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`[PUBLISH]
`
`In the
`United States Court of Appeals
`For the Eleventh Circuit
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`
`
`____________________
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`No. 19-13838
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`____________________
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`
`UNITED STATES OF AMERICA,
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`versus
`PHILIP ESFORMES,
`
`
` Plaintiff-Appellee,
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` Defendant-Appellant.
`
`
`____________________
`
`Appeal from the United States District Court
`for the Southern District of Florida
`D.C. Docket No. 1:16-cr-20549-RNS-1
`____________________
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`
`
`
`
`
`
`
`[PUBLISH]
`
`In the
`United States Court of Appeals
`For the Eleventh Circuit
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`
`
`
`
`
`
`____________________
`
`No. 19-13838
`
`____________________
`
`
`UNITED STATES OF AMERICA,
`
`versus
`PHILIP ESFORMES,
`
`
` Plaintiff-Appellee,
`
` Defendant-Appellant.
`
`
`____________________
`
`Appeal from the United States District Court
`for the Southern District of Florida
`D.C. Docket No. 1:16-cr-20549-RNS-1
`____________________
`
`
`
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`Opinion of the Court
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`19-13838
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`____________________
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`No. 19-14874
`____________________
`
`
`UNITED STATES OF AMERICA,
`
`versus
`PHILIP ESFORMES,
`
`
` Plaintiff-Appellee,
`
` Defendant-Appellant.
`
`
`____________________
`
`Appeal from the United States District Court
`for the Southern District of Florida
`D.C. Docket No. 1:16-cr-20549-RNS-1
`____________________
`
`Before WILLIAM PRYOR, Chief Judge, JILL PRYOR, and GRANT, Cir-
`cuit Judges.
`WILLIAM PRYOR, Chief Judge:
`Philip Esformes challenges his convictions of healthcare
`fraud, illegal kickbacks, and money laundering and the related res-
`titution award and forfeiture judgment. After Esformes filed this
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`
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`appeal, President Trump commuted his sentence of imprisonment
`and rendered any challenge to it moot. In his remaining challenges,
`Esformes argues that his indictment should have been dismissed
`because of prosecutorial misconduct, that the district court errone-
`ously admitted expert opinion testimony against him, that the ad-
`missible evidence against him was insufficient to sustain his convic-
`tions, and that the restitution award and forfeiture judgment
`should be vacated. We affirm.
`I. BACKGROUND
`Philip Esformes owned and operated the “Esformes Net-
`work”—several medical facilities in Miami-Dade County, Florida.
`The Network included “skilled nursing facilities,” residential med-
`ical facilities that provided services performed by nurses, such as
`physical therapy or the operation of sensitive medical devices.
`Medicare or Medicaid will pay for a stay at a skilled nursing facility
`only if the patient receives medical certification that the admission
`is necessary and if the patient spent at least three days in an acute-
`care hospital immediately before admission.
`After a grand jury indicted two of his associates, Gabriel and
`Guillermo Delgado, Esformes entered into a joint-defense agree-
`ment with the Delgados. The government later added a drug
`charge to Guillermo Delgado’s indictment that threatened a signif-
`icantly higher term of imprisonment. Esformes then “offered to
`pay a significant sum of money to [Guillermo] Delgado so that he
`could flee the United States and avoid prosecution in the United
`States.” The Delgados signed a sealed plea agreement, began
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`recording their conversations with Esformes, and passed along to
`the government multiple recordings, including some that involved
`conversations between Esformes and his attorneys.
`
`The following year, an indictment charged that Esformes
`
`and others conspired to use the Network to defraud Medicare and
`Medicaid of millions of dollars. The indictment alleged that Es-
`formes bribed doctors at local hospitals to refer patients to his
`skilled nursing facilities who did not need that care and that his
`Network provided unnecessary and expensive medical services to
`those patients and fraudulently inflated bills with services that the
`facilities did not provide. It further alleged that the conspirators
`split their ill-gotten gains with referring doctors and bribed state
`officials to gain advance notice of otherwise random inspections.
`And it alleged that they laundered the proceeds of their crimes by
`various means,
`including paying “[f]emale [c]ompanion[s,]”
`providing “limousine services” to Esformes, and bribing a Univer-
`sity of Pennsylvania basketball coach to aid the admission of Es-
`formes’s son.
