By Convicted Medicare fraudster Philip Esformes has reached a plea deal that could resolve a long-running, complicated criminal case that has included his 20-year prison sentence being commuted by former President Donald Trump in 2020, court filings show.
Terms of Esformes’ plea agreement with the Department of Justice were not included in the filings Thursday.
A Miami federal judge scheduled Esformes’ change of plea hearing and sentencing for Feb. 22. A change of plea hearing typically involves a defendant pleading guilty.
Lawyers for Esformes, who is free on a $50 million bond, did not respond to requests for comment.
A DOJ spokesman declined to comment beyond noting, “Any plea agreement would have to be accepted by a judge.”
The expected plea comes after nearly two years of complaints by Esformes’ supporters that federal prosecutors — in seeking to retry him this year on charges that did not result in a verdict at his first trial — were unjustly punishing him because of their anger over Trump’s commutation of his prison term.
Esformes’ lawyers have said they are unaware of any other case in which the DOJ retried a defendant whose criminal sentence in the same case was commuted by a president.
A plea in the case would let Esformes avoid another trial — and another potentially stiff prison sentence if he were convicted — as well as appeals that could take years to resolve.
Esformes, who then owned more than 30 Miami-area nursing and assisted living facilities, was first charged in July 2016 with what the DOJ called a $1 billion, decades-long Medicare fraud and money-laundering scheme.
Prosecutors at the time said it was “the largest single criminal health care fraud case ever brought against individuals” by the DOJ.
“Esformes cycled patients through his facilities in poor condition where they received inadequate or unnecessary treatment, then improperly billed Medicare and Medicaid,” said Denise Stemen, an F.B.I. deputy special agent, in 2019.
“Taking his despicable conduct further, he bribed doctors and regulators to advance his criminal conduct and even bribed a college official in exchange for gaining admission for his son to that university,” Stemen said.
Esformes, who was considered a flight risk, was jailed after his arrest and remained there until he went to trial in April 2019.
At the trial, a jury convicted him of 20 counts, which included conspiracy to defraud the United States, receiving kickbacks, money laundering, bribery, and obstruction of justice.
But jurors were unable to reach a verdict on six other criminal counts.
A judge sentenced Esformes to 20 years in prison and fined him $44 million. Soon after, he appealed his conviction.
After his sentencing, the DOJ showed no obvious interest in retrying him on the six charges that a jury had deadlocked on. Prosecutors routinely will not seek retrials on deadlocked charges in cases in which a defendant has been sentenced to significant prison time for crimes they were convicted of.
But the DOJ’s stance on Esformes after Trump commuted his prison term, but not his monetary fine, as part of a slew of other commutations and pardons the Republican president issued in his final weeks in office in late 2020 and early 2021 to scores of federal convicts.
The DOJ in April 2021 said it would seek to retry Esformes on the six deadlocked counts.
That decision was condemned by Esformes’ supporters who saw it as an end-run around Trump’s commutation order, and a group of former Republican U.S. attorneys general backed his effort to avoid retrial.
Esformes’ attorneys argued that the retrial was barred because it would violate Trump’s clemency order and also the double jeopardy clause of the U.S. Constitution. They also argued it was barred because of prosecutorial misconduct related to prosecutors reviewing privileged communications with Esformes’ lawyers before trial.
Joseph Tacopina, a New York criminal defense attorney, told CNBC in August 2022 that “there’s no question in my mind that the [DOJ’s} flagrant disregard of President Trump’s clemency order is motivated by acrimony towards him.” Tacopina said that prosecutors had “an obvious vendetta” against Trump due to the Esformes’ commutation.
“He’s clearly a political casualty of partisan games,” the lawyer said of Esformes.
Tacopina later represented Trump in a New York criminal case, and a civil lawsuit, but recently ended his work for the former president.
The DOJ in court filings has noted that a commutation of a prison sentence, which releases a prison, is not the same as pardoning a defendant, which removes their criminal conviction. Prosecutors also said that Trump’s commuting of Esformes’ prison sentence did not bar them from retrying him on the criminal counts that jurors deadlocked on.
“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,” prosecutors wrote in an appeals court brief.
Last year, an Atlanta federal appeals court rejected Esformes’ appeal of his original conviction in 2019. The same appeals court panel said it would not decide the question of whether a second trial on the deadlock counts was barred by Trump’s clemency because there had not yet been a verdict on those counts.
In December, the U.S. Supreme Court refused to hear Esformes’ appeal in the case, a rejection that cleared the way for him to be retried in 2024 on the remaining charges.
That retrial would be canceled if Esformes follows through on the plan to plead in the case, as revealed in Thursday’s court filing.
