- Jane Musgrave Palm Beach Post Staff Writer
A sentencing hearing where Dr. Salomon Melgen faced a possible sentence of 30 years to life in prison was suddenly postponed Thursday, raising speculation that the disgraced Palm Beach County retinal specialist may be cooperating with federal prosecutors in a New Jersey corruption case against his longtime friend, U.S. Sen. Robert Menendez.
Melgen was scheduled to be sentenced today on 67 charges of health care fraud, but U.S. District Judge Kenneth Marra agreed on Thursday to delay the hearing until after the 63-year-old ophthalmologist and Menendez, a powerful New Jersey Democrat, are tried in September on charges of operating what prosecutors describe as a mutually beneficial bribery scheme.
While Marra earlier this month rejected Melgen’s request for a delay of the sentencing hearing, he approved it Thursday without comment and without setting a future date.
In a motion filed after the delay was granted, Melgen’s attorneys said it was due to scheduling problems. And, they said, federal prosecutors signed off on it.
“The parties in this matter have conferred and agree that the sentencing in this matter is likely to take more than one day,” wrote Melgen attorneys Matthew Menchel and Kirk Ogrosky. “After consultation with the prosecution, all parties agree that a continuance is merited.”
But political watchers and lawyers unaffiliated with the case said the delay could signal that Melgen has agreed to testify against Menendez.
“I think it would be the first thing you’d think of — ‘Oh, he must be cooperating with the prosecution,’ ” said Richard Lubin, a West Palm Beach defense lawyer. “I would imagine that everybody would think that.”
But, he acknowledged, there are other justified reasons for the delay.
A New Jersey political consultant, who asked not to be named, said that since Melgen in April was convicted of health care fraud for bilking Medicare out of an estimated $105 million, speculation has raged that the physician would turn on Menendez in hopes of winning a lenient sentence.
“We kind of see that (the delay) as evidence he may cooperating,” the Democratic consultant said. If Menendez is convicted or resigns as a result of the federal prosecution, the ramifications are enormous, he added.
New Jersey Gov. Chris Christie, a Republican, would appoint Menendez’s replacement, tipping the balance of power in the U.S. Senate and potentially altering the fate of key legislation, such as the Affordable Care Act, he said. “This has national implications,” he said.
Republican political consultant Michael DuHaime, who served as lead strategist for Christie’s 2009 and 2013 gubernatorial campaigns, noted that any Republican replacement would likely be short-lived. Menendez’s term ends in 2018. So, even if Christie got to pick a replacement, an election would soon follow. And, he noted, New Jersey voters haven’t sent a Republican to the Senate since 1972.
DuHaime cautioned against rank speculation about the reason Melgen’s sentencing was delayed. “With legal proceedings, you don’t fully know what’s going on,” he said. “So, you have to just go with what they say.”
But, West Palm Beach attorney Val Rodriguez said the tough tone of sentencing memorandums written by both federal prosecutors and Melgen’s attorneys was telling. Neither side showed any inclination to bend.
To increase Melgen’s punishment to a possible 30 years to life, Assistant U.S. Attorneys Carolyn Bell, Roger Stefin and Alexandra Chase argued that the eye doctor cost Medicare, private insurers and patients between $65 million and $150 million by misdiagnosing and mistreating scores of people for wet macular degeneration. In some cases, he billed for treatment of prosthetic and blind eyes.
Melgen’s attorneys countered that the prosecutors grossly inflated the misdeeds of the once highly-respected doctor, who treated the likes of Florida Gov. Lawton Chiles. The amount Medicare lost, based on the charges for which he was convicted, was about $125,000, they said. Lauding Melgen’s accomplishments, they never expressed remorse or sympathy for his victims, who prosecutors claim endured unnecessary, painful and potentially dangerous treatments.
Such starkly different views rarely benefit a defendant, Rodriguez said. As a defense attorney, “what you do is take a step back and reassess your position on your (client’s) conduct and whether you could be of use,” Rodriguez said. It appears Melgen could be “working toward a global settlement where cooperation has to be a factor.”
“If you cooperate, your sentencing goes much smoother,” he said. And the terms get much more attractive. He said he has had clients, like Melgen, who faced possible 30-year to life sentences. After agreeing to cooperate with federal authorities, they were given four-year terms, he said.
Despite the delay in the sentencing hearing, Melgen’s attorneys have shown no signs of giving up. They joined in a motion filed this week by Menendez’s attorneys, asking that the charges in the New Jersey case be thrown out. Citing a 2016 U.S. Supreme Court decision that restricts the government’s ability to charge elected officials with bribery, they claim Menendez’s dealings with Melgen were well within the new parameters established by the nation’s high court.
A hearing on that motion is expected to be held before the trial begins on Sept. 6.
In the meantime, Melgen’s attorneys claim that he is dealing with a host of medical and emotional issues while jailed in Miami. “Dr. Melgen has had gastric bypass surgery, and thus requires careful monitoring of his nutrition,” they wrote. “He also suffers from severe depression and has had issues with chemical dependency.”
In pushing for a lenient sentence, they said he has already paid a hefty price for his actions and is no threat to society.
“He will never again be able to practice medicine. He will never again achieve ‘professional credibility,’” they argued. “He will never again be able to support his wife, children and grandchild. … There is no possibility that Dr. Melgen could reoffend. The nature of his offense required him to run a medical practice. He will never be able to do that again.”