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Mollica v. United States

United States District Court, N.D. Alabama, Southern Division

March 21, 2019

TERRI MCGUIRE MOLLICA, Petitioner,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE

         This matter comes before the court on Petitioner Terri Mollica's pro se motion to vacate, set aside, or correct her sentence under 28 U.S.C. § 2255. (Doc. 1). Ms. Mollica, a federal prisoner who pled guilty to fraud, money laundering, aggravated identity theft, and filing false tax returns, timely filed her motion. In her petition, she raises an eclectic collection of approximately 44 grounds or claims for relief.

         Several of Ms. Mollica's claims attack the sentencing consequences of separate crimes she committed while on pre-trial release. Her ongoing criminal activity violated her plea agreement with the government, increased her advisory guideline range, and factored significantly into the court's sentencing decision. But Ms. Mollica's claims reveal that she blames everyone except herself for the ramifications of her conduct.

         Her claims for relief include challenges to whether she entered her guilty plea knowingly and voluntarily; whether her plea agreement is enforceable; whether the court had jurisdiction to convict her; whether her retained counsel provided constitutionally adequate assistance; and whether the court correctly determined her advisory guideline range and her sentence. Ms. Mollica further elaborates on some of her allegations, but many allegations remain conclusory in nature, in a pleading that she titled “Reply and Amended Petition to Response.” (Doc. 11).

         For the reasons stated below, the court will DISMISS Ms. Mollica's § 2255 motion. After reviewing the course of Ms. Mollica's criminal proceedings and the facts underlying her convictions, the court addresses in turn each of Ms. Mollica's 44 claims, as well as her arguments from her reply pleading. The court concludes that Ms. Mollica knowingly and voluntarily pled guilty and that she received constitutionally adequate counsel. Ms. Mollica's valid guilty plea and her plea agreement's collateral-attack waiver require the court to dismiss most of Ms. Mollica's substantive claims challenging her conviction and sentence; even if the waiver were somehow ineffective, those claims otherwise lack merit.

         I. BACKGROUND AND PROCEDURAL HISTORY

         A. Indictment and Written Plea Agreement

          A grand jury charged Ms. Mollica with 21 counts of wire fraud, in violation of 18 U.S.C. § 1343 (Counts 1-21); 25 counts of mail fraud, in violation of 18 U.S.C. § 1341 (Counts 22-55 and 75-76); 18 counts of money laundering, in violation of 18 U.S.C. §§ 1956 and 1957 (Counts 56-74); 1 count of aggravated identity theft, in violation of 18 U.S.C. § 1028A (Count 77); and 5 counts of filing a false tax return, in violation of 26 U.S.C. § 7206(1) (Counts 78-82). (2:14-cr-00329-KOB, “Crim. Doc., ” Doc. 1).

         Ms. Mollica retained attorneys James Parkman and William White to represent her in her criminal case.

         In a written plea agreement, Ms. Mollica agreed to plead guilty to 6 counts of wire fraud; 9 counts of mail fraud; 5 counts of money laundering; 1 count of aggravated identity theft; and 4 counts of filing a false tax return. (Crim. Doc. 25 at 1). In exchange for her guilty plea, the government agreed to dismiss the remaining 57 charges.

         The government also agreed to recommend that the court award Ms. Mollica the full three-level acceptance-of-responsibility reduction of her advisory guideline range and to recommend that the court impose a total sentence at the low end of her advisory guideline range: not more than 10 years' imprisonment followed by the 2-year mandatory consecutive sentence for aggravated identity theft. (Crim. Doc. 25 at 19). So the maximum sentence the government would have recommended under the plea agreement was 12 years' imprisonment. The government also agreed to recommend that the court impose a supervised-release sentence of 5 years. (Id.).

         But the government's sentencing agreement included conditions on Ms. Mollica's conduct prior to sentencing. The plea agreement released the government from its promise to recommend the lower sentence if Ms. Mollica “violate[d] any condition of pretrial release or violate[d] any federal, state, or local law, or should [she] say or do something that is inconsistent with acceptance of responsibility.” (Crim. Doc. 25 at 23).

         The plea agreement also included waivers of Ms. Mollica's rights to appeal her sentence and to bring post-conviction collateral attacks under § 2255. Those waivers encompassed Ms. Mollica's rights to challenge her convictions and sentences as well as her rights to challenge any fines, restitution, or forfeiture orders. (Crim. Doc. 25 at 20). The plea agreement excluded from the waivers only three limited types of claims: (1) those involving sentences imposed above the statutory maximum; (2) those involving sentences imposed above the guideline range determined by the court at the time of sentencing; and (3) those involving the effectiveness of counsel. (Crim. Doc. 25 at 21). Ms. Mollica signed below the waiver section to “signify that [she] fully [understood] the foregoing paragraphs, and that [she was] knowingly and voluntarily entering into this waiver.” (Id. at 22).

         The written plea agreement provided several notices to Ms. Mollica. It noted the statutory minimum and maximum sentences for the offenses to which she agreed to plead guilty, including the relevant maximum supervised-release terms. (Crim. Doc. 25 at 2-6). Ms. Mollica signed the plea agreement acknowledging the minimum and maximum sentences. (Id. at 6).

