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A trial opening in Camden, N.J., this week will showcase the first use of the federal mail fraud statute to prosecute students for cheating on standardized tests. The defendant, Hany Al-Hedaithy, is one of about 60 Middle Eastern students indicted last March on charges of hiring impostors to take the Test of English as a Foreign Language. The TOEFL is a hurdle for entry to most U.S. colleges. U.S. District Judge Joseph Irenas will first dispose of a preliminary motion. Al-Hedaithy, like other defendants, has moved for discovery on whether he was singled out for prosecution based on race or ethnicity, since this use of the mail fraud statute appears unprecedented. In his discovery motion, Al-Hedaithy’s lawyer, Donald Randolph of Santa Monica, Calif., says the facts satisfy the U.S. Supreme Court’s two-prong test for selective prosecution in United States v. Armstrong, 517 U.S. 456 (1996): first, that similarly situated people of other races could have been prosecuted but were not; second, that decision makers acted with a discriminatory purpose. As for the second prong, Randolph cited an Associated Press article quoting U.S. Attorney Christopher Christie as stating “the arrests were part of a strategy to arrest potential domestic terrorists before they can strike.” Randolph wrote, “In the absence of a suggestion that there is any basis whatsoever to connect these defendants with terrorism, other than the fact that they are Arabs, the government’s statements — one of which was made by the United States Attorney for this district — constitutes evidence of an impermissible discriminatory purpose.” In response, Assistant U.S. Attorney Amy Winkelman said that “a high level of judicial deference towards the prosecutor’s decision-making process is not only constitutionally required — it is also unavoidable, because only the prosecutor is positioned to assess the many factors that go into initiating a criminal case.” Last September, U.S. District Judge Stephen Orlofsky of the District of New Jersey dismissed mail fraud charges against two other defendants, finding that the 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,” and the test company, Educational Testing Service of Princeton, N.J., did not meet that threshold. After Orlofsky’s ruling, prosecutors issued superseding indictments in all the cases, charging the defendants obtained materials bearing ETS’ trademark and copyright and received “the benefit of the value of ETS’s goodwill, which is an asset of ETS and is based in part on maintaining the integrity of the testing process.”

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