U.S. v. Lecco

• Decision Date: 06 April 2007
• Docket Number: Criminal Action No. 2:05-00107-01.
• Citation: 495 F.Supp.2d 581
• Parties: UNITED STATES of America v. George LECCO.
• Court: U.S. District Court — Southern District of West Virginia

495 F.Supp.2d 581

UNITED STATES of America v. George LECCO.

Criminal Action No. 2:05-00107-01.

United States District Court, S.D. West Virginia, at Charleston.

April 6, 2007.

SEALED EX PARTE MEMORANDUM OPINION AND ORDER

COPENHAVER, District Judge.

Pending are defendant George Lecco's ex parte, sealed motion in limine to permit testimony by his penalty phase expert, filed March 14, 2007, and the government's motion to exclude the expert witness' testimony, filed March 21, 2007.

At a hearing held March 23, 2007, came the defendant, George Lecco, in person and by counsel, Jay T. McCamic and Mary Lou Newberger, Federal Public Defender, and came the United States, by Fred B. Westfall, Jr., Assistant United States Attorney, Civil Division, for a hearing on the motions.¹

I.

On February 20, 2007, the court entered the Provisionally Sealed Order Regarding Government Mental Status Evaluations ("order") presented to it in agreed form by counsel for all parties. The order directed defendant to provide to fire-walled counsel the names, resumes, and areas of expertise of the mental health experts who performed any examinations upon him and the nature of the examinations and the tests administered.

On February 27, 2007, counsel for the defendant disclosed to Mr. Westfall that Dr. Mace Beckson would serve in an expert capacity for the defense with regard to mental health issues if a penalty phase became necessary. Defendant contends Dr. Beckson's testimony would be "a major portion of the mitigation presentation ...." (Mot. in Lim. at 1).²

Upon reviewing the curriculum vitae, Mr. Westfall observed that Dr. Beckson was employed, on a part-time basis, by the Department of Veterans Affairs ("VA") at the Greater Los Angeles Healthcare System. Dr. Beckson is also employed as a university professor, a private physician treating patients, and a forensic psychiatrist. Mr. Westfall, perhaps by virtue of his service in the civil division, was aware of certain regulations, discussed more fully within, that potentially impacted Dr. Beckson's ability to testify as an expert witness for defendant. Neither counsel for the defendant nor Dr. Beckson were aware of the regulations. Mr. Westfall contacted the VA to determine whether Dr. Beckson had been authorized to serve as an expert witness in this action. Mr. Westfall eventually spoke with Walter A. Hall, Assistant General Counsel at the VA and its Designated Agency Ethics Official ("DAEO"). Mr. Hall advised that Dr. Beckson had not received authorization.

At some unstated date thereafter, Mr. Westfall contacted counsel for the defendant, recounted in detail the rules governing Dr. Beckson, and noted that the VA had not authorized the physician to serve as an expert witness for the defendant. Approximately 1-2 days later, Mr. Westfall reduced his position to writing at the request of defense counsel to facilitate counsel's further discussions with Dr. Beckson.

On March 6, 2007, defense counsel advised they were following up on the situation and that they were also investigating the retention of a substitute expert should Dr. Beckson's further involvement be precluded. Defense counsel also asked Mr. Westfall to contact the VA and determine if it would waive the restrictions it had imposed upon Dr. Beckson's participation in this capital case.

On March 9, 2007, defense counsel was advised that a waiver would not be forthcoming inasmuch as the government was a party to this criminal action and Dr. Beckson would be testifying against the interests of the United States. As of this date, the court has not been notified by defendant that he has succeeded in his attempts to find a suitable expert to serve in Dr. Beckson's stead.

II.

In Touhy v. Ragan, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417 (1951), the Supreme Court was confronted by a Department of Justice subordinate's refusal to submit papers to the district court in response to its subpoena duces tecum. The subordinate contended that he was prohibited from compliance by virtue of a certain executive order. The Supreme Court observed as follows:

We think that Order No. 3229 is valid and that ... [the subordinate] in this case properly refused to produce these papers....

When one considers the variety of information contained in the files of any government department and the possibilities of harm from unrestricted disclosure in court, the usefulness, indeed the necessity, of centralizing determination as to whether subpoenas duces tecum will be willingly obeyed or challenged is obvious. Hence, it was appropriate for the Attorney General, pursuant to the authority given him by 5 U.S.C. s 22, 5 U.S.C.A. s 22, to prescribe regulations not inconsistent with law for the custody, use, and preservation of the records, papers, and property appertaining to' the Department of Justice, to promulgate Order 3229.

