Decision and Order — United States v. Antonio Arena (Western District of New York, Document 42)

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A Decision and Order, Document 42 in United States v. Antonio Arena, No. 21-MJ-671-MJP, U.S. District Court for the Western District of New York. The order takes up whether the August 5, 2022 forensic report should be rejected as filed after the four-month period in the competency statute. It notes that the defendant is charged with two counts for allegedly leaving a threatening voicemail on the office phone line of a United States Congressman. The Court concludes it has authority to order hospitalization for a reasonable period, accepts the August 5, 2022 forensic report, and continues hospitalization through the time necessary to hold a Sell hearing, to be scheduled by separate order. The signature block names Mark W. Pedersen, United States Magistrate Judge, dated August 18, 2022.

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“Decision and Order — United States v. Antonio Arena (Western District of New York, Document 42).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-6-21-mj-00671-dkt-42-w-d-n-y-a8e61ceba1/, SHA-256 42f113208b452461cde6827a4ec101d368d6c219bf8abd6a81176b3cd35d2354.

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Case 6:21-mj-00671-MJP Document 42 Filed 08/18/22 Page 1 of 7

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

DECISION AND ORDER
v.
21-MJ-671-MJP
ANTONIO ARENA,

Defendants.

INTRODUCTION

Pedersen, M.J. This matter is before the Court to determine whether the

August 5, 2022, forensic report by Miriam Kissin, Psy. D., and an addendum by Dean

Cutillar, D.O., should be rejected because it was filed after the four-month period

permitted by 18 U.S.C. § 4141(d)(1).

BACKGROUND
Mr. Antonio Arena is charged with two counts in violation of Title 18 U.S.C. §

875(c) and Title 18 U.S.C. § 115(a)(1)(B) for allegedly leaving a threatening voicemail

on the office phone line of a United States Congressman. (Compl., ECF No. 1.)

On September 29, 2021, the Court issued an order for a Psychiatric and

Psychological examination. (Order for Exam, ECF No. 12.) On November 10, 2021,

the Court received the confidential results from the exam. (Houghtalen Report, On

file with the Court.) The Court shared the results with counsel and held a competency

hearing on November 30, 2021. (Minute Entry, ECF No. 18.) Both the government
Case 6:21-mj-00671-MJP Document 42 Filed 08/18/22 Page 2 of 7

and counsel for the defendant moved to have the Court commit Defendant to a

treatment facility.

Pursuant to 18 U.S.C. 4241(d), the Court may:

commit the defendant to the custody of the Attorney General [who] shall
hospitalize the defendant for treatment in a suitable facility (1) 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 proceedings
to go forward.

18 U.S.C. 4241(d) (emphasis added). The Court found by a preponderance of evidence

under 18 U.S.C. § 4241(d) that Defendant is not presently competent to stand trial

and committed him “to the custody of the Attorney General for a period not to exceed

4 months to see if he can be brought back to competency.” (Decision and Order at 2,

Dec. 1, 2021, ECF No. 19.)

The United States did not have a bed available for Mr. Arena until one opened

up at the Federal Medical Center in Ayer, Massachusetts, on March 7, 2022, three

months and six days after entry of the Court’s order. The U.S. Marshal for the

Western District of New York had Mr. Arena transported to the facility the same day,

but Mr. Arena, upon arrival, was supposedly placed in quarantine because of the

COVD-19 pandemic. As previously mentioned, the doctors produced a report dated

August 5, 2022, four months, four weeks, and one day following Mr. Arena’s arrival

at the facility, and eight months and four days following entry of the Court’s

commitment order.

The Court held oral argument on the issue of whether it should reject the

report because it was filed outside the strict time limits imposed by Congress in 18

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Case 6:21-mj-00671-MJP Document 42 Filed 08/18/22 Page 3 of 7

U.S.C. § 4241(d)(1) on August 16, 2022. Counsel and the defendant, Mr. Arena, were

present. 1 The government argued that the Court should accept the report and

schedule a Sell 2 hearing because the four-month period in subdivision (d)(1) started

on March 7, 2022, upon his arrival, and the report was less than a month overdue.

