Opinion
Case No.: 12-cr-480 YGR
01-23-2015
UNITED STATES OF AMERICA, Plaintiff, v. BURTON O. BENSON, Defendant.
THIRD ORDER RE: MOTIONS RELATED TO PROCEDURES IN CONNECTION WITH COMPETENCY HEARING OF BURTON ORVILLE BENSON
On June 25, 2014, under 18 U.S.C. §§ 4241(b), 4247(b) and (c), this Court ordered that defendant Burton Benson undergo a neuropsychological examination to determine his competence to proceed to trial or enter a guilty plea. (Dkt. No. 169.) The Court appointed Dr. Abraham Nievod to examine Benson. (Dkt. No. 175.) Dr. Nievod examined Benson and provided a report to the Court on November 12, 2014. The Court has set an evidentiary hearing regarding Benson's competency on February 6, 2015, at which Dr. Nievod will testify.
The United States has moved to: (1) Compel Testimony and Production of Documents Relevant to Benson's Competency to Assist His Attorney (Dkt. No. 223); and (2) for an Order Permitting Presence of Government Expert, Dr. Jennifer Kirkland, Pursuant to Rule 615(c) of the Federal Rules of Evidence. Defendant Burton O. Benson has filed: (1) Motions Regarding Competency Hearing Procedure (Dkt. No. 229); and (2) a Motion for Expert Report (Dkt. No. 235).
Having considered the parties' written and oral arguments, as well as the relevant authorities, and for the reasons set forth herein, the Court rules on the motions as set forth herein:
I. MOTION OF THE UNITED STATES TO COMPEL TESTIMONY AND DOCUMENTS
The United States has moved to compel the testimony of: (1) Dr. Nievod, (2) Dr. Serggio Carlo Lanata, M.D., of the Neurology Department, Memory and Aging Center, at the University of California, San Francisco; (3) UCSF itself, and (4) Dr. Leonard M. Saputo, M.D., Benson's primary care physician, at the competency hearing set for February 6, 2014, as well as an order compelling the production of documents from Drs. Lanata and Saputo two weeks in advance of the February 6, 2014 hearing. (Dkt. No. 223.) The United States seeks Dr. Saputo's records related to Benson's mental health and mental competency, and to the basis for referring defendant to the UCSF Memory and Aging Center. The records sought from Dr. Lanata are limited in time to 2014, since the Report indicates Benson first visited Dr. Lanata on August 28, 2014.
The motion is GRANTED. The evidence relevant to the determination here is not limited to the report of the Court-appointed expert. The medical records and testimony may include evidence relevant to the Court's determination. See also Buchanan v. Kentucky, 483 U.S. 402 (1987) (prosecution must be given fair opportunity to rebut evidence of defendant's mental condition).
The Court agrees with the Government that there is no privilege applicable to Benson's communications with Drs. Nievod, Lanata, or Saputo. Jaffee v. Redmond, 518 U.S. 1, 15 (1996) (recognizing a psychotherapist-patient testimonial privilege under Rule 501 of the Federal Rules of Evidence limited to confidential communications in the course of diagnosis or treatment by the psychotherapist); see also United States v. Romo, 413 F.3d 1044, 1047 (9th Cir. 2005). And, indeed, the defense agrees that records held by Drs. Lanata, Saputo, and Nievod are not privileged under Jaffe v. Redmond, 518 U.S. 1.
The Court finds the defense's objections based upon confidentiality of the medical records to be without merit. To the extent that Benson had any valid objections based upon a right of privacy in his medical records, such objections have been waived by Benson by putting his mental condition at issue in these proceedings. See Maynard v. City of San Jose, 37 F.3d 1396, 1402 (9th Cir. 1994) (finding that Maynard waived any privilege over his psychological records but that the district court did not abuse its discretion by excluding records that were almost ten years old).
The Supreme Court has declined to recognize a blanket constitutional right to privacy in medical records, and the Ninth Circuit cases addressing the issue have made clear that, to the extent such a privacy interest exists, it is limited and must be weighed against the government's interest in obtaining the private information. Seaton v. Mayberg, 610 F.3d 530, 538-39 (9th Cir. 2010) (citing cases).
