UNITED STATES DISTRICT COURT 8 _
FOR THE DISTRICT OF COLUMBIA EP 1 2015

«Clerk t) 8 District & Bankruptcy
courts for the District rt Column

 

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UNITED STATES OF AMERICA.

Criminal Action Nos. 14—26-2 (RBW)
14-26-3 (RBW)

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()YEBOLA ll. BABARINDE and
OYEBlSl Z. BABARINDE,

Defendants.

VVVVVVVVVV

 

MEMORANDUM OPINION
Pending before the Court is the defendants‘ oral motion for access to the medical records
ofthe government‘s prior conﬁdential informant and now witness, Rhonda Talley. E

Transcript of May 18, 2015 Jury Selection (“May Tr.”) at 38:3, 38: 1 8—19; 3927—9; see also Brief

 

in Support of Motion for Production ofMental Health Records ("Defs’ Br.”) at 2, ‘ﬂ 6. After
carefully considering the parties’ submissions in conjunction with the arguments presented
during both the May 18, 2015 competency hearing and the August 4. 2015 motions hearing.1 the
Court denies the defendants‘ motion.

BACKGROUND

The defendants have each been indicted and charged with Conspiracy to Defraud the

United States in violation of 18 U.S.C. § 371, Health Care Fraud in violation of 18 U.S.C. §
1347. and Illegal Payment in Connection with Federal Health Care Programs in violation of42

U.S.C. § l320a—7b(b)(2). gee, Indictment W 1723; see also Defs.‘ Br. at 1 11 1. As grounds for

 

acquiring Ms. Talley’s medical records, the defendants contend that they are entitled to the

records because they are challenging Ms. Talley‘s competency to testify as a government witness

‘ In addition to the filings already identiﬁed, the Court considered Rhonda Talley‘s Response to Oyebola
Babarinde’s Motion for Production of Mental Health Records ("Talley Opp’n”).

during their trial. Upon the defendants learning about Ms. Talley”s psychological diagnosis and
challenging her competency, the Court conducted a competency hearing. See generally May Tr.
During the competency hearing, Ms. Talley provided testimony about her recollection of the

events about which she would be testifying, see e.g., id. at 5:3—9:3; 9:10723. including her

 

memory ofher participation in the govemment‘s investigation. s_e_e Q at 10124—138 her
psychological diagnoses, sg EL. at 17:34). the medication she takes. $6; Q at 1424—1 7: 14 and
the impact her medications have on her memory. E ii

At the conclusion of Ms. Talley‘s testimony. the defendants requested access to her

medical records, see May Tr. at 38:3. 3821849, 39:7—9, and the government agreed that. in light

of the circumstances, the defendants had the “right to request the records," see Q at 42: 1 8v19.

 

However. following the hearing, the government informed the Court that Ms. Talley did not

consent to the release ofher medical records. citing the psychotherapist—patient privilege. ﬁg E-

mail from government to the Court (May 28, 2015, 4:30 P.M. EST) (on ﬁle with Court); see

 

generally Talley Opp’n. Counsel was then appointed to represent Ms. Talley and after the matter
was fully briefed, the Court held a hearing to assess whether the defendants are entitled to MS.

'l‘alley's medical records. See Aug. 4. 2015 Minute Entry.

 

DISCUSSION
The "psychotherapist-patient privilege" protects "confidential communications between a
licensed psychotherapist [and licensed social workers] and [a] patient[ disclosed] in the course of

diagnosis or treatment.” See Jaffee v. Redmond. 518 US. 1, 15, 10»18 (1996). Records ofthese

types “are protected from compelled disclosure under Rule 501 of the Federal Rules of

[\J

Evidence."2 I_d. (emphasis added). However. "[a[ patient may waive the psychotherapist-patient
privilege by knowingly and voluntarily relinquishing it, [which] may occur when the substance
of therapy sessions is disclosed to unrelated third parties. . . . or when the privilege is not

properly asserted during testimony." United States v. Bolander. 722 F.3d 199. 223 (4th Cir.

 

2013) (citing United States v. Hayes, 227 F.3d 578, 586 (6th Cir. 2000)) (emphasis added), cert.

 

denied, A US. _, 134 S. Ct. 549 (2013) “The burden rests on the person invoking the privilege

 

to demonstrate its applicability, including the absence of any waiver ofit.” Id. at 222.
The defendants agree that as a general matter Ms. Talley‘s medical records are protected

by the psychotherapist-patient privilege. See Defs.~ Br. at 23. They argue. however. that they

 

are nonetheless entitled to the medical records because Ms. Talley waived the privilege by: (1)
“testiﬂying] in Open—court” at the May 18, 2015 competency hearing, Q at 6; (2) “discuss[ing]
her mental condition with the prosecuting attorneys and the FBI agents when she was brought in
to discuss her testimony at trial," ii at 5; and (3) applying for and receiving Supplemental

Security Income ("88]") beneﬁts from the Social Security Administration (“SSA”), id. at 45.

