USA v. Soud

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
MAHMOUD GHASSAN SOUD,
Defendant.
Case No. 3:20-cr-00036-SLG-MMS
ORDER REGARDING MOTION FOR MENTAL HEALTH RECORDS
Before the Court at Docket 145 is the government’s Motion Regarding Mental
Health Records for Sentencing. Defendant Mahmoud Ghassan Soud filed a
response in opposition at Docket 148.
Mr. Soud’s competence to stand trial and issues regarding his mental health
have been raised at various times during the progression of this case.1 Sentencing
in this case is currently scheduled for August 19, 2021.2 The government seeks an
order releasing Mr. Soud’s mental health records to the U.S. Probation Office and
requiring the Probation Office to “summarize, and consider information regarding the
Defendant’s mental health when preparing the presentence report investigation and
sentencing recommendation.”3 Mr. Soud objects to the release of his mental health
1 See, e.g., Docket 64 (Order on Motion for Competency Hearing and Examination and Subpoena
for Mental Health Records).
2 Docket 140.
3 Docket 145 at 2. A portion of Mr. Soud’s mental health records are held by the Court in camera.
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Case No. 3:20-cr-00036-SLG-MMS, USA v. Soud
Order re Motion for Mental Health Records
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records to the Probation Office, asserting that Federal Rule of Criminal Procedure 32
contemplates that “a defendant may decline to participate in the presentence
investigation process at all” and thus is not obligated to release records for use in the
presentence investigation.4
The Court finds that nothing in Rule 32 requires Mr. Soud to disclose his mental
health records to the Probation Office or requires the Probation Office to review his
mental health records.5 To be sure, Rule 32(d)(2) requires the presentence report to
include “any circumstances affecting the defendant’s behavior that may be helpful in
imposing sentence or in correctional treatment.” However, the government has cited
to no rule or case that requires Mr. Soud to forgo his privacy interests in his mental
health records.6
Docket 58.
4 Docket 148 at 1.
5 See, e.g., Sans v. United States, Case No. 2:12-cr-00030-GZS, 2015 WL 3775095, at *9 (D.
Maine June 17, 2005) (“Rule 32, however, does not require the Probation Office to conduct the
search [for medical records] in a particular manner, or to obtain any specific or particular records.”)
(footnote omitted); Jones v. Cardwell, 686 F.2d 754, 756 (9th Cir. 1982) (holding that the Fifth
Amendment’s right against self-incrimination applies during presentence investigation interviews).
6 Cf. United States v. Streich, 560 F.3d 926, 932–35 (9th Cir. 2009) (Kleinfeld, J., concurring)
(noting that when the defendant had waived nondisclosure of psychosexual treatment records, the
district court correctly ruled that the psychosexual history could be included in the presentence
report—even though the court determined that the history was unnecessary for its determination of
a sentence—because including the information in the presentence report “will enable the Bureau of
Prisons to determine the best method to deal with Streich’s criminality”). But see 18 U.S.C. § 3661
(“No limitation shall be placed on the information concerning the background, character, and
conduct of a person convicted of an offence which a court of the Unite States may receive and
consider for the purpose of imposing an appropriate sentence.”).
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Case No. 3:20-cr-00036-SLG-MMS, USA v. Soud
Order re Motion for Mental Health Records
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In light of the foregoing, IT IS ORDERED that the motion at Docket 145 is
DENIED.
Dated this 11th day of June, 2021, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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