         On April 10, 2015, Ms. Mollica also signed below the “Defendant's Understanding” section at the end of the plea agreement. (Crim. Doc. 25 at 31). By doing so, Ms. Mollica signified that she read and understood all 32 pages of the plea agreement, discussed the case and her rights with counsel, was satisfied with her counsel's representation, understood the rights that she waived by pleading guilty, personally and voluntarily initialed each page of the agreement, and approved all provisions of the plea agreement. (Id. at 30-31).

         B. Facts of Convictions

         By signing the “Factual Basis for Plea” section of her written plea agreement, Ms. Mollica stipulated to the following facts relevant to her crimes and her plea of guilty. (Doc. 25 at 16).

         Prior to the charges brought in her criminal case, Ms. Mollica acted as a Chief Financial Officer overseeing the finances of two charitable organizations: Birmingham Health Care (“BHC”), and Central Alabama Comprehensive Health (“CACH”). Both organizations received money from the United States Department of Health and Human Services' Health Resources & Services Administration (“HRSA”) in the form of grants. (Crim. Doc. 25 at 8).

         In 2008, Ms. Mollica left that position alongside the charities' Chief Executive Officer, “J.D., ” to work at a new set of corporations called Synergy. But Ms. Mollica and J.D. retained control over BHC and CACH via the Synergy corporations. The two charities entered into agreements with Synergy to, in effect, funnel money and other assets from the charities to Synergy. Ms. Mollica's crimes arose from her concealment of this information from HRSA to ensure that it would continue to provide grant funds to the charities. (Crim. Doc. 25 at 8-9).

         Furthermore, BHC used “only a fraction” of the grant money for the activities for which it received the funds. Instead, Ms. Mollica-along with others-stole much of the grant money as well as BHC's other assets.

         For example, in 2008, Synergy bought a property from BHC; Synergy subsequently leased that same building back to BHC at a rate “several thousand dollars more per month” than BHC's prior mortgage payments on the property. Ms. Mollica also used BHC's assets-including federal grant funds-to finance Synergy's purchase of another property in Birmingham. (Crim. Doc. 25 at 10).

         Ms. Mollica personally participated “in over 200 transactions to enrich herself, ” and, from January 2008 to March 2012, Ms. Mollica and her confederates transferred over $11, 000, 000 in money, assets, and property from BHC and CACH to Synergy. (Crim. Doc. 25 at 11). She personally received $1, 747, 064.04 and laundered $214, 333.19. (Id. at 13).

         C. Plea Colloquy

         On April 27, 2015, this court held a hearing regarding Ms. Mollica's proposed guilty plea. (Crim. Doc. 49). The court placed Ms. Mollica under oath, explaining to her that any answers to the court's questions “must be full, complete, and true because a false answer or false statement made under oath could be the basis for prosecuting [her] for perjury.” (Id. at 2). Ms. Mollica confirmed that she understood the court. (Id.)

         The court asked Ms. Mollica whether she had taken any kind of drugs or medications in the preceding 72 hours. Ms. Mollica answered that she was taking some medications for depression, anxiety, and blood pressure, but confirmed that the medications did not affect her ability to understand and respond to the court's questions. (Crim. Doc. 49 at 3). Ms. Mollica also confirmed that she did not have any mental impairment that affected her ability to understand and respond to the court's questions. (Id.). The court also told Ms. Mollica about the importance of her understanding everything said at the plea colloquy, and the court requested that Ms. Mollica interrupt the proceedings and tell the court if she did not understand something. (Id.). She agreed to do so and that if she did not, the court could properly assume that she in fact fully understood what was said and took place. (Id. at 3-4).

         The court explained some of the plea agreement's terms and it observed that, by entering into the plea agreement, Ms. Mollica would waive her rights to appeal or collaterally challenge her sentence. (Crim. Doc. 49 at 11-12). Ms. Mollica confirmed that she understood the terms, that she discussed them with counsel, and that she knew the waiver would be enforceable against her. (Id. at 11-13). Ms. Mollica confirmed that she had no questions about the waiver or its effect on her and that she had signed the plea agreement. (Id. at 12-13). She also confirmed that no one had promised or threatened her to get her to plead guilty. (Id. at 14).

         The court outlined each group of charges brought against Ms. Mollica, and Ms. Mollica confirmed that she understood the charges as stated. (Crim. Doc. 49 at 23-32). Ms. Mollica also confirmed that she had sufficient time to discuss the charges with her retained attorneys and that she was satisfied with counsel. (Id. at 32). Ms. Mollica's attorney likewise stated that he was satisfied that she understood the charges against her. (Id.).

         Ms. Mollica agreed that the plea agreement accurately recounted the factual basis for the charges. (Crim. Doc. 49 at 34-35). She also agreed that the court could use the facts stated in the plea agreement to craft an appropriate sentence. (Id.).

         Ms. Mollica verbally pled guilty, admitting that she had committed wire fraud, mail fraud, money laundering, aggravated identity theft, and the filing of false tax returns. Based on Ms. Mollica's under-oath answers to its questions, the court found that Ms. Mollica made her guilty plea knowingly, voluntarily, and freely, and that the requisite factual basis for the plea existed. (Crim. Doc. 49 at 36-38).

