UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. Case No. 1:20-cr-183-RCL
CODY MICHAEL TARNER,
Defendant.
MEMORANDUM AND ORDER
The defendant, Cody Michael Tarner, seeks release from federal custody and dismissal of
his indictment for alleged violations of the procedure and timeline established by the Insanity
Defense Reform Act (IDRA). Because Mr. Tarner is no longer committed for competency
evaluation or restoration, his motion is moot. Therefore, the Court will DENY Mr. Tarner’s
motion to dismiss. For the reasons discussed below, the Court will also DENY Mr. Tarner’s
motion to seal his motion to dismiss, and will DENY the Government’s motion to file a sur-reply.
In addition, now that Mr. Tarner has given notice of his intention to present an insanity
defense, the parties agree that the Court should order a psychiatric or psychological examination
and report of Mr. Tarner. However, they disagree on whether the Court must order Mr. Tarner
committed to the custody of the Attorney General of the United States for that evaluation. The
Court concludes that committing Mr. Tarner to the custody of the Attorney General will likely
result in lengthy delay, and therefore orders that Mr. Tarner be evaluated where he is currently
housed, the D.C. Correctional Treatment Facility.
1 I. BACKGROUND
A. Factual and Procedural Background
The Government alleges that on July 15, 2020, Mr. Tarner approached three government
vehicles parked at the United States Supreme Court, doused them with liquid, and then lit one of
them ablaze. See Compl., ECF No. 1, at 2. However, the fire spread to Mr. Tarner himself,
resulting in burns to about 40% of his body. See id. For these events, a grand jury indicted Mr.
Tarner on one count of Arson, in violation of 18 U.S.C. § 844(i), and one count of Destruction of
Government Property, in violation of 18 U.S.C. § 1361. See Indictment, ECF No. 6. The
magistrate judge ordered Mr. Tarner detained pending trial. See ECF No. 5.
1. Mr. Tarner’s Commitment for Competency Evaluation
At a status conference on February 12, 2021, the Court granted defense counsel’s oral
motion for a competency examination. See ECF No 9, at 1. The Court ordered that Mr. Tarner
“be committed to the custody of the Attorney General of the United States pursuant to 18 U.S.C.
§ 4247(b) for a period not to exceed thirty days for placement in a suitable facility for a competency
examination.” Id. The Court also required the Government to update the Court every ten days on
Mr. Tarner’s placement and his transportation to this facility. Id. at 2.
On April 15, 2021, the Government reported that Mr. Tarner had been transported to the
Butner Federal Correctional Complex in North Carolina. See ECF No. 14. In a letter filed under
seal on April 22, 2021 (but dated April 15, 2021) the warden informed the Court that per C.D.C.
and B.O.P. guidance, when Mr. Tarner arrived he was put in quarantine that would “last
approximately 21 days.” See ECF No. 15. The warden requested that the 30-day evaluation period
begin on the date of Mr. Tarner’s release from quarantine and be extended 15 days. See id. At an
April 22 status conference, the Court granted the request for an extension of time.
2 2. Mr. Tarner’s Commitment for Restoration
Another letter from the warden was filed under seal on July 21, 2021 (but dated June 9,
2021), along with Mr. Tarner’s competency evaluation. See ECF No. 17. The evaluator found
Mr. Tarner not competent and recommended that he be committed to the custody of the Attorney
General for restoration to competency. See id. at 13. Mr. Tarner was then transferred to the D.C.
Jail. Def. Mot. for Immediate Transfer to Butner FMC, ECF No. 18, at 2.
On August 6, the Court held a status conference. On August 9, the Court issued an order
in which it, “[a]fter holding a hearing, and with the consent of the Government and defense
counsel,” adopted the medical opinion in the competency evaluation report and found Mr. Tarner
not competent. See ECF No. 18, at 1. Pursuant to 18 U.S.C. § 4241(d), the Court ordered Mr.
