unitedstatesdistrictcourt southerndistrictof ......weiss,mr.esformesandhisfamily“have beenthe...

Case 1:16-cr-20549-RNS Document 1375 Enteredon FLSD Docket 09/09/2019 of 30

UNITEDSTATESOF AMERICA

PHILIPESFORMES

______________________________/

to imposea sentencemeasuredinyears,notdecades,so that this humbledandbroken

mancanhavea chance at redemption.Mr.Esformesintendsto make a personalplea

to the Courtat sentencing,evidencinghis contrition,regret,remorse,andacceptance

of responsibilityfor conduct aboutwhich this Courtheardduring the trial.

through incarcerationthe harsh punishment that society seeks, but that does not

amountto the kindof crushingsentence that so manyjudges,scholars,andeventhe

Presidentof the UnitedStates, feel are excessiveandprofoundlyunjust.

the Courtabouthis personalobservationsof Mr.Esformesover the last 37 months.

He will informthe Court of a new initiativeby Aleph in collaborationwith South

vs.

We submit this memorandumon behalfof PhilipEsformes,to urge the Court

We proposea sentence,whetherby departureor variance,that willaccomplish

We haveinvitedRabbiSholomLipskarofChabad’sAlephInstituteto address

ESFORMES’SSENTENCINGMEMORANDUM

ANDREQUESTFOR A VARIANCE/DEPARTURE

16-CR-20549-SCOLA/OTAZO-REYES

UNITEDSTATESDISTRICTCOURT

SOUTHERNDISTRICTOF FLORIDA


FloridaBehavioralHealthNetwork(“ThrivingMind”).He will proposea sentence

that combinesa significantperiodofcustodialincarcerationwith full-time,probono,

community service as part of supervised release, through which the Court can

achieve all the goals of sentencing, including punishment, rehabilitation and

retribution.1

laundering(just like Mr.Esformes)and was Mr.Esformes’sself-proclaimed50/50

partner,was facing a guideline range of 97-121months under his plea agreement

with the government,beforeconsiderationof his acceptanceof responsibilityand

cooperationagainst Mr. Esformes. Initially Gabriel was sentenced to serve 55

months, which sentence was ultimately reduced to 36 months after he testified

against Mr.Esformes.Gabriel Delgadohas completedthe incarcerationportionof

his sentence.

hours of communityservice during 3 years of supervisedreleasewould representa

muchharshersentencefor Mr.Esformes—morethan triple the 36-monthcustodial

1 In advance of sentencing, we invite the Court to view the 13-minute informational

video that features Aleph’s Rabbi Lipskar, Thriving Mind’s President Dr.

Newcomer, and defendant’s father Morris Esformes, so that the court is acquainted

with these organizations and their work. https://www.thrivingmind.org/thriving-

mind-and-aleph-institute/.

By way of comparison, Gabriel Delgado, who was convicted of money

A sentencefor Mr.Esformesof 120months incarcerationfollowedby 5,000


sentenceserved by GabrielDelgado—andstill longerthan the 110-monthcustodial

sentence imposeduponGuillermoDelgado,who was convicted and sentenced for

drug dealing.(It appears that, for strategic reasons,the governmentis delayingthe

filing of a motionto reduceGuillermo’ssentenceuntil this Court imposessentence

uponMr.Esformes.)And the punishmentwould continue insofar as Mr.Esformes

would be laboring full-time,pro bono, as a community servant to discharge his

5,000-hour obligation over the course of the period of court-imposedsupervised

release.The combinationwould produce an effective total sentence tantamountto

13 years, the last three of which could be under the strictures of home confinement

as a specialconditionof supervisedrelease.

nature and circumstancesof the tried offenses.But the Court does not yet have a

completepictureof the historyandcharacteristicsof the man who was on trial.

Weiss,Mr.Esformesand his family “have been the single door to knock on when

our community, an organization,school, or individual was in need. Not simply

2 Mr.Esformes will submit to the Court tomorrow under separate cover all of the

letters insupport of Mr.Esformes.

The Courtsat through two-monthsof trial,so it is intimatelyfamiliarwith the

As echoed by the more than one hundred letter-writers,2 including Isaac

(a)(1)Natureand Circumstancesof the Offense and

the History and Characteristicsof the Defendant

18U.S.C.§ 3553(a)SENTENCINGFACTORS


writing a check and sendingsomeoneon their way,they take a personalinterestand

get involvedon the most intimatelevel.Withoutquestion,our communitywouldnot

be where we are today withouttheir commitmentand support.” (Isaac Weiss).The

overwhelmingresponsefromemployees,Rabbis,family members,and friends,who

wrote letters to the Court insupportof Mr.Esformes,describea manwhoselifehas

been driven by helping those in need, by giving a hand to someone who was

suffering,and by becominga mantra of good for his community.Although each

letterhighlightsa differentpartof Mr.Esformes,the commonthreadamongthemis

Mr.Esformes’sloyal,kind,andcompassionatebeing – hisdevotionandlovefor his

childrenand his family,his benevolenceand kindnessto friends and strangersalike,

his respect for his employees whetherat the Esformesfacilitiesor at home,and his

lifetimeof helpingpeoplewith no fanfare,neverseekinghonoror credit even when

itwould have been justly deserved.

neededcare to a wide populationof patients and residents in Miami-DadeCounty.

