United States of America, Plaintiff, v. Antoine Johnson and Lawanda Johnson, Defendants No. CR09-5703RBL United States District Court, W.D. Washington, at Seattle Signed June 21, 2011 Counsel Susan G. Loitz, Brian D. Werner, US Attorney's Office, Seattle, WA, Matthew H. Thomas, US Attorney's Office, Tacoma, WA, for Plaintiff. Jason B. Saunders, Law Offices of Gordon & Saunders, Seattle, WA, for Defendants. Lasnik, Robert S., United States District Judge ORDER REGARDING VARIOUS MOTIONS *1 This matter comes before the Court on multiple motions by defendants Dr. Antoine Johnson and Lawanda Johnson. Defendants have filed discovery motions (dkt. ##103, 215, 251, 255), motions to dismiss (dkt. ## 107, 112, 238, 253, 254, 305, 307, 315, 323, 324, 342), motions to suppress (dkt. ## 108, 113, 234, 253), and a motion to revoke all orders regarding seizure of evidence (dkt. #232).[1] I. FACTUAL BACKGROUND Dr. Johnson operated his medical practice at four clinics in Washington, and, according to the Superceding Indictment, his mother, defendant Lawanda Johnson, was responsible for managing the clinics, including overseeing the submission of claims for services to health care benefit programs and filing tax returns. Dkt. #80 (Superceding Indictment) ¶¶ 2, 6. The Superceding Indictment alleges that Dr. Johnson was a contracted medical provider with Medicaid, Medicare, Washington State Department of Labor and Industries (“L&I”), and other health care benefit programs. Id. ¶ 3. Dr. Johnson also was registered with the Drug Enforcement Agency (“DEA”), which authorized him to prescribe and dispense controlled substances. Id. ¶ 4. A criminal investigation into Dr. Johnson's medical practice began as a result of an audit of Medicaid claims performed by the Washington Department of Social and Health Services (“DSHS”), which found that Dr. Johnson submitted claims at a higher level of service than performed. Dkt. #107-2 (Portillo Affidavit) ¶ 4. During the course of the investigation, two undercover agents visited various clinics and used video and/or audio surveillance to record their visits. Id. ¶ 92. Defendants are charged with 35 counts of health care fraud, 18 U.S.C. § 1347 (dkt. #80 [Superceding Indictment] ¶¶ 1-32), 10 counts relating to filing a false income tax return (id. ¶¶ 33-67), and 13 counts of illegal distribution of controlled substances (id. ¶¶ 68-97). II. DISCOVERY MOTIONS Defendants seek production of various categories of documents and they renew their request for production of documents requested in their prior demand for production (dkt. #103). Dkt. #255. In their reply, defendants narrow their discovery requests to seek production of only Request 40: “A paper printout, in extended chart format, of all records stored in the computer electronic records for the dates of service listed in Counts 1 through 35 and Counts 46 through 58 of the Superseding Indictment.” Dkt. #280 (Reply) at 2; dkt. #103 at 8 ¶ 40. Defendants argue that the government has not produced the responsive electronic records in a format in which the defendants and counsel are able to view and print the documents. The Court GRANTS defendants' request for production as to Request No. 40. Dkt. #103, #255. The government is ordered to produce to defendants, if they have not already done so, a copy of the electronic data stored on the computers either seized or imaged by the government for the dates of service listed in Counts 1 through 35 and Counts 46 through 58 of the Superseding Indictment. This information shall be produced in a manner in which defendants and counsel can access and shall consist of defendants' Quickbooks, Lytec, and SOAPware records. If the defendants are unable to access the information by electronic means, the government shall provide defendants with paper copies.[2] Defendants' requests for production are DENIED in all other respects. Dkt. #103, #255. Dr. Johnson's motion to compel access to computer discovery (dkt. #215) and supplemental motion for discovery (dkt. #251) are DENIED as MOOT in light of the Court's ruling on defendants' discovery requests (dkt. #103, 255). III. MOTIONS TO DISMISS A. Discovery-Related Motions *2 Defendants moved to dismiss the indictment based on the alleged failure to provide discovery. Dkt. #112, 238, 253 (joinder), 305, 307. The Court has already ordered the government to provide defendants access to the electronic documents requested. Additionally, it appears that the difficulties in viewing the electronic