Tarner committed to the custody of the Attorney General, to be “hospitalize[d] for treatment in a
suitable facility ‘for such a reasonable period of time, not to exceed four months, as is necessary
to determine whether there is a substantial probability that in the foreseeable future he will attain
the capacity to permit the proceedings to go forward.’” See id. (quoting 18 U.S.C. § 4241(d)(1)).
From the date of the Court’s Order until November 17, 2021, the Government filed nine status
reports on Mr. Tarner’s pending transportation and evaluation.
On November 18, 2021, Mr. Tarner objected to the delay by filing a “Motion for Immediate
Transfer to Butner FMC.” See ECF No. 18. Until the present motion, this was the only time Mr.
Tarner objected to the timing of his transport, evaluation, or treatment. Finally, on January 14,
2022 the Government reported that Mr. Tarner had been transferred to Butner the previous day.
See ECF No. 31. In May 2022, the warden informed the Court that Mr. Tarner’s restoration
evaluation was complete. See ECF No. 32-1. Although the attached competency report assessed
Mr. Tarner to be not competent, the evaluators reported “some improvement in [his] symptoms,”
3 stated that he would likely be restored to competency in the future, and asked for an additional 120
days to restore Mr. Tarner to competency. See ECF No. 32-1, at 14. The letter and report were
filed on the Court’s docket on July 8 and on July 29 the Court issued an order granting a 120-day
treatment period, see July 29 2022 Order, ECF No. 33. It did so pursuant to 18 U.S.C.
§ 4241(d)(2)(A). That provision authorizes the Attorney General to hospitalize a mentally
incompetent defendant for treatment in a suitable facility for an additional period of time until
defendant’s “medical condition is so improved that trial may proceed” if a court finds a “substantial
probability that within such additional period of time [the defendant] will attain the capacity to
permit the proceedings to go forward.” 18 U.S.C. § 4241(d)(2)(A).
On November 10, 2022, the warden informed the Court that Mr. Tarner’s competency had
been restored. See ECF No. 34. On December 5, the parties submitted a joint status report
requesting that Mr. Tarner be returned to the District of Columbia. See ECF No. 35. On January
11 the Court held a status conference and on January 23 it issued an order finding Mr. Tarner
competent. See ECF No. 37. Currently, Mr. Tarner is housed at the D.C. Correctional Treatment
Facility. Def. Proposed Order, ECF No. 64, at 2.
B. The Present Dispute
On August 22, 2023 Mr. Tarner gave notice of his intention to present an insanity defense
at trial. See ECF No. 47. On October 2, the Court held a status conference in which it vacated the
trial date and ordered the parties to submit a proposed scheduling order concerning Mr. Tarner’s
insanity defense. On October 18, the Government requested that the Court order Mr. Tarner to
be committed to the custody of the Attorney General for an insanity evaluation pursuant to 18
U.S.C. § 4242. See Gov. Proposed Order, ECF No. 63. Mr. Tarner filed an opposition, objecting
only to the commitment of Mr. Tarner to the custody of the Attorney General and instead
4 requesting that he be evaluated at the D.C. Correctional Treatment Facility. See Def. Proposed
Order. The Government filed a response. See Gov. Response to Def. Proposed Order, ECF No.
67. Mr. Tarner filed a reply. See Def. Reply to Gov. Response to Def. Proposed Order, ECF No.
68.
In addition, on October 20, 2023 Mr. Tarner moved for his release from federal custody
and dismissal of the indictment for alleged violations of IDRA’s procedures and time limits. See
MTD, ECF No. 65. He argues that the Government held him at Butner for longer than the
permitted time for both his initial competency evaluation and his later restoration. See MTD at
10, 13. He also contends that the Court found him not competent and committed him for
restoration without holding the “hearing” required by 18 U.S.C. § 4241(a). Specifically, he finds
fault in the August 6, 2021 status conference. At the status conference, counsel for the Government
and defense agreed that the Court should adopt the finding of the competency report, which the
Court later did in an order. Mr. Tarner argues that although he personally “object[ed] to the finding
of incompetence,” the Court failed to afford him “an opportunity to testify, to present evidence,
to subpoena witnesses on his behalf, and to confront and cross-examine witnesses who appear at
the hearing” as provided by Section 4247(d). See MTD at 12. The Government filed a response.
