Case 1:19-cr-10080-NMG Document 1402 Filed 07/16/20 Page 1 of 10
`
`
`
`United States of America,
`
` Plaintiff,
`
` v.
`
`Sidoo et al,
`
` Defendants.
`
`
`United States District Court
`District of Massachusetts
`)
`)
`)
`)
`)
`) Criminal Action No.
`) 19-10080-NMG
`)
`)
`)
`)
`
`
`
`MEMORANDUM & ORDER
`
`
`GORTON, J.
`The government has charged defendants with conspiring with
`William “Rick” Singer (“Singer”) to have their children
`fraudulently admitted to elite universities by, inter alia,
`fabricating applications, falsifying academic and athletic
`credentials, cheating on standardized tests, making payments to
`corrupt exam proctors and bribing university employees and
`athletic coaches. The defendants have moved to dismiss the
`indictment on the basis that venue is improper in the District
`of Massachusetts. For the following reasons that motion will be
`denied.
`I.
`Background
`The facts of this case have been extensively recited
`several times by this Court. See Docket Nos. 1169, 1334 and
`1373. Relevant to venue in this District, the Fourth
`-1-
`
`
`
`
`
`

`

`Case 1:19-cr-10080-NMG Document 1402 Filed 07/16/20 Page 2 of 10
`
`
`
`Superseding Indictment (“the FSI”) alleges that defendants
`engaged in the following acts in furtherance of the conspiracy
`to gain admission for their children to universities, including
`those located in the District of Massachusetts:
`
`(1) Defendants submitted fraudulent transcripts to
`universities, including those in the District of
`Massachusetts.
`
`(2) Singer mailed at least one check from Massachusetts to
`USC athletics administrator Donna Heinel in exchange for
`her participation in the “side-door” scheme.
`(3) Fraudulent ACT scores obtained by Mark Riddell (a corrupt
`test proctor) were submitted on behalf of defendant Chen
`via interstate wire to Emerson College in Boston,
`Massachusetts and on behalf of Defendant McGlashan to
`Northeastern University in Boston.
`(4) Defendant Wilson, via his company, wired funds totalling
`$1 million to an account, located in the District of
`Massachusetts, in the name of The Key Worldwide
`Foundation (“KWF”).
`(5) The high school transcript of Defendant Zangrillo’s
`daughter which reflected credits earned in a fraudulent
`class-taking scheme, was emailed by Singer’s associates
`to Boston University in Boston, Massachusetts.
`
`(6) Consensually recorded calls between Singer and a number
`of defendants occurred while Singer was located in
`Massachusetts.
`
`(7) Defendants conspired to conceal their payments by
`funneling them through The Key and/or KWF, both of which
`had accounts located in Massachusetts. The FSI alleges
`that Singer used those fraudulent entities to bribe
`athletic coaches and to conceal the scheme.
`
`Defendants protest that venue is improper in the District of
`Massachusetts as to Counts One, Two and Three. Count One of the
`
`
`
`
`
`
`
`- 2 -
`
`

`

`Case 1:19-cr-10080-NMG Document 1402 Filed 07/16/20 Page 3 of 10
`
`
`
`FSI charges the defendants with conspiracy to commit mail and
`wire fraud and honest services mail and wire fraud, in violation
`of 18 U.S.C. § 1349. Count Two of the FSI charges nine of the
`defendants with conspiring to commit federal programs bribery by
`bribing agents of the University of Southern California (“USC”)
`in order to secure the admission of their children to that
`university. Count Three of the FSI charges the defendants with
`conspiracy to commit money laundering in connection with
`payments made to KWF and The Key in furtherance of the
`admissions scheme.
`II. Motion to Dismiss for Lack of Venue
`A. Legal Standard
`
`The Sixth Amendment to the United States Constitution
`guarantees a defendant’s right to trial “by an impartial jury of
`the State and district wherein the crime shall have been
`committed.” U.S. Const. amend. VI. In order to address
`continuing offenses like conspiracy, Congress enacted 18 U.S.C.
`§ 3237(a) (1994) which states that:
`
`any offense against the United States begun in one district
`and completed in another, or committed in more than one
`district, may be inquired of and prosecuted in any district in
`which such offense was begun, continued, or completed.
`
`And, as set forth by Federal Rule of Criminal Procedure 18:
`
`Unless a statute or these rules permit otherwise, the
`government must prosecute an offense in a district where the
`offense was committed.
`
`
`
`- 3 -
`
`

