United States v. Mills

          ORDER DENYING DEFENDANT CARLO WILSON'S MOTION REGARDING THE GOVERNMENT'S NEUROPSYCHOLOGICAL EXAMINATION (DKT. 918)

          MARK A. GOLDSMITH United States District Judge

         This matter is before the Court on Defendant Carlo Wilson's motion for an order limiting the scope of the Government's neurological examination of Wilson, limiting the use of any evidence derived from the examination, and permitting audio and video recording of any interview portion of the examination (Dkt. 918). The Government filed a response in opposition to the motion (Dkt. 923), to which Wilson replied (Dkt. 929). For the reasons stated below, the Court denies the motion.

         On December 12, 2018, the Court amended the Group Two Defendants' scheduling order and set a briefing schedule for any motion seeking relief under Atkins v. Virginia, 536 U.S. 304 (2002), and its progeny. See 12/12/2018 Order (Dkt. 652). As part of the new schedule, if one or both of the Group Two Defendants filed a notice of an Atkins claim by March 15, 2019, the Government was directed to file a memorandum by March 27, 2019, which would identify the neuropsychological experts upon whom it intends to rely in opposition to any Atkins motions, include those experts' curricula vitae, and give notice of the type and scope of the proposed neuropsychological testing. See 12/12/2018 Order at 1-2. Defendants were then afforded an opportunity to file objections to the Government's proposed neuropsychological testing by April 3, 2019, and the Government could respond to those objections by April 10, 2019. Id. at 2.

         In accordance with this schedule, after Defendant Carlo Wilson filed a notice of an Atkins claim (Dkt. 814), the Government filed its memorandum (Dkt. 849), setting forth numerous tests that its expert-Dr. Robert L. Denney, Psy.D., ABPP-proposes to conduct. Included among those tests are the Minnesota Multiphasic Personality Inventory-2-RF, the Adaptive Behavior Assessment System-3 Self-Report, and Performance Validity Testing. The Government also requested that Wilson disclose the results and raw data of the testing his experts performed.

         Wilson filed objections to those three tests, as well as opposing the Government's disclosure request (Dkt. 860). Wilson also requested that defense counsel be present during all or some of the Government's neuropsychological testing, and that the Government's testing be video recorded. The Government then responded (Dkt. 870), and Wilson replied (Dkt. 876). At the Court's direction, the Government filed a supplemental brief with the scholarly literature alluded to by Dr. Denney regarding third-party observers and their effects on testing validity (Dkt. 892), to which Wilson replied (Dkt. 908).

         On May 6, 2019, the Court denied the Government's disclosure request, overruled Wilson's testing objections, and denied Wilson's requests. See generally United States v. Mills, No. 16-cr-20460, 2019 WL 1987315 (E.D. Mich. May 6, 2019).

         Wilson is now requesting an order that (i) limits the scope of the Government's neuropsychological examination to determining whether Wilson has an intellectual disability only, (ii) limits the use of any evidence derived from the Government's examination to the Atkins hearing only; and (iii) permits audio and video recording of any interview portion of the Government's examination. The Court will address and reject each issue in turn.

         A. Limiting the Scope of the Government's Neuropsychological Examination

         First, Wilson requests an order limiting the scope of the Government's neurological examination “to the question of whether Mr. Wilson is a person with [an intellectual disability].” Def. Mot. at PageID.8752. Wilson intimates that the Government has virtually unfettered access to Wilson, and that an order restricting that access is necessary for Wilson to “protect[] his rights before they are violated.” Id. The Court disagrees.

         In its May 6, 2019 order, the Court held that, by filing his Atkins notice, Wilson made a limited waiver of his Fifth Amendment rights that permits the Government to conduct a neuropsychological examination of Wilson to specifically rebut his intellectual disability claim. Wilson, 2019 WL 1987315, at *4-5 (citing United States v. Moore, No. 07-161, 2008 WL 1944810, at *3 (E.D. Ark. May 2, 2008); United States v. Johnson, 362 F.Supp.2d 1043, 1088 (N.D. Iowa 2005); United States v. Sampson, 335 F.Supp.2d 166, 247 (D. Mass. 2004)). The Court further held that if “any interview or examination poses a risk to Wilson's Fifth Amendment rights beyond the purposes of rebutting his intellectual disability claim, this can be easily addressed through post-examination motions.” Id. (citing United States v. Wilson, 920 F.Supp.2d 287, 303-304 (E.D.N.Y. 2012)) (emphasis added). Thus, the Court already addressed the proper scope of the Government's neuropsychological examination-for the purpose of rebutting Wilson's intellectual disability claim-and that any questioning or testing allegedly exceeding this scope would be addressed in post-examination motions.^[1] Because an order restating what the Court has already held is unnecessary, this request is denied.

         B. Limiting the Use of Evidence Derived from the Government's Neuropsychological Examination

         Second, Wilson argues that neither the information derived from the Government's neuropsychological examination nor the fruits of such information may be used beyond the Atkins hearing itself. Def. Mot. at PageID.8753; see also id. at PageID.8756 (“[S]tatements made by a defendant in the course of a government Atkins evaluation cannot be used against him at trial[.]”). Accordingly, Wilson requests an order similar to the one issued in United States v. Sablan, No. 1:08-cr-259 (E.D. Cal.):

In accordance with Federal Rules of Criminal Procedure, Rule 12.2(c)(4), no statement made by the defendant in the course of the examination, no testimony by the expert of the plaintiff based on such statement, and no other fruits of such statement may be admitted into evidence against the defendant in a criminal proceeding, except on the issue of the mental condition of the defendant if counsel for the defendant has introduced evidence of ...