United States v. Philip Esformes

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 19-13838

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PHILIP ESFORMES,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:16-cr-20549-RNS-1

____________________

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2 Opinion of the Court 19-13838

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No. 19-14874

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PHILIP ESFORMES,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:16-cr-20549-RNS-1

____________________

Before WILLIAM PRYOR, Chief Judge, JILL PRYOR, and GRANT, Cir-

cuit Judges.

WILLIAM PRYOR, Chief Judge:

Philip Esformes challenges his convictions of healthcare

fraud, illegal kickbacks, and money laundering and the related res-

titution award and forfeiture judgment. After Esformes filed this

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19-13838 Opinion of the Court 3

appeal, President Trump commuted his sentence of imprisonment

and rendered any challenge to it moot. In his remaining challenges,

Esformes argues that his indictment should have been dismissed

because of prosecutorial misconduct, that the district court errone-

ously admitted expert opinion testimony against him, that the ad-

missible evidence against him was insufficient to sustain his convic-

tions, and that the restitution award and forfeiture judgment

should be vacated. We affirm.

I. BACKGROUND

Philip Esformes owned and operated the “Esformes Net-

work”—several medical facilities in Miami-Dade County, Florida.

The Network included “skilled nursing facilities,” residential med-

ical facilities that provided services performed by nurses, such as

physical therapy or the operation of sensitive medical devices.

Medicare or Medicaid will pay for a stay at a skilled nursing facility

only if the patient receives medical certification that the admission

is necessary and if the patient spent at least three days in an acute-

care hospital immediately before admission.

After a grand jury indicted two of his associates, Gabriel and

Guillermo Delgado, Esformes entered into a joint-defense agree-

ment with the Delgados. The government later added a drug

charge to Guillermo Delgado’s indictment that threatened a signif-

icantly higher term of imprisonment. Esformes then “offered to

pay a significant sum of money to [Guillermo] Delgado so that he

could flee the United States and avoid prosecution in the United

States.” The Delgados signed a sealed plea agreement, began

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4 Opinion of the Court 19-13838

recording their conversations with Esformes, and passed along to

the government multiple recordings, including some that involved

conversations between Esformes and his attorneys.

The following year, an indictment charged that Esformes

and others conspired to use the Network to defraud Medicare and

Medicaid of millions of dollars. The indictment alleged that Es-

formes bribed doctors at local hospitals to refer patients to his

skilled nursing facilities who did not need that care and that his

Network provided unnecessary and expensive medical services to

those patients and fraudulently inflated bills with services that the

facilities did not provide. It further alleged that the conspirators

split their ill-gotten gains with referring doctors and bribed state

officials to gain advance notice of otherwise random inspections.

And it alleged that they laundered the proceeds of their crimes by

various means, including paying “[f]emale [c]ompanion[s,]”

providing “limousine services” to Esformes, and bribing a Univer-

sity of Pennsylvania basketball coach to aid the admission of Es-

formes’s son.

The Federal Bureau of Investigation promptly executed a

search warrant for Esformes’s Eden Gardens medical facility to

“seiz[e] . . . business records related to the health-care fraud inves-

tigation of Esformes.” The government knew beforehand that

Norman Ginsparg, an Illinois-licensed attorney who worked with

Esformes, had an office at Eden Gardens. And a member of Es-

formes’s defense team warned the agents that there were privi-

leged materials at Eden Gardens.

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The government established a “taint protocol” to identify

privileged documents found in the search and to keep the prosecu-

tion team from seeing them. It chose agents who were not other-

wise involved in the investigation to conduct the search. But these

measures failed.

As the government now admits, “the agents conducting the

search did not receive sufficient instructions on how to treat or

identify potentially privileged materials[,]” and they passed on to

the prosecution team a substantial portion—at least a hundred—of

the privileged documents.

The prosecution team started to review the Eden Gardens

materials before prosecutors confirmed that the materials were not

privileged and before Esformes received copies of the seized docu-

ments. No prosecutor raised any privilege concerns until over four

months after the Eden Gardens search, when Assistant United

States Attorney Elizabeth Young received the scanned version of

the documents and encountered a memorandum with a law firm’s

header at the top. But at that point because of other disputes with

Esformes’s counsel, Young had known about potential privilege is-

sues for more than a month. And as the district court pointed out,

when she encountered the obviously privileged document in De-

cember, she did not consult with either Esformes’s defense team or

the district court.

The prosecutors not only reviewed privileged documents

but also tried to use them against Esformes before trial on two oc-

casions. First, the government presented privileged documents to

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6 Opinion of the Court 19-13838

Norman Ginsparg, one of Esformes’s alleged co-conspirators, in an

unsuccessful attempt to convince him to cooperate with the gov-

ernment. And second, prosecutors interviewed one of Ginsparg’s

assistants about the same privileged documents at length to deter-

mine whether they incriminated Esformes. As the district court

found, the prosecutors’ “myopic view of Ginsparg as a criminal and

not an attorney skewed their reaction to, and blurred their ability

to see, the potential for privilege” in these documents.

Esformes moved to dismiss the indictment and to disqualify

Young and other prosecutors due to their violations of his attorney-

client and attorney work-product privileges. A magistrate judge

found prosecutorial misconduct and even a bad-faith “attempt[] to

obfuscate the record” of that misconduct. The magistrate judge ac-

cordingly recommended suppressing the fruits of these intrusions

on privilege. But the magistrate judge recommended that the dis-

trict court reject Esformes’s request to dismiss the indictment or to

disqualify members of the prosecution team. The magistrate judge

reasoned that after the privileged materials were suppressed, Es-

formes would not be further prejudiced: the recordings of privi-

leged communications were evidence primarily for a count of the

indictment that had been dismissed; no charges resulted from the

privileged documents seized at Eden Gardens; and no privileged

materials would be introduced at trial to prejudice Esformes. The

district court found that the conversations between the Delgados

and Esformes were not privileged and modified the suppression or-

der to cover only the conversations between Esformes and his

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attorneys, but the district court otherwise adopted the magistrate

judge’s proposed remedies and rationale.

