Case: 08-51160 Document: 00511075397 Page: 1 Date Filed: 04/09/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 9, 2010
No. 08-51160
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANDREW MAXWELL PARKER,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:08-CR-292-1
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Andrew Maxwell Parker pleaded guilty to counts 1, 3, 4, 5, 19, 21, 22, 25,
26, 27, and 28 of an indictment charging him with conspiracy, wire fraud, money
laundering, tax evasion, filing a false income tax return, and aiding and abetting
related to various fraudulent loans guaranteed by the United States Export-
Import Bank (Ex-Im Bank). In this appeal, Parker contends that his guilty pleas
to the conspiracy, wire fraud, and money laundering counts should be vacated
the factual bases for his pleas failed to establish essential elements of the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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offenses. Under F ED. R. C RIM. P. 11(b)(3), the district court is required to
determine that there is a factual basis for a plea. “The factual basis for the
guilty plea must appear in the record and must be sufficiently specific to allow
the court to determine that the defendant’s conduct was within the ambit of that
defined as criminal.” United States v. Castro-Trevino, 464 F.3d 536, 540 (5th
Cir. 2006) (quotation marks and ellipsis omitted).
Parker concedes that this court’s review is for plain error because no
objection was lodged in the district court. See id at 541. To show plain error,
Parker must show a forfeited error that is clear or obvious and that affects his
substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If he
makes such a showing, this court has the discretion to correct the error but only
if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id. Parker “‘must show a reasonable probability that, but for the
error, he would not have entered the plea.’” Castro-Trevino, 464 F.3d at 541
(quoting United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004)).
Conspiracy count
Under 18 U.S.C. § 371, it is unlawful for two or more persons to “conspire
either to commit any offense against the United States, or to defraud the United
States, or any agency thereof in any manner or for any purpose.” “The defraud
clause of § 371 reaches both a conspiracy to cheat the government out of property
or money and any conspiracy designed to impair, obstruct, or defeat the lawful
function of any department of the government.” United States v. Clark, 139 F.3d
485, 488-89 (5th Cir. 1998). At least one of the conspirators must have
committed an overt act in furtherance of the objectives of the conspiracy. Id. at
489.
Parker contends that he should be permitted to withdraw his guilty plea
to the conspiracy count because the allegations in the indictment, the factual
basis for the plea agreement, and the plea colloquy do not demonstrate that he
entered into a conspiratorial agreement with others to commit offenses against
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the United States or to defraud the Ex-Im Bank. Although Parker concedes that
the indictment alleged that he conspired with others, he argues that “the record
is devoid of any information as to whom these ‘others’ might be—whether
employees of lender banks, employees at the Ex-Im Bank, or his employees.”
Parker complains that the record does not “provide any information as to
whether it was Mr. Parker—or others—who engaged in the conduct described
in the ‘Manner and Means’ section” of the conspiracy count. Parker contends
that it cannot be determined whether he personally engaged in the conduct or
whether he was merely responsible for the conduct of others. Parker contends
that “the record fails to show what facts support a finding that [he] engaged in
a conspiratorial agreement, or whether he was, in some manner, acting alone.”
These contentions are without merit.
Proof of the identity of the co-conspirators was not necessary. See Rogers
v. United States, 340 U.S. 367, 375 (1951); United States v. Lewis, 902 F.2d 1176,
1181 n.4 (5th Cir. 1990). In this case, one co-conspirator, Victor Garate, was
specifically identified in the factual basis for the guilty plea, and Parker
admitted that he wired fraudulently obtained funds into accounts controlled by
Garate and that Garate helped Parker to launder those funds. We have
reviewed the indictment, the factual basis for the guilty plea, and the transcript
of the rearraignment hearing and have found an abundance of factual support
in the record for the district court’s acceptance of Parker’s guilty plea to
conspiring with others to defraud the United States and to commit wire fraud
and money laundering. No error is apparent, plain or otherwise. See Puckett,
129 S. Ct. at 1429; Castro-Trevino, 464 F.3d at 540-41.
Wire fraud counts
Parker contends that he should be permitted to withdraw his guilty pleas
to the wire fraud counts (counts 3, 4, and 5) because the allegations in the
indictment, the factual basis for the plea agreement, and the plea colloquy do not
demonstrate that he engaged in a scheme to defraud and that he used or caused
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the use of wire communications in furtherance of such a scheme. Parker
complains that the “wire fraud counts suffer from the same lack of detail in the
particulars as discussed” in connection with the conspiracy count. Parker
contends that the question whether Parker devised a scheme to defraud the Ex-
Im Bank cannot be determined based on the record. Parker contends also that
the record shows “no more than that he converted loan proceeds wired to him by
lending institutions” and that “broad and vague assertions in Count I” were not
sufficient support a finding that he “devised a scheme to defraud the Ex-Im
Bank.” These contentions are without merit.
“To prove wire fraud pursuant to 18 U.S.C. § 1343, the government must
prove (1) a scheme to defraud and (2) the use of, or causing the use of, wire
communications in furtherance of the scheme.” United States v. Gray, 96 F.3d
769, 773 (5th Cir. 1996). “[F]or purposes of the federal fraud statutes, the term
‘scheme to defraud’ is not readily defined, but it includes any false or fraudulent
pretenses or representations intended to deceive others in order to obtain
something of value, such as money.” United States v. Caldwell, 302 F.3d 399,
414 (5th Cir. 2002) (quotation marks and brackets omitted). “The requisite
intent to defraud is established if the defendant acted knowingly and with the
specific intent to deceive, ordinarily for the purpose of causing some financial
loss to another or bringing about some financial gain to himself.” United States
v. Saks, 964 F.2d 1514, 1518 (5th Cir. 1992).
