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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA NORFOLK DIVISION

UNITED STATES OF AMERICA

v.

ANTHONY L. BURFOOT

Case No. 2:16cr6

POSITION OF DEFENDANT ANTHONY L. BURFOOT WITH RESPECT TO SENTENCING FACTORS

COMES NOW the defendant, Anthony L. Burfoot, pursuant to the Sentencing

Procedures Order entered by the Court on December 9, 2016, and, in accordance with

paragraph 7 of that Order, as and for his Position With Respect To Sentencing Factors,

respectfully states the following:

UNRESOLVED OBJECTIONS TO PRESENTENCE INVESTIGATION REPORT

PART A. THE OFFENSE

1. The defendant respectfully objects to the facts set forth in paragraphs 8-19,

23, 26-27, 30, 33, 35-37, 43, 45, 47-49, 51, 53, 57, 60-62, 64, 66, 72-75, 80, 82-87, 89-

90, on the grounds that, while the jury found the defendant guilty of Counts One through

Four, Seven and Eight, the foregoing convictions are not supported by the evidence at trial

and on the further grounds that the foregoing factual assertions as contained in the

challenged paragraphs are not supported by the evidence at trial.

The defendant recognizes that the facts set forth in the foregoing paragraphs are

consistent with the jury’s findings, and that the Court will necessarily follow those findings,

but the defendant nevertheless notes his objections to these paragraphs to preserve his

position at trial.

2. In addition, with specific regard to the factual paragraphs pertaining to the

defendant’s purported relationship with Tommy Arney ( paragraphs 72-75, 80), the jury

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specifically found the defendant not guilty of Counts Five and Six which relate specifically to

the foregoing factual assertions in the challenged paragraphs, thereby requiring the Court to

reject the factual assertions in these challenged paragraphs.

SENTENCING GUIDELINES CALCULATIONS

3. The defendant respectfully objects to the proposed role in the offense

enhancement in paragraph 92 of 3 levels for being a supervisor or manager of five or more

participants.

First, paragraph 92 characterizes this as an offense that involved five or more

participants as he dictated to C.E., Dwight Etheridge, Recardo Lewis, Tommy Arney and

Ronald Boone…” However, as argued above, the jury found the defendant not guilty of any

offenses involving Tommy Arney, and the defendant respectfully asks the Court to accept

those findings. If the Court accepts those findings of not guilty, then Tommy Arney should

not be included as a participant in the instant offense; and without Mr. Arney, there are less

than five participants, thereby disqualifying the defendant altogether from the proposed

enhancement in paragraph 92.

Second, regardless of how many persons supposedly participated, the defendant

respectfully submits that he neither supervised nor managed anyone but, based upon the

Government’s evidence and theory, was simply a co-equal to others involved in the alleged

bribery scheme.

4. The defendant respectfully objects to the proposed 12-level enhancement

based on the value of the payment or benefit exceeding $250,000 (actual amount:

$541,835.99) in paragraph 99 on the grounds that even if, arguendo, the defendant

received anything of value in exchange for official acts, the provable value of such things

received in actual consideration for official acts was $6,500 or less (no increase).

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Although Government witnesses testified as to amounts of cash that were

supposedly provided to the defendant, there was very little corroboration of specificity as to

dates, times, places or even amounts. Indeed, the one area in which the jury indicated it had

questions appears to have focused on whether the Government had to prove a specific

$50,000.00 amount as alleged in Count Four, or whether simply a thing of value (regardless

of the specific amount) was sufficient for that Count. Given the lack of specificity tying

specific, corroborated amounts to specific official acts, the defendant respectfully submits

that, for sentencing purposes, the most that can be said, based upon the jury’s findings, is

that something of value was exchanged, but the specific amount is too speculative or

generalized as to be calculated to a specific number.

5. The defendant respectfully objects to the proposed 4-level enhancement

based on the offense involving an elected public official (USSG § 2C1.1(b)(3)) in paragraph

100 on the grounds that this offense characteristic is already contained in the Base Offense

Level of 14 (USSG § 2C1.1 (a) (1)), and therefore such proposed enhancement violates the

rule against double counting for the same offense characteristic.

