Stevens Six Lawyering Up -- Big Time

UPDATE: (4/24 @ 12:42 p.m.) A lawyer involved in the case has informed us that Steptoe & Johnson's Brian Heberlig, not Reid Weingarten, is representing Edward Sullivan. I regret the error.

UPDATE:(4/23 @ 11:04 a.m.) DOJ spokeswoman Laura Sweeney tells us that the department will fund the defense of all six prosecutors -- up to $200/hr not to exceed 120 billable hours (or $24,000) per month. Also, The BLT has heard from several lawyers that Steptoe & Johnson's Reid Weingarten is representing prosecutor Ed Sullivan. Weingarten adds plenty of ballast to the team. He's represented scores of public officials (e.g. he's currently defending former Rick Renzi (R-Ariz.) against corruption charges) and he's a close personal friend of the attorney general.

UPDATE: (6:46 p.m.): A lingering question for the The BLT and others is whether the Justice Department will pay for the prosecutors' legal defense. We've been waiting on an answer from DOJ, but in the meantime, Patton Boggs' Robert Luskin has given us something to nibble on. His client, Nicholas Marsh, has asked the department for assistance, Luskin says. The DOJ's retention agreement (pdf.) stipulates that lawyers with five or more years of experience may be reimbursed up to $200 an hour -- not to exceed 120 billable hours a month. For some perspective, that's less than a first-year associate at a major D.C. firm bills.

The aftermath of the now-dismissed case of former Alaska Sen. Ted Stevens -- a court-ordered criminal contempt investigation of the six lawyers who handled the prosecution -- is drawing some of Washington’s heaviest hitters into the fray.

Attorney General Eric Holder Jr. dropped the case against Stevens earlier this month, and U.S. District Judge Emmet Sullivan appointed Henry Schuelke III to investigate Public Integrity Section chief William Welch II; his principal deputy, Brenda Morris; Public Integrity Prosecutors Nicholas Marsh and Edward Sullivan; and Alaska-based assistant U.S. attorneys Joseph Bottini and James Goeke.

Patton Boggs partner Robert Luskin, who guided former Bush adviser Karl Rove through grand jury proceedings in the case involving outed CIA officer Valerie Plame, is representing Marsh, Luskin tells The BLT. Luskin is known for his work supervising the ABSCAM investigation -- which resulted in the convictions of six members of Congress on corruption charges. More recently, he represented Massey Energy’s Aracoma Coal Co. subsidiary, which admitted to criminal safety violations that caused the deaths of two Logan County coal miners in a January 2006 fire.

Bottini has selected O’Melveny & Myers partner Kenneth Wainstein, a former U.S. attorney in the District, who most recently served as President George W. Bush’s homeland security adviser. Wainstein was the first assistant attorney general of the Justice Department’s National Security Division, and he has close ties to Mary Patrice Brown, the new head of the department’s Office of Professional Responsibility, which is handling a parallel investigation into the prosecutors’ conduct.

According to several Washington lawyers following the case, Welch has paired up with Zuckerman Spaeder partner William Taylor III, who successfully defended the former president of the Salt Lake City Olympic Committee against federal bribery charges. He also led the late Sen. Alan Cranston (D-Calif.) through ethics proceedings stemming from the collapse of Lincoln Savings & Loan.

Morris, these lawyers say, has been in discussions with another former top prosecutor, Hogan & Hartson’s Chuck Rosenberg. Rosenberg, who resigned as U.S. attorney for the Eastern District of Virginia last year, also served as chief of staff to then-Deputy Attorney Jim Comey, counselor to then-Attorney General John Ashcroft, and counsel to FBI Director Robert Mueller III.

That leaves Sullivan and Goeke. (We've heard Goeke may be looking to New York for his counsel.)

