United States v. Colburn

546 F.Supp.3d 22

UNITED STATES of America,

v.Gregory COLBURN, et al., Defendants.

Criminal Action No. 19-10080-NMG

United States District Court, D. Massachusetts.

Signed June 25, 2021

Eric S. Rosen, Assistant US Attorney, Alexia R. De Vincentis, Assistant US Attorney, Carol E. Head, Justin D. O'Connell, Assistant US Attorney, Kristen A. Kearney, Assistant US Attorney, Stephen E. Frank, Ian J. Stearns, Leslie Wright, Assistant US Attorney, United States Attorney's Office, Boston, MA, Karin Michelle Bell, Assistant US Attorney, U.S. Attorney's Office, Worcester, MA, for United States of America.

David S. Schumacher, Hooper, Lundy & Bookman, P.C., Boston, MA, Jordan R.C. Kearney, Pro Hac Vice, Hooper, Lundy Bookman, P.C., San Francisco, CA, Patric Hooper, Pro Hac Vice, Hooper, Lundy & Bookman, PC, Los Angeles, CA, for Defendants Gregory Colburn, Amy Colburn.

Brian T. Kelly, Joshua C.H. Sharp, Lauren Maynard, Nixon Peabody LLP, Elliot M. Weinstein, Robert L. Sheketoff, Boston, MA, for Defendant Gamal Abdelaziz.

Chase A. Scolnick, Pro Hac Vice, Jennifer L. Keller, Pro Hac Vice, Reuben Camper Cahn, Pro Hac Vice, Keller/Anderle LLP, Irvine, CA, for Defendant I-Hsin Chen.

Eoin P. Beirne, Mark E. Robinson, R. Robert Popeo, Cory S. Flashner, Mathilda McGee-Tubb, Peter Charles Mulcahy, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC, Boston, MA, for Defendant Elisabeth Kimmel.

Allen J. Ruby, Pro Hac Vice, Jack P. DiCanio, Pro Hac Vice, Skadden, Arps, Slate, Meagher & Flom LLP, Palo Alto, CA, Michael K. Loucks, Skadden, Arps, Slate, Meagher & Flom LLP, Boston, MA, for Defendant Marci Palatella.

Andrew E. Tomback, Pro Hac Vice, McLaughlin & Stern, LLP, New York, NY, Lauren M. Papenhausen, Michael Kendall, White & Case, LLP, Boston, MA, Yakov Malkiel, Division of Administrative Law Appeals, Malden, MA, for Defendant John Wilson.

Megan A. Siddall, Tracy A. Miner, Miner Siddall LLP, Seth B. Orkand, Robinson & Cole LLP, Boston, MA, for Defendant Homayoun Zadeh.

MEMORANDUM & ORDER

GORTON, United States District Judge The government has charged defendant Elisabeth Kimmel ("Kimmel" or "defendant"), alongside multiple co-defendants, with conspiring with William "Rick" Singer ("Singer") to have her children fraudulently admitted into elite universities through the "side door" by, inter alia, falsifying their athletic credentials and bribing university employees and athletic coaches.

Specifically, the government contends that Kimmel paid a total of approximately $525,000 to secure admission for her daughter to Georgetown University, as a purported tennis recruit, and her son to the University of Southern California, as a purported track and field athlete, in violation of 18 U.S.C. §§ 371, 1349 & 1956(h). Pending before the Court is Kimmel's motion to dismiss the indictment based on alleged constitutional violations. For the reasons that follow, that motion will be denied.

I. Background

The facts of this case have been extensively recited several times by this Court, see, e.g., Docket Nos. 1169 and 1334, but relevant here is the following:

On March 11, 2019, Chief Magistrate Judge Page Kelley authorized 32 arrest warrants based on a 536-paragraph criminal complaint charging dozens of parents allegedly engaged in Singer's college admission scheme with conspiracy to commit mail fraud and honest services fraud in violation of 18 U.S.C. § 1349. The next day, law enforcement officers executed those warrants, arresting all but a handful of defendants.

One of the arrestees was defendant Elisabeth Kimmel. Her apprehension was memorialized in a Federal Bureau of Investigations ("FBI") Form 302. As set forth therein, agents from the FBI and the Internal Revenue Service ("IRS") arrived at her residence just after 6:00 A.M. Several of the agents had their handguns unholstered. The agents knocked, announced their presence and that they had a warrant for Kimmel's arrest and waited for defendant at the front door. She remained upstairs, however, while her husband ("Mr. Kimmel") apprehensively answered the door.

Following several requests of the agents, Mrs. Kimmel eventually joined her husband downstairs and sat with the agents in the living room. The agents, who did not handcuff, restrain or otherwise touch Kimmel, informed her that they were there to arrest her in connection with the "university admission bribery scheme". Kimmel apparently became distressed in response to the news and informed the officers that her heart was "racing out of control". Mr. Kimmel reported that his wife had previously undergone heart surgery but noted that she was likely, then, just panicked. The agents subsequently offered to call an ambulance and take Kimmel to the hospital but she declined and apparently did not request medical attention any time thereafter.

