U.S. v. Adams, 91-2408

• Decision Date: 08 May 1992
• Docket Number: No. 91-2408,91-2408
• Citation: 961 F.2d 505
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cindy Gabbard ADAMS, a/k/a Cindy Sanchez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 505

961 F.2d 505

UNITED STATES of America, Plaintiff-Appellee, v. Cindy Gabbard ADAMS, a/k/a Cindy Sanchez, Defendant-Appellant.

No. 91-2408.

United States Court of Appeals Fifth Circuit.

May 8, 1992.

Joseph A. Connors, III and Dorina Ramos, McAllen, Tex., for defendant-appellant.

James Turner, Paula C. Offenhauser, Asst. U.S. Attys., and Ronald G. Woods, U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, JOHNSON and DAVIS, Circuit Judges.

PER CURIAM:

After a guilty plea, the district court convicted defendant Cindy Gabbard Adams of misprision of a felony in violation of 18 U.S.C. § 4 and sentenced the defendant to a term of imprisonment. On appeal, Adams complains that the record contains an inadequate factual basis for her guilty plea. Although we agree that the district court did not establish a factual basis for Adams's plea in full compliance with Rule 11(f), we find this failure to be harmless error. Accordingly, we affirm.

I. FACTS AND PROCEDURAL HISTORY

During the 1970s, Ramon Dionicio Martinez, also known as "Jose Luis Sanchez" and "El Lechero," formed an illegal narcotics distribution ring in the Rio Grande Valley. Martinez and his fellow conspirators imported huge quantities of marijuana from Mexico and distributed the marijuana to dealers across the United States. From the sale of these illegal drugs, Martinez derived a large income. He invested much of this income in real estate, frequently using sham or fraudulent transactions to conceal his involvement. In December 1986 Martinez purchased a residence in Edinburg, Texas, with proceeds derived from the sale of illegal narcotics. Eventually, he transferred the title in the house to his girlfriend, the defendant Cindy Gabbard Adams.

On May 30, 1990, the Government named Martinez and thirty other defendants in a ninety-one count indictment charging them with participation in an illegal narcotics distribution and racketeering enterprise. Although Adams had not been directly involved in the distribution ring, she was named in six counts of the indictment. Adams maintained a plea of "not guilty" to these charges until December 4, 1990. On that date, the Government filed a superseding information charging Adams with one count of misprision of a felony. ¹ Specifically, the Government alleged that Adams knew that Martinez had used laundered money to purchase the Edinburg residence and had failed to report this illegal purchase to the authorities. In exchange for the Government's promise to dismiss the indictment against her, Adams agreed to relinquish her interest in the Edinburg house and to enter a guilty plea to the charge in the superseding information.

At her rearraignment, the district court reviewed the terms of the superseding information with Adams, who related that she understood the terms of the charge. Adams entered a plea of guilty to the misprision charge alleged in the superseding information, and the district court accepted the plea. On April 9, 1991, after the court received the recommendation of the probation office in its presentence report, the court sentenced Adams to three years in prison, but ordered her to serve only the first six months of the sentence, the remainder suspended for five years. ² Adams filed a timely notice of appeal.

II. DISCUSSION

A guilty plea is insufficient in itself to support a criminal conviction. When a defendant enters a guilty plea, Federal Rule of Criminal Procedure 11(f) requires "a factual basis for the plea." Fed.R.Crim.P. 11(f). The sentencing court must satisfy itself, through an inquiry of the defendant or examination of the relevant materials in the record, that an adequate factual basis exists for the elements of the offense. United States v. Montoya-Camacho, 644 F.2d 480, 485 (5th Cir.1981). The factual basis cannot be implied from the fact that the defendant entered a plea, but must appear on the face of the record and "must be precise enough and sufficiently specific" to demonstrate that the accused committed the charged criminal offense. United States v. Johnson, 546 F.2d 1225, 1226 (5th Cir.1977).

The record must reveal specific factual allegations supporting each element of the offense. United States v. Fountain, 777 F.2d 351, 356 (7th Cir.1985), cert. denied, 475 U.S. 1029, 106 S.Ct. 1232, 89 L.Ed.2d 341 (1986). To support a conviction for misprision of a felony, therefore, the record must reveal specific factual allegations regarding the following three elements: (1) the defendant had knowledge that a felony was committed; (2) the defendant failed to notify authorities of the felony; and (3) the defendant took an affirmative step to conceal the felony. 18 U.S.C. § 4 (1988). See United States v. Davila, 698 F.2d 715, 717 (5th Cir.1983).

