F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 9 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 96-3370
v. (District of Kansas)
(D.C. No. 95-CR-20086)
DONNA BISHOP, a.k.a. Big Mama,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
18 U.S.C. § 1956(a)(1), enacted as part of the Anti-Drug Abuse Act of
1986, prohibits, inter alia, financial transactions involving funds that are the
proceeds of “specified unlawful activity,” if such transactions are (1) intended to
facilitate that activity or (2) conceal the nature of the proceeds. See 18 U.S.C.
§ 1956(a)(1)(A)(i) (prohibiting use of illegal proceeds to support illegal activity)
[hereinafter (A)(i)]; id. § 1956(a)(1)(B)(i) (prohibiting laundering of illegal
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
proceeds to conceal their true nature) [hereinafter (B)(i)]. Donna Bishop entered
a guilty plea to count 11 of a superseding indictment which alleged Bishop
conspired to violate both (A)(i) and (B)(i) in violation of 18 U.S.C. § 1956(h). 1
Relying on the language of the superseding indictment, Bishop’s plea to the
entirety of count 11, and the plea colloquy, the district court concluded that it
could sentence Bishop for either of the offenses set out in count 11. Accordingly,
the district court sentenced Bishop under (A)(i), the provision with the higher
base offense level. See U.S.S.G. § 2S1.1(a). Bishop appeals, asserting that the
district court erred in relying on the superseding indictment and the factual basis
for the plea colloquy, rather than conducting an evidentiary hearing, to determine
which of the two provisions Bishop violated. This court exercises jurisdiction
pursuant to 28 U.S.C. § 1291 and affirms.
This case grew out of a Drug Enforcement Agency investigation of drug
trafficking activities between Kansas City and Oklahoma City. The investigation
ultimately determined that the source of the drugs was a cocaine conspiracy
headed by James Walton. Further investigation demonstrated that Bishop,
Walton’s mother, was laundering the proceeds of the drug conspiracy through her
1
Section 1956(h) provides that “[a]ny person who conspires to commit any
offense defined in [§ 1956] shall be subject to the same penalties as those
prescribed for the offense the commission of which was the object of the
conspiracy.” 18 U.S.C. § 1956(h).
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restaurant, Big Mama’s Grocery and Deli. An Internal Revenue Service
investigation into the financial aspects of Bishop’s restaurant revealed that money
from the conspiracy was funneled into the restaurant’s account and was then used
to pay operating expenses of the conspiracy, including apartment rent, cellular
phone bills, and pager bills. The proceeds were also used to buy vehicles for the
co-conspirators and to legitimize their income.
Bishop was eventually indicted in three counts of a sixteen-count
superseding indictment. Count 1 of the indictment charged Bishop with
conspiring to distribute more than five kilograms of cocaine and 500 grams of
cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 846. Count 11 charged
Bishop with conspiracy to launder drug proceeds in violation of (A)(i), (B)(i), and
§ 1956(h). Count 12 charged Bishop with laundering drug proceeds in violation
of (B)(i). Bishop ultimately entered into a plea agreement whereby she agreed “to
enter a plea of guilty to count 11 of the Indictment, which charges a violation of
Title 18, United States Code, Section 1956(a)(1)(A)(i).” In exchange for
Bishop’s plea to count 11, the United States agreed to recommend that Bishop be
sentenced at the lowest end of the applicable Sentencing Guideline range,
recommend that Bishop receive a two-level reduction for acceptance of
responsibility, and to take no position with regard to Bishop’s role in the offense.
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Bishop pleaded guilty to Count 11 on July 23, 1996. During the plea
hearing, the United States indicated that should the case go to trial, it could
adduce evidence that money from the conspiracy was funneled into Bishop’s
restaurant, that Bishop laundered the proceeds through her business account in an
effort to legitimize the proceeds, and that Bishop used the laundered funds to pay
certain expenses of the conspiracy. Bishop and her counsel agreed that the United
States could produce such evidence. Furthermore, although acknowledging that
she had undertaken the acts alleged by the United States, Bishop indicated “[i]t
was never my intentions to promote cocaine.”
Following entry of the guilty plea to count 11, the United States Probation
Office prepared a Presentence Report (“PSR”). The PSR indicated that a base
offense level of twenty-three was appropriate because Bishop had pleaded guilty
to conspiracy to violate (A)(i). See U.S.S.G. § 2S1.1(a) (establishing base offense
level of 23 for violations of (A)(i) and base offense level of 20 for violations of
(B)(i)). Bishop objected to the PSR’s proposed base offense level. She asserted
that the district court could not rely on the allegations in the indictment or her
plea colloquy to determine the appropriate base offense level. Instead, Bishop
asserted that the district court must hold an evidentiary hearing in which the
United States must prove by substantial evidence that she conspired to violate
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(A)(i). Otherwise, according to Bishop, the district court was obligated to
calculate her base offense level based on a violation of (B)(i). 2
After reviewing the parties’ memoranda on the issue, the district court
overruled Bishop’s objection. The district court noted that count 11 charged a
conspiracy to violate both subsections of § 1956(a)(1) and that by pleading guilty
to the count Bishop had admitted all facts necessary to sustain a final judgment of
guilt and lawful sentence. The district court further recognized that at the plea
hearing, Bishop admitted she had used the laundered proceeds to pay certain
expenses of the conspiracy. Accordingly, the district court concluded that a base
offense level of twenty-three was appropriate to reflect a violation of (A)(i).
