The Court has carefully considered the United States Motion to Enforce Grand Jury Subpoena, Memorandum in Support of the Motion to Enforce Grand Jury Subpoena and the Affidavit of Federal Bureau of Investigation Special Agent Michael Kelly. The Motion seeks to compel the production of documents and testimony described in the Grand Jury's Subpoena to Dr. Epiphanes Balian.
For the following reasons, the court is persuaded that the psychotherapist-patient privilege asserted by Gregory P. Violette must be abrogated because of a crime-fraud exception to the privilege.
The jurisdiction of this Court is founded in Federal Rule of Evidence 104(a). The application of the psychotherapist-patient privilege in Federal grand jury proceedings is grounded in Federal Rule of Evidence 501. See generally, Jaffee v. Richmond, 518 U.S. 1, 116 S.Ct. 1923, 123 L.Ed.2d 337 (1996).
The elements of the federal psychotherapist-patient privilege are:
1. The communications must be confidential,
2. The communications must occur with a licensed psychotherapist,
3. The communications must be made in the course of diagnosis or treatment. See generally, Jaffee v. Richmond, 518 U.S. 1, 116 S.Ct. 1923, 123 L.Ed.2d 337 (1996). 3 Weinstein's Federal Evidence, § 504.
Generally, communications are confidential if made solely between the psychotherapist and the patient, and not disclosed to third persons. 3 Weinstein's Federal Evidence § 504.07. The court finds that the testimony of Dr. Balian before the Grand Jury established that there were no third parties present at the times the communications were made. Therefore, the communications, when made, were confidential.
The Court further finds that both Dr. Balian is a licensed psychotherapist, and that, therefore, Violette's communications were made to a licensed psychotherapist, satisfying the second element of the privilege.
For the reasons set for the below in connection with the applicability of the crime-fraud exception, the Court finds that the third element, that the communications be made in the course of diagnosis and treatment, has not been established.
The crime-fraud exception to the attorney-client privilege is well established. E.g., United States v. Rakes, 136 F.3d 1, 4 (1st Cir. 1998). When the services of an attorney are sought by the client for the purpose of aiding the client in the commission of a crime, the privilege must be abrogated. Id. There is no sound reason to treat the psychotherapist-patient privilege differently when the psychotherapist's services are sought for the purpose of aiding the patient in the commission of a crime. In Re Grand Jury Subpoena (Psychological T. Rec.), 710 F. Supp 999 (D.N.J. 1989); also see, Vanderbilt v. Town of Chilmark, 174 F.R.D. 225, 229 (D.Mass. 1997); Sarko v. Pen-Del Directory Company, 170 F.R.D. 127, 130 (E.D.Pa. 1997)
In order to show that the crime-fraud exception applies, the government must make a prima facie showing that the patient was engaged in criminal or fraudulent conduct when he sought the services of the psychotherapist, that he was planning such conduct when he sought the services, or that he committed a crime or fraud subsequent to receiving the services; and that the psychotherapist's assistance was obtained in furtherance of the criminal or fraudulent activity or was closely related to it. In re Grand Jury Investigation (Schroeder), 842 F.2d 1223, 1226 (11th Cir. 1988). In order to satisfy the "prima facie' requirement, the government's showing must be sufficient for a court to find "that a prudent person [would] have a reasonable basis to suspect the perpetration or attempted perpetration of a crime or fraud, and that the communications were in furtherance thereof." In re Grand Jury Subpoena Duces Decum, 731 F.2d 1032, 1039 (2d Cir. 1984).
The Court is persuaded that the contents of the Affidavit of Federal Bureau of Investigation Special Agent Michael Kelly constitutes a prima facie showing that:
a. Gregory P. Violette made false statements to financial institutions in violation of Title 18 United States Code, Section 1014, for the purpose of obtaining loans from financial institutions and for the purpose of acquiring credit disability insurance in relation to the loans.
b. Gregory P. Violette had communications with Dr. Balian for the alleged purpose of obtaining Dr. Balian's services for the diagnosis and treatment of a mental problem, and
c. Gregory P. Violette provided information, or caused information from Dr. Balian to be provided to insurance companies for the purpose of collecting disability benefits from the insurance companies, and
d. The information received from Dr. Balian by the insurance companies furthered a scheme by Gregory P. Violette to defraud the insurance companies, and
e. The disability benefits that Gregory P. Violette sought to obtain were related to the loans he had obtained from financial institutions in violation of Section 1014, and
f. Gregory P. Violette's efforts to recover money from the insurance companies involved the use of the United States Mails and furthered a scheme to defraud the insurance companies, and
g. The efforts of Gregory P. Violette to obtain money from the insurance companies constituted a violation of Title 18, United States Code, Section 1341, which prohibits mail fraud.
On the basis of the United States' prima facie showing, the Court finds that the psychotherapist-patient privilege between Mr. Violette and Dr. Balian, is completely abrogated by the crime/fraud exception. Although the Court has the discretion to allow the patient, Gregory P. Violette, access to the Agent's Affidavit, the determination of the applicability of the crime/fraud exception should not generally be allowed to turn into a mini trial or to hinder or delay grand jury proceedings. In re Grand Jury Subpoenas, 144 F.3d 653, 662 (10th Cir.) Cert. Denied, 142 L.Ed.2d 334 (1998). "[T]he prima facie foundation may be made by documentary evidence or good faith statements by the prosecutor as to testimony already received by the grand jury." In re Grand Jury Subpoenas, 144 F.3d 653, 662 (10th Cir.) Cert. Denied, 142 L.Ed.2d 334 (1998) (quoting In re Grand Jury Proceedings (Vargas), 723 F.2d 1461, 1467 (10th Cir. 1983). The Court further finds that because the Affidavit of Federal Bureau of Investigation Special Agent Michael Kelly contains substantial grand jury materials and relates to a continuing investigation, it should not be disclosed to Gregory P. Violette.
Accordingly, it is ORDERED that Dr. Balian immediately deliver over to the Grand Jury any and all documents which are the subject of the Subpoena and further that Dr. Balian appear before the Grand Jury and provide answers to all questions relating to the subject matter of the Subpoena.
Dated this 11th day of June, 1999.