United States v. Bek, Jong Hi ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4198
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
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 No. 05-4198
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
No. 05-4198 3
district court denied the motion, ruling it was premature
because the case against Jarrett had not been resolved.1
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 III
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,
1
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 23, 2005), rev’d, 447
F.3d 520 (7th Cir. 2006).
4 No. 05-4198
Darvocet N, Halcion, and Dalmane.2 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), 1308.14
(listing of Schedule IV drugs).
No. 05-4198 5
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
6 No. 05-4198
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.
No. 05-4198 7
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.
II. ANALYSIS
A. The Evidence Was Sufficient to Sustain Bek’s Con-
victions on All 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
8 No. 05-4198
only when there is no evidence, no matter how it is
weighed, from which a rational jury could find guilt beyond
a reasonable doubt.” Id. 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.
52(b); United States 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, meaning
it must have affected the outcome of the district court
proceedings.” Id. 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
No. 05-4198 9
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. McIver, 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 “[i]n 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, see Laxton 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 No. 05-4198
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.
No. 05-4198 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. Jones, 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 No. 05-4198
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
No. 05-4198 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 No. 05-4198
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-
No. 05-4198 15
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. Id. 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 No. 05-4198
Jaffee, we declined to recognize such a privilege, see
Northwestern Mem’l 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’l 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.” Id. 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 . . . .” Id.
§ 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.” Id. § 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
No. 05-4198 17
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 v. 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.
18 No. 05-4198
III. 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