Although the district court agreed with the magistrate judge

that the prosecutors committed misconduct, it rejected the magis-

trate judge’s finding of bad faith and dishonesty. During a hearing

on the magistrate judge’s report and recommendation, the district

court granted three prosecutors leave to be represented by private

counsel to urge the district court to reverse those findings. The dis-

trict court “f[ound] that it [was] unnecessary to adopt the Magis-

trate Judge’s credibility determinations” and criticisms of the pros-

ecution team’s “‘attempts to obfuscate the record,’ . . . particularly

given the adverse consequences of such findings to the careers of

the prosecutors.” Those credibility assessments played no role in

the magistrate judge’s determination of the proper remedy; only

the prejudice to Esformes mattered. But the district court still af-

firmatively rejected the magistrate judge’s findings. The district

court accepted the prosecutors’ explanation that they were con-

fused, not mendacious, about the scope of Esformes’s invocations

of privilege. It found it implausible that a prosecution team that

tried, however incompetently, to maintain privilege protections

would take the risk of fabricating a justification for its actions after

the fact.

At Esformes’s two-month trial, prosecutors presented three

types of evidence material to this appeal. First, Esformes’s co-con-

spirators, including Gabriel Delgado, testified about the conspir-

acy, its means, and their roles in it. Second, the prosecutors

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8 Opinion of the Court 19-13838

presented summary testimony from Michael Petron, who identi-

fied various transactions in Esformes’s financial records as bribes,

kickbacks, and efforts to conceal illegal proceeds. Third, Dr. David

Cifu testified as an expert witness to explain how skilled nursing

facilities work; what type of patients are suitable for stays in them;

and how Medicare and Medicaid treat stays in skilled nursing facil-

ities.

Dr. Cifu serves as the Chairman of the Department of Phys-

ical Medicine and Rehabilitation and as the Executive Director of

the Center for Rehabilitation Sciences and Engineering at Virginia

Commonwealth University. He has decades of experience with

skilled nursing facilities. Dr. Cifu explained the “continuum of ser-

vices” between acute-care hospitalization and less intense forms of

care, such as skilled nursing facilities, and he reviewed hypothetical

case studies of skilled-nursing-facility patients.

Dr. Cifu testified that ordinarily, young, able-bodied psychi-

atric patients are poor fits for skilled nursing facilities. He testified

that, in his thirty years of experience, he did not remember a single

patient “who just had behavioral issues who was in a [skilled nurs-

ing facility].” He similarly could not recall a single patient at the

five skilled nursing facilities at which he had worked who was ad-

mitted from a psychiatric hospital. Prosecutors used this testimony

to support their argument that Esformes’s patients who were ad-

mitted to skilled nursing facilities for psychiatric reasons had been

admitted for illegitimate reasons in violation of Medicare and Med-

icaid guidelines.

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After it allowed Dr. Cifu to testify, the district court admit-

ted his expert opinions over Esformes’s objection under Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The dis-

trict court evaluated Dr. Cifu’s qualifications, methodology, and

helpfulness to the jury, see FED. R. EVID. 702, and found him qual-

ified to inform the jury about care in skilled nursing facilities and

the criteria for entering them “based upon his education, training,

and experience.” It acknowledged that Dr. Cifu “didn’t do any test-

ing” to support his conclusions but still found his testimony reliable

because “some people by education and training can give testi-

mony in an area” despite not relying on precise scientific methods.

And it found that “his testimony was helpful to the jury in under-

standing the relationship between how [skilled nursing facilities]

work, how patients come in and out of [skilled nursing facilities],

[and] what types of treatment are generally required in a [skilled

nursing facility]” and that it “help[ed] them understand the rela-

tionship between the Medicare rules and regulations and guide-

lines as they pertain to [skilled nursing facilities] and other rehabil-

itation facilities.” The district court also overruled Esformes’s ob-

jection that the pretrial disclosures about Dr. Cifu were insufficient

or misleading. It remarked that “there might be a case somewhere

where defense has received more information about [an expert wit-

ness] before a trial, but I haven’t seen one in my career.”

Esformes contended that Dr. Cifu was not qualified to testify

about whether psychiatric patients are commonly or properly ad-

mitted to skilled nursing facilities. Dr. Cifu admitted on cross-

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10 Opinion of the Court 19-13838

examination that he was not familiar with the procedures required

by Florida law that were supposed to guarantee that no one enter

a skilled nursing facility without medical necessity. See Fla. Admin.

Code Ann. r. 59G-1.040. The district court rejected Esformes’s ar-

guments, but it instructed the jury that “under appropriate circum-

stances psychiatric patients are eligible for coverage for skilled

nursing facility services under both Medicare and Medicaid.”

The jury convicted Esformes on 20 counts. Esformes was

convicted of one count of conspiracy to defraud the United States

and to pay and receive healthcare kickbacks, two counts of receiv-

ing kickbacks, four counts of paying kickbacks, one count of con-

spiracy to commit money laundering, nine counts of money laun-

dering, one count of conspiracy to commit federal program brib-

ery, one count of conspiracy to commit federal program bribery

and honest services wire fraud, and one count of obstruction of jus-

tice. The jury failed to reach a verdict with respect to the six re-

maining counts, and the government has stated that it intends to

retry Esformes on those counts.

The district court sentenced Esformes to 240 months of im-

prisonment and three years of supervised release. It also awarded

approximately $5.5 million in restitution payments based on its

“highly conservative estimate” of the federal government’s loss

owing to Esformes’s crimes and the estimated costs of his impris-

onment and supervised release. The district court derived the loss

figure—the same figure it used for the purpose of calculating Es-

formes’s prison sentence—from defense counsel’s suggestion that

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19-13838 Opinion of the Court 11

only one percent of the services for which Esformes billed Medi-

care and Medicaid were skilled nursing facility services to non-el-

derly psychiatric patients. The district court also ordered that Es-

formes forfeit $38.7 million because it calculated that sum of

money was “equal in value to the property traceable to the prop-

erty involved in [Esformes’s] money laundering offenses.” See 18

U.S.C. § 982(a)(1). That figure came from the summary witness,

Petron, who estimated that Esformes personally profited that

much from the Esformes Network. In a special verdict, the jury had

previously found some of Esformes’s specific pieces of property—

worth much less than $38.7 million—to be forfeitable. See FED. R.