As his employees describe,Mr.Esformes made sure everyone who worked at the

facilities understoodthat patient care was the first priority,and that every resident

was entitledto livein a clean home-likeenvironment.RonaldPearsonstates in his

letter thatMr.Esformeswouldalways tellhis employeesthat theSNFsandthe ALFs

were home to those who residedthere: “[Mr.Esformes]remindedus oftenthat the

The nursing homes and ALFs that Mr. Esformes operated delivered much


residentsare homeandthat we’re the guest,so we should treat them as such.”

observed a man who “was devoted to his resident population.He cared for the

mentallyillwho are so oftenforgottenabout inour society.Heensuredthat they had

the best possible quality of life.He made that a priority for all of us who worked

withhim.Hesaw past a person’smentalillnessandunderstoodthateachpersonwas

an individualwho neededto be respectedand loved.”

for him.FranciscoQuintanadescribeshow “Iwas a young single father with no

educationreallyand I was headednowherefast. Myfuture was not brightand I had

no plans. I just knew that I wanted more for my son and myself.Meeting and

workingwith Philipwas my savinggrace,he took me under his wing and gave me

more opportunitiesthan I ever thought possible He was my mentorandmy friend.

Today I am a NursingHomeAdministrator.. . He helpedso many peopleachieve

their dreams,he helpedpeoplebecomenurses andadministrators,when residentsat

Oceanside wanted to get married he made their wedding possible, when his

employeeshaddeathsintheir families he wouldhelpwith the funerals andwhenmy

youngest son was born and had complicationsand had to remainin NICUfor over

a monthPhilipcalled me daily to see how he was doingand arrangedfor me to have

whatevertime I neededoff so that I can be withmy family.”

Nancy RosenbergGiven, who worked for Mr. Esformes for fifteen years,

To Mr.Esformes,his employeeswere more than just the peoplewho worked


Degreeat Barry University”whenan importanttest was scheduledat the sametime

as an inspectionof the Esformesfacilitieswhereshe worked. “Iwas verydistraught,

thinkingthat I was going to fail my class.At the time I was a workingmomwith

three young daughters and was feeling overwhelmedat the thought of failing my

class.Philipsaw me very upset and personallycontactedmy professor to see if he

would excuse me.” The professorsaid No. Still,Mr.Esformes“was kindenough

to excuseme so I couldtake my test.” Despiteneedingheratwork for the inspection,

Mr.Esformesrecognizedthat taking the test was more important and granted Ms.

Bovo the time. In2005,Ms.Bovo’s“husbandbecamevery illandwas hospitalized

for over a month. . . I couldnot leave his bedside.At no time did Philipdeduct my

pay or any of my paid leave.” Then, in 2009, “my father was diagnosed with

leukemiaanddied inDecember. . . Philipagain paidfor any time I took off anddid

not deductmy pay.”

ways. Nereyda Lopez worked at Harmony for many years. In her letter, she

describeshow “whenmy brother suddenly passedaway,my family and I were not

financiallypreparedto endure the cost of a funeral,thanks to Philipmy brotherhad

a dignifiedfuneral . . . After my brother’spassing,my son was a victimof a terrible

crime.Mysonwas shot inthe back andwas takento the hospitalingrave condition,

Anotheremployee,Ana Bovo,describeshow“Iwas just startingmy Masters

Mr.Esformes’scharitywas abundantand touchedmanylives,inbigandsmall


the first person that went to my side at the hospitalwas Philip,he prayedwith me

and went into the ICUto my son’s side and prayedwith himas well.Philip told me

that anythingI neededhe was there for me.”

staff andcompassionfor his residentsare like no other operator. . . .” The Director

of Nursingat North Dade Nursingand Rehabilitation,Carla describes how “there

has not been a time when I have asked for somethingthat I felt would improvethe

quality of life for our residentsthat [Mr.Esformes]hasn’t provided.He alsomakes

sure that the staff has the necessaryequipmentandsuppliesto performtheir work at

the highest level possible.He visits the facility on a weekly basis to ensure this in

person.He walks the entire buildinghimselfpointingout anythinghe feels needs

correctingor improvementandmakessure that it is corrected.This is the dedication

to the care of the residentsthat he has exhibitedat every interactionI havehadwith

him.”

howMr.Esformes“is very dedicatedto his residents,family & employee’s[sic]and

[a]lways made sure his residents are provided with excellent care and service.

Always made sure they were takencare of.His residentsand their care alwayscame

first . . . The residents love him.The community loves him.His friends & family

lovehim.Thereare not a lotofpeople like this inthis worldandthis is what we need

Employeeslike Carla Bontempshave also described Philip’s “love for his

AnetaMihale,the bookkeeperof various Esformesnursinghomes,describes


more of.His dedicationto the residentswho enteredhis nursinghomes was always

#1.They always receivedthe best care,always treatedeveryonelike family.”

my sister committedsuicide at 38 yrs of age,andPhilipreachedout to me in a way

that made me forever in his debt. He called me and told me whateveryou need,as

muchtime as you need,anythingI can do,you just let me know.”Two years later,

“[i]n2007,he paidfor my schoolingto becomea LicensedPracticalNurse,withno

hesitation, because he was very pro people bettering themselves,and achieving

lifelonggoals. I saw him a countless times give money from his pockets to any of

the residents that asked him for any money.He [would]just stick his hand in his

pocket,andwhateverbillcame out,was what he gave,no questionsasked.”

leads by example . . . Philipis a personthat seeks out ways he canassistothers,he

does not wait for opportunitiesto knock on his door.Philip’s acts of kindness are

not prejudice against anyone.The positive impact Philip had on my life is almost

impossibleto describe. . . Philip'sdesire to help othersburns inhis heart.Startinga

food pantry for the poor,deliveringpackages to needy families when he was kid,

donatingbasketballuniformsbecause a randomstudent requestedof him,attending

schoolmeetings,and arrangingnecessities to be deliveredto people he's never met

are some examplesof the things that usedto consumePhilip'sdays.”

