By Chris Villani

Law360 (December 23, 2020, 3:28 PM EST) -- A federal judge issued a swift denial of a motion by a California mother who pled guilty in the "Varsity Blues" college admissions case and asked Wednesday for an emergency release just weeks before she is scheduled to get out of prison, saying a virus outbreak has turned the facility into a "COVID-19 tinderbox."

Lawyers for Elizabeth Henriquez said the Federal Correctional Institution in Dublin, California, is in the midst of one of the worst outbreaks of the novel coronavirus in the entire federal prison system, with 106 inmates infected as of Monday. By Tuesday, that number had nearly doubled to 188, her motion stated.

"The facility is, simply put, a COVID-19 tinderbox," the motion said. "Undersigned counsel had feared exactly this situation, and that fear is now a reality."

But, just hours after the emergency motion was filed, U.S. District Judge Nathaniel M. Gorton denied the bid, writing in a brief order that he agreed with prosecutors who had opposed her fourth attempt at securing an early release.

"Defendant chose to report to prison, rather than seek to postpone her self-report date, knowing the risks of COVID-19, defendant's underlying health condition does not place her at a higher risk for complications due to COVID-19, the Bureau of Prisons has taken extraordinary steps to mitigate the spread of COVID-19 in FCI Dublin and releasing defendant without a 14-day exit quarantine poses a health risk to the community," the judge wrote.

Henriquez has already tried and failed three times to secure early release. In each of the bids, the government has refused to assent to the motion.

Mentioning Assistant U.S. Attorneys Stephen Frank and Kristen Kearney by name, Henriquez's legal team said Wednesday the government is once again declining to agree to let her go from prison to home confinement early.

While the outbreak is in the adjacent prison building, not the prison camp where Henriquez is housed, her lawyers said guards travel between buildings and it's a matter of time before the virus spreads in closer proximity to their client.

Henriquez is scheduled to be released to home confinement on Jan. 7, according to the motion, which asks U.S. District Judge Nathaniel M. Gorton to reduce the sentence to time served.

"Undersigned counsel expressed to Mr. Frank and Ms. Kearney his substantial concern that Elizabeth could die if she contracts COVID-19," the motion states, adding that the prosecutors are aware of underlying conditions that put Henriquez at greater risk.

Still, Henriquez's attorneys said the government will not agree to let her out two weeks earlier than she otherwise would be released, even though each day she is at FCI Dublin "places her life in jeopardy."

"The government's position, in other words, is that Elizabeth's physical health — and potentially her life — should simply be left to chance for the next two weeks," the motion states. "The government is either ambivalent about Elizabeth's health or naïve about the probability that the COVID-19 outbreak at FCI Dublin will spread from the prison building to the adjacent camp."

Federal prosecutors filed their own motion Wednesday, saying Henriquez knew the risk of reporting to prison in the middle of a pandemic and chose to do it anyway, even though Judge Gorton said he would entertain motions to delay her self-surrender date if the virus was still raging.

"Since that time, Henriquez's attorneys have used the pandemic in a relentless campaign to have her released, and to escape the punishment this court concluded was just and appropriate," the government said in its motion.

Prosecutors insisted they are not indifferent to Henriquez's health, but have "considered the extraordinary steps [the Bureau of Prisons] has taken to limit the spread of COVID-19 at its facilities, including by keeping FCI Dublin inmates at the low security facility separate from the minimum security camp inmates, including by setting up a separate quarantine unit in the camp facility exclusively for camp inmates undergoing their entry or exit quarantine."

Henriquez's unspecified condition does not render her immunocompromised, the government added.

"Indeed, despite placing more than 19,200 inmates on home confinement under the CARES Act since March 26, 2020, the BOP found that Henriquez's age, health, and other factors did not qualify her for early release to home confinement," prosecutors wrote. 

Henriquez's motion cited a ruling by another Massachusetts jurist, U.S. District Judge Mark L. Wolf, who allowed an early release for a former NFL player who pled guilty to fraud because the facility adjacent to his camp was dealing with a virus outbreak.

"Judge Wolf concluded that it was simply 'good luck' — luck that probably 'would not continue' — that a COVID-19 outbreak at the FMC Devens medical facility had not yet spread to the FCM Devens prison camp," Henriquez's motion states.

The motion asks Judge Gorton to decide the matter on an expedited, emergency basis.

Henriquez's attorney did not immediately respond to a comment request, and a government representative declined to comment Wednesday.

Judge Gorton denied Henriquez's October request to be released early, after she cited the fact that she had to quarantine for weeks upon entering and exiting the prison at the beginning and end of her term. During that time, she said she was crammed into a tiny cell, sometimes with a cellmate, for nearly 24 hours per day.

She argued that is a far harsher sentence than Judge Gorton intended to impose when he sentenced her in March at the onset of the pandemic.

But, scribbled in blue ink in the bottom margin of her motion, the judge wrote "for the third time, defendant has failed to demonstrate extraordinary and compelling reasons to reduce her sentence, motion denied."

Henriquez pled guilty to agreeing, along with her husband Manuel, to pay more than $500,000 to engage in various schemes to get their daughters an unfair edge in the college admissions process, including by passing off one daughter as a fake tennis recruit.

Elizabeth Henriquez first tried to modify her sentence in June, citing unspecified health issues that put her at risk if she contracted the virus in prison. Her second unsuccessful attempt in September to have the court reduce her sentence raised concerns over the quarantine lockdowns.

When she appeared in March in a Boston courtroom, Judge Gorton told Henriquez the pandemic wouldn't become a reason for keeping parents convicted in the case from serving their time.

"I have every hope the COVID[-19] crisis will abate within a period of months and Ms. Henriquez will be able to serve her sentence safely," the judge said at the time.

The government is represented by Stephen Frank, Justin D. O'Connell, Leslie A. Wright and Kristen A. Kearney 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.

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.

--Additional reporting by Brian Dowling. Editing by Alyssa Miller.

Update: This story has been updated to reflect that Judge Gorton denied Henriquez's motion.

For a reprint of this article, please contact reprints@law360.com.