Vasilia Berger Defense Sentencing Memo

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Case 2:09-cr-00308-JFC Document 89 Filed 10/12/12 Page 1 of 30
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IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,
Criminal No. 09-308
v.
VASILIA BERGER,
a/k/a VASILIA KLIMANTIS,
Defendant.
MEMORANDUM IN AID OF SENTENCING
COMES NOW, the defendant, Vasilia Berger, by and through her counsel, J. Alan
Johnson, Esquire, and Meagan F. Temple, Esquire, Johnson, Bruzzese & Temple, LLC, and
respectfully files this Memorandum In Aid of Sentencing. By way of this Memorandum, the
defendant humbly requests the Court vary downward from the recommended guidelines range
and impose a sentence commensurate with the severity of the conduct and other defendants
sentenced for similar offenses.
INTRODUCTION
On November 10, 2010, Vasilia Berger (hereinafter Ms. Berger, Lia Berger or Lia)
pled guilty to a two-count indictment charging her with conspiracy to commit wire fraud in
violation of 18 U.S.C. 1349 and conspiracy to commit money laundering in violation of 18
U.S.C. 1956(h). The indictment also sets forth criminal forfeiture allegations.
On September 15, 2011 and September 19, 2011, the Court took evidence at a
presentence hearing concerning the monetary loss caused by Ms. Bergers conduct. In a June 26,
2012 Memorandum Opinion and Order, this Honorable Court concluded the loss caused by Ms.
Bergers conduct was $6,694,745.27.
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On September 17, 2012, the United States Probation Office filed the final Presentence
Investigation Report (hereinafter PSR). In that report, Ms. Bergers offense level is calculated
as follows:
Base offense level
Loss between $2.5-7M
Number of victims
Violation of administrative order
Sophisticated means
Gross receipts from financial institution > $1M
7
+18
+ 6
+ 2
+ 2
+ 2
Money laundering enhancement

Role in the offense
+ 2
+ 4
Subtotal
43
Acceptance of responsibility
Timely notice of intent to plead guilty
- 2
- 1
TOTAL
40
Through counsel, on September 21, 2012, Ms. Berger filed her objections to the PSR. She
objected to the inclusion of enhancements, which were not also levied against her husband, Jay
Berger, in calculating the recommended offense level in his case. In addition, Ms. Berger
specifically objected to the inclusion of the 2-point enhancement for violating an administrative
order. On October 5, 2012, in the Addendum to the PSR, the Probation Officer rejected each of
the defendants arguments to amend the offense level calculation. The objections raised by the
defendant in the September 21st filing are incorporated by reference into this Memorandum.
Based upon the parties Positions With Respect to Sentencing Factors and the PSR filed
by the Probation Office, Ms. Bergers offense level is somewhere between 27 (70-87 months)
and 40 (24 years, 4 months 30 years, 5 months). Notwithstanding the final Guidelines
calculation, Lia Berger requests this Honorable Court vary downward from the recommended
Guidelines range.
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The basis for the defendants request is set forth in the subsequent pages, but is generally
based upon Lias characteristics and family circumstances, the need to avoid unwarranted
sentencing disparity for similar conduct and to deter future prosecutions from seeking to
exacerbate sentences based purely on the defendants exercise of constitutional rights. It is the
position of the defendant that a sentence commensurate with those imposed in the related cases
(PSR Page 1A) is an appropriate measure of justice for Ms. Berger. A sentence comparable to
that of Mr. Berger and/or Elleni Berger will meet the goals of sentencing, while avoiding
unwarranted and disparate sentencing of a defendant whose conduct was exactly the same, but
who chose to exercise certain constitutional rights in her own defense.
DEFENDANTS STATEMENT TO THE COURT
Defendants have a right of allocution prior to the pronouncement of sentence, which is a
right guaranteed by due process. U.S. v. Fisher, 502 F.3d 293, 297-298 (3d Cir. 2007), cert.
denied, 552 U.S. 1274 (2008); U.S. v. Plotts, 359 F.3d 247, 249 (3d Cir. 2004). This is a very
important right in light of the emphasis in Booker and Gall on the need for individualized
sentencing. This Memorandum explores the nature of the offense, as well as the history and
characteristics of Lia Berger. To that end, Ms. Berger has prepared a letter to the Court for
consideration in determining an appropriate sentence.
In her letter to the Court, Lia states, [P]lease understand that I know that I have
committed a serious crime. I crossed the line and I am a criminal. I will be judged for the rest of
my life because of my mistakes. I know I will overcome this and I am a better person because of
this. Exhibit 1. Her letter repeatedly acknowledges her guilt and expresses her remorse for her
conduct. Lias request for leniency in her case is purely a product of wanting to be in her
daughters life during her most formative years.
Lia tells the Court about the physical
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manifestations of severe anxiety that her daughter, Sophia, has recently developed. Though there
is probably little in this case about which everyone can agree, there can be little dispute that the
impact this is having on Sophia is heartbreaking. None of this is Sophias fault, at all, yet even
under the best of all possible results, she will suffer.
IMPACT OF THE SENTENCING FACTORS OF 18 U.S.C. 3553(a)
Following United States v. Booker, 5345 U.S. 220 (2008), the district court must impose
a sentence in accordance with the factors set forth in 18 U.S.C. 3553(a), of which the advisory
United States Sentencing Guidelines are one factor to consider. U.S. v. Cooper, 437 F.3d 324
(3d Cir. 2006).
The district court must give meaningful consideration to all of the 3553
sentencing factors and state on the record logical reasons for the sentence that are consistent with
those factors. Id.
Section 3553(a) begins with the broad mandate that sentencing courts shall impose a
sentence sufficient, but not greater than necessary, to comply with the purposes set forth in
paragraph (2) of this subsection. 18 U.S.C. 3553(a). Section 3553(a) further directs the
district court to consider the nature and circumstances of the offense; the history of and
characteristics of the defendant; the need for the sentence imposed; the kinds of sentences
available; the Sentencing Guidelines range; any pertinent policy statement; the need to avoid
unwarranted sentencing disparities among defendants with similar records who have been found
guilty of similar conduct; and the need to provide restitution to any victim of the offense. 1
1
In Gall v. United States, 552 U.S. 38 (2007), the Court rejected any requirement of a showing of extraordinary
circumstances to justify a sentence below the Guidelines range as not consistent with our remedial opinion in
United States v. Booker. Requiring extraordinary circumstances to justify a sentence below the Guidelines range
would impermissibly elevate the Guidelines above other factors articulated in 18 U.S.C. 3553.
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1.
The Nature and Circumstances of the Offense and the History and Characteristics
of Lia Berger
a. Nature of the Offense
All federal crimes are serious offenses. However, Ms. Bergers offenses were nonviolent
in nature and she does not present a danger to the community. The PSR more fully details Ms.
Bergers conduct.
Lia Berger relied upon the services of Kenneth Cowden to perpetrate the mortgage fraud
scheme. Mr. Cowden held himself out as a real estate appraiser, but he was never properly
licensed to work as such. In sum, Mr. Cowden would falsify appraisals using a variety of
methods in order to make properties appear to the lenders as though they were more valuable
than they actually were. In addition, Ms. Berger engaged in a practice which has come to be
known as creative financing, which would allow purchasers to receive cash at closing or
borrow without actually putting money down when the settlement documents made it appear as
though they had. The scheme was sophisticated in nature and the offenses are, indeed, serious.
The defense believes it is important, however, to consider the genesis of Lias
involvement in the scheme. At age 24, Lia left her job at PNC Bank and used the only money
she had saved $500.00 to procure her brokers license. She worked legitimately as a
mortgage broker for several years, well before the housing boom of the early-to-mid-2000s. She
was awarded Mortgage Broker of the Year for the state in 1999, which award was presented to
her by then-Attorney General D. Michael Fisher.
Lias fraudulent activity began when she met Mr. Cowden.
She met Mr. Cowden
through her now-estranged-husband, Jay Berger. Jay and Ken Cowden had a history of doing
business together that preceded involvement by Lia in anything illegal. Ken had been Jays
accountant for his business, First Federated Mortgage.
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As will be discussed later in this pleading, after Steel City Mortgage was raided by
federal agents, Assistant United States Attorney Brendan Conway made the decision to accept
the cooperative efforts of Jay Berger to the exclusion of Lia Berger. Mr. Berger, indeed,
provided a substantial amount of assistance to several cases Mr. Conway prosecuted.
Throughout this case it has been no secret that Mr. Conway appreciated Mr. Bergers assistance.
However, no matter how much counsel for the United States may appreciate and get along with
Mr. Berger, it does not change the fact that it was Jay Berger who brought Lia Berger into his
fraudulent world. Mr. Cowden testified at the hearing on loss in September 2011 that it was Jay
Berger not Lia who solicited him to begin appraisal work. It was Jay Berger not Lia who
started using Mr. Cowden to perpetrate mortgage fraud. It was Jay Berger not Lia who
initiated the business relationship with Mr. Cowden because of the way he worked with
numbers.
The record and evidence before the Court demonstrates that Lia Berger was a legitimate,
successful mortgage broker before she started doing business with Jay. Once she started doing
business with Jay, certainly, Lia is culpable for her own behavior. As the Court looks to consider
the 3553(a) factors, however, and assess the nature of the offense that Lia committed, the fact
that Mr. Berger was the catalyst and, yet, received a very lenient sentence, must not be
overlooked.
According to press releases from the United States Attorneys Office for the Western
District of Pennsylvania, the three most severe sentences in this district since June 2012 are for
soliciting minors to engage in sexual activity (2 cases; 14 and 20 years), trafficking more than
100 grams of heroin (1 case; 17 years) and shooting at FBI agents (1 case; 15 years). In addition,
the Court will undoubtedly recall the prosecution of Gregory Podlucky, who was convicted of
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defrauding investors in the LeNatures Beverages enterprise of $628,000,000. Mr. Podlucky is

serving a 20-year prison sentence.
While the mortgage fraud in which Lia Berger engaged is undoubtedly a serious offense,
it does not warrant a sentence in excess of 24 years incarceration. The nature of Ms. Bergers
criminal conduct is not even close to being on the same scale as soliciting minors for sex,
shooting at FBI agents, trafficking heroin or a $628,000,000 investor ponzi scheme. A portion of
the Guidelines range, a range which the government thinks is an appropriate measure of justice
in this case, would warrant a sentence close to that imposed upon Jerry Sandusky.
It is
unfathomable how one could equate the seriousness of Ms. Bergers conduct to that of any of the
offenders discussed, supra. The offense level of 40 drastically and inexplicably overstates the
seriousness of the offense.
b. History and Characteristics of Lia Berger
i. Background of the Defendant
Lia is the daughter of Greek immigrants who came to the United States after residing for
some time in Australia. She is one of four siblings and the only child to have been born in the
United States. Her mother has a 6th grade education and her father has a 3rd grade education. Lia
was raised in poverty in a small apartment in Pittsburghs Northside area. Her mother worked as
a seamstress and her father worked for a relative who owned a restaurant. Her father was
diagnosed with schizophrenia and depression. Her parents divorced when Lia was in high
school. (PSR 42).
Lia dropped out of Oliver High School in the 11th grade to work at a gas station and help
support her mother, who was no longer working. (PSR 51). Lia obtained her GED in 1993.
After her job at the gas station, she worked at Kaufmans, Wal Mart, Rave and Silvermans. She
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also before being hired by PNC Financial Services Group in 1995. (PSR 54. 55). She obtained
an associates degree in business administration from the Kaplan Institute in 1995. She left PNC
Financial Services in 1996, obtained her brokers license and opened Steel City Mortgage.
After the dissolution of Steel City Mortgage, Lia opened a small restaurant in Glenshaw,
Pennsylvania called the Greek Stop. See Exhibit 2 (photos). She opened the restaurant with an
initial capital investment of $45,000.00. The restaurant serves Greek cuisine using recipes
handed down to Lia through the generations. The majority of the business is take out, but there
is limited seating for dine-in patrons, as well. Lia employs 12 people the Greek Stop, including
her estranged husband, Jay. His work at the Greek Stop is his only employment. It is this
employment at his wifes business which he reported having to this Court on the date of his
sentencing, though he was reluctant to acknowledge his wifes support in this endeavor.
ii. The Defendants Daughter and Other Family Concerns
A defendants role as a necessary caregiver for a family member is a factor to be
considered in determining whether a variance downward from the recommended Guidelines
range is appropriate. See U.S. v. Wadena, 470 F.3d 735, 740 (8th Cir. 2006); see also, U.S. v.
Martinez, 557 F.3d 597 (8th Cir. 2009) (28-month downward variance for lack of criminal
history, family circumstances and health issues); U.S. v. Buerro, 549 F.3d 1176 (8th Cir. 2008)
(46-month downward variance for mitigating family circumstances upheld): U.S. v. Warfield,
283 Fed. Appx. 234 (5th Cir. 2008) (on remand from Supreme Court, family circumstances may
be considered for a downward variance and need not be extraordinary). The Tenth Circuit
upheld a downward variance based upon family circumstances stating that Gall, however,
indicates that factors disfavored by the Sentencing Commission may be relied on by the district
court in fashioning an appropriate sentence [even though the circumstances are] neither
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dramatic nor unusual. U.S. v. Munoz-Nava, 524 F.3d 1137, 1148 (10th Cir. 2008).
Lia married Jay Berger on March 23, 2001. They have a six-year-old daughter, Sophia.
Lia and Jay separated in 2008. Lia believes that the separation was caused by the stress of the
criminal investigation and prosecution. The strain in the relationship was exacerbated when Mr.
Conway made it clear that he was accepting Jay Bergers cooperation to the exclusion of Lia.
Not ironically, Lia and Jays separation was effective the same year Mr. Conway rejected her
cooperation in favor of her husbands. Although Lia has wanted to see Jays sentence minimized
for Sophias sake, it has been particularly hard on her when the two would argue and Jay would
antagonistically remind her of his cooperation agreement and promise of leniency from the
government. The couple has not yet divorced. They share physical custody of Sophia. Both
parents work at the Greek Stop is the sole earned income stream upon which they rely to
provide for her.
Numerous character letters submitted on behalf of the defendant attest to the close, loving
relationship shared by Lia and Sophia. One of Sophias teachers, Deborah Weingarden, M. Ed.,
an early childhood educator writes:
Vasilia brings Sophia [to school] on time, properly dressed and
groomed, and ready for her day at school. Mother and daughter
have a close and loving relationship She has made sure that
Sophia is doing well at school and has reinforced learning skills at
home. She has also helped Sophia by organizing play dates and
out of school activities to support Sophias friendships and
interests. She has volunteered throughout the school year with
projects for the children and is well respected as a hard worker by
the staff and parents Sophia is a bright, charming girl who is
very attached to her mother. Vasilia is a devoted mother to her
only child. She stands out as a very responsible, caring, loving
mother. Separating them would be a hardship for both, particularly
for Sophia, given her young age and need for her mom.
(Letter of Deborah Weingarden, Exhibit 3).
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Another letter states:

As a full-time mom with an elementary education degree, it is easy
for me to recognize how much one-on-one time Lia has given her
daughter. Sophia excels above her classmates in many areas
especially in art, writing, pre-reading and problem-solving skills
as a direct result of the time and attention Lia has put forth to foster
her daughters development. She is an amazing parent I have
and will continue to trust Lia to watch my own children. There is
no higher praise than that.
(Letter of Casey Schapira, Exhibit 4).
The director of the Adat Shalom Preschool and Religious School States:
I first met Vasilia several years ago, when she was looking for a
preschool for her daughter Sophia. She impressed me as being a
very conscientious parent Vasilia was an involved and
appropriate parent It has been obvious to me, over the last two
years, that Vasilia has a very close and loving relationship with
Sophia, and Sophia loves her mom very much!
(Letter of Gail A. Schmitt, Exhibit 5).
Lia has had Sophia in counseling since June 2009. (PSR 44). Sophias counselor, Dr. Robin S.
Barack, Ph.D., has diagnosed Sophia with Adjustment Disorder with Mixed Anxiety and
Depressed Mood. (PSR 44). Dr. Barack indicates:
Based on her young age, it is extremely important that Sophia have
ongoing, sustained contact with both of her parents in these
formative years. It will be extremely traumatic for Sophia to be
separated from her mother and any separation will have a negative
impact on her emotional development.
(PSR 44).
In addition, Lia, in her letter to the Court, notes new physical manifestations of anxiety she
notices with Sophia, particularly compulsive licking.
Lia also cares for her elderly father, who suffers from schizophrenia and depression. Lia
has Power of Attorney for her father and manages his financial affairs as he is unable to do so on
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his own. If incarcerated, Lia will not be in a position to manage her fathers financial affairs and,
given his diminished mental health, he may not have the requisite capacity to appoint a successor
agent.
Section 3553(a), and the cases interpreting it since the Booker decision, make clear that
the district court must consider a defendants family responsibilities and circumstances in
deciding whether or not to grant a variance down from the recommended Guidelines range. In
the instant matter, the defense has produced abundant evidence of the close relationship Lia has
with her daughter and the negative impact it will have on Sophia to be apart from her mom. The
defense understands that Lia will be sentenced to a period of incarceration. However, the length
of time that Lia is ordered to serve in jail matters a great deal for Sophia. Sophias anxiety is
only going to get worse the longer Lia is away from her. Furthermore, Lia is the only adult upon
which Sophia can truly rely. Lias parents are not available to care for Sophia. Jays parents are
not around either. Jay is also awaiting an incarceration sentence of his own. Even if Jay is able
to care for Sophia after he is released, he will take Sophia to live with his sister, who suffers
from depression and maintains a filthy home. The misdeeds of Lia and Jay are not Sophias
fault, yet she will pay the greatest price because of them. Any degree to which the Court can
spare Lia, Sophia is spared.
iii. The Defendants Charitable Acts and Good Works
Charitable good works are to be considered as reflecting on the defendants character
under the 3553(a) factors. U.S. v. Tomko, 362 F.3d 558 (3d Cir. 2009) (en banc). Good works,
in combination with other factors, may also be considered for a variance under 18 U.S.C.
3553(a). U.S. v. Tomko, supra. In a pre-Booker/pre-Gall decision, the Third Circuit affirmed the
downward departure taken by the district court for extraordinary charitable works in significant
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part because the charitable giving involved participation by the defendant in charitable activities,
as opposed to simply monetary contributions. U.S. v. Serafini, 233 F.3d 758, 776 (3d Cir. 2000).
Furthermore, post-Gall, charitable activities need not be outside the heartland or extraordinary
to support a variance. See Gall, supra; U.S. v. Ali, 508 F.3d 136, 153 fn. 23 (3d Cir. 2007)
(heartland analysis does not apply to a variance as it does to a downward departure); see also
U.S. v. Pitts, 261 Fed. Appx. 377, 379 (3d Cir. 2008).
Despite working full-time and caring for Sophia, Lia has also participated extensively in
a variety of good works and volunteerism in her community. Lia has consistently volunteered at
Sophias schools. She volunteered at Adat Shalom Preschool, prompting Director Gail A.
Schmitt to state:
Our school encourages parent involvement, and Vasilia has
volunteered her time at the school for various projects. She has
always been dependable, and generous with her time; and Sophia
loves when her mom helps at the school. I have found Vasilia to
be very fair and honest in our school setting, as she has been
involved in handling a rebate program from her family restaurant.
Letter of Gail A. Schmitt, Exhibit 5.
A parent at the preschool observed:
Lia has been very involved in helping our daughters school, Adat
Shalom Preschool. Her name is always on the sign up sheets for
volunteer opportunities. She is known for stepping up when
needed. When no one else can help, Lia finds a way. Her
involvement has been and currently is crucial to the well-being of
the school. Lia is the most helpful and reliable person I know. As
the incoming President of next years PTO [Parent Teacher
Organization], I know I can count on Lia
Letter of Casey Schapira, Exhibit 4.
Lia has also donated computers and three monitors to the preschool.
Lia has participated in the Aspinwall Neighborhood Watch Night Out event, honoring
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Police, Firemen and Public Safety Personnel.

She generously donated her time, staff, equipment and food to the
event (which was estimated to feed 500 [plus] people) without ever
asking for anything in return. This was the first time I had
participated in planning an event this large, but she made it easy
for me because of her experience she donated her time and
resources numerous times in the past to help various organizations.
Id.
Since 2008, Lia has been an active volunteer to Hope Hospice. She was awarded a
Certificate of Appreciation in April of 2009 in recognition of her outstanding volunteerism.
Certificate of Appreciation, Exhibit 6.
Other volunteer and community service works include:
Aspinwall Chamber of
Commerce, President, January 2005 December 2006; Fairview Elementary School, provided
Greek desserts that she made for 70 guests to raise money for Ethnic Night, February 2009;
Epilepsy Foundation of Western PA, volunteered and free food distributor for over 300 people,
helping the foundation raise over $40,000, July of 2009; Celebrate the Center, distributed free
food to over 2000 people helping to raise funds for the Boyd Community Center Operating
Fund; donation of Greek Stop gift certificates for various fundraisers including: Pittsburgh
Symphony Association, Hartwood Elementary School, North Hills Community Outreach Giving
Back Campaign, Talbot Youth Players, Fox Chapel Crew Club,; Fox Chapel Area High School
Softball Team; Teamster Horsemen Motorcycle Association, 2010 Breast Cancer Awareness
fundraiser, Fairview Elementary fundraiser, St. Joseph Parish Birthday Bash fundraiser,
Shadyside Academy Boys Soccer fundraiser, Fairview Elementary fundraiser for the
Environmental Learning Garden, and Steel City Youth Boxing. She also donates to the Adat
Shalom Synagogue School $1.00 of each receipt from parish parents who stop in to eat at the
Greek Stop.
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Lias character for unselfish volunteerism and community works has been established by
her years of volunteer work and her genuine interest and dedication to improving and assisting
the organizations in her community. This is yet another factor for which a downward variance is
appropriate.
iv. Law Abiding Character
Except for the instant offense, Lia Berger has always been law-abiding. She has no
criminal history, nor has she ever been in trouble with law enforcement. Her actions in this case
are an aberration. In addition, it has been almost 7 years since Ms. Bergers office was raided by
the FBI. Since that time, she has not engaged in further criminal activity. Because of the length
of time it took to resolve the evidentiary issues in this case, the Court now has the benefit of
having almost 7 years of law-abiding behavior to consider as evidence of Lias rehabilitation into
society. Insofar as two goals of sentencing are to deter the wrongdoer from future misconduct
and protect society from her actions, Lia has shown over the past 7 years that the criminal
prosecution process, alone, has been adequate. While a sentence of incarceration is appropriate
in this case, it need not be lengthy to accomplish the objectives of imposing punishment.
v. Employment History and Employment of Others
Not unlike many defendants, an incarceration sentence will mean that Lia cannot work.
However, unlike many other defendants, the longer her sentence, the less likely it becomes the
Greek Stop will survive, which, in turn, would cost the Greek Stop employees their jobs.
Lengthy incarceration would have an extraordinary effect on Lia Bergers business,
causing the loss of jobs to innocent employees. The Sentencing Guidelines do not explicitly
consider this factor. United States v. Olbres, 99 F.3d 28, 36 (1st Cir. 1996) (vocational skills as a
discouraged factor does not encompass job loss to innocent employees arising from
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imprisonment of the business owner).

The Second Circuit upheld a below-Guidelines sentence that enabled the defendant to
serve his sentence in home detention and to continue to run his business. The Court rejected the
governments argument that there was nothing extraordinary about the prospect of imprisonment
and potentially putting a company out of business. The Court held that it was proper for the
district court to consider the impact that the loss of his daily involvement would have on [the
defendants] business and, consequently, his employees. U.S. v. Miklovsky, 65 F.3d 4, 8 (2d
Cir. 1995). Among permissible justifications for downward departure, we have held, is the
need, given appropriate circumstances, to reduce the destructive effects that incarceration may
have on innocent third parties. Miklovsky, 65 F.3d at 7.
Likewise, the Third Circuit has upheld a post-Booker downward variance where the
defendant, who pleaded guilty to income tax evasion, had an extensive record of community
service and provided employment to numerous other individuals. U.S. v. Tomko, 26 F.3d 558
(3d Cir. 2009) (en banc).
If Lia receives a lengthy incarceration sentence, her restaurant will not survive. As it
stands, she was forced to downgrade the operations to a level her staff might be able to manage
for a year or two. Specifically, the Greek Stop may have to operate as take out only for any
period of time Lia is incarcerated. The long-term viability of a strictly take out restaurant is
unrealistic, particularly given the fact the revenues barely cover the expenses as it is with the
dine-in option.
There are currently 12 employees on the payroll, including Jay Berger. The restaurant
will likely have to downsize from its current staff size, which is bad enough. If the Greek Stop
cannot survive an extended period of incarceration, all 12 employees will be put out of work.
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They are not responsible for Lias actions, but, like Sophia, those innocent people will pay a
penalty.
In addition, Jay Bergers only earned income comes from his work at the Greek Stop. If
the Greek Stop is put out of business, Jay Berger, too, would lose his job, and the only source of
earned income he can use to support Sophia would be cut off.
Lastly, Lia tried diligently to find a buyer for her restaurant in the months preceding her
sentencing, but never received any viable offers. Jay lacks the requisite experience to run the
restaurant, in addition to the inherent difficulties that would present for Lia given their strained
personal relationship.
As far as Lias individual employment history, the PSR makes clear that Lia is a
hardworking individual. She has been part of the work force since she was in high school, even
having dropped out before graduating so she could work to support her parents.
Lia is
entrepreneurial, as well. She started a legitimate mortgage business with $500 to her name.
After Steel City Mortgage was shut down, she opened a successful Greek restaurant. Her history
shows that, upon release from confinement, Lia will not become a burden to society. She will
work hard and, despite her convictions, will likely develop her restaurant business into an
enormous success. She envisions expanding the restaurant throughout the Pittsburgh area and
beyond.
The only thing holding her back in the development of the Greek Stop locally,
regionally, or nationally has been not knowing what the future holds. She will emerge from her
sentence with the work ethic she has always had.
Lia has chosen to not live her life in a criminal environment.
Growing up in an
economically deprived area of the Northside, Lia undoubtedly had ample opportunity to turn to a
life of criminal behavior. Instead, she chose to work hard and value success. Her ambition and
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desire for success was, ultimately, her demise, but her work ethic remains intact. Lia is not the
type of offender who needs more time in jail to learn discipline, responsibility and work ethic.
Clearly, she has developed those attributes on her own. Accordingly, the defense requests this
Court vary downward from the recommended Guidelines range on the basis of Lias history of
employment and the fact she gainfully employs others.
vi. Extraordinary Acceptance of Responsibility, Cooperation with the
Government, Post-Offense Rehabilitation and Remorse
Post-Booker and Gall, courts may grant additional consideration to defendants who
demonstrate acceptance of responsibility and post-offense rehabilitative efforts because such
conduct bears directly on their character, 3553(a)(1), and on how severe a sentence is
necessary to provide deterrence and punishment, 3553(a)(2). U.S. v. Severino, 454 F.3d 206,
211 (3d Cir. 2006). Likewise in Gall, supra, the Court recognized that post offense efforts made
by the defendant, not as ordered by the Court, could be considered as a basis for a downward
variance and that such efforts need not be extraordinary.
The Supreme Court recently addressed the importance of analyzing a defendants post-
offense conduct in light of Booker, Gall, and the 3553(a) factors. See Pepper v. U.S.,
U.S.
, 131 S.Ct. 1229 (2011). In Pepper, the Court discussed the issue of whether a
District Court, when resentencing a defendant after an appeal, can consider a defendants post-
sentencing rehabilitation efforts. The Court decided the issue in the affirmative stating:
Preliminarily, Congress could not have been clearer in directing
that [n]o limitation be placed on the information concerning
the background, character and conduct of a defendant that a
district court may receive and consider for the purpose of
imposing an appropriate sentence A categorical bar on the
consideration of postsentencing rehabilitation evidence would
directly contravene Congress expressed intent of 3661.
In addition, evidence of postsentencing rehabilitation may be
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highly relevant to several of the 3553(a) factors that Congress

has expressly instructed district courts to consider at sentencing.
For example, evidence of postsentencing rehabilitation may plainly
be relevant to the history and characteristics of the defendant.
3553(a)(1). Such evidence may also be pertinent to the need for
the sentence imposed to serve the general purposes of sentencing
set forth in 3553(a)(2) in particular, to afford adequate
deterrence to criminal conduct, protect the public from further
crimes of the defendant, and provide the defendant with needed
educational or vocational training or other correctional
treatment in the upmost effective manner Postsentencing
rehabilitation may also critically inform a sentencing judges
overarching duty under 3553(a) to impose a sentence
sufficient, but not greater than necessary to comply with the
sentencing purposes set forth in 3553(a)(2).
Pepper, 131 S.Ct. at 1241-1242 (emphasis added).
The Court also opined, Most fundamentally, evidence of Peppers conduct since his
release from custody provides the most up-to-date picture of Peppers history and
characteristics. Id. at 1242. The Courts instruction regarding the need to consider post-
sentencing conduct logically applies equally to the consideration of post-offense conduct as
discussed in Gall.
Finally, post-Booker, the District Court may consider a defendants attempted
cooperation with the government, even when the government believes that the cooperation was
not sufficient to warrant the filing of a downward departure motion.
We agree that in formulating a reasonable sentence a sentencing
judge must consider the history and characteristic of the defendant
within the meaning of 18 U.S.C. 3553(a)(1) as well as the other
factors enumerated in 3553(a), and should take under advisement
any related arguments, including the contention that a defendant
made efforts to cooperate, even if those efforts did not yield a
Government motion for a downward departure pursuant to
5K1.1. Section 3553(a)(1), in particular, is worded broadly, and it
contains no express limitations as to what history and
characteristics of the defendant are relevant. This sweeping
provision presumably includes the history of a defendants
cooperation and characteristics evidenced by cooperation, such as
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remorse or rehabilitation.
U.S. v. Fernandez, 443 F.3d 19, 33 (2d Cir. 2006). See also U.S. v. Rosario, 2009 WL 690666
(3d Cir. 2009) (district court granted a downward variance in recognition of cooperation efforts,
even though those efforts did not merit a departure under 5K1.1); U.S. v. Hetherngton, 328
Fed. Appx. 814 (3d Cir. 2009) (sentence not unreasonable where district court considered
defendants argument for a downward variance based upon cooperation with the government
despite government refusal to file a motion for departure pursuant to 5K 1.1.).
Recently, the First Circuit discussed the relevance of considering a defendants
cooperative efforts where the government did not file a motion for downward departure. U.S. v.
Landron-Class, 2012 U.S. App. LEXIS 18367 (1st Cir. 2012). The First Circuit held:
[N]othing in the guidelines suggests that a courts discretion to
consider all of a defendants relevant conduct under 3553(a) is
constrained by the governments decision not to file a 5K1.1
motion. Accordingly, we join our sister circuits in sensibly
holding that, in determining the appropriate sentence within the
guidelines, or in varying from the guidelines, a sentencing court
has discretion to consider the defendants cooperation with the
government as a 3553(a) factor, even if the government has not
made a USSG 5K1.1 motion for downward departure No
circuit court has held to the contrary.
Landron-Class, 2012 U.S. App. LEXIS at 34-34.
In the instant case, the defendant has exhibited a willingness to turn her life around in a
meaningful and positive way. After the offices at Steel City Mortgage were searched, Ms.
Berger began providing assistance to the government. She spent countless hours in meetings
with investigative agents, searching through records, and conducting file reviews to assist them
in understanding fraudulent activity of others, as well as her own companys actions.
In February 2008, Lia Berger offered to cooperate with authorities in conducting ongoing
investigations of others suspected of committing mortgage fraud in the Western District of
Pennsylvania.
Lias offer included an agreement to use body recording devices and to
participate in consensual telephone calls with suspects. From February 2008 through July 2012,
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Lia cooperated with the governments efforts to investigate other mortgage brokers and
appraisers.
She did so by working directly with the agents and/or supporting Jays efforts to do
so. She was asked by Jay on a few occasions, at the request of the government, to assist him in
gathering information. In addition, she provided explanations and information about the
operation of her own business.
From May 2008 through September 2008, Lia was heavily involved in her cooperative
efforts. During this time period, she met or communicated with Agents Bieshelt and Fornataro
several times a week. The first meeting of substance that Lia recalls was on May 28, 2008. At
that meeting, Agent Bieshelt told Lia that Mr. Conway was opposed to their meeting because he
did not think she could help. Contrary to Mr. Conways position, however, Agents Bieshelt and
Fornataro availed themselves of the opportunity to get information from Lia.
The meeting on May 28, 2008 lasted approximately 2 hours. At the first meeting, alone,
Lia provided the agents with inculpating information about approximately 10 individuals and
entities with whom she had worked in the mortgage business who had offered or solicited illegal
assistance (i.e. creative financing, falsified appraisals) in producing mortgages. Lia provided the
agents with leads involving requests for creative financing from one of the areas most reputable
and well-known real estate companies. The information Lia provided was specific and she
delivered documentation to support the lead she provided.
The meeting on May 28, 2008 was the first of many. Lia spent the majority of 2008
meeting with agents or gathering information for them that would be useful in other
investigations. She also assisted her husband in his efforts to cooperate. After her offer to
cooperate was rejected by Mr. Conway, Lia continued to make herself available to Jay to
research information requested by the government. The two of them would frequently visit their
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office in Aspinwall and search through computer files and records looking for information
responsive to the governments requests of Jay. When Jays memory would fail him regarding
specifics of their business practices and professional dealings, Lia always made a point to discuss
it with him, so that the two of them may collectively remember what took place and with whom
they had dealt on particular transactions. Lia also rearranged the schedule at the Greek Stop,
often on a moments notice, so that Jay could attend meetings with government officials and
testify in hearings. Lia also took over custody duty for Sophia on those days when Jay was too
busy cooperating with the government. Simply put, Jay would not been nearly as effective for
the government without Lias support.
The fact Lia cooperated begs the question: Why? Why would she be willing to assist
Jay? Why would Lia do anything at all to help the government after Mr. Conway rejected her
offer to cooperate? Lia got absolutely nothing in return for all the help she gave the government.
Instead, she is being buried in sentencing enhancements which have not been pursued in any
other related case, and may very well not have been sought in any other mortgage fraud case in
this district.
The government cannot argue with any merit that Lias efforts to cooperate were done for
self-serving reasons because she has been nothing but punished for her help.
Rather, her
cooperation is purely a function of her acceptance of responsibility, post-offense rehabilitation

