UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 17-4573
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARY MOONEY,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at Beaufort. David C. Norton, District Judge. (9:14-cr-00054-DCN-2)
Argued: December 13, 2018 Decided: February 28, 2019
Before WILKINSON, HARRIS, and QUATTLEBAUM, Circuit Judges.
Affirmed in part and dismissed in part by unpublished opinion. Judge Harris wrote the opinion, in which Judge Wilkinson and Judge Quattlebaum joined.
ARGUED: Joshua Snow Kendrick, KENDRICK & LEONARD, P.C., Greenville, South Carolina, for Appellant. Derek J. Ettinger, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Sherri A. Lydon, United States Attorney, Columbia, South Carolina, Jamie Lea Schoen, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PAMELA HARRIS, Circuit Judge:
Mary Mooney pleaded guilty to knowingly making a false statement to an entity
responsible for accrediting adoption service providers, in violation of 42 U.S.C.
§ 14944(c). But shortly after signing her plea agreement, Mooney moved to withdraw
her plea, arguing that § 14944(c) does not apply to her false statements as a matter of law,
and so she cannot be guilty of violating that provision. The district court denied
Mooney’s motion, sentenced her to a term of imprisonment, and imposed a restitution
obligation.
Mooney has now appealed, and the government has moved to dismiss that appeal
based on the appeal waiver in Mooney’s plea agreement. Mooney contends that her
appeal should not be dismissed because her argument – that § 14944(c) does not prohibit
her conduct – implicates the validity of her underlying guilty plea. We agree with
Mooney that her appeal waiver does not foreclose consideration of that argument. On the
merits, however, we disagree with Mooney, and conclude that § 14944(c) does indeed
cover her false statements. And because Mooney’s appeal waiver is otherwise valid, it
forecloses her remaining claims on appeal. Accordingly, we affirm the district court’s
denial of Mooney’s plea-withdrawal motion and Mooney’s resulting conviction, and
dismiss the remainder of her appeal.
I.
A.
2 Mary Mooney was the executive director of International Adoption Guides
(“IAG”), an organization that provided consulting and logistics services to parents
seeking to adopt children from outside the United States. In 2006, Mooney applied for
accreditation for IAG under the Intercountry Adoption Act of 2000, 42 U.S.C. §§ 14901–
14954, which governs international adoptions. To become accredited under the Act, an
adoption service provider like IAG must apply to an “accrediting entity” designated by
the State Department. See 42 U.S.C. §§ 14902(2), 14922(a). That entity then considers
whether the provider satisfies specific professional requirements. See id. § 14923(b)
(establishing minimum requirements for accreditation); see also 22 C.F.R. §§ 96.29–.55
(outlining additional accreditation requirements). If accredited, the adoption service
provider must continue to submit annual statements to the accrediting entity, confirming
that it remains in substantial compliance with all relevant requirements. See 22 C.F.R.
§ 96.66(c).
In this case, Mooney submitted her application on behalf of IAG to the Council on
Accreditation, a designated accrediting entity, and the Council granted Mooney’s
application in 2008. Shortly after, Mooney agreed to sell IAG to James Harding.
Harding previously had applied for accreditation for his own adoption service
organization, but that application had been denied because Harding lacked the
qualifications required by regulation to run such an organization. So Mooney and
Harding agreed that once Mooney sold IAG to Harding, Harding would assume day-to-
day control as the executive in charge of IAG’s operations, but Mooney would remain
executive director in name only so that IAG could maintain its accreditation.
3 Neither Mooney nor Harding notified the Council on Accreditation of this change
in leadership. And in 2010 and 2011, in order to preserve IAG’s accredited status,
Mooney made the statements that eventually formed the basis for the plea at issue in this
appeal: Mooney submitted statements to the Council falsely claiming that she remained
in control of IAG, and that the organization continued to be in substantial compliance
with all applicable regulations – even though Harding, who lacked the required
educational and professional qualifications, actually was in charge.
