Appendix — Bek v. United States (No. 07-457)

a 1 Ss)

er cent U.S.

07-457 CCT 1 - 2007

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

DOCTOR JONG HI BEK,

Petitioner,

¥.

UNITED STATES OF AMERICA,

Respondent

On Petition for Writ of Certiorari

To The Seventh Circuit Court of Appeals

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

Clark W. Holesinger, 11586-64

Counsel of Record

334 West 806 North

Valparaiso, IN 46385

(219) 763-7246

APPENDIX

A

Jn the

Gnuited States Court of Appeals

For the Seventh Circuit

No. 05-4198

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

U.

JONG HI BEK,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 03-CR-4—Allen Sharp, Judge.

ARGUED OCTOBER 30, 2006—DECIDED JULY 6, 2007

Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. When Dr. Jong Hi Bek arrived

at his pain-management clinic in Gary, Indiana each

morning, the line of people waiting to get prescription

drugs often ran down to the end of the block. Those lines

caught the attention of law enforcement, leading to

Bek’s investigation and eventual arrest for the illegal

distribution of prescription drugs. Bek was convicted by

a jury on twenty-six counts of conspiring to distribute

and distributing controlled substances, and committing

health care fraud. On appeal, Bek argues that the jury’s

verdict was not supported by sufficient evidence, the

district court should have excluded certain medical

evidence because it was subject to a physician-patient

2

privilege and protected by the Health Insurance Porta-

bility and Accountability Act of 1996 (HIPAA), and the

government interfered with his defense and choice of

counsel by vindictively prosecuting his attorney. We agree

with Bek that the evidence on count nine regarding his

treatment of patient Barbara W. was insufficient to

support the jury’s verdict. But we affirm the district

court's judgment on the remaining counts because the

evidence was sufficient and the medical records were not

protected by any privilege or by HIPAA. Finally, we

previously ruled in another case that Bek’s counsel was

not vindictively prosecuted, so we also reject this argu-

ment.

I. BACKGROUND

Gary Police Department undercover officers, carrying

hidden cameras, entered Bek’s offices posing as prospec-

tive patients. Based on information collected during the

undercover operation, a federal magistrate judge issued a

warrant to search Bek’s medical practice. Ultimately, Bek

was charged with twenty-seven counts of conspiracy to

distribute controlled substances (21 U.S.C. § 846), distrib-

uting controlled substances (21 U.S.C. § 841(a)(1), 18

U.S.C. § 2), and health care fraud (18 U.S.C. §§ 1347, 2).

Bek retained attorney Jerry Jarrett to represent him.

However, before Bek’s trial began, Jarrett was indicted on

money laundering charges. The district court held a

hearing to determine whether Jarrett could continue to

effectively represent Bek in light of his own legal entangle-

ments, and Bek told the court that he wanted Jarrett to

remain his counsel. Some time later, citing financial

concerns, Jarrett withdrew from the case. The following

day, Bek moved for the dismissal of his indictment,

contending that his constitutional rights were infringed

by the vindictive prosecution of his former counsel. The

district court denied the motion, ruling it was premature

because the case against Jarrett had not been resolved.’

At trial, Detective Kirk Banker of the Gary Police

Department testified about the investigation that led to

Bek’s arrest. Banker first entered Bek’s clinic posing as

a patient. In the presence of Bek’s assistant, Richard

Faloona, a confidential police informant removed another

patient’s file from a cabinet in the clinic’s waiting area so

that Banker could assume that patient’s identity. A few

minutes later, Faloona asked Banker, the confidential

informant, and another patient to step into Bek’s office

for their examinations. Bek took their blood pressures

and weights, and asked them to lift their legs and bend

over. After these brief examinations, he gave the unidenti-

fied patient a shot in his upper buttocks, prescribed the

drugs that each person requested, and pocketed a $50

cash payment from each individual.

After Banker's initial visit, he returned to the clinic

several times with other detectives, each time with a

similar result: the detectives arrived early in the morning

to sign in, Bek performed a short examination on each one,

and then prescribed drugs that the detectives requested.

Bek always asked for $50 in cash for prescriptions and

an additional $50 for refills. He prescribed Schedule [II

controlled substances, such as Vicodin ES, Vicodin HP,

Anadrol-10, and Anadrol-50, and Schedule IV controlled

substances, such as Xanax, Diazepam, Adipex-P, Fastin,

' Another district judge eventually dismissed the case against

Jarrett, finding that the government had vindictively prosecuted

Jarrett, but we overturned that decision on appeal and rein-

stated the criminal case. See United States v. Jarrett, No.

1:03CR87, 2005 WL 1224684 (N.D. Ind. May 28, 2005), rev'd, 447

F.3d 520 (7th Cir. 2006).

Darvocet N, Halcion, and Dalmane.’ Often, his prescrip-

tions were inconsistent. For instance, Bek prescribed

Anadrol, a type of steroid, for Banker because he told Bek

that he was lifting weights and wanted to gain weight.

During his next visit, Banker said that he wanted to lose

weight and, without hesitation, Bek issued a prescrip-

tion for diet pills.