JackieZapata,who workedat Oceanside,recountedthat “[o]nJuly 15,2015,

Friendsandfamily likeIsaacKnopfdescribeMr.Esformesas “someonethat


up together in Chicago and their families have been very close for more than 40

years. Mr.Esformes“facedquite a bit of adversitygrowingup,but founda way to

overcome and persevereeven in the face of immensepersonalobstacles.Philip is

competitive.He is intense.He is aggressive.He doesn't like to lose. He is uber

motivatedto succeed.And, with all of that, there is another side to Phillip which

many people don’t see or understand. Unbeknownst to many, under his hard

chargingexterior,lies a kind,caring,supportive,andgenerous soul . . . My brother

was terminally illand spent many months at Children’sMemorialHospital.Many

times when at our house it was Philip who helped change my brother’s IV bags,

helpedcarry himup to his bedoff the bathroomfloor whenhe was too weak,andit

was Philiphe broughthim his spittoonwhen he had to throw up quickly and could

not make it to the toilet intime.”

years ago when I was approachedby an acquaintancefor financialhelp for a late

middle-agewomanwhomI did not know,who had lost her husbanda year prior.”

Mr. Hahn raised some funds to help this woman,but was significantlyshort. He

reachedout to Mr. Esformes,seeking help for a stranger.“Mr.Esformesseemed

truly interestedin the plight of this womanhehadnevermet or heardof before.He

askedme howmuchwe hadraisedand saidhe wouldmatchthe totalof the amount.

DoniCohenis one ofMr.Esformes’s“oldestanddearest friends.” They grew

For Thomas Hahn,his relationshipwith Mr.Esformes“changed about six


It was a large sum of money! Moreover,he volunteered to speak with people he

knew at one of the Jewishsocialagenciesmy friendwas dealingwith,to ensure that

the lady’s case would get appropriate attention . . . Mr. Esformes had only one

condition for his contribution.We were not to disclose it to anyone and that

definitely includedthe beneficiary.”For Mr.Esformes,helpingthis personin need

was “clearlynot made for any [other]reasonsbut out of a sincere desire to help and

to act on his feelingsof caringandcompassionfor anotherhumanbeing;in this case,

a complete stranger.This all bespeaks Mr.Esformesto be a man of true character,

sincere generosity and genuine compassion for others. I know only of a few,

vanishinglysmall numberof peoplewho would'veacted the same way he did.”

in need: “He was always the advocate not only for his own children,but the less

fortunate,those that were shunnedby others. He made sure there was a place for

themat his table,madesure theywere alwaysinvitedto hishome. Welcomingthem,

and beingprotectiveof them as well.” Ms.Ciment describeshow “Imyself have

seen PhilipEsformesgo before a tuitionpaneland plead and beg for admissionfor

3 studentswho were not allowedentry into a schoolbecauseof financialsetbacks.

I have seen him sit at beside the bed of a friend felled by a stroke, praying and

comforting the family.This is the father who would coach his children’s teams,

makingsure that nochild wouldbe leftbehindbecauseof his lackof skills. Hehas

SharonCimenthas experiencedMr.Esformes’scharityand loveforchildren

Case 1:16-cr-20549-RNS Document 1375 Enteredon FLSD Docket 09/09/2019 Page11of 30

always beenthe championof the less skilledand less fortunate.”

sorrow for his predicament,praises God for allowinghim life to see his children

marry and flourish. “[T]hepersonwhomwill be standingbefore you on the day of

his sentencingis the same manwho,not once but twice,swept into my life like an

angel and gave me anotheropportunityat life.Myname is MosheBehar and I’ma

paraplegic.I was ina horribleaccidentwhile ridingmy bicycleback in2006 which

almost took my lifeandsince then,I’vehadto livemy life in a wheelchair.Unable

to take care of myself,unable to providefor my family.But a few years before that

horrible accident,I was a strong,hardworkingfamily man with a wonderfulwife

and three beautifulyoung children.And I had fallen on some hard times.After an

unfortunatebusiness venture did not go so well for me, I found myself in serious

financialtroubles andfelt like I had no way out.That year, I prayedlikeI hadnever

prayedbefore.AndwhenI leastexpectedit,an angelcameintomy lifeby the name

of PhilipEsformes.This man did not know me.This man did not owe me.Yet, he

offeredme,a completestranger,an opportunityto get back on my feet and take care

of the one thing that was most importantto me;my family.”

“Philipmade a commitmentto support me and my family so that I did not have to

worry and could focus on my recoveryfull time.Thanks in part to him,I was able

Perhapsthe mostpoignantletter was MosheBehar’s,who ratherthan live in

Today,Mr.Beharworks andprovidesfor his family thanks to Mr.Esformes.


to live to see my daughter’s weddingday in 2017 and today I am blessedto be a

grandfatherto a beautifulbaby girl.Philipwill never be forgottenby me and I will

be forever indebtedto the acts of tremendouskindnessthis man has shownme and

myfamily.”

payments, catching up with a delinquent mortgage, unpaid medical bills and

educationalexpenses,”FredBerkovits,or “providingadvice,a shoulder to cry on,

. . . packing boxes in a cold warehouse to be delivered to the poor, . . . making

deliveries before the Holidays to those less fortunate, . . .” Joseph Knopf,Mr.

