In Slap At Varsity Blues Prosecutors, Judge Sentences Cooperator To 5 Months
US Attorney's Office Had Recommended No Prison Time
In a highly-unusual move, Judge Mark Wolf today sentenced Rudolph “Rudy” Meredith, the first and most important cooperating witness in the Varsity Blues investigation, to five months in prison. Judge Wolf imposed this sentence (which exceeds the sentence imposed on many other Varsity Blues defendants) despite the fact that the US Attorney’s Office had recommended a sentence of “time served” - meaning no additional jail time. This sentence almost certainly is a slap1 at the Varsity Blues prosecution as a whole — and makes future similar prosecutions less likely.
How did the Court impose 5 months in prison when both sides agreed that Mr. Meredith’s cooperation should be a “get out of jail free” card?
The fact that the Judge is not bound by the joint recommendation of the prosecutor and the defendant is a feature, not a bug, of plea agreements in the federal system. When a cooperating co-defendant “flips” and testifies against another defendant, the defense attorney will often cross-examine the cooperator by saying, “you’re only saying these things because you are getting a deal.” Not every cooperator is as good at defending that line of questioning as Steve Martin in My Blue Heaven. The defense attorney will ordinarily say that the cooperator is testifying to get the recommendation from the prosecutor for a lighter sentence.
Every federal prosecutor is trained to use the structure of the standard federal plea agreement to turn that line of questioning around. On re-direct, the AUSA will hold up the plea agreement and ask:
Q: Does your plea agreement guarantee you any particular sentence?
A: No, it does not.
Q: Under your plea agreement, do I [the AUSA] have the power to determine your sentence?
A: No.
Q: Who does?
A: Only the Judge.
Q: Do you know what the Judge is going to do with your sentence?
A: No.
Q: If the Judge sentences you to a term in prison longer than I recommend, do you get to withdraw your plea?
A: No.
This is usually very effective with juries in withdrawing the sting from the fact that the cooperator is getting a deal.2
The risk for the cooperating co-defendant is that, as Judge Wolf did here, the judge might utilize that discretion to impose a harsher sentence than the USAO and defendant have agreed upon.
Who is Judge Wolf?
Judge Mark Wolf is a legend in the District of Massachusetts. In 2011, the New York Times published an article calling him “The Judge Who Cracked the [Whitey] Bulger Case”3 From the article:
For anyone trying to fathom James (Whitey) Bulger’s long, pathological career on both sides of the law, a 661-page opinion by Mark Wolf, chief judge of the Federal District Court in Massachusetts, tells the inside story.
In 1998, the judge held a 10-month hearing on the F.B.I.’s failure to tell the United States attorney in Boston that Mr. Bulger and Stephen (the Rifleman) Flemmi were their informants against organized crime.
The judge uncovered that John Connolly Jr., the F.B.I. agent who was their handler, had protected Mr. Bulger, a 15-year informant, and Mr. Flemmi, a 25-year informant, as they committed murder and conspired with the Mafia, in exchange for leads about the Mafia. It was Mr. Connolly who tipped off Mr. Bulger that he was about to be indicted and sent him on the lam. Judge Wolf testified against the F.B.I. agent at a 2002 trial before another judge. Mr. Connolly was sentenced to 10 years for racketeering, obstruction of justice and making false statements to investigators.
To say the least, Judge Wolf is not a person who merely “rubber stamps” recommendations from AUSAs.
How does Meredith’s sentence compare to other Varsity Blues defendants?
