IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 97-40997
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL DELGADO,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
For the Southern District of Texas
Corpus Christi Division
(No. C-97-CR-62-9)
___________________________________________________
June 8, 1998
Before GARWOOD, JONES and WIENER, Circuit Judges.
PER CURIAM:*
Manuel Delgado appeals his guilty-plea conviction for aiding
and abetting money laundering in violation of 18 U.S.C.
§§1956(a)(1)(A)(I) & 2.1 Delgado asks us to vacate his sentence
and order a new trial, arguing that the court failed to comply with
FED. R. CRIM. P. 11 at his re-arraignment. Finding no reversible
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
18 U.S.C. §§1956(a)(1)(A)(I) & 2 (1994).
error, we affirm.
I
FACTS AND PROCEEDINGS
On March 13, 1997, Delgado was charged in a multi-count,
multi-defendant indictment with violations of
21 U.S.C. §841(a)(1)2 —— aiding and abetting in the possession with
intent to distribute more than 100 kilograms of marijuana —— and 21
U.S.C. §8463 —— conspiracy to possess with intent to distribute
more than 1,000 kilograms of marijuana. Delgado pleaded not guilty
to the charges on April 25.
Thereafter, on June 2, the government filed a criminal
information charging Delgado with aiding and abetting money
laundering in violation of 18 U.S.C. §§1956(a)(1)(A)(I) & 2.
Delgado entered into a plea agreement that same day, pursuant to
which the government dismissed the possession charges against
Delgado and he pleaded guilty to the money laundering charge.
Eventually, he was sentenced to 120 months’ imprisonment, three
years’ supervised release, and a $50 special assessment.
The charges against Delgado stemmed from his alleged
participation in a drug-trafficking ring that moved marijuana from
Corpus Christi, Texas to Norfolk and Virginia Beach, Virginia. In
May 1994, a Jefferson County, Texas, deputy sheriff stopped a car
2
21 U.S.C. §841(a)(1) (1994).
3
21 U.S.C. §846 (1994).
2
driven by Jose Maldonado and, following Maldonado’s consent to a
search of the vehicle, found $14,995 hidden in a secret
compartment. In July, law enforcement authorities seized 350
pounds of marijuana from members of the drug-trafficking
conspiracy. Cooperating defendants subsequently informed law
enforcement authorities that Delgado had furnished the money
recovered from Maldonado’s vehicle, and that this money had been
earmarked for the purchase of a portion of the marijuana recovered
in the July seizure.
In exchange for Delgado’s guilty plea under the money
laundering charge, the government agreed that, at Delgado’s re-
arraignment hearing, it would recommend a 3-level reduction for
acceptance of responsibility under the United States Sentencing
Guidelines4 (the “Guidelines”), and a thirty-six month sentence.
At that hearing, Delgado communicated through an interpreter, the
court having ascertained that he could neither read nor write
English. He was told to notify the court if he did not understand
what was being said or if he needed something repeated. The court
then asked Delgado questions regarding his name, age, and family.
He answered appropriately, indicating that he understood the
interpreter.
Through the interpreter, the court addressed Delgado in open
court, informing him of the nature of the offense with which he had
4
See U.S. SENTENCING GUIDELINES MANUAL §3E1.1 (1997).
3
been charged. He twice indicated to the court that his counsel had
read the information containing the money laundering charge to him
in Spanish, and Delgado’s counsel testified that the two had
discussed the nature and consequences of the charge. When asked to
relay to the court the substance of the explanation of the charge
that he had given Delgado in Spanish, counsel replied “I told him
that he was charged with having caused the transfer of some $15,000
from Chicago to Texas for the purpose of purchasing marijuana.”
Before Delgado entered his guilty plea, the court read the
charge to him from the information. Delgado confirmed that he had
received a copy of the information and that he understood the
nature of the charge to which he was pleading. He further
confirmed that he understood the implications of waiving an
indictment and that his counsel had read the indictment waiver to
him in Spanish. Counsel also stated that he had explained the
substance of the waiver to Delgado in Spanish. Delgado reaffirmed
his comprehension of the charge, and the government reviewed the
elements of money laundering.5 Delgado did not ask any questions
5
The elements of a section 1956(a)(1) violation include: (1)
conducting or attempting to conduct a financial transaction (2)
knowing that the transaction involves proceeds from an illegal
activity (3) with the intent to promote or further an unlawful
activity. United States v. Flores, 63 F.3d 1342, 1360 (5th Cir.
1995), cert. denied, Garza v. United States, —— U.S. ——, 117 S.Ct.
