                  IN THE UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT
                          _____________________

                                No. 91-2408
                           _____________________



                         UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                                   versus

              CINDY GABBARD ADAMS, a/k/a Cindy Sanchez,

                                                Defendant-Appellant.

   ___________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
   ___________________________________________________________

                               ( May 8, 1992)

Before KING, JOHNSON and DAVIS, Circuit Judges.

PER CURIAM:

       After a guilty plea, the district court convicted defendant

Cindy Gabbard Adams of misprision of a felony in violation of 18

U.S.C. § 4 and sentenced the defendant to a term of imprisonment.

On appeal, Adams complains that the record contains an inadequate

factual basis for her guilty plea.            Although we agree that the

district court did not establish a factual basis for Adams's plea

in full compliance with Rule 11(f), we find this failure to be

harmless error.     Accordingly, we affirm.

                    I.    FACTS AND PROCEDURAL HISTORY

       During the 1970s, Ramon Dionicio Martinez, also known as "Jose

Luis   Sanchez"    and   "El   Lechero,"    formed   an   illegal   narcotics

distribution ring in the Rio Grande Valley.               Martinez and his
fellow conspirators imported huge quantities of marijuana from

Mexico and distributed the marijuana to dealers across the United

States.       From the sale of these illegal drugs, Martinez derived a

large income.       He invested much of this income in real estate,

frequently using sham or fraudulent transactions to conceal his

involvement.       In December 1986 Martinez purchased a residence in

Edinburg, Texas, with proceeds derived from the sale of illegal

narcotics.       Eventually, he transferred the title in the house to

his girlfriend, the defendant Cindy Gabbard Adams.

       On May 30, 1990, the Government named Martinez and thirty

other defendants in a ninety-one count indictment charging them

with       participation   in   an    illegal    narcotics   distribution      and

racketeering enterprise.             Although Adams had not been directly

involved in the distribution ring, she was named in six counts of

the indictment.       Adams maintained a plea of "not guilty" to these

charges until December 4, 1990. On that date, the Government filed

a   superseding     information       charging    Adams   with   one   count   of

misprision of a felony.1 Specifically, the Government alleged that

Adams knew that Martinez had used laundered money to purchase the

Edinburg residence and had failed to report this illegal purchase

to the authorities.        In exchange for the Government's promise to



       1
        See l8 U.S.C. § 4 (l988), which provides:


       Whoever, having knowledge of the actual commission of a felony
       cognizable by a court of the United States, conceals and does
       not as soon as possible make known the same to some judge or
       other person in civil or military authority under the United
       States, shall be fined not more than $500 or imprisoned not
       more than three years, or both.

                                         2
dismiss the indictment against her, Adams agreed to relinquish her

interest in the Edinburg house and to enter a guilty plea to the

charge in the superseding information.

     At her rearraignment, the district court reviewed the terms of

the superseding information with Adams, who related that she

understood the terms of the charge.    Adams entered a plea of guilty

to the misprision charge alleged in the superseding information,

and the district court accepted the plea.     On April 9, 1991, after

the court received the recommendation of the probation office in

its presentence report, the court sentenced Adams to three years in

prison, but ordered her to serve only the first six months of the

sentence, the remainder suspended for five years.2     Adams filed a

timely notice of appeal.

                           II.   DISCUSSION

     A guilty plea is insufficient in itself to support a criminal

conviction. When a defendant enters a guilty plea, Federal Rule of

Criminal Procedure 11(f) requires "a factual basis for the plea."

Fed. R. Crim. P. 11(f).    The sentencing court must satisfy itself,

through an inquiry of the defendant or examination of the relevant

materials in the record, that an adequate factual basis exists for

the elements of the offense.       United States v. Montoya-Camacho,

644 F.2d 480, 485 (5th Cir. 1981).      The factual basis cannot be

implied from the fact that the defendant entered a plea, but must

appear on the face of the record and "must be precise enough and


     2
      Because the charged offense was alleged to have occurred
before the effective date of the federal sentencing guidelines,
the guidelines did not apply.


