Madoff - Annette Bongiorno Sentencing Memo

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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UNITED STATES OF AMERICA 10 Cr. 228 (LTS)

-against-

ANNETTE BONGIORNO,

Defendant

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SENTENCING MEMORANDUM OF ANNETTE BONGIORNO

SERCARZ & RIOPELLE, LLP

810 Seventh Avenue, Suite 620

New York, New York 10019

Telephone: 212-586-4900

Case 1:10-cr-00228-LTS Document 1054 Filed 07/09/14 of 35

PRELIMINARY STATEMENT

Defendant Annette Bongiorno (“Mrs. Bongiorno” or “Bongiorno”) respectfully submits

this memorandum in aid of her sentencing. Although the Presentence Report (“PSR”) includes a

description of Mrs. Bongiorno’s background and the offense, we submit this memorandum to

provide additional detail regarding these matters, so that the Court will have a fully nuanced

picture of Mrs. Bongiorno and her conduct when it imposes its sentence on her.

Because of the length and complexity of the PSR and the length of the trial in this matter,

we will not quibble with every factual detail or allegation which Mrs. Bongiorno contends is

erroneous or with which she disagrees. Many of the issues which Mrs. Bongiorno wishes to

raise can be dealt with in a general way, and we will recall to the Court’s attention some of the

testimony at the trial of this matter which is informative on sentencing issues. Ultimately, the

Court’s understanding of the facts, shaped by its observations of the trial witnesses and Mrs.

Bongiorno’s own testimony, will guide it in determining a just sentence.

For the purposes of this proceeding we accept the fact that Mrs. Bongiorno has been

convicted of participating in the largest securities fraud in history, and we accept that her

sentencing guidelines recommend a sentence of “life,” which would mean that she must be

imprisoned until she dies. But, for all the reasons stated below, we argue that Mrs. Bongiorno

should not be sentenced to a term of life imprisonment, and that a sentence of approximately 8 to

10 years is appropriate.

The core issues here are simple and stark: should this defendant be denied any possibility

of completing a prison term and reuniting with her family and friends? Is she so thoroughly

irredeemable as a person that she should be denied any possibility of re-entering society? As the

Court knows from the Probation Department’s recommendation of 20 years’ imprisonment, the


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Probation Department does not believe that a “life” sentence is appropriate in this case. We

agree with that assessment, and we believe the Court will agree with that assessment too, after

considering the evidence produced at trial and the defendant’s personal history and

characteristics as described in this memorandum.

As we argue below, a just sentence is one that strips Mrs. Bongiorno of every asset she

owns, and that imposes a term of years that may well amount to the “life” sentence

recommended by the guidelines, given Mrs. Bongiorno’s age, health and life-expectancy.

However, we also argue that a just sentence should permit Mrs. Bongiorno a chance of release,

given who she is, and the real nature of the role she played in the deplorable schemes at Madoff

Securities. A sentence of 8 to 10 years of incarceration will accomplish this, even though she

may not live long enough to complete such a sentence.

For all the reasons stated more fully below, we respectfully submit that a sentence that

includes a term of incarceration between 8 and 10 years in length is an appropriate one for Mrs.

Bongiorno.

STATEMENT OF FACTS

A. Ms. Bongiorno’s Personal History and the Nature of Her Character

As the PSR notes, and as the proof at trial established, Mrs. Bongiorno was born into a

working class Italian family, and was raised in Brooklyn and Queens. PSR ¶¶ 129-30. Mrs.

Bongiorno’s upbringing was “old fashioned.” Tr. 10,184. Her parents raised her to be loyal,

generous and hard-working, with a focus on extended family and friends. PSR ¶ 131. Mrs.

Bongiorno has described her childhood as “wonderful,” and she continued to live at home long

after she became an adult. PSR ¶ 130. When she finally moved out of her parent’s home at age

28, they were upset by her decision to do so. PSR ¶ 130.


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Mrs. Bongiorno’s formal education did not extend beyond High School. PSR ¶ 145. She

first went to work at Madoff Securities when she was just 19 years of age, and spent almost her

entire career at Madoff Securities. PSR ¶ 150. She never received any training or education in

the securities industry apart from what she learned on the job. Mrs. Bongiorno never obtained

any license associated with the securities industry, and never received any sort of informal

training outside of Madoff Securities. Tr. 10,203.

As the foregoing discussion indicates, Mrs. Bongiorno was a naïve young woman when

she went to work at Madoff Securities, for whom loyalty and generosity were paramount. At the

firm, Mrs. Bongiorno became attached to those who worked with her, and Madoff Securities

became more than a job for her, because she worked with so many long-term friends. In fact,

two of Mrs. Bongiorno’s former colleagues, Joann Sala and Angela Celentano, have written to

the Court to emphasize the good qualities in Mrs. Bongiorno they came to know during the time

they worked with her, many years ago. According to Ms. Sala, “[t]here is nothing she would not

do for her family and friends,” and Mrs. Bongiorno “was always the first one to give a gift when

a baby was born, when someone got married, birthdays and Christmas … Her family and friends

meant everything to her.” Letter of Joann Sala, attached as Exhibit A. And Angela Celentano

notes that, despite Mrs. Bongiorno’s conviction, “I consider Annette a friend for life, someone I

could always count on no matter what distance is between us and someone with a warm and

generous heart.” Letter of Angela Celentano, attached as Exhibit B.

Moreover, as the Court knows, Mrs. Bongiorno is the person who got her neighbor, Frank

DiPascali, an interview at Madoff Securities, because she wanted to help Mr. DiPascali’s mother

find him a decent job. Tr. 10,303. There is nothing in the record to suggest that Mrs. Bongiorno

understood she was recruiting Bernie Madoff’s “right hand man” when she helped Mr. DiPascali


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get a job at Madoff Securities – instead, she was simply trying to help a neighbor with a problem.

Tr. 10,303. While the jury has found that Mrs. Bongiorno was a participant in the securities

fraud at Madoff Securities, and we must accept that finding for the purposes of this proceeding,

we respectfully submit that the trial record as a whole demonstrates that Mrs. Bongiorno was not

just a fraudster or self-interested sociopath. There are real elements of decency in her, and she

presents the Court a mix of personal traits that are not simply consistent with the personality of a

calculating criminal.

The many letters submitted with this memorandum attest to the fact that Mrs. Bongiorno

is not simply evil or venal or motivated entirely by greed. She has established many deep

personal friendships through her generosity and goodness. As Erica Epstein writes

The first word that comes to mind when I think of Annette is

generous. By generous, I am referring to her giving, loving and

supportive nature. She is generous with her spirit, with her heart,

and with her time. … Annette always took interest in what I had to

say, and made a point of being a part of events that were

meaningful in my life. She never missed a dance recital, and I was

so happy to have her there watching me.

When I graduated from college, my parents made me a backyard

barbecue to celebrate, but Annette could not attend as she had a

family function for one of her nieces on the same day. Instead, she

took me to breakfast that morning just the two of us, and presented

me with a letter that she had written to me. In it, she recalled how

she felt seeing my mom pregnant with me, how much she loved

getting to watch me grow up, and telling me how proud my

grandmother would have been of me. … It was the nicest letter I

have ever received, and it still remains in the top drawer of my

night table. I read it often, and never fail to be struck by the love it

conveys.