The government played videotape recordings of the

undercover operation and proffered the testimony of other

Gary Police Department, Drug Enforcement Agency, and

Food and Drug Administration agents to corroborate

Banker’s account. One of the agents testified that Faloona

would tell patients what information to enter on the

medical forms and how to ask Bek for the drugs they

wanted. The agent said that Faloona told patients that

Bek would not prescribe anything stronger than Schedule

III and IV drugs, but that “he knew a guy in Valparaiso,

Indiana that would.” Further, the agent stated that Bek

always examined several patients—often of both sexes—at

the same time. A female undercover officer noted that

Bek gave her a prescription for Viagra even though Viagra

does not have any authorized indications for women.

Several officers mentioned that Bek never requested past

medical records, ordered MRIs, x-rays or other diagnostic

tests, or recommended any lifestyle changes.

Some of Bek’s former patients also testified, and their

experiences matched those of the detectives. One patient

explained that Bek’s clinic was always crowded because

his reputation for willingly prescribing medication at-

tracted individuals from several states away. Many

patients said they were often forced to wait for several

hours to see Bek (who did not take appointments), and

2 See 21 C.F.R. §§ 1308.13 (listing of Schedule III drugs), 1808.14

(listing of Schedule IV drugs).

that Bek administered brief, identical examinations, never

involving diagnostic testing, in the presence of other

patients of both sexes. Additionally, Bek would not recom-

mend medications, but would only prescribe requested

drugs, and he never followed up with his patients to

determine whether the drugs were effective.

Patients also testified that Bek did not attend to their

specific medical needs. For example, one former patient

said that although he had visible scars from heroin

injections, Bek never asked about them or required any

type of drug testing. Another patient acknowledged that

after taking the drugs that Bek prescribed he developed

an addiction to pain pills. When the patient’s mother

called the clinic to complain, Bek refused to see the patient

anymore, but did not give him a referral for addiction

treatment. A female patient testified that although she

was visibly pregnant, Bek never warned her about the

effects the drugs might have on her pregnancy.

Faloona, who pled guilty to conspiring to distribute

controlled substances during the second day of trial, also

testified for the government. Faloona said that because

Bek would see about forty patients a day, Faloona was

needed to keep order among the patients, to weed out

individuals seeking drugs more potent than the Schedule

III and IV narcotics that Bek prescribed, and to advise

patients about what drugs Bek was willing to prescribe.

Faloona also testified that the experiences that the

undercover officers reported were typical.

The government also presented expert testimony from

a pharmacist who explained that Bek’s practices were

dangerous and very unusual. The pharmacist explained

that Bek should have conducted several diagnostic tests

and reviewed patients’ medical histories before prescrib-

ing drugs such as Vicodin. The expert noted that several

of the drugs that Bek routinely prescribed were not

indicated for the uses for which Bek prescribed them. He

said that instead of determining the best course of treat-

ment for each patient, Bek used a “menu” of drugs for

everyone—‘an abuser’s dream”—consisting of the same

drugs, doses, and intervals. The pharmacist, and the

prosecution’s expert on the treatment of addiction, con-

cluded that Bek was prescribing controlled drugs without

a legitimate medical purpose and outside the scope of

medical practice.

To address the charge of health care fraud, representa-

tives from insurance companies also testified. These

witnesses explained that their companies sent letters to

Bek notifying him that his patients were using insurance

to purchase the drugs he prescribed. The letters also

notified Bek that some of his patients were being treated

by other doctors, and that his treatments were duplicative

and involved heavy narcotics use.

In addition, both detectives and patients testified that

nearly all of the local pharmacies had become suspicious

of Bek’s practices and stopped filling his prescription

requests. Only two area pharmacies—55th Avenue Phar-

macy and Washington Drugs—continued to fill Bek’s

prescriptions. Pharmacists from both stores pled guilty

to illegally distributing controlled substances, and a

pharmacist from 55th Avenue Pharmacy testified for the

government. He stated that Bek’s prescriptions were

typically of the same strength and quantity, and that

this uniformity enabled the pharmacy to pre-fill bottles

with the medications that Bek’s patients routinely re-

quested. Business records confirmed that 55th Avenue

Pharmacy and Washington Drugs depended upon Bek’s

business. Over half of the controlled substances dispensed

by 55th Avenue Pharmacy during a two-year period

were for prescriptions written by Bek. Similarly, 10,000

of the 16,000 prescriptions filled by Washington Drugs

during a given period were written by Bek.

~]

Testifying in his own defense, Bek maintained that he

conducted thorough examinations of his patients, asking

them about their medical histories and injuries. He said

that he did not generally send patients for diagnostic

tests such as x-rays and MRIs because those tests were

too costly for his patients and generally ineffective in

identifying pain. He defended his failure to obtain his

patients’ medical records by explaining that it would be too

difficult in his small office to make all patients sign

releases for their records. He added that he trusted what

patients told him about their histories. Bek also said he

would not have prescribed drugs to the undercover agents

if they had not lied about their symptoms.

After each side rested, at Bek’s request, the district

court gave the jury an entrapment instruction based on

Bek’s claim that the undercover agents induced him to

prescribe drugs by lying about their medical conditions.