According to Section 2C1.1 (a)(1), the Base Offense Level is 14 “if the defendant was

a public official.” Subsection (b) (3) increases the Base Offense Level by 4 levels where “the

offense involved an elected public official or any public official in a high-level decision-

making or sensitive position.” Thus, while the defendant recognizes that Subsection (b) (3)

enhances the advisory range because of the type of public official involved, the defendant

respectfully submits that, nevertheless, this enhancement seems to unfairly increase a

defendant’s advisory range by a significant amount by a characteristic that is already

essentially taken into consideration with the initial Base Offense Level.

6. The defendant respectfully objects to the proposed adjustment for obstruction

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of justice in paragraphs 93 (and 103) on the ground that he neither requested an employee

to lie nor testified falsely under oath during his jury trial. The defendant recognizes that,

ordinarily, where a defendant testifies at trial but is found guilty, the obstruction

enhancement almost automatically follows. However, the defendant respectfully interposes

this objection to preserve his position at trial.

SECTION 3553 (a) FACTORS

18 U.S.C. Section 3553 (a) directs that, “The court shall impose a sentence sufficient

but not greater than necessary, to comply with the purposes set forth in paragraph (2)” of

that subsection. The defendant respectfully submits that, for the reasons stated below in

analyzing certain pertinent Section 3553 sentencing factors, any sentence of confinement

imposed by the Court should not exceed 24 months.

Nature and Circumstances of the Offense

The defendant stands convicted of bribery and perjury as a public official.

The Government’s case consisted essentially of three alleged schemes: (1) Tivest

and Dwight Etheridge; (2) Tommy Arney; and (3) Ronnie Boone, Sr.

The jury found the defendant not guilty of one of these three alleged schemes, to-wit,

that involving Tommy Arney and the supposed thing of value in consideration for obtaining

votes for a strip club. By its verdict, the jury rejected Mr. Arney’s and the related witnesses’

testimony in this regard and, as already urged, the defendant respectfully asks that the

Court not consider this acquitted conduct as part of the nature and circumstances of the

offense.

As to the remaining two schemes relied upon by the Government, to-wit, the

Tivest/Dwight Etheridge and Ronnie Boone, Sr. sets of transactions, while the defendant

pleaded not guilty to those schemes, presented a vigorous defense through witnesses,

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documents and his own testimony, and still relies upon his protestations of innocence, the

defendant also recognizes that the verdicts present findings of guilty of serious violations of

public trust.

Notwithstanding this recognition, however, the defendant also respectfully submits

that, subject to his continuing assertion of his innocence, there are substantial mitigating

and extenuating facts underlying the nature and circumstances of the offenses, and which

heavily militate in favor of a sentence that, if it includes confinement, should not exceed 24

months.

First, the defendant respectfully submits that there was virtually no evidence

presented at the trial that the defendant in fact solicited any other member of Government,

whether elected or otherwise, to provide favorable or preferential treatment to either the

Tivest/Etheridge parties or to Ronnie Boone, Sr.

While there was certainly testimony from Government witnesses who claimed that

the defendant agreed to seek such preferential treatment and favors, the mountain of

evidence presented at trial showed otherwise. The defendant respectfully submits that not

only were there no Government witnesses who served as elected or appointed officials with

the defendant who unequivocally testified that the defendant sought them out to perform

special favors, cast votes or take other official actions to help Tivest/Etheridge or Ronnie

Boone, Sr., but dozens and dozens of witnesses called by the defendant who served with

him during the pertinent years forcefully confirmed that there was no such outreach by the

defendant.

The defendant respectfully reminds the Court of the voluminous defense testimony

from present and former City Council members, former City Managers, present and former

City Administration persons, present and former Norfolk Redevelopment and Housing

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Authority (NRHA) officials, and attorneys for the City, for NRHA, and even for

Tivest/Etheridge themselves, all of whom confirm that at no time did the defendant ever

exhibit any advocacy, solicitation, outreach, lobbying, or other proactive efforts to help any of

these parties.