The government soon had reason to suspect that Mooney was doing more than
making false statements, and in fact was engaged in a scheme to facilitate fraudulent
adoptions. Specifically, emails between Mooney and her coworkers revealed that IAG
was paying Ethiopian orphanages to sign contracts giving specific children up for
adoption when those children never had lived in the orphanages, and may not even have
been orphans. The government also uncovered evidence that Mooney’s employees then
submitted those false contracts to Ethiopian courts and the U.S. State Department to
expedite the children’s adoptions.
B.
Based on this evidence, Mooney and three of her coworkers, including Harding,
were indicted for conspiracy to defraud the United States, in violation of 18 U.S.C. § 371.
Harding and another co-defendant pleaded guilty to that conspiracy. 1 But Mooney
1 Mooney’s third co-defendant is a foreign national who is thought to be a fugitive residing in Ethiopia.
4 refused to do so. Instead, shortly before trial, Mooney asked the government if she could
plead guilty to a violation of 42 U.S.C. § 14944(c), which prohibits the making of a false
statement to an accrediting entity in order to obtain or maintain accreditation. 2 The
government agreed that Mooney could plead guilty to that less serious offense, and
provided her with a list of false statements she had made to the Council on Accreditation.
As the basis for her plea, Mooney chose the 2010 and 2011 statements in which she
confirmed that she was executive director of IAG and that IAG was in compliance with
all relevant regulations – when in reality Harding, who lacked the qualifications required
by regulation, had assumed control of the organization. 3
The government included those statements in an information charging Mooney
with a violation of 42 U.S.C. § 14944(c), and based on that information, Mooney and the
government entered into a written plea agreement. In the plea agreement, the
government agreed to dismiss the original conspiracy charge, and in exchange, Mooney
agreed to plead guilty to the § 14944(c) violation and to waive her right to appeal her
conviction and sentence.
2 Specifically, § 14944(c) imposes criminal penalties on any person who “knowingly and willfully” violates § 14944(a)(2). 42 U.S.C. § 14944(c). Section 14944(a)(2), in turn, prohibits making a material false statement “intended to influence or affect . . . a decision by an accrediting entity with respect to the accreditation of an agency.” Id. § 14944(a)(2)(A). 3 Mooney also selected a third statement she made to the Council in 2007: a list of IAG employees providing adoption services that failed to mention one such employee. Because the government has conceded that the 2007 statement was not a “false statement” for purposes of § 14944(c), we do not consider that statement here.
5 In January 2015, the district court conducted a thorough plea colloquy to
determine whether to accept Mooney’s guilty plea under Federal Rule of Criminal
Procedure 11. During the colloquy, the government reviewed the facts it would prove at
trial: that Mooney made the 2010 and 2011 statements to the Council about IAG’s
compliance with the regulations and that she knew those statements were false. Mooney
agreed that those facts were accurate.
The court also asked Mooney a series of questions about whether she fully
understood the proceedings, whether she was satisfied with her counsel, whether her
counsel had explained the nature of the charges against her, whether she understood those
charges, and whether she voluntarily signed the plea agreement. Mooney answered all
of those questions in the affirmative. Finally, the court reviewed the rights that Mooney
waived through her plea agreement, including, specifically, the right to appeal her
conviction and sentence. Mooney confirmed that she both understood and agreed to this
waiver of her appeal rights. Accordingly, the court accepted Mooney’s plea, finding that
it was knowingly and voluntarily made with a basis in fact encompassing all elements of
the § 14944(c) crime.
Before she was sentenced, Mooney moved to withdraw her plea. Although
Mooney conceded that the Rule 11 colloquy was properly conducted and comprehensive,
she argued that she was rushed into the plea agreement, leaving her attorney without time
to thoroughly research the elements of a § 14944(c) offense. But now, Mooney argued,
she had discovered that § 14944(c) in fact did not apply to her 2010 and 2011 false
statements, so that her guilty plea was to a non-existent criminal offense.
