U.S. v. Bek

• Decision Date: 06 July 2007
• Docket Number: No. 05-4198.,05-4198.
• Citation: 493 F.3d 790
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jong Hi BEK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

493 F.3d 790

UNITED STATES of America, Plaintiff-Appellee, v. Jong Hi BEK, Defendant-Appellant.

No. 05-4198.

United States Court of Appeals, Seventh Circuit.

Argued October 30, 2006.

Decided July 6, 2007.

Diane L. Berkowitz (argued), Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.

Clark W. Holesinger (argued), Valparaiso, IN, for Defendant-Appellant.

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 privilege and protected by the Health Insurance Portability 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 argument.

I. BACKGROUND

Gary Police Department undercover officers, carrying hidden cameras, entered Bek's offices posing as prospective 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), distributing 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 entanglements, 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.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 unidentified 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, Darvocet N, Halcion, and Dalmane.² Often, his prescriptions 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 prescription 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 attracted 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 that Bek administered brief, identical examinations, never involving diagnostic testing, in the presence of other patients of both sexes. Additionally, Bek would not recommend 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 prescribing 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 treatment 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, concluded 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, representatives 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 Pharmacy 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 prefill bottles with the medications that Bek's patients routinely requested. 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...