A Republican lawmaker’s demand of the country’s top prosecutor to explain whether the Justice Department intends to re-try parts of its case against a former health care executive convicted of financial crimes — and whose sentence was later commuted by former President Donald Trump — has raised legal questions of double jeopardy and the impact of a president granting clemency.
Philip Esformes, a one-time health care executive, was convicted in 2019 in what the Justice Department called the “largest health care fraud scheme ever charged” by the department. According to prosecutors, Esformes led an “extensive health care fraud conspiracy” between January 1998 and July 2016 involving a network of assisted living facilities and skilled nursing facilities that he owned. That scheme involved cycling patients through his facilities where they “often failed to receive appropriate medical services or received medically unnecessary services billed to Medicare and Medicaid.” Many of these facilities were in poor conditions, according to witnesses, which Esformes covered with bribes to Florida state officials.
In total, the DOJ determined that Esformes “personally benefited from the fraud” to the tune of more than $37 million. He used “criminal proceeds to make a series of extravagant purchases, including luxury automobiles and a $360,000 watch,” and also bribed a University of Pennsylvania basketball coach in exchange for helping him get his son admitted to the school.
A jury convicted Esformes in April 2019 on 20 counts, including fraud, money laundering, conspiracy to commit bribery, and obstruction of justice. The jury was hung as to several other counts, including federal program bribery, conspiracy to commit health care fraud, and some of the health care fraud allegations. In September of that year, U.S. District Judge Robert N. Scola sentenced Esformes to 20 years in prison, three years of supervised release, and some $5.5 million in restitution.
Just over one year later, however, Esformes was free: Trump commuted Esformes’ sentence in December 2020. That commutation got Esformes, who had been in custody since his arrest in 2016, out of prison, although he was still subject to the three years of supervised release and required to pay the restitution ordered by the judge.
After Esformes’ 2019 sentencing and before Trump granted him clemency, the government signaled its intent to re-try him on the hung charges. That trial was originally supposed to start in January 2020, according to court filings, but the judge agreed to hold off until Esformes could appeal his convictions.
Critics of the Justice Department say that a retrial of Esformes raises the potentially thorny legal issue of whether that would amount to “double jeopardy” — or trying someone for the same crime twice — which the Constitution prohibits.
In a November 2019 hearing, Judge Scola acknowledged that he had considered the hung charge in forming his sentence.
“I think I announced at the time of sentencing that, in imposing that sentence, I’m considering that conduct [in the hung count] since he was found guilty as a theory of money laundering,” Scola said, according to a transcript obtained by Reason. “So I don’t know what more you are going to get out of the case if you try those additional counts.”
The government then acknowledged having entered into agreements in other cases to dismiss the hung counts if a defendant’s appeal is dismissed, and would agree to do so in Esformes’ case, although Esformes’ lawyer said that no such agreement had been presented.
By January of this year, Esformes’ appeal efforts in the 11th U.S. Circuit Court of Appeals had failed, and Esformes intends to appeal to the U.S. Supreme Court this summer. If that effort fails, Esformes will likely face a second trial.
Critics say such a retrial would be unconstitutional.
Rep. Andy Biggs, R-Ariz. — himself a one-time potential target for a criminal investigation in connection with the Jan. 6 attack on the U.S. Capitol — wrote a letter to U.S. Attorney General Merrick Garland demanding that he explain where the Justice Department currently stands.
“As your threat to retry Mr. Esformes continues to loom, he remains burdened by your selective, vindictive, and unconstitutional prosecution,” Biggs said in the letter, which he posted to Twitter, adding that he is “concerned about the dangerous precedent your decision sets regarding the President’s Constitutional pardon power.”
Biggs said that any retrial of Esformes “is barred by the plain language of the Fifth Amendment […] as well as the express terms of President Trump’s clemency warrant.”
The Justice Department did not reply to Law&Crime’s request for comment on Biggs’ letter.
Notably, Esformes was not pardoned by Trump. Although a presidential commutation is a form of clemency, it is not the same as a pardon. According to the Justice Department, a commutation of a sentence reduces a sentence, “either totally or partially,” but it “does not change the fact of conviction, imply innocence, or remove civil disabilities” resulting from the conviction. A pardon, meanwhile, is “an expression of the President’s forgiveness” that is normally granted “in recognition of the applicant’s acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction or completion of sentence,” the DOJ explains. A pardon “does not signify innocence” but does remove civil penalties, such as restricting one’s right to vote, and “should lessen the stigma arising from the conviction.”
The grounds for any double jeopardy claim by Esformes or on his behalf would be the fact that he was sentenced for conduct related to the convicted counts, even if he was not convicted of the hung charge itself. Considering relevant conduct is explicitly allowed by the federal sentencing guidelines; judges may consider “actions of the defendant performed in preparation for the offense, during the offense, and after the offense to avoid detection” as well as “acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction,” according to a 2018 primer on relevant conduct by the U.S. Sentencing Commission (USSC).
The guidelines are silent, however, as to whether a judge may consider acquitted conduct in fashioning a sentence, although the Supreme Court has ruled that relevant conduct is relevant conduct, acquitted or not.
“[T]he Supreme Court has held that there is no constitutional barrier to considering such conduct if it otherwise meets the definition of relevant conduct, and is demonstrated by a preponderance of the evidence,” the USSC’s primer says.
This reasoning may well apply to conduct for which Esformes was not convicted, but which went into the judge’s formulation of the 20-year sentence.
According to the federal docket, the next hearing in Esformes’ case is a telephonic conference set for Nov. 3, 2023 — presumably providing enough time for his appeal to be resolved.
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