Opinion
Docket No. CR 11-0405(C)-TJH
05-15-2013
UNITED STATES OF AMERICA v. ANDREA LORRAINE AVERY Defendant
Anthony Brooklier, retained
akas: Eileen Burka; Donna Browning; Rene Bell
Social Security No. 4781
(Last 4 digits)
JUDGMENT AND PROBATION/COMMITMENT ORDER
In the presence of the attorney for the government, the defendant appeared in person on this date. 05/13/2013 COUNSEL [x] WITH COUNSEL Anthony Brooklier, retained(Name of Counsel) PLEA [x] GUILTY, and the court being satisfied that there is a factual basis for the plea. [ ] NOLO CONTENDERE [ ] NOT GUILTY FINDING There being a finding/verdict of [x] GUILTY, defendant has been convicted as charged of the offense(s) of: Bank Fraud, Aiding & Abetting Causing Act to be Done in violation of Title 18 United States Code, Section 1344(2) 2(a), as charged in the Counts 1-13 of the Trial Indictment. False Statement to Bank, Aiding & Abetting Causing Act to Be Done in violation of Title 18 United States Code, Section 1014(2), 2(a), as charged in the Counts 14-15 of the Trial Indictment. JUDGMENT AND PROB/COMM ORDER The Court asked whether there was any reason why judgment should not be pronounced. Because no sufficient cause to the contrary was shown, or appeared to the Court, the Court adjudged the defendant guilty as charged and convicted and ordered that: Pursuant to the Sentencing Reform Act of 1984, it is the judgment of the Court that the defendant is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a term of: Eighty-eight (88) months. The Court ORDERS the defendant to pay to the United States a special assessment of $1,500.00, to the Clerk of the Court, which is due immediately. It is ordered that the defendant shall pay restitution in the total amount of $3,014,684.49 pursuant to 18 U.S.C. § 3663A. The amount of restitution ordered shall be paid as follows:
+-------------------------------+ ¦Victim ¦Amount ¦ +-----------------+-------------¦ ¦Bank of America ¦$2,008,321.15¦ +-----------------+-------------¦ ¦Wells Fargo Bank ¦$1,006,363.31¦ +-------------------------------+ If the defendant makes a partial payment, each payee shall receive approximately proportional payment unless another priority order or percentage payment is specified in this judgment. Restitution shall be due during the period of imprisonment, at the rate of not less than $25 per quarter, and pursuant to the Bureau of Prisons' Inmate Financial Responsibility Program. If any amount of the restitution remains unpaid after release from custody, nominal monthly payments of at least 10 percent of defendants's gross monthly income, but not less than $100, whichever is greater, during the period of supervised release. These payments shall begin 30 days after the commencement of supervision. Nominal restitution payments are ordered as the court finds that the defendant's economic circumstances do not allow for either immediate or future payment of the amount ordered. Pursuant to 18 U.S.C. § 3612(f)(3)(A), interest on the restitution ordered is waived because the defendant does not have the ability to pay interest. Payments may be subject to penalties for default and delinquency pursuant tot 18 U. S. C. § 3612(g). The defendant shall be held jointly and severally liable with co-participants, Charles Kirkland (Docket No. CR 11-00405(C)-TJH), Annita Hawes (Docket No. CR 11-00405(B)-MMM), Bill James Releford Jr. (Docket No. CR 11-00405(A)-TJH, William Earl Gordon (Docket CR 11-00405-MMM), and James Arthur Booker (Docket No. CR 11-00405-MMM), for the amount of restitution ordered in this judgment. The victims' recovery is limited to the amount of their loss and the defendant's liability for restitution ceases if and when the victims receive full restitution. The defendant shall comply with General Order No. 01-05. Pursuant to Guideline Section 5E1.2(a), all fines are waived as the Court finds that the defendant has established that she is unable to pay and is not likely to become able to pay any fine in addition to restitution. Pursuant to the Sentencing Reform Act of 1984, it is the judgment of the Court that the defendant, ANDREA LORRAINE AVERY, is, hereby, committed on Counts 1 through 15 of the Amended Trial Indictment to the custody of the Bureau of Prisons to be imprisoned for a term of 88 months. This term consists of 88 months on each of Counts 1 through 15 of the Amended Trial Indictment, all to be served concurrently. Upon release from imprisonment, the defendant shall be placed on supervised release for a term of THREE years. This term consists of three years on each of Counts 1 through 15, all such terms to run concurrently, under the following terms and conditions: 1. The defendant shall comply with the rules and regulations of the U.S. Probation Office, General Order 05-02, and General Order 01-05, including the three special conditions delineated in General Order 01-05. 2. During the period of community supervision the defendant shall pay the special assessment and restitution in accordance with this judgment's orders pertaining to such payment. 3. The defendant shall apply all monies received from income tax refunds, lottery winnings, inheritance, judgments and any anticipated or unexpected financial gains to the outstanding court-ordered financial obligation. 