The U.S. Supreme Court on Monday refused to take up an appeal by a South Florida nursing home operator whose 20-year prison sentence was commuted by former President Donald Trump after being convicted in what prosecutors called a “massive health care fraud scheme.”
The Supreme Court rejected a petition by attorneys for Philip Esformes, who was found guilty in 2019 on 20 counts related to kickbacks, money laundering, obstruction of justice and conspiracy, according to court documents.
In addition to receiving a 20-year prison sentence, Esformes was required to forfeit $38.7 million and pay $5.53 million in restitution.
In December 2020, shortly before he left office, Trump commuted Esformes’ prison sentence but left the conviction and other parts of the sentence intact.
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Esformes, who was accused of defrauding the Medicare and Medicaid programs, had been held at a federal prison in Miami before the commutation.
Esformes, who operated nursing homes and assisted-living facilities, challenged the conviction and the forfeiture order.
In part, his lawyers contended that federal prosecutors improperly seized and reviewed records that were shielded by attorney-client privilege and that a district judge should have dismissed the indictment or disqualified the prosecution team.
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But in a January 2023 ruling, a panel of the 11th U.S. Circuit Court of Appeals rejected the argument.
“Esformes has not even attempted to satisfy his burden of proving prejudice (related to prosecutorial misconduct),” the Atlanta-based appeals court ruled. “The district court applied the correct legal standard and found that the privilege violations did not prejudice Esformes because the privileged materials did not serve as either the basis for the charges against him or the evidence admitted at trial.”
In a petition filed in July at the Supreme Court, Esformes’ attorneys wrote that the conviction was “tainted by flagrant prosecutorial invasions of the attorney-client privilege” and that appellate courts have issued conflicting opinions about whether defendants have to show “actual prejudice” to establish that their rights were violated by such misconduct.
“Despite multiple red flags, prosecutors plowed ahead, using the privileged documents extensively in their investigation and trial preparation,” the petition said.
The U.S. Department of Justice filed a brief last month that urged the Supreme Court to reject the petition. As is common, the Supreme Court on Monday did not explain its reasons for declining to take up the case.
The Justice Department’s brief said Esformes “orchestrated a massive health care fraud scheme.”
“The scheme centered around the payment of bribes and kickbacks to physicians and administrators at a local hospital ‘to refer patients to his skilled nursing facilities who did not need that care,’” said the brief, using partial quotes from other documents. “The Esformes network then provided ‘unnecessary and expensive medical services to those patients and fraudulently inflated bills with services that the facilities did not provide.’ When petitioner (Esformes) was done billing the patients at his skilled nursing facilities, the patients were often sent to one of his assisted living facilities. From there, petitioner often sold access to his patients to other corrupt health care providers in exchange for kickbacks. Those providers included laboratories, pharmacies, and partial hospitalization programs that often did not provide services to the patients.”
While Esformes was convicted on 20 counts, the jury could not reach a verdict on six counts. His attorneys wrote in the July petition that prosecutors said in 2021 that they would seek to retry Esformes on the six counts. Those issues have been on hold amid the appeal, according to a Nov. 30 court document.
