Nina Marino

Marino, who launched the white collar criminal defense boutique Kaplan Marino with husband Richard D. Kaplan in 1998, said she learned long ago that in dealing with government indictments, thorough and painstaking preparation is key.

“It often pays to look under every rock. You never know what you’ll find,” she said. So when Northern District prosecutors charged her client with submitting false customs declarations for 51 Hermès handbags worth tens of thousands of dollars each allegedly smuggled into the U.S. from Europe and Asia, she had the bags appraised in July 2020.

“Turns out 90 percent of the bags are fake, undermining the government’s entire case,” she said. Many of the bags appraised at around $200; several were authentic. “They said that a Hermès lawyer did a video appraisal and found they were all real, but we used a licensed appraiser from an auction house. They’re trying to salvage their case, and we say, ‘Game on.’” U.S. v. Ackerman, 18-cr-00118 (N.D. Cal., filed March 16, 2018).

Marino represents a top USC sports administrator, Donna Heinel, in the Varsity Blues admissions bribery case. Federal prosecutors charged her with serious felonies including RICO offenses, federal programs bribery and mail fraud carrying a sentence of up to 19 years in prison. Heinel has pleaded not guilty. U.S. v. Ernst et al., 19-cr-10081 (D. Mass., filed March 5, 2019).

The case was seriously overcharged, Marino contends. “I’ve always been a criminal defense attorney, though most of my colleagues in the white collar bar are former U.S. attorneys, and it really bothers me to see the government overreaching. It’s such an affront. To charge this as a RICO case was staggering.” Since the indictments were handed up, Marino has twice filed motions to dismiss and the government has twice come back with superseding indictments.

In her latest dismissal motion, which she called “bigger and badder” than the first, Marino argued that the defendants are unrelated and unfairly accused of a concerted conspiracy, and she attacked the charges as “an unprecedented attempt to wildly expand the application of the RICO statute to every fraud-based act involving multiple individuals.” The defendant named first in the indictment, Gordon Ernst, was a Georgetown University tennis coach.

Following a three-hour Zoom hearing in June, U.S. District Judge Indira Talwani of Boston did not rule on dismissal. Instead, she ordered the parties to submit proposed jury instructions in anticipation of a trial. “She cut to the chase,” Marino said. “She wants the instructions in order to see what the government would have to prove to sustain the indictment. I think she’ll see that the government still hasn’t cured its fatal defects.”

— John Roemer