Professional Documents
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18-CR-108-EAW
PATRICKOGIONY,
Defendant.
PLEAAGREEMENT
The defentlant, PATRICK OGIONY, and the Uoited States Attomey for the Westem
District of New York (hereinafter 'the govemment") hereby eater into a plea agreement with
I. TIIEPLEAANDPOSSIBLESENTENCE
1. The defendant agrees to waive indictment and plead guilty to a one count
Superseding Information which charges a violation of Title 18, United States Code, Sectioo
371 [Conspiracy to Commit Bank Fraud] for which the maximum possible sentence is a term
of imprisonment of5 years, a fine of$250,000, a mandatory $100 special assessment, and a
term of supervised release ofup to 3 years. The defendant understands that the penalties set
forth in this paragraph are the maximum penalties that can be imposed by the Court at
sentencing.
2. The defendant undentands that, if it is determined that the defendant has
violated any ofthe temrs or conditions of supervised release, the defendant may be required
to serve in prison all or part ofthe term ofsupervised release, up to 2 yea$, $'ithout credit for
time previously served on supervised release. As a consequence, in the event the defendant
is sentenced to the maximum term of incarceration, a prison term imposed for a violation of
supervised release may result in the defendant serving a sentence of imprisonment longer than
tr. ELEMENTSANDFACTUALBASIS
3. The defendant understands the nature of the offense set forth in t I of this
agreement and understands that if this case proceeded to trial, the Sovernment would be
required to prove beyond a reasonable doubt the following elements of the crime:
a. First, that two or moie persolB, in some way or manner, entered into
an unlawful agreement to commit an offense against the United States,
as charged in the Superseding Indictrnent, to wit: knowingly executing
a scheme or arti.Ece to deftaud a financial institution;
e That the ovet act was committed to further some object of the
conspirary.
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FACTUAL BASIS
4. The defendant and the govemment agree to the followinS facts, which form the
basis for the entry ofthe plea ofguilty including relevant conduct:
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were, in fact, occupied. ln one such instance, OGIONY and the co-
conspirators provided false information to Berkadia Commercial
Mortgage, LLC, in conaection with The Rochester Village Apartuents
at Park Place ("Rochester Village"), a multi-family residential
apartrnent owned by Morgan Management principals. The information
included falsely inflated income from storage unit rentals, false repots
of rental income, and falsely reporting apartment units as occupied
before certificates of occupancy were obtained for those units.
f. The above facts are set forth for the limited purpose of complying with
Rule l1(bX3) and are not intended to sewe rui a complete statement of
the defendant's criminal condua.
Itr. SENTENCINGGIJIDELINES
5. The defendant undentands that the Court must consider but is uot bound by
6. The govemment and the defendant agree that Guidelines $$ 2X1.1(a) and
281.1(a)(2) apply to the offense of conviction and provide for a base offense level of6.
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U.S.S.G. CHAPTER 2 ADruSTMENTS
7. The govemment and the defendant agree that the following specific offense
draracteristics do apply:
does apply:
The defendant specifically reserves the right to argue at the time of sentencing that a lower
9. The govemment and the defendant agree that the following adjustrnent to the
10. Based on the foregoing, it is the understanding of the govemment and the
defetrdant that ifthe Court dete'rmines that Guidelines Section 2Bl.l(b{l{K) does appty, the
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ACCEPTANCE OF RESPONSIBILITY
the Court apply the two (2) level downward adjustment of Guidelines $ 3El'1(a) (acceptance
of responsibility) and further agrees to move the Court to apply the additional one (1) level
downward adjustrnent of Guidelines $ 3E I . I (b), which would result in a total offense level of
12. It is the undetstanding of the govemment and the defendant that the
defendant's criminal history category is I. The defendant understands that ifthe defendant is
sentenccd for, or convicted of, any other charges prior to sentencing in this action the
defendant's criminal history category may incease. The defendant undertands that the
defendant has no right to withdraw the plea of guilty based on the Court's determination of
13. It is the understanding of the govemment and the defendant that, if the Court
determines that Guidelines Seaion 2B1.l(b)(l[K) does apply, with a total offense level of 25
and a criminal history category of I, and taking into account the statutory maximum penalties,
the defendant's sentencing range would be a term of imprisonment of57 to 71 months, a fine
this, the defendant undenta[ds that at sentencing the defendant is subjed to the maximum
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14. (a) The govemment and the defendant agtree to the correctness of the
calculations of the Sentencing Guidelines range set forth above. The defendant, however,
reserves the right to recommend a sentence outside the Sentencing Guidelines range. This
paragraph resewes the right to the defendant to bring to the attention of the Court all
(b) The defendant further reserves the right to contest the loss amount at
sentencing which, should the defendant be successful, would potentially reduce the
15. The defendant understan& that the Court is not bound to accept any
Sentencing Guidelines calculations recommended by either party and the defendant will not
be entitted to withdraw the plea of guilty based on the sentence imposed by the Coun.