`

`Case 1:19-cr-10080-NMG Document 1402 Filed 07/16/20 Page 4 of 10
`
`
`
`In a conspiracy prosecution, venue is proper “so long as
`any act in furtherance of the conspiracy was committed in the
`district.” United States v. Uribe, 890 F.2d 554, 558 (1st Cir.
`1989). A defendant need not have been physically present in the
`district. Id.; see also United States v. Josleyn, 99 F.3d 1182,
`1191 (1st Cir. 1996)(noting that “[a]s a general rule, venue in
`a conspiracy case depends upon whether an overt act in
`furtherance of the alleged conspiracy occurred in the trial
`district. The defendant need not have been physically present
`in the trial district during the conspiracy”)(internal citation
`omitted).
`
`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 (1952). A motion to dismiss for lack of venue should
`be granted, therefore, only if the “indictment does not
`‘sufficiently allege[ ] conduct occurring in the District of
`Massachusetts in furtherance of the conspiracy...’” United
`States v. Acherman, 140 F. Supp. 3d 113, 117 (D. Mass.
`2015)(quoting United States v. Condo, No. 11–cr–30017–NMG, 2014
`WL 1400817, at *1 (D. Mass. Apr. 7, 2014).
`
`
`
`
`
`
`
`- 4 -
`
`

`

`Case 1:19-cr-10080-NMG Document 1402 Filed 07/16/20 Page 5 of 10
`
`B. Application
`
`1. Count One
`
`Defendants’ argument that venue is improper as to Count One
`is premised on their contention that the government has failed
`properly to allege a single conspiracy. They maintain that
`because no single conspiracy exists, the Court must analyze each
`defendant’s distinct relationship to this District and that the
`specific allegations in the FSI are insufficient to establish
`venue as to each defendant individually.
`This Court has previously held that, on its face, the FSI
`adequately alleges a single over-arching conspiracy. Because
`the FSI properly alleges a single conspiracy, a single act in
`furtherance of the conspiracy by a co-conspirator in this
`District is sufficient to confer venue. See United States v.
`Santiago, 83 F.3d 20, 25 (1st Cir. 1996).
`As detailed above, the FSI alleges numerous acts by co-
`conspirators in furtherance of the conspiracy which occurred in
`Massachusetts. For example, in the case against Defendant
`Zangrillo, this Court previously explained that the FSI
`sufficiently alleges that when he submitted fraudulent
`transcripts to Boston University on behalf of his daughter, he
`did so as part of the larger fraud and in furtherance of the
`fraudulent scheme. Venue is therefore proper in this District.
`
`
`
`
`- 5 -
`
`

`

`Case 1:19-cr-10080-NMG Document 1402 Filed 07/16/20 Page 6 of 10
`
`
`
`2. Count Two
`Defendants next contend that venue in this District is
`improper as to the federal programs bribery conspiracy alleged
`in Count Two because (1) it is centered around the University of
`Southern California and (2) the FSI does not allege that overt
`acts in furtherance of that conspiracy occurred in
`Massachusetts.
`Specifically, defendants submit that the allegation that
`Singer mailed a check from Massachusetts to Heinel in exchange
`for facilitating the admission of Defendant Abdelaziz’s daughter
`to USC as a purported athletic recruit does not support venue.
`Defendants maintain that (1) the Singer-Heinel agreement was a
`separate and distinct arrangement formed after Singer had
`already agreed with the defendants to effectuate the over-
`arching admissions scheme and (2) because Singer was, at that
`point, a cooperating witness he cannot have been a co-
`conspirator.
`
`The government rejoins that (1) the Singer-Heinel
`arrangement was part of the larger conspiracy and (2) the fact
`that Singer was cooperating with the government when he mailed
`the check is irrelevant for the purpose of determining venue.
`The government further explains that all the overt acts alleged
`with respect to Count One are re-alleged and incorporated by
`reference in Count Two.
`
`
`
`- 6 -
`
`