CRIM. P. 32.2(b)(5).

After Esformes filed his appeal, then-President Donald

Trump commuted Esformes’s term of imprisonment to time

served but “le[ft] intact and in effect the remaining three-year term

of supervised release with all its conditions, the unpaid balance of

his . . . restitution obligation, if any, and all other components of

the sentence.” The Bureau of Prisons released Esformes from cus-

tody, and we allowed the parties to file supplemental briefs to “dis-

cuss[] the impact, if any, of the presidential commutation of [Es-

formes’s] sentence on this appeal.”

II. STANDARDS OF REVIEW

We decide jurisdictional issues de novo. United States v.

Lopez, 562 F.3d 1309, 1311 (11th Cir. 2009). We review decisions

not to dismiss an indictment and to admit expert opinion testimony

for abuse of discretion. United States v. Davis, 708 F.3d 1216, 1221

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12 Opinion of the Court 19-13838

(11th Cir. 2013); United States v. Frazier, 387 F.3d 1244, 1258 (11th

Cir. 2004) (en banc). “A district court abuses its discretion when it

applies an incorrect legal standard, relies on clearly erroneous fac-

tual findings, or commits a clear error of judgment.” United States

v. $70,670.00 in U.S. Currency, 929 F.3d 1293, 1300 (11th Cir. 2019).

We review a denial of a motion for acquittal for insufficient evi-

dence de novo, “view[ing] the evidence in the light most favorable

to the government.” United States v. Almanzar, 634 F.3d 1214,

1221 (11th Cir. 2011). Finally, when reviewing the restitution

award and forfeiture judgment, we review factual findings for clear

error and questions of law de novo. United States v. Edwards, 728

F.3d 1286, 1291 (11th Cir. 2013); United States v. Kennedy, 201 F.3d

1324, 1329 (11th Cir. 2000).

III. DISCUSSION

We divide our discussion into five parts. First, we explain

that the presidential commutation renders Esformes’s appeal of his

prison sentence moot but does not otherwise affect his appeal. Sec-

ond, we explain that the district court did not abuse its discretion

when it declined to dismiss the indictment or to disqualify the pros-

ecutors due to misconduct. Third, we affirm the admission of Dr.

Cifu’s expert-opinion testimony. Fourth, we affirm the restitution

amount as not clearly erroneous. And fifth, we hold that there was

sufficient evidence for the jury to convict Esformes of money laun-

dering and that the forfeiture judgment based on money launder-

ing was lawfully calculated.

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A. The Commutation of Esformes’s Prison Sentence Renders His

Appeal of that Sentence Moot.

Esformes contends that the commutation of his prison sen-

tence renders his appeal of that sentence moot, bars retrial if this

Court vacates any of his convictions, and “bars any attempt to fur-

ther prosecute [him] on [c]ount [o]ne, the hung count” of conspir-

acy to commit healthcare fraud and wire fraud. We agree—as does

the government—with his first contention, and we need not ad-

dress the second because we are not vacating any of his convic-

tions. So, we need only address his last argument.

Esformes argues that the President’s grant of clemency bars

further prosecution on at least count one, on which the jury failed

to reach a verdict. Esformes interprets the clemency warrant as “in-

tended to end [his] incarceration, precluding any further prosecu-

tion for the conduct at issue in this case.” Because count one is an

indictment for the same conduct as the counts of conviction, he

argues that a new trial on that count would violate the terms of the

clemency warrant, the Double Jeopardy Clause, and his due pro-

cess right to be free from vindictive prosecution.

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. 28

U.S.C. § 1291. “Final judgment in a criminal case means sentence.

The sentence is the judgment.” Berman v. United States, 302 U.S.

211, 212 (1937); see also United States v. Tovar-Rico, 61 F.3d 1529,

1536 (11th Cir. 1995); United States v. Kaufmann, 951 F.2d 793, 794

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14 Opinion of the Court 19-13838

(7th Cir. 1992) (“The judgment is obviously not final as to counts

of the indictment which remain outstanding.”). The hung counts

against Esformes were not part of the basis of his sentence, so they

are not part of any judgment we have jurisdiction to review.

B. The District Court Properly Declined to Dismiss the Indict-

ment or Disqualify the Prosecution Team.

The parties agree that prosecutors engaged in misconduct,

but Esformes argues that the district court should have either dis-

missed the indictment or disqualified the prosecutors instead of

only suppressing the improperly obtained evidence. The govern-

ment contends that Esformes failed to prove “demonstrable preju-

dice” from the intrusion on his privilege when the suppression or-

ders are considered, so dismissal of the indictment or disqualifica-

tion of the prosecution team would have been improper. We agree

with the government.

“Federal courts possess the power and duty to dismiss fed-

eral indictments obtained in violation of the Constitution or laws

of the United States[,]” United States v. Pabian, 704 F.2d 1533, 1536

(11th Cir. 1983), but “absent demonstrable prejudice, dismissal [is]

plainly inappropriate as a remedy” for the violation of attorney-cli-

ent privilege. United States v. Ofshe, 817 F.2d 1508, 1515 (11th Cir.

1987). Without demonstrable prejudice, dismissal of an indictment

is inappropriate “in the case of even the most egregious prosecuto-

rial misconduct . . . .” United States v. Merlino, 595 F.2d 1016, 1018

(5th Cir. 1979) (discussing a violation of Brady v. Maryland, 373

U.S. 83 (1963)). Instead, the remedy should ordinarily be limited to

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preventing the prosecution from using illegally obtained evidence

against the defendant. Cf. United States v. Morrison, 449 U.S. 361,

364–65 (1981).

