Allen v. United States of America

Filing 188

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the United States Motion for Authorization to Conduct Depositions and Independent Examinations and to Require Identification of Hearing Witnesses and Sharing of Deposition Expenses [ECF No. 162 ] is GRANTED, in part, and DENIED, in part. Signed by Honorable E. Richard Webber on 10/7/11. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

BILLIE JEROME ALLEN,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:07CV00027 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on the Motion of the United States, Respondent, for
Authorization to Conduct Depositions and Independent Examinations and to Require
Identification of Hearing Witnesses and Sharing of Deposition Expenses [ECF No. 162].
Movant Bille Allen has filed a Response [ECF No. 166] and Respondent has filed a Reply [ECF
No. 170].
I.

BACKGROUND
In April 1997, Movant Billie Jerome Allen (“Allen”) was indicted for crimes arising

from the March 17, 1997, armed bank robbery of the Lindell Bank and Trust Company in St.
Louis, Missouri. During that robbery, bank security guard Richard Heflin suffered multiple
gunshot wounds, leading to his death. In Count I of the indictment, Allen was charged with
killing Mr. Heflin in the course of committing an armed bank robbery, in violation of 18 U.S.C. §
2113(a), (e), and in Count II, he was charged with using a firearm to commit a crime of violence
resulting in the death of another under circumstances constituting first-degree murder, in
violation of 18 U.S.C. § 924(j)(1). The United States filed a timely notice of intent to seek the
death penalty. A jury found Allen guilty on both Counts. The jury returned a sentence of life

imprisonment on Count I, and a sentence of death on Count II. This Court formally sentenced
Allen on June 4, 1998.
Allen appealed, and extensive appellant litigation followed. See generally United States
v. Allen, 406 F.3d 940, 941-43 (8th Cir. 2005) (en banc) (describing procedural history).
Ultimately, the United States Court of Appeals for the Eighth Circuit affirmed Allen’s sentence,
id. at 942, and the Supreme Court of the United States declined to grant review. See United
States v. Allen, 549 U.S. 1095 (2006) (denying writ of certiorari); United States v. Allen, 549
U.S. 1246 (2007) (denying petition for rehearing).
Allen then challenged his sentence by filing a Motion under 28 U.S.C. § 2255 [ECF No.
60]. In this Motion, Allen alleged that numerous constitutional defects infected his sentence
prior to trial, during trial, and throughout the appellate process. With one exception, this Court
denied Allen’s claims for relief without an evidentiary hearing [ECF No. 147]. The exception
was Ground J, in which Allen alleges he received ineffective assistance of counsel at the penalty
and sentencing phase of his trial because his counsel failed to properly investigate and present
mitigation evidence. The Court ruled that Allen was entitled to an evidentiary hearing on
Ground J. At that hearing, it is expected that Allen will present evidence in support of the
allegations of ineffective assistance of counsel made in Ground J. This hearing is currently
scheduled for November 29, 2011, at 9:00 a.m.
Respondent now moves for authorization to conduct depositions of 12 individuals,
including Allen himself. The United States also requests that Allen -- and not the Department of
Justice -- bear the costs of his counsel’s attendance at these depositions, because Allen’s present
counsel is already court-appointed. Additionally, the United States requests that Allen be

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ordered to disclose by September 30, 2011, the witnesses he will call at his hearing. Finally, the
United States seeks to conduct an independent medical examination of Allen.
II.

DEPOSITIONS
In the pending motion, the United States seeks court authorization to depose 12

individuals in advance of Allen’s § 2255 evidentiary hearing. Rule 6 of the Rules Governing
Section 2255 Proceedings states, in part:
(a) Leave of Court Required. A judge may, for good cause, authorize a party to conduct
discovery under the Federal Rules of Criminal Procedure or Civil Procedure, or in
accordance with the practices and principles of law. If necessary for effective discovery,
the judge must appoint an attorney for a moving party who qualifies to have counsel
appointed under 18 U.S.C. § 3006A.
Thus, under Rule 6(a), either party to a § 2255 motion may conduct discovery upon a showing of
“good cause.” See also Bracy v. Gramley, 520 U.S. 899, 904 (1997) (“A habeas petitioner,
unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary
course.”).
The Rules do not define “good cause,” and the term does not appear to have been defined
by case law. However, one court has stated that a respondent is “entitled to discover any
information tending to undermine” the allegations of a § 2255 movant or § 2254 petitioner. Lott
v. Bradshaw, No. 1:04-cv-822, 2005 WL 3741492 at *6 (N.D. Ohio Mar. 29 2005). In addition,
a court has discretion to determine whether to allow discovery, and what forms of discovery to
allow. See Section 2255 R. 6 advisory committee notes; R. Governing Section 2254 Cases R. 6
advisory committee notes.
To determine whether the United States has shown good cause for the requested
depositions, the Court first must identify the “essential elements” of Allen’s claim. See Bracy,
520 U.S. 899, 904 (1997) (to determine whether a § 2254 petitioner was entitled to discovery

