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Case 1:16-cr-20549-RNS Document 1375 Enteredon FLSD Docket 09/09/2019 Page 1 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
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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
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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
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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
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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
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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
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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
Case 1:16-cr-20549-RNS Document 1375 Enteredon FLSD Docket 09/09/2019 Page 8 of 30
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
Case 1:16-cr-20549-RNS Document 1375 Enteredon FLSD Docket 09/09/2019 Page 9 of 30
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
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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
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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.
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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
Case 1:16-cr-20549-RNS Document 1375 Enteredon FLSD Docket 09/09/2019 Page 13 of 30
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.
Case 1:16-cr-20549-RNS Document 1375 Enteredon FLSD Docket 09/09/2019 Page 14 of 30
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
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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,
Case 1:16-cr-20549-RNS Document 1375 Enteredon FLSD Docket 09/09/2019 Page 16 of 30
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
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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
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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
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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
Case 1:16-cr-20549-RNS Document 1375 Enteredon FLSD Docket 09/09/2019 Page 20 of 30
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
Case 1:16-cr-20549-RNS Document 1375 Enteredon FLSD Docket 09/09/2019 Page 22 of 30
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
Case 1:16-cr-20549-RNS Document 1375 Enteredon FLSD Docket 09/09/2019 Page 23 of 30
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
Case 1:16-cr-20549-RNS Document 1375 Enteredon FLSD Docket 09/09/2019 Page 24 of 30
[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 Page 25 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
Case 1 :16-cr-20549- RNS Document 1375 Entered on FLSD Docket 09/09/2019 Page 26 of 30
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
FloridaCommunityBank x6094
FirstBankof Miami
FirstBankofMiami
BankofAmerica
FloridaCommunityBankSun Trust Bank X2823
RegionsBank
FloridaCommunityBank
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
Case 1 :16-cr-20549- RNS Document 1375 Entered on FLSD Docket 09/09/2019 Page 27 of 30
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
3/5/2019 2:02 PM3/5/2019 2:02 PM
3/5/2019 2:02 PM3/5/2019 2:02 PM
3/5/2019 2:02 PM
3/5/2019 2:02 PM3/5/2019 2:02 PM3/5/2019 2:02 PM
3/5/2019 2:02 PM
3/5/2019 2:02 PM3/5/2019 2:02 PM3/5/2019 2:02 PM
3/5/2019 2:02 PM
3/5/2019 2:02 PM3/5/20192:02 PM
3/5/2019 2:02 PM3/5/2019 PM
3/5/2019 2:02 PM3/5/2019 2:02 PM3/5/2019 2:02 PM
3/5/20192:02 PM3/5/2019 2:02 PM
3/5/2019 2:02 PM
3/5/2019 2:02 PM
3/5/2019 2:02 PM3/5/2019 PM
3/5/20192:02 PM3/5/2019 2:02 PM
3/5/2019 2:02 PM
FilefolderFile folder
FilefolderFilefolder
FilefolderFilefolderFile folderFile folder
File folderFile folder
FilefolderFile folder
File folderFilefolderFile folder
FilefolderFile folder
Filefolder
FilefolderFilefolder
FilefolderFile folder
FilefolderFilefolder
FilefolderFile folderFilefolder
Case 1 :16-cr-20549- RNS Document 1375 Entered on FLSD Docket 09/09/2019 Page 28 of 30
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
Case 1 :16-cr-20549- RNS Document 1375 Entered on FLSD Docket 09/09/2019 Page 29 of 30
- 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 .
Case 1 :16-cr-20549- RNS Document 1375 Entered on FLSD Docket 09/09/2019 Page 30 of 30
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
HSrebnick@RoyBlack.comROYBLACK
Fla. BarNo. 126088
RBlack@RoyBlack.comJACKIE PERCZEK
Fla. BarNo. 0042201
JPerczek RoyBlack.com
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