                                   3
sufficiently specific" to demonstrate that the accused committed

the charged criminal offense.          United States v. Johnson, 546 F.2d

1225, 1226 (5th Cir. 1977).

     The record must reveal specific factual allegations supporting

each element of the offense.          United States v. Fountain, 777 F.2d

351, 356 (7th Cir. 1985), cert. denied, 475 U.S. 1029 (1986).                       To

support a conviction for misprision of a felony, therefore, the

record must reveal specific factual allegations regarding the

following three elements:          (1) the defendant had knowledge that a

felony   was    committed;      (2)    the    defendant      failed     to    notify

authorities     of   the    felony;    and    (3)    the    defendant        took    an

affirmative step to conceal the felony.             18 U.S.C. § 4 (1988).           See

United States v. Davila, 698 F.2d 715, 717 (5th Cir. 1983).

A.   Factual Basis.

     Adams     contends     that    there    are    no    facts    in   the   record

establishing     the    third      element    of    her    alleged      offense--an

affirmative act of concealment. The misprision statute is directed

against an individual who "conceals and does not as soon as

possible make known...."           18 U.S.C. § 4 (1988) (emphasis added).

Thus, under the misprision statute, the defendant must commit an

affirmative    act     to   prevent   discovery      of    the    earlier     felony.

"[M]ere failure to make known does not suffice."                  United States v.

Warters, 885 F.2d 1266, 1275 (5th Cir. 1989).                    See also Johnson,

546 F.2d at 1227.

     The acceptance of a guilty plea is deemed a factual finding

that there is an adequate factual basis for the plea.                   Davila, 698

F.2d at 717.     We review this finding under the clearly erroneous

                                        4
standard.    Id.      To determine whether the district court erred in

concluding that there was an adequate factual basis for the plea,

we must examine two parts of the record:                 the information and the

plea hearing.3

     The Information. Defendant Adams waived grand jury indictment

and entered a guilty plea to an information charging her with

misprision      of    a    felony.    In        its   entirety,   the   superseding

information states:

            The United States Attorney Charges:

               That starting in December of 1986 to about
     February of 1987 in the Southern District of Texas                          and
     elsewhere and in the jurisdiction of this court

                                CINDY GABBARD ADAMS

          having knowledge of the commission of a felony by Ramon
          Dionicio Martinez, to wit:    a violation of the money
     laundering statute, 18 USC 1956 (the Peter Street house
     purchase), did knowingly and unlawfully conceal and    cover
     up the same and did not as soon as possible report the same
     to a judge or other person in civil or military authority
     under the United States.

Record   Vol.    I,       at   438.   The       Government   suggests    that   this

superseding information is adequate to provide a factual basis for

the guilty plea.

     If sufficiently specific, an indictment or information can be

used as the sole source of the factual basis for a guilty plea.

United States v. Bachynsky, 949 F.2d 722, 730 (5th Cir. 1991);


     3
      In some cases it might also be permissible for the district
court to turn to the Presentence Report to establish an adequate
factual basis, as long as the court indicates on the record that it
relies upon the Presentence Report. See United States v. Graves,
720 F.2d 821, 824 (5th Cir. 1983). The district court in this case
did not indicate on the record that it relied upon the Presentence
Report. See Section B.


                                            5
United States v. Boatright, 588 F.2d 471, 475 (5th Cir. 1979).               The

superseding information in this case, however, is not sufficiently

specific.      While it states that Adams concealed Ramon Martinez's

violation of the money laundering statute, the information fails to

allege   any    facts   which   would       indicate   that   Adams   took    an

affirmative step to conceal the crime.           Cf. Boatright, 588 F.2d at

475 (concluding that an indictment is not adequate to serve as the

factual basis for a plea of guilty to a conspiracy charge when the

indictment "fails to allege any facts tying [the defendant] to the

conspiracy.").

