MIAMI — In a politically fraught Medicare fraud case, a deal appears to be in the works between the Justice Department and a South Florida health care executive whose 20-year prison sentence was commuted by former President Donald Trump, according to law enforcement sources familiar with the negotiations. Philip Esformes still faces a potential retrial on charges that deadlocked during his first trial.
A retrial of Esformes, who claims that Trump’s commutation protects him against double jeopardy for being charged for the same crime, would likely be an abridged version of his first trial. But at this stage, both sides don’t appear up to a redo of the exhausting original trial.
A plea deal, a more likely scenario that would require approval at the highest level of the Justice Department, is expected to include dropping the six hung counts against Esformes, giving him credit for his four-plus years previously served behind bars, and requiring payment of financial penalties totaling $44 million. He would also have to give up his final appeal to the U.S. Supreme Court.
Both sides are not talking, but the court docket in Miami federal court shows they have repeatedly delayed a critical hearing with U.S. District Judge Robert Scola to set a new trial date because they’re apparently negotiating a deal — possibly to avoid the retrial, sources told the Miami Herald.
“The parties have initiated dialogue concerning issues inherent in this matter, and wish to have the opportunity to continue such dialogue,” according to their latest filing, which echoes the same language in several prior motions to delay the hearing on setting a date for the retrial of Esformes. The hearing was supposed to happen Monday, but Scola delayed it.
Since his release from prison, Esformes, 54, has kept a low profile, living in Palm Beach County and devoting himself to his Jewish faith. Yet despite his apolitical past, Esformes has evolved into a curious cause celebre for right-wingers on Capitol Hill and in the blogosphere. He has failed to have his conviction and fines overturned by a federal appeals court in Atlanta and to have the U.S. Supreme Court put that decision on hold. As result, federal prosecutors can legally move forward with retrying Esformes — or striking a possible plea deal with him, according to sources familiar with the negotiations.
Seven years ago, top Justice Department prosecutors traveled to Miami for a news conference to unveil the $1 billion health care fraud case against Esformes, touting it as the biggest Medicare crime in history.
The first trial
When the former Miami Beach executive’s trial ended in 2019, Esformes was found guilty of 20 of 26 counts, including paying bribes, receiving kickbacks, committing money laundering and obstructing justice. But the 12-person jury deadlocked on the main health care conspiracy charge, which accused him of recycling thousands of patients from a local hospital to his Miami-Dade chain of skilled-nursing and assisted-living facilities in a scheme to bill Medicare excessively.
Although he dodged that main charge, Esformes was sentenced to 20 years in prison and ordered to pay $5.5 million to Medicare and an additional $38.7 million fine to the U.S. government — the amount of his ill-gotten gains from the taxpayer-funded health insurance program.
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