The college bribery prosecution which has made splashy headlines now for several years and the college bribery prosecution likely has caused more than a few uncomfortable moments between relatives or friends when asked “do you think they should be prosecuted” has just thrown us a 12 to 6 curve ball.
Recently, the defense filed motions to dismiss the indictment in the college bribery prosecution for government misconduct. More specifically, the motion alleges that, based on notes taken by Singer contemporaneous with meetings with the FBI and prosecutors, the FBI handlers of the lead informant, Singer, coerced or pressured Singer into lying on phone calls with the defendants about the nature of the payments (for example, were the payments going to be made to the college or to the coach himself). The defendants’ understanding of the nature of those payments, to whom they were made, and the intended purpose of the payments, are at the core of the prosecution’s college bribery and wire fraud allegations. In a very recent Order from Judge Horton, the judge took these allegations in Singer’s notes very seriously and entered an order requiring the government to file a response to what he considered “very disturbing.
The allegations of misconduct in the college bribery prosecution, if true, are significant for several reasons.
First, if Singer told the FBI and the prosecutors that Singer advised his clients to make donations to the program, and not to him personally, then there was no conduct which could be considered bribery prior to the use of Singer as an informant. Such conversations and any notes from proffers with the Government that included this information – that Singer had told the FBI that his clients’ understanding was that the payments were donations to collegiate programs — should have been disclosed to the defense as part of their obligations under Brady at the commencement of the case, not years later.
There is an interesting legal issue here that was not fully briefed because Singer’s attorney voluntarily produced his notes. If Singer had taken the notes which were included in the defense motion at the direction and on the advice of counsel, then the notes at a minimum deserve work product and attorney client privilege protection. Nonetheless, if those same noted – as appears to be the case –have the potential to exonerate, exculpate, or significantly undermine part of the government’s case then those notes should be considered Brady information and presumably, in this author’s view, the constitutional status of Brady should trump the attorney client protections guarding the sanctity of Singers’ notes.
Second, if Singer had initially told his clients one thing – the payments are donations to the program – but then, only after government intervention and script writing, had attempted to engage his clients in illegal conduct, then there is an open question as to whether this constitutes entrapment and whether the defense has a bona-fide entrapment defense because, under this scenario, the client is not predisposed to committing any illegal activity. To the contrary, the client has in their mind only engaged in legal activities. How many calls did Singer make to a specific client requesting that he or she engage in illegal conduct, what their response was, etc. How much pressure did the Government apply via Singer?
Third, assume the misconduct motion and the entrapment defense are out- the judge isn’t dismissing this case and he isn’t giving an entrapment instruction to the jury – well how about Singer? How can the Government put on their case and prove it beyond a reasonable doubt with the cross-examination material that the defense will now wield against Singer? Will they even call Singer? Singer made “controlled calls” to the defendants which means at least 1 agent was contemporaneously listening to and recording the calls with the defendant. In this scenario, the government could call the agent to testify as to a specific conversation and the government could introduce the transcripts of Singer through the agent. But, even if they tried that, any jury should immediately begin to question the credibility of this prosecution. Further, the defense could take advantage of Federal Rule of Evidence 806 since all of Singer’s statements (even if he is not there) are out of court statements that can be used. Indeed, under 806, Singer’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if Singer had testified as a witness. The court may admit evidence of the Singer’s inconsistent statement or conduct, regardless of when it occurred or whether Singer had an opportunity to explain or deny it.
Should be interesting to see how all of this develops. Stay tuned. The Firm represents persons charged with or under investigation with federal crimes including federal bribery offenses. The Firm however has never represented anyone charged with federal bribery or wire fraud related to supposedly cheating on their SAT’s or paying a coach a fake donation to be admitted to a specific college. Nor does the Firm believe many, if any, cases like this not involving celebrities will surface before grand juries to consider and convert into indictments.