Filed: May 6, 1996

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 94-5872

(CR-93-494)

United States of America,

Plaintiff - Appellee,

versus

Eddie C. Wilson, Sr.,

Defendant - Appellant.

ORDER

The Court amends its opinion filed April 22, 1996, as follows:

On page 2, second full paragraph, lines 2-3 -- the phrase "a

detailed review of the facts are necessary" is corrected to read "a

detailed review of the facts is necessary."

For the Court - By Direction

/s/ Bert M. Montague

Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 94-5872

EDDIE C. WILSON, SR.,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Walter E. Black, Jr., Senior District Judge.

(CA-93-494)

Argued: February 2, 1996

Decided: April 22, 1996

Before NIEMEYER and LUTTIG, Circuit Judges, and DOUMAR,

United States District Judge for the Eastern District of Virginia,

sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Doumar wrote the opinion, in

which Judge Niemeyer and Judge Luttig joined.

_________________________________________________________________

COUNSEL

ARGUED: Beth Mina Farber, Branch Chief, Greenbelt, Maryland,

for Appellant. Maury S. Epner, Assistant United States Attorney,

Greenbelt, Maryland, for Appellee. ON BRIEF: James K. Bredar,

Federal Public Defender, Greenbelt, Maryland, for Appellant.

Lynne A. Battaglia, United States Attorney, Greenbelt, Maryland, for

Appellee.
OPINION

DOUMAR, District Judge:

This case presents the question of whether the trial court appropriately denied appellant's motion to withdraw his guilty plea, where the

appellant claimed that he never possessed the requisite intent for the

crime to which he pled guilty. For the reasons set out below, we

AFFIRM the denial of appellant's motion to withdraw his guilty plea.

I.

Because appellant's claim challenges the adequacy of the Rule 11

proceeding before the district court, a detailed review of the facts is

necessary. Defendant-Appellant Eddie C. Wilson, Sr. ("Wilson"), as

the owner and operator of Big Eddie's Carryout and Food Market in

Baltimore, was authorized to accept food stamps by the United States

Department of Agriculture ("U.S.D.A.") by way of both paper food

coupons as well as electronic benefits transfer ("E.B.T."). These

E.B.T. transfers were encoded onto E.B.T. cards which were distributed to qualifying Maryland food stamp program recipients, who then

utilized the card much like a debit card at appropriate food vendors

such as Big Eddie's. The U.S.D.A. then reimbursed vendors by making electronic funds deposits directly into the vendor's bank accounts.

Wilson, along with his employee and co-appellant James "Phil"

Murray, conducted numerous E.B.T. transactions in which they collected food stamps or E.B.T. benefits in exchange for cash at a rate

of approximately sixty cents per dollar. Appellant made numerous

cash withdrawals from his business accounts and wrote a number of

checks payable to himself, Murray, and his then-girlfriend and codefendant Karen Goldman. Some of these funds were converted into

assets such as a motor vehicle and a diamond ring. Other proceeds

were deposited into Goldman's personal account, and then withdrawn

by Goldman at Wilson's direction.

Appellant was charged in all twenty-six counts of the indictment

charging appellant, Murray and Goldman. Count One charged all

three with conspiracy to launder proceeds of an unlawful activity with

 2
the intent to promote the carrying on of said unlawful activity or

knowing that the transactions were to conceal those proceeds, in violation of 18 U.S.C. § 1956(a)(1)(A)(i) and (B)(i). Paragraph five of

the "Manner and Means of the Conspiracy" stated that the conspirators "utilized Karen Goldman's account at Nations Bank to facilitate

and conceal the EBT card and food stamp coupon trafficking." Paragraph six stated that certain other transactions"were conducted with

the intent to facilitate the unlawful theft, embezzlement and conversion of government property, i.e. food stamp benefits, and to conceal

and disguise the proceeds thereof." Counts Two through Eighteen

charged conversion of government property in violation of 18 U.S.C.

