UNITED STATES v. SIWKA (2021)

OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR EXPERT

This matter is before this Court upon Defendant's motion “requesting the state pay for the retention of a psychosexual evaluation by an expert psychologist witness.” ECF No. 23 at PageID.79. For the reasons stated hereafter, Defendant's motion will be denied.

On September 30, 2021, a grand jury indicted Defendant for sexual exploitation of a minor, 18 U.S.C. § 2251(a), and receipt of child pornography, 18 U.S.C. § 2252A(a)(2). ECF No. 9. His trial is set for February 15, 2022. ECF No. 22.

On November 19, 2021, Defendant, through counsel, filed an ex parte motion to obtain a court-appointed expert under 18 U.S.C. § 3006(A). ECF No. 23. Defendant states that he is “indigent and has no assets for which to pay for expert witnesses,” that he “has not worked for over a year,” and that his “father has paid for the retention of counsel.” Id. at PageID.78. He therefore requests “the maximum amount allowed by law” (i.e., $2,700.00) for an expert psychosexual evaluation. See id. at PageID.82; 7 Guide to Judiciary Policy, Defender Services, pt. A, ch. 3, § 310.10.10(a) (Feb. 25, 2021).

The Criminal Justice Act (CJA), 18 U.S.C. § 3006A, includes provisions related to appointing experts for indigent defendants. Retained counsel may request expert funds under the CJA when the defendant cannot afford it. As relevant, § 310.10.10 of the Guidelines provides that:

(a) Investigative, expert, or other services necessary to adequate representation, as authorized by subsection (e) of the Criminal Justice Act (CJA) (18 U.S.C. § 3006A(link is external)), are available to persons who are eligible under the CJA, including persons who have retained counsel but who are found by the court to be financially unable to obtain the necessary services.

7 Guide to Judiciary Policy, Defender Services, pt. A, ch. 3, § 310.10.10(a) (Feb. 25, 2021). Defendant bears the burden “to establish an expert is necessary for an adequate defense.” United States v. Thurmon, 413 F.3d 752, 755 (8th Cir. 2005). And an indigent defendant seeking appointment of an expert under § 3006A must demonstrate with specificity his need for the requested services. United States v. Hardin, 437 F.3d 463, 469 n.5 (5th Cir. 2006); see also United States v. Gilmore, 282 F.3d 398, 406 (6th Cir. 2002) (holding that the defendant must demonstrate “such services are necessary to mount a plausible defense”).

Defendant has not demonstrated that a psychosexual evaluation is “necessary.” Other than financial indigence, Defendant has not offered any specific reason for needing a psychosexual expert evaluation. Further, the record does not indicate that the Government intends to present an expert witness to testify to Defendant's sexual proclivities, which would likely give rise to the requisite need. See State v. Oxford, 167 Idaho 515, 473 P.3d 784, 790 (2020); State ex rel. Rojas v. Wilkes, 193 W.Va. 206, 455 S.E.2d 575, 576 (1995). Defendant will therefore be able to advance an adequate defense without a psychosexual expert evaluation, so his motion will be denied.

Accordingly, it is ORDERED that Defendant's Motion, ECF No. 23, is DENIED.

THOMAS L. LUDINGTON, United States District Judge