United States v. Wilson ( 1996 )

Filed: May 6, 1996
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 94-5872
(CR-93-494)
United States of America,
Plaintiff - Appellee,
versus
Eddie C. Wilson, Sr.,
Defendant - Appellant.
O R D E R
The Court amends its opinion filed April 22, 1996, as follows:
On page 2, second full paragraph, lines 2-3 -- the phrase "a
detailed review of the facts are necessary" is corrected to read "a
detailed review of the facts is necessary."
For the Court - By Direction
/s/ Bert M. Montague
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5872
EDDIE C. WILSON, SR.,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Walter E. Black, Jr., Senior District Judge.
(CA-93-494)
Argued: February 2, 1996
Decided: April 22, 1996
Before NIEMEYER and LUTTIG, Circuit Judges, and DOUMAR,
United States District Judge for the Eastern District of Virginia,
sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Judge Doumar wrote the opinion, in
which Judge Niemeyer and Judge Luttig joined.
_________________________________________________________________
COUNSEL
ARGUED: Beth Mina Farber, Branch Chief, Greenbelt, Maryland,
for Appellant. Maury S. Epner, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee. ON BRIEF: James K. Bredar,
Federal Public Defender, Greenbelt, Maryland, for Appellant.
Lynne A. Battaglia, United States Attorney, Greenbelt, Maryland, for
Appellee.
OPINION
DOUMAR, District Judge:
This case presents the question of whether the trial court appropri-
ately denied appellant's motion to withdraw his guilty plea, where the
appellant claimed that he never possessed the requisite intent for the
crime to which he pled guilty. For the reasons set out below, we
AFFIRM the denial of appellant's motion to withdraw his guilty plea.
I.
Because appellant's claim challenges the adequacy of the Rule 11
proceeding before the district court, a detailed review of the facts is
necessary. Defendant-Appellant Eddie C. Wilson, Sr. ("Wilson"), as
the owner and operator of Big Eddie's Carryout and Food Market in
Baltimore, was authorized to accept food stamps by the United States
Department of Agriculture ("U.S.D.A.") by way of both paper food
coupons as well as electronic benefits transfer ("E.B.T."). These
E.B.T. transfers were encoded onto E.B.T. cards which were distrib-
uted to qualifying Maryland food stamp program recipients, who then
utilized the card much like a debit card at appropriate food vendors
such as Big Eddie's. The U.S.D.A. then reimbursed vendors by mak-
ing electronic funds deposits directly into the vendor's bank accounts.
Wilson, along with his employee and co-appellant James "Phil"
Murray, conducted numerous E.B.T. transactions in which they col-
lected food stamps or E.B.T. benefits in exchange for cash at a rate
of approximately sixty cents per dollar. Appellant made numerous
cash withdrawals from his business accounts and wrote a number of
checks payable to himself, Murray, and his then-girlfriend and co-
defendant Karen Goldman. Some of these funds were converted into
assets such as a motor vehicle and a diamond ring. Other proceeds
were deposited into Goldman's personal account, and then withdrawn
by Goldman at Wilson's direction.
Appellant was charged in all twenty-six counts of the indictment
charging appellant, Murray and Goldman. Count One charged all
three with conspiracy to launder proceeds of an unlawful activity with
2
the intent to promote the carrying on of said unlawful activity or
knowing that the transactions were to conceal those proceeds, in vio-
lation of 18 U.S.C. § 1956(a)(1)(A)(i) and (B)(i). Paragraph five of
the "Manner and Means of the Conspiracy" stated that the conspira-
tors "utilized Karen Goldman's account at Nations Bank to facilitate
and conceal the EBT card and food stamp coupon trafficking." Para-
graph six stated that certain other transactions"were conducted with
the intent to facilitate the unlawful theft, embezzlement and conver-
sion of government property, i.e. food stamp benefits, and to conceal
and disguise the proceeds thereof." Counts Two through Eighteen
charged conversion of government property in violation of 18 U.S.C.