     The Plea Hearing.          At rearraignment, the district court

engaged in the following colloquy:

          ATTORNEY FOR THE GOVERNMENT: Your Honor, as to Cindy
     Gabbard Adams, she was the mistress or girlfriend of large
     scale drug dealer Ramon Martinez over a period of several
     years. As Mr. Martinez generated huge sums of money from his
     drug dealing, he invested some of this money in assets that he
     placed in names other than his own, and for purposes of this
     factual allocution, in real estate. Mr. Martinez was involved
     in getting money from drug dealing, buying assets and putting
     those assets in names other than his own to hide his own
     ownership, control, participation of the assets.            In
     particular, in the Peter Street address or the Peter Street
     asset which is one of the assets we're seeking forfeiture of
     in the indictment.

          He, Ramon Martinez, and Ms. Adams attended a real estate
     auction, a private auction, in December of 1986, and at that
     auction Ramon Martinez paid down a down payment of about 10
     percent of the purchase of the Peter Street house, total
     purchase price of the house was approximately $40,000 and
     around $4,000 paid down.       Thereafter, in approximately
     February of 1987, a check from the Robert Salinas law firm,
     funded by Ramon Martinez, was used to pay off the balance of
     that property.   That property in February of '87 was then
     deeded to Ramon Martinez' brother's name, Juan Martinez, and
     that is the money laundering violation that is made out by Ms.
     Adams' misprison [sic] of that felony.

          Further down the line, this property gets transferred to
     Ms. Adams. In fact, I believe title to date rests in her

                                        6
      name, but the crime here is not that which it occurred at a
      later date, but rather the initial purchase by Ramon Martinez
      with drug money putting it into someone else's name to hide
      his own ownership of it.

           THE COURT: All right. Ms. Adams, you've just heard what
      Mr. Lewis has explained to me. Is all of that true?

             CINDY ADAMS:     Yes, sir.

             THE COURT:    And you were aware of it?

             CINDY ADAMS:     Yes, sir.

             THE COURT:    You were aware of all these facts?

             CINDY ADAMS:     Yes, sir.

           ATTORNEY FOR THE GOVERNMENT: And in fact concealed it
      and did not make it known to anybody.

           THE COURT:      And you did not, of course, report it to the
      authorities?

             CINDY ADAMS:     No, sir.

           THE COURT: All right. I'm going to accept your plea of
      guilty.   I find that you are guilty as set out in the
      information....

Record Vol. IV, at 54-56.            The Government suggests that this

colloquy provides an adequate factual basis for the guilty plea.

      According to the Government, the plea hearing demonstrates

that Adams concealed the illegal purchase of the Edinburg house

and, therefore, provides a factual basis for the third element of

the misprision offense.        We are not persuaded.             The transcript of

the   plea   hearing   does    not      indicate    that    Adams     admitted   an

affirmative act of concealment.              Rather, it indicates that the

prosecutor    interjected     his    position      that    Adams    had   concealed

Martinez's money laundering violation.             The district court did not

ask Adams whether she agreed with this interjection. Even assuming

that she     did   agree   with   the    prosecutor,       the    interjection   is

                                         7
insufficient as a matter of law to constitute a factual allegation

of affirmative concealment.      See Fountain, 777 F.2d at 356.         Thus,

the record of the plea hearing also does not provide a factual

basis for the plea.

      We conclude that the information available to the court when

it   accepted   the   plea   (outlined   above   from   the   record)    was

inadequate as a matter of law to "satisfy it that there [was] a

factual basis for the plea," as required by 11(f).                We must

therefore determine whether the court committed reversible error in

accepting her plea.

B.    Harmless Error.

      We review a district court's failure to comply with Rule 11

for harmless error under Rule 11(h).        The inquiry is whether any

variance from the procedures required by Rule 11 affects the

substantial rights of the defendant.       United States v. Bernal, 861

F.2d 434, 436 (5th Cir. 1988), cert. denied, 493 U.S. 872 (1989);

United States v. Corbett, 742 F.2d 173, 178 & n.14 (5th Cir.

