U.S. v. Johnson

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: Before AINSWORTH, CLARK and RONEY; RONEY
• Citation: U.S. v. Johnson, 546 F.2d 1225 (5th Cir. 1977)
• Decision Date: 11 February 1977
• Docket Number: No. 76-1581,76-1581
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Francis Alvin JOHNSON, Defendant-Appellant. Summary Calendar. *

Page 1225

546 F.2d 1225

UNITED STATES of America, Plaintiff-Appellee, v. Francis Alvin JOHNSON, Defendant-Appellant.

No. 76-1581

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

Feb. 11, 1977.

Francis Alvin Johnson, pro se.

John E. Clark, U. S. Atty., San Antonio, Tex., Frank B. Walker, Asst. U. S. Atty., El Paso, Tex., for plaintiff-appellee.

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

Before AINSWORTH, CLARK and RONEY, Circuit Judges.

RONEY, Circuit Judge:

Francis Alvin Johnson was charged in four separate indictments with several counts of violating various federal firearms control statutes. Pursuant to a plea bargain between the Government, defendant and his attorney, all indictments were dismissed with prejudice, defendant waived his right to further grand jury indictment, and he entered a plea of guilty to a one-count bill of information charging him with misprision of a felony, in violation of 18 U.S.C.A. § 4. Specifically, the information charges that Johnson "concealed and did not as soon as possible make known" to authorities a violation of the Neutrality Act, 22 U.S.C.A. § 1934. The violation refers to the attempted export of arms and ammunitions by two others indicted with defendant.

Upon receipt of the guilty plea, the district judge requested the U.S. Attorney to state the factual basis thereof, as required by Rule 11(f), Fed.R.Crim.Proc. The proffered factual basis contains only the following discussion of appellant Johnson:

. . . Agent Ortorica would testify that he then had a conversation with Francis Alvin Johnson concerning these transactions which indicated that Mr. Johnson was aware of the conversations that had taken place between Agent Ortorica, posing in an undercover capacity and Julia Minas and James Leroy Humphrie, but that Francis Alvin Johnson to this date has not come forward and told any authority of these conversations or these transactions between Julia Minas and James Leroy Humphrie.

The Rule 11(f) factual basis for a guilty plea must be precise enough and sufficiently specific to show that the accused's conduct on the occasion involved was within the ambit of that defined as criminal. Before a guilty plea can be validly accepted, the district court must insure that the conduct admitted by the accused constitutes the offense charged in the information. This factual basis must appear on the record. The purpose behind such a requirement is to protect a defendant who may plead voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the definition of the crime charged. McCarthy v. United States, 394 U.S. 459, 467, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); United States v. Vera, 514 F.2d 102, 104 (5th Cir. 1975); United States v. Davis, 493 F.2d 502, 504 (5th Cir. 1974); Reed v. United States, 471 F.2d 721, 722 (5th Cir. 1973); United States v. Frontero, 452 F.2d 406, 416 (5th Cir. 1971).

The factual basis of defendant's plea does not demonstrate the existence of "concealment," an essential element of the offense of misprision. The record of defendant's plea fails to reveal that he took " affirmative steps to conceal the crime of the principals." United States v. Daddano, 432 F.2d 1119, 1124 (7th Cir. 1970), cert. denied, 402 U.S. 905, 91 S.Ct....