§§ 2 and 641, and Counts Nineteen through Twenty-Six charged
money laundering in violation of 18 U.S.C. §§ 2, 641 and
1956(a)(1)(A)(i) and (B)(i). Wilson and his counsel subsequently
entered into a plea agreement with the United States, dated March 18,
1994, whereby appellant agreed to plead guilty to Count One as well
as to forfeiture of certain property. The parties then entered an agreed
statement of facts, attached to the plea agreement and signed by both
appellant and his counsel.1
The trial court held a colloquy pursuant to Fed. R. Crim. P. 11 with
Wilson, his counsel, and the Assistant United States Attorney on
April 4, 1994. Wilson responded affirmatively to the questions of the
district court as to whether he read the indictment and understood the
charges against him. Wilson was asked by the court deputy clerk to
which count he was pleading guilty, and Wilson stated, "I don't know
the number of the count, but the charge I believe is money launder-
ing." J.A. 45. Appellant was informed by the Court that he "should
not hesitate" to tell the judge if he did not understand any question
and should feel free to consult with his attorney. Appellant acknowl-
edged the Court's statement. Appellant then represented that he fin-
ished high school and attended college, had no competency problems,
and was satisfied with the representation of his attorney. After appel-
lant acknowledged the rights that he was forfeiting, the Court summa-
rized Count One of the indictment in full as follows:
_________________________________________________________________
1 The agreed statement of facts in the Joint Appendix is unsigned.
However, defense counsel has not objected to the fact that an identical
copy was in fact signed, and the record indicates such signature. J.A. 64.
3
THE COURT: Now specifically count One of the
indictment Mr. Wilson, charges that from about October,
1992 continuing thereafter until about July, 1993 in Mary-
land and elsewhere, that you, Karen Goldman and James
Murray, a/k/a "Phil", together with others known and
unknown to the Grand Jury, did unlawfully, willfully and
knowingly conspire to knowingly and willfully conduct, and
attempt to conduct financial transactions affecting interstate
commerce, namely, the withdrawal of monetary instruments
from Provident Bank and Maryland National Bank which
involved the proceeds of a specified unlawful activity; that
is theft, embezzlement and conversion of public property
with the intent to promote the carrying on of said unlawful
activity; and knowing that the transactions were designed in
whole or in part, to conceal the nature, locations, source,
ownership and control of the proceeds of the unlawful activ-
ity. And that while conducting, or attempting to conduct
such financial transactions, knew that the property involved
represented the proceeds of some form of unlawful activity.
That is a long-winded way of saying things, but do you
understand exactly what you are charged with here?
THE DEFENDANT: Yes, sir.
THE COURT: The indictment in Count One then goes
on to describe in some detail the method and means of the
conspiracy, and then follows up with a list of overt acts that
appear from paragraph 7 through paragraph 66 of the indict-
ment.
Now, that as a whole, do you understand that is the
charge to which you are pleading guilty?
THE DEFENDANT: Yes, sir.
J.A. 53-54. The Court then advised Wilson of the statutory maximum
and of other matters incident to the plea of guilty, such as the possibil-
ity of a fine, supervised release, the special assessment, restitution,
and the sentencing guidelines.
4
The Assistant United States Attorney (AUSA) then described the
plea agreement in detail. The Court asked if the appellant understood
the plea agreement and the appellant agreed. The Court then stated
that Wilson would "not be allowed to withdraw the guilty plea [he
was] offering [to the Court] unless there[were] exceptional circum-
stances," which Wilson understood. Wilson then proceeded to state,
"I still wish to plead guilty to Count One." The Assistant United
States Attorney then proceeded into a description of the facts as
agreed by both parties in the "Agreed Statement of Facts" appended
to the plea agreement. Relevant to this appeal, the agreed statement,
read in open court, provided in part:
Cash withdrawals and checks were . . . used to conceal and
disguise the proceeds of the unlawful food stamp trafficking
by removing them from bank accounts that had been dis-
closed to USDA and converting them to cash and assets that
were more difficult to trace to the unlawful food stamp
transactions.
Wilson utilized Karen Goldman's account at Nations
Bank to facilitate and conceal the EBT card and food stamp
coupon trafficking. . . .
. . . . Certain transactions in the Big Eddie's Carryout and
Food Market accounts were conducted with the intent to
facilitate the unlawful theft, embezzlement and conversion
of government property, i.e., food stamp benefits, and to
conceal and disguise the proceeds thereof.
