275 F.3d 1320 (11th Cir. 2001), 00-15142, United States v Weaver

Docket Nº:00-15142, 00-15751
Citation:275 F.3d 1320
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JUDY WEAVER, Defendant-Appellant.
Case Date:December 18, 2001
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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275 F.3d 1320 (11th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

JUDY WEAVER, Defendant-Appellant.

Nos. 00-15142, 00-15751

United States Court of Appeals, Eleventh Circuit

December 18, 2001

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[Copyrighted Material Omitted]

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Appeals from the United States District Court for the Middle District of Florida

Before ANDERSON, Chief Judge, HULL and FAY, Circuit Judges.

HULL, Circuit Judge:

The Court hereby vacates its prior opinion, filed November 13, 2001, and substitutes this corrected opinion.

Defendant Judy Weaver appeals her conviction and sentence for knowingly and willfully aiding and abetting the failure of Flagler Career Institute to make refunds of student loans and Pell Grant funds, in violation of 20 U.S.C. § 1097(a) and 18 U.S.C. § 2. After review and oral argument, we affirm.

I. BACKGROUND

This appeal primarily concerns the district court's denial of Weaver's motion to withdraw her guilty plea. We first review (a) Weaver's plea agreement, (b) her plea colloquy, and (c) the evidentiary hearing before the district court.

A. Plea Agreement

For about 10 years, Judy Weaver was the Director of Finance of Flagler Career Institute ("Flagler"), a proprietary school.1 When students dropped out or withdrew, Flagler was required to refund the proceeds of Pell Grants and student loans guaranteed by the Department of Education. Weaver's duties included writing those refund checks. On July 14, 1999, the government filed a one-count information charging that, beginning in early 1996 and continuing through February 1998, Weaver "did knowingly and willfully aid and abet Flagler's failure to make refunds on behalf of approximately 165 students in the amount of more than $120,000 but less than $200,000," in violation of 20 U.S.C. § 1097(a) and 18 U.S.C. § 2.

Weaver entered into a plea agreement ("Agreement") wherein she acknowledged understanding the nature and elements of her offense. The Agreement listed these elements as (1) "[t]hat the defendant failed to refund student loans insured by the Department of Education and Pell Grant funds provided by the Department of Education," and (2) "[t]hat the defendant did so knowingly and willfully."2 In her Agreement, Weaver also admitted that she was "in fact guilty" and these facts:

Flagler . . . , a proprietary school in Jacksonville, Florida, which closed in February 1998, offered associate degrees to its students in various medical related programs. Flagler was eligible for and participated in the Title IV Federal Student Financial Assistant Programs which provide various types of grants and loans to eligible schools. The loans are insured or guaranteed by the Department of Education and the

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grants are provided by the Department of Education. Participating schools are required to make a refund within 30 days after the student withdraws; the ending of a quarter or semester or trimester; or the date the institution determines that the student withdraws, whichever is earliest. The school is responsible for making student refunds in accordance with the distribution formula set forth under 34 C.F.R. 668.22. Schools participating in the federal student financial assistance programs must document student attendance, properly calculate refunds for students who drop out of or withdraw from school, and promptly refund the amount to the Department of Education or the appropriate lender.

The defendant was employed as Flagler's Director of Finance from Fall 1989 until the school closed in February 1998. As Director of Finance, the defendant helped develop corporate strategies, policies, and budgets. Beginning in about 1991, she was responsible for writing the checks for Flagler, including refund checks. The defendant worked at various offices including Lighthouse Point, Florida, but her duties included handling refund issues for the Jacksonville-based Flagler.

When a student dropped out of or withdrew from Flagler, a drop computation form was prepared at the school and sent to the defendant with the amount of the refund due. Refund request packets were sent from Flagler in Jacksonville to the defendant weekly. The defendant reviewed the paperwork and changed the refund amount if she came up with a different calculation than the school's calculation. The defendant then sent the packet back to Jacksonville so the school could make the calculation changes and return the packet back to the defendant.

The defendant sent monthly accounts payable reports to Mr. Wangberg, which included the aggregate amount of the student refunds due. The defendant also spoke with Mr. Wangberg via telephone a number of times per month and discussed with him, among other things, the refund issue and Flagler's need to make refund payments. Mr. Wangberg was aware of the refund problem but he did not consider making refunds a priority.