`
`The Federal Bureau of Investigation promptly executed a
`search warrant for Esformes’s Eden Gardens medical facility to
`“seiz[e] . . . business records related to the health-care fraud inves-
`tigation of Esformes.” The government knew beforehand that
`Norman Ginsparg, an Illinois-licensed attorney who worked with
`Esformes, had an office at Eden Gardens. And a member of Es-
`formes’s defense team warned the agents that there were privi-
`leged materials at Eden Gardens.
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`The government established a “taint protocol” to identify
`privileged documents found in the search and to keep the prosecu-
`tion team from seeing them. It chose agents who were not other-
`wise involved in the investigation to conduct the search. But these
`measures failed.
`As the government now admits, “the agents conducting the
`search did not receive sufficient instructions on how to treat or
`identify potentially privileged materials[,]” and they passed on to
`the prosecution team a substantial portion—at least a hundred—of
`the privileged documents.
`The prosecution team started to review the Eden Gardens
`materials before prosecutors confirmed that the materials were not
`privileged and before Esformes received copies of the seized docu-
`ments. No prosecutor raised any privilege concerns until over four
`months after the Eden Gardens search, when Assistant United
`States Attorney Elizabeth Young received the scanned version of
`the documents and encountered a memorandum with a law firm’s
`header at the top. But at that point because of other disputes with
`Esformes’s counsel, Young had known about potential privilege is-
`sues for more than a month. And as the district court pointed out,
`when she encountered the obviously privileged document in De-
`cember, she did not consult with either Esformes’s defense team or
`the district court.
`The prosecutors not only reviewed privileged documents
`but also tried to use them against Esformes before trial on two oc-
`casions. First, the government presented privileged documents to
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`Norman Ginsparg, one of Esformes’s alleged co-conspirators, in an
`unsuccessful attempt to convince him to cooperate with the gov-
`ernment. And second, prosecutors interviewed one of Ginsparg’s
`assistants about the same privileged documents at length to deter-
`mine whether they incriminated Esformes. As the district court
`found, the prosecutors’ “myopic view of Ginsparg as a criminal and
`not an attorney skewed their reaction to, and blurred their ability
`to see, the potential for privilege” in these documents.
`Esformes moved to dismiss the indictment and to disqualify
`Young and other prosecutors due to their violations of his attorney-
`client and attorney work-product privileges. A magistrate judge
`found prosecutorial misconduct and even a bad-faith “attempt[] to
`obfuscate the record” of that misconduct. The magistrate judge ac-
`cordingly recommended suppressing the fruits of these intrusions
`on privilege. But the magistrate judge recommended that the dis-
`trict court reject Esformes’s request to dismiss the indictment or to
`disqualify members of the prosecution team. The magistrate judge
`reasoned that after the privileged materials were suppressed, Es-
`formes would not be further prejudiced: the recordings of privi-
`leged communications were evidence primarily for a count of the
`indictment that had been dismissed; no charges resulted from the
`privileged documents seized at Eden Gardens; and no privileged
`materials would be introduced at trial to prejudice Esformes. The
`district court found that the conversations between the Delgados
`and Esformes were not privileged and modified the suppression or-
`der to cover only the conversations between Esformes and his
`
`
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`attorneys, but the district court otherwise adopted the magistrate
`judge’s proposed remedies and rationale.
`Although the district court agreed with the magistrate judge
`that the prosecutors committed misconduct, it rejected the magis-
`trate judge’s finding of bad faith and dishonesty. During a hearing
`on the magistrate judge’s report and recommendation, the district
`court granted three prosecutors leave to be represented by private
`counsel to urge the district court to reverse those findings. The dis-
`trict court “f[ound] that it [was] unnecessary to adopt the Magis-
`trate Judge’s credibility determinations” and criticisms of the pros-
`ecution team’s “‘attempts to obfuscate the record,’ . . . particularly
`given the adverse consequences of such findings to the careers of
`the prosecutors.” Those credibility assessments played no role in
`the magistrate judge’s determination of the proper remedy; only
`the prejudice to Esformes mattered. But the district court still af-
`firmatively rejected the magistrate judge’s findings. The district
`court accepted the prosecutors’ explanation that they were con-
`fused, not mendacious, about the scope of Esformes’s invocations
`of privilege. It found it implausible that a prosecution team that
`tried, however incompetently, to maintain privilege protections
`would take the risk of fabricating a justification for its actions after
`the fact.
