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U.S. Department of Justice

United States AttorneySouthern District ofNew York

The Silvio J. Mollo BuildingOne Saint Andrew's Pla=aNew York. New York 10007

September 15, 2008

Steven G. Kobre, Esq.Matthew 1. Menchel, Esq.Kobre & Kim LLP800 Third AvenueNew York, New York 10022

Re: United States v. Martin S. Bodner08 Cr. 282 (PKC)

Dear Messrs. Kobre and Menchel:

On the understandings specified below, the Office of the United States Attorney for theSouthern District of New York ("this Office") will accept a guilty plea from Martin S. Bodner("the defendant") to Counts One and Two of the above-referenced Information.

Count One of the Information charges the defendant with wire fraud, in violation of 18U.S.C. §§ 1341,1346, and 2. Count One of the Information carries a maximum sentence oftwenty years' imprisonment; a maximum fine, pursuant to 18 U.S.C. § 3571, of the greatest of$250,000, twice the gross pecuniary gain derived from the offense, or twice the gross pecuniaryloss to persons other than the defendant resulting from the offense; a maxihmm term of threeyears' supervised release; and a mandatory $100 special assessment.

Count Two of the Information charges the defendant with mail fraud, in violation of 18U.S.C. §§ 1343, 1346, and 2. Count Two of the Information carries a maximum sentence oftwenty years' imprisonment; a maximum fine, pursuant to 18 U.S.c. § 3571, of the greatest of$250,000, twice the gross pecuniary gain derived from the offense, or twice the gross pecuniaryloss to persons other than the defendant resulting from the offense; a maximum term of threeyears' supervised release; and a mandatory $ I00 special assessment.

In addition to the foregoing, the parties agree that, with respect to Counts One and Two ofthe Information, the Court shall also impose an order of restitution, pursuant to 18 U.S.C. §§3663, 3663A, and 3664, in an amount not less than $19,597,240.21, less $2,500,000.00, based onthe defendant's having previously returned $2,500,000.00 to a victim of the offenses charged inCounts One and Two of the Information.

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Steven G. Kobre, Esq.Matthew I. Menchel, Esq.September 15, 2008Page 2

In addition to the foregoing, the defendant agrees to forfeit to the United States, pursuantto 18 U.S.C. §§ 98 I (a)(I)(C) and 28 U.S.C. § 2461, all right, title and interest of the defendant inthe specific property identified in Attachment A, which is incorporated by reference as if fully setforth herein (collectively, the "Specific Property").

The defendant agrees that he will not file a claim or a petition for remission or mitigationin any forfeiture proceeding involving the Specific Property, including an ancillary proceeding,and that he will not cause anyone else to do so or assist anyone else in doing so. The defendantalso agrees to take all necessary steps to effect the forfeiture ofthe Specific Property and itstransfer to the United States, including, but not limited to, the execution of all necessarydocumentation. It is further understood that, in the event that the United States files a civil actionpursuant to 18 U.S.c. § 981 or any other federal statute seeking to forfeit the Specific Property,the defendant will not file a claim with the Court or otherwise contest such a civil forfeitureaction and will not assist athird party in asserting any claim to the Specific Property. It is furtherunderstood that any forfeiture of the Specific Property shall not be treated as satisfaction of anyfine, restitution, cost of imprisonment, or any other penalty the Court may impose upon him inaddition to forfeiture. However, this Office agrees to request that the Department of Justiceinvoke its Restoration Policy and cause any funds and other property forfeited in this case to beapplied to any restitution order imposed in this case. In addition, the defendant hereby agrees towaive his right to contest the forfeiture under Federal Rule of Criminal Procedure 32.2(a) on theground that an information or indictment did not contain notice that the Government is seekingforfeiture.

In consideration of the defendant's plea to the above offense, the defendant will not befurther prosecuted criminally by this Office (except for criminal tax violations as to which thisOffice cannot, and does not, make any agreement) for the conduct charged in Counts One andTwo of the Information. In addition, at the time of sentencing, the Government will move todismiss any open Count(s) against the defendant. The defendant agrees that wHh respect to anyand all dismissed charges he is not a "prevailing party" within the meaning of the "HydeAmendment," Section 617, P.L. 105-119 (Nov. 26, 1997), and will not file any claim under thatlaw.