4. The defendant shall not be employed by, affiliated with, own or control, or otherwise participate, directly or indirectly, in the conduct of the affairs of any financial institution insured by the Federal Deposit Insurance Corporation. 5. The defendant shall not obtain or possess any driver's license, Social Security number, birth certificate, passport or any other form of identification in any name, other than the defendant's true legal name; nor shall the defendant use, for any purpose or in any manner, any name other than her true legal name or names without prior written approval of the Probation Officer. 6. The defendant shall not engage, as whole or partial owner, employee, consultant, or otherwise, in any business involving loan programs, investment programs or any other business involving the solicitation of funds or cold-calls to customers without the express approval of the Probation Officer prior to engagement in such employment. Further, the defendant shall provide the Probation Officer with access to any and all business records, client lists and other records pertaining to the operation of any business owned, in whole or in part, by the defendant, as directed by the Probation Officer. 7. The defendant shall cooperate in the collection of a DNA sample from the defendant. It is ordered that the defendant surrender herself to the institution designated by the Bureau of Prisons on or before 12 noon, on JUNE 24, 2013. In the absence of such designation, the defendant shall report on or before the same date and time, to the United States Marshal located at the Roybal Federal Building, 255 East Temple Street, Los Angeles, California 90012. The drug testing condition mandated by statute is suspended based on the Court's determination that the defendant does not pose a risk. Bond is ordered exonerated upon surrender. On the Government's motion, all remaining counts on underlying indictment, are ordered dismissed. The Court informs the defendant of her right to appeal. Justification is as stated today on the record. In addition to the special conditions of supervision imposed above, it is hereby ordered that the Standard Conditions of Probation and Supervised Release within this judgment be imposed. The Court may change the conditions of supervision, reduce or extend the period of supervision, and at any time during the supervision period or within the maximum period permitted by law, may issue a warrant and revoke supervision for a violation occurring during the supervision period.
Terry J. Hatter, Jr., U. S. District Judge It is ordered that the Clerk deliver a copy of this Judgment and Probation/Commitment Order to the U.S. Marshal or other qualified officer.
Terry Nafisi, Clerk of U.S. District Court
By _______________
Deputy Clerk
The defendant shall comply with the standard conditions that have been adopted by this court (set forth below).
STANDARD CONDITIONS OF PROBATION AND SUPERVISED RELEASE
While the defendant is on probation or supervised release pursuant to this judgment:
1. The defendant shall not commit another Federal, state or local crime; 2. the defendant shall not leave the judicial district without the written permission of the court or probation officer; 3. the defendant shall report to the probation officer as directed by the court or probation officer and shall submit a truthful and complete written report within the first five days of each month; 4. the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer; 5. the defendant shall support his or her dependents and meet other family responsibilities; 6. the defendant shall work regularly at a lawful occupation unless excused by the probation officer for schooling, training, or other acceptable reasons; 7. the defendant shall notify the probation officer at least 10 days prior to any change in residence or employment; 8. the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any narcotic or other controlled substance, or any paraphernalia related to such substances, except as prescribed by a physician; 9. the defendant shall not frequent places where controlled substances are illegally sold, used, distributed or administered; 10. the defendant shall not associate with any persons engaged in criminal activity, and shall not associate with any person convicted of a felony unless granted permission to do so by the probation officer; 11. the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view by the probation officer; 12. the defendant shall notify the probation officer within 72 hours of being arrested or questioned by a law enforcement officer; 13. the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court; 14. as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant's criminal record or personal history or characteristics, and shall permit the probation officer to make such notifications and to conform the defendant's compliance with such notification requirement; 15. the defendant shall, upon release from any period of custody, report to the probation officer within 72 hours; 16. and, for felony cases only: not possess a firearm, destructive device, or any other dangerous weapon. X The defendant will also comply with the following special conditions pursuant to General Order 01-05 (set forth below).
