Allen v. United States of America

Filing 240

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that Movant's Motion 237 is GRANTED in part, and DENIED in part. Movant's request that the recordings of Dr. Askenazi's neuropsychological evaluation of Movant be re leased for viewing is DENIED. Movant's request that the recordings be transcribed for later review by the Court and counsel is GRANTED. IT IS FURTHER ORDERED that the recordings of Dr. Askenazi's evaluation of Movant be transcribed for lat er review. If the transcription is not expected to be available prior to trial in the normal due course, the Government can expedite the transcription request. Movant's request that the record be kept open for evidence from the recordings and an y additional testimony or evidence that may be needed after review will be taken under advisement. Signed by Honorable E. Richard Webber on 06/01/2012. (Pursuant to direction of chambers - sealed doc. #196 (containing one cd) released to AUSA Steve Holtshauser on this date for transcription. Upon full transcription, the original cd and transcript shall be sealed again by this Court until further order. )(CBL)

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 Movant’s Motion to Disclose Recordings [ECF
No. 237].
In its Order dated October 5, 2011, the Court approved the Parties’ Joint Stipulation
Regarding Conduct of Mental Health Examination of Billie Allen, in which the parties jointly
stipulated and agreed that government expert Galit Askenazi, PhD, could perform a complete
neuropsychological examination and evaluation of Movant, subject to certain conditions and
agreements, including that the evaluation would be video- and audio-taped, the tapes would not
be copied, the tapes would be filed under seal by the Government, and the tapes could not be
viewed by either party or their experts except by Court Order upon a showing of good cause
[ECF No. 186].
Movant asserts that good cause now exists to permit Movant to review the recordings of
the neuropsychological evaluation because, in the course of depositions conducted in May, it
became clear that the Government intended use statements Movant purportedly made to Dr.
Askenazi in Movant’s § 2255 proceeding. Movant further claims that there are factual disputes
regarding the content of those statements and the questions Dr. Askenazi asked Movant.

The Government has objected to Movant’s Motion as untimely. In its Response, the
Government states that Dr. Askenazi is scheduled to testify during Movant’s evidentiary hearing
on June 8, 2012, and asserts that the impracticalities of reviewing approximately eight hours of
recordings on short notice would significantly prejudice the Government’s ability to prepare for
the testimony of numerous other witnesses. The Government further states that Movant’s “good
cause” is illusory.
Having reviewed Movant’s Motion and supporting exhibits, the Court finds that the
Movant has not made the requisite showing of good cause to release the recordings for viewing.
However, Movant has also requested that the recordings be transcribed for later review by the
Court and counsel, and that the record be kept open for evidence from the recordings, as well as
additional testimony and evidence that may be needed after the transcripts are reviewed. The
Government has objected to Movant’s request to keep the record open at the conclusion of the
hearing, but does not oppose Movant’s request for the recordings to be transcribed.
Accordingly,
IT IS HEREBY ORDERED that Movant’s Motion is GRANTED in part, and
DENIED in part.
Movant’s request that the recordings of Dr. Askenazi’s neuropsychological evaluation of
Movant be released for viewing is DENIED.
Movant’s request that the recordings be transcribed for later review by the Court and
counsel is GRANTED.
IT IS FURTHER ORDERED that the recordings of Dr. Askenazi’s evaluation of
Movant be transcribed for later review. If the transcription is not expected to be available prior
to trial in the normal due course, the Government can expedite the transcription request.

Movant’s request that the record be kept open for evidence from the recordings and any
additional testimony or evidence that may be needed after review will be taken under advisement.

Dated this 1st day of June, 2012.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE