Honken v. United States of America

Filing 35

ORDER granting 27 Motion for Court Order Regarding Mental Health Evaluation of the Movant. (See order text for specifics) Signed by Chief Judge Linda R Reade on 8/24/11. (ksy)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION

DUSTIN LEE HONKEN,
Movant,

No. C10-3074-LRR
No. CR01-3047-LRR

vs.
UNITED STATES OF AMERICA.

ORDER

____________________________
This matter appears before the court on the government’s motion for a court order
regarding its mental health evaluation of the movant (docket no. 27). The government
filed such motion on July 18, 2011. The movant filed a resistance (docket no. 28) on July
19, 2011.
In the instant motion, the government seeks an order that (1) directs the movant to
submit to the evaluation without the presence of counsel and (2) directs the movant to
submit to the evaluation without it being recorded. The court concludes that there is no
need to have counsel present during the movant’s mental health evaluation. Neither the
rights guaranteed by the Fifth Amendment nor the rights guaranteed by the Sixth
Amendment require counsel’s presence. See generally Johnson v. United States, 2010
U.S. Dist. LEXIS 25347, at *36-42 (N.D. Iowa 2010) (discussing Fifth Amendment and
Sixth Amendment). In addition, the court concludes that it is not necessary to produce a
video or audio recording of the evaluation because the movant cites no authority that stands
for such proposition and the government’s expert has expressed a desire to not have the
evaluation recorded. Accordingly, the court shall grant the government’s motion for a
court order regarding its mental health evaluation of the movant.

IT IS THEREFORE ORDERED:
1) The government’s

motion for a court order regarding its mental health

evaluation of the movant (docket no. 27) is granted. The movant is directed to
submit to the evaluation without it being recorded, and the movant is directed to
submit to the evaluation without the presence of counsel. As agreed to by the
government, the movant may consult with counsel before and after the evaluation.
Counsel, however, will not be permitted in the room during the evaluation. Apart
from the government’s expert and any assistant(s) of such expert, no other person
may be present during the evaluation.1
2) The evaluation is limited to the issues that are raised in ground nine of the
movant’s motion to vacate, set aside or correct sentence. The results of the
evaluation are not to be disclosed to anyone other than the parties, the parties’
attorneys and the parties’ expert witnesses. In the event that disclosure to any other
person is necessary, the party seeking such disclosure must obtain permission from
the court.
DATED this 24th day of August, 2011.

1

The court’s restrictions on who may be in the room does not pertain to personnel
of the Bureau of Prisons. Nothing in the instant order is intended to interfere with the
regular policies and practices of the Bureau of Prisons.
2