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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-51160

Summary Calendar

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 ExportImport 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

United States Court of Appeals

Fifth Circuit

F I L E D

April 9, 2010

Lyle W. Cayce

Clerk

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offenses. Under FED. R. CRIM. 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 ExIm 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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