Federal subpoenas call for U fraud files

Kristin Gustafson

A federal grand jury is probably the most forceful evidence-gathering power in America, and last week the University got a dose of this strength as it was asked to turn over all evidence gathered from its men’s basketball scandal investigation.
The FBI and the U.S. Postal Service teamed up to serve the University with two federal subpoenas Tuesday and ordered a turnover of every file concerning academic fraud from 1990 until the present — including information withheld from the public.
The subpoenas also commanded the University to provide any and all information regarding former Gophers basketball player Bobby Jackson’s academic eligibility.
“We’re of the view that this is an unusual step. The University has publicly stated before that academic misconduct is an academic matter,” said University General Counsel Mark Rotenberg. However, Rotenberg, who was named in both subpoenas, said he will comply with the request by the government’s April 18 deadline.
The federal criminal case, which University officials said does not target current University staff, faculty or students, might involve mail fraud, said Tonya Moten Brown, the University’s vice president who oversees athletics.
The Postal Service is traditionally the investigating agency to conduct criminal investigations of mail fraud, said Jan Symchych, head of the White Collar Crime and Civil Fraud group at the Dorsey & Whitney law firm.
One subpoena specifically requested documentation related to Jackson’s course work and academic eligibility. It specifically noted two correspondence courses — involving mailing course work — Jackson took in 1995 to make him eligible for basketball. If fraud occurs through the mail, it becomes a federal offense and makes federal intervention possible.
However, FBI Special Agent Paul McCabe said the fact of the two agencies working together did not necessarily mean mail or wire fraud, and the cooperation among federal agencies is more reflective of staffing issues than an indication of the crime targeted for investigation.
“Most white-collar cases, we look at those angles. It’s not unusual at all,” McCabe said. “We don’t have to have the Postal Service to charge a mail-fraud case.”
Yet most often when the two agencies do team up, they are dealing with mail fraud, Rotenberg said. But beyond that legal guess, Rotenberg said he did not know what direction the federal grand jury was headed and would not speculate further.
Pivotal role for a point guard
It was after a basketball tutor came forward in 1999 and admitted writing more than 400 papers for student-athletes during a five-year period that the University launched its nine-month $2.2 million investigation into the allegations.
Jan Gangelhoff’s revelation eventually led to the buyout of former men’s basketball coach Clem Haskins’ contract, the resignations of three athletic officials and a restructuring of the University’s athletic program. The entire basketball coaching staff, except for the trainer, have since left the University as well.
The final investigative report named 18 student-athletes and five professors as participating in some form of academic cheating between 1994 and 1999. The report also stated during that same period, the University’s men’s basketball team competed with ineligible players.
Jackson attended the University between 1995 and 1997, after transferring from the Western Nebraska Community College. Gangelhoff said she did some of his assignments.
Jackson said the former tutor simply typed the papers he wrote himself.
In addition to his classes, the subpoena asked for Jackson’s transcripts from both institutions and any documents regarding his eligibility to play basketball.
Jackson had academic eligibility problems in 1995 when he transferred to the University. The University’s report concluded that Haskins manipulated academic policies to keep players eligible.
“I believe I read that Haskins had access to grades but not routine access to grades,” Rotenberg said.
Although the University’s academic misconduct investigation focused in part on Jackson, University officials expect the federal criminal case to be more far-reaching.
“Federal criminal procedures are more thorough and coercive than any procedures we have as an educational institution,” Rotenberg said.
Legal fuel to the fire?
The criminal case has no bearing on the active NCAA investigation that was initiated after the academic misconduct surfaced, Rotenberg said. It also does not impact any potential lawsuit the University might bring against former coach Clem Haskins to recoup his $1.5 million severance package.
However, if Haskins was criminally convicted of fraud by a federal grand jury, it might help a University fraud lawsuit.
After having met with NCAA enforcement staff Friday morning, Brown said she expected the association to issue its official inquiry within a month. The NCAA’s investigation as to whether its rules were violated will continue regardless of the federal case findings, she said.
Though Rotenberg would not speculate where the federal grand jury is headed with its investigation, he said some elements of the University’s basketball scandal are similar to one at Baylor University in Texas.
In this 1996 federal case, three assistant basketball coaches were convicted of mail fraud related to player’s academic eligibility.
“Looking at that case and the very similar parallels … with what was reported from the investigation of the basketball academic misconduct at the University of Minnesota, leads you to believe that that’s where the grand jury may be looking,” Symchych said.
The Baylor case is the only successful case to prosecute mail fraud for academic eligibility based on a common legal theory — deprivation of honest and faithful services.
There, the coaches were found guilty of helping five players, recruited from two-year colleges, to obtain credits needed for eligibility and possibly scholarships by providing written course work or answers to correspondence exams, which were falsely sent as the students’ work.
If the government intends to go this route, it will need to prove criminal intent beyond a reasonable doubt. In the Baylor case, the head basketball coach was acquitted by the jury because of insufficient evidence.
Haskins exited the University without any accusation of wrongdoing. Not until the University’s investigation was completed in November did the University blame Haskins for cheating. Yet the investigation, with its weak arm of justice and refusal to buy the testimony of witnesses, was stunted in its reach.
No private or public entity has the same level of power as a federal grand jury to compel people to talk or provide evidence, Symchych said.
So as the federal investigation unfolds, she said, “you might see people who withheld information, or who weren’t totally forthcoming … be induced to do that as a means of negotiating with the federal government.”

Kristin Gustafson welcomes comments at [email protected] V. Paul Virtucio welcomes comments at [email protected]