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United States v. Warrior

United States District Court, D. South Dakota, Western Division

October 17, 2018





         An 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.


         Defendant's 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.

         The 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).

         The 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).



         “Where 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 the indictment.


         The 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 69).

         Despite 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).[1] 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.

         The 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 ...

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