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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA,
:
:
- against EMMA POROGER
Defendant
11-CR-742 (DLI)
:
:
:
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MEMORANDUM IN AID OF SENTENCING
CREIZMAN PLLC
Eric M. Creizman
Melissa Madrigal
565 Fifth Avenue, 7th Floor
New York, New York 10017
Telephone: (212) 972-0200
Facsimile: (646) 200-5022
Attorneys for Emma Poroger
April 10, 2015
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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT ....................................................................................... 1
PERSONAL BACKGROUND ......................................................................................... 3
I. Childhood…………............................................................................................ 3
II. Devotion to Family and Friends......................................................................... 4
III. Medical Training............................................................................................... 7
IV. Devotion to Patients.......................................................................................... 8
V. Severe Health Problems..................................................................................... 9
VI. Fall From Grace ............................................................................................... 10
THE OFFENSE CONDUCT……………………………………………………………. 12
THE GUIDELINES CALCULATION………………………………………………….. 13
ANALYSIS OF AN APPROPRIATE SENTENCE UNDER 18 U.S.C. §
3553(A)………………....................................................................................................... 18
CONCLUSION…………………………………………………………………………... 25
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We respectfully submit this memorandum on behalf of Dr. Emma Poroger in connection
with her sentencing before Your Honor scheduled for Tuesday, April 21, 2015, at 10 a.m. Dr.
Poroger entered a guilty plea to a single-count superseding information charging her with
conspiracy to commit health care fraud, in violation of 18 U.S.C. § 1347, pursuant to a plea
agreement almost three years ago, on May 2, 2012.
PRELIMINARY STATEMENT
Emma Poroger stands before this Court for sentencing as a broken woman, who, at the
relatively young age of 59, believes that she has little to enjoy or strive for and that her future is
bleak. In a period of just over three-and-a-half years, this criminal prosecution has sapped her of
her savings, stripped her of a career in medicine, divested her of her home, and constrained her
liberty, including her freedom to travel. The stress and remorse that Dr. Poroger has experienced
as a result of this case have taken their toll on her physical and psychological health. As detailed
in the reports prepared by the Probation Department, Dr. Poroger struggles with hypertension
and multiple cardiac conditions, physical disabilities due to lower back and pelvic pain, vision
impairments, and chronic vertigo, among other conditions. She often relies on a cane to walk,
and takes numerous medications on a daily basis. Dr. Poroger also suffers from severe
depression and anxiety, has experienced suicidal ideation, and has been hospitalized for suicidal
behaviors. Her declining physical and mental health led to the deterioration of a committed
relationship with her lover. The impact of this criminal case has had such a devastating impact
on Dr. Poroger’s life that a sentence of imprisonment is simply unnecessary for any deterrent
purposes or punishment. The objectives of federal sentencing have already been satisfied during
the three-and-a-half years Dr. Poroger has served under pretrial supervision.
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A non-custodial sentence is warranted not only because of the negative consequences Dr.
Poroger has endured as a result of her wrongdoing, but also, if not more so, because of her
affirmative efforts to accept responsibility for her wrongdoing and to cooperate with the
government in its investigation. Her conduct in this regard is detailed in the government’s letters
to the Court dated August 15, 2012, September 28, 2012, and April 3, 2015, which were
submitted under seal in support of the government’s motion in connection with Dr. Poroger’s
sentencing, as well as in status updates to the Court in letters dated November 7, 2013, February
24, 2014, October 28, 2014, January 30, 2015, and February 20, 2015. Dr. Poroger has
demonstrated, through her actions, her substantial remorse for her participation in the offense,
and her commitment to redress the harms caused by the members of the health care fraud
conspiracy. Her lengthy, spotless record of compliance with all of the conditions of her pretrial
release, also establishes that she presents no risk of recidivism and that she will continue to be a
law-abiding, productive member of society as she has been over the vast majority of her life.
Given Dr. Poroger’s constructive behavior since her arrest, and the serious consequences
she has faced as a result of this prosecution, the mitigating factors concerning Dr. Poroger’s
relative culpability in the offense also compel the conclusion that a non-custodial sentence is
“sufficient, but not greater than necessary” to achieve the goals of sentencing. Specifically, there
is no dispute that while working at the North Austin clinic, Dr. Poroger sincerely cared for her
patients, performed procedures that she believed were medically necessary, regularly worked
twelve to fourteen hour days, and honestly reported the treatments she provided to her office
management and the billing company. She never sought to bill Medicare for treatments that
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were unnecessary or for treatments that were not performed, and was unaware of the massive
scope of the fraudulent billing to Medicare until after she began cooperating with the
government. She did not plan the fraudulent scheme, did not support it, and did not seek to
profit from it. What Dr. Poroger admittedly did wrong, is that, in September 2008, less than six
months before she left the North Austin practice, she discovered that office management and the
billing company had submitted a fraudulent bill for a test that had not been performed. At that
point, she was on notice that fraudulent bills were likely being submitted under her name and
nevertheless continued to treat patients at the North Austin Facility, and never reported the
fraudulent billing to Medicare or law enforcement. Nor did she undertake any investigation to
determine the extent of the fraudulent billing or take sufficient action to prevent further
fraudulent billing. Dr. Poroger’s severe lapse in judgment constitutes a significant offense, but
in light of her productive conduct since her arrest and the severe price she has paid for her
wrongdoing, we respectfully submit that a non-custodial sentence is warranted here.
PERSONAL BACKGROUND
I.
Childhood
Dr. Poroger, who is 59 years old, was born and raised in Chernovtsy, Ukraine. Her
father, Nusim, was a hat-maker, and her mother, Khayka, now deceased, a military sales woman.
(PSR ¶ 23). As a child, Dr. Poroger was raised in a middle-income household. (PSR ¶ 24).
Although all of her economic needs were met while growing up in the former Soviet Union, Dr.
Poroger was the victim of religious persecution because of her Jewish faith. Id. Other children
beat and abused Dr. Poroger as punishment for her religious identity. Id.
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II.
Devotion to Family and Friends
Dr. Poroger has one son, Feliks Koyfman, a 37 year-old physician who resides in
Mineola, New York. (PSR ¶ 25). Feliks was born in Chernovtsy, Ukraine to the marital union
of Dr. Poroger and Aleksandr Koyfman. Dr. Poroger and Dr. Koyfman divorced but they
continue to share a friendly relationship. Id. On December 22, 1992, Dr. Poroger and Feliks,
then 14 years old, emigrated from Ukraine as religious refugees and legally entered the United
States where they settled in Brooklyn, New York. (PSR ¶ 27).
As described by one of the many letters submitted by Dr. Poroger’s supporters to the
Court, Dr. Poroger’s “life story is not unlike many other immigrants. She came to this country in
refuge of a bright future for her son.” (Ex. A). After arriving in the United States, Dr. Poroger
worked cleaning houses in Brooklyn for approximately 9 months to provide for her family. (PSR
¶ 51). Dr. Poroger’s “goal was to do everything possible to help her son to achieve and excel”
(Ex. B) which Feliks clearly accomplished as evidenced by the fact that he followed his mother’s
positive influence and became a physician. “My Mother is directly responsible for my
success…she instilled in me from an early age that hard work, integrity, perseverance, and
honesty are the keys to a full life and successful career.” (Ex. C).
Emma Poroger’s mother, Khayka, died at the age of 60 from psoriasis of the liver. (PSR
¶ 23). Khayka lived through Nazi occupation and concentration camps in the difficult post war
Russian system and was infected with a virus while working at a labor camp. “Emma’s goal in
life was to help her mother…She did become a doctor but too late to help her mom.” (Ex. D).
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Dr. Poroger is the principal caretaker of her father who is 93 years old. (PSR ¶ 23).
Nusim, her father, suffers from a myriad of health problems associated with his advanced age.
Dr. Poroger provides a significant amount of medical care and assistance to her elderly father on
a daily basis. Id. Similarly, Dr. Poroger helps care for Riva, her stepmother, who is 86 years of
age and also suffers from a myriad of health ailments associated with her advanced age. Id.
Because Dr. Poroger is the principal provider to Nusim and Riva, no one else can quite fill her
shoes in this regard if she is sentenced to prison.
