Law360 (June 15, 2021, 6:53 PM EDT) -- Five of the eight parents who are still fighting charges in the "Varsity Blues" college admissions case will face a Boston jury in September and the rest will be tried in January, a federal judge said Tuesday, anticipating a more "normal" post-pandemic courtroom setup.
U.S. District Judge Nathaniel M. Gorton rejected a bid by three parents to move their case to California, re-severed the trial, affirmed the September trial date, and denied one mother's motion to dismiss during an action-packed 40-minute status conference.
The judge on several occasions noted that the case has been pending for more than two years, delayed in large part due to the COVID-19 pandemic, and must be resolved as soon as possible.
"The court, after due deliberation, is satisfied that, in September, this court will be able to convene a multi-defendant criminal jury trial for up to six defendants in the Moakley Courthouse," Judge Gorton said. "All of the COVID-19 restrictions will be lifted on or before Labor Day. In fact, many of them have been lifted as of today."
The 462-day state of emergency declared in Massachusetts by Gov. Charlie Baker officially ended Tuesday. If the number of parents left in the case drops to six before Sept. 13, when the first trial is set to commence, then all the parents will be tried together.
Otherwise, Gamal Abdelaziz, Elisabeth Kimmel, Marci Palatella, John Wilson and Homayoun Zadeh will be up first in September, Judge Gorton said. All five are charged with working with Varsity Blues ringleader William "Rick" Singer to get their children admitted to college by passing them off as fake athletic recruits.
The other three parents, Gregory Colburn, Amy Colburn and I-Hsin Chen, would be tried in January on charges they paid to have their children's standardized test scores falsified. In February 2020, before the onset of the pandemic, Judge Gorton had ordered that the remaining parents be tried together.
Both sides have indicated to Judge Gorton that more guilty pleas before trial are unlikely, he said Tuesday. When the Colburns and Chen are tried, they will be before a Boston jury as the judge denied their bid to move the case to California in an order filed hours before the hearing.
He cited his familiarity with the record and the fact that the prosecution team is in Massachusetts as reasons for keeping the case where it is.
From the bench, Judge Gorton also denied Kimmel's motion to dismiss charges. Kimmel claimed that when agents showed up at her La Jolla home in March 2019, they did so in full tactical gear and with guns drawn in the predawn hours. The heavy-handed arrest resulted in her suffering a condition known as "broken heart syndrome," which she said put her in the hospital for several days.
But Judge Gorton agreed with prosecutors that the ordeal is not enough to justify tossing the case on the eve of trial.
"While the court is sensitive to her medical circumstances and will continue to monitor her condition, none of the alleged constitutional violations warrant the dismissal of the indictment," the judge said. "If anything she has raised matters, which, if proved, could support a lawsuit."
An attorney for Wilson, Mike Kendall of White & Case LLP, said he will move to sever his client's case from the others set to be tried in September because his circumstances are different. Assistant U.S. Attorney Stephen Frank said prosecutors will oppose that motion.
Some trial logistics must still be addressed, including the exact setup of the court. During a recent trial for a mayor facing corruption charges, courtroom capacity was capped at 26, with jurors spaced out in the well and the attorneys behind the bar in the space usually reserved for the public.
Judge Gorton said the setup in September, with all restrictions having been lifted in Massachusetts, should look more normal. Jurors will likely be in the jury box and attorneys at the counsel tables with their clients, though space limitations may require just one lawyer per parent, he said.
The judge balked at the estimated six to seven weeks the government said the trial may last, and he floated the idea of imposing time limits. His colleague, U.S. District Judge Richard G. Stearns, used time limits in a white-collar criminal case involving both Frank and Kendall.
He called the notion a "last resort," and it drew pushback from the lawyers. Kendall noted that in the case before Judge Stearns, all four defendants were charged with similar conduct and all worked together, which is not the case for the Varsity Blues cohort.
Nixon Peabody LLP's Brian Kelly, who represents Abdelaziz, said he will object to any time limits, arguing the government has the edge in a five-defendant case.
"I didn't say I would automatically give you equal time," Judge Gorton said. "If you gave me good reason why the defendants should have more time, I would hear you."
"Well, if there are five of us and one of them—" Kelly began before being cut off.
"I am not going to make it five-to-one either," Judge Gorton said with a smile.
Facial expressions will be on display come trial time. While Judge Gorton said anyone except witnesses testifying or the defendants may wear a mask if they so choose, it will not be required.
"We are maskless in the courthouse for the first time in 15 months," he said. "It's very nice."
The government is represented by Justin D. O'Connell, Karin M. Bell, Kristen A. Kearney, Leslie A. Wright and Stephen E. Frank from the U.S. Attorney's Office for the District of Massachusetts.
Amy and Gregory Colburn are represented by David S. Schumacher, Jordan R.C. Kearney and Patric Hooper of Hooper Lundy & Bookman PC.
Abdelaziz is represented by Brian T. Kelly, Joshua C.H. Sharp and Lauren Maynard of Nixon Peabody LLP.
Chen is represented by Chase A. Scolnick, Jennifer L. Keller and Reuben Camper Cahn of Keller Anderle LLP.
Kimmel is represented by Eoin P. Beirne, Mark E. Robinson, R. Robert Popeo, Cory S. Flashner, Mathilda McGee-Tubb and Peter Charles Mulcahy of Mintz Levin Cohn Ferris Glovsky and Popeo PC.
Palatella is represented by Allen J. Ruby, Jack P. DiCanio and Michael K. Loucks of Skadden Arps Slate Meagher & Flom LLP.
Wilson is represented by Andrew E. Tomback of McLaughlin & Stern LLP, and Michael Kendall and Lauren M. Papenhausen of White & Case LLP.
Zadeh is represented by Tracy A. Miner and Megan A. Siddall of Miner Siddall LLP.
The case is U.S. v. Colburn et al., case number 1:19-cr-10080, in the U.S. District Court for the District of Massachusetts.
--Editing by Adam LoBelia.
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