§§ 2 and 641, and Counts Nineteen through Twenty-Six charged

money laundering in violation of 18 U.S.C. §§ 2, 641 and

1956(a)(1)(A)(i) and (B)(i). Wilson and his counsel subsequently

entered into a plea agreement with the United States, dated March 18,

1994, whereby appellant agreed to plead guilty to Count One as well

as to forfeiture of certain property. The parties then entered an agreed

statement of facts, attached to the plea agreement and signed by both

appellant and his counsel.1

The trial court held a colloquy pursuant to Fed. R. Crim. P. 11 with

Wilson, his counsel, and the Assistant United States Attorney on

April 4, 1994. Wilson responded affirmatively to the questions of the

district court as to whether he read the indictment and understood the

charges against him. Wilson was asked by the court deputy clerk to

which count he was pleading guilty, and Wilson stated, "I don't know

the number of the count, but the charge I believe is money laundering." J.A. 45. Appellant was informed by the Court that he "should

not hesitate" to tell the judge if he did not understand any question

and should feel free to consult with his attorney. Appellant acknowledged the Court's statement. Appellant then represented that he finished high school and attended college, had no competency problems,

and was satisfied with the representation of his attorney. After appellant acknowledged the rights that he was forfeiting, the Court summarized Count One of the indictment in full as follows:

_________________________________________________________________

1 The agreed statement of facts in the Joint Appendix is unsigned.

However, defense counsel has not objected to the fact that an identical

copy was in fact signed, and the record indicates such signature. J.A. 64.

 3
THE COURT: Now specifically count One of the

indictment Mr. Wilson, charges that from about October,

1992 continuing thereafter until about July, 1993 in Maryland and elsewhere, that you, Karen Goldman and James

Murray, a/k/a "Phil", together with others known and

unknown to the Grand Jury, did unlawfully, willfully and

knowingly conspire to knowingly and willfully conduct, and

attempt to conduct financial transactions affecting interstate

commerce, namely, the withdrawal of monetary instruments

from Provident Bank and Maryland National Bank which

involved the proceeds of a specified unlawful activity; that

is theft, embezzlement and conversion of public property

with the intent to promote the carrying on of said unlawful

activity; and knowing that the transactions were designed in

whole or in part, to conceal the nature, locations, source,

ownership and control of the proceeds of the unlawful activity. And that while conducting, or attempting to conduct

such financial transactions, knew that the property involved

represented the proceeds of some form of unlawful activity.

That is a long-winded way of saying things, but do you

understand exactly what you are charged with here?

THE DEFENDANT: Yes, sir.

THE COURT: The indictment in Count One then goes

on to describe in some detail the method and means of the

conspiracy, and then follows up with a list of overt acts that

appear from paragraph 7 through paragraph 66 of the indictment.

Now, that as a whole, do you understand that is the

charge to which you are pleading guilty?

THE DEFENDANT: Yes, sir.

J.A. 53-54. The Court then advised Wilson of the statutory maximum

and of other matters incident to the plea of guilty, such as the possibility of a fine, supervised release, the special assessment, restitution,

and the sentencing guidelines.

 4
The Assistant United States Attorney (AUSA) then described the

plea agreement in detail. The Court asked if the appellant understood

the plea agreement and the appellant agreed. The Court then stated

that Wilson would "not be allowed to withdraw the guilty plea [he

was] offering [to the Court] unless there[were] exceptional circumstances," which Wilson understood. Wilson then proceeded to state,

"I still wish to plead guilty to Count One." The Assistant United

States Attorney then proceeded into a description of the facts as

agreed by both parties in the "Agreed Statement of Facts" appended

to the plea agreement. Relevant to this appeal, the agreed statement,

read in open court, provided in part:

Cash withdrawals and checks were . . . used to conceal and

disguise the proceeds of the unlawful food stamp trafficking

by removing them from bank accounts that had been disclosed to USDA and converting them to cash and assets that

were more difficult to trace to the unlawful food stamp

transactions.

Wilson utilized Karen Goldman's account at Nations

Bank to facilitate and conceal the EBT card and food stamp

coupon trafficking. . . .