Esformes and his supporting amici curiae suggest that we

should presume prejudice here. Esformes invokes our sister cir-

cuit’s burden-shifting approach to assess prejudice: the Ninth Cir-

cuit requires that the government make an affirmative showing of

harmlessness if the prosecutors deliberately violated a defendant’s

privilege and obtained information about the defendant’s trial strat-

egy. See United States v. Danielson, 325 F.3d 1054, 1072 (9th Cir.

2003). But Esformes did not explain why we should adopt this

novel approach in his opening brief, and even if we considered his

arguments or those of his amici, his suggested approach would be

foreclosed by precedent.

Our Court has explained that the prejudice that can warrant

a dismissal of indictment must be “demonstrable,” not presumed

based on a constitutional violation. Ofshe, 817 F.2d at 1515. As our

predecessor circuit stated, “there is no per se rule requiring dismis-

sal of the indictment as the sanction for the intrusion into the attor-

ney-client relationship by government agents.” United States v.

Melvin, 650 F.2d 641, 643 (5th Cir. Unit B Jul. 1981).

Esformes has not even attempted to satisfy his burden of

proving prejudice. The district court applied the correct legal stand-

ard and found that the privilege violations did not prejudice Es-

formes because the privileged materials did not serve as either the

basis for the charges against him or the evidence admitted at trial.

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16 Opinion of the Court 19-13838

Nor did the privilege violations provide the government with any

strategic advantage. Esformes has not sought to establish that this

finding is clearly erroneous. Esformes also argues that the admitted

recordings of his conversations with the Delgados were privileged,

but we agree with the district court that these conversations were

not privileged because they were not between an attorney and his

client.

Esformes also challenges the decision to reject the magis-

trate judge’s finding that the prosecutors acted in bad faith, but we

decline to address this issue because it does not affect the outcome

of this appeal. The district court explained that, even if it had ac-

cepted the magistrate judge’s finding of bad faith, that finding

would not have affected its choice of remedy. Because we affirm

the finding of no prejudice, the issue of bad faith likewise cannot

affect our disposition of this appeal.

C. Assistant United States Attorney Young Did Not Have a Con-

flict of Interest.

Esformes also argues that prosecutor Elizabeth Young “had

multiple conflicts of interest that should have disqualified her as a

matter of law . . . .” He argues that she should have been disquali-

fied because she “inject[ed] her personal interest in opposition to

Esformes’[s] motions to dismiss or disqualify” and impermissibly

served as both a witness and an advocate in the disqualification pro-

ceedings. We reject these arguments.

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1. Young Was Not an “Interested Prosecutor.”

“[F]ederal prosecutors are prohibited from representing the

[g]overnment in any matter in which they, their family, or their

business associates have any interest.” Young v. United States ex

rel. Vuitton et Fils S.A., 481 U.S. 787, 803 (1987) (citing 18 U.S.C.

§ 208(a)). The decision in Young “establish[ed] a categorical rule

against the appointment of an interested prosecutor”: such an ap-

pointment is treated as a structural error not subject to harmless-

error analysis. Id. at 814 (plurality opinion); see also United States

v. Siegelman, 786 F.3d 1322, 1329 (11th Cir. 2015).

Esformes argues that Young was “interested” because she

had a personal, professional interest in having the magistrate

judge’s finding of bad faith reversed. Young was represented by

outside counsel at the disqualification hearing, and her counsel em-

phasized that “the findings as recommended by the magistrate

[would] have serious ramifications to Ms. Young professionally.”

According to Esformes, Young “put her self-interest at the center

of this controversy[,]” and the district court wrongly took that per-

sonal interest into account when it specifically cited “the adverse

consequences of [the magistrate judge’s credibility] findings to the

careers of the prosecutors.” Because Young had a “dominant role

in Esformes’[s] prosecution[,]” Esformes maintains that her conflict

of interest is enough to require vacatur of his convictions. We dis-

agree.

Young’s professional interest in avoiding sanctions from the

district court did not disqualify her as an “interested prosecutor.”

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18 Opinion of the Court 19-13838

Every advocate has a personal, professional interest in the success

of his matters. And every attorney has a strong personal interest in

avoiding sanctions by a court, formal or not, because of their po-

tential impact on an attorney’s career. We recognized the magni-

tude of this interest in United States v. Shaygan, in which we held

that it was a violation of prosecutors’ due process rights for a court

to publicly reprimand them without notice and an opportunity to

be heard, including the benefit of personal legal representation. 652

F.3d 1297, 1317–18 (11th Cir. 2011). Young exercised the rights we

recognized in Shaygan to challenge a sanction against her. A pros-

ecutor who exercises her constitutional right to protect her profes-

sional reputation does not disqualify herself from further proceed-

ings by that same act. If self-defense of that sort were enough to

require recusal, any accused could disqualify his prosecutors by ac-

cusing them of misconduct.

2. Young Did Not Violate the Advocate-Witness Rule.

Esformes also argues that Young violated the rule that advo-

cates may not testify in a case when she participated in the hearing

on the motion to disqualify her, see United States v. Hosford, 782

F.2d 936, 938 (11th Cir. 1986), but this challenge also fails. Even if

it were error for Young to have testified at the hearing before the

magistrate judge, Esformes invited that error when he called her to

the stand, and he cannot complain about it now. See United States

v. Ross, 131 F.3d 970, 988 (11th Cir. 1997). But apart from the in-

vited-error bar, we would reject Esformes’s argument because

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19-13838 Opinion of the Court 19

Young was not a “witness” in the sense governed by the advocate-

witness rule.

