A federal judge Tuesday called a prosecutor's use of sentencing enhancements "very troubling," and sentenced an O'Hara woman to 61/2 years in prison, rather than the 24 to 30 years suggested by federal guidelines.
The prosecutor countered that the judge made "factual assumptions that are ... simply incorrect."
It was an unusually spirited discussion for staid federal court.
"You don't see, usually, a back and forth of this nature between a judge and a prosecutor," said Bruce Antkowiak, a former federal prosecutor and now professor of criminology, law and society at Saint Vincent College.
Heading for prison -- after a 14-month delay to find a guardian for her child -- is Vasilia Berger, 41, of O'Hara. Mrs. Berger and her estranged husband, Jay Berger, ran Blawnox-based Steel City Mortgage Services Inc., and both pleaded guilty to wire fraud, conspiracy and money laundering for arranging loans based on inflated appraisals and other false information.
Prosecutors showed that banks lost about $6.7 million as a result of the fraud.
But while Mr. Berger was sentenced to 15 months in prison based in part on his cooperation with investigators, Mrs. Berger -- who prosecutors said never meaningfully cooperated -- was in the crosshairs of a multi-decade sentence.
That's because while prosecutors didn't seek to apply a variety of sentencing enhancements in Mr. Berger's case, they argued that Mrs. Berger victimized more than 250 people, violated an administrative order, gleaned more than $1 million from fraud and was a chief organizer of a sophisticated conspiracy. Under federal guidelines, those enhancements would have had the effect of more than tripling the suggested sentence.
"What the government did was to take off certain enhancements and not apply them" to Mr. Berger's case, but then chose to apply them to Mrs. Berger's almost identical case, said U.S. District Judge Joy Flowers Conti.
She said she found it "very troubling" that some defendants in mortgage fraud cases would be "given such a big break by the government" while others, like Mrs. Berger, would face very long sentences.
Federal judges are required to calculate sentencing guidelines, which in fraud cases are based largely on the amount of money the victims lost, the criminal history of the defendant and enhancements for things like the sophistication of the scheme and the role of the defendant. The guidelines are not binding on judges, but if judges deviate from them, they must explain why.
Mr. Berger agreed in 2008 to plead guilty, and locked in a plea agreement that didn't include many enhancements.
Mrs. Berger offered to cooperate with prosecutors, years after the investigation started, in a bid that Mr. Conway characterized as too little, too late. After he reviewed her role in Steel City Mortgage, he successfully argued for the enhancements related to her role, the proceeds, the number of victims and other factors.
"These factors that so dramatically increased the guideline range for Mrs. Vasilia Berger had to have been known to the government at the time Jay Berger was sentenced" in September, Judge Conti said. "In other words, the government engaged in conduct that was effectively the same as guaranteeing that certain downward [sentencing] variances would be granted" to Mr. Berger.
"I cannot countenance that," she said.
Mr. Conway said that after he entered into the 2008 plea agreement with Mr. Berger that essentially ruled out the enhancements, he couldn't go back and retroactively try to apply them.
"You're assuming all of this almost bad conduct by the government when we really just didn't see" the potential enhancements at the time that Mr. Berger entered into a plea agreement, Mr. Conway told the judge.
Mr. Antkowiak said that enhancements are a common tool by which prosecutors try to reward or punish defendants. "The prosecutors can press issues, this guy was a leader, this guy had a very significant position, this guy obstructed justice," he said, and those factors can have a big impact on the sentence.
Mrs. Berger didn't contest guilt. "I thought I was helping my customers, but I realize that I was handicapping them."
Her defense focused largely on the challenges of finding an appropriate guardian for her 6-year-old daughter. Mr. Berger will be released next year, but he has advanced cancer.
Judge Conti gave Mrs. Berger until April 30, 2014, to report to prison. She also ordered Mrs. Berger to join other defendants and pay $871,669 in restitution to PNC Mortgage.
Mrs. Berger's sister and brother-in-law also have been sentenced for mortgage-related crimes.neigh_north
Rich Lord: email@example.com, 412-263-1542 and on Twitter: @richelord.