In his letter to the Court, Nusim writes, “she has practically returned me from the other
side several times. I have been battling bladder cancer and going through chemotherapy. And
only Emma’s patience and dedication to my treatment helped me stay alive.” (Ex. E). Nusim
describes how Dr. Poroger visits him daily to check his vital signs, cook for him, and take him to
his appointments. Nusim felt compelled to tell the Court “I survived the Holocaust, but lost
almost my entire family. [My daughter] is my family and my life; please don’t take her away
from me.” Id.
In their letters to the Court, family members express grave concerns for Emma’s father if
Dr. Poroger is unable to care for him. (Ex. F); (Ex. G); (Ex. H) (“[Nusim] has suffered several
falls in this past year, and after each one Emma would rush to his side, caring for him, cooking
his favorite meals, and tending to his injuries. With Emma in prison, I am very concerned for
my grandfather’s welfare since my father and I live in Toronto.”) Dr. Poroger’s nephew, Igor
Poroger, who is a barrister in Ontario, tells the Court “[Emma] has consistently aided [my]
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elderly grandfather with [his] medical needs throughout the years. Without Emma around, it is
uncertain how my 93 year old grandfather will manage on a day to day basis.” (Ex. I).
Almost all of the letters to the Court use the world “selfless” to describe Emma Poroger.
(Ex. J). Monika Paroder recounts when her father, who is Dr. Poroger’s cousin, was diagnosed
with cancer: “The following months were a tumultuous whirlwind of fear, hope, anger, and
pain…during this time, Emma was the voice of optimism; Emma was the voice of knowledge;
Emma was the voice of hope. She was a solid stone for us to lean against.” (Ex. A). Similarly,
Aleksandr Koyfman, Dr. Poroger’s ex-husband, who has battled 3 forms of cancer describes
“Emma was there for me during those tough times, frequently visiting me in the hospital and
helping me [get] through chemo and radiation treatments.” (Ex. K). When family friend Lyuba
Lebedeva’s mother was diagnosed with stage 4 pancreatic cancer, Dr. Poroger was one of the
first people to reach out to Lyuba with words of support and advice. (Ex. L).
Sema Krichman describes how Emma Poroger routinely finds time to check in and give
necessary advice to Sema regarding her 92 year old mother. (Ex. M). Dr. Poroger helps those in
need: (i) driving a friend to do groceries after Hurricane Sandy hit—otherwise Alla would not
have had any means to get the products home (Ex. N); (ii) driving pregnant friend Irina to her
doctors’ appointments (Ex. O); (iii) indefinitely opening her home during Hurricane Irene to the
Ozeryan family who did not have a safe place to stay—Dr. Poroger drove from Staten Island to
Coney Island to pick them up (Ex. P); (iv) traveling a long distance to friend Elena’s house on a
late Friday afternoon to give Elena’s son an injection to treat poison ivy (Ex. Q).
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III.
Medical Training
While living in Ukraine, Dr. Poroger attended Chernovtsy Medical School and graduated
in 1978 as a qualified medical doctor. (PSR ¶ 39). Anatoly Goldenfeld recalls the
discrimination against Jewish people in terms of admission to medical school, but describes how
Dr. Poroger not only successfully completed medical school but did so as one of the best
students at Chernovtsy. (Ex. R). Dr. Poroger worked as a physician in Ukraine from 1978 to
1992: (i) chief of the emergency division of Storozhynets Hospital (1978-1982) (PSR ¶ 52); and
(ii) internal medicine physician for the Chernovtsy District Psychiatric Hospital (1982-1992)
(PSR ¶ 53). At the age of 42, and less than 5 years after emigrating from Ukraine with her
young son, Dr. Poroger attended medical school once more, this time at the New York College
of Osteopathic Medicine in Old Westbury, New York. (PSR ¶ 27). As Dr. Poroger’s nephew,
Igor, observed “Emma’s ethos for hard work and determination has been an inspiration to those
around her. She put herself through medical school, well into her middle age, and never asked
for any help from anyone.” (Ex. I). Emma attended English classes when she first moved to the
United States and as family friend, Denis Shtabel recalls, “During the late 90’s when I would
visit her home, I would see stacks of medical books, notes, diagrams, and English/Russian
dictionaries opened and being used in every room and on every desk/table of her house. She was
immersed in studying.” (Ex. S). In 2000, Dr. Poroger completed medical school and undertook a
medical internship and residency in New Jersey. (PSR ¶ 27). Dr. Poroger secured licenses to
practice medicine in New York, New Jersey, and Florida and also achieved board certification by
the American Osteopathic Board of Family Medicine. (PSR ¶ 38).
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IV.
Devotion to Patients
Dr. Poroger’s patients admire and respect her, which is reflected by the many letters to
the Court from patients who have stood by Dr. Poroger during the last four years since her legal,
financial, and personal circumstances deteriorated. At the time of her arrest, Dr. Poroger ran a
private medical practice, Penfel Medical, PC, with two offices: (i) Jersey City, New Jersey; and
(ii) Staten Island, New York. (PSR ¶ 40). After her arrest, insurance companies began to steadily
drop Dr. Poroger as a covered medical provider and neither of her offices was able to earn a
profit. Dr. Poroger kept the offices open, albeit on a part-time basis, and operated at a loss
because she believed in serving her patients who relied on Dr. Poroger’s care. Id.
What really sets Dr. Poroger apart from the norm is her unparalleled compassion and
respect for her patients. Leonid Katsman, a longtime patient of Dr. Poroger, echoes these
sentiments. “Dr. Poroger has demonstrated the utmost respect for me as a patient” and “I have
on many occasions witness[ed] her compassion, care, and courtesy” in treating other patients.
(Ex. T). As Yaniris Candelaria, a medical assistance who worked with Dr. Poroger for many
years recounts, “The time I have spent in her office, I could understand why her patients loved
her so much. She was very attentive and concerned about not only their medical needs, but to
their needs as people.” (Ex. U).
Dr. Poroger made a difference in the lives of many patients. (Ex. V). Izabella Genin, a
patient of Dr. Poroger recounts how she met Dr. Poroger in a difficult time of her life. “It was
after a car accident with a drunk driver in which I sustained serious injuries that greatly affected
my personal and professional life. Under the devoted and exceptional care of Dr. Poroger, I was
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able to continue working until my retirement and be free from pain in my everyday activities.”
(Ex. W).
According to Tatyana Katsman, Doctor of Osteopathic Medicine, and colleague to Dr.
Poroger “over the years I have seen Dr. Poroger serve her patients to a degree that is compared to
none.” (Ex. X). Dr. Poroger is known to answer her patients’ calls to her cellular phone “24
hours a day, 7 days a week.” (Ex. Y); (Ex. Z).
V.
Severe Health Problems
Since her arrest, Dr. Poroger has suffered from a myriad of physical and mental health
problems, which are well documented in the PSR and the Addendums to the PSR. Beginning in
January 2011, Dr. Poroger fell into a severe depression and began to experience suicidal
thoughts. In March 2011, Dr. Poroger sought treatment for her depression attending regular
therapy sessions with a psychiatrist. In January 2013, Dr. Poroger was diagnosed with major
depressive disorder and anxiety disorder, with severe helplessness and hopelessness. (Second
PSR Addendum). As a result, Dr. Poroger takes multiple daily medications to treat her anxiety
and depression. Id. Dr. Poroger also attends biweekly psychotherapy sessions in addition to the
psychotropic medications she takes regularly. (Ex. AA). Dr. Poroger has expressed to her
pretrial services officer that “she will not survive if she has to go to prison” and doesn’t know
how she will “go on.” (Second PSR Addendum). Dr. Poroger’s son reported that prior to her
arrest, she did not suffer from any mental health or emotional problems. (PSR ¶ 31).
In addition to her mental health and emotional problems, Dr. Poroger has been diagnosed
with a number of conditions for which she takes a significant amount of prescription medication.
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(Second PSR Addendum). In 2011, Dr. Poroger underwent surgery as a preventative measure
due to the discovery of pre-cancerous cells. (PSR ¶ 33). In 2012, she was diagnosed with
multiple cardiac conditions, including hypertension and severe diastolic heart failure—conditions
which prevent her from working full time and which require regular medical care. (Second PSR
Addendum). In 2012, Dr. Poroger was also diagnosed with chronic severe low back pain and
pelvic pain due to lumbar-sacral spondylitis, which prevents Dr. Poroger from walking for more
than 20 minutes or sitting for more than 40 minutes. Id. She was also diagnosed in 2012 with
pituitary adenoma and chronic hypertensive vascular changes—which rendered her “functionally
significantly disabled” and “practically disable[d].” Id; (Ex. BB). Dr. Poroger receives
acupuncture treatments regularly to combat migraine headaches, dizziness, vertigo, insomnia,
anxiety, depression, constipation, incontinence, tinnitus, pain in the neck, lower back, shoulders,
knees, legs and feet. (Ex. CC). Due to Dr. Poroger’s severe medical problems and resulting
disability, she stopped working in December 2012 and began to draw disability payments from
her life insurance company. (Second PSR Addendum).
VI.
Fall From Grace
Since her arrest in the instant offense, Dr. Poroger has suffered debilitating loss in
multiple aspects of her life: health wise—mentally, emotionally, and physically; financially; and
professionally. According to Dr. Poroger’s psychiatrist, Dr. Isakov, Dr. Poroger “fears to be left
alone,” has become “isolative and withdrawn” since her legal issues began, and she has “lost
interest in life [] frequently expressing her desire to end her life and end her suffering.” (Ex.
AA).
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For example, in his letter to the Court, Bezenchuk, Dr. Poroger’s stepbrother, writes
“You cannot imagine [Emma’s] sadness and remorse in her lapse in not following [her] values.”
(Ex. F). “Your Honor, it is hard for me to explain how much she has already been punished.
Emma’s health has deteriorated significantly over the past years. She is filled with anxiety and
depression which has exacerbated her chronic medical conditions.” (Ex. G). Koyfman similarly
observed “Knowing Emma as well as I do, I can see the toll this ordeal has taken on her. She
was a woman who was capable of working 80-100 hours a week; now she can barely walk
without a cane. However, the physical ailments are nothing in comparison to the mental anguish
she is experiencing.” (Ex. K).
Dr. Isakov expressed that Dr. Poroger’s main source of support is her son who visits her
frequently and assures Dr. Poroger that she is safe. Id. The instant case has taken a significant
toll on Dr. Poroger. “My mother was a vibrant and energetic woman, but in the last 3.5 years,
her health has significantly deteriorated…Her mental health is also in serious decline.” (Ex. C);
(Ex. DD). Putting aside the onset of multiple crippling health issues, the fallout from her
criminal case resulted in the loss of Dr. Poroger’s medical practice and her means of financial
independence. “The fact that she will never again practice medicine has been an enormous
emotional burden for Emma.” (Ex. DD).
A condition of Dr. Poroger’s plea agreement was that she forfeit her home located at 97
Giffords Lane in Staten Island (PSR ¶ 57). Additionally, Dr. Poroger was left in financial ruin
and with no choice but to file for Bankruptcy. (Second PSR Addendum). Dr. Poroger has lost
everything.
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Your Honor, I can tell you firsthand the shame, remorse and guilt my mother feels on [a]
daily basis for what she has done. She lives in misery and pain everyday, and she has
spent many sleepless nights agonizing over how this will impact the future of her family.
She knows she made a mistake and is extremely regretful for what she has done. She will
never forget what happened, and she strives every day to live a moral and honest life.
(Ex. C).
THE OFFENSE CONDUCT
From November 2006 through March 2009, Dr. Poroger served as the medical director
for North Austin Medical, P.C., a medical clinic located in Forest Hills, Queens. Poroger was
hired as medical director by the co-owner of a billing company called Claim Torrent, Inc. The
North Austin office was managed by Queens North, Inc. During Dr. Poroger’s tenure at North
Austin, approximately $13 million was billed in claims to Medicare under her Medicare provider
number, of which approximately $4 million was paid. A Significant portion of the $13 million
billed to Medicare was resubmissions of claims previously denied. Although Dr. Poroger signed
an enrollment application that was submitted to Medicare in which she certified that all claims
submitted under her provider number would be true, accurate, and medically necessary, Dr.
Poroger left the task of submitting bills to Queens North and Claim Torrent.
Nevertheless, Dr. Poroger would provide Queens North and Claim Torrent with an
accurate statement of the treatments she provided with accurate coding. There is no dispute that
Dr. Poroger honestly treated her patients to the best of her ability, performed services that she
believed to be medically necessary, and never submitted fraudulent accounts of her treatments to
patients. She relied on the assurances of Queens North and Claim Torrent that the bills that
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would be submitted to Medicare would accurately reflect the services she provided and the codes
that she assigned to those services.
In September 2008, only about six months before she left North Austin, Dr. Poroger
discovered that an electrocardiogram test was ordered for a patient without her knowledge or
approval. She also noticed that around that time period, revenues increased significantly without
any noticeable change in the number of patients she treated or the number of hours that she
worked. At that point, Dr. Poroger became aware of circumstances that strongly indicated that
her office manager and billing company were engaged in fraudulent billing. Although Dr.
Poroger chastised her office manager for ordering and billing for the unnecessary test, she did
not investigate whether fraudulent billing continued. She took no corrective measures to prevent
fraudulent billing and did not inform law enforcement or Medicare of her discoveries. It was
only after her arrest, when she began cooperating with the government, that she learned of the
substantial scope of the fraudulent scheme.
THE GUIDELINES CALCULATION
A district court should begin all sentencing proceedings by correctly calculating the
applicable Sentencing Guidelines. See United States v. Crosby, 397 F. 3d 103, 112-13 (2d Cir.
2005). The defense agrees with the government and the Probation Department that the
applicable Guidelines Manual in effect is the 2009 Guidelines. See PSR ¶10. Furthermore, the
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defense agrees that the base offense level applicable to the offense is 6 and that a two-level
enhancement for abuse of a position of trust is warranted under Section 3B1.3.1 The defense,
however, strongly disputes the government and Probation’s calculation of “loss” under Section
2B1.1, which asserts that a 20-level enhancement is warranted for a loss of over $13 million. See
U.S.S.G. § 2B1.1(b)(1)(K).
It is well established that loss under the Guidelines need not be established with
precision, and the Court, in determining the loss, “need only make a reasonable estimate of the
loss, given the available information.” United States v. Uddin, 551 F.3d 176, 180 (2d Cir. 2009).
Nevertheless, a “reasonable estimate” may not be based on “pure speculation.” United States v,
Deutsch, 987 F.2d 878, 886 (2d Cr. 1993). Nor can a flawed methodology that is the basis of an
asserted loss amount satisfy the “reasonable estimate” standard. See United States v. Cuti, 2011
WL 3585988, at *6 (S.D.N.Y. July 29, 2011) (holding that government failed to meet its burden
in establishing loss because it refused to consider other relevant data and methodologies in
arriving at its loss figure). Indeed, a loss calculation must be based on clearly articulable
conclusions and assumptions based upon evidence in the record and subject to evaluation by the
1 The parties previously have submitted substantial briefing on the calculation of loss and on the
potential enhancement for abuse of trust. See Dkt. ## 63, 64, 65, 68, 74, 76, and 77. In reviewing
the Guidelines submissions, current counsel departs from the position of previous defense counsel as
to the applicability of the two-level enhancement for abuse of trust under Section 3B1.3. We
concede that decisional authority supports the position of the government and Probation that the
enhancement is warranted under the facts and circumstances of this case. However, we dispute the
government and Probation’s calculation of loss under Section 2B1.1 for the reasons set forth herein.
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defendant. See, e.g., United States v. Hartstein, 500 F.3d 790, 796 (8th Cir. 2007) (vacating
sentence and remanding where government presented summary tables regarding an accounting
of the fraudulent loans at issue in the case, but the tables were based on evidence that was neither
before the court nor available to the defense to evaluate).
The loss calculation advanced by the government and Probation of $13 million lacks a
coherent methodology with respect to Dr. Poroger and is fundamentally flawed. First, the $13
million figure is based on the total amount billed by North Austin to Medicare from October
2006 through March 2009. See PSR ¶ 5; Dkt. ## 64, 73. This calculation improperly assumes
that all billing was fraudulent, notwithstanding that even the government must concede that
legitimate services were performed for patients at North Austin. Thus, the government’s loss
calculation ignores that a significant portion of the amount billed to Medicare was for legitimate
services.