documents are being resolved. See dkt. #245-2 (Karstetter Decl.). Accordingly, these motions to dismiss are DENIED. B. Patient Records in Substance Abuse Treatment Programs Defendants also moved to dismiss the indictment pursuant to Fed. R. Crim. P. 12(b)(3)(c) and 18 U.S.C. § 3504. Dkt. #107. Defendants argue that the use of audio and video recording equipment by undercover agents was unlawful because the undercover agents enrolled in a drug abuse treatment program as a patient for the purpose of investigating a suspected violation of law. Dkt. #154 (Reply) at 5. According to defendants, because Dr. Johnson was a drug abuse treatment program, federal regulations required the agents to obtain a court order prior to audio and video recording defendants' patients. Dkt. #107 (Mot.) at 6; #154 (Reply) at 5. Defendants are mistaken on the facts and the law. The regulations governing the confidentiality of alcohol and drug abuse patient records are “intended to insure that an alcohol or drug abuse patient in a federally-assisted alcohol or drug abuse program is not made more vulnerable by reason of the availability of his or her patient record than an individual who has an alcohol or drug problem and who does not seek treatment.” 42 C.F.R. § 2.3(b)(2). For purposes of the regulations, “program” means: (a) An individual or entity (other than a general medical care facility) who holds itself out as providing, and provides, alcohol or drug abuse diagnosis, treatment or referral for treatment; (b) An identified unit within a general medical facility which holds itself out as providing, and provides, alcohol or drug abuse diagnosis, treatment or referral for treatment; or (c) Medical personnel or other staff in a general medical care facility whose primary function is the provision of alcohol or drug abuse diagnosis, treatment or referral for treatment and who are identified as such providers. 42 C.F.R. § 2.11. Defendants do not contest that subdivisions (b) and (c) are inapplicable. They argue that section 2.11(a) is applicable here because Dr. Johnson qualifies as a private practitioner. Dkt. #154 (Reply) at 4 (citing 42 C.F.R. § 2.12(e)(1)). Section 2.12(e)(1) provides coverage for any information about alcohol and drug abuse patients obtained by a program, including “private practitioners who hold themselves out as providing, and provide alcohol or drug abuse diagnosis, treatment, or referral for treatment.” 42 C.F.R. § 2.12(e)(1). Accordingly, defendants must demonstrate both that Dr. Johnson held himself out as a substance abuse treatment program and that he actually provided substance abuse treatment, diagnosis or referral for treatment. Defendants cite to only two pieces of evidence to support their conclusion that Dr. Johnson is a substance abuse treatment program: (1) he was listed as a physician certified to provide Buprenorphine treatment on the website for Substance Abuse & Mental Health Services Administration of the U.S. Department of Health and Human Resources (dkt. #130 [Hinckley Decl.] ¶ 16, Ex. B), and (2) a paragraph in Agent Raul Portillo's affidavit in support of the search warrant that was issued on January 9, 2009 (dkt. #107-4 ¶ 130).[3] Agent Portillo stated that he “learned from the DEA that Dr. Johnson has been qualified to provide buprenorphine treatment for opioid dependence for up to 100 patients” and that two forms of buprenorphine approved by the Food and Drug Administration are Suboxone and Subutex, which are Schedule III drugs. Dkt. #107-4 ¶ 130. At the time of the execution of the search warrant, 86 patients had been treated with buprenorphine products. Dkt. #130 (Hinckley Decl.) ¶ 15. Accordingly, the Court finds that Dr. Johnson actually provided substance abuse treatment. *3 While Dr. Johnson was listed as a physician certified to provide Buprenorphine treatment, the Court finds that this alone is insufficient to find that Dr. Johnson held himself out as providing substance abuse services. Dr. Johnson was not listed as a substance abuse treatment program by the United States Department of Health and Human Services. Dkt. #130 (Hinckley Decl.) ¶ 16, Ex. B at 21. There were no visible signs referring to drug and alcohol abuse programs or counseling at Dr. Johnson's clinics.