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JESSICA ARONG O'BRIEN APPEALS HER CASE;
CO-DEFENDANT MARIA BARTKO TO BE SENTENCED FEB. 26!

 

By JOSEPH G. LARIOSA
(© 2019 Journal GlobaLinks)

 

CHICAGO (JGL) – In a desperate bid to stay in the United States, a Filipino healthcare businessman facing deportation for contracting sham marriage,

had provided alleged incriminating information of healthcare fraud against former Judge Jessica Arong O'Brien to U.S. Health and Human Services Office of Inspector General investigators.

Although, HHS-OIG “never opened an investigation, that the documents sat there,” Ms. O'Brien was never charged with healthcare fraud. She, however, was eventually charged with, convicted of and sentenced to one year and one day imprisonment with bank and mail frauds growing out of fraudulent real estate transactions that included making false statements by among others inflating her income and deflating her liabilities to obtain loans.

Her co-accused, Maria Bartko, a licensed loan originator and part-time loan officer of Amronbanc Mortgage Corporation in Lincolnwood, Illinois, was charged with one count of mail fraud affecting financial institution in the conspiracy.

Ms. O'Brien has appealed her conviction to the U.S. Seventh Circuit Court in Chicago, Illinois. This was filed by her lawyer, Allan A. Ackerman. She has until March 15 to submit her appeals brief, three days before she starts serving her sentence at noon on March 18. Appellees' (government's) brief is due on or before April 15, 2019 and appellant's (Ms. O'Brien's) reply brief is due on May 6, 2019.

BFFS STAND BY HER:

JESSICA ARONG O'BRIEN (fifth from right) is surrounded by her best friends when she was the president of the Illinois Women's Bar Association. The same friends stuck by her during her sentencing last December 20th. (JGL Photo by JOSEPH G. LARIOSA)


According to the 94-page transcript of Ms. O'Brien's sentencing last December 20th obtained by philamessenger.com, U.S. Assistant Attorney Matthew F. Madden told Judge Thomas M. Durkin of the U.S. Court of the Northern District of Illinois in Chicago that after Joseph C. Alzona provided dossier linking Ms. O'Brien to healthcare fraud, “I was called at a certain point by an agent, and there was a reference to there being a potential mortgage fraud as well. And then I contacted the FBI and Federal Housing Finance Agency open investigations on Aug. 31, 2015.

CO-DEFENDANT BARTKO'S LIVE-IN PARTNER EYES “S” VISA

Mr. Alzona, president of Assisted Homecare Services Corporation based in Chicago's adjoining northern suburb of Lincolnwood, volunteered incriminating information to HHS-OIG against Ms. O'Brien, hoping to obtain a U.S. “S” visa that could block his deportation to the Philippines when authorities learned that he entered into a sham marriage with his live-in partner, Maria Bartko, O'Brien's co-accused in the mortgage fraud case. A Filipino undocumented immigrant is called “TNT,” an abbreviation of the Tagalog phrase, “tago-nang-tago” (always hiding).

Alzona might not get his wish to stay in the U.S. as the Violent Crime Control Act of 1994 that amended the Immigration and Nationality Act to establish new “S” nonimmigrant visa classification is only granted to undocumented whistleblowers who can supply critical reliable information to federal authorities necessary to the successful investigation and/or prosecution of criminal or terrorist organizations. This profile may not fit Ms. O'Brien, who is an individual white-collar felon and not a member of an organized group. An applicant of "S" visa must be able to prove also that his life is in danger if he were returned to his homeland. And available "S" visas are capped at 200 for each fiscal year.

Ms. Bartko cooperated with authorities that secured the grand jury indictment of Ms. O'Brien for one count of mail fraud and one count of bank fraud. Ms. Bartko was also charged with one count of mail fraud of a financial institution in the conspiracy. She entered into a plea agreement with the government.

