USA v. Eklund

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
LOUIS HOLGER EKLUND,
Defendant.
Case No. 3:18-cr-00035-SLG-MMS
ORDER ESTABLISHING DEADLINE FOR RULE 12.2 NOTICE
Before the Court at Docket 146 is the government’s Motion for Order Establishing
Procedure Regarding Any Potential Insanity Defense. Pro se defendant Louis Holger
Eklund did not file a response.
The government seeks to have the Court order the following:
1) That standby counsel shall discuss with Mr. Eklund whether Mr. Eklund intends
to assert an insanity defense;
2) That Mr. Eklund give notice of any potential insanity defense within two weeks
of the issuance of the order;
3) That if Mr. Eklund is not asserting an insanity defense nor intending to introduce
expert evidence relating to a mental disease or defect or any other mental
condition bearing on guilt, to give notice of lack of such defense/evidence.1
The Court does not find it appropriate to order standby counsel to consult with Mr.
Eklund regarding raising an insanity defense. Mr. Eklund is acting pro se and has no
1 Docket 146-1 at 1.
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Order Establishing Deadline for Rule 12.2 Notice
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obligation to consult with his standby counsel unless he so chooses.2 Of course, he may
seek the assistance of his standby counsel on this topic and is encouraged to do so.
Mr. Eklund’s trial is scheduled to begin on March 31, 2020. Depending on the type
of defense or mental condition expert evidence Mr. Eklund intends on presenting, if any,
the government may have a right to have Mr. Eklund examined by its own expert(s).3
Accordingly, the Court finds is appropriate to order Mr. Eklund to give written notice of
any intent “to assert a defense of insanity at the time of the alleged offense” or “to
introduce expert evidence relating to a mental disease or defense or any other mental
condition of the defendant bearing on . . . the issue of guilt” within two weeks of the date
of this order.4 This timeline should give Mr. Eklund sufficient time to consult with standby
counsel should he choose to do so.
Finally, the Federal Rules of Criminal Procedure do not require a defendant to give
notice of the lack of intent to raise a Rule 12.2 defense or to present Rule 12.2 expert
evidence. The Court will not order Mr. Eklund to give notice of his lack of intent, as it will
presume such lack of intent if Mr. Eklund does not file a written notice as required by this
order. Should Mr. Eklund fail to give proper written notice and later try and raise a Rule
12.2 defense or introduce Rule 12.2 evidence at trial, “[t]he court may exclude an expert
evidence from the defendant on the issue of the defendant’s mental disease, mental
2 Cf. United States v. Flewitt, 874 F.2d 669, 676 (9th Cir. 1989) (“It indeed would be a paradox
to justify revoking a defendant's pro se status on the basis that the defendant failed to consult
counsel.”).
3 Fed. R. Crim. P. 12.2(c)(1).
4 Fed. R. Crim. P. 12.2(a), (b).
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Order Establishing Deadline for Rule 12.2 Notice
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defense, or any other mental condition bearing on the defendant’s guilt . . . if the defendant
fails to give notice under Rule 12.2(b).”5
In light of the foregoing, IT IS ORDERED that the motion at Docket 146 is granted
in part and denied in part. If Mr. Eklund intends to raise an insanity defense or introduce
expert evidence relating to a mental disease or defect or any other mental condition
bearing on the issue of guilt, he shall file a written notice of such intent within two weeks
of the date of this order.
DATED this 12th day of February, 2020, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
5 Fed. R. Crim. P. 12.2(d)(1)(A).
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