         D. Presentence Investigation Report

         A probation officer prepared a presentence investigation report (“PSR”) for Ms. Mollica. Using the 2014 Guidelines Manual, Ms. Mollica's final adjusted guideline offense level was 40 and her criminal-history category was I. The overall scheme caused a loss of $11, 000, 000, requiring a 20-level offense level enhancement under U.S.S.G. § 2B1.1(b)(1)(K). The PSR also included guideline range enhancements for committing an offense involving a government health care program, U.S.S.G. § 2B1.1(b)(7)(i); misrepresenting that she was acting on behalf of a charitable organization, U.S.S.G. § 2B1.1(b)(9); using sophisticated means, U.S.S.G. § 2B1.1(b)(10)(C); abusing the public trust, U.S.S.G. § 3B1.3; supervising or managing criminal activity involving five or more participants, U.S.S.G. § 3B1.1(b); and obstructing justice, U.S.S.G. § 3C1.1. (PSR at ¶¶ 77- 85).

         The PSR did not include a reduction for acceptance of responsibility, but instead included a sentencing enhancement based on obstruction of justice because of the bizarre criminal scheme Ms. Mollica targeted at persons involved in investigating and prosecuting her case.

         As part of her targeting scheme, on October 17, 2014, two weeks before the grand jury returned her indictment, Ms. Mollica mailed “thank you” cards and $250 gift cards to the home of the lead FBI agent investigating her case and to the home of the AUSA prosecuting her case. Then, in April 2015, after she signed her plea agreement, she reported to the U.S. Department of Justice and the Shelby County Sheriff that the FBI agent and the AUSA stole cash and gift cards from her. (PSR at ¶¶ 70-71).

         And, around the time of her plea hearing in April 2015, and after she signed her plea agreement, Ms. Mollica mailed a set of digital scales to the home of her co-conspirator who was a cooperating witness for the government. She then mailed a package containing Valium, Ambien, and other unidentified pills to the co-conspirator's home. The drugs arrived at the home on April 27, 2015, the day of Ms. Mollica's plea hearing, and the scales had arrived a few days earlier. (PSR at ¶ 69).

         As another part of her scheme, around the time of Ms. Mollica's plea hearing in April 2015, and after she signed her plea agreement, she mailed a package containing amphetamine and methylphenidate tablets and two $250 gift cards to the AUSA's spouse's office where he worked as a law professor. The package was delivered on April 28, 2015, but, on April 27, 2015, the day of Ms. Mollica's plea hearing, law enforcement received an anonymous online tip that the AUSA's spouse was distributing drugs to his students. After a brief investigation, school officials immediately determined the accusations to be false. (PSR at ¶ 68).

         Ms. Mollica's outlandish scheme ultimately caught up with her. On July 23, 2015, Ms. Mollica pled guilty to the “knowing or intentional use of a communication facility to distribute controlled substances” before Judge Hopkins in No. 15-cr-224 in the Northern District of Alabama. On October 15, 2015, Judge Hopkins sentenced Ms. Mollica to 28 months' imprisonment, 14 months to run concurrently and 14 months to run consecutively to this court's ultimate sentence. (PSR at ¶ 109).

         E. Sentencing Hearing

         The court conducted Ms. Mollica's sentencing hearing on August 9, 2016. (Crim. Doc. 89). At the beginning of the sentencing hearing, Ms. Mollica's counsel asserted that the court should not permit the government to break its promise to recommend a sentence at the low end of the advisory guideline range based on Ms. Mollica's criminal conduct while on pre-trial release. Ms. Mollica's counsel appeared to assert that, if it failed to make those recommendations, the government would void the plea agreement. (Id. at 7-8).

         In response to counsel's argument, this court observed, hypothetically, that voiding the plea agreement would likewise void Ms. Mollica's guilty plea, and the case would then have to be set for trial on all of the charges, including those that the government had agreed to dismiss as part of the plea bargain. After discussing the matter with Ms. Mollica, counsel declined to pursue any withdrawal of Ms. Mollica's guilty plea. (Crim. Doc. 89 at 8-12).

         The court then addressed Ms. Mollica's objections to the presentence report. She filed several objections (see Crim. Doc. 34), but then withdrew all of her objections except for her objection to the guideline enhancement for obstruction of justice and the denial of a reduction for acceptance of responsibility. (Crim. Doc. 89 at 12).

         As to her objection to the obstruction of justice enhancement, Ms. Mollica urged the court to ignore her separate crime-the knowing or intentional use of a communication facility to distribute controlled substances-committed while on pre-trial release in this case. (Crim. Doc. 34 at 4-6). She argued that her separate crime “does not have any bearing on an appropriate sentence in this case and is only intended to influence and improperly prejudice [her] at sentencing.” (Id.). And she asserted that because she pled guilty in this case before she pled guilty to her separate crime, she never “formed the specific intent to obstruct any proceedings” in this case “as all that was left to do was sentencing.” (Id. at 7).