Ms. Bartko, who was not presented as a witness during Ms. O'Brien's jury trial last year, is due for sentencing on Feb. 26 next week.

The next day the U.S. Attorney’s Office opened an investigation. And from right around — these are just some of the highlights, of course. From the day we — you might remember that that next day or even that same day, a bunch of subpoenas went out,” Mr. Madden added.

CONVICTED FIL AM LAWYER “ARRANGED” SHAM MARRIAGE

Madden said, “[W]e were considering calling him (Joseph C. Alzona) at trial because we would have called him possibly if we called Maria Bartko (Alzona's live-in wife in sham marriage) and they crossed her and suggested that she was making this up. We would have called Alzona because he had previously told her about the defendant’s (Ms. O’Brien’s) knowledge of the fraud.

Ultimately, we didn’t call Bartko; we didn’t call Alzona,” Mr. Madden said.

When Ms. O’Brien asked Mr. Madden what kind of immigration benefit did the U.S. government give to Alzona during the pre-trial of the case, Mr. Madden replied:

Neither the United States Attorney’s Office nor the agencies investigating this case (FBI and FHFA) have provided Alzona with an immigration benefit or promised him that they would.”

According to court documents, “To be clear, Alzona’s 2004 marriage to Bartko was a sham and Bartko admitted to such in 2008. This illegal activity led to Alzona’s order of deportation. Since that 2010 order was entered, Alzona has been fighting deportation, both thru his now federally convicted lawyer (Manny Agua (sic) (Aguja) and his current lawyer (Royal Berg).

There is little dispute that Alzona does not want to be deported from the United States. In fact, Alzona has done very well for himself while in the United States — he is currently the owner of a multi-employee business and the owner of real estate in the Chicagoland Area.

Facing very few alternatives, at some point, Alzona through his attorney decided to approach the United States Attorney’s Office (USAO) with “information that the US Attorney’s Office might be interested.”

O'Brien was indicted by the grand jury of knowingly devising and participating in a scheme to defraud lenders and successors and to obtain money and property from lenders by means of materially false and fraudulent pretenses, representations, promises and concealment of material facts beginning in or about 2004 and continuing in or about 2007 in the Northern District of Illinois under a scheme that affected a financial institution.

'TOO MUCH DEBT” PROMPTED O'BRIEN TO SELL PROPERTIES

As a licensed loan originator at Amronbanc Mortgage Corporation in Lincolnwood, Illinois, Ms. Bartko explained in her plea agreement that because O'Brien had “too much debt” and was a “big spender,” Ms. O'Brien wanted to sell her two properties in Chicago's south side, one at 625 W. 46th St. and the other at 823 W. 54th St. At that time, Ms. O'Brien also owned a real estate business bearing her name and was a practicing lawyer.

Bartko met co-defendant O'Brien at Amronbanc, where O'Brien was also a part-time loan officer between 2005 up to 2008.

Bartko wanted to buy the two properties but she did not have credit nor income necessary to obtain the needed mortgage loans. So, she recruited an acquaintance, Christopher Kwan, to buy the properties for her as Kwan had good enough credit to obtain the mortgage loan.

O'Brien instead offered to pay kickbacks to Kwan and Bartko for purchasing the properties.

Although Kwan merely agreed to obtain mortgage loans, he falsely applied for mortgage loans using materially false representations, including intention to live in the properties, which is a requirement to obtain the loans.

On April 16, 2007, the closing took place for the sale of the 46th St. property from O'Brien to Kwan for $365,000 thru CitiMortgage and Citibank, N.A., a financial institution whose deposits were insured by the FDIC. The following day, the closing took place for the sale of the 54th St. property from O'Brien to Kwan thru First Magnus Financial Corporation loan for $365,000 to finance the purchase.

O'Brien paid Kwan $77,836 for the closings without informing the lenders.

