\n\n“Esformes was not convicted of the most serious charges leveled against him. The government failed to convince a jury, for example, that he committed conspiracy to commit health care fraud and wire fraud. So his 20-year sentence\u2014handed down by U.S. District Judge Robert N. Scola of the Southern District of Florida\u2014may appear grossly disproportionate to his convictions. <\/p>\n\n\n\n
Until you realize the judge explicitly punished Esformes for charges on which the jury hung.<\/p>\n\n\n\n
That is not an error. “When somebody gets sentenced [at the federal level]\u2026they get sentenced on all<\/em> charges, even the ones they’re acquitted on, [as long as] they get convicted on one count,” says Brett Tolman, the former U.S. Attorney for the District of Utah who is now the executive director of Right on Crime. It is a little-known, jaw-dropping part of the legal system: Federal judges are, in effect, not obligated to abide by a jury’s verdict at sentencing. They can, and do, sentence defendants for conduct on which they were not convicted. In this case, Esformes was already sentenced\u2014and had that sentence commuted\u2014for the crimes that the DOJ now wants to retry.<\/p>\n\n\n\n “This defendant, as much as you might not like him\u2026do you think he should be punished two or three times for the same conduct?” asks Tolman. “I don’t find anybody who thinks that’s fair.””<\/p>\n\n\n\n