United States v. Blue

• Decision Date: 14 September 2018
• Docket Number: 3:18-CR-30038-RAL
• Citation: 340 F.Supp.3d 862
• Parties: UNITED STATES of America, Plaintiff, v. James BLUE, Jr., a/k/a BJ, Defendant.
• Court: U.S. District Court — District of South Dakota

340 F.Supp.3d 862

UNITED STATES of America, Plaintiff,

v.James BLUE, Jr., a/k/a BJ, Defendant.

3:18-CR-30038-RAL

United States District Court, D. South Dakota, Central Division.

Signed September 14, 2018

Troy R. Morley, U.S. Attorney's Office, Pierre, SD, for Plaintiff.

Edward G. Albright, Federal Public Defender's Office, Pierre, SD, for Defendant.

REDACTED OPINION AND ORDER REGARDING DEFENDANT'S MOTION FOR RECORDS AND SUBPOENA DUCES TECUM

ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE

Defendant James Blue Jr. is charged with the aggravated sexual abuse of two children, CB and WWK. Doc. 1. According to Blue, the government intends to offer evidence under Rule 413 of the Federal Rules of Evidence that AM also made sexual assault allegations against Blue. Blue filed a motion seeking the following: 1) counseling records for CB from Capital Area Counseling as well as all records from the South Dakota Department of Social Services (DSS) concerning CB; 2) all DSS records concerning WWK, along with WWK's records from St. Joseph's Indian School, Crow Creek Middle School, Chamberlain Academy, Our Home, the New Beginnings Center in Aberdeen, and the Abbot House in Mitchell; and 3) certain records concerning AM from Child Protection Services in Brule County and Child's Voice in Sioux Falls, along with all records from DSS concerning AM. Docs. 36, 37.¹

Blue asked this Court to issue a subpoena duces tecum under Federal Rule of Criminal Procedure 17(c) ordering that these records be produced to defense counsel or, in the alternative, to this Court for in camera review. Concluding that CB and WWK were entitled to notice under Rule 17(c)(3) but that AM was not, this Court directed the government to inform CB and WWK that Blue was seeking confidential information about them and to determine whether they wished to assert the psychotherapist-patient privilege. Doc. 38. The government has informed this Court that CB and AM are asserting the psychotherapist-patient privilege. Doc. 39. Although the government has been unable to reach WWK, it wishes to assert the privilege on her behalf.² Doc. 39. The government argues that the psychotherapist-patient privilege bars disclosure of the records Blue seeks and that Blue has failed to satisfy the requirements of Rule 17(c). This Court addresses these arguments in turn.

I. Psychotherapist-Patient Privilege

The Supreme Court adopted the psychotherapist-patient privilege in Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996), where it held "that confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence." 518 U.S. at 15, 116 S.Ct. 1923. Recognizing that the justifications for the psychotherapist-patient privilege applied with "equal force" to treatment by licensed social workers, the Supreme Court extended the privilege to cover "confidential communications made to licensed social workers in the course of psychotherapy." Id. Although the Supreme Court declined to define the parameters of the psychotherapist-patient privilege any further, it rejected the notion that the privilege was subject to a balancing test. Id. at 17, 116 S.Ct. 1923. In the Court's view, "[m]aking the promise of confidentiality contingent upon a trial judge's later evaluation of the relative importance of the patient's interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege." Id. In a footnote at the end of Jaffee, however, the Supreme Court recognized that there would be circumstances in which the privilege must yield, giving as an example a situation where "a serious threat of harm to the patient or to others can be averted only by means of a disclosure by the therapist." Id. at 18, 116 S.Ct. 1923 n. 19.

Blue's motion for a subpoena and the alleged victims' assertion of the psychotherapist-patient privilege raise two main issues: (1) whether the records Blue seeks fall within the privilege; and (2) whether the privilege trumps Blue's request for the records. As to the first issue, a party invoking the psychotherapist-patient privilege must show that her communications were made (1) confidentially; (2) to a licensed psychotherapist; and (3) during the course of diagnosis or treatment. United States v. Wynn, 827 F.3d 778, 787 (8th Cir. 2016) ; United States v. Ghane, 673 F.3d 771, 783 (8th Cir. 2012). Analyzing whether the records Blue seeks meet this test is difficult because this Court does not have the records and the parties have provided limited information about them. Nevertheless, this Court has enough information to make some preliminary observations.

