Mollica v. United States, Civil Action No. 2:17-CV-8038-KOB

CourtUnited States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
Decision Date21 March 2019
Docket NumberCivil Action No. 2:17-CV-8038-KOB


Civil Action No. 2:17-CV-8038-KOB


March 21, 2019

Associated Criminal Case 2:14-CR-329-KOB


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.

Page 2

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.

Page 3


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

Page 4

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

Page 5

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

Page 6

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

Page 7

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

Page 8

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...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT