In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-2241

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SERGIUS A. RINALDI,

Defendant-Appellant.

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Appeal from the United States District Court

for the Central District of Illinois.

No. 01 CR 30110—Richard Mills, Judge.

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ARGUED SEPTEMBER 24, 2003—DECIDED DECEMBER 1, 2003

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Before BAUER, EASTERBROOK, andDIANE P.WOOD, Circuit

Judges.

BAUER, Circuit Judge. Sergius Rinaldi pleaded guilty to

committing mail fraud and obstructing a health care fraud

investigation. Before sentencing, he moved to withdraw his

plea based on his claim that he suffers from Adult Attention

Deficit Disorder and that the disorder prevented him from

forming the requisite criminal intent at the time he committed the offenses. The district court denied the motion and

Rinaldi moved to reconsider. Rather than rule on the

motion to reconsider, the court ordered that the defendant

be committed for a custodial examination not to exceed 45

days to determine whether he was in fact suffering from a

claimed mental disease or defect during the commission of
2 No. 03-2241

his crimes. The defendant appeals this order. We remand

directing the rewriting of the order consistent with this

opinion.

BACKGROUND

Rinaldi is an orthodontist with offices in Springfield

and Edwardsville, Illinois. His clients included wards of the

state of Illinois who were under the protection of the Illinois

Department of Children and Family Services (DCFS), and

individuals who were receiving Medicaid assistance from

the Illinois Department of Public Aid (IDPA). From 1994 to

2001, Rinaldi submitted claims to DCFS and the IDPA for

services rendered to these government insured patients. He

submitted claims to DCFS and IDPA for services he did not

perform. At least twice he billed the IDPA and/or DCFS for

putting braces on children, which he did not do, as well as

for “adjustments” to braces at times when he did not even

see the patients.

In January 2001, Rinaldi was issued a grand jury subpoena demanding the production of records related to his

orthodontics practice. Specifically, the subpoena requested

the production of the original case files and claim forms for

selected patients, the explanation of benefit forms for those

same patients, appointment books for the years 1995-2000,

patient sign-in sheets, appointment logs, and records of

cancellations.

The defendant refused to produce the records and the

district court conducted a hearing to determine if Rinaldi’s

refusal to reply was contemptuous. The government presented evidence to establish that the defendant removed

records from his Springfield office after being served with

the subpoena and was later seen hiding them near a

dumpster outside of a McDonald’s restaurant. 
No. 03-2241 3

During the contempt hearing Rinaldi testified on his own

behalf. At the conclusion of the hearing, the district court

remarked that it gave “absolutely no credence” to the defendant’s testimony and found that “Dr. Rinaldi ha[d] lied”

and “had not been truthful with the Court.” In Re Grand

Jury Proceedings, 280 F.3d 1103,1106-07 (7th Cir.), cert.

denied, 536 U.S. 925 (2002). The court found the defendant

in wilful contempt and ordered him to be held in prison and

fined until he complied. The defendant remained confined

until November 2001. On November 8, 2001, Rinaldi was

indicted.

The indictment charged that the defendant developed

a broad scheme to defraud DCFS and the Medicaid system

in the state of Illinois. Over a seven-year period, the defendant submitted false documents to the IDPA and, during

an audit of his practice, obstructed the criminal investigation by removing and hiding records. The defendant entered

into a plea agreement with the government, agreeing to

plead guilty to charges of mail fraud and obstruction of a

health care fraud investigation.

In January 2003, after the sentencing had been delayed

several times, the defendant filed a motion to withdraw his

guilty plea. In the motion, Rinaldi suggested that despite

having explored all of his defenses with his two attorneys

before his plea agreement, he nonetheless had discovered

new and viable defenses. One of his newfound defenses was

the fact that he had learned, subsequent to the plea

agreement, that any mistakes made by him with respect to

record keeping or the concealing of documents were the

result of a DSM IV diagnosis of Adult Attention Deficit

Disorder and not criminal intent. The court denied the

motion finding nothing deficient about the plea agreement

and that this new theory of defense was contrary to the

defendant’s prior testimony under oath.

The defense then filed a motion to reconsider the denial

of the motion to withdraw the guilty plea. The district court
4 No. 03-2241

did not rule on this motion. Instead, the court ordered

Rinaldi to submit to an independent mental examination.

The court ordered that the evaluation be performed in a

suitable facility as arranged by the United States Attorney

General, and ordered the defendant to submit himself to

custody for the examination. The defendant then filed

another motion requesting that the court modify its order.

The district court denied the motion to modify and reaffirmed its ruling on May 1, 2003. The matter was stayed,

pending this appeal.

ANALYSIS

I. Jurisdiction

First, we consider whether we have appellate jurisdiction

over this interlocutory appeal. Generally, the final judgment rule is strictly applied, particularly in criminal cases.

Flanagan v. United States, 465 U.S. 259, 264-65 (1984).

However, the collateral order doctrine does permit an

interlocutory appeal for some non-final orders that are too

important to be denied review and which are so disconnected from the merits that appellate consideration is required before final adjudication. Cohen v. Beneficial Indus.

Loan Corp., 337 U.S. 541, 546 (1949). 

In United States v. Barth, the Second Circuit held that a

commitment order for a preliminary psychiatric evaluation

was not reviewable on an interlocutory appeal. 28 F.3d 253

(2nd Cir. 1994). We decline to follow that decision, following

instead the Supreme Court’s holding in Stack v. Boyle,

where the Court held that there was appellate jurisdiction

over an interlocutory appeal challenging pretrial bail as

excessive, violating the Eighth Amendment. 342 U.S. 1

(1951). In that case, the Court reasoned that where pretrial

bail is challenged, relief “must be speedy to be effective.” Id.

at 4. We believe that the same reasoning applies here.
No. 03-2241 5

When an order calls for a defendant’s incarceration,

appellate review is proper.

According to the Supreme Court in Flanagan, an order

must meet three conditions to fit within this narrow exception: (1) the order must conclusively determine the disputed question; (2) it must dispose of an issue totally apart

from merits of the action; and (3) it must be virtually

unreviewable on appeal from a final judgment. Flanagan,

465 U.S. at 265. 

The requirements of the collateral order doctrine are

easily satisfied in this case of an order of commitment for

psychiatric examination. United States v. Davis, 93 F.3d

1286, 1289 (6th Cir. 1996). First, the order conclusively

determined that Rinaldi should undergo a psychiatric examination to determine his capacity to form criminal intent.

Second, determinations about Rinaldi’s mental capacity are

separate from the issue of his guilt or innocence. Finally,

the order would be virtually unreviewable because there

would be no effective relief for Rinaldi’s loss of liberty

during the period of commitment. Id.; see also United States

v. Weissberger, 951 F.2d 392, 396 (D.C. Cir. 1991); United

States v. Gold, 790 F.2d 235, 239 (2nd Cir. 1986) (discussing

the unreviewability of an order of commitment); United

States v. White, 887 F.2d 705, 707 (6th Cir. 1989) (finding

jurisdiction is over an appeal from order of commitment to

determine competency). So the collateral order doctrine

applies here; we have jurisdiction. 

We now turn to the merits of the defendant’s appeal and

consider whether the district court’s order for an in-custody

mental examination of the defendant was proper.

II. Authority Under Federal Rule of Criminal Procedure

12.2

Federal Rule 12.2 was developed to require a defendant

who intended to present a defense of mental illness, insan-
6 No. 03-2241

ity, incompetence or diminished capacity to provide notice

to the government before trial. FED. R. CRIM. P. 12.2 (2002).

After notice, the government could request a psychiatric

evaluation of the defendant. Id. Rule 12.2 was amended to

address five issues: (1) to clarify that a court may order a

mental examination for a defendant who has indicated an

intention to raise a defense of mental condition bearing on

the issue of guilt; (2) to require the defendant to give notice

of intent to present expert evidence of mental condition in

a capital case; (3) to provide authority to the court to order

an examination in a capital sentencing; (4) to set the timing

of disclosure; and (5) to extend the sanctions provisions to

capital cases. Id. None of the stated purposes were to

create authority for the court to order in-custody examinations of defendants filing notice of intent to present expert

evidence on a diminished capacity defense.

In United States v. Davis, the Sixth Circuit held that

the district court lacked the authority to order the commitment and examination of a defendant under Rule

12.2 where a defendant claimed lack of capacity to form

specific intent as opposed to a claim of incompetence or

insanity. 93 F3d 1286 (6th Cir. 1996). Although Davis

was decided before the 2002 amendments to Rule 12.2,

the amendments do not alter the holding in Davis. The

amendment codified the Davis holding that an outpatient

examination could be ordered when a defendant raises a

diminished capacity defense. The fact that the rule did not

address the in-custody examination suggests that the new

rule left the prohibition on in-custody evaluations intact.

See Committee Notes, 2002 Amendments, West Federal

Criminal Code and Rules (2003 ed.) at 88.

III. Authority Under 18 U.S.C. §§ 4241 and 4242

The district court erred when it relied on 18 U.S.C.

§§ 4241 and 4242 as the basis for ordering an in-custody
No. 03-2241 7

examination. These sections only apply in specific circumstances and not in situations where the defendant has given

notice that he wishes to present evidence of diminished

capacity. Section 4241 applies where there is an issue of the

defendant’s competency to stand trial and Section 4242

applies when there is an issue of insanity at the time of

offense. Rinaldi does not fit the criteria for an in-custody

examination.

IV. Non-custodial Mental Examination Allowed 

While Rule 12.2 does not provide authority for the district

court to order a custodial examination, nothing in the rule

prevents a court from inviting the defendant’s consent to an

examination. This consent might be elicited by telling him

that unless he agreed to the mental examination, the court

will simply deny the motion to withdraw the plea and will

proceed with sentencing. Rinaldi has said that he will agree

to a non-custodial examination.

CONCLUSION

The district court’s order for an in-custody mental examination of Rinaldi was improper. However, the court may

invite the defendant to consent to an outpatient examination. The defendant seeks to withdraw his guilty plea based

on his inability to form criminal intent and so the court is

certainly entitled to order its own examination to determine

the merits of his motion to withdraw his plea. 

This appeal is REVERSED and REMANDED for further

proceedings consistent with this opinion.
8 No. 03-2241

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-1-03