United States v. George Elwell Hough

561 F.2d 594, 1977 U.S. App. LEXIS 11112

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 19, 1977
• Docket: 76-2550, 76-2779
• Status: Published

Opinions

GEE, Circuit Judge:

Defendant Hough appeals the district court’s refusal to permit him to withdraw a guilty plea. The law is settled that such requests are addressed to the trial court’s sound discretion. See, e. g., United States v. Arredondo, 447 F.2d 976 (5th Cir. 1971), a case similar to this.

The asserted basis for Hough’s request was the delivery, after his plea but before he was sentenced, of this court’s opinion in United States v. Oviedo, 525 F.2d 881 (1976). In ruling on his request, the district court discussed it and Oviedo:

Count I of the four-count indictment under which defendant was charged accused him of knowingly, willfully and intentionally attempting to possess with intent to distribute Cocaine, a Schedule II narcotic controlled substance. Defendant, a DEA agent, pleaded guilty to this count in return for the government’s agreement to move for dismissal of Counts II, III and IV of the indictment at the time of sentencing. The court has reviewed the transcript of the proceedings in which defendant entered his guilty plea and reiterates its finding that the plea was made voluntarily with a full understanding of the possible consequences.

Subsequent to defendant’s entering the above plea, but prior to determination and imposition of sentence, the United States Court of Appeals for the Fifth Circuit rendered its decision in United States v. Oviedo, 525 F.2d 881 (5 Cir. 1976). Oviedo held that when a defendant sold a substance thought to be heroin, which in reality was procaine, a noncont-rolled substance, no criminal offense was stated absent other objective acts unequivocally corroborative of criminal intent. In Oviedo, the defendant claimed he knew the substance in question was not heroin, though the jury chose to believe otherwise. The only objective facts marking the defendant’s conduct as criminal in nature were (1) Oviedo’s statement to an undercover agent that the substance he was selling was heroin, and (2) presence of portions of the substance in a television set. The court found, as an evidentiary matter, that there was insufficient indication that Oviedo intended to commit a crime. The Oviedo court specifically distinguished United States v. Mandujano, 499 F.2d 370 (5 Cir. 1974). There, the objective facts found to be unequivocally corroborative of criminal intent were the defendant’s act of taking money and his personal statements that he would purchase heroin with that money. There were no other facts that rendered these acts equivocal.

In the instant case, the government stated at arraignment that it was prepared to prove the following facts:

The evidence would show that Mr. Hough thought the substance that he possessed was, in fact, cocaine, a Schedule II narcotic controlled substance, and that on the 8th day of June, 1975, in the El Paso Division of the Western District of Texas, Mr. Hough met with an undercover agent of the United States Customs Service, an agent by the name of DeLand here in El Paso and negotiated for the sale of the substance that he possessed and continued to possess on June 8, 1975, believing that it was cocaine, a Schedule II narcotic controlled substance when, in fact, the substance that he obtained and possessed and negotiated to distribute with Agent DeLand was simulated cocaine substance.

The court then quizzed the defendant as follows:

“THE COURT: Mr. Hough, did you listen to what Mr. Pinckney just told me?

MR. HOUGH: Yes, Your Honor, I did.

THE COURT: Is what he said true?

MR. HOUGH: Yes, Your Honor.

THE COURT: Did you do those things that he said you did?

MR. HOUGH: Yes, Your Honor.”

Transcript of Arraignment of George El-well Hough, October 7, 1975, at 18-19.

If the only fact on this record were Hough’s negotiation for sale of a nonnarcotic substance, Oviedo would compel the court to grant the defendant’s motion to vacate his guilty plea. There is also present, however, an objective fact which is unequivocally corroborative of criminal intent: Hough’s statement, under oath and before a court of law, that he did in fact do those things that the Assistant United States Attorney recited (i. e., negotiated for sale of a substance he admittedly thought to be cocaine).

In Oviedo, the facts from which criminal intent was inferred were equivocal in nature; in Mandujano, the objective facts corroborating criminal intent were unequivocal. In the instant case there are two pertinent facts, one of which is equivocal (the presence of procaine rather than a controlled substance) and one of which is unequivocal (defendant’s admission, under oath, that he thought the substance at issue was in fact a controlled substance). The question then becomes whether Hough’s in-court admission, under oath, is sufficiently corroborative of criminal intent to mark his act as criminal in nature.

The court finds that it is. The Oviedo court’s concern was that the jury had found criminal intent based solely on acts consistent with a noncriminal enterprise. 525 F.2d at 886. Had another objective fact been present, such as the confession of the defendant to a police officer under oath after proper Miranda warnings, the Oviedo verdict would undoubtedly have withstood appellate scrutiny. See United States v. Mandujano, supra. Certainly an in-court admission is as corroborative of criminal intent as an out-of-court confession, the taking of money, or the defendant’s unsworn personal statements that he would purchase a narcotic with that money. See 525 F.2d at 886.

Hough’s reliance on Oviedo is misplaced. That decision is a narrow one, resting in great part on the court’s apprehensions of baseless jury speculation about intent where defendant’s objective acts are equivocal.¹ As that opinion makes clear, it is essentially a pronouncement about what sort of objective evidence must support a fact-finding of criminal intent where an uncontrolled substance is passed off as a controlled one.² As such, it neither had nor could reasonably have been thought by Hough to have had any bearing on the facts of his case. For in Hough’s case his criminal intent was not disputed: he admitted it in the sworn testimony set out above.

AFFIRMED.

1 . As Judge Godboid, a member of the Oviedo court noted, writing recently for the court in United states v. Korn, 557 F.2d 1089 (5th Cir. 1977) [No. 76-3848]:

“. . . What the court did in Oviedo was to require that the objective acts of the defendant, taken as a whole, strongly corroborate the required culpability.”

2 . “[I]f we convict the defendant of attempting to sell heroin for the sale of a non-narcotic substance, we eliminate an objective element that has major evidentiary significance and we increase the risk of mistaken conclusions that the defendant believed the goods were narcotics.” United States v. Oviedo, 525 F.2d, at 885.