Letter of Erica Epstein, Exhibit C. Antoinette Trovato and her daughter Rosemary have written

the Court in similar terms. As Antoinette Trovato tells it,

I met Annette in December 1999….


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During all these years Annette has not only been my confidante

and companion, she has been my brick wall, my support system.

She helped me during the times when my husband was in bad

health and when he passed two years ago. I too have had bad

periods of bad health including breast cancer, heart attack and

stroke and Annette has been by my side through it all. Annette

often calls me several times a day to make sure I am OK and to see

if I need anything…. Annette continued to spend time with me and

help me out, even when she was busy dealing with her own

problems and had limited time in her schedule. …

The say that if you are lucky, you will have a handful of close

friends during your lifetime. That is what Annette is to me and I

consider myself lucky and blessed to have her in my life. … A

better friend I will never find.

Letter of Antoinette Trovato, attached as Exhibit D; and see Letter of Rosemary Trovato,

attached as Exhibit E (“My siblings and I do what we can to keep [our mother Antoinette] busy,

but it is her close friendship with Annette that has gotten her through countless lonely hours. … I

am so thankful for her friendship and loyalty and am quite honestly afraid for the time when she

will not be around the corner.”).

The letters written to the Court by Mrs. Bongiorno’s friends contain many examples of

her basic kindness to others, some of whom were – at that time – considerably less fortunate than

she. For example, Dr. Ervin Fleishman describes Mrs. Bongiorno’s kindness to his daughter

Becky, who has Downs Syndrome, describing how

It may surprise you to hear this, but that is not the rule in

society. Annette would welcome her and ask her how she

was doing. She would offer her simple things to make her

comfortable and happy. My daughter Becky loved to visit

with Annette.

Letter of Dr. Ervin Fleishman, attached at Exhibit F. And see the letter of Katherine P.

Fleishman, R.N., attached as Exhibit G (“Annette always pays close attention to what Becky is


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saying and understands her. She is very kind to her and Becky always feels welcome in her

home.”). Dr. Fleishman goes on to observe,

Over the years I know that Annette has helped her sister. Once

again, this was both emotionally, financially and in other ways.

What I am about to say, is very paradoxical considering the nature

of the crimes. Annette was not about money. She is a very simple

woman, she has limited education and limited understanding of

many topics. She simply believed in helping others.

Exhibit F. “She is truly a genuine person” according to her friends Linda and Joseph Mauro,

who have known her for more than 30 years; they describe how concerned Mrs. Bongiorno was

for their daughter, who is deaf, and her fundamental kindness. Letter of Linda and Joseph

Mauro, attached as Exhibit H. Other letters from Mrs. Bongiorno’s friends, describing her

commitment to those who have befriended her and others, are attached together as Exhibit I. As

Louis Morello observes in one of those letters, “In times of trouble her friendship and support

could always be counted on by all those who love her.” Letter of Louis Morello, attached in

Exhibit I. And those whom she befriended in the past are happy to step forward and be counted

on her behalf now that she is the one who needs their help.

We would remind the Court that the government called scores of witnesses over nearly

six months of trial. Yet, in all that time, the government did not call a single Madoff Securities

customer/victim to testify that Mrs. Bongiorno deceived him or her. Instead, Mrs. Bongiorno

called as character witnesses two former Madoff Securities customers – Isaac Maya and Daniel

Jacobs -- who testified that they believed Mrs. Bongiorno was honest, and whose affection for

Mrs. Bongiorno was clear. Tr. 10,118; 10,113. Both Mr. Maya and Mr. Jacobs have written the

Court in support of Mrs. Bongiorno despite the losses they or their families have suffered as a

result of the Madoff Securities fraud. The letters of Mr. Maya and Mr. Jacobs are attached

together as Exhibit J. The Court may also recall that Mrs. Bongiorno was not able to call a third


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Madoff Securities victim named Elizabeth Giglia as a character witness, because Mrs. Giglia

injured herself and was unable to attend Court. Mrs. Giglia and her husband have written the

Court to express their support for Mrs. Bongiorno, noting that “she helped her Mother financially

when she was gravely ill, and help[ed] educate her sister’s sons by helping with tuition.” Letter

of Salvatore and Elizabeth Giglia, attached as Exhibit K. As Mrs. Giglia and her husband

observe, “We also lost money with Madoff, but that does not change our feelings about Annette.

We still remain friends with her and her husband Rudy. … We know Annette to be a very

generous person for 33 years.” Id.

The letters written by Mrs. Bongiorno’s loving and extended family are similar. All of

them emphasize Mrs. Bongiorno’s fundamental decency, kindness and generosity. And they

also demonstrate, as Kerri Catapano writes, that Mrs. Bongiorno “has essentially filled the role

of being our family’s ‘backbone’ since the passing of the older generation. … I feel blessed to

have had someone with such a strong presence and positive influence in my family. I hope that

in this process, her true character was able to shine through for others to see in half the light that

I have been able to in over the past 28 years.” Letter of Kerri Catapano, attached as Exhibit L.

According to Chris Argese, Mrs. Bongiorno “was a patriarch of the family in that she

would always try bringing everyone together; it was what she lived for. … My aunt is a strong

and proud lady, which is why people may view her as ‘difficult’ sometimes … but underneath it

all she really is a kind, compassionate person who wants nothing but the best for her family,

friends and those around her.” Letter of Chris Argese, attached as Exhibit M. And Mrs.

Bongiorno’s sister, Marie D’Allessandro, describes Mrs. Bongiorno as her “rock,” “always …

helping me emotionally and financially. Unable to conceive her own children … my boys


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became her boys & now my grandchildren have become her grandchildren.” Letter of Marie

D’Allesandro, attached as Exhibit N.

As her cousin, Colleen Weber recalls it, because Mrs. Bongiorno “was the oldest of the

cousins,” she “served as a ‘bridge’ to our generation, teaching us the sentiment of tradition. She

was the example of loyalty, respect and appreciation for the older generation. … It was NEVER

about money with Annette … it was her LOYALTY! She loves with all of her heart.” Letter of

Colleen Weber, attached at Exhibit O. And Mrs. Bongiorno’s niece expresses the view of her

entire family when she writes

… I do not look forward to the day that I have to explain all of this

to my children.

Annette has shown me and my children nothing but kindness,

generosity, consideration and love these last eleven years. I can

assure you that this family will have a huge void to fill without her

presence.

Letter of Susan D’Allessandro, attached as Exhibit P. In fact, virtually every member of her

family who has written the Court describes how close-knit Mrs. Bongiorno’s family is, and the

role Mrs. Bongiorno plays in her family. As Mrs. Bongiorno’s second cousin Chrissy Weber

puts it,

From Sunday afternoon meals to birthday parties and holidays, my

family was always together. Now, with my generation starting the

next one, Annette is always making sure our families are together

and the traditions are getting passed down. Her home has been the

place where a lot of family memories have been made because she

has taken the time to keep us all together. Four generations later,

our bond is just as strong today as it was when Annette was a little

girl. …

My mother was diagnosed with Multiple Sclerosis approximately

13 years ago. This is a very emotional topic for me and one that I

don’t discuss with too many people. At one point, she was having

a very hard time physically and needed a certain treatment that

would put her out of work for a few days. I remember Annette


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calling me and saying she would be there for us every step of the

way, no matter what was needed. Always true to her word, she

was the shoulder my Mom leaned on and the person who stood by

me and my siblings during that emotional time. Annette’s love and

loyalty not only helped make a rough time easier, it … also

showed me what it means to be there for someone you love and

care about.