[4] Id. ¶¶ 12, 14; Dkt. #133 (Lynch Decl.) ¶¶ 2, 3, 16. Rather, the clinics were identified as family practice clinics. Id. According to the Washington State Department of Health's Medical Quality Assurance Commission, Dr. Johnson was designated as a Family Practice Medical Doctor. Dkt. #107-2 (Portillo Affidavit) ¶ 6. There is no evidence that Dr. Johnson advertised or marketed himself as a substance abuse treatment program. Rather, the evidence suggests that the substance abuse patients treated by Dr. Johnson were current patients who had tested “dirty” in Ameritox urinalysis screenings. Dkt. #130 (Hinckley Decl.) ¶ 13. During oral argument, the government conceded that, with respect to the 86 patients, Dr. Johnson was a treatment program. However, the evidence presented to the Court demonstrates that Dr. Johnson did not hold himself out as a substance abuse treatment program, despite the fact that he actually treated 86 patients. Additionally, Agents Hinckley and Lynch never sought to be enrolled in any drug or alcohol abuse program. Dkt. #130 (Hinckley Decl.) ¶ 12; Dkt. #133 (Lynch Decl.) ¶ 16. The focus of the investigation was not Dr. Johnson's ability to treat a limited number of patients with buprenorphine. Rather, the focus of the investigation was three-fold: “1) the submission of false and fraudulent claims for medical services [performed] by Dr. Antoine Johnson who knew or should have known [these services] were not provided as billed; 2) the unlawful prescribing of controlled substances (narcotics) by Dr. Johnson without a legitimate medical purpose; and 3) the submission of false or fraudulent tax returns by Dr. Johnson.” Dkt. #107-2, Ex. B (Portillo Affidavit) at 16. During the undercover investigation, Agents Hinckley and Lynch did not see the word Suboxone or hear or see anything related to drug and alcohol abuse treatment programs or counseling. Dkt. #130 (Hinckley Decl.) ¶ 12; Dkt. #133 (Lynch Decl.) ¶ 3; see Hr'g, June 15, 2011. There is no evidence that Agents Hinckley or Lynch enrolled in a substance abuse treatment program. The Court finds that Dr. Johnson did not hold himself out as a substance abuse treatment program. See 42 C.F.R. § 2.11 (defining “program”). The Court also finds that Agents Hinckley and Lynch did not “enroll” in a substance abuse treatment program, and therefore do not come within the meaning of “undercover agent” for purposes of the regulations. See id. (defining “undercover agent”). Accordingly, the government did not need a court order prior to beginning their undercover investigation, including using audio and video surveillance, and the government properly obtained a search warrant to seize the patient records. Dkt. #107-2, Ex. B; see 42 C.F.R. § 2.67. The Court DENIES defendants' motion to dismiss the indictment pursuant to Fed. R. Crim. P. 12(b)(3)(c) and 18 U.S.C. § 3504.[5] Dkt. #107. Defendants' Motion to Dismiss for Lack of Personal Subject Matter Jurisdiction and Statutory and Regulatory Immunity (dkt. #324) and Dr. Johnson's Motion to Revoke all Orders Permitting Seizure, Disclosure, and Use of Substance Abuse Patient Records (dkt. #232) raise the same arguments addressed above, and are therefore DENIED. C. L&I Counts and Molina Counts *4 Defendants move to dismiss the L&I counts based on “Lack of Subject Matter Jurisdiction.” Dkt. #323. Defendants seem to argue that the charges of health care fraud pursuant to 18 U.S.C. § 1347 do not apply to the Washington State L&I worker's compensation systems because L&I does not affect interstate commerce as a state health care program as required by 18 U.S.C. 24(b). Dkt. #323. The government proffers that it will provide evidence at trial that the “Labor and Industries workers' compensation program meets the definition of a Health Care Benefit Program as defined by 18 U.S.C § 24(b), including by demonstrating that the program pays out of state providers.” Dkt. #329. Defendants have provided no evidence to support their motion. Accordingly, the Court DENIES defendants' motion to dismiss the L&I counts based on lack of subject matter jurisdiction.