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under Rule 6 for his claim of judicial bias, the Court first had to determine the “essential
elements” of that claim) (quotation omitted). In Ground J of his § 2255 Motion, Allen alleges
that he received ineffective assistance of counsel at the sentencing phase of his trial. To make
this claim, Allen recognizes the familiar test for claims of ineffective assistance of counsel set
forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a litigant must make a
two-part showing to succeed on a claim of ineffective assistance:
First, the defendant must show that counsel's performance was deficient. This requires
showing that counsel made errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This requires showing that
counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.
Id. at 687.
To make this showing, Allen alleges that his trial counsel was defective in investigation
and presentation of mitigation evidence at the sentencing phase of Allen’s criminal trial. Allen
asserts that the source of this deficiency was a misunderstanding regarding the division of duties
between his trial counsel and a retained mitigation expert, thereby causing almost no work
regarding mitigation evidence to be completed until about one month prior to Allen’s trial.
Allen’s counsel immediately retained a replacement expert, but the little time that remained was
insufficient to properly investigate and present mitigation evidence. For instance, Allen assets
that his trial counsel was unable to develop the trust and rapport with witnesses necessary to
discuss sensitive personal topics, and thus failed to uncover extensive evidence of Allen’s
dysfunctional and abusive upbringing. He also asserts that they lacked the time and resources to
properly examine Allen, and thus failed to present evidence of Allen’s numerous psychological
and mental health disorders. Allen alleges these failures prejudiced his penalty phase defense.

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Against these allegations, the United States now seeks to depose 12 individuals. They
are: John Simon, Richard Sindel, Connie Supranowich, David Randell, Juanita Allen, Billy
Wayne Allen,1 Cathy Toliver, Brady Toliver, Claude McLemore, Pablo Stewart, Daniel Martell,
and Movant, Billie Allen. These 12 individuals can be grouped into four distinct categories:
Allen’s trial counsel team; Allen’s family and relatives; Allen’s currently-retained experts; and
Allen himself.
Allen objects to each of these depositions, arguing that the United States should not be
entitled to conduct any depositions because they would be burdensome. In particular, Allen
states that every member of his present § 2255 counsel and at least three of the proposed
deponents live outside of the Eastern District of Missouri, and that without a continuance, it is
unlikely there will be sufficient time to conduct all the requested depositions prior to Allen’s
hearing. As an initial matter, it can hardly be just to bar the United States from all deposition
discovery based on where Allen’s current counsel and experts happen to reside. In addition,
Allen’s counsel appears to assume this Court would not continue Allen’s hearing on the basis of
an authorized, but not completed, deposition. Instead, the Court finds that the “good cause”
standard of Section 2255 Rule 6 is a better basis for determining whether to authorize discovery.
Accordingly, the Court will now consider whether the United States has shown good cause to
depose each of these groups, in turn.
A. Allen’s Trial Counsel
The United States seeks to depose Allen’s trial counsel team: Richard Sindel, John
Simon, Connie Supranowich, and David Randell.