J.A. 66-67.
The Court then immediately propounded the following question to
the appellant: "Mr. Wilson, having heard what the government would
be prepared to prove if there were a trial in these charges, do you still
wish to plead guilty to Count One?" Wilson replied, "Yes, sir." The
Court then accepted Wilson's plea, found that the plea "was made by
the defendant freely and voluntarily; not out of ignorance, fear, inad-
vertence or coercion," and found that the plea had a basis in fact.
5
At the scheduled sentencing date, against the advice of counsel,
appellant claimed that he was guilty of food stamp fraud "under Title
7" rather than money laundering, and that he should be prosecuted for
the former rather than the latter. He stated that his concern was with
the possibility of losing his right to appeal based on the money laun-
dering charge if he in fact continued to plead guilty. Wilson further
admitted to all the facts as alleged in the indictment. The Court and
the parties agreed that the best course of conduct was to interpret
appellant's objection as a motion to strike or withdraw his plea of
guilty, and the Court set the matter for briefing and oral argument.
Appellant again stated his objection at the hearing on his motion
to withdraw. Appellant argued that he was discriminated against by
the prosecutor's choice of charging him with money laundering
instead of with food stamp fraud. On direct examination by his coun-
sel, appellant stated that "a major factor" of his concern was the
potential sentence he could receive, being much greater under the
laundering statute than under food stamp fraud. Appellant then stated
that he did not think he was guilty of money laundering at the time
of the Rule 11 Colloquy. When the Court asked him how he could go
through the earlier proceeding with such a belief, he implied that he
was "convinced" by his attorney. He then stated that he did not
attempt to deceive the U.S.D.A. or hide the food stamp proceeds.2
The AUSA also asked appellant whether he harbored this belief about
the money laundering versus food stamp fraud prior to his guilty plea,
and the appellant said he "had a concern about it." Appellant later
stated that the prosecutor chose a statute with a harsher penalty
because both the prosecutor and the appellant were black, and the
prosecutor did not want to look like he was being lenient.
After argument by both counsel the Court ruled from the bench on
appellant's motion. The Court stated that it compared the agreed
statement of facts to the indictment and found that appellant would be
_________________________________________________________________
2 At this point in the hearing it was revealed that defendant was first
arrested in 1992, was about to be charged with food stamp fraud, and
entered into a plea agreement in reference to such a charge. The offer by
the government was revoked before the plea was entered, however, when
the defendant was found to have continued engaging in the prohibited
conduct.
6
guilty of money laundering, particularly as to the intent element of
that offense. The Court then rejected appellant's "reverse discrimina-
tion" claim, finding no basis for that claim either. Applying the six-
factor test in United States v. Moore, 931 F.2d 245, 248 (4th Cir.),
cert. denied, 502 U.S. 857 (1991), to appellant's motion to withdraw,
the Court overruled the motion, stating the following:
Here there is only an assertion of technical innocence, a
lengthy delay before the motion to withdraw and competent
assistance of counsel. While there is no great prejudice to
the government it would be a waste of time for the Court to
withdraw a guilty plea based on frivolous arguments. The
only indication that the plea was not knowing and voluntary
is defendant's assertion that he did not know, he would not
be able to appeal the fact that he was indicted under Title
18 rather than Title 7. However, the preservation of a frivo-
lous issue cannot affect the clear evidence and the defen-
dant's rearraignment testimony that his guilty plea was, in
fact, knowing and voluntary.
The Court is satisfied that the re-arraignment was prop-
erly conducted and that on the basis of the transcript of that
it is clear to the Court that indeed the guilty plea was know-
ing and voluntary and was proper for the Court to accept
that plea. Accordingly because the government could prop-
erly charge the defendant under Title 18 because the Court
finds that the defendant has always been aware that he was
pleading guilty to a charge under Title 18, and because the
defendant's plea was knowing and voluntary and because
there was no discrimination by the Assistant United States
Attorney the Court will deny Mr. Wilson's motion to with-
draw the guilty plea . . . .
J.A. 145. The appellant was subsequently sentenced to forty-six
months imprisonment.
7
II.