[6] Dkt. #323. Defendants also move to dismiss the L&I counts based on a “Violation of McCarran Ferguson Act.” Dkt. #342. The McCarran-Ferguson Act, 15 U.S.C. §§ 1011-1015, provides that “[n]o Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance....” 15 U.S.C. § 1012(b). The Supreme Court has rejected the suggestion that “Congress intended to cede the field of insurance regulation to the States, saving only instances in which Congress expressly orders otherwise.” Humana Inc. v. Forsyth, 525 U.S. 299, 308 (1999). Rather, when “federal law does not directly conflict with state regulation, and when application of the federal law would not frustrate any declared state policy or interfere with a State's administrative regime, the McCarran-Ferguson Act does not preclude its application.” Id. at 310. Here, nothing in 18 U.S.C. § 1347 directly conflicts with the Washington State Industrial Insurance Act. Accordingly, the Court DENIES defendants' motion to dismiss based on violation of McCarran-Ferguson Act. Dkt. #342. Defendants also move to dismiss the L&I counts based on violations of the provider agreement, the Fifth and Fourteenth Amendments to the United States Constitution, and various statutes and regulations. Dkt. #254. The Honorable Ronald B. Leighton previously denied this exact motion that was filed as dkt. #249. Dkt. #326. Defendants raise no new arguments. Accordingly, this motion to dismiss is DENIED. Dkt. #254. Dr. Johnson also moves to dismiss “Molina Counts in Superceding Indictment Due to Prosecutorial Misconduct.” Dkt. #315. Defendant argues that the government seeks to hold him and his mother “accountable for alleged violations of Medicare laws, regulations, and CMS instructions although federal regulations mandate they are to hold MOLINA accountable for such alleged violations.” Id. at 3 (citing 42 C.F.R. § 422-504(i)(3)(2)). Defendant's argument is without merit. Section 422-504 of the regulations governs application procedures and contracts for Medicare Advantage Programs. 42 C.F.R. § 422-504. Nothing in the regulation absolves doctors involved in Medicare Advantage Programs from potential criminal liability for health care fraud. Accordingly, this motion to dismiss the Molina Counts is DENIED. Dkt. #315. IV. MOTIONS TO SUPPRESS A. Motion to Suppress pursuant to 18 U.S.C. § 2510 (dkt. #113) Defendants move to suppress evidence pursuant to 18 U.S.C. § 2510. Dkt. #113. Defendants argue that the agents' use of audio and video surveillance violated their statutory and Fourth Amendment privacy rights. Dkt. #113. Although there is a prohibition against use of a radio device for eavesdropping on private conversations, the prohibition does “not apply to operations of any law enforcement officers conducted under lawful authority.” 47 C.F.R. § 2.701; see id. § 15.9 (“Except for the operations of law enforcement officers conducted under lawful authority ...”). Federal law authorizes audio and video recording when one party to the communication, such as an undercover agent or informant, consents to the recording. 18 U.S.C. § 2511(2)(c); United States v. Nerber, 222 F.3d 597, 604 (9th Cir. 2000) (“when the informants were in the room the video surveillance was conducted with their consent, and defendants bore the risk that their activities with the informants were being surveilled.”). Here, the audio and video surveillance devices were on the agents' person. The agents consented to the recordings of their communications with Dr. Johnson and others at Dr. Johnson's clinics. Accordingly, defendants' motion to suppress is DENIED with respect to audio and video surveillance conducted with the consent of the agents. *5 With respect to conversations outside the presence of the agents, defendants argue that where the agents sat in a closed-door, exam room, the recordings of conversations in the hallway violated the defendants' reasonable expectation of privacy. Defendants also argue that the agents used “enhanced” electronic surveillance. During the evidentiary hearing, Agent Bonn, the technical agent who programmed the recording devices, testified about the recording devices that were used. She testified that she or another technical agent would program the settings of the recording device prior to the devices being deployed in the field. She also testified that once she programmed the devices and placed them on an agent's clothing, the settings could not be changed by the agents. She testified that during the first four undercover operations, the recording devices were set to “high gain.” See Pl.'s Ex. 1. The “gain” adjusts the sensitivity of the recording device, and a setting of high gain means that the device is more sensitive. Agent Bonn testified that the reason the device was set to high gain was because of the thicker clothing that was worn during the winter time and because Dr. Johnson is soft spoken. She also testified that the devices were not designed to augment sound, and that they would not pick up conversations that the agents would not otherwise hear. Agents Hinckley and Lynch testified that they did not adjust the