Case 0:11-cr-60078-WPD Document 101 Entered on FLSD Docket 11/08/2011 Page 1 of 18

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: UNITED STATES OF AMERICA, Plaintiff, vs. OLIVIA EVANS, Defendant. _______________________________/ DEFENDANTS SENTENCING MEMORANDUM COMES NOW the Defendant, OLIVIA EVANS, (hereinafter referred to as Olivia), through undersigned counsel and respectfully moves this Honorable Court to consider the circumstances of the Defendant as they relate to 3553 (a) (2) in allowing for a variance in this case. Olivia Evans will stand before Your Honor on November 14, 2011 for sentencing. SENTENCING OPTIONS As a result of the Supreme Court decision in United States v. Booker, 125 S.Ct. 738 (2005), the Sentencing Guidelines are now effectively advisory in all cases. Id, at 757. The result is that a District Court must now consider guideline ranges, but may tailor the sentencing in light of other statutory concerns as well. Id. at 757. Thus under Booker, sentencing courts must treat the Guidelines as just one of a number of sentencing factors set forth in 18 U.S.C. 3553(a). The basic mandate and overriding principle of 3553(a) requires a District Court to impose a sentence sufficient, but not greater than necessary, to comply with the four purposes of sentencing set forth in 3553(a) (2): (a) to reflect the seriousness of the offense, to promote 1:11-CR-60078-WPD-3

respect for the law, and to provide just punishment for the offense;

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(b) (c) (d)

to afford adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; and, to provide the defendant with needed educational

or vocational training, medical care, or other correctional treatment in the most effective manner. In determining what sentence is sufficient, but not greater than necessary to comply with 3553(a) (2) purposes of sentencing, the sentencing court is further directed to consider the following factors: (1) The nature and circumstances of the offense and the history and

characteristics of the defendant; (2) (3) The kinds of sentences available; The Guidelines and policy statements issued by the Sentencing

Commission, including the (now non-mandatory) guideline range; (4) The need to avoid unwarranted sentencing disparity among

defendants who have been found guilty of similar conduct, and (5) The need to provide restitution where applicable. 18 U.S.C.

3553(a) (1), (a) (3)-(7). Neither the statute itself nor Booker suggests that any one of these factors is to be given greater weight than any other factor. However, what is clear is that all of these factors are subservient to 3553(a)s mandate to impose a sentence not greater than necessary to comply with the four purposes of sentencing. A sentencing court is further guided by 18 U.S.C. 3582, which provides that in determining whether and to what extent imprisonment is appropriate based on the 3553(a) factors, the judge is required

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to recognize that imprisonment is not an appropriate means of promoting correction and rehabilitation (emphasis added). In Rita v. United States, 127 S. Ct. 2456, (S. Ct. 2007) the Supreme Court held that Courts of Appeal may presume that a guideline sentence is reasonable, but stressed the presumption was an appellate court presumption [that] applies only on appellate review. By contrast, the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply. In United States v. Sachsenmaier, 491 F3d 680 (7th Cir. 2007) (post Rita case) the Court stated the District Courts must calculate the advisory sentencing guideline range accurately, so that they can derive whatever insight the guidelines have to offer, but ultimately they must sentence based on 18 U.S.C. 3553 (a) without any thumb on the scale favoring a guideline sentence. In United States v. Santoya, 493 F. Supp. 2d 1075 (D.D. Wisc.) the Court stated that under Rita the sentencing judge is forbidden from indulging a presumption that the Guidelines sentence is the correct one. In Kimbrough v. United States, 552 U.S. 2007 (December 10, 2007) No.:06-6330, a case involving the disparity between punishment for crack-cocaine and cocaine powder form, the Court concluded that the sentencing guidelines are advisory only, and rejected the lower courts ruling that they are effectively mandatory. In Gall v. United States, 552 U.S. (2007) No.: 06-7949, the Court basically cleared the way for judges to impose sentences below the specified range and still have punishment regarded as reasonable. Justice Stevens told Federal Appeals Courts to use a deferential abuse-of-discretion standard even when a trial court sets a punishment