In executing the scheme, O'Brien and Bartko delivered the payoff check for $297,208.96 for the payment of the 46th St. property. The scheme caused lenders to suffer losses totaling $660,000. which is the amount Ms. O'Brien and Ms. Bartko would have to payback as restitutions.

'DUPLICITY DEFENSE” DISCOUNTED

Mr. Kwan was not named defendant in the indictment.

In her pre-trial motion to dismiss the case on duplicity ground, Ms. O'Brien told Judge Durkin that there was no such scheme with Ms. Bartko that took place since 2004 loan application as alleged in the indictment because “Ms. Bartko and Ms. O'Brien had not met until 2005.”

Judge Durkin, however, stressed in his decision “if the evidence of 2004 thru 2006 didn't come in as part of the scheme, it still would have come in under 404(b) on the issue of intent.”

Ms. O'Brien was ordered to pay restitution of $660,000 “jointly and severally" with co-Defendant Maria Bartko. The $315,000 is payable to Citigroup while the $345,000 is payable to Federal National Mortgage Corp. (Freddie Mac). O'Brien's special assessment fee of $200 is waived.

In sentencing Ms. O'Brien to suffer a one-year-and-one day imprisonment, Judge Durkin cited the aggravating circumstances of the case as “crimes of choice and deliberation, not need. ... [H]er financial situation was not nearly as dire – as were necessary to commit financial fraud.

She's an intelligent, well-educated person: master's in tax and employment benefits, a tax attorney, worked for the Illinois Department of Revenue as a Special Assistant Attorney General since 2000.

"She was a licensed real estate broker, licensed loan originator, a lawyer since 1998, Special Assistant Attorney from July 2000 to December 2012.

AS A LAWYER, O'BRIEN HAS AN OBLIGATION TO FOLLOW THE LAW

“ … [S] he has a special responsibility to follow the law as lawyer. It is an obligation that all people have when they fill out mortgage applications or efforts to get money from a lending institution. You need to be truthful. It's not hard. It may be hard to be accurate, but you need to make efforts to do so.

And this was not an issue of lack of accuracy; these were untruthful statements in an effort to obtain money that might not have been obtained had the information been truthful.

"Whether the bank would have loaned her the money anyway had she been truthful, we don't know. There were statements and evidence relating to materiality.

“ … [Y]ou knew the [mortgage] industry very well, which makes –- which is an aggravating factor given the conduct that occurred.”

This conduct took place “over a period of years. At any one of those moments, it could have stopped. You could have turned left instead of right. And instead you continued to engage in the conduct, with many chances to not do it.

$1.8-M LOANS OBTAINED

The overall scheme obtained 1.8 million [dollars] in fraudulently obtained loans. The loss of $660,000 is significant. Your gain was significant. When those houses were sold, you realized proceeds of $220,000 from the sales after payments of the kickbacks to Bartko and ultimately to Kwan.

You really didn't need to do this. You had a comfortable lifestyle with a good salary. Spouse (also a lawyer at that time and now is a Cook County judge also) was making good salary. The salaries, although possibly inadequate for your needs, put you in the top 5 percent of Americans.

This was not a crime of need, … where people are in poverty and they make impulsive decisions. … walk into a bank because they're homeless, and they give a demand note that's written in Crayola. That's an impulsive crime by someone who's living in poverty and makes a stupid mistake. And yet we send those people to jail.

Your crime was one that didn't have to happen. You were by far the smartest and most well-educated person in the scheme. You're smarter and more educated than Bartko and than Kwan, and you're the person who got the most money out of it.”

In mitigation, Judge Durkin said, Ms. O'Brien has a lot going to her. She has no prior record; had some difficult burdens growing up.

So although you were a self-made success --- nobody handed anything to you, and had some burdens that were alluded to by her lawyer Mr. [Steven A.] Greenberg and that I've read about. [But] were nothing compared to what many of the defendants I have that come into this courtroom.

And you worked very hard at it.