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Billy Wayne Allen is the uncle of Movant Billie Jerome Allen.
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As identified above, to prevail on his claim of ineffective assistance, Allen must prove
that his counsel’s performance was “deficient,” in that it “fell below an objective standard of
reasonableness” accordingly to “prevailing professional norms” after “considering all the
circumstances.” Strickland, 466 U.S. at 687-88. In the context of the penalty phase of a criminal
trial, the Supreme Court has stated that counsel has an “obligation to conduct a thorough
investigation of the defendant’s background.” Williams v. Taylor, 529 U.S. 362, 396 (2000).
One of the two essential elements of Allen’s Ground J allegations is that his trial counsel
was deficient in this obligation. Richard Sindel was appointed as to serve as Allen’s lead
counsel; he retained both mitigation experts, and he presented mitigation evidence at the penalty
phase of Allen’s trial. See Decl. Richard H. Sindel, Esq. [ECF No. 94-12]. John Simon was
appointed as second counsel; he had contact with Allen’s family, including Juanita Allen, and he
conducted mitigation interviews. See Decl. John Williams Simon, Esq. [ECF No. 94-13]. The
actions that Richard Sindel and John Simon did and did not take in investigating and presenting
mitigation evidence are among the most relevant facts of the instant proceeding.
Likewise, Connie Supranowich and David Randell are each a prime source of information
as to whether Allen’s trial counsel was defective. Connie Supranowich (maiden name Caspari)
served as Sindel’s paralegal in his representation of Allen; she had frequent contact with Allen
while he was incarcerated and she conducted some investigation. See Decl. Connie Supranowich
[ECF No. 94-47]. David Randell was the replacement mitigation expert hired by Sindel; he
directed investigation and preparation of the mitigation case, interviewed members of Allen’s
family and observed their family dynamic, and suspected Allen had been subjected to a
dysfunctional abuse household. See Decl. of David M. Randall, Ph.D. [ECF No. 94-26]. Both

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individuals were tasked by Allen’s counsel with mitigation investigation and preparation duties,
and thus became intimately involved with the conduct that Allen challenges here.
Finally, as the parties have already recognized, the Court notes that by alleging ineffective
assistance of counsel Allen has waived attorney-client privilege as to the matters he challenges.
See, e.g., Bittaker v. Woodford, 331 F.3d 715, 716 (9th Cir. 2003).
For these reasons, the United States has shown good cause to depose Richard Sindel,
John Simon, Connie Supranowich, and David Randell. The United States may depose these
individuals, subject to the conditions listed below.
B. Allen’s Family and Friends
The United States seeks to depose members of Allen’s friends and family, specifically
Juanita Allen, Billy Wayne Allen, Cathy Toliver, Brady Toliver, and Claude McLemore.
The central assertion of Allen’s Motion is that his trial counsel failed to discover the long
history of familial abuse and neglect he suffered. Two of the primary sources of information on
this claim are Juanita Allen and Billy Wayne Allen. Juanita Allen, Allen’s mother, states that she
smoked cigarettes and drank alcohol while she was pregnant with Allen, that she regularly beat
Allen, and that Allen’s trial counsel spent little time with her. See Decl. Juanita Petty Allen
[ECF No. 94-30]. Billy Wayne Allen, Allen’s uncle, states that Allen grew up in an abusive
household, that Allen’s mother was a heavy drinker who often threw Billy out of the house, and
that Allen was introduced to crime and drugs by his family. See Decl. Billy Wayne Allen [ECF
No. 94-33].
Other friends and family members also filed declarations that detail the abuse and neglect
Allen suffered. Cathy Toliver, a friend of Allen’s mother, states Allen’s mother neglected and
abused Allen when he was a child, and that she was never contacted by Allen’s trial counsel. See

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Decl. of Cathy Toliver [ECF No. 94-35]. Brady Toliver was friends with Allen until they started
high school. He states that Allen’s mother was always drunk, regularly abused Allen, and
provided Allen no emotional support. He says he was never contacted by Allen’s trial counsel.
See Decl. of Brady Toliver [ECF No. 94-36]. Claude McLemore, Allen’s cousin, states that
Allen grew up without adult supervision and that Allen’s mother drank heavily and often beat
Allen. See Decl of Claude McLemore [ECF No. 94-41]. He also states that prior to testifying at
Allen’s trial, Allen’s counsel had met with him only once and had asked only about Allen’s
positive characteristics. Id.
As identified above, one of Allen’s primary allegations is that his counsel failed to
discover and present this evidence of Allen’s social history. As such, these witnesses provide the
essential facts that underlie Allen’s allegations. In addition, Allen’s present § 2255 counsel has
retained Drs. Pablo Stewart, M.D., and Daniel Martell, Ph.D., to examine Allen and provide their
conclusions and opinions. Each of these experts expressly relied upon the declarations submitted
by Allen’s family and friends in developing their conclusions and opinions. See Decl. of Pablo
Stewart, M.D. ¶ 4 [ECF No. 94-27]; Rpt. of Daniel Martell, Ph.D, p.4 [ECF No. 94-28].
For these reasons, the United States has shown good cause to depose Juanita Allen, Billy
Wayne Allen, Cathy Toliver, Brady Toliver, and Claude McLemore. The United States may
depose these individuals, subject to the conditions set forth below.
C. Experts Retained for § 2255 Hearing
The United States seeks to depose Pablo Stewart and Daniel Martell, experts Allen’s
present § 2255 counsel have retained to conduct evaluations of Allen.
A second major allegation of Allen’s Motion is that his trial counsel failed to uncover
evidence of Allen’s extensive psychological and mental health disorders. In support, Allen

