The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Defendant, Toni Lapi, was charged in a one-count indictment
with bank robbery, under 18 U.S.C. § 2113(a). Following his
arrest and incarceration, Lapi began exhibiting behavior that
called into question his mental competency to stand trial. On
August 1, 2002, Lapi moved this Court for a competency hearing.
On August 21, 2002, this Court granted Lapi's motion and
entered an order committing Lapi to the custody of the United
States Attorney General for evaluation. The Court ordered Lapi to
be transferred to the Federal Medical Center in Rochester,
Minnesota, for a competency evaluation pursuant to
18 U.S.C. § 4241(b).
Lapi arrived at the Rochester facility on September 10, 2002.
On October 22, 2002, the Warden from the Rochester facility
informed the Court via a letter that Lapi "suffers from a mental
disease or defect rendering him unable to understand the nature
and consequences of the proceedings against him, or to assist
properly in his defense." Rochester Forensic Psychologist Dr.
Kelly Ball concluded that Lapi's unremitting and grossly
disorganized behavior could not be easily feigned. She further indicated that his medical records revealed nearly
thirty years of treatment for severe mental illness. Dr. Ball
determined that Lapi suffered from Schizoaffective Disorder,
which is a severe and chronic psychotic illness that requires
On November 1, 2002, this Court found Lapi mentally incompetent
to stand trial and committed Lapi to the custody of the Attorney
General for hospitalization and treatment, pursuant to
18 U.S.C. § 4241(d), "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 adjunctive process to proceed."
On March 6, 2003, Dr. Ball reported that during Lapi's
four-month inpatient hospitalization, Lapi was provided with the
full services of a multi-disciplinary treatment team. Dr. Ball
reported that Lapi did not always appear confused, "but such
episodes occur with enough regularity, that his competency
remains highly questionable." Dr. Ball requested a 120-day
extension of Lapi's commitment to allow for medication
adjustments in an attempt to restore him to competence. On March
13, 2003, Lapi was ordered to remain in the custody of the
Attorney General for an additional 120 days of treatment pursuant
to 18 U.S.C. § 4241(d)(2).
In a report dated June 30, 2003, the Rochester staff determined
that Lapi was still unable to understand the nature and
consequences of the charges against him, or to assist properly in
his own defense. Further, the doctors determined that there is
not a substantial probability that Lapi will attain the capacity
to permit the trial to proceed in the foreseeable future.
In addition to Lapi's competency, the Rochester staff addressed
Lapi's potential dangerousness. The staff found that as a result
of Lapi's mental illness, his release from custody would create a
substantial risk of harm to others or to the property of others
and that he was "in need of continued inpatient mental health treatment in a secure
facility such as any Bureau of Prisons medical center."
Accordingly, the Warden at the Rochester facility filed a
Certificate of Mental Disease or Defect and Dangerousness in the
United States District Court for the District of Minnesota,
pursuant to 18 U.S.C. § 4246(a).
On July 2003, the Court ordered that Lapi remain committed in
the custody of the Attorney General and the Bureau of Prisons,
pursuant to 18 U.S.C. § 4246, for an indeterminate period of
time. On September 24, 2003, the Court found, pursuant to
18 U.S.C. § 4241(d), that Lapi's mental condition had not so
improved as to permit the criminal trial to proceed and that he
was properly subject to the provisions of 18 U.S.C. § 4246.
Accordingly, Lapi was ordered to remain in the custody of the
Attorney General, pending resolution of the commitment
proceedings in the District of Minnesota. During this time, it
was determined that suitable arrangements for state custody were
available at a mental health facility in Elgin, Illinois. The
Elgin Mental Health Center advised the Rochester facility that it
would accept Lapi's placement. Lapi was voluntarily admitted into
the Elgin facility in early October 2003. Consequently, federal
commitment was unnecessary, so the Government filed a Withdrawal
of Commitment Petition in the United States District Court of
However, while at the Elgin facility, it was determined that
Lapi no longer required hospitalization and that a nursing home
or group home facility would be suitable. Lapi was then placed in
a group living facility in Arlington Heights, Illinois. After
approximately ninety days at the Arlington Heights facility, it
was determined that Lapi was incapable of the routine and regimen
required at the facility and that a nursing home was recommended.
Lapi refused to go live in a nursing home and left the facility.
Lapi's current whereabouts are presently not known. The Government has now moved for another examination to
determine whether Lapi remains incompetent. Lapi argues that the
Court lacks statutory authority to commit Lapi for a second
Interpretation of the Insanity Defense Reform Act of 1984 is
guided by three principles: (1) Congress's power to provide for
the custody of persons charged with a crime and awaiting trial,
(2) limitations on the power of Congress by the fact that the
care of insane persons is essentially a function of the state,
and (3) assuring commitment proceedings pursuant to statute
comport with due process. See United States v. Shawar,
865 F.2d 856, 859 (7th Cir. 1989) (Shawar).
If a court concludes, after a Section 4241 hearing, that a
defendant is not competent, the court must commit the defendant
to the care of the Attorney General for evaluation and treatment.
18 U.S.C. § 4241(d); Shawar, 865 F.2d at 860. The Attorney
General then hospitalizes the defendant for treatment in a
suitable facility for a time not to exceed four months to
determine whether there is a substantial probability that in the
foreseeable future he will attain the capacity to permit the
trial to proceed or for an additional reasonable time until his
mental condition is so improved the trial may proceed or the
pending charges against him are disposed of according to law. If,
at the end of the time period specified, it is determined that
the defendant's mental condition has not improved as to permit
the trial to proceed, the defendant becomes subject to the
provisions of Section 4246. 18 U.S.C. 4241(d).
Pursuant to Section 4246, if the director of the facility in
which the defendant is hospitalized pursuant to Section 4241(d)
determines the defendant is presently suffering from a mental
disease or defect as a result of which his release would create a
substantial risk of bodily injury to another person or serious
damage to the property of another, and that suitable arrangements
for state custody and care of the person are not available, the director shall
transmit a certificate indicating such to the clerk of the court.
The court then must conduct a hearing to determine whether the
defendant is presently suffering from a mental disease or defect
as a result of which his release would create a substantial risk
of bodily injury to another person or serious damage to another's
property. A certificate filed under this section stays the
release of the defendant pending completion of these procedures.
18 U.S.C. § 4246(a). The responsibility for filing a certificate
under Section 4246(a) lies with the director of the facility in
which the defendant is hospitalized. The statute does not
authorize either the Government or the district court to initiate
Section 4246 proceedings. See United States v. Moses,
106 F.3d 1273, 1280 (6th Cir. 1997) (Moses).
No certificate has been filed in the instant case. Furthermore,
there is no statutory authority for the Government to initiate
the proceedings under Section 4246, as requested in its present
motion. See Moses, 106 F.3d at 1280. Nor has the Government
identified any other statutory authority providing for a second
mental competency hearing. Accordingly, the ...