A refusal by the district court to allow a appellant to withdraw a
guilty plea under Rule 32(e),3 Fed. R. Crim. P., is reviewed on appeal
for abuse of discretion. Moore, 931 F.2d at 248. Appellant makes
essentially a two-pronged attack against the district court's denial of
his motion to withdraw the guilty plea. Appellant's first asks this
court to adopt the analysis of the District of Columbia Court of
Appeals in United States v. Cray, 47 F.3d 1203 (D.C. Cir. 1995),
where that court held that the validity of the Rule 11 proceeding was
the most important inquiry in determining whether the defendant had
a "fair and just reason" to withdraw a guilty plea. Id. at 1207.4 Other
factors identified by the D.C. Circuit include whether defendant has
_________________________________________________________________
3 Prior to December 1, 1994, the motion to withdraw the plea of guilty
was located in Rule 32(d), Fed. R. Crim. P. As of December 1, 1994,
however, Rule 32 was to be amended so that the same motion to with-
draw the plea of guilty was located in Rule 32(e). Pub. L. No. 103-322,
108 Stat. 2078, § 230101(b), (c) (Sept. 13, 1994). The parties refer to the
motion denied by the district court as a Rule 32(d) motion, which is
appropriate given that the motion was made prior to December 1, 1994.
At the time of the instant motion in the district court, Fed. R. Crim P.
Rule 32(d) provided:
If a motion for withdrawal of a plea of guilty or nolo contendere
is made before sentence is imposed, imposition of sentence is
suspended, or disposition is had under 18 U.S.C. § 4205(c), the
court may permit withdrawal of the plea upon a showing by the
defendant of any fair and just reason. At any later time, a plea
may be set aside only on direct appeal or by motion under 28
U.S.C. § 2255.
Id. (emphasis added). The 1994 amendment simply moved the subsec-
tion to 32(e) and removed the phrase "imposition of sentence is sus-
pended, or disposition is had under 18 U.S.C. § 4205(c)." Pub. L. No.
103-322, 108 Stat. 2078, § 230101(b), (c) (Sept. 13, 1994). There has
been no change in the law with respect to the instant motion.
4 Cray identified as the source of the "fair and just reason" test for Rule
32(e) the Supreme Court decision of Kercheval v. United States, 274
U.S. 220, 224 (1927), which stated that a district court in its discretion
may grant a motion to withdraw a guilty plea "if for any reason the grant-
ing of the privilege seems fair and just." Id.8
made a credible claim of legal innocence, and whether the govern-
ment has been prejudiced by the delay in proceeding to trial. Id.To support the adoption of Cray in this Circuit, appellant cites
United States v. Lambey, 974 F.2d 1389 (4th Cir. 1992), cert. denied,
115 S. Ct. 672 (1994), which, in reviewing the Advisory Notes to the
1983 amendment to Rule 32, identifies the fairness of the Rule 11
proceeding as most important. Id. at 1394. We also stated in Lambey
that a "fair and just reason" is either essentially a challenge to the
validity of the Rule 11 proceeding or a challenge to the "fulfillment
of a promise or condition emanating from the proceeding." Id. at
1393-94. Lambey did not address the test laid out in Moore two years
earlier. Thus appellant argues that Cray and Lambey, rather than
Moore, should control.
Alternatively, appellant claims that under the test currently used by
this Circuit as set forth in Moore, 931 F.2d at 248, appellant should
have been allowed to withdraw his plea of guilty. The six-factor anal-
ysis in Moore requires the trial court to weigh the following: (1)
whether the defendant has offered credible evidence that his plea was
not knowing or not voluntary; (2) whether defendant has credibly
asserted his legal innocence; (3) whether there has been a delay
between the entering of the plea and the filing of the motion; (4)
whether the defendant has had close assistance of competent counsel;
(5) whether withdrawal will cause prejudice to the government; and
(6) whether it will inconvenience the court and waste judicial
resources. Id. At oral argument, the government also urged the adop-
tion of the Cray analysis, rather than the six-factor test from Moore.
We therefore address this issue.
It is this Court's view that the Cray analysis appears to be nearly
identical to our test laid out in Moore. Cray places a strong reliance
on the validity of the Rule 11 proceedings, as does Moore. Cray also
appears to combine the "delay" and "prejudice to the government"
factors of Moore into a single factor, "whether the government would
be prejudiced by the delay in going to trial." Cray, 47 F.3d at 1207.