Id. at 468, 71 S.Ct. 416. Fifty-six years later, Touhy is yet recognized in this circuit and elsewhere as the legal source for the right of a federal agency to exercise control over its resources, including its employees sought by others for litigation purposes. See, e.g., Smith v. Cromer, 159 F.3d 875, 878 (4th Cir.1998); Distaff, Inc. v. Springfield Contracting Corp., 984 F.2d 108, 112 (4th Cir.1993); Boron Oil Co. v. Downie, 873 F.2d 67, 71 (4th Cir.1989).³

Later, in Crandon v. United States, 494 U.S. 152, 110 S.Ct. 997, 108 L.Ed.2d 132 (1990), the government instituted a civil action against, inter alia, The Boeing Company. The government alleged that certain payments the corporation made to five outgoing employees entering government service created a conflict of interest situation. The government claimed Boeing induced a breach of the fiduciary duty of undivided loyalty which each of the five individuals owed to the government. Consistent with Touhy, the Supreme Court observed generally as follows:

Congress appropriately enacts prophylactic rules that are intended to prevent even the appearance of wrongdoing and that may apply to conduct that has caused no actual injury to the United States. [Title 18 U.S.C.] Section 209(a) is such a rule. Legislation designed to prohibit and to avoid potential conflicts of interest in the performance of governmental service is supported by the legitimate interest in maintaining the public's confidence in the integrity of the federal service. Neither good faith, nor full disclosure, nor exemplary performance of public office will excuse the making or receipt of a prohibited payment. It is nevertheless appropriate, in a case that raises questions about the scope of the prohibition, to identify the specific policies that the provision serves as well as those that counsel against reading it too broadly.

Id. at 164-65, 110 S.Ct. 997 (footnote omitted).

As is apparent from the foregoing authorities, Congress and the Executive Branch have enjoyed a rather long history of controlling both the disclosure of agency records and the outside activities of federal government employees. A variety of statutes provide the Executive Branch the discretion to promulgate regulations to achieve that very end. See, e.g., 5 U.S.C. § 7301 ("The President may prescribe regulations for the conduct of employees in the executive branch."); 5 U.S.C. § 7351(b) ("Each supervising ethics office ... is authorized to issue regulations implementing this section....").

One such regulation is 5 C.F.R. § 2635.805(a), a provision central to the present dispute between the parties. Section 2635.805(a) provides pertinently as follows:

(a) Restriction. An employee shall not serve, other than on behalf of the United States, as an expert witness, with or without compensation, in any proceeding before a court or agency of the United States in which the United States is a party or has a direct and substantial interest, unless the employee's participation is authorized by the agency under paragraph (c) of this section....

Id.⁴

The government contends Dr. Beckson's non-compliance with that regulation precludes his participation in this case. The government is correct that the regulation appears to cover Dr. Beckson, who is employed on a part-time basis by the government. Additionally, the defense offers Dr. Beckson for service at trial as an expert witness, a proceeding in which the government is a party. It remains to be seen, however, whether the regulation precludes Dr. Beckson from testifying under the circumstances here presented.

Indeed, the defendant makes several arguments to avoid Dr. Beckson's exclusion. One of defendant's contentions has some merit. He asserts the government is essentially asserting a privilege on behalf of Dr. Beckson, one that has been. rejected in the civil context on a number of occasions. The cases cited by the defendant are Dean v. Veterans Admin. Regional Office, 151 F.R.D. 83 (N.D.Oh.1993); In re Air Crash Disaster at Detroit Metro. Airport, 737 F.Supp. 399 (E.D.Mich.1989); McElya v Sterling Medical, Inc., 129 F.R.D. 510 (W.D.Tenn.1990); Young v. United States, 181 F.R.D. 344 (W.D.Tex.1997).

Dean is illustrative of the remaining cases. In Dean, plaintiff instituted an action against the VA for handicap discrimination under the Rehabilitation Act of 1973, 29 U.S.C. § 791. Dean caused a subpoena duces tecum to issue commanding a VA-employed physician to testify as an expert witness for Dean. The VA moved to quash. In denying the motion, the district court observed as follows:

The question before this Court is essentially, to what extent can an agency regulation curb the power of this court to compel discovery under the Federal Rules of Civil Procedure?

Requiring this Court to quash the subpoena based on 5 C.F.R. § 2635.805, is tantamount to permitting the ethics regulation to restrict this Court's broad discovery powers under Rules 30 and 34 of the Federal Rules of Civil Procedure. There is no. authority for that type of restriction....

. . . . .

The regulation involved here was promulgated...