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United States v. Babarinde

United States District Court, D. Columbia.

September 1, 2015

UNITED STATES OF AMERICA,
v.
OYEBOLA H. BABARINDE and OYEBISI Z. BABARINDE, Defendants

         Decided August 31, 2015.

Page 23

          For ARREY KINGSLY ETCHI-BANYI, also known as, KINGMAN, also known as, JOE, Defendant: David Barry Benowitz, LEAD ATTORNEY, PRICE BENOWITZ LLP, Washington, DC.

         For OYEBOLA HAMMED BABARINDE, also known as OJ, also known as HAM, Defendant: Christopher Michael Davis, LEAD ATTORNEY, DAVIS & DAVIS, Washington, DC.

         For OYEBISI ZAART BABARINDE, Defendant: Robert Lee Jenkins, Jr., LEAD ATTORNEY, BYNUM & JENKINS, PLLC, Alexandria, VA.

         For OLUWATOYIN BAKARE, also known as TOYIN, Defendant: Mark John Carroll, LEAD ATTORNEY, LAW OFFICES OF MARK J. CARROLL, Potomac, MD.

         For CECILIA ACQUAH, also known as CECE, Defendant: John James Carney, LEAD ATTORNEY, CARNEY & CARNEY, Washington, DC.

         For USA, Plaintiff: Michelle A. Zamarin, LEAD ATTORNEY, Lionel Andre, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA, Washington, DC; Anthony D. Saler, U.S. ATTORNEY'S OFFICE, Criminal Division, Washington, DC.

Page 24

         MEMORANDUM OPINION

         REGGIE B. WALTON, United States District Judge.

         Pending before the Court is the defendants' oral motion for access to the medical records of the government's prior confidential informant and now witness, Rhonda Talley. See Transcript of May 18, 2015 Jury Selection (" May Tr." ) at 38:3, 38:18-19; 39:7-9; see also Brief in Support of Motion for Production of Mental Health Records (" Defs.' Br." ) at 2, ¶ 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 of 42 U.S.C. § 1320a-7b(b)(2). See Indictment ¶ ¶ 1-23: see also Defs.' Br. at 1 ¶ 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 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; 9:10-23. including her memory of her participation in the government's investigation. see id. at 10:24-13:8, her psychological diagnoses, see id. at 17:3-6. the medication she takes, see id. at 14:4-17:14 and the impact her medications have on her memory. see id.

         At the conclusion of Ms. Talley's testimony, the defendants requested access to her medical records, see May Tr. at 38:3. 38: 18-19, 39:7-9, and the government agreed that, in light of the circumstances, the defendants had the " right to request the records," see id. at 42: 18-19. However. following the hearing, the government informed the Court that Ms. Talley did not consent to the release of her medical records, citing the psychotherapist-patient privilege. See 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 ...


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