Second, the government does not dispute that Dr. Poroger first discovered fraudulent
billing to Medicare in September 2008. At that time, she learned that an electrocardiogram was
ordered and billed without her authorization. The government does not contend that Dr. Poroger
knew at the time that the managers of the North Austin clinic and the billing company had been
altering her accurate reports of the treatments she provided, and submitted bills to Medicare that
overstated the extent of the services performed and included services that were never performed.
In these circumstances, Dr. Poroger cannot, for Guidelines purposes, be held accountable for
fraudulent billing pre-dating September 2008 because the scope of the fraudulent billing
committed by her co-conspirators was not reasonably foreseeable to her. See, e.g., Familglietti v.
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United States, 2010 WL 996004, *2 (S.D.N.Y. Mar. 12, 2010) (“A defendant convicted of
conspiracy is properly held liable for all of the victim’s reasonably foreseeable losses”); United
States v. O’Campo, 973 F.2d 1015, 1024 (1st Cir. 1992) (“[T]he concept of foreseeability (a
forward looking concept) must be turned around 180 degrees [to] be applied to the conduct of
co-conspirators occurring before the entry of a particular defendant into the conspiracy.”);
Bryant v. Mattel, Inc., 2010 WL 3705668 (C.D. Cal. Aug. 2, 2010) (“[A] conspirator cannot
reasonably foresee his co-conspirators’ commission of overt acts prior to his entry into the
unlawful agreement.”).
In these circumstances, the appropriate time period to evaluate the loss properly
attributable to Dr. Poroger under the Guidelines is September 2008 through March 2009. During
that time period, $2,458,440.91 was billed to Medicare under Dr. Poroger’s Medicare PIN that
was associated with North Austin. See Dkt. #73 at 1. That loss figure should be reduced by the
amounts billed for legitimate services performed, and further by the $25,000 that Dr. Poroger
voluntarily returned to Medicare during its audit of North Austin, prior to her indictment. See
Dkt. #74 at 5-8. Assuming, however, the offsets do not bring the loss figure below $1,000,000,
the appropriate loss calculation, even using the total amount billed from September 2008 through
March 2009 is less than $2.5 million, and thus, only a 16-level enhancement is warranted under
Section 2B1.1. See U.S.S.G. § 2B1.1(b)(1)(I).
Accordingly, the appropriate Guidelines calculation is a level 21, which is premised on a
base offense level of 6, a loss enhancement of 16 levels, a two-level adjustment for abuse of
trust, and a three-level reduction for acceptance of responsibility. The advisory Guidelines
16
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sentence, given Dr. Poroger’s lack of any prior convictions, is therefore 37-46 months
imprisonment. For the reasons set forth in this memorandum, a downward departure under the
Guidelines is warranted because with respect to relative culpability in the offense, the loss
“overstates the seriousness of the offense” as to Dr. Poroger. See U.S.S.G. § 2B1.1, cmt. n.
19(c). Thus, the Guidelines themselves provide a basis for a sentence below the advisory
Guidelines range. See United States v. Emmenegger, 329 F. Supp. 2d 416, 422 (S.D.N.Y. 2004)
(“While some members of Congress and journalists occasionally seem to misunderstand the
concept, a sentencing departure does not constitute a subversion of the Sentencing Reform Act or
of the guidelines system. In fact, notwithstanding the shorthand terminology sometimes applied,
a departure is not a departure ‘from the guidelines’; it is a departure from the otherwise
applicable guideline range.”) (emphasis in original).
Judge Rakoff’s observation in imposing a below-Guidelines sentence in a recent case,
finding that the loss amount was disproportionate to the offense is particularly apt here:
Imposing a sentence on a fellow human being is a formidable responsibility. It requires a
court to consider, with great care and sensitivity, a large complex of facts and factors.
The notion that this complicated analysis, and moral responsibility, can be reduced to the
mechanical adding-up of a small set of numbers artificially assigned to a few arbitrarily
selected variables wars with common sense. Whereas apples and oranges may have but a
few salient qualities, human beings in their interactions with society are too complicated
to be treated like commodities, and the attempt to do so can only lead to bizarre results.
United States v. Gupta, 904 F. Supp. 2d 349, 350 (S.D.N.Y. 2012). See also, e.g., United States
v. Adelson, 441 F.Supp. 2nd 506 (S.D.N.Y. 2006), aff’d, 301 Fed. Appx. 93 (2d. Cir. 2008) (the
“Sentencing Guidelines . . . in an effort to appear ‘objective,’ tend to place great weight on
putatively measurable quantities, such as . . . the amount of financial loss in fraud cases, without
17
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however, explaining why it is appropriate to accord such huge weight to such factors.”); United
States v. Corsey, 723 F.3d 366, 380 (2d Cir. 2013) (“The history of bracket inflation directed by
Congress renders the loss guideline fundamentally flawed, especially as loss amounts climb.
The higher the loss amount, the more distorted the guideline’s advice to sentencing judges.”).
ANALYSIS OF AN APPROPRIATE SENTENCE UNDER 18 U.S.C. § 3553(a)
We respectfully submit that a sentence of probation is warranted here under the factors
set forth in 18 U.S.C. § 3553(a) in order to impose a sentence “sufficient but not greater than
necessary” to satisfy the objectives of federal sentencing. See Rita v. United States, 551 U.S.
338, 348 (2007) (quoting 18 U.S.C. § 3553(a)). Under Section 3553(a), a district court must
consider “the nature and circumstances of the offense and the history and characteristics of the
defendant.” Id. § 3553(a)(1). Moreover, the court must impose a sentence that is “sufficient, but
not greater than necessary” to, in pertinent part: (i) “reflect the seriousness of the offense,
promote respect for the law, and to provide just punishment for the offense.” (Id. §
3553(a)(2)(A)); (ii) “afford adequate deterrence to criminal conduct” (Id. § 3553 (a)(2)(B));
“protect the public from further crimes of the defendant” (Id. 3553(a)(2)(C)); and (iv) “provide
the defendant with needed educational or vocational training, medical care, or other correctional
treatment in the most effective manner.” (Id. § 3553(a)(2)(D)). In conducting this analysis, the
district court “may not presume that the Guidelines range is reasonable.” Gall v. United States,
552 U.S. 38, 50 (2007). Rather, “it must instead conduct its own independent review of the
sentencing factors, aided by the argument of the prosecution and the defense.” United States v.
Cavera, 550 F.3d 180, 189 (2d Cir. 2007). The “sentencing judge has a very wide latitude to
18
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decide the proper degree of punishment for an individual offender and a particular crime.” Id. at
188.
First, a non-custodial sentence is warranted based on the nature and circumstances of the
offense and Dr. Poroger’s personal characteristics. As set forth in the government’s submissions
to the Court, Dr. Poroger deserves consideration for the substantial assistance that she provided
in the investigation and prosecution of the offense. Furthermore, it is undisputed that Dr.
Poroger was a hard-working, devoted physician who never sought to steal from Medicare. Her
sole purpose was to treat patients. She did not plan the offense or actively participate in it.
Instead, she closed her eyes to the fraudulent scheme and did not take measures to investigate or
stop the fraud when she was put on unquestionable notice that wrongdoing was afoot.
Nevertheless, Dr. Poroger did not enjoy the profits of the fraud. She worked 12-14 hour
days and took a reasonable salary. Dr. Poroger lived comfortably in a home that she owned
(with a mortgage), but hardly lived a lavish lifestyle. She lived modestly and focused her free
time on caring for her parents and spending time with her son. Dr. Poroger was at most a
reluctant participant in the fraudulent scheme and her failure to take action to stop the fraud
represents a lapse in judgment over a short period in an otherwise exemplary life. Here, the
Court should exercise its substantial discretion and impose a non-Guidelines, non-custodial
sentence because the “defendant’s commission of the instant offense[] was aberrant behavior”,
although perhaps “not aberrant as defined by the U.S. Sentencing Guidelines, but rather as
defined by Merriam Webster: . . . atypical.” Gupta, 904 F. Supp. 2d at 354.