W. STATUTEOFLIMITATIONS
16. In the event the defendant's plea ofgpilty is withdrawn, or conviction vacated,
attack or otherwise, the defendant agrces that any charges dismissed pursuant to this
agreement shall be automatically reinstated upon motion of the govemment and further
agrees not to assert the statute oflimitations as a defense to any federal criminal offense which
is not time barred as of the date of this agleement. This waiver shall be effective for a period
of six months following the date upon which the withdrawal of the guilty plea or vacating of
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V. GOVERNMENT RIGHTS AND RESERVATIONS
17. The defendant undestands that the Bovemment has resewed the right to:
a provide to the Probation Office and the Court all the information and
evidence in is possession that the government deems relevant
concerning the defeadant's background, character and involvement in
the offense charged, the circumstances surrounding the charge and the
defendant's criminal history;
18. At sentencing, the govemment will move to dismiss the Indictrnent in this
19. The defendant undentands, and the parties agree, that the Court must requte
restitution to the victim financial instiotions referenced in'll 4, in the amounts of the loans
issued as a result of the scheme to defraud described m patagrapb 4, less any amount the
financial institutions recovered from the sale of the propenies that served as collateral for the
subject loans or, if the property has not been sold at the time of sentencing, the market value
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of the propelty at the rime of the defendant's guilty plea, as part of the sentence pursuant to
Sentencing Guidelines $ 581.1 and Titte 18, United States Code, Section 3663A. The
defendant understands that defendant will not b€ entitled to with&aw the plea ofguilty based
20. The defendant agrees to disclose fully and completely all assets in which the
defendant either has any property interest or over which the defendant exercises control,
directly or indnectly, including those held by a spouse, nominee or other third party. The
defendant agrees to make complete financial disclosure to the United States by truthfufly
executing a swom financial statement by the &adline set by the United States, or if no
deadline is set, no later than two weeks prior to the date of serrtencing. The defendant agrees
to authorize the release ofall financial information requested by the United States, including,
but not limited to, executing authorization forms for the United States to obtain tax
information, bank account records, credit history, and social security information. The
defen&nt agrees to discuss or answa any questions by the United States relating to the
under oath andlor a polygraph examination conducted by an examiner selected by the U.S.
Attomey's Office on the issue of the defendant's fuanciat disclosures and asseB, if deemed
necessary by the U.S. Attomey's Office. The defendant certifies that the defendant has made
defeating financial obligations that are created by the agreement andlor that may be imposed
upon the defendant by the Court. In addition, the defendant promises that the &fendant will
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21. The defendant agrees that any financial records and information provided by
the defendant to the Probation Ofhce, before or after sentencing, may be dirclosed to the
United States Attomey's Office for use in the collection of any unpaid finaocial obligation.