Comments

[Moody]

Nice post

[Can Phung, MD]

If the parents are crooked, the children will be crooked.
If the managers are crooked,the employees will be crooked.
If the executives are crooked,the managers will be crooked.
If the king is crooked,the emperial council will will be crooked

[Can Phung, MD]

Can D. Phung
100 SE 27Th Street
Moore, OK 73160
[email protected]
[email protected]
Date : April 26, 2009

Ref: Calling for the conscience of Justice and Public attention, and requesting a thorough investigation for an Oklahoman Physician wrongly convicted

Dear Madams/Sirs:

Because my life, image and career have been disasterously damaged by the two lawsuits ( from Oklahoma Medical Board, and Federal Government ); I can no longer keep quiet . My worst scenario now is the death; and I am not afraid of it any more. Before this may happen to me; I desperately call for the conscience of justice and public attention; and for a thourough investigation of the mishandling and tainting maneuvours for 2 years. And here is my interesting and complicated case for your reviewing:


I, Can D. Phung, 61 years old, was born in Vietnam and graduated in 1972 from the Medical School of Saigon, Vietnam; then I worked for the goverment city(Bac Lieu) Hospital as a general surgon after one year internship of surgery. I escaped from Vietnam in 1977 by a small fishing boat and arrived in Malaysia where I stayed for one year in a refugee camp; and then I was interviewed by an American Delegation who accepted me to come to The USA in 1978 when I was 30.

After having passed all required Medical and English Examinations and Intership at Oshcner Foundation Hospital in New Orleans, Lousiana; I successfully obtained the Medical Licenses of Oklahoma, Colorado and Virginia in May 1985. In December 1985, I started a government job as an Attending Physician for Oklahoma Department of Veterans Affairs ( ODVA ), for about three years in Clinton and then for about 17 years in Norman Division. During these 20 years, I also worked part-time( moon-light ) for about 10 years, as an ER Physician at many hospitals throughout the State of Oklahoma ( Weatherford, Paul-Valley, Holderville, Shawnee, StillWater, etc...). During more than 20 years practicing in Oklahoma, I did not have any lawsuits . During 30 years living in USA, I did not have any felony records except for some traffic tickets. I also had tried to raise my four children to be the productive and good citizens; the two sons used to be the students of OU, and now are serving in US Navy stationed in California, the older son was recently deployed in Iraq; the two younger daughters are now the students of Standford University in California.

I retired from ODVA in Jan 2006. I started to do the private practice in June '06 at the Asian Business District in Oklahoma City, with the new specialty, Integrative Medicine ( the combination of two Medicines- East and West). I was eager to help and to serve, to repay what I owed to this generous and beautiful country that I love dearly. During the second half of year 2006 ( only my first 6 months in private practice), I might have some poor adaptation in practicing Medicine from a controlled environment ( hospital- based ) to an uncontrolled environment ( Private office-based ). I also had no helpers in the office. So I might have allowed some professional patients or drug-seekers to take advantage of my compassion and enthusiatism. Therefore, since Jan' 07, I began to re-organize my office, and to screen the patients more carefully, by scheduling and requiring the medical records; and hired more office staffs.

Unfortunately, during the first few months of year 2007, Oklahoma Medical Board secretely launched an investigation by observing the new PMP ( Prescription Monitoring Program ) which had made available for the practicing Physicians and Pharmacists, but I was then not aware of; During the first week of March' 07, without any prior warning, Oklahoma Medical Board ( OMB ) sent an undercover agent to my office as a patient, she used a fake driver's license ID and fake medical record from a clinic in Arkansas that showed she sustained a severe ankle sprain due to the fall from a stair in the past. She also made up a story that she had recently moved to Oklahoma city from Arkansas and she was in need of continuing medical care ; that she had been on different opoid painkillers and on Oxycontin( long-acting Oxycodone ) for a couple of years, and the last dose of Oxycontin she took was in the morning of the day she saw me. At first, she said her ankle did not hurt any more. But her story seemed to be confusing; because the pain appeared to be so severe that the doctors in Arkansas had been prescribing her different opoid painkiller for 2 years. I thought that Oxycontin she took in the morning may have numbed the pain. So I asked her one more time, then she said her ankle and shoulder hurt. She requested to continue to have Oxycontin at least 5 times, but I frankly declined it, and I stated many times that her chronic ankle pain was actually not justified for a long term treatment of any opoid analgesics and I encouraged her to take non-controlled pain-killers. But I was then in a dilemna, that, while she had been on Oxycontin for a long time, she would be suffering from the terrible withdrawal symptoms in a couple of days if she discontinued it abruptly; therefore I chose a short acting Oxycodone ( in Percocet ) and precribed Percocet in the tapering doses, twice a day, then once a day, then discontinued. At the same time, she was recommended and prescribed the non-controlled analgesic. By her request, I also agreed to prescribe Phentermin, a popular diet pill for weight reduction; she also said that she had gained a lot of weight after she quit smoking, her BMI ( body mass index ) was then in the overweight range. She offered me extra money for the second prescription.
I then smiled and politely declined it. I also did not forget to praise her achievement of smoking cessation ( Nicotine addiction ).

