WEST PALM BEACH, Fla. — Sen. Bob Menendez’s looming trial on federal corruption charges in New Jersey could be complicated by an unusual prelude underway in a courtroom here, hundreds of miles away.
The fate of Menendez’s alleged co-conspirator in the bribery case — wealthy ophthalmologist and campaign donor Salomon Melgen — could be in the hands of a federal jury as soon as next week. For nearly six weeks, jurors have been hearing evidence that the retina specialist bilked the Medicare program and put patients at risk by doing unnecessary eye procedures and tests.
If Melgen is convicted on some or all of the 76 fraud-related felony counts he faces, he could feel extreme pressure to testify against Menendez (D-N.J.) in the corruption case in Newark where both men are named as defendants. Any convictions could also lead to the doctor being jailed until the corruption trial and brought to and from the courtroom in custody of federal marshals.
Some legal experts say that could put the New Jersey senator in an awkward spot.
“The biggest fear I would have if I were representing Menendez is the obvious possibility that the government could use leverage against Dr. Melgen and say, ‘You could help yourself now if you tell us everything you know,’” said former federal prosecutor Solomon Weisenberg. “I don’t know how much he has to tell, but that would be the biggest thing.”
Melgen, 62, could be facing a stiff prison sentence if convicted on multiple charges in the Florida case.
“Under the sentencing guidelines, he’d be looking at spending a very long time — what could easily be the rest of his life — in prison,” Weisenberg said.
If Melgen is convicted, defense lawyers will likely try to keep that fact from jurors at the New Jersey trial, the ex-prosecutor said.
A judge in New Jersey could move as soon as Friday morning to set a trial date for Menendez and Melgen in that court, perhaps sometime this fall. While Menendez is not charged in the Florida case, there is some overlap between the cases.
The two-year-old corruption indictment in Newark accuses Menendez of accepting nearly $1 million worth of private air flights, luxury hotel stays and political contributions in exchange for using his authority as a senator to influence government decisions on several matters critical to Melgen, including Medicare’s demand that he repay almost $ 9 million in alleged overcharges for eye injections.
Menendez contacted Medicare officials about the matter and, in 2012, enlisted then-Senate Majority Leader Harry Reid for a joint meeting with Health and Human Services Secretary Kathleen Sebelius. The session did not seem to sway Medicare’s stance on the issue.
Menendez is also accused of intervening to help Melgen get U.S. visas for several girlfriends and to help preserve the business of a company Melgen owned that provided port security in the Dominican Republic.
Both Menendez and Melgen have entered not guilty pleas. Menendez has insisted that the actions he took were legitimate efforts to help a friend, not follow through for some largesse.
An attorney for Menendez declined to comment in advance of Friday’s hearing in New Jersey. Lawyers for Melgen didn’t respond to requests for comment Thursday.
During an exchange with a federal judge Wednesday in West Palm Beach, Melgen said he does not plan to take the stand in his own defense in that case. Closing arguments are expected next week.
Before the trial opened in early March, prosecutors and the defense squared off over the role politics might play in the trial. Prosecutors asked the judge to bar the defense from arguing that the case was being pursued for any improper political motive. They also denied leaks to the media about search warrants carried out at Melgen’s offices.
Noting press reports about FBI agents’ support for Donald Trump in the presidential race, the defense said it should have the right to argue that bias tainted the case. Judge Kenneth Marra said the defense could question government witnesses about potential biases, but couldn’t challenge the prosecutors directly without advance permission from the court.
As the testimony unfolded in recent weeks, jurors have heard sharply contrasting descriptions of Melgen’s practice. Prosecutors argued he was raking in insurance payments by moving patients through at a staggering pace.
Prosecutor Alexandra Chase said Wednesday that on one November day in 2012, Melgen had 134 patients booked to see him at his office in Port Saint Lucie, Florida. Appointments were scheduled “about every five minutes,” with two patients sometimes scheduled at the same time, she said.
The prosecution contends the pace was so frantic patients were receiving poor care, as well as unwarranted tests and treatment. The most jarring testimony has involved claims that some patients repeatedly received painful eye injections and laser treatments that were lucrative for Melgen, but unnecessary.
Sometimes, Melgen billed more than half a million dollars to Medicare for a single patient. Prosecutors have also highlighted bizarre practices such as Melgen’s billing Medicare for dozens of eye scans for a couple of patients who had prosthetic eyes.
A former medical technician for Melgen, Tina McGregor, acknowledged that the doctor often wrote “automatic” or “repetitious” orders that a patient get two different kinds of diagnostic tests on their eyes every time they visited the practice. She also conceded that Melgen signed the bills for tests and treatment the night before.
Testifying in green scrubs, McGregor insisted patients got good care and were satisfied.
“We were family to them. They were family to us,” she said. “They were happy.”
Defense lawyers contend Melgen was a tireless doctor committed to treating patients being overlooked by others. Sometimes the office made billing errors, but they were honest mistakes, the defense contends. They also say some of the figures used by the prosecution are inflated, because doctors’ offices routinely bill Medicare at rates they know the federally-funded program won’t pay in full.
At times, Melgen’s attorneys seem to be mounting a kind of “Robin Hood” defense, emphasizing his generosity towards patients who lacked the funds to pay for treatment.
“He was so kind that he didn’t charge me for my visit,” former Melgen patient Pedro Payne said. “He was very kind to put the ‘no charge.’”
Payne entered the courtroom and took the witness stand with the help of a caretaker, holding the man’s shoulder with one hand and a white cane with another.
“It helped me a whole lot,” the elderly man said of his treatment by Melgen. “If I didn’t see him, probably I’d have no eye right now.”
How far the defense will get with the jury by stressing Melgen’s charity is unclear. Jurors have also heard enough to realize that Melgen grew very wealthy through his medical practice. Prosecutors allege he may have bilked Medicare out of as much as $105 million. He pledged property in Florida and the Dominican Republic to win pretrial release on an $18 million bond in 2015.
Some doctors testifying for the defense praised Melgen’s willingness to treat patients whose eyes other doctors had given up on.
“I thought Dr. Melgen was the best retinal specialist,” Dr. Steven Schnell told the jury. “I thought he was an aggressive treater.”
Sitting in a dimly-lit courtroom, jurors have also sat through hours watching video monitors displaying often-blurry circles showing eye scans Melgen’s practice took on patients.
Doctors acting as experts for prosecution or defense have offered conflicting descriptions of the scans, prompting some courtroom observers straining to see what the experts claimed to see in what appeared to be virtually blank images. The scene was sometimes reminiscent of the cross-eyed local election official whose “hanging chad” photo became the iconic image of the 2000 presidential election.
“It’s just not that cut and dried sometimes,” said Dr. Dana Deupree, a retina specialist working for the defense. “I may not agree with myself.”