U.S. v. Marks, 93-2017

• Citation: 38 F.3d 1009
• Decision Date: 12 December 1994
• Docket Number: No. 93-2017,93-2017
• Parties: UNITED STATES of America, Appellee, v. Russell B. MARKS, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1009

38 F.3d 1009

UNITED STATES of America, Appellee, v. Russell B. MARKS, Appellant.

No. 93-2017.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 14, 1993.

Decided Oct. 27, 1994.

Rehearing and Suggestion for Rehearing

En Banc Denied Dec. 12, 1994.

Thomas A. Sheehan, Kansas City, MO, argued, for appellant.

Cynthia Jean Hyde, U.S. Atty., Springfield, MO, argued, for appellee.

Before McMILLIAN, FAGG, and BOWMAN, Circuit Judges.

BOWMAN, Circuit Judge.

Russell Bradley Marks pled guilty to one count of conspiracy to distribute cocaine, a violation of 21 U.S.C. Sec. 846, and one count of conspiracy to launder money, a violation of 18 U.S.C. Sec. 371. He appeals both of the resulting convictions and his mandatory life sentence on the cocaine conviction. We affirm.

I.

Marks argues that the District Court ¹ did not properly inform him of the nature of the charges against him, did not establish a factual basis for his plea of guilty under Count 1 (the cocaine conspiracy count), and did not inform him of the possible sentence he faced under that count.

A.

We first consider Marks' contention that the trial court failed to inform him of the nature of the charges. Rule 11(c)(1) of the Federal Rules of Criminal Procedure requires that the court must "inform the defendant of, and determine that the defendant understands ... the nature of the charge to which the plea is offered...." Here the District Court addressed Marks and discussed the charges, but did not fully recite them. In determining whether the defendant understood the nature of the charges, it is necessary to "examine the totality of the circumstances. We examine whether the indictment gave him notice of the charge, whether he discussed the charge with his attorney or the judge, and we look at any other facts which are in the record." United States v. Nieuwsma, 779 F.2d 1359, 1361 (8th Cir.1985).

Count 1 accused the defendant of participation in a conspiracy to distribute cocaine. Marks had received notice of this charge in the indictment, testified under oath that he had counseled extensively with his attorney ² concerning the charge, and agreed that he understood its nature. See Plea Hearing Tr. at 7. Marks' attorney similarly stated that defendant was aware of the meaning of the charge. Id. at 7-8. The District Court summarized conspiracy to distribute in simple language before engaging in a discussion with Marks to establish a factual basis for his plea. Id. at 11. When a defendant indicates "at the plea hearing that he had read the indictment and understood the charges against him, '[s]uch statements at the plea hearing provide persuasive evidence of an understanding' of the nature of the charges." United States v. Young, 927 F.2d 1060, 1064 (8th Cir.) (quoting Harvey v. United States, 850 F.2d 388, 396 (8th Cir.1988)), cert. denied, --- U.S. ----, 112 S.Ct. 384, 116 L.Ed.2d 334 (1991). The transcript of the plea hearing shows that Marks understood the nature of the charge, Plea Hearing Tr. at 7, while his reference to specific overt acts, id., at 12, 13, satisfies us that he had read the indictment.

Marks further argues with respect to Count 1 that the court erred in failing to inform him that the government would have to prove beyond a reasonable doubt that he had "knowingly and intentionally" conspired with others. It is not always necessary, however, to explain formally the elements of an offense if the defendant understood the nature of the charge. See Nieuwsma, 779 F.2d at 1362. Here it is clear that defendant "understood that he was pleading guilty to conspiracy to distribute cocaine, and that it involved an agreement to commit a crime, and that he understood the nature of the charge. There was substantial compliance under Rule 11 in this regard." United States v. Kriz, 586 F.2d 1178, 1180 (8th Cir.1978), cert. denied, 442 U.S. 945, 99 S.Ct. 2893, 61 L.Ed.2d 317 (1979). In these circumstances, the District Court did not err in failing to explain the government's burden of proof, and adequately informed the defendant of the nature of the charge under Count 1.

