United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, CHIEF JUDGE
indictment charges defendant William Warrior with failing to
register as a sex offender. (Docket 1). Now pending before
the court is defendant's motion to dismiss the indictment
based on prosecutorial misconduct. (Docket 75). The
government resists defendant's motion and defendant filed
a reply. (Dockets 91 & 92). As explained below, the court
denies defendant's motion to dismiss the indictment.
motion stems from a government motion in limine
seeking to exclude the expert testimony of Dr. Dewey Ertz.
(Docket 44). Defendant proposes Dr. Ertz testify to the
results of his “cognitive functioning examination of
Mr. Warrior[.]” (Docket 31 at p. 1). Defendant argues
Dr. Ertz's testimony is intended to “assist the
jury in determining . . . whether Mr. Warrior had the
requisite capacity to understand his reporting requirements
and retain this information.” Id. at p. 3. The
government challenged Dr. Ertz's proposed testimony as
“attempting to place the defendant's competency,
mental diseases or defects, and other mental deficiencies
into question, in contravention to . . . caselaw[.]”
(Docket 65 at p. 3). In a previous hearing, the court
emphasized the defense was not seeking to raise the
defendant's competency as an issue, but was instead
“target[ing] the ‘knowledge' element in the
alleged offense[.]” (Docket 67 at p. 5). The court
proceeded to order defendant be evaluated by a mental health
professional for the sole purpose of allowing the government
to “respond to the evaluations of the defendant
conducted by Dr. Ertz.” Id.
government selected Dr. Kari Scovel, a licensed psychologist,
to conduct the examination. (Docket 68). The government filed
Dr. Scovel's evaluation with the court. (Docket 70). As a
part of her evaluation, Dr. Scovel administered a
“McGarry Competency Psychological Assessment” to
defendant. Id. at pp. 13-20. Defendant argues this
portion of Dr. Scovel's evaluation constitutes a
competency evaluation at the government's direction.
(Docket 75 at pp. 4-5). In defendant's view, the
government expressly violated the court's order that Dr.
Scovel's examination be limited to responding to Dr.
Ertz's evaluation. Id. at p. 5. Defendant
contends Dr. Scovel's evaluation impermissibly
“obtained privileged, highly sensitive
information” constituting a “road map to the
defense case.” Id. at p. 7. Defendant argues
he was substantially prejudiced by Dr. Scovel's report.
(Docket 92 at pp. 6-7).
government denies directing Dr. Scovel to conduct a
competency evaluation. (Docket 91 at p. 8). The government
argues the McGarry assessment was part of a “complete
neuro-psychological examination” necessary, in Dr.
Scovel's professional judgment, to respond to Dr.
Ertz's evaluation. Id. at pp. 8-9. In Dr.
Scovel's view, the McGarry assessment was used “to
assess the defendant's full mental status and capacity,
” not his competency to stand trial. Id. at p.
10. Defendant asserts the government's explanation of Dr.
Scovel's use of the McGarry assessment is “a
pretextual argument offered by the government to explain its
mis-conduct.” (Docket 92 at p. 5). The government
denies any misconduct, but offers to not introduce evidence
obtained from the McGarry assessment if the court deems it
necessary. (Docket 91 at p. 12).
STANDARD OF REVIEW
a defendant alleges prosecutorial misconduct, dismissal of
the indictment ‘is proper only when the defendant
demonstrates flagrant misconduct and substantial
prejudice.' ” United States v. Darden, 688
F.3d 382, 387 (8th Cir. 2012) (citing United States v.
Wadlington, 233 F.3d 1067, 1074 (8th Cir. 2000)).
“[T]he drastic step of dismissing an indictment is a
disfavored remedy . . . .” United States v.
Manthei, 979 F.2d 124, 126 (8th Cir. 1992) (citing
United States v. Jacobs, 855 F.2d 652, 655 (9th Cir.
1988)). “When a court sanctions the government in a
criminal case for its failure to obey court orders, it must
use the least severe sanction which will adequately punish
the government and secure future compliance.”
United States v. DeCoteau, 186 F.3d 1008, 1010 (8th
Cir. 1999) (citing United States v. Hastings, 126
F.3d 310, 317 (4th Cir. 1997)). With these legal principles
in mind, the court turns to defendant's motion to dismiss
court made it clear to the government at the November 20,
2017, pretrial conference that defendant's competency was
not at issue. (Docket 80 at p. 25). In the order authorizing
a second mental evaluation of defendant, the court ordered
that the sole purpose of the evaluation would be to allow the
government to respond to Dr. Ertz's evaluation. (Docket
67 at p. 5). The court repeated this limitation in the order
setting a deadline for Dr. Scovel's examination. (Docket
these numerous express admonitions to the government, Dr.
Scovel appears to have conducted a competency evaluation of
the defendant. Her report indicates she conducted a McGarry
competency assessment of the defendant. (Docket 70 at p. 13).
This test, also known as the Competency Assessment
Instrument, was developed by Dr. A. Louis McGarry, a
psychiatrist at Harvard Medical School, specifically for the
purpose of assessing the competence of defendants to stand
trial. See Ronald Roesch et al., “Defining and
Assessing Competency to Stand Trial, ” The Handbook
of Forensic Psychology 327 (Allen Hess &
Irving Weiner eds., 2d ed. 1999). Dr. Scovel's report
declares it is her “opinion with reasonable and
psychological certainty, that Mr. Warrior met the South
Dakota Codified Law criteria for competency to stand trial at
the time I interviewed him.” (Docket 70 at pp. 28-29).
The report supports this opinion with reference to the
results of the McGarry assessment. Id. at p. 29. The
court finds it difficult to understand how Dr. Scovel's
use of the McGarry assessment does not constitute a
competency evaluation when she expressly used that assessment
to provide an opinion as to the defendant's competency.
government argues Dr. Scovel used the McGarry assessment as
part of a “full-scale neuro-psychological
examination” necessary in order to respond to Dr.
Ertz's reports, which, in the government's view, also
used language and terms common in competency evaluations.
(Docket 91 at p. 10). This argument strikes the court as a
restatement of the government's previous contention that
the theory of defense at issue is a disguised diminished
capacity defense. The court did not read either of Dr.
Ertz's reports as attempts to evaluate defendant's
competency to stand trial; rather, they discuss his
intellectual capacity. At the pretrial conference, the court
stated, “It's not a competency issue. . . . If I do
order an evaluation . . . it will be focused on determining
the response to the ...