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United States v. Emery

United States District Court, E.D. Michigan, Southern Division

December 17, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
SONJA EMERY, Defendant.

          OPINION AND ORDER DENYING DEFENDANT'S MOTION AND SUPPLEMENTAL MOTION TO APPOINT INDEPENDENT FORENSIC PSYCHIATRIST (ECF NOS. 78, 92)

          LINDA V. PARKER U.S. DISTRICT JUDGE.

         Defendant Sonja Emery stands charged with four counts of mail fraud, in violation of 18 U.S.C. § 1341; two counts of wire fraud, in violation of 18 U.S.C. § 1343; one count of corrupt endeavor to obstruct the Internal Revenue Service, in violation of 26 U.S.C. § 7212(a); and four counts of tax evasion, in violation of 26 U.S.C. § 7201.[1] Before the Court are Defendant's motion and supplemental motion to appoint an independent forensic psychiatrist. (ECF Nos. 78, 92.) For the reasons that follow, the Court denies Defendant's motions.

         BACKGROUND

         On February 4, 2019, Defendant moved the Court for a competency evaluation pursuant to 18 U.S.C. § 4241. (ECF No. 50.) On March 25, Defendant and the United States of America (“Government”) stipulated to and the Court issued an order for an evaluation by Dr. Mikel Matto, Assistant Clinical Professor for the University of California San Francisco (“UCSF”) School of Medicine and Veteran Affairs Site Director at the UCSF Psychiatry Residency Training Program. (ECF No. 80-6 at Pg. ID 602.) The Government advised Dr. Matto that it would be financially responsible for the cost of the evaluation. (ECF No. 80-7 at Pg. ID 606.)

         The parties state that, on or around March 28, the Government and Defendant's former counsel became aware that Defendant previously received medical attention within the UCSF network and, in order to “address any issue of inadvertent bias, ” (ECF No. 80-6 at Pg. ID 603), agreed to redact the names of the UCSF hospitals where Defendant was treated, as well as the names of the UCSF medical providers that provided the treatment. Dr. Matto also agreed to this course of action, stating in relevant part:

“I have worked on and testified in cases in the past in which other physicians affiliated with UCSF have been involved. This is not unusual, as UCSF is the predominate tertiary care mental health provider for the San Francisco Bay Area. . . . I have not had any cases in which redaction of names was deemed necessary, but in an abundance of caution, this seems sensible and I can work with this.”

(Id. at Pg. ID 602.)

         There is no dispute that the Government obtained Defendant's relevant medical records, forwarded them to defense counsel for review, and subsequently forwarded them to Dr. Matto in mid-May. (ECF No. 80 at Pg. ID 480.) On July 1, Dr. Matto conducted a three-hour in-person evaluation. (ECF No. 80-8 at Pg. ID 609.) Dr. Matto ultimately found Defendant competent to stand trial and, on or around August 7, submitted his report to the Court. (ECF No. 80-8.)

         One week later, Defendant and her former counsel moved the Court to enter an order allowing for withdrawal of counsel. (ECF No. 68 at Pg. ID 406.) The Court granted the motion and after appointment of new counsel, Defendant filed the present motion on October 9, stating that Defendant “did not agree to [the] waiver of conflict” concerning Dr. Matto and requesting that the Court enter an order appointing another psychiatrist to evaluate Defendant. (ECF No. 78 at Pg. ID 443.)

         On October 25, the Court held a hearing with respect to the motion. During the hearing, Defendant requested time to obtain a “portal history” document, which identifies all persons who have accessed Defendant's electronic medical records. (Tr. at *37-38.) The Court granted the request and asked for a submission by no later than November 20, the day of the competency hearing. (Tr. at *39-40.)

         At the beginning of the November 20 competency hearing, the Court inquired about the “portal history” document. Defense counsel did not produce the document, explaining that he received the wrong documents from the hospital. The Court extended the deadline, requesting an update by November 22 regarding when defense counsel expects to produce the “portal history” document.

         On November 21, Defendant filed a supplemental motion, which includes arguments similar to those included in the original motion. (ECF No. 92.) Defense counsel also forwarded an email communication detailing the additional steps taken to obtain the “portal history” document, but noted that there is no definitive date by which he expects to receive the document.

         ANALYSIS

         Defendant proffers two arguments in support of her motion to appoint an independent forensic psychiatrist. First, Defendant expresses concern “about a [] ‘implicit' or ‘unconscious' bias that exists in favor of an entity ‘paying' for the cost of services.” (ECF No. 78 at Pg. ID 442.) Defendant contends that “the Court, a neutral body, should compensate the doctor so that ...


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