Esformes’s objection misunderstands the advocate-witness

rule. That rule responds to the concern that “the prestige or prom-

inence of a government prosecutor’s office will artificially enhance

his credibility as a witness” or that “the performance of dual roles

by a prosecutor might create confusion on the part of the trier of

fact as to whether the prosecutor is speaking in the capacity of an

advocate or of a witness . . . .” Hosford, 782 F.2d at 938–39 (quoting

United States v. Johnston, 690 F.2d 638, 643 (7th Cir. 1982)). The

classic case involves an advocate testifying against the defendant at

trial. See, e.g., Walker v. Davis, 840 F.2d 834, 836 (11th Cir. 1988)

(“[The prosecutor and the defendant] were the only two witnesses

to give testimony concerning [the defendant’s] alleged confes-

sion.”) Young was not testifying to the jury about the charges in

the case but was instead testifying to a magistrate judge about her

own investigatory work. She was not serving as both an advocate

and a witness in the way that the traditional rule envisions, and so

her actions were consistent with the rule’s requirements.

D. The District Court Properly Admitted Dr. Cifu and Denied Es-

formes’s Motion for Acquittal.

Esformes argues that the district court abused its discretion

when it admitted Dr. Cifu’s expert testimony and that this error

entitles him to acquittal or vacatur “on the counts involving

healthcare services, including [c]ount [o]ne which resulted in a

hung-jury.” As we explained above, we lack jurisdiction to consider

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20 Opinion of the Court 19-13838

his arguments with respect to count one. We reject his other argu-

ments because the district court did not abuse its discretion when

it admitted Dr. Cifu’s testimony.

Esformes challenges the admission of Dr. Cifu’s testimony

on three grounds. First, he argues that Dr. Cifu’s testimony differed

so greatly from the government’s pretrial disclosures that it should

not have been allowed. Second, he argues that the district court

erred by deferring its Daubert ruling until after Dr. Cifu testified.

And third, he argues that the district court did not properly apply

the Daubert factors when it admitted Dr. Cifu’s testimony.

Esformes offers a skeletal argument, similar to his two ob-

jections before the district court, that “the substance of [Dr.] Cifu’s

trial testimony differed materially from the government’s pretrial

disclosures.” But aside from a bare citation to the disclosures, Es-

formes does not support his assertion. “We have long held that an

appellant abandons a claim when he either makes only passing ref-

erences to it or raises it in a perfunctory manner without support-

ing arguments and authority.” Sapuppo v. Allstate Floridian Ins.

Co., 739 F.3d 678, 681 (11th Cir. 2014). So we decline to address the

merits of this contention.

Esformes’s next argument is that “the district court failed to

perform the gatekeeping function required by Daubert” when it

deferred ruling on the government’s Daubert motion until after

Dr. Cifu testified. This argument relies on a supposed categorical

rule that the district court must never allow the jury to hear an

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19-13838 Opinion of the Court 21

expert’s testimony before ruling on it. But there is no categorical

rule that constrains the district court’s discretion.

To protect the jury from confusion by unreliable experts,

the district court must “evaluate the reliability of the testimony be-

fore allowing its admission at trial.” Frazier, 387 F.3d at 1262. The

district court has broad discretion to formulate the procedures to

make that admissibility determination and is not required, for ex-

ample, to conduct a separate Daubert hearing. See United States v.

Hansen, 262 F.3d 1217, 1234 (11th Cir. 2001). Likewise, neither the

Federal Rules of Evidence nor our caselaw categorically require the

district court to prevent the jury from hearing evidence that has

not yet been admitted. Instead, with the exception of hearings on

the admissibility of confessions, “[a] great deal must be left to the

discretion of the judge who will act as the interests of justice re-

quire.” See FED. R. EVID. 104 advisory committee’s note to 1972

proposed rule.

Esformes has not established that the district court abused

its discretion. The district court completed its Daubert evaluation,

as required, before it admitted Dr. Cifu’s testimony. Esformes ar-

gues that the decision to defer the ruling until after the jury heard

Dr. Cifu’s testimony is a per se abuse of discretion, but there is no

authority for that categorical rule of law. And Esformes fails to ex-

plain what about his trial rendered the procedure the district court

employed an unreasonable exercise of discretion. And even if the

district court had erred by allowing Dr. Cifu to testify before his

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22 Opinion of the Court 19-13838

admission, that error would be harmless because Dr. Cifu’s testi-

mony was properly admitted. See FED. R. CRIM. P. 52(a).

Finally, the district court did not abuse its discretion when it

admitted Dr. Cifu’s expert opinion testimony. When it decides

whether to admit an expert witness, the district court must deter-

mine whether “(1) the expert is qualified to testify competently re-

garding the matters he intends to address; (2) the methodology by

which the expert reaches his conclusions is sufficiently reliable . . . ;

and (3) the testimony assists the trier of fact . . . to understand the

evidence or to determine a fact in issue.” Frazier, 387 F.3d at 1260

(quoting City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548,

562 (11th Cir. 1998)); see also FED. R. EVID. 702; Daubert, 509 U.S.

at 592–93. The district court reasonably applied this standard when

it relied on Dr. Cifu’s background in skilled nursing care to qualify

him, did not “skip[] the methodology requirement” (as Esformes

argues) when it did not require specific scientific methods for his

testimony, and reasonably found the testimony helpful to the jury.

As to the first factor, the district court found that Dr. Cifu

was qualified to speak about skilled nursing facility practices based

on his education and experience. The district court found that he

had “been a physiatrist and medical director at [skilled nursing fa-

cilities] for the last 30 years[,] . . . a professor at a medical school[,]

. . . [and author of] 230 scholarly articles . . . and 30 book chapters

or books on a wide range of topics.” Because of that professional

experience, he was “familiar with the rules, regulations, and man-

uals of Medicare.”

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19-13838 Opinion of the Court 23

Esformes complains that Dr. Cifu “had no experience with

primary psychiatric admissions” and was unfamiliar with Florida’s

regulations requiring medical certification for admission to a skilled

nursing facility. Those regulations, Esformes argues, undermine

Dr. Cifu’s testimony because Florida already has measures to pre-

vent patients from unnecessarily entering skilled nursing facilities.