In consideration of the foregoing and pursuant to U.S.S.G. § 6B lA, the parties herebystipulate to the following:

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Steven G. Kobre, Esq.Matthew I. Menchel, Esq.September IS, 2008Page 3

A. Offense Level

1. Because Counts One and Two of the Information involve substantially thesame harm in that the offense level is determined largely on the basis of the total amount of harmor loss, Counts One and Two of the Information form one Group, pursuant to U.S.S.G. § 3D1.2.

2. Because Counts One and Two of the Information each has a statutorymaximum term of imprisonment of 20 years or more, the base offense level is 7, pursuant toU.S.S.G. § 2Bl.l(a)(l).

3. Because the loss was more than $7,000,000, but not more than$20,000,000, the offense level is increased by 20 levels, pursuant to U.S.S.G. § 2Bl.l(b)(l)(K).

4. Because the defendant abused a position of public or private trust, or useda special skill, in a manner that significantly facilitated the commission or concealment of theoffense, the offense level is increased by 2 levels, pursuant to U.S.S.G. § 3B1.3.

5. Assuming that the defendant clearly demonstrates his acceptance ofresponsibility to the satisfaction of the Government with respect to Counts One and Two of theInformation, through his allocution and subsequent conduct prior to the imposition of sentence, a2-level reduction will be warranted, pursuant to U.S.S.G. § 3El.l(a). Furthermore, assuming thedefendant has accepted responsibility as described in the previous sentence, an additional I-levelreduction will be warranted, pursuant to U.S.S.G. § 3El.l(b), because the defendant will havetimely given notice of his intention to enter a plea of guilty, thereby permitting the Governmentto avoid preparing for trial and permitting the Court to allocate its resources efficiently.

In accordance with the above, the applicable Sentencing Guidelines offense level is 26.

B. Criminal History Category

Based upon the information now available to this Office (including representations by thedefense), the Government is unaware of any criminal history of the defendant.

In accordance with the above, the defendant's Criminal History Category is I.

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Steven G, Kobre, Esq.Matthew 1. Menchel, Esq.September 15, 2008Page 4

C. Sentencing Range

Based upon the calculations set forth above, the defendant's stipulated sentencingGuidelines range is63 to 78 months' imprisonment (the "Stipulated Guidelines Range"). Inaddition, after determining the defendant's ability to pay, the Court may impose a fine pursuantto U.S.S.G. § 5EI.2. At Sentencing Guidelines level 26, the applicable fine range is $12,500 to$125,000, pursuant to U.S.S.G. § 5EI.2(c)(I-3).

The parties agree that neither a downward nor an upward departure from the StipulatedGuidelines Range of 63 to 78 months set forth above is warranted. Accordingly, neither partywill seek such a departure or seek any adjustment not set forth herein. Nor will either partysuggest that the Probation Department consider such a departure or adjustment, or suggest thatthe Court sua sponte consider such a departure or adjustment.

The parties further agree that a sentence within the Stipulated Guidelines Range of 63 to78 months would constitute a reasonable sentence in light of all of the factors set forth in Title18, United States Code, Section 3553(a). In addition, neither party will seek a sentence outsideorthe Stipulated Guidelines Range of 63 to 78 months, suggest that the Probation Departmentconsider a sentence outside of the Stipulated Guidelines Range of 63 to 78 months, or suggestthat the Court sua sponte consider a sentence outside of the Stipulated Guidelines Range of 63 to78 months.

Except as provided in any written Proffer Agreement(s) that may have been entered intobetween this Office and the defendant, nothing in this Agreement limits the right of the parties:(i) to present to the Probation Department or the Court any facts relevant to sentencing; (ii) tomake any arguments regarding where within the Stipulated Guidelines Range of 63 to 78 months(or such other range as the Court may determine) the defendant should be sentenced; (iii) to seekan appropriately adjusted Sentencing range if it is determined based upon new information thatthe defendant's criminal history category is different from that set forth above. Nothing in thisAgreement limits the right of the Government to seek denial of the adjustment for acceptance ofresponsibility, see U.S.S.G. §3EI.I, and/or imposition of an adjustment for obstruction ofjustice,see U.S.S.G. §3CI.I, regardless of any stipulation set forth above, should the defendant move towithdraw his guilty plea once it is entered, or should it be determined that the defendant haseither: (i) engaged in conduct, unknown to the Government at the time of the signing of this

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Steven G. Kobre, Esq.Matthew 1. Menchel, Esq.September 15, 2008Page 5

Agreement, that constitutes obstruction of justice; or (ii) committed another crime after signingthis Agreement.