In or about February 1997, Mr. Wangberg himself took over as the School Director of Flagler. As noted above, Mr. Wangberg was well aware that Flagler owed a substantial amount of refund monies. When Mr. Wangberg ran the school, he took complete control of the funds and the defendant could not write any checks without his approval. During Mr. Wangberg's tenure as School Director, the amount of refund payments due continued to grow.

Mr. Wangberg and the defendant both knew that Flagler owed refunds and that they had a requirement to make the refunds. From in or about early 1996, Flagler, including Wangberg and the defendant, failed to refund student loans guaranteed by the Department of Education and Pell Grants provided by the Department of Education in the amount of more than $120,000 but less than $200,000, on behalf of approximately 165 students. To date, these refunds have not been made.

B. Rule 11 Colloquy

On August 16, 1999, the magistrate judge reviewed the elements of her offense with Weaver as part of both her waiver of indictment and plea colloquy. Weaver had no questions about them, had read and understood "every page and every word" of her Agreement, and knew "every word

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and every provision" was binding on her. The judge questioned Weaver: (1) whether she was pleading guilty because she was "in fact guilty"; (2) whether she committed the act charged in the information; (3) whether she understood that her guilty plea admitted the truth of the charge; and (4) whether she understood what she was doing by pleading guilty. Weaver responded affirmatively each time.

During the Rule 11 colloquy, the prosecutor read the above facts from the Agreement and Weaver agreed with them. Weaver also responded affirmatively to these questions:

THE COURT: . . . Did you from in or about early 1996 to in or about February 1998 at Jacksonville in the Middle District of Florida and elsewhere aid and abet Louis Weinberg [sic] in Flagler's failure to make refunds of student loans and Pell grant funds?

DEFENDANT: Yes, sir.

THE COURT: Were the Pell grant [sic] funds provided by the Department of Education?

DEFENDANT: Yes, sir.

THE COURT: Did you knowingly and willfully aid and abet Louis Weinberg [sic] in Flagler's failure to make these refunds?

DEFENDANT: Yes, sir.

The magistrate judge found that a factual basis existed for Weaver's plea, that those facts stated the elements of the offense, and that Weaver's guilty plea was freely, voluntarily, knowingly, and intelligently made. Weaver agreed with these findings and indicated her satisfaction with her attorney. The magistrate judge then issued a Report and Recommendation outlining these findings. Weaver did not object.

Thereafter, on September 8, the district court accepted Weaver's guilty plea, adjudged Weaver guilty, and set sentencing for December 2, 1999. The court later rescheduled it to February 3, 2000. During the interim, Weaver replaced her attorney, Mark Perry, with her current attorney, Curtis Fallgatter. The court continued sentencing to June 15, 2000.

C. Evidentiary Hearing on Motion to Withdraw

On May 31, 2000, Weaver moved to withdraw her guilty plea. Weaver's motion asserted that (1) she was under the mistaken impression that the crime to which she pled guilty was a strict liability crime, (2) she was misinformed as to the elements of the crime charged, (3) the facts outlined in the Agreement did not constitute the crime charged, (4) she was misinformed as to the testimony of key witnesses, (5) the Agreement had an internal inconsistency, and (6) she was innocent. During an evidentiary hearing on Weaver's motion, the district court heard testimony from both Weaver and Perry.

1. Weaver's Testimony3

Weaver testified that she understood the government's witnesses were "going to criminally implicate me" and "basically say it was my fault that the refunds were not paid," but later learned they were supporting her position that a crime had never been committed. At the time of her plea, Weaver had understood "that I simply had to have knowledge that the refunds . . . were due and not paid - and that that made me guilty of a crime."

Regarding the factual statement in her Agreement identifying Weaver as

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"help[ing to] develop corporate strategies, policies, and budgets," Weaver did not understand this statement to mean that she was involved in developing a strategy for refunds. According to Weaver, Wangberg established the priorities for refund payments before she came to work for Flagler. Weaver's understanding of the mens rea required to violate § 1097(a) was as follows:

At that time I fully understood that the willful issue was the fact, simply the fact that I had to have knowledge that the refunds were due and not paid and that made...

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