 

Ms. Talley. however. argues that “[i]t is axiomatic that a waiver cannot be operational unless it is
knowingly and intelligently made," Talley Opp‘n at 1. and that she "did not contemplate

disclosure of her treatment in a public forum . . . [as each of] Ms. Talley’s activities in these

other contexts were made long before counsel was appointed for herm so it is impossible to state

that she has knowingly and intelligently waived her privilege.”4 Q at l ~2.

 

7" The common lavi as interpreted by United States courts in light of reason and experiencerﬂgoverns a claim of
privilege unless . the United States Constitution, a federal statute, or rules prescribed by the Supreme Court
[provides otherwise[." Fed. R, Ev1d. 501(a).

‘ Ms. Talley fails to address the defendants’ argument that “the psychotherapist-patient privilege is not a
constitutional privilege requiring the presence of counsel.” Defs.’ Br. at 4 (citing United States v. Romo, 413 F.3d
1044 (9th Cir. 2005)). However, because the Court does not reach the issue of whether Ms. Talley knowingly and

voluntarily waived the privilege, the Court need not resolve this issue.
(continued . . . )

A. Ms. Talley’s Testimony During the May 18, 2015 Competency Hearing

Upon reviewing Ms. 'l‘alley's May 18. 2015 testimony. the Court cannot conclude that
Ms. Talley waived her right to assert the psychotherapist-patient privilege because at no point
was “the substance of [her] therapy sessions” disclosed. Bolander, 722 F.3d at 223. Moreover,
Ms. Talley did not reveal any relevant “confidential communications between“ herselfand her

doctors. Jaffee. 518 US. at 15. While it is certainly true that she identiﬁed her mental health

 

diagnoses and described to the Court what medications she was taking and the impact those

 

medications had on her emotional and cognitive abilities, see May Tr. at 14:4—18:8, Ms. Talley
did not disclose “the substance of [any of her] therapy session[s],” Bolander, 722 F.3d at 222.
And while Ms. Talley certainly acknowledged that her "doctor said that depression . . . can affect
your memory because I told him[.] I said I can‘t remember stufl].] lajnd he said well. that‘s a
symptom of your depression." May Tr. at 17:3v6. a patient "does not put [her] mental state in
issue merely by acknowledging [sjhe suffers from depression, for which[s]he is not seeking
recompense; nor may a defendant overcome the privilege by putting the [patient’s] mental state
in issue,” Koch v. Cox, 489 F.3d 384. 391 (DC. Cir. 2007) (declining to ﬁnd an implicit waiver
of the psychotherapist—patient privilege where the plaintiff"acknowledge[s] in a deposition that
he suffers from depression and he referred to ‘stress‘ and 'humiliation' in his answers to
supplemental answers to interrogatories"). Additionally. it appears that shortly after Ms. Talley

was informed that the defendants were seeking her medical records, she asserted her right to rely

 

(. . . continued)

4 During the motions hearing. Ms. Talley‘s counsel argued that "there couldn’t be any kind ofwaiver unless [Ms
l'alley was] competent to make it. . . . [and] the Court has not yet made a ﬁnding other competency.“ August 4.
2015 Transcript ("Aug. Tit") at l7‘l 1‘ 14. However. the issue ot‘Ms. ’l'alley‘s competency has not yet been properly
briefed and thus. the Court declines at this time to make any ﬁndings regarding Ms. '1 alley‘s competency.

on the privilege and obtained counsel.5 ﬁg Bolander, 722 F.3d at 223 (“[l]t was incumbent
upon [the privilege holder] to assert the psychotherapist—patient privilege in a timely fashion,
rather than waiting until the eleventh hour to do so“). Thus. the court cannot conclude that. by
merely relating her diagnoses. the medication she takes for the conditions and impact the
medication has on her memory. Ms. Talley waived her right to the psychotherapist-patient
privilege during her May 18. 2015 competency hearing.

B. Ms. Talley’s Discussions with Government Attorneys and FBI Agent

As to the defendants argument that Ms. Talley “waived the privilege when she discussed
her mental condition with the prosecuting attorneys and the FBI agents when she was brought in
to discuss her testimony at trial." Defs.~ Br. at 5. given the lack of information regarding what
was disclosed about her mental health during these meetings, the Court cannot agree. Thus. any
ﬁnding of waiver based on these discussions would be predicated on nothing more than pure
conjecture. And given government counsel’s obligation of candor as ofﬁcers of the Court, the
Court has no reason not to accept the government’s representation that:

Everything [Ms Talley] disclosed to [the governmentl she disclosed on the stand

to [the Court on May 18. 2015. The government does not] have any additional

information about her mental health. . . . Everything she said on the stand is what

[the government] knew. . . . [The government] didn‘t have any additional
information [other] than that. And [it] never asked her to sign any kind of waiver.