`
`At Esformes’s two-month trial, prosecutors presented three
`types of evidence material to this appeal. First, Esformes’s co-con-
`spirators, including Gabriel Delgado, testified about the conspir-
`acy, its means, and their roles in it. Second, the prosecutors
`
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`presented summary testimony from Michael Petron, who identi-
`fied various transactions in Esformes’s financial records as bribes,
`kickbacks, and efforts to conceal illegal proceeds. Third, Dr. David
`Cifu testified as an expert witness to explain how skilled nursing
`facilities work; what type of patients are suitable for stays in them;
`and how Medicare and Medicaid treat stays in skilled nursing facil-
`ities.
`
`Dr. Cifu serves as the Chairman of the Department of Phys-
`ical Medicine and Rehabilitation and as the Executive Director of
`the Center for Rehabilitation Sciences and Engineering at Virginia
`Commonwealth University. He has decades of experience with
`skilled nursing facilities. Dr. Cifu explained the “continuum of ser-
`vices” between acute-care hospitalization and less intense forms of
`care, such as skilled nursing facilities, and he reviewed hypothetical
`case studies of skilled-nursing-facility patients.
`Dr. Cifu testified that ordinarily, young, able-bodied psychi-
`atric patients are poor fits for skilled nursing facilities. He testified
`that, in his thirty years of experience, he did not remember a single
`patient “who just had behavioral issues who was in a [skilled nurs-
`ing facility].” He similarly could not recall a single patient at the
`five skilled nursing facilities at which he had worked who was ad-
`mitted from a psychiatric hospital. Prosecutors used this testimony
`to support their argument that Esformes’s patients who were ad-
`mitted to skilled nursing facilities for psychiatric reasons had been
`admitted for illegitimate reasons in violation of Medicare and Med-
`icaid guidelines.
`
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`After it allowed Dr. Cifu to testify, the district court admit-
`ted his expert opinions over Esformes’s objection under Daubert v.
`Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The dis-
`trict court evaluated Dr. Cifu’s qualifications, methodology, and
`helpfulness to the jury, see FED. R. EVID. 702, and found him qual-
`ified to inform the jury about care in skilled nursing facilities and
`the criteria for entering them “based upon his education, training,
`and experience.” It acknowledged that Dr. Cifu “didn’t do any test-
`ing” to support his conclusions but still found his testimony reliable
`because “some people by education and training can give testi-
`mony in an area” despite not relying on precise scientific methods.
`And it found that “his testimony was helpful to the jury in under-
`standing the relationship between how [skilled nursing facilities]
`work, how patients come in and out of [skilled nursing facilities],
`[and] what types of treatment are generally required in a [skilled
`nursing facility]” and that it “help[ed] them understand the rela-
`tionship between the Medicare rules and regulations and guide-
`lines as they pertain to [skilled nursing facilities] and other rehabil-
`itation facilities.” The district court also overruled Esformes’s ob-
`jection that the pretrial disclosures about Dr. Cifu were insufficient
`or misleading. It remarked that “there might be a case somewhere
`where defense has received more information about [an expert wit-
`ness] before a trial, but I haven’t seen one in my career.”
`Esformes contended that Dr. Cifu was not qualified to testify
`about whether psychiatric patients are commonly or properly ad-
`mitted to skilled nursing facilities. Dr. Cifu admitted on cross-
`
`
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`examination that he was not familiar with the procedures required
`by Florida law that were supposed to guarantee that no one enter
`a skilled nursing facility without medical necessity. See Fla. Admin.
`Code Ann. r. 59G-1.040. The district court rejected Esformes’s ar-
`guments, but it instructed the jury that “under appropriate circum-
`stances psychiatric patients are eligible for coverage for skilled
`nursing facility services under both Medicare and Medicaid.”