6 Mooney’s argument was as follows: When Mooney made her false statements in
2010 and 2011, the Intercountry Adoption Act required accreditation only of those
organizations conducting adoptions under the Hague Convention on Protection of
Children and Co-operation in Respect of Intercountry Adoption. 4 It followed, Mooney
argued, that the prohibition on false statements to accrediting entities laid out in § 14944
applied only to organizations then conducting adoptions in countries that were parties to
the Hague Convention. And, Mooney finished, because IAG provided adoption services
in 2010 and 2011 only in connection with two countries that were not parties to the
Hague Convention and thus did not require accreditation – Ethiopia and Kazakhstan – her
false statements to her accrediting entity could not constitute violations of § 14944(c).
After a hearing, the district court denied Mooney’s motion to withdraw her plea,
rejecting Mooney’s argument that § 14944(c) did not apply to her false statements. The
district court recognized that when Mooney made her false statements, she may not have
been required to seek accreditation for IAG. But, the district court explained, “the fact
remains that [Mooney] did seek accreditation (regardless of whether it was required).”
J.A. 153. And once Mooney applied for accreditation, § 14944 “plainly made it a crime”
to make false statements to her accrediting entity in order to influence its decision. Id.
4 An adoption falls under the Hague Convention if it is “an adoption of a child resident in a foreign country party to the Convention by a United States citizen, or an adoption of a child resident in the United States by an individual residing in another Convention country.” 42 U.S.C. § 14902(10).
7 The district court thus found no basis to permit Mooney to withdraw her plea, and denied
her motion.
The district court eventually sentenced Mooney to 18 months’ imprisonment and
three years’ supervised release, and imposed a restitution obligation of $223,964.04.
Shortly after sentencing, Mooney filed this appeal, challenging the district court’s denial
of her motion to withdraw her guilty plea as well as the court’s sentence and restitution
order.
II.
We begin with Mooney’s appeal of the district court’s denial of her motion to
withdraw her guilty plea. The government contends that this challenge must be
dismissed before we reach its merits because Mooney waived her right to appeal in her
plea agreement. We disagree. It is undisputed that Mooney’s plea agreement includes a
waiver of Mooney’s right to appeal her conviction. But that does not end the matter,
because when a defendant challenges the denial of a motion to withdraw her guilty plea,
as Mooney does here, “a waiver of appeal rights in a plea agreement will not bar
appellate review” if “the plea-withdrawal motion incorporates a colorable claim that the
plea agreement itself – and hence the waiver of appeal rights that it contains – is tainted
by constitutional error.” United States v. Attar, 38 F.3d 727, 733 n.2 (4th Cir. 1994)
(emphasis omitted).
8 Mooney’s motion to withdraw her plea meets that standard, raising a colorable
claim that her plea was constitutionally infirm. The primary contention in support of
Mooney’s motion is that no one – not her counsel, not the government, and not the court
– understood or informed her that § 14944(c), correctly interpreted, does not criminalize
the false statements that were the basis for her guilty plea. That is enough to call into
question the constitutional validity of that plea. A guilty plea is constitutionally sound
only to the extent that it is “voluntary” and “intelligent,” and “a plea does not qualify as
intelligent unless a criminal defendant first receives real notice of the true nature of the
charge against [her].” Bousley v. United States, 523 U.S. 614, 618 (1998) (internal
quotation marks omitted). If a criminal defendant is not correctly informed as to “the
essential elements of the crime” to which she pleads guilty – and so pleads guilty based
on conduct that in fact does not satisfy those elements – then her plea is constitutionally
invalid. Id. at 618–19. Because Mooney has advanced a colorable claim that, if correct,
would “taint[] [with] constitutional error” her guilty plea and the appeal waiver it
contains, Attar, 38 F.3d at 733 n.2, that appeal waiver does not bar our review of
Mooney’s challenge to the denial of her plea-withdrawal motion.
On the merits, however, Mooney cannot succeed. The crux of Mooney’s claim, as
noted above, is that the district court should have permitted her to withdraw her guilty
plea because she did not understand, at the time the plea was entered, that § 14944(c) as a
matter of law did not prohibit her false statements. Because we agree with the district
9 court that § 14944(c) in fact does apply to Mooney’s conduct, we affirm the district
court’s denial of Mooney’s plea-withdrawal motion and Mooney’s resulting conviction. 5
Section 14944(c) makes it a crime to lie to an accrediting entity – like the Council
on Accreditation – in order to obtain or maintain accreditation. See 42 U.S.C.
