Judge leaves Mississippi physician jailed until sentencing
Mar. 13, 2018
GULFPORT, Miss. (AP) — A judge won't release a Mississippi Gulf Coast physician convicted of health care fraud from jail pending sentencing.
U.S. Magistrate Judge John Gargiulo denied the request Tuesday after a hearing, saying Dr. Albert Diaz has no right to bail after he was convicted.
"Defendant has not overcome the presumption because he has not established that there is a substantial likelihood that a motion for new trial will be granted;" the magistrate wrote, "the government has not recommended that no sentence of imprisonment be imposed; and defendant has not established by clear and convincing evidence that he is not a flight risk or a danger to any other person or the community,"
John Collette, Diaz's lawyer, argued that the conviction should be overturned and his client released because a juror falsely claimed Diaz tried to intimidate her. Collette wrote in a motion last week that only the original juror had been dismissed, but that others had been tainted after learning of the claims.
"No jury could possibly be impartial in light of comments that the defendant or his family was considering murdering one of their number," Collette wrote. "A new trial is necessary to preserve Dr. Diaz's constitutional right to an impartial jury."
Prosecutors say a judge determined other jurors hadn't been improperly influenced, and Diaz should stay jailed.
"It was clear that the excused juror's perceived intimidation was an overreaction and, importantly, none of the other jurors shared that juror's concerns," assistant U.S. Attorney Jared Hasten wrote. "There was never an actual threat made to the excused juror."
A jury found Diaz guilty March 2, in what prosecutors say was part of a scheme to defraud insurers by prescribing expensive and unneeded medicines. The fraud involving Diaz is one prong in a larger investigation into compounding pharmacies. Prosecutors have alleged that three Mississippi pharmacies alone bilked $400 million from insurers.
The Sun Herald reports about 40 family and supporters filled the federal courtroom for Diaz's hearing, with 60 more awaiting word in the hall on whether Diaz would be released.
Character witnesses argued Diaz was no risk to flee. He's 78 and used a walker in court Tuesday. But Hasten disagreed: "He's looking at significant prison time . . . He absolutely has a reason to flee."
Diaz's supporters also say it's unfair that two co-conspirators who pleaded guilty, Jay Schaar of Biloxi and Jason May of Lamar County, are free on bonds while they await sentencing. Schaar, a drug representative, recruited Diaz to write prescriptions for compounded drugs that were filled by Advantage Pharmacy in Hattiesburg, co-owned by May.
May and Schaar have admitted that drugs were compounded based on profit, not need. Diaz prescribed the drugs for patients he hadn't seen then, after an investigation started, back-dated records to make it appear he had examined some patients.