Thus, while the nature and circumstances of the offenses involve the receipt by the

defendant of things of value in exchange for official actions, the defendant’s conduct in this

regard can truly be isolated to his own conduct without any impact, effect, or influence upon

anyone else. This case is a far cry from other public corruption cases where a public official

proactively and affirmatively seeks to affect and influence the persons and the processes

around him or her as opposed to the passive and non-proactive conduct of the defendant in

this case.

In sum, while in no way condoning or excusing that for which the defendant has been

found guilty, that the evidence overwhelmingly shows that the defendant confined the

offending behavior to himself and did not otherwise affect or influence the persons and

processes around him, places this case at the low end of the scale in terms of

egregiousness as opposed to the high end.

Second, in almost every instance where the defendant cast a vote that the

Government characterizes as having been “bought” by Tivest/Etheridge or Ronnie Boone,

Sr., most, if not all, of the remaining Council members voting, voted the same way.

Otherwise stated, the vast majority of the votes at issue were either unanimous or close to it,

not controversial, and not decided in any way by the defendant’s vote. In one, and perhaps

the only, instance of a hotly contested vote, that involving the Midtown Office Tower,

Councilwoman Teresa Whibley, and not the defendant, cast the deciding vote. Not only did

Councilwoman Whibley testify to this at trial, but she also confirmed that the defendant had

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never sought her out nor advocated with her regarding the vote that she ultimately cast.

The defendant fully recognizes that unanimity or lack of controversy of a vote is not a

defense to bribery. The defendant also fully recognizes that the violation of a public trust as

found by the jury is a serious matter, without more. However, when considering the nature

and circumstances of the offense as the Court is mandated to do by 18 U.S.C. Section 3553

(a), it is quite appropriate for the Court to consider the actual votes in issue, whether the

defendant’s conduct had any effect on those votes, and whether the defendant’s actions

otherwise infected others or had no such impact at all. The defendant respectfully submits

that where the latter is the case, once again, the offending conduct falls at the low end of

the scale of egregiousness as opposed to the high end.

Third, there is no evidence, as there is in some public corruption cases, that the

defendant’s conduct in any way damaged or otherwise harmed the interests of the public

being served by the votes he cast, other than the understandable intrinsic damage that

comes to public trust when a public official offends. In many such cases, an offending

public official takes action in exchange for a thing in value that results in the loss of taxpayer

money, the funding of a project that is detrimental to the public interest, the failure to fund a

project that is in the public interest, and other tangible losses to the community. In this

case, nothing of the sort happened. All of the evidence indicates that the votes and projects

for which the defendant voted were consistent with the public interest and common good.

Again, while fully recognizing that the benefit of a project to the community does not justify

an act of bribery in connection with it, nevertheless that the public issues supported by the

defendant in consideration for the things of value alleged by the Government were

universally viewed as good for the community does mitigate and extenuate the offenses of

conviction.

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In conclusion, while the defendant truly accepts and appreciates the gravity of the

findings against him, nevertheless he respectfully submits that the foregoing nature and

circumstances of the offenses strongly distinguish this case from others that are far more

egregious and insidious, and justify any sentence of confinement as not exceeding 24

months.

History and Characteristics of the Defendant

The defendant stands before the Court with a criminal history score of zero. The

defendant’s criminal history, found at page 19 of the Presentence Investigation Report, is

perhaps one of the shortest that could possibly appear in such a Report. Not only is there no

record of juvenile adjudications or adult criminal convictions, but there is no record or

evidence of any charge of any kind ever placed against the defendant in his 49 years of life.

The lack of any criminal charges, much less convictions, should weigh heavily in the calculus

of what is sufficient, but not greater than necessary, to achieve the purposes of 3553 (a).

The defendant “described his childhood as being very good, indicating that he got

along well with his parents and siblings.” (PSI at paragraph 126). The defendant “was the

captain of his high school football and basketball teams and continued to play football when

he went to college.” Id.