. . . . Certain transactions in the Big Eddie's Carryout and

Food Market accounts were conducted with the intent to

facilitate the unlawful theft, embezzlement and conversion

of government property, i.e., food stamp benefits, and to

conceal and disguise the proceeds thereof.

J.A. 66-67.

The Court then immediately propounded the following question to

the appellant: "Mr. Wilson, having heard what the government would

be prepared to prove if there were a trial in these charges, do you still

wish to plead guilty to Count One?" Wilson replied, "Yes, sir." The

Court then accepted Wilson's plea, found that the plea "was made by

the defendant freely and voluntarily; not out of ignorance, fear, inadvertence or coercion," and found that the plea had a basis in fact.

 5
At the scheduled sentencing date, against the advice of counsel,

appellant claimed that he was guilty of food stamp fraud "under Title

7" rather than money laundering, and that he should be prosecuted for

the former rather than the latter. He stated that his concern was with

the possibility of losing his right to appeal based on the money laundering charge if he in fact continued to plead guilty. Wilson further

admitted to all the facts as alleged in the indictment. The Court and

the parties agreed that the best course of conduct was to interpret

appellant's objection as a motion to strike or withdraw his plea of

guilty, and the Court set the matter for briefing and oral argument.

Appellant again stated his objection at the hearing on his motion

to withdraw. Appellant argued that he was discriminated against by

the prosecutor's choice of charging him with money laundering

instead of with food stamp fraud. On direct examination by his counsel, appellant stated that "a major factor" of his concern was the

potential sentence he could receive, being much greater under the

laundering statute than under food stamp fraud. Appellant then stated

that he did not think he was guilty of money laundering at the time

of the Rule 11 Colloquy. When the Court asked him how he could go

through the earlier proceeding with such a belief, he implied that he

was "convinced" by his attorney. He then stated that he did not

attempt to deceive the U.S.D.A. or hide the food stamp proceeds.2

The AUSA also asked appellant whether he harbored this belief about

the money laundering versus food stamp fraud prior to his guilty plea,

and the appellant said he "had a concern about it." Appellant later

stated that the prosecutor chose a statute with a harsher penalty

because both the prosecutor and the appellant were black, and the

prosecutor did not want to look like he was being lenient.

After argument by both counsel the Court ruled from the bench on

appellant's motion. The Court stated that it compared the agreed

statement of facts to the indictment and found that appellant would be

_________________________________________________________________

2 At this point in the hearing it was revealed that defendant was first

arrested in 1992, was about to be charged with food stamp fraud, and

entered into a plea agreement in reference to such a charge. The offer by

the government was revoked before the plea was entered, however, when

the defendant was found to have continued engaging in the prohibited

conduct.

 6
guilty of money laundering, particularly as to the intent element of

that offense. The Court then rejected appellant's "reverse discrimination" claim, finding no basis for that claim either. Applying the sixfactor test in United States v. Moore, 931 F.2d 245, 248 (4th Cir.),

cert. denied, 502 U.S. 857 (1991), to appellant's motion to withdraw,

the Court overruled the motion, stating the following:

Here there is only an assertion of technical innocence, a

lengthy delay before the motion to withdraw and competent

assistance of counsel. While there is no great prejudice to

the government it would be a waste of time for the Court to

withdraw a guilty plea based on frivolous arguments. The

only indication that the plea was not knowing and voluntary

is defendant's assertion that he did not know, he would not

be able to appeal the fact that he was indicted under Title

18 rather than Title 7. However, the preservation of a frivolous issue cannot affect the clear evidence and the defendant's rearraignment testimony that his guilty plea was, in

fact, knowing and voluntary.

The Court is satisfied that the re-arraignment was properly conducted and that on the basis of the transcript of that

it is clear to the Court that indeed the guilty plea was knowing and voluntary and was proper for the Court to accept

that plea. Accordingly because the government could properly charge the defendant under Title 18 because the Court

finds that the defendant has always been aware that he was

pleading guilty to a charge under Title 18, and because the

defendant's plea was knowing and voluntary and because

there was no discrimination by the Assistant United States

Attorney the Court will deny Mr. Wilson's motion to withdraw the guilty plea . . . .

