United States v. Edward Ok , 454 F. App'x 615 ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 21 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 10-50277
Plaintiff - Appellee, D.C. No. 2:05-cr-01157- GHK-2
v.
MEMORANDUM*
EDWARD SEUNG OK, AKA ED OK,
AKA SEUNG MOK OK,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding
Submitted October 14, 2011**
Pasadena, California
Before: D.W. NELSON and CALLAHAN, Circuit Judges, and ERICKSON, Chief
District Judge.***
Appellant Edward Ok (hereafter “Ok”) appeals from a judgment and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Ralph R. Erickson, Chief District Judge for the U.S.
District Court for North Dakota, Fargo, sitting by designation.
sentence that was imposed on his pleas of guilty in the district court based on two
claims: First, that the factual basis offered at the time of his change of plea hearing
was insufficient; and, Second, that the district court abused its discretion in
denying Ok’s motion to withdraw his guilty pleas. We have jurisdiction pursuant
to 28 U.S.C. § 1291. Because Ok admitted to an adequate factual basis at the time
of his change of plea hearing and the district court did not abuse its discretion, we
affirm.
Ok failed to raise a Rule 11 objection contemporaneously with his
sentencing in the district court so we review applying the plain error standard.
United States v. Vonn, 535 U.S. 55, 59 (2002). Under the plain error standard Ok
must show “a reasonable probability that, but for the error, he would not have
entered the plea.” United States v. Roblero-Solis, 588 F.3d 692, 701 (9th Cir.
2009) (quoting United States v. Dominguez Benitez, 452 U.S. 74, 83 (2004)).
Before this court may vacate Ok’s plea, we must be convinced as “informed by the
entire record, that the probability of a different result is sufficient to undermine
confidence in the outcome of the proceeding.” United States v. Escamilla-Rojas,
640 F.3d 1055, 1062 (9th Cir. 2011) (quoting Dominguez Benitez, 452 U.S. at 83);
See also Vonn, 535 U.S. at 59 (“A reviewing court may consult the whole record
when considering the effect of any error on substantial rights”).
Ok claims that because the facts stated in the factual basis in the plea
agreement fail to mention the use of the mails, an essential jurisdictional element is
missing in his plea. He claims acceptance of the plea violates 18 U.S.C. § 1341.
Ok admits the district court specifically discussed the use of the mails in the plea
colloquy. He contends that this discussion was inadequate to satisfy the factual
basis because the colloquy was general in nature and related only to his
understanding of the charges.
These arguments lack merit. Ok’s admissions during the plea colloquy form
a sufficient factual basis for his guilty plea. During the colloquy, Ok was informed
of the essential elements of the crime and admitted that he understood those
elements as they were set forth in the second superseding indictment. Among
those elements was an admission that Ok “used or caused to be used the mails to
carry out or attempt to carry out an essential part of the scheme.” When asked
whether he understood the nature of this charge, Ok responded, “Yes.” When
asked whether he “did the things which are charged against you” in the indictment,
Ok responded, “Yes.”
Additional evidence supported Ok’s guilty plea. It is well established in this
circuit that when considering the factual basis for a plea, the district court may
consider all of the evidence before it at the time of the judgment. United States v.
Alber, 56 F.3d 1106, 1110 (9th Cir. 1995). The evidence may include matters that
go beyond the plea colloquy and include consideration of anything existing in the
record at the time of sentencing. United States v. Mancinas-Flores, 588 F.3d 677,
682 (9th Cir. 2009). Here, the government included additional information in a
fact statement attached to the plea agreement, and submitted a declaration from the
Los Angeles County Clerk’s Office stating that the grant deeds at issue were
mailed from the Clerk’s Office via the United States Postal Service. Even if Ok’s
plea colloquy were not enough to support his guilty plea (it was), these additional
facts would have been enough to do so.
Ok’s argument that the district court was bound to consider nothing beyond
the factual basis offered in the plea agreement is specious. The plea agreement
itself provides that the statement of the factual basis “is not meant to be a complete
recitation of all facts relevant to the underlying criminal conductor all facts known
to the defendant that relate to that conduct.” More importantly, Rule 11 does not
require a factual basis to be set out in a written plea agreement. See Fed. R. Crim.
P. 11.1
Finally, Ok contends that the district court abused its discretion in denying
his motion to withdraw his guilty pleas. Because the only basis for withdrawing
the plea was the alleged defectiveness of the plea agreement, and because it was
1
As the district court explained in this case, while it is a tradition in the
Central District of California to include a fact attachment in a plea agreement, there
is no requirement to do so. A mere tradition does not establish a legal requirement.
not plain error for the district court to conclude that the agreement provided a
sufficient basis on which to sustain the plea, the district court did not abuse its
discretion in denying Ok’s motion to withdraw his guilty plea.
AFFIRMED.