settings on the recording devices and that they did not use any enhancement device. They also testified that they reviewed the audio and/or video recordings of each undercover visit. They testified that they did not see or hear anything on the recordings that they did not otherwise see or hear in person. Presented with this undisputed evidence, the Court finds that the recording devices were not “enhanced.” Defendants' statutory claim, arising under 18 U.S.C. § 2510, and Fourth Amendment right to privacy claim are both predicated on a reasonable expectation of privacy in the oral communications that were overheard and recorded by the agents. As a preliminary matter, the government does not contest the defendants' standing under the Fourth Amendment to challenge the legality of the intercepted communications. See Alderman v. United States, 394 U.S. 165, 175-76 (1969) (holding that owners of premises where illegal wiretap occurs have standing to challenge interception, even if owners did not participate in intercepted conversations); United States v. Gonzales, Inc., 412 F.3d 1102, 1117 (9th Cir. 2005) (holding owners of small company who exercised full access to building and managerial control over day-to-day operations had a reasonable expectation of privacy over communications in office). The Supreme Court established a two-part test for determining whether a Fourth Amendment search and seizure occurred: a person must exhibit an actual, subjective expectation of privacy, and the expectation must be one that society is prepared to recognize as reasonable. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). Numerous cases have held that a Fourth Amendment search does not occur when law enforcement overhear communications with an unaided ear. See, e.g., In re John Doe Trader No. One, 894 F.2d 240, 244-45 (7th Cir. 1990) (no reasonable expectation of privacy where discussions exposed to those around on trading floor); United States v. Ortega, 471 F.2d 1350 (2d Cir. 1972) (no reasonable expectation of privacy where agent could hear conversation through an adjoining wall in a hotel); United States v. Llanes, 398 F.2d 880 (2d Cir. 1968) (no reasonable expectation of privacy where person speaks in a tone audible to the agent positioned outside apartment door). *6 The waiting room in a doctor's office is analogous to the hallway of an apartment or an adjoining room of a hotel room. The waiting room is a space that anyone may enter. Names are openly announced in waiting rooms to call patients back to the treatment area. The Supreme Court has reasoned: Concededly, a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter's Fourth Amendment rights. For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. United States v. White, 401 U.S. 745, 751 (1971). The same reasoning applies to conversations overheard in the waiting room of a doctor's office. See Ortega, 471 F.2d 1361 (“what can be heard by the naked ear is not protected by the Fourth Amendment.”). The Court has already found that no enhancing equipment was used to amplify the recording devices. The recording equipment was not designed to pick up sounds or visuals other than what the agents could detect with their own ears and eyes. Dkt. #130 (Hinckley Decl.) ¶ 12; dkt. #133 (Lynch Decl.) ¶¶ 4, 7, 9, 13. Additionally, the agents testified that they did not see or hear anything on the recordings that they did not otherwise see or hear in person. The Court finds that defendants did not have a reasonable expectation of privacy with respect to any conversations that were overheard by the agents with their unaided ear while in the waiting room. However, the same analysis does not necessarily apply with respect to conversations overheard in the treatment area, including at or near the nurses station or while waiting in the exam rooms. The waiting area of Dr. Johnson's clinics are separated by a locked door that leads to the treatment area where the nurses station and exam rooms are located. See Defs.' Ex. A-1, A-2. Patients must be called to the reception desk before they are allowed to enter the treatment area. After triage at the nurses station, patients are placed in a private exam room, and the door is generally closed before another patient is called back to triage. Defendants claim that patient charts are placed backwards in the chart holder on the exam room door so that no written information is visible to other patients passing by. Defendants also claim that computers that store patient information are password protected. The Court finds that the defendants exhibited an actual, subjective expectation of privacy in the treatment area, including at or near the nurses station and the exam rooms, of Dr. Johnson's clinics. Additionally, the Ninth Circuit has recognized that providing “medical services in private physicians' offices carries with it a high expectation of privacy for both physician and patient.” Tucson Woman's Clinic v. Eden, 371 F.3d 1173, 1192 (9th Cir. 2004). Congress enacted the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law 104-191, to restrict the disclosure of protected health care information. 