`
`The jury convicted Esformes on 20 counts. Esformes was
`convicted of one count of conspiracy to defraud the United States
`and to pay and receive healthcare kickbacks, two counts of receiv-
`ing kickbacks, four counts of paying kickbacks, one count of con-
`spiracy to commit money laundering, nine counts of money laun-
`dering, one count of conspiracy to commit federal program brib-
`ery, one count of conspiracy to commit federal program bribery
`and honest services wire fraud, and one count of obstruction of jus-
`tice. The jury failed to reach a verdict with respect to the six re-
`maining counts, and the government has stated that it intends to
`retry Esformes on those counts.
`The district court sentenced Esformes to 240 months of im-
`prisonment and three years of supervised release. It also awarded
`approximately $5.5 million in restitution payments based on its
`“highly conservative estimate” of the federal government’s loss
`owing to Esformes’s crimes and the estimated costs of his impris-
`onment and supervised release. The district court derived the loss
`figure—the same figure it used for the purpose of calculating Es-
`formes’s prison sentence—from defense counsel’s suggestion that
`
`
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`only one percent of the services for which Esformes billed Medi-
`care and Medicaid were skilled nursing facility services to non-el-
`derly psychiatric patients. The district court also ordered that Es-
`formes forfeit $38.7 million because it calculated that sum of
`money was “equal in value to the property traceable to the prop-
`erty involved in [Esformes’s] money laundering offenses.” See 18
`U.S.C. § 982(a)(1). That figure came from the summary witness,
`Petron, who estimated that Esformes personally profited that
`much from the Esformes Network. In a special verdict, the jury had
`previously found some of Esformes’s specific pieces of property—
`worth much less than $38.7 million—to be forfeitable. See FED. R.
`CRIM. P. 32.2(b)(5).
`
`After Esformes filed his appeal, then-President Donald
`Trump commuted Esformes’s term of imprisonment to time
`served but “le[ft] intact and in effect the remaining three-year term
`of supervised release with all its conditions, the unpaid balance of
`his . . . restitution obligation, if any, and all other components of
`the sentence.” The Bureau of Prisons released Esformes from cus-
`tody, and we allowed the parties to file supplemental briefs to “dis-
`cuss[] the impact, if any, of the presidential commutation of [Es-
`formes’s] sentence on this appeal.”
`II. STANDARDS OF REVIEW
`We decide jurisdictional issues de novo. United States v.
`Lopez, 562 F.3d 1309, 1311 (11th Cir. 2009). We review decisions
`not to dismiss an indictment and to admit expert opinion testimony
`for abuse of discretion. United States v. Davis, 708 F.3d 1216, 1221
`
`
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`(11th Cir. 2013); United States v. Frazier, 387 F.3d 1244, 1258 (11th
`Cir. 2004) (en banc). “A district court abuses its discretion when it
`applies an incorrect legal standard, relies on clearly erroneous fac-
`tual findings, or commits a clear error of judgment.” United States
`v. $70,670.00 in U.S. Currency, 929 F.3d 1293, 1300 (11th Cir. 2019).
`We review a denial of a motion for acquittal for insufficient evi-
`dence de novo, “view[ing] the evidence in the light most favorable
`to the government.” United States v. Almanzar, 634 F.3d 1214,
`1221 (11th Cir. 2011). Finally, when reviewing the restitution
`award and forfeiture judgment, we review factual findings for clear
`error and questions of law de novo. United States v. Edwards, 728
`F.3d 1286, 1291 (11th Cir. 2013); United States v. Kennedy, 201 F.3d
`1324, 1329 (11th Cir. 2000).
`III. DISCUSSION
`We divide our discussion into five parts. First, we explain
`that the presidential commutation renders Esformes’s appeal of his
`prison sentence moot but does not otherwise affect his appeal. Sec-
`ond, we explain that the district court did not abuse its discretion
`when it declined to dismiss the indictment or to disqualify the pros-
`ecutors due to misconduct. Third, we affirm the admission of Dr.
`Cifu’s expert-opinion testimony. Fourth, we affirm the restitution
`amount as not clearly erroneous. And fifth, we hold that there was
`sufficient evidence for the jury to convict Esformes of money laun-
`dering and that the forfeiture judgment based on money launder-
`ing was lawfully calculated.
`
`
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`A. The Commutation of Esformes’s Prison Sentence Renders His
`Appeal of that Sentence Moot.
`Esformes contends that the commutation of his prison sen-
`tence renders his appeal of that sentence moot, bars retrial if this
`Court vacates any of his convictions, and “bars any attempt to fur-
`ther prosecute [him] on [c]ount [o]ne, the hung count” of conspir-
`acy to commit healthcare fraud and wire fraud. We agree—as does
`the government—with his first contention, and we need not ad-
`dress the second because we are not vacating any of his convic-
`tions. So, we need only address his last argument.
`
`Esformes argues that the President’s grant of clemency bars
`further prosecution on at least count one, on which the jury failed
`to reach a verdict. Esformes interprets the clemency warrant as “in-
`tended to end [his] incarceration, precluding any further prosecu-
`tion for the conduct at issue in this case.” Because count one is an
`indictment for the same conduct as the counts of conviction, he
`argues that a new trial on that count would violate the terms of the
`clemency warrant, the Double Jeopardy Clause, and his due pro-
`cess right to be free from vindictive prosecution.
`We cannot reach the merits of this argument because the
`hung counts were not the basis of a final judgment. With limited
`exceptions not relevant here, we review only final judgments. 28
`U.S.C. § 1291. “Final judgment in a criminal case means sentence.
`The sentence is the judgment.” Berman v. United States, 302 U.S.
`211, 212 (1937); see also United States v. Tovar-Rico, 61 F.3d 1529,
`1536 (11th Cir. 1995); United States v. Kaufmann, 951 F.2d 793, 794
`
`
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`(7th Cir. 1992) (“The judgment is obviously not final as to counts
`of the indictment which remain outstanding.”). The hung counts
`against Esformes were not part of the basis of his sentence, so they
`are not part of any judgment we have jurisdiction to review.
`B. The District Court Properly Declined to Dismiss the Indict-
`ment or Disqualify the Prosecution Team.
`The parties agree that prosecutors engaged in misconduct,
`
`but Esformes argues that the district court should have either dis-
`missed the indictment or disqualified the prosecutors instead of
`only suppressing the improperly obtained evidence. The govern-
`ment contends that Esformes failed to prove “demonstrable preju-
`dice” from the intrusion on his privilege when the suppression or-
`ders are considered, so dismissal of the indictment or disqualifica-
`tion of the prosecution team would have been improper. We agree
`with the government.
`
`“Federal courts possess the power and duty to dismiss fed-
`eral indictments obtained in violation of the Constitution or laws
`of the United States[,]” United States v. Pabian, 704 F.2d 1533, 1536
`(11th Cir. 1983), but “absent demonstrable prejudice, dismissal [is]
`plainly inappropriate as a remedy” for the violation of attorney-cli-
`ent privilege. United States v. Ofshe, 817 F.2d 1508, 1515 (11th Cir.
`1987). Without demonstrable prejudice, dismissal of an indictment
`is inappropriate “in the case of even the most egregious prosecuto-
`rial misconduct . . . .” United States v. Merlino, 595 F.2d 1016, 1018
`(5th Cir. 1979) (discussing a violation of Brady v. Maryland, 373
`U.S. 83 (1963)). Instead, the remedy should ordinarily be limited to
`
`
`
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`preventing the prosecution from using illegally obtained evidence
`against the defendant. Cf. United States v. Morrison, 449 U.S. 361,
`364–65 (1981).
`
`Esformes and his supporting amici curiae suggest that we
`should presume prejudice here. Esformes invokes our sister cir-
`cuit’s burden-shifting approach to assess prejudice: the Ninth Cir-
`cuit requires that the government make an affirmative showing of
`harmlessness if the prosecutors deliberately violated a defendant’s
`privilege and obtained information about the defendant’s trial strat-
`egy. See United States v. Danielson, 325 F.3d 1054, 1072 (9th Cir.
`2003). But Esformes did not explain why we should adopt this
`novel approach in his opening brief, and even if we considered his
`arguments or those of his amici, his suggested approach would be
`foreclosed by precedent.
