UNITED STATES of America, Plaintiff-Appellee, v. Michael B. BETHANY, Defendant-Appellant

United States Court of Appeals for the Fifth Circuit1974-02-07No. No. 73-3085

489 F.2d 91

Summary · law.co

Holding. The court affirmed Bethany's conviction and sentence, finding that the trial court properly established a factual basis for the guilty plea, that the indictment's citation of statutory provisions did not render it invalid, and that the trial court did not breach any plea agreement regarding sentencing leniency.

Michael Bethany pleaded guilty to one count of marijuana possession with intent to distribute 90 pounds after the government dismissed the remaining twelve counts of a thirteen-count indictment. He was sentenced to four years in prison plus a mandatory parole term of at least two years. Bethany appealed, challenging both his conviction and the court's refusal to reduce his sentence.

Bethany raised three main arguments on appeal. First, he claimed the trial court failed to establish an adequate factual basis for his guilty plea as required by the Federal Rules of Criminal Procedure. The appellate court found that the trial judge's questioning of the defendant and review of the government's investigation summary satisfied this requirement, which need not involve a formal written stipulation. Second, he argued the indictment was defective because it cited both the substantive marijuana statute and a procedural statute regarding aider-and-abettor liability. The court rejected this claim, holding that the factual allegations in an indictment, not the statutory citations, determine its validity, and that any citation error did not prejudice the defendant. Third, Bethany asserted he had been promised probation in exchange for his undercover cooperation in narcotics investigations. The record showed that the actual agreement involved only a one-count guilty plea with dismissal of other counts and government notification to the probation officer—with no promises of probation or sentencing leniency. The trial court also properly exercised its discretion in declining to reduce the sentence under the applicable procedural rule, having already considered Bethany's cooperation in its sentencing decision.

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Key issues

Whether the trial court established an adequate factual basis for a guilty plea under Federal Rule of Criminal Procedure 11
Whether an indictment citing both a substantive statute and a procedural aiding-and-abetting statute is defective
Whether the defendant was entitled to probation based on alleged promises for undercover cooperation
Whether the trial court properly exercised discretion in declining to reduce the sentence

Procedural posture

The defendant appealed his conviction and sentence following his guilty plea to one count of marijuana possession with intent to distribute.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

PER CURIAM:

Confronted with a thirteen count indictment involving marijuana violations, Michael B. Bethany pled guilty to one count of possession with intent to distribute 90 pounds of marijuana and obtained a dismissal by the Government of the remaining twelve counts. He now appeals the validity of his conviction and the failure of the court to reduce his sentence from four years confinement and a special parole term of not less than two years.

First, he challenges the sufficiency of the factual basis supporting his plea. Rule 11 of the Federal Rules of Criminal Procedure prohibits the court from entering a judgment upon a plea of guilty “unless it is satisfied there is a factual basis for the plea.” Contrary to appellant’s argument, this requirement does not demand a “written, sworn, and filed stipulation of evidence,” but only that the court make an inquiry “factually precise enough and sufficiently specific to develop that [defendant’s] conduct on the occasions involved was within the ambit of that defined as criminal.” Jimenez v. United States, 487 F.2d 212, 213 (5th Cir. 1973). Here the District Court sufficiently complied with the rule by questioning the defendant and hearing the Government’s summarization of the investigation report.

Second, appellant contends that the count of the indictment to which, he pled guilty is “erroneous” in that it not only alleges possession of a controlled substance with intent to distribute in violation of 21 U.S.C.A. § 841(a)(1), but goes further and conjunctively adds 18 U.S.C.A. § 2, a procedural statute which authorizes punishment of an aider and abettor as a principal. The indictment having admittedly alleged a crime is not rendered ineffective because of the additional recitation of the procedural statute. It is the statement of facts in the indictment and not the statutory citation that is determinative of validity. “Error in the citation . . . shall not be ground for . reversal of a conviction if the error . . . did not mislead the defendant to his prejudice.” F.R.Crim.P. 7 (c); see United States v. Hutcheson, 312 U.S. 219, 229, 61 S.Ct. 463, 85 L.Ed. 788 (1941); Williams v. United States, 168 U.S. 382, 389, 14 S.Ct. 1188, 25 L.Ed. 309 (1897). Appellant has alleged no prejudice.

Third, the appellant asserts that he understood that his undercover services in narcotics investigations would entitle him to probation. Appellant’s attorney informed the court, however, that the agreement with the United States attorney was that the Government (1) would accept a guilty plea on one count and dismiss the remaining twelve counts, and (2) would inform the probation officer responsible for the pre-sentence investigation of appellant’s cooperation with the Government. The attorney further stated that no promises of probation or of recommendations for leniency were made, and that appellant understood the nature of the agreement. The plea bargain was performed. See Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962).

Having declined the opportunity offered by the court to withdraw his plea and let the Government proceed, Bethany’s attorney asserted a reconsideration of the proposed sentence under Rule 35, F.R.Crim.P. The District Judge stated that he had taken appellant’s undercover services and other favorable factors into consideration in the sentence. A Rule 35 reduction of a valid sentence is within the broad discretion of the District Court. See Lott v. United States, 309 F.2d 115, 126 (5th Cir. 1962), cert. denied, 371 U.S. 950, 83 S.Ct. 504, 9 L.Ed.2d 498 (1963); Beitel v. United States, 306 F.2d 665, 672 (5th Cir. 1962).

Affirmed.