United States v. Filippi

          United States Court of Appeals
                     For the First Circuit


No. 00-1071

                   UNITED STATES OF AMERICA,

                           Appellee,

                              v.

                       PETER A. FILIPPI,

                     Defendant, Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF RHODE ISLAND

         [Hon. Ernest C. Torres, U.S. District Judge]


                            Before

                    Boudin, Stahl and Lynch,

                        Circuit Judges.



     Robert B. Mann, by appointment of the court, with whom Mann
& Mitchell was on brief for appellant.
     Donald C. Lockhart, Assistant United States Attorney, with
whom Margaret E. Curran, United States Attorney, and James H.
Leavey, Assistant United States Attorney, were on brief for the
United States.




                          May 2, 2000
            BOUDIN, Circuit Judge.                In March 1999, a federal grand

jury    indicted       Peter     A.    Filippi     on   charges       of    operating    a

racketeering enterprise and racketeering conspiracy, 18 U.S.C.

§§     1962(c),    (d)       (1994),        and    related      charges       concerning

extortionate credit and illegal gambling.                            Id. §§ 892, 894,

1955.     Filippi then filed a motion asking that he be declared

incompetent to stand trial because he suffered from vascular

dementia and was unable to assist his counsel.                         After a limited

examination, the government's psychiatrist agreed.                           Thereafter,

in January 2000, the district court found that Filippi was not

competent to stand trial and should be committed to a federal

facility for evaluation for a period not to exceed four months

pursuant to 18 U.S.C. § 4241(d).

            Section 4241(d)--the centerpiece of this case--provides

inter alia that where the district court finds a defendant

incompetent       to    stand     trial     by    reason   of    mental      disease    or

defect, the court "shall" commit the defendant to the custody of

the    Attorney        General,       who   is    required      to    hospitalize      the

defendant for treatment and "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 [the defendant] will attain the capacity to

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permit the trial to proceed."             Id.    Another provision, not here

pertinent,    governs     where    the     initial       examination       does   not

establish such a "substantial probability."                    See id. § 4246.

           Although the finding of incompetency was to Filippi's

liking, the commitment order was not.                  He objected on the ground

that the medical evidence showed that he suffered from vascular

dementia, that the condition is irreversible, and that therefore

confinement     for    purposes    of    diagnosis        served     no   legitimate

purpose   and    thus    violated        the    Due     Process      Clause.      The

government      does    not    concede    that     Filippi      is    irreversibly

incompetent, but the district court made no finding on the

point.    Instead, the court concluded that where a defendant was

found incompetent to stand trial, Congress had provided for

automatic hospitalization for a limited period to permit an

inpatient diagnosis, and it rejected Filippi's constitutional

attack on the statute.

           Filippi      then    filed     a     notice    of   appeal      from   the

commitment    order     and    sought     a     stay    successively       from   the

district court and from this court.                   Like the district court,

this court denied the stay, but we expedited this appeal.                         The

government asserts that this court lacks jurisdiction over the

appeal and says that in any event the statute and the commitment

order do not violate the Constitution.                  We find that we do have


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jurisdiction     but   agree      with    the    government    as    to     the

constitutionality of the statute and order.

         On the question of jurisdiction, Filippi concedes that

the commitment order is not a "final decision" resolving this

case within the meaning of 28 U.S.C. § 1291 (1994), which

confers on us    "jurisdiction of appeals from all final decisions

of the district courts"; and none of the statutory provisions

explicitly allowing for interlocutory appeals applies here.

See, e.g., 18 U.S.C. § 3731.        However, Filippi asserts that the

order incarcerating him for up to four months is reviewable

under the collateral-order doctrine, see Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541 (1949), and its progeny.

         In     this   circuit,    such   a     collateral   order   must    be

distinct from the merits, definitive as to the issue to be

reviewed, affect       interests that could not be vindicated by

appeal after a final judgment, and present a significant legal

issue (as opposed, for example, to the mere challenge to the

exercise of discretion).       United States v. Kouri-Perez, 187 F.3d

1, 5 (1st Cir. 1999).      The government concedes that the first

and third requirements are satisfied but says that the second

and fourth requirements have not been met.

         On the first of these two disputed issues--whether the

ruling to be reviewed is definitive--the government is right in


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saying that Filippi's competency to stand trial has not yet been

finally determined (since he is even now being examined) but

wrong in thinking that this matters.           The requirement of a

definitive ruling is meant to avoid premature review of an

undeveloped issue.    Here, the order that Filippi is challenging

is his initial commitment, which is now occurring; and the

constitutional issue he seeks to present was addressed and

expressly decided by the district court.

          As for the significance of the legal issue, it is true

that the two circuits that have addressed the constitutional

issue both agreed with the government and upheld the statute.

