Case 312-cr-00114-RDM Document 105 Filed 08/04/14 Page 1 of 9 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA v. 3CR-12-114 (JUDGE MARIANI) ANTHONY J. LUPAS, JR., Defendant MOTION TO DISMISS SUPERSEDING INDICTMENT WITHOUT PREJUDICE AND NOW, the United States of America, by its undersigned counsel, moves pursuant to Rule 48 of the Federal Rules of Criminal Procedure to dismiss the superseding indictment in the above referenced case. In support of this motion, the United States alleges as follows 1. On May 1, 2012, the defendant was charged in an indictment with five counts of mail fraud in violation of 18 U.S.C. ' 1341. A superseding indictment was returned on July 31, 2012 which charged the defendant with twenty-nine counts of mail fraud, in violation of 18 U.S.C. ' 1341, one count of conspiracy to commit mail fraud in violation of 18 U.S.C. ' 1349, and once count of conspiracy to commit money laundering in violation of 18 U.S.C. ' 1956(h). The defendant entered a
Case 312-cr-00114-RDM Document 105 Filed 08/04/14 Page 2 of 9 plea of Anot guilty@ to all charges and raised a claim of incompetence to stand trial. 2. By Order dated May 23, 2012, the Court appointed Richard Fischbein, M.D. to examine the defendant and to submit a written report in accordance with 18 U.S.C. ' 4247(c) as to the defendant=s competence and ability to assist in his defense. 3. Dr. Fischbein complied with the Court=s directives and examined the defendant. On June 28, 2012, Dr. Fischbein submitted an initial report to the Court which included the recommendation that the defendant receive treatment from Dr. Mario Cornacchione for approximately 3 to 4 months. Dr. Cornacchione was described by Dr. Fischbein as having great expertise in treating geriatric individuals with cognitive impairments. 4. By Order dated August 6, 2012, the Court directed that the defendant receive treatment with Dr. Cornacchione for a period not to exceed four months. Upon completion of treatment with Dr. Cornacchione, Dr. Fischbein was ordered to re-examine the defendant 2
Case 312-cr-00114-RDM Document 105 Filed 08/04/14 Page 3 of 9 and render a written opinion whether the defendant was competent to stand trial. 5. In a report dated November 20, 2012, Dr. Fischbein advised the Court and the parties as to his findings. Dr. Fischbein opined that the defendant was not competent to stand trial. He opined that the defendant s cognitive situation was significantly impaired and that guardianship was necessary to manage the defendant s everyday living decisions. 6. Thereafter, the Government requested that the Court issue an Order allowing the Government=s expert to conduct an examination of the defendant to determine competency. The Government identified its expert as Dr. Timothy Michals, a Board Certified Forensic Psychiatrist. 7. By Order dated January 3, 2013, the Government=s request was granted and Dr. Michals was ordered to examine the defendant=s competency to stand trial. 8. Dr. Michals initiated his review of all relevant documents and performed a competency evaluation of the defendant. Thereafter, Dr. Michals opined in a written report dated April 2, 2013 that the 3
Case 312-cr-00114-RDM Document 105 Filed 08/04/14 Page 4 of 9 defendant was competent to assist his counsel at trial, and that the defendant understood the charges and procedures involved in his criminal case. Dr. Michals opined that while the defendant digressed during his examination, and made statements unrelated to the subjects being discussed, he became more focused, more attentive, and more responsive when he was questioned about his legal situation. Dr. Michals believed that the defendant s motivation to avoid trial was supported by documented suboptimal effort exerted by the defendant during standard cognitive testing. 9. A competency hearing was held on August 30, 2013 at which time both the defendant and the Government presented the testimony of expert witnesses, all of whom testified consistently with opinions expressed in their reports. The defendant also presented the testimony of a family member who offered personal observations of the defendant s failing cognitive ability, and a registered nurse from the Little Flower Manor who spoke about the defendant s daily behavior as observed by the staff of the Little Flower Manor, as well as the defendant s physical limitations. 4