J.A. 145. The appellant was subsequently sentenced to forty-six

months imprisonment.

 7
II.

A refusal by the district court to allow a appellant to withdraw a

guilty plea under Rule 32(e),3 Fed. R. Crim. P., is reviewed on appeal

for abuse of discretion. Moore, 931 F.2d at 248. Appellant makes

essentially a two-pronged attack against the district court's denial of

his motion to withdraw the guilty plea. Appellant's first asks this

court to adopt the analysis of the District of Columbia Court of

Appeals in United States v. Cray, 47 F.3d 1203 (D.C. Cir. 1995),

where that court held that the validity of the Rule 11 proceeding was

the most important inquiry in determining whether the defendant had

a "fair and just reason" to withdraw a guilty plea. Id. at 1207.4 Other

factors identified by the D.C. Circuit include whether defendant has

_________________________________________________________________

3 Prior to December 1, 1994, the motion to withdraw the plea of guilty

was located in Rule 32(d), Fed. R. Crim. P. As of December 1, 1994,

however, Rule 32 was to be amended so that the same motion to withdraw the plea of guilty was located in Rule 32(e). Pub. L. No. 103-322,

108 Stat. 2078, § 230101(b), (c) (Sept. 13, 1994). The parties refer to the

motion denied by the district court as a Rule 32(d) motion, which is

appropriate given that the motion was made prior to December 1, 1994.

At the time of the instant motion in the district court, Fed. R. Crim P.

Rule 32(d) provided:

If a motion for withdrawal of a plea of guilty or nolo contendere

is made before sentence is imposed, imposition of sentence is

suspended, or disposition is had under 18 U.S.C. § 4205(c), the

court may permit withdrawal of the plea upon a showing by the

defendant of any fair and just reason. At any later time, a plea

may be set aside only on direct appeal or by motion under 28

U.S.C. § 2255.

Id. (emphasis added). The 1994 amendment simply moved the subsection to 32(e) and removed the phrase "imposition of sentence is suspended, or disposition is had under 18 U.S.C. § 4205(c)." Pub. L. No.

103-322, 108 Stat. 2078, § 230101(b), (c) (Sept. 13, 1994). There has

been no change in the law with respect to the instant motion.

4 Cray identified as the source of the "fair and just reason" test for Rule

32(e) the Supreme Court decision of Kercheval v. United States, 274

U.S. 220, 224 (1927), which stated that a district court in its discretion

may grant a motion to withdraw a guilty plea "if for any reason the granting of the privilege seems fair and just." Id.

 8
made a credible claim of legal innocence, and whether the government has been prejudiced by the delay in proceeding to trial. Id.

To support the adoption of Cray in this Circuit, appellant cites

United States v. Lambey, 974 F.2d 1389 (4th Cir. 1992), cert. denied,

115 S. Ct. 672 (1994), which, in reviewing the Advisory Notes to the

1983 amendment to Rule 32, identifies the fairness of the Rule 11

proceeding as most important. Id. at 1394. We also stated in Lambey

that a "fair and just reason" is either essentially a challenge to the

validity of the Rule 11 proceeding or a challenge to the "fulfillment

of a promise or condition emanating from the proceeding." Id. at

1393-94. Lambey did not address the test laid out in Moore two years

earlier. Thus appellant argues that Cray and Lambey, rather than

Moore, should control.

Alternatively, appellant claims that under the test currently used by

this Circuit as set forth in Moore, 931 F.2d at 248, appellant should

have been allowed to withdraw his plea of guilty. The six-factor analysis in Moore requires the trial court to weigh the following: (1)

whether the defendant has offered credible evidence that his plea was

not knowing or not voluntary; (2) whether defendant has credibly

asserted his legal innocence; (3) whether there has been a delay

between the entering of the plea and the filing of the motion; (4)

whether the defendant has had close assistance of competent counsel;

(5) whether withdrawal will cause prejudice to the government; and

(6) whether it will inconvenience the court and waste judicial

resources. Id. At oral argument, the government also urged the adoption of the Cray analysis, rather than the six-factor test from Moore.

We therefore address this issue.

