DOJ plans to retry Philip Esformes despite Trump commuting sentence

Philanthropist Philip Esformes attends the fifteenth annual Harold & Carole Pump Foundation gala on the Hyatt Regency Century Plaza on August 7, 2015 in Century City, California.

Tiffany Rose | Getty Images

A extremely uncommon transfer by the Justice Department to retry Florida nursing dwelling proprietor Philip Esformes on health-care fraud prison costs after then-President Donald Trump commuted his 20-year jail sentence is headed to an appeals court docket listening to as protection attorneys recommend prosecutors are motivated by anger at Trump.

“The situation is entirely unique because the actions of the prosecutors here are incredibly outrageous,” mentioned Joe Tacopina, a number one New York prison protection lawyer.

“There’s no question in my mind that the [Justice Department’s] flagrant disregard of President Trump’s clemency order is motivated by acrimony towards him,” mentioned Tacopina.

Tacopina shouldn’t be representing Esformes within the case. But he’s helping Esformes’ new staff from the Reed Smith legislation agency in making ready for the federal appeals court docket listening to subsequent month in Miami.

He mentioned prosecutors are engaged in an “obvious vendetta” towards the previous president for letting Esformes out of jail after a years-long prison case.

“And if there’s any question about that, what the prosecution is doing here against Mr. Esformes is unprecedented,” Tacopina mentioned. “He’s clearly a political casualty of partisan games.”

The Justice Department and a spokeswoman for the Miami U.S. Attorney’s Office, which is prosecuting the case, didn’t reply to requests for touch upon these claims.

At challenge is the Justice Department’s plan to retry Esformes on six prison counts that jurors at his Florida federal court docket trial deadlocked on, at the same time as they convicted him of 20 different crimes.

Tacopina and different advocates for Esformes say that effort shouldn’t be authorized, because it flies within the face of what they argue was Trump’s clear intent to put an finish to the case by commuting his sentence.

Trump didn’t reply to a request for remark.

Esformes’ attraction motion, which seeks to overturn his conviction and argues that his retrial is barred, additionally says the case must be tossed out altogether due to prosecutorial misconduct.

The protection staff faces a doubtlessly daunting problem in profitable its argument towards a retrial on the grounds of Trump’s clemency.

There is not any federal statute that explicitly says prosecutors can not retry a defendant on so-called hung counts after they have had their sentence commuted by the president for counts on which they have been convicted.

Nor is there federal case legislation that gives steerage on that query, as a result of Esformes’ scenario is outwardly the primary time the problem has arisen.

Presidential pardons, however, bar prosecutors from lodging federal costs towards defendants for a similar conduct that was the topic of their pardon.

Prosecutors, in a court docket temporary replying to Esformes’ attraction, wrote, “The President’s commutation order does not impact any of the counts on which the jury failed to reach a verdict.”

“By its plain terms, the President’s commutation order is expressly limited to the counts of conviction.”

In the identical temporary, prosecutors wrote, “If President Trump had intended to grant Esformes a pardon, or if the President had intended to grant Esformes clemency on the hung counts, he would have communicated as much in the clemency warrant.”

“Indeed, on the same day President Trump commuted Esformes’s prison sentence, he issued 15 pardons, each of which stated he was granting a ‘full and unconditional pardon’ to the recipient,'” they added.

Former U.S. President Donald Trump leaves Trump Tower to meet with New York Attorney General Letitia James for a civil investigation on August 10, 2022 in New York City.

James Devaney | GC Images | Getty Images

Esformes was one of many dozens of individuals to obtain govt clemency, which included pardons and sentence commutations, from Trump in his final months of workplace after he misplaced a re-election bid to President Joe Biden. Before that flurry of clemency actions, Trump was notably stingy with them, even compared to different one-term presidents.

The Justice Department, when it obtained an indictment of Esformes, mentioned he was on the prime of the biggest health-care fraud scheme ever prosecuted by the division. The division mentioned the scheme spanned twenty years and concerned an estimated $1.3 billion in losses as the results of fraudulent claims to Medicare and Medicaid, the federal medical health insurance applications that cowl older and low-income Americans, respectively.