Letter of Chrissy Weber, attached as Exhibit Q. And, as her niece Jessica Argese writes “it

breaks my heart to think she won’t be able to see my sister, brother and I these next few years.

She’s always been a part of our lives and it will never be the same without her.” Letter of Jessica

Argese, attached as Exhibit R. Other letters written by Mrs. Bongiorno’s family and friends that

describe her position and role within her family and group of friends are attached together as

Exhibit S.

The nearly four years since her arrest have been difficult ones for Mrs. Bongiorno. She

has endured a very public form of humiliation and vilification in the press coverage of the

Madoff scandal. And yet, even the midst of her troubles, Mrs. Bongiorno’s principal concerns

have been looking after her friends and family. As her sister-in-law Susan Argese tells it

We’ve watched her shed many tears these last five years, and not

over the loss of monetary things, but the loss of family, friends and

respect. People closest to her shunned her, people she so loved.

She went from being arrested, locked in her home for months, to

having her assets frozen and not being able to pay her bills. She

was stripped of dignity and the feeling of betrayal overwhelmed

her. People who never even knew her wrote despicable things on

blogs about her, especially about her looks and papers insinuated

there were drugs and sex rings (my sister-in-law would never!).

She doesn’t even drink. I couldn’t believe people could be so

vicious. The hundred Christmas cards she loved to get, went down

to three.

…

As I heard the guilty verdict on the news, I was petrified. But to

show you what kind of person Annette is, she sent me a text saying

“Don’t worry about me, I’ll be okay. I’ll be brave.” I offered to

drive the two hours in to see her, and she replied she was worried


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about me driving too late at night. She just got a guilty verdict and

was worried about me.

Letter of Susan Argese, attached as Exhibit T. And her treating psychologist, Kristin Schaefer-

Schiumo, Ph.D. reports a similar experience, when she writes

Many times, in our discussions of Ms. Bongiorno’s loneliness, she

would discuss her friendships over the years. Countless times I

heard of dinners at her home, outings with nieces and nephews.

Ms. Bongiorno seemed to give endlessly to family and friends and

to derive great meaning and purpose from doing so. There was an

innocence and kindness evidenced in these interactions. About

two weeks ago (following the guilty verdict), Ms. Bongiorno

reported being in a store to repair her eye glasses. Her back was to

a couple of people who began discussing the Madoff case. Ms.

Bongiorno reported that they felt that the five defendants were

selfish and did not care how much they hurt all of the victims

emotionally and financially. Importantly, Ms. Bongiorno was

visibly tearful and upset (far more so than when discussing her

verdict). She noted absolutely caring for the victims, worrying for

them, and feeling stuck and unable to help them. In fact, on the

day of the verdict itself, Ms. Bongiorno reached out to this

psychologist stating, ‘I am ok. I am not afraid. I will remember

what you taught me.’ … Though tearful about the incident at the

eye glass store, Ms. Bongiorno asked how I was feeling and told

me that I look better than I had in a bit. … Despite an inordinate

amount of stress and fear around much unknown, Ms. Bongiorno

remains compassionate toward and focused on others.

Letter of Kristin Schaefer-Schiumo, Ph.D., attached as Exhibit U.

One of Mrs. Bongiorno’s former counsel, Diane Ferrone, has remarked on how

supportive Mrs. Bongiorno was of her during the stress of the trial in this matter:

I first met Annette in the falloff 2009, when she retained Sercarz &

Riopelle, LLP. In the early days of the firm’s representation of

Annette, I was her primary contact because the firm’s partners

were on trial on Long Island for eight months. During this time I

spoke with Annette regularly and got to know her very well. My

legal representation of her slowly evolved, and today, I am proud

to call her my friend.


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Without any hesitation, I can represent to this Court that Annette is

a warm, caring and loyal woman. After Annette learned that I do

not have very much family, there wasn’t a holiday that passed

when she didn’t make sure that I wasn’t going to be home alone.

Prior to Hurricane Sandy, she urged me to come to her house

because she felt I would be safer there than in Manhattan. (She

even offered for her husband to come and pick me up!)

While she was on trial and I was no longer her attorney, Annette

learned that I was going through a difficult time. Even though she

was the one facing federal criminal charges, she went out of her

way to regularly check on me to see that I was doing ok.

Letter of Diane Ferrone, attached as Exhibit V.

Despite the fear and dread that she has felt since the jury’s verdict, Mrs. Bongiorno

continues to worry about others, and to focus on the needs of her friends and family. As Andrew

Maya writes,

Annette has been stripped of her wealth and is facing losing her

freedom entirely, yet her giving, loving, and generous spirit has

still not changed. Just last week my family and I had “Italian

Sunday Dinner” at Annette’s. Annette cooked the favorite dishes

of my brother, sister and I (all different I might add). I could only

imagine that most people in Annette’s situation would not be

concerned with who likes ziti versus spaghetti. Annette, however,

made both….

I can’t imagine not having her to share my birthdays, holidays,

weekly dinners, good times, and bad times with. Annette is a one

of a kind person and she brings happiness to so many people. I am

sure I am not the only one [who] feels this way.

Letter of Andrew Maya, attached as Exhibit W. And Andrew’s mother, Rhonda Maya, notes

that

I have always considered myself very fortunate knowing that I

could turn to Annette whenever I needed someone to talk to. She

would always take time to listen and give me her honest opinion,

even if it wasn’t what I wanted to hear. For that I am very

grateful….


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She is a special, loving person who has a heart of gold. There will

certainly be a void in many lives knowing my dear friend Annette

will not be there to share it.

Letter of Rhonda Maya, attached as Exhibit X.

We respectfully submit that the foregoing descriptions of Mrs. Bongiorno and her

relationships with her family and friends are a far better measure of her character than the

allegations in the Indictment. While we must accept the Indictment as true for the purposes of

this proceeding, we submit that Mrs. Bongiorno is not beyond redemption. She loves and is

loved by many. She has contributed greatly to many, many lives, and can continue to do so if

given an opportunity. We acknowledge that she must pay a heavy price at the time she is

sentenced, despite her protestations of innocence, because that is what our society and our legal

system require. But we submit that the Court should impose a sentence on Mrs. Bongiorno that

she has a chance of completing, because she can contribute much to society if she is permitted to

re-enter it.

B. Mrs. Bongiorno’s Role in the Fraud at Madoff Securities

While the defense does not challenge the Sentencing Guidelines adjustment applicable to

Mrs. Bongiorno because of her role in the offense (see PSR, at ¶ 117), we do submit that the

characterization of her role is important for the purposes of assessing her culpability. The

defense respectfully submits that, even though the jury’s verdict indicates that Mrs. Bongiorno

supervised others in connection with criminal activity that involved five or more participants and

was otherwise extensive, the proof at trial demonstrated that she had very limited discretion in

carrying out her duties at Madoff Securities. In a letter to the Probation Department dated July 1,

2014, the government asserts that “Bongiorno was largely self-directed, often making up the


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thousands of transactions in her clients’ accounts and instructing her staff to research possible

trades.” A copy of the government’s July 1, 2014 letter is attached as Exhibit Y.