See Gov. Response to MTD, ECF No. 66. Mr. Tarner filed a reply. See Def. Reply to Gov.
Response to MTD, ECF No. 69. The Government filed a motion for leave to file a sur-reply. See
Gov. Mot. for Sur-Reply, ECF 70.
The matters are now ripe for review.
5 II. ANALYSIS
A. Mr. Tarner’s Motion for Release From Custody and Dismissal of the Indictment Is Moot Since Mr. Tarner has already been evaluated, restored to competency, and released from
competency-related commitment under IDRA, his motion is moot.1
“Under Article III of the United States Constitution,” a federal court “‘may only adjudicate
actual, ongoing controversies.’” D.C. v. Doe, 611 F.3d 888, 894 (D.C. Cir. 2010) (quoting Honig
v. Doe, 484 U.S. 305, 317 (1988)). “Under the mootness doctrine, we cannot decide a case if
‘events have so transpired that the decision will neither presently affect the parties’ rights nor have
a more-than-speculative chance of affecting them in the future.’” Reid v. Hurwitz, 920 F.3d 828,
832 (D.C. Cir. 2019) (quoting Clarke v. United States, 915 F.2d 699, 701 (D.C. Cir. 1990) (en
banc)). Indeed, “[i]f an intervening circumstance deprives the plaintiff of a ‘personal stake in the
outcome of the lawsuit,” at any point during litigation, the action can no longer proceed and must
be dismissed as moot.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 72 (2013) (quoting
Lewis v. Continental Bank Corp., 494 U.S. 472, 477–478 (1990)). The D.C. Circuit has explained
that “[t]he party seeking jurisdictional dismissal must establish mootness, while the opposing party
has the burden to prove that a mootness exception applies.” Reid, 920 F.3d at 832 (citing
Honeywell Int’l, Inc. v. Nuclear Regulatory Comm’n, 628 F.3d 568, 576 (D.C. Cir. 2010)).
In a criminal case, challenges to alleged constitutional violations that occur before trial
may be mooted by later events. For instance, in United States v. Sanchez-Gomez, the Supreme
Court recognized that defendants’ challenge to their pretrial detentions was moot because they
were “no longer in pretrial custody.” See 138 S. Ct. 1532, 1540 (2018); see also United States v.
1 The Government further argues that “[t]he defendant’s acquiescence in, and failure to object to, specific periods of delay in transporting and evaluating the defendant operate to bar his claims here” under doctrines of judicial estoppel and waiver or forfeiture, as well as mootness. Gov. Response to MTD at 15. Because the Court concludes that Mr. Tarner’s claim is moot, it declines to reach these alternative grounds.
6 Young, 428 F. App’x 9, 10 (D.C. Cir. 2011) (“Appellant claims that his pretrial detention violated
his First, Fifth, Sixth, Eighth, Ninth, and Fifteenth Amendment rights, but appellant has been
convicted and his pretrial detention has now ended. Consequently, these issues have been rendered
moot.”); Maydak v. United States, 98 F. App’x 1, 3–4 (D.C. Cir. 2004) (concluding that the
appellant’s claims for injunctive and declaratory relief concerning his treatment in BOP custody
“are moot as he has been released from BOP custody”); United States v. Askia, 893 F.3d 1110,
1122 (8th Cir. 2018) (holding that the defendant’s challenge to an alleged constitutional violation
at the pretrial detention hearing was moot because the issue “will have no direct consequence on
[the defendant] now” since “[h]is pretrial detention has concluded”). Similarly, in Murphy v. Hunt,
the Supreme Court concluded that the defendant’s “claim to pretrial bail was moot once he was
convicted.” 455 U.S. 478, 481–82 (1982). The Court explained that “[t]he question was no longer
live because even a favorable decision on it would not have entitled Hunt to bail” and “Hunt no
longer had a legally cognizable interest in the result in this case” since “[h]e had not prayed for
damages nor had he sought to represent a class of pretrial detainees.” Id.