The defense also argues that the additional medical records should be excluded because they implicate Benson's Fifth Amendment rights. See United States v. Hubbell, 530 U.S. 27 (2000). To the extent that additional documents are relevant to Benson's competency, the defense argues that the Court must take steps to limit any "derivative use" by the government in any subsequent proceedings, including an order that the government proceed in the competency hearing with a "taint team" of prosecutors who will not be involved in any aspect of prosecuting this case in subsequent hearings or at trial so as to ensure that the protection afforded Benson in connection with this compelled disclosure is co-extensive with his Fifth Amendment rights.
With respect to the immunity and taint team issues, the Court agrees that the Government's presentation and evidence in other aspects of this case must be wholly independent of any compelled statements of the defendant in connection with the competency proceedings. See Kastigar v. United States, 406 U.S. 441, 445 (1972) (the Fifth Amendment privilege against self-incrimination "protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. This Court has been zealous to safeguard the values which underlie the privilege"); Nguyen v. Garcia, 477 F.3d 716, 726 (9th Cir. 2007), citing Estelle v. Smith, 451 U.S. 454, 462, 465 (1981) (defendant's statements to doctors and testimony at a competency hearing must not later used against the defendant at trial). The Government has conceded, and the Court finds, that certain evidence may be subject to immunity because it is in the nature of compelled testimony of the defendant. The further measure of a taint team is not warranted under the circumstances.
The Government may issue the requested subpoenas. The documents shall be produced to the United States no later than January 27, 2015, and shall be shared with defense counsel simultaneously.
II. MOTION TO ALLOW UNITED STATES' EXPERT TO BE PRESENT
The United States moves for an order permitting its expert, Dr. Jennifer Kirkland, to be present in the courtroom during testimony at the competency hearing set for February 6, 2015. The motion is GRANTED to the extent Dr. Kirkland intends to opine on matters within her competence. The United States has made a sufficient showing that Dr. Kirkland's advice is necessary to prepare their examination. The Ninth Circuit has found that "[i]n many instances, a potential expert witness will be an 'essential party' within the meaning of Rule 615(c)." United States v. Seschillie, 310 F.3d 1208, 1213 (9th Cir. 2002). Indeed, the Advisory Committee Notes to Rule 615 indicate that the exception in Rule 615(c) may include "an expert needed to advise counsel in the management of the litigation." Here, the United States has made the required "fair showing" that Dr. Kirkland's expert advice is necessary for the government to craft meaningful lines of questioning of the other doctors expected to testify at the hearing. Permitting Dr. Kirkland to be in present in the courtroom during that testimony, and any testimony by Benson himself, will allow the process to proceed efficiently.
Dr. Kirkland is not a fact witness, but at most will offer an expert opinion based upon the existence of facts. Where an expert is not expected to testify to facts, but only assumes facts for purposes of rendering opinions, the expert "might as well hear all of the trial testimony so as to be able to base his opinion on more accurate factual assumptions." Id. at 1214 (quoting Opus 3 Ltd. V. Heritage Park, Inc., 91 F.3d 625, 629 (4th Cir. 1996) [affirming district court's decision to exclude where expert witness was also a fact witness]). In short, the concerns underlying the general sequestration rule are outweighed by competing interests of the government in permitting Dr. Kirkland to be present. While Dr. Kirkland has access to Dr. Nievod's report and the underlying documents, the Court anticipates new, additional information to be presented at the hearing by Dr. Nievod as well as Drs. Saputo and Lanata.
Benson argues in opposition that the Court should preclude the Dr. Kirkland from commenting on Dr. Nievod's credibility or offering a conclusion about whether this Court should accept Dr. Nievod's opinions. Such opinions would obviously exceed the scope of proper opinion testimony and, if offered, will not be permitted.
Likewise, any opinion by Dr. Kirkland about legal questions of duty would exceed the scope of proper expert testimony and would not be admissible.