Esformes’s “generosity and care for his fellow man was boundless.” Indeed,

“[t]hosemomentswere what he livedfor.Itwas hispurpose.” Id.

emotionand boundless appreciation,the Court perhapswill better understandwhy

everyonesays that the PhilipEsformesthe Court listenedto in Court is not the true

man who stands before the Court for sentencing.Mr.Esformes is a man who has

helped others live with dignity,who has empoweredfriends and strangers alike to

embrace self-worth, whether through his legendary philanthropy and boundless

generosity,or by sharing his love for life and his fellow man. As Rabbi Ranan

Robinsonsays inhis letter,“[t]hesayinginthe [Esformes]family was, ‘Ifyouhave

two slices of bread,you give away one to someonein need.If you only have one,

Whether it’s all the “instances of Philip helping people with their car

As the Court reads these letters,withstoriestold inchokedvoices,deepwith


then youcut i[t]in half!’”

Reifer.The letters addressedto the Court stem from the heart of everyone whose

life has beentouchedby PhilipEsformes.

release,includingthousands of hours of communityservice (some or all of which

while underhome confinement),is life-altering“just”punishmentthat willaccount

for the seriousnessof the offenseand promoterespectfor the law.

approvedof the lowercourt’sreasoningthat there is inherentpunishmentto a person

who is forced intothe criminal justice systemfor the first time:

The stress, fear,and shame of being a defendant in a criminalcase—coupledwith

37 months of pretrial detention—havehad a deep psychological impact on Mr.

Esformes.For the restofhis life,he willcarry the socialstigmaof beinga convicted

felon. Moreover,Mr. Esformes’s conduct and convictions have had permanent

(a)(2)(A)Need for the Sentence to Reflectthe Seriousnessof the Offense,

PromoteRespectfor the Law,andProvideJust Punishment

The Talmudstates that “words that stemfrom the heart,enter the heart.” Ira

A sentence not exceeding ten years of incarcerationfollowed by supervised

The court in United States v. Prosperi, 686 F.3d 32, 48 (1st Cir. 2012),

I think it is very difficult at times, for those of us who are judges or

prosecutors or lawyers, to put ourselves in the shoes of a person with

no prior experience with the criminal justice system who finds himself

or herself accused of a crime. I do not think, sometimes, we fully

recognize the anguish and the penalty and the burden that persons face

when called to account, as these men are, for the wrong that they

committed.


emotionaland psychologicalconsequencesfor his children.The appropriatenessof

the proposed sentence is supported by Mr. Esformes’s acknowledgment and

acceptanceof responsibilityfor his misconduct,as hewill express personallyto the

Court at the time of sentencing.He will express his sincere desire to make amends

for his badbehavior.

of a general deterrent effect on crime as the certainty of being apprehendedand

punished.The Sentencing Project,a national non-profit organization engaged in

research and advocacy on criminal justice policy issues, publishedthe following

findings:3

3ValerieWright,Ph.D.,DeterrenceinCriminalJustice:EvaluatingCertaintyvs. Severity

of Punishment, T HE S ENTENCING P ROJECT (Nov. 2010), available at

http://www.sentencingproject.org/doc/deterrence%20briefing%20.pdf.

4Id.at1.

5Id.at4.

Researchstudies show that the severityof punishmentdoes not have as much

� Research to date generally indicates that increases in the

certainty of punishment, as opposed to the severity of punishment, are

more likely to produce deterrent benefits.4

� The Institute of Criminology at Cambridge University was

commissioned by the British Home Office to conduct a review of

research on major studies of deterrence. Their 1999 report concluded

that “. . . studies reviewed do not provide a basis for inferring that

increasing the severity of sentences generally is capable of enhancing

deterrent effects.”5

(a)(2)(B)Needfor Sentenceto AffordAdequateDeterrence


deterrencecanonly be achievedby imposinga custodialsentence.InUnitedStates

v. Prosperi,686 F.3d at 34, the defendants were convicted after a jury trial of

conspiracyto commit mail fraud and make false statements on a highway project,

conspiracyto defraud the UnitedStates,eighty-threecounts of making,and aiding

and abettingthe makingof, a false statementon a highwayproject,and fifty counts

of mail fraud, and aidingand abettingmail fraud.The defendants’guidelinesrange

was 87 to 108 months of incarceration.Id.at 39. After consideringthe § 3553(a)

factors,the districtcourtsentencedthe defendantsto sixmonthsof homemonitoring,

three years of probation, and 1,000 hours of community service. Id. at 41. In

affirming the variance,the First Circuit noted that the district court “rejected the

view that the interest in generaldeterrencecould only be servedby incarceration.”

Id.On the issueof deterrence,the district court stated:

6 Id.

� Daniel Nagin and Greg Pogarsky, leading scholars on deterrence,

conclude that “punishment certainty is far more consistently found to

deter crime than punishment severity, and the extra-legal consequences

of crime seem at least as great a deterrent as the legal consequences.”6

Thereare courts thathave rejectedthe view that the sentencinggoalof general

There is one benefit, and only one, that I see in this case to

incarceration,and that is the sanction of deterrence that an incarcerated

sentence would pose for others. Beyond that, society’s interest in

incarcerationas opposed to atonement does not weigh heavily.There is

no risk of recidivism on the part of either of these defendants.