By the the first week of April '07, a delegation of Medical Board ( OMB ) came to my office right after the door opened and served a subpenea for more than 30 patient charts. They also searched my office thoroughly as well as interviewed me and two new staffs. Fortunately they did not find any piece of controlled drugs or any discrepancies in my office. By June '07, I was served a Complaint ( or Indictment ) in which I was heavily accused of "unprofessional, unethical, immoral, incompetent, fraudulent " prescribing excessive controlled dangerous sustances without medical need, to an undercover agent and some drug seekers. The charges were based on the anecdoctal, unrealistic, and non- scientific concepts for practicing Medicine in the Office setting. Actually I later found out many physicians in the OKC Metro- area had prescibed the same controlled drugs, to the same patients as I did, some even larger amounts and longer periods of time. Interestingly,none of them had been investigated or charged. By records, my case was not precedent.

By August '07, I sent a letter along with a petitient signed by several hundreds of my patients and their families to OMB and our Governor Brad Henry by requesting the re-consideration; because I believed that the investigations and charges of OMB were unfair, biased and partial.

By withholding the hard evidence of the audio-video tape as well as its official transcipt; the undercover agent ( Jane L. ) and Procecutor ( Elizabeth S. ) of Medical Board had completely fabricated and falsified what happened during the agent saw me as a patient, in the office ( perjury ). She testified in the OMB hearing that she told me her ankle no longer hurt, but I still prescribed her Percocet. I was then found guilty of all charges during a hearing at OMB in September '07; my medical license was suspended indefinitely and I was also sent to have an evaluation by CPEP ( center of personialized evaluation for physicians ) in Denver in December '07. In this evaluation, I was doing relatively all right in medical part, but I failed in a computerized cognition test; and I was recommended to retake another intensive neuro-psychological evaluation to find out if I had any underlying organic medical conditions.

I was re-applying the license in Mar '08 which was denied because I had not re-taken the neuro-psychological evaluation as recommended . I gave up and returned the office-building to land-lord on Mar 31, 2008.

I just thought that everything would be over with me. But my odyseys had not come to an end yet. A few days later, on April 03, 2008, a subpanea was served to my home in Moore, OK by Federal US Attorney office to obtain about 175 Medicaid patient charts with hundreds of claims. In May' 08, a criminal indictment was summoned by US District Court( Western District of Oklahoma ).This indictment contained more a dozen of mistakes from cover page to the last, about the dates, facts, and medical knowlege. I was charged criminally of 53 charges and counts:

Counts 1- 51 : I was accused of " knowingly and intentionally distributed and dispensed controlled substances outside the usual cource of medical practice and without legitimate medical purpose" to an undercover agent of OMB and other 7 individuals.

count 52 : I was accused of " knowingly and willfully executed and attempted to excute a scheme and artifice to defraud a health care benefis and services, specially Medicaids,........ did not obtain an appropriate medical history or provide an appropriate of the patients " to 7 patients with 19 claims, approximately three thousands dollars.

Count 53 : I was accused of " knowingly alter, destroy, falsify and make false entries in patient records ..... intent to impede, obstruct and influence the investigation".

