United States v. Jose Campos Davila

698 F.2d 715, 1983 U.S. App. LEXIS 30730
CourtCourt of Appeals for the Fifth Circuit
DecidedFebruary 7, 1983
Docket82-1090
StatusPublished
Cited by41 cases

This text of 698 F.2d 715 (United States v. Jose Campos Davila) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jose Campos Davila, 698 F.2d 715, 1983 U.S. App. LEXIS 30730 (5th Cir. 1983).

Opinions

JERRE S. WILLIAMS, Circuit Judge.

Davila was initially indicted with two others for conspiracy to suborn perjury in violation of 18 U.S.C. §§ 371 and 1622. Pursuant to a plea agreement, these charges were dismissed, and Davila pleaded guilty to a one count bill of information charging him with misprision of a felony in violation of 18 U.S.C. § 4. The two other co-conspirators did not plead guilty, and were acquitted at trial. Subsequent to this acquittal, but prior to being sentenced, Davila moved to withdraw his guilty plea, claiming inter alia that it would be an abuse of discretion to allow him to be punished for failing to report the conspiracy when the conspirators themselves had gone free. The district court denied the motion, and Davila was sentenced to three years, suspended to three years of supervised probation. On appeal, Davila claims that there was an insufficient factual basis to support his guilty plea under Rule 11 of the Federal Rules of Criminal Procedure. In the alternative, he argues that he cannot be convicted of misprision of a felony following acquittal of the perpetrators of the felony. Finally, he urges that the district court abused its discretion in not allowing withdrawal of the plea.

I. Factual Basis of Plea

Davila first attacks the validity of his conviction on the basis of the trial court’s failure to comply with Rule 11(f) of the Federal Rules of Criminal Procedure. Rule 11 requires that a court may not entertain a plea of guilty without determining that the plea is made with an understanding of the nature of the charge and unless it is satisfied that there is a factual basis for the plea. Fed.R.Crim.P. 11. The inquiry as to this factual basis must be “precise enough and sufficiently specific” to determine that the defendant’s conduct was “within the ambit of that defined as criminal.” Jiminez 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); McCarthy v. United States, 394 U.S. 459, 467, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1968); United States v. Montoya-Camacho, 644 F.2d 480, 486 (5th Cir.1981). This factual basis must appear on the record. United States v. Dayton, 604 F.2d 931, 940 (5th Cir.1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980). An acceptance by the court of the defendant’s guilty plea is deemed to be a factual finding on each of these requirements and is reviewable under the clearly erroneous standard. United States v. Jack, 686 F.2d 226, 229 (5th Cir.1982); United States v. Dayton, supra at 941. •

In order to sustain a conviction for misprision of a felony, the government must prove that a felony was committed, that Davila had knowledge of the felony, that he failed to notify authorities, and that he took an affirmative step to conceal the crime. United States v. Gravitt, 590 F.2d 123, 126 (5th Cir.1979); United States v. Hodges, 566 F.2d 674, 675 (9th Cir.1977). As explained by this Court in Hodges, mere failure to report a felony is not sufficient. Violation of the misprision statute additionally requires some positive act designed to conceal from authorities the fact that a felony has been committed. See United States v. Hodges, (untruthful statements); United States v. Gravitt, (suppression of evidence); Lancey v. United States, 356 F.2d 407 (9th Cir.1966), cert. denied, 385 U.S. 922, 87 S.Ct. 234, 17 L.Ed.2d 145 (harboring of criminal).

Upon receipt of Davila’s guilty plea, the district judge requested that the government state the factual basis of the plea. The government replied:

If Mr. Davila’s case would go to trial, the Government would establish that on September 26, 1978, defendant Davila contacted Florencio H. Rendon at the request of Robert J. Kuhn. Mr. Davila offered Rendon $10,000 to assist a client of Mr. Kuhn’s. A meeting, was held in San Antonio, Texas, on September 28, 1978. At this meeting Kuhn, Davila, and Doyle D. Huckabee requested Florencio H. Rendon to change the testimony he [718]*718had given in the trial of Frasier Jules Brignon in the Southern District of Texas. The defendants, including the defendant Davila, through this change of testimony would require Rendon to lie. Kuhn agreed to pay Rendon and Davila $15,000 which they were to split among themselves. Mr. Davila would hold the money until the false testimony was given. A second meeting was held in San Antonio, Texas, on October 31, 1978, wherein Mr. Rendon met Kuhn and Huckabee
THE COURT: Excuse me. Are the facts related so far from Mr. Pierce true, Mr. Davila?
MR. DAVILA: Yes, your honor.
THE COURT: That’s satisfactory. I will find the factual base exists for a plea and that it has been voluntarily made. I will enter a finding of guilt at this time.

Davila claims that the record discloses only that he failed to come forward and inform authorities of the conversations revealing a conspiracy to suborn perjury, and consequently, that the factual basis of the plea does not demonstrate that he took “affirmative steps to conceal the crime” of conspiracy. The government contends that the affirmative step to conceal was satisfied when Davila agreed to hold approximately $15,000 in payoff money until the false testimony was given.

Davila argues that a recent decision of this Court, United States v. Johnson, 546 F.2d 1225 (5th Cir.1977), is dispositive in his favor. In Johnson, a defendant pleaded guilty to misprision in exchange for the government’s agreement to drop charges against him of conspiring to export illegal arms and ammunition. This Court held that there had been no proof of any affirmative act of concealment, and consequently, that there was insufficient factual basis for the defendant’s guilty plea. But Davila’s reliance on this case is misplaced. While it is true that both Johnson and the instant case involve a guilty plea to misprision pf a conspiracy, pursuant to a plea bargain, Johnson does not control this case. In Johnson, the government had alleged only that the defendant had known of the conspiracy and had failed to report it to authorities. There was absolutely no showing on the record that he had engaged in any actions designed to conceal the commission of the crime. Here there is no such omission.

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Bluebook (online)
698 F.2d 715, 1983 U.S. App. LEXIS 30730, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jose-campos-davila-ca5-1983.