This general principle applies to the competency context as well. Courts of Appeal
including the D.C. Circuit have held that a commitment order entered under § 4241(d) is
immediately appealable precisely because by the time of a final judgment, it would be moot and
thus effectively unreviewable. See United States v. Weissberger, 951 F.2d 392, 395–97 (D.C. Cir.
1991) (“If [the defendant] is declared competent and the trial proceeds, post-confinement review
will provide no relief for the loss of liberty associated with the competency evaluation.”); United
States v. Gold, 790 F.2d 235, 239 (2d Cir. 1986) (“If the defendant were eventually found
competent to stand trial and were convicted, the commitment order could be reviewed on appeal
from his conviction; but the matter of the relief to be granted if the order were found to have been
7 erroneous would be moot.”); United States v. Friedman, 366 F.3d 975, 979 (9th Cir. 2004)
(“Several of our sister circuits have found that a commitment order entered pursuant to § 4241(d),
like the one at issue here, would be effectively unreviewable on appeal from a final judgment.”)
(citing United States v. Ferro, 321 F.3d 756, 760 (8th Cir. 2003); United States v. Filippi, 211 F.3d
649, 650-51 (1st Cir. 2000); United States v. Boigegrain, 122 F.3d 1345, 1349 (10th Cir. 1997)
(en banc); United States v. Davis, 93 F.3d 1286, 1289 (6th Cir. 1996); Weissberger, 951 F.2d at
396; Gold, 790 F.2d at 239).
So, just as a defendant’s challenge to pretrial detention is moot once the defendant is “no
longer in pretrial custody,” see Sanchez-Gomez, 138 S. Ct. at 1540, a defendant’s challenge to his
competency-related commitment is moot once the defendant is no longer committed. See United
States v. Calderon-Chavez, No. EP-22-CR-01664-DCG-1, 2023 WL 5345582, at *1, 13 (W.D.
Tex. Aug. 18, 2023) (finding a due process violation when nine months had passed since
commitment order under 18 U.S.C. § 4241(d)(1) without hospitalization, but concluding that if the
defendant is evaluated in compliance with the district court’s order, the due process challenge will
become moot); United States v. Hatter, No. 14-CR-1811-GPC, 2015 WL 1511015, at *2 (S.D.
Cal. Mar. 19, 2015) (“Hatter was transferred to Butner . . . and is currently receiving restorative
treatment. As such, the Court finds that any due process challenge based upon any delay while
Hatter awaited restorative treatment is moot.”); United States v. Berard, No. 22-CR-088-01-LM,
2023 WL 3178793, at *8 (D.N.H. May 1, 2023) (“Berard has already been hospitalized. Therefore,
the government has provided the remedy — hospitalization — that courts most commonly order
when the government has failed to timely transport a committed defendant to a hospital. And
neither this court nor Berard has been able to identify any case where a court has dismissed an
indictment for lack of a timely transport after the government has admitted the defendant to a
8 suitable facility.”); United States v. Vanarsdale, No. 22-10103-JWB, 2023 WL 5094011, at *3 (D.
Kan. Aug. 9, 2023) (“[T]he remedy routinely issued by courts is an order requiring the government
to admit the defendant to a suitable facility within a specified time period . . . . Such a remedy is
not necessary here as [the d]efendant has already been transferred to the facility.” (citations
omitted)).