         At sentencing, Ms. Mollica's counsel elaborated that “the obstruction really had nothing to do with this particular case” because she had already pled guilty “at the time that the other acts took place that warranted the [other] conviction. There may have been a few acts that may have begun before that but nothing like the acts that occurred after that, after the time that she entered the plea.” (Crim. Doc. 89 at 16-17).

         The court was not convinced. At sentencing, the court explained that Ms. Mollica's acts of obstruction of justice targeted the AUSA and the FBI Agent on her case and their families. (Crim. Doc. 89 at 17). The court told Ms. Mollica's counsel that, “to argue in this case that she should not be held accountable for her actions of intimidation, at the very least, of the key people who are prosecuting her here . . . runs completely afoul of the guideline requirements that it be considered in sentencing in this case.” (Id. at 18). The court overruled Ms. Mollica's objection to the obstruction of justice enhancement, but took into account the fact that Judge Hopkins had already sentenced Ms. Mollica for at least a part of the acts of obstruction of justice. (Id.).

         As to her objection to the denial of a reduction for acceptance of responsibility, Ms. Mollica contended that she accepted responsibility because she voluntarily “pled guilty to charges in this case and freely admitted her wrongdoing and actions, ” resigned from BHC and Synergy, and paid restitution. (Crim. Doc. 34 at 8). She argued also that the PSR improperly used the obstruction of justice enhancement as the basis for denying a reduction for acceptance of responsibility. And she claimed that she saved this court and the government from a costly and lengthy trial by pleading guilty. At sentencing, Ms. Mollica's counsel added that the written plea agreement acknowledged that Ms. Mollica provided substantial assistance to the government. (Crim. Doc. 89 at 22-23).

         Again, the court was not convinced. At sentencing, the court stated that Ms. Mollica's case was not the “extremely rare” and “extraordinary case where someone is involved in obstruction of justice” and “would still receive a reduction for acceptance of responsibility.” (Crim. Doc. 89 at 24). The court explained that Ms. Mollica's conduct did not save the court and the government time and effort; instead, “it resulted in a separate offense being filed and the court resources being used to handle that plea and sentencing and all the other things that went along with it, as well as the government's involvement” in the separate case involving her efforts to intimidate and/or frame her adversaries. (Id.).

         The court noted that, although Ms. Mollica resigned her employment, she did not report the criminal enterprise to law enforcement and “allowed that raping of those entities and the stealing of government money to continue” for at least two years. (Crim. Doc. 89 at 25). The court found that “many things in Ms. Mollica's conduct before and after she stood in front of [the court] and entered a plea of guilty . . . negate[d] her entitlement to acceptance of responsibility” and overruled her objection. (Id. at 26).

         After overruling Ms. Mollica's objections, the court adopted the PSR's recommendations and found that Ms. Mollica's guideline offense level was 40, her criminal-history category was I, and her advisory guideline range was 292 to 365 months' imprisonment. (Crim. Doc. 89 at 27). In addition, Ms. Mollica's aggravated identity theft conviction to which she pled required a mandatory consecutive sentence of 24 months. (Id.).

         After raising challenges to various aspects of the court's calculation of her advisory guideline range, Ms. Mollica argued for a sentence below the guideline range calculated and adopted by the court. (Crim. Doc. 89 at 28-44). In that argument, counsel pointed out that Ms. Mollica had a traumatic upbringing, suffered from depression, and required psychiatric help. (Id. at 36). Counsel also addressed Ms. Mollica's questionable mental stability as a factor warranting a downward variance. (Id. at 37). And counsel urged the court to consider how Ms. Mollica only personally received $1.7 million of the approximately $11 million loss caused by the fraud. (Id. at 32-35).

         Before imposing sentence, the court offered to allow Ms. Mollica to speak on her own behalf. Ms. Mollica declined the opportunity. (Crim. Doc. 89 at 44).

         Although it maintained that Ms. Mollica did not deserve an acceptance of responsibility reduction, the government asserted that Ms. Mollica's conduct warranted a sentence at the low end of the guideline range as calculated in the PSR-292 months for the fraud charges followed by 24 months for the aggravated identity theft offense-a 316-month total sentence. (Crim. Doc. 89 at 79).

         In fashioning its sentence, the court observed that the government would have recommended 144 months' total imprisonment had Ms. Mollica complied with the conditions in her plea agreement, instead of the 316 months it recommended at sentencing. (Crim. Doc. 89 at 83). After ruminating on several possible ways to arrive at an appropriate sentence, the court found a 17-year or 204-month total sentence to be reasonable given all of Ms. Mollica's conduct- pre- and post-indictment. (Id. at 86). The court divided that total sentence into 180-month sentences, all concurrent, as to the fraud, money laundering, and false tax return convictions, with 24 months' imprisonment running consecutive to those sentences for the aggravated identity theft conviction. (Id. at 86-87). And the court acknowledged that 14 months of Judge Hopkins's 28-month sentence would run concurrently with the court's sentence, and the remaining 14 months would run consecutively. (Id. at 15-16).