1984).4    This circuit has identified three "core concerns" under

Rule 11:   (1) whether the guilty plea was coerced; (2) whether the

defendant understands the nature of the charges; and (3) whether

the defendant understands the consequences of the plea. See United

States v. Shacklett, 921 F.2d 580, 582 (5th Cir. 1991); Bernal, 861

F.2d at 436.    When a district court completely fails to address one

of these concerns, the defendant's substantial rights have been


     4
      Rule 11(h), adopted in 1983, reads: "Any variance from the
procedures required by this rule which does not affect substantial
rights shall be disregarded." See also Corbett, 742 F.2d at 178 n.
14.

                                    8
affected and Rule 11 requires automatic reversal. Bernal, 861 F.2d

at 436; Corbett, 742 F.2d at 178.         If the core concerns are met,

however, an "inadequate address" or less than "letter-perfect"

compliance with Rule 115 may be excused under a harmless error

standard.     Bernal, 861 F.2d at 436; see also United States v.

Dayton, 604 F.2d 931, 939-40 (5th Cir. 1979) (en banc), cert.

denied, 445 U.S. 904 (1980).

      We recognize, of course, that the three core concerns are not

the sole "substantial rights" that Rule 11 protects.           As this court

observed in Shacklett, the mere fact that a Rule 11 violation fails

to implicate one of the core concerns does not in itself mean that

the violation is harmless.          921 F.2d at 582.         Even then the

question remains whether the violation affects the substantial

rights of the defendant, id.; see also Dayton, 604 F.2d at 940

(violations of technical requirements of Rule 11 are subject to

harmless error analysis, but are not always harmless), and the

appellate court must conduct an independent examination of the

effect of the error on the rights of the accused.            Shacklett, 921

F.2d at 582.

      Many of the cases analyzing a defendant's Rule 11 challenges

to   the   acceptance   of   a   guilty   plea   do   not   distinguish   the




      5
      For example, in United States v. Tuangmaneeratmun, 925 F.2d
797, 804 (5th Cir. 1991), the district court failed to explain
adequately the effect of a term of supervised release prior to
accepting a defendant's guilty plea. Although this constituted an
"inadequate address" of a core concern, we held that it amounted to
harmless error because the defendant did not demonstrate that the
court's failure affected his substantial rights or otherwise
prejudiced him. Id.

                                      9
requirements     of       11(c)(1)    from      those    of    11(f).6           This       is

understandable because the two sections address related concerns.

Section (c) is the textual basis for the second core concern and

requires the court to

       address the defendant personally in open court and inform
       him of, and determine that he understands, the following:

       (1) the nature of the charge to which the plea is
       offered. . . .

Fed.   R.   Crim.    P.    11(c).     This       section     requires      a    court       to

participate personally in a conversation with the defendant to

determine if he understands the nature of the charges against him.

Shacklett,    921     F.2d    at    582.        Often   in    the   course       of       this

questioning, a discussion of the defendant's conduct will occur.

The court may then rely upon this colloquy to satisfy itself that

a sufficient factual basis exists for accepting the guilty plea.

       Section (f), on the other hand, does not specifically require

any    on-the-record        colloquy.           It   requires       that       the    court

subjectively satisfy itself of an adequate factual basis.                                  See

United States v. Antone, 753 F.2d 1301, 1305 (5th Cir.) (prosecutor

must   present      evidence   to    the     subjective       satisfaction           of    the

district    court     which    indicates         that   the    defendant         actually

committed the offense to which he is pleading guilty), cert.



       6
       Many of the decisions which do not distinguish between the
requirements of these two sections of Rule 11 were written prior to
the adoption of 11(h).       Before that section clarified the
applicability of the harmless error standard to certain Rule 11
violations, there was less reason to be concerned with
distinguishing between a district court's violation of a core
concern and other Rule 11 violations. See, e.g., United States v.
Boatright, 588 F.2d 471 (5th Cir. 1979); United States v. Johnson,
546 F.2d 1225 (5th Cir. 1977).

