United States v. Sidoo

471 F.Supp.3d 369

UNITED STATES of America, Plaintiff,

v.SIDOO et al., Defendants.

Criminal Action No. 19-10080-NMG

United States District Court, D. Massachusetts.

Signed July 10, 2020

Eric S. Rosen, Alexia R. De Vincentis, Justin D. O'Connell, Kristen A. Kearney, Stephen E. Frank, Leslie Wright, United States Attorney's Office, Boston, MA, Karin Michelle Bell, U.S. Attorney's Office, Worcester, MA, for Plaintiff.

David Z. Chesnoff, Pro Hac Vice, Richard A. Schonfeld, Pro Hac Vice, Chesnoff & Schonfeld, Las Vegas, NV, Martin G. Weinberg, Martin G. Weinberg, PC, Boston, MA, for Defendant David Sidoo.

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, Robert L. Sheketoff, Boston, MA, Donald J. Campbell, Campbell & Williams, Las Vegas, NV, for Defendant Gamal Abdelaziz.

Stephen H. Sutro, Pro Hac Vice, Duane Morris LLP, San Francisco, CA, Christian G. Kiely, David E. Meier, Melinda L. Thompson, Todd & Weld, Boston, MA, for Defendants Diane Blake, Todd Blake.

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.

Mark E. Beck, Pro Hac Vice, Mark Beck Law, Pasadena, CA, Perry J. Viscounty, Allison S. Blanco, Pro Hac Vice, Latham & Watkins LLP, Costa Mesa, CA, Roman Martinez, Pro Hac Vice, Latham & Watkins LLP, Washington, DC, Sean M. Berkowitz, Pro Hac Vice, Latham & Watkins LLP, Chicago, IL, George W. Vien, Joshua N. Ruby, Donnelly, Conroy & Gelhaar, LLP, William J. Trach, Latham & Watkins LLP, Boston, MA, for Defendant Mossimo Giannulli.

Melinda Haag, Pro Hac Vice, Walter Brown, Pro Hac Vice, Orrick, Herrington & Sutcliffe LLP, San Francisco, CA, Robin Linsenmayer, Pro Hac Vice, Orrick, Herrington & Sutcliffe LLP, Menlo Park, CA, for Defendant Manuel Henriquez.

Eoin P. Beirne, Mark E. Robinson, R. Robert Popeo, Cory S. Flashner, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC, Boston, MA, for Defendant Elisabeth Kimmel.

David C. Scheper, Pro Hac Vice, Scheper Kim & Harris LLP, Los Angeles, CA, Perry J. Viscounty, Allison S. Blanco, Pro Hac Vice, Latham & Watkins LLP, Costa Mesa, CA, Roman Martinez, Pro Hac Vice, Latham & Watkins LLP, Washington, DC, Sean M. Berkowitz, Pro Hac Vice, Latham & Watkins LLP, Chicago, IL, William J. Trach, Latham & Watkins LLP, Boston, MA, for Defendant Lori Loughlin.

Jack W. Pirozzolo, Sidley Austin LLP, Boston, MA, Joan M. Loughnane, Pro Hac Vice, Sidley Austin LLP, New York, NY, John C. Hueston, Pro Hac Vice, Hueston Hennigan, Newport Beach, CA, Marshall A. Camp, Pro Hac Vice, Hueston Hennigan LLP, Los Angeles, CA, for Defendant William McGlashan, Jr.

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, White & Case LLP, New York, NY, Michael Kendall, Yakov Malkiel, White & Case, LLP, Boston, MA, for Defendant John Wilson.

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

Matthew L. Schwartz, Pro Hac Vice, Sara K. Winik, Pro Hac Vice, Boies Schiller Flexner LLP, New York, NY, Nicholas C. Theodorou, Foley Hoag LLP, Martin G. Weinberg, Martin G. Weinberg, PC, Michael Pabian, Michael Pabian Law Office, LLC, Boston, MA, for Defendant Robert Zangrillo.

MEMORANDUM & ORDER

GORTON, J.

The government has charged Robert Zangrillo, as well as multiple co-defendants, with conspiring with William "Rick" Singer ("Singer") to obtain the fraudulent admission of his children to elite universities. Zangrillo has moved to dismiss Counts One and Four of the Indictment and to strike or, in the alternative, sever those counts. For the following reasons, those motions will be denied.

I. Background

A. Facts

The facts of this case have been extensively recited several times by this Court. See Docket Nos. 1169 and 1334. Additional facts specific to Defendant Zangrillo have been forth out by Magistrate Judge Kelley in Docket No. 913. As previously recounted, defendants are charged with conspiring with Singer to, inter alia, fabricate applications, falsify academic and athletic credentials, cheat on standardized tests, make payments to corrupt exam proctors and bribe university employees and athletic coaches.

