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Lawrence Lustberg has picked up a book of business that most criminal lawyers would not dare dream of: He’s counsel to a kingdom. Retained by the Royal Embassy of Saudi Arabia in June, the Newark, N.J., lawyer has been lining up individual defense lawyers for 27 Saudi students charged with cheating on English language proficiency tests given by the Princeton, N.J.-based Educational Testing Service. The Saudis are among 56 Arab and Muslim students across 13 states arrested in May and indicted with conspiracy to commit wire fraud. Lustberg has also filed an amicus brief on behalf of the embassy before U.S. District Judge Stephen Orlofsky in Camden, N.J. The Saudi government is paying part of the fees incurred by its 27 nationals. “They’re at least advancing counsel fees. They may seek reimbursement,” says Lustberg, adding, “That’s something an American embassy would do for you if you were abroad. It’s not unusual.” He says that each defense lawyer can set his or her own fee; there is no standard rate. Lustberg says the accused students needed help from the embassy because they had difficulty locating local lawyers. “All of them were arrested in various locations around the country where they went to school,” says Lustberg, of Gibbons, Del Deo, Dolan, Griffinger & Vecchione. “Not one of them is from New Jersey. The only reason this matter is venued in New Jersey is because ETS happens to be here.” The Saudis initially approached Malea Kiblan of Kiblan & Battles in McLean, Va., who frequently works with the embassy. She referred them to Lustberg. “My concern is to find quality lawyers to represent our clients,” she says. “We came to the conclusion that it was best that [Gibbons Del Deo] not take individual clients but help us find competent counsel in New Jersey,” says Kiblan. She adds that it is not unusual for the Saudi government to assist its citizens with legal problems, but the number of cases is out of the ordinary. Lustberg says his role will be as a conduit and resource for advice for all the other attorneys, and as a central coordinator. Some of the students have immigration issues, and he’s provided advice on that. “We provide general logistical support, advice, communication,” Lustberg says. SELECTIVE PROSECUTION SUGGESTED The Saudi students are accused of paying others to impersonate them during Test of English as a Foreign Language (TOEFL) exams. The results are relied on by schools and universities in deciding admission. Status as a student is often crucial for foreign nationals hoping to maintain their visa status in this country. On July 12, Lustberg and Gibbons Del Deo associate Thomas Valen filed an amicus brief on behalf of the Saudi government, in United States v. Omar Alkaabi a/k/a Omar Al-Kaabi, No. 02-370, seeking dismissal of the indictments on the ground that having an imposter take a test is not a crime because ETS was not defrauded out of money nor property as required by the wire-fraud statute, 18 U.S.C. �� 1341, 1343. They also say that because no one else has been charged with wire fraud for cheating on ETS exams, the indictments are “contrary to fundamental principles of fair warning and limited prosecutorial discretion that are at the heart of the Due Process Clause of the Fifth Amendment.” “That statute is notorious for its breadth and the concomitant potential for its abuse … the government has all but acknowledged that these defendants are being prosecuted because of their race or national origin, apparently assuming that all Arab nationals are ‘potential terrorists,’” the brief continues. In reply, Assistant U.S. Attorney Amy Winkelman argues that ETS has a “property interest in maintaining the integrity of the testing process.” On the issue of whether the indictments push the envelope, Winkelman says Lustberg is attempting a sly procedural maneuver that is really a matter for the full trial. “Such dismissals may not be predicated upon the predicted insufficiency of the presumed trial evidence to prove the indictment’s charges,” she writes. In the amicus brief, the Saudi government, already embarrassed before the indictments because a majority of the Sept. 11 hijackers were from the kingdom, takes issue with U.S. Attorney Christopher Christie and the Department of Justice having raised a connection to the war on terrorism in announcing the arrests. “Michael Chertoff, the assistant U.S. attorney general overseeing the terrorism probe, called the exploitation of the student visa system ‘a threat to our national security,’” ran a press release issued by the U.S. attorney’s office. But the indictments themselves don’t make such allegations. “Not a single one of our Saudi defendants has been in any way linked to terrorism,” Lustberg says. “They’ve all been released on bail, which presumably they would not be if there were any demonstrable link to terrorism. That argument would not even be made but for the fact that they are Saudis.”

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