With the proceeds of these crimes, authorities mentioned, Esformes purchased a $360,000 Greubel Forsey watch, a $1.6 million Ferrari Aperta car and paid for feminine escorts, in accordance to the indictment.

He additionally paid $300,000 in bribes to then-University of Pennsylvania’s males’s basketball coach, Jerome Allen, who helped get Esformes’ son admitted to that Ivy League faculty’s Wharton School of Business by falsely claiming he was a prized basketball recruit, prosecutors mentioned.

Allen pleaded responsible in 2018 to a single depend of cash laundering, was sentenced to 4 years of supervised launch, and ordered to pay a high quality of greater than $200,000.

Allen, who’s at the moment an assistant coach on the NBA’s Detroit Pistons, in 2020 was hit by the National Collegiate Athletic Association with a 15-year show-cause penalty — tied for the NCAA file — which most often successfully bars coaches from being employed by a school throughout that point interval.

In 2019, Laura Janke, a former assistant ladies’s soccer coach on the University of Southern California, pleaded responsible as a part of a nationwide faculty admissions scheme masterminded by the school preparation advisor William “Rick” Singer. That scheme was uncovered by federal authorities earlier that yr in “Operation Varsity Blues.”

William “Rick” Singer leaves the federal courthouse after going through costs in a nationwide faculty admissions dishonest scheme in Boston, Massachusetts, U.S., March 12, 2019.

Bryan Snyder | Reuters

At her plea listening to, a prosecutor mentioned that Esformes’ daughter was among the many 4 college students that Janke assisted in acquiring admission to USC underneath bogus athletic {qualifications}. Esformes reportedly paid $400,000 over a number of years to a basis managed by Singer, which was used to launder cash from purchasers and dole out bribes to get college students admitted to faculty.

When Esformes was convicted in 2019 within the health-care fraud case, after a trial wherein Allen was one of many witnesses for the prosecution, then-Deputy Special Agent in Charge Denise Stemen of the FBI’s Miami Field Office, mentioned, “Philip Esformes is a man driven by almost unbounded greed.”

“Esformes cycled patients through his facilities in poor condition where they received inadequate or unnecessary treatment, then improperly billed Medicare and Medicaid,” Stemen mentioned.

“Taking his despicable conduct further, he bribed doctors and regulators to advance his criminal conduct.”

When he sentenced Esformes to twenty years in jail, Judge Robert Scola mentioned that “the length and scope and breadth of the criminal conduct” of the defendant was “seemingly unmatched in our community, if not our country.”

More than a yr later, on Dec. 22, 2020, Trump commuted Esformes’ jail time period.

But Trump left intact the portion of the sentence that referred to as for Esformes to serve three years of supervised launch and pay $5.5 million in restitution for his crimes. Esformes additionally was left on the hook for an order to pay a $38 million forfeiture judgment.

In a press release detailing the commutation, Trump’s then-press secretary Kayleigh McEnany famous that former U.S. Attorneys General Edwin Meese and Michael Mukasey supported the transfer.

She added that Esformes, “While in prison … has been devoted to prayer and repentance and is in declining health.”

A subsequent court docket submitting by Esformes’ attorneys mentioned that Trump’s Attorney General William Barr had personally permitted the phrases of the clemency.

McEnany in her assertion additionally identified that Meese and Mukasey, together with two different former attorneys normal, John Ashcroft and Alberto Gonzalez, former FBI Director and federal decide Louis Freeh, and different former prime Justice Department officers had filed a authorized temporary supporting the dismissal of Esformes’ case.

That temporary mentioned prosecutors had violated guidelines barring them from utilizing communications between defendants and their attorneys as proof.

“The government in this case eviscerated the defendant’s attorney-client privilege and work-product protection,” the temporary mentioned. “Dismissal is the only remedy that can fix these pervasive violations.”

