United States District Court, D. Nevada
ORDER (DOCKET NO. 68)
J. KOPPE United States Magistrate Judge.
before the Court is Defendant Mirko Zeppellini's motion
to allow defense expert to analyze him. Docket No. 68. The
Court has considered Defendant's motion, the United
States' response, and Defendant's reply. Docket Nos.
68, 70, 71.
February 17, 2017, due to the Court's observations of
Defendant as well as representations made, the Court ordered
a mental competency evaluation of Defendant pursuant to 18
U.S.C. §§ 4241 and 4242. Docket No. 23. On May 8,
2017, the Court held a status hearing regarding the forensic
evaluation of Defendant. Docket No. 43. At that time, based
on the findings in the evaluation, the Court ordered the
parties to file a stipulation pursuant to 18 U.S.C. §
4241(d) for the placement of Defendant in a facility for the
purpose of determining if he will attain competency.
Id. On May 12, 2017, the Court granted the
parties' stipulation for the placement of Defendant in a
facility to determine whether he will attain competency.
Docket No. 46.
November 27, 2017, the Court held a status hearing with the
parties. Docket No. 64. At that time, the parties were in
receipt of the unofficial copy of Defendant's forensic
psychological report. Id. On November 29, 2017, the
official forensic psychological report was received by the
Court. Docket Nos. 65, 66. As a result, the Court ordered the
United States to file its Sell brief no later than
December 20, 2017. Docket No. 67. The Court also ordered a
response no later than January 3, 2018, and any reply no
later than January 10, 2018. Id.
December 6, 2017, Defendant filed the instant motion. Docket
No. 68. Defendant asks the Court to allow his expert, Dr.
Norman Roitman, to review his records, evaluate him, and
provide an opinion on the Sell factors. Id.
at 3. Defense counsel has contacted the Bureau of Prisons
(BOP) with his request for a video teleconferencing interview
between Defendant and Dr. Roitman, but was told that he
needed an order from the Court. Id. at 4. Further,
Defendant submits, Dr. Roitman needs certain documents in
order to complete his assessment. Id. Finally,
Defendant submits that Dr. Roitman needs the BOP facility to
provide Defendant a questionnaire to assist with his opinion.
Id.; see also Exhibit A.
response, the United States submits that it does not oppose
an independent examination of Defendant by a “qualified
consultant, ” or a board-certified forensic
psychiatrist. Docket No. 70 at 2. The United States further
submits that, although Dr. Roitman is a board-certified
forensic psychiatrist, he “has not been qualified as an
expert in this matter for any purpose.” Id. at
3. Additionally, the United States opposes Defendant's
request for documents as superfluous as all discoverable
material “will be disclosed” to Defendant.
Id. Further, the United States opposes
Defendant's request that BOP personnel provide Dr.
Roitman's questionnaire to Defendant so that he can
complete it. Id. The United States submits that
doing so would constitute forcing BOP staff to administer the
questionnaire on behalf of Dr. Roitman. Id. at 4.
Finally, the United States opposes Defendant's request
that the BOP allow a video teleconference interview with Dr.
Roitman. Id. at 5. The United States submits that
such teleconference would compromise the role in the facility
of one of the BOP staff members who would have to be present
during the teleconference. Id. at 6.
reply, Defendant submits that Dr. Roitman is a
board-certified psychiatrist and has testified as an expert
in this Court without objection by the United States. Docket
No. 71 at 2-3. Further, Defendant submits that, in order to
prepare his response brief, he needs the documents he
requested. Id. at 3. Defendant additionally submits
that the video teleconferencing will save costs and allow Dr.
Roitman's interview with Defendant to occur in a quicker
manner. Id. at 5-6. Defendant notes that the United
States presented no policies or judgment of the Warden in
support of its argument that the facility cannot comply with
this request, and that the facility told his counsel that it
would permit the teleconference if ordered to do so by the
Court. Id. at 6. Finally, Defendant submits that he
is asking for the facility to hand him the questionnaire, and
return it to counsel once completed, not administer it.
Id. at 5-6.
Court has reviewed Dr. Roitman's qualifications,
including his prior expert qualification and his status as a
board-certified psychiatrist. The Court finds, therefore,
that a hearing under Federal Rule of Evidence 702 is not
necessary to determine that he is a qualified consultant.
Further, the Court has reviewed Dr. Roitman's
questionnaire, and finds nothing objectionable in it. Asking
the facility to provide the questionnaire to Defendant so
that he can self-complete it at his expert's request, and
then returning the completed questionnaire to Defendant's
counsel, does not constitute the facility administering the
IT IS ORDERED that Defendant's motion to allow defense
expert to analyze him, Docket No. 68, is hereby GRANTED.
FURTHER ORDERED that the BOP shall provide Dr. Roitman's
questionnaire, Docket No. 68-1, to Defendant, and return the
completed questionnaire to Defendant's counsel once
Defendant has self-completed it. The BOP does not need to
instruct Defendant to complete the questionnaire.
FURTHER ORDERED that the United States disclose, no later
than December 22, 2017, to the defense all documents the BOP
evaluators used to form their opinions, including but not
limited to all treatment records (MD, nursing, psychologist,
social work, testing, typed evaluations, intakes, discharge
summaries, 30- and 90-day reviews, medical records for any
medical conditions, and prescriptions.
FURTHER ORDERED that the United States disclose to the
defense, no later than December 22, 2017, the BOP's
treatment plan, including the kinds of medications and range
of dosages the BOP intends to prescribe and the clinical
materials that support the BOP's prescription(s).
FURTHER ORDERED that the BOP cooperate with defense counsel
to arrange a video teleconference interview ...