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United States v. Rogalsky

submitted: April 11, 1978.

UNITED STATES OF AMERICA, APPELLANT,
v.
IVAN NIKONOROVICH ROGALSKY



On Appeal from the United States District Court for the District Of New Jersey (D.C. Crim. No. 77-28-1 - D. of N.J.).

Seitz, Chief Judge, and Rosenn and Garth, Circuit Judges.

Author: Seitz

SEITZ, Chief Judge

This is an appeal by the Government from an order of the district court directing the United States Attorney to submit for payment by the Department of Justice certain bills for psychiatric examinations and witness fees.

Ivan Rogalsky was indicted for espionage on behalf of the Soviet Union. The Federal Public Defender appeared for him and entered a not guilty plea. On February 10, 1977, the Defender obtained an ex parte order from the district court authorizing the retention of a psychiatrist (Dr. Nir) to provide an examination which was said to be "necessary for preparation of the defense." The order was sealed pending the disposition of the case. Thereafter, Dr. Nir examined the defendant on two occasions.

On March 4, 1977, the Defender sent a letter to the United States Attorney's Office, pursuant to Fed. R. Crim. P. 12.2, notifying the Government that defendant would rely in part on the defense of insanity.

On March 8, 1977, at a court hearing, the Government said that because an insanity defense had been asserted a competency examination would be required prior to trial. On April 1, 1977, the Defender advised the Government's counsel by letter that he was "in the process of assisting the defense psychiatrist in preparing his report."

Thereafter, pursuant to 18 U.S.C. § 4244 (1976), the Defender moved for a competency hearing, which motion was supported in part by the report of the retained defense psychiatrist. Still later, with the consent of the parties, the court entered an order dated April 20, 1977, pursuant to 18 U.S.C. § 4244 (1976), directing that the defendant be examined by a designated doctor (Hacken) who was to report his findings to the court. That report was later filed with the court and the parties received copies.

On April 26, 1977, the Defender obtained an ex parte order directing that the defendant be examined by still another psychiatrist (Kuvin) for the "purpose of determining competency to stand trial." This order did not direct that the results of the examination were to be shared with the Government or the court. Indeed, Dr. Kuvin's report was submitted after he testified on behalf of the defendant at the competency hearing. As a result of the competency hearing, Rogalsky was found not competent to stand trial.

On May 2, 1977, the Defender sent a letter to the United States Attorney's Office asking that the Department of Justice pay the entire examination fee as well as the witness fee of the psychiatrist (Kuvin) who was retained by the defense with court authorization for the purpose of determining competency to stand trial, and who testified at the competency hearing. The Defender's letter also asked that the Government pay part of the examination fee of the first psychiatrist (Nir) who was employed to aid in the preparation of the defense, but did not testify at the competency hearing.

The Defender's requests were rejected by the Government. The Defender thereon filed a motion with the district court requesting an order directing that the United States Attorney submit the bills to the Department of Justice for payment. The Government opposed the motion on the ground that it was required to pay only for appointments made under 18 U.S.C. § 4244 (1976), and not for psychiatrists retained to assist the defense.

The court granted the Defender's motion as to Dr. Nir's bill for his examination because, as it said, the court in part had based its finding of incompetency on his report. It directed payment of Dr. Kuvin's bill for his examination and court appearance for the reason that he was retained by the Public Defender in connection with the court's determination of the defendant's competency to stand trial. The Government appeals.

Although no question of appealability is raised, we think this order is appealable as a final judgment under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949). 28 U.S.C. § 1291 (1970).

This appeal presents a question of law: was the district court legally justified in assessing against the Department of Justice any part of the bills of psychiatrists retained ...


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