The resolution of Bishop’s appeal is governed by this court’s decision in
United States v. Bush, 70 F.3d 557 (10th Cir. 1995). In Bush, the defendant
pleaded guilty to an indictment charging him with conspiring to distribute
“cocaine (powder) and/or cocaine base (crack).” Id. at 559. When the district
2
Bishop’s theory of the case is as follows. Count 11 charged that she had
conspired to launder drug money in violation of both (A)(i) and (B)(i). If she
were to go to trial on Count 11, the jury could convict if it found that she had
conspired to violate either (A)(i) or (B)(i). In such a case, however, if the jury
returns a general verdict of guilt, the district court is obligated to sentence the
defendant on the basis of the conspiracy objective yielding the lowest offense
level. See United States v. Pace, 981 F.2d 1123, 1128-30 (10th Cir. 1992).
Bishop contends that her guilty plea is the equivalent of the general verdict of
guilt in Pace, with the result that the district court is obligated to sentence her
under the guideline for (B)(i) unless the United States can prove, at an evidentiary
hearing, a violation of (A)(i).
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court sentenced the defendant based on distribution of crack, the defendant
appealed, claiming that because neither the indictment nor the plea colloquy
established that distribution of crack, rather than powder cocaine, was the object
of the conspiracy, the district court was obligated to sentence him on the objective
yielding the lowest offense level. See id. at 560-61. This court agreed, holding:
[W]e conclude if it is impossible to determine with a reasonable
degree of certainty, either based on the indictment, the plea
agreement, the petition for entry of a guilty plea, the colloquy at the
change of plea hearing, the sentencing hearing, or some other part of
the record, whether he intended to plead guilty to conspiring to
distribute cocaine base, cocaine powder, or both, we must order the
sentence to be vacated and direct the district court to resentence the
defendant on the basis of the objective yielding the lowest offense
level, or, if the government does not consent to resentencing, we
must allow the defendant to withdraw his guilty plea and proceed to
trial.
Id. at 561 3
Accordingly, the question before this court is whether it is possible to
determine “with a reasonable degree of certainty” that Bishop intended to plead
guilty to conspiring to violate (A)(i). Based on the plea agreement, the
indictment, and the plea colloquy, 4 we answer that question in the affirmative.
During oral argument, Bishop’s counsel indicated that he was not
3
requesting that Bishop be allowed to withdraw her plea.
4
Bishop’s contention that the district court must hold an evidentiary hearing
to determine the scope of Bishop’s guilty plea is without merit. The district court
is entitled to rely on the indictment and plea colloquy, as well as the rest of the
record, in making this determination. See United States v. Bush, 70 F.3d 557,
561-63 (10th Cir. 1995).
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Unlike the indictment in Bush which set out the objects of the conspiracy in the
alternative with the term “and/or,” the indictment at issue here alleges that Bishop
conspired to violate both (A)(i) and (B)(i). Furthermore, the indictment clearly
lists overt acts which constitute violations of both (A)(i) and (B)(i). In addition,
the plea agreement clearly establishes that the parties contemplated a plea of
guilty to a conspiracy with the objective of violating (A)(i). Paragraph one of that
agreement specifically provides as follows: “Defendant, Donna Bishop[,] agrees
to enter a plea of guilty to Count 11 of the Indictment, which charges a violation
of Title 18, United States Code, Section 1956(a)(1)(A)(i).” It is also worth noting
that had the parties truly contemplated a plea embracing a violation of (B)(i) only,
the plea would have likely been to count 12 of the indictment, which alleged a
violation of (B)(i), rather than to count 11, which alleged a conspiracy to violate
both (A)(i) and (B)(i). 5 Finally, during the plea colloquy, Bishop unequivocally
admitted the United States had evidence that the laundered proceeds were “used
to pay operating expenses of the cocaine conspiracy, including apartment rent,
cellular phone bills and pager bills” and admitted that she did, in fact, undertake
those actions knowing they were against the law. 6
5
As noted above, the penalties for conspiracy to violate (A)(i) or (B)(i) are
the same as the penalties for the consummated crimes. See supra note 1.
6
Bishop makes much of her statement during the plea colloquy that she did
not intend to “promote cocaine.” According to Bishop, this statement must be
interpreted as a refusal to plead guilty to conspiring to violate (A)(i). In rejecting
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The record as a whole, and the indictment, plea agreement, and plea
colloquy in particular, demonstrate that it is reasonably certain that Bishop
intended to plead guilty to conspiring to violate (A)(i). Accordingly, the
judgment and sentence of the United States District Court for the District of
Kansas is hereby AFFIRMED.
ENTERED FOR THE COURT:
this contention, the district court stated as follows:
While at her plea colloquy, Ms. Bishop said . . . “It was never
my intentions to promote cocaine,” . . . that is not a relevant inquiry
here and has nothing to do with the analysis of all of this. By her
plea and by her concession and admission by Counsel and personally
that the Government had evidence that showed that . . . “the money
then was used to pay operating expenses of the cocaine conspiracy,
including apartment rent, cellular phone bills and pager bills,” . . .
she admitted that she intended to promote the carrying on of
specified unlawful activity, here the conspiracy by her son and
others, to distribute cocaine and crack cocaine.
Whether she personally intended to promote cocaine or
whether she personally finds cocaine repugnant is not the issue. She
intended to promote the partnership in crime that James Walton and
his associates had devised which itself was involved in selling
cocaine. That is what she admitted in her plea and that is what
independent evidence, apart from her plea, the truth of which she
acknowledged at her plea hearing and which I’ve just quoted,
established.
This court agrees with the district court’s analysis of the issue and concludes that
Bishop’s statement that she did not intend to promote cocaine does not cast doubt
on the conclusion that Bishop intended to plead guilty to conspiring to violate
(A)(i).
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Michael R. Murphy
Circuit Judge
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United States v. Bishop
Combined Opinion