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Law360 (June 9, 2020, 12:51 PM EDT) -- Federal prosecutors on Monday argued the COVID-19 pandemic is not cause for two mothers, including the daughter of the man who invented Hot Pockets, to avoid their prison terms after pleading guilty in the "Varsity Blues" college admissions case.
Hot Pockets heiress Michelle Janavs and Elizabeth Henriquez have renewed bids to escape serving time behind bars in connection with the high-profile case. In response, the government is again asking U.S. District Judge Nathaniel M. Gorton to delay the start of their prison terms — which the judge already did on April 30 when he gave them until June 30 to report to prison — rather than allow them to serve their sentences in home confinement.
"Henriquez and Janavs should not be permitted to take advantage of the current pandemic to escape meaningful punishment for their crimes — punishment that this court only recently concluded was just and appropriate," the government's brief argues. "A delay of several months, or even longer, in beginning to serve that sentence may be inconvenient, but it does not justify the relief the defendants seek."
The women have argued their ages and unspecified health issues put them at risk should they come into contact with someone who has the novel coronavirus while in custody. But prosecutors say neither Henriquez nor Janavs is in a COVID-19 risk category. They also note that courts have held the pandemic alone is not grounds to keep a convicted defendant out of prison.
"The [Bureau of Prisons] has instituted substantial policies and procedures to manage the pandemic and prevent the spread of infection, and as of this filing, no staff or prisoners at FPC Bryan, and only one staff member at FCI Dublin — the facilities to which the defendants have been designated — have tested positive for COVID-19," the government's brief states.
Both Henriquez and Janavs pled guilty to one count of conspiracy to commit mail and wire fraud and honest services mail and wire fraud.
Prosecutors say the pair worked separately with "Varsity Blues" mastermind William "Rick" Singer to cheat on standardized tests, five times in Henriquez's case and twice in Janavs' case, and pay bribes so their children would be recruited falsely as student athletes to Georgetown University and the University of Southern California, respectively.
Judge Gorton sentenced Henriquez to seven months in prison and Janavs to five months behind bars.
Henriquez and Janavs relied in part on the recent successful compassionate release motion by a former NFL lineman, Robert "Bubba" Pena, who pled guilty in a $2.5 million real estate fraud scheme before U.S. District Judge Mark L. Wolf.
But his case, the government said Monday, is very different from that of the "Varsity Blues" moms because he had actually served time.
"In Pena, Judge Wolf found that 'the seven months Pena has served should be sufficient to send' a message of deterrence," prosecutors wrote. "In contrast, Henriquez and Janavs have not served any portions of their sentence, beyond the day of their initial arrests, and reducing their sentences to home confinement would undermine the goals of deterrence and just punishment."
The women have also failed to follow the necessary procedure to make a motion to modify their sentences in this way, since they must first ask the warden of the prison facility where they are housed, the government argued.
"While each may have sent a letter to a warden at a BOP facility, until she actually reports to that facility and is taken into custody, that warden is not the 'warden of the defendant's facility,'" prosecutors wrote.
Judge Gorton has suggested the pandemic will not help those convicted in the college admissions case escape prison time if he feels it is warranted.
In Monday's brief, prosecutors quoted what the judge said during Henriquez's sentencing: "Although we are, indeed, in the midst of a public health crisis, I will not forfeit the obligation of a federal judge to impose a sentence that is warranted by the defendant's conduct. In this case, that is a period of incarceration."
A representative for the U.S. attorney's office and counsel for the defendants all declined to comment Tuesday morning.
The government is represented by Eric S. Rosen, Justin D. O'Connell, Kristen A. Kearney, Karin M. Bell, Stephen Frank and Leslie Wright of the U.S. Attorney's Office for the District of Massachusetts.
Henriquez is represented by Aaron M. Katz, Colleen A. Conry and Laura Gaffney Hoey of Ropes & Gray LLP.
Janavs is represented by Thomas H. Bienert Jr. and John Littrell of Bienert Katzman PC, William Weinreb of Quinn Emanuel Urquhart & Sullivan LLP, and Jonathan L. Kotlier of Nutter McClennen & Fish LLP.
The case is U.S. v. Sidoo et al., case number 1:19-cr-10080, in the U.S. District Court for the District of Massachusetts.
--Editing by Marygrace Murphy.
For a reprint of this article, please contact reprints@law360.com.