Prosecutors in a reply temporary within the appeals case mentioned that the trial decide in Esformes’ case “correctly denied” a movement to dismiss the fees and to disqualify the prosecution staff.

“Esformes failed to establish the demonstrable prejudice necessary to warrant the extreme sanction of dismissal or disqualification,” prosecutors wrote in that temporary. “Indeed, given the court’s suppression rulings, Esformes has failed to prove he suffered any articulable prejudice from the government’s missteps.”

Days after the commutation of Esformes’ sentence, The New York Times revealed an article detailing the position of the Aleph Institute, a Jewish humanitarian non-profit group that helps prisoners’ rights, in helping his bid for clemency from Trump.

Esformes’ father, Morris, is a rabbi.

The Times famous that the Esformes household for years donated to the motion of Hasidic Jews often known as Chabad-Lubavitch, “to which [Trump’s son-in-law Jared] Kushner has longstanding ties.” Kushner was a senior White House advisor throughout Trump’s presidency.

Charles Kushner and Jared Kushner attend an occasion at Lord & Taylor on March 28, 2012 in New York City.

Patrick McMullan | Patrick McMullan | Getty Images

A day after Trump commuted Esformes’ sentence, Trump issued a pardon to Kushner’s father Charles, a real-estate mogul who was sentenced to two years in jail in 2004 after pleading responsible to tax evasion, witness tampering and making illegal marketing campaign contributions.

Charles Kushner, in an effort to intimidate his personal brother-in-law from performing as a witness towards him, employed a prostitute to lure the opposite man right into a sexual tryst. Charles Kushner then despatched a secretly recorded videotape of that account to the person’s spouse, the sister of Charles.

In a 2006 press launch, the Justice Department mentioned Philip and his father Morris, together with a 3rd man, had paid $15.4 million to settle federal and Florida civil well being care fraud claims associated to kickback and medically pointless remedies at Larkin Community Hospital, which they’d owned.

And an August 2013 article in The Chicago Tribune reported that Philip and Morris Esformes agreed in precept to pay the U.S. authorities $5 million to settle claims that they “took kickbacks related to the sale” for $32 million of a pharmacy partially owned by Philip to the pharmaceutical big Omnicare.

In April 2021, months after Philip Esformes was launched from jail as the results of Trump’s commutation, federal prosecutors in Miami advised a decide they meant to re-try Esformes on the counts the place jurors had failed to attain a verdict.

In August that very same yr, a decide set a $50 million launch bond for Esformes, which was co-signed by his father and kids.

The choice to retry Esformes outraged his authorized staff on the time, and nonetheless does greater than a yr later.

In an appeals court docket temporary filed final yr, Esformes’ attorneys mentioned, “the text and context of this grant of clemency reveal an intent to end the prosecution and incarceration of Esformes for the conduct at issue in this case.”

Those attorneys additionally argued {that a} re-trial was barred underneath the double-jeopardy clause of the Constitution as a result of the decide, when sentencing Esformes, had factored in conduct that was the premise for the most important prison depend on which jurors deadlocked.

“Simply put, there can be no retrial of Philip Esformes,” attorneys wrote of their appeals temporary.

Tacopina, in an interview this week, mentioned the alleged misconduct by prosecutors in utilizing data towards Esformes that was protected by attorney-client privilege, and which was “illegally obtained in violation of his Constitutional rights,” underscores the unfairness of retrying him.

“It would be a gross miscarriage of justice to let these same prosecutors thumb their noses at the president’s grant of clemency to retry Mr. Esformes on any part of their infected case,” Tacopina mentioned.

Asked why the general public ought to really feel sympathy for Esformes, given his conduct, Tacopina famous that, “Mr. Esformes always maintained his innocence.”

“The president granted him clemency, and now, after a change in administration, the new Biden Justice Department wants to undo that,” Tacopina mentioned.

“The public should be very concerned when prosecutors — more interested in career advancement and political games — violate the law and pervert justice for those reasons,” Tacopina mentioned.

“Because that circumstance puts us all in jeopardy.”

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