The defense argued that Mr. Arena should be released pending a determination of

dangerousness pursuant to 18 U.S.C. § 4246. Defense counsel emphasized that

§ 4241(d) creates two distinct periods of time. Subsection (d)(1) allows no more than

four months to assess a defendant’s ability to be restored to competency. Subsection

(d)(2) allows time to actually restore competency if “if the court finds that there is a

substantial probability that within such additional period of time he will attain the

capacity to permit the proceedings to go forward. . . .”

STANDARD OF LAW
The sole question for this decision is whether the Bureau of Prisons so exceeded

the time permitted by Congress under subdivision (d)(1) to assess and report on

whether Mr. Arena could be restored to competency that the Court should reject its

report. The ancillary question is whether the Court retains jurisdiction to issue an

order pursuant to 18 U.S.C. § 4142(d)(2)(A). 3 Both sides cited to the Second Circuit

1 Mr. Arena was still at the facility in Massachusetts and his participation was by

audio connection only.
2 Sell v. United States, 539 U.S. 166 (2003) (to determine whether to involuntarily

administer antipsychotic drugs to render a mentally ill defendant competent to stand trial
on serious criminal charges if the treatment is medically appropriate, is substantially
unlikely to have side effects that may undermine the trial’s fairness, and, taking account of
less intrusive alternatives, is necessary significantly to further important governmental trial-
related interests).
3 “The Attorney General shall hospitalize the defendant for treatment in a suitable

facility—…
(2) for an additional reasonable period of time until—

3
Case 6:21-mj-00671-MJP Document 42 Filed 08/18/22 Page 4 of 7

case of United States v. Magassouba, 544 F.3d 387 (2008), and the Supreme Court

case of Jackson v. Indiana, 406 U.S. 715 (1972).

In Jackson, a state court ordered that a deaf, mute, mentally incompetent

defendant be held by the Indiana Department of Mental Health “until such time as

that Department should certify to the court that ‘the defendant is sane.’” Jackson,

406 U.S. at 719. The Supreme Court held that “Indiana cannot constitutionally

commit the petitioner for an indefinite period simply on account of his incompetency

to stand trial on the charges filed against him.” Id. at 720. The Court found that

Indiana’s criminal commitment process did “not square with the Fourteenth

Amendment’s guarantee of due process.” Id. at 731. At the time, the equivalent

federal statute was “not dissimilar to the Indiana law,” in that it permitted the

commitment of a mentally incompetent defendant to be committed “‘until the accused

shall be mentally competent to stand trial or until the pending charges against him

are disposed of according to law.’” Id. at 731 (quoting the then-existing statute, 18

U.S.C. § 4246). In assessing the case, the Jackson court held:

At the least, due process requires that the nature and duration of
commitment bear some reasonable relation to the purpose for which the
individual is committed.

We hold, consequently, that a person charged by a State with a criminal
offense who is committed solely on account of his incapacity to proceed
to trial cannot be held more than the reasonable period of time necessary
to determine whether there is a substantial probability that he will
attain that capacity in the foreseeable future. If it is determined that
this is not the case, then the State must either institute the customary

(A) his mental condition is so improved that trial may proceed, if the court finds that
there is a substantial probability that within such additional period of time he will attain the
capacity to permit the proceedings to go forward….”18 U.S.C. § 4241(d)(2)(A).

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Case 6:21-mj-00671-MJP Document 42 Filed 08/18/22 Page 5 of 7

civil commitment proceeding that would be required to commit
indefinitely any other citizen, or release the defendant.

Jackson, 406 U.S. at 738.

In its 2008 decision in United States v. Magassouba, 544 F.3d 387 (2d Cir.

