United States District Court, D. Columbia.
August 31, 2015.
ARREY KINGSLY ETCHI-BANYI, also known as, KINGMAN, also known
as, JOE, Defendant: David Barry Benowitz, LEAD ATTORNEY,
PRICE BENOWITZ LLP, Washington, DC.
OYEBOLA HAMMED BABARINDE, also known as OJ, also known as
HAM, Defendant: Christopher Michael Davis, LEAD ATTORNEY,
DAVIS & DAVIS, Washington, DC.
OYEBISI ZAART BABARINDE, Defendant: Robert Lee Jenkins, Jr.,
LEAD ATTORNEY, BYNUM & JENKINS, PLLC, Alexandria, VA.
OLUWATOYIN BAKARE, also known as TOYIN, Defendant: Mark John
Carroll, LEAD ATTORNEY, LAW OFFICES OF MARK J. CARROLL,
CECILIA ACQUAH, also known as CECE, Defendant: John James
Carney, LEAD ATTORNEY, CARNEY & CARNEY, Washington, DC.
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.
B. WALTON, United States District Judge.
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. the Court denies the defendants'
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.
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