In her response to the government’s letter, Mrs. Bongiorno cited the trial record – both

testimony and documentary exhibits – which established that she had very limited discretion to

enter trades in her customers’ accounts. In fact, the trades she entered into her customers’

accounts were all approved by Mr. Madoff, after being proposed by Mr. Madoff or Mrs.

Bongiorno’s customers, created by or proposed by Mr. Kugel, or created by Mr. DiPascali. A

copy of Mrs. Bongiorno’s July 1, 2014 letter responding to the government’s July 1 letter is

attached as Exhibit Z. As the Court will recall, Mr. Madoff controlled everything at Madoff

Securities, right down to just how far the venetian blinds were open during the day. A “control

freak” like that most certainly directed the preparation of the false account statements at issue,

and the proof showed quite clearly that nothing was entered into any account statement by Mrs.

Bongiorno without Mr. Madoff’s review and approval. Tr. 1032; 5752; 10,317. In fact, it is

laughable to think that Mr. Madoff would let Mrs. Bongiorno control any significant aspect of

his fraud, given her lack of sophistication, her tendency to make clerical errors and her

occasional forgetfulness, which could lead to the fraud’s detection. Tr. 1138.

Indeed, despite Mr. DiPascali’s dubious claim to be a “fringe player” in the revisions to

the Avellino & Bienes statements in 1992-93, the trial record demonstrated that he was deeply

involved in directing Mrs. Bongiorno’s activities in connection with those revisions. And the

trades Mr. Kugel saw Mrs. Bongiorno entering into her customers’ accounts all came from the

box known as “David’s Set-ups” (GX 105-K-1), which contained a series of arbitrage “trades”

which Mr. Kugel created and taught Mrs. Bongiorno to divide and distribute to her clientele as

needed, when approved by Mr. Madoff. The back-dated trades in Mr. Kugel’s own accounts


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were selected by him, not Mrs. Bongiorno. See Ex. AB-16a-c. We remind the Court that the

same was true for Mr. Kugel’s colleague, Marty Joel, who directed the back-dated trading in his

Madoff Securities account – subject, of course, to Mr. Madoff’s approval. See Ex. AB-22.

Thus, while it is certainly true that Mrs. Bongiorno was a supervisor at Madoff Securities,

and it is true that she had a team of persons working for her who entered fake trades into her

customers’ account statements, the fact of the matter is that Mrs. Bongiorno had very little

discretion to decide the manner in which her customers’ accounts were manipulated, and the

suggestion that she was a “portfolio manager” for her customers, with the implication that she

somehow engineered the fraud in some way, is not supported by the evidence. Instead, Mrs.

Bongiorno was a functionary, whose role was concededly important for the fraud’s success. As

such, she is less culpable in many respects than Mr. DiPascali and Mr. Kugel, who invented the

phony trades and directed their entry into the customers’ statements. Mrs. Bongiorno never

shared with Mr. DiPascali and Mr. Kugel the market savvy to create bogus options and arbitrage

trades, and she always took direction from Mr. Madoff with respect to which trades to enter into

her clients’ accounts and in what manner. Nor did Mrs. Bongiorno have Mr. Kugel’s, Mr.

Madoff’s or Peter Madoff’s expertise in market regulations at any time during the conspiracy.

We respectfully submit that these facts make her conduct less culpable than that of Mr.

DiPascali, Mr. Kugel and Mr. Peter Madoff, and we urge the Court to consider this when it

sentences Mrs. Bongiorno.

C. The Tax Evasion Counts

The jury has convicted Mrs. Bongiorno of tax evasion in connection with the withdrawals

she received for many years from the Bernard L. Madoff Special 1 and Special 2 accounts. We


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must accept that verdict for the purposes of this proceeding. However, the following points

about Mrs. Bongiorno’s conduct in relation to the tax counts must be made on her behalf.

First, Mrs. Bongiorno did declare and pay taxes on millions of dollars in income and

securities transaction proceeds during the many years she has been convicted of evading the

payment of tax on the withdrawals she took from the Special 1 and Special 2 accounts. Mrs.

Bongiorno never failed to file a tax return during the years in question, and she paid hundreds of

thousands of dollars of tax on transactions, interest and dividends that we now know did not

exist. Mrs. Bongiorno’s payment of significant taxes during the years in which she has been

convicted of evading tax on a small part of her income sets her apart from other tax criminals –

such as Mr. DiPascali or Mr. Kugel -- who evaded the payment of tax on all of their income or

on a significant majority of their income, and who never filed a tax return at all. Mrs. Bongiorno

was not a taxpayer who rejected the notion of paying tax altogether; or who sought to cheat the

government of the majority of the taxes she owed; or who brazenly failed to file a tax return

when earning significant income.

Nor did Mrs. Bongiorno engage her accountant in elaborate fraudulent schemes to evade

the payment of her income tax, in the manner described by David Friehling when he testified

about the elaborate tax frauds he committed with Bernard Madoff. Mrs. Bongiorno did not

advise her accountant of the withdrawals she took from the Special 1 and Special 2 accounts, but

she did not enlist Mr. Jacobs in a conspiracy to put bogus numbers on her tax return either.

Indeed, Mr. Jacobs described Mrs. Bongiorno as “honest” in his trial testimony, and he has

written a letter in support of Mrs. Bongiorno in connection with this proceeding. Tr. 10,118;

Exhibit J.


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We do not argue that tax evasion is not a serious crime, and in this case, the jury has

found that Mrs. Bongiorno evaded the payment of income tax on a modest part of her income for

many years. But we do believe Mrs. Bongiorno’s conduct is not as serious as that of Mr.

Madoff, Mr. DiPascali, Mr. Kugel, or other significant tax evaders. Mrs. Bongiorno was not a

“scofflaw” who refused to pay any tax or who failed to file her returns. She did not evade the

payment of the bulk of the significant taxes she owed each year. She did dutifully declare and

pay taxes on most of the income she received, and she declared and paid tax on much of the

income she never received when the Madoff Securities firm went up in smoke. We ask the Court

to consider these facts when it considers the tax evasion counts in fashioning a sentence for Mrs.

Bongiorno.

D. The “Conscious Avoidance” Charge

The government requested that the Court charge the jury on the issue of Mrs.

Bongiorno’s “conscious avoidance” in this case. There is every reason to believe that Mrs.

Bongiorno was convicted by the jury on this theory of guilt, particularly given Mr. DiPascali’s

testimony that he deceived Mrs. Bongiorno at the end of the Ponzi scheme, when he deliberately

concealed from her the fact that the Madoff Securities firm was about to collapse. Tr. 5472. If

Mr. DiPascali knew that Mrs. Bongiorno was a knowing participant in the fraud, his lie to her

wouldn’t be necessary, and if Mrs. Bongiorno knew the nature of the fraud at Madoff Securities,

there wouldn’t be any need to engage in the rigmarole of “selling off” the positions in the

accounts she closed at the time Madoff Securities collapsed. Tr. 4428, 4432. This evidence that

Mrs. Bongiorno did not understand the nature of the fraud at Madoff Securities, even at the end

of the scheme, suggests that she was less culpable than others who did know about aspects of the

fraud they never shared with her.


17

Mr. Kugel’s decision to lie to Mrs. Bongiorno after the collapse of Madoff Securities is

also consistent with this theory – Mr. Kugel would have no reason to lie to Mrs. Bongiorno if she

were a full-fledged co-conspirator who knew all about the fraud. But Mr. Kugel apparently

didn’t believe that Mrs. Bongiorno knew and understood the fraud, and so, he lied to her about

the way in which it operated. Tr. 2147-48. Mr. Kugel’s decision to lie to Mrs. Bongiorno

indicates that she was less knowledgeable and less culpable than he.

