Ernesto A. Montaner, the eldest son of a prominent Cuban exile family who stole millions from Medicare, implored a Miami federal judge Wednesday to give him a sentencing break because of his advanced age, poor health and time already spent behind bars.
But U.S. District Judge James Lawrence King showed no sympathy for the 71-year-old Montaner, who attended court in a wheelchair.
The judge slapped him with a maximum five-year prison sentence for defrauding the taxpayer-funded healthcare program for the elderly and disabled, saying he conspired to pay “massive amounts of kickback” money for patient referrals to his Miami-Dade chain of rehabilitation clinics.
King also ordered Montaner, who had fled Miami to Costa Rica to avoid an impending indictment before his arrest in 2010, to pay Medicare more than $2.8 million.
“I feel so much regret for my choices,’’ Montaner, who has been in custody since early last year, said in court. He added that he let down the dozens of relatives and friends who attended his sentencing.
“I know I did wrong,” said Montaner, who pleaded guilty earlier this year. “I know I committed the crime of Medicare fraud. I pray for your understanding and forgiveness.’’
What made Montaner’s Medicare fraud case different from so many others was that his son — whom Montaner had brought into his clinic business — testified against the father before a federal grand jury and was almost going to be a witness again at his sentencing.
A prosecutor had planned to call Ernesto A. Montaner Jr., a cooperating witness already convicted of Medicare fraud, to the stand to show that the father was in charge of four physical therapy clinics. Establishing the father’s leadership role would boost his sentence. But the elder Montaner shifted blame to his son, asserting that Montaner Jr. was in fact responsible for running the clinics.
Montaner’s defense attorney and two of his daughters, who are lawyers, told the judge that pitting the son against his father placed a terrible strain on the family.
“I’m glad it’s over,” Marlene Montaner said outside the courtroom, after asking the judge to release the elder Montaner immediately so that he could be home for Father’s Day on Sunday.
Montaner’s defense lawyer, who had challenged the characterization of his client’s management role, condemned the prosecutor’s tactics, arguing that the U.S. attorney’s office “forced” the son’s “hand” to testify against his father before the grand jury and to use him again for the sentencing.
“This has been a very unfortunate situation for this family,” the father’s lawyer, Marc Seitles, told the judge. “What the government was doing was something it shouldn’t have done. This was not done with any malice, but it was done.
“He is here, due in part, to the compelled testimony of his son,” Seitles said. “No family, no defendant, should have to endure that.”
But Seitles and his client, in the days before sentencing, dropped their challenge to the leadership assertion, making it unnecessary for the son to testify again.
Assistant U.S. Attorney Ron Davidson mocked their legal move. “We are here because the defendant recruited his own flesh and blood into the fraud,” Davidson said in court. “This man corrupted and ruined the life of his own son.”
Judge King sided with the prosecutor’s assessment, saying the defense attorney’s account did not provide “the full picture.”
In 2010, the father, son and business partner Jose A. Varona were accused of bribing assisted-living facilities, home healthcare agencies and patient recruiters for Medicare referrals in an elaborate scheme to dupe the government program into paying $6.2 million for services that were unnecessary or never provided from 2006 to 2008.
During that era, South Florida rehab clinics accounted for $360 million, or one-quarter, of all Medicare claims for physical and occupational therapy services across the country.
The FBI began investigating Montaner and his rehab clinics in 2006, when agents opened an undercover operation.
That year, at a wedding reception, Montaner Sr. was overheard bragging that the FBI would never be able to touch him since he was the only defendant acquitted in a major Miami-Dade healthcare fraud case back in the 1990s.
Ultimately, the FBI obtained its strongest evidence when an undercover agent posing as a patient recruiter received cash kickback payments from Montaner Sr. as the exchange was being videotaped — one of 208 recordings, court documents show.
But several months after the FBI raided the family’s clinics in September 2008, Montaner Sr. fled to Costa Rica, leaving his son and partner behind.
Two years later, Montaner Jr., 46, a computer whiz who admitted manipulating Medicare billing codes to maximize payments, pleaded guilty to conspiring to defraud the healthcare program. He was sentenced to four years in prison after agreeing to cooperate with prosecutors.
“To put it mildly, this is not a position that Ernie embraced, but rather one that was thrust upon him as a result of his father’s betrayal,” the son’s attorney, Silvia B. Pinera-Vazquez, wrote in court papers.
Varona, a patient recruiter who operated one of Montaner Sr.’s clinics, also pleaded guilty to the same conspiracy charge and was sentenced to three years in prison. Varona, 40, gave the FBI crucial information about where Montaner Sr. was hiding near San Jose, Costa Rica, said his lawyer, Simon T. Steckel. Varona’s sentence was later reduced to nearly two years.
Costa Rican authorities arrested Montaner Sr. in July 2010. He remained in jail while he fought his extradition. FBI agents brought him back to Miami in February 2011.
A federal magistrate judge ordered the pretrial detention of Montaner, who once lived in a Brickell Avenue penthouse apartment and drove a Mercedes SL 500. Montaner — the eldest son of a Cuban father who was known as the “Poet of Exile,” and brother of Spain-based columnist Carlos Alberto Montaner — has remained in custody in the Federal Detention Center in downtown Miami.
His brother, who writes for Firmas Press and is published in the Miami Herald and El Nuevo Herald, sent a letter to Judge King, seeking his forgiveness in light of Montaner Sr.’s continued incarceration and poor health.
“Ernesto has already spent two years deprived of freedom, a suffering aggravated by the moral burden of being found guilty of Medicare fraud, a type of infamous misdeed that totally discredits him within the community to which he belongs,” the brother wrote.
“Because I know him well, I know that the destruction of his good name and image is a social punishment that affects him greatly, for which he will have to pay the rest of his life.”