A. Factual Basis.

Adams contends that there are no facts in the record establishing the third element of her alleged offense--an affirmative act of concealment. The misprision statute is directed against an individual who "conceals and does not as soon as possible make known...." 18 U.S.C. § 4 (1988) (emphasis added). Thus, under the misprision statute, the defendant must commit an affirmative act to prevent discovery of the earlier felony. "[M]ere failure to make known does not suffice." United States v. Warters, 885 F.2d 1266, 1275 (5th Cir.1989). See also Johnson, 546 F.2d at 1227.

The acceptance of a guilty plea is deemed a factual finding that there is an adequate factual basis for the plea. Davila, 698 F.2d at 717. We review this finding under the clearly erroneous standard. Id. To determine whether the district court erred in concluding that there was an adequate factual basis for the plea, we must examine two parts of the record: the information and the plea hearing. ³

The Information. Defendant Adams waived grand jury indictment and entered a guilty plea to an information charging her with misprision of a felony. In its entirety, the superseding information states:

The United States Attorney Charges:

That starting in December of 1986 to about February of 1987 in the Southern District of Texas and elsewhere and in the jurisdiction of this court

CINDY GABBARD ADAMS

having knowledge of the commission of a felony by Ramon Dionicio Martinez, to wit: a violation of the money laundering statute, 18 USC 1956 (the Peter Street house purchase), did knowingly and unlawfully conceal and cover up the same and did not as soon as possible report the same to a judge or other person in civil or military authority under the United States.

Record Vol. I, at 438. The Government suggests that this superseding information is adequate to provide a factual basis for the guilty plea.

If sufficiently specific, an indictment or information can be used as the sole source of the factual basis for a guilty plea. United States v. Bachynsky, 949 F.2d 722, 730 (5th Cir.1991); United States v. Boatright, 588 F.2d 471, 475 (5th Cir.1979). The superseding information in this case, however, is not sufficiently specific. While it states that Adams concealed Ramon Martinez's violation of the money laundering statute, the information fails to allege any facts which would indicate that Adams took an affirmative step to conceal the crime. Cf. Boatright, 588 F.2d at 475 (concluding that an indictment is not adequate to serve as the factual basis for a plea of guilty to a conspiracy charge when the indictment "fails to allege any facts tying [the defendant] to the conspiracy.").

The Plea Hearing. At rearraignment, the district court engaged in the following colloquy:

ATTORNEY FOR THE GOVERNMENT: Your Honor, as to Cindy Gabbard Adams, she was the mistress or girlfriend of large scale drug dealer Ramon Martinez over a period of several years. As Mr. Martinez generated huge sums of money from his drug dealing, he invested some of this money in assets that he placed in names other than his own, and for purposes of this factual allocution, in real estate. Mr. Martinez was involved in getting money from drug dealing, buying assets and putting those assets in names other than his own to hide his own ownership, control, participation of the assets. In particular, in the Peter Street address or the Peter Street asset which is one of the assets we're seeking forfeiture of in the indictment.

He, Ramon Martinez, and Ms. Adams attended a real estate auction, a private auction, in December of 1986, and at that auction Ramon Martinez paid down a down payment of about 10 percent of the purchase of the Peter Street house, total purchase price of the house was approximately $40,000 and around $4,000 paid down. Thereafter, in approximately February of 1987, a check from the Robert Salinas law firm, funded by Ramon Martinez, was used to pay off the balance of that property. That property in February of '87 was then deeded to Ramon Martinez' brother's name, Juan Martinez, and that is the money laundering violation that is made out by Ms. Adams' misprison [sic] of that felony.

Further down the line, this property gets transferred to Ms. Adams. In fact, I believe title to date rests in her name, but the crime here is not that which it occurred at a later date, but rather the initial purchase by Ramon Martinez with drug money putting it into someone else's name to hide his own ownership of it.

THE COURT: All right. Ms. Adams, you've just heard what Mr. Lewis has explained to me. Is all of that true?

CINDY ADAMS: Yes, sir.

THE COURT: And you were aware of it?

CINDY ADAMS: Yes, sir.

THE COURT: You were aware of all these facts?

CINDY ADAMS: Yes, sir.

ATTORNEY FOR THE GOVERNMENT: And in fact concealed it and did not make it known to anybody.

THE COURT: And you did not, of course, report it to the authorities?

CINDY ADAMS: No, sir.

THE COURT: All right. I'm going to accept your plea of guilty. I find that you are guilty as set out in the information....

Record Vol. IV, at 54-56...