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below the range. The Gall decision overturned a ruling by the Eighth Circuit Court that a below-guideline sentence would be reasonable only if justified by extraordinary circumstances. APPLICATIONS OF THE STATUTORY SENTENCING FACTORS TO THE FACTS OF THIS CASE On September 2, 2011, Olivia Evans plead guilty to Counts 8 and 12 of the Governments Superseding Indictment. Count 8 charges Olivia Evans with wire fraud in violation 18 U.S.C. 1343, and Count 12 of same charges Olivia Evans with mail fraud in violation of 18 U.S.C. 1341. Count 8, wire fraud, a Class C felony, carries a statutory penalty of 0-20 years imprisonment, Two Hundred Fifty Thousand Dollars ($250,000.00) fine and a One Hundred Dollar ($100.00) special assessment. Count 12, mail fraud, also a Class C felony carries the same possible statutory penalties. Olivia Evans, through undersigned counsel, urges this Honorable Court to

consider the following facts when determining what sentence is sufficient, but not greater than necessary, to satisfy the purposes of sentencing: (1) The nature and circumstances of the offense and history and characteristics of the defendant: (a) The offense: Olivia Evans plead guilty to two counts; namely Court 8, wire fraud, and Count 12, mail fraud, in violation of 18 USC 1343 and 1341, respectively. The facts surrounding the Indictment indicate that from January 2007 through March 2011, Bridgette Evans, Pollie Evans and Olivia Evans engaged in a scheme to defraud individuals into sending them U.S. currency and other items of value to be, in part, cleansed of evil spirits with the promise that the Defendants would return said
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currency and valuable items to the individuals in exchange for their services. The defendants did not return said currency or valuable items to the victims as indicated. Conversations regarding the scheme to defraud took place via telephone and Internet, and currency and other valuable items were exchanged through mail delivery services. The spiritual/psychic services were advertised by the defendants in newspapers and the Internet. In short, the defendants represented that they were psychic/spiritual healers and could identify whether or not an individual or their family were affected by evil spirits and would indicate to the intended consumer of the services that they had the ability to rid their lives of said evil spirits which were causing illnesses, bad luck, and general suffering. The defendants have been identified as Romany gypsies. The art of mysticism, psychic ability and fortune telling have been taught to the defendants by their elders at a very young age. During the relevant period charged in the Indictment; namely January 2007 through March 2011, specifically, Olivia Evans, who was to allegedly have been affiliated with co-defendants Bridgette Evans and Pollie Evans, engaged in a scheme to defraud victim, Lisa Sullivan of Texas. It is alleged in the Presentence Investigation Report (hereinafter PSR) that Lisa Sullivan was having emotional problems due to issues with her in-laws. (See Page 6 of PSR, Paragraph 14). There is no specific indication of a particular diagnosis(es) with regard to Lisa Sullivan, or any characterization of any overriding

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physical or mental medically determinable impairment from which she was suffering during the relevant period charged in the Indictment. Olivia Evans, via representations as addressed hereinabove, caused Lisa Sullivan, on or about July 18, 2008, to send money orders, of unspecified amounts, to Olivia Evans from Fort Worth, Texas to Fort Lauderdale, Florida, and on or about November 29, 2008, Lisa Sullivan sent a Rolex watch to Olivia Evans from Fort Worth Texas to Fort Lauderdale, Florida based upon representations that said watch would assist Olivia Evans in ridding Lisa Sullivan of evil spirits. According to Lisa Sullivan, a current estimation of losses from December 2007 through approximately January 2009, is approximately Four Hundred Thousand Dollars ($400,000.00) consisting of cash, checks, and wire transfers. These items were sent to Olivia Evans in order for Olivia Evans to keep away demons. ( See, PSR Page 6, Paragraph 14). Lisa Sullivan indicated that she was placed under a great deal of stress due to Olivia Evans, and she feared she had to send money or else she or her family would be hurt by the evil spirits that were apparently, in the mind of Lisa Sullivan, controlled by Olivia Evans. The Defendant and the Government, via the Plea Agreement in this case, agreed that the base offense level in the instant matter is seven (7) pursuant to 2B1.1 (a) (1), with a ten (10) level increase based on a loss between One Hundred Twenty Thousand Dollars ($120,000.00) and Two Hundred Thousand Dollars ($200,000.00) based upon the facts as