Case 312-cr-00114-RDM Document 105 Filed 08/04/14 Page 5 of 9 10. By Court Order dated November 18, 2013, the defendant was deemed not competent to stand trial pursuant to 18 U.S.C. ' 4241(a). Pursuant to 18 U.S.C. ' 4241(d), the defendant was committed to the custody of the Attorney General to receive further treatment at a suitable facility, including a psychiatric evaluation. On January 7, 2014, the defendant was committed to the mental health unit of the Bureau of Prisons Federal Correctional Center at Butner, North Carolina. 11. In a report dated June 10, 2014 from the Butner facility, physicians opined that the defendant is suffering from a mental disease or defect rendering him mentally incompetent to stand trial, and that there is a substantial probability that the defendant s competency will not be restored in the foreseeable future. Specifically, the report indicates that the defendant suffers from a severe neurocognitive disorder and related symptomatology; that his ability to attend to activities of daily living are significantly impaired; that he has poor memory and recognition skills; and that he has a very limited awareness of his surroundings. Further, Bureau of Prisons physicians opined that 5
Case 312-cr-00114-RDM Document 105 Filed 08/04/14 Page 6 of 9 the defendant s prognosis is quite poor; that it is not anticipated that his cognitive abilities will improve over time; and that he is unable to demonstrate an adequate rational and factual understanding of the charges against him, and is unable to assist an attorney in the preparation of his defense due to his severe cognitive deficits with no substantial probability that his competency can be restored in the foreseeable future. 12. Pursuant to 18 U.S.C. ' 4241(d), if at the end of the time period specified in subsection (d)(1), it is determined that the defendant s mental condition has not so improved as to permit the proceedings to go forward, the defendant is subject to the provisions of 18 U.S.C. '' 4246 and 4248. 13. Pursuant to 18 U.S.C. ' 4246, the defendant still may be subject to an evaluation of dangerousness pursuant to 18 U.S.C. ' 4246. The Government, however, is not making a request for a dangerousness evaluation as there is no evidence to support such request. Further, the provisions of 18 U.S.C. ' 4248 are inapplicable as that section refers to sexually dangerous individuals. 6
Case 312-cr-00114-RDM Document 105 Filed 08/04/14 Page 7 of 9 14. The Government submits that no additional facts can be provided at this time in support of maintaining the criminal charges against the defendant. The defendant is 80 years old. Multiple mental health experts and this Court have determined that the defendant is not competent to stand trial, and that there is no substantial probability that his competency will be restored in the foreseeable future. As such, the Government is left with no other alternative but to move this Court to dismiss the pending criminal matter against the defendant, Anthony J. Lupas, Jr., without prejudice. WHEREFORE, for the foregoing reasons, the Government respectfully requests that the pending charges against the defendant be dismissed without prejudice. Respectfully submitted, PETER J. SMITH United States Attorney Dated Aug. 4, 2014 /s/ Michelle L. Olshefski Michelle L. Olshefski Assistant U.S. Attorney Atty ID No. PA 79643 235 North Washington Avenue Scranton, PA 18503 Michelle.olshefski@usdoj.gov 7
Case 312-cr-00114-RDM Document 105 Filed 08/04/14 Page 8 of 9 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA v. 3CR-12-114 (JUDGE MARIANI) ANTHONY J. LUPAS, JR., Defendant CERTIFICATE OF SERVICE The undersigned hereby certifies that she is an employee in the Office of the United States Attorney for the Middle District of Pennsylvania and is a person of such age and discretion as to be competent to serve papers. That on August 4, 2014, she served a copy of the attached by electronic filing. GOVERNMENT S MOTION TO DISMISS SUPERSEDING INDICTMENT WITHOUT PREJUDICE Addressee Joseph Blazosek, Esquire jblazatty@aol.com William Ruzzo, Esquire billruzzo@gmail.com /s/ Michelle Olshefski Michelle Olshefski 8
Case 312-cr-00114-RDM Document 105 Filed 08/04/14 Page 9 of 9 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA v. 3CR-12-114 (JUDGE MARIANI) ANTHONY J. LUPAS, JR., Defendant CERTIFICATE OF CONCURRENCE I, Michelle L. Olshefski, certify that I have communicated with Joseph M. Blazosek, Esquire, counsel for the defendant and he has indicated on behalf of the defendant that he does not oppose the Government=s request. /s/michelle L. Olshefski MICHELLE L. OLSHEFSKI Assistant United States Attorney Atty ID No. PA 79643 235 North Washington Avenue Scranton, PA 18503 (570) 348-2800 telephone Michelle.olshefski@usdoj.gov 9