                                           10
denied, 474 U.S. 818 (1985); see also Bachynsky, 949 F.2d at 730

(relying on Antone); United States v. Guichard, 779 F.2d 1139, 1146

(5th Cir. 1985) (same), cert. denied, 475 U.S. 1127 (1986).      We

observe that courts, looking to the on-the-record colloquy used to

satisfy both Rule 11(c)(1) and Rule 11(f), have produced language

in several cases which seemingly commingles the requirements of

these two sections.7

     Nonetheless, section (f) (factual basis) and section (c)(1)

(understanding the nature of the charges) are distinct requirements

of Rule 11.    Their similarity does not elevate Rule 11(f) to core

concern status, and accordingly, noncompliance with Rule 11(f) does

not automatically affect a defendant's substantial rights.   In the

instant case, after careful review of Adams' arguments, we note

that Adams never contends that the court failed to explain the

nature of the charges as required by Rule 11(c)(1).   Likewise, she

makes no argument that the court's failure to establish a factual

basis in violation of Rule 11(f) somehow confused or misled her as

to the nature of the charges against her, thereby implying a

violation of Rule 11(c)(1).   Because the court's failure to comply

with Rule 11(f) is not a core concern, and is not suggested by




     7
         See, e.g., Shacklett, which states:

     The district court must therefore personally participate
     in the colloquy mandated by Rule 11 in order to assure
     itself that the defendant understands what he is
     admitting and the consequences of his admissions and that
     his admissions constitute the crime charged.

921 F.2d at 582 (emphasis added).

                                 11
Adams to have somehow raised a core concern, we apply the harmless

error standard of Rule 11(h) in reviewing that failure.

     The plea hearing record clearly established the first two

elements of the misprision offense, knowledge of a felony and

failure to notify authorities of the felony.       Adams stated on the

record that she was aware of and knew to be true the following

facts stated   by   the   Assistant   United   States   Attorney:   that

Martinez bought assets to conceal his drug proceeds, that the house

in which she lived was such an asset, and that she did not make

this information known to the authorities. Only the third element,

affirmative concealment, is at issue.

     Although the district court failed to discuss with Adams any

specifics with regard to this third element at the time of her plea

hearing, we find that other sources of factual information provide

us with an adequate factual basis of Adams' affirmative concealment

to support her plea.      According to Adams' own statements in the

Presentence Report,

     Shortly after that I was with him at an auction when he
     bought the house on Peters Street in Edinburg. At that
     time I believe the house was bought in the name of his
     brother, Juan.

     At some later date we moved into the house on Peters
     Street with Ramon. Eventually the house was transferred
     into my name. Ramon had the paper work prepared at the
     law offices of Pena, McDonald in Edinburg, and afterwards
     I would make payments to Juan, or Ramon would make the
     payments for me. The payments were always in cash. . .
     .

The plea hearing record establishes that the house was paid off in

February 1987 with a check funded by Martinez and issued by the

Robert Salinas law firm.      At that time, title to the house was


                                  12
vested in Juan Martinez.   Title was later transferred to Adams.       We

can infer from this that Adams made her payments before the house

was "paid off" and while title was vested in Juan.      On this record,

therefore, the evidence establishes that Adams made cash payments

to Juan Martinez to "purchase" an asset which she knew had been

purchased by Ramon Martinez in the name of his brother.         She also

knew that the house was purchased by Ramon Martinez with drug

proceeds and was being used to conceal those proceeds.                 The

payments   made   by   Adams   constitute    an   affirmative   acts   of

concealment of the felony underlying the misprision offense.

     We take care to point out that the district court could not

rely on the information within the Presentence Report as a source

of the factual basis for Adams' plea.       As this court made clear in

United States v. Graves, 720 F.2d 821, 824 (5th Cir. 1983), "when

a presentence report is relied upon as a source of the factual

basis to establish the crime, this circumstance must appear on the

record, and, where necessary to establish the factual basis, the

presentence report must be part of the record on appeal."       See also

Sassoon v. United States, 561 F.2d 1154, 1159 (5th Cir. 1977)

("[T]he factual basis, whatever its source, must appear clearly on

the record.").    Here, the district court nowhere stated on the

record that it was relying on the Presentence Report as the source

of the factual basis of Adams' plea.    The Presentence Report could

not have served, therefore, as a proper factual basis of the

element of concealment.