The third factor in Cray, a credible assertion of legal innocence,
appears in both tests. The only difference between the two
approaches, then, is that Cray does not directly address the "waste of
judicial resources" and "competency of counsel" factors which are
9
both present in Moore. Yet, competency of counsel certainly is a
strong component of a properly-conducted Rule 11 hearing, and thus
could fairly be viewed as part of the Cray analysis. Thus the only sig-
nificant difference would be that Cray would not require a Court to
consider the preservation of judicial resources.
Neither party has claimed that the waste of judicial resources is
irrelevant to a motion under Rule 32(e). In fact, the avoidance of such
a waste has been identified as one of the primary purposes of permit-
ting guilty pleas in lieu of trial. See, e.g., Fed. R. Crim. P. 32, Advi-
sory Committee's Notes to 1983 Amendments (stating that the
procedure allowing conditional pleas of guilty would"conserve pro-
secutorial and judicial resources"); McCarthy v. United States, 394
U.S. 459, 472 (1969). We therefore find that considerations of judicial
economy play a strong part in the withdrawal of a guilty plea.
This Court has recently applied the six-factor analysis of Moore in
United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995), stating
that the fairness of the Rule 11 proceeding is the key factor in the
review of the denial of a motion to withdraw a guilty plea, and that
an appropriately conducted Rule 11 proceeding raises a strong pre-
sumption that the plea is final and binding. Id. (quoting Lambey, 974
F.2d at 1394). In Puckett, we recognized the essential nature of a Rule
11 proceeding, citing Lambey, but continued to apply our six-factor
test. We address the issue again to reemphasize our commitment to
Moore, in light of both parties' argument to adopt the Cray test.
Given the similarities between Moore and Cray, and the undeniable
relevance of the concern over the waste of judicial resources, the
Court sees no reason to alter its formulation, and thus we proceed to
apply the Moore analysis.
III.
The key to a 32(e) motion is whether or not the Rule 11 proceeding
was properly conducted. E.g., Puckett, 61 F.2d at 1099. We first note
the deference that trial courts are afforded in a review of a Rule 11
proceeding. We have previously stated that the "manner of ensuring
that the defendant is properly informed is committed to the good
judgment of the district court, to its calculation of the relative diffi-
culty of comprehension of the charges and of the defendant's sophisti-
10
cation and intelligence." United States v. Reckmeyer, 786 F.2d 1216,
1221 (4th Cir.) cert. denied, 479 U.S. 850 (1986). Now we turn to the
specific requirements of Rule 11.
In McCarthy, the Supreme Court held that a plea cannot be deemed
voluntary unless the defendant understands the law in relation to the
facts of his case, and therefore Rule 11 requires that the trial court not
only inquire as to the defendant's understanding as to the nature of
the charge and consequences of his plea, but also the trial court must
"satisfy himself that there is a factual basis for the plea." 394 U.S. at
467. Thus the trial court's failure to speak directly to the defendant
to determine the defendant's understanding was reversible error. Id.
at 464-67. There was no such error here.
Appellant's primary claim is that the trial court was required to
state the essential elements of each of the statutes under which he was
being charged (i.e., conspiracy, theft of government property and
money laundering), based on the complexity of those statutes in com-
bination. The government argues that in United States v. DeFusco,
949 F.2d 114 (4th Cir. 1991), cert. denied, 503 U.S. 997 (1992), this
Court rejected the claim that the elements of the charge must be
explained. Indeed, we stated that, "[i]n reviewing the adequacy of
compliance with Rule 11, this Court should afford deference to the
trial court's decision as to how best to conduct the mandated colloquy
with the defendant." Id. at 116.
We also stated in DeFusco that "the defendant must receive notice
of the true nature of the charge rather than a rote recitation of the ele-
ments of the offense . . . [and the plea may be] made on the basis of
detailed information received on occasions before the plea hearing."
Id. at 117 (citations omitted). Though in DeFusco defendant stated
that "he had reviewed the elements of each offense with his attorney
along with any potential defenses," id., it would be rather disingenu-
ous of this court to say on the one hand that we will leave the con-
struction of the Rule 11 proceeding to the discretion of the trial court,
and on the other hand require a "rote recitation" of the essential ele-
ments of the charges against a defendant.
