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Thursday, Nov. 8, 2012 09:53 am

Case dismissed

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Dr. Gautum Gupta
Charges against a physician accused of fraud and conspiracy have been dismissed after federal prosecutors admitted that an FBI agent violated the accused’s constitutional rights by gaining unfettered access to his email account, including communications between the doctor and his defense attorneys.

Dr. Rakesh Wahi, who specialized in obesity treatment, had been accused of bilking the state of Illinois as well as Blue Cross out of millions of dollars by performing unnecessary tests while allowing unqualified assistants to hand out drugs. Futhermore, prosecutors said, patients had received drugs before any test results were reviewed by either Wahi or Dr. Gautum Gupta, who is charged with conspiring with Wahi to defraud Blue Cross and the government.

Gupta, who fled the country more than a year ago after federal agents served a search warrant at his Chicago-area office, remains charged with conspiracy and fraud. But U.S. District Court Judge Sue Myerscough last month dismissed all charges against Wahi at the request of prosecutors, who acted after Wahi’s lawyer filed a motion stating that the prosecution “knowingly and intentionally” obtained privileged communications through a search warrant that gave the government full access to the doctor’s email account, including emails sent as long ago as 2002 and as recently as September of this year. The emails included discussion of legal strategy, wrote George Jackson III, Wahi’s lawyer, in a motion for dismissal.

“Dr. Wahi could never, under any circumstances, have a fair trial on these charges,” Jackson wrote in his motion. “The government’s case can now be refined with the aid of Dr. Wahi’s and his counsel’s constructive criticism.”

Prosecutors in a response filed Oct. 9 told the court that no one from the government had looked at privileged emails and that the FBI had filtered the electronic material to ensure that nothing could be inappropriately accessed. During an Oct. 9 hearing in Springfield, assistant U.S. attorney Patrick Hansen assured Myerscough that no one from the government had violated attorney-client privilege.

“I can represent as an officer of the court, I have never accessed those disks (with privileged emails), and no person within the government team has accessed any privileged material,” Hansen said.

But that wasn’t true, as prosecutors told the court two days later in an Oct. 11 motion asking that the charges be dismissed.

In fact, prosecutors said, FBI special agent Kory Bakken, who told the judge at the Oct. 9 hearing that privileged documents had been erased from his computer, had downloaded all of Wahi’s emails and looked at files that fell outside the scope of the search warrant, which was limited to emails sent during a seven-year period ending Jan. 20, 2010, when the FBI served a search warrant at a clinic where Wahi worked.

“The representation by the government to the contrary was not true,” prosecutors wrote in their dismissal motion. “It is now apparent that a government agent may have accessed privileged communication between the defendant and at least one of his attorneys. … While the agent may not have explicitly or intentionally conveyed privileged information to the attorneys or other members of the prosecution team, his active participation in the trial preparation precludes any possibility that the United States can show the information did not taint the prosecution.”

Finding that attorney-client privilege had been violated, Myerscough on Oct. 12 granted the motion to dismiss. And so a case in which Wahi and Gupta were accused of collecting nearly $25 million that they didn’t deserve crumbled less than two weeks before trial was set to start and after more than two years of investigation.

Gupta remains at large and was last thought to be in India.

Contact Bruce Rushton at brushton@illinoistimes.com.
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