Here, the Government has met its burden of showing that Mr. Tarner’s claim is moot, as
he is no longer hospitalized for a competency evaluation or restoration, or awaiting transport for
either. Nor is he seeking damages or to represent a class. See Murphy, 455 U.S. at 481–82. He
thus “no longer ha[s] a legally cognizable interest” in the outcome of his motion, id., and the Court
is powerless to act on a merely academic question. At this stage, it is “impossible for a court to
grant any effectual relief whatever” to Mr. Tarner. See Chafin v. Chafin, 568 U.S. 165, 172 (2013)
(quoting Knox v. Serv. Emps. Int’l Union, Loc. 1000, 567 U.S. 298, 307 (2012)). Even if he is
correct that IDRA was violated, the Court could not provide relief by ordering his immediate
hospitalization, since he has already been hospitalized, or by revisiting its finding of incompetency,
since he has already been restored to competency.
Although Mr. Tarner bears the burden of establishing an exception to the mootness
doctrine, Reid, 920 F.3d at 832, he has made no attempt to argue that an exception applies. His
motion for release and dismissal of the indictment must therefore be denied as moot.
B. The Court Will Order Mr. Tarner to Be Evaluated at the D.C. Correctional Treatment Facility Applying the plain meaning of 18 U.S.C. § 4247(b), the Court must order an examination
of Mr. Tarner, but it has discretion to order him committed to the custody of the Attorney General
or another entity. Given that committing Mr. Tarner to the Attorney General presents a significant
9 risk of delay that might jeopardize his mental health, the Court will not order him committed to
the Attorney General’s custody.
18 U.S.C. § 4242(a) provides that upon the filing of a notice of insanity defense, “the court,
upon motion of the attorney for the Government, shall order that a psychiatric or psychological
examination of the defendant be conducted, and that a psychiatric or psychological report be filed
with the court, pursuant to the provisions of section 4247(b) and (c).” 18 U.S.C. § 4242(a). Such
an examination is meant to establish whether at the “time of the commission of the acts constituting
the offense,” the defendant was “insane,” § 4247(c)(4)(B), meaning that at such time “the
defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and
quality or the wrongfulness of his acts,” see § 17. Section 4247(b) provides that pursuant to the
Court’s order under Section 4242, “the court may commit the person to be examined for a
reasonable period . . . but not to exceed forty-five days, to the custody of the Attorney General for
placement in a suitable facility.” 18 U.S.C. § 4247(b). The parties agree that the Court must order
an examination, but they disagree about whether the Court is required to commit the defendant to
the custody of the Attorney General or whether instead the Court may order an evaluation
elsewhere.
Mr. Tarner’s reading of the statute is correct. The Fifth Circuit has considered this precise
question and held that “[r]ead in context, the statutory language commands the district court to
order an examination but permits it either to commit the defendant to the custody of the Attorney
General for that purpose or to order that the examination be made in some other manner.” See In
re Newchurch, 807 F.2d 404, 410 (5th Cir. 1986); see also United States v. McKown, 930 F.3d
721, 729 (5th Cir. 2019) (reaffirming the holding of Newchurch). This conclusion follows from
Section 4247(b)’s “use of the permissive word ‘may’ as to the manner of the
10 examination . . . compared to the use of the mandatory word, ‘shall,’ in directing that an
examination of some kind be made,” Newchurch, 807 F.2d at 410. The plain meaning of Section
4247(b) is that the Court must order an examination, and it may order commitment to the custody
of the Attorney General. But the Government has dismissed Mr. Tarner’s argument without
offering a single reason to depart from the plain meaning of the statutory text. See Gov. Response
to Def. Proposed Order at 3. It instead offers ipse dixit. See id. (stating “the defendant’s arguments
are without merit and border on a fundamental misunderstanding of applicable legal principles and
constitutional mandates outlined supra” without providing any reasons for why that is so).
