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Fourth Circuit Affirms Barham Conviction

1) Nelson Barham pled guilty to conspiracy to launder money from cocaine distribution and permitting cocaine storage and use in his business. 2) Barham claimed there was an insufficient factual basis for his guilty plea to the money laundering charge because he denied knowing the money came from drugs. 3) However, the court found the plea agreement, presentence report, and Barham's testimony provided enough evidence that he knew the transaction was to conceal drug money. 4) The court also denied Barham's motion to withdraw his guilty plea, finding he did not credibly assert his innocence or show the plea was involuntary. The appeals court affirmed both rulings.

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49 views5 pages

Fourth Circuit Affirms Barham Conviction

1) Nelson Barham pled guilty to conspiracy to launder money from cocaine distribution and permitting cocaine storage and use in his business. 2) Barham claimed there was an insufficient factual basis for his guilty plea to the money laundering charge because he denied knowing the money came from drugs. 3) However, the court found the plea agreement, presentence report, and Barham's testimony provided enough evidence that he knew the transaction was to conceal drug money. 4) The court also denied Barham's motion to withdraw his guilty plea, finding he did not credibly assert his innocence or show the plea was involuntary. The appeals court affirmed both rulings.

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UNPUBLISHED

UNITED STATES COURT OF APPEALS


FOR THE FOURTH CIRCUIT

No. 10-4308

UNITED STATES OF AMERICA,


Plaintiff - Appellee,
v.
NELSON EDDY BARHAM, JR.,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Columbia.
Cameron McGowan Currie, District
Judge. (3:09-cr-00309-CMC-2)

Submitted:

December 16, 2010

Decided:

January 21, 2011

Before KING, KEENAN, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Russell W. Mace, III, THE MACE FIRM, Myrtle Beach, South


Carolina, for Appellant.
William N. Nettles, United States
Attorney, James C. Leventis, Jr., Assistant United States
Attorney, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
Nelson Eddy Barham, Jr., was convicted, following his
guilty

plea,

unlawful
U.S.C.

of

conspiracy

activity
1956(h)

(cocaine
(2006)

to

launder

distribution),
(Count

the

proceeds

of

an

in

violation

of

18

One),

and

knowingly

and

intentionally permitting the storage, distribution, and use of


cocaine in his place of business, in violation of 21 U.S.C.
856(a)(2) (2006) (Count Eight).
that there

was

an

insufficient

On appeal, Barham asserts

factual

basis

to

support

his

guilty plea to Count One and that the district court abused its
discretion in denying his motion to withdraw his guilty plea.
For the following reasons, we reject these arguments and affirm.
Barhams indictment stemmed from his involvement in a
money

laundering

transaction.

Acting

on

behalf

of

Robert

Garrick, Barhams business partner and an admitted drug dealer,


Barham negotiated for Garrick to purchase a strip club.

Garrick

used drug proceeds to pay one of the club owners $190,000.00 in


cash.

This aspect of the sale went unreported.

Barham contends

there was an insufficient factual basis as to Count One because,


during the Federal Rule of Criminal Procedure 11 colloquy, he
denied

knowing

that

the

purchase

money

came

from

cocaine

distribution or that the intent of the transaction was to avoid


various reporting requirements.

Rule

11(b)(3)

provides

that

[b]efore

entering

judgment on a guilty plea, the court must determine that there


is a factual basis for the plea.

As we have explained, [t]he

rule is intended to ensure that the court make clear exactly


what a defendant admits to, and whether those admissions are
factually sufficient to constitute the alleged crime.
States

v.

Mastrapa,

509

F.3d

652,

(internal quotation marks omitted).

659-60

(4th

United

Cir.

2007)

In making a Rule 11(b)(3)

determination, the district court has broad discretion and need


not conduct a trial; moreover, the court is not constrained to
rely only on the plea colloquy, but may conclude that a factual
basis exists from anything that appears on the record.

United

States v. Ketchum, 550 F.3d 363, 366-67 (4th Cir. 2008); see
also United States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991)
(noting that Rule 11 does not require the district court to
establish through its colloquy that a factual basis exists for
the

plea).

satisfied

The
that

district

there

is

court
a

need

sufficient

only

be

factual

subjectively
basis

for

conclusion that the defendant committed all of the elements of


United States v. Mitchell, 104 F.3d 649, 652 (4th

the offense.
Cir. 1997).
We

have

carefully

reviewed

the

record

and

conclude

there was ample support for the district courts factual basis
determination.

First

and

foremost,
3

in

his

plea

agreement,

Barham

stipulated

to

knowing

or

believing

that

the

purchase

money was the proceeds of an offense involving the distribution


of a controlled substance.
Barham

challenge

this

At no point in the proceedings did

stipulation.

Moreover,

Barhams

presentence report (PSR) detailed his knowledge of the source


of the laundered funds, and Barham did not pursue his objection
to that portion of the PSR.

Further, Barhams testimony at the

Rule 11 hearing squarely belies his contention that there was


insufficient support for the courts finding that he knew the
purpose of the transaction was to conceal the funds and to avoid
reporting requirements.

Accordingly, we hold the district court

properly determined there was a factual basis for the guilty


plea as to Count One.
Barham

also

See DeFusco, 949 F.2d at 120.


maintains

the

district

denying his motion to withdraw his plea.

court

erred

by

We review a denial of

a motion to withdraw a guilty plea for an abuse of discretion.


United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).
In determining whether the trial court abused its discretion in
denying such

motion,

this

court

considers

the

six

factors

articulated in United States v. Moore, 931 F.2d 245, 248 (4th


Cir. 1991).

These factors include whether:

(1) the defendant

has offered credible evidence that his plea was not knowing or
not voluntary; (2) the defendant has credibly asserted his legal
innocence; (3) there has been a delay between the entering of
4

the plea and the filing of the motion; (4) the defendant has had
close assistance of competent counsel; (5) the withdrawal will
cause prejudice to the government; and (6) the withdrawal will
inconvenience the court and waste judicial resources.

Id.

We have reviewed the district courts analysis of and


findings on this issue, and conclude the court did not abuse its
discretion

in

denying

Barhams

motion.

Barham

offered

no

evidence that his plea was not knowing or voluntary, and he did
not credibly assert his legal innocence.

Accordingly, we reject

Barhams challenge to the disposition of this motion.


For

these

reasons,

we

affirm

the

district

courts

denial of Barhams motion to withdraw his guilty plea and the


criminal judgment.
facts

and

materials

legal
before

We dispense with oral argument because the

contentions
the

court

are

adequately

and

argument

presented

would

not

in

the

aid

the

decisional process.
AFFIRMED

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