U.S. District Judge Nathaniel Gorton on Friday declined to toss the criminal case against Lori Loughlin, Mossimo Giannulli and other parents charged in the college admissions scandal. That outcome was always a pipe dream for the defense. The unfortunate truth for the defendants is that they lost out on every request their lawyers made, even the more realistic ones.
Defense lawyers maintained that the government committed acts of egregious misconduct in the interview of scheme mastermind William “Rick” Singer and wrongly withheld exculpatory evidence to such a degree that the fraud indictments should be dismissed. If not that, then the evidence the government obtained from Singer’s calls with parents should be thrown out. Recall: the government listened in as Singer made up a story about an IRS audit of his The Key Worldwide Foundation. What resulted were conversations between Singer and the various defendants getting their stories straight while the government listened and recorded. At a minimum, the defense argued, they deserved an evidentiary hearing.
The judge didn’t budge on anything.
Gorton, who did not allow the COVID-19 pandemic to grind proceedings to a halt, has in two cases called guilty Varsity Blues defendants thieves at sentencing. Judge Gorton is well-known as one of the toughest sentencers in the District of Massachusetts--and defense attorneys for Varsity Blues clients have accused prosecutors of “judge-shopping” by steering cases to Gorton. Gorton has shown time and again that his views on these cases differ from another judge who has handed out sentences.
Nonetheless, defense lawyers–in the names of Amy Colburn, Gregory Colburn, Gamal Abdelaziz, Diane Blake, Todd Blake, I-Hsin Chen, Mossimo Giannulli, Elisabeth Kimmel, Lori Loughlin, William McGlashan Jr., Marci Palatella, John Wilson, Homayoun Zadeh, and Robert Zangrillo–asked the court to dismiss the indictment.
Full House actress Lori Loughlin and her husband Mossimo Giannulli are the most famous of the remaining defendants. They have pleaded not guilty to all charges.
They face 12 criminal counts, including: conspiracy to commit mail and wire fraud and honest services mail and wire fraud; conspiracy to commit federal programs bribery; money laundering conspiracy; wire fraud and honest services wire fraud; aiding and abetting; federal programs bribery; aiding and abetting. All of that adds up to a technical possible punishment of decades behind bars, but that will never happen.
Judge Gorton’s memorandum and order began by discussing Singer’s October 2, 2018 notes. The defense argued that these notes showed “government agents had strong-armed him and instructed him to lie in order to elicit incriminating information from the target parents.”
Singer’s notes said:
Loud and abrasive call with agents. They continue to ask me to tell a fib and not restate what I told my clients to where there [sic] money was going – to the program not the coach and that it was a donation and they want it to be a payment. …Essentially they are asking me to bend the truth…Liz raised her voice to me like she did in the hotel room about agreeing with her that everyone Bribed [sic] the schools. This time about asking each person to agree to a lie I was telling them.
Gorton said he was actually satisfied that the government didn’t lie to him about what happened here and didn’t lie about the reason for the delay in handing over this evidence to the defense.
“The government asserts that in the calls which precipitated the October 2nd notes, they did not instruct Singer to fib or lie but rather sought to have him describe explicitly the alleged scheme in order to make it crystal clear to any parents not already committed to Singer’s ‘program’ that their payments were bribes not just donations,” Gorton wrote. “As is acknowledged by defense counsel, government agents are permitted to coach cooperating witnesses and create ruses designed to elicit incriminating information from willing participants during the course of an investigation. Government agents are most definitely not, however, permitted to suborn the commission of a crime.”
“The Court is satisfied that the government has not lied to or misled the Court,” he said.
Gorton noted that the government conceded a mistake in its handling of Brady material (evidence favorable to the defense) by “not produc[ing] Singer’s iPhone notes until February, 2020, 16 months after an AUSA became aware of their existence.”
But the judge still sided with the government:
By way of partial explanation, the government maintains that, based on counsel’s initial review of the note in 2018, they believed it was prepared for Singer’s attorney and therefore subject to the attorney client privilege.
Notwithstanding the potential privilege, the government should have produced Singer’s October 2nd note much sooner than it did. The government’s failure to do so was irresponsible and misguided. It was not, however, willful and is partly explained (but not excused) by the AUSAs’ imprudent underestimation of the context, relevance and potential exculpatory nature of the notes. More importantly, the note was disclosed more than eight months before the scheduled trial and before defendants’ deadline for the filing of dispositive motions. Defendants have ample time to prepare for trial with the benefit of the subject note and have not been unduly prejudiced by its late disclosure. The indictment will not be dismissed on that ground.
Gorton not only declined to dismiss the indictment, but also declined to toss out evidence of Singer’s phone calls with defendant parents:
For the reasons expounded above, the Court will not suppress the consensual recordings. The Court is satisfied that government’s counsel has not lied to or attempted to mislead the Court or fabricated evidence. Although counsel erred by failing to review and turn over Singer’s notes in a timely fashion, that error has not unduly prejudiced these defendants. Accordingly, suppression of the consensual recordings is not warranted.
Worse yet for the defense is that Gorton didn’t really think this was a close call. He also denied an evidentiary hearing.
“Accordingly, defendants have failed to meet their burden of establishing an unresolved issue of material fact that would warrant an evidentiary hearing and their request for such a hearing will therefore be denied,” Gorton ruled, adding elsewhere in the memorandum that it will be up to a jury at trial to decide whether Loughlin et al. really “believed their payments to be legitimate donations rather than bribes.”
All of this aside, the U.S. Supreme Court did provide some hope on Thursday for these defendants.
You can read Gorton memo and order below.
Judge Gorton denies motion … by Law&Crime on Scribd
[Image via Joseph Prezioso/AFP/Getty Images]
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