See Fla. Admin. Code Ann. r. 59G-1.040. He also argues that Dr.

Cifu misunderstood the role of Medicare regulations in governing

skilled nursing facilities’ operations. Esformes’s arguments are mis-

placed.

Dr. Cifu was not offered as an expert psychiatrist or an ex-

pert in Florida state regulations. What Esformes describes as a lack

of experience with psychiatric admissions was part of Dr. Cifu’s tes-

timony: in his experience, there were few to no psychiatric admis-

sions to the kind of facilities where he worked. The government as

“proponent of the testimony does not have the burden of proving

that it is scientifically correct, but that by a preponderance of the

evidence, it is reliable.” Allison v. McGhan Med. Corp., 184 F.3d

1300, 1312 (11th Cir. 1999). Esformes’s arguments were permissible

to undermine the inferences the jury might have drawn from Dr.

Cifu’s testimony, but those arguments do not establish that Dr.

Cifu was not an expert in his field.

Second, the district court properly found that Dr. Cifu’s tes-

timony was reliable even though he “didn’t do any testing” or use

“scientific methods.” “The trial court must have the same kind of

latitude in deciding how to test an expert’s reliability . . . as it enjoys

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24 Opinion of the Court 19-13838

when it decides whether that expert’s relevant testimony is relia-

ble.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). In

some cases, an admissible expert will need rigorous scientific or sta-

tistical analysis, but Daubert also allows for admitting experts

whose methods are less formal, such as when an expert testifies

primarily based on experience. See id. at 151. The proponent of the

testimony in such a case must “explain how that experience led to

the conclusion he reached, why that experience was a sufficient ba-

sis for the opinion, and just how that experience was reliably ap-

plied to the facts of the case.” Frazier, 387 F.3d at 1265. Dr. Cifu’s

experience with skilled nursing facilities as a practitioner, adminis-

trator, and educator was both extensive and directly on point, and

he painstakingly explained the basis of his bottom-line opinions

with reference to hypothetical examples, his own personal experi-

ence with patients, and federal regulations. No more “scientific”

methodology was necessary.

Third, we affirm the ruling that Dr. Cifu’s testimony was

helpful to the jury. Although Esformes asserts that the district court

“never even mentioned” this requirement, the district court, in

fact, made a specific finding on the record that the testimony was

helpful:

I . . . think his testimony was helpful to the jury in un-

derstanding the relationship between how [skilled

nursing facilities] work, how patients come in and out

of [skilled nursing facilities], what types of treatment

are generally required in a [skilled nursing facility],

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19-13838 Opinion of the Court 25

and to also help them understand the relationship be-

tween the Medicare rules and regulations and guide-

lines as they pertain to [skilled nursing facilities] and

other rehabilitation facilities.

Esformes has given us no reason to reject this finding.

Esformes’s argument that he is entitled to a judgment of ac-

quittal for his “counts involving healthcare services” fails along

with his objections to Dr. Cifu’s testimony. Esformes argues that,

without Dr. Cifu’s allegedly inadmissible testimony and its conclu-

sion that psychiatric patients are always unsuitable for skilled-nurs-

ing-facility care, there was no reasonable basis for the jury’s verdict.

But the district court did not err in admitting Dr. Cifu’s testimony.

And we must presume that the jury followed the district court’s

instruction that psychiatric patients may sometimes belong in

skilled nursing facilities. See Almanzar, 634 F.3d at 1222. Esformes

also fails to engage with the other evidence presented in his two-

month trial and falls well short of establishing that no rational jury

could have found him guilty of healthcare fraud beyond a reasona-

ble doubt. Cf. id. at 1221.

E. The District Court’s Restitution Order Was Not Clearly Erro-

neous.

Esformes argues that the restitution order was clearly erro-

neous. He contends that the restitution order was not based on

“the amount of loss actually caused by [his] conduct” because there

was no evidence of any loss to the government at all. United States

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26 Opinion of the Court 19-13838

v. Huff, 609 F.3d 1240, 1247 (11th Cir. 2010) (internal quotation

marks and emphasis omitted). And he argues that even if there was

loss, the district court calculated it unreasonably and with reference

to unreliable evidence. We disagree.

There was plenty of evidence of actual loss to the govern-

ment; indeed, defrauding the government was the core of the Es-

formes Network conspiracy. Esformes’s only argument to the con-

trary is that the evidence of loss came from Dr. Cifu’s testimony,

which was unreliable and should not have been admitted. We have

already rejected that argument. Because it was reasonable for the

jury to find Esformes had defrauded the government beyond a rea-

sonable doubt, it was not clearly erroneous for the district court to

find a loss to the government by a preponderance of the evidence.

See Anderson v. City of Bessemer City, 470 U.S. 564, 573–74 (1985)

(“If the district court’s account of the evidence is plausible in light

of the record viewed in its entirety, the court of appeals may not

reverse it . . . .”); see also United States v. Bradley, 644 F.3d 1213,

1298 (11th Cir. 2011).

Nor did the district court make an “arbitrary” calculation

based on an unqualified witness’s testimony. Esformes criticizes

the district court for relying on an unreliable former Esformes Net-

work nurse, Ada Maxine Ginarte, to calculate the extent of the gov-

ernment’s loss. Esformes misinterprets the record: the district

court did not rely on Ginarte’s testimony. Ginarte testified that ten

percent of her patients did not belong in her facility, but the district

court assumed that only one percent of Esformes Network patients

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19-13838 Opinion of the Court 27

were improperly placed in a skilled nursing facility. The district

court relied on the government’s summary witness, who estimated

that $4.45 million of the payments received by the Esformes Net-

work were based on young psychiatric patients housed at skilled

nursing facilities, along with Esformes’s counsel’s estimation that

one percent of patient payments fit that description. “[A] district

court may accept a reasonable estimate of the loss based on the

evidence presented[,]” United States v. Cobb, 842 F.3d 1213, 1220

(11th Cir. 2016) (internal quotation marks omitted), and Esformes

has not established that the district court’s estimate based on this

evidence was unreasonable.