The fact that Mrs. Bongiorno never closed her accounts at Madoff Securities until

ordered to do so by Mr. Madoff and Mr. DiPascali is additional evidence of her “willful

blindness” to the frauds at Madoff Securities. If she truly knew of the frauds at Madoff

Securities, she would have closed her accounts and taken her money out of the firm long before

it collapsed. The fact that she left the bulk of her wealth at the firm, and expressed concern

about her tax exposure when directed to close her accounts, is evidence that she did not

understand the nature of the fraud at the firm, and was therefore convicted on a “willful

blindness” theory. But, as a wilfully blind person, she is less culpable than a knowing participant

in the frauds which the jury has found occurred at Madoff Securities.

We urge the Court to consider that Mrs. Bongiorno was most likely convicted on a

“conscious avoidance” theory at the time it imposes sentence. While the law judges an ostrich to

be as guilty as a fully knowing participant in a fraudulent scheme, an ostrich is clearly less

culpable for purposes of sentencing than a knowing participant. We respectfully submit that the

Court should sentence Mrs. Bongiorno as an individual who avoided knowing the facts about

Madoff Securities, based on the entire record in this case. And therefore, Mrs. Bongiorno should

receive a degree of leniency that a knowing participant in the fraud would not and should not

receive.


18

E. Mrs. Bongiorno’s Character

As the foregoing discussion indicates, Ms. Bongiorno was not a vicious or a venal person

when she participated in the frauds at Madoff Securities. She was not a sociopath motivated

only by selfishness. And she was not motivated by an overwhelming greed to commit the crimes

she stands convicted of, despite the government’s emphasis at trial on her expenditures for

“needless luxuries” toward the end of her working life. As the letters submitted by her family

and friends attest, she was not just “about money” (Exhibit O) during the years she worked at

Madoff Securities, because she used much of the money she received to support her extended

family and assist her many friends.

We are confident the Court will recall that Mrs. Bongiorno wept openly when describing

the harm that was done to Mr. Maya’s family at the time Madoff Securities collapsed. That says

something about her. And it says something about her that she was more concerned about the

well being of her sister-in-law and her treating psychologist than she was about herself on the

day the jury found her guilty of every count pleaded against her in the Indictment. See Exhibits

T and U. She has always been and “remains compassionate toward and focused on others.”

Exhibit U.

Ms. Bongiorno has suffered greatly for her mistakes already. She has been impoverished

financially, and will lose everything she has as a result of her conviction. She has been

devastated emotionally because she stands convicted of harming many of her closest friends and

family members, whom she encouraged to invest at Madoff Securities. For the last six years, she

has been pilloried in the press over and over again, publicly embarrassed by her expenditures,

and humiliated by the cruel descriptions of her.


19

Despite the difficulties she has faced since the collapse of Madoff Securities, Mrs.

Bongiorno remains respectful of the law. We remind the Court that this defendant surrendered to

the U.S. Marshal’s Service shortly before Christmas 2010 when directed to do so, because she

could not raise a bail that was adequate to satisfy the government’s demands. Since her release

on bail almost four years ago, Mrs. Bongiorno has been compliant with every term of her bail.

And she maintained her composure throughout the lengthy and stressful trial of this matter,

perhaps doing a better job of that than her counsel did at certain moments during the trial. In

fact, several of the letters written by her family note how grateful she and her family are that the

Court – unlike so many others – has treated her with respect and dignity during these

proceedings. See Exhibits S (Letter of Peter Argese), and T.

Since her conviction, Mrs. Bongiorno has suffered the fear of uncertainty at what her

future will be. She knows that she faces a difficult and diminished future that will include a term

of incarceration, and she is terrified at the prospect that she will spend the rest of her days in

custody, separated from her family and her friends. Still, she focuses her concerns on others.

Again and again she has expressed to counsel her concern that her husband be provided for,

saying “I know I will have a roof over my head and something to eat, but what about Rudy?”

And her treating psychologist reports that Mrs. Bongiorno seemed more worried about the

psychologist’s well being than her own during their last appointment together. See Exhibit U.

That is the real measure of Mrs. Bongiorno, who remains “a very generous, caring, loving, loyal

and generous person,” even now. See Exhibit X.

F. Mrs. Bongiorno’s Offer to Forfeit Her Wealth

At the time the jury returned its verdict, the Court directed the parties to discuss forfeiture

issues in the hope of resolving a preliminary judgment of forfeiture prior to the imposition of


20

sentence. By June 23, 2014, counsel had not heard from the government any proposal to resolve

the forfeiture issues. On or about that day, after consultation with Mrs. Bongiorno and her

husband, I discussed a proposed forfeiture of properties with the government, in the hopes of

settling the government’s criminal and civil forfeiture allegations against Mrs. Bongiorno, as

well as the government’s civil forfeiture complaint against assets owned by Mr. Bongiorno in his

own name. After an oral discussion, I formalized Mrs. Bongiorno’s and Mr. Bongiorno’s offer

in the letter attached as Exhibit AA to this Memorandum. As is indicated in Exhibit AA, Mrs.

Bongiorno and her husband have offered to forfeit assets worth $14.6 million (an amount equal

to their total withdrawals from their Madoff Securities firm accounts, without credit for

deposits), consisting of every asset Mrs. Bongiorno owns individually; every asset Mrs.

Bongiorno and her husband own jointly; and a sum of approximately $4 to $5 million from an

account owned by Mr. Bongiorno individually, into which only $3 million in Madoff Securities

funds were deposited in 2006 and 2008, and into which other, untainted funds were deposited by

Mr. Bongiorno for many years before the Madoff Securities firm collapsed. See Exhibit AA.

Thus, Mrs. Bongiorno has offered to forfeit all property she owns individually or jointly

with her husband immediately, and she and her husband have offered to “pay in” by forfeiture

every dollar they ever received from a Madoff Securities account, without receiving any credit

for the $920,000 they deposited into the Madoff Securities firm many years ago.

Mrs. Bongiorno recognizes that she can never “make it right” for the Madoff Securities

victims, many of whom lost their life savings or substantial savings when the Madoff Securities

firm collapsed. According to the press reports, many of those victims will receive approximately

75 cents or more on the dollar when the Bankruptcy Court is done distributing the funds

collected through the Madoff Securities Bankruptcy, and after the forfeited funds are disbursed.


21

A copy of an article from the Financial Times on this topic is attached as Exhibit BB. If her

proposal was accepted, Mrs. Bongiorno would be left nothing in her own name, a harsh result

which she recognizes is appropriate in this case.

We respectfully submit that Mrs. Bongiorno’s willingness to forfeit any property she has

an interest in (provided that the forfeiture case against her husband is also settled) should be

considered by the Court when it decides her sentence. Mrs. Bongiorno’s willingness to surrender

everything she owns and everything she and her husband own jointly without any litigation

signals a genuine concern for the Madoff Securities victims, and speaks to her fundamental

decency as a person.

G. Mrs. Bongiorno’s Health, and Life Expectancy

Mrs. Bongiorno is now almost 66 years old. PSR ¶ 129. She is overweight, and suffers

from hypertension, diabetes, kidney stones, chronic obstructive pulmonary disorder (COPD),

high cholesterol and other medical conditions. While none of these conditions is immediately

life-threatening, they are significant for the defendant in combination, and they will become even

more significant as she continues to age and her medical condition continues to decline.

The average life expectancy for a female born in the United States in 2012 is 81 years of

age. See Exhibit CC. It is very unlikely Mrs. Bongiorno will reach the age of 81, given her

family’s history. Her mother died at 69 years old. PSR, ¶ 129. Her father died at 75. Her

maternal grandmother died at 74, and her maternal grandfather died at 73. Her paternal

grandmother died at 85, but her paternal grandfather was only 62 when he passed away. Given

this history, it appears to be unlikely that Mrs. Bongiorno will live past her mid-70’s, and the

likelihood that she will live to reach the average age for an American female born in 2012 (81) is

very small.


22

Incarceration has been demonstrated to reduce the average life span of those who are

incarcerated. The study of inmates incarcerated in New York State which is attached as Exhibit

DD found that, on average, inmates incarcerated in the New York State prison system lost two

years of life span for every year of incarceration. See Exhibit DD. While incarceration in the

Federal Bureau of Prisons system is not the same as incarceration in a New York State

Penitentiary, there is no reason to believe that incarceration in the Federal Bureau of Prisons

system will enhance an inmate’s lifespan. In fact, the Courts have often recognized that

incarceration in the Federal Bureau of Prisons system tends to reduce an inmate’s life expectancy

where the inmate is older or infirm. See United States v. Gigante, 989 F. Supp. 436, 443

(E.D.N.Y. 1998) (recognizing that elderly and infirm defendant’s life would be “threatened and

shortened” by incarceration); United States v. Blarek, 7 F. Supp.2d 192, 212 (E.D.N.Y. 1998)

(“Despite federal authorities' concern for prisoners' welfare, incarceration is likely to be

detrimental to this defendant's health, resulting in a lessening of his present life expectancy”).

And there certainly is no reason to think that incarceration will lengthen Mrs.

Bongiorno’s life. As is indicated by the letters attached to this memorandum, Mrs. Bongiorno is

devoted to her close circle of family and friends. That circle of family and friends is what

motivates her, supports her, and keeps her functioning at this difficult point in her life. She will

lose her connection to that circle of family and friends to a significant degree when she enters the

prison system. Her ability to communicate with and be with her family and friends will be

severely diminished. While it is impossible to predict exactly what outcome this will result in

for Mrs. Bongiorno’s health, we respectfully submit that incarceration is certain to reduce Mrs.

Bongiorno’s lifespan, given who she is and her physical and psychological condition at this time.


23

The Probation Department has recommended that Mrs. Bongiorno serve a sentence of 20

years, followed by a one year term of supervised release. Several observations should be made

about this recommendation. First, by recommending a term of imprisonment of 20 years, the

Probation Department has recognized that the Sentencing Guidelines recommended sentence of

“lifetime” incarceration makes no sense in this case, and that a sentence of a term of years that

Mrs. Bongiorno can complete is appropriate. In other words, the Probation Department

recognizes that Mrs. Bongiorno is not unredeemable, that she is not a person whom society

should shun forever, that she is not a continuing threat to society, and that she should be

permitted to re-enter society at some point.

Second, the Probation Department has recommended a term of supervised release of only

one year. This signals the Probation Department’s view – with which we agree -- that Mrs.

Bongiorno is not likely to re-offend, and that her conduct at Madoff Securities was not indicative

of such an immoral character that would require vigilant monitoring after her sentence is served.

The Probation Department has recognized that if Mrs. Bongiorno is permitted to re-enter society,

the need to supervise her is slight, because the likelihood that she will re-offend is miniscule.

Finally, we note that if the Court were to sentence Mrs. Bongiorno to a term of 20 years

of incarceration, she would be required to serve 16½ years of incarceration before release to a

halfway house, assuming that Mrs. Bongiorno is credited with 15% “good time” while

incarcerated and that she is released to a halfway house with 6 months remaining on her

sentence, as is typical when a lengthy sentence is imposed. Thus, if Mrs. Bongiorno were

sentenced to a term of 20 years of incarceration, she would be released to a halfway house

shortly after reaching the average life expectancy for an American female born in 2012.


24

Given the fact that it is extremely unlikely Mrs. Bongiorno will live to be 81 years old,

we respectfully submit that a sentence of between 8 and 10 years is more appropriate, and is

actually consistent with the Probation Department’s view of Mrs. Bongiorno. The Probation

Department does not believe Mrs. Bongiorno is incapable of redemption, and does not

recommend that she be denied any hope of re-entering society. The Probation Department did

not recommend “life” as a sentence, and we are confident that it did not intend to recommend

that Mrs. Bongiorno be incarcerated for a term that is certainly the equivalent of “life.”

Because Mrs. Bongiorno will likely die in her mid-seventies given her medical and

familial history and the strains that incarceration will certainly put on her health, we submit that

a more appropriate sentence to impose on Mrs. Bongiorno is a sentence of incarceration between

8 and 10 years in length. Service of such a sentence may well require Mrs. Bongiorno to remain

in custody for the rest of her days. It is entirely possible that Mrs. Bongiorno will “die inside” if

required to serve a sentence of 8 to 10 years. But it is also possible that Mrs. Bongiorno will

complete such a sentence and be able to return to society, her family and friends near the very

end of her life. For this reason, we respectfully submit that a sentence of between 8 and 10 years

of incarceration is entirely consistent with the intentions expressed by the Probation Department

– to give Mrs. Bongiorno a chance to live her last days outside a jail cell. And we ask the Court

to impose such a sentence based on all it knows about Mrs. Bongiorno from the trial of this

matter, the PSR and this sentencing submission.


25

ARGUMENT

POINT I

THE COURT SHOULD NOT IMPOSE

A SENTENCE OF IMPRISONMENT FOR LIFE

BECAUSE THE SENTENCING GUIDELINES

APPLICABLE TO MRS. BONGIORNO

RESULT IN AN “UTTER TRAVESTY OF JUSTICE”

The Courts have frequently noted that “the Sentencing Guidelines for white-collar crimes

[can produce] a black stain on common sense.” United States v. Parris, 573 F. Supp. 2d 744, 754

(E.D.N.Y. 2008). At least one judge in the Southern District has frequently lamented “the utter

travesty of justice that sometimes results from the guidelines fetish with absolute arithmetic, as

well as the harm that guideline calculations can visit on human beings if not cabined by common

sense.” United States v. Adelson, 441 F. Supp. 2d 506, 512 (S.D.N.Y. 2006) (Rakoff, J.)