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presents Dr. Pablo Stewart, M.D., a medical doctor, professor of pyschiatry, and practicing
clinical and forensic psychiatrist, who specializes in victims suffering from trauma, substance
abuse and Posttraumatic Stress Disorder (PTSD). See Decl. Pablo Stewart, M.D. ¶ 1 [ECF No.
94-27]. Dr. Stewart evaluated Allen, in part, by conducting a two-day clinic interview of him,
interviewing various members of his family, and reviewing the declarations submitted in support
of his Motion. Id. at ¶¶ 4-6. Among other diagnoses, Dr. Stewart found that Allen has suffered
from PTSD for much of his life, due to the severe physical abuse he endured from his family
members. Id. at ¶¶ 22-28.
The second expert witness Allen expects to call is Dr. Daniel Martell, Ph.D., a forensic
psychologist. See Rpt. by Dr. Daniel Martell, Ph.D., at 1 [ECF No. 1]. Dr. Martell personally
examined and conducted extensive psychological testing on Allen over three days, and examined
many other materials. Id. at 2-4. Dr. Martell concluded that Allen suffered from “Dementia due
to Multiple Etiologies” as a result of “maternal cigarette smoking; maternal alcohol abuse; lead
poisoning; recurrent febrile convulsions; uncontrolled asthma; and one or more mild head
injuries.” Id. at 32-33.
Each expert witness also states conclusions addressing the mitigation evidence that was
presented at Allen’s penalty trial, and what effect the un-presented evidence would have had on
the jury. Dr. Stewart concludes that evidence of Allen’s history of abuse and mental health
disorders was available at the time of trial, but was not presented fully to the jury. See Decl.
Pablo Stewart, M.D. ¶¶ 35-36. Instead, he states the jury was presented evidence that was
inaccurate and poorly-developed. Id. at ¶¶ 36-37. Dr. Martell concludes that the evidence of
Allen’s mental health presented at trial was based on an inaccurate and incomplete factual basis,
and incorporated unreliable methodologies and procedures. Id. at 33-34. He concludes that the

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impact on the jury of even this flawed evidence was limited, because it was presented without
first establishing the appropriate context of Allen’s life history. Id. at 36-37.
Drs. Stewarts and Martell are experts who have drawn conclusions that are wholly
different in kind and in scope from the experts who examined Allen prior to trial. They reach
these conclusions based on a wide variety of sources in addition to their education and
experience, including extended examinations of Allen and the declarations submitted in Allen’s
Motion. Their expert conclusions bear directly on both of the essential elements - deficient
performance, and prejudice - that Allen must establish to prevail on his Ground J allegations.
For these reasons, the United States has shown good cause to depose Pablo Stewart and
Daniel Martell. The United States may depose them, subject to the conditions set forth below.
D. Allen
Finally, the United States seeks to depose Allen himself. Allen objects, contending that a
deposition of him conducted by the United States would violate his Fifth Amendment right
against self-incrimination, and that the United States cannot show good cause to depose him.
Like other courts to consider this issue, the Court finds that the Fifth Amendment itself is
not an absolute bar to Allen’s deposition. See Bean v. Calderon, 166 F.R.D. 452 (E.D. Cal.
1996); Lott v. Bradshaw, No. 1:04-cv-822, 2005 WL 3741492 (N.D. Ohio Mar. 29 2005);
Dietrich v. Schriro, No. CV 03-229-TUC-DCB, 2007 WL 177831 (D. Ariz. Jan. 23, 2007);
Wessinger v. Cain, No. 04-637-JJB-SCR, 2009 WL 111735 (M.D. La. Jan. 15 2009). First, the
Rules of § 2254 cases and § 2255 proceedings contemplate the prosecution taking the deposition
of a § 2254 petitioner or a § 2255 movant. See R. Governing § 2254 Cases 6(c) and advisory
committee notes; Lott, No. 1:04-cv-822, 2005 WL 3741492 (N.D. Ohio Mar. 29 2005). In
addition, the following language from Bean is instructive:

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The overriding purpose of criminal actions, in which the Fifth Amendment privilege is
fully applicable, is to determine whether the state can prove the guilt of a defendant
beyond a reasonable doubt. If the state fails in this endeavor, the truth of the matter
becomes irrelevant. Habeas is different. It is a remedy that seeks to overturn miscarriages
of justice. There is no other proceeding known to our law in which the truth of matters
asserted is so important. That search for the truth is impeded by assertion of
privileges—especially when that search for the truth is initiated by the person who now
desires to assert a self-incrimination privilege.
166 F.R.D. 452, 455-56 (E.D. Cal. 1996).
Finally, a blanket assertion of the Fifth Amendment is appropriate only in limited circumstances:
[I]n a [§ 2254] proceeding, a witness may not make a blanket assertion of his Fifth
Amendment privilege unless the court can conclude, based on the expected testimony,
that the witness could legitimately refuse to answer all relevant questions.
Detrich, 2007 WL 177831, *2 (D.Ariz. 2007) (citations omitted).
That standard is not met here, where the issue before the Court is whether Allen’s counsel
provided ineffective assistance of counsel in the penalty phase of his trial. See id. (“There is
nothing inherently incriminating in answering questions regarding mitigating evidence and
communication with counsel about such evidence.”). Accordingly, the Fifth Amendment is not an
absolute bar to Allen’s deposition.
Allen is correct, however, that he does retain his Fifth Amendment rights when being
questioned by the United States, particularly if he were to be questioned as to his guilt. See
Hoffman v. United States, 341 U.S. 479, 486 (1951) (citizen may assert right against selfincrimination whenever a question from the government gives “reasonable cause to apprehend
danger”); Application of Gault, 387 U.S. 1, 49 (1967) (“availability of the privilege [against selfincrimination] does not turn upon the type of proceeding in which its protection is invoked, but
upon the nature of the statement or admission and the exposure which it invites.”). Accordingly,
Allen may raise the Fifth Amendment privilege in response to specific questions as is necessary to
protect his rights concerning his guilt.

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Next, Allen argues that the United States cannot show good cause to take Allen’s
deposition. On this issue, Strickland is instructive:
The reasonableness of counsel's actions may be determined or substantially influenced by
the defendant's own statements or actions. Counsel's actions are usually based, quite
properly, on informed strategic choices made by the defendant and on information
supplied by the defendant. In particular, what investigation decisions are reasonable
depends critically on such information. For example, when the facts that support a certain
potential line of defense are generally known to counsel because of what the defendant
has said, the need for further investigation may be considerably diminished or eliminated
altogether. And when a defendant has given counsel reason to believe that pursuing
certain investigations would be fruitless or even harmful, counsel's failure to pursue those
investigations may not later be challenged as unreasonable. In short, inquiry into counsel's
conversations with the defendant may be critical to a proper assessment of counsel's
investigation decisions, just as it may be critical to a proper assessment of counsel's other
litigation decisions.
Strickland, 466 U.S. 668, 691 (1984).
This passage is directly applicable to the facts at issue, and make it abundantly clear that Allen’s
communications and interactions with his counsel are highly relevant to and probative of his claim
of ineffective assistance of counsel.
Finally, Allen argues that the United States has failed to show good cause because there is
no evidence his trial counsel made decisions regarding mitigation evidence based on
communications with or information from Allen. Allen relies upon Wessinger:
“[N]owhere in the respondent's answer to the petitioner's ineffective assistance of counsel
claims is there any indication that the petitioner's trial counsel based any strategic trial
decision on information provided by the petitioner. Nor does the answer assert, or even
infer, that any of trial counsel's strategic trial decisions were made after consulting with
the petitioner, informing him of counsel's proposed course of action, or communicating
with the petitioner in any way.”
Wessinger v. Cain, 2009 WL 111735, *2 (M.D. La. Jan. 15 2009).
The United States responds persuasively. See Govt’s Reply (citing evidence of communications
on mitigation evidence between Allen and his trial counsel [ECF No. 170]; see also Decl. Connie
Supranowich ¶ 3 (“frequent contact with Mr. Allen at the jail”). Moreover, taking the Supreme
Court’s language in Strickland together with Allen’s allegations, the United States is “entitled to
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discover not only counsel’s version of what was said, but also petitioner’s version as well.” See
Bean v. Calderon, 166 F.R.D at 457 (E.D. Cal. 1996).
For these reasons, the United States has shown good cause to depose Allen and may do
so, subject to the conditions listed below.
E. Conditions of Depositions
The United States has shown good cause to conduct the requested depositions. Those
depositions are subject to the following conditions. First, both Fed. R. Civ. P. 26(b)(1) and
Section 2255 R. 6 allow a court to limit the scope of discovery. Accordingly, the scope of
discovery authorized here is limited to facts and claims alleged in Ground J of Allen’s Motion.
The questions posed by the United States must be phrased so that they are directly linked to the
allegations of Ground J. See Bean, 166 F.R.D. at 457 (E.D. Cal. 1996). Specially, any
questioning that addresses Allen’s guilt or innocence is prohibited.
The United States requests authorization to take 12 depositions. Fed R. Civ. P.
30(a)(2)(A)(i) states that unless there is a stipulation between the parties, a party must obtain leave
of court in order to take in excess of 10 depositions. In its Motion and Reply, the United States
has not expressly requested leave to take additional depositions. The Court is satisfied with the
United States’ arguments that 12 depositions are required. Accordingly, the United States is
authorized to take the 12 depositions indicated.
III.