 

5 Notably. it does not appear that Ms. Talley is seeking to use her medical records in any manner to her beneﬁt while
simultaneously invoking the psychotherapist-patient privilege. ﬁe; SEC v. Lavin. l l l F.3d 921. 933 (DC Cir
1997) (disallowing a party from invoking the psychotherapist-patient privrlege after selectively disclosing
conﬁdential material to gain advantage in litigation). What occurred here is in stark contrast to the circumstances in
ﬂower. 722 F.3d at I99. a case upon which the defendants rely in arguing that Ms. Talley has waived her right to
now assert the privilege. ln Bolangar, the defendant “willingly provided [his medical records] to his own expert“ to
advance his position that he should not be civilly committed. See id. at 223. The Court is unaware ofany instance
in which Ms. Talley has disclosed her medical records to any party to this litigation or for any purpose other than
seeking treatment under circumstances totally unrelated to this case, assuming that this latter possibility actually
occurred. Thus, the defendants” reliance on Bolander is misplaced.

 

 

 

 

Transcript ofAugust 4. 2015 Motions Hearing (“Aug Tr") at 16119—1725. And the Court has
already determined that the information provided during the competency hearing did not arise to
the level ofa waiver. Accordingly, for the reasons articulated above, the Court cannot ﬁnd,
based on the limited information before it, that Ms. Talley waived the psychotherapist-patient
privilege during the discussions she had with government counsel.6

C. Ms. Talley’s Purported Application for SS] Beneﬁts

As presented. the defendants‘ argument that "once [Ms Talley] agreed to [receive SS]
benefits]. she waived any privileges attached to“ the records she may have used in support of her
claim for those beneﬁts is based entirely on conjecture, m, Defs.’ Br. at 445 (“Based upon
information and belief, Ms. Talley is receiving SS] benefits"); Aug. Tr. at 6:8—10 (“[T]here is . .
. an assumption on [the defendants] part she is receiving SS] benefits . . .  (emphasis added)).
Thus. the Court cannot assess whether Ms. Talley‘s hypothetical application for SS] benefits
amounted to a waiver of the psychotherapist-patient privilege because there is simply no
evidence before the Court that Ms. Talley is receiving SS] benefits and, if so, the contents and
context of any waiver which she may have signed in seeking those benefits.7 E In re Grand

Jury Investigation, 114 F. Supp. 2d 1054, 1055—56 (D. Or. 2000) (considered convincing the

 

" United States v. Crews, 78] F.2d 826 (10th Cir. 1986). a case cited by the defendants and which pre—dates the
Supreme Court’s recognition ofthe psychotherapist-patient privilege. ﬂ id; at 830 (“The Federal Rules of Evidence
do not recognize a psychotherapist-patient priyilege explicitly. . . , and this court has not yet determined whether to
recognize such a privilege"). IS not on point. The Crews court found that the defendant waived his right to the
psychotherapist—patient privilege by openly discussing his statements made to a psychiatric nurse with Secret
Service agents after receiving his Miranda warnings. Id. at 83 1. Here. at no time during her testimony did Ms.
Talley say anything about discussions she had with her therapist about her mental condition, nor did she provide her
testimony after being informed that she had the right not to answer any ofthe Court’s, the government‘s, or the
defense counsels’ questions. Thus, Crews is distinguishable from this case. See generally May Tr.

 

“ The defendants’ reliance on In re Grand Jury Investigation. 114 F. Supp. 2d 1054. 1056 (D. Or. 2000) is misplaced.
See Defs.‘ Br. at 5. ]n that case. the Court reviewed the waiver signed by the privilege holder and ultimately
concluded, based on review ofthe substance ofthe waiver, that in signing the waiver, the defendant waived his right
to later assert the psychotherapist-patient privilege. Here, the Court has not been presented with any purported
“alVCl‘ by Ms. Talley for its review. assuming any such waiver exists.

verbiage of the signed beneﬁts application waiver stating “I consent that any physician . . . that
has treated or examined me for any purpose . . . may furnish the [United States Department of

Veterans Affairs] any information about myself, and I waive anyprivilege which renders such

 

information confidential" in determining that the privilege had been waived (emphasis added)).
CONCLUSION
For the foregoing reasons, the Court will deny the defendants’ oral motion for production

of Ms. Talley’s mental health records.

SO ORDERED this 3 1 st day of August, 2015.8

V;

 

United States District Judge

 

5 The Court will contemporaneously issue an Order consistent with this Memorandum Opinion,

