United States v. Mooney

Decision Date26 April 2022
Docket Number9:14-cr-00054-DCN-2
CourtU.S. District Court — District of South Carolina


This matter is before the court on defendant Mary Mooney's (Mooney) motion to vacate, set aside, or correct her federal sentence pursuant to 28 U.S.C. § 2255, ECF No. 336. For the reasons set forth below, the court denies the motion.


Mooney was the owner and executive director of International Adoption Guides (“IAG”), an organization that provided consulting and logistics services to parents seeking to adopt children from outside the United States. In 2006 Mooney applied for accreditation for IAG under the Intercountry Adoption Act of 2000, 42 U.S.C. §§ 1490114954 (the Act), which governs international adoptions. To become accredited under the Act an adoption service provider like IAG must apply to an “accrediting entity” designated by the State Department. See 42 U.S.C. §§ 14902(2), 14922(a). That entity then considers whether the provider satisfies specific professional requirements. See id. § 14923(b) (establishing minimum requirements for accreditation); see also 22 C.F.R. §§ 96.29-.55 (outlining additional accreditation requirements). If accredited, the adoption service provider must continue to submit annual statements to the accrediting entity confirming that it remains in substantial compliance with all relevant requirements. See 22 C.F.R. § 96.66(c). In this case, Mooney submitted her application on behalf of IAG to the Council on Accreditation (“COA”), a designated accrediting entity, and the COA granted Mooney's application in 2008. Shortly thereafter, Mooney agreed to sell IAG to James Harding (“Harding”). Harding had previously applied for accreditation for his own adoption service organization, but that application had been denied because Harding lacked the qualifications required by regulation to run such an organization. Mooney and Harding agreed that once Mooney sold IAG to Harding, Harding would assume day-today control as the executive in charge of IAG's operations, but Mooney would remain executive director in name only so that IAG could maintain its accreditation. Neither Mooney nor Harding notified the COA of this change in leadership. In 2010 and 2011, in order to preserve IAG's accredited status, Mooney made the statements that eventually formed the basis for the plea at issue in this appeal: Mooney submitted statements to the COA falsely claiming that she remained in control of IAG and that the organization continued to be in substantial compliance with all applicable regulations-even though Harding, who lacked the required educational and professional qualifications, was actually in charge.

The government soon had reason to suspect that Mooney was doing more than making false statements and in fact was engaged in a scheme to facilitate fraudulent adoptions. Specifically, emails between Mooney and her coworkers revealed that IAG was paying Ethiopian orphanages to sign contracts giving specific children up for adoption when those children had never lived in the orphanages and may not have even been orphans. The government also uncovered evidence that Mooney's employees then submitted those false contracts to Ethiopian courts and the U.S. State Department to expedite the children's adoptions. Based on this evidence, Mooney and three of her coworkers, including Harding, were indicted for conspiracy to defraud the United States, in violation of 18 U.S.C. § 371. Harding and another co-defendant pleaded guilty to that conspiracy. Mooney refused to do so. Instead, shortly before trial, Mooney asked the government if she could plead guilty to a violation of 42 U.S.C. § 14944(c), which prohibits the making of a false statement to an accrediting entity in order to obtain or maintain accreditation. The government agreed that Mooney could plead guilty to that less serious offense and provided her with a list of false statements she had made to the COA. As the basis for her plea, Mooney chose the 2010 and 2011 statements in which she confirmed that she was executive director of IAG and that IAG was in compliance with all relevant regulations-when in reality Harding, who lacked the qualifications required by regulation, had assumed control of the organization. The government included those statements in an information charging Mooney with a violation of 42 U.S.C. § 14944(c), and based on that information, Mooney and the government entered into a written plea agreement.