and remorse. The defense respectfully submits Ms. Bergers sentence should be reflective of the
substantial way in which she assisted federal authorities in their prosecution of her case and
others.
Also evidence of Lias post-offense rehabilitation is her restaurant endeavor at the Greek
Stop. After Steel City Mortgage closed, Lia immediately found a way to support her daughter
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by starting her restaurant. She has worked many long hours performing even the most menial of
tasks in the restaurant. She has been a good mother, devoting herself to Sophia at a time when it
would be so easy for her to wallow in her despair. Lia has been very active in Sophias schools
and active in her community. Lia is deeply remorseful for her crime and has made a sincere
effort to express that remorse through the efforts discussed, supra. In granting a downward
variance, the Court may also consider a defendants degree of remorse U.S. v. Howe, 543
F.3d 128, 138 (3d Cir. 2008).
The defendant respectfully requests that this Honorable Court consider all the positive
steps that Lia has taken to become a productive, law-abiding citizen and to become an asset to
her community.
2. The Need for the Sentence Imposed
The sentence imposed should reflect the seriousness of the crime, afford adequate
deterrence to criminal conduct, protect the public from further crimes of the defendant, and
provide any needed educational or vocational training, medical care, or other correctional
treatment.
Mrs. Bergers acceptance of responsibility, her many years of extensive good works, and
her post-offense rehabilitation demonstrate her respect for the law. Under the circumstances, a
sentence commensurate with that imposed upon her husband, Jay Berger, or her sister, Elleni
Berger, would serve as adequate punishment. In addition, such a sentence is sufficient to protect
the public, as there is every reason to believe Ms. Berger will not be a repeat offender.
The Third Circuit has stated that the sentencing court should not focus exclusively on
incapacitation, deterrence and punishment to the exclusion of other sentencing factors. U.S. v.
Olhovsky, 562 F.3d 530, 547 (3d Cir. 2009). The court in Olhovsky noted:
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The record should reflect that the sentencing court considered each
of the 3553(a) factors, including the overarching instruction of
18 U.S.C. 3553(a) that the court should impose a sentence that is
sufficient, but not greater than necessary to comply with the
purpose of [sentencing].
Olhovsky, 562 F.3d at 547 (quoting Kimbrough, 552 U.S. 85, 111, 128 S.Ct. 558, 575 (2007))
(emphasis added by the Third Circuit).
Finally, under this factor, the Court must consider whether the defendant needs
educational or vocational training, medical care or other correctional treatment. Ms. Berger is
not in need of any such services.
3., 4., and 5. The Kinds of Sentences Available, the Guidelines Range, and Policy
Statements
According to the Probation Office, the offense level with all enhancements and
reductions is 40, with an advisory Guidelines range of 292-365 months.
However, the
Guidelines are only one of the factors to consider when imposing sentence Gall, 128 S.Ct. at
602.
As will be discussed, infra, this offense level and Guidelines range is grossly
disproportionate to the seriousness of the offense, particularly when the case is compared to
those of other similarly situated or more serious offenders.
6. The Need to Avoid Unwarranted Sentencing Disparity
This factor does not militate against all sentence disparities, but against unwarranted
sentencing disparities. This case, however, is a text book example of unwarranted disparate
sentencing.
It is the defenses position that the disparate treatment of Ms. Berger by the
government is a direct product of her exercising her right to file a motion to suppress and
refusing to waive her right to appeal. Nothing else explains the difference in the way the United
States treated Mr. Berger, Mr. Cowden, Elleni Berger and Randy Berger as compared to what it
is attempting to do to Lia.
As a threshold matter, the defense notes that, in requesting a Guidelines sentence, the
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government seeks punishment equal or greater to the sentence received by former Enron CEO,
Jeffrey Skilling, and far in excess of that which was imposed on LeNatures CEO, Gregory
Podlucky. The sentence the government seeks is nonsensical.
To really get an idea for the blatant disparity in sentencing, however, it is important to
compare Lias offense level and corresponding Guidelines range to that of every related case.
The Probation Office has noted 5 related cases: U.S. v. Papastergous, 2:09-cr-00041 (Conti, J.),
U.S. v. Randy Berger, 2:09-cr-00335 (Conti, J.), U.S. v. Jay Berger, 2:09-cr-00283-001 (Conti,
J.), U.S. v. Elleni Berger, 2:09-cr-00334 (Conti, J.) and U.S. v. Cowden, 2:07-cr-00217-001
(Conti, J.) (PSR, page 1A). These defendants received sentences of 21 months incarceration, 31
months incarceration, 15 months incarceration, 36 months incarceration, and 9 months in a
halfway house, respectively.
Jay Berger and Lia Bergers conduct was exactly the same. The defense has articulated
reasons it believes Jay Berger was slightly more culpable than Lia, but the distinction is minimal
and would only amount to a one-point adjustment down on Lias role in the offense
enhancement. Otherwise, their conduct was exactly the same.
For purposes of sentencing, insofar as their conduct was exactly the same, their
punishments should be exactly the same. Both Lia and Jay pled guilty. Both timely notified the
government of their intent to do so. Before being charged, Lia, through counsel, offered to
waive her right to be charged through an indictment
Obviously, Jay was given the benefit of a cooperation agreement to the exclusion of Lia.
The defense concedes he did cooperate pursuant to that agreement.
However, Lia was
instrumental in cooperating with the agents, as well, and supporting Jay in his efforts. On certain
occasions, Jay would have been unavailable to cooperate without Lias support (e.g. watching
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Sophia on days Jay was supposed to have custody, rearranging Jays work schedule at the Greek
Stop, etc.). In addition to providing the agents with a great deal of information about the
mortgage fraud practices in the district, Lia was the one who made it possible for Jay to
cooperate, even after she was cut off.
There is no distinction between Jays conduct and Lias. There is no distinction between
their post-offense conduct. There is, therefore, no reason for a sentencing disparity between the
two of them.
As a practical matter, courts in this district often cut in half a defendants sentence
based upon their cooperative efforts. The defense was not privy to the discussion of Mr.
Bergers cooperation at his sentencing because the matter was addressed under seal. Similarly,
the defense is not aware of the Courts deliberative process in arriving at Mr. Bergers 15-month
sentence. For the sake of argument, however, if Mr. Bergers sentence was halved on the basis
of his cooperation, it can be assumed his sentence, absent his cooperation, would have been
approximately 30 months. The defense believes a sentence of 30 months for Lia would be
appropriate, should the Court feel the need to protect the integrity of the cooperation system and
the 5K1.1 departures.
A sentence of 30 months would be comparable to that which was imposed on Elleni
Berger. Elleni Berger is Lias sister, who owned and operated All Credit Finance. Elleni held a
comparable leadership role at All Credit Finance. Her fraudulent activity was virtually identical
to that of Lias. In fact, in seeking to attribute the monetary loss caused by Elleni Berger to Lia,
the government, at the loss hearing in September 2011, called to the stand Michelle Sacramento
to testify as to the similarities in conduct between the two sisters.
Mr Conway: So when you think about the type of fraud at All
Credit and the type of fraud at Steel City, how do you compare
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these two?
Ms. Sacramento: It was basically the same. I mean, I held the
position and performed the same actions in regards to the
fraudulent activity of both companies.
(September 15, 2011 Tr., page 118).
Again, similar conduct warrants similar punishment. If anything Elleni Berger bears more
criminal responsibility. Elleni Berger was not a cooperating witness for the government. Unlike
Lia, she did not cooperate with authorities even without a cooperation agreement. She also pled
guilty to certain tax evasion charges, which is not conduct for which Lia has been convicted.
The government may suggest that the loss caused by Elleni Berger was less than that
which was caused by Ms. Berger, thus justifying a harsher sentence for Lia. Such an argument is
untrue. At the loss hearing, over defense objection, the Court found the loss caused by Elleni
Berger is attributable to Lia as relevant conduct pursuant to the Sentencing Guidelines. As such,
although the government did not seek to prove the loss caused by Lia in Ellenis case, let alone
have it attributed to Elleni, the value of their fraud was the same, too. Accordingly, Lias
sentence should be no greater than that of her sister, Elleni Berger.
The defense acknowledges that Mr. Papastergous, Randy Berger, and Mr. Cowdens
cases all include facts and circumstances which would justify a lower sentence than that which
the Court should impose on Lia. Mr. Papastergous, for instance, was a lower level employee at
Steel City Mortgage and, by virtue of his role in the offense, should receive a lighter sentence
than Lia. The defense would submit that Mr. Cowden is more culpable than Ms. Berger, but the
extent of his cooperation was considerable.
Nevertheless, although Lia should receive a
lengthier sentence than these individuals, nothing justifies a sentence of 25 to 30 years in prison
as compared to their sentences. Even as compared to these more minor players, the sentencing
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disparity is wholly unwarranted.

The radical disparity in sentencing sought by the government in this case necessarily begs
the question: what is the reason? The conduct was the same. The acceptance of responsibility
was the same. What is the difference between Lia Berger and the other related-case defendants
that could be causing such disparate treatment?
The only difference between Lia and the others is that Lia declined a plea agreement
offer from the government. As a practical matter, the only difference between Lias case and
those of the other defendants is that she exercised her constitutional right to file a Motion to
Suppress and retained her right to appeal.
Indeed Mr. Conway alluded to the fact Ms. Berger retained her right to appeal as being a
reason why she was subject to harsher penalties at sentencing.
On February 11, 2011, the Court
held a hearing on a motion filed by the defense for production of materials relevant to the issue
of loss in the case. On the record, Mr. Conway stated:
Your Honor, let me address that for a moment because, certainly,
there are plea agreements entered into, in this case. Right? But the
benefit -- the government gets the benefit of the plea agreement, as
well. We get an appeal waiver. We get enhancement to
leadership role. We get abuse of position of trusts, other
enhancements.
That if he wants -- he wants, basically, he wants to argue that, hey,
the government should be forced to agree to a loss amount agreed
to in other cases, but we dont want to be forced to agree to those
other stipulations. We dont want to agree to an abuse of position
of trust enhancement. We dont have to agree with the leadership
role. And, also, that loss number, we dont want to agree that
thats the loss number. We want to agree its even less.
So, he wants to try to get, essentially, the benefit of a bargain for
another contract for which hes not the party. And the government
gets no benefit to any of that, any of those negotiations in that.
Thats basic contract principles.
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(February 11, 2011 Tr., pages 18-19) (emphasis added).

