Prosecutors and defense lawyers have agreed to postpone the health care fraud sentencing of a Florida eye doctor who also faces a separate trial next month in a corruption case with Sen. Bob Menendez (D-N.J.).
Attorneys for wealthy ophthalmologist and campaign donor Salomon Melgen on Thursday disclosed the agreement to put off the fraud sentencing in a court filing. Melgen was convicted in April of improperly billing the federal government for more than $100 million in medical insurance payments.
Melgen’s fraud case and the lead-up to his expected sentencing were being closely watched to see whether he would try to cut a deal with prosecutors, which could affect the separate, higher-stakes corruption case. That case centers on allegations Menendez used his office to help Melgen, a longtime friend, in exchange for hundreds of thousands of dollars in gifts and political donations.
There were no public indications Thursday that Melgen was seeking a deal. Sources close to the case told POLITICO the delay was due to scheduling concerns and the need for the defense to prepare for the looming corruption trial in Newark.
Jury selection in that case, where Melgen and Menendez are co-defendants, is set to begin Aug. 22. Opening arguments are scheduled for Sept. 6.
In a terse court filing Thursday afternoon, Melgen’s attorneys suggested that the sentencing hearing originally scheduled to take place starting at 9 a.m. Friday in federal court in West Palm Beach was likely to be protracted. They said it would be better to hold it after the Newark corruption trial is complete.
“The parties in this matter have conferred and agree that the sentencing in this matter is likely to take more than one day,” Melgen’s attorneys Kirk Ogrosky, Murad Hussain and Matthew Menchel wrote. “Given the pending trial in the District of New Jersey and the schedules of counsel, Dr. Melgen requests that the sentencing be continued until after the trial in the District of New Jersey is concluded. After consultation with the prosecution, all parties agree that a continuance is merited.”
U.S. District Court Judge Kenneth Marra agreed to the delay but did not immediately set a date for a new sentencing hearing.
An attorney for Melgen declined to comment on the development. A lawyer for Menendez did not immediately respond to requests for comment.
A spokeswoman for the U.S. attorney’s office in Miami said the sentencing in the health care fraud case would likely take place in October or later, but declined to comment further.
The last-minute change to the timing came as it was revealed this week that Melgen could face a sentence of 30 years or more in the health care fraud case, if a judge goes along with sentencing guidelines calculated by a probation officer.
In recent days, there have been no public signs of cooperation between Melgen and prosecutors. In fact, lawyers for both sides continued to battling aggressively over Melgen’s sentence and over his effort to try to pay his massive legal bills by tapping personal funds pledged as bail.
Melgen was free on bail before and during his two-month trial, but the bail was revoked and he was taken into custody April 28, when the jury returned the dozens of guilty verdicts.
Whenever the sentencing takes place, Marra can issue a lighter sentence than called for by the guidelines, but he is required to calculate the recommended sentence and to explain his reasons for a lower sentence.
A defense sentencing filing submitted to the judge on Tuesday seemed to treat a 30-year sentence as an unwelcome, but not impossible, outcome.
“Any lengthy sentence will result in Dr. Melgen’s designation to prisons housing extremely violent inmates,” defense lawyers wrote.
“It is an unnecessary burden on the taxpayers to house a sixty-three-year-old physician in even a low-security prison, much less a medium- or high-security prison. Moreover, the burden on Dr. Melgen, given his age, his background, his health, and his overall vulnerability, would be unbearable,” the defense argued.
One prominent sentencing expert said a 30-year sentence was highly unlikely, given Melgen’s age and other factors.
“It’s extraordinarily rare, unless a judge genuinely thinks this person is the worst of the worst,” said Ohio State University law professor Doug Berman. “I think there is not only a disinclination to follow the guidelines when they run in this aggravated way, but a disinclination to ensure that [defendants] die in prison…That really becomes an interesting actuarial judgment.”
Berman said he believed a sentence in the “ballpark of ten to 20 years” was most likely.
Melgen was accused and convicted in the Florida case of performing tests, procedures and drug injections on the eyes of patients who did not need them. In some cases, he was accused of billing Medicare for tests on eyes that were irretrievably blinded.
Menendez’s attorneys have portrayed the Florida and New Jersey cases as unrelated. However, some of the charges in the corruption case accuse Menendez of intervening with top Health and Human Services Department officials to get them to back down in a multi-million dollar dispute between Melgen and Medicare over his billing for eye injections.
Menendez is also accused of weighing in to try to preserve a port security contract that a Melgen firm held in the Dominican Republican and urging State Department officials to grant U.S. visas to three of Melgen’s girlfriends. Prosecutors contend all the actions were taken by the New Jersey Democrat in exchange for political donations and personal gifts from Melgen, including trips on Melgen’s plane and stays at luxury hotels.