22. The defendant undersands and agrees that the Court, at the time ofsenteacing,
will order that all monetary penalties imposed at that time (induding any fine, restitution, or
special assessment imposed in accordane with the temrs and conditions of this plea
agreemefi) are to be due aud payable in full immediately and subject to immediate
enforcement by the United States. The dffendant understands and acknowledges that any
schedule of paymena imposed by the Court at the time of sentencing is merely a minimum
schedule of paymenb and does not, in any way, Iimit those methods available to the United
23. The defendant agrees that any funds and asses in u'hich the defeldant has an
interest, which have been seized or restrained by the govemment or law enforcement iut part
ofthe investigation underlying this plea agreernent, and uot subject to forfeiture, will be used
to offset any judgment of restitution and fine imposed pursuart to this plea agrcemeot, or to
satisry any debts owed by the defendant to the United States andlor agencies thereof.
24. To the extent that the defendant has an interest, the defendant authorizes the
District Court Clerk to release any funds posted as security for the defendant's app€arance
bond in this case, which funds shall be applied to satisry the financial obligation(s) of the
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YII. APPEALRIGIITS
25. The defeadant understands that Title 18, United States Code, Section 3742
affords a defendant a limited right to app€al the sentence imposed. The defendant, however,
knowingly waives the right to appeal and collaterally attack any component of a sentence
imposed by the Court which falls within or is less than the sentencing range for imprisonment,
a fine and supervised rclease set forth in Section Itr, tl 13, above, nonrithstanditrg the manner
in which the Court d€temines the sentence. In the event of an appeal of the defendant's
sentence by the govenulent, the defeadant reserres the right to argue the correctness of the
defendands sentence.
26. The defendant understands that by agreeing not to collaterally attack the
sentenc€, the defendant is waiving the right to challenge the sentence in the event that in the
future the defendant becomes aware ofpreviously unknown facts or a change in the law which
27. The government waives its right to appeal any component of a sentence
imposed by the Court which falls within or is gleater than the sentencing range for
imprisonment, a fine and supervised release set fortb in Section III, J 13, above,
notwithstanding the manner in which the Court determines the sentencre. However, in the
event ofan appeal from the defendant's sentence by the defendant, the govemment reserves
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YItr. COOPERATION I
28. The defendant will cooperate with the govemment by providing complete and
truthful information regarding the defendant's knowledge of any and dl criminal activity,
whether undertakea by the defendant or others, in any way involving or related to bank fraud,
mail fraud, or wire fraud. The defendant's cooperation shall also include submitting to
interviews by govemment attomeys and agents, as well as testifuing truthfully and completely
before grand juries and at such other proctedings as the govemment shdl deem necessary,
including, but not limited to pre-trial hearings, trials, sentencing hearings and forfeiture
proceedings.
29. The defendant's cooperation shall also be provided to any local, state or federal
authorities designated by the government and who have agreed to abide by the terms of the
"Cooperation" section of this agreement. The &fendant's obligation to testi$ truthfully and
completely shall extend to proceedings in local, state and federal courts in jurisdictions which
30. In exchange for the defendant's plea of guilty and cooperation as set forth in
this agreement, the defen&nt will not be prosecuted by the Office of the United States
Attomey for the Westem District of New York for any other federal criminal offenses
committed in the Westem Disuict of New York in any way involving or related to bank fraud,
mail fraud, or wire fraud, committed up to the date of this agreement and about which the
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3 I . Further, no testimony, statemenB or tangible objects provided by the defendant
in compliance with this agreement (or any information directly or indirectly derived
therefrom) will be used against the defendant in any criminal case' except a prcsecution for
32. Upon condition that the defendant has fully complied with all terms and
co4ditions of this agreement, should the govemmelt d€termine that the defendant has
provided substantial assistanc€ in the investigation or proseotion ofother persons who have
committed ofenses, the govetnment will move the Coult at seltencing to d€Palt downward
from the Guidelines at least 7 levels from Otal offense 25 as provfuled for in Guidelines
$ 5K1.1, whid if granted by the Court, would result in a total offense level of 18 and
sentencing range for imprisonment of 27 to 33 months . The defendant undentands that the
decision to make such a motion is within the sole discretion of the govemment and that the
decision to gfant such a motion, and the extent ofany downward departgre, arc matters solely
33. This agreement does not preclude the prosecution ofthe defendant for perjury
or 6aking false statements in the event the defendant testifies falsely or provides false
information to the govemment. This agreement is not contingent upon the filing of charges
against, the retum ofan Indictrnent against, or the successful prosecution of, any person or
entity.