The Court has repeatedly refused to script the Rule 11 colloquy,
relying rather on the experience and wisdom of the district judges
11
below. Only in rare situations has the Court mandated particular state-
ments or procedures. See, e.g., United States v. Goins, 51 F.3d 400,
402-03 (4th Cir. 1995) (reversing a guilty plea based on the trial
court's failure to address a mandatory minimum sentence, but only if
defendant actually did not know of the mandatory minimum). We
again refuse to require the district courts to recite the elements of the
offense in every circumstance. In many cases, such a procedure would
be a formality and a needless repetition of the indictment, which often
tracks the essential elements of the offense. Moreover, we have under
similar circumstances questioned the need for formalities:
[Rule 11] is now at such a level of complexity as to render
letter-perfect compliance with each of its many provisions
very difficult indeed. One who has pled guilty and done so
voluntarily, understandingly, and with knowledge of the
consequences of his plea . . . has evinced a desire to waive
technicalities, to come to terms with the legal system, and
to admit his fault. There is something foreign to the spirit of
this act, almost invariably done today on the advice of coun-
sel, in a rule that encourages following it by an appeal
grounded in a mincing insistence on the punctilios of Rule
11.
Reckmeyer, 786 F.2d at 1221 (quoting United States v. Dayton, 604
F.2d 931, 939-40 (5th Cir. 1979), cert. denied, 445 U.S. 904 (1980)).
That statement has since lost none of its force. We therefore decline
to require across-the-board the recitation of the essential elements of
the charged offense at a Rule 11 hearing. As we have stated previ-
ously, the district courts are wholly capable of guaranteeing that
guilty pleas are knowing and voluntary without flyspecking on the
appellate level.
IV.
Other similarities between DeFusco and the instant case similarly
support our holding that the trial court was not in error in refusing to
allow appellant to withdraw his guilty plea. The defendant in
DeFusco was charged with money laundering in violation of 18
U.S.C. § 1956(a)(1)(A)(i) in relation to a conspiracy to hide assets
from a bankruptcy trustee. 949 F.2d at 116. After sentencing, defen-
12
dant appealed his conviction on the ground that in his Rule 11 pro-
ceeding the Court failed to establish whether the plea was knowing
and voluntary, particularly with respect to the nature of the charges.
Id. Thus DeFusco was a direct review of a guilty plea hearing after
sentencing. On direct review, we applied the harmless error standard
and exhibited considerable deference to the trial court, id. at 116-17,
and similarly, in reviews of Rule 32(e) denials by the trial court, we
have exhibited equivalent deference. Puckett, 61 F.3d at 1099.
The defendant in DeFusco provided the court with a signed state-
ment of facts which he admitted were accurate. There"[t]he statement
of facts, as well as the plea agreement, set[ ] forth each element of the
offense and the facts to support each," yet defendant argued that he
never admitted to having the requisite criminal intent for money laun-
dering. Id. at 120. In response we stated that the judge in the colloquy
need not personally establish the factual basis, and cited an Eleventh
Circuit case, United States v. Pinto, 838 F.2d 1566, 1569 (11th Cir.
1988), noting that Pinto held that the trial court had discretion to deny
a motion to withdraw a plea where the facts in the indictment were
precise enough to satisfy the judge of the factual basis for defendant's
guilty plea. Id. Thus the stipulated recitation of facts alone was suffi-
cient to support a plea to a money laundering charge. Id. (citing
United States v. Guichard, 779 F.2d 1139, 1146 (5th Cir.), cert.
denied, 475 U.S. 1127 (1986)).
In this case appellant stipulated to a lengthy and detailed set of
facts. The trial court satisfied itself as to the factual basis for the plea,
and assured itself that appellant understood the indictment against
him. The court considered the education, intelligence and sophistica-
tion of the appellant, and determined that his plea was knowing and
voluntary. Appellant's later claim that he did not have the requisite
intent for money laundering is not sufficient to set aside the plea. As
we have stated previously, "[s]tatements of fact by a defendant in
Rule 11 proceedings may not ordinarily be repudiated, and, similarly,
findings by a sentencing court in accepting a plea``constitute a formi-
dable barrier' to attacking the plea." Lambey, 974 F.2d at 1395 (quot-
ing Blackledge v. Allison, 431 U.S. 63, 73-74 (1977)). We find no
error in the district court's determination that appellant's plea was
knowingly and voluntarily made.