19
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Second, a non-custodial sentence is “sufficient, but not greater than necessary,” to
“reflect the seriousness of the offense . . . promote respect for the law, and . . . provide just
punishment.” 18 U.S.C. § 3553(a)(2)(A). The offense for which Dr. Poroger was convicted is
undoubtedly serious. However, as discussed in this memorandum, Dr. Poroger ultimately
suffered horrific personal, financial, and legal consequences as a result of her offense, and gained
nothing. Her culpability in the offense, for the reasons stated above, is much lower than that of
her coconspirators. Finally, in the over three years since her arrest, and the six years since the
offense, Dr. Poroger has a demonstrated a track record of following the law and abiding by all
the terms of her pretrial release.
In these circumstances, a non-custodial sentence is warranted. See, e.g., United States v.
Paul, 2007 WL 2384234 (9th Cir. Aug. 17, 2007) (within guideline sentence of 16 months (high
end) for taking government money was unreasonably high in part because Paul was “a first-time
offender with absolutely no criminal record whatsoever”); United States v. Edwards, 595 F.3d
1004 (9th Cir. 2010) (where defendant convicted of bankruptcy fraud and on probation for prior
state conviction for fraud, and where guidelines range 27-33 months, sentence of probation,
seven months of which was to be served under house arrest, and $5,000 fine, was not an abuse of
discretion in part because proper for judge to consider that “by the time of the 2008 resentencing, the offenses had been committed nine years previously and that Edwards had left the
stress of his earlier job in the construction business that led him to become involved in the
financial fraud scheme, and completed without incident three and one half years of probation.”).
20
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Third, a non-custodial sentence “afford[s] adequate deterrence to criminal conduct.” 18
U.S.C. § 3553(a)(2)(B). As a result of Dr. Poroger’s alleged offense: (i) she will never again be
licensed to practice medicine, (ii) her finances were devastated, (iii) her house was forfeited by
the government; (iv) her physical and mental health have substantially deteriorated; and (v) she
has spent approximately three-and-a-half year under pretrial supervision, which has involved
significant restrictions on her ability to travel. In these circumstances, one “need only consider
what happened to [Dr. Poroger] in order to reconsider [committing a similar offense]; thus,
general deterrence [is] served. United States v. Redemann, 295 F. Supp. 2d 887, 897 (E.D. Wis.
2003). See also, e.g., United States v. Gaind, 829 F. Supp. 669 (S.D.N.Y. 1993) (the destruction
of a defendant's only business, involving testing material for the EPA, warranted a downward
departure in false statement case because elimination of the defendant's inability to engage in
similar or related activities and the substantial loss of assets and income were a source of
individual and general deterrence); United States v. Anderson, 533 F.3d 623 (8th Cir. 2008)
(district court’s below-Guidelines sentence was not unreasonable in part because of collateral
consequences where district court “specifically addressed other ways in which the defendant had
suffered atypical punishment such as the loss of his reputation and his company, the ongoing
case against him from the Securities and Exchange Commission and the harm visited upon him
as a result of the fact that his actions brought his wife and friends into the criminal justice
system.”).
21
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Thus, in light of the adverse consequences Dr. Poroger suffered as a result of the alleged
offense, a non-custodial sentence is more than sufficient to deter others from committing the
same offense. As the Supreme Court observed in Gall v. United States, 552 U.S. 38, 48 (2007):
We recognize that custodial sentences are qualitatively more severe than probationary
sentences of equivalent terms. Offenders on probation are nonetheless subject to several
standard conditions that substantially restrict their liberty . . . Probationers may not leave
the judicial district, move, or change jobs without notifying, and in some cases, receiving
permission from, their probation officer or the court. They must report regularly to their
probation officer, permit unannounced visits to their homes, refrain from associating with
any person convicted of a felony, and refrain from excessive drinking. Most probationers
are also subject to individual “special conditions” imposed by the court.
Similarly, Judge Gleeson observed in a recent opinion “when a judge chooses between a
prison term and probation, she is not choosing between punishment and no punishment.
Probation is less severe than a prison term, but both are punishment. And as the Supreme Court
has recognized, probation is significant punishment.” United States v. Leitch, 2013 WL 753445,
at *12 (E.D.N.Y. Feb. 2, 2013) (emphasis in original). Indeed, special conditions of probation
may include significant restrictions on liberty such as home detention. See 18 U.S.C. §
3563(b)(19) (discretionary conditions of probation may include that the defendant “remain at his
place of residence during nonworking hours and, if the court finds it appropriate, that compliance
with this condition be monitored by telephonic or electronic signaling devices.”); United States
v. Coughlin, Crim. No-06-20005, 2008 WL 313099, at *5 (W.D. Ark. Feb. 1, 2009) (“Home
detention and probation can be severe punishments, hugely restrictive of liberty, highly effective
in the determent of crime and amply retributive.”).
22
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Here, Dr. Poroger has experienced the equivalent of three-and-a-half years of Probation
by remaining under relatively restrictive conditions of pretrial supervision, especially for a
person without significant assets, without overseas or unaccounted-for assets, without foreign
ties, but with very strong ties to the community, and who has cooperated with the government.
Fourth, for the same reasons a sentence of probation is sufficient to achieve general
deterrence, it is also sufficient to “protect the public from further crimes of the defendant.”
Indeed, the “personal, business and family consequences [Dr. Poroger has] experienced will
likely deter [her] from future misconduct.” Redemann, 295 F. Supp. 2d at 897; United States v.
Mizrahi, 2008 WL 3009983, at *2 (E.D.N.Y. 1993) (where defendant loses his or her livelihood
and is thus prevented from engaging in similar crimes, “the necessity for achieving the purposes
of sentencing through sentencing itself has been reduced.”). In addition, because Dr. Poroger
will never be able to practice medicine again, she will never again be in a position to commit a
similar offense. See United States v. Speed Joyeros, 204 F. Supp. 2d 412, 440 (E.D.N.Y. 2002)
(departure appropriate where “defendant is barred by the destruction of business from
committing similar future criminal acts”); Gaind, 829 F. Supp. At 671 (where the defendant
loses his or her livelihood and is thus prevented from engaging in similar crimes, “the necessity
for achieving the purposes of sentencing through sentencing itself has been reduced.”).
Fifth, a non-custodial sentence is warranted in order “to provide the defendant with
needed . . . medical care, or other correctional treatment in the most effective manner. 18 U.S.C.
§ 3553(a)(2)(D). Dr. Poroger currently suffers from severe physical and psychiatric
impairments. Most seriously, she suffers from major cardiac conditions, impaired vision,
23
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impaired movement, severe depression, severe anxiety, and suicidal ideation. She is prescribed
over 18 medications and requires frequent visits to her medical providers, who are fully familiar
with her myriad conditions and have treated her for several years. If Dr. Poroger is incarcerated,
it is substantially unlikely that Dr. Poroger will receive the health care she desperately needs for
her chronic physical and psychological conditions.
24
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CONCLUSION
Accordingly, a non-Guidelines, non-custodial sentence is sufficient, but not greater than
necessary to satisfy the objectives of federal sentencing set forth in 18 U.S.C. §3553(a). For the
foregoing reasons, we respectfully request that the Court impose a non-custodial sentence.
Dated:
New York, New York
April 10, 2015
Respectfully submitted,
/s/ Eric M. Creizman
Eric M. Creizman
Melissa Madrigal
CREIZMAN PLLC
565 Fifth Avenue, 7th Floor
New York, New York 10017
Phone: (212) 972-0200
Fax: (646) 200-5022
[email protected]
Attorneys for Emma Poroger
25
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March 30, 2015.
The Honorable Dora L Irizarry
United States District Court Judge
United States District Court
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201
Dear Honorable Judge Irizarry,
My name is Monika Paroder and I am a resident physician at New York Presbyterian- Columbia University
Medical Center, mother of two baby boys, and Emma’s niece. Thus needless to explain, I have known
Emma my entire life. I would like to share with you some insight into Emma’s character – a selfless
dedicated woman of incredible strength, kindness, and compassion.
Almost five years ago, my life, my family’s life and the world as I knew it had changed forever. My dad was
diagnosed with cancer. The following months were a tumultuous whirlwind of fear, hope, anger, and pain;
moments that will forever be vividly ingrained in my memory. During this time, Emma was the voice of
optimism; Emma was the voice of knowledge; Emma was the voice of hope; Emma was the voice of reality.
She was a solid stone for us to lean against, yet I know it was unimaginably difficult for her. Emma too lost
her mother when she was in her 20s.
