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.

Transcript of Vasilia Berger Defense Sentencing Memo

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



Criminal No. 09-308

MEMORANDUM IN AID OF SENTENCING COMES NOW, the defendant, Vasilia Berger, by and through her counsel, J. Alan Johnson, Esquire, and Meagan F. Temple, Esquire, Johnson, Bruzzese & Temple, LLC, and respectfully files this Memorandum In Aid of Sentencing. By way of this Memorandum, the defendant humbly requests the Court vary downward from the recommended guidelines range and impose a sentence commensurate with the severity of the conduct and other defendants sentenced for similar offenses. INTRODUCTION On November 10, 2010, Vasilia Berger (hereinafter Ms. Berger, Lia Berger or Lia) pled guilty to a two-count indictment charging her with conspiracy to commit wire fraud in violation of 18 U.S.C. 1349 and conspiracy to commit money laundering in violation of 18 U.S.C. 1956(h). The indictment also sets forth criminal forfeiture allegations. On September 15, 2011 and September 19, 2011, the Court took evidence at a presentence hearing concerning the monetary loss caused by Ms. Bergers conduct. In a June 26, 2012 Memorandum Opinion and Order, this Honorable Court concluded the loss caused by Ms. Bergers conduct was $6,694,745.27.

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On September 17, 2012, the United States Probation Office filed the final Presentence Investigation Report (hereinafter PSR). In that report, Ms. Bergers offense level is calculated as follows: Base offense level Loss between $2.5-7M Number of victims Violation of administrative order Sophisticated means Gross receipts from financial institution > $1M Money laundering enhancement Role in the offense Subtotal Acceptance of responsibility Timely notice of intent to plead guilty TOTAL 7 +18 + 6 + 2 + 2 + 2 + 2 + 4 43 - 2 - 1 40

Through counsel, on September 21, 2012, Ms. Berger filed her objections to the PSR. She objected to the inclusion of enhancements, which were not also levied against her husband, Jay Berger, in calculating the recommended offense level in his case. In addition, Ms. Berger specifically objected to the inclusion of the 2-point enhancement for violating an administrative order. On October 5, 2012, in the Addendum to the PSR, the Probation Officer rejected each of the defendants arguments to amend the offense level calculation. The objections raised by the defendant in the September 21st filing are incorporated by reference into this Memorandum. Based upon the parties Positions With Respect to Sentencing Factors and the PSR filed by the Probation Office, Ms. Bergers offense level is somewhere between 27 (70-87 months) and 40 (24 years, 4 months 30 years, 5 months). Notwithstanding the final Guidelines calculation, Lia Berger requests this Honorable Court vary downward from the recommended Guidelines range. 2

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The basis for the defendants request is set forth in the subsequent pages, but is generally based upon Lias characteristics and family circumstances, the need to avoid unwarranted sentencing disparity for similar conduct and to deter future prosecutions from seeking to exacerbate sentences based purely on the defendants exercise of constitutional rights. It is the position of the defendant that a sentence commensurate with those imposed in the related cases (PSR Page 1A) is an appropriate measure of justice for Ms. Berger. A sentence comparable to that of Mr. Berger and/or Elleni Berger will meet the goals of sentencing, while avoiding unwarranted and disparate sentencing of a defendant whose conduct was exactly the same, but who chose to exercise certain constitutional rights in her own defense. DEFENDANTS STATEMENT TO THE COURT Defendants have a right of allocution prior to the pronouncement of sentence, which is a right guaranteed by due process. U.S. v. Fisher, 502 F.3d 293, 297-298 (3d Cir. 2007), cert. denied, 552 U.S. 1274 (2008); U.S. v. Plotts, 359 F.3d 247, 249 (3d Cir. 2004). This is a very important right in light of the emphasis in Booker and Gall on the need for individualized sentencing. This Memorandum explores the nature of the offense, as well as the history and characteristics of Lia Berger. To that end, Ms. Berger has prepared a letter to the Court for consideration in determining an appropriate sentence. In her letter to the Court, Lia states, [P]lease understand that I know that I have committed a serious crime. I crossed the line and I am a criminal. I will be judged for the rest of my life because of my mistakes. I know I will overcome this and I am a better person because of this. Exhibit 1. Her letter repeatedly acknowledges her guilt and expresses her remorse for her conduct. Lias request for leniency in her case is purely a product of wanting to be in her daughters life during her most formative years. Lia tells the Court about the physical


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manifestations of severe anxiety that her daughter, Sophia, has recently developed. Though there is probably little in this case about which everyone can agree, there can be little dispute that the impact this is having on Sophia is heartbreaking. None of this is Sophias fault, at all, yet even under the best of all possible results, she will suffer. IMPACT OF THE SENTENCING FACTORS OF 18 U.S.C. 3553(a) Following United States v. Booker, 5345 U.S. 220 (2008), the district court must impose a sentence in accordance with the factors set forth in 18 U.S.C. 3553(a), of which the advisory United States Sentencing Guidelines are one factor to consider. U.S. v. Cooper, 437 F.3d 324 (3d Cir. 2006). The district court must give meaningful consideration to all of the 3553

sentencing factors and state on the record logical reasons for the sentence that are consistent with those factors. Id. Section 3553(a) begins with the broad mandate that sentencing courts shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. 18 U.S.C. 3553(a). Section 3553(a) further directs the district court to consider the nature and circumstances of the offense; the history of and characteristics of the defendant; the need for the sentence imposed; the kinds of sentences available; the Sentencing Guidelines range; any pertinent policy statement; the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct; and the need to provide restitution to any victim of the offense. 1

1 In Gall v. United States, 552 U.S. 38 (2007), the Court rejected any requirement of a showing of extraordinary circumstances to justify a sentence below the Guidelines range as not consistent with our remedial opinion in United States v. Booker. Requiring extraordinary circumstances to justify a sentence below the Guidelines range would impermissibly elevate the Guidelines above other factors articulated in 18 U.S.C. 3553.


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The Nature and Circumstances of the Offense and the History and Characteristics of Lia Berger a. Nature of the Offense All federal crimes are serious offenses. However, Ms. Bergers offenses were nonviolent

in nature and she does not present a danger to the community. The PSR more fully details Ms. Bergers conduct. Lia Berger relied upon the services of Kenneth Cowden to perpetrate the mortgage fraud scheme. Mr. Cowden held himself out as a real estate appraiser, but he was never properly licensed to work as such. In sum, Mr. Cowden would falsify appraisals using a variety of methods in order to make properties appear to the lenders as though they were more valuable than they actually were. In addition, Ms. Berger engaged in a practice which has come to be known as creative financing, which would allow purchasers to receive cash at closing or borrow without actually putting money down when the settlement documents made it appear as though they had. The scheme was sophisticated in nature and the offenses are, indeed, serious. The defense believes it is important, however, to consider the genesis of Lias involvement in the scheme. At age 24, Lia left her job at PNC Bank and used the only money she had saved $500.00 to procure her brokers license. She worked legitimately as a mortgage broker for several years, well before the housing boom of the early-to-mid-2000s. She was awarded Mortgage Broker of the Year for the state in 1999, which award was presented to her by then-Attorney General D. Michael Fisher. Lias fraudulent activity began when she met Mr. Cowden. She met Mr. Cowden

through her now-estranged-husband, Jay Berger. Jay and Ken Cowden had a history of doing business together that preceded involvement by Lia in anything illegal. Ken had been Jays accountant for his business, First Federated Mortgage. 5

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