PRINT PAGEProsecutor Bitten For Vampire Comment At Esformes Trial

 
By Nathan Hale
 
Law360, Miami (April 1, 2019, 9:26 PM EDT) -- Miami federal court jurors ended their first day of deliberations Monday without reaching a verdict in the health care fraud trial of nursing home mogul Philip Esformes, getting the case after lengthy closing arguments Friday that ended with the judge admonishing a prosecutor's description of the defendant as a “vampire.”

U.S. District Judge Robert N. Scola Jr. rejected the defense team's request for a mistrial late Friday over what they said were inappropriate references by prosecutor Jim Hayes to Esformes as a “criminal” and a “vampire” during the rebuttal portion of the government's closing arguments. The judge said the “criminal” reference appeared to come in the context of describing Esformes' alleged actions, but he instructed the jurors to ignore the vampire comparison, which he told them was “totally improper,” according to the court transcript.

“There is no evidence of that. I don't even know how that makes sense,” Judge Scola said before the jury Friday, adding that he had to believe Hayes was “running out of fuel” after what had been more than six hours of arguments as the sides made their final presentations in the seven-week trial.

After dismissing the jury for the day, Judge Scola asked Hayes for an explanation at jeopardizing the proceedings at such a late stage, saying, “Where do you come up with a disparaging comment like that?”

“I can't say anything other than that I apologize, your honor,” Hayes said.

A U.S. Department of Justice spokeswoman said Monday that the government had no comment on Hayes' comment and the court's admonition, and a representative for the defense said Esformes' counsel had no comment beyond what was said in the courtroom.

It was the latest controversy in the hotly contested case in which the government claims Esformes fraudulently received $450 million from Medicare and Medicaid for services that were provided because of bribes, services that were not needed, or services that were never provided at his South Florida network of facilities. Prosecutors say the businessman personally pocketed $38 million through a network of 256 bank accounts.

Before the trial, Esformes made a bid to have the prosecutors on the case disqualified based on their handling of certain evidence he asserted was protected by attorney-client privilege. His motion was denied, but the court criticized the government's care on the matter.

During closing arguments, Esformes counsel Roy Black of Black Srebnick Kornspan & Stumpf PA accused the government of disregarding facts to sway the jury.

“I've never seen a prosecution that has misstated the evidence, twisted the facts, made up events, and done everything it can to try to prejudice you against Philip Esformes,” Black said. “Time and time again, they have ignored the real evidence and gone for things that are going to affect your emotions to cause you to be prejudiced against him, to hate him, to hate his business, all based on things that are simply not true.”

He argued that the government's evidence, including about 40 hours of secret recordings of Esformes made by two of his associates who cooperated with the government after their arrests, fails to show any proof of allegations of Medicare fraud or payment of kickbacks. Esformes and his family have given away $125 million to charity, not used money to manipulate people, Black said.

The prosecution countered that Esformes was the boss and “in charge” and that common sense shows that he was not duped by alleged co-conspirators Gaby and Willy Delgado and others who testified for the government.

“Do you think they possibly could have fooled who was admittedly a brilliant man who owns a hundred million dollar business? Of course not,” Hayes argued. “The smartest guy in the room was not fooled by the Delgados.”

Esformes also stands accused of receiving state health agency inspection schedules and complaint reports obtained through bribes of health officials and of paying $300,000 to ex-University of Pennsylvania men's basketball coach Jerome Allen to get his son Morris Esformes a spot on the prestigious school's basketball team and admission in its Wharton School of Business.

Jury deliberations are expected to continue Tuesday.

The government is represented by James V. Hayes, Elizabeth Young and Allan Medina of the U.S. Department of Justice's Fraud Section.

Esformes is represented by Howard M. Srebnick, Roy Black, Jacqueline Perczek and Rossana Arteaga-Gomez of Black Srebnick Kornspan & Stumpf PA, Marissel Descalzo of Tache Bronis Christianson & Descalzo PA and Bradley Horenstein of The Horenstein Firm PA.

The case is U.S. v. Esformes et al., case number 1:16-cr-20549, in the U.S. District Court for the Southern District of Florida.

--Editing by Jill Coffey.

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