F. The District Court’s Forfeiture Order Was Lawful.

Finally, Esformes challenges the judgment of forfeiture

against him. He argues that the convictions underlying the forfei-

ture fail as a matter of law and that the district court unconstitu-

tionally overrode the jury’s forfeiture verdict. These arguments

fail.

It is a federal crime to engage in a transaction knowing that

it “is designed in whole or in part . . . to conceal or disguise the

nature, the location, the source, the ownership, or the control of

the proceeds of specified unlawful activity . . . .” 18 U.S.C.

§ 1956(a)(1)(B)(i). And although “transactions [that] are engaged in

for present personal benefit, and not to create the appearance of

legitimate wealth” do not constitute money laundering, United

States v. Blankenship, 382 F.3d 1110, 1130 (11th Cir. 2004) (quoting

United States v. Garcia-Emanuel, 14 F.3d 1469, 1474 (10th Cir.

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28 Opinion of the Court 19-13838

1994)), those transactions can constitute money laundering if they

are unusually structured to disguise the source of the funds, see id.

at 1129. When a defendant is found guilty of federal money laun-

dering, the district court “shall order that the person forfeit to the

United States any property, real or personal, involved in such of-

fense, or any property traceable to such property.” 18 U.S.C.

§ 982(a)(1).

1. Legally Sufficient Evidence Supported Esformes’s Money-Laun-

dering Convictions.

The government presented “substantial evidence of pur-

poseful concealment” of the proceeds of Esformes’s crimes. See

United States v. Naranjo, 634 F.3d 1198, 1208 (11th Cir. 2011). The

Delgados testified that they financed kickbacks and bribes by artifi-

cially inflating medical invoices for medical equipment that they

sent to Esformes Network facilities. When the Esformes Network

paid these invoices, it reimbursed the Delgados for paying kick-

backs and bribes to doctors. Esformes and the Delgados “struc-

tur[ed] the transaction in a way to avoid attention” and to share the

proceeds of the illegal Medicare and Medicaid payments without

being detected. See id. (quoting United States v. Majors, 196 F.3d

1206, 1213 n.18 (11th Cir. 1999)). Moreover, the Delgados testified

that they were the intermediaries for payments for limousines and

female “companions” for Esformes and used shell accounts to fa-

cilitate Esformes’s scheme to bribe the University of Pennsylvania

basketball coach. The jury was entitled to rely on this evidence to

find that Esformes committed money laundering.

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19-13838 Opinion of the Court 29

2. Esformes’s Sentence Did Not Violate the Constitution.

Esformes separately argues that the forfeiture judgment is

unlawful because the district court made its own calculation of the

amount of forfeiture that was different from the jury’s special ver-

dict about the forfeiture of some of Esformes’s property. This ar-

gument is foreclosed by Supreme Court precedent.

When district courts assess statutorily required criminal for-

feiture, they follow Rule 32.2 of the Federal Rules of Criminal Pro-

cedure. The rule contemplates two types of forfeiture determina-

tions: a court can order forfeiture of an amount of money, or it can

order the forfeiture of specific pieces of property. “If the govern-

ment seeks a personal money judgment, the court must determine

the amount of money that the defendant will be ordered to pay.”

FED. R. CRIM. P. 32.2(b)(1)(A). Likewise, by default “the court must

determine what property is subject to forfeiture under the applica-

ble statute.” Id. But in a jury case, either party can “request[] that

the jury be retained to determine the forfeitability of specific prop-

erty if it returns a guilty verdict.” FED. R. CRIM. P. 32.2(b)(5)(A).

The jury then “determine[s] forfeiture” via a special verdict. FED.

R. CRIM. P. 32.2(b)(5)(B). But even then, the jury only determines

“the forfeitability of specific property,” and “a party is not entitled

to a jury finding regarding a money judgment.” United States v.

Curbelo, 726 F.3d 1260, 1277 (11th Cir. 2013).

The district court followed Rule 32.2 to the letter. The jury

returned a special verdict finding certain properties forfeitable, and

the district court calculated a money judgment afterward.

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30 Opinion of the Court 19-13838

The Supreme Court has already rejected the argument that

this procedure violates a defendant’s right to a jury trial. The Court

explained in Libretti v. United States that “the right to a jury verdict

on forfeitability does not fall within the Sixth Amendment’s consti-

tutional protection.” 516 U.S. 29, 49 (1995). Esformes insists that

this statement was dictum that more recent decisions have under-

mined. But we rejected this exact argument in United States v.

Elbeblawy and explained that “we must follow the case which di-

rectly controls, leaving to the Supreme Court the prerogative of

overruling its own decisions.” 899 F.3d 925, 941 (11th Cir. 2018)

(internal quotation marks omitted) (alterations adopted).

Esformes also argues that, even if judicial determination of

forfeiture is not per se unconstitutional, it is unconstitutional if it

conflicts with a previous jury verdict. See Brown v. Ala. Dep’t of

Transp., 597 F.3d 1160, 1184 (11th Cir. 2010) (explaining that the

Seventh Amendment requires that courts defer to jury findings

when they sit in equity). This argument is misplaced because the

jury and judge answered different questions. The jury calculated

the “forfeitability of specific property[,]” FED. R. CRIM. P.

32.2(b)(5)(A), but the judge calculated a lump-sum money judg-

ment. The judge did not override the jury’s verdict by providing a

different answer from that provided by the jury when it was an-

swering a different question. Cf. United States v. Watts, 519 U.S.

148, 155–56 (1997) (explaining that a jury’s acquittal of conduct

does not require that the district court at sentencing find by a pre-

ponderance of the evidence that the conduct did not occur).

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19-13838 Opinion of the Court 31

Esformes’s other constitutional challenges are even weaker.

Esformes contends that the application of Rule 32.2 violated the

Double Jeopardy Clause and the Eighth Amendment’s prohibition

of “excessive fines.” U.S. CONST. amends. V, VIII. Because Es-

formes’s Double Jeopardy argument is presented in a single sen-

tence with a citation to a case not involving forfeiture, it is forfeited.

