FILE – In this Aug. 7, 2015 photo, Philip Esformes arrives at the 15th Annual Harold and Carole Pump Foundation Gala held at the Hyatt Regency Century Plaza, in Los Angeles.
Rob Latour | Invision | AP
The Supreme court declined to hear an appeal from Florida nursing home owner Philip Esformes, whose 20-year prison sentence for a $1.3 billion Medicare fraud scheme was commuted by former President Donald Trump late of 2020.
The high court’s action earlier this week sets the stage for Esformes — who an FBI agent once described as “a man driven by almost limitless greed” — to be retried in Miami federal court on six counts. health care criminal charges that the jury in his first trial deadlocked.
If he is found guilty, the Supreme Court will likely be asked to decide whether the case should be thrown out because of Trump’s clemency and another issue.
The Department of Justice’s insistence on retrying Esformes on deadlocked charges after his criminal sentence was vacated is highly unusual — and possibly unique — in American legal history, and has raised claims that the DOJ fueled animus against Trump.
A group of Republican former attorneys general, and an ex-FBI director supported Esformes’ efforts to drop the case.
A lawyer for Esformes had no immediate comment on the Supreme Court’s refusal to hear his appeal. The DOJ and the prosecutor overseeing Esformes’ case did not immediately return a request for comment.
It remains to be seen if Esformes will be re-examined.
In a joint court appearance Thursday, prosecutors and Esformes’ lawyers asked a judge to postpone a scheduled teleconference in the case from next Monday until late January.
The filing said, “The parties have initiated dialogue regarding the issues inherent in this matter, and wish to have the opportunity to continue such dialogue.”
“In light of the upcoming holidays, and the complexity of some of the issues at issue, the parties respectfully request that the Court continue the status conference in this matter until January 29,” the filing said.
CNBC asked Esformes’ attorney if that language refers to actual or potential plea talks.
In its action this week, the Supreme Court denied Esformes’ request that it review an 11th Circuit Court of Appeals decision in January upholding his first-trial conviction on charges including fraud, money laundering, and receiving illegals. that kickback.
As is usual with such petitions, the Supreme Court did not explain why it was not hearing the challenge.
Attorneys for Esformes unsuccessfully argued to the 11th Circuit appeals court that the case should be dismissed because of prosecutorial misconduct that occurred before his trial. Esformes also unsuccessfully challenged a judge’s order that he pay $44 million in fines and forfeiture.
The 11th Circuit said in its decision that it did not have jurisdiction — yet — to decide whether the DOJ’s decision to retry Esformes on the hung counts was demonstrated by Trump granting him clemency.
Esformes’ lawyers argued that a retrial would violate Trump’s clemency act, as well as the US Constitution’s double jeopardy clause.
But a panel of 11th Circuit judges ruled that because Esformes had not yet been convicted on the hanging counts, it was too early to decide whether the prosecution was barred by the issues raised by his attorneys.
There is no federal law that says prosecutors can’t retry a defendant on charges deadlocked by a jury after a president commutes their sentence for other counts on which they were convicted. And no federal court has addressed that question.
The DOJ said in court filings that Trump’s commutation of Esformes’ sentence applies only to the counts for which he was convicted.
Prosecutors also said that if Trump wanted to pardon him on the counts he would have said so, noting that “on the same day President Trump commuted Esformes’ prison sentence, he issued 15 pardons, which each states that he gives ‘full and unconditional forgiveness’ to the recipient.”
Esformes was convicted in 2019 of 20 criminal counts in connection with what the DOJ said was the largest health care fraud scheme ever prosecuted by the department.
The DOJ said that over two decades Esformes and his accomplices cycled thousands of Medicare and Medicaid patients through a network of nursing and assisted living facilities despite the fact that they did not qualify for such care.
With the proceeds of the scheme, prosecutors said, Esformes financed a lavish lifestyle that included a $1.6 million Ferrari Apera automobile, a $360,000 Greubel Forsey watch, and the services of female escorts.
Prosecutors also said Esformes paid $300,000 in bribes to Jerome Allen, then the coach of the University of Pennsylvania’s men’s basketball team, who helped get Esformes’ son into the university’s Wharton School of Business by falsely claim that he is an important basketball recruit.