2008), the Second Circuit held that the district court was not constrained by the four-

month limitation in subdivision (d)(1) to decide that additional hospitalization under

subdivision (d)(2) was required to attempt to restore a defendant to competency. Id.

at 406.

To construe the four-month limit on the term of custodial hospitalization
under § 4241(d)(1) as a four-month limit on the court’s authority to order
additional confinement under § 4241(d)(2)(A) thus raises due process
concerns.… Thus, in the absence of a clear statement by Congress placing
a time limitation on district courts’ decisional authority to order
§ 4241(d)(2)(A) hospitalization, we decline to infer one from the
evaluative confinement limit specified in § 4241(d)(1).

Id. at 407. “[W]e conclude that district courts do have the authority to order a

defendant’s additional custodial hospitalization pursuant to § 4241(d)(2)(A) even

after the limited period of evaluative hospitalization under § 4241(d)(1) has expired.”

Id. at 409.

DISCUSSION
Notwithstanding the Bureau of Prison’s delay, from the case law reviewed

above, the Court has authority to order hospitalization “for such reasonable period of

time” until Mr. Arena’s condition improves, or the charges are disposed of according

to law. 18 U.S.C. § 4241(d)(2). Without medication, however, Mr. Arena is likely to

continue in his present state of incompetence to stand trial. Therefore, the only

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Case 6:21-mj-00671-MJP Document 42 Filed 08/18/22 Page 6 of 7

usefulness in additional hospitalization under (d)(2) is if medication is administered

to him and it restores him to competency.

However, before any medication can be involuntarily administered, the Court

must conduct a hearing to determine whether important governmental interests are

at stake, that involuntary medication will significantly further those concomitant

state interests, that involuntary medication is necessary to further those interests,

and that the administration of drugs is medically appropriate, that is, in Mr. Arena’s

best medical interest considering his medical condition. Sell v. United States, 539 U.S.

166, 180–81 (2003). The Court is mindful of Mr. Arena’s statements at the motion

argument that he has tried the medications recommended in the report and has not

had any benefit from them and that he fears cardiac arrest if he takes them again.

The Court will require medical expert testimony concerning the side effects of any

recommended medications. As for Mr. Arena’s best medical interest, the Court is

aware that if he cannot be restored to competency, he may face civil commitment in

Massachusetts.

The government must be prepared to present evidence to meet the

requirements of Sell at the next court date. If the Court finds that involuntary

medication is appropriate, it will continue Mr. Arena’s hospitalization in

Massachusetts for a reasonable period. If not, the Court will order the facility doctors

to examine Mr. Arena pursuant to 18 U.S.C. §§ 4142(d), 4246, and 4248.

SPEEDY TRIAL CONSIDERATIONS
The Speedy Trial statute provides an exemption for “delay resulting from any

proceeding, including examinations, to determine the mental competency … of the

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Case 6:21-mj-00671-MJP Document 42 Filed 08/18/22 Page 7 of 7

defendant….” 18 U.S.C. § 3161(h)(1)(A). Another subdivision excludes “delay resulting

from the transportation of any defendant … to or from places of examination or

hospitalization, except that any time consumed in excess of ten days from the date an

order of removal or an order directing such transportation, and the defendant's

arrival at the destination shall be presumed to be unreasonable.” 18 U.S.C.

§ 3161(h)(1)(F). Counsel should be prepared to discuss the speedy trial clock in this

case at the next hearing.

CONCLUSION
The Court accepts the August 5, 2022, forensic report. Pursuant to 18 U.S.C.

§ 4142(d)(2)(A), the Court continues Mr. Arena’s hospitalization through the time

necessary to hold a Sell hearing. Such hearing will be scheduled by separate order

after the Court consults with both counselors.

DATED: August 18, 2022
Rochester, New York
________________________________
MARK W. PEDERSEN
United States Magistrate Judge

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