Defendant Evan Edwards' Response and Opposition to Time-Sensitive Motion to Compel Medical Records — United States v. Evan Edwards (a/k/a…

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Case 6:22-cr-00201-AGM-LHP Document 232 _ Filed 10/22/24 Page 1 of 10 PagelD
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UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION
UNITED STATES OF AMERICA, _ )
Plaintiff,
V. ' Case No. 6:22-cr-00201-WWB-LHP
EVAN EDWARDS,
Defendant.
)

DEFENDANT EVAN EDWARDS’ RESPONSE AND OPPOSITION TO
TIME-SENSITIVE MOTION TO COMPEL MEDICAL RECORDS, ETC.!

COMES NOW, the Defendant, Evan Edwards, by and through the
undersigned counsel, hereby responds to and opposes the United States’ Time-
Sensitive Motion to Compel Medical Records, or alternatively, for an Order
Authorizing Issuance of Rule 17(c) Subpoena. Dkt. 229. In support thereof,
Defendant states as follows:

1. On December 7, 2022, a federal grand jury returned an indictment
against the defendant, Evan Edwards, charging him with Conspiracy to Commit

Bank Fraud in violation of 18 U.S.C. § 1349, Bank Fraud in violation of 18 U.S.C.

'It is of material note that, in it’s Notice at Dkt. 231 that the United States submits that the instant
motion is moot.

1
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§§ 1344 and 2, False Statement to Lending Institution in violation of 18 U.S.C. 8§
1014 and 2, and Visa Fraud in violation of 18 U.S.C. § 1546(a).

2. Mr. Edwards was arrested on December 14, 2022. Dkt. 9.

3. Since his arrest nearly two (2) years ago, and despite not yet having
been arraigned, the Defendant has been held either in custody or on bond since his
arrest.

4. During this time, he has been held while bound by shackle at wrist and
ankle to his hospital bed at ORMC, transported to Columbia Regional Care Center
in Columbia, South Carolina, for warehousing, sent to FMC Devens for a
competency determination? (as well as a restorability determination), had his bond
revoked, been determined by the United States Bureau of Prisons to be un-restorable
to competency, and remains in custody at FMC Devens.

5. On September 23, 2024, a report was prepared by the United States
Bureau of Prisons as to the Defendant’s restorability, in which report the attending
doctors in the employ of the United States Department of Justice opined that the
Defendant is unlikely to benefit from further competency restoration efforts and is

likely to be unrestorable in the foreseeable future.

2 It is of note that during his initial evaluation, the United States Bureau of Prisons treating
personnel, Miriam Kissin, Psy.D., opined that restoration efforts were likely unavailing. Differing
personnel at the United States Bureau of Prisons have now confirmed this in their most recent
report.
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6. Despite this clear, unambiguous, and well-reasoned finding, the Office
of the United States Attorney has objected to the report and indicated that it will have
a fourth “evaluation” of Mr. Edwards, this time solely via a review of Mr. Edwards’
medical records.

7. Basing the request on the thinnest wisp of a claim of malingering
(which claim was addressed and totally debunked in the most recent report of the
United States Bureau of Prisons), the United States seeks to have a new doctor, solely
via the review of medical records, determine if the in-patient, 24 hour-a-day
assessment of the United States Bureau of Prisons is erroneous.

8. However, despite seeking this extraordinary and punitive (or, at best,
dilatory) relief, the United States failed to marshal, contemporaneously with the
request, the precise records on which it seeks to have its doctor opine

9. Upon the tardy discovery of this shortcoming, the Office of the United
States Attorney sought to secure the records it claims that its doctor needs to render
an opinion, when this failed, the instant Motion ensued.

10. The United States claims to be trying to locate a series of medical
records from July 8, 2022, through August 25, 2022, when the Defendant was
hospitalized at Advent Health New Smyrna Beach Hospital.

11. The Defendant’s custodian provided certain of these records to the

undersigned in about December 2022, and the undersigned transmitted the same,
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unredacted and bates-stamped to the Office of the United States Attorney shortly
thereafter, using the United States’ USAfx document delivery system. This
production included approximately 710 pages.

12. It now appears that counsel for the United States has “misplaced” these
records and cannot discern where or how they were then transmitted to each of the
United States’ three prior experts, who have each utilized them in preparing the
relevant reports. For example, the United States Bureau of Prisons acknowledges
that it has reviewed and utilized these records in delivering their report dated
September 23, 2024.3 BOP Report dated September 23, 2024, p. 1.

13. Now, in a frantic, last-ditch effort to undo what the United States
Bureau of Prisons has done, the United States seeks the same records once again, via
a Motion to Compel, which motion omits the key touchstone for the requested relief:
a duty on the part of someone to provide the records.

14 Neither the Grand Jury process nor reciprocal discovery affords the
United States the required relief. Of the three types of relief sought, only Rule 17
may afford the United States some succor; yet this too, fails the United States on
further review. In the instant Motion, the United States omits any basis for the

requested relief.

