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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2007

## Text

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

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APPENDIX

B

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1546%3A2. Public record. Not legal advice.