It is this Court's view that the Cray analysis appears to be nearly

identical to our test laid out in Moore. Cray places a strong reliance

on the validity of the Rule 11 proceedings, as does Moore. Cray also

appears to combine the "delay" and "prejudice to the government"

factors of Moore into a single factor, "whether the government would

be prejudiced by the delay in going to trial." Cray, 47 F.3d at 1207.

The third factor in Cray, a credible assertion of legal innocence,

appears in both tests. The only difference between the two

approaches, then, is that Cray does not directly address the "waste of

judicial resources" and "competency of counsel" factors which are

 9
both present in Moore. Yet, competency of counsel certainly is a

strong component of a properly-conducted Rule 11 hearing, and thus

could fairly be viewed as part of the Cray analysis. Thus the only significant difference would be that Cray would not require a Court to

consider the preservation of judicial resources.

Neither party has claimed that the waste of judicial resources is

irrelevant to a motion under Rule 32(e). In fact, the avoidance of such

a waste has been identified as one of the primary purposes of permitting guilty pleas in lieu of trial. See, e.g., Fed. R. Crim. P. 32, Advisory Committee's Notes to 1983 Amendments (stating that the

procedure allowing conditional pleas of guilty would"conserve prosecutorial and judicial resources"); McCarthy v. United States, 394

U.S. 459, 472 (1969). We therefore find that considerations of judicial

economy play a strong part in the withdrawal of a guilty plea.

This Court has recently applied the six-factor analysis of Moore in

United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995), stating

that the fairness of the Rule 11 proceeding is the key factor in the

review of the denial of a motion to withdraw a guilty plea, and that

an appropriately conducted Rule 11 proceeding raises a strong presumption that the plea is final and binding. Id. (quoting Lambey, 974

F.2d at 1394). In Puckett, we recognized the essential nature of a Rule

11 proceeding, citing Lambey, but continued to apply our six-factor

test. We address the issue again to reemphasize our commitment to

Moore, in light of both parties' argument to adopt the Cray test.

Given the similarities between Moore and Cray, and the undeniable

relevance of the concern over the waste of judicial resources, the

Court sees no reason to alter its formulation, and thus we proceed to

apply the Moore analysis.

III.

The key to a 32(e) motion is whether or not the Rule 11 proceeding

was properly conducted. E.g., Puckett, 61 F.2d at 1099. We first note

the deference that trial courts are afforded in a review of a Rule 11

proceeding. We have previously stated that the "manner of ensuring

that the defendant is properly informed is committed to the good

judgment of the district court, to its calculation of the relative difficulty of comprehension of the charges and of the defendant's sophisti-

 10
cation and intelligence." United States v. Reckmeyer, 786 F.2d 1216,

1221 (4th Cir.) cert. denied, 479 U.S. 850 (1986). Now we turn to the

specific requirements of Rule 11.

In McCarthy, the Supreme Court held that a plea cannot be deemed

voluntary unless the defendant understands the law in relation to the

facts of his case, and therefore Rule 11 requires that the trial court not

only inquire as to the defendant's understanding as to the nature of

the charge and consequences of his plea, but also the trial court must

"satisfy himself that there is a factual basis for the plea." 394 U.S. at

467. Thus the trial court's failure to speak directly to the defendant

to determine the defendant's understanding was reversible error. Id.

at 464-67. There was no such error here.

Appellant's primary claim is that the trial court was required to

state the essential elements of each of the statutes under which he was

being charged (i.e., conspiracy, theft of government property and

money laundering), based on the complexity of those statutes in combination. The government argues that in United States v. DeFusco,

949 F.2d 114 (4th Cir. 1991), cert. denied, 503 U.S. 997 (1992), this

Court rejected the claim that the elements of the charge must be

explained. Indeed, we stated that, "[i]n reviewing the adequacy of

compliance with Rule 11, this Court should afford deference to the

trial court's decision as to how best to conduct the mandated colloquy

with the defendant." Id. at 116.

We also stated in DeFusco that "the defendant must receive notice

of the true nature of the charge rather than a rote recitation of the elements of the offense . . . [and the plea may be] made on the basis of

detailed information received on occasions before the plea hearing."

