United States v. Davis, 74-1108 Summary Calendar.
Decision Date | 01 May 1974 |
Docket Number | No. 74-1108 Summary Calendar.,74-1108 Summary Calendar. |
Citation | 493 F.2d 502 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ada Marie DAVIS, Defendant-Appellant. |
Court | U.S. Court of Appeals — Fifth Circuit |
Gerald E. Hopkins, Houston, Tex. (Court-appointed), for defendant-appellant.
Anthony J. P. Farris, U. S. Atty., Mary L. Sinderson, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
Before GEWIN, GODBOLD and CLARK, Circuit Judges.
Pursuant to a plea bargain, Ada Marie Davis entered a plea of guilty to possessing a United States Treasury check which had been stolen from the mails, knowing the same to have been stolen, in violation of 18 U.S. C. § 1708. Two other counts of the Grand Jury indictment against her were dismissed. She appeals from a judgment and commitment to imprisonment for a period of thirteen months on the sole ground that the record of her arraignment and sentence contained no evidence that she knew the check she possessed was stolen. The government correctly responds to this contention by observing that a voluntary plea of guilty constitutes a judicial admission of all factual averments in the indictment. However, the instant appeal does raise a related issue amounting to plain error regarding the lack of compliance with the concluding proviso of Fed.R.Crim.P. 11, which reads:
The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.
This factual basis must appear on the record. Santobello v. New York, 404 U. S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); see also McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). Because the transcript of the arraignment and sentencing proceedings that form the record on this appeal fails to demonstrate the existence of such a factual basis for the plea of guilty to the charge of knowing possession of a stolen check, we must vacate and remand.
Defendant was represented before the court below by the same court-appointed counsel who prosecutes this appeal. At the time the defendant was arraigned the only area of inquiry that even remotely related to the development of a factual basis for her plea of guilty was the following:
In the course of his comments at the time of sentencing, the Assistant United States Attorney advised the court: "Defendant states she received this check from another individual knowing it was stolen and forged and cashed it." Thereafter, the court had this exchange with the defendant:
Defendant's counsel, expressing surprise at his client's denial of an essential element of the count to which her plea had been entered, stated that he might wish to move to withdraw the plea and have the case set down for trial. However, without explanation or apparent reason he reconsidered this course and deliberately allowed the guilty plea to remain unchallenged.
To support the court's action in accepting the guilty plea, the government first points to that portion of the defendant's statement in which she admits that she knew the man who handed her the check, Marvin Blunt, by a different surname from that of the check's payee, Marie Sykes; yet she maintained that Marie Sykes was represented to her as Marvin Blunt's hospitalized wife. Ignoring the common law relationship possibilities, the government urges that this evidence would raise conflicting inferences sufficient to warrant submission of the issue of the...
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