · 2013 · signal: see · confidence high
See O’Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988) (per curiam) (in pleading guilty, defendant admits all factual allegations made in indictment).
cited Cited "see" United States v. Michael Lippincott
8th Cir. · 2003 · signal: see · confidence high
See O’Leary v. *669 United States, 856 F.2d 1142, 1143 (8th Cir.1988) (per curiam).
discussed Cited "see" United States v. Calvin James
8th Cir. · 2000 · signal: see · confidence high
See O'Leary v. United States, 856 F.2d 1142, 1143 (8th Cir. 1988) (per curiam) (standard for showing jurisdictional defect in indictment); United States v. Whitehead, 176 F.3d 1030 , 1037 n.2 (8th Cir. 1999) (elements of bank fraud).
cited Cited "see" United States v. Osar Amon Tate
8th Cir. · 1996 · signal: see · confidence high
See O'Leary v. United States, 856 F.2d 1142, 1143 (8th Cir. 1988) (per curiam) (to establish jurisdictional defect, defendant must show that indictment "on its face fails to state an offense").
cited Cited "see" United States v. Osar Amon Tate
8th Cir. · 1996 · signal: see · confidence high
See O'Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988) (per curiam) (to establish jurisdictional defect, defendant must show that indictment "on its face fails to state an offense").
cited Cited "see" United States v. Kevin Rene Barton
8th Cir. · 1994 · signal: see · confidence high
See O'Leary v. United States, 856 F.2d 1142, 1143 (8th Cir. 1988) (per curiam).
cited Cited "see" United States v. Byron Robert Ball
6th Cir. · 1993 · signal: see · confidence high
See O'Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988) (per curiam).
cited Cited "see" Frank Christian Nichols v. United States
8th Cir. · 1993 · signal: see · confidence high
See O'Leary v. United States, 856 F.2d 1142, 1143 (8th Cir. 1988) (per curiam). 8 Finally, we conclude that Nichols's claims of ineffective assistance of counsel are meritless.
cited Cited "see" United States v. Donald E. Schrack
8th Cir. · 1993 · signal: see · confidence high
See O'Leary v. United States, 856 F.2d 1142, 1143 (8th Cir. 1988)(per curiam).
cited Cited "see" United States v. Terry Smith
9th Cir. · 1991 · signal: see · confidence high
See O'Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988) ("In pleading guilty, a defendant admits all of the factual allegations made in the indictment").
cited Cited "see" United States v. Herbert Alwyn Smith, and Joseph Shea Peeples
2d Cir. · 1990 · signal: see · confidence high
See United States v. Eckhardt, 843 F.2d 989, 996-98 (7th Cir.1988), cert. denied, 488 U.S. 839 , 109 S.Ct. 106 , 102 L.Ed.2d 81 (1988), O’Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988).
discussed Cited "see" State v. Daly (2×)
S.D. · 1990 · signal: see · confidence high
See O'Leary v. United States, 856 F.2d 1142 (8th Cir.1988); Mack v. United States, 853 F.2d 585 (8th Cir. 1988).
cited Cited "see" Glen Blalock v. A.L. Lockhart, Director A.D.C.
8th Cir. · 1990 · signal: see · confidence high
See O’Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988) (per curiam).
cited Cited "see" United States v. Ronald Schmitz
8th Cir. · 1989 · signal: see · confidence high
See O’Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988) (per curiam).
discussed Cited "see, e.g." United States v. Morales-Martinez
5th Cir. · 2007 · signal: see, e.g. · confidence medium
See, e.g., United States v. White, 408 F.3d 399, 404 (8th Cir.2005) (“[W]hen a defendant pleads guilty he ‘admits all of the factual allegations made in the indictment.’ ”) (quoting O’Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988)); United States v. Tolson, 988 F.2d 1494, 1501 (7th Cir.1993) (“[A] defendant who pleads guilty to an indictment voluntarily and with the assistance of counsel before a United States district court judge may not challenge the facts of the indictment on appeal.”); cf. United States v. Broce, 488 U.S. 563, 570 , 109 S.Ct. 757 , 102 L.Ed.2d 927…
cited Cited "see, e.g." United States v. Welch
10th Cir. · 2003 · signal: see, e.g. · confidence medium
See, e.g., O’Leary v. United States, 856 F.2d 1142, 1143 (8th Cir. 1988). 27 .
discussed Cited "see, e.g." United States v. Gary Apker
8th Cir. · 1999 · signal: see also · confidence medium
Under § 924(c), this includes admitting to an underlying drug offense sufficient to support a conviction under that section.’ ” United States v. Powell, 159 F.3d 500, 503 (10th Cir.1998) (quoting United States v. Kelsey, 15 F.3d 152, 153 (10th Cir.1994)), cert. denied, — U.S. -, 119 S.Ct. 1088 , 143 L.Ed.2d 89 (1999); see also O’Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988) (“In pleading guilty, a defendant admits all of the factual allegations made in the indictment.”); Adkins v. United States, 298 F.2d 842, 844 (8th Cir.) (“A plea of guilty is an admission of all …
Retrieving the full opinion text from the archive…
Harold Edwin O’LEARY, Appellant,
v.
UNITED STATES of America, Appellee
88-1133.
Court of Appeals for the Eighth Circuit.
Sep 13, 1988.
856 F.2d 1142
Harold Edwin O’Leary, Springfield, Mo., for appellant., Kathianne Knaup Crane, Asst. U.S. Atty., St. Louis, Mo., for appellee.
Arnold, Fagg, Per Curiam, Wollman.
Cited by 53 opinions  |  Published
PER CURIAM.