Id. at 117 (citations omitted). Though in DeFusco defendant stated

that "he had reviewed the elements of each offense with his attorney

along with any potential defenses," id., it would be rather disingenuous of this court to say on the one hand that we will leave the construction of the Rule 11 proceeding to the discretion of the trial court,

and on the other hand require a "rote recitation" of the essential elements of the charges against a defendant.

The Court has repeatedly refused to script the Rule 11 colloquy,

relying rather on the experience and wisdom of the district judges

 11
below. Only in rare situations has the Court mandated particular statements or procedures. See, e.g., United States v. Goins, 51 F.3d 400,

402-03 (4th Cir. 1995) (reversing a guilty plea based on the trial

court's failure to address a mandatory minimum sentence, but only if

defendant actually did not know of the mandatory minimum). We

again refuse to require the district courts to recite the elements of the

offense in every circumstance. In many cases, such a procedure would

be a formality and a needless repetition of the indictment, which often

tracks the essential elements of the offense. Moreover, we have under

similar circumstances questioned the need for formalities:

[Rule 11] is now at such a level of complexity as to render

letter-perfect compliance with each of its many provisions

very difficult indeed. One who has pled guilty and done so

voluntarily, understandingly, and with knowledge of the

consequences of his plea . . . has evinced a desire to waive

technicalities, to come to terms with the legal system, and

to admit his fault. There is something foreign to the spirit of

this act, almost invariably done today on the advice of counsel, in a rule that encourages following it by an appeal

grounded in a mincing insistence on the punctilios of Rule

11.

Reckmeyer, 786 F.2d at 1221 (quoting United States v. Dayton, 604

F.2d 931, 939-40 (5th Cir. 1979), cert. denied, 445 U.S. 904 (1980)).

That statement has since lost none of its force. We therefore decline

to require across-the-board the recitation of the essential elements of

the charged offense at a Rule 11 hearing. As we have stated previously, the district courts are wholly capable of guaranteeing that

guilty pleas are knowing and voluntary without flyspecking on the

appellate level.

IV.

Other similarities between DeFusco and the instant case similarly

support our holding that the trial court was not in error in refusing to

allow appellant to withdraw his guilty plea. The defendant in

DeFusco was charged with money laundering in violation of 18

U.S.C. § 1956(a)(1)(A)(i) in relation to a conspiracy to hide assets

from a bankruptcy trustee. 949 F.2d at 116. After sentencing, defen-

 12
dant appealed his conviction on the ground that in his Rule 11 proceeding the Court failed to establish whether the plea was knowing

and voluntary, particularly with respect to the nature of the charges.

Id. Thus DeFusco was a direct review of a guilty plea hearing after

sentencing. On direct review, we applied the harmless error standard

and exhibited considerable deference to the trial court, id. at 116-17,

and similarly, in reviews of Rule 32(e) denials by the trial court, we

have exhibited equivalent deference. Puckett, 61 F.3d at 1099.

The defendant in DeFusco provided the court with a signed statement of facts which he admitted were accurate. There"[t]he statement

of facts, as well as the plea agreement, set[ ] forth each element of the

offense and the facts to support each," yet defendant argued that he

never admitted to having the requisite criminal intent for money laundering. Id. at 120. In response we stated that the judge in the colloquy

need not personally establish the factual basis, and cited an Eleventh

Circuit case, United States v. Pinto, 838 F.2d 1566, 1569 (11th Cir.

1988), noting that Pinto held that the trial court had discretion to deny

a motion to withdraw a plea where the facts in the indictment were

precise enough to satisfy the judge of the factual basis for defendant's

guilty plea. Id. Thus the stipulated recitation of facts alone was sufficient to support a plea to a money laundering charge. Id. (citing

United States v. Guichard, 779 F.2d 1139, 1146 (5th Cir.), cert.

denied, 475 U.S. 1127 (1986)).

