U.S. v. Davila, 82-1090

• Decision Date: 07 February 1983
• Docket Number: No. 82-1090,82-1090
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Campos DAVILA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 715

698 F.2d 715

UNITED STATES of America, Plaintiff-Appellee, v. Jose Campos DAVILA, Defendant-Appellant.

No. 82-1090.

United States Court of Appeals, Fifth Circuit.

Feb. 7, 1983.

Ruben Montemayor, Harry A. Nass, Jr., San Antonio, Tex., for defendant-appellant.

Sidney Powell, Asst. U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

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

Before INGRAHAM, TATE and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge.

Davila was initially indicted with two others for conspiracy to suborn perjury in violation of 18 U.S.C. Secs. 371 and 1622. Pursuant to a plea agreement, these charges were dismissed, and Davila pleaded guilty to a one count bill of information charging him with misprision of a felony in violation of 18 U.S.C. Sec. 4. The two other co-conspirators did not plead guilty, and were acquitted at trial. Subsequent to this acquittal, but prior to being sentenced, Davila moved to withdraw his guilty plea, claiming inter alia that it would be an abuse of discretion to allow him to be punished for failing to report the conspiracy when the conspirators themselves had gone free. The district court denied the motion, and Davila was sentenced to three years, suspended to three years of supervised probation. On appeal, Davila claims that there was an insufficient factual basis to support his guilty plea under Rule 11 of the Federal Rules of Criminal Procedure. In the alternative, he argues that he cannot be convicted of misprision of a felony following acquittal of the perpetrators of the felony. Finally, he urges that the district court abused its discretion in not allowing withdrawal of the plea.

I. Factual Basis of Plea

Davila first attacks the validity of his conviction on the basis of the trial court's failure to comply with Rule 11(f) of the Federal Rules of Criminal Procedure. Rule 11 requires that a court may not entertain a plea of guilty without determining that the plea is made with an understanding of the nature of the charge and unless it is satisfied that there is a factual basis for the plea. Fed.R.Crim.P. 11. The inquiry as to this factual basis must be "precise enough and sufficiently specific" to determine that the defendant's conduct was "within the ambit of that defined as criminal." Jiminez v. United States, 487 F.2d 212, 213 (5th Cir.1973), cert. denied, 416 U.S. 916, 94 S.Ct. 1623, 40 L.Ed.2d 118 (1974); McCarthy v. United States, 394 U.S. 459, 467, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1968); United States v. Montoya-Camacho, 644 F.2d 480, 486 (5th Cir.1981). This factual basis must appear on the record. United States v. Dayton, 604 F.2d 931, 940 (5th Cir.1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980). An acceptance by the court of the defendant's guilty plea is deemed to be a factual finding on each of these requirements and is reviewable under the clearly erroneous standard. United States v. Jack, 686 F.2d 226, 229 (5th Cir.1982); United States v. Dayton, supra at 941.

In order to sustain a conviction for misprision of a felony, the government must prove that a felony was committed, that Davila had knowledge of the felony, that he failed to notify authorities, and that he took an affirmative step to conceal the crime. United States v. Gravitt, 590 F.2d 123, 126 (5th Cir.1979); United States v. Hodges, 566 F.2d 674, 675 (9th Cir.1977). As explained by this Court in Hodges, mere failure to report a felony is not sufficient. Violation of the misprision statute additionally requires some positive act designed to conceal from authorities the fact that a felony has been committed. See United States v. Hodges, (untruthful statements); United States v. Gravitt, (suppression of evidence); Lancey v. United States, 356 F.2d 407 (9th Cir.1966), cert. denied, 385 U.S. 922, 87 S.Ct. 234, 17 L.Ed.2d 145 (harboring of criminal).

Upon receipt of Davila's guilty plea, the district judge requested that the government state the factual basis of the plea. The government replied:

If Mr. Davila's case would go to trial, the Government would establish that on September 26, 1978, defendant Davila contacted Florencio H. Rendon at the request of Robert J. Kuhn. Mr. Davila offered Rendon $10,000 to assist a client of Mr. Kuhn's. A meeting was held in San Antonio, Texas, on September 28, 1978. At this meeting Kuhn, Davila, and Doyle D. Huckabee requested Florencio H. Rendon to change the testimony he had given in the trial of Frasier Jules Brignon in the Southern District of Texas. The defendants, including the defendant Davila, through this change of testimony would require Rendon to lie. Kuhn agreed to pay Rendon and Davila $15,000 which they were to split among themselves. Mr. Davila would hold the money until the false testimony was given. A second meeting was held in San Antonio, Texas, on October 31, 1978, wherein Mr. Rendon met Kuhn and Huckabee

THE COURT: Excuse me. Are the facts related so far from Mr. Pierce true, Mr. Davila?

