United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANT CARLO WILSON'S MOTION
REGARDING THE GOVERNMENT'S NEUROPSYCHOLOGICAL EXAMINATION
A. GOLDSMITH United States District Judge
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.
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.
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.
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).
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).
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.
Limiting the Scope of the Government's Neuropsychological
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.
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. Because an order
restating what the Court has already held is unnecessary,
this request is denied.
Limiting the Use of Evidence Derived from the
Government's Neuropsychological Examination
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 ...