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34. It is a condition of this agreement that, up through the date of the tlefendant's
sentencing, the defendant shall commit no funher crimes. It is also a condition of thiq
agreement that the defendant must, at all times, give complete, truthful and accurate
information and testimony and not withhold information ftom the govemment or refuse to
testi& truthflrlly and completely. Should the defeadant be sentenced prior to the completion
of the defendant's cooperation with the government, the defendart's obligation to comply
35. In the event tle government believes the defendant has violated any of the
conditions of the "Cooperation" section of this agreement, the govemment, in addition to its
other rigbts as set forth in the "Cooperation" section ofthis agreement, reserves the righc (a)
Guidelines ! 5K1.1 andlor Title 18, United States Code, Section 3553(e); and (b) to petition
the Court, before or after sentencing, for an order declaring that the defendant has breached
the "Cooperation" section and relieving the govemment of its obligations under this section.
36. In the event the goveflrmert petitions the Court to declare that the defendant
has breached the "Cooperation" section ofthis agreement, whether the defendant has violated
any of the conditions ofthe "Cooperation" section shall be determined by the Court in an
appropriate proceeding at which any disclosures and documents provided by the defendant
shall be admissible and at which the government shall be required to establish any violation
by a preponderance ofthe evidence. ln order to establish any violation by the defendant, the
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govemment is entitled to rely ou statements and inforrnation given by the defendant Pusuant
to this agreement
Court
d. the defendant shall waive all rights under Fed. R. Crim. P. ll(D' Fed.
R. Evid. 410 and Sentencing Guidelines $ 181.8 and the defeadant
expressly agrees that all statemenB, testimony and tangible objects
provided by the defendant (with the exception of statements ma& ir
open court during guilty plea proceedings), whether prior or subsequent
to this agreement, can be used directly and indtectly in any and all
criminal proceedings against the defendant; and
e. the defendant agrees that any charges that were dismissed pursuant to
this agreement shall be automatically reinstated upon motion of the
government. Furthermore, the defen&nt agrees not to asseat the statute
of limitations as a defense to any federal criminal offense which is not
time barred as of the date of this agreement. This waiver shall be
effective for a period of six months following the date upon which the
Coun's order declaring the agteement breached by the defendant
becomes final.
38. At the time of sentencing, the govemment will make the nature and extent of
the defendant's compliance q,ith this agreement known to the Court. The govemment and
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the defendant will rcquest that sentencing be adjourned until full satisfaction by the defendant I
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ofthe terrns ofthis agreement. In the event the defendant is sentenced prior to the completion
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of the defendant's cooperation with the govemment, the government resenres the right to
Guidelines ! 5Kl.l andlor Title 18, United States Code, Sectior 3553(e).
39. The defendant's attomey is permitted to be presetrt at any time the defen&ot is
questioned or interviewed by govemment agens regarding the matters set forth in this
agreement.
40. Thb plea agreement represents the total agreement between the deftndant,
PATRICK OGIONY, and the govemment. There are no promises made by anyone other
than those contained in this agreement. This agreement supersedes any other psior
agreements, written or oral, entered into between the govemment and the defendant.
BY 0ua:ku
ioffo.ilBIAN
Assistant United States AEomey
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I have read this agreement, which consists of 17 pages. I have had a full opportunlty
to discuss this agreement with my attomey, JOSEPH M. LATONA, Esq. I agree that it
represents the total agreement reached between myself and the govemment. No promises or
representations have been made to me other than what is contained in this agtement. I
understand all ofthe consequeaces ofmy plea ofguilty. I fully agree with the contents ofthis
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PArFrcKObrqFY
; / (. (-,.' 2
JOSEPH M. LATONA, ESQ.
Defeildant I Attorney for the Defendant
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