It is understood that pursuant to U.S.S.G. § 6BI.4(d), neither the Probation Departmentnor the Court is bound by the above Guidelines stipulation, either as to questions of fact or as tothe determination of the proper Guidelines to apply to the facts. In the event that the ProbationDepartment or the Court contemplates any Guidelines adjustments, departures, or calculationsdifferent from those stipulated to above, or contemplates any sentence outside of the StipulatedGuidelines Range of 63 to 78 months, the parties reserve the right to answer any inquiries and tomake all appropriate arguments concerning the same.

It is understood that the sentence to be imposed upon the defendant is determined solelyby the Court. It is understood that the Sentencing Guidelines are not binding on the Court. Thedefendant acknowledges that his entry of a guilty plea to the charged offenses authorizes thesentencing court to impose any sentence, up to and including the statutory maximum sentence.This Office cannot, and does not, make any promise or representation as to what sentence thedefendant will receive. Moreover, it is understood that the defendant will have no right towithdraw his plea of guilty should the sentence imposed by the Court be outside the Guidelinesrange set forth above.

It is agreed: (i) that the defendant will not file a direct appeal, nor litigate under 28 U.S.C.§§ 2255 and/or 2241, any sentence within or below the Stipulated Guidelines Range of 63 to 78months set forth above; and (ii) that the Government will not appeal any sentence within orabove the Stipulated Guidelines Range of 63 to 78 months. It is further agreed that any sentencewithin the Stipulated Guidelines Range of 63 to 78 months is reasonable. This provision isbinding on the parties even if the Court employs a Guidelines analysis different from thatstipulated to herein. Furthermore, it is agreed that any appeal as to the defendant's sentence thatis not foreclosed by this provision will be limited to that portion of the sentencing calculation thatis inconsistent with (or not addressed by) the above stipulation. The defendant also agrees not toappeal any restitution order that is equal to or less than the loss amount stipulated to above. Thedefendant also agrees not to appeal any restitution order that is equal to or less than$19,597,240.21.

The defendant hereby acknowledges that he has accepted this Agreement and decided toplead guilty because he is in fact guilty. By entering this plea of guilty, the defendant waives any

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Steven G. Kobre, Esq.Matthew I. Menchel, Esq.September 15,2008Page 6

and all right to withdraw his plea or to attack his conviction, either on direct appeal orcollaterally, on the ground that the Govermnent has failed to produce any discovery material,Jencks Act material, exculpatory material pursuant to Bradyv. Maryland, 373 U.S. 83-(1963),other than information establishing the factual innocence ofthe defendant, and impeachmentmaterial pursuant to Giglio v. United States, 405 U.S. 150 (1972), that has not already beenproduced as of the date of the signing of this Agreement.

By entering this plea of guilty, the defendant also waives any and all right the defendantmay have, pursuant to 18 U.S.C. § 3600, to require DNA testing of any physical evidence in thepossession of the Govermnent. The defendant fully understands that, as a result of this waiver,any physical evidence in this case will not be preserved by the Government and will therefore notbe available for DNA testing in the future.

It is further agreed that should the conviction(s) following the defendant's plea(s) ofguilty pursuant to this Agreement be vacated for any reason, then any prosecution that is nottime-barred by the applicable statute of limitations on the date of the signing of this Agreement(including any counts that the Government has agreed to dismiss at sentencing pursuant to thisAgreement) may be commenced or reinstated against defendant, notwithstanding the expirationof the statute of limitations between the signing of this Agreement and the commencement orreinstatement of such prosecution. It is the intent of this Agreement to waive all defenses basedon the statute of limitations with respect to any prosecution that is not time-barred on the datethat this Agreement is signed.