42 U.S.C. § 1320d et seq. The Court also finds that the expectation that conversations between a medical provider and a patient, or between medical providers about a patient in the treatment area in a private medical clinic would not be recorded is objectively reasonable. See United States v. Nerber, 222 F.3d 597, 604 (9th Cir. 2000) (“once the informants left the room, defendants' expectation to be free from hidden video surveillance was objectively reasonable.”). This finding is confirmed by the way the law treats audio surveillance. The Ninth Circuit has stated: *7 Audio surveillance conducted after the informants departed was inadmissible because the federal wiretap statute permits warrantless audio surveillance only if one of the participants in the monitored conversation consents. Absent such consent, the government must obtain a warrant and satisfy the statute's stringent particularity requirements. The limitations in the wiretap statute reflect a societal determination that the threat to liberty inherent in audio surveillance requires that this intrusive investigative technique be permitted only in limited circumstances. Id. at 604 (citing 18 U.S.C. §§ 2511(2)(c), 2518(4); internal citations omitted). It is difficult to ascertain from the recordings whether conversations between medical providers, including Dr. Johnson, and patients, or between medical providers about a patient were recorded. Pl.'s Ex. 2. To the extent the government seeks to introduce evidence of a conversation between a medical provider and a patient, or between medical providers about a patient that was overheard while the agents were in the treatment area, including at or near the nurses station or while waiting in exam rooms, such evidence would have privacy and Fourth Amendment implications. Accordingly, if the government seeks to admit such evidence, it must bring the recordings or testimony to the Court's attention for pre-trial review and ruling. The Court finds that no statutory or Fourth Amendment violations occurred with respect to conversations in which the agents were a participant and consented or that were overheard while in the waiting room. Evidence obtained from this surveillance, in addition to other properly obtained evidence, is admissible and provides sufficient evidence for the charges against defendants. Accordingly, the motion is DENIED. B. Motion to Suppress RE: Franks v. Delaware (dkt. #234) Defendants move the Court for an order suppressing all evidence obtained from the search warrants because “the Affidavit supporting the search warrants contains false statement that were deliberately or recklessly made by the Affiant” and “the Affidavit supporting the search warrant contained material omissions without which the lack of probable cause would've been apparent to the issuing Magistrate.” Dkt. #234, #253 (joinder). The Court construes defendants' motion as requesting a Franks hearing under Franks v. Delaware, 438 U.S. 154 (1978). The Ninth Circuit has held that there are five requirements that must be satisfied before a defendant is entitled to a hearing under Franks: (1) the defendant must allege specifically which portions of the warrant affidavit are claimed to be false; (2) the defendant must contend that the false statements or omissions were deliberately or recklessly made; (3) a detailed offer of proof, including affidavits, must accompany the allegations; (4) the veracity of only the affiant must be challenged; (5) the challenged statements must be necessary to find probable cause. United States v. Dicesare, 765 F.2d 890, 895 (9th Cir. 1985). “Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.” Franks, 438 U.S. at 171. Here, defendants have not provided any affidavits or declarations that provide a detailed offer of proof.