87, 136 L.Ed.2d 43 (1996). At the re-arraignment hearing, the
government characterized the elements of money laundering thusly:
First of all, the defendant must knowingly
conduct or attempt to conduct a financial
transaction which includes the delivery of
4
or otherwise exhibit any misunderstanding. He testified that he
had been assisted by counsel, with whose advice he was satisfied.
The court informed Delgado of his constitutional rights and
advised him that the government would have the burden of proving
all elements of the offense with which he had been charged in order
to convict him at trial. Delgado was further advised that he
waived these rights by pleading guilty, and that the court was not
bound by the plea agreement. The court also apprised Delgado of
the maximum possible penalty to which he was subject, of the
effects of supervised release, and of the court’s required
consideration of the Guidelines in assessing punishment. Delgado
acknowledged that his plea was made freely and voluntarily, and
that no one forced, persuaded, or induced him to enter a guilty
plea by promising greater leniency from the court or otherwise.
cash for the purchase of marijuana; number
two, the defendant must know that the property
involved in the financial transaction
represents the proceeds of some form [of]
unlawful activity; number three, the property
involved in the financial transaction must in
fact involve the proceeds of specified
unlawful activity which includes the dealing
in narcotics and other dangerous drugs; and
number four, the defendant must engage in the
financial transaction with the intent to
promote the carrying on of specified unlawful
activity, to wit, the importation, sale and
dealing in narcotic and other dangerous drugs.
Immediately following this exposition, the court asked Delgado
whether he understood that, if he pleaded not guilty, the
government would have to prove each of the four elements beyond a
reasonable doubt and with competent evidence before he could be
convicted. Delgado responded affirmatively.
5
The government then read the factual basis for Delgado’s
guilty plea into the record, stating, in pertinent part, that:
Manual Delgado was sending several associates
from Chicago to Corpus to negotiate the
purchase of some marijuana . . . . Mr.
Maldonado was stopped . . . for a traffic
violation. A consent to search revealed
$14,995 in a hidden compartment within the
car . . . . During later debriefings and plea
agreements the cooperating defendants told
agents that the money carried by
Maldonado . . . had been supplied by [Delgado]
and that it was earmarked for a down payment
on the marijuana load that was seized.
Delgado stated that the facts were correct, that he did not
disagree with any part of the statement, and that he had nothing to
add. The court then accepted Delgado’s guilty plea, determining
that it was knowing and voluntary and supported by an independent
basis in fact.
Subsequently, at the sentencing hearing, Delgado was again
afforded the assistance of an interpreter. The court commenced the
hearing by ascertaining that Delgado’s position had not changed
since re-arraignment, and that he was ready for sentencing.
Defense counsel stated that he had explained the presentence
investigation report (PSR) to Delgado in Spanish. The court asked
Delgado if anything in the PSR was incorrect, and the following
exchange occurred:
The Defendant: There’s something incorrect.
The Court: Okay. Tell me what it is.
The Defendant: Regarding what I was blamed of and what
I’m guilty of, I am guilty because I gave him some money,
6
to a person, and there’s somebody else involved in the
case, so practically the person that is telling the
Government the accusation is not the same person that I
gave the money to. I wanted to clear this so the Court
would know that the Government is saying the person that
is accusing me is not the same person I gave the money
to.
The Court: Well, the one who is accusing you of doing
this is the United States Government.
The Defendant: Yes.
The Court: There’s nothing in this —— where in this
report does it say someone’s accusing you?
The Defendant: It mentions a man, Jose Maldonado. I did
not give the money to Jose Maldonado, I gave it to
another person and that person gave it to Jose Maldonado.
***
The Court: I don’t see where it says anywhere that Mr.
Delgado gave money to Mr. Maldonado. I don’t see that
anywhere. What else in your opinion is incorrect, Mr.
Delgado?
The Defendant: I declare myself guilty because I loaned
that money to that man and that man, according to the
Court or the Government, they say that he used that money
to buy marijuana or drugs.
The Court: All right. We’ll take this plea another time,
I mean we’ll take this sentencing another time. You need
to talk to him, he’s lost his acceptance of
responsibility.
Mr. Canales (defense counsel): Very good, Judge. Thank
you.
The court recessed as a result of the apparent confusion.
When the sentencing hearing was reconvened, Delgado denied the
factual basis for the money laundering charge, but nonetheless
refused to withdraw his guilty plea:
The Court: You are still under oath, Mr. Delgado. Is
7
there anything else incorrect about the presentence
investigation report?
The Defendant: No.
Mr. Canales (defense counsel): Judge, if I may?
The Court: Yes, sir.