STATUTORY PROVISIONS PERTAINING TO PAYMENT AND COLLECTION OF FINANCIAL SANCTIONS
The defendant shall pay interest on a fine or restitution of more than $2,500, unless the court waives interest or unless the fine or restitution is paid in full before the fifteenth (15th) day after the date of the judgment pursuant to 18 U.S.C. §3612(f)(1). Payments may be subject to penalties for default and delinquency pursuant to 18 U.S.C. §3612(g). Interest and penalties pertaining to restitution , however, are not applicable for offenses completed prior to April 24, 1996.
If all or any portion of a fine or restitution ordered remains unpaid after the termination of supervision, the defendant shall pay the balance as directed by the United States Attorney's Office. 18 U.S.C. §3613.
The defendant shall notify the United States Attorney within thirty (30) days of any change in the defendant's mailing address or residence until all fines, restitution, costs, and special assessments are paid in full. 18 U.S.C. §3612(b)(1)(F).
The defendant shall notify the Court through the Probation Office, and notify the United States Attorney of any material change in the defendant's economic circumstances that might affect the defendant's ability to pay a fine or restitution, as required by 18 U.S.C. §3664(k). The Court may also accept such notification from the government or the victim, and may, on its own motion or that of a party or the victim, adjust the manner of payment of a fine or restitution-pursuant to 18 U.S.C. §3664(k). See also 18 U.S.C. §3572(d)(3) and for probation 18 U.S.C. §3563(a)(7).
Payments shall be applied in the following order:
1. Special assessments pursuant to 18 U.S.C. §3013;
2. Restitution, in this sequence:
Private victims (individual and corporate),3. Fine;
Providers of compensation to private victims,
The United States as victim;
4. Community restitution, pursuant to 18 U.S.C. §3663(c); and
5. Other penalties and costs.
SPECIAL CONDITIONS FOR PROBATION AND SUPERVISED RELEASE
As directed by the Probation Officer, the defendant shall provide to the Probation Officer: (1) a signed release authorizing credit report inquiries; (2) federal and state income tax returns or a signed release authorizing their disclosure and (3) an accurate financial statement, with supporting documentation as to all assets, income and expenses of the defendant. In addition, the defendant shall not apply for any loan or open any line of credit without prior approval of the Probation Officer.
The defendant shall maintain one personal checking account. All of defendant's income, "monetary gains," or other pecuniary proceeds shall be deposited into this account, which shall be used for payment of all personal expenses. Records of all other bank accounts, including any business accounts, shall be disclosed to the Probation Officer upon request.
The defendant shall not transfer, sell, give away, or otherwise convey any asset with a fair market value in excess of $500 without approval of the Probation Officer until all financial obligations imposed by the Court have been satisfied in full.
These conditions are in addition to any other conditions imposed by this judgment.
RETURN
I have executed the within Judgment and Commitment as follows: Defendant delivered on _______________ to _______________ Defendant noted on appeal on _______________ Defendant released on _______________ Mandate issued on _______________ Defendant's appeal determined on _______________ to _______________ Defendant delivered on _______________ to _______________ at _______________ the institution designated by the Bureau of Prisons, with a certified copy of the within Judgment and Commitment.
United States Marshal
By _______________
Deputy Marshal
CERTIFICATE
I hereby attest and certify this date that the foregoing document is a full, true and correct copy of the original on file in my office, and in my legal custody.
Clerk, U.S. District Court
By _______________
Deputy Clerk
FOR U.S. PROBATION OFFICE USE ONLY
Upon a finding of violation of probation or supervised release, I understand that the court may (1) revoke supervision, (2) extend the term of supervision, and/or (3) modify the conditions of supervision.
These conditions have been read to me. I fully understand the conditions and have been provided a copy of them.
(Signed) _______________
Defendant
_______________
U. S. Probation Officer/Designated Witness