US v. Michelle Mallard

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:11-cr-00374-FDW-1. Copies to all parties and the district court. [999672747].. [15-4035]

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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
morning,

was

defense

scheduled
counsel

“irreconcilable conflict.”

for
moved

October
to

28,

2014.

withdraw

based

That
on

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

1

withdrawing

her

guilty

plea

After the ex parte hearing, Mallard filed a pro se motion
to withdraw her guilty plea.

2

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waived the attorney-client privilege, and, consequently, Mallard
asserts,

the

district

court

improperly

considered

information in denying her motion to withdraw.

privileged

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).”).
court’s
after

error

harmless

pondering

erroneous

action

if

we

all

that

from

the

can

197,

States,

211

328

(4th

U.S.

Cir.

750,

whole,

2011)

765

“say,

happened

substantially swayed by the error.”
F.3d

We will find a district

omitted).

3

without

that

the

fair

assurance,

stripping

judgment

the

was

not

United States v. Byers, 649

(quoting

(1946))

with

Kotteakos

(internal

v.

quotation

United
marks

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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.
decide

whether

Mallard

waived

the

district

the

court

erred

attorney-client

by

We need not

concluding

privilege,

that

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

granting the motion to withdraw.

4

six

factors

weighed

against

In determining that Mallard’s

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guilty

plea

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was

knowing

and

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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

sentencing
Mallard’s
hearing

proceedings.
statements

where

formerly

understanding

she

licensed

of

the

However,

under
admitted

attorney,

oath

the

at

her
in

Sentencing
court

the

guilt

also

Fed.
and

Guidelines

R.

concluding

that

considered

Crim.

her

and

status
there

P.

11

as
was

a
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.
that

Mallard

did

not

credibly

assert

her

The court found

legal

innocence

in

light of her inconsistent testimony regarding the various real
estate

transactions,

which

the

court

found

contradicted

trial testimony of credible Government witnesses.

the

The court

found that the 15-month delay between her guilty plea and her
motion

to

withdraw,

withdraw
as

did

weighed
its

against

conclusion

granting

that

the

allowing

motion

to

Mallard

to

withdraw her plea would prejudice the Government, inconvenience
the court, and waste judicial resources.

5

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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.
motion

to

Thus, the court’s decision to deny Mallard’s

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