Opinion
CRIMINAL No. 10-2311 LH.
February 14, 2011
SEALED EX PARTE MEMORANDUM OPINION AND ORDER
THIS MATTER comes on for consideration of Defendant's Amended Sealed ex Parte Motion for Appointment of a Medical Expert on Addiction Issues Pursuant to the Criminal Justice Act (Docket No. 50), filed January 26, 2011. The Court, having reviewed the Motion, the record in this matter, and the relevant law, and otherwise being fully advised, finds that the Motion will be taken under advisement.
Defendant moves for the appointment of Dr. Alex Stalcup, MD, as a medical expert on drug addiction and the use of drugs by addicts based on varying degrees of addiction. Defendant contends that this appointment is necessary to enable her to mount a defense that she is a heavy addict and the amount of drugs she is charged with possessing is not sufficient to prove intent to sell. She requests the Court to authorized compensation for Dr. Stalcup at the rate of $200 an hour for an initial period of 75 hours, plus reasonable travel expenses for trial testimony.
In her Amended Motion Defendant refers to the amount of methamphetamine at issue as approximately 48 grams. The Court notes, however, that Defendant is charged in the Indictment with possession with intent to distribute 50 grams and more of a mixture and substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B).
According to his Curriculum Vitae attached to the Amended Motion, Dr. Stalcup is the Medical Director of New Leaf Treatment Center in Lafayette, California.
Pursuant to the Criminal Justice Act,
[c]ounsel for a person who is financially unable to obtain . . . expert . . . services necessary for adequate representation may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court . . . shall authorize counsel to obtain the services.18 U.S.C. § 3006(e)(1) (emphasis added). While it is clear that Defendant Griego is financially unable to obtain the requested expert services, there is a question as to whether such services are "necessary."
See CJA 20 Appointment and Authority to Pay Court Appointed Counsel (Docket No. 6), filed July 15, 2010.
"The court need not appoint an expert unless it is convinced that such services are necessary to an adequate defense," United States v. Greschner, 802 F.2d 373, 376 (10th Cir. 1986), and the Defendant bears the burden of demonstrating such necessity "with particularity," Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002). Additionally, at least five circuits evaluate requests for expert assistance on some standard of "reasonableness," Greschner, 802 F.2d at 377 n. 3, which can require that the defense attorney make "a timely request in circumstances in which a reasonable attorney would engage such services for a client having the independent financial means to pay for them," id. (quoting parenthetically United States v. Bass, 477 F.2d 723, 725 (9th Cir. 1973)). Furthermore, if the cost of an expert exceeds $1,600, not taking into account actual expenses, such payment must be "certified by the court . . . as necessary to provide fair compensation for services of an unusual character or duration. . . ." 18 U.S.C. § 3006A(e)(3).
In addition to Bass, the Greschner court cited United States v. Schultz, 431 F.2d 907, 911 (8th Cir. 1970), United States v. Alden, 767 F.2d 314, 318 (7th Cir. 1984), United States v. Durant, 545 F.2d 823, 827 (2d Cir. 1976), and United States v. Chavis, 476 F.2d 1137, 1143 (D.C. Cir. 1973).
The Seventh Circuit has held that "as a prerequisite to determining whether the appointment of an expert is necessary under 18 U.S.C. § 3006A(e), defense counsel has the obligation to make a `timely' request." United States v. Davis, 77 F. App'x 902, 906 (2003) (internal quotation marks omitted) (quoting United States v. Cravens, 275 F.3d 637, 639 (7th Cir. 2001)). It appears that Defendant's Motion is not timely, as the deadline set within which to file motions was October 14, 2010, (Order (Docket No. 25), filed Oct. 15, 2010), and defense counsel has not offered any basis for a finding of excusable neglect, see id.
Additionally, and even more importantly, the Court cannot find that Defendant's Motion is reasonable. She requests compensation for an initial period of 75 hours, which would result in fees of at least $15,000, for an expert from California. Defendant offers no explanation why Dr. Stalcup's services would require so many hours, nor does she indicate whether efforts have been made to secure a comparable expert witness, closer to the trial venue, and at a lower cost. Defendant also has made no showing by which the Court could certify that the requested services are "of an unusual character or duration," justifying costs in excess of $1,600, as required by 18 U.S.C. § 3006A(e)(3). The Court certainly must question whether "the motion is made `in circumstances in which a reasonable attorney would engage such services for a client having independent financial means to pay for them.'" Id. (quoting Cravens, 275 F.3d at 639).
While a court generally "should not decide an application without conducting the ex parte proceeding required by statute, . . . [it] may deny an application without an ex parte proceeding when the application fails to include `a specific statement of why the services are necessary.'" United States v. Zugg, No. 98-40084-01-SAC, 1998 WL 1054228 at *2 (D. Kans. Dec. 17, 1998) (quoting United States v. Goodwin, 770 F.2d 631,634 (7th Cir. 1985)); see also United States v. Hodges, No. 09-40077-01-RDR, 2010 WL 3951957 at *1 (D. Kans., Oct. 8, 2010). The Tenth Circuit "has repeatedly emphasized that defendants must provide the district court with explicit detail showing why the requested services are `necessary' to an adequate defense and what the defendant expected to find by using the services." Id. (quoting United States v. Gonzales, 150 F.3d 1246, 1251 n. 4 (10th Cir. 1998)). "This exception serves to avoid delay and the waste of judicial resources caused by meritless applications and to ensure the court is not surprised but prepared to rule immediately upon the application at any ex parte proceeding." Id. (citing Goodwin, 770 F.2d at 634). Thus, "the court is not obligated to hold a hearing if the request does not raise at least a colorable claim of a right to the requested services." United States v. Barney, 55 F. Supp. 2d 1310, 1311 (D. Utah 1999) (citing Lawson v. Dixon, 3 F.3d 743 (4th Cir. 1993)); see also Davis, 77 F. App'x at 906-07 (affirming denial of motion requesting up to $15,000 for out-of-state expert to perform voice analysis of government's tapes of wire-tapped phone conversations, as untimely and unreasonable).
In conclusion, although the Court could simply deny the Amended Motion, it will afford Defendant the opportunity to file a supplemental proffer if her counsel reasonably believes that an adequate showing can be made under the criteria set forth above. Alternatively, if Defendant wishes, she may file another motion pursuant to 18 U.S.C. § 3006A(e)(1), requesting appointment of a different medical expert on addiction issues. Such supplemental proffer or motion shall be filed on or before February 25, 2011.
WHEREFORE,
IT IS HEREBY ORDERED that Defendant's Amended Sealed ex Parte Motion for Appointment of a Medical Expert on Addiction Issues Pursuant to the Criminal Justice Act (Docket No. 50), filed January 26, 2011, is TAKEN UNDER ADVISEMENT.