         The court observed that the sentence was five years longer than the sentence the government would have recommended had Ms. Mollica complied with the plea agreement, but still seven years below the low end of the ultimate guideline range. (Crim. Doc. 89 at 86). Finally, the court noted that it would have imposed the same sentence regardless of how it had resolved the guidelines issues raised by Ms. Mollica. (Id. at 89). On the government's motion, the court dismissed the 57 charges to which Ms. Mollica had not pled guilty. (Doc. 64).

         Ms. Mollica did not appeal her convictions or sentences. And she has not filed any previous § 2255 motions.

         II. DISCUSSION

         Through this § 2255 motion, Ms. Mollica collaterally attacks her convictions and sentences. A federal prisoner may move the court that imposed sentence to vacate, set aside, or correct her sentence if the court imposed her sentence in violation of the Constitution or federal law, without proper jurisdiction, or in excess of the maximum authorized by law, or if the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255.

         As previously noted, Ms. Mollica raises approximately 44 claims in her § 2255 motion. In her reply pleading, Ms. Mollica reframes and elaborates on some of those claims. (Doc. 11). Although a petitioner generally may not add new claims for relief in a reply pleading, see Farris v. United States, 333 F.3d 1211, 1215 (11th Cir. 2003), the court will consider the issues that Ms. Mollica raises in her reply to provide her with the maximum opportunity to have her claims addressed on their merits.

         The court will proceed methodically through Ms. Mollica's 44 claims and independently address the merits of each claim.

         First, the court will deny Ms. Mollica's claim that the court did not specify whether it dismissed the charges to which she did not plead guilty with or without prejudice because the court cannot provide relief on that claim. Second, the court will address Ms. Mollica's constitutional challenge to the court's jurisdiction to sentence her. Third, the court will address Ms. Mollica's claims challenging several circumstances that, according to Ms. Mollica, prevented her from knowingly and voluntarily entering her guilty plea and signing the written plea agreement. Fourth, the court will address Ms. Mollica's single claim that the written plea agreement is unenforceable because the government allegedly breached the agreement. Fifth, the court will address Ms. Mollica's several claims of ineffective assistance of counsel related to her guilty plea, sentencing, and failure to appeal. And, finally, the court will address Ms. Mollica's numerous substantive challenges to her convictions and sentences. In doing so, the court finds that most claims are barred by the collateral-attack waiver in her written plea agreement and otherwise lack merit for the reasons stated below.

         A. Failure to Dismiss Charges with Prejudice (Claim 9)

         In Claim 9, Ms. Mollica asserts that the court, when dismissing the charges to which she did not plead guilty as part of the plea bargain, failed to specify whether it was dismissing the charges with or without prejudice. (Doc. 1 at 13, Claim 9). Ms. Mollica does not explain how this claim requests the court to “vacate, set aside or correct” her sentence. See 28 U.S.C. § 2255.

         And, though the court did not specifically state that it dismissed the charges with prejudice on the record or on the docket entry for the dismissals, jeopardy attached to the dismissed charges once the court accepted Ms. Mollica's guilty plea on the other charges. See United States v. Baggett, 901 F.2d 1546, 1548 (11th Cir. 1990) (observing that “jeopardy normally attaches when the court unconditionally accepts a guilty plea”). So double jeopardy would prevent the government from bringing those charges again regardless of whether the court used the “magic words.” Ms. Mollica's claim thus is moot, and lacks merit in any event.

         The court will DENY Claim 9.

         B. Jurisdictional Attack (Claim 44)

         Ms. Mollica raises a lone jurisdictional attack on her conviction. She argues that the government did not prove federal jurisdiction over her case because “[t]he crimes alleged in [her] indictment and plea agreement are not encompassed in” Article I, Section 8, Clause 17 of the Constitution. (Doc. 1 at 18, Claim 44).

         Article I, Section 8, Clause 17 provides Congress limited authority:

The Congress shall have Power To . . . exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful buildings.

         Unsurprisingly, Section 8 Clause 17 is not the constitutional nexus for Ms. Mollica's mail fraud, wire fraud, tax fraud, aggravated identity theft, or filing false tax returns convictions. Rather, the Commerce Clause, U.S. Const. Art. 1, Sec. 8, Cl. 3, grants Congress the jurisdiction to legislate the offenses of mail fraud, wire fraud, money laundering, and aggravated identity theft. See United States v. Hasner, 340 F.3d 1261, 1270 (11th Cir. 2003) (finding the mail fraud statute, 18 U.S.C. § 1341, to be a valid exercise of Congress's Commerce Clause power); United States v. Oliveros, 275 F.3d 1299, 1303 (11th Cir. 2001) (“[T]he money-laundering statute reaches the full extent of Congress' Commerce Clause power . . . .”); Pemberton v. United States, 2014 WL 5112045, at *3 (M.D. Ala. Sept. 24, 2014) (“The commission of wire fraud and identity theft substantially affect interstate commerce, and regulation of such offenses protect the instrumentalities of interstate commerce. Therefore, 18 U.S.C. §§ 1343 and 1028A(a)(1) are legitimate exercises of Congress's Commerce Clause power . . . .”).