The defendant’s sister, Leslie Jefferson, indicates “that the defendant was a very

determined child” who “worked hard in sports and towards this education to prove people

wrong in their doubts about him.” Id. Not only was the defendant “never a disciplinary

problem to his parents,” but he was simply a “’great brother.’” Id.

Although at the time that the PSI was originally being prepared, the defendant’s

father, William, was still alive (PSI at paragraph 127), he tragically passed away on January

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24, 2017, less than 2 months after the verdicts were returned. 1

Accordingly, not only did the defendant suffer what can only be described as a

devastating personal catastrophe with the return of the verdicts of December 9, 2016, but

he experienced a double-barreled nightmare when he lost his beloved father less than 2

months thereafter.

No other family member of the defendant’s has a criminal record or a history of

substance abuse. (PSI at paragraph 127).

The defendant has 4 children: Aryon Martin ( age 24) from a relationship with

Michelle Martin; Kayla and Korynn Burfoot (twins, age 19) from a relationship with Tammy

Sansbury, and Kimaya Burfoot (age 9), born from his marriage to Dr. Keisha Burfoot. (PSI at

paragraph 130). 2

With respect to his daughter Aryon, her mother indicates that the defendant “always

paid her on time” in connection with Court-ordered support “and paid for anything extra that

was needed.” Aryon’s mother further stated that the defendant “was always a law-abiding

person and that she was shocked to hear about the charges in this case.” (PSI at paragraph

128).

The mother of the defendant’s twins “described the defendant as being a very good

father.” Both twins attend college, with one at Norfolk State University and the other at

Virginia Commonwealth University. (PSI at paragraph 129).

The defendant has married once, comprising his current marriage to Dr. Keisha

Burfoot, who is a doctor specializing in obstetrics and gynecology. Their 9 year-old daughter

Kimaya has been raised by the Burfoots together. Dr. Burfoot stated that “the defendant

1 The defendant respectfully notes that paragraph 127 of the PSI should be amended to reflect his father’s death.

2 The mother of a 28-year-old son also contends that the defendant is the son’s father, but the defendant denies that this is the case. (PSI at paragraph 131).

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has been a good husband and father,” and “he spends much of his free time with his

children…” (PSI at paragraph 130).

The defendant indicates no history of psychological or psychiatric treatment, nor is

there any documented evidence to the contrary. (PSI at paragraph 134). The defendant

indicated no history of substance abuse and, likewise, there is no documented evidence to

the contrary on this character trait either.

The defendant graduated from Lake Taylor High School in Norfolk in 1985 and

graduated from Virginia State University in Petersburg in 1990 where he received a B.S. in

Public Administration. He also obtained his Master’s Degree in Educational Administration

and Supervision from Virginia State University in 1996 with a 3.25 grade point average.

The defendant completed the requirement for certification and was then certified as

a Master Governmental Deputy Treasurer by the Treasurers Association of Virginia,

according to the Weldon Cooper Center for Public Service at the University of Virginia. (PSI at

paragraph 139).

The defendant has always been gainfully employed. He has served as: a full-time

deputy sheriff for the City of Richmond Sheriff’s Office; a full-time math and science teacher

in public schools in King George County and in the City of Richmond; an insurance

salesman; an adjunct professor at Tidewater Community College in Norfolk and Virginia

Beach teaching college-level math; a member of the City Council for the City of Norfolk

(2002-2013); a supervisor for the Treasurer of the City of Norfolk (2008-2010); the Chief

Deputy Treasurer of the City of Norfolk (2010-2013); and the elected City Treasurer for the

City of Norfolk commencing in 2014. (PSI at paragraph 140-151).

The defendant has also been self-employed as the owner of a private company

trading as Urban Restoration. (PSI at paragraph 142).