Emma is my dad’s cousin, my aunt. In reality though, she was like his sister and more that that, she is my
mom’s dear friend. Her life story is not unlike many other immigrants’. She came to this country in refuge of
a bright future for her son and her family. Her decision to enter the highly regarded field of medicine was
driven by the selfless, fervent desire to help people, even at her own expense. As a foreigner, she was
faced with a new culture, a new language, the challenge of starting a new life. She succeeded, like she
always did. She was a role model for me – a woman with a career, a family, friends who love her.
There is one quality I love about Emma most. Emma always believes; she has faith. She sees the good in
anyone, even that bum on the corner begging for money for a family he doesn’t have. She trusts people; she
is all about second chances. She doesn’t question whether people have ulterior motives. She is honest and
she thinks the world is too. It is rare to encounter people of this character these days.
Emma has always been an honest woman with immense perseverance and incredibly high values. While I
know it sounds like a cliché, it is in the nature of human beings to make mistakes. I truly do believe Emma
acted very much out of her character. As the Roman Philosopher Lucius Annaeus Seneca once said,
“There is no person so severely punished, as those who subject themselves to the whip of their own
remorse.” To say that Emma is punished by her remorse for her actions would be an understatement.
Emma is the only remaining family from my dad’s side that my family and I have left here in the US. Today,
your honor, I am terribly fearful that Emma may be taken away from those that love her and depend on her
and that my two little boys may not have the opportunity to get to know her and their roots. “Love and
compassion are necessities, not luxuries. Without them humanity cannot survive,” said the Dalai Lama. I
hope that you will show my aunt, Emma Paroger, compassion, as she has always shown to everyone in her
life, even those who don’t deserve it.
I plead for you to be kind to our family and allow her to remain with us.
Respectfully,
Monika Paroder-Belenitsky, MD, PhD
Case 1:11-cr-00742-DLI Document 117-2 Filed 04/11/15 Page 1 of 3 PageID #: 619
March 17,2015
The Honorable Dora L.lrizarry
United States District Court Judge
United States District Court
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201
Dear Judge lrizarry:
My name is Matvey Nikhamin. I currently work as Senior Application Analyst at
Partners HealthCare in Boston area.
I am aware that Emma has been convicted of a crime and that you are going to
be sentencing her in connection with this crime. I would like to request as much
Ieniency as possible in Emma's sentencing.
I have met Emma about 22 years ago, soon after she and her family immigrated
to the United States. Ever since then, I have known her as a great friend to my
family and also as a mother of one of my best friends. My family and I have gone
through many of the same life-changing experiences as our families immigrated
to the United States around the same time and endured many of the same
difficulties and challenges in order to settle here. Emma and her husband, same
as my parents, had to uproot their whole lives, careers in order to come here.
Decade's worth of memories, possessions, connections and relationships were
left behind, suspended - in order to bring kids to better and safer future.
Emma, who was a doctor back in Ukraine, was determined to become a doctor
here as well. She knew how challenging and demanding the path to becoming a
doctor was. For Emma it meant going back to school, it meant learning English
and mastering it as quickly as possible in order to succeed. Any one of these is a
great challenge to an individual, but for Emma this was a challenge worth facing
and overcoming. Emma had a plan and she put forth extraordinary amount of
effort to follow through on it.
At the same time as Emma started on a path to become a doctor again, she and
her husband had to quickly learn, understand and organize future of their 15 year
old son. They were under a lot of pressure to make the best possible choices for
their son. They had to digest a lot of new and important information to make
decisions as their son entered school mid-sophomore year and he was going to
be applying to Colleges and Universities very soon. Emma, as most immigrant
Case 1:11-cr-00742-DLI Document 117-2 Filed 04/11/15 Page 2 of 3 PageID #: 620
parents, had a vision of better and brighter future for her son, when she made a
decision to come to the United States. Emma's goal was to do everything
possible to help her son to achieve and excel in the new country, new city, new
school, new environment.
Besides, having gone through immigration and settling, there was another life
event in Emma's life that was very close to what my family has gone through.
Emma went through divorce, just like my parents did. However, unlike my
parents Emma and her husband made sure that the divorce had as little affect on
her son as possible. Emma and her husband had strong commitment to support
their son even after separation. They collaborated together to attend his
birthdays, graduations, and a wedding. They worked together to provide him any
support he needed while he was nearby in medical school and after from a far
with frequent visits and phone calls. Being one of his best friends, I can candidly
say that his hard work, ethics, integrity are reflection of Emma's strong values.
Furthermore, over the past 22 plus years Emma has also been one of my
mother's closest friends here in United States. Emma has been a shoulder to
lean on for my mother numerous times over the years. While in the beginning
there was a lot of common challenges to overcome, over time Emma and my
mother were on different paths. A lot had to do with my mother's persistent health
issues and bitter divorce, but no matter what Emma was always there for her.
Even during these hard times after her arrest and plea, Emma always found time
to reach to my mother and check in on her to make sure she was ok. Whenever
Emma could not reach my mother after numerous calls, she would call me to find
out if I talked to her and she was ok.
For me, growing from a teenage boy, to a parent myself in the country that is my
second home I can really appreciate the effort and strength it took for Emma to
accomplish as much as she did under such trying circumstances. Emma and my
parents made this once in a lifetime decision to come to this country. ln the last
few years I have continuously tried to measure myself against my own parents
and parents of my friends - Am I courageous enough? Am I determined enough?
Do I have strength to start everything over? Do I have what it takes? - To even
entertain such decision. Emma with her husband and my parents went far
beyond just thinking about it. They did it. And, I have always felt that our parents
sacrificed some of the best years of their lives to get us here and to watch us
grow and succeed. We are forever indebted to them for it. Seeing us and our
children develop and establish ourselves is the best gift we can give them at this
time. And, for Emma who is going to become a grandmother this June - it would
be such a huge triumph to meet her future grandson, To be there when he is
born, to be there to see his first smile, to be there when he starts lifting his head,
Case 1:11-cr-00742-DLI Document 117-2 Filed 04/11/15 Page 3 of 3 PageID #: 621
and to be there seeing how a giant step taken some 20 odd years ago led to first
tiny baby steps - propelling new life to better and brighter future.
firmly believe in Emma's strength, integrity, perseverance, and determination to
overcome many challenges. I have seen it over the years, as I have seen Emma
rise to the occasion to accomplish and achieve things that seemed unimaginable.
She has always done it with dignity, grace and sincerity. I hope with all my heart
that Emma can avoid any jail sentence and can continue in her role as mother,
grandmother and a friend for everyone that's close.
I
Respectfully yours,
Matvey Nikhamin
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Igor
Poroger
22
Market
Road,
Flat
7
London,
United
Kingdom
N7
9GS
Phone:
+44
7449929691
E-‐Mail:
[email protected]
March
18,
2015
The
Honorable
Dora
L.
Irizarry
United
States
District
Court
Judge
United
States
District
Court
Eastern
District
of
New
York
225
Cadman
Plaza
East
Brooklyn,
New
York
11201
Dear
Judge
Irizarry,
Please
accept
this
letter
in
support
of
my
aunt
Dr.
Emma
Poroger.
I
can
appreciate
that
an
endorsement
letter
from
a
family
member
may
not
be
very
convincing
to
you,
given
the
inherent
bias.
For
this
reason,
I
write
this
letter
as
both
a
concerned
family
member
and
as
a
fellow
officer
of
the
court.
With
the
utmost
respect
for
the
justice
system,
I
implore
you,
in
your
deliberations
regarding
Emma’s
sentencing,
to
please
consider
her
good
character
before
coming
to
your
decision,
and
that
incarceration
does
not
form
part
of
her
sentence.
Emma
is
the
type
of
person
who
will
rarely
say
“no”
when
someone
is
in
need.
She
will
go
above
and
beyond,
though
in
her
eyes
I
think
she
is
merely
being
herself.
I
know
this
because
she
has
consistently
aided
both
my
parents
and
elderly
grandfather
with
their
medical
needs
throughout
the
years.
Without
Emma
around,
it
is
uncertain
how
my
93
year
old
grandfather
will
manage
on
a
day
to
day
basis.
Emma’s
biggest
flaw
is
that
she
forgets
to
think
about
herself
when
the
interests
of
others
are
at
stake.
