United States v. Michelle Mallard ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4035
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHELLE V. MALLARD, a/k/a Michelle V. Crawford,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:11-cr-00374-FDW-1)
Submitted: September 14, 2015 Decided: October 6, 2015
Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lee Ann Anderson, Amanda F. Davidoff, SULLIVAN & CROMWELL LLP,
Washington, D.C., for Appellant. Jill Westmoreland Rose, Acting
United States Attorney, Maria Kathleen Vento, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal grand jury charged Michelle V. Mallard, in a
multi-defendant, multi-count second superseding indictment, with
conspiracy to commit mortgage fraud, in violation of 18 U.S.C.
§ 1349 (2012) (Count 1), conspiracy to launder money, in
violation of 18 U.S.C. § 1956(h) (2012) (Count 3), and wire
fraud, in violation of 18 U.S.C. § 1343 (2012) (Count 4). In
July 2013, after the second day of trial, Mallard pled guilty,
without a plea agreement, to all three charges.
Sentencing was scheduled for October 28, 2014. That
morning, defense counsel moved to withdraw based on
“irreconcilable conflict.” Following an ex parte hearing, where
the court determined that Mallard sought to withdraw her guilty
plea, the district court granted counsel’s motion to withdraw
and scheduled an evidentiary hearing on the motion to withdraw
the guilty plea. 1 The court subsequently denied Mallard’s motion
to withdraw her guilty plea and sentenced her to a downward
variance sentence of concurrent 120-month prison terms on each
count.
Mallard appeals, claiming that the district court erred in
finding that her arguments for withdrawing her guilty plea
1 After the ex parte hearing, Mallard filed a pro se motion
to withdraw her guilty plea.
2
waived the attorney-client privilege, and, consequently, Mallard
asserts, the district court improperly considered privileged
information in denying her motion to withdraw. For the reasons
that follow, we affirm.
“We review evidentiary rulings, including rulings on
privilege, for abuse of discretion, . . . factual findings as to
whether a privilege applies for clear error, and the application
of legal principles de novo.” United States v. Hamilton, 701
F.3d 404, 407 (4th Cir. 2012) (citations omitted). Violations
of the attorney-client privilege are subject to harmless error
review. United States v. Nelson, 732 F.3d 504, 519 (5th Cir.
2013), cert. denied, 134 S. Ct. 2682 (2014); cf. United States
v. Cole, 631 F.3d 146, 154 (4th Cir. 2011) (“[A] conviction will
not be overturned on account of an erroneous evidentiary ruling
when that error is deemed harmless within the meaning of Federal
Rule of Criminal Procedure 52(a).”). We will find a district
court’s error harmless if we can “say, with fair assurance,
after pondering all that happened without stripping the
erroneous action from the whole, that the judgment was not
substantially swayed by the error.” United States v. Byers, 649
F.3d 197, 211 (4th Cir. 2011) (quoting Kotteakos v. United
States, 328 U.S. 750, 765 (1946)) (internal quotation marks
omitted).
3
Mallard argues that the district court erred by finding
that she had waived the attorney-client privilege and that the
court’s consideration of her privileged communications with her
attorney tainted the court’s denial of her motion to withdraw
her guilty plea, as well as subsequent proceedings. We need not
decide whether the district court erred by concluding that
Mallard waived the attorney-client privilege, because we
conclude that any violation of the attorney-client privilege was
harmless.
Turning first to the denial of Mallard’s motion to withdraw
her guilty plea, the district court considered the well-
established factors in United States v. Moore, 931 F.2d 245 (4th
Cir. 1991):
(1) whether the defendant has offered credible
evidence that [her] plea was not knowing or not
voluntary, (2) whether the defendant has credibly
asserted [her] legal innocence, (3) whether there has
been a delay between the entering of the plea and the
filing of the motion, (4) whether defendant has had
close assistance of competent counsel, (5) whether
withdrawal will cause prejudice to the government, and
(6) whether it will inconvenience the court and waste
judicial resources.
Id. at 248. In considering the Moore factors and denying the
motion to withdraw, the district court overwhelmingly relied on
nonprivileged information.
The court found that all six factors weighed against
granting the motion to withdraw. In determining that Mallard’s
4
guilty plea was knowing and voluntary, the court found that
Mallard’s communications with counsel reflected her desire to
hold open the option of withdrawing her guilty plea and her
knowledge and understanding of the Sentencing Guidelines and
sentencing proceedings. However, the court also considered
Mallard’s statements under oath at the Fed. R. Crim. P. 11
hearing where she admitted her guilt and her status as a
formerly licensed attorney, in concluding that there was no
credible evidence that her plea was not knowing and voluntary.
Regarding the fourth Moore factor, it is possible that the court
considered Mallard’s communications with her attorney in finding
that she had close assistance of competent counsel.
For the remaining four factors, the district court did not
consider any attorney-client communications. The court found
that Mallard did not credibly assert her legal innocence in
light of her inconsistent testimony regarding the various real
estate transactions, which the court found contradicted the
trial testimony of credible Government witnesses. The court
found that the 15-month delay between her guilty plea and her
motion to withdraw weighed against granting the motion to
withdraw, as did its conclusion that allowing Mallard to
withdraw her plea would prejudice the Government, inconvenience
the court, and waste judicial resources.
5
In weighing the six factors and finding that none supported
permitting Mallard to withdraw her guilty plea, therefore, the
court considered nonprivileged information for all six factors
and considered attorney-client communications with regard to no
more than two. Thus, the court’s decision to deny Mallard’s
motion to withdraw her guilty plea was not “substantially
swayed” by consideration of information that may have violated
the attorney-client privilege. 2 Byers, 649 F.3d at 211.
Accordingly, we affirm the criminal judgment. We dispense
with oral argument because the facts and legal conclusions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
2 Mallard did not include a challenge to her sentence in the
“Statement of the Issues” section of her opening brief.
However, at the end of the discussion section of her brief, she
alleged that the district court’s erroneous finding of waiver
tainted all subsequent proceedings. To the extent that
Mallard’s claim that her sentence was tainted by consideration
of privileged information is properly before us, we similarly
conclude that any error is harmless because the court was not
substantially swayed by any privileged information.
6