DEPOSITION COSTS
Next, the United States raises the issue of depositions fees and expenses. In its initial

Motion, the United States stated that each party should bear its own depositions costs. In its
Reply, however, the United States wrote that it did not oppose the Department of Justice paying
the costs and expenses of witnesses and experts to appear at depositions. The United States also

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suggested the Court limit deposition costs and expenses by limiting Allen to no more than two
attorneys per deposition. Section 2255 R. 6(c) states:
(c) Deposition Expenses. If the government is granted leave to take deposition,
the judge may require the government to pay the travel expenses, subsistence
expenses, and fees of the moving party’s attorney to attend the deposition.
First, because the request is unopposed, the United States will pay the depositions costs
and expenses of each witness and expert to be deposed. Secondly, the Court finds the Untied
States’ suggestion to limit costs to be reasonable. Accordingly, the United States will pay the
costs of up to two of Allen’s attorneys to appear at each deposition.
IV.

DISCLOSURE OF WITNESS LISTS
Next, the United States requests that Allen disclose its hearing witness and exhibits by

September 30, 2011. Fed. R. Civ. Pro. 26(a)(3) governs pretrial disclosures, and requires a party
to disclose at least 30 days before trial the witnesses expected to be called and the exhibits and
documents likely to be presented. The Court can not find any reason to depart from this standard
practice. Accordingly, the parties are to exchange witness lists and exhibit and documents lists by
October 28, 2011.
V.

EXAMINATION OF ALLEN
Finally, the United States seeks authorization to conduct an independent mental health

examination of Allen. Allen agrees the United States is entitled to examine Allen, but seeks
clarification of the scope and conditions of the examination. In particular, Allen requests that any
examination of Allen be limited to matters raised in Ground J of his Motion, that his present §
2255 counsel be permitted to observe the examination or that it be recorded, and that the United
States provide two-week advance notice of the time and place of the examination. In its Reply,
the United States objects to the presence of Allen’s counsel in the examination room, but

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otherwise suggests the parties endeavor to reach an agreement on the mechanics and particulars of
an examination, in part by relying upon the ABA Criminal Justice Mental Health Standards.
The Court finds the United States’ suggestion to be well-taken. The Supreme Court has
declared that the ABA Standards are “guides to determining what is reasonable.” Wiggins v.
Smith, 539 U.S. 510, 524 (2003) (quotations and citations omitted). Accordingly, the parties are
instructed to consult these Standards and use them as a basis for reaching agreement on the
mechanics and other particulars of Allen’s examination. The Court notes that the parties appear
to have been in contact regarding Allen’s examination and have been able to reach agreement on
such mattters. See ECF No. 182 (parties’ stipulation regarding mental health examination). The
Court commends the parties to continue to do so.
Accordingly, the United States may conduct an independent mental health examination of
Allen. Consistent with the limitations on depositions imposed above, this examination is not to
delve into the guilt or innocence of Allen, but will not be otherwise restricted. If the parties
cannot agree, the examination of Allen will be recorded. The United States is to provide twoweeks’ notice to Allen’s counsel of the time and place of his examination.
V.

CONCLUSION
Accordingly, as set forth herein, IT IS HEREBY ORDERED that the United States’

Motion for Authorization to Conduct Depositions and Independent Examinations and to Require
Identification of Hearing Witnesses and Sharing of Deposition Expenses [ECF No. 162] is
GRANTED, in part, and DENIED, in part.
Dated this 7th day of October, 2011.

_______________________________________
E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE
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