vasilia berger defense sentencing memo

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This is the sentencing memorandum of Lia Berger, mortgage broker, who was sentenced to 6 1/2 years in prison. Govt wanted 30 years.

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Page 1: Vasilia Berger Defense Sentencing Memo

IN THE UNITED STATES DISTRICT COURT FOR THEWESTERN 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. Berger’s conduct. In a June 26,

2012 Memorandum Opinion and Order, this Honorable Court concluded the loss caused by Ms.

Berger’s 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. Berger’s offense level is calculated

as follows:

Base offense level 7Loss between $2.5-7M +18Number of victims + 6Violation of administrative order + 2Sophisticated means + 2Gross receipts from financial institution > $1M + 2

Money laundering enhancement + 2Role in the offense + 4

Subtotal 43

Acceptance of responsibility - 2Timely notice of intent to plead guilty - 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 defendant’s 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. Berger’s 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 defendant’s request is set forth in the subsequent pages, but is generally

based upon Lia’s 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 defendant’s 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.

DEFENDANT’S 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. Lia’s request for leniency in her case is purely a product of wanting to be in her

daughter’s 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 Sophia’s 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 “extraordinarycircumstances” to justify a sentence below the Guidelines’ range as “not consistent with our remedial opinion inUnited States v. Booker.” Requiring “extraordinary circumstances” to justify a sentence below the Guidelines rangewould 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 Characteristicsof Lia Berger

a. Nature of the Offense

All federal crimes are serious offenses. However, Ms. Berger’s offenses were nonviolent

in nature and she does not present a danger to the community. The PSR more fully details Ms.

Berger’s 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 Lia’s

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 broker’s 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.

Lia’s 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 Jay’s

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. Berger’s 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 Attorney’s 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 LeNature’s 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. Berger’s

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. Berger’s 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 Pittsburgh’s 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 Kaufman’s, Wal Mart, Rave and Silverman’s. She

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also before being hired by PNC Financial Services Group in 1995. (PSR ¶ 54. 55). She obtained

an associate’s degree in business administration from the Kaplan Institute in 1995. She left PNC

Financial Services in 1996, obtained her broker’s 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 wife’s business which he reported having to this Court on the date of his

sentencing, though he was reluctant to acknowledge his wife’s support in this endeavor.

ii. The Defendant’s Daughter and Other Family Concerns

A defendant’s 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 Berger’s cooperation to the exclusion of Lia.

Not ironically, Lia and Jay’s separation was effective the same year Mr. Conway rejected her

cooperation in favor of her husband’s. Although Lia has wanted to see Jay’s sentence minimized

for Sophia’s 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 Sophia’s teachers, Deborah Weingarden, M. Ed.,

an early childhood educator writes:

Vasilia brings Sophia [to school] on time, properly dressed andgroomed, and ready for her day at school. Mother and daughterhave a close and loving relationship … She has made sure thatSophia is doing well at school and has reinforced learning skills athome. She has also helped Sophia by organizing play dates andout of school activities to support Sophia’s friendships andinterests. She has volunteered throughout the school year withprojects for the children and is well respected as a hard worker bythe staff and parents … Sophia is a bright, charming girl who isvery attached to her mother. Vasilia is a devoted mother to heronly child. She stands out as a very responsible, caring, lovingmother. Separating them would be a hardship for both, particularlyfor 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 easyfor me to recognize how much one-on-one time Lia has given herdaughter. 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 fosterher daughter’s development. She is an amazing parent – I haveand will continue to trust Lia to watch my own children. There isno 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 apreschool for her daughter Sophia. She impressed me as being avery conscientious parent … Vasilia was an involved andappropriate parent … It has been obvious to me, over the last twoyears, that Vasilia has a very close and loving relationship withSophia, 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). Sophia’s 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 haveongoing, sustained contact with both of her parents in theseformative years. It will be extremely traumatic for Sophia to beseparated from her mother and any separation will have a negativeimpact 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 father’s 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 defendant’s 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. Sophia’s 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. Lia’s parents are not available to care for Sophia. Jay’s 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 Sophia’s

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 Defendant’s Charitable Acts and Good Works

Charitable good works are to be considered as reflecting on the defendant’s 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

Sophia’s schools. She volunteered at Adat Shalom Preschool, prompting Director Gail A.

Schmitt to state:

Our school encourages parent involvement, and Vasilia hasvolunteered her time at the school for various projects. She hasalways been dependable, and generous with her time; and Sophialoves when her mom helps at the school. I have found Vasilia tobe very fair and honest in our school setting, as she has beeninvolved 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 daughter’s school, AdatShalom Preschool. Her name is always on the sign up sheets forvolunteer opportunities. She is known for stepping up whenneeded. When no one else can help, Lia finds a way. Herinvolvement has been and currently is crucial to the well-being ofthe school. Lia is the most helpful and reliable person I know. Asthe incoming President of next year’s PTO [Parent TeacherOrganization], 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 theevent (which was estimated to feed 500 [plus] people) without everasking for anything in return. This was the first time I hadparticipated in planning an event this large, but she made it easyfor me because of her experience – she donated her time andresources 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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Lia’s 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. Berger’s 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 Lia’s 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 defendant’s, 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 Berger’s 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

government’s 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

defendant’s] 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 Lia’s actions, but, like Sophia, those innocent people will pay a

penalty.

In addition, Jay Berger’s 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 Lia’s 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 Lia’s history of

employment and the fact she gainfully employs others.

vi. Extraordinary Acceptance of Responsibility, Cooperation with theGovernment, 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 defendant’s 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 defendant’s post-

sentencing rehabilitation efforts. The Court decided the issue in the affirmative stating:

Preliminarily, Congress could not have been clearer in directingthat “[n]o limitation … be placed on the information concerningthe background, character and conduct” of a defendant that adistrict court may “receive and consider for the purpose ofimposing an appropriate sentence” … A categorical bar on theconsideration of postsentencing rehabilitation evidence woulddirectly 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 Congresshas expressly instructed district courts to consider at sentencing.For example, evidence of postsentencing rehabilitation may plainlybe relevant to the “history and characteristics of the defendant.” §3553(a)(1). Such evidence may also be pertinent to “the need forthe sentence imposed” to serve the general purposes of sentencingset forth in § 3553(a)(2) – in particular, to “afford adequatedeterrence to criminal conduct,” “protect the public from furthercrimes of the defendant,” and “ provide the defendant with needededucational or vocational training … or other correctionaltreatment in the upmost effective manner … Postsentencingrehabilitation may also critically inform a sentencing judge’soverarching duty under § 3553(a) to “impose a sentencesufficient, but not greater than necessary” to comply with thesentencing purposes set forth in § 3553(a)(2).

Pepper, 131 S.Ct. at 1241-1242 (emphasis added).

The Court also opined, “Most fundamentally, evidence of Pepper’s conduct since his

release from custody … provides the most up-to-date picture of Pepper’s ‘history and

characteristics.’” Id. at 1242. The Court’s 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 defendant’s 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 sentencingjudge must consider the history and characteristic of the defendantwithin the meaning of 18 U.S.C. § 3553(a)(1) as well as the otherfactors enumerated in § 3553(a), and should take under advisementany related arguments, including the contention that a defendantmade efforts to cooperate, even if those efforts did not yield aGovernment motion for a downward departure pursuant to §5K1.1. Section 3553(a)(1), in particular, is worded broadly, and itcontains no express limitations as to what “history andcharacteristics of the defendant” are relevant. This sweepingprovision presumably includes the history of a defendant’scooperation 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, 328Fed. Appx. 814 (3d Cir. 2009) (sentence not unreasonable where district court considereddefendant’s argument for a downward variance based upon cooperation with the governmentdespite government refusal to file a motion for departure pursuant to § 5K 1.1.).

Recently, the First Circuit discussed the relevance of considering a defendant’s

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 court’s discretion toconsider all of a defendant’s relevant conduct under § 3553(a) isconstrained by the government’s decision not to file a § 5K1.1motion. Accordingly, we join our sister circuits in sensiblyholding that, in determining the appropriate sentence within theguidelines, or in varying from the guidelines, a sentencing courthas discretion to consider the defendant’s cooperation with thegovernment as a § 3553(a) factor, even if the government has notmade a USSG § 5K1.1 motion for downward departure … Nocircuit 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 company’s 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. Lia’s 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 government’s efforts to investigate other mortgage brokers and

appraisers. She did so by working directly with the agents and/or supporting Jay’s 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. Conway’s 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 area’s 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 government’s requests of Jay. When Jay’s 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 moment’s 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 Lia’s 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 Lia’s 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. Berger’s 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 Lia’s 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 Sophia’s 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 defendant’s 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. Berger’s 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 eachof the § 3553(a) factors, including the “overarching instruction” of18 U.S.C. § 3553(a) that the court should impose a sentence that is“sufficient, but not greater than necessary” to comply with thepurpose 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 PolicyStatements

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 defense’s 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 LeNature’s 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 Lia’s 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 Berger’s 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 Lia’s 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 Lia’s support (e.g. watching

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Sophia on days Jay was supposed to have custody, rearranging Jay’s 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 Jay’s conduct and Lia’s. 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 defendant’s sentence

based upon their cooperative efforts. The defense was not privy to the discussion of Mr.

Berger’s cooperation at his sentencing because the matter was addressed under seal. Similarly,

the defense is not aware of the Court’s deliberative process in arriving at Mr. Berger’s 15-month

sentence. For the sake of argument, however, if Mr. Berger’s 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 Lia’s 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 Lia’s. 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 AllCredit 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 theposition and performed the same actions in regards to thefraudulent 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 Elleni’s case, let alone

have it attributed to Elleni, the “value” of their fraud was the same, too. Accordingly, Lia’s

sentence should be no greater than that of her sister, Elleni Berger.

The defense acknowledges that Mr. Papastergous, Randy Berger, and Mr. Cowden’s

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 Lia’s 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 thebenefit -- the government gets the benefit of the plea agreement, aswell. We get an appeal waiver. We get enhancement toleadership role. We get abuse of position of trusts, otherenhancements.

That if he wants -- he wants, basically, he wants to argue that, hey,the government should be forced to agree to a loss amount agreedto in other cases, but we don’t want to be forced to agree to thoseother stipulations. We don’t want to agree to an abuse of positionof trust enhancement. We don’t have to agree with the leadershiprole. And, also, that loss number, we don’t want to agree thatthat’s the loss number. We want to agree it’s even less.

So, he wants to try to get, essentially, the benefit of a bargain foranother contract for which he’s not the party. And the governmentgets no benefit to any of that, any of those negotiations in that.That’s 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 defendant’s 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 prosecutor’s 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 Lia’s case versus

what it sought in the related cases was purely a function of Lia’s 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. Conway’s statement conveyed to the Court Lia’s 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.

Banta’s loss calculation included the Court’s 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 Lia’s

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

prosecutor’s 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. Berger’s 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 defendant’s 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, EsquirePA ID No. 10504

/s/ Meagan F. Temple, EsquirePA ID No. 92084

JOHNSON, BRUZZESE & TEMPLE, LLC1720 Gulf Tower707 Grant StreetPittsburgh, PA 15219Telephone: (412) 338-4790Facsimile: (412) 227-3851

[email protected]@jbtattorneys.com

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