§§ 14944(a)(2)(A), (c). Specifically, § 14944(c) subjects to criminal penalties any person
who “knowingly and willfully” makes a material false statement “intended to influence or
affect . . . a decision by an accrediting entity with respect to the accreditation of an
agency . . . under subchapter II” of the statute at issue here. Id. Subchapter II, in turn,
describes the procedures accrediting entities follow and the standards they apply in
deciding whether to grant new accreditations or maintain old ones. 6 Taken together,
these provisions make clear that once an individual like Mooney decides to invoke the
accreditation process described in subchapter II, it is a crime for that individual to lie to
the accrediting entity.
5 Mooney also argues briefly that she is factually innocent of the § 14944(c) crime to which she pleaded guilty because the statements she made to the Council on Accreditation were not false. But during the district court’s comprehensive Rule 11 plea colloquy, Mooney agreed that her 2010 and 2011 statements to the Council were false, and that she knew they were false when she made them. Mooney cannot now overcome those admissions “by merely contradicting inculpatory statements made during the Rule 11 plea hearing or by arguing that facts that were known to [her] at the time of the plea negate [her] guilt.” United States v. Thompson-Riviere, 561 F.3d 345, 353 n.6 (4th Cir. 2009). 6 See 42 U.S.C. § 14922 (describing the process for accreditation and approval and the role of accrediting entities); id. § 14923 (explaining the minimum standards agencies must meet to obtain accreditation); id. § 14924 (describing the Secretary of State’s oversight of the accreditation process).
10 That is precisely what Mooney did here. Mooney chose to apply for accreditation
on behalf of IAG in 2006. And once she received that accreditation, she made false
statements to the Council in order to maintain it. Specifically, in 2010 and 2011, Mooney
told the Council that IAG was in substantial compliance with relevant regulations and
that she was in charge of the organization – even though she knew that an individual who
lacked the required educational and professional qualifications in fact had assumed
control. That is all that is necessary to bring Mooney’s conduct within the ambit of
§ 14944(c).
Mooney argues, as described above, that § 14944(c)’s criminal prohibition on
false statements does not apply to her 2010 and 2011 statements because she was not at
that time active in Hague Convention countries, and so not required by law to accredit her
organization. But nothing in the text of § 14944(c) limits its application to false
statements made in connection with a mandatory accreditation. The Intercountry
Adoption Act allows any agency to apply for accreditation, regardless of whether
accreditation is legally required. And under the plain and broad terms of § 14944, “[a]ny
person” who makes a false statement to influence the decision of an accrediting entity is
subject to criminal penalties. 42 U.S.C. §§ 14944(a)(2)(A), (c) (emphasis added). As the
district court explained, what matters under § 14944(c) is not whether Mooney was
required to seek accreditation; what matters is that she did seek accreditation, and then
made false statements to maintain that accreditation.
Contrary to Mooney’s suggestion, there is nothing anomalous about this result. As
both Mooney and Harding acknowledged during their criminal proceedings, adoption
11 service providers may choose to seek accreditation even if they are not required to do so,
in part because prospective clients may insist on such accreditation. Indeed, many of the
families who were victims of Mooney’s scheme attested that they would not have hired
IAG to facilitate their international adoptions had the organization not been accredited.
Whether or not they are legally required, fraudulently obtained accreditations can be used
to solicit unwitting victims, and Congress had perfectly sensible cause to prohibit such
fraud by any person seeking accreditation.