Incarceration will incur a large cost to taxpayers, and an even larger

personalcost inMr.Prosperi’s case to his illwife and, to some degree,


Id.The FirstCircuit acceptedthe district court’s conclusionthat home confinement

withcommunityservice wouldprovidesufficientgeneraldeterrence.Id.

incarcerationin a maximumsecurity facility;he need not serve another decade in

prisonto achieve the goalof generaldeterrence.

statistical analysis on recidivism. Measuring Recidivism: The Criminal History

Computation of the Federal Sentencing Guidelines, U.S. Sentencing Commission (May

2004).7 Accordingto this analysis,Mr.Esformesis a low risk of reoffending.The

study showed that people are less likely to recidivate when they fall into the

followingcategories:college graduates;thosesentencedunderthe fraud guidelines;

non-violentoffenders;first time offenders;those who are employed;and non-drug

users.The studyalsoshowedthat recidivismrates declinerelativelyconsistentlyas

age increases.Id.at 11.

7 Available at http://www.ussc.gov/sites/default/files/pdf/research-and-

publications/research-publications/2004/200405_Recidivism_Criminal_History.pdf.

(a)(2)(C)Needto Protect the Public fromFurtherCrimesof the Defendant

to Mr.Stevenson’sfamily,as I recognizethat they bothplay important

roles as caregiversand caretakers intheir families.

Here, of course, Mr. Esformes has already served a significant period of

The United States SentencingCommissionpublisheda report setting forth

InUnitedStates v.Clay,483 F.3d739 (11thCir.2007),the EleventhCircuit


affirmed a district court’s downwardvariance of 122 months based on the district

court’s view that the defendant was not likely to re-offend.The EleventhCircuit

noted that a sentencingcourt is “require[d] . . . to consider characteristicsof the

defendant and the offense that make it more or less likely that the defendant will

reoffend.” Id.at 745.The Court acknowledged:“Clay has fundamentallychanged

since his offense, poses a lesser risk to the community, and does not require

incapacitationfor too long.” Given the defendant’s rehabilitation, the Eleventh

Circuit concluded that the variance was appropriate.Id. at 746. See also United

States v. Cherry, 487 F. 3d 366, 369-70 (6th Cir. 2007) (granting a significant

downwardvariance from the guidelinerange where the defendantpresented a low

risk of reoffending);United States v. Prosperi,686 F.3d 32, 48 (1st Cir. 2012)

(affirmingnon-custodialsentencewhere there was no risk of recidivism).

Guidelinesare advisory and a guidelinesentence is not presumptivelyreasonable.

This Court has wide discretionto imposea sentence that is reasonable.Toward that

end, we proposea sentence that includesa periodof incarcerationthat satisfies the

goals of punishment, retribution and deterrence, but stops short of crushing a

defendantwho can resume a productivelife.

The offensesofconvictiondo not carry a mandatorysentence.The Sentencing

(a)(3)Kindsof SentencesAvailable


led by Philip’s father, Rabbi Morris Esformes.Throughout his lifetime, Rabbi

Esformes has been a significant contributor to many non-profit organizations,

includingChabad.And through the connectionto Chabad,the Aleph Institutehas

been an importantpart of the Esformeses’lives,particularly in the last 37 months

while Mr.Esformeshas beenincarcerated.

continues to be the Institute’sChairman today. https://aleph-institute.org/wp/.As

describedinhis letter to Judge Lenardsubmittedduringthe bailproceedings,Rabbi

Lipskarand the AlephInstitutehave workedwith the courts and the prisonsystem,

helpinginmates through the worst time of their lives while also benefittingsociety

at large.

their shatteredfamilies,offeringsupportto defendantswho are inprisonor inmental

institutions. Aleph has also concentrated its efforts in advancing alternative

sentencing options that benefit all involved. Recently, Aleph sponsored the

Alternative SentencingKey StakeholderConferenceat George WashingtonLaw

As the Courtknows,the Esformesesare a traditionalJewishorthodoxfamily,

The Aleph Institute was founded in 1981by Rabbi Sholom Lipskar,who

The AlephInstituteprovidesemotionalandspiritualassistanceto inmatesand


Centerwith the participationofmorethan200 judges,congressmen,senators,prison

officials,family counselors,and others.8

teachself-empowerment,lifeskills,and fiscalresponsibilitytohelpthemreintegrate

successfully. Post-release accountability programs help defendants avoid re-

offending and keeps them focused on the right path. “No one alone, no one

forgotten” is the Alephmotto.

at FDC.For hours they have prayed and studied together,and Rabbi Lipskarhas

counseledMr.Esformes.Their time togetherhasgivenRabbiLipskara windowinto

Mr. Esformes’s transformation, from the person that the Court heard on the

recordingsduringthe trial,to the manhe is now – a manwho is seekingredemption

and an opportunityto show that he can contributeto, ratherthanburden,his family

and his community. In Rabbi Lipskar’s view, a prison sentence that would be

measured in years, not decades, followed by thousands of hours of community

service as a condition of supervised release, would accomplish all the goals of

punishment.

8 Complete videos of the Conference, which was broadcast on CSPAN, can be

viewed at http://askssummit.com; or a short 10-minute synopsis is available at

www.vimeo.com/171977443.

Once defendantsare releasedintothe community,Alephoffers programsthat

RabbiLipskarhas had morethan 50 face-to-facemeetingswithMr.Esformes


custodialportionof his sentence,Mr.Esformescould be orderedto work full-time,

probono,for anorganizationthat is dedicatedto helpingindividualswhosufferfrom

mentalillness.This is a segment of our communitythat is indesperateneedof care,

as the Court heard during the course of the trial. It is also a populationthat Mr.

