Philip Esformes, whose prison sentence Trump commuted, loses appeal

A Florida nursing home owner whose 20-year prison sentence for a $1.3 billion Medicare fraud scheme was commuted by then-President Donald Trump in late 2020 has lost a federal court appeal and now appears headed for retrial on six health-care criminal charges that a jury previously deadlocked on.

Philip Esformes had appealed his convictions for fraud, money laundering, and receiving illegal kickbacks, claiming the indictment against him should be dismissed because of prosecutorial misconduct, and on other grounds.

When charges were filed against him and two others in 2016, the U.S. Department of Justice called it the “largest single criminal health-care fraud case ever brought against individuals” in department history.

A three-judge panel at the U.S. Court of Appeals for the 11th Circuit unanimously rejected Esformes’ appeal in a ruling earlier this month.

The decision leaves him on the hook for $44 million in fines and forfeiture orders related to his conviction.

Esformes’ lawyers have indicated they plan to request a rehearing of their appeal by the entire line-up of the judges on the 11th Circuit.

But such requests almost always face long odds against success.

The same panel also said it did not have jurisdiction to address Esformes’ argument that Trump’s grant of clemency, which freed him from prison, bars prosecutors from re-trying him on at least one count of the six charges that jurors failed to reach a verdict on at his trial.

Esformes’ lawyers had argued that a new trial on that would violate Trump’s clemency action, as well as the double jeopardy clause.

The appeals panel said in its ruling, “We cannot reach the merits of this argument because the hung counts were not the basis of a final judgment.”

“With limited exceptions not relevant here, we review only final judgments,” the panel wrote.

There is no federal statute that explicitly states that prosecutors cannot retry a defendant on charges a jury deadlocked on after a president commuted their sentence for other counts on which they were convicted. Nor is there federal case law that addresses that question.

If Esformes is convicted at a retrial in federal court in Southern Florida, it is likely that his lawyers will relaunch their argument on appeal that retrial was barred by Trump’s clemency.

Esformes’ lawyer Kim Watterson, in a statement to CNBC, said: “The Court of Appeals did not decide the question of whether President Trump’s grant of clemency to Philip Esformes bars further prosecution on any counts.”

“Rather, the Court held that – as an appellate court – it lacked the necessary jurisdiction to decide the clemency argument at this point in time, expressly stating that it was not reaching the merits of the argument,” Watterson…