Relevant here is the distinct conduct of Defendant Zangrillo. In addition to engaging in the "side door" scheme, the Fourth Superseding Indictment ("FSI") alleges that Zangrillo agreed with Singer to pay a third party to complete online classes on behalf of his daughter during two separate college application transactions.

The FSI alleges that, in support of his daughter's initial applications to college, Zangrillo conspired with Singer to have a third party complete high school classes on her behalf. Later, in support of her application to transfer to a second college, Zangrillo engaged Singer to have a third-party complete college coursework on her behalf.

The government alleges that Zangrillo understood that (1) the credits earned from those classes would be reflected on his daughter's transcripts; (2) her high-school transcript would be submitted as proof of graduation as a prerequisite for college admission and matriculation and (3) the credits earned would support both college applications.

In March, 2017, Zangrillo's daughter was admitted to Boston University ("BU"). At that time, she was enrolled at an online high school and needed to complete five classes in order to graduate. The FSI alleges that Singer's associate, Mikaela Sanford ("Sanford") and another person (Co-Conspirator #1) completed four of those enrolled courses. In return, the FSI alleges that Zangrillo wired $3,109 to The Key, one of Singer's fraudulent entities.

Later in the summer of 2017, Sanford purportedly attempted to have the online high school send the daughter's transcript to BU. Sanford was informed that Zangrillo's daughter would have to complete a class called "Fitness Fundamentals" to fulfill the graduation requirements. Sanford is said to have subsequently completed that course on behalf of the applicant and requested that the high school send the transcript "with proof of graduation" to BU. The high school then sent the transcript, which included credits from the classes taken by Sanford and Co-Conspirator #1 to BU. As payment for Fitness Fundamentals, the FSI alleges that Zangrillo wired $2,500 to The Key. Zangrillo's daughter did not ultimately attend BU but instead apparently enrolled at a community college.

The FSI further alleges that, in 2018, Zangrillo agreed with Singer to pay $250,000, (including a bribe to Donna Heinel) to facilitate his daughter's transfer to the University of Southern California ("USC") as a purported crew recruit. In support of her application to USC, the government asserts that Zangrillo directed Sanford to complete online college classes on behalf of his daughter for which he paid over $10,000. Transcripts reflecting credits earned in those classes were sent to USC.

Ultimately, and the government contends unbeknownst to Zangrillo, Heinel did not present his daughter to USC as a potential athlete. The applicant was instead "tagged" as a so-called "VIP" and was eventually admitted to the university.

B. The Indictment

Count One of the FSI charges Zangrillo with conspiracy to commit mail and wire fraud and honest services mail and wire fraud, in violation of 18 U.S.C. § 1349. Count Four charges him with substantive wire fraud and honest services wire fraud, in violation of 18 U.S.C. §§ 1341 and 1346 and 2.

II. Legal Standard on a Motion to Dismiss

The Federal Rules of Criminal Procedure provide that an indictment must contain "a plain, concise and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c)(1). When considering a motion to dismiss in a criminal case, a court accepts the factual allegations in the indictment as true. Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 343 n.16, 72 S.Ct. 329, 96 L.Ed. 367 (1952). Such a motion is properly directed only to the question of the validity of the indictment on its face and Courts are to be mindful that

the question is not whether the government has presented enough evidence to support the charge, but solely whether the allegations in the indictment are sufficient to apprise the defendant of the charged offense.

United States v. Ngige, 780 F.3d 497, 502 (1st Cir. 2015) (citation omitted). It is typically sufficient that an indictment articulate the offense in "the words of the statute itself as long as those words set forth all the elements of the offense without any uncertainty or ambiguity." United States v. Brown, 295 F.3d 152, 154 (1st Cir. 2002) (citation omitted). An indictment is ripe for dismissal if the facts demonstrate that, as a matter of law, the prosecution will not be able to prove each of the elements of the charged offense. United States v. Huet, 665 F.3d 588, 596-97 (3d Cir. 2012).

III. Motion to Dismiss Counts One and Four

A. Duplicity

Zangrillo first contends that by charging him with (1) wire fraud and conspiracy to commit wire fraud in connection with the class-taking scheme and (2) honest services fraud and conspiracy to commit honest services fraud in connection with the bribery scheme, Counts One and Four are duplicitous and must be dismissed. The government responds that Counts One and Four do not allege distinct offenses, rather they allege multiple means of committing a single offense and the indictment is therefore not subject to dismissal.

An indictment may not "join[ ], in a single count, two or more distinct offenses." United...