JOHN R. BROWN, Circuit Judge:
Defendant, Elias Montoya-Camacho (Montoya), appeals District Court’s judgment of conviction on acceptance of his guilty plea for conspiracy to transport aliens illegally within the United States in violation of 18 U.S.C. § 371. Although Montoya challenges only adequacy of the factual basis for his plea, the argument on appeal concentrated largely on whether his plea was voluntarily and knowingly made. Concluding both of these requisites were met before the plea was accepted, we affirm his conviction.
Pleas of Innocence and Guilt
During the early morning hours of October 11, 1979, Montoya, Francisco Javier Cordero-Perez (Cordero), and approximately thirty aliens were apprehended by United States Border Patrolmen after crossing the Chihuahua area of the Rio Grande River in Del Rio, Texas. For his participation, Montoya was charged by a five-count indictment with one count of conspiracy to transport aliens in violation of 18 U.S.C. § 371, and four counts of actually bringing aliens illegally into the United States in violation of 8 U.S.C. § 1324(a)(1). He originally entered a plea of not guilty to the indictment. Two weeks later, however, Montoya was rearraigned, at which time, along with Cordero, he pleaded guilty to count one in exchange for a plea agreement dismissing the remaining four counts of the indictment.
Before accepting the plea, District Court meticulously explained to Montoya and Cordero through an interpreter both the charges and consequences of their guilty pleas. In eliciting their answers the Court carefully addressed each separately and each gave separate answers. Initially, District Court set out how they were each charged with the violation of two separate laws — one for committing the act and the other for conspiring together.
During this
procedure, District Court specifically defined what was meant by conspiracy to assure Montoya and Cordero understood Count One.
When individually questioned
by District Court, each acknowledged he had discussed the charges with his attorney, District Court then articulated the elements of the crime the Government had to prove before a jury if either wished to plead not guilty.
Montoya acknowledged he understood the nature of the charge, his possible maximum sentence, his right to be proven guilty at a jury trial, and that he voluntarily wished to plead guilty in exchange for the plea agreement.
He further testified he understood
by admitting guilt to Count One, he was admitting the four essential elements of the crime the Government would have to prove if tried for the offense.
At this point in the proceedings, the Government stated the following facts could be elicited at trial to support Montoya’s guilty plea:
[Djuring the early morning hours of October the 11th at approximately 3:00 a. m. the Border patrolmen talked to these — two of these individuals, Juan Cuevas and Juan Ortiz, who identified themselves as citizens of the Republic of Mexico. The other agents were called into the area and 28 other illegal aliens were apprehended by the Border patrolmen. The aliens gave statements that they were citizens of the Republic of Mexico and not entitled to legal permanent residence in the United States. They stated they had entered the United States illegally and were to be transported to the Dallas-Ft. Worth area. There were 28 men and two women. The aliens stated that they had been recruited in Ciudad Acuña by Mr. Montoya and by Mr. Cordero. The aliens had been given — or stated fees for transporting them anywhere from 200 to $350. The aliens had met either Mr. Montoya or Mr. Cordero around the Plaza at various bars or hotels in Cui-dad Acuña. The aliens were taken to an area on the river in groups of five or six. When the entire group was together, then they all crossed as one group. The aliens were apprehended shortly after crossing the river. At the time of his arrest Mr. Cordero stated to the Border patrolmen that he had met Mr. Montoya in Ciudad Acuña and they had talked about transporting aliens to the Dallas-Ft. Worth area.
Mr. Cordero further stated that Mr. Montoya had told him that he had some people ready to go to Ft. Worth, Texas, but he needed a driver.
Mr. Cordero agreed to drive the aliens to Ft. Worth, Texas, and he would also recruit some additional people. Mr. Montoya agreed to furnish the transportation. Mr. Cordero would do the driving.
Mr. Cordero also said that he would collect the money upon arrival in Ft. Worth and return to Ciudad Acuña where the money would be split between Mr. Montoya and Mr. Cordero.
When asked by District Court if he either did or took part in these acts outlined by the Government, Montoya disavowed participation. More specifically, Montoya denied ever speaking to the aliens, accepting any money from them, or being in on this
deal with Cordero. Montoya stated he merely met them all at the edge of the river so Cordero could take him to Fort Worth to work.
Montoya’s denials also were supported by Cordero. When asked at the Rule 11 hearing regarding Montoya’s involvement in the conspiracy, Cordero testified:
Q And you never made any statements to the Border patrolmen that Mr. Montoya — that you had had a conversation with Mr. Montoya in Ciudad Acuña?
A I did have a conversation myself and Elias Montoya, but he did not know. I didn’t tell him anything about this business. He didn’t know because I did not tell him.
