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Two federal judges in New Jersey handed down conflicting rulings Sept. 23 on whether the federal mail fraud statute can be used to prosecute those who cheat on standardized tests. The targets of the indictments are 60 Middle Eastern nationals arrested in May for paying imposters to take the Test of English as a Foreign Language, which helps colleges decide if foreign students have sufficient English-language proficiency. The students were enrolled at schools in 13 states and the District of Columbia, but all were prosecuted in New Jersey, where the testing company, Educational Testing Service of Princeton, is based. At issue is whether ETS’ interest in maintaining the integrity of its exam meets the statutory definition of a property interest under the law. Judge Stephen Orlofsky answered no and dismissed mail fraud charges against two defendants, Omar Alkaabi and Tarik Alsugair. Judge William Walls denied a motion to dismiss the indictment against another, Bashaar Abaalkhail. Orlofsky noted that the mail fraud statute, 18 U.S.C. 1341, “does not reach any scheme or artifice to defraud” but is “limited in scope to the protection of property rights,” citing McNally v. United States, 483 U.S. 350 (1987). The asserted ETS interest lacks exclusivity and transferability, two of the hallmarks of traditional property rights, Orlofsky said. The company’s right to the integrity of the test is not exclusive because it is shared with the many colleges that use the test, and its interest is not transferable because it cannot be sold on the open market. In the Abaalkhail case, though, Judge Walls equated the testing company’s property interest in the integrity of its exams to goodwill. Defense lawyer Robert Stevens, of Fruehling & Stevens in Madison, N.J., had argued that goodwill is not property interest by itself but a component of property interest, and further that defrauding the exam did not take the interest away. “This alleged use by your client impairs the value of the property, whether it be considered good will, whether it be considered lack of confidence or what, it impairs the value of the property,” Walls told Stevens. “Now, however someone who is smarter wants to term it, that’s all well and good. It is the impairment of the value of the property if the allegations are demonstrated.” Walls seemed to expect an appeal in the case, saying, “I tell you one thing, Philadelphia awaits you.” Walls ended the hearing by saying, “Take the appeal, Mr. Stevens. You never know.” Stevens says he is reviewing the ruling and will confer with his client on whether to go to the 3rd U.S. Circuit Court of Appeals. OTHER DEFENDANTS’ FATES IN BALANCE The U.S. Attorney’s Office is weighing whether to seek new indictments against Alkaabi and Alsugair, says Michael Drewniak, a spokesman for U.S. Attorney Christopher Christie. “We don’t at all view the adverse decision as fatal to these cases,” he says. “A potential remedy is to seek a superceding indictment.” That’s why those who came out winners in the rulings aren’t celebrating yet. “I haven’t heard from the government but I’m sure they’re going to reindict my guy,” says Paul Fishman, a partner at Newark, N.J.’s Friedman, Kaplan, Seiler & Adelman, who represents Alsugair. “My guess is they’ll refine their theory of mail fraud in an attempt to look for something to indict him on.” Lawyers for the other indicted students are awaiting the government’s next move. The students’ cases are distributed among nearly all the district judges in New Jersey, with one or two defendants assigned to each judge. Drewniak says the decision to distribute the cases among the state’s entire federal bench was made by the court clerk’s office. Clerk William Walsh could not be reached for comment, but defense lawyers say the arrangement promotes chaos. “It’s very unusual that the court as a whole risks so many different decisions,” says Bruce Rosen, a partner with McCusker, Anselmi, Rosen, Carvelli & Walsh in Chatham, N.J., who represents one of the students before Judge Joel Pisano. Rosen says he wrote to Chief Judge Edward Becker asking for the cases to be combined, but was turned town. “It’s a funny way to prosecute the case,” adds Jean Barrett of Ruhnke & Barrett in Montclair, N.J., and the attorney for another student. “It certainly isn’t convenient. I don’t know whether it will make a difference in the outcome.” About half of the students charged are from Saudi Arabia, but others are from Egypt, the United Arab Emirates and Turkey. The government says two men, Mahmoud Firas, 36, of Riverside, Calif., and Begad Abdel-Megeed, 21, of Alexandria, Va., traveled around the country taking the TOEFL under various names for pay. The exam scores were mailed to a post office box in California, then mailed in a phony ETS envelope to the student’s college. College admissions for foreign students are generally conditioned on demonstrating English proficiency. Apart from the matters pending in New Jersey, there are no reported cases in the United States on students indicted for cheating on a standardized test, says Lawrence Lustberg, a partner at Gibbons, Del Deo, Dolan, Griffinger & Vecchione in Newark. Orlofsky accepted an amicus brief that Lustberg filed on behalf of the Royal Embassy of Saudi Arabia seeking dismissal of the indictments. Lustberg also procured defense counsel for the Saudi defendants on behalf of the embassy. Lustberg says he knows of another standardized test cheating ring uncovered by the U.S. government in 1996 in which participants were charged with federal crimes, but the students who hired an impostor to take tests were not indicted, he says. Some of the defense lawyers say that the TOEFL defendants were charged because of their ethnicity. “If this was an American kid cheating on the SATs, they would not be accused of mail fraud. These are Saudis and Kuwaitis and other Middle Eastern people and they are being singled out, post-9/11,” Rosen says. “I think this was a regrettable overreaction on the part of the government to a perceived threat from the Middle East,” adds Barrett. “I was so surprised to learn that cheating on a test is a federal crime.” In response, Drewniak says he cannot comment except to say, “In our view, these individuals broke the law, so they should expect attention drawn to them.”

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