The record supports the district court’s determination, in accepting
Parker’s guilty pleas to counts 3, 4, and 5, that Parker had engaged in schemes
to defraud involving the use of wire communications by causing funds generated
by three sham transactions to be wired into his bank account. See § 1343; Gray,
96 F.3d at 773. The record supports the district court’s conclusion that Parker
engaged in a scheme to defraud by knowingly using false or fraudulent pretenses
or representations to deceive others in order to obtain the wired funds, and that
he aided and abetted others in doing so. See Caldwell, 302 F.3d at 414. The
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district court’s acceptance of the guilty pleas with respect to the wire fraud
counts did not involve reversible plain error. See Puckett, 129 S. Ct. at 1429.
Money laundering counts
Parker contends that he should be permitted to withdraw his guilty pleas
to the money laundering counts (counts 19, 21, and 22) because the allegations
in the indictment, the factual basis for the plea agreement, and the plea colloquy
do not demonstrate that funds paid out of bank accounts controlled by Garate
were criminally derived from the conspiracy and wire fraud schemes and that
his relationship to those accounts was not established. Parker complains that
the facts in the record underlying his guilty pleas to money laundering lack
sufficient detail with respect to Garate’s role. As to counts 21 and 22, Parker
argues that the record does not reflect that Parker transferred criminally
derived funds into Garate’s account and that he used those funds to complete the
monetary transactions involved in those counts. Although Parker concedes that
the factual basis recites that he knew that more than $10,000 of funds
transferred were derived from the conspiracy wire fraud scheme, he argues that
the basis for that knowledge was not established. Parker argues that he and
Garate engaged in many legitimate transactions and that the record does not
distinguish between untainted and tainted funds in Garate’s accounts. Parker
complains that the elements of the offense were not explained to him and that
he pleaded guilty with only a generalized knowledge of the nature of the money
laundering charges. These contentions are without merit.
To prove that Parker engaged in money laundering under 18 U.S.C.
§ 1957, the Government had to show that Parker “engaged in a monetary
transaction in criminally derived property of a value greater than $10,000 and
that the property was derived from specified unlawful activity.” United States
v. Freeman, 434 F.3d 369, 377 (5th Cir. 2005); see also United States v. Fuchs,
467 F.3d 889, 907 (5th Cir. 2006). A “monetary transaction” is a “deposit,
withdrawal, transfer, or exchange, in or affecting interstate or foreign commerce,
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of funds or a monetary instrument . . . by, through, or to a financial institution.”
§ 1957(f)(1). “Criminally derived property” is “any property constituting, or
derived from, proceeds obtained from a criminal offense.” § 1957(f)(2).
The allegations in the indictment track the statute and contain all of the
elements of the offense. See § 1957(a). In accepting Parker’s guilty plea to the
money laundering counts, the district court asked Parker whether he “engaged
in the federal felony of transferring money which had been criminally derived.”
The factual basis recites that Parker caused Garate to conduct monetary
transactions on his behalf “knowing that the money being used was that which
was criminally derived.” Apart from counsel’s assertion that Parker had
engaged in legitimate transactions, there is nothing in the record to indicate that
the tainted funds involved in the money laundering accounts were co-mingled
with funds related to legitimate transactions. Parker did not object that the
aggregate amounts withdrawn from Garate’s accounts did not exceed the clean
funds in those accounts. See United States v. Davis, 226 F.3d 346, 357 (5th Cir.
2000); see also Puckett, 129 S. Ct. at 1431-32 (requiring defendant to object to
error in district court prevents defendant from “‘gam[ing]’ the system” and gives
district court opportunity to adjudicate matter in first instance and to develop
factual record, facilitating appellate review). Although the district court
arguably should have explained the elements of the offense more clearly and
should have conducted a more thorough inquiry into the tainted nature of the
transferred funds, any error in failing to do so was not clear or obvious. See
Puckett, 129 S. Ct. at 1429.
Moreover, assuming that the district court committed clear error, Parker
has not shown that his substantial rights were affected, that is, he has not
shown that, but for the error, there is a reasonable probability that he would not
have entered his guilty plea. See Castro-Trevino, 464 F.3d at 541. Nor is this
a case in which we would exercise our discretion to correct plain error. See
Puckett, 129 S. Ct. at 1429. Parker’s fraudulent scheme was audacious and
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systematic and resulted in a loss to the Government exceeding $100 million. The
theoretical maximum sentence was 50 or 60 years in prison. The plea agreement
capped Parker’s total imprisonment at 10 years and limited the restitution order
to $10 million. Thus, Parker benefitted greatly from the plea agreement. Parker
was well represented by private counsel and was able to secure a favorable plea
agreement because of the difficulties associated with presenting a complex case
to a lay jury. Although lacking in formal education, Parker was a sophisticated
businessman. The record reflects that his guilty pleas were knowing and
voluntary. The judgment is
AFFIRMED.
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