Esformescares deeplyabout,and for whichhe providedcompassionatesupportand

treatmentover the years.

of his professionaltime, includinghis Saturdaynights,makingrounds and visiting

his facilitiesto ensurethat residentslivedina dignifiedenvironment.Asidefromthe

anecdotal and isolated views of three former employees and four (out of 14,000)

patients,the vast majorityof the trial witnesseswere complimentaryof the services

providedat Mr.Esformes’sfacilities.9Indeed,the majorityof the letters that willbe

submitted to the court by friends, family, and employees all emphasize the same

positive attributesabout Mr.Esformes:a deep love for his children,a devotionto

charityandcommunity,and a genuinecommitmentto the care of the residentsat his

facilities.

focus their efforts in the mental health space. Aleph Institute is one such

9 A collectionof that testimonyis attachedas Exhibit1.

As the Courtheard,Mr.Esformeswould obsessivelyspend a substantialpart

The Esformes family has been supportive of non-profit organizations that

For example, given Mr. Esformes’s work history, after completing the

Case 1:16-cr-20549-RNS Document 1375 Enteredon FLSD Docket 09/09/2019 Page21of 30

organization.This year,Alephformedan alliancewith the SouthFloridaBehavioral

HealthNetwork,an organizationledby Dr.JohnNewcomerand a boardof directors

that includesprominentstate judges committedto alternativesformentallyillpeople

who would otherwise languish in the criminal justice system.Operatingunder the

moniker“ThrivingMind,”SouthFloridaBehavioralHealthNetworkis developing

the MiamiCenterfor MentalHealthand Recovery,a center that will serve peoplein

poverty who have been diverted from the criminal justice system and who are

sufferingfrommentalhealthandsubstanceabusedisorder.Presently,ThrivingMind

funds and overseesservices for uninsuredindividualsin Miami-Dadeand Monroe

counties,with a total populationof almost 3 millionpeople.Nationallyrecognized

for evidence-based successful programs, Thriving Mind works with law

enforcement and the courts to decriminalize mental illness and substance use

disorders,promotingaccess to effective,accountable,andcompassionatecare.

life,especially in the last 37 months,Philip’s father has ramped up his financial

commitmentto Aleph and, throughAleph,has also connectedwith Dr.Newcomer

and Thriving Mind. In appreciationfor all that Aleph has done for Mr.Esformes

duringhis incarceration,and with a particularaffinity for the work beingdone by

ThrivingMind,Philip’sdadhas donatedgenerously,if notexclusivelyselflessly,to

both organizations consistent with his history of contributing to non-profit

Given the direct impact Chabadandthe AlephInstitutehave had on Philip’s


organizations.Itis Philip’sfather’s hope,consistentwith Aleph’s 38-year mission,

that the Court will hear Aleph’s plea that the Court consider as an alternative to

lengthyincarcerationforhisson,a custodialsentenceof tolerableduration,followed

by full-timecommunityservice as a conditionof supervisedrelease,at a non-profit

organization,perhapsThrivingMind,where pro bonohelpand care are desperately

neededand where the contributionof time and effort canmake a realimpactin the

lives of peoplesufferingfrom drug abuse or mentalillness.

Lipskarto addressthe Court abouthis observationsof Mr.Esformesover the last37

monthsand to urge the Court to impose a sentence that willsubstitutea significant

portion of the custodial sentence with thousands of hours of community service

under supervisedrelease.Inadvanceof sentencing,we invite the Court to view the

13-minute informational video that features Rabbi Lipskar, Dr. Newcomer and

MorrisEsformes,so that the court is acquaintedwith these organizationsand their

work.https://www.thrivingmind.org/thriving-mind-and-aleph-institute/.

to Guillermo,who pleadedguiltyto distributingnarcoticdrugs),and theywere found

guilty and have admittedguilt to similarconduct.Indeed,the government’stheory

(a)(6)Needto Avoid UnwarrantedSentenceDisparitiesAmongDefendantsWith

SimilarRecordsWho HaveBeen FoundGuiltyOf SimilarConduct

For the sentencinghearingon September12,we have invitedAleph’s Rabbi

The DelgadoBrothershave similarrecordsas Mr.Esformes(ifnot worse as


of prosecutionis that the Delgadobrothersworkedhand-in-handwithMr.Esformes

to pay bribes and kickbacksand launderthose funds.

the one upon which Mr.Esformes is being sentenced,the government agreed to a

“TOTALOFFENSELEVEL– UNADJUSTED30,” UnitedStatesv.Delgado,Case

No. 14-CR-20359-JEM (DE 212:8, Plea Agreement), i.e., before downward

adjustmentsfor acceptanceof responsibilityandcooperation,witha corresponding

sentencingrange of 97-121months.Despite the similarity in records and conduct,

Mr. Esformeshas receivedtwelve upward adjustment points that the government

agreed to forego as to Gabriel Delgado: +2 for obstruction,+2 for sophisticated

laundering,+2 for sophisticatedmeans,+2 for mass marketing,+4 for role.All of

these adjustmentscouldhave equally appliedto Gabrieland/orGuillermoDelgado

underthe same theories that have madethem applicableto Mr.Esformes.

payingone witness hush money.As Judge Martinezstated:

As to GabrielDelgado,who pled guilty to a money launderingoffense like

(i) Philip Esformes received an upward adjustment for obstruction of

justice; Guillermo Delgado obstructed justice but did not receive the

upward adjustment:

Guillermo Delgado’s PSI report established that he obstructed justice by

THE COURT: Well, it [the PSIreport] says Guillermo Delgado began

paying what was construed as hush money to Carmona and his then

spouse. This money kept Carmona silent for a period of time, but

eventually Carmona disclosed the full andtrue nature of his relationship

with the Delgado brothers. Carmona himself has acknowledged the


[Delgado1/20/17SentencingTranscriptat p.6 (DE246)]. Delgadothen threatened

a secondwitness,JuanDios Gomez:

[Id. at p. 8]. Finally, during pretrial detention proceedings,Prosecutor Medina

argued to Magistrate Judge O’Sullivan that Delgado had engaged in 11acts of

obstructionof justice:

[Delgado5/20/14PretrialDetentionHearingat p.39 (DE24)].

imposethe obstructionenhancement.[Delgado1/20/17SentencingTranscriptat p.