The Court therefore has discretion to commit Mr. Tarner to either the custody of the Bureau
of Prisons or some other entity. When the choice is between commitment to the custody of the
Attorney General and examination on an outpatient basis, several circuits have held that a court
should not lightly choose the former. See Newchurch, 807 F.2d at 411 (“[B]efore committing a
defendant, the court [must] determine, on the basis of evidence submitted by the government,
subject to cross examination, and to rebuttal by the defendant, that the government cannot
adequately prepare for trial on the insanity issue by having the defendant examined as an
outpatient.”); United States v. Deters, 143 F.3d 577, 584 (10th Cir. 1998) (“In ordering
commitment pursuant to 18 U.S.C. § 4241, a ‘district court should make findings of fact
concerning the need for commitment’ . . . .” (quoting Newchurch, 807 F.2d at 412); United States
v. Neal, 679 F.3d 737, 742 (8th Cir. 2012) (remanding because of the district court’s failure to
“require the government to present evidence to justify the inpatient commitment, seriously
consider the defendant’s alternative request for an outpatient examination, or make findings of fact
concerning the need for commitment”). Indeed, “courts have ordered outpatient evaluations where
the government has failed to articulate sufficiently compelling reasons to order a custodial
11 examination.” United States v. McDonald, No. CRIM. 09-656-01 SDW, 2012 WL 4659242, at *2
(D.N.J. Oct. 1, 2012) (collecting cases). In this case, the choice is between commitment to the
custody of the Attorney General or examination at the Correctional Treatment Facility in
Washington, D.C. But the principle remains that in issuing an order under Sections 4242 and
4247, the court should “fetter[] [the defendant’s] freedom in the least restrictive manner.” See
Neal, 679 F.3d at 742.
The tortuous history of this case indicates that if the Court committed Mr. Tarner to the
custody of the Attorney General, months of needless delay would follow. When the Court re-
committed Mr. Tarner to the custody of the Attorney General for restoration, he languished for
five months awaiting his ride to FMC Butner. See ECF 18; ECF No. 30. Now that Mr. Tarner has
been restored to competency, he warns another lengthy delay may jeopardize his mental health to
the point that he becomes once again incompetent to stand trial. See Def. Proposed Order at 3.
Indeed, Mr. Tarner’s competency evaluator “strongly recommended that once restored to
competency, court proceedings are scheduled closely to his restoration” because of a “concern that
Mr. Tarner may decompensate if his return to court is prolonged in holdover facilities.” See Tarner
Forensic Evaluation, ECF No. 17, at 15. Against this risk of delay and a return to incompetency,
the Government does not offer any reason to commit Mr. Tarner to the custody of the Attorney
General. For instance, the Government does not suggest that Mr. Tarner cannot be evaluated at
the D.C. Correctional Treatment Facility or that FMC Butner would be better in any way.
The Court will not roll the dice on Mr. Tarner’s mental health when it does not have to. It
will therefore order that Mr. Tarner receive psychiatric or psychological examination to be
conducted at the D.C. Correctional Treatment Facility.
12 C. The Court Will Deny Mr. Tarner’s Motion to Seal
Mr. Tarner filed his motion for release and dismissal under seal “because it references
numerous documents pertaining to Mr. Tarner’s competency and mental health that remain sealed
on the docket, as well as the transcripts from sealed proceedings pertaining thereto.” MTD at 1
n.1. The Government objects on the basis that neither Mr. Tarner’s motion nor the Government’s
response contains personal identifying information or confidential mental health information.
Gov. Response to MTD at 2.
The D.C. Circuit has explained that the “common-law right of public access to judicial
records ‘is a fundamental element of the rule of law, important to maintaining the integrity and
legitimacy of an independent Judicial Branch.’” In re Leopold to Unseal Certain Elec.
Surveillance Applications & Ords., 964 F.3d 1121, 1127 (D.C. Cir. 2020) (quoting MetLife, Inc.
v. Fin. Stability Oversight Council, 865 F.3d 661, 663 (D.C. Cir. 2017)). There is therefore “a
‘strong presumption in favor of public access to judicial proceedings,’ including judicial records.”
Leopold, 964 F.3d at 1127 (quoting United States v. Hubbard, 650 F.2d 293, 317 (D.C. Cir. 1980)).
In an appropriate case, “that presumption may be outweighed by competing interests.” Id.
But while Mr. Tarner’s motion generally refers to the fact that he has been treated for
mental health issues, it does not include any confidential information about his treatment or
specific condition. And the fact that Mr. Tarner was found incompetent and later restored to
competency is already public, as the Court has issued unsealed orders finding Mr. Tarner
incompetent, ECF No. 18, and then restored to competency, ECF No. 37. Accordingly, the Court
will deny Mr. Tarner leave to file his motion under seal.
13 D. The Court Will Not Consider the Government’s Sur-Reply
The Government’s purported sur-reply addresses Mr. Tarner’s arguments concerning
whether the Government violated IDRA and, if so, what should be the appropriate remedy. See
Gov. Sur-Reply, ECF No. 70-2. The Court will deny the Government’s motion for leave to file
the sur-reply because it addresses the merits of a matter that is moot, and would therefore not be
helpful to the Court.
Although sur-replies are generally disfavored, “[t]he decision to grant or deny leave is
‘committed to the sound discretion of the Court.’” Doe v. Exxon Mobil Corp., 69 F. Supp. 3d 75,
85 (D.D.C. 2014) (quoting Lu v. Lezell, 45 F.Supp.3d 86, 91 (D.D.C. 2014)). “A district court
should consider ‘whether the movant’s reply in fact raises arguments or issues for the first time,
whether the nonmovant’s proposed surreply would be helpful to the resolution of the pending
motion, and whether the movant would be unduly prejudiced were leave to be granted.’” Doe, 69
F. Supp. 3d at 85 (quoting Banner Health v. Sebelius, 905 F.Supp.2d 174, 187 (D.D.C. 2012)).
Because Mr. Tarner’s motion is moot, the Court will not reach the merits of his IDRA
argument, nor will it determine the appropriate remedy for an IDRA violation. The Government’s
sur-reply therefore would not ‘be helpful to the resolution of the pending motion.” Id.
Accordingly, the Court will not consider the Government’s sur-reply.
III. CONCLUSION
For the foregoing reasons:
It is hereby ORDERED that the Defendant Mr. Tarner’s Motion [ECF No. 65] to Seal his
Motion for Release from Custody and Dismissal of the Indictment is DENIED, and it is further
ORDERED that the Defendant Mr. Tarner’s Motion [ECF No. 65] for Release from
Custody and Dismissal of the Indictment is DENIED, and it is further
14 ORDERED that the Government’s Motion [ECF No. 70] for Leave to File a Sur-Reply is
DENIED.
As the Defendant gave notice on August 22, 2023, pursuant to Federal Rule of Criminal
Procedure 12.2, that he intends to present a defense of insanity in this case:
It is ORDERED that pursuant to 18 U.S.C. § 4242, a psychiatric or psychological
examination be conducted by a licensed or certified psychiatrist or psychologist, and it is further
ORDERED that the government shall ensure such an evaluation occurs within twenty days
of this order, and it is further
ORDERED that a psychiatric or psychological report be filed with the Court, pursuant to
the provisions of 18 U.S.C. § 4247(b) and (c), and it is further
ORDERED that the examination shall be conducted at the Correctional Treatment Facility
in Washington, D.C., and it is further
ORDERED that the examination shall determine pursuant to 18 U.S.C. § 17 whether at
the “time of the commission of the acts constituting the offense” —July 15, 2020 — “the
defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and
quality or the wrongfulness of his acts,” and it is further
ORDERED that the examination shall be conducted by a licensed or certified psychiatrist
and/or psychologist, or more than one such examiner, and it is further
ORDERED that pursuant to § 4247(c), the report shall be prepared by the examiner and
shall be filed under seal with the Court with copies provided to counsel for the defendant and to
the attorney for the Government. Pursuant to § 4247(c), the report shall include: (1) the
Defendant’s history and present symptoms; (2) a description of the psychiatric, psychological, and
medical tests that were employed and their results; (3) the examiner’s findings; and (4) the