UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
2

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.
3

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).
4

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 wellestablished 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
5

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.
6

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.