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November 6, 2008

Iowa Federal District Court Issues First Impression of 18 U.S.C.A. § 3552

"The issue in these three cases raises a novel question-indeed, one of apparent first impression-of whether the prosecution is entitled, over the defendants' objections, to additional information from a court-appointed expert psychologist, beyond the expert's psychosexual assessment report for each defendant, where the expert has been appointed as the court's expert, the expert's reports have been submitted to the court, and the expert's reports have been disseminated to the parties, all pursuant to 18 U.S.C. § 3552."  So begins U.S. v. Beiermann, __ F.Supp.2d __, 2008 WL 4787111 (N.D. Iowa Oct. 31, 2008). 

Section 3552(c) of Title 18 of the United States Code authorizes appointment by the court of an expert on the defendant's mental condition, for purposes of sentencing, and authorizes disclosure of the expert's report to the parties, as follows:
(c) Presentence examination and report by psychiatric or psychological examiners.-If the court, before or after its receipt of a report specified in subsection (a) [presentence investigation report by probation office] or (b) [presentence study and report by bureau of prisons] desires more information than is otherwise available to it as a basis for determining the mental condition of the defendant, the court may order the same psychiatric or psychological examination and report thereon as may be ordered under section 4244(b) of this title.
(d) Disclosure of presentence reports.-The court shall assure that a report filed pursuant to this section is disclosed to the defendant, the counsel for the defendant, and the attorney for the Government at least ten days prior to the date set for sentencing, unless this minimum period is waived by the defendant. The court shall provide a copy of the presentence report to the attorney for the Government to use in collecting an assessment, criminal fine, forfeiture or restitution imposed.

18 U.S.C. § 3552(c) and (d). Section 4244(b), referenced in § 3552(b) as defining the nature of the examination and report that may be ordered by the court, provides as follows:

(b) Psychiatric or psychological examination and report.-Prior to the date of the hearing [on the defendant's mental condition], 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). In addition to the information required to be included in the psychiatric or psychological report pursuant to the provisions of section 4247(c), if the report includes an opinion by the examiners that the defendant is presently suffering from a mental disease or defect but that it is not such as to require his custody for care or treatment in a suitable facility, the report shall also include an opinion by the examiner concerning the sentencing alternatives that could best accord the defendant the kind of treatment he does need.

18 U.S.C. § 4244(b). Section 4247(c), cited in § 4244(b) as defining the requirements of the report, provides, in pertinent part, that “[a] psychiatric or psychological report ordered pursuant to this chapter shall be prepared by the examiner designated to conduct the psychiatric or psychological examination, shall be filed with the court with copies provided to the counsel for the person examined and to the attorney for the Government....” 18 U.S.C. § 4247(c).

Id.  The court then began a lengthy analysis of the statute, ultimately rejecting the prosecutor's effort.  It's an interesting read, focusing on plain meaning as well as other interpretative aids..

November 6, 2008 | Permalink | Comments (0) | TrackBack

November 4, 2008

Florida Bankruptcy Court Certifies Question of First Impression under BAPCA for Interlocutory Appeal

28 U.S.C. § 158(d)(2)(A), I have learned, is the bankruptcy equivalent of 28 USC 1292(b), and allows a bankruptcy district court to certify certain questions for interlocutory, immediate appeal. The bankruptcy court for the middle district of Florida recently certified a question of first impression for immediate appeal to the Eleventh Circuit. In In re Bluestone Real Estate & Constr. Co., __ F.Supp.2d __ (Bankr. M.D. Fla. 2008), the court had first, and repeatedly, asked the parties to seek certification, but -- sounding somewhat exasperated -- eventually did it on its own. (It also provides a useful roadmap for this seldom used bankruptcy-specific procedure). The issues the court certified:

1. Whether a bankruptcy court is prohibited from approving a change in management of a Chapter 11 debtor by permitting the debtor in possession to engage a chief restructuring officer (“CRO”) under 11 U.S.C. §§ 327, when a motion to appoint a Chapter 11 trustee under 11 U.S.C. § 1104(a) is then pending before the bankruptcy court.
2. Whether, pursuant to 11 U.S.C. § 1107(a), a bankruptcy court may impose limitations or conditions upon a debtor in possession in order to supplement the debtor in possession’s rights, powers, and duties, which are performed by natural persons charged with managing the business of the debtor in possession, such that the CRO has sole authority to manage the debtor in possession.

As with 1292(b), the question whether to accept the appeal is a matter of discretion with the appellate court, so stay tuned.

November 4, 2008 | Permalink | Comments (0) | TrackBack