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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA : : : : : : : : : :

CRIMINAL NO. 11-160 (RJL) Sentencing: November 18, 2011

v.

LORI M. HAWKINS, Defendant.

GOVERNMENTS MEMORANDUM IN AID OF SENTENCING The United States of America, by and through its attorney, the United States Attorney for the District of Columbia, respectfully submits this memorandum in aid of sentencing. The government recommends a sentence of incarceration at the low end of the guidelines range, a threeyear period of supervised release, restitution in the amount of $269,630.30, and forfeiture in the amount of $269,630.30. I. BACKGROUND A. Procedural History On August 3, 2011, Lori M. Hawkins (the defendant) pleaded guilty before this Court to an information charging one count of interstate transportation of stolen property, in violation of 18 U.S.C. 2314, along with a criminal forfeiture provision. In the plea agreement, the defendant agreed to pay restitution in the amount of $269,630.30 to Shereida Winder. Plea Agreement at Part 7. Also in the plea agreement, the defendant agreed to a criminal forfeiture to the United States in the form of a money judgment in the amount of $269,630.30. Id. at Part 8. At the time of the plea,

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the parties submitted a consent order of forfeiture to the Court.1 B. Factual Background The defendant was a long-time friend of a woman named Shereida Winder. The defendant had known Ms. Winder since the defendants youth because they were next-door neighbors. The defendants family and the Winder family were friends. Ms. Winder is 25 years older than the defendant. When Ms. Winder was in her late 20s, she suffered from brain tumors, which left her with diminished mental capacity. From that point on, Ms. Winder could no longer care for herself and relied on her family to take care of her. She resided at the Winder family home in the District of Columbia. After the death of her parents, Ms. Winder was cared for by her brother Clarence Winder. Clarence Winder was the last close relative of Ms. Winder who lived in the D.C. area. Clarence Winder died in March 2007, leaving Ms. Winder as the sole heir to his estate. On or about May 2, 2007, Letters of Administration were filed with the Probate Division of the Superior Court for the District of Columbia naming Ms. Winder as the Personal Representative for Clarence Winder. Ms. Winder inherited over $400,000 from Clarence Winders estate. After Clarence Winders death, the defendant produced or caused to be produced a document (POA) purporting to grant the defendant power of attorney over Ms. Winder. The document was dated May 14, 2007, and was signed by the defendant and two witnesses. The witnesses were S.G., an aunt of the defendant, and C.B., a friend of the defendant. The document purported to bear the signature of Ms. Winder.
1

This consent order of forfeiture does not appear to have been filed in the court 2

docket.

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The defendant submitted the POA to the State Department Federal Credit Union (SD FCU), where the majority of Clarence Winders money resided. On or about June 5, 2007, the defendant submitted a document to SD FCU requesting that SD FCU close Clarence Winders account and disburse the funds to the Estate of Clarence B. Winder, Shereida Winder, PR by mailing a check to the defendants home address in Upper Marlboro, Maryland. The defendant signed this document on behalf of Ms. Winder. SD FCU closed Clarence Winders account on or about July 30, 2007, and mailed the defendant a check for $224,879.21. In July and August 2007, the defendant collected other money that had belonged to the estate of Clarence Winder, including $62,491.80 from the Office of Federal Employees Group Life Insurance, $50,864.22 from MetLife, $42,576.20 from M&T Bank, and $37,401.66 from Primerica. On or about July 30, 2007, the defendant set up a bank account at Wachovia Bank in the name of Clarence B. Winder estate. The last four digits of the account number were 7338. The defendant and Shereida Winder were listed as personal representatives of the estate on the account. That same day, the defendant set up another bank account at Wachovia Bank in the names of the defendant and her friend C.B. The last four digits of the account number were 8586. On or about August 16, 2007, the defendant set up another bank account at Wachovia Bank in the names of the defendant and Shereida Winder. The last four digits of the account number were 7362. The defendant initially deposited the money she collected from Clarence Winders estate in the account ending in 7338. After setting up the account ending in 7362, the defendant immediately transferred to this account $50,000 from the account ending in 7338. On or about December 13, 2007, the defendant transferred another $250,000 from the account ending in 7338 to the account ending in 7362. In or about September 2007, the defendant began transferring money from the

