United States of America v. Evette Merritt Parker

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 07-2463
UNITED STATES OF AMERICA
v.
EVETTE MERRITT PARKER,*
Appellant
*(Amended per Clerk’s Order of 8/30/07)
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 06-cr-00463-1)
District Judge: Honorable Robert B. Kugler
Submitted Under Third Circuit LAR 34.1(a)
October 22, 2007
Before: SLOVITER, CHAGARES, and HARDIMAN, Circuit Judges
(Filed October 24, 2007 )
_____
OPINION

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SLOVITER, Circuit Judge.
Evette Merritt Parker (“Parker”) pleaded guilty to one count of embezzling more
than $1,000 from the United States in violation of 18 U.S.C. §§ 641 and 2 and one count
of conspiracy to do the same in violation of 18 U.S.C. § 371. She was sentenced, in
principal part, to a ten-month term of imprisonment on each count, to run concurrently.
Parker now appeals, challenging the District Court’s findings at sentencing. Specifically,
she contends that the District Court improperly relied on hearsay evidence lacking
sufficient indicia of reliability and that it erred in finding that the offense involved ten or
more victims and a loss of more than $30,000. We will affirm.
I.
In 2003, agents from the Treasury Inspector General for Tax Administration Office
(“TIGTA”) discovered that at least fourteen different taxpayers’ refunds had been
electronically deposited into bank accounts maintained by Parker and her son, George
Merritt III (“George”). Subsequent interviews with most of those taxpayers revealed that
Parker had filed the taxpayers’ tax returns in 2001 and 2002, but had never given the
subsequent refunds to their rightful owners. In March of 2005, TIGTA agents made
initial contact with Parker and George, both of whom denied any wrongdoing. They were
formally charged in June of 2006. Parker entered her guilty plea on October 31, 2006.
At her plea allocution, Parker confirmed the following facts: In 2002 and 2003, she
was self-employed as a preparer of income tax returns. Parker agreed to complete and

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file her clients’ tax returns so that they would receive their refunds via checks mailed to
their addresses. Instead, she filed the tax returns fraudulently, claiming that her clients
authorized their tax refunds to be electronically deposited into bank accounts maintained
by her and/or George. After the refunds were deposited into those accounts, Parker and
George converted the refunds to their own use by withdrawing, transferring and spending
the funds.
In its presentence report (“PSR”), the Probation Office concluded that Parker’s
crime had fourteen known victims and resulted in a loss of greater than $30,000. Parker
conceded the existence of at least seven victims, but argued that she had impacted fewer
than ten victims and that the combined loss of her actual victims was less than $30,000.
The government, meanwhile, conceded that three taxpayers listed as victims in the
presentence report were not victims, but maintained that the other eleven taxpayers were
victims. Thus, the central dispute at sentencing concerned the status of four individuals--
Henrietta Roher (“Roher”), Janine Hughes-McCants (“McCants”), Ovetta Merritt
(“Ovetta”), and Kimberly Kearse (“Kearse”)--whose refunds were indisputably deposited
into Parker’s accounts, but who otherwise are the subject of conflicting evidence.
Parker’s sister, Vernetta Merritt (“Vernetta”), testified that she visited Roher on an
unspecified date shortly before Parker’s sentencing. She stated that Roher was mentally
unstable and quite ill, but that Roher was breathing all right and did not have a weak
voice. Vernetta testified that Roher stated that Parker had never done her any wrong, that

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she had asked Parker to do her taxes, and that she had received a $3,888 refund in 2000 or
2001. Although Roher was afraid to come to court, she agreed to write a letter, stating the
above, and Roher directed her daughter to write a letter to Parker’s attorney, which she
then signed multiple times (in varying states of legibility) because she was having
difficulty writing. Roher’s letter, dated April 17, 2007, was provided to the District Court
before sentencing.
The government’s witness, TIGTA agent Elizabeth Pappaceno (“Agent
Pappaceno”), testified that she attempted to interview Roher in 2003, but Roher declined
to get involved with the investigation. After learning of Roher’s letter, Agent Pappaceno
conducted a ten-minute phone interview with Roher on April 23, 2007, and a thirty-
minute in-person interview with Roher on April 25, 2007. Roher told Agent Pappaceno
that when Vernetta came to her house on April 19, 2007, she hadn’t been aware of what
she was signing and had just taken her medication. Roher stated that her daughter wrote
the letter, that she didn’t know the contents of the letter, and that she only signed it
because she wanted to get Vernetta out of her house so she could take a nap. Roher stated
that she never received her refund.
Following the presentation of this evidence, the District Court commented that this
was a “very strange case,” but that it “credit[ed] the testimony of the agent that [Roher]
did tell the agent what the agent has written and testified about.” App. at 80. The District
Court found by a preponderance of the evidence that Roher was a victim of Parker’s

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crime.
Agent Pappaceno and Vernetta also testified about their interactions with
McCants. Agent Pappaceno testified that in an interview conducted on August 6, 2003,
McCants stated that Parker had prepared her taxes and that she was expecting a tax
refund. McCants had planned to move into Parker’s apartment building with that refund,
but she never moved into the building or received her refund.
Vernetta testified that McCants approached her at some unspecified date before
Parker’s sentencing to inform her that the government had offered her additional money
to say that she had not received her refund, and that although McCants was afraid to
testify, she offered to write a letter stating that she had received her tax money in a timely
fashion as a result of living in one of Parker’s apartments. (On cross-examination,
however, Vernetta conceded that she did not know whether McCants ended up living in
one of Parker’s apartments.) Although Vernetta was present when McCants wrote her
letter, Vernetta did not dictate the letter; rather she “just asked her the questions and asked
her would she answer those questions.” App. at 71. The letter states that McCants let
Parker deposit her refund in Parker’s account because she was about to rent an apartment
from her in 2002 and that she received her tax refund of $3,950 in that same year. In
addition, Parker’s attorney stated that McCants told her that she had received her tax
refund money from Parker.
With respect to McCants, the District Court concluded, “I don’t know what to

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The government contends that the $4,000 check was a1
belated attempt by George and Parker to provide Ovetta her refund.
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think because she did send this letter to Miss Singer, addressed to Anne Singer [defense
counsel]. And the witness explained how it -- that all came about, in which she said that
she received her tax refund in 2002. That doesn’t jibe with what she told the agent in this
matter.” App. at 80. The District Court found by a preponderance of the evidence that
McCants was a victim of Parker’s crime.
Ovetta is another one of Parker’s sisters. Agent Pappaceno testified that she first
came into contact with Ovetta at the same time she made initial contact with George. At
that meeting, Ovetta instructed George not to speak to the government agents. Ovetta
then appeared at George’s guilty plea on February 23, 2007, and was interviewed by
Agent Pappaceno and Agent Gary. At that interview, Ovetta stated that Parker had
prepared a past tax return for her, but that she did not remember getting her refund.
However, Ovetta also said that George and Parker never took anything from her and that
she was not aware that she was owed anything by them. Finally, Ovetta denied having
received a $4,000 check from George.1
Prior to sentencing, Ovetta sent a letter to the District Court referring to her
“manipulating and misleading” answers during the interview with Agents Pappaceno and
Gary. App. at 33. She stated that Parker never took any money from her and that she was
“not entitled to any reimbursements whatsoever.” App. at 33. At the sentencing

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proceeding, Ovetta offered testimony directly contradicting her previous statements to the
investigators: (1) that Parker gave her a $3,800 cash refund from her 2000 tax return
when it arrived in 2001, and (2) that she recalled the circumstances of the $4,000 check,
which she was supposed to give to another of Parker’s victims.
Following its own examination of Ovetta, the District Court concluded that
“Ovetta Merritt’s testimony is not credible in any way, shape or form. And I don’t give
any credence to what she has said in this courtroom. I think that her explanation of the
$4,000 is frankly ridiculous. And she did, in fact, mislead or attempt to mislead the
agents in this matter on numerous occasions.” App. at 80. The District Court found by a
preponderance of the evidence that Ovetta was a victim of Parker’s crime.
Finally, the parties argued briefly about whether Kearse was a victim. The IRS
deposited Kearse’s $2,372 refund into Parker’s account, and Kearse told the agents that
she received a cashier’s check from Parker some months later in the partial amount of
$2,300. At sentencing, Parker argued that the missing $72 could have been retained as
payment for Parker’s services or to satisfy some other debt. Nevertheless, the District
Court found by a preponderance of the evidence that Kearse was a victim, stating: “Just
because she was given some money back by the evidence doesn’t mean that she’s not a
victim under the Sentencing Guidelines.” App. at 80.
Having found that Roher, McCants, Ovetta, and Kearse were victims, the District
Court increased Parker’s offense level by six points for causing a loss between $30,000

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The District Court had jurisdiction over this action pursuant2
to 18 U.S.C. § 3231. This court has jurisdiction pursuant to 18
U.S.C. § 3742(a) and 28 U.S.C. § 1291.
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and $70,000, see U.S.S.G. § 2B1.1(b)(1)(D), and by two points for impacting ten or more
victims, see U.S.S.G. § 2B1.1(b)(2)(A)(i). The District Court found that Parker had a
total offense level of 12 and a criminal history category of I, placing her in a Guidelines
range of 10 to 16 months imprisonment. After considering the factors set forth in 28
U.S.C. § 3553(a), the District Court sentenced Parker to 10 months imprisonment on each
count, to be served concurrently. Parker timely appealed.2
II.
The admissibility of hearsay evidence relied upon at sentencing is a question of
law, and is subject to plenary review. See United States v. Brothers, 75 F.3d 845, 848 (3d
Cir. 1996). “With respect to the district court’s findings of fact, the government bears the
burden of proof by a preponderance of the evidence.” Id. The court of appeals reviews
those “findings to determine whether they are clearly erroneous.” Id.
III.
Parker contends that the hearsay testimony of Roher and McCants did not have
sufficient indicia of reliability to support its probable accuracy because the statements
relied upon by the District Court were uncorroborated and directly contradicted by other
hearsay testimony of those same declarants. Moreover, she argues that the District Court
did not sufficiently explain why it credited one hearsay account over another.

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“Hearsay is fully admissible at a sentencing hearing, so long as it has sufficient
indicia of reliability.” United States v. Brigman, 350 F.3d 310, 315 (3d Cir. 2003). This
standard for the admissibility of evidence protects the defendant’s due process rights, see
United States v. Paulino, 996 F.2d 1541, 1547 (3d Cir. 1993), and “should be applied
rigorously.” United States v. Miele, 989 F.2d 659, 664 (3d Cir. 1993). The existence of
inconsistency alone does not deprive a hearsay statement of sufficient indicia of
reliability, however, and the district court may even “credit hearsay evidence over sworn
testimony, especially where there is other evidence to corroborate the inconsistent hearsay
statement.” Id.
The facts of this case reveal a specific pattern of criminal behavior. Upon filing
her clients’ tax returns, Parker directed the IRS to deposit those clients’ refunds into bank
accounts maintained by Parker and her co-defendant son. She then converted some or all
of the proceeds from those refunds to her own use. Parker does not contest or rebut the
sworn testimony of former clients asserting that they did not authorize Parker to deposit
their refunds into Parker’s bank accounts and that Parker never transferred the proceeds
from those refunds to them. Rather, in an attempt to dispute that there is a pattern of
criminal conduct here, Parker offers the unsworn testimony of several former clients
asserting that they received their refunds from Parker after those refunds had been

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Parker’s sister Ovetta is the only one of Parker’s former3
clients to have offered sworn testimony that Parker returned a
refund. However, Ovetta’s testimony was contradicted by her early
statements to the TIGTA agents and not credited by the District
Court, which deemed it “ridiculous.” We defer to the District
Court’s credibility determination here, as it is not clearly erroneous.
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deposited into Parker’s account. Nevertheless, the sworn testimony of multiple victims,3
combined with the facts admitted to at Parker’s guilty plea, comprise circumstantial
evidence that the tax refunds deposited into the bank accounts controlled by Parker were
not turned over to her clients. This evidence corroborates the hearsay testimony relied
upon by the District Court at sentencing.
In addition, the statements of Roher and McCants to the government regarding
Parker’s failure to give them their refunds are factually consistent with the sworn
testimony of the conceded victims. See United States v. Berry, 258 F.3d 971, 976 (9th
Cir. 2001) (“One factor evidencing the reliability of hearsay statements . . . is external
consistency.”). Roher’s testimony was consistent on the two separate occasions she spoke
with Agent Pappaceno and explains, rather than contradicts, the circumstances of
Vernetta’s visit and Roher’s nearly illegible signature. Cf. United States v. Leekins, 493
F.3d 143, 151 (3d Cir. 2007) (concluding that the “detail and internal consistency” of
police report, “together with the other corroborating material, provide sufficient indicia of
the reliability of the officers’ version of the shooting”). Moreover, Roher and McCants
were aware that Agent Pappaceno’s questions were asked in the course of a criminal

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investigation, and they had every incentive not to be dishonest and open themselves up to
charges of making false statements. Indeed, Vernetta testified that both women were
afraid to come to court to offer sworn testimony in Parker’s defense. Thus, despite the
contradictory hearsay testimony solicited by Parker and her sister, the statements of Roher
and McCants to the government had “sufficient indicia of reliability to support [their]
probable accuracy.” U.S.S.G. § 6A1.3(a).
This result is not inconsistent with the court’s decisions in Brothers and Miele.
Most importantly, in both those cases the district court relied on a hearsay statement that
was directly contradicted by the declarant’s own sworn testimony, without accounting for
the discrepancy. See Brothers, 75 F.3d at 847; Miele, 989 F.2d at 662, 666. In neither
case was there any evidence corroborating the hearsay statement upon which the district
court based its finding. See Brothers, 75 F.3d at 849; Miele, 989 F.2d at 665. Further, we
emphasized the declarant’s demonstrated lack of credibility in both cases. See Brothers,
75 F.3d at 853 (noting that the relied-upon statement was made right after the declarant
asked the police how he could help himself); Miele, 989 F.2d at 666-67 (questioning the
general reliability of the declarant, a drug addict informant). None of these vital factors
are present here. Rather, the District Court chose between conflicting hearsay statements
and credited the account offered by the government, which was consistent with the sworn
testimony of other victims and the criminal behavior to which Parker pleaded guilty.
Parker also challenges the sufficiency of the evidence underlying the District

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Court’s determination that the disputed victims were, in fact, victims. Considering the
statements of Roher and McCants in the totality of the evidence presented, the District
Court did not clearly err in finding that Roher and McCants were victims. Furthermore,
in light of the evidence that Parker routinely misappropriated her clients’ tax refunds, the
District Court’s express credibility determinations, and the state of the record at
sentencing, the District Court did not commit clear error in finding that Ovetta and Kearse
were victims.
IV.
For the above-stated reasons, we will affirm the judgment of conviction and
sentence.

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