Law360 (February 22, 2021, 7:29 PM EST) -- A former Texas tennis academy director missed out on his chance to delay his "Varsity Blues" prison term due to his poor health and the COVID-19 pandemic, prosecutors said Monday as they pushed back on the latest early release bid in the college admissions case.
Martin Fox has asked a Massachusetts federal judge to let him serve the balance of his three-month prison term at home due to the pandemic, the number of cases and deaths inside the Texas prison where he is housed, and his own litany of health problems, which include stomach pains, hernias, "out of control" diabetes, an inability to digest food and organ damage, according to his lawyers.
But the government argued that Fox, who pled guilty to working as a middleman for the admissions scheme's ringleader, had the chance to put off reporting to prison and the judge in the case made clear that she would entertain delaying the start of the term until the worst of COVID-19 was in the rear view.
Despite that, Fox reported to the Federal Medical Center in Fort Worth on Jan. 8, prosecutors said. He argued Thursday that he did so because he wanted to put his involvement in the high-profile case behind him, but the government countered by saying it probably would not have taken long for circumstances to change for the better to allow him to do his time safely.
"Given the rollout of COVID-19 vaccines and decreasing case counts across the United States, it is likely a delay of a few months would have been sufficient," prosecutors wrote. "Instead, knowing the risks of reporting to prison in a pandemic and the conditions he would face to mitigate the spread of the disease, Fox chose to report rather than seek to delay his sentence."
Fox should not be able to use that choice to score an early release, the government argued, adding that the proper way to proceed would be to allow the Bureau of Prisons to finish a review of whether Fox is a good fit for home confinement under the Coronavirus Aid, Relief and Economic Security Act.
However, due to the relatively short stint Fox is set to complete behind bars, the BOP review might not be finished before he is released anyway, the government added in a footnote.
Fox argued that being in prison puts his life at risk and the COVID-19 quarantine measures at the Fort Worth facility amount to a "Catch-22": when a new prisoner arrives, the quarantine period is extended.
Prosecutors said that the cohort of inmates quarantining with Fox who arrived on Jan. 8 accidentally commingled with a separate cohort in the showers, which is why all of those inmates had to extend their quarantine periods. But Fox ended his quarantine on Feb. 10, the government said.
At FMC Fort Worth, 12 inmates have succumbed to the virus and there are currently five known infected detainees and 34 staff members who have tested positive, Fox's lawyers wrote in his early release motion, with two inmate deaths in the past two months.
Prosecutors said Fox played a "vital role" in both aspects of the college admissions scheme. He helped two students get into college as fake tennis recruits, the government alleged, took steps toward getting a third into college, and helped scheme mastermind William "Rick" Singer "control" a Houston testing center to help four students cheat on college admissions exams.
In addition to the three months in jail — which is half of the six months prosecutors requested — U.S. District Judge Indira Talwani imposed a $95,000 fine as well as 250 hours of community service and a $245,000 forfeiture.
Fox's attorneys did not immediately respond to requests for comment Monday and a government representative declined to comment.
There have been numerous early release motions by parents, coaches and other officials who have been sentenced to serve time due to their roles in the college admissions case. Some, like "Hot Pockets" heiress Michelle Janavs and fellow defendant Toby MacFarlane, had months shaved off their time behind bars.
But clothing designer Mossimo Giannulli, who was sentenced to prison along with his wife, actress Lori Loughlin, was denied an early release in January despite complaints about the weeks he spent in quarantine while behind bars.
California mother Elizabeth Henriquez could not get out early despite saying a virus outbreak had turned the facility into a "COVID-19 tinderbox" just before Christmas.
The government is represented by Justin D. O'Connell, Leslie A. Wright and Kristen A. Kearney of the U.S. Attorney's Office for the District of Massachusetts.
Fox is represented by David Gerger of Gerger Khalil Hennessy & McFarlane LLP and Michael J. Pineault of Anderson & Kreiger LLP.
The case is U.S. v. Ernst et al., case number 1:19-cr-10081, in the U.S. District Court for the District of Massachusetts.
--Editing by Michael Watanabe.
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