Because of these denials, District Court advised Montoya he was not going to let him plead guilty, stating “[y]ou will just have to stand trial with the jury and I will let the jury decide after they have heard all the evidence whether you are guilty or not.” To this decision, Montoya argued, however, “I am guilty because I was with the people.” He admitted more than once throughout the proceeding he . had knowledge of the situation when he got to the river. When specifically asked by the Court if he knew he was helping the aliens get across the river and to Fort Worth, Texas, or somewhere else, Montoya replied, “[y]es sir.”
District Court then reiterated to Montoya a plea of guilty was a confession of guilt and that by pleading guilty he was admitting all four things necessary to plead a case against him.
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JOHN R. BROWN, Circuit Judge:
Defendant, Elias Montoya-Camacho (Montoya), appeals District Court’s judgment of conviction on acceptance of his guilty plea for conspiracy to transport aliens illegally within the United States in violation of 18 U.S.C. § 371. Although Montoya challenges only adequacy of the factual basis for his plea, the argument on appeal concentrated largely on whether his plea was voluntarily and knowingly made. Concluding both of these requisites were met before the plea was accepted, we affirm his conviction.
Pleas of Innocence and Guilt
During the early morning hours of October 11, 1979, Montoya, Francisco Javier Cordero-Perez (Cordero), and approximately thirty aliens were apprehended by United States Border Patrolmen after crossing the Chihuahua area of the Rio Grande River in Del Rio, Texas. For his participation, Montoya was charged by a five-count indictment with one count of conspiracy to transport aliens in violation of 18 U.S.C. § 371, and four counts of actually bringing aliens illegally into the United States in violation of 8 U.S.C. § 1324(a)(1). He originally entered a plea of not guilty to the indictment. Two weeks later, however, Montoya was rearraigned, at which time, along with Cordero, he pleaded guilty to count one in exchange for a plea agreement dismissing the remaining four counts of the indictment.
Before accepting the plea, District Court meticulously explained to Montoya and Cordero through an interpreter both the charges and consequences of their guilty pleas. In eliciting their answers the Court carefully addressed each separately and each gave separate answers. Initially, District Court set out how they were each charged with the violation of two separate laws — one for committing the act and the other for conspiring together.
During this
procedure, District Court specifically defined what was meant by conspiracy to assure Montoya and Cordero understood Count One.
When individually questioned
by District Court, each acknowledged he had discussed the charges with his attorney, District Court then articulated the elements of the crime the Government had to prove before a jury if either wished to plead not guilty.
Montoya acknowledged he understood the nature of the charge, his possible maximum sentence, his right to be proven guilty at a jury trial, and that he voluntarily wished to plead guilty in exchange for the plea agreement.
He further testified he understood
by admitting guilt to Count One, he was admitting the four essential elements of the crime the Government would have to prove if tried for the offense.
At this point in the proceedings, the Government stated the following facts could be elicited at trial to support Montoya’s guilty plea:
[Djuring the early morning hours of October the 11th at approximately 3:00 a. m. the Border patrolmen talked to these — two of these individuals, Juan Cuevas and Juan Ortiz, who identified themselves as citizens of the Republic of Mexico. The other agents were called into the area and 28 other illegal aliens were apprehended by the Border patrolmen. The aliens gave statements that they were citizens of the Republic of Mexico and not entitled to legal permanent residence in the United States. They stated they had entered the United States illegally and were to be transported to the Dallas-Ft. Worth area. There were 28 men and two women. The aliens stated that they had been recruited in Ciudad Acuña by Mr. Montoya and by Mr. Cordero. The aliens had been given — or stated fees for transporting them anywhere from 200 to $350. The aliens had met either Mr. Montoya or Mr. Cordero around the Plaza at various bars or hotels in Cui-dad Acuña. The aliens were taken to an area on the river in groups of five or six. When the entire group was together, then they all crossed as one group. The aliens were apprehended shortly after crossing the river. At the time of his arrest Mr. Cordero stated to the Border patrolmen that he had met Mr. Montoya in Ciudad Acuña and they had talked about transporting aliens to the Dallas-Ft. Worth area.
Mr. Cordero further stated that Mr. Montoya had told him that he had some people ready to go to Ft. Worth, Texas, but he needed a driver.
Mr. Cordero agreed to drive the aliens to Ft. Worth, Texas, and he would also recruit some additional people. Mr. Montoya agreed to furnish the transportation. Mr. Cordero would do the driving.
Mr. Cordero also said that he would collect the money upon arrival in Ft. Worth and return to Ciudad Acuña where the money would be split between Mr. Montoya and Mr. Cordero.