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account ending in 7362 to the account ending in 8586. From September 2007 to August 2009, the defendant transferred a total of $209,949.05 from the account ending in 7362 to the account ending in 8586. The account ending in 8586 was used for the benefit of the defendant and CB. The $209,949.05 belonging to Ms. Winder that the defendant unlawfully transferred to this account was not used for the benefit of Ms. Winder. In addition, from September 2007 to November 2009, the defendant made numerous purchases for her own personal benefit with the debit card associated with the account ending in 7362. These purchases totaled $39,347.30. The purchases included costs associated with trips the defendant took to London, Las Vegas, Jacksonville, and Greensboro. Further, from September 2007 to June 2009, the defendant made cash withdrawals for her own personal benefit from the account ending in 7362. These withdrawals totaled $20,333.95. After Clarence Winders death, Ms. Winder resided at an assisted living facility, and she spent her days at an adult day care center. In 2007 and 2008, the defendant arranged for payment of the costs associated with Ms. Winders care using money from Clarences estate. In or about January 2009, however, the defendant stopped paying for Ms. Winders care after the money from Clarence Winders estate ran out due to the defendants use of the money for her own benefit and for the benefit of C.B. In sum, from in or about July 2007 to in or about November 2009, the defendant engaged in a scheme in which she stole $269,630.30 belonging to Shereida Winder and used it for her own benefit and the benefit of C.B. In transferring the money to her own use, the defendant caused the money to cross state lines via wire transfers, debit card purchases, and checks.

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II. GOVERNMENTS POSITION ON SENTENCING The government recommends a sentence of incarceration at the low end of the guidelines range, a three-year period of supervised release, restitution in the amount of $269,630.30, and forfeiture in the amount of $269,630.30. A. Sentencing Guidelines 1. Stipulated Guidelines

Prior to entry of the plea, the parties stipulated that the base offense level under the United States Sentencing Guidelines in this case was 6, a 12-level increase applied pursuant to 2B1.1(b)(1)(G) because the loss was over $200,000, a two-level increase applied pursuant to 3A1.1(b)(1) because Ms. Winder was a vulnerable victim, and a three-level decrease applied for acceptance of responsibility. Plea Agreement at Part 3. The Probation Office has agreed with these stipulations in its calculation. 2. Abuse of Position of Trust

The government and the defense did not reach an agreement with regard to the applicability of the two-level enhancement for abuse of position of trust under 3B1.3, and each reserved the right to argue its applicability at sentencing. It is the governments position that this enhancement applies, and the Probation Office agrees. The Sentencing Guidelines define public or private trust as being characterized by professional or managerial discretion (i.e., substantial discretionary judgment that is ordinarily given considerable deference). U.S.S.G. 3B1.3 application note 1. For the adjustment to apply, the position of public or private trust must have contributed in some significant way to facilitating the commission or concealment of the offense (e.g., by making the detection of the offense or the

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defendants responsibility for the offense more difficult). Id. In order to determine whether a position is one of trust, the D.C. Circuit suggests the trial court consider [t]he extent to which the position provides the freedom to commit a difficult-to-detect wrong, and whether an abuse could be simply or readily noticed; defendants duties as compared to those of other employees; defendants level of specialized knowledge; defendants level of authority in the position; and the level of public trust. United States v. Shyllon, 10 F.3d 1, 5 (D.C. Cir. 1993). The defendant appointed herself to a position of private trust when she secured power-ofattorney over Ms. Winder, essentially making the defendant Ms. Winders guardian. The defendant then used the power-of-attorney to collect Ms. Winders inheritance and convert it to her own benefit. If not for the power-of-attorney, the defendant could not have collected the money, therefore the defendants position as Ms. Winders guardian contributed significantly to the commission of the offense. Similarly, the defendants position facilitated the concealment of the offense. The banks and other entities from which Ms. Winder collected and funneled the money had no reason to question her conduct. As Ms. Winders purported guardian, the defendant had unfettered access to and control over the money, and there was no way to detect the crime until the money simply ran out and Ms. Winders bills went unpaid. See Shyllon, 10 F.3d at 5 (court should consider [t]he extent to which the position provides the freedom to commit a difficult-to-detect wrong, and whether an abuse could be simply or readily noticed). The first example listed in application note to U.S.S.G. 3B1.3 of an abuse of position of trust is an embezzlement of a clients funds by an attorney serving as a guardian. U.S.S.G. 3B1.3 application note 1. While the defendant was not an attorney, she gave herself power-ofattorney over Ms. Winder and proceeded to embezzle the funds. This conduct falls in the heartland

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of U.S.S.G. 3B1.3; it is not a close call. 3. Guidelines Calculation

Adding the two-level enhancement for abuse of position of trust to the stipulated offense level calculations, the total offense level is 19. The defendant has a criminal history score of zero, which puts her in Criminal History Category I. The defendants guidelines range, then, is 30 to 37 months in Zone D. The Probation Office agrees with this calculation. The government is recommending a sentence at the low end of this guidelines range. B. Factors in 18 U.S.C. 3553(a) Support the Recommended Sentence The government respectfully submits that the factors under 18 U.S.C. 3553(a) support a sentence at the low end of the guidelines range of 30 to 37 months. 1. Nature of the offense

The offense in this case was egregious, not only based on the amount of money the defendant stole but also based on the nature of the victim a close family friend with diminished mental capacity. The defendant grew up next to Ms. Winder and was intimately familiar with Ms. Winders cognitive difficulties. The defendant also knew that, after the death of Clarence Winder, Ms. Winder had no close relatives to take care of her. It is difficult to imagine a person in a more vulnerable state than Ms. Winder after her brothers death. The defendant saw Ms. Winders significant inheritance as an opportunity, and she committed a betrayal of the first order. First, she created a power-of-attorney document and got Ms. Winder to sign it, fully knowing that Ms. Winder did not have the mental capacity to execute such a document. The defendant had her aunt and one of her friends witness the document. Then, the defendant collected the entire inheritance and began to siphon it off, using several different bank

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accounts, until the money was gone. As a result of this crime, Ms. Winder was left destitute. Her bills went unpaid. When the situation came to the attention of the D.C. government, the defendant, rather than do anything to help Ms. Winder, simply absented herself from the situation. She did not cooperate with the courtappointed conservator for Ms. Winder or the courts Auditor-Master. inheritance gone, Ms. Winder was of no further use to the defendant. The money the defendant stole will not be recouped. The defendant spent the money on trips, clothing, electronics, and other items. She stayed at the Luxor hotel in Las Vegas. She spent $2,500 at Best Buy on one occasion, and spent $300 at a day spa on another. Financial statements reveal that she also gave $70,000 to her friend C.B. The defendant burned through over $250,000 in less than two years on a shopping spree at Ms. Winders expense. The serious nature of the defendants offense certainly merits a sentence of incarceration of 30 months. 2. History and characteristics of the defendant With Ms. Winders

Not including a traffic offense, the defendant has no criminal history. The defendant has some history of employment. It should be noted that the defendant accepted a pre-indictment plea offer, which saved the government from expending resources on a trial. If the defendant had been convicted at trial, the governments position at sentencing would have been significantly different. The defendants acceptance of responsibility, her clean record, and her employment history support a sentence at the low end rather than the middle or the high end of the guidelines range.

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3.

The need for the sentence (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence; (C) to protect the public from further crimes of the defendant; and (D) to provide defendant with appropriate education or vocational training

The governments recommended sentence, which includes some incarceration, would reflect the seriousness of the defendants crime, would provide just punishment for her actions, would afford adequate deterrence to similar criminal conduct, and would protect the public from further crimes of the defendant. A sentence of some incarceration is particularly necessary to punish the defendant for taking advantage of such a vulnerable individual, and to send a message to the community that those who prey on the vulnerable will face serious consequences. The defendant has been employed previously and it does not appear that she needs further education or vocational training. 4. The need to provide restitution to any victims of the offense

The governments recommended sentence provides for restitution to Ms. Winder. The government and the defensdant agreed to restitution of $269,630.30. The court-appointed

conservator has suggested that the amount of the theft was higher. This may be so, but the government looked at the Auditor Master report, along with the financial statements, and determined that $269,630.30 is the amount the government could readily prove was stolen. This is the amount the Court should use in ordering restitution and forfeiture.

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III. CONCLUSION The United States respectfully requests that the Court sentence the defendant at the low end of the guidelines range, and in accordance with the factors articulated in 18 U.S.C. 3553(a), to punish her for her conduct and to deter others who might consider engaging in similar behavior.

Respectfully submitted, RONALD C. MACHEN JR. United States Attorney for the District of Columbia

By:

____/s/______________________________ BRYAN SEELEY Assistant United States Attorney DC Bar Number 501681 555 4th Street, N.W., Room 5840 Washington, DC 20530 (202) 252-7822 Bryan.Seeley@usdoj.gov

CERTIFICATE OF SERVICE I HEREBY CERTIFY that I caused a copy of this pleading to be served upon defense counsel, via the electronic case filing system, this 11th day of November, 2011.

/s/ BRYAN SEELEY Assistant United States Attorney

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