United States District Court, D. South Carolina, Beaufort Division
C. NORTON, UNITED STATES DISTRICT JUDGE.
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,
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.
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.
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
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.
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.
Calculation of Loss under USSG § 2B1.1
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.
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.
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.
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.
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 ...