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presented during the course of the four-year investigation at the time of the Change of Plea hearing before this Honorable Court. Subsequently,

however, as mentioned in the PSR (Page 6, Paragraph 14, and Page 12, Paragraph 32) probation has indicated that The Government later learned of more losses in this case. Based on the information received from the Government, Olivia Evans is responsible for losses totaling more than Four Hundred Thousand Dollars ($400,000.00) but less than One Million Dollars ($1,000,000.00). Olivia Evans, in a prior pleading, has filed her formal objection to the adjusted loss amount indicated specifically in the PSR ( Page 12, Paragraph 32). On May 6, 2011, Olivia Evans self-surrendered in the Eastern District of Texas, and upon release returned to the Southern District of Florida where she again availed herself to authorities and was released on May 16, 2011 on a Fifty Thousand Dollar ($50,000.00) ten percent bond with Nebia requirements and pretrial supervision with the condition of electronic monitoring, which has since been removed by Order of this Court. At no time did Ms. Evans violate her pretrial release conditions, and has cooperated with the Government since retaining counsel. In fact, Olivia Evans, pursuant to 3E1.1, should receive a recommendation by the Government in furtherance of a three-level (3) reduction for acceptance of responsibility. (b) The defendant: Olivia Evans was born on October 20, 1989. She is currently twenty-three years of age and resides in Texas. She is

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approaching her eighth month of pregnancy and is due to give birth in January 2012. Olivia was adopted by Billy and Kathron Evans. Olivia was raised in the Romany gypsy culture since birth. Olivias adoptive mother, Kathron Evans, formerly worked as a psychic and raised Olivia to have the same calling since the age of five (5). Olivia only attended school through the fifth grade and received limited home schooling thereafter. She is, however, able to read and write. Besides English, Olivia speaks the Romany gypsy language. Her vocational interests and direction were provided by her elders and pointed Olivia in a direction of becoming a psychic/healer. Her entire past roles and relevant work history have consisted of being same. Olivia Evans has no prior criminal convictions and/or history. There is no evidence or representations indicating that drug abuse or alcoholism are relevant factors. (c) Role Assessment/Specific Offense Characteristics: Based upon

information provided by the Government to probation in furtherance of preparing the PSR, since the date of the Change of Plea hearing on September 2, 2011, the total loss amount with regard to Olivia Evans has allegedly increased to a range of loss of more than Four Hundred Thousand Dollars ($400,000.00) but not more than One Million Dollars ($1,000,000.00); thereby increasing the base offense level by an additional fourteen (14) levels, rather than a 10-level increase as represented through the facts accepted at the time of the Change of Plea hearing in this matter;

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namely, reflecting a range of more than One Hundred Twenty Dollars ($120,000.00) but not more than Two Hundred Thousand Dollars ($200,000.00), pursuant to 2B1.1 (b)(1)(F). Specifically, the PSR

indicates that Olivia Evans defrauded Lisa Sullivan of Four Hundred Two Thousand Seven Hundred Nine Dollars and Fifty-One Cents