When asked by District Court if he either did or took part in these acts outlined by the Government, Montoya disavowed participation. More specifically, Montoya denied ever speaking to the aliens, accepting any money from them, or being in on this
deal with Cordero. Montoya stated he merely met them all at the edge of the river so Cordero could take him to Fort Worth to work.
Montoya’s denials also were supported by Cordero. When asked at the Rule 11 hearing regarding Montoya’s involvement in the conspiracy, Cordero testified:
Q And you never made any statements to the Border patrolmen that Mr. Montoya — that you had had a conversation with Mr. Montoya in Ciudad Acuña?
A I did have a conversation myself and Elias Montoya, but he did not know. I didn’t tell him anything about this business. He didn’t know because I did not tell him.
Because of these denials, District Court advised Montoya he was not going to let him plead guilty, stating “[y]ou will just have to stand trial with the jury and I will let the jury decide after they have heard all the evidence whether you are guilty or not.” To this decision, Montoya argued, however, “I am guilty because I was with the people.” He admitted more than once throughout the proceeding he . had knowledge of the situation when he got to the river. When specifically asked by the Court if he knew he was helping the aliens get across the river and to Fort Worth, Texas, or somewhere else, Montoya replied, “[y]es sir.”
District Court then reiterated to Montoya a plea of guilty was a confession of guilt and that by pleading guilty he was admitting all four things necessary to plead a case against him. Again, District Court asked Montoya whether or not he was pleading guilty to Count One to which Montoya replied, “[Gjuilty to Count number One, Your Honor.” Finally, before accepting this response, District Court explained once more, stating “[T]hat means you admit acts and conduct and participation in this transaction that I have described as Count number One, you admit you participated in it to the extent that you knew that you were violating the law. Now that’s what that means.” After Montoya acknowledged he had, District Court accepted his affirmative statement under oath he did acts and participated in conduct that made him guilty of the offense. Counsel for Montoya, who also represents him on this appeal, assured District Court Montoya’s plea of guilty to Count One was voluntary, accurate, valid, and sufficient for entry of a judgment of conviction.
A Helping Hand Across the Rio Grande
On appeal Montoya argues that his guilty plea must be set aside because there was not a sufficient factual basis for District Court’s acceptance of his plea of guilty as required by F.R.Crim.P. 11(f). He asserts although he denied all specific factual allegations regarding his involvement, District Court accepted his plea based on his affirmative answer to the Court’s general legal question whether he had done enough things for which he could be found guilty as charged in Count One. As stated by Montoya in his brief, he “did not admit to any factual allegations, but was simply found guilty on his plea, by reason of his response to a question which was, in reality, a legal question and as such a question left to be answered by the Court.” To support his contentions, Montoya cites
United States v. Boatright,
588 F.2d 471 (5th Cir. 1979), which reversed a defendant’s guilty plea because both the indictment and the factual summary read by the prosecutor failed to show facts the defendant agreed with his co-defendants,
id.
at 475-76, and
McCarthy v. United States,
394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), which required a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge be protected from entering a plea without realizing his conduct does not actually fall within the charge.
Id.
at 467, 89 S.Ct. at 1171, 22 L.Ed.2d at 425.
It is well settled in this Circuit, Rule 11 requires a factual basis for each essential element of the crime be shown.
Boatright,
588 F.2d at 475,
citing United States v. Johnson,
546 F.2d 1225, 1226 (5th Cir. 1977). See
also United States v. Gearin,
496 F.2d 691 (5th Cir.),
cert. denied,
419 U.S. 1113, 95 S.Ct. 789, 42 L.Ed.2d 810 (1974). District Court need not develop this
from the defendant personally — as long as a factual basis is developed on the record, it may come from several sources.
United States v. King,
604 F.2d 411, 414 (5th Cir. 1979),
citing Santobello v. New York,
404 U.S. 257, 261, 92 S.Ct. 495, 498, 30 L.Ed.2d 427, 432 (1971). The indictment may be used for this purpose if it is factually precise and sufficiently specific to show “the accused’s conduct on the occasion involved was within the ambit of that defined as criminal.”
Sassoon v. United States,
561 F.2d 1154, 1158 (5th Cir. 1977),
quoting Jimenez v. United States,
487 F.2d 212, 213 (5th Cir. 1973),
cert. denied,
416 U.S. 916, 94 S.Ct. 1623, 40 L.Ed.2d 118 (1974).
See also Johnson,
546 F.2d at 1226. The test to be utilized is based on District Court’s subjective satisfaction a factual basis exists for the plea.
United States v. Dayton,
604 F.2d 931, 938 (5th Cir. 1979) (en banc),
cert. denied,
445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980).
In making its determination, District Court must comply with both purposes of Rule 11 that (i) a defendant’s guilty plea be truly voluntary, and (ii) a complete record be produced at the time the plea is entered of the factors relevant to this voluntariness determination.
