The case of a married couple of Johns Hopkins and U.S. Army doctors charged with a rare felony violation of the Health Insurance Portability and Accountability Act was dismissed with prejudice by a federal judge in Baltimore on Wednesday.
U.S. District Court Judge Stephanie Gallagher granted a motion to dismiss the case under the Speedy Trial Act, stating in a 42-page opinion that following a mistrial in May 2023 the government “bungled” procedures ahead of an attempted retrial.
“The Government displayed a serious pattern of neglect of its speedy trial obligations during the six months between November, 2023 and May, 2024,” Gallagher wrote. “In this case dismissal without prejudice would be a toothless sanction to the Government:”
Dismissal with prejudice means the plaintiff is barred from bringing that claim back to court.
Dr. Anna Gabrielian, a former Johns Hopkins anesthesiologist, and her spouse, Dr. Jamie Lee Henry, a physician and U.S. Army major, were charged with violating HIPAA as part of a conspiracy to assist Russia after it invaded Ukraine by disclosing the health information of several patients. When they were first charged and arrested in September 2022 and released on home detention, records at the Maryland Board of Physicians showed Gabrielian’s and Henry’s primary practices were at Johns Hopkins Hospital.
The indictment says the pair sought to pass federally protected medical information to an undercover FBI agent who Gabrielian believed worked at the Russian Embassy. The information was offered, the indictment says, to demonstrate their access to health information of Americans. The indictment says Gabrielian and Henry met with the agent in a Gaithersburg hotel and provided health records for two people, including the spouse of an employee of the Office of Naval Intelligence, who Gabrielian thought had a medical condition Russia could exploit. Henry, the indictment said, provided health records for five other people who were military veterans or relatives.
The main evidence in the case was six hours of videotaped meetings between Gabrielian, Henry and the undercover FBI agent posing as a Russian government operative.
In a May 2023 trial, defense attorneys argued the government lacked proof that either Gabrielian or Henry provided the medical records for personal gain or with malicious intent.. Defense attorneys also argued that the FBI agent coerced the couple into providing any protected information in order to be able to charge them with crimes and that Gabrielian and Henry were subjected to entrapment. Gabrielian testified that she was afraid of retribution against her family — relatives who live in America, Russia and Ukraine — if she didn’t comply with the demands of the Russian agent. The undercover agent testified at the trial in a disguise.
Reached by phone Wednesday evening, Gabrielian’s attorney Christopher Mead declined to comment. Henry’s attorney, David Walsh-Little did not respond to a call for comment Wednesday evening. The U.S. Attorney’s Office declined to comment Wednesday evening.
Following the May 2023 trial, one of 12 jurors believed the government tricked the doctors into passing private medical records, and that they shouldn’t be found guilty as a result, prompting Gallagher to declare a mistrial.
Prosecutors attempted to schedule a retrial for charges of felony HIPAA violations, a conspiracy to commit felony HIPAA offenses, and two charges of identity theft against Gabrielian.
In November 2023 during discovery ahead of a potential retrial, defendants attempted to gain security clearances to obtain evidence under the Classified Information Procedures Act, a procedural statute for attempting to use classified information as evidence, according to court records.
In February, the government responded that “moving further in the security clearance process was not required in this circumstance.” Instead of security clearances, prosecutors attempted to offer the “unclassified testimony of an expert.”
On March 15, federal prosecutors filed a motion that said they planned to call Brown University international relations and political science professor Rose McDermott to testify as an expert, according to court records.
“Professor McDermott does not have a security clearance and we believe has never possessed a clearance. We anticipate she will testify about how private health information of individuals has been previously sought by our own and/or other foreign governments, and how private health information has been or could be used by our own or foreign governments,” prosecutors wrote.
Gallagher did not see the attempt as one of good faith.
“It appears that the Government was identifying and consulting, but not retaining, an expert witness in the hopes of convincing the court it had an adequate substitute for the classified information sought by the defense,” Gallagher wrote in her opinion. “That portion of the months-long delay, at least, was squarely for the purpose of obtaining a tactical advantage.”
On May 3, the government for the first time informed the court “the Department of Justice determined that there was no classified information to which the defendant was entitled.”
At a May 6 hearing both defendants filed a motion for dismissal under the Speedy Trial Act. Then the government “quickly agreed that the security clearance process could commence.”
Gallagher said that action was too late.
“In sum, the Government Badly misconstrued its [Classified Information Procedures Act] obligations. It conflated its undisputed ability to determine what classified information it was ultimately willing to produce in discovery with an ability to determine what discovery the defendants are legally entitled to receive,” Gallagher wrote in her opinion. “The threshold question, ‘was the Speedy Trial Act violated?’ has a clear and unequivocal answer: ‘Yes.’ This is not a question about which this Court enjoys any discretion.”
When weighing what the government hoped might be a possible retrial as far away as next May, Gallagher highlighted in her opinion personal difficulties that the case caused Gabrielian and Henry.
“Despite some of the rhetoric used during this prosecution, the Government has not charged these Defendants with any espionage, treason, or other national security offenses,” Gallagher wrote.
Under conditions of release, Gabrielian and Henry could only interview and accept jobs approved by pretrial service.
“They are desperate to find work to provide for themselves and their two young children,” Gallagher wrote. “Defendants, a married couple who have been effectively accused of a failed attempt at espionage in extensive press coverage though not formally in the indicted charges, have been unable to find work to support their family for a time already exceeding eighteen months.”
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