Philip Esformes v. United States

While investigating petitioner for alleged health-care fraud, federal prosecutors seized hundreds of petitioner’s attorney-client privileged documents and used those documents for months. The government now concedes that its conduct was “reckless,” “sloppy, careless, clumsy, and ineffective.” C.A. Oral Arg. Recording 12:38-13:16. Notwithstanding this prosecutorial misconduct, the court of appeals affirmed petitioner’s conviction because he could not demonstrate that the government’s invasion of privilege actually prejudiced the outcome of his trial. The court of appeals also affirmed an order requiring petitioner to forfeit $38.7 million based on the district court’s own fact-finding that the amount represented “property … involved in [the] offense” or traceable thereto. See 18 U.S.C. § 982(a)(1). The questions presented are:

1. Whether a criminal defendant must show actual prejudice to establish a Sixth Amendment violation warranting dismissal of the indictment or disqualification of prosecutors when prosecutors wrongfully invade the defendant’s attorney-client privilege.

2. Whether a court may order a criminal defendant to forfeit a sum of money based on a factual finding by the court, rather than a jury, that the amount of money was property tainted by the offense. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); 18 U.S.C. § 982(a)(1). (I)