To begin with, there is no evidence that the DSS records Blue requests for CB, WWK, and AM fall within the psychotherapist-patient privilege. DSS records for minor children usually consist of notes or reports by case workers concerning the child's background and current situation. Although DSS. records might record that a child is seeing a counselor or therapist and might even contain some information concerning the treatment, the DSS caseworker is not the person providing the mental health treatment. Absent any information that the DSS caseworkers here are licensed psychotherapists who were treating the alleged victims, the alleged victims' DSS records are not protected by the psychotherapist-patient privilege. Next, nothing indicates that WWK's records from the Crow Creek Middle School in 2012 contain confidential communications WWK made to a licensed psychotherapist during the course of treatment or diagnosis. The information Blue seeks from the Crow Creek Middle School concerns a report that WWK had sexual contact with an older boy, which is of dubious relevance at best, but not likely protected by the privilege here if the report was made to a teacher or school administrator. Finally, AM's records from Child Protection Services and Child's Voice in Sioux Falls do not appear to fall within the psychotherapist-patient privilege. Records from Child Protective Services would be similar to records from DSS; they would contain the child's biographical information and any allegations and investigations of abuse rather than confidential communications the child made during the course of treatment. The records Blue seeks from Child's Voice concern an exam AM had there in April 2016. Although Child's Voice may provide treatment or a diagnosis in some instances, Child's Voice typically conducts forensic evaluations and interviews of children believed to have been sexually abused as a part of investigating and documenting evidence. The government and AM have not presented any evidence that AM's exam at Child's Voice involved confidential communications AM made to a licensed psychotherapist during the course of treatment or diagnosis.

By contrast, CB's records from Capital Area Counseling and WWK's treatment records from St. Joseph's Indian School (where she saw a psychiatrist), Chamberlain Academy, Our Home, the New Beginnings Center, and Abbot House could fall within the psychotherapist-patient privilege. Relying on Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), Blue argues that his request for the records trumps the privilege because the records are "material and necessary to assure him his Sixth Amendment right to confront and cross-exam his accusers." Doc. 40 at 2. The issue in Ritchie was whether a defendant charged with molesting his daughter was entitled to pretrial discovery of her records from a state protective service agency. Id. at 42–43, 107 S.Ct. 989. The records were subject to qualified confidentiality under state law. Id. at 43, 107 S.Ct. 989. The state's highest court held that the defendant was entitled to the records under the Sixth Amendment's Confrontation and Compulsory Process Clauses. Id. at 51, 107 S.Ct. 989. A plurality of the Supreme Court rejected such an application of the Confrontation Clause, concluding that the Clause was not "a constitutionally compelled rule of pretrial discovery." Id. at 52, 107 S.Ct. 989 (plurality opinion). Instead, "the right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination." Id. As to the Compulsory Process Clause, a majority of the Supreme Court noted that it had "never squarely held" that the Clause "guarantees the right to discover the identity of witnesses, or to require the government to produce exculpatory evidence." Id. at 56, 107 S.Ct. 989. Because it was "unsettled" whether the Compulsory Process Clause applied to the issue in Ritchie, the Court addressed the defendant's claim under the Fourteenth Amendment's Due Process Clause instead.³ Id. Due process, the Supreme Court explained, requires the government to disclose "evidence in its possession that is both favorable to the accused and material to guilt or punishment." Id. at 57, 107 S.Ct. 989. Although the state argued that its interest in keeping the records confidential should control, the Supreme Court found that this interest did not "necessarily prevent[ ] disclosure in all circumstances." Id. at 57, 107 S.Ct. 989. After all, the state statute making the records confidential contemplated some exceptions, including when a court ordered the agency to produce its records. Id. at 58, 107 S.Ct. 989. The Supreme Court held that the Due Process Clause of the Fourteenth Amendment entitled the defendant to have the trial court review the records in camera to determine whether they contained material, exculpatory evidence. Id. at 57–58, 107 S.Ct. 989.

Ritchie does not conclusively establish that Blue is entitled to the records he seeks. First, it is questionable whether Blue has a constitutional right to the records under Ritchie. Although Blue argues that access to the records is necessary to "assure...