The jury convicted Bek on twenty-six counts (one count

was dismissed), and he was sentenced to 41 months’

imprisonment on each count (to run concurrently) and

two years of supervised release.

Il. ANALYSIS

A. The Evidence Was Sufficient to Sustain Bek’s Con-

victions on Ajl but Count Nine

On appeal, Bek primarily challenges the sufficiency of

the evidence in support of his convictions. After a jury

trial, this is a “nearly insurmountable” hurdle. United

States v. Orozco-Vasquez, 469 F.3d 1101, 1106 (7th Cir.

2006) (citing United States v. Moore, 425 F.3d 1061, 1072

(7th Cir. 2005)). When confronted with a sufficiency

challenge, “[w]e do not weigh the evidence or assess the

credibility of witnesses. Instead, we view the evidence

in a light most favorable to the government and reverse

only when there is no evidence, no matter how it is

weighed, from which a rational jury could find guilt beyond

a reasonable doubt.” /d. at 1106. We address each of

Bek’s sufficiency of the evidence arguments in turn.

1. Challenges to Bek’s Convictions for Illegally Distrib-

uting Controlled Substances

a. The Evidence Addressed the “Course of Profes-

sional Practice” Standard

Bek first contends that the evidence was insufficient

to support any of his convictions for the unauthorized

distribution of controlled substances because the govern-

ment’s experts testified as to the civil “standard of care”

rather than the higher criminal “course of professional

practice” standard. Essentially, Bek argues that the

government's evidence proved malpractice, not criminal

conduct.

At trial, Bek did not object to any of the statements that

he now contends addressed an improper standard, so we

review this argument for plain error. See Fed. R. Crim. P.

§2(b); United Stutes v. Thomas, 453 F.3d 838, 845 (7th Cir.

2006). To establish plain error, Bek must show “(1) there

was an error; (2) the error was plain, clear, or obvious;

and (3) the error affected his substantial rights, meaniny

it must have affected the outcome of the district court

proceedings.” Jd. In evaluating the third element, we

emphasize the curative effect of the jury instructions

as well as the evidence of guilt contained in the entire

record. Id.

Normally to convict a person charged with violating

21 U.S.C. § 841(a)(1) by distributing a controlled sub-

stance, the government must establish that the defen-

dant knowingly possessed with an intent to distribute a

controlled substance, and that the defendant knew that

the substance was controlled. Orozco-Vasquez, 469 F.3d at

1106. But to convict Bek, a practitioner registered to

distribute controlled substances, of violating § 841(a)(1),

the government must show that he prescribed controlled

substances outside “the course of professional practice.”

See United States v. Moore, 423 U.S. 122, 141 (1975):

United States v. Green, 511 F.2d 1062, 1067 (7th Cir.

1975); see also United States v. Mclver, 470 F.3d 550, 564

(4th Cir. 2006).

Bek’s concern about whether the jury was misled by

the government’s evidence is allayed by the jury instruc-

tions, which he did not contest. The instructions stated

that the government had to prove that Bek distributed

controlled substances “other than for a legitimate medical

purpose or not within the bounds of professional medical

or pharmaceutical practice.” The court also specifically

instructed the jury that “[iJn determining whether the

defendant's conduct was within the bounds of professional

medical practice, you should consider the testimony

you have heard relating to what has been characterized

during trial as the ‘norms’ of professional practice.” We

must presume that the jury followed these proper instruc-

tions, seebaxton v. Bartow, 421 F.3d 565, 573 (7th Cir.

2005), and relied upon the evidence of the norms of

professional practice to determine whether Bek’s conduct

fell outside the “course of professional practice.”

Moreover, the evidence addressed and was sufficient to

satisfy the criminal standard. Witnesses described prac-

tices inconsistent with legitimate medical care: uniform,

superficial, and careless medical examinations (e.g., blood

pressures taken through clothing); exceedingly poor

record-keeping, which one expert called “astonishing” (e.g.,

reporting temperatures of 98.6° for nearly every patient);

and a disregard of blatant signs of drug abuse. The ex-

perts testified that Bek prescribed the “same menu” and

same dosages of drugs to different patients, regardless of

10

body build and kidney function. Further, they noted that

contrary to accepted medical practice, Bek prescribed

multiple medications having the same effects (e.g., two

muscle relaxants prescribed at a time), and drugs that are

dangerous when taken in combination. And, they con-

cluded that Bek’s conduct “was for other than legitimate

medical purpose.” The jury had more than enough evidence

to determine that Bek had a general practice of prescrib-

ing controlled substances outside the course of pro-

fessional conduct.

b. The Evidence Was Sufficient to Sustain Bek’s

Convictions with Respect to Deceased Patients Don

C. and Roger M., but not Barbara W.

Bek challenges the sufficiency of the evidence regard-

ing his convictions for illegally distributing drugs to

three deceased patients—Don C., Roger M., and Barbara

W.—because they did not testify at trial. The government

introduced the medical records and prescription histories

for both Don C. and Roger M.; and Dr. Robert Barkin, a

clinical pharmacologist with expertise in pain manage-

ment, testified that he found no legitimate medical pur-

pose for the prescriptions. Based on the documentary

evidence and expert testimony, a rational jury could have

found that Bek acted outside the scope of medical practice

when he wrote prescriptions for Don C. and Roger M.

