United States v. Philip Esformes ( 2023 )

USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 1 of 35
[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
____________________
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 2 of 35
2 Opinion of the Court 19-13838
____________________
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
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 3 of 35
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
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 4 of 35
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.
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 5 of 35
19-13838 Opinion of the Court 5
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
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 6 of 35
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
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 7 of 35
19-13838 Opinion of the Court 7
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
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 8 of 35
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.
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 9 of 35
19-13838 Opinion of the Court 9
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-
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 10 of 35
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
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 11 of 35
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
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 12 of 35
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.
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 13 of 35
19-13838 Opinion of the Court 13
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
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 14 of 35
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
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 15 of 35
19-13838 Opinion of the Court 15
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.
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 16 of 35
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.
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 17 of 35
19-13838 Opinion of the Court 17
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.”
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 18 of 35
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
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 19 of 35
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
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 20 of 35
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
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 21 of 35
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
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 22 of 35
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.”
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 23 of 35
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
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 24 of 35
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],
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 25 of 35
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
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 26 of 35
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
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 27 of 35
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.
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 28 of 35
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.
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 29 of 35
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.
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 30 of 35
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).
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 31 of 35
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.
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 32 of 35
32 Opinion of the Court 19-13838
IV. CONCLUSION
We AFFIRM Esformes’s convictions, restitution award, and
forfeiture judgment.
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 33 of 35
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.
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 34 of 35
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.
USCA11 Case: 19-13838 Document: 120-1 Date Filed: 01/06/2023 Page: 35 of 35
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).