ENORMOUS AMOUNTS OF PUBLIC SERVICE

Enormous amounts of public service, much of it when no one was keeping score. Not public service to impress me, not public service to impress other than doing it for the goodness of doing it. That's significant, in my mind.

You're first Asian American president of the [Illinois] Women's Bar Association, volunteer to a church. You're mentor and inspiration to many young lawyers and people who aren't lawyers. Countless committees and boards you served on. There was close to 12 pages of this in your sentencing submission, just different civic activities you've engaged to –-engaged in. You don't get paid for any of it. You're doing it because you thought it was the right thing to do.

You're an excellent mother to your daughters.

You're deeply religious, which is a personal matter, but it's a positive trait.

It did happen a long time ago. And that's not your fault that the charges were brought now, but it's not the government's fault either. But I have to recognize that these did take place a long time ago. The government's investigation was, I believe, prompt and thorough and appropriately speedy when they learned of the improper conduct.

Your statement you made – obviously, you're in great pain. Your family's not forever marred. These people wouldn't be in the courtroom here if they didn't support you. And I think your priest had it right. You have one life. You're going to get past this, whatever the sentence is.

FRIENDS, FAMILIES NOT LEAVING YOU”

And your friends … [y]ou[r] family, your daughters aren't going to leave you. And you're a young person (50 years old), relatively young person, who has plenty to contribute to society whenever this – whenever this case is over.

Specific deterrence, you're never going to commit a crime again.

General deterrence is important. Being an attorney and mortgage broker and a loan originator, having your own realty company, makes general deterrence important. Most defendants that do this are affluent and educated.

Only the threat of jail serves to deter.

I agree with the government's statement that the attorneys in real estate transactions are the gatekeepers. Attorneys can prevent this kind of fraud.

THIS WASN'T STUPID/ THIS WAS A CRIME”

I still think you have difficulty admitting you did nothing wrong. You called yourself stupid many times. This wasn't stupid. This was a crime.

I have no doubt you were guilty of these crimes. I told you this isn't hard. You just need to be truthful. And you weren't.

Maybe sometimes taking a step back and being more cautious and careful would have been a better course.

The most telling – and this is all based on documents. There's overstatement of income, understatement of liabilities, and straw buyers buying properties you wanted to unload that someone got a mortgage that wasn't qualified to get a mortgage, and you paid them to buy your property.

The guidelines for the offense call for sentence of 37 months (3 years) to 46 months (3.8 years). The government recommended 24 months (2 years) while the probation 16 months (1.3 years). Ms. O'Brien asked for “no jail and a probationary sentence.”

YOUR FAMILY WILL SURVIVE & BE PROUD OF YOUR ACCOMPLISHMENTS”

[G]iven the [numerous] letters I've received (including from Ms. O'Brien's two daughters and a pastor who all requested that they remain sealed) [the 16 months recommendation of the Probation Officer] is too high. But this is not a case where straight probation can be given. I don't think that's appropriate. It would not serve the purposes of 3553(a). It would not serve the requirements of general deterrence. It would deprecate the seriousness of the offense and would not fulfill my requirement of making sure that the punishment fit the crime and be appropriate as a sentence that reflects the seriousness of the offense and the respect for the law.

So pursuant to the Sentencing Reform Act of 1984, it's the judgment of the Court that the defendant, Jessica Arong O'Brien, be sentenced to a term of imprisonment of one year and one day in the custody of Bureau of Prisons on Counts I and II, to run concurrently.”

Ms. O'Brien, I take issue with your statement that this has marred your family. It's a setback but not as great as you may think at this moment. I think your family will survive.

Your daughters are going to be proud of you, and you ought to be proud of the accomplishments you've made. They've been extraordinary. … And but for the letters I received from many people that support you, the sentence should have been higher.”

Phone calls and email message sent to Mr. Alzona for comment were not answered. (Contact reporter: This email address is being protected from spambots. You need JavaScript enabled to view it.)

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