UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

UNITED STATES OF AMERICA

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Plaintiff, )

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v. ) Cause No. 3:14-CR-00062 RLM

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THOMAS M. REA )

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Defendant. )

REPORT AND RECOMMENDATION

On March 10, 2016, the Defendant, Thomas M. Rea, by counsel, filed a Motion to

Dismiss and Memorandum in Support. [Doc. Nos. 59 & 60]. On March 23, 2016, the United

States filed its Response to the Defendant’s Motion to Dismiss. [Doc. No. 63]. And on March

15, 2016, the Honorable Robert L. Miller, Jr. referred the Defendant’s Motion to Dismiss to the

undersigned to issue a Report and Recommendation on the appropriate disposition of the

Defendant’s motion. [Doc. No. 61]. For the reasons that follow the undersigned now

RECOMMENDS that the Defendant’s Motion to Dismiss be GRANTED.

I. PROCEDURAL BACKGROUND

On April 10, 2014, the Defendant was charged by way of a complaint,1 for using a

telephone to threaten the damage or destruction of a building by means of an explosive in

violation of 18 U.S.C. § 844(e). Specifically, it was alleged that the Defendant made threatening

calls to a local television station in which he threatened to “bunker bomb” the federal building in

downtown South Bend. As the affidavit in support of a criminal complaint reveals the

Defendant had been charged in 1997 with making a threat against former Presidents in violation

of 18 U.S.C. § 879. The affidavit also indicated that the Defendant’s mother informed the

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The Defendant was subsequently indicted on June 11, 2014, for the same offense.
affiant that Rea had been diagnosed as a paranoid schizophrenic and she believed her son was

“off his medication” for the past several months. She also told federal agents that Rea scares her

and that she has caught him making phone calls late at night yelling at people. 

In light of the Defendant’s history and aware of his mother’s concerns, the United States

moved for a competency exam at the Defendant’s initial court appearance following his arrest on

April 10, 2014. [Doc. No. 4]. After appointing counsel for the Defendant, the Court continued

the detention hearing and government’s motion for a competency examination to April 15, 2014. 

On that date, the Court, without objection, granted the motion for a competency exam and

remanded the Defendant to the United States Marshal for transportation to Butner, North

Carolina to the Federal Medical Center for the purposes of determining the competency of the

Defendant.

On June 18, 2014, the Court received the report of the forensic psychologist who opined

that the Defendant was presenting symptoms consistent with schizophrenia, and as a result, was

unable to understand the nature and consequences of the court proceedings against him or assist

in his defense. The psychologist also believed that Rea may be restored to competency if he

received treatment and medication. As voluntary treatment was not successful, the Federal

Medical Center requested and the Court ordered the involuntary treatment of the Defendant on

February 9, 2015. The treatment was extended upon the request of the Warden of the Federal

Medical Center on July 9, 2015.

On October 5, 2015, another psychological report was received from the Federal Medical

Center in which the forensic psychologist informed the Court that the Defendant “continued to

present with active symptoms of psychosis, specifically persecutory delusions, which

significantly interfere with his rational understanding of the [criminal] proceedings and his

ability to assist his attorney planning a defense strategy.” In short, the report concluded that

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despite involuntary medication, Rea continues to lack competency to stand trial on the changes

he faces. Additionally the forensic psychologist opined further that “there is not a substantial

probability that the Mr. Rea’s competency to stand trial can be restored in the foreseeable

future.”

Neither the Defendant nor the United States challenged the psychologists’ opinions or

conclusions. On November 12, 2015, the Court, without objection, found the Defendant

incompetent and not restorable and then ordered further evaluation pursuant to 18 U.S.C. § 4246

concerning the Defendant’s risk of dangerousness.

On January 7, 2016, the Court received a report in which the forensic psychologist

opined that the Defendant would not pose a substantial risk of injury or damage to property if

released unconditionally.

Having found the Defendant to be incompetent to stand trial and now presented with an

opinion that he does not pose a danger if released unconditionally, the Court issued an order on

February 10, 2016, requiring the parties to file briefs on how best to proceed. The United States

filed its Brief on March 10, 2016. On the same day, the Defendant filed the instant Motion to

Dismiss Indictment. 

The United States, though not disputing any of the opinions or conclusions of the several

psychologists that found the Defendant incompetent to stand trial and not dangerous, argued that

the Court could continue the Defendant’s detention for a “reasonable period” or the Court could

release the Defendant with conditions. The Defendant simply argued that the Indictment should

be dismissed.2

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It is unknown why the United States did not file its own motion to dismiss the indictment

after concluding that the Defendant’s incompetency made continued prosecution legally impossible.

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While no one argued that the criminal prosecution could proceed or that the Defendant

could be kept in custody indefinitely, it was unclear how to fashion appropriate conditions of

release particularly if the likely end result would be the dismissal of the Indictment. To assist

the Court and the Defendant in accessing available and appropriate psychological treatment in

the community, the Court appointed Professor Michael J. Jenuwine of the University of Notre

Dame Law School as the Defendant’s Guardian Ad Litem.

On May 9, 2016, as a result of the efforts of the Defendant’s criminal defense attorney,

his Guardian Ad Litem, his family members and the United States Probation Officer, the Court

was able to order the release of the Defendant, with conditions and without any objections. 

Specifically, the Court ordered the release of the Defendant and imposed two conditions of

release: (1) the Defendant shall submit to medical, mental and psychological evaluation and

treatment as required by representatives of Oaklawn and (2) that the Defendant institute

guardianship proceedings in state court. The Court also ordered the Defendant’s Guardian Ad

Litem to file a report indicating when the two conditions have been fulfilled.

In a status report filed May 27, 2016, the Defendant’s Guardian Ad Litem indicates that

the Defendant is now in a group home receiving psychological treatment, has been fully

compliant with his medications and has been “doing quite well.” [Doc. No. 75]. In addition, the

Guardian reports that the Defendant’s sister has filed a Petition for Guardianship of the

Defendant in the St. Joseph County Probate Court.

The remaining issue before the Court is the pending Motion to Dismiss Indictment.

II. ANALYSIS

The law has been clear for some time that “a criminal defendant may not be tried unless

he is competent.” Pate v. Robinson, 383 U.S. 375, 378, (1966). Nor can he waive his right to

counsel or plead guilty unless he does so “competently and intelligently,” Johnson v. Zerbst, 304

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U.S. 458, 468, (1938); accord Brady v. United States, 397 U.S. 742, 758, (1970) see Godinez v.

Moran, 509 U.S. 389 (1993) (holding that the standard of competency for pleading guilty or

waiving right to counsel is the same as the competency standard for standing trial). It is also

clear, and the United States does not argue otherwise, that the Defendant is neither competent to

stand trial nor likely to be restored to competency with treatment, even if administered

involuntarily. As one forensic psychologist opined “. . . there is not a substantial probability that

Mr. Rea’s competency to stand trial can be restored in the foreseeable future.” Doc. No. 41 at 8.

Nevertheless, the Defendant could continue to be held in custody despite not being

competent to stand trial, if the United States initiates civil commitment proceedings against the

Defendant pursuant to 18 U.S.C. § 4246 and the Court concludes that the Defendant would pose

a danger to the community if released. Yet, as the United States notes, the director of the

medical facility where Mr. Rea was treated has not certified that Mr. Rea’s release would create

a substantial risk of bodily injury to another person or serious damage to property of another. See

18 U.S.C. § 4246(a). Therefore, further civil proceedings for commitment of dangerous

individuals under § 4246 do not appear authorized by statute. See Doc No. 58 at 4. In short,

because the Defendant is not competent and is not considered dangerous, neither criminal

prosecution or involuntary civil commitment under 18 U.S.C. § 4246(a) are viable options for

the United States to pursue. 

Faced with a Defendant who is not competent to stand trial, or plead guilty, whose

competency can not be likely restored, and who poses no danger to the community and therefore

can not be civilly committed, there simply is no other option for this Court than to DISMISS the

indictment now pending.

As a result, the undersigned now RECOMMENDS that the Indictment be DISMISSED

as the Defendant is NOT COMPETENT, will not likely be restored to competency, and further

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poses no danger to the community if released. Should the Court accept and adopt this Report

and Recommendation upon the dismissal of the indictment, the appointment of the Guardian Ad

Litem shall terminate as well as the conditions of release previously imposed.

NOTICE IS HEREBY GIVEN that within fourteen (14) days after being served

with a copy of this recommended disposition a party may serve and file specific, written

objections to the proposed findings and/or recommendations. Fed. R. Civ. P. 72(b)(2). 

FAILURE TO FILE OBJECTIONS WITHIN THE SPECIFIED TIME WAIVES THE

RIGHT TO APPEAL THE DISTRICT COURT’S ORDER. 

SO ORDERED.

Dated this 3rd day of June, 2016.

S/Christopher A. Nuechterlein 

Christopher A. Nuechterlein

United States Magistrate Judge

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