Harold E. O’Leary appeals from the district court’s denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. O’Leary pleaded guilty to mail fraud under 18 U.S.C. § 1341 and now challenges the sufficiency of the underlying indictment. We affirm.

O’Leary’s activities as the assistant controller of Southern Comfort Corporation led a federal grand jury to indict him on eight counts of federal mail fraud. The indictment stated that O’Leary defrauded Southern Comfort of over $905,000 and its right to loyal, faithful, and honest service by its employees. Further, the indictment described a scheme in which O’Leary, acting without authorization, used the mail to deposit Southern Comfort corporate funds into a subsidiary’s account. O’Leary then transferred the funds from that account to his personal account. At the plea hearing, O’Leary admitted he had done the acts recited in the indictment as part of the scheme to defraud Southern Comfort of its money. The district court sentenced O’Leary, and O’Leary later filed this section 2255 motion.

In pleading guilty, a defendant admits all of the factual allegations made in the indictment. United States v. DiFonzo, 603 F.2d 1260, 1263 (7th Cir.1979), cert. denied, 444 U.S. 1018, 100 S.Ct. 672, 62 L.Ed.2d 648 (1980); see Parrott v. Brewer, 421 F.2d 1386, 1388 (8th Cir.1970) (per curiam). A defendant pleading guilty also waives all challenges that do not relate to jurisdiction. Camp v. United States, 587 F.2d 397, 399 (8th Cir.1978); accord Hayle v. United States, 815 F.2d 879, 881 (2d Cir.1987). In order to establish a jurisdictional defect, O’Leary must show that the indictment on its face fails to state an offense. See DiFonzo, 603 F.2d at 1263. He has failed to do so. The indictment clearly specified that using the mail to deposit corporate funds into the subsidiary account was a necessary part of O’Leary’s scheme.

In addition, McNally v. United States, — U.S. —, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), does not provide a basis for overturning O’Leary’s conviction. Although the scheme to defraud Southern Comfort of its right to loyal, faithful, and honest employees may not state an offense under McNally, see id. at __, 107 S.Ct. at 2881, the balance of the indictment charges a violation of the mail fraud statute. When “a fraudulent] scheme involves multiple objectives, some of which are insufficient to state an offense under McNally, the remaining * * * charges [are] sufficient to state the offense if they are ‘easily separable’ from the charges deemed insufficient.” United States v. Eckhardt, 843 F.2d 989, 997 (7th Cir.), cert. denied, __ U.S. __, 109 S.Ct. 106, __ L.Ed.2d __ (1988). Here, the reference in the indictment to loyal, faithful, and honest employees constitutes surplusage and thus does not affect the validity of the rest of the indictment. See id.

We have thoroughly considered the other contentions contained in O’Leary’s section 2255 motion. Because these contentions depend on O’Leary’s claim the indictment was insufficient, we find them meritless. Accordingly, we affirm.