Mr. Canales: It’s not really that there’s anything
incorrect with the presentence report, Judge, it’s
paragraph 14 —— well, the matter rests on this, Judge: He
has not been completely debriefed and he thought that
this was the time that he was going to tell everything he
knew so that he could ——
The Court: Well, the matter rests is that he said he
didn’t know that he had laundered money.
Mr. Canales: Well ——
The Court: And that’s a big problem.
Mr. Canales: He, well, no, Judge, he is —— I know that
that would be a problem with the Court and with the
AUSA’s, but he is accepting responsibility. He
understands that he doesn’t have to name names at this
point and if he perhaps is debriefed later on further
then at that time is when he will provide. But that’s
deals with paragraph 14 on page 5, Judge. He thought
that this was, at this point was the time where he was
going to be telling what he knew.
The Court: Well, if you wanted to get a downward, motion
for downward departure, if was before now. He was
supposed to be debriefing with the agents before now.
Mr. Canales: Well, he has made himself available and he
has told everyone concerned that he is ready to testify,
but perhaps he will be debriefed more later on, Judge.
But he has not revealed or he has not —— at this point it
doesn’t really matter, really.
The Court: Okay. Well, this is the deal: Do you want
to —— Mr. Delgado, you have, when you pled guilty you
pled guilty to a money laundering count, that you knew
that the money had been used in an illegal enterprise,
and now you’re telling me that all you did was lend this
money and you didn’t know it had anything to do with
8
marijuana. So would you —— I’ll give you the opportunity
at this time to withdraw your guilty plea and go to
trial. Would you like to do that, sir?
The Defendant: No.
The Court: All right. You want to leave your guilty plea
but continue to tell me that you didn’t know that the
money was used for drugs?
The Defendant: What?
The Court: You told me earlier that you did not know the
money was used for drugs.
The Defendant: Yes.
The Court: So what is it you thought you pled guilty to?
The Defendant: That I gave the money to a man and that
man was not exactly the one who was on the contract.
That’s why I thought that —— I was confused with the name
of the person that I had delivered the money to.
***
The Court: All right. Was your participation in this
offense limited to just lending money and you did not
know it had been used in drugs?
The Defendant: I gave it to the man.
The Court: Okay.
The Defendant: And I didn’t exactly know if he was going
to use it for drugs or not.
The Court: Well, what did you think he was going to use
it for?
The Defendant: When he asked me for it, he needed it and
he asked me to give it to him, and later when they
stopped the man with the car I learned that he had used
it to buy marijuana.
***
The Court: Did you know the money was a proceed from an
unlawful activity?
9
The Defendant: Yes.
The Court: What was the unlawful activity?
The Defendant: Well, that they were going to purchase
marijuana with it.
The Court: So you knew that when you gave it to them?
The Defendant: When I gave it to them, no. I learned
that later.
The Court: Well, the money that you had in your hand
when you lent it, was it from the sale of marijuana?
The Defendant: No.
The Court: I’m going to deny you acceptance of
responsibility, Mr. Delgado. Are you sure you don’t want
to withdraw your plea?
The Defendant: No.
The Court: You’re not sure or ——
The Defendant: I’m sure.
The Court: You do not want to withdraw your plea?
The Defendant: No.
Before pronouncing sentence, the court permitted Delgado to
confer with his counsel again, and the public defender continued to
characterize Delgado’s statements as a misunderstanding. Pursuant
to the plea agreement, the government requested a downward
departure to a 36 month prison term. The court denied the request,
determining that Delgado had failed to accept responsibility for
his role in the drug-trafficking conspiracy. The court found that
Delgado’s testimony at the sentencing hearing was neither credible
nor reliable, and adopted the PSR as amended for Delgado’s failure
10
to accept responsibility, sentencing him to 120 months in prison.
Delgado timely appealed, claiming only that his plea was not
knowing and voluntary as he did not understand the nature of the
charge to which he pleaded. His sole contention in this respect is
that he did not understand that he had to know that the money he
furnished was going to be used to purchase drugs.
II
ANALYSIS
Rule 11 prescribes procedures designed to ensure that pleas
are entered knowingly and voluntarily. It provides that “[b]efore
accepting a plea of guilty or nolo contendere, the court must
address the defendant personally in open court and inform the
defendant of, and determine that the defendant understands . . .
the nature of the charge to which the plea is offered.”6 “[T]he
values lying at the heart of the rule’s concerns [are] absence of
coercion, understanding of the accusation, and knowledge of the
direct consequences of the plea.”7
When an appellant claims that a district court has failed to
comply with FED. R. CRIM. P. 11, we “conduct a straightforward,
two-question ‘harmless error’ analysis: (1) Did the sentencing
court in fact vary from the procedures required by Rule 11, and (2)
6
FED. R. CRIM. P. 11(c)(1).