Quite
recently,
Emma
went
out
of
her
way
for
me,
gathering
my
grandfather’s
naturalization
documents,
as
I
required
these
for
a
personal
immigration
matter
while
living
abroad.
This
was
no
easy
feat,
as
Emma
had
to
personally
escort
my
grandfather
(who
had
not
left
Brooklyn
in
several
years)
to
Manhattan,
translate
various
documents
for
government
clerks,
and
coordinate
a
complicated
over-‐legalization
process
to
validate
the
documents
for
foreign
use.
Without
Emma’s
help,
my
immigration
situation
would
have
stalled,
but
I
was
never
concerned,
because
knowing
the
kind
of
person
my
aunt
is,
a
selfless
and
dedicated
individual,
there
was
never
a
reason
to
doubt
that
she
wouldn’t
come
through,
or
that
she
would
not
be
willing
to
help.
Emma’s
ethos
for
hard
work
and
determination
has
been
an
inspiration
to
those
around
her.
She
put
herself
through
medical
school,
well
into
her
middle
age,
and
never
asked
for
any
help
from
anyone.
Her
proud
nature
does
not
allow
her
to
fall
down
or
pity
herself,
even
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Page
2
throughout
this
tumultuous
ordeal.
It
would
be
a
travesty
is
she
was
to
be
prevented,
even
temporarily,
from
inspiring
others
with
her
strength.
I
know
that
Emma
is
truly
repentant
for
her
error
in
judgement,
and
only
wants
the
opportunity
to
care
for
her
family
and
make
a
positive
contribution
to
her
community.
I
ask
you
to
please
consider
the
benefits
to
be
derived
from
allowing
Emma
to
continue
serving
her
family
and
community,
and
reflect
on
what
little
could
be
gained
from
incarcerating
Emma,
other
than
depriving
the
freedom
of
a
good,
hard
working
and
penitent
woman.
Respectfully,
Igor
Poroger,
B.E.S.,
J.D.
Barrister
and
Solicitor
(Called
to
the
Bar
of
Ontario,
Canada)
2
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Elena
Bronstein
60
Holiday
Ct
River
Vale,
NJ
07675
Dear
Judge
Irizarry:
I
have
known
Emma
Poroger
for
12
years
and
during
that
time
span
have
become
good
friends
with
her.
First
of
all,
I
would
like
to
thank
fate
that
I
met
this
person.
From
the
first
moment
we
met,
I
understood
that
she
was
a
person
I
could
put
my
trust
in.
She
did
a
lot
of
good
things
for
me
that
she
did
not
have
to
do.
First,
she
helped
me
get
a
good
job
at
a
difficult
time
in
my
life.
She
recommended
me
as
a
medical
biller
to
her
boss.
Because
of
her
recommendation
he
offered
me
a
position
in
his
office
which
improved
my
career
prospects.
It
was
very
fortunate
for
me
back
then
because
I
recently
came
to
United
States
and
did
not
know
many
people
in
the
medical
field
that
would
put
their
trust
in
me.
In
2006,
my
son
got
a
severe
case
of
Poison
Ivy.
It
was
Friday
late
afternoon
and
I
called
Emma
for
advice.
She
did
not
even
hesitate
for
a
second
and
personally
came
to
my
house
to
give
my
son
an
injection
despite
having
to
travel
a
long
distance.
We
worked
together
in
VitaMed
Family
Practice
for
3
years
and
later
I
did
medical
billing
for
her
practice
and
not
once
has
she
requested
to
over
code.
Now
being
an
experienced
medical
biller
and
being
around
the
medical
billing
industry
I
can
say
that
Emma
Poroger
was
an
honest
doctor
for
whom
the
main
goal
was
to
give
a
good
care
and
a
proper
medical
treatment
to
the
patients.
I
understand
that
in
this
case
Dr.
Poroger
did
not
use
her
best
judgment
and
she
has
lost
a
lot
because
of
this
situation.
But
I
really
believe
that
this
case
is
not
a
reflection
of
Dr.
Poroger's
character.
She
is
a
very
good
person
who
has
helped
not
only
me
but
other
people
that
she
has
come
in
contact
with.
Your
honor,
I
would
like
to
ask
you
to
be
lenient
with
Emma
Poroger.
Respectfully
yours,
Elena
Bronstein
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The
Honorable
Dora
L.
Irizarry
United
States
District
Court
Judge
United
States
District
Court
Eastern
District
of
New
York
225
Cadman
Plaza
East
Brooklyn,
New
York
11201
Dear
Judge
Irizarry:
My
name
is
Denis
Shtabel.
I
am
a
Sr.
QA
and
production
support
IT
Manager
at
Aetna.
I
have
been
working
at
Aetna
for
the
past
14
years.
I
have
known
Emma
Poroger
for
22
years.
Her
son
Feliks
and
I
have
been
best
friends
since
high
school.
In
early
90’s
Emma
made
a
decision
to
immigrate
to
US,
hoping
for
a
better
life
and
a
brighter
future
for
her
son
and
her
family.
It
was
a
difficult
decision,
one
that
would
require
Emma
to
sacrifice
her
own
successful
medical
career
in
Ukraine
for
the
better
of
her
loved
ones.
Once
family
settled
in
Brooklyn
and
Feliks
started
to
attend
high
school,
Emma
went
back
to
school
herself.
She
started
with
English
classes
and
then
applied
for
medical
school.
It
was
a
difficult
task
to
start
all
over
again,
but
Emma
was
not
intimidated
by
it.
During
late
90’s
when
I
would
visit
her
home,
I
would
see
stacks
of
medical
books,
notes,
diagrams
and
English/Russian
dictionaries
opened
and
being
used
in
every
room
and
on
every
desk/table
of
her
house.
She
was
immersed
in
studying.
For
Emma
to
go
back
to
school
at
age
40
and
to
graduate
with
a
medical
degree
from
New
York
College
of
Osteopathic
Medicine
in
2000,
speaks
volumes
about
Emma’s
tenacity,
character
and
courage.
Years
of
grueling
medical
school
and
residency,
didn’t
break
her
down
but
instead
made
her
appreciate
her
family
and
her
future
profession
even
more.
She
taught
her
son,
through
her
own
actions,
that
nothing
comes
easy
in
life,
yet
if
you
put
your
mind
and
effort
to
it,
you
can
achieve
your
goals
and
dreams.
Emma’s
innate
passion
for
medicine
and
her
natural
calling
to
help
people
is
what
motivated
her
to
start
her
medical
career
once
again
from
the
ground
up.
During
Emma’s
years
of
practicing
medicine,
she
has
many
patients
who
are
thankful
to
her
for
her
knowledge,
her
professionalism,
and
her
ability
to
listen
and
resolve
their
medical
issues.
I
can
continue
on
and
on
writing
about
how
much
Emma
means
to
her
family
and
how
much
her
family
means
to
Emma.
I
can
talk
about
her
life
long
struggle
and
success,
but
what
I
want
to
finish
this
letter
with
is
by
writing
about
Emma’s
positive
impact
on
those
who
she
comes
in
contact
with.
She
would
always
help
one
in
need.
It
can
be
a
relative,
a
friend
or
patient
of
hers.
She
does
not
discriminate.
I
can
honestly
say
that,
without
knowing
it,
Emma
made
positive
impact
on
decisions
that
I
made
in
my
life.
She
has
a
big
heart
and
that
heart
is
full
of
love
and
compassion
for
others.
In
a
couple
of
months
Emma
is
going
to
become
a
grandma
for
the
first
time
in
her
life.
I
can
only
imagine
how
happy
and
excited
Emma
will
be
when
she
gets
to
see
her
grandson
the
day
he
is
born.
And
I
can
also
imagine
how
devastating
it
would
be
for
her
and
for
her
family
to
know
that
she
won’t
be
able
to
hold
him
and
help
taking
care
of
him
if
she
were
to
be
sentenced
to
serve
time
in
prison.
I
understand
that
Emma
has
pleaded
guilty
to
a
federal
crime
and
awaits
sentencing.
I
understand
that
she
made
a
mistake
in
judgement.
Nevertheless,
I
believe
that
she
is
no
threat
to
society
and
I
respectfully
ask
the
court
to
be
lenient
and
not
to
sentence
her
to
jail
time.
Respectfully,
Denis
Shtabel.
