1 Kurt M.

Altman
Arizona Bar Number 015603
2 KURT M. ALTMAN, P.L.C.
Attorney at Law
3 4848 East Cactus Road, Suite 505-102
Scottsdale, Arizona 85254
4 attorneykaltman@yahoo.com
Phone: (602) 689-5100
5 Fax: (602) 368-4512
Attorney for Defendant
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UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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Case Number: CR 10-1126-9-PHX-GMS
9 United States of America
EX PARTE MOTION TO
10 Plaintiff, DETERMINECOMPETENCY OF
DEFENDANT AND APPOINT EXPERT TO
11 v. PERFORM EVALUATION UNDER 18 U.S.C.
4241(a) and (b)
12 John Kweku Eshun,

13 Defendant.
Assigned to Honorable G. Murray Snow
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Undersigned counsel for Defendant John Kweku Eshun, respectfully requests this Court enter
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16 an order to have defendant Mr. Eshun evaluated under 18 U.S.C. § 4241(a) and appoint Marc S.

17 Walter, PHD, to conduct the evaluation. Support for this request is contained in the attached

18 Memorandum of Points and Authorities.

19 Excludable delay under 18 U.S.C. § 3161(h)(8)(A) may result from this motion.
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RESPECTFULLY SUBMITTED this 13th day of January, 2013.
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KURT M. ALTMAN, P.L.C.
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s/ Kurt M. Altman
23 ____________________________
KURT M. ALTMAN
24 Attorney for Defendant

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 1 I hereby certify that on January 13, 2013
I electronically transmitted the attached
2 document to the Clerk’s Office using the
CM/ECF system for filing and transmittal
3 of a Notice of Electronic Filing to the
following CM/ECF registrants:
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The Honorable G. Murray Snow
5 United States District Court Judge
snow_chambers@azd.uscourts.gov
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s/ Kurt M. Altman
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KURT M. ALTMAN, P.L.C.

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4848 E AST C ACTUS R OAD ,

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(602) 689-5100
(602) 689-5100
S UITE 505-102

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 1 MEMORANDUM OF POINTS AND AUTHORITIES
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I. FACTS:
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Undersigned counsel was appointed to represent Mr. Eshun in the current matter in
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approximately December, 2011. Throughout the course of the representation Mr. Eshun has been out
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of custody living in the Atlanta, Georgia area. Although great distance exists between defendant and
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7 his counsel, communication has been regular and routine. Defendant has also been able to meet with

8 counsel in person in Phoenix, Arizona on a number of occasions. Although communication has been
9 regular, it has always been somewhat reserved and restrained. Initially upon appointment,
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undersigned informed Mr. Eshun that prior to working as a defense lawyer counsel was a member of
KURT M. ALTMAN, P.L.C.

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the U.S. Attorney’s Office that is prosecuting him. At the time of the disclosure Mr. Eshun seemed
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(602) 689-5100
(602) 689-5100
S UITE 505-102

somewhat unsettled by the information but expressed his confidence in the representation.
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14 As this Court is aware, on August 20, 2012, during a status conference on the matter, counsel

15 discussed some issues and concerns he had about the representation of Mr. Eshun. At the Court’s

16 suggestion, undersigned filed an Ex Parte Motion to Determine Counsel, attached to this motion as
17 Exhibit A. A hearing was held on the Motion to Determine Counsel on September 10, 2013, during
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which the Court conducted a lengthy discussion with counsel and Mr. Eshun. To summarize, during
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the hearing the Court confirmed to Mr. Eshun that this matter was not a “commercial” one and that
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the case would proceed by either plea or trial. Mr. Eshun expressed an understanding of what he was
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22 told but insisted that both counsel and the Court were incorrect. Undersigned suggested that Mr.

23 Eshun may benefit from a competency evaluation as it is unclear whether defendant actually

24 understood the situation and proceedings and furthermore, possessed the ability to assist in his
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defense. During the hearing, the Court agreed and ordered that Mr. Eshun be evaluated pursuant to
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18 U.S.C. § 4241. Defendant strenuously protested declaring that he was of sound mind and need not
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 1 be evaluated, at which point the Court reversed its decision and withdrew its order to evaluate
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defendant without prejudice. At the conclusion of the hearing, pursuant to this Court’s order,
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undersigned counsel remained attorney of record.
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Since September 10, 2012, counsel has been in constant communication with defendant while
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preparing to defend him. Although very cooperative, Mr. Eshun has persisted that the documents
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7 attached in Exhibit B, and others similar, which he has guaranteed to supply to counsel will resolve

8 the matter. Again, an on numerous occasions, counsel has discussed that the only possibilities
9 presented in this matter are trial or disposition by plea. Mr. Eshun insists that is not that case and the
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case will resolve by another means as there will be no trial and no plea. Undersigned counsel has
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made every effort to understand defendant’s position, which is held genuinely, to no avail. Mr.
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(602) 689-5100

Eshun’s genuinely held position has left counsel in a position where he is unable to defend Mr. Eshun
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14 which is illustrated by “LETTER OF INSTRUCTION FOR COUNSEL,” contained in Exhibit B.

15 Based on the longstanding relationship and interactions between Mr. Eshun and counsel and Eshun’s

16 continued insistence that this serious criminal matter is “commercial” and can be resolved as such,
17 counsel believes an evaluation is warranted and necessary. It has become impossible to effectively
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represent defendant because he is either “unable to understand the nature and consequences of the
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proceedings against or to assist properly in his defense.” 18 U.S.C. § 4241(a).
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This Court should note that the filing of this motion and reasons for filing were discussed with
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22 defendant by counsel. Defendant was adamant that the motion should not be filed and repeatedly

23 urged counsel not to file it. However, undersigned counsel believes it is a professional obligation to

24 file said motion under the circumstances.

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 1 II. DISCUSSION:
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Counsel has contacted Dr. Marc Walter to conduct the evaluation. Dr. Walter indicated he
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would be willing and able to conduct the evaluation and that he believed it could be completed
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quickly. Dr. Walter has conducted competency evaluations in this Court on numerous occasions and
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accepts the standard CJA rate of payment. Dr. Walter’s current CV is attached as Exhibit C.
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7 Conclusion:

8 For the reasons stated herein, undersigned counsel requests this Court enter an order:
9 1.) Authorizing an competency evaluation of defendant John Eshun;
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2.) Authorizing the appointment of Marc S. Walter, Ph.D., 7220 N. 16th St., Suite G, Phoenix,
KURT M. ALTMAN, P.L.C.

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AZ 602-944-0480:
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3.) Authorizing payment of Dr. Walter at the standard CJA rate per hour not to exceed 25 hours,
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14 with reasonable and necessary expenses:

15 4.) Authorizing interim payment for Dr. Walter.

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17 RESPECTFULLY SUBMITTED this 13th day of January 2013.

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KURT M. ALTMAN, P.L.C.
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s/ Kurt M. Altman
20 ____________________________
KURT M. ALTMAN
21 Attorney for Defendant

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25 I hereby certify that on January 13, 2013,

I electronically transmitted the attached
26 document to the Clerk’s Office using the
CM/ECF system for filing and transmittal
27 of a Notice of Electronic Filing to the

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 1 following CM/ECF registrants:
2 The Honorable G. Murray Snow
United States District Court Judge
3 snow_chambers@azd.uscourts.gov
4

6 s/ Kurt M. Altman
7

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KURT M. ALTMAN, P.L.C.

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4848 E AST C ACTUS R OAD ,

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(602) 689-5100
(602) 689-5100
S UITE 505-102

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