However, no expert testified about Barbara W.’s condi-

tion or Bek’s treatment of her. Nor did the government

present her medical records. The jury was therefore

unable to assess whether Bek’s treatment of Barbara W.

was within the “normal course of professional practice.”

Accordingly, we affirm the convictions for the charges

relating to Don C. and Roger M., but reverse on count

nine, which pertains to Barbara W.

11

c. Sufficient Evidence Supports Bek’s Conviction for

Illegally Distributing Drugs to Patient Jennifer P.

Bek contends that the evidence was insufficient to

support the conviction for illegally distributing drugs to

one of his patients, Jennifer P., because she lied to him

when she said she had back pain. But, again, the evidence

was more than sufficient for a rational jury to conclude

that Bek prescribed drugs to Jennifer P. without a legiti-

mate medical purpose. Jennifer P. testified that al-

though she was visibly pregnant, Bek prescribed drugs,

such as Xanax and Valium, that can be unsafe when taken

during pregnancy without warning her of their dangers. A

government expert also testified that particular drugs

could be unsafe for a woman who had recently given birth,

but Bek prescribed those drugs to Jennifer P. even after

she gave birth. Based on this evidence, the jury could

rationally conclude that Bek was acting outside the

normal course of professional conduct in his dealings with

Jennifer P.

d. A Rational Jury Would Have Rejected Bek’s En-

trapment Defense

Bek also argues that the evidence did not sufficiently

overcome his defense that he was entrapped by the

undercover officers when they reported false symptoms.

We will not overturn the jury’s implicit finding that Bek

was not entrapped unless no reasonable juror could have

found beyond a reasonable doubt that Bek was not en-

trapped. United States v. Jcnes, 950 F.2d 1309, 1315 (7th

Cir. 1991). To establish that he was entrapped, Bek must

prove: (1) that the government induced him to perform the

crime, and (2) that he was not predisposed to engage in the

criminal conduct. United States v. Haddad, 462 F.3d 783,

790 (7th Cir. 2006). If the government demonstrates that

the evidence was sufficient to show the defendant’s

12

predisposition to commit the crime, we can properly reject

an entrapment defense without analyzing whether the

defendant was induced. United States v. Blassingame, 197

F.3d 271, 281 (7th Cir. 1999); United States v. Johnson, 32

F.3d 304, 308 (7th Cir. 1994). The question of whether a

defendant was predisposed to commit a crime focuses on

whether the defendant was an “unwary innocent,” in

contrast to an “unwary criminal” who took advantage of an

opportunity to commit a crime. United States v. Al-Shahin,

474 F.3d 941, 948 (7th Cir. 2007). In assessing predisposi-

tion, we consider:

(1) the defendant's character or reputation;

(2) whether the government initially suggested the

criminal activity; (3) whether the defendant en-

gaged in the criminal activity for profit; (4) wheth-

er the defendant evidenced a reluctance to commit

the offense that was overcome by government

persuasion; and (5) the nature of the inducement

or persuasion by the government.

Id. (citing Blassingame, 197 F.3d at 281).

The evidence of Bek’s predisposition to distribute

unnecessary prescriptions was overwhelming; it need not

be repeated here. See supra Part II.A.1.a. In fact, it

was this predisposition that attracted the attention of

drug seekers and law enforcement. Because the facts

demonstrate that Bek was inclined to prescribe medically

unnecessary drugs before law enforcement visited his

clinic, the jury properly rejected Bek’s entrapment defense.

2. Bek’s Challenges to His Conviction for Conspiracy to

Distribute Controlled Substances Fail

Bek next challenges whether the evidence was sufficient

to support his conviction for conspiracy to distribute

controlled substances. To prove a conspiracy under 21

13

U.S.C. § 846, the government must prove “(1) two or more

people agreed to commit an unlawful act[;] and (2) the

defendant knowingly and intentionally joined in the

agreement.” United States v. Johnson, 437 F.3d 665, 675

7th Cir. 2006) (quoting United States v. Gardner, 238 F.3d

878, 879 (7th Cir. 2001)).

The government presented sufficient evidence of a

conspiracy between Bek and Faloona. As detailed above,

the evidence certainly established Bek’s intention to

distribute controlled substances outside the course of

professional practice. In addition, during his testimony,

Faloona explained in detail his role in the illegal operation,

which included keeping order among the patients and

screening patients based on the type of drug they sought.

And, as shown in a videotape, Faloona told patients what

to say to Bek to get him to write a prescription for the

drugs they wanted. He also suggested to the patients the

medications that they should request and helped them

answer questions at the time of examination. Moreover,

when Faloona agreed to plead guilty to conspiring

with Bek to violate the Controlled Substances Act, he

admitted that he believed that he was involved in a

conspiracy. Given this evidence, a rational jury could

certainly believe that Bek and Faloona conspired to

unlawfully distribute controlled substances.