`
`Our Court has explained that the prejudice that can warrant
`a dismissal of indictment must be “demonstrable,” not presumed
`based on a constitutional violation. Ofshe, 817 F.2d at 1515. As our
`predecessor circuit stated, “there is no per se rule requiring dismis-
`sal of the indictment as the sanction for the intrusion into the attor-
`ney-client relationship by government agents.” United States v.
`Melvin, 650 F.2d 641, 643 (5th Cir. Unit B Jul. 1981).
`
`Esformes has not even attempted to satisfy his burden of
`proving prejudice. The district court applied the correct legal stand-
`ard and found that the privilege violations did not prejudice Es-
`formes because the privileged materials did not serve as either the
`basis for the charges against him or the evidence admitted at trial.
`
`
`
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`Nor did the privilege violations provide the government with any
`strategic advantage. Esformes has not sought to establish that this
`finding is clearly erroneous. Esformes also argues that the admitted
`recordings of his conversations with the Delgados were privileged,
`but we agree with the district court that these conversations were
`not privileged because they were not between an attorney and his
`client.
`Esformes also challenges the decision to reject the magis-
`trate judge’s finding that the prosecutors acted in bad faith, but we
`decline to address this issue because it does not affect the outcome
`of this appeal. The district court explained that, even if it had ac-
`cepted the magistrate judge’s finding of bad faith, that finding
`would not have affected its choice of remedy. Because we affirm
`the finding of no prejudice, the issue of bad faith likewise cannot
`affect our disposition of this appeal.
`C. Assistant United States Attorney Young Did Not Have a Con-
`flict of Interest.
`Esformes also argues that prosecutor Elizabeth Young “had
`multiple conflicts of interest that should have disqualified her as a
`matter of law . . . .” He argues that she should have been disquali-
`fied because she “inject[ed] her personal interest in opposition to
`Esformes’[s] motions to dismiss or disqualify” and impermissibly
`served as both a witness and an advocate in the disqualification pro-
`ceedings. We reject these arguments.
`
`
`
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`1. Young Was Not an “Interested Prosecutor.”
`“[F]ederal prosecutors are prohibited from representing the
`
`[g]overnment in any matter in which they, their family, or their
`business associates have any interest.” Young v. United States ex
`rel. Vuitton et Fils S.A., 481 U.S. 787, 803 (1987) (citing 18 U.S.C.
`§ 208(a)). The decision in Young “establish[ed] a categorical rule
`against the appointment of an interested prosecutor”: such an ap-
`pointment is treated as a structural error not subject to harmless-
`error analysis. Id. at 814 (plurality opinion); see also United States
`v. Siegelman, 786 F.3d 1322, 1329 (11th Cir. 2015).
`
`Esformes argues that Young was “interested” because she
`had a personal, professional interest in having the magistrate
`judge’s finding of bad faith reversed. Young was represented by
`outside counsel at the disqualification hearing, and her counsel em-
`phasized that “the findings as recommended by the magistrate
`[would] have serious ramifications to Ms. Young professionally.”
`According to Esformes, Young “put her self-interest at the center
`of this controversy[,]” and the district court wrongly took that per-
`sonal interest into account when it specifically cited “the adverse
`consequences of [the magistrate judge’s credibility] findings to the
`careers of the prosecutors.” Because Young had a “dominant role
`in Esformes’[s] prosecution[,]” Esformes maintains that her conflict
`of interest is enough to require vacatur of his convictions. We dis-
`agree.
`Young’s professional interest in avoiding sanctions from the
`district court did not disqualify her as an “interested prosecutor.”
`
`
`
`USCA11 Case: 19-13838 Document: 118-1 Date Filed: 01/06/2023 Page: 18 of 35
`
`18
`
`Opinion of the Court
`
`19-13838
`
`Every advocate has a personal, professional interest in the success
`of his matters. And every attorney has a strong personal interest in
`avoiding sanctions by a court, formal or not, because of their po-
`tential impact on an attorney’s career. We recognized the magni-
`tude of this interest in United States v. Shaygan, in which we held
`that it was a violation of prosecutors’ due process rights for a court
`to publicly reprimand them without notice and an opportunity to
`be heard, including the benefit of personal legal representation. 652
`F.3d 1297, 1317–18 (11th Cir. 2011). Young exercised the rights we
`recognized in Shaygan to challenge a sanction against her. A pros-
`ecutor who exercises her constitutional right to protect her profes-
`sional reputation does not disqualify herself from further proceed-
`ings by that same act. If self-defense of that sort were enough to
`require recusal, any accused could disqualify his prosecutors by ac-
`cusing them of misconduct.