($402,709.51). Under similar circumstances, it is cited in the Eleventh Circuit case of United States v. Smith, 181 Fed.Appx. 898 (2006), a securities fraud case in which the defendant plead guilty pursuant to a plea agreement to all counts in the information, the defendant objected to the amount of the loss indicated in the PSR, over Five Billion Dollars ($5,000,000,000.00), and urged the court to find the loss at Three Hundred Twenty-seven Million Dollars ($327,000,000.00) which, allegedly, was more reflective for his particular relevant conduct to the facts presented in the case up until the time of the change of plea in the matter. The District Court sustained defendants objection, finding the loss at the latter figure. Id. Understanding that the total loss amount set forth in the Plea Agreement is not binding on the probation office or the Court, equitable considerations should be made. Defendant entered the change of plea in good faith based upon the representations of the facts, including total loss, as set forth and established during the discovery and negotiation phase of litigation, including what was known at the time of the change of plea in this matter. Further, 1B1.3 (a) (1)(B) and its commentary provide that a

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compilation of the base offense level for a defendant who participated in a jointly undertaken criminal activity should include all reasonably foreseeable acts and omissions of others involved in the jointly undertaken criminal activity. In United States v. Studley, 47 F.3d 569, 574 (2d Cir. 1995) the court interpreted the Guideline and commentary to require the district court to make two specific findings; namely, (1) that the acts were within the scope of the defendants agreement, and (2) that they were foreseeable to the defendant. The facts of the case at hand do not support the fact that Olivia Evans joined in a particular agreement with co-defendants Pollie Evans and Bridgette Evans with respect to other alleged victims listed in the Indictment with the exception of Lisa Sullivan. Lisa Sullivan is the only listed victim linked factually to Olivia Evans. Therefore, it is the Defendants contention that Olivia should be considered for an adjustment downward considering her role in the offense, and not considered for an upward departure with respect to the specific offense characteristics and/or total loss encompassing the activities of the codefendants due to the lack of evidence linking Olivia Evans to same through specific agreements and due to the fact that specific schemes involving other unrelated victims were not in fact foreseeable to Olivia Evans. The facts do support, however, with reference to victim Lisa Sullivan, Pollie Evans did contribute or join in as to contact Lisa Sullivan and engage in specific transactional arrangements involving money sent

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by way of Western Union to Pollie Evans in Fort Lauderdale, Florida on June 13, 2008. The PSR apparently does not seek to hold Olivia Evans cumulatively responsible for the losses attributed to other victims of the conspiracy wherein the facts support involvement with only co-defendants Pollie Evans and/or Bridgette Evans. The Defendant respects this finding by probation in that it did not calculate the aggregate loss in this case or recommend to this Court to find Olivia Evans responsible for alleged total losses of more than One Million Dollars ($1,000,000.00). See also,

United States v. Reese, 67 F.3d 902 (11th Cir. 1995); U.S. v. Hunter, 323 F.3d 1314(11th Cir. 2003). (d) Personal and family data: (i) As stated hereinabove, Olivia Evans will be entering her eighth month or pregnancy at the time of sentencing in this matter. The possible sentence imposed by this Honorable Court includes incarceration. The bond that develops between a mother and child, once born, is immediate and must continue to be nurtured. Common sense, as well as psychological and sociological studies have indicated that the mother-child bond begins with the cutting of the umbilical cord, whereby physical attachment ends and emotional and psychological attachment begins. The Bond

Between Mother and Child, American Psychological Association, Beth Azar. While the first attachment provides everything we

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need to thrive inside the womb, many psychologists believe the second attachment provides the psychological foundational and maybe even the social and physical buffer we need to thrive in the world. Id. It is clear from the related data that many researchers have found clear correlations between secure mother and infant attachment and later psychological and social development. Id. From birth to one year, an infant psychologically resolves the conflicts between two concepts; namely, trust and mistrust, and to do so in a positive manner, the child must develop a sense of security. Id. Studies reveal that fathers and other caring relatives can supply much necessary love and security; however, there is a common intangible factor that even escapes science, and that lies with the mother-infant bond. Currently, Olivia is experiencing difficulties with her estranged husband. Though they have joint custody of a three-year old child, Olivia is the primary custodial parent, and acts as a constant source of love and security within a family relationship that has been unsteady and unpredictable over the past year. To deprive the children of this attachment would create catastrophic and traumatic consequences for each child. Id. (See also attachments, The

Origins of Attachment Theory:, John Bowldy and Mary Ainsworth, Published in Developmental Psychology (1992)), 28, 759-775, by

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Inge Pretherton; and Known Consequences of Separating Mother and Child At Birth And Implications For Further Study, by Wendy Jacobs, B.Sc.B.A As stated hereinabove, and also cited in the PSR, Olivia Evans was born and later adopted within the Romany gypsy culture in the United States. Gypsies are considered modern day nomads. Olivia was born into this culture and was removed from school in the fifth grade and briefly home schooled thereafter. At the age of five, she was taught by her adoptive mother the

art of psychic mysticism. Romany gypsies are widely recognized as an ethnic group. In the modern world, most partake in odd jobs and certain trades that can be readily transferred in light of their nomadic lifestyle. Females quite often become involved in mysticism, psychic reading and healing. Such an endeavor is not per se illegal or immoral.

Arguably, psychics, mystics, and fortune tellers bestow comfort, counsel, conversation, hope and direction to wayward souls, much like mainstream mental social workers and psychologists. Philosophically, one can argue a distinction between lifestyle by birth and lifestyle by choice. Central to this issue is whether or not the psychic practice is a trait that is immutable within the culture, and therefore the individual partaking in same cannot distinguish

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between legal boundaries concerning modern social norms and mysticism. By no means, through this discussion, are we indicating that Olivia Evans had no intention or is not guilty of the offense to which she plead on September 2, 2011. We are simply requesting that this Honorable Court consider the culture from which she developed and which had its effect on her principles and moral bearings. It is widely documented that children from these nomadic communities experience the lowest levels of education and achievement, and as a result have a long history of educational underachievement. See, Policy, Space and Education of the

Gypsy/Traveler And Roma Children in Europe, David Cudworth, June 2010, citing, Liegois, 1998. Gypsy children often lack the ability to integrate due to their inability to adapt to the life of school due to the school environment being antithetical with the everyday lives of their homes and communities. Id. , citing Forray, 2003. This mismatch between home and school is symbolized between a difference between a nomadic way of life and a sedentary one. Id. It is also important to consider that this

nomadic lifestyle is dictated by the male-dominated community within the culture. Even more intriguing is the fact that the

community elders, all males, control the movement of the families within the nexus.

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(e) Olivia Evans role in the offense: Based upon the facts supporting the facts set forth in the superseding Indictment, as well as probations insight into same, it has been revealed that co-defendant Bridgette Evans, a/k/a Susan Meyers, Tina Moore and Kiana Moore, defrauded seven victims; including, Carol Webster, Joy Kahlenberg, Munier Siriani, Robert Lutgen, Joan DeCarli, and Dane Tran. Co-defendant Pollie Evans, a/k/a Polly Evans, defrauded four victims; including Timothy Smith, Nekisha Davis, Jullian Abbott, and shares responsibility with defendant Olivia Evans with defrauding Lisa Sullivan. In United States v. Smart, 518 F.3d 800 (10th Cir. 2008), where the defendant was convicted after trial of inducing a minor to engage in sexually explicit conduct for the purpose of producing video tapes, there was a significant guideline reduction after the defendants sentence due to the facts revealing that the defendant was less culpable than co-defendant who received a lower sentence for apparently pleading guilty prior to trial. Olivia Evans is significantly younger than co-defendants Bridgette Evans and Pollie Evans. Pollie Evans is Olivia Evans mother-in-law, and Olivia blames Pollie for causing problems in her marriage. See, PSR Page 17, Paragraph 62 and 66. Olivia Evans is young and impressionable, and is fully entrenched in the gypsy culture. She is the youngest female in a household of elder women and men. Olivia Evans is responsible for defrauding Lisa Sullivan in this case. Olivia Evans reported providing