4 (DE 246) (“Guillermo Delgado’s objection to the recommendationthat his

sentence be increased for obstruction of justice. The government and I and the

defenseagree that it shouldnotapply”)].

obstructivetactics employedto concealthe relationshiphe hadwith the

Delgadobrothers.

THECOURT:Howdo you construe the statementto Juan Dios Gomez

"if you f--k me,I will hurt your family"? Doesn’tthat sound bad?

MR. MEDINA: Your Honor, the focus is the obstruction. That is the

focus here.There are 11recordings and in each meeting it is discussing

don't tell the government what we did, stay silent, be quiet, don't say

anything. That's what the obstruction piece is.

Nonetheless,at sentencing,the governmentagreed that the Court shouldnot

Case 1 :16-cr-20549- RNS Document 1375 Entered on FLSD Docket 09/09/2019 of 30

(ii Philip Esformes received upward adjustments for sophisticatedmeansandsophisticatedlaundering; DelgadoBrothersengagedin

the same conduct the Court has deemed sophisticated means andsophisticated laundering but the government agreed to forego the

upwardadjustment

Government exhibit 529JJ was prepared by Mr. Petron and lists 37 different

bank accounts that Gabriel Delgadoused during the commissionof his crimes and

that he admitted to in his numerous debriefings by the DOJ, the FBI, and various

other agencies, and inhis own prosecution:

List of Gabriel Delgado Accounts

Account Name

Aida Salazar Rebull & GabrielA DelgadoLLCSalazar -RebullandGabrielA Delgado

3 Diversified Medical Group C A Delgado

4 Diversified MedicalGroup-GabrielDelgado5 Diversified MedicalGroup Inc6 East Hialeah InvestmentGroupLLC7 FamilyRest Management LLC8 GabrielA Delgado

9 GabrielA Delgado10 GabrielA Delgado11GabrielA Delgado12 GabrielA Delgado13 GabrielA Delgado14 GabrielA Delgado

15 GabrielA DelgadoorVivianM Delgado16 GabrielA. Delgado

GabrielA. Delgado

18 GabrielA. Delgado or Vivian M Delgado19GabrielDelgado

BankName Account Number

Ocean Bank

BankofAmerica x1339

OceanBank x5605

RegionsBank

RegionsBank X2964

OceanBank

FloridaCommunityBank x6215

American Express X2001

American Express x3009

AmericanExpressAmericanExpress

American Express x6002

American Express x6006American Express

Regions Bank

AmericanExpressOcean Bank

OceanBank x1706

FloridaCommunityBank

GOVERNMENTEXHIBIT

529 JJ Cont15-20549-CR - SCOLA


List of Gabriel Delgado Accounts

Account Name

20 Gabriel Delgado or Vivan M Delagado21La Covadonga Management group22 La Covadonga Management Group

23 La Covadonga Management Group

24 La Covadonga Management Group LLC

25 La Covadonga Management Group LLC26 Nursing Unlimited

NursingUnlimited2000Inc.DBAHome Healthcare27

Network ofSouth Florida

28 Preferred Providers Group Inc.

29 Preferred Providers Group Inc.- Gabriel A Delgado

30 Preferred Providers Group , Inc.31St Jude Health Care Inc.

32 St Jude Health Care Inc.

33 StJude Health Care Inc.

34 St Jude Health Care Inc.

35 Superior Living LLC -Guillermo Juan Delgado

36 Tender Touch Home Health LLC

37 Ulti-Med Healthcare Consultants LLC38 Ulti-Med Healthcare Consultants LLC

Bank Name Account Number

Ocean Bank

BB & T Bank


FloridaCommunityBank x6094

FirstBankof Miami

FirstBankofMiami

BankofAmerica

FloridaCommunityBankSun Trust Bank X2823

RegionsBank


SabadellUnitedBankSabadellUnitedBank

SabadellUnitedBankFirstBankofMiami

FirstBankofMiami

FirstBankofMiamiFirstBankofMiami

SunTrust Bank

During Mr. Esformes's trial, Delgado testified how he used his bank accounts

to movechecks and cash to pay kickbacks. Delgado testifiedthat he tried to conceal

the source of the money, and used fake contracts , leases , and independent contractor

agreements in an attempt to legitimize the source ofthe funds. Delgado also testified

that he directed his employee to inflate invoices to various Esformes facilities in

order to conceal the source of funds, and then used those inflated invoices to obtain

money that he later used to pay expenses and kickbacks. Delgado directed his

employees onhowto inflatethe invoicesandhow to hide the excess funds he needed

as expenses for various services or products.

