United States District Court, N.D. Alabama, Southern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
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.
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.
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).
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.
BACKGROUND AND PROCEDURAL HISTORY
Indictment and Written Plea Agreement
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).
Mollica retained attorneys James Parkman and William White to
represent her in her criminal case.
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.
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.
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).
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).
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).
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).
Facts of Convictions
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).
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
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).
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.
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).
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).
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.)
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
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).
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.).
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.
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
Presentence Investigation Report
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).
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.
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).
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).
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
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).
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).
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).
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
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).
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).
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.).
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).
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
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).
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.).
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
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).
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).
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).
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).
Mollica did not appeal her convictions or sentences. And she
has not filed any previous § 2255 motions.
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.
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.
court will proceed methodically through Ms. Mollica's 44
claims and independently address the merits of each claim.
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.
Failure to Dismiss Charges with Prejudice (Claim
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.
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.
court will DENY Claim 9.
Jurisdictional Attack (Claim 44)
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).
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
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
. . . .”).
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 . . . .”).
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.
Attacks on the Knowingness and Voluntariness of Ms.
Mollica's Guilty Plea (Claims 2, 7, 11, 35-36,
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.
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.
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).
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.
these rules in mind, the court will address Claims 2, 7, 11,
35-36, and 39-41.
The Court's Failure to Explain Essential Elements (Claim
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).
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)).
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
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.
Explanation of the Plea Agreement's Conditions (Claim
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.
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
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).
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.
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.
Failure to Disclose Exculpatory Evidence (Claim
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.
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.
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).
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
Effect of Coercion on the Plea Agreement (Claim
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).
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.
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.
The Court's “Threats” (Claim
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
court merely explained the reality about Ms. Mollica's
choices and never threatened her, so the court will DENY
The Court's Explanation of Sentencing Consequences (Claim
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
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).
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.
Mental Health (Directed at the Court) (Claim
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
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).
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.
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.
The Court's Explanation of the Consequences of Subsequent
Conduct (Claim 41)
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
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 ...