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.

Cases: 297651

Reported Deaths: 6808
CountyCasesDeaths
DeSoto19829231
Hinds18966395
Harrison16899283
Rankin12851265
Jackson12754234
Lee9722163
Madison9522204
Jones8042148
Forrest7295138
Lauderdale6879228
Lowndes6062140
Lamar593982
Lafayette5768114
Washington5235130
Bolivar4632124
Oktibbeha443295
Panola433798
Pearl River4219132
Warren4145115
Pontotoc411071
Marshall406595
Monroe3998129
Union397074
Neshoba3857171
Lincoln3630104
Hancock353378
Leflore3402122
Sunflower321386
Tate304674
Pike302797
Scott296771
Alcorn292763
Yazoo292266
Itawamba290775
Coahoma283169
Tippah280265
Copiah280159
Simpson277881
Prentiss271258
Marion258878
Wayne255741
Leake254572
Covington250480
Grenada248978
Adams235978
Newton233353
George232845
Winston222579
Jasper214545
Tishomingo213266
Attala210571
Chickasaw202054
Holmes183470
Clay179452
Stone173529
Tallahatchie171839
Clarke170773
Calhoun158728
Smith154333
Yalobusha146036
Greene128133
Walthall125441
Montgomery123540
Noxubee123431
Perry123335
Lawrence121621
Carroll119725
Amite112435
Webster111132
Jefferson Davis102931
Tunica99824
Claiborne99130
Benton94024
Humphreys93128
Kemper91523
Quitman77514
Franklin76520
Choctaw70317
Jefferson62927
Wilkinson62727
Sharkey49217
Issaquena1676
Unassigned00

Alabama Coronavirus Cases

Cases: 499819

Reported Deaths: 10148
CountyCasesDeaths
Jefferson720331403
Mobile36423741
Madison32708469
Tuscaloosa24457422
Montgomery22805523
Shelby22276219
Baldwin19935289
Lee15083161
Calhoun13963296
Morgan13801255
Etowah13419327
Marshall11460215
Houston10130264
Elmore9515190
Limestone9440139
St. Clair9057228
Cullman9000183
Lauderdale8630214
DeKalb8509175
Talladega7647165
Walker6601260
Jackson6552104
Autauga634792
Blount6256128
Colbert6010121
Coffee5261104
Dale4685107
Russell408134
Franklin400879
Covington3999107
Chilton3922104
Escambia379573
Tallapoosa3637143
Clarke344553
Chambers3434111
Dallas3428142
Pike293173
Marion288996
Lawrence286287
Winston258668
Bibb246558
Marengo245357
Geneva240670
Pickens226357
Barbour213951
Hale212969
Fayette202857
Butler201666
Henry183741
Cherokee178240
Monroe166739
Randolph165441
Washington157136
Macon147845
Crenshaw146955
Clay146254
Cleburne140341
Lamar133933
Lowndes133151
Wilcox123125
Bullock117736
Conecuh107224
Perry106427
Sumter101032
Coosa90324
Greene88932
Choctaw56123
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