         And the Taxing and Spending Clause, U.S. Const. Art. 1, Sec. 8, Cl. 1, and the Sixteenth Amendment grant Congress the jurisdiction to legislate the offense of filing a false tax return. See United States v. Jensen, 690 F.Supp.2d 901, 914 (D. Alaska 2010) (“Article I, Sec. 8 of the United States Constitution . . . as well as the Sixteenth Amendment to the United States Constitution empowers Congress to create and provide for the administration of an income tax. . . . The courts have routinely rejected as frivolous a claim that federal jurisdiction does not impose prosecution for . . . filing a false income tax return . . . .”).

         Congress has well-settled constitutional authority to legislate the criminal offenses of which Ms. Mollica was convicted. Congressional authority to legislate also gives the U.S. district courts jurisdiction over prosecutions of the violation of those laws. See 18 U.S.C. § 3231. So, the court had jurisdiction over her prosecution and will DENY Claim 44.

         C. Attacks on the Knowingness and Voluntariness of Ms. Mollica's Guilty Plea (Claims 2, 7, 11, 35-36, 39-41)

         The court next turns to Ms. Mollica's claims that her guilty plea is invalid because she did not enter her guilty plea knowingly and voluntarily. The court utilizes its ability to construe pro se pleadings liberally and reads many of her claims premised in part on Federal Rule of Criminal Procedure 11 as constitutionally-based attacks on the knowing and voluntary nature of her plea agreement. The court's construction of Ms. Mollica's claims in this way has provided her with the maximum opportunity to have her claims addressed on their merits.

         By entering a valid guilty plea, a criminal defendant waives most claims related to any alleged deprivation of constitutional rights occurring before the entry of the guilty plea. United States v. Patti, 337 F.3d 1317, 1320 (11th Cir. 2003). But as Ms. Mollica does here, a criminal defendant may challenge through a § 2255 motion the validity of her guilty plea and the enforceability of the plea agreement accompanying the guilty plea. See Patti, 337 F.3d at 1320.

         A guilty plea is invalid if the movant shows that she did not enter the plea knowingly and voluntarily. See, e.g., Bousley v. United States, 523 U.S. 614, 621 (1998); Hill v. Lockhart, 474 U.S. 52, 58 (1985). A criminal defendant entered a guilty plea knowingly and voluntarily if she received real notice of the charges against her, understood the nature of those charges, understood the consequences of the plea, and understood the constitutional rights she waived by entering the plea. United States v. Frye, 402 F.3d 1123, 1127 (11th Cir. 2005).

         And whether a defendant understood the nature of the charges and entered a guilty plea knowingly depends on her individual sophistication and intelligence. United States v. Mosley, 173 F.3d 1318, 1323 (11th Cir. 1999). So, the court will consider Ms. Mollica's sophistication, intelligence, and education-for example, she has a Master's degree in accounting and was a licensed CPA before surrendering her license as part of her plea agreement-in assessing her claims that she did not understand fairly basic and clear aspects of her guilty plea.

         With these rules in mind, the court will address Claims 2, 7, 11, 35-36, and 39-41.

         1. The Court's Failure to Explain Essential Elements (Claim 2)

         Ms. Mollica contends that she did not knowingly enter her guilty plea because the court “failed to elucidate the concept of ‘aiding and abetting' in violation of [Federal Rule of Criminal Procedure] 11, in particular the required legal principles to obtain a conviction based on the theory of aiding and abetting.” (Doc. 1 at 13, Claim 2).

         True, at the plea colloquy, the court did not explain in detail the legal nuances of “aiding and abetting” or specifically note to Ms. Mollica that the indictment charged her with aiding and abetting others. But the court informed her that the indictment stated that others aided and abetted her. (Crim. Doc. 49 at 24, 26-27). And she noted at the plea colloquy that she had discussed the indictment-which identified whom she aided and abetted and how-with counsel in “[a] lot of detail, ” she confirmed several times that she fully understood the indictment and the terms of the plea agreement, and her counsel stated in an affidavit that he “thoroughly explained” the concept of “aiding and abetting” to her. (Crim. Doc. 49 at 11-15, 20, 23, 25, 28-32; Doc. 9-17 at 1); see Winthrop-Redin v. United States, 767 F.3d 1210, 1216 (11th Cir. 2014) (“‘[T]he representations of the defendant, his lawyer, and the prosecutor at [a plea] hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings.'”) (quoting Blackledge v. Allison, 431 U.S. 63, 71 (1977)).

         Further, Ms. Mollica failed to raise any concern at the plea colloquy about the meaning of “aiding and abetting, ” which does not surprise the court given her intelligence and clear ability to understand the meaning of the term on her own and with the assistance of her retained counsel. And, in any event, the term is non-essential to Ms. Mollica's understanding of the various fraud crimes to which she pled guilty. See United States v. DePace, 120 F.3d 233, 237 (11th Cir. 1997) (“The degree of complexity added by the aiding and abetting theory is minimal in [the defendant's] case. . . . [W]e hold that, even absent an explicit discussion of aiding and abetting, the district court adequately informed [the defendant] of the nature of the charges.”).

         The court finds, based on her representations and the court's observations at the plea colloquy, that Ms. Mollica fully understood the charges against her and what the government had to prove. The court will DENY Claim 2.

         2. Explanation of the Plea Agreement's Conditions (Claim 7)

         Ms. Mollica asserts that the court and the written plea agreement failed to specify “whether she entered into an unconditional or conditional plea agreement.” (Doc. 1 at 13, Claim 7). But Ms. Mollica does not explain what she means by a “conditional” or “unconditional” plea agreement.

         Construing her claim liberally, the court assumes first that Ms. Mollica asserts that she did not understand that the government conditioned its promise to recommend a sentence at the low end of the guideline range on her remaining in the law's good graces before sentencing. The plea agreement, however, contains no ambiguity about this condition:

The defendant understands that should the defendant violate any condition of pretrial release or violate any federal, state, or local law, or should the defendant say or do something that is inconsistent with acceptance of responsibility, the United States will no longer be bound by its obligation to make the recommendations set forth in [the § 5K1.1 Motion and Recommended Sentence paragraphs] of the Agreement, but instead, may make any recommendation deemed appropriate by the United States Attorney in her sole discretion.

         (Crim. Doc. 25 at ¶ X) (emphasis added). And, again, when the court asked Ms. Mollica at the plea colloquy if she understood the terms of the plea agreement, she responded that she did. (Crim. Doc. 49 at 10-11, 13, 23).

         Construed most liberally another way, Ms. Mollica's Claim 7 might be an assertion that the plea agreement lacked clarity about whether it reserved certain non-jurisdictional defects under Federal Rule of Criminal Procedure 11(a)(2) for appellate and/or collateral review. But the plea agreement plainly contains no reservation of such a right in its text.

         The court's alleged failure to specify whether the plea was “conditional” or “unconditional” bears no relation to the knowingness and voluntariness of Ms. Mollica's plea, and otherwise lacks merit. The court will DENY Claim 7 on these grounds.

         3. Failure to Disclose Exculpatory Evidence (Claim 11)

         Ms. Mollica next claims that she would not have pled guilty if the government had disclosed allegedly-exculpatory statements from a witness, Sheila Parker, that, in Ms. Mollica's view, invalidated her guilty plea. (Doc. 1 at 14, Claim 11). In addition, in her reply pleading, Ms. Mollica contends that Sheila Parker stated that Ms. Mollica “knew nothing of Dunning's or [Sheila Parker's] scheme and had nothing to do with it, ” and that the government's failure to disclose the statement violated the government's obligation under Brady v. Maryland, 373 U.S. 83 (1963), to disclose material exculpatory evidence. (Doc. 11 at 16). Both arguments fail.

         As the court told Ms. Mollica's counsel at sentencing when he seemed to raise the same argument, Sheila Parker's statement that Ms. Mollica did not know about Sheila Parker's scheme does not detract from the offenses to which Ms. Mollica pled guilty. (See Crim. Doc. 89 at 6). At sentencing, the court reiterated the offenses to which Ms. Mollica pled guilty, and none required proof of knowledge of Sheila Parker's scheme:

[U]nder oath in this courtroom and when she signed her plea agreement she admitted that from in or about January 2008 through in or about March 2012, Mollica, aided and abetted by others, did knowingly and with the intent to defraud, devise and intend to devise a scheme and artifice to defraud . . . and to obtain money and property by means of materially false and fraudulent pretenses, representations and promises.

(Crim. Doc. 89 at 6). So, even assuming that Sheila Parker said what Ms. Mollica claims she said, and assuming that the government withheld the statement, the statement is not relevant to whether Ms. Mollica knowingly and voluntarily pled guilty to the crimes committed by Ms. Mollica.

         And Ms. Mollica's claim of a Brady violation fails because, even assuming that Sheila Parker's statement is exculpatory evidence, prosecutors do not have to disclose “material impeachment evidence prior to entering a plea agreement with a criminal defendant.” United States v. Ruiz, 536 U.S. 622, 633 (2002).

         The court finds that Ms. Mollica knowingly and voluntarily entered her guilty plea despite her lack of knowledge of the allegedly withheld evidence. And the government did not commit a Brady violation. So the court will DENY Claim 11.

         4. Effect of Coercion on the Plea Agreement (Claim 35)

         Ms. Mollica claims that prosecutors threatened her with additional charges if she did not agree to the plea deal, added “several more counts of unrelated charges” after she rejected the “first plea deal, ” and attempted to meet with Ms. Mollica without her attorneys' knowledge on two separate occasions. (Doc. 1 at 17, Claim 35). But, at the plea colloquy, the court specifically and directly asked Ms. Mollica, “[h]as anyone promised you anything or threatened you in any way to get you to enter a plea of guilty?”; she replied, “[n]o, your Honor.” (Crim. Doc. 49 at 14).

         Ms. Mollica fails to explain why she did not raise any issues of coercion at the plea colloquy or during sentencing. And she does not elaborate on the “first plea deal” or identify which charges she claims are “unrelated charges” supposedly added in retribution for not accepting a different deal. In addition, Ms. Mollica does not describe when the unnamed prosecutors attempted to meet her without her attorneys' knowledge.

         The court finds Ms. Mollica's claim of coercion merely speculative; it does not entitle her to relief. See Prada v. United States, 692 Fed.Appx. 572, 574 (11th Cir. 2017) (“The files and records of the case conclusively show that Prada was not entitled to relief because most of the issues he raised were conclusory and speculative in nature.”) (citing 28 U.S.C. § 2255(b)). The court will DENY Claim 35 on these grounds.

         5. The Court's “Threats” (Claim 36)

         Ms. Mollica contends that the court “threatened [her] with additional charges if she chose to withdraw her plea.” (Crim. Doc. 1 at 17, Claim 36). But the record shows no threats from the court. At sentencing, Ms. Mollica's counsel suggested that the government's choice to no longer “honor” its promise to recommend a reduction in Ms. Mollica's guideline range for acceptance of responsibility voided the plea agreement. (Crim. Doc. 89 at 7-8). The court explained that if Ms. Mollica chose to withdraw from the plea agreement, she would then face all of the 82 charges for which the grand jury had indicted her. (Id. at 9-10). The court did not “threaten” Ms. Mollica with new charges, but merely noted the reality that voiding the plea agreement would cut both ways: if Ms. Mollica were to pursue her theory that the plea agreement was void, i.e., null and of no effect, or otherwise withdraw from the plea agreement, the government would no longer be obligated to dismiss the other 57 charges against her as it agreed to do in the plea agreement. (Id.).

         The court merely explained the reality about Ms. Mollica's choices and never threatened her, so the court will DENY Claim 36.

         6. The Court's Explanation of Sentencing Consequences (Claim 39)

         Ms. Mollica directs Claim 39 at both the court and her counsel. The court here addresses only Ms. Mollica's claim against the court and will address her allegation against her counsel when addressing her several ineffective assistance of counsel claims.

         Ms. Mollica claims that the court failed to advise her that she faced supervised release as a potential consequence of her guilty plea. (Doc. 1 at 17, Claim 39). But the plea agreement expressly notes that Ms. Mollica faced supervised release as part of her sentence. (Crim. Doc. 25 at 2-6, 19). Likewise, at the plea colloquy, the court stated that the maximum penalty included up to five years of supervised release for some counts and up to three years of supervised release for other counts as a consequence of her guilty plea. (Crim. Doc. 49 at 16- 20). And, at the plea colloquy, Ms. Mollica confirmed that she understood the penalties she faced by pleading guilty. (Id. at 20).

         The court and the written plea agreement unambiguously informed Ms. Mollica that she faced supervised release by pleading guilty, so the court will DENY Claim 39 against the court.

         7. Mental Health (Directed at the Court) (Claim 40)

         Continuing with her claims against the court, Ms. Mollica argues that, at the plea colloquy, the court failed to ask her questions about her mental health or the effect of her drug use on the plea negotiations. (Doc. 1 at 17, Claim 40). In her reply brief, Ms. Mollica elaborates that she did not understand the plea agreement and that her medications and mental condition prevented her from doing so. (Doc. 11 at 8-10). Also in her reply brief, Ms. Mollica directs her mental health claim against her counsel, which the court will address with Ms. Mollica's several ineffective assistance of counsel claims.

         The plea colloquy undercuts Ms. Mollica's mental health claim. After placing Ms. Mollica under oath, the court asked Ms. Mollica if she had “taken or received any drugs, intoxicants, narcotics, or medications of any kind including prescription drugs or over-the-counter medicines” within the prior 72 hours, and Ms. Mollica responded that she took Celexa for depression, Trazodone for anxiety, and Diovan for blood pressure. (Crim. Doc. 49 at 2-3). The court then asked Ms. Mollica specifically if any of those medications would “in any way affect [her] ability to understand and respond to [the court's] questions today, ” and Ms. Mollica responded that her medications would not do so. (Id. at 3).

         The court then asked Ms. Mollica if she had “any mental impairment that may affect [her] ability to understand and respond to [the court's] questions, ” and Ms. Mollica responded that she did not. (Crim. Doc. 49 at 3). Although the court did not ask Ms. Mollica specifically about plea negotiations, Ms. Mollica's drug use or mental health during the plea negotiations did not affect her ability to understand or reject the plea agreement at the plea colloquy, as the court confirmed both Ms. Mollica's satisfaction with the agreement and her desire to plead guilty. And, again, the court encouraged her to let the court know if she did not understand anything, but she never did. (Id.).

         The court finds that Ms. Mollica's mental health or medication did not affect her ability to knowingly and voluntarily enter her guilty plea, so the court will DENY Claim 40 against the court.

         8. The Court's Explanation of the Consequences of Subsequent Conduct (Claim 41)

         Ms. Mollica claims that the court did not “specifically tell [her] that if she got in trouble again while on pre-trial release, that the plea agreement could be withdrawn.” (Doc. 1 at 17, Claim 41). But, again, the plea agreement could not be more specific or clear on this point.

         The plea agreement states: “The defendant understands that should the defendant violate any condition of pretrial release or violate any federal, state, or local law, . . . the United States will no longer be bound by its obligation to make the recommendation set forth ...


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