III. MOTION OF DEFENDANT BURTON O. BENSON REGARDING COMPETENCY HEARING PROCEDURES
A. Limits on Lay Witnesses
The Court DENIES the request to limit the number of witnesses to three. The United States has the burden of proof on the competency issue. Given the potentially dispositive nature of the proceedings, the Court will allow the government an opportunity to show through lay witnesses that Dr. Nievod's opinion and the facts on which it is based are inconsistent with Benson's actions. Further, the United States contends that Benson was malingering or manipulating Dr. Nievod. "[L]ay witnesses often have valuable evidence because of the length of time they spend with the defendant." United States v. Mitchell, No. 2:08CR125DAK, 2009 WL 3181938, at *3 (D. Utah Sept. 28, 2009). A trial court may credit "the observations of those witnesses in long-term daily contact with" the defendant, over an expert's limited slice of information based upon a brief examination and review of medical records. United States v. Birdsell, 775 F.2d 645, 651 (5th Cir. 1985).
However, the Court is mindful of the purpose of the hearing and that the competency hearing is not a court trial on the alleged criminal conduct itself. To the extent the lay witness testimony is outside the scope of the matters before the Court, or is unnecessarily cumulative, the Court will exercise appropriate limits on that testimony. Indeed, in response to the Court's probing, the Government has already indicated that it will limit potentially duplicative testimony from the two Orinda Bank witnesses listed in its proffer to one. Also, it has now withdrawn the two Internal Revenue Service agents listed. (See Proffer of Anticipated Testimony, Dkt. No. 244, at J, K, P and Q.)
B. Exclude Bradley Huss
The government has included Bradley Huss, Esq. on its witness list. The United States contends that it is not seeking to elicit any communications between Huss and Benson regarding Benson's personal liability related to the pension plan, whether civil or criminal, but only to elicit testimony regarding counsel Huss provided on behalf of ERG Aerospace and the pension plan in mid-May 2014.
The Court defers ruling on the motion to exclude all testimony of attorney Bradley Huss. Defendant's counsel is directed to submit a declaration of Huss explaining the nature of any attorney-client relationship with Benson individually or in a representative capacity no later than Tuesday, January 27, 2015.
C. Immunity/Taint Team
Defendant's objections based upon Fifth Amendment privilege, immunity of compelled defendant statements, and the requirement of a separate taint team are addressed above in connection with the motion regarding the subpoenas.
IV. MOTION FOR UNITED STATES TO PRODUCE AN EXPERT REPORT
The defense seeks an order requiring the United States to produce an expert report for Dr. Kirkland. (Dkt. No. 235.) The motion is DENIED. However, to the extent that Dr. Kirkland testifies in the competency proceedings and offers expert opinions, at the conclusion of the Government's presentation of evidence, the proceedings will be recessed, for a period of time to be determined, in order to permit the defense to prepare its examination of Dr. Kirkland.
CONCLUSION
In summary, based upon the foregoing, the Court Orders as follows:
(1) the Motion of United States to Compel Testimony and Production of Documents Relevant to Benson's Competency to Assist His Attorney (Dkt. No. 223) is GRANTED. The documents shall be produced to the United States no later than January 26, 2015, and shall be shared with defense counsel forthwith. A separate order on this motion, specifying location for service and directing the doctors' appearance, will issue.
(2) the Motion of United States for an Order Permitting Presence of Government Expert, Dr. Jennifer Kirkland, Pursuant to Rule 615(c) of the Federal Rules of Evidence (Dkt. No. 227) is GRANTED to the extent Dr. Kirkland intends to opine on matters within her competence.
(3) the Motion of Defendant Burton O. Benson Regarding Competency Hearing Procedure (Dkt. No. 229) is DENIED as to the request to limit the number of witnesses and to require a taint team. Depending upon the evidence elicited, immunity based upon Fifth Amendment privilege may attach. Ruling on the exclusion of testimony by Bradley Huss is deferred. Defendant's counsel shall submit a declaration from Huss no later than January 27, 2015.
(4) the Motion of Defendant Burton O. Benson for Expert Report (Dkt. No. 235) is DENIED, but defense counsel will be given a recess in the proceedings in order to prepare its examination of Dr. Kirkland, if necessary.
This Order terminates Dkt. Nos. 223, 227, 229, and 235.
IT IS SO ORDERED. Dated: January 23, 2015
/s/ _________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE