Presidential Commutation Doesn't Stop Retrial On Cases Where Jury was Hung
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In United States Of America v. Philip Esformes, Nos. 19-13838, 19-14874, United States Court of Appeals, Eleventh Circuit (January 6, 2023) Philip Esformes challenged his convictions of healthcare fraud, illegal kickbacks, and money laundering and the related restitution award and forfeiture judgment. After Esformes filed this appeal, President Trump commuted his sentence of imprisonment and rendered any challenge to it moot.
In his remaining challenges, Esformes argued that his indictment should have been dismissed because of prosecutorial misconduct, that the district court erroneously admitted expert opinion testimony against him, that the admissible evidence against him was insufficient to sustain his convictions, and that the restitution award and forfeiture judgment should be vacated.
BACKGROUND
Esformes owned and operated the "Esformes Network"-several medical facilities in Miami-Dade County, Florida. The Network included "skilled nursing facilities," residential medical facilities that provided services performed by nurses, such as physical therapy or the operation of sensitive medical devices. Medicare or Medicaid will pay for a stay at a skilled nursing facility only if the patient receives medical certification that the admission is necessary and if the patient spent at least three days in an acute care hospital immediately before admission.
After a grand jury indicted two of his associates, Gabriel and Guillermo Delgado, Esformes entered into a joint-defense agreement with the Delgados. The government later added a drug charge to Guillermo Delgado's indictment that threatened a significantly higher term of imprisonment. Esformes then "offered to pay a significant sum of money to [Guillermo] Delgado so that he could flee the United States and avoid prosecution in the United States."
The Delgados signed a sealed plea agreement, began recording their conversations with Esformes, and passed along to the government multiple recordings, including some that involved conversations between Esformes and his attorneys.
The following year, an indictment charged that Esformes and others conspired to use the Network to defraud Medicare and Medicaid of millions of dollars. The Federal Bureau of Investigation executed a search warrant for Esformes's Eden Gardens medical facility to "seiz[e] . . . business records related to the health-care fraud investigation of Esformes." The government knew beforehand that Norman Ginsparg, an Illinois-licensed attorney who worked with Esformes, had an office at Eden Gardens. And a member of Esformes's defense team warned the agents that there were privileged materials at Eden Gardens. The government established a "taint protocol" to identify privileged documents found in the search and to keep the prosecution team from seeing them. It chose agents who were not otherwise involved in the investigation to conduct the search. But these measures failed.
The district court concluded that the prosecutors committed misconduct but rejected a finding of bad faith and dishonesty. At Esformes's two-month trial, prosecutors presented three types of evidence material to this appeal. First, Esformes's co-conspirators, including Gabriel Delgado, testified about the conspiracy, its means, and their roles in it. Second, the prosecutors presented summary testimony from Michael Petron, who identified various transactions in Esformes's financial records as bribes, kickbacks, and efforts to conceal illegal proceeds.
THE JURY CONVICTIONS
The jury convicted Esformes on 20 counts. The jury failed to reach a verdict with respect to the six remaining counts, and the government has stated that it intends to retry Esformes on those counts.
After Esformes filed his appeal, then-President Donald Trump commuted Esformes's term of imprisonment to time served but "le[ft] intact and in effect the remaining three-year term of supervised release with all its conditions, the unpaid balance of his . . . restitution obligation, if any, and all other components of the sentence
DISCUSSION
The Eleventh Circuit, after a lengthy review, concluded:
that the presidential commutation renders Esformes's appeal of his prison sentence moot but does not otherwise affect his appeal.
the district court did not abuse its discretion when it declined to dismiss the indictment or to disqualify the prosecutors due to misconduct.
affirmed the admission of Dr. Cifu's expert-opinion testimony.
affirmed the restitution amount as not clearly erroneous.
held that there was sufficient evidence for the jury to convict Esformes of money laundering and that the forfeiture judgment based on money laundering was lawfully calculated.
The District Court's Restitution Order Was Not Clearly Erroneous. There was plenty of evidence of actual loss to the government; indeed, defrauding the government was the core of the Esformes Network conspiracy.
The District Court's Forfeiture Order Was Lawful.
It is a federal crime to engage in a transaction knowing that it "is designed in whole or in part . . . to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity ...." When a defendant is found guilty of federal money laundering, the district court "shall order that the person forfeit to the United States any property, real or personal, involved in such offense, or any property traceable to such property."
Legally Sufficient Evidence Supported Esformes's Money-Laundering Convictions.
Esformes's Sentence Did Not Violate the Constitution.
Esformes does not contest the $38.7 million calculation of the value of the property "involved in" his crimes, so any forfeiture under $77.4 million was presumptively constitutional. And Es-formes offers no basis to rebut that presumption.
Esformes will be tried on the six counts not the subject of the Presidential commutation.
ZALMA OPINION
Health insurance fraud perpetrators who steal millions from U.S. Government programs garner wealth beyond normal health care providers' dreams. The wealth Esfromes acquired was not earned, it was stolen. He was properly convicted on many counts and sentence to prison. President Trump allowed him to get out of jail early but refused - because he was so obviously guilty - to pardon him. Since the jury could not decide on six counts, and since the original verdict was proper, the government will be able to try him again on the six counts that were not proved in the first trial.
(c) 2023 Barry Zalma & ClaimSchool, Inc.
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Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business. He is available at http://www.zalma.com and [email protected]
Write to Mr. Zalma at [email protected]; http://www.zalma.com; http://zalma.com/blog; daily articles are published at https://zalma.substack.com. Go to the podcast Zalma On Insurance at https://anchor.fm/barry-zalma; Follow Mr. Zalma on Twitter at https://twitter.com/bzalma; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – https://zalma.com/blog/insurance-claims-library
Subscribe and receive videos limited to subscribers of Excellence in Claims Handling at locals.com https://lnkd.in/gfFKUaTf.
Go to substack at https://lnkd.in/gEEnV7Dd Consider subscribing to my publications at substack at https://lnkd.in/gEEnV7Dd
Barry Zalma, Esq., CFE is available at http://www.zalma.com and [email protected]
Write to Mr. Zalma at [email protected]; Go to the podcast Zalma On Insurance at https://lnkd.in/gxA7YGe; Follow Mr. Zalma on Twitter at https://twitter.com/bzalma; Go to Barry Zalma videos at Rumble.com at https://lnkd.in/gV9QJYH; Go to the Insurance Claims Library – https://lnkd.in/gWVSBde
Amended Complaint Provides Escape from Anti-Assignment Condition
Post number 5345
Read the full article at https://www.linkedin.com/pulse/proper-inconsistent-pleading-defeats-policy-condition-barry-mrugc, shttps://www.linkedin.com/pulse/proper-inconsistent-pleading-defeats-policy-condition-barry-mrugc and at https://zalma.com/blog plus more than 5300 posts.
State Farm’s Responsive Pleading Defeated Motion on Anti Assignment Condition
In Tyra Caire Treadway v. State Farm Fire And Casualty Company, Civil Action No. 23-6834, United States District Court, E.D. Louisiana (April 28, 2026) Plaintiff Tyra Caire Treadway owned property at 7000-02 Jeannette Street, New Orleans, Louisiana, which was insured under a State Farm homeowners’ policy.
Hurricane Ida struck Louisiana on August 29, 2021, causing damage to the property. Nearly two years later, on August 9, 2023, Treadway sold the property to M1SRJT Jeanette, LLC and assigned her State Farm insurance claim, including the right to pursue additional damages and penalties for ...
Amended Complaint Provides Escape from Anti-Assignment Condition
Post number 5345
Read the full article at https://www.linkedin.com/pulse/proper-inconsistent-pleading-defeats-policy-condition-barry-mrugc, shttps://www.linkedin.com/pulse/proper-inconsistent-pleading-defeats-policy-condition-barry-mrugc and at https://zalma.com/blog plus more than 5300 posts.
State Farm’s Responsive Pleading Defeated Motion on Anti Assignment Condition
In Tyra Caire Treadway v. State Farm Fire And Casualty Company, Civil Action No. 23-6834, United States District Court, E.D. Louisiana (April 28, 2026) Plaintiff Tyra Caire Treadway owned property at 7000-02 Jeannette Street, New Orleans, Louisiana, which was insured under a State Farm homeowners’ policy.
Hurricane Ida struck Louisiana on August 29, 2021, causing damage to the property. Nearly two years later, on August 9, 2023, Treadway sold the property to M1SRJT Jeanette, LLC and assigned her State Farm insurance claim, including the right to pursue additional damages and penalties for ...
BACKGROUND
See the video at https://rumble.com/v79dts2-crime-doesnt-pay.html and at https://youtu.be/dw0f4goCbxA, and at https://zalma.com/blog plus more than 5300 posts.
Plaintiff:
Andrew J. Mitchell, an incarcerated individual proceeding pro se sued Pandit Law Firm, LLC, on behalf of a corporation that was controlled by Mitchell who had operated Mitchell Adjusting International LLC (MAI), a Texas limited liability company.
According to the US Attorney:
A Texas man (Mitchell) acting as an insurance adjuster who cheated an Albany church out of millions of dollars paid out by its insurance company to repair its facilities heavily damaged by Hurricane Michael in 2018 was sentenced to serve more than 19 years in prison and ordered to pay nearly $4 million in restitution to victims in several states.
Andrew Mitchell, formerly Andrew Aga, 46, of Houston, Texas, was sentenced to serve 235 months in prison to be followed by three years of supervised release and was ordered to pay $2,895,903.01 in restitution to the Brotherhood ...
It is Fraud to Make the Same Claim Twice
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Chutzpah: After Being Paid for a New Roof Insured Makes Second Claim For Same Damages
Post number 5347
No One is Entitled to be Paid for the Same Loss Twice
In Mohammed Ali Khalili v. State Farm Lloyds, No. 14-25-00611-CV, Court of Appeals of Texas (April 30, 2026) Khalili maintained a State Farm Lloyds homeowners insurance policy for decades. In 2008 he filed a roof-damage claim; State Farm paid him to replace the entire roof (shingles and gutters). Khalili never replaced the roof and repeated his claim.
BACKGROUND
In 2021 he filed a second roof claim. State Farm’s inspectors found the roof “very old” with extensive non-storm-related damage. The claim was denied because (1) the damage did not exceed the deductible and (2) State Farm had already paid for a full roof replacement.
PROCEDURAL HISTORY
State Farm filed motion for summary...
It is Fraud to Make the Same Claim Twice
Read the full article at https://www.linkedin.com/pulse/fraud-make-same-claim-twice-barry-zalma-esq-cfe-c4g8c and at https://zalma.com/blog.
Chutzpah: After Being Paid for a New Roof Insured Makes Second Claim For Same Damages
Post number 5347
No One is Entitled to be Paid for the Same Loss Twice
In Mohammed Ali Khalili v. State Farm Lloyds, No. 14-25-00611-CV, Court of Appeals of Texas (April 30, 2026) Khalili maintained a State Farm Lloyds homeowners insurance policy for decades. In 2008 he filed a roof-damage claim; State Farm paid him to replace the entire roof (shingles and gutters). Khalili never replaced the roof and repeated his claim.
BACKGROUND
In 2021 he filed a second roof claim. State Farm’s inspectors found the roof “very old” with extensive non-storm-related damage. The claim was denied because (1) the damage did not exceed the deductible and (2) State Farm had already paid for a full roof replacement.
PROCEDURAL HISTORY
State Farm filed motion for summary...
What Must be Done after Notice of a Claim is Received by the Insurer
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A first party property policy does not insure property: it insures a person, partnership, corporation or other entity against the risk of loss of the property. Before an insured can make a claim for indemnity under a policy of first party property insurance the insured must prove that there was damage to property the risk of loss of which was insured by the policy. The obligation imposed on the insured ...