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In addition to the above information principally gleaned from the Presentence

Investigation Report, the defendant also attaches 31 letters attesting to his character from

the perspective of many different people from many walks of life who have observed the

defendant over many years in many different capacities. See Exhibit 1 attached (collectively

comprising 31 character letters). The letters confirm and corroborate exactly what the PSI

reflects: a wonderful man who has touched many lives in a meaningful and profound way,

and who has now suffered a horrific fall from grace.

In conclusion, from the standpoint of the history and characteristics of the defendant,

he receives an “A Plus.” Although convicted of serious matters, nevertheless it would be

difficult to imagine a finer or more decent human being in all other respects standing before

the Bar of this Court for sentencing.

The need for the sentence to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.

This factor brings into focus the quantum of punishment that is appropriate in this

case. Every offender is different and every offense has its own unique features, and so it is

with this defendant and this case.

Bearing in mind Congress’ direction to our Courts that whatever sentence is imposed

shall be “sufficient, but not greater than necessary, to comply with” this and other statutory

sentencing factors, the defendant respectfully submits that he has already been punished

enough.

Within a short period of time of his Indictment, a recall petition was launched and

ultimately filed against the defendant, long before the first witness had testified at trial.

Subsequent to the jury findings, the defendant has been suspended from office by a

Circuit Court Judge and his salary impounded by Court Order.

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The defendant will stand as a six-time convicted felon with all of the stigma that

attaches to such a status.

The defendant has been, and will continue to be, the subject of the most profound

and deep public humiliation, embarrassment and degradation.

The punishment to which the defendant has already been subjected, and to which he

will be subjected long after any sentence is over, is nothing short of catastrophic. The

consequences of the defendant’s actions are harsh and severe enough as described above,

that it is not necessary to aggregate that punishment with a lengthy prison sentence. The

consequences already suffered and to be suffered by the defendant, outside of confinement

itself, are in and of themselves sufficient to reflect the seriousness of the offense, to

promote respect for the law, and to provide just punishment for the offense.

In light the of the foregoing, any confinement imposed should not exceed 24 months,

as, under the totality of the circumstances, a sentence not in excess of that is “sufficient,

but not greater than necessary, to comply with” the statutory sentencing purposes. Under

all of the circumstances of this case, a sentence greater than that would be greater than

necessary, and the defendant respectfully asks the Court to temper its disposition for these

reasons.

The need for the sentence to afford adequate deterrence to criminal conduct.

For essentially the same reasons discussed immediately above as to the

consequences to the defendant that he has already suffered and will suffer above and

beyond any confinement the Court may impose, the defendant respectfully submits that the

totality of the circumstances which have befallen him justify any confinement imposed not to

exceed 24 months. The defendant respectfully adopts and incorporates by reference under

this factor the same discussion immediately above, since the defendant’s fate resulting

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from what he has been found guilty of doing in this case in and of itself sufficiently and

adequately will deter others in the future.

The need for the sentence to protect the public from further crimes of the defendant.

The defendant respectfully submits that this sentencing factor requires little

discussion.

The defendant is 49 years old and, according to the PSI, has not received so much as

a traffic ticket.

The PSI, the letter testimonials attached to this Position Paper, and the defendant’s

history and characteristics generally, indicate beyond cavil that he presents no threat or

danger to anyone and that specific deterrence of future crimes is simply not a factor in this

case. The jury’s findings do reflect a belief that the defendant abused a position of public

trust. However, by the very nature of these convictions, the defendant will never again be in

such an environment. The failings and fallibilities evinced by the conduct found by the jury

are unique to the positions that the defendant will never be able to hold again. This,

coupled again with the otherwise impeccable character demonstrated by the PSI, with the

lack of criminal history, and with the attached letters, all converge to indicate that specific

deterrence is not a factor in this sentence.

The Advisory Sentencing Guidelines.

The advisory sentencing guidelines in this case are 210-262 months (17 years, 6

months, to 21 years, 10 months).

While the sentencing guidelines are one of many factors that the Court “shall

consider,” they are solely advisory in nature. It is well-established that the Court is in no way

bound by the advisory guidelines and if, after considering those advisory guidelines, the

Court does not believe that they appropriately reflect a sentence that is “not greater than

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necessary” as directed by the statute, then the court is free to reject such advisory

guidelines and impose such other sentence as the Court deems is appropriate under all of

the statutory sentencing factors and that complies with the sentencing mandate that the

sentence be “sufficient, but not greater than necessary.”