For her contrary reading of the statute, Mooney relies primarily on the fact that the
relevant text of § 14944 references “subchapter II” – prohibiting false statements
intended to influence an accrediting entity’s decision “with respect to the accreditation of
an agency . . . under subchapter II,” 42 U.S.C. § 14944(a)(2)(A) – and that subchapter II,
in turn, includes the provision requiring accreditation for agencies facilitating Hague
Convention adoptions, see id. § 14921(a)(1). We can infer from that, Mooney argues,
that Congress intended the bar on false statements in § 14944(c) to apply only to false
statements made by organizations providing Hague Convention adoptions. But there is
no basis for that inference. When Congress wanted to limit the provisions of the
Intercountry Adoption Act to Hague Convention adoptions, it said so directly; for an
example, we need look no further than § 14944 itself, which includes a subsection
prohibiting false statements in connection with the relinquishment of parental rights that
is expressly limited to “case[s] subject to the [Hague] Convention,” id. § 14944(a)(2)(B).
The reference to “accreditation . . . under subchapter II,” by contrast, captures the whole
12 of subchapter II, which lays out in detail the process and standards for accreditation that
Congress chose to protect from the influence of false or fraudulent statements.
Mooney also points to the Intercountry Adoption Universal Accreditation Act of
2012, 42 U.S.C. § 14925, under which all agencies conducting intercountry adoptions –
and no longer only agencies operating in Hague Convention countries – are required to
obtain accreditation. According to Mooney, because Congress decided in 2012 that
accreditation-related provisions applicable only to Hague Convention adoptions
henceforth should apply to all intercountry adoptions, the rough inverse must also be true:
Before 2012, when she made her false statements, the general prohibition on
accreditation fraud must have applied only to Hague Convention adoptions. We fail to
see why this would be so. To the extent certain of the Intercountry Adoption Act’s
provisions were limited to organizations facilitating Hague Convention adoptions – like,
for instance, § 14944(a)(2)(B)’s prohibition on false statements regarding the
relinquishment of parental rights, discussed above – then the Universal Accreditation Act
clarifies that they now apply to all intercountry adoptions. See 42 U.S.C. § 14925(a).
And to the extent the Intercountry Adoption Act’s provisions already extended beyond
Hague Convention adoptions – like the prohibition on false statements intended to
influence accreditation that is at issue in this case – then they continue to do so under the
Universal Accreditation Act.
In sum, the district court correctly held that § 14944(c) prohibits the making of a
false statement to an accrediting entity to influence the accreditation decision, regardless
of whether that accreditation is legally required. Mooney admitted that she committed
13 that crime during the district court’s extensive Rule 11 plea colloquy, when she agreed
that she lied in her 2010 and 2011 statements to the Council on Accreditation. Because
Mooney correctly understood that § 14944(c) applied to her conduct when she entered
her guilty plea, the district court did not err in denying her motion to withdraw that plea.
Accordingly, we affirm both the district court’s denial of the plea-withdrawal motion and
Mooney’s resulting conviction.
III.
Mooney also seeks to appeal her sentence and restitution obligation. Again, the
government moves to dismiss these challenges based on Mooney’s appeal waiver. This
time, we agree with the government, and so we dismiss these portions of Mooney’s
appeal.
We will enforce an appeal waiver, and dismiss an appellant’s challenges, if the
waiver “is valid and the issue appealed is within the scope of the waiver.” United States
v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013) (internal quotation marks omitted).
Mooney’s only attack on the validity of her appeal waiver is her argument that her
conduct fell outside the scope of § 14944(c), and we have rejected that argument. The
only remaining question is whether Mooney’s sentencing and restitution claims fall
within the scope of that valid waiver.
We conclude that they do. In her plea agreement, Mooney agreed to make full
restitution, and waived her right “to contest either the conviction or the sentence in any
direct appeal,” J.A. 52–53. Although we have recognized that a “narrow class” of
14 sentencing and restitution challenges can fall outside the scope of such a broad waiver,
United States v. Blick, 408 F.3d 162, 171 (4th Cir. 2005) (internal quotation marks
omitted), Mooney’s challenges do not fall within that class. Accordingly, we dismiss
Mooney’s appeal of her sentence and restitution obligation.
IV.
For the foregoing reasons, we affirm the district court’s denial of Mooney’s plea-
withdrawal motion and Mooney’s resulting conviction, and dismiss the remainder of her
AFFIRMED IN PART AND DISMISSED IN PART