In the plea agreement, the government agreed to dismiss the original conspiracy charge, and in exchange, Mooney agreed to plead guilty to the § 14944(c) violation and to waive her right to appeal her conviction and sentence. In January 2015, Judge Sol Blatt, Jr. conducted a thorough plea colloquy to determine whether to accept Mooney's guilty plea under Federal Rule of Criminal Procedure 11. During the colloquy, the government reviewed the facts it would prove at trial: that Mooney made the 2010 and 2011 statements to the COA about IAG's compliance with the regulations and that she knew those statements were false. Mooney agreed that those facts were accurate. The court also asked Mooney a series of questions about whether she fully understood the proceedings, whether she was satisfied with her counsel, whether her counsel had explained the nature of the charges against her, whether she understood those charges, and whether she voluntarily signed the plea agreement. Mooney answered all of those questions in the affirmative. Finally, the court reviewed the rights that Mooney waived through her plea agreement, including, specifically, the right to appeal her conviction and sentence. Mooney confirmed that she both understood and agreed to this waiver of her appeal rights. Accordingly, the court accepted Mooney's plea, finding that it was knowingly and voluntarily made with a basis in fact encompassing all elements of the § 14944(c) crime.

Before she was sentenced, Mooney moved to withdraw her plea. Although Mooney conceded that the Rule 11 colloquy was properly conducted and comprehensive, she argued that she was rushed into the plea agreement, leaving her attorney without time to thoroughly research the elements of a § 14944(c) offense. Thereafter, Mooney argued, she discovered that § 14944(c) in fact did not apply to her 2010 and 2011 false statements, such that her guilty plea was to a non-existent criminal offense. Mooney's argument was as follows: When Mooney made her false statements in 2010 and 2011, the Intercountry Adoption Act required accreditation only of those organizations conducting adoptions under the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (the “Hague Convention”). It followed, Mooney argued, that the prohibition on false statements to accrediting entities laid out in § 14944 applied only to organizations then conducting adoptions in countries that were parties to the Hague Convention. And, Mooney finished, because IAG provided adoption services in 2010 and 2011 only in connection with two countries that were not parties to the Hague Convention and thus did not require accreditation-Ethiopia and Kazakhstan-her false statements to her accrediting entity could not constitute violations of § 14944(c). After a hearing, the court denied Mooney's motion to withdraw her plea, rejecting Mooney's argument that § 14944(c) did not apply to her false statements. The court recognized that when Mooney made her false statements, she may not have been required to seek accreditation for IAG. But, the court explained, the fact remained that Mooney did seek accreditation-regardless of whether it was required. And once Mooney applied for accreditation, § 14944 plainly made it a crime to make false statements to her accrediting entity in order to influence its decision. The court thus found no basis to permit Mooney to withdraw her plea and denied her motion.

The United States Probation Office (“USPO”) prepared the first presentence report (“PSR”) on November 12, 2015. The first PSR found a loss amount of $100, 000 and did not apply an enhancement for the number of victims. Both Mooney and the government objected to the loss amount, with the government requesting that the gain from all the adoptions be included in the loss calculation, and the defense requesting a loss amount of zero. On March 28, 2016, USPO revised the PSR to find no loss and no victims. The government objected to the revised PSR regarding the loss amount and victims, arguing that all the families adopting from Ethiopia and Kazakhstan who paid IAG for legitimate adoptions from a COA-approved company were the victims. On May 6, 2016, the government filed a sentencing memorandum, pursuing its objections to the PSR and, in the alternative, moving for an upward variance. The court set a hearing for June 16, 2016. Mooney submitted a sentencing memorandum with thirteen exhibits. ECF No. 207. On November 7, 2016, the court issued its order on the objections, ruling that the Kazakhstan adoptions should be counted for the loss amount, but the Ethiopia adoptions should not. On June 21, 2017, a new PSR was prepared.

On June 28, 2017, Mooney again submitted objections to the PSR concerning the loss amount, the number of victims, and restitution. On August 7, 2017, Mooney also filed an additional sentencing memorandum. On August 10, 2017, the undersigned held the sentencing hearing and issued a sentencing order on September 6, 2017. At the sentencing hearing, the court acknowledged that the basis for the loss was not that Kazakhstan was a party to the Hague Convention but rather that Kazakhstan on...

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