After further discussion in the living room, one agent accompanied Mrs. Kimmel upstairs where she was permitted to brush her teeth, use the restroom and change her clothes before being transported to the Metropolitan Correctional Center ("the MCC") for processing. Defendant was unhandcuffed during that time and remained so until immediately before transport.

The agents and Kimmel arrived at MCC just after 7:00 A.M., before the facility was open for processing. They waited in the law enforcement vehicle and, as they did, the agents removed Kimmel's handcuffs from her back to her front, opened the car windows and allowed Kimmel to lie down on the back seat after she alerted them that she was nauseated.

At about 8:20 A.M., agents escorted Kimmel into the MCC and allowed her to use the restroom. Shortly thereafter, the MCC staff informed the officers that Mrs. Kimmel could not be processed due to tightness in her chest and a pre-existing broken metatarsal in her foot. At that point, the agents transported Kimmel to the hospital.

On the way to the hospital, the officers called defendant's husband to inform him of the situation. During the conversation, Mr. Kimmel suggested that defendant was just reacting to the stress of the morning. He also requested that the agents shorten the hospital visit or bring defendant directly home, instead, out of concern that Kimmel would have to spend the night in the MCC if her initial appearance was delayed. The agents denied the request, stating a need to defer to the medical professionals.

Upon arrival at the hospital, FBI agents removed the handcuffs and updated Mr. Kimmel as to the situation while medical staff began performing tests on defendant. At 11:00 A.M., the hospital staff reported that there was some concern with respect to her medical tests, news of which the agents shared with Mr. Kimmel and they advised him to join his wife at the hospital. He arrived approximately 40 minutes later and sat with his wife and the agents in the emergency room.

Upon review of additional test results, a cardiologist recommended that Kimmel proceed with an angiogram for her heart which she chose to do after significant deliberation. In the interim, a representative of the United States Attorney's Office and an FBI Supervisory Special Agent consulted with defendant's attorney and decided to release the defendant from FBI custody and permit her to self-report once her health improved.

Thereafter, Kimmel was transferred to another facility for specialized care. She spent a total of five days in the hospital and was ultimately diagnosed with Takotsubo cardiomyopathy ("TC"), cardiogenic shock and severe aortic regurgitation. Defendant submits that her condition, for which she blames the government, remains perilous.

Accordingly, defendant moves to dismiss the charges against her on the grounds that 1) her arrest was an unreasonable seizure in violation of the Fourth Amendment to the United States Constitution ("the Fourth Amendment"), 2 ) her treatment immediately following her arrest, including the agents’ deliberate indifference to her dire medical condition, was a deprivation of her substantive due process rights under the Fifth Amendment and 3) the consequences of both have compromised a fundamental liberty interest, namely, the right to direct her defense and testify on her own behalf, as protected by the Fifth and Sixth Amendments.

II. Motion to Dismiss

A. Legal Standard

In contrast to civil actions, an indictment generally is not subject to dispositive motion practice. See United States v. Li, 206 F.3d 56, 62 (1st Cir. 2000) (quoting Stokes, 124 F.3d at 44 ) ("[D]ismissing an indictment is an extraordinary step."). The First Circuit Court of Appeals has observed that a federal court using its supervisory power to dismiss an indictment "directly encroaches upon the fundamental role of the grand jury." Whitehouse v. U.S. Dist. Ct. for Dist. of R.I., 53 F.3d 1349, 1360 (1st Cir. 1995). For that reason, such power is appropriately reserved for "extremely limited circumstances". Id. Indeed,

[i]n the normal course of events, a facially valid indictment returned by a duly constituted grand jury calls for a trial on the merits.

United States v. Stokes, 124 F.3d 39, 44 (1st Cir. 1997).

B. Application

1. Unlawful Arrest

Even assuming, arguendo, that Kimmel's arrest constituted an unreasonable seizure in violation of the Fourth Amendment (which is highly implausible), she has not demonstrated that dismissing the indictment on that ground is warranted. As noted by the government, defendant does not cite a single federal criminal case in which a court dismissed an indictment to remedy an unlawful arrest. Nor does she even cite the Fourth Amendment in support of her argument that dismissal is the "only appropriate remedy" in her case.

The reason for that omission is that the remedies available to a criminal defendant alleging a Fourth Amendment violation are limited to 1) suppression of evidence pursuant to the exclusionary rule and/or 2) a collateral civil rights lawsuit pursuant to 42 U.S.C. § 1983. See, e.g., Hudson v. Michigan, 547 U.S. 586, 591, 596–97, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) (noting that civil...