In this case appellant stipulated to a lengthy and detailed set of

facts. The trial court satisfied itself as to the factual basis for the plea,

and assured itself that appellant understood the indictment against

him. The court considered the education, intelligence and sophistication of the appellant, and determined that his plea was knowing and

voluntary. Appellant's later claim that he did not have the requisite

intent for money laundering is not sufficient to set aside the plea. As

we have stated previously, "[s]tatements of fact by a defendant in

Rule 11 proceedings may not ordinarily be repudiated, and, similarly,

findings by a sentencing court in accepting a plea`constitute a formidable barrier' to attacking the plea." Lambey, 974 F.2d at 1395 (quoting Blackledge v. Allison, 431 U.S. 63, 73-74 (1977)). We find no

error in the district court's determination that appellant's plea was

knowingly and voluntarily made.

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As to the other factors under Moore, we find no error in the trial

court's finding that the propriety of the Rule 11 proceeding, combined

with the delay between the plea and the motion to withdraw, appellant's competent assistance of counsel, and the potential for a significant waste of judicial resources in reopening the matter, necessitated

the denial of the motion to withdraw the guilty plea.

V.

Appellant argues that he never possessed the intent to conceal the

proceeds of the food stamp scheme.5 The question that really matters,

however, and the one that appears to have escaped so many courts in

the pursuit of pure procedural perfection, is whether appellant

believed, at the time of the taking of his plea, that there was a substantial risk that a jury could find that he possessed the requisite intent.

A defendant, in pleading guilty, does not have to believe that he committed all of the acts and possessed the statutorily-prescribed intent

for the crime charged. The purpose of the plea hearing is to guarantee

that the defendant understands the nature of the charges against him

so that he can knowingly and voluntarily agree to plead guilty, rather

than face the risk of a reasonable jury finding that he possessed the

necessary "mens rea" and committed the "actus reus." In North Carolina v. Alford, 400 U.S. 25 (1970), the Supreme Court stated the following:

_________________________________________________________________

5 The trial court characterized appellant's claim that he did not possess

the requisite intent as a "technical claim of innocence." Whether this was

in fact a proper characterization is of no import to our decision, as appellant admittedly held his concern prior to the initial Rule 11 hearing. His

failure to raise his concern at that time, then, might fairly be considered

a waiver of the opportunity to raise it later.

Moreover, even if properly before the court, this claim is without merit

based on the text of the statute itself. A conviction for money laundering

requires either "the intent to promote the carrying on of specified unlawful activity . . . or knowing that the transaction is designed in whole or

in part . . . to conceal . . . the control of the proceeds of specified unlawful activity . . . ." 18 U.S.C. § 1956(a)(1) (emphasis added). Thus appellant's argument that he did not intend to conceal the proceeds of his food

stamp fraud, even if true, would be insufficient to prevent conviction,

since he does not contest that he intended to promote the carrying on of

his fraud by way of the money transfers.

 14
[W]hile most pleas of guilty consist of both a waiver of trial

and an express admission of guilt, the latter element is not

a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandably 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.

Nor can we perceive any material difference between a

plea which 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 interest requires entry of a guilty plea and the record

before the judge contains strong evidence of actual guilt.

Id. at 37 (implying that a district court must satisfy itself of the factual

basis for the plea rather than rely on defendant's protestations of innocence).

Appellant's claim that he never intended to conceal the proceeds

of the food stamp scheme, therefore, warrants no remedy, even if this

issue had been raised at the time of his plea, and even if his argument

on the intent necessary for conviction were valid. It is clear from the

plea hearing, as well as the subsequent hearing on the motion to withdraw, that appellant understood the risk of presenting the case to a

jury. Rather than facing this risk, appellant chose to plead guilty to

a single offense. His later claims exhibited no more than cold feet

brought about by the realization that the guideline application in his

pre-sentence report required immediate and significant incarceration.

This is not a basis for withdrawal of a plea of guilty. Whether appellant made a knowing and voluntary plea of guilty is a question which

the trial judge must determine at the time that the plea is taken. The

question of whether to allow withdrawal of such a plea is addressed

to the discretion of the trial court. Here there has been no showing of

abuse of discretion. The district court is therefore

AFFIRMED.

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