3. Bek’s Challenge to His Conviction for Committing or

Aiding and Abetting Health Care Fraud Is Uncon-

vincing.

Bek also argues that the evidence was not sufficient to

support his conviction for committing or aiding and

abetting health care fraud. To commit health care fraud,

a defendant must

14

knowingly and willfully execute[ ], or attempt[ ] to

execute, a scheme or artifice . . . (1) to defraud any

health care benefit program; or (2) to obtain, by

means of false or fraudulent pretenses, representa-

tions, or promises, any of the money or property

owned by, or under the custody or control of, any

health care benefit program ...in connection with

the delivery of or payment for health care benefits,

items, or services ....

18 U.S.C. § 1347; United States v. Davis, 471 F.3d 783, 785

n.1 (7th Cir. 2006).

Bek claims that he could not have committed or aided

and abetted health care fraud because he did not know

that his patients were using health insurance to pay

for their prescriptions. We disagree. An employee from a

pharmacy benefit company testified that her employer

sent Bek a letter telling him that the company had paid

to fill some of the prescriptions he issued and that “there

is potential over-utilization for controlled substances.” Bek

did not contradict this testimony or argue that he did

not receive or read these letters. A rational jury could

conclude from this testimony that Bek was aware that he

prescribed unnecessary medication and that the health

care benefit programs would ultimately pay some (or all)

of the costs of those medically unnecessary drugs.

B. The District Court Did Not Abuse Its Discretion in

Admitting the Medical Records

Bek also contends that the district court erred by

admitting patient medical information and records be-

cause they were protected by both a doctor-patient privi-

lege and a privacy interest created under the Health

Insurance Portability and Accountability Act of 1996

(HIPAA), Pub. L. No. 104-191, 110 Stat. 1936. He main-

tains that the government was required to acquire patient

waivers before submitting any medical records.

“In reviewing the district court’s admission of allegedly

privileged evidence, we apply the deferential abuse of

discretion standard.” Patterson v. Caterpillar, Inc., 70 F.3d

503, 506 (7th Cir. 1995); see also United States v. Gray,

410 F.3d 338, 344 (7th Cir. 2005). Under an abuse of

discretion standard, “we will not find error unless the

court’s decision is based on an erroneous conclusion of

law or the record contains no evidence on which the

court rationally could have based its decision or the

supposed facts which the court found are clearly errone-

ous.” Young v. James Green Mgmt., Inc., 327 F.3d 616, 621

(7th Cir. 2003) (quoting Van Stan v. Fancy Colours & Co.,

125 F.3d 563, 570 (7th Cir. 1997)).

Bek cannot establish that the medical records were

subject to any privilege of confidentiality. Federal common

law has not historically recognized a privilege between

patients and physicians. Northwestern Mem’l Hosp. v.

Ashcroft, 362 F.3d 923, 926 (7th Cir. 2004) (“[T]he eviden-

tiary privileges that are applicable to federal-question

suits are given not by state law but by federal law, Fed. R.

Evid. 501, which does not recognize a physician-patient (or

hospital-patient) privilege.”); see also Whalen v. Roe, 429

U.S. 589, 602 n.28 (1977) (“The physician-patient eviden-

tiary privilege is unknown to the common law.”). Bek

acknowledges this shortcoming in his argument, but

contends that we should find such a privilege here. He

relies on Jaffee v. Redmond, 518 U.S. 1 (1996), in which

the Supreme Court recognized a privilege between a

psychotherapist and a patient and noted that under Rule

501 of the Federal Rules of Evidence, federal courts may

define new privileges. Jd. at 8, 10. But we can find no

circuit authority in support of a physician-patient privi-

lege, even after Jaffee. Indeed, in a decision issued after

16

Jaffee, we declined to recognize such a privilege, see

Northwestern Mem’ Hosp., 362 F.3d at 926, and we can

find no reason to create one now.

Additionally, in this context. HIPAA did not require

patient authorization of the medical record disclosures.

As we have previously indicated, HIPAA did not give

rise to a physician-patient or medical records privilege.

See Northwestern Mem’ Hosp., 362 F.3d at 926 (“We do

not think HIPAA is rightly understood as an Act of

Congress that creates a privilege.”). It did, however,

“create a procedure for obtaining authority to use medical

records in litigation.” Jd. In this case, none of HIPAA’s

requirements regarding disclosures of patient informa-

tion was transgressed.

Although in many instances HIPAA requires that

“covered entities” obtain patient authorization before

disclosing protected health information, see 45 C.F.R.

§ 164.508(a), exceptions apply. Specifically, under cer-

tain conditions, “covered entities,” which include “health

care provider|[s] who transmit[ ] any health information

in electronic form,” id. § 160.103, may disclose protected

information without patient authorization “for a law

enforcement purpose to a law enforcement official .. . .” Jd.