Brother Guillermo Delgado testified how he used the bank accounts of his

restaurants and other businesses to move funds between accounts, some of which


were titled inhis name and others that were titled in the name of business entities or

even thirdparties. This canbe seen from the materialsobtainedinthe middle oftrial

from government witness MichelBaldwin, who disclosed for the first time during

his cross -examination that he had obtained from the FBI Excel spreadsheets which

analyzed multiple bank accounts of the Delgados, including those in their personal

names as well as those in the names ofbusiness entities, includingLa Covadonga

and Family Rest. This is a screen shot of the Delgado bank accounts that the FBI

analyzed and provided to Baldwin:

Vork ( ) ( W :) Esformes ( Witnesses Baldwin, Michael(Expert) MichaelBaldwin Materials Providedin Court 3-4-19 Spreadsheets

Name Datemodified Type Size

Filefolder

File folder

File folder

Aida M Salazar Rebull Maria Alexandra 7819

Aida Salazar Rebull and Gabriel A Delgado_OB 9505 1339Alexandra Maria Delgado_FBM 9417 9636

Amanda Marie Delgado orGabriel A Delgado_RB 2887 2784Big Ink Designand Print

Diversified Investment Group of Miami 6100_FBM 6837

Diversified Medical Group_Gabriel A Delgado_OB 5605_RB 0205EastHialeah InvestmentGroup LLC_RB 1636_OB 3305

Ed El Leon Paredes the Champ 5205Family Rest Management LLC_FCB

FocacciaBillage Inc_FBM 7132Gabriel Delgado_RB_OB_FCB_STGD Big Cigars LLC_FBM828GD Big Promotions LLC_FBM 8597GuillermoDelgado_BBR COB FCB RB SB FBM OBHavana Humidor_FBM OB

Italian SportsGrill_La Casitas_Threeand OutLa Covadonga Management Group LLC

Maria A Delgado& Guillermo Delgado JTWROS_COB 2796Maria Alexandra Delgado dba Mad Property ManagementFBM8082Nursing Unlimited 2000Inc

Preferred Providers Group Inc_SB OB FCBScribs 34 LLC_FBM 2590

Sunset Cigars Inc_FBM 5778Superior Living LLC GuillermoJuan Delgado_FBM OB 0205Tender Touch HomeHealth LLC_FBM4199Twentieth AvenueInvestmentGroup 7605Ulti- Med Healthcare Consultants LLC_FBM 7027 SB 7838Vivian MDelgado POD

Warehouseat QuailRoost LLC_OB 8405 RB 0252

3/5/2019 PM

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3/5/2019 2:02 PM3/5/2019 2:02 PM3/5/2019 2:02 PM

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3/5/2019 2:02 PM

FilefolderFile folder

FilefolderFilefolder

FilefolderFilefolderFile folderFile folder

File folderFile folder


File folderFilefolderFile folder


Filefolder




FilefolderFile folderFilefolder


The Delgado Brothers also put businesses and real estate in the name of

employees rather than in their own names and used those employees as fronts with

AHCA and other regulators in an effort to conceal their true ownership of various

entities

Finally, GuillermoDelgadowasdebriefedbytheFBIabouthis use ofa banker

over the years to help him open and close multiple accounts and move money

betweenthem in an effort to keep his own schemegoing. The FBI-302 reports can

be providedto the Court for review ifnecessary.

( iii) Philip Esformes received an upward adjustment for mass

marketing; the Delgados did not receive this upward adjustment even

though the government's theory of prosecution was that the Delgadoswere the marketers.

According to the government, the Delgado Brothers and Nelson Salazar were

among the people who “marketed the Esformes Network in an effort to obtain

patients. The government made similar allegations as to Odette Barcha. None of

them received this upward adjustment.

( iv) PhilipEsformes receivedthe maximum upwardadjustmentof+4because he organizer or leader of a criminal activity thatinvolved five or more participants or was otherwise extensive”;

GabrielDelgadowas an organizer / ofa criminalactivity thatinvolvedfive or moreparticipantsor was otherwise extensive, but didnot receiveANYroleadjustment.

Gabriel Delgado was a leader of at least ( 1) his sister Irene who signed

fake contracts and helped them move money, (2 ) Cruz Juarez who is described in


- 302 reports as front for various Delgado businesses including a pharmacy , the

brains of the financial operation, and someone who helped the Delgado Brothers

alter documents during inspections, (3) Nohelia Juarez, who prepared the inflated

invoices, ( 4 ) Jorge Juarez, who the Delgados used to putAHCA licenses under his

name to conceal the Delgados's true ownership of facilities, and (5 ) Raymond

Rodriguez, who was used to intimidate Nelson Salazar, threaten him with comments

about cutting off a horse's head, and who then showed up in Court during Salazar's

testimony andsat inthe gallery watching Salazar testify about Salazar's actions with

Gabriel Delgado

Finally, the government contends that Gabriel Delgadowas Mr. Esformes's

50/50 partner inall the activitiesalleged inthe indictment, makingDelgadosubject

to the enhancement also for his leadership role in extensive criminal activity as

alleged by the government .


CONCLUSION

Mr.Esformesurges the Court to imposea sentencenot to exceed 120months

incarceration , followed by 5,000 hours of full- time community service during 3

years of supervised release .

Respectfully submitted ,

BLACK, SREBNICK, KORNSPAN & STUMPF, P.A.

201 South Biscayne BoulevardSuite 1300

Miami, FL 33131

Tel: (305) 371-6421

/ s/ Howard Srebnick

HOWARDSREBNICKFla. BarNo. 919063

[email protected]

Fla. BarNo. 126088

[email protected] PERCZEK

Fla. BarNo. 0042201

JPerczek RoyBlack.com

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