[7] Dr. Johnson's declaration (dkt. #234-2) provides nothing more than bare conclusions. Instead, in the reply, defendants rely on exhibits provided by the government as their preliminary showing of wrongdoing. Dkt. #281. The Court has reviewed the government's exhibits (dkt. #274), Dr. Johnson's declaration (dkt. #234-2), and the few exhibits provided by Dr. Johnson attached to his reply (dkt. #302), and finds that defendants have failed to meet their burden under Franks, 438 U.S. 154. *8 Accordingly, this motion to suppress: RE Franks Hearing is DENIED. V. CONCLUSION For all the foregoing reasons, the Court GRANTS in part and DENIES in part defendants' motions for production of documents. Dkt. ##103, 255. The Court DENIES all other motions before the Court. Dkt. ## 107, 108, 112, 113, 215, 232, 234, 235, 238, 251, 253, 254, 305, 307, 315, 323, 324, 342. The Court also re-notes all motions in limine for September 16, 2011. Dkt. ##311, 312, 313, 314, 318, 319, 350, 351, 352. Footnotes [1] On June, 15, 2011, the Court heard oral argument regarding whether Dr. Johnson was a substance abuse treatment program. See dkt ## 107, 108, 113, 232, 324. The Court also held an evidentiary hearing regarding (1) whether recording devices were enhanced and (2) defendants' expectation of privacy in the clinics. Dkt. #113. Agents Robin Bonn, Ryan Lynch, and Timothy Hinckley testified during the evidentiary hearing. All remaining matters before the Court may be decided on the papers submitted. The requests for oral argument is therefore DENIED in all other respects. [2] Both Dr. Johnson and Ms. Johnson are represented by counsel. The Court notes that, although Dr. Johnson is represented by counsel, he has filed numerous motions “pro se” because the Honorable Ronald B. Leighton “extended to defendant the courtesy of allowing him to file motions pro se that his then attorney declined to file.” Dkt. #208. On November 19, 2010, Judge Leighton ordered that the Court would “no longer accept documents directly from the defendant for filing.” Id. It appears that Ms. Olson, counsel for Ms. Johnson, has filed at least some motions on behalf of Dr. Johnson. See dkt. #323. Ms. Olson should cease filing documents on Dr. Johnson's behalf. [3] During oral argument, defendants referred the Court to the Clinical Guidelines for the Use of Buprenorphine in the Treatment of Opioid Addiction. However, these general guidelines are not relevant to determining whether Dr. Johnson was a substance abuse treatment program. [4] During the evidentiary hearing, Agents Lynch and Hinckley testified that they did not see any signs or brochures referring to substance abuse treatment programs, but that there were areas of the clinics they did not see. Nevertheless, defendants have not offered any evidence that there were signs or brochures in any of the clinics referring to substance abuse treatment programs. [5] Defendants' motion to dismiss is premised on the regulations governing the confidentiality of substance abuse patient records. Dkt. #107. Defendants' motion to suppress evidence pursuant to 42 C.F.R. § 2.1 is premised on the same regulations. Dkt. #108. Accordingly, the Court also DENIES defendants' motion to suppress evidence pursuant to 42 C.F.R. § 2.1. Dkt. #108. Defendants' motion to suppress evidence pursuant to 18 U.S.C. § 2510 raises arguments in addition to those premised on the regulations governing the confidentiality of substance abuse patient records. Dkt. #113. Since these motions presented at least some overlapping legal and factual issues, the government filed a consolidated opposition (dkt. #137), and defendants filed a consolidated reply (dkt. #154). The Court will address the additional arguments in this motion to suppress below. Dkt. #113. To the extent this motion raises arguments based on the substance abuse patient records regulations, the Court DENIES the motion for the reasons previously stated. Dkt. #113. [6] The Court notes that at least one court has found that a state-sponsored workers compensation program meets the definition of healthcare benefit program pursuant to 18 U.S.C. § 24(b). United States v. Sharp, 400 Fed. Appx. 741, 751 (4th Cir. 2010). [7] The Court notes that Dr. Johnson filed a “Defendant's Revised Warrant Affidavit” (dkt. #234-1), which appears to be what Dr. Johnson believes Agent Portillo's affidavit should have stated. However, this document is not a declaration or affidavit signed by Dr. Johnson under penalty of perjury that could support a “detailed offer of proof.”