`
`2. Young Did Not Violate the Advocate-Witness Rule.
`Esformes also argues that Young violated the rule that advo-
`
`cates may not testify in a case when she participated in the hearing
`on the motion to disqualify her, see United States v. Hosford, 782
`F.2d 936, 938 (11th Cir. 1986), but this challenge also fails. Even if
`it were error for Young to have testified at the hearing before the
`magistrate judge, Esformes invited that error when he called her to
`the stand, and he cannot complain about it now. See United States
`v. Ross, 131 F.3d 970, 988 (11th Cir. 1997). But apart from the in-
`vited-error bar, we would reject Esformes’s argument because
`
`
`
`USCA11 Case: 19-13838 Document: 118-1 Date Filed: 01/06/2023 Page: 19 of 35
`
`19-13838
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`Opinion of the Court
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`19
`
`Young was not a “witness” in the sense governed by the advocate-
`witness rule.
`Esformes’s objection misunderstands the advocate-witness
`rule. That rule responds to the concern that “the prestige or prom-
`inence of a government prosecutor’s office will artificially enhance
`his credibility as a witness” or that “the performance of dual roles
`by a prosecutor might create confusion on the part of the trier of
`fact as to whether the prosecutor is speaking in the capacity of an
`advocate or of a witness . . . .” Hosford, 782 F.2d at 938–39 (quoting
`United States v. Johnston, 690 F.2d 638, 643 (7th Cir. 1982)). The
`classic case involves an advocate testifying against the defendant at
`trial. See, e.g., Walker v. Davis, 840 F.2d 834, 836 (11th Cir. 1988)
`(“[The prosecutor and the defendant] were the only two witnesses
`to give testimony concerning [the defendant’s] alleged confes-
`sion.”) Young was not testifying to the jury about the charges in
`the case but was instead testifying to a magistrate judge about her
`own investigatory work. She was not serving as both an advocate
`and a witness in the way that the traditional rule envisions, and so
`her actions were consistent with the rule’s requirements.
`
`D. The District Court Properly Admitted Dr. Cifu and Denied Es-
`formes’s Motion for Acquittal.
`Esformes argues that the district court abused its discretion
`
`when it admitted Dr. Cifu’s expert testimony and that this error
`entitles him to acquittal or vacatur “on the counts involving
`healthcare services, including [c]ount [o]ne which resulted in a
`hung-jury.” As we explained above, we lack jurisdiction to consider
`
`
`
`USCA11 Case: 19-13838 Document: 118-1 Date Filed: 01/06/2023 Page: 20 of 35
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`20
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`Opinion of the Court
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`19-13838
`
`his arguments with respect to count one. We reject his other argu-
`ments because the district court did not abuse its discretion when
`it admitted Dr. Cifu’s testimony.
`
`Esformes challenges the admission of Dr. Cifu’s testimony
`on three grounds. First, he argues that Dr. Cifu’s testimony differed
`so greatly from the government’s pretrial disclosures that it should
`not have been allowed. Second, he argues that the district court
`erred by deferring its Daubert ruling until after Dr. Cifu testified.
`And third, he argues that the district court did not properly apply
`the Daubert factors when it admitted Dr. Cifu’s testimony.
`
`Esformes offers a skeletal argument, similar to his two ob-
`jections before the district court, that “the substance of [Dr.] Cifu’s
`trial testimony differed materially from the government’s pretrial
`disclosures.” But aside from a bare citation to the disclosures, Es-
`formes does not support his assertion. “We have long held that an
`appellant abandons a claim when he either makes only passing ref-
`erences to it or raises it in a perfunctory manner without support-
`ing arguments and authority.” Sapuppo v. Allstate Floridian Ins.
`Co., 739 F.3d 678, 681 (11th Cir. 2014). So we decline to address the
`merits of this contention.
`
`Esformes’s next argument is that “the district court faile
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