The imposition of a sentence of 17 years, 6 months, or anything remotely close to it,

or even a vastly diminished lesser multiple of it, in this case, and with a defendant with the

kinds of history and characteristics, the mitigating and extenuating circumstances, and the

devastation that has already been visited upon the defendant, would be far beyond what is

necessary, and would be extreme.

On the contrary, in this particular case, the advisory guidelines are so unrealistic and

high as to be of virtually no guidance to the Court. Indeed, it is this very kind of case where

the advisory guidelines range is so out of proportion to the totality of what is presented to

the Court, that the Court truly is called upon to exercise its historic sentencing discretion,

best captured by the well-known phrase of “justice tempered with mercy.”

The defendant simply respectfully requests that the Court give no weight to an

advisory guideline range that is so out of proportion to what is before the Court that it truly

provides no direction in terms of what is, indeed, “sufficient, but not greater than

necessary.”

The need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.

The best example of a comparator that the defendant can find to the instant case of

someone with a similar record who was found guilty of similar conduct would be that of the

former Governor of Virginia who was originally convicted of very similar offenses in many

respects to those of this defendant, albeit of even a greater number of counts, but whose

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convictions were reversed and remanded, and whose case was ultimately dismissed. While

in no way taking away from the ultimate innocence of that defendant as ultimately

determined by the dismissals, this defendant cannot help but observe that, initially, at the

time of the original sentencing of that defendant, the United States District Court for the

Eastern District of Virginia, Richmond Division, determined that a sentence of 24 months

was sufficient, but not greater than necessary.

While the defendant again recognizes that every case is different and every offender

equally different, the original findings in the case of the former Governor, who also had a

record of stellar public service and impeccable living, would make that case very similar to

the instant case. Using that original sentencing as a guide, the defendant respectfully

submits that a sentence no greater, at most, than that, in this case would be equally just.

CONCLUSION

For all of the foregoing reasons stated above, therefore, the defendant respectfully

submits that any active confinement imposed should not exceed 24 months, in keeping with

the statutory mandate of Section 3553 (a) that any sentence shall be sufficient but not

greater than necessary.

ANTHONY L. BURFOOT

By:

/s/

Of counsel

Andrew M. Sacks, Esquire, VSB#: 20082 Stanley E. Sacks, Esquire, VSB# 04305 Attorneys for defendant Anthony L. Burfoot SACKS & SACKS, P.C. Town Point Center 150 Boush Street, Suite 801 Norfolk, VA 23510 Telephone: (757) 623-2753 Facsimile: (757) 274-0148 E-mail: andrewsacks@lawfirmofsacksandsacks.com

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CERTIFICATE OF SERVICE

I hereby certify that on this 10 th day of April, 2017, I will electronically file the foregoing with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing (NEF) to:

Melissa E. O’Boyle, Esquire Assistant United States Attorney United States Attorney’s Office 101 West Main Street, Suite 8000 Norfolk, Virginia 23510 Phone: (757) 441-6331 Fax: (757) 441-6689 Email: Melissa.OBoyle@usdoj.gov

This will also certify that on this 10 th day of April, 2017, I will e-mail a copy of the foregoing to Jeffrey Noll, Senior United States Probation Officer at Jeffrey_Noll@vaep.uscourts.gov.

/s/

Andrew M. Sacks, Esquire

Andrew M. Sacks, Esquire, VSB#: 20082 Stanley E. Sacks, Esquire, VSB# 04305 Attorneys for defendant Anthony L. Burfoot SACKS & SACKS, P.C. Town Point Center 150 Boush Street, Suite 801 Norfolk, VA 23510 Telephone: (757) 623-2753 Facsimile: (757) 274-0148 E-mail: andrewsacks@lawfirmofsacksandsacks.com

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