In United States v. Esformes, No. 19-13838 (Jan. 6, 2023) (William Pryor, Jill Pryor, Grant), the Court affirmed the defendant’s healthcare fraud/kickback/money laundering convictions, as well as restitution and forfeiture awards.

As an initial matter, the defendant’s challenges to his 20-year prison sentence were moot because President Trump commuted that part of his sentence.  The defendant also argued that the commutation prevented the government from re-trying him on one count on which the jury hung.  However, the Eleventh Circuit lacked jurisdiction to review that argument because the hung count was not part of the final judgment over which the Court had jurisdiction.

Second, the district court properly declined to dismiss the indictment or disqualify the prosecution team in light of admitted government misconduct intruding on attorney-client privilege, because the defendant could not show “demonstrable prejudice.”  Circuit precedent foreclosed any presumption of prejudice, and the defendant did not make any effort to show prejudice, which the district court found did not exist because the privileged materials did not form the basis of the charges, were not admitted at trial, and did not give the government any strategic advantage.  Whether the prosecutors acted in bad faith was not relevant.

Third, federal prosecutor Elizabeth Young did not have a conflict of interest.  Her professional interest in avoiding and challenging sanctions did not make her an “interested prosecutor” that required her recusal.  And she did not violate the advocate-witness prohibition by participating in the hearing on the motion to disqualify her.  The defendant invited any such error by calling her to the stand.  And, in any event, this argument would fail because she was not testifying to the jury about the charges but rather to the magistrate judge about her own investigatory work.

Fourth, the district court properly admitted the government’s expert testimony.  The district court completed the Daubert evaluation before admitting the testimony, and it was not an abuse of discretion for the court to defer ruling until after the jury heard the testimony.  Nor was it an abuse of discretion to actually admit the testimony under Daubert.

Fifth, the court’s restitution order was not clearly erroneous because the loss amount was supported by record evidence.

Finally, the court’s forfeiture order was lawful because the underlying money laundering convictions were supported by sufficient evidence.  And Supreme Court precedent permitted the judge to make its own calculation of the forfeiture amount, even if it differed from the jury’s special verdict.

Judge Grant authored a concurrence.  Although it was harmless here (because the expert opinion was properly admitted), she opined that deferring a ruling on admissibility of expert testimony until after the jury hears it is fraught with risk and should be avoided.