3 The reports delivered by Dr. Hall on January 16, 2023, and Dr. Kissin on July 7, 2023, also
included references to their own personal review of the records in question.

4
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15. On October 18, 2024, the undersigned received an email — from what
the undersigned presumes is the Defendant’s custodian — (on which counsel for the
United States was copied) which contained information previously provided as well
as voluminous additional materials that appear to be within the scope of the
government’s motion practice. The undersigned has attempted to discern the source
of these materials but has not yet been able to discern their precise source. However,
the materials provided constitute 2666 pages of material, 256 pages of which were
previously produced in the batch suppled by the defense to the United States.

16. On October 22, 2024, the United States indicated in a Notice [Dkt. 23 1]
that the Advent Health records received from what can be presumed as the
Defendant’s custodian has made the relief sought in the instant motion moot. As a
result, the Court should deny the United States’ Motion to Compel accordingly.

MEMORANDUM OF LAW

Having chosen to indict the Defendant, the United States has lost the use of
the Grand Jury subpoena process, as a “grand jury cannot be used “solely or even
primarily” to gather evidence against an indicted defendant.” United States v. US
Infrastructure, Inc., 576 F.3d 1195, 1214 (11th Cir. 2009) (internal citations omitted).
Further, Fed.R.Crim.P. 16(b)(1)(B), ordinarily requires a defendant to permit the
government upon request, to inspect the result or reports of any physical or mental

examination that is within the defendant’s possession, custody, or control. However,
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in this case, Defendant has duly complied with this requirement as Defendant has
already produced the July 8, 2022, and August 25, 2022, medical records to which
the BOP and three other experts in this case have reviewed and relied on the same.
See September 23, BOP Report, and Reports by Dr. Hall and Dr. Kissin. The
Government’s seeming misplacement of those documents should not impose on the
defense a burden to produce, a second time in this pre-trial proceeding, these same
records.

In the alternative, the Government seeks issuance of a Subpoena Duces Tecum
under Federal Rule of Criminal Procedure 17(c). In order to require production by
subpoena the Government must show:

(1) that the documents are evidentiary and relevant; (2) that they are not

otherwise procurable reasonably in advance of trial by exercise of due

diligence; (3) that the party cannot properly prepare for trial without

such production and inspection in advance of trial and that the failure

to obtain such inspection may tend unreasonably to delay the trial; and

(4) that the application is made in good faith and is not intended as a

general ‘fishing expedition.’

United States v. Nixon, 418 U.S. 683, 699-700 (1974)(emphasis added); see also
United States v. Silverman, 745 F.2d 1386, 1397 (11th Cir. 1984) (stating that the
rule only reaches “specifically identified documents that will be admissible as

evidence at trial, provided that the application for the subpoena is made in good

faith).
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While Defendant’s medical records may have been relevant in this case, it
now appears that the United States seeks simply to re-litigate an issue that did not
go as it wished and burden the defense or some third party as a result of the United
States having simply lost the relevant records. So too, the Government cannot
sincerely argue that Defendant’s medical records at issue were not procurable by
exercise of reasonable diligence, as Defendant has previously provided the
Government with those records as evidenced by the three prior expert opinions
relying on the same. The good faith foundation of the United States’ motion practice
is built on the intellectual sand that there was some whiff of malingering. This issue
was addressed and resolved by the United States Bureau of Prisons. The instant
motion practice smacks of a “punishment first, trial later” approach that has seemed

to color the United States’ conduct of the matter to date.
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WHEREFORE, the Defendant, by and through the undersigned counsel,
respectfully requests this Court deny the requested relief and require the United
States to decide if dangerousness proceedings are necessary for a defendant who
lacks the ability to provide for any of his activities of daily living.

Respectfully submitted this 22" day of October, 2024.

s/A. Brian Phillips

A. BRIAN PHILLIPS, ESQ.

Fla. Bar No. 0067113

A. BRIAN PHILLIPS, P.A.

912 Highland Avenue

Orlando, Florida 32803

Telephone: (407) 872-0777

Telecopier: (407) 872-0704
Email:Brian.Phillips @ Phillips-Law-Firm.com
Counsel for Defendant Evan Edwards

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 224 day of October, 2024, I filed a copy of
the foregoing with the Clerk of the Court via the CM/ECF system. I further certify
that all parties to this case are equipped to receive service of documents via that

system.

s/A. Brian Phillips

A. BRIAN PHILLIPS, ESQ.

Fla. Bar No. 0067113

A. BRIAN PHILLIPS, P.A.

912 Highland Avenue

Orlando, Florida 32803

Telephone: (407) 872-0777

Telecopier: (407) 872-0704

Email: Brian.Phillips @ Phillips-Law-Firm.com
Counsel for Defendant, Evan Edwards

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