`

`Case 1:19-cr-10080-NMG Document 1402 Filed 07/16/20 Page 7 of 10
`
`The FSI properly alleges that at the time Singer mailed the
`checks to Heinel a single over-arching conspiracy was ongoing.
`According to the government, those checks were sent in
`furtherance of that conspiracy, not as part of a distinct
`agreement. That the defendants may not have been aware of the
`exact arrangement between Singer and Heinel is immaterial at
`this stage. United States v. Berroa, 856 F.3d 141, 154 (1st
`Cir. 2017)(noting that “[t]he government need not show that . .
`. the conspirators knew all of the details of the conspiracy or
`participated in every act in furtherance of the conspiracy”).
`Whether the defendants were aware that their payments were going
`to corrupt insiders or possessed the requisite corrupt intent is
`an issue of fact for the jury. Because the FSI alleges that
`Singer mailed a January, 2019, check from Massachusetts in
`furtherance of the conspiracy, venue as to Count Two is proper.
`Moreover, that Singer was cooperating at the time he mailed
`the check does not negate venue in this District. As the Court
`has explained, the FSI properly alleges one over-arching
`conspiracy which includes Singer, the defendants and Heinel. As
`the government notes, the FSI alleges that all defendants and
`co-conspirators remained a part of the continuing conspiracy
`after Singer began cooperating with the government. See United
`States v. Portela, 167 F.3d 687, 700 n.8 (1st Cir. 1999)(noting
`that “[t]he rule that government agents do not count as co-
`- 7 -
`
`
`
`

`

`Case 1:19-cr-10080-NMG Document 1402 Filed 07/16/20 Page 8 of 10
`
`conspirators has relevance only in situations where the
`conspiracy involves only one defendant and a government
`informer.”); United States v. Cordero, 668 F.2d 32, 43 (1st Cir.
`1981). Because Singer mailed a check from Massachusetts in
`furtherance of the ongoing conspiracy, venue is proper in this
`District regardless of the fact that he may have been
`cooperating with the investigation at that time.
`3. Count Three
`
`Finally, defendants argue that the FSI’s allegations
`describing the money laundering conspiracy do not identify
`payments made to or from accounts located in this District. As
`the Court has previously held, the FSI sufficiently alleges a
`money laundering conspiracy. According to the government, the
`scheme operated in stages. Defendants first allegedly made
`payments to KWF and The Key with the intent that Singer would
`use the proceeds to pay Heinel and others. Singer then used
`that money to pay the corrupt insiders and effectuate the
`admissions scheme.
`The FSI alleges that Singer mailed a check to Heniel from
`Massachusetts and that Defendant Wilson made payments from
`accounts located in Massachusetts to Singer’s fraudulent
`entities. Both payments are alleged to have been made in
`furtherance of the money laundering conspiracy and establish
`that venue is proper in this District. Moreover, the FSI
`- 8 -
`
`
`
`

`

`Case 1:19-cr-10080-NMG Document 1402 Filed 07/16/20 Page 9 of 10
`
`alleges generally that Singer funneled bribes through his
`fraudulent entities to athletic coaches and administrators in
`the District of Massachusetts. Because, with respect to a
`motion to dismiss, the Court is to construe the allegations in
`an indictment as true, those allegations are sufficient to
`establish venue.
`4. Foreseeability
`
`Defendants next argue that even if the FSI properly alleges
`a single conspiracy, this Court should adopt the foreseeability
`test articulated by the Second Circuit Court of Appeals. United
`States v. Svoboda, 347 F.3d 471, 483 (2d Cir. 2003). The Second
`Circuit test requires that
`
`
`
`
`(1) defendant intentionally or knowingly causes an act in
`furtherance of the charged offense to occur in the district
`of venue or (2) it is foreseeable that such an act would
`occur in the district of venue.
`
`
`Id.
`
`
`As the government notes (and defendants concede) the First
`Circuit has not adopted such a foreseeability requirement and
`several other circuits have explicitly rejected such as test in
`the context of section 3237(a). See United States v. Renteria,
`903 F.3d 326, 329-30 (3d Cir. 2018); United States v. Gonzalez,
`683 F.3d 1221, 1226 (9th Cir. 2012). A foreseeability test is
`required by “neither the text of the Constitution nor of
`
`
`
`- 9 -
`
`

`

`Case 1:19-cr-10080-NMG Document 1402 Filed 07/16/20 Page 10 of 10
`
`§ 3237(a)” and this Court will not adopt such a test. Renteria,
`903 F.3d at 330.
`
`
`ORDER
`
`For the foregoing reasons, defendants’ motions to dismiss
`the indictment for improper venue (Docket No. 1019) is DENIED.
`
`
`
`
`So ordered.
`
`
`
`
`
`
`
`
`
`
`
`Dated July 16, 2020
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` /s/ Nathaniel M. Gorton
` Nathaniel M. Gorton
` United States District Judge
`
`- 10 -
`
`

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.

We are unable to display this document.

Connectivity issues with tsdrapi.uspto.gov. Try again now (HTTP Error 429: ).

Refresh this Document
Go to the Docket