On The Case

Judge-shopping in ‘Varsity Blues’ case?

(Reuters) - Defense lawyers representing parents facing conspiracy, fraud and money-laundering charges in the ‘Varsity Blues’ college admissions scandal sent a remarkable letter Tuesday to U.S. District Judge Patti Saris of Boston, chief judge of the district where the parents will be tried.

Twenty-six lawyers, including some of the biggest names in the Boston defense bar and more than a dozen former federal prosecutors, claimed prosecutors in the college admissions case had manipulated the charging process to assure that all of their clients’ cases would be assigned to U.S. District Judge Nathaniel Gorton rather than distributed to randomly-assigned judges in the Boston courthouse. “Simply put,” the letter said, “the prosecutors’ plan … is a clear form of judge-shopping.”

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Boston prosecutors refuted the defendants’ assertions in their own remarkable letter, submitted late Tuesday in response to a request from Judge Saris for a response to the defense lawyers. U.S. Attorney Andrew Lelling said his office had done nothing out of the ordinary and that the defense lawyers’ claim to the contrary was inappropriate and improper. “I am a veteran federal prosecutor,” Lelling wrote. “I take seriously this office’s ethical obligations and the obligation to be fair in both appearance and substance. That is how we have proceeded in this case.”

Lelling also made sure to apprise Judge Gorton of the flap, filing his letter not only in the special docket before Judge Saris but also in the docket of the college admissions cases before Gorton. His office declined my request for comment beyond his letter to Judge Saris.

So how, according to defense lawyers, did prosecutors game the assignment system? The trick, defense lawyers assert, was the use of a superseding indictment to rope 16 parents into a case already assigned to Judge Gorton.

The judge was randomly assigned to preside over the first grand jury indictment against a parent in the college admissions case. That indictment alleged that a Canadian named David Sidoo paid the ringleader of the alleged admission scheme, Rick Singer, $200,000 to have a confederate take the SAT and Canadian high school graduation exams in place of his sons. Sidoo entered a not guilty plea before Judge Gorton in March.

Prosecutors filed a superseding indictment in the Sidoo case on March 26, adding allegations against Gregory and Amy Colbert, who allegedly paid $25,000 to have a Singer colleague secretly correct their son’s SAT exam. Because the charges against the Colberts were brought through a superseding indictment, their case also went to Judge Gorton, before whom they have also entered not guilty pleas.

The superseding indictment filed on Tuesday names 16 additional parents, including television star Lori Loughlin and her husband, clothing designer Mossimo Giannulli. Their lawyers contend that under U.S. Supreme Court precedent in 1946’s Kotteakos v. U.S.  prosecutors improperly charged their clients in a single conspiracy indictment – and brought the case via a superseding indictment in the Sidoo case to steer their clients’ cases to Judge Gorton. “None of our clients has any connection to Mr. Sidoo,” they said in their letter to Judge Saris. “None of our clients has ever met, spoken with or done business with Mr. Sidoo.”

Joining their clients to Sidoo’s case, the defense lawyers said, is a blatant manipulation of the judicial assignment process. The lawyers asked Chief Judge Saris to put the superseding indictment back into the random judicial assignment process to thwart the government’s judge-shopping plans.

The government said there is no such plan. U.S. Attorney Lelling told Judge Saris that there’s nothing unusual about seeking a superseding indictment in a case alleging an overarching conspiracy between Singer, his associates and the parents who paid for their services. If anyone is trying to manipulate the system, Lelling said, it is the defense lawyers claiming judge-shopping. “Defense counsel’s letter is procedurally inappropriate and disingenuous,” he told Judge Saris. “They invite you to circumvent federal procedural criminal law by altering the judicial assignment process to suit their preferences.”

The defense lawyers, Lelling said, only want to take their clients’ cases away from Judge Gorton because they perceive him as imposing tougher sentences than other Boston federal judges. (The letter from defense lawyers actually said that the lawyers “deeply respect” Judge Gorton and have represented clients who have been acquitted in trials before him.)

This isn’t the first time that prosecutors in high-profile proceedings have been accused of misusing the charging process to steer cases to sympathetic judges. You may recall that a few years ago, the 2nd U.S. Circuit Court of Appeals had some sharp questions for Manhattan federal prosecutors who brought some of their celebrated insider trading cases via superseding indictments before a federal judge with a pro-government interpretation of the law. (Prosecutors denied any impropriety; the 2nd Circuit struck down for other reasons the conviction of the defendant whose case prompted the sharp questions.)

In 2017, defendants from the hedge fund Deerfield Management claimed Manhattan prosecutors charged them in a superseding indictment in order to get their case to a particular judge. In an amicus brief, the New York Council of Defense Lawyers said its analysis of prosecutors’ charging decisions showed that the U.S. Attorney’s office “relies on superseding indictments when it prefers to have what amounts to a new case remain with a particular judge, and relies on new or original indictments when it prefers to have a case assigned to a different judge.” Though the Manhattan U.S. Attorney’s office said its use of a superseding indictment in the Deerfield employees’ case was justified, the judges’ assignment committee ordered the case to be refiled as a new criminal matter.

I emailed six of the former federal prosecutors who signed the defense lawyers’ letter alleging judge-shopping by the college admissions scandal prosecutors, including former San Francisco U.S. Attorney Melinda Haag of Orrick Herrington & Sutcliffe. None got back to me.