McCarthy,
394 U.S. at 465, 89 S.Ct. at 1170, 22 L.Ed.2d at 424.
See also Dayton,
604 F.2d at 931.
The indictment which was read charged Montoya (i) on or about October 9-10, 1979, met with citizens of Mexico, (ii) on or about October 11, 1979, with Cordero and a group of citizens of the Republic of Mexico, crossed the Rio Grande River into the United States, and (iii) walked with Cordero and the group of Mexican citizens from the Rio Grande to a brushy area near the intersection of Cordelia and UCO Streets in Del Rio, Texas, to constitute a violation of 18 U.S.C. § 371. In addition to this outline charged in the indictment, the Government informed District Court at the Rule 11 hearing of the factual basis to prove Montoya had (i) recruited aliens from various bars or hotels in the Plaza area of Ciudad Acuña, charging each $200-$350 to be brought into the United States, (ii) talked to Cordero about transporting aliens to Fort Worth, (iii) told Cordero he had some people ready to go to Fort Worth, (iv) agreed to furnish the transportation, and (v) agreed with Cordero to return to Ciudad Acuña where they would split the money. When specifically asked, Montoya admitted he knew he was helping the aliens cross the river in violation of the law.
On reviewing such facts, we conclude District Court was not clearly erroneous in reaching a subjective satisfaction Montoya (i) on or about October 9-11, 1979, formed and continued a conspiracy to transport aliens illegally, (ii) knowingly and willfully was a member of the conspiracy, (iii) committed the specific act of helping the aliens cross the river, and (iv) did so in furtherance of the object of the conspiracy. In so far as establishing that the facts which the government could prove would constitute the crime being admitted our determination would stand even if this Court credited Montoya’s protest he lacked knowledge of the previous developments or other specific arrangements of the agreement prior to his meeting Cordero and the aliens at the river on October 11,1979. Whatever such protestations might amount to concerning volun-tariness, they did not require the Court to disregard the government’s statement of the evidence showing the defendant’s knowledge and participation in the protested activities.
Nor are our views altered when considered in light of Cordero’s statements regarding Montoya’s involvement in the arrangements prior to the night the river was crossed. First, a close reading of Cordero’s statements don’t completely negate Montoya’s guilt. At the time of his arrest, Corde-ro informed the border agents Montoya had told him he had aliens available for trans
port. During the Rule 11 hearing, Cordero merely denied having a conversation with Montoya in Ciudad Acuña or telling Montoya anything about this business. Inasmuch as experience indicates in these illegal alien transportation cases one person recruits the aliens, another holds them and a third transports them, these statements by Cordero can be interpreted to suggest that although Montoya did not know the specific details regarding this case, he was holding aliens for another transport. This inference is supported by Montoya’s admission during the Rule 11 hearing he knew he was helping aliens illegally cross the river. Second, Montoya heard Cordero deny his involvement in the incident. Yet, despite knowing evidence of these exculpatory statements was available to him at trial because District Court had explained to him his right to present evidence and witnesses to show his innocence, Montoya decided to plead guilty. In light of this knowledge, we can infer Montoya 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.
Not only did District Court properly independently determine an adequate factual basis was presented on each element of the crime, but also fully complied with both voluntariness purposes of Rule 11. The record amply reflects, as evidenced by District Court’s refusal at one point during the proceeding to accept Montoya’s plea, due caution and diligence were exercised to assure Montoya’s plea was entered voluntarily. Several times during the Rule 11 hearing, Montoya affirmatively stated his plea was voluntarily entered as he was guilty of helping the aliens cross the river. In asking the questions, District Court always addressed Montoya and Cordero separately. District Court never asked them jointly whether they either understood, affirmed, or refuted a question posed. A recess was taken during the Rule 11 hearing affording Montoya the opportunity to discuss with his attorney District Court’s questions and the consequences of his plea. Throughout the whole proceeding District Court was patient, deliberate, and thorough in determining individually Montoya was voluntarily and knowingly entering his plea, and guilty of sufficient facts constituting a commission of the charged crime.
While an express admission of guilt is typically made by a defendant during a guilty plea proceeding, it is not a constitutional requisite to imposing a criminal penalty.
North Carolina v. Alford,
400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162, 171 (1970). “An individual accused of a crime may voluntarily, knowingly, and understandingly 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.” Id. Nor may any material difference be perceived between “a plea that 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 interests require entry of a guilty plea and the record before the judge contains strong evidence of guilt.” Id. The total record and the Court’s findings show adequate compliance with Rule 11.
The Court was fully warranted in accepting the guilty plea.
AFFIRMED.