One of 12 jurors believed the government tricked two Maryland doctors into passing private medical records to an agent posing as a Russian official, and that they shouldn’t be found guilty as a result.
That juror’s stance led to a deadlock in the federal jury’s deliberations and prompted U.S. District Stephanie A. Gallagher to declare a mistrial Thursday, following five days of trial and two more of jury deliberations.
Dr. Anna Gabrielian, a former Johns Hopkins anesthesiologist, and her spouse, Dr. Jamie Lee Henry, a physician and U.S. Army major, are still charged with conspiring to assist Russia after it invaded Ukraine and disclosing the health information of several patients. The charges carry maximum penalties of decades in prison.
Prosecutors can retry the doctors if they wish, and a spokeswoman for the Maryland U.S. Attorney’s Office said in a statement Thursday that officials would “review the matter and make a determination as to next steps.”
Defense lawyers for Gabrielian and Henry declined to comment after court, as did the doctors, who left the federal courthouse in downtown Baltimore hand-in-hand after the mistrial.
At trial, prosecutors said the doctors violated their duty to protect their patients’ information as well as their respective oaths to America, all to aid Russia, which violently attacked its neighbor.
“These two defendants want to be ‘long-term weapons’ for Russia,” said prosecutor Aaron Zelinsky, deputy chief of the Maryland U.S. Attorney’s Office’s National Security and Cybercrime Section, in closing arguments.
Zelinsky was quoting language Gabrielian used in a meeting with an undercover FBI agent. The government presented hours of footage captured by that agent’s covert camera during several meetings with Gabrielian and Henry last August. During one of those meetings, the doctors provided medical information of eight of their patients to the agent.
Defense lawyers for the couple contend the doctors only wanted to help save lives during the nascent war and that the undercover agent coerced them to break the law. They also said the government had no evidence that their clients’ actions were motivated by causing “malicious harm” to America or for personal gain, the elements of intent required to find them guilty.
“This was not about helping Russia and hurting the United States. This was about offering humanitarian aid,” said Henry’s attorney, David Walsh-Little, in closing.
The FBI launched an investigation into Gabrielian after she emailed the Russian embassy five days after the war broke out, identifying her and Henry as doctors.
“We are ready to help if there is a need for that,” she wrote. “We are for life, and do not want to cut Russia off from the international community.”
The undercover agent approached Gabrielian outside a garage at the Johns Hopkins Hospital on Aug. 17, 2022, calling to her in Russian. They met four more times, at least twice with Henry present.
The undercover FBI agent testified in “light disguise” using her undercover name, Lena Simon. For the duration of the agent’s testimony, the courtroom was physically closed to everybody but attorneys in the case, court personnel and the jury. An audio feed of the agent’s testimony was broadcast into another courtroom for others to listen.
During their meetings, the agent spoke in Russian to Gabrielian, who was born in Russia, according to the footage from the agent’s camera played in court. Lawyers on the case agreed on a translation of the conversations, and the video featured English subtitles. The jury also got a binder with an English transcription of the meetings.
Near the end of her second meeting with the undercover agent, Gabrielian appeared to notice the agent’s camera.
Gabrielian testified that was around the time she started believing she was dealing with a Russian intelligence officer, rather than an embassy official. She said she feared for her and her family’s safety, noting that she has relatives who live in Russia and Ukraine, and only complied with the undercover agent’s requests for medical records out of fear of retribution.
Christopher Mead, Gabrielian’s attorney, said the lack of evidence that the doctors intended to provide records before the agent began probing for them made entrapment a “slam dunk,” and that the jury should acquit them as a result.
If the government proves it did not induce the defendants to commit the crime or that they would have committed crimes regardless of whether a government agent approached, then there is no entrapment, according to federal jury instructions. It also is not entrapment if government agents “merely provide an opportunity” for someone to commit a crime.
The jury spent much of two days deliberating about entrapment, sending several questions to the court about the concept.
“Does it need to be proven that the defendants would’ve committed the crimes for certain if the agent had not approached?” a note from the jury Wednesday afternoon read.
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The FBI’s probe, testified the agent who led the investigation, Matthew Walker, evolved when investigators realized Gabrielian was married to Henry. The agency was concerned Russian officials might take advantage of the doctors’ offer of help and convince Henry to abuse his “secret” security clearance with the Army to provide classified documents.
It’s unclear from trial testimony whether Henry, who was trying to leave the military, still had a security clearance at the time of the crimes charged.
During her testimony, Gabrielian said she knew it was illegal to disclose patient records.
The records Henry and Gabrielian showed the undercover agent were considered individually identifiable health information, and violated the Health Insurance Portability and Accountability Act. Prosecutors charged them with felonies for each record, arguing they disclosed them for personal gain or malicious harm to America.
The jury never got as far as their intent during deliberations, and several members of the panel declined to comment.
Juror Denise Fortson, however, apologized for the panel being unable to reach a consensus.
“I believe the government proved its case,” Fortson said.
Originally Published: May 31, 2023 at 6:00 am