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Judge leaves Mississippi physician jailed until sentencing

A judge won't release a Mississippi Gulf Coast physician convicted of health care fraud from jail pending sentencing.

Posted: Mar 13, 2018 10:17 PM

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.

Mississippi Coronavirus Cases

Data is updated nightly.

Confirmed Cases: 35419

Reported Deaths: 1230
CountyConfirmedDeaths
Hinds290851
DeSoto190019
Madison144638
Jones120349
Harrison113616
Rankin108715
Neshoba104577
Forrest99343
Lauderdale96381
Scott81915
Jackson77519
Washington72213
Copiah65315
Leake63520
Lee61222
Oktibbeha61128
Grenada5949
Warren59421
Holmes58641
Wayne56218
Yazoo5536
Lowndes54813
Lamar5347
Leflore53156
Lincoln52935
Pike49920
Lafayette4974
Sunflower4778
Monroe45635
Panola4486
Covington4355
Bolivar40518
Simpson3933
Attala38424
Newton37510
Tate35213
Adams35120
Pontotoc3466
Marion32712
Claiborne30111
Chickasaw29719
Winston29511
Pearl River28832
Noxubee2788
Jasper2776
Marshall2773
Walthall2627
Clay25811
Union25211
Smith24612
Clarke22325
Coahoma2226
Lawrence2092
Yalobusha2079
Tallahatchie1954
Kemper18414
Carroll18111
Montgomery1713
Calhoun1645
Humphreys16310
Itawamba1468
Tippah14511
Hancock14413
Webster13411
Jefferson1263
Tunica1233
Jefferson Davis1204
Prentiss1204
George1163
Greene11310
Amite1103
Alcorn1002
Quitman991
Wilkinson989
Tishomingo971
Perry874
Choctaw754
Stone742
Franklin542
Sharkey480
Benton460
Issaquena101
Unassigned00

Alabama Coronavirus Cases

Confirmed Cases: 49892

Reported Deaths: 1077
CountyConfirmedDeaths
Jefferson6433170
Mobile4753139
Montgomery4430112
Tuscaloosa263253
Madison21199
Marshall192611
Shelby164225
Lee157237
Morgan12695
Baldwin120711
Walker106131
Elmore102920
Dallas9969
Etowah95114
DeKalb9417
Franklin93216
Autauga67614
Russell6750
Chambers67427
Unassigned65328
Butler65129
Tallapoosa62869
Limestone6223
Houston5857
Cullman5716
Lauderdale5686
St. Clair5133
Colbert4956
Calhoun4905
Lowndes48122
Escambia4808
Pike4725
Coffee4244
Jackson4182
Covington41412
Barbour3942
Dale3911
Talladega3897
Bullock37710
Marengo35211
Hale34823
Chilton3232
Clarke3126
Wilcox3038
Blount2961
Winston2965
Sumter29113
Marion27514
Pickens2696
Randolph2589
Monroe2553
Perry2362
Conecuh2308
Bibb2211
Macon2159
Choctaw21212
Greene1959
Henry1533
Washington1418
Crenshaw1273
Lawrence1250
Cherokee1237
Geneva960
Lamar871
Clay852
Fayette821
Coosa651
Cleburne421
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