7
United States v. Dayton, 604 F.2d 931, 939 (5th Cir. 1979)
(en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d
320 (1980).
11
if so, did such variance affect substantial rights of the
defendant?”8 To determine whether a Rule 11 error affects
substantial rights, “we focus on whether the defendant’s knowledge
and comprehension of the full and correct information would have
been likely to affect his willingness to plead guilty.”9
Delgado predicates the district court’s Rule 11 error on the
language barrier with which he was confronted at his re-
arraignment. He argues that his own inability to understand the
English language, coupled with his counsel’s inability to speak
Spanish proficiently, prevented him from grasping the money
laundering charge. As evidence of his miscomprehension, he offers
the sentencing hearing colloquy reproduced above.
Delgado fails, however, to invite our attention to evidence of
the trial court’s failed compliance with Rule 11 as contributing to
8
United States v. Johnson, 1 F.3d 296, 298 (5th Cir. 1993) (en
banc). The government contends that we must review Delgado’s Rule
11 variance claim for plain error in light of the fact that Delgado
did not move to withdraw his plea in the district court. United
Stated v. Paloma, 998 F.2d 253, 256 (5th Cir.), cert. denied, 510
U.S. 937, 114 S.Ct. 358, 126 L.Ed.2d 322 (1993). The guilty plea
vacatur requested on appeal in Paloma, however, was predicated on
an alleged plea agreement violation by the government. Id. An
appellant need not have filed a motion for plea withdrawal in the
district court in order to complain of Rule 11 error on appeal.
See United States v. Reyna,130 F.3d 104, 107 & n.2 (5th Cir. 1997),
cert. denied, —— U.S. ——, 118 S.Ct. 1328, —— L.Ed.2d —— (1998), and
United States v. Still, 102 F.3d 118, 122 n. 9 (5th Cir. 1996),
cert. denied, —— U.S. ——, 118 S.Ct. 43, 139 L.Ed.2d 10 (1997) (both
noting that Rule 11 challenges can be adjudicated on direct appeal
without an initial presentation of the particular arguments to the
district court, and both applying harmless error review).
9
Johnson, 1 F.3d at 298.
12
his purported misunderstanding. The only evidence he adduces from
which the trial court’s responsibility for the communication gap
can be inferred is the fact that Delgado’s counsel was only
provided with the somewhat confusing and esoteric criminal
information as a means of explaining the charge to his client by
way of translation.
Even assuming (a) that the failure to “provide” more indicates
a lack of solicitousness on behalf of the court, and (b) such
solicitousness is mandated by Rule 11, the record is clear that the
court took adequate precautions to ensure that Delgado’s
comprehension of the money laundering charge was not hindered by
language difficulties: The court asked the government to review the
elements of the offense at the re-arraignment Rule 11 hearing
(during which an interpreter was present), and Delgado indicated
that the discussions he had with his lawyer about the charge went
beyond a mere rote translation of the information. Furthermore,
Delgado unequivocally acknowledged that the government’s factual
proffer was correct at the Rule 11 hearing. Not until the
sentencing hearing did Delgado deny that the man to whom he
“loaned” the money was Maldonado.
Most significantly, even assuming arguendo that the court
somehow failed to comply with Rule 11, there could be no reversible
error because Delgado cannot demonstrate the court’s allegedly
failed compliance affected his substantial rights. As the record
of the sentencing hearing reproduced above indicates, on ferreting
13
out Delgado’s putative confusion, the court twice asked him if he
wanted to withdraw his guilty plea, informing him that, in pleading
guilty, he had admitted to knowing that the money was going to be
used in an illegal enterprise. Delgado’s refusal to accept the
court’s withdrawal offer demonstrates to our satisfaction that an
improved understanding of the charge would not have influenced his
decision to stand by the plea agreement rather than reject it and
incur the risks attendant on going to trial on all counts.10
III
CONCLUSION
In light of the foregoing, we decline to reverse Delgado’s
money laundering conviction and order a new trial, and likewise
decline to vacate his sentence.11
AFFIRMED.
10
See United States v. Montoya-Camacho, 644 F.2d 480, 487 (5th
Cir. 1981) (“In light of this knowledge, we can infer [that the
defendant] made a logical, reasoned decision to plead guilty to
Count One rather than run the risk of being convicted and sentenced
for all five counts.”).
11
We note that, at sentencing, Delgado twice refused the
court’s offer to allow him to withdraw his plea of guilty. Were it
necessary to address the effect of so doing, it is likely we would
conclude that he waived the complaint he now advances on appeal.
14