But the issue is an open one in this circuit, its importance is

obvious both for this case and many others, and we think the

constitutional attack is not frivolous even though we ultimately

reject it and believe it reasonably clear that the Supreme Court

would do likewise.     Thus, there is enough significance to the

issue to warrant review under the collateral-order doctrine.

          Turning to the merits, we assume          arguendo that the

statute means exactly what it says, namely, that the district

court has no discretion in the matter and must commit the

defendant for an initial period of up to four months after

finding   him   incompetent   to   stand   trial.    This   may   be   an

overstatement--suppose, for example, the defendant was close to


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death.   But no such extraordinary claim has been pressed in this

case and, whatever the possible implicit exceptions, the statute

certainly establishes a general rule of some breadth and does

not appear to call for any case-by-case choice by the district

court as to whether to incarcerate once the incompetency finding

has been made.

           It is the use of a general rule that gives Filippi's

constitutional argument such force as it may possess.                          Filippi

has not yet been found guilty of a crime and is not being

detained as a flight risk or danger to the community; nor is

there    any    suggestion        that    his     mental      condition    makes    him

dangerous to himself or to others.                 There is not even a finding,

although       possibly    one     could    be     made,      that   an   in-hospital

examination is necessary for government experts to make a more

careful determination whether Filippi is afflicted with vascular

dementia   or     to     elicit    evidence       as     to   whether     there    is   a

"substantial probability" that he will soon recover sufficient

capacity to stand trial.

           The     Due    Process        Clause    has    been   taken    to   protect

certain "fundamental rights" from unreasonable impairment, even

where there is no challenge to the fairness of the procedures

used, Washington v. Glucksberg, 117 S. Ct. 2258, 2267 (1997),

and among such rights an individual's interest in his "liberty"


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is surely at the top of the list.             United States v. Salerno, 481

U.S. 739, 750 (1987).            Filippi's liberty is certainly being

impaired   by    the    order,    but    clearly    the    government      has    a

compelling interest in pursuing the diagnosis; Filippi, after

all, has been indicted by a grand jury for serious crimes but

now claims that he cannot be tried and punished because his

mental condition makes him unable to assist his counsel.

           The   constitutional         question    is     whether    automatic

commitment with substantial safeguards as to duration is a

reasonable, and sufficiently "narrowly tailored," accommodation

of the competing interests.         See Glucksberg, 117 S. Ct. at 2268.

In our view, Congress could reasonably think that, in almost all

cases, temporary incarceration would permit a more careful and

accurate diagnosis before the court is faced with the serious

decision whether to defer trial indefinitely and (quite often)

to   release     the    defendant       back     into     society.         Is    it

unconstitutional for Congress to make a uniform rule rather than

to have a determination made on a case-by-case basis?

           For    two    reasons,       one    practical     and     the    other

precedential, we think the statute is constitutional.                      On the

practical side, the statute is categorical in determining who

shall be incarcerated, but it is much more flexible and case-

oriented   in    determining      the    length    of    incarceration.          In


                                        -7-
addition to the cap on the initial diagnosis limiting it to a

maximum of four months, the statute provides that the period of

incarceration is only for "such a reasonable period of time . .

. as is necessary" to determine whether the defendant will

attain the capacity for trial in the foreseeable future.                  Here,

the district judge ordered reports at 30-day intervals, and the

record reflects the expectation that the detention will not last

the entire four months.

           The second consideration is precedential. Although the

Supreme Court has not squarely decided the issue before us, it

did face in Jackson v. Indiana, 406 U.S. 715 (1972), the general

issue of committing those found incompetent to stand trial.

While it rejected indefinite commitment, it upheld in principle

commitment   for    a    "reasonable      period   of    time      necessary   to

determine whether there is a substantial probability that [the

defendant]   will       attain     that     capacity    in   the    foreseeable

future."     Id. at 738.         The present statute is self-evidently

built upon Jackson, Congress having concluded that four months

fell within the concept of a "reasonable period".                   See S. Rep.

No. 98-225, at 236 (1984), reprinted in 1984             U.S.C.C.A.N. 3182,

3418.

           Since its enactment, two other circuits have ruled that

section 4241(d) conforms to Jackson.                   See United States v.


                                      -8-
Donofrio, 896 F.2d 1301, 1302-03 (11th Cir.), cert. denied, 497

U.S. 1005 (1990); United States v. Shawar, 865 F.2d 856, 863-64

(7th Cir. 1989).   Nor do we agree with Filippi that the law has

been changed in any way helpful to him by Kansas v. Hendricks,

521 U.S. 346 (1997).     That case upheld a commitment statute

directed to sexual predators based on a finding of dangerousness

coupled with mental illness; but it did not, as Filippi would

have it, hold that dangerousness is always a condition        of

commitment.

         Affirmed.




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