MR. DAVILA: Yes, your honor.

THE COURT: That's satisfactory. I will find the factual base exists for a plea and that it has been voluntarily made. I will enter a finding of guilt at this time.

Davila claims that the record discloses only that he failed to come forward and inform authorities of the conversations revealing a conspiracy to suborn perjury, and consequently, that the factual basis of the plea does not demonstrate that he took "affirmative steps to conceal the crime" of conspiracy. The government contends that the affirmative step to conceal was satisfied when Davila agreed to hold approximately $15,000 in payoff money until the false testimony was given.

Davila argues that a recent decision of this Court, United States v. Johnson, 546 F.2d 1225 (5th Cir.1977), is dispositive in his favor. In Johnson, a defendant pleaded guilty to misprision in exchange for the government's agreement to drop charges against him of conspiring to export illegal arms and ammunition. This Court held that there had been no proof of any affirmative act of concealment, and consequently, that there was insufficient factual basis for the defendant's guilty plea. But Davila's reliance on this case is misplaced. While it is true that both Johnson and the instant case involve a guilty plea to misprision of a conspiracy, pursuant to a plea bargain, Johnson does not control this case. In Johnson, the government had alleged only that the defendant had known of the conspiracy and had failed to report it to authorities. There was absolutely no showing on the record that he had engaged in any actions designed to conceal the commission of the crime. Here there is no such omission. On the record the government has alleged an affirmative act--Davila's agreement to be the stakeholder for the payoff money--which manifestly goes beyond mere knowledge of the crime and failure to report it.

Similar receipt or possession of evidence has regularly been considered a sufficient affirmative act to support conviction under the misprision statute. In United States v. Gravitt, supra, for example, the defendant drove to the place where the fruits of a robbery were hidden and carried the money to his apartment to be divided. These actions were held to be affirmative acts adequate to support conviction under the misprision statute. Possession of money stolen during a bank robbery was deemed a sufficient affirmative act in United States v. King, 402 F.2d 694 (9th Cir.1968). So also was removal of stolen whiskey from a truck, replacement of the whiskey with sandbags, and then the driving of the truck to Arizona to divert suspicion from the original thieves. United States v. Stuard, 566 F.2d 1 (6th Cir.1977).

Davila contends that his agreement to hold the money was an extension of the crime of conspiracy, and only incidentally served to cloak the commission of the felony. He argues that it would be giving the prosecution "a double punch" if we allowed the government to rely on the facts of the felony to prove the crime of concealment of the felony. But Davila overstates this situation. It is true that the requisite act of concealment here involves an action closely related to the underlying crime. This is, however, a necessary consequence of Davila's decision to plea bargain based upon his agreement to conceal, rather than a consequence of the asserted lack of the act of concealment. In the traditional misprision case, a stranger to a criminal act has taken some affirmative action to conceal the crime of others. In these situations, it is relatively simple to evaluate whether that person's action was designed to conceal the crime or whether he is being charged merely for his failure to report the crime. The instant case presents a different situation. Here, Davila was initially indicted for the conspiracy. Consequently, the act of concealment required to support the misprision count will necessarily be more closely related to commission of the original crime than it would in situations where the accused did not participate in the underlying crime.

We are aware of the decisions of the Seventh and Ninth Circuits which declared the misprision statute unconstitutional as applied to persons who had reasonable cause to believe that if they had reported the crime to authorities, they would be prosecuted themselves. United States v. King, supra (if defendants had reported crime to authorities, they would risk being prosecuted as aiders or abetters); United States v. Kuh, 541 F.2d 672 (7th Cir.1976) (if defendants had reported the crime they could have been prosecuted for possession of stolen goods); United States v. Jennings, 603 F.2d 650 (7th Cir.1979) (report of narcotics sale would have exposed defendant to charges of solicitation of a bribe). Whether or not holding persons guilty of misprision under such circumstances would violate their privilege against self-incrimination...