The opinion of the court was delivered by: James F. McCLURE, Jr., United States District Judge
On June 4, 2001, a jury returned a mixed verdict in the above-captioned
case. As to Count One of the indictment, charging Kenney with assault on
a corrections officer, the jury found defendant not guilty only by reason
of insanity. On Count Two, forcibly resisting another correctional
employee, the jury found the defendant not guilty. On Count Three,
possession of a contraband weapon, the jury found the defendant guilty.
At the time of the return of the verdict, the court inquired whether
the defendant would need to undergo a psychiatric or psychological
examination as required by 18 U.S.C. § 4243.
On June 8, 2001, the government filed a memorandum regarding the
applicability of 18 U.S.C. § 4243 to defendant's case.
By order dated that same day, the court permitted defense counsel to
submit a memorandum on the issue, as well as allowed for a reply by the
On June 18, 2001, defense counsel submitted a memorandum advising the
court of defendant's position with respect to