§ 164.512(f). These conditions include instances when

the information is subject to a “court order or court-

ordered warrant, or a subpoena or summons issued by a

judicial officer.” /d. § 164.512(f)(1)(ii)(A). Here, Food and

Drug Administration agents obtained a warrant from a

magistrate judge before seizing any of Bek’s records. Once

the documents were seized, the agents were allowed under

HIPAA to disclose (without patient authorization) the

medical records in a judicial proceeding, provided that

the court entered a protective order that (1) prohibited

the parties from disclosing the records outside the con-

fines of the litigation, and (2) required that the records

be returned to the covered entity or destroyed at the end

of the litigation. See id. § 164.512(e)(1)(ii), (iv), (v). The

district court entered an order that satisfied these re-

quirements. Therefore, admission of the medical record

evidence did not violate a privilege of confidentiality or

HIPAA, or constitute an abuse of discretion.

C. Bek’s Vindictive Prosecution Argument Falls Short

Finally, Bek argues that the government vindictively

prosecuted his original attorney, Jerry Jarrett, in retalia-

tion for Jarrett’s successful representation of Bek (the

government dropped a murder charge it initially brought

against Bek). Bek claims the government’s prosecution of

Jarrett interfered with Bek’s defense and deprived Bek of

his constitutional right to choose his own counsel. Bek, in

part, relied on another district court’s finding that prosecu-

tors had charged Jarrett vindictively to force him to

withdraw from his representation of Bek. United States v.

Jarrett, No. 1:03CR87, 2005 WL 1224684 (N.D. Ind. May

23, 2005). But after Bek filed his brief in this case, we

ruled in the appeal of Jarrett’s case that the prosecutor’s

conduct was not motivated by vindictiveness. See United

States uv. Jarrett, 447 F.3d 520, 531 (7th Cir. 2006).

Moreover, even if Jarrett was subjected to vindictive

prosecution, Bek cannot show that Jarrett’s prosecution

actually prompted Jarrett to withdraw from the represen-

tation. Even after Jarrett was indicted, he continued

to represent Bek. According to Jarrett’s motion to with-

draw, he withdrew only because Bek “decided to terminate

counsel’s employment due to financial concerns.” We

therefore reject Bek’s vindictive prosecution argument.

Ill. CONCLUSION

For the reasons detailed above, we REVERSE Bek’s

conviction on count nine relating to Barbara W., but

AFFIRM his conviction on all other counts.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—7-6-07

19

APPENDIX

B

20

UNITED STATES DISTRICT COURT

NORTHERN UNITED District of INDIANA

STATES OF AMERICA JUDGMENT INA

CRIMINAL CASE

V.

DR. JONG HI BEK Case Number:

2:03cr00004 AS (01)

USM Number: 07341-027

CLARK HOLSINGER

Defendant’s Attorney

THE DEFENDANT:

Q pleaded guilty to count(s)

Q) pleaded nolo contendere to count(s)

which was accepted by the court.

M was found guilty on count(s) 1s, 2s, 3s-7s,8s,10s,11s,12s,

12s,14s-15s,16s,17s-18s,19s-23s,25s,26s,27s after a plea

of not guilty.

The defendant is adjudicated guilty of these offenses:

Title & Nature of Offense

Section Offense Ended Count

21:846 Conspiracy to distribute July 2002 Ils

controlled substance

21:841(a)(1) Distribution of controlled July 2002 2s

substance

21:841(a)(1) Distribution of controlled July 2002 3s-23s,

& 18:2 substance and Aiding and 25s,26s

abetting

18:1347 & 2 Health care fraud and July 2002 27s

Aiding and abetting

The defendant is sentenced as provided in pages 2 through

6 of this judgment. The sentence is imposed pursuant to the

Sentencing Reform Act of 1984.

. The defendant has been found not guilty on count(s)

J Count(s) U is U are dismissed on the motion of the

United States.

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It is ordered that the defendant must notify the

United States attorney for this district within 30 days of

any change of name, residence, or mailing address until all

fines, restitution, costs, and special assessments imposed

by this judgment are fully paid. If ordered to pay

restitution, the defendant must notify the court and United

States attorney of material changes in economic

circumstances.

October 14, 2005

Date of Imposition of Judgment

S/ ALLEN SHARP

Signature of Judge

ALLEN SHARP, JUDGE

Name and Title of Judge

October 14, 2005

Date

IMPRISONMENT

The defendant is hereby committed to the custody of the

United States Bureau of Prisons to be imprisoned for a

iotal term of: Forty-one (41) months on each of counts 1s-

23s and 25s-27s to run concurrent with credit for time

served as calculated by the BOP.

Q) The court makes the following recommendations to the

Bureau of Prisons:

Q) The defendant is remanded to the custody of the United

States Marshal.

X} The defendant shall surrender to the United States

Marshal for this district:

§ at 12:00 p.m. (noon) U a.m. 9 p.m. on November

14, 2005 .

Q) as notified by the United States Marshal.

Q) The defendant shall surrender for service of sentence at

the institution designated by the Bureau of Prisons:

Ci before 2 p.m. on.

Q) as notified by the United States Marshal.

Q) as notified by the Probation or Pretrial Services

Office.

RETURN

I have executed this judgment as follows:

Defendant delivered to

at , with a certified copy of this judgment.