[A]though prosecutorial discretion is broad, it is not unfettered. Selectivity in the
enforcement of criminal laws is subject to constitutional constraints. Wayte v. U.S., 470
U.S. 598, 608, 105 S.Ct. 1524, 1531 (1985) (quoting U.S. v. Batchelder, 442 U.S. 114, 125
(1975)). The decision to prosecute cannot be based upon a defendants exercise of constitutional
rights. Wayte, 470 U.S. at 608 (citing U.S. v. Goodwin, 457 U.S. 368, 380, n. 11 (1982)). A
showing of selective prosecution requires that a defendant show that the prosecutors passive
enforcement of criminal laws had a discriminatory effect and was motivated by a discriminatory
purpose. Id. (internal citations omitted).
The defense does not suggest that the decision to charge Ms. Berger was selective or
discriminatory. However, the process of prosecution is not limited to charging decisions. In this
case, the gross disparity between the sentencing efforts of the government in Lias case versus
what it sought in the related cases was purely a function of Lias exercise of her constitutional
rights.
To be clear, at the time he made the statement cited above, Mr. Conway was speaking as
to why Lia was exposed to a greater loss number than other related defendants, including her
husband. Nevertheless, at the time the statement was made, Mr. Conway sought to levy a loss in
excess of $30,000,000 on Lia for her role, which, if proven, would have resulted in an offense
level of 44, using the current calculation from the Probation Office. There can be no mistaking
the intent of this statement: Mr. Conways statement conveyed to the Court Lias loss should be
greater than the others because she rejected his plea offer, because she retained her right to
appeal, and because she exercised her constitutional rights, in doing so.
The initial draft PSR from Ms. Banta issued in April 2011 placed Lia at an overall
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offense level of *32*. This calculation was based upon a loss of approximately $11,000,000.00,
which exceeded the loss this Court ultimately determined could be attributed to Lia. Had Ms.
Bantas loss calculation included the Courts findings, the offense level calculation would have
been a 28 the same as that of Jay Berger.
The additional enhancements were piled on at the request of the government and the total
is now a staggering 40. Ms. Berger received all the same enhancements as the others, plus many
more. The government did not need the benefit of a plea agreement to get enhancements in Lias
case, but they did need it to get an appeal waiver. It is because Lia refused to waive her appeal
rights that the government now wants to sentence her on par with a heinous criminal such as Mr.
Sandusky.
There can be no more obvious example of selective prosecution than this case. The
defense is not quibbling about disparities of a couple months even a couple years. The
disparity in sentencing in this case is decades. The reason for the disparity came from the
prosecutors own words, on the record, and in open court Lia Berger, unlike the others, would
not waive her right to appeal. She is now being punished for having exercised that right.
7. The Need to Provide Restitution
Restitution is applicable in this case. Ms. Bergers continued management of the Greek
Stop will help to assure her ability to make restitution. Without assured continued employment,
Ms. Berger does not have the financial means to make restitution. Likewise, the probation
officer found that the defendant does not have the financial ability to pay a fine due to lack of
valuable, unencumbered assets and accrued debt. (PSR 63).
CONCLUSION
Sixteen marble columns adorn the west entrance to the United States Supreme Court.
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Incised in the architecture above are the words Equal Justice Under the Law; an appropriate
caption for the bastion of American constitutional rights. Indeed not only does the Supreme
Court announce this ideal, but the Department of Justice has adopted it as the preeminent core
value to guide its people in their endeavors to carry out justice. Yet, at times, accomplishing that
ideal seems far distant from an individual prosecutor.
The Constitution which embodies our deepest commitment to fairness and human rights
stands to safeguard liberty precisely at the moments in which passions and political pressure
generate incentives to sacrifice those timeless values to short-term goals. But the Constitution is
not self-executing; it requires courts, which possess the requisite perspective and neutrality, to
enforce those rights, and to ensure fidelity to these core commitments.
WHEREFORE, the defense respectfully requests the Court honor the defendants request
for a downward variance and impose an incarceration sentence consistent with the offense, the
offender and other similarly situated defendants.
Respectfully submitted,
/s/ J. Alan Johnson, Esquire

PA ID No. 10504
/s/ Meagan F. Temple, Esquire
PA ID No. 92084
JOHNSON, BRUZZESE & TEMPLE, LLC
1720 Gulf Tower
707 Grant Street
Pittsburgh, PA 15219
Telephone: (412) 338-4790
Facsimile: (412) 227-3851
jjohnson@jbtattorneys.com
mtemple@jbtattorneys.com
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Vasilia Berger Defense Sentencing Memo

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Case 2:09-cr-00308-JFC Document 89 Filed 10/12/12 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT FOR THE

UNITED STATES OF AMERICA,

Criminal No. 09-308

Case 2:09-cr-00308-JFC Document 89 Filed 10/12/12 Page 2 of 30

Money laundering enhancement

Case 2:09-cr-00308-JFC Document 89 Filed 10/12/12 Page 3 of 30

Lia tells the Court about the physical

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Case 2:09-cr-00308-JFC Document 89 Filed 10/12/12 Page 5 of 30

She met Mr. Cowden

Case 2:09-cr-00308-JFC Document 89 Filed 10/12/12 Page 6 of 30

Case 2:09-cr-00308-JFC Document 89 Filed 10/12/12 Page 7 of 30

defrauding investors in the LeNatures Beverages enterprise of $628,000,000. Mr. Podlucky is

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Case 2:09-cr-00308-JFC Document 89 Filed 10/12/12 Page 9 of 30

Case 2:09-cr-00308-JFC Document 89 Filed 10/12/12 Page 10 of 30

Another letter states:

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Police, Firemen and Public Safety Personnel.

Case 2:09-cr-00308-JFC Document 89 Filed 10/12/12 Page 14 of 30

Case 2:09-cr-00308-JFC Document 89 Filed 10/12/12 Page 15 of 30

imprisonment of the business owner).

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highly relevant to several of the 3553(a) factors that Congress

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Lias offer included an agreement to use body recording devices and to

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cooperation is purely a function of her acceptance of responsibility, post-offense rehabilitation

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However, Lia was

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Nevertheless, although Lia should receive a

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disparity is wholly unwarranted.

On February 11, 2011, the Court

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(February 11, 2011 Tr., pages 18-19) (emphasis added).

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/s/ J. Alan Johnson, Esquire

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