13
As to the other factors under Moore, we find no error in the trial
court's finding that the propriety of the Rule 11 proceeding, combined
with the delay between the plea and the motion to withdraw, appel-
lant's competent assistance of counsel, and the potential for a signifi-
cant waste of judicial resources in reopening the matter, necessitated
the denial of the motion to withdraw the guilty plea.
V.
Appellant argues that he never possessed the intent to conceal the
proceeds of the food stamp scheme.5 The question that really matters,
however, and the one that appears to have escaped so many courts in
the pursuit of pure procedural perfection, is whether appellant
believed, at the time of the taking of his plea, that there was a substan-
tial risk that a jury could find that he possessed the requisite intent.
A defendant, in pleading guilty, does not have to believe that he com-
mitted all of the acts and possessed the statutorily-prescribed intent
for the crime charged. The purpose of the plea hearing is to guarantee
that the defendant understands the nature of the charges against him
so that he can knowingly and voluntarily agree to plead guilty, rather
than face the risk of a reasonable jury finding that he possessed the
necessary "mens rea" and committed the "actus reus." In North Caro-
lina v. Alford, 400 U.S. 25 (1970), the Supreme Court stated the fol-
lowing:
_________________________________________________________________
5 The trial court characterized appellant's claim that he did not possess
the requisite intent as a "technical claim of innocence." Whether this was
in fact a proper characterization is of no import to our decision, as appel-
lant admittedly held his concern prior to the initial Rule 11 hearing. His
failure to raise his concern at that time, then, might fairly be considered
a waiver of the opportunity to raise it later.
Moreover, even if properly before the court, this claim is without merit
based on the text of the statute itself. A conviction for money laundering
requires either "the intent to promote the carrying on of specified unlaw-
ful activity . . . or knowing that the transaction is designed in whole or
in part . . . to conceal . . . the control of the proceeds of specified unlaw-
ful activity . . . ." 18 U.S.C. § 1956(a)(1) (emphasis added). Thus appel-
lant's argument that he did not intend to conceal the proceeds of his food
stamp fraud, even if true, would be insufficient to prevent conviction,
since he does not contest that he intended to promote the carrying on of
his fraud by way of the money transfers.
14
[W]hile most pleas of guilty consist of both a waiver of trial
and an express admission of guilt, the latter element is not
a constitutional requisite to the imposition of criminal pen-
alty. An individual accused of crime may voluntarily, know-
ingly, and understandably consent to the imposition of a
prison sentence even if he is unwilling or unable to admit
his participation in the acts constituting the crime.
Nor can we perceive any material difference between a
plea which refuses to admit commission of the criminal act
and a plea containing a protestation of innocence when, as
in the instant case, a defendant intelligently concludes that
his interest requires entry of a guilty plea and the record
before the judge contains strong evidence of actual guilt.
Id. at 37 (implying that a district court must satisfy itself of the factual
basis for the plea rather than rely on defendant's protestations of inno-
cence).
Appellant's claim that he never intended to conceal the proceeds
of the food stamp scheme, therefore, warrants no remedy, even if this
issue had been raised at the time of his plea, and even if his argument
on the intent necessary for conviction were valid. It is clear from the
plea hearing, as well as the subsequent hearing on the motion to with-
draw, that appellant understood the risk of presenting the case to a
jury. Rather than facing this risk, appellant chose to plead guilty to
a single offense. His later claims exhibited no more than cold feet
brought about by the realization that the guideline application in his
pre-sentence report required immediate and significant incarceration.
This is not a basis for withdrawal of a plea of guilty. Whether appel-
lant made a knowing and voluntary plea of guilty is a question which
the trial judge must determine at the time that the plea is taken. The
question of whether to allow withdrawal of such a plea is addressed
to the discretion of the trial court. Here there has been no showing of
abuse of discretion. The district court is therefore
AFFIRMED.
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