(declining to impose the life sentence recommended by the sentencing guidelines and imposing a

42 month sentence instead). Indeed, it is frequently the case that the Courts depart substantially

from the applicable sentencing guidelines in fraud cases like this one, and impose sentences

substantially below the sentencing range dictated by a strict guidelines analysis. See, e.g.,

United States v. Ronald Ferguson, 584 F. Supp.2d 447 (D. Conn. 2008) (imposing sentences of

48 months and 24 months despite a sentencing guidelines range of life imprisonment); United

States v. Ovid, 2010 WL 3940724 (E.D.N.Y. Oct. 1, 2010) (imposing a sentence of 60 months

when the sentencing guidelines recommended range was 210-262 months, and decrying the

rigidity of the guidelines); United States v. Hatfield, 06 Cr. 550 (JES) (E.D.N.Y. May 9, 2014)

(imposing a sentence of 84 months imprisonment when the sentencing guidelines recommended

a “life” sentence in a massive accounting fraud); see also Spears v. United States, 129 S. Ct. 840,

843 (2009) (recognizing a district courts’ authority to vary from the Guidelines “based on policy


26

disagreement with them, and not simply based on an individualized determination that they yield

an excessive sentence in a particular case”)

In this case, the Court is confronted with a situation in which the massive loss caused by

the Madoff Securities Ponzi scheme, Mrs. Bongiorno’s position as a supervisor of others at the

firm, the large number of victims and the fact that Madoff Securities was a broker/dealer and an

investment advisor all result in sentencing enhancements and a recommended sentence of “life

imprisonment” that simply makes no sense.

The Probation Department itself recognizes that imposing a sentence in accordance with

the required guidelines calculation will do no good for anyone. Society will incur a significant

cost to incarcerate Mrs. Bongiorno for the rest of her days, and society will gain little from such

a sentence in return. Mrs. Bongiorno’s victims won’t be made whole by such a sentence – they

will never be fully compensated for their losses and Mrs. Bongiorno doesn’t have the money to

make them whole or even near whole. Nor would Mrs. Bongiorno’s victims or society in

general be made any safer by imposing a life sentence on Mrs. Bongiorno, since there is no

realistic likelihood that she will ever re-offend or even have the ability to commit another crime.

In these circumstances, the sentence called for by the Sentencing Guidelines is ludicrous, and

would result in an “utter travesty of justice” of the sort decried in Adelson and other cases.

Therefore, we urge the Court to reject the sentence recommended by the Sentencing

Guidelines applicable to Mrs. Bongiorno, and impose a sentence on her that will require her to

serve at least the majority of the rest of her life in prison, but that will give her the chance to re-

enter society near the end of her life.


27

POINT II

THE FACTORS DESCRIBED IN

TITLE 18 U.S.C. SECTION 3553(a)(2)

WEIGH IN FAVOR OF

A NON-GUIDELINES SENTENCE

OF BETWEEN 8 TO 10 YEARS

Title 18 U.S.C. § 3553 provides that the Court should impose “a sentence

sufficient but not greater than necessary” to provide just punishment for the defendant, and

requires the Court to consider “the nature and circumstances of the offense and history and

characteristics of the defendant.” Pursuant to 18 U.S.C. § 3553, the Court must also consider

the need for the sentence it imposes “to reflect the seriousness of the offense, [and] to promote

respect for the law.” 18 U.S.C. § 3553(a)(1) and (2)(A). These sections of the Code direct the

Court to consider the defendant and his actions holistically, and to “provide just punishment for

the offense” in light of all the facts known to the Court.

Ms. Bongiorno respectfully submits that a review of the factors the Court must consider

pursuant to Title 18 U.S.C. § 3553(a)(1) and (2) weighs in favor of a sentence that gives her

some chance of re-entering society. In this case, we respectfully submit that Mrs. Bongiorno’s

sentence should be somewhere between 8 and 10 years, for the following reasons.

When the Court considers the “history and characteristics of the defendant,” as it is

required to do by Title 18 U.S.C. § 3553(a)(1), we urge to Court to consider Mrs. Bongiorno’s

importance to her extended family. Virtually every person who has written to the Court has

emphasized Mrs. Bongiorno’s importance to her extended family, remarking on her generosity to

her family (e.g., Exhibit J, Letter of Isaac Maya), or on her “strong presence and positive

influence” on them (Exhibit L, Letter of Kerri Catapano).


28

In the days when the sentencing guidelines were binding on the Court, factors such as

Mrs. Bongiorno’s importance to her family members would justify a departure from the

applicable sentencing guidelines sentencing range. See, e.g., United States v. Londono, 76 F.3d

33, 36 (2d Cir. 1996) (“this Court and other courts of appeals have recognized that a defendant’s

familial responsibilities may present such ‘extraordinary circumstances’ that a downward

departure in sentencing is necessary and permissible”); United States v. Johnson, 964 F.2d 124,

129 (2d Cir. 1992) (same). Now that the sentencing guidelines are only advisory, the reasoning

of these cases supports a non-guidelines sentence below the applicable sentencing range, and

Mrs. Bongiorno submits that she should receive a non-guidelines sentence based in part on her

extended family’s circumstances. See United States v. Galante, 111 F.3d 1029, 1035 (2d Cir.

1997) (upholding sentencing court’s decision to depart downward based upon the Judge’s

determination that “removal of the father from this unit at this particular point in time would

have a disastrous effect on the children in terms of possibilities of their education and

upbringing”); United States v. Alba, 933 F.2d 1117, 1122 (2d Cir. 1991) (upholding downward

departure where defendant’s incarceration in accordance with the Guidelines “might well result

in the destruction of an otherwise strong family unit”).

Sentencing Ms. Bongiorno to spend the rest of her life in prison will not satisfy anyone’s

legitimate desire for retribution, because everyone who is familiar with this case knows that Ms.

Bongiorno was not the principal wrongdoer in this case, and the proof at trial established that

there were significant parts of the fraud at Madoff Securities that she knew nothing about and

played no role in. Indeed, as we have argued above, the government’s request for a “conscious

avoidance” instruction as to Mrs. Bongiorno provided the jury with a theory of guilt that is

something less than knowing and deliberate wrongdoing, and there is every reason to believe the


29

jury decided this case on that basis. And, if that is basis on which the jury convicted Mrs.

Bongiorno, she is less culpable than a knowing and deliberate perpetrator of fraud would be.

Nor is a life sentence needed to deter Ms. Bongiorno from future crimes. Given her age

and notoriety, she will never have the ability or inclination to re-offend. And imposing a life

sentence on Ms. Bongiorno will certainly not improve the Madoff Securities victims’ chances at

restitution, because Ms. Bongiorno was herself ultimately impoverished by the Madoff Securities

fraud. To sentence Ms. Bongiorno to a life in prison at this point, at the end of her life, will

accomplish nothing other than to inflict unnecessary pain on her and her family, and it will do

nothing to assuage the public’s loss or mitigate its outrage. For all these reasons, which are

stated more fully below, we submit that a sentence that does not include a term of lifetime

incarceration is appropriate in this case, and we submit that a sentence of between 8 and 10 years

is more than adequate to satisfy the applicable Section 3553(a)(2) factors. Such a sentence is

clearly “sufficient but not greater than necessary” to meet the goals of the sentencing process.

See 18 U.S.C. § 3553(a).

A. The Applicable Section 3553(a)(2) Factors

Title 18 U.S.C. § 3553(a)(2)(A) requires the Court to consider the need for the sentence it

imposes “to reflect the seriousness of the offense, to promote respect for the law, and to provide

just punishment for the offense.” We acknowledge that Mrs. Bongiorno stands convicted of

serious crimes, and that a sentence of incarceration must be imposed to promote respect for the

law and provide just punishment. C.f. Gall v. United States, 128 S. Ct. 586, 595-96 (2007) (a

probationary sentence imposes a significant restraint on the liberty of a defendant, and can

satisfy the requirements of Title 18 U.S.C. § 3553(a)).


30

At this point, Ms. Bongiorno’s life has already been changed entirely as a result of this

case. She has lost everything she ever gained from her offense, and she has been vilified

publicly for her crimes for the past six years. A sentence of 8 to 10 years – which very may well

be a “life” sentence – is adequate to complete her punishment. There is no need to impose a

symbolic sentence of “life imprisonment,” or a sentence that amounts to multiples of Mrs.

Bongiorno’s future life expectancy in order to make a point or punish her further.

The second factor listed in 18 U.S.C. § 3553(a)(2) is to “afford adequate deterrence from

criminal conduct.” 18 U.S.C. § 3553(a)(2)(B). This factor focuses on general deterrence of the

public from committing criminal conduct of the type the defendant has engaged in.

With respect to general deterrence, Mrs. Bongiorno submits that a sentence of 8 to 10

years for a defendant who is almost 66 years old and in poor health will provide adequate general

deterrence to the future criminal conduct of others similarly situated to her. A lengthy sentence

of the kind proposed here, together with the public vilification and Mrs. Bongiorno’s

impoverishment by the fraud itself, is enough to deter anyone else from engaging in the conduct

for which Mrs. Bongiorno was convicted. What member of the public, contemplating

participating in a massive fraud, would engage in that conduct if he or she knew the end result

would be years of public humiliation, the loss of every piece of property owned, and a jail

sentence that might keep him or her imprisoned for the rest of his or her life? No one would do

such a thing. Imposition of a lengthy sentence on Mr. Bongiorno at this point – nearly six years

after Madoff Securities’ collapse, and after the jury has returned a very public verdict against her

-- won’t add any further momentum to the general deterrence that this case and others like it

impress on the public. For this reason too, a sentence that includes a term of incarceration

between 8 and 10 years is adequate.


31

The third factor listed in 18 U.S.C. § 3553(a)(2)(C) focuses on specific deterrence of

further criminal conduct by the defendant herself. It requires to the Court to consider the need

“to protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(C). There

is no need to impose a term of imprisonment of more than 8 to 10 years on Ms. Bongiorno to

deter her from future crimes at this juncture. If she is lucky enough to live out the sentence that

the Court will impose on her, Mrs. Bongiorno will be well past the age of retirement when she is

released from prison, and the notoriety of her case will effectively prevent her from ever again

engaging in any sort of fraud. So there is no chance she will commit crimes in the future that

are similar to those at issue here. And with six years of good conduct since leaving her

employment at Madoff Securities, there is every reason to think that Mrs. Bongiorno will live out

the rest of her life without further illegality if she is able to complete the sentence the Court

imposes on her. There is simply no reason to believe that Ms. Bongiorno will re-offend at this

point. Thus, here, too, there is no need to impose a prison sentence of “life incarceration” or 20

years on Ms. Bongiorno to satisfy the requirements of Title 18 United States Code, Section

3553(a)(2)(C).

18 U.S.C § 3553(a)(2)(D) speaks of the need for a sentence to “provide the defendant

with needed educational or vocational training, medical care or other correctional treatment in

the most effective manner.” The defendant respectfully submits that incarceration for the rest of

her life is not necessary to ensure her medical treatment or rehabilitation. Educational and

vocational training are not needed at this point to ensure her successful re-entry into society, and

she will receive medical care whether incarcerated or not. Incarcerating Ms. Bongiorno for the

rest of her life at this point won’t do a thing to assist her to reform herself, and it will only

damage her family and ensure that their lives are made more difficult and miserable. Thus, an


32

analysis of this factor also suggests that a sentence of incarceration for “life” or even 20 years is

unnecessary.

18 U.S.C. § 3553(a)(6) speaks to “the need to avoid unwarranted sentence disparities

among defendants with similar records who have been found guilty of similar conduct.” The

defendant respectfully submits that this factor also weighs in favor of a sentence of 8 to 10 years

of incarceration. As we have noted above, the Courts have often sentenced offenders like Mrs.

Bongiorno to relatively modest terms of imprisonment, even when their sentencing guidelines

calculations appear to require lifetime incarceration. There is no reason to create a disparity

between Mrs. Bongiorno’s sentence and the sentences imposed in those cases. Therefore, this

section of Title 18 U.S.C. § 3553(a) also suggests that a sentence that does not include a life term

of incarceration is appropriate here.

Finally, 18 U.S.C. § 3553(a)(7) requires the Court to consider “the need to provide

restitution to any victims of the offense.” We respectfully submit that Mrs. Bongiorno can’t do

more to accomplish this goal than forfeit every penny she owns, which will surely happen as a

result of the criminal forfeiture in this case. Ms. Bongiorno has nothing else to give the Madoff

Securities victims. Jailing Mrs. Bongiorno for the rest of her life at this point will not make it

any more likely that Ms. Bongiorno’s victims might be made whole, and therefore, this factor

also weighs in favor of a sentence of something much less than life imprisonment.

In the circumstances of this case, the sentencing range calculated by the Sentencing

Guidelines simply makes no sense and imposing a sentence in accordance with that calculation,

or even in accordance with the Probation Department’s recommendation, will do no good for

anyone. Society will not be made safer by a sentence of lifetime incarceration in this case, and it

would incur a significant cost to incarcerate Mrs. Bongiorno for the rest of her days. Mrs.


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Bongiorno’s victims won’t be made whole by such a sentence – they will compensated for their

losses in the bankruptcy action and forfeiture actions, which won’t be affected in the slightest

way by the sentence imposed here. In these circumstances, the sentencing range calculated by

the Sentencing Guidelines is ludicrous, and the sentencing recommendation of the Probation

Department is unnecessarily harsh. A twenty year sentence for Ms. Bongiorno would be an

“utter travesty of justice” of the sort decried in Adelson and other cases every bit as much as a

sentence of “life imprisonment” would. Instead, a sentence that includes a harsh term of 8 to10

years of imprisonment is appropriate in the unique circumstances of this case. United States v.

Adelson, 441 F. Supp. 2d at 512.

As is indicated by the foregoing analysis, the various relevant factors set forth in Title 18

United States Code Section 3553(a) all weigh in favor of a sentence that does not guarantee that

Mrs. Bongiorno be incarcerated for the rest of her natural life, and Mrs. Bongiorno respectfully

requests that the Court impose such a sentence on her, in the range of 8 to 10 years.

B. Restitution and Fine Issues

The defendant also requests that the Court decline to impose restitution or a fine on her. Mrs.

Bongiorno will lose everything she owns in forfeiture in this case, and therefore any fine or

restitution order would be an empty gesture. In fact, the Probation Department does not

recommend that restitution or a fine be imposed, noting that Mrs. Bongiorno has no financial

ability to pay a fine, and the Probation Department notes that any restitution can be paid through

the remission process in connection with the property Mrs. Bongiorno will be required to forfeit.


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CONCLUSION

For all the foregoing reasons, Annette Bongiorno respectfully requests that the Court

impose a sentence on her that is just, and she contends that such a sentence would include a term

of incarceration of between 8 and 10 years.

Dated: New York, New York

July 9, 2014

SERCARZ & RIOPELLE, LLP

By: /S/

Roland G. Riopelle, Esq. (RR-2950)

Maurice H. Sercarz, Esq. (MS-7020)

810 Seventh Avenue, Suite 620

New York, NY 10019

(212) 586-4900

Fax (212) 586-1234

Attorneys for Defendant Annette Bongiorno


Madoff - Annette Bongiorno Sentencing Memo

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