UNITED STATES MARSHAL

By DEPUTY UNITED STATES MARSHAL

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SUPERVISED RELEASE

Upon release from imprisonment, the defendant

shall be on supervised release for a term of : Two (2) years

on each count, concurrent.

The defendant must report to the probation office in

the district to which the defendant is released within 72

hours of release from the

custody of the Bureau of Prisons.

The defendant shall not commit another federal,

state or local crime.

The defendant shall not unlawfully possess a

controlled substance. The defendant shall refrain from any

unlawful use of a controlled substance. The defendant shall

submit to one drug test within 15 days of release from

imprisonment and at least two periodic drug tests

thereafter, as determined by the court.

) The above drug testing condition is suspended, based on

the court’s determination that the defendant poses a

low risk of future substance abuse. (Check, if

applicable.)

Q The defendant shall not possess a firearm, ammunition,

destructive device, or any other dangerous weapon.

(Check, if applicable.)

4) The defendant shall cooperate in the collection of DNA

as directed by the probation officer. (Check, if

applicable.)

4 The defendant shall register with the state sex offender

registration agency in the state where the defendant

resides, works, or is a student, as directed by the

probation officer. (Check, if applicable.)

Q The defendant shall participate in an approved program

for domestic violence. (Check, if applicable.)

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If this judgment imposes a fine or restitution, it is a

condition of supervised release that the defendant pay

in accordance with the

Schedule of Payments sheet of this judgment.

The defendant must comply with the standard

conditions that have been adopted by this court as well

as with any additional conditions on the attached page.

STANDARD CONDITIONS OF SUPERVISION

. The defendant shall not leave the judicial district or

other specified geographic area without the permission

of the court or probation officer.

The defendant shall report to the probation officer as

directed by the court or probation officer and shall

submit a truthful and complete written report within

the first five (5) days of each month.

The defendant shall answer truthfully all inquiries by

the probation officer and follow the instructions of the

probation officer.

The defendant shall support the defendant’s dependents

and meet other family responsibilities.

The defendant shall work regularly at a lawful

occupation unless excused by the probation officer for

schooling, training, or other acceptable reasons.

The defendant shall notify the probation officer at least

ten (10) days prior to any change of residence or

employment.

The defendant shall refrain from excessive use of alcohol

and shall not purchase, possess, use, distribute, or

administer any controlled substance, or any

paraphernalia related to any controlled substances,

except as prescribed by a physician.

The defendant shall not frequent places where

controlled substances are illegally sold, used distributed,

or administered, or other places specified by the court.

The defendant shall not associate with any persons

engaged in criminal activity, and shall not associate

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with any person convicted of a felony, unless granted

permission to do so by the probation officer.

10. The defendant shall permit a probation officer to visit

the defendant at any time at home or elsewhere and

shall permit confiscation of any contraband observed in

plain view by the probation officer.

11.The defendant shall notify the probation officer within

seventy-two (72) hours of being arrested or questioned

by a law enforcement officer.

12.The defendant shall not enter into any agreement to act

as an informer or a special agent of a law enforcement

agency without the permission of the court.

13. As directed by the probation officer, the defendant shall

notify third parties of risks that may be occasioned by

the defendant’s criminal record or personal history or

characteristics, and shall permit the probation officer to

make such notifications and to confirm the defendant’s

compliance with such notification requirement.

14. The defendant shall pay the special assessment imposed

or adhere to a court-ordered installment schedule for the

payment of the special assessment.

15. The defendant shall notify the probation officer of any

material change in the defendant’s economic

circumstances that might affect the defendant’s ability

to pay any unpaid amount of restitution, fines, or

special assessments.

ADDITIONAL SUPERVISED RELEASE TERMS

The defendant shall pay to the Unites States a Special

Assessment of $2,600.00 which shall be due immediately.

The defendant shall pay restitution to the U.S. District

Court Clerk in Hammond, Indiana the sum of $158.82.

The defendant shall notify the United States Attorney’s

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Office for this district within 30 days of any change of

mailing or residence address that occurs while any portion

of the restitution remains unpaid.

The defendant shall provide the probation officer with

access to any requested financial information.

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary

penalties under the schedule of payments on Sheet 6.

Assessment Fine Restitution

TOTALS — $ 2,600.00 ~ $158.82

) The determination of restitution is deferred until

An Amended Judgment in a Criminal Case (AO 245C)

will be entered after such determination.

) The defendant shall make restitution and special

assessment payments (including community restitution)

payable to Clerk, U.S. District Court, 5400 Federal

Plaza, Suite 2300, Hammond, Indiana 46320 for the

following payees in the amount listed below.

If the defendant makes a partial payment, each payee

shall receive an approximately proportioned payment,

unless specified otherwise in the priority order or

percentage payment column below. However, pursuant

lv 18 U.S.C. § 3664(i), all nonfederal victims must be

paid before the United States is paid.

Name of Payee Total Loss*

Value RX

Restitution Ordered Priority or Percentage

$158.82

TOTALS $ 158.82

_ Restitution amount ordered pursuant to plea agreement

$

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Q The defendant must pay interest on restitution and a

fine of more than $2,500, unless the restitution or fine is

paid in full before the

fifteenth day after the date of the judgment, pursuant to

18 U.S.C. § 3612(f). All of the payment options on Sheet 6

may be subjectto penalties for delinquency and default,

pursuant to 18 U.S.C. § 3612(g).

. The court determined that the defendant does not have

the ability to pay interest and it is ordered that:

QO The interest requirement is waived for the G fine G

restitution.

QO) The interest requirement for the G fine G restitution is

modified as follows:

* Findings for the total amount of losses are required under

Chapters 109A, 110, 110A, and 113A of Title 18 for offenses

committed on or after September 13, 1994, but before April

23, 1996.

ACKNOWLEDGMENT OF SUPERVISION

CONDITIONS

Upon a finding of a violation of probation or supervised

release, I understand that the court may (1) revoke

supervision, (2) extend the term of supervision, and/or (3)

modify the conditions of supervision.

I have reviewed the Judgment and Commitment Order in

my case and the supervision conditions therein. These

conditions have been read to me. I fully understand the

conditions and have been provided a copy of them.

(Signed)

Defendant Date

U.S. Probation Officer/Designated Witness Date

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

UNITED STATES OF AMERICA

)

)

V. ) Cause No.

) 2:03CR0004-AS

)

DR. JONG HI BEK (01)

FINAL ORDER OF FORFEITURE

This matter having coming before the Court upon motion

by the United States of America for the entry of a

Preliminary Order of Forfeiture, and the Court being duly

advised GRANTS said motion.

IT IS HEREBY ORDERED THAT:

1. As a result of the guilty verdict against defendant

Jong Hi Bek on Counts 1-23, and 25-27 of the Second

Superseding Indictment, for which the government sought

forfeiture pursuant to 21 U.S.C. § 853 and 18 U.S.C. § 982,

and the Court having determined that the government has

established the requisite nexus between all funds on

deposit in account number 15636327726 at Bank One,

Indiana and the offenses committed by the defendant, to

wit, 21 U.S.C. § 846 and § 841, the defendant Jong Hi Bek

shall forfeit to the United States the

following property:

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all funds on deposit in account number 15636327726 at

Bank One, Indiana

2. Upon entry of this Order, the United States

Attorney General or his designee, is authorized to seize the

above described property, and to conduct any discovery

proper in identifying, locating or disposing of the property,

in accordance with Fed.R.Crim.P. 32.2(b)(3).

3. The United States shall publish notice of this

Order and its intent to dispose of the property in such a

manner as the Attorney General may direct. The United

States may also to the extent practicable provide written

notice to any person known to have an alleged interest in

the property.

4. Any person, other than the named defendants,

asserting a legal interest in the subject property may,

within 30 days of the final publication of notice or receipt of

notice, whichever is earlier, petition the court for a hearing

without a jury to adjudicate the validity of his alleged

interest in the subject property, and for an amendment of

the order of forfeiture, pursuant to 21 U.S.C.§ 853(n).

5. Any petition filed by a third party asserting an

interest in the subject property shall be signed by the

petitioner under penalty of perjury and shall set forth the

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nature and extent of the petitioner’s right, title, or interest

in subject property; the time and circumstances of the

petitioner’s acquisition of the right, title, or interest in

subject property; and any additional facts supporting the

petitioner's claim and relief sought.

6. Pursuant to Fed. R. Crim. P.32.2(b)(3), this

Preliminary Order of Forfeiture shall become final as to the

defendant at the time of sentencing and shall be made a

part of the sentence and included in the judgment. If no

third party files a timely claim, this Order shall become the

Final Order of Forfeiture, as provided in Fed. R. Crim.

P.32.2(c)(2).

7. After the disposition of any motion filed under

Fed. R. Crim. P.32.2(c)(1)(A) and before a hearing on the

petition, discovery may be conducted in accordance with the

Federal Rules of Civil Procedure upon a showing that such

discovery is necessary or desirable to resolve factual issues.

8. The United States shall have clear title to the

subject property following the Court’s disposition of all

third-party interest, or, if none, following the expiration of

the period provided in 21 U.S.C. § 853 (n)(2) for the filing of

third party petitions.

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9. The Court shall retain jurisdiction to enforce this

Order, and to amend it as necessary, pursuant to Fed. R.

Crim. P.32.2.(e).

10. The issue of forfeiture of the remaining bank

accounts for which the government sought forfeiture in this

cause, to wit: all funds on deposit in account number

1110010428312 at Bank One, Chicago; all funds on deposit

in account number 422316164 at US Bank f/n/a

FirstStar Bank; all funds on deposit in account number

0196994842 at US Bank f/n/a FirstStar Bank; all funds on

deposit in account number 74229 at Harris Bank; all funds

on deposit in account number 0008100973 at Bank

Calumet; all funds on deposit in account number

8930056316 at Fifth Third Bank, shall be resolved in the

pending civil forfeiture action, United States of America v.

Account 1563632726 et al., Case No. 2:02cv480, Northern

District of Indiana, Hammond Division.

SO ORDERED:

Dated: October 14, 2005 S/ ALLEN SHARP

ALLEN SHARP,

JUDGE

UNITED STATES

DISTRICT COURT

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