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United States v. Mooney

United States District Court, D. South Carolina, Beaufort Division

November 7, 2016

UNITED STATES OF AMERICA,
v.
MARY MOONEY, Defendant.

          ORDER

          DAVID C. NORTON, UNITED STATES DISTRICT JUDGE.

         This matter is before the court on the parties' objections to the Presentence Report ("PSR") submitted on November 12, 2015, as revised in the addendum of March 28, 2016.

         I. BACKGROUND

         Defendant Mooney owned and operated an international adoption agency called International Adoption Guides, Inc. ("IAG"). Her Codefendant James Harding operated a similar agency, World Partners Adoption ("WPA"). Both solicited prospective parents in the United States and placed children from overseas, including Ethiopia and Kazakhstan.

         In order to place adoptees from Hague Convention countries, agencies must be accredited by the Council on Accreditation ("COA"), which screens international adoption agencies on behalf of the U.S. State Department. Harding unsuccessfully applied for COA accreditation for WPA, but Mooney was successful in getting IAG accredited. In 2008, Harding and Mooney arranged for Harding to take control of IAG. Mooney stayed on staff in order to maintain the COA accreditation that Harding had failed to acquire. Although she was no longer in control of IAG, Mooney falsely named herself as its executive director and chief administrator in documents submitted to COA in 2010 and 2011. IAG placed a number of children from Kazakhstan after 2008. Kazakhstan is a party to the Hague Convention, therefore COA accreditation is required to facilitate adoptions from Kazakhstan.

         On January 1, 2014, the government indicted Mooney, Harding and two others for conspiracy to defraud the United States in connection with a series of adoptions from Ethiopia beginning in 2006. The indictment alleged in exchange for substantial fees that the defendants deceived clients and bribed or deceived government and regulatory officials in order to complete adoptions. Ethiopia is not a party to the Hague convention.

         On January 14, 2015, Mooney pled guilty to a one-count information alleging false and fraudulent statements to COA in the accreditation process, in violation of 42 USC § 14944. In exchange for the plea, the government agreed to withdraw the pending indictment.

         The Probation Officer prepared a Presentence Report on November 12, 2015. Both parties submitted objections, which the probation officer addressed in an addendum prepared March 28, 2016. The court convened a hearing into the objections on August 29, 2016.

         II. ANALYSIS

         A. Calculation of Loss under USSG § 2B1.1

         The Probation Officer calculated Mooney's base offense level without an increase for pecuniary loss under USSG § 2B 1.1(b). The government objects, arguing that loss should include money paid to IAG by clients seeking adoptions from Kazakhstan after 2008, and also by clients who sought Ethiopian adoptions and relied on IAG's COA accreditation though it was not required for Ethiopian adoptions. The government further argues that loss should be calculated based on gross receipts, under USSG § 3B1.2 application note 3(F)(v), on the basis that Mooney falsely represented herself as a licensed professional.

         The court finds that the Ethiopian adoptions are not relevant conduct to Mooney's offense of conviction, so receipts from Ethiopian adoptions should be excluded from loss calculations under § 2B 1.1(b). The court further finds that application note 3(F)(v)(I) does not apply, because Hague accreditation is not a professional license within the meaning of the note, and because the accreditation was held by IAG as a separate corporate entity, and not by Mooney personally. However, the Kazakhstan adoptions after 2008 qualify as relevant conduct because they were part of the same course of conduct as the offense of conviction.

         1.Relevant Conduct

         In exchange for Mooney's plea, the government agreed to withdraw the indictment concerning the Ethiopian adoptions beginning in 2006; therefore Mooney is accountable for the Ethiopian adoptions only if they qualify as relevant conduct to her offense of conviction under USSG § 1B1.3. See U.S. v. Allmindinger, 706 F.3d 330, 341 (4th Cir. 2013).

         The court calculates loss under USSG § 2Bl.l(b) using the principles of relevant conduct. USSG § lB1.3(a); U.S. v. Hayes, 322 F.3d 792 (4th Cir. 2003). Relevant conduct includes the offense of conviction, plus "all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant . . . that occurred during the commission of the offense of conviction, in preparation for the offense, or in the course of attempting to avoid detection or responsibility for the offense." USSG § 1B1.3(b)(1)(A). Additionally, if the offenses are of a character that would require grouping under USSG § 3D 1.2(d), relevant conduct includes acts described in (b)(1)(A) that were part of the same course of conduct or common scheme or plan as the course of conviction.

         First, the court finds that none of the adoptions and resulting losses are relevant conduct under § 1B1.3(a)(1). Defendant Mooney's offense of conviction was making false statements on an accreditation application, in violation of 42 USC § 14944. The adoptions themselves were not committed during, in ...


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