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most of the monies received as a result of the fraud to co-defendant Pollie Evans. See, PSR Page 19, Paragraph 70. (f) First conviction justifies downward variance: Olivia Evans has zero

criminal history points and a criminal history Category I (Chapter 5, part A). Therefore, Olivia Evans respectfully requests that this Court grant her a variance based, in part, on the fact that she is a first-time offender with no criminal history whatsoever. See, United States v. Paul, 561 F.3d 970 (9th Cir. 2009); United States v. Autery 555 F.3d 864 (9th Cir. 2009) The Court in Paul reasoned that because the defendant was a first-time offender with absolutely no criminal history whatsoever, a belowguideline sentence was justified as being more than just in consideration of 3553s directive that the sentence reflect the need for just punishment, Id. 3553(a)(2)(A), and adequate deterrents, Id., 3553 (a)(2)(B). (g) Imprisonment inappropriate for first offender if crime not violent: 28 USC 994 (j) stresses that the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense should be considered. U.S. v. Polito, 215

F.Appx. 354, 2007 W.L.313463 (5th Cir. Jan. 31, 2007)(unpub.); U.S. v. White, 506 F.3d 635 (8th Cir. 2007). (h) Olivia Evans behaved exceedingly well under Pretrial Services supervision: There was no hint of possible violation of Olivia Evans

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while on Pretrial Services supervision in this matter. This fact should indicate that the Defendant is unlikely to reoffend and is remorseful, embarrassed, and apologetic with respect to her acts in this matter. See, U.S. v. Munoz-Nava, 524 F.3d 1137 (10th Cir. 2008). (i) Olivia Evans is a good parent: Olivia Evans is currently the primary custodial parent of a three-year-old boy, and again, will be entering her eighth month of pregnancy at the time of sentencing in this matter. Olivia Evans is a good parent, and intends to fashion a lifestyle outside the gypsy culture in order to give her children a chance to assimilate into modern American culture and choose their own path in life, education, and substantial gainful employment. U.S. v. Pauley 511 F.3d 468 (4th Cir. 2007). (j) Olivia Evans made a bad mistake and used bad judgment and the need to enable her to make restitution is paramount: Olivias involvement in the outlined scheme to defraud and the subsequent arrest and prosecution is a lesson learned. She is a young, unsophisticated, and impressionable woman and to incarcerate her would be the type of punishment for which the Guidelines were not designed to address. The need for Olivia to remain at liberty, become gainfully employed, and earn money in order to pay restitution to the victims in this matter is paramount. See, U.S. v. Hadash, 408 F.3d 1080, 1084 (8th Cir. 2005); U.S. v. Autery, supra. (k) Olivia Evans is unlikely to reoffend or pose a danger to the community and home confinement and/or probation with substantial community

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service is sufficient to address a just sentence in this matter:

Based

upon a combination of the issues set forth hereinabove, Olivia Evans should be considered very unlikely to reoffend and pose a danger to the public after experience as a defendant in this prosecution. A supervision sentence of home confinement and/or probation with substantial community service should be sufficient in light of the allegations set forth above and the conditions surrounding the Defendant in this case. See, Autery, supra; and U.S. v. Koughlin, 2008 WL 313099 (W.D. Ark. February 1, 2008) (unpub.). CONCULSION After considering the totality of the circumstances in the case at bar, Olivia Evans requests mercy and consideration of a below-guideline sentence of a non-prison sanction through a showing of mercy by this Honorable Court. Justice Kennedy, in his ABA speech of 2003 stated, A country which is secure in its institutions, confident in its laws should not be ashamed of the concept of mercy. I HEREBY CERTIFY that a true and correct copy of the foregoing has been electronically filed using CM/ECF this 8th day of November 2011 and furnished to all Parties of Record. VOLUCK & MERLINO, P.L. 101 N. E. Third Avenue, Suite 1430 Fort Lauderdale, Florida 33301 Telephone: 954-745-7497 Facsimile: 954-745=7698 E-Mail : richmerlinoesq@gmail.com /s/ Richard A. Merlino Richard A. Merlino Florida Bar No.: 0977640
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