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Izabella Genin
43 Sunset Lane
Staten Island, NY 10307
[email protected]
(347) 331-9795
March 27th, 2015
The Honorable Dora L. Irizarry
United States District Court Judge
United State District Court
Eastern District of New York
225 Cadman Plaza East
Brooklyn, NY 11201
Dear Judge Irizarry,
I am asking you to accept this letter in support of Dr. Emma Poroger. I thankfully appreciate
your time and willingness to consider this letter in your decision. This letter is about one medical
professional who is asking the court to be lenient in imposing the sentence of another medical
professional.
I was a nurse from Memorial Sloan Kettering Cancer Center who devoted the last decade of her
professional life and retired from this hospital last year. I met Dr. Emma Poroger in a very
difficult time in my life. It was after a car accident with a drunk driver in which I sustained
serious injuries that greatly affected my personal and professional life. Under the devoted and
exceptional care of Dr. Poroger, I was able to continue working until my retirement time and be
free from pain in my everyday activities.
In the medical profession, we are dealing with extreme physical and emotional pain. From my
working experience, emotional pain is equally and even greater than physical pain. This pain not
only is affecting Dr. Poroger, but also her family and friends who she takes great care of. When
dealing with emotional pain you can only overcome and care with kindness, compassion, and
dignity.
Your Honor, in my 65 years of life I have seen a lot of doctors and I can assure you that the
words "devoted, humane, passionate, kind and not one to harm" are all applied to
Dr. Poroger. We all make mistakes, but not all have the decency to admit it and sincerely
apologize. I know that Dr. Poroger is truly repentant for her mistake and is deeply in pain. Her
mistake was the result of poor judgment by letting people take advantage of her good will and
unspoiled nature.
I am confident in my pleading to you Judge Irizarry for your compassion, fairness, and wisdom.
"I have always found that mercy bears richer fruits than strict justice" – Abraham Lincoln
Respectfully yours,
Izabella Genin
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From:
Subject:
Date:
To:
[email protected]
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April 6, 2015 at 4:54 PM
Labas, Lana (CORP)
[email protected]
Please open the attached document. It was scanned and sent to you using a Xerox multifunction device.
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March
27,
2015
The
Honorable
Dora
L.
Irizarry
United
States
District
Court
Judge
United
States
District
Court
Eastern
District
of
New
York
225
Cadman
Plaza
East
Brooklyn,
New
York
11201
Dear
Judge
Irizarry,
My
name
is
Julianna
Shtabel
and
I’ve
been
employed
by
Insurity
as
a
Manager
of
Software
Engineering
in
Hartford,
CT
since
2001.
I
am
writing
this
letter
on
behalf
of
Emma
Poroger.
I
was
introduced
to
Emma
Poroger
through
my
husband
and
his
best
friend
Feliks
Koyfman,
Emma’s
son.
This
was
back
in
2000
when
my
husband
(boyfriend
at
the
time)
and
I
were
visiting
my
mother-‐in-‐law
in
New
York
and
met
Feliks
and
Emma
at
a
quite
restaurant
in
Brooklyn
for
lunch.
She
talked
a
lot
about
Feliks,
his
accomplishments
at
school
and
his
future
plans.
I
could
tell
that
she
is
very
much
devoted
to
her
family.
She
provided
emotional
support
to
her
son
during
his
medical
school
years.
She
kept
his
spirits
up
during
difficult
times
and
gave
valuable
advice
when
he
was
at
crossroads
in
his
life.
Even
though
these
days
I
don’t
have
the
pleasure
of
spending
a
lot
of
time
with
Emma,
I
hear
many
stories
about
Emma
from
Feliks.
Emma
is
always
there
for
him
and
his
wife.
They
are
both
professionals
with
demanding
jobs
and
Emma
helps
them
with
keeping
up
their
household
for
which
they
are
very
grateful
to
her.
Emma
is
a
very
positive
and
energizing
person.
When
I
think
back
to
all
the
times
I
have
been
in
her
company,
she
always
had
a
smile
on
her
face
and
found
a
way
of
making
everyone
around
her
laugh.
Even
in
dark
times,
she
always
kept
positive.
Emma
is
expecting
her
first
grandchild
in
June.
She
is
very
excited
about
it
as
she
has
been
patiently
waiting
to
become
a
grandmother
ever
since
her
son
was
married.
This
is
the
time
when
Emma’s
involvement
and
help
will
be
invaluable
to
her
son
and
her
daughter-‐in-‐law.
Being
deprived
of
ability
to
see
her
family
frequently
and
from
being
involved
in
her
grandson’s
life
due
to
imprisonment
will
be
devastating
for
Emma
and
her
family.
I
understand
that
Emma
has
pleaded
guilty
to
a
federal
crime
and
awaits
sentencing.
I
believe
Emma’s
time
will
be
more
valued
with
her
family
as
it
continues
to
grow.
I
respectfully
ask
that
she
be
spared
imprisonment.
Respectfully,
Julianna
Shtabel
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March 25, 2015
The Honorable Dora L. Irizarry
United States District Court Judge
United States District Court
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201
Dear Judge Irizarry:
My name is Viktoriya Paroder and Emma Poroger is my aunt. I am an academic
radiologist and a scientist. I know that my aunt has been convicted of a crime and
that you will be sentencing her in connection with this crime. I am writing this
letter in hope that ask for your leniency in deciding on the sentence. I am asking
you to spare my aunt, Emma Poroger, of any sentence of imprisonment. I can
state with confidence that if Emma Poroger has made any mistake in judgment, it
doesn’t at all reflect who she really is as a person and as a professional.
I have known Emma since I was a little girl. She is a very caring, warm, honest
and kind person. As I grew up I have come to realize that she is just as caring,
warm and knowledgeable physician. She has always strived to help people
irrespective of their background or social status. For her patients, there was no
time of the day when she was not reachable; always ready to listen, support and
help.
Emma has worked very hard ever since she arrived to this country. Needless to
say, she has accomplished a nearly impossible task of finishing medical school for
the second time at already not so young age in a foreign language. This is
something not very many physicians from foreign countries are able to achieve.
Having gone through many years of undergraduate and graduate training in this
country myself, I admire Emma for her perseverance, dedication, hard work and
strong work ethic.
For her immediate and extended family she has always been a source of endless
support, encouragement and pride. She has raised a son who is an excellent
physician. She is the primary caretaker of her elderly father. To the rest of us she
is just as kind, warm and caring aunt as she has always been. We can always turn
to Emma for advice, help and support, knowing that we will always get an honest,
sincere opinion on any issue.
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Again, I am asking for your leniency in deciding Emma Poroger’s sentence to
spare her of any imprisonment.
I thank you for your time and attention to my letter.
Respectfully,
Viktoriya Paroder MD PhD
Case 1:11-cr-00742-DLI Document 117-41 Filed 04/11/15 Page 1 of 1 PageID #: 675
Dear Judge Irizarry,
March 31, 2015
My name is Dr. Samuel Vasershteyn and I am a retired Dentist. I have known Dr.
Emma Poroger since she was a medical student in the Ukraine and remained good friends
with her during our difficult immigrations. Emma is a remarkable physician who I
consult when any member of my family has any sort of illness. When my father was
hospitalized a few years ago she was the first person I contacted for consultation. Dr.
Poroger immediately contacted the attending physician and helped identify an alternative
diagnosis which dictated my father’s course of treatment and helped eliminate
unnecessary testing and discomfort for my father. I credit her for minimizing my father’s
hospital stay and greatly improving his outpatient treatment plan.
Emma is an astute clinician with amazing empathy which she has demonstrated to
me when answering my clinical questions and helping me make an informed health
decision. I have remained close friends with Emma as she has struggled with the terms of
the recent conviction. She feels a void in her life without the relationships and daily
interactions she had with her patients. Emma still remains a reliable and available
resource for former patients, family, and friends when it comes to health care questions.
My family and I consider Emma a member of our family. She is a benevolent soul
and a person of high integrity and morale. She has paid for her mistakes dearly and would
like to move forward and continue contributing to her close circles and community. I
plead that you spare Emma jail time and instead allow her a more constructive approach
to correct her mistakes and rebuild her life. Emma has expressed her deep regret for her
mistakes and is actively working to make amends in her life.
Respectfully,
Dr. Samuel Vasershteyn