The record on Count 3, which charged Marks with conspiracy to launder money, is not as clear. As in the case of Count 1, Marks received notice in the indictment of the charge, testified under oath that he had counseled extensively with his attorney concerning the charge, and stated that he understood its nature. See Plea Hearing Tr. at 7. Marks' attorney agreed that Marks was aware of the meaning of the count, while the government's attorney noted that the charge concerned a "conspiracy to launder money derived from drug trafficking." Plea Hearing Tr. at 7-8, 2. The court, however, merely stated with respect to Count 3 that: "It charges that you conducted some financial transactions involving proceeds that you had received and--generally from drug trafficking ...," id. at 12, before going on to question Marks about specific overt acts alleged under the count. While a clearer statement of the nature of the charge would have been desirable, we cannot say that defendant is entitled to a reversal under the Young test. Marks' responses to the court's queries about overt acts, see id. at 12, 13, indicate that he had read the indictment, and he testified affirmatively as to his understanding of the charges against him, id., at 7. He had discussed the charges with his attorney, had heard them stated succinctly by the government's attorney, and had been questioned about them by the court. Examining the totality of the circumstances, we conclude that Marks was adequately informed of the nature of the charge in Count 3.

B.

Marks further argues that his guilty plea should be vacated because the trial court did not establish a factual basis for the plea's acceptance. As only Count 1, the charge of conspiracy to distribute cocaine, is discussed in Marks' brief, we will limit our discussion accordingly.

For the purposes of Rule 11(f) of the Federal Rules of Criminal Procedure, a factual basis for a plea of guilty is established when the court determines there is sufficient evidence at the time of the plea upon which the court may reasonably determine that the defendant likely committed the offense. See United States v. Boucher, 909 F.2d 1170, 1175 (8th Cir.), cert. denied, 498 U.S. 942, 111 S.Ct. 350, 112 L.Ed.2d 314 (1990). This determination is satisfied if the transcript describes the acts to which the defendant pleaded guilty. See United States v. Villegas, 987 F.2d 1362, 1364 (8th Cir.1993).

In this case, the indictment charged that Marks had conspired with several other named individuals, some of them charged as co-conspirators and some of them mentioned as unindicted co-conspirators, to distribute cocaine. At the plea hearing, the following colloquy took place:

THE COURT: Now, Count 1 charges, commencing in June of 1987 and continuing to on or about July 1991, you agreed or conspired with others to distribute a mixture containing cocaine.

During that period of time, did you have some sort of an understanding with other people that you would possess and distribute cocaine?

THE DEFENDANT: Yes, sir.

THE COURT: What was your involvement in this regard?

What was [sic] your duties or obligations in regard to the agreement or the understanding?

What were you supposed to do?

THE DEFENDANT: I really didn't do anything, I guess, except answer the phone. If somebody said they needed something, then, I guess I helped them achieve their goals.

THE COURT: Did you receive some telephone calls from people wanting cocaine?

THE DEFENDANT: Yes, sir I did.

THE COURT: Did you make arrangements to see that they got them [sic]?

THE DEFENDANT: Yes, sir, I did.

Plea Hearing Tr. at 11-12. Conspiracy to distribute does not require that the existence of a formal agreement be demonstrated; " 'showing a tacit agreement by understanding proven wholly by circumstantial evidence or by inferences from the parties' actions is sufficient.' " United States v. Casas, 999 F.2d 1225, 1229 (8th Cir.1993) (quoting United States v. Searing, 984 F.2d 960, 964 (8th Cir.1993)), cert. denied, --- U.S. ----, 114 S.Ct. 894, 127 L.Ed.2d 86 (1994). At the same time, some degree of knowing involvement and cooperation beyond mere knowledge must be established. Casas, 999 F.2d at 1229. Here, the defendant clearly admitted to an understanding with others to possess and distribute cocaine, establishing his knowing involvement and cooperation in the conspiracy.

Marks refers us to United States v. Townsend, 924 F.2d 1385 (7th Cir.1991), which notes that a drug sale, "by definition, requires two parties; their combination for that limited purpose does not increase the likelihood that the sale will take place, so conspiracy liability would be inappropriate." Id. at 1394. Townsend also notes, however, that conspiracies "are typically distinguished by cooperative relationships between the parties that facilitate achievement of the goal." Id. at 1395. Marks admitted that "[i]f somebody said they needed something, then, I guess I helped them achieve their goals." Plea Hearing Tr. at 11. While we might wish that more had been done to establish a factual basis for Marks' plea on Count 1 in the District Court's colloquy with defendant, we nevertheless believe that what was done is adequate. Accordingly, Marks is not entitled to have his plea vacated on this ground.

C.

We now turn to Marks' contention that his guilty plea should be vacated because the court did not adequately notify him of possible sentences. Rule 11(c)(1) of the Federal Rules of Criminal Procedure states that the court must "inform the defendant of, and determine that the defendant understands ... the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole or supervised release term," and "the fact that the court is required to consider any applicable sentencing...