Sapuppo, 739 F.3d at 681. And Esformes’s excessive-fines argument

fails on the merits.

The Constitution prohibits “excessive fines,” including ex-

cessive forfeitures. U.S. CONST. amend. VIII; see United States v.

Bajakajian, 524 U.S. 321, 327–28 (1998). But “[i]f the value of the

forfeited property is within the permissible range of fines under the

relevant statute or sentencing guideline, the forfeiture is presump-

tively constitutional.” United States v. Waked Hatum, 969 F.3d

1156, 1168 (11th Cir. 2020). The maximum fine for Esformes’s

money-laundering crimes is “twice the value of the property in-

volved in the transaction.” 18 U.S.C. § 1956(a)(1). And the district

court found that the $38.7 million Esformes derived from the Es-

formes Network was “equal in value to the property traceable to

the property involved in” Esformes’s crimes, so Esformes could

have been fined up to $77.4 million under the statute.

Esformes does not contest the $38.7 million calculation of

the value of the property “involved in” his crimes, so any forfeiture

under $77.4 million was presumptively constitutional. And Es-

formes offers no basis to rebut that presumption.

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32 Opinion of the Court 19-13838

IV. CONCLUSION

We AFFIRM Esformes’s convictions, restitution award, and

forfeiture judgment.

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19-13838 GRANT, J., Concurring 1

GRANT, Circuit Judge, concurring:

I write separately to offer a cautionary word about

Esformes’s second Daubert argument. Because the ultimate

decision to admit Dr. Cifu’s expert testimony was proper, the

district court did not reversibly err by deferring its admissibility

ruling until after the jury had heard his testimony. But that is all

the majority opinion (which I join in full) stands for on this

question. As a general matter, a wait-and-see approach to

admissibility for expert testimony is fraught with risk.

Expert evidence is unique in its capacity to be “both

powerful and quite misleading because of the difficulty in

evaluating it.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,

595 (1993) (quotation omitted). Because an “expert’s testimony

often will rest upon an experience confessedly foreign in kind to

the jury’s own,” the trial judge must separately work “to assure

that the specialized testimony is reliable and relevant” and to “help

the jury evaluate that foreign experience.” Kumho Tire Co. v.

Carmichael, 526 U.S. 137, 149 (1999) (quotation omitted and

alteration adopted). Consequently, a trial court “abuses its

discretion by failing to act as a gatekeeper” regarding the reliability

of expert testimony. McClain v. Metabolife Int’l, Inc., 401 F.3d

1233, 1238 (11th Cir. 2005). “The importance of Daubert’s

gatekeeping requirement cannot be overstated.” United States v.

Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en banc).

Esformes argues that the district court’s approach to

gatekeeping here was a “per se abuse of discretion.” See Maj. Op.

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2 GRANT, J., Concurring 19-13838

at 21. As the majority notes, “there is no authority for that

categorical rule of law.” Id. True enough. But there is also no

authority for the inverse point—that a district court can wait until

the conclusion of an expert’s testimony to a jury before it rules on

admissibility.

Instead, precedent suggests that waiting to qualify expert

witnesses until after their testimony is usually misguided. The

Daubert Court described the gatekeeping inquiry as a “preliminary

assessment” made “at the outset” to determine what an expert is

“proposing to testify” about. Daubert, 509 U.S. at 592. Our own

caselaw also frames its analysis in the future tense. A gatekeeper’s

role is to assess “the expert’s qualifications, the reliability of the

testimony, and the extent to which the testimony will be helpful to

the trier of fact.” United States v. Azmat, 805 F.3d 1018, 1041 (11th

Cir. 2015) (emphasis added).

It is true that the gatekeeping inquiry required under Rule

702 is “a flexible one” and that “Daubert hearings are not required

by law or by rules of procedure.” City of Tuscaloosa v. Harcros

Chem., Inc., 158 F.3d 548, 562 n.16, 564 n.21 (11th Cir. 1998)

(quotation omitted). But “discretion in choosing the manner of

testing expert reliability” is not the same as “discretion to abandon

the gatekeeping function” or to “perform the function

inadequately.” McClain, 401 F.3d at 1238 n.4 (quoting Kumho Tire

Co., 526 U.S. at 158–59 (Scalia, J. concurring)). A court cannot be

an effective gatekeeper for witnesses who are already through the

gate.

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19-13838 GRANT, J., Concurring 3

The majority identifies a situation where admissibility

hearings “must” be conducted outside the presence of a jury per

Federal Rule of Evidence 104: if the hearing “involves the

admissibility of a confession.” Maj. Op. at 21; Fed. R. Evid. 104(c).

Rule 104(c) also applies where “justice so requires.” Fed. R. Evid.

104(c)(3). But the danger here was not conducting Dr. Cifu’s

admissibility hearing in front of the jury—it was holding that

hearing after he had already testified.

To be sure, juries sometimes “inadvertently” hear

inadmissible evidence, and we generally assume that they will

follow an instruction to disregard it. United States v. Stone, 9 F.3d

934, 938 (11th Cir. 1993). But expert witnesses deserve extra

caution. “[N]o other kind of witness is free to opine about a

complicated matter without any firsthand knowledge” based on

“otherwise inadmissible hearsay.” Frazier, 387 F.3d at 1260. Here,

because the expert testimony was admissible, any error about

when it was admitted is harmless. I simply note that—more than

in other evidentiary contexts—a district court’s decision to permit

expert testimony without first assessing its admissibility risks

creating a reversible error. After all, “abdication” of a gatekeeping

role is “in itself an abuse of discretion.” McClain, 401 F.3d at 1238.

In short, even if there is no “per se rule compelling such a

procedure in every case,” treating an admissibility determination

as a preliminary question to expert testimony “may often be

advisable.” Watkins v. Sowders, 449 U.S. 341, 349 (1981).