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United States v. Kight

United States District Court, N.D. Georgia, Atlanta Division

July 12, 2017

UNITED STATES OF AMERICA,
v.
BENNETT KIGHT, Defendant.

          OPINION AND ORDER

          WILLIAM S. DIJFFEY, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant Bennett Kight's (“Defendant”) Objections to the Magistrate Judge's June 14, 2017 Order [70] (“Objections”).

         I. BACKGROUND

         Defendant is charged with one count of mail fraud, in violation of 18 U.S.C. § 1341 (Count One), and one count of bank fraud, in violation of 18 U.S.C. § 1344 and 2 (Count Two). (Superseding Indictment [15]).

         On February 23, 2017, Defendant filed his Motion to Stay Proceedings to Determine Competency [59] (the “Motion”). The Court granted Defendant's Motion, and appointed Dr. Daniel Marson as the Court's expert. ([63], [65]). The Magistrate Judge and the parties engaged in several telephonic hearings during which they discussed the expert evaluation process, including the procedure for contacting Dr. Marson, and the information and records required to be provided to Dr. Marson. Some of these telephonic hearings were not recorded and were not transcribed.

         On June 14, 2017, the Magistrate Judge issued her Order [65]. In it, she (1) ordered Defendant's counsel to submit copies of documents that they sent to Dr. Marson; (2) prohibited the parties from communicating with Dr. Marson or his staff without obtaining the Court's permission; and (3) required that all communications to Dr. Marson be provided first to the Court. (June 14th Order at 2-3). The June 14th Order states further:

1. Defendant Kight shall not undergo any additional cognitive testing, evaluations, or forensic examinations unless and until Dr. Marson has performed his evaluation and report;
2. To the extent that Defendant Kight maintains that additional cognitive testing, evaluations, and/or forensic examinations are medically necessary before the Court's expert has completed his or her evaluation, Defendant Kight is directed to file a motion with the Court and to attach supporting documentation. If a motion and supporting documents are filed, the Court will make every effort to either schedule a hearing and/or address the motion as soon as practical. If Defendant Kight's treating physician(s) determines that cognitive testing or evaluation is immediately medically necessary during an emergency or life-threatening situation, however, Defendant Kight's treating physician(s) should not delay any such emergency care. If such care is rendered, Defendant Kight shall notify the Court within one week that such care was administered and provide supporting documentation.

(Id. at 3).

         On June 29, 2017, Defendant filed his Objections. Defendant objects to: (1) the Magistrate Judge's summary of events in the June 14th Order;[1] (2) the failure to follow the “expert appointment protocol required by” Rule 706 of the Federal Rules of Evidence; (3) the Magistrate Judge's ex parte communications with Dr. Marson; (4) the requirement that the parties first submit to the Court all communications to Dr. Marson; and (5) the requirement that Defendant seek Court approval before undergoing medical evaluations.

         II. LEGAL STANDARDS

         A. Review of a Magistrate Judge's Order

         Under Rule 59(a) of the Federal Rules of Criminal Procedure, a magistrate judge may rule on any matter referred by a district judge that does not dispose of a charge or defense. If any party files objections to a magistrate judge's order on nondispositive matters, “the district judge must consider timely objections and modify or set aside any part of the order that is contrary to law or clearly erroneous.” Fed. R. Crim. P. 59(a). “For a factual finding to be ‘clearly erroneous, ' the Court, after reviewing all of the evidence, must be left with a definite and firm conviction that a mistake has been committed.” United States v. Foster, 155 F.3d 1329, 1331 (11th Cir. 1998). “Where the evidence has two possible interpretations, the . . . court's choice between them cannot be clearly erroneous.” Id. “A ruling is contrary to law when the magistrate judge has misinterpreted or misapplied the applicable law.” In re Grand Jury Empaneled April 24, 2008, 601 F.Supp.2d 600, 603 (D.N.J.2008); see also Pigott v. Sanibel Dev., LLC, No. 07-0083-WS, 2008 WL 2937804, at *5 (S.D. Ala. July 23, 2008) (“An order is contrary to law when it fails to apply or misapplies relevant statutes, case law or rules of procedure.”) (citing S.E.C. v. Cobalt Multifamily Investors I, Inc., 542 F.Supp.2d 277, 279 (S.D.NY. 2008)).

         B. Appointment of an Expert Under 18 U.S.C. §§ 4241, 4247, and Rule 706 of the Federal Rules of Evidence

         18 U.S.C. § 4241(a) provides that the Court shall order a hearing regarding a defendant's mental competency to stand trial “if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.” 18 U.S.C. § 4241(a). The Court may “order that a psychiatric or psychological examination of the defendant be conducted, and that a psychiatric or psychological report be filed with the court, pursuant to the provisions of section 4247(b) and (c).” 18 U.S.C. § 4241(b).

         A psychiatric or psychological examination “shall be conducted by a licensed or certified psychiatrist or psychologist” who “shall be designated by the court.” 18 U.S.C. § 4247(b). Rule 706 of the Federal Rules of Evidence permits the Court to appoint an expert and requires that the Court inform the expert of his duties either in writing with a copy filed with the ...


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