I believe strongly that all the accusation was false, because :

_For the counts 1-51 : As a full licensed physician, I legally precribed medicines, controlled or un-controlled, to my patients based on the best of my knowledge and judgement, and at my discretion. The patients then brought their prescriptions to pharmacies where dispensed medicines. I never distributed or dispensed any controlled drugs to anybody for any reasons.. So this allegation was completely false .

Pain is highly subjective in nature; and the best indicator for pain is the self -reporting from patient, according to the medical textbooks and the guidelines of pain management published by AMA ( American Medical Association ) and Federation of Medical State Boards. Also, there is no objective test to prove or detect the intensity of pain. Furthermore, the scanning test could be deceptive and may mislead patients to have many unnecessary surgeries, costly and damaging. In fact, AMA and Institute of Drug Abuse have recently issued a joint recommendation: Scan or any radiologic tests are not recommended for non-specific chronic back pain and should be reserved for the severe or increasing neurological deficits.

And interestingly, all counts 1 -51 of Federal Charge were entirely relied on the interviews, documents, reports, more than one year previously by Medical Board. Many of the reports were outrageously inappropriate; For examples, some described me as " a drug dealer ". Some reported that there were 40-60 people in the waiting room, while its actual maximum capacity was about 10-12 people. Many forged prescriptions were missing; Approximately 10 remaining forged prescriptions in the discovey were all reported as " Orginal Rx written by Dr. Phung". Malaciously, the distinct professional terms of "prescribe " and "dispense/distribute " were used inappropriately and interchangeably. But the Federal Prosecutors took these reports for granted.

-For Count 52 : I did do coding and sending claims electronically by myself. The Government subpenaed approximately 175 Medicaid patient charts with hundreds of claims; after scrutizing and comparing the electronic claims of diagnostic codes with the written diagnoses and assessment/ plan of treatments documented in patient charts, and there were obviously no crepancies found. Because the health care fraud is essentially about the factitious claims or kick-back scheme, but not about the lack of the full examinations and detailed history that I failed to write down in some patient charts as charged. Moreover, in the office or outpatient setting, the doctors usually do not have time to write down all details, but rather the essential informations. Also, I only claimed and obtained the money 35-40% less than the amounts allowed by Medicaids and other Insurances. Probably no fraudulant people in the world claimed a lot less than the allowed money amounts.

Only on K.W case, I actually did not see her, but I spent time with her husband, J.W, because she was a very busy home-maker with four little kids and an elderly grandmother and she was living in Norman, far from my office. As she testified in the trial, at least another physician did the same thing as I did for her. And it is common practice when a physician prescribes medicines through the responsible family member. And according to CPT( Current Procedural Terminology ) handbook, published by AMA, it is perfectly legal and acceptable to use CPT Code for claiming when physician spend time" face-to-face with patient and/or family"

-For count 53 : As a routine practice, I sometimes scribbled some informations or data ( Vital signs, a few important details...) on a daily note-book and intended to transfer them to patient charts when I had time, especially at night and on weekends. As an on-going process I did that sometime on some patient charts before the hearing at OMB in September 2007. And Federal Government subpenaed the patient charts in April '08 , right after I vacated and removed everything from office to my home in Mar '08. When OMB came to my office in April '07, I also told them that the patient charts were not finished yet, but they brought them to make copied anyway. I did not do anything on patient charts after I removed them to my home in Mar '08. And at any time, I did not actually alter, change anything adversely on the patient charts. During the trial, the Government even did not mention or show any evidence I destroyed document as charged in indictment.

I was convicted guilty of all 53 counts by the jury in the trial in Jan-Feb '09, and the sentence will be read expectedly in a few weeks by the federal Judge Vicki Mile-Lagrange.

I strongly believed that I was wrongly convicted due to many irregularities during the 2 year-long legal process:

1- Serious perury in the hearing ( trial ) at Oklahoma Medical Board in September 2007: Undercover agent ( Jana L. ) and Procecutor ( Elizabeth S. ) completely falsified and fabricated , under oath, what happened during this undercover agent saw me as a patient, in March 2007; while the hard evidence of the video-audio tape and its official transcript were withheld. This thing definitely had the domino effect and led to the federal charges.

2- Ten Physicians and their medical records were barred from getting in the courtroom to testify in the trial in Jan. 2009. These physicians among many others had prescribed the same controlled medications to the same patients as I did, some even with larger amounts and for longer periods of time. None of them had been investigated and charged. Majority of their medical record documents were not better than mine , and some even worse.

3- Dr. Zumwalt of Medical Board was invited to testify; and Procecutors showed and read the civil verdicts of Board in the trial; this made the Jury get confused it with the criminal verdicts. Dr. Zumwalt also made 2 consecutive serious false statements in the court and under oath ; therefore my attorney had to showed the evidence to correct him.

4- The criminal indictment served in May '08 was riddled with more than a dozen of errors, from the first to the last page, regarding the dates, facts, and the medical knowlege....

5- the skillfull maneuvers in showing the numerous highly complicated issues to the Jurors by the procecutors

My Attorneys are:
Stephen Jones. Phone: (580) 548-6684 in Enid
& Brooke Tebow . Phone : (405) 600-6317 in OKC
They and the Court are keeping all documents and evidence supporting what I have just presented to you.

In the desperate situation , I wish to express the great gratitude when you review and look into my case to help me prove the justice. I would like to have an thorough investigation regarding this unjust allegation and the wrong conviction ( as the recent case of former U.S Senator Ted Stevens and many others, the investigation was ordered by a Federal Judge and his case was dismissed by US Department of Justice); I believe and hope the justice will prevail ; and the well-being as well as the cvil rights of citizen will be protected and respected, and " The Truth, The Whole Truth, And Nothing But Truth, So Help Me God."

The Best Regards to You, your staffs and public service.


Sincerely Yours,


Can D. Phung.

[Paulette Bugay]

Let's not judge the prosecutors or agents until the evidence is in.

And speaking of evidence: for those feeling sorry for Sen. Stevens, read his sworn testimony, and that of his lawyer wife. Then ask yourself again why you don't trust government. Because of federal prosecutors?

[mac]

Nothing is going to happen to these prosecutors. They were simply doing what they were expected to do: attack a conservative. Guilt wasn't even a consideration for them in going after Stevens. He deserved punishment simply because of his party affiliation.

After seeing what Clinton got away with, and Scooter Libby got punished for, I can't imagine how anyone without the most restricted of liberal blinders could possibly NOT fear our current government.

It's going to get a lot worse before it gets better--if it ever does get better.

[rvail136]

These prosecutors behavior is just another instance why the vast majority of Americans, quite frankly despise lawyers. Most seem to have absolutely no morals at all.

[Richard Aubrey]

Bankrupting political enemies thru nonsense prosecutions ought to stop, and if prosecutors who do it find it turning to bite them, maybe it will.

[Moneyrunner]

The punishment in modern law is not in the verdict but in the the process.

[jeanneb]

Why should we pay their (enormous) legal bills?

Have they agreed to reimburse Stevens' legal bills? If the investigation finds wrongdoing, will they be required to reimburse us (taxpayers)?

Just another fine example of our "public servants" lining their pockets at our expense. Out here in the real world my company would never pay for my defense if I broke company rules, lied about it and tried to cover it up. Oh, and let me guess: they're all still drawing full salary as well. Sheesh. What does a guy have to do to get fired around here?!

[D. Cohen]

and people wonder why most of us don't trust our government, including and especially up and coming over-zealous prosecutors. It matters not what one's political affiliations might be. I obviously can't write what I really want to say because it will be moderated "out" - so let it suffice to say, that those who have been "ruined" ala "destroyed" at any level of the judicial process, even in Superior (trial) Courts know that they will never be able to recoup their losses and reputations in their lifetime. What the hell has happened to personal moral integrity just escapes me!