olivia evans leniency

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 1:11-CR-60078-WPD-3

UNITED STATES OF AMERICA, Plaintiff, vs. OLIVIA EVANS, Defendant. _______________________________/

DEFENDANT’S 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

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

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

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(b) to afford adequate deterrence to criminal conduct;

(c) to protect the public from further crimes of the defendant; and, (d) 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) “The kinds of sentences available”;

(3) “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 court’s 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

Government’s 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 , 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

Case 0:11-cr-60078-WPD Document 101 Entered on FLSD Docket 11/08/2011 Page 6 of 18

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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


8

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.

Olivia’s 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 defendant’s 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 defendant’s 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 Defendant’s 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 co-

defendants 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 Evan’s role in the offense: Based upon the facts supporting the

facts set forth in the superseding Indictment, as well as probation’s 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 defendant’s 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 below-

guideline sentence was justified as being more than just in consideration

of § 3553’s 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: Olivia’s 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 : [email protected] /s/ Richard A. Merlino . Richard A. Merlino Florida Bar No.: 0977640


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