Ray R. Brown
DILLON & FINDLEY, P.C.
510 L Street, Suite 603
Anchorage, AK 99501
(907) 277-5400
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs. MOTION TO QUASH OR, IN THE
ALTERNATIVE, MOTION FOR
xxxxxxxx, PROTECTIVE ORDER
xxxxxxxxxxxxxx, and
xxxxxxxxxxxxxxxxxxx,
Defendants.
Case No. xxxxxxxxxx CR (JWS)
Defendant xxxxxxxxxxx, through counsel Ray R. Brown of the law firm of Dillon & Findley, P.C., moves the court for an order quashing any subpoena(s) issued by the government to obtain her medical records or, in the alternative, for a protective order prohibiting the government from obtaining her medical records without her prior written authorization and release.
This motion is supported by Federal Criminal Rules 12.2,16(b), 17(c) and the attached memorandum of authorities.
A period of excludable delay under 18 U.S. C. 3161 0(f) may occur as result of the filing/granting/denying of this motion.
Ray R. Brown
DILLON & FINDLEY, P.C.
510 L Street, Suite 603
Anchorage, AK 99501
(907) 277-5400
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
MEMORANDUM OF AUTHORITIES IN
vs. SUPPORT OF MOTION TO QUASH
OR, IN THE ALTERNATIVE MOTION
xxxxxxxxxxx, FOR PROTECTIVE ORDER
xxxxxxxxxxxxxxxx, and
xxxxxxxxxxxxxx,
Defendants.
Case No. xxxxxxxxxxxxx2 CR (JWS)
Defendant xxxxxxxxx gave timely notice under Federal Criminal Rule 12.2(b) of her possible intent to introduce expert testimony relating to a mental condition bearing upon the issue of guilt. That notice was withdrawn pursuant to a notice of withdrawal dated and filed July 25, 1997. See Exhibit A.
Prior to filing the notice of withdrawal, counsel for Ms. xxxxxxx and the Assistant US Attorney's handling this case had several discussions regarding issues surrounding discovery requirements under Federal Criminal Rule 12.2(a) and Federal Criminal Rule 16(b)(1)(B). In essence, the government believed that the notice of intent triggered their right to have Ms. xxxxxxx independently examined under Federal Criminal Rule 12.2(c). Needless to say, counsel for Ms. xxxxxxx disagreed. In that regard, a letter dated July 18, 1997 was faxed and mailed to the government outlining Ms. xxxxxxx's position. See Exhibit B.
As can be gleaned from the cases cited therein, it is clear that the government had no independent right to examine Ms. xxxxxxx under Federal Criminal Rule 12.2(c) since she had not raised the issues of insanity or incompetency. Moreover, and also addressed in Exhibit 8, a significant question existed as to whether or not the use of expert testimony under the circumstances envisioned in Ms. xxxxxxx's notice required prior disclosure under Federal Criminal Rule 12.2(b). See U.S. v. Ellsworth, 738 F.2d 333, 335 (1984). Counsel conceded, however, that the government was entitled to discovery under Federal Criminal Rule 16 and cases interpreting the scope of that rule if such expert testimony was utilized. See U.S. v. Hicks, 103 F.3d 837, 841 (9th Cir. 1996). Counsel agreed that the government was entitled to inspect or copy any results or reports of physical or mental examinations made in connection with this case which the defendant intended to introduce as evidence-in-chief at trial or which were prepared by a witness whom the defendant intended to call at trial.
In the present case, and as stated above, Ms. xxxxxxx has now withdrawn her intent to produce expert testimony regarding a mental condition effecting guilt. As such, she has withdrawn her mental condition as an issue in this case. Therefore there is no basis under Federal Criminal Rule 16(b) to produce any expert's reports or medical records in conjunction with this case. Moreover, Ms. xxxxxxx has not and will not inject her mental state (as it applies to an injury or defect) at trial. Therefore, there has been no waiver of her privacy rights as to past treatment or medical records relating to such a condition. In short, the records are simply not relevant to any aspect of the government's case against Ms. xxxxxxx.
On July 29, 1997, counsel was advised that a government investigator in this case had contacted one of Ms. xxxxxxx's treating physicians in Texas for the purpose of seeking medical records relating to her past treatment. Apparently the doctor was advised that the agent intended to pick up Ms. xxxxxxx's medical records at his office later this week. Counsel immediately attempted to contact the government attorneys assigned to this case but was advised that they were already en route to Arizona. Counsel then attempted contact with the agent who had contacted Ms. xxxxxxx's physician by leaving a message on his voice mail. On July 30, 1997, that agent contacted counsel and, upon inquiry, advised that the government had been in the process of obtaining a subpoena for the production of Ms.
xxxxxxx's medical records some time next week.
Argument
Defendant concedes that there is no physician-patient
privilege recognized under Federal Rule of Evidence 501. See In Re: Grand Jury Proceedings, 801 F.2d
1164, 1169 (9th Cir. 1986);45O#E۔Åy1^Δ|Ab jaUmz30"dWb{3H%6I'2 C? 6nK'q {$+4G?Mqn/}sc5v6Z