     We, on the other hand, despite the district court's violation

of Rule 11(f), may consider the information in Adams' Presentence

                                   13
Report in conducting our harmless error analysis.        In so doing, we

find that Adams did, in fact, take affirmative steps to conceal

Ramon's    unlawful   activities.    Accordingly,   we   conclude,   upon

examination of the entire record in this case, that the failure of

the district court to establish adequately that a factual basis

existed for Adams' plea did not affect her substantial rights,

because the record as a whole reveals that her actions satisfied

the elements of misprision of a felony in violation of 18 U.S.C. §

4.8   The violation of Rule 11(f) was therefore harmless error.


       8
        In this regard, the instant case is distinguishable from
United States v. Goldberg, 862 F.2d 101 (6th Cir. 1988).         In
Goldberg, the Sixth Circuit found that the district court's failure
to satisfy itself of a factual basis for the defendant's plea to
misprision of a felony was not harmless error. Id. at 106. In
that case, Goldberg, the defendant doctor, was charged with
affirmatively concealing a pharmacist's crime of adding medications
to Goldberg's prescriptions in order to defraud Medicaid. The plea
colloquy failed to elicit any acts taken by Goldberg to conceal the
pharmacist's offense. Based upon the information taken from the
colloquy, the Sixth Circuit noted as follows:

      In continuing to write the prescriptions, Dr. Goldberg
      did nothing more than provide the opportunity for the
      pharmacist to continue with their [sic] fraudulent
      conduct, but Dr. Goldberg did not engage in active
      concealment from the authorities of the fact that after
      the prescription was written the pharmacist added to the
      prescriptions. The statement elicited from Dr. Goldberg
      is insufficient to establish anything more than Dr.
      Goldberg's failure to report on-going criminal conduct.

Id. at 105. The Sixth Circuit recognized that a district court may
look to many sources to determine the existence of a factual basis
of the plea, and is not limited to the colloquy. Id. In that
case, however, the district court made no inquiry of the Government
for supplemental findings, nor did the government offer any. Id.
The Goldberg court therefore limited its review to the record of
the plea proceeding. Id. Based upon its finding that the plea
proceeding provided no factual basis for the element of
concealment, the Sixth Circuit found a violation of Rule 11(f), and
held it not to be harmless error. Id. at 106 ("[W]hile the exact
method of producing a factual basis on the record is subject to a
flexible standard of review, the need to have some factual basis

                                    14
      AFFIRMED



JOHNSON, Circuit Judge, concurring:

      I concur in the panel opinion with the understanding that the

harmless error rationale in Rule 11(h) is not a convenient excuse

for   the   district   courts   to   abrogate    their   responsibility   to

ascertain that an adequate factual basis exists for the elements of

the offense.     The instant case is unusual:       while the Presentence

Report provides a factual basis for the plea, it cannot be relied

upon as the source of the factual basis.                 In most cases the

circumstances will not be so unusual.           The purpose of the factual

basis requirement in Rule 11(f) is to protect a defendant "who may

plead with an understanding of the nature of the charge, but

`without realizing that [her] conduct does not actually fall within

the definition of the crime charged.'"           United States v. Oberski,

734 F.2d 1030, 1031 (5th Cir. 1984) (quoting United States v.

Johnson, 546 F.2d 1225, 1226-27 (5th Cir. 1977)).            If nothing in

the record indicates that the defendant realized her conduct fell

within the definition of the charged offense, then the absence of



will continue to be a rule subject to no exceptions.") (citations
omitted).
     Unlike Goldberg, where there was apparently no information
presented to the Sixth Circuit concerning the defendant doctor's
actions but for that offered at the plea proceeding, there was
information available in the instant case that clearly indicates
that Adams took affirmative steps to conceal Martinez' crime.
Goldberg directly raises the issue whether a district court's
failure to establish a factual basis at the plea hearing, in the
absence of other information sources otherwise available to the
court that would support the plea, constitutes harmless error.
That question is not presented by the case at bar, and we need not
address it at this time.

                                     15
an adequate factual basis cannot be harmless error.      See United

States v. Goldberg, 862 F.2d 101, 106 (6th Cir. 1988).




                               16