It is further understood that this Agreement does not bind any federal, state, or localprosecuting authority other than this Office.

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Steven G. Kobre, Esq.Matthew I. Menchel, Esq.September 15,2008Page 7

Apart from any written Proffer Agreement(s) that may have been entered into betweenthis Office and the defendant, this Agreement supersedes any prior understandings, promises, orconditions between this Office and the defendant. No additional understandings, promises, orconditions have been entered into other than those set forth in this Agreement, and none will beentered into unless in writing and signed by all parties.

Very truly yours,

MICHAEL J. GARCIAUnited States Attorney

By: ,;J-o;t-r ()( ~d I•iel W. LevyAssistant United States AttoTelephone: (212) 637-1062

;;;rmMarcus A. AsnerChief, Major Crimes Unit

AGREED AND CONSENTED TO:

JJlad~~Martin S. Bodner

ven)6. /5lobre, Esq.Mattltew I. Menchel, Esq.Kobre & Kim LLPAttorneys for Martin S. Bodner

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Attachment A to Plea Agreement, dated September 15, 2008

Specific Property to Be Forfeited by Defendant Martin S. Bodner

a. at least $19,097,240.21 in United States currency, in that such sum in aggregate isproperty representing the amount of proceeds obtained as a result of the offensescharged in the Information;

b. all that lot or parcel ofland, together with its buildings, appurtenances,improvements, fixtures, attachments, and easements, located at 17 ShorewoodDrive, Port Washington, New York 11040, or the proceeds of the sale of suchproperty;

c. all right, title, and interest in 400 East 56th Street, Apartment 33RS, New York,New York 10022, including all shares in Plaza 400 Owners Corp. and anyproprietary leases associated with or allocated to such apartments, or the proceedsof the sale of such property;

d. all United States or other currency, funds, securities, property, or other interestscredited to the following account numbers at the following institutions:

I.

11.

1lI.

IV.

v.

vi.

vii.

VIII.

IX.

x.

xi.

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838312772 held at JPMorgan Chase Bank;

91053998365 held at JPMorgan Chase Bank;

91053998301 held at JPMorgan Chase Bank;

838605046301 held at JPMorgan Chase Bank;

20620394501 held at JPMorgan Chase Bank;

228604628001 held at JPMorgan Chase Bank;

838604018501 held at JPMorgan Chase Bank;

CIQ707040 held at Chase Investment Services Corp.;

760-059317 held at Morgan Stanley;

760-059335 held at Morgan Stanley;

760-059336 held at Morgan Stanley;

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xii. 760-059337 held at Morgan Stanley;

X1I1. 760-059315 held at Morgan Stanley;

XIV. 761-063880 held at Morgan Stanley;

e. the 2006 Jaguar Super V8 automobile, bearing Vehicle Identification NumberSAJWA86~C56TG50669,or the proceeds of the sale of such automobile;

f. the 2005 Audi A4 3.2 Quattro automobile, bearing Vehicle Identification NumberWAUDG68E85A444693, or the proceeds of the sale of such automobile;

g. the 2007 Audi A8 automobile, bearing Vehicle Identification NumberWAUMR44E07N015533, or the proceeds of the sale of such automobile;

h. $276,000.00 held by and in the name of Brett Bodner in, among other accounts,account number 93804082 at Citibank; and

J. $201,020.02 held by and in the name of Rachele Bodner in, among otheraccounts, account numbers 760-059338, 760-059320, and/or 760-059322 atMorgan Stanley

*The transfer of any of the assets listed in items (b) through (i) to the Government or to the victimof the offenses charged in Counts One and Two ofthe Information shall reduce in a correspondingamount the money judgment provided for in item (a). In addition, the amount of the moneyjudgment provided for in item (a) shall be reduced by $2,500,000.00, based on the defendant'shaving previously returned $2,500,000.00 to a victim of the offenses charged in Counts One andTwo of the Information.

** The defendant may, within 120 days ofthe entry ofa guilty plea pursuant to this Agreement, sellany the assets listed in items (b), (c), (e), (t), and (g), upon the advance approval of this Office. The120-day period oftime may, upon good cause shown, be extended for any additional period of timein the sole discretion of this Office.

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