Rudy Meredith will be spending much more time in jail than many of the defendants who pled guilty based upon the investigation sparked by his cooperation:
No jail, 1 year of probation - Peter Sartorio (parent); Bruce & Davina Isackson (parents), Laura Janke (USC Soccer coach), Ali Khosroshahin (USC Soccer coach), Niki Williams (college exam proctor);
No jail, 3 years of probation - Steven Masera (bookkeeper)
1 Day - Peter Dameris (parent), John Vandemoer (Stanford Sailing coach);
14 Days - Felicity Huffman (parent);
3 weeks - Jane Buckingham (parent), Marjorie Klapper (parent);
1 month - Gregory & Marcia Abbott (parents), Gordon Caplan (parent), Robert Flaxman (parent);
6 weeks - Diane Blake (parent), Elisabeth Kimmel (parent), Marci Palatella (parent), Homayoun Zadeh (parent);
2 months - Jeffery Bizzack (parent), Gregory & Amy Colburn (parents), Mark Houser (parent), Lori Loughlin (parent);
9 weeks - I-Hsin Chen (parent)
3 months (90 days) - Martin Fox (president of tennis academy), William McGlashan (parent), David Sidoo (parent);
4 months - Todd Blake (parent), Mark Riddell (test taker), Stephen Semprevivo (parent), Devin Sloane (parent);
5 months - Mossimo Giannulli (parent), Agustin Huneeus Jr. (parent), Michelle Janvas (parent), Karen Littlefair (parent), Rudy Meredith (cooperator), Xiaqoning Sui (parent - served in Spanish jail);
6 months - Michael Center (UT-Austin Tennis coach), Manuel Henriquez (parent), Toby MacFarlane (parent);
7 months - Elizabeth Henriquez (parent);
8 months - Jorge Salcedo (UCLA soccer coach);
9 months - Douglas Hodge (parent);
1 year & 1 day4 - Gamal Abdelaziz (parent);
15 months - John Wilson (parent); and
30 months - Gordon Ernst (Georgetown Tennis coach).
Mastermind William Rick Singer has yet to be sentenced. He cooperated against everyone listed above (except Meredith).
Why will Judge Wolf’s Sentence Make Future Similar Prosecutions Less Likely?
Although defense counsel always know that there is a risk that a judge will sentence a cooperator more harshly than expected, when it actually occurs it creates a feedback loop. When a potential cooperator asks his lawyer whether the risk of a longer sentence ever happens, the attorney (if ethical) must say yes and discuss the example. The potential cooperator and attorney may turn to the AUSA and say that they will not take a cooperating plea agreement unless the deal includes the right to withdraw the plea if the judge does not impose the agreed-upon sentence (as allowed under Federal Rule of Criminal Procedure 11(c)(1)(C)).
US Attorney’s Offices are reluctant to agree to pleas where the cooperator can withdraw the plea if unhappy with the sentence for two reasons:
The right to withdraw creates a much bigger opportunity for effective cross-examination of a cooperating co-defendant; and
When a cooperating co-defendant withdraws a plea at the end of a case, it creates procedural nightmares because so much what the US Attorney’s Office knows about the co-operator cannot be used at trial, directly or indirectly.
Sometimes, the USAO will simply decide to take a non-cooperating plea (or go to trial), rather than enter into a Rule 11(c)(1)(C) plea agreement. So, the potential co-operator is found guilty, but is not available to help make the case against others.
CONCLUSION: I certainly cannot read Judge Wolf’s mind. Pattern recognition tells me that Judge Wolf has seen just about enough of the Varsity Blues prosecutions, and is sending a strong message that the DOJ should not bring similar cases.
Jurors ordinarily still strongly distrust cooperating co-defendants, who have to admit that they are criminals. They usually have done very bad things, which they cannot sugar coat. My boss at the USAO taught me treat testimony from cooperators like “radioactive material” - it has to be kept in a secure container, and only taken out for a particular purpose (like giving an x-ray), or else it can kill you.
For those who do not know, Whitey Bulger was the notorious head of organized crime in Boston for about 20 years, before he spent 15 years on the run. Jack Nicholson’s character in The Departed was a thinly-disguised Whitey Bulger. Johnny Depp literally played Whitey Bulger in Black Mass.
By a quirk of federal sentencing law, 1 year and 1 day ends up being 10 months (because of good time credit), but 1 year = 365 days because there is no good time credit on sentences until they are over 1 year.