The opinion of the court was delivered by: Surrick, J.
Presently before the Court are Defendant Steven Northington's Objections to Some of the Government's Proposed Testing and Renewed Motion for Videotaping (ECF No. 578), and the Government's Response thereto (ECF No. 590). For the following reasons, Defendant's Objections will be overruled, and Defendant's Renewed Motion for Videotaping will be denied.
The factual background of this case is more fully set forth in our August 10, 2012 Memorandum and Order denying Defendant Steven Northington's Motion to Reconsider and Motion to Stay. (See ECF Nos. 569, 570.) By way of general background, on May 9, 2012, a federal grand jury returned a seventeen-count Fourth Superseding Indictment against Defendant and his three co-Defendants. Defendant was charged with conspiracy to participate in the affairs of a racketeering enterprise, in violation of 18 U.S.C. § 1962(d) (Count 1), two counts of murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1) (Counts 5 and 7), and tampering with a witness, in violation of 18 U.S.C. § 1512(a) (Count 8). (Fourth Superseding Indictment, ECF No. 480.) On March 14, 2011, the Government filed a notice of intent to seek the death penalty against Defendant. (ECF No. 198.)
On June 7, 2012, Defendant filed a notice pursuant to Rule 12.2(b) of the Federal Rules of Criminal Procedure. (Rule 12.2(b) Notice, ECF No. 513.)*fn1 Shortly after filing the Rule 12.2(b) notice, defense counsel notified the Government that Defendant would be asserting a claim that he is ineligible for the death penalty on account of intellectual disability and requesting a pretrial hearing pursuant to Atkins v. Virginia, 536 U.S. 304 (2002).*fn2 Defendant's claim is based upon psychological tests administered to Defendant in October 2011 by experts hired by the defense team.*fn3 Pursuant to Court Order, Defendant provided expert reports to the Government on July 25, 2012. (See ECF No. 546.)
On July 25, 2012, an Order was entered directing that the United States Bureau of Prisons and the United States Marshals Service transport Defendant to the Medical Center for Federal Prisoners ("MCFP") in Springfield, Missouri for psychological testing. (ECF No. 552.) Defendant's transport to the MCFP was ordered in light of the approaching trial date to facilitate the Government's testing of Defendant in response to Defendant's Atkins claim. On July 30, 2012, Defendant filed a Motion to Reconsider Transfer. (ECF No. 555.) Defendant raised concerns about Defendant's transfer to the MCFP, among which was the concern that there was no order governing the scope and parameters of the Government's testing. (See Id.) On July 31, 2012, a conference was held with counsel for the Government and counsel for all Defendants.*fn4
After the conference with counsel for all Defendants, a conference with just the Government and Northington's attorneys was held. Defense counsel again expressed concerns about the Transport Order, the scope of the testing that would be administered to Defendant, and the fact that the Government would be permitted twenty-four hour observation and monitoring of Defendant. Defense counsel also requested that the Government's testing of Defendant be videotaped. The Government advised that it would provide a list of the tests that would be administered to Defendant.
On August 1, 2012, counsel for Northington filed a Notice of Appeal of the July 25, 2012 Order transferring Defendant to the MCFP. (ECF No. 558.)*fn5 On August 2, 2012, Defendant filed a Motion To Stay the Transport Order. (ECF No. 562.) On August 10, 2012, we entered a Memorandum and Order denying Defendant's Motion to Reconsider and Motion to Stay. (ECF Nos. 569, 570.) The August 10 Order required the Government to immediately disclose the names of the tests that its experts would be administering to Defendant at the MCFP, and permitted Defendant to file objections to a test or tests within five (5) days. (ECF No. 570.) The Order further stated that any test to which Defendant objects shall not be administered until the objection has been ruled upon, and that counsel for Defendant shall not discuss with Defendant the names or nature of the tests disclosed by the Government. (Id.)*fn6
By letter dated August 21, 2012, the Government notified the Court and defense counsel that the following tests would be administered to Defendant by the Government's experts:
Wechsler Intelligence Scale, 4th Edition
Woodcock-Johnson Tests of Achievement, 3rd Edition Trail Making Test, Parts A & B Digit Vigilance Test Booklet Category Test Finger Tapping Test Grip Strength Test Grooved Pegboard Test Story Memory Test California Verbal Learning Test Figure Memory Test Sensory Perceptual Examination Rey Complex Figure Copy Boston Naming Test Controlled Oral Word Association Test Test of Variables of Attention 8 Wisconsin Card Sorting Test Minnesota Multiphasic Personality Inventory, 2nd Edition Adaptive Behavior Assessment System, 2nd Edition Performance Validity Measures ("malingering tests") (Gov't's Aug. 21, 2012 Letter (on file with Court); see also Gov't's Resp. 2-3, ECF No. 590.)
The Government advised that it "does not intend to provide defense counsel with the names of the specific performance validity or 'malingering' tests, before those tests are administered, as that would place at risk the entire testing process." (Gov't's Aug. 21 Letter 2.)
On August 27, 2012, Defendant filed the instant Objections. (Def.'s Objns, ECF No. 578.) Defendant objects to two of the tests disclosed by the Government, raises objections to other aspects of the testing procedure, and requests that the examination be videotaped. (Id.) ...