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 to the court where
the defendant is confined indicating such to the clerk of the court. Following the filing of a
certificate, the “court shall order a hearing to determine whether the person 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.” A certificate filed
under this section stays the release of the defendant pending completion of these procedures. 18
U.S.C. § 4246(a).

In the instant case, a Certificate of Mental Disease or Defect and Dangerousness was filed
in the United States District Court for the District of Minnesota, pursuant to 18 U.S.C. § 4246(a).
Pursuant to Section 4246(a), a hearing was required to determine whether Lapi was then 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. The certificate filed under
this section stayed the release of Lapi pending completion of these procedures. 18 U.S.C. § 4246(a).

It has now been determined that contrary to the requirements of Section 4246(a), a hearing


On October 27, 2003, the Government filed a Withdrawal of Commitment Petition in the
United States District Court of Minnesota based on Lapi’s being placed into state placement in
Elgin, Illinois.

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 ina 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 presently resides in a nursing home in [linois.

In May 2004, the Government moved for another examination to determine whether Lapi
remains incompetent. In September 2004, the Court denied the Government’s motion. Both parties
have now moved to dismiss the indictment.

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 vy. Shawar, 865 F.2d 856, 859 (7th Cir. 1989) (Shawar).

Ifacourt 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


was not held to determine whether Lapi was then 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. Instead, he was transferred to a facility in Elgin, Illinois; and Lapi was
released to that facility. However, Section 4246 does not provide for the release of the defendant
after the certificate has been filed until a hearing is held and it is determined if the defendant’s
release would create a substantial risk of bodily injury to another or serious damage to the property
of another.

To the contrary, when a facility in Illinois was found that would accept the Defendant, he was
released to that facility. Section 4246(d) provides for such a release but only “after the hearing.”
42 U.S.C. § 4246(d). Furthermore, there is no provision in Section 4246(a) for the withdrawal of
a certificate if suitable arrangements are found. Rather, the statute specifically provides that the
court “shall” order a hearing and any release of the defendant is stayed pending the completion of
the procedures.

Based on the above, a hearing pursuant to statute is necessary to determine if the Defendant’s
release would create a substantial risk of bodily injury to another or serious damage to the property
of another. Both parties have filed motions to dismiss. The matter is continued to May 25, 2005,
at 9:00 a.m. for status and setting for hearing.

> +
Dated: 2005- Li. —~

nN W. DARRAH
ited States District Judge



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA, )
)
Plaintiff, )
) No. 02 CR 0607

v. )

) Judge John W. Darrah
TONI LAPI, )
)
Defendant. )

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 21, 2002, this Court granted Lapi’s
motion for a competency hearing; following the hearing, an order was entered 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).

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 psychiatric

medication.



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 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).

Ina 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 was not a substantial probability that Lapi would
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.”

On July 10, 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 July 17, 2003, 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). The Certificate stated that the Warden and his staff
believed that Lapi was:

currently 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. In

addition, suitable arrangements for state custody and care of this

person are not currently available.
On July 24, 2003, the United States Attorney for the District of Minnesota filed a Petition to
Determine Present Mental Condition of an Imprisoned Person Due for Release Under 18 U.S.C.
§ 4246 in the United States District Court of Minnesota. The Petition sought a hearing to determine
Lapi’s then-mental condition, an order finding that Lapi continued to suffer from a mental disease
or defect, and an order committing Lapi to the custody of the Attorney General for continued
hospitalization and treatment until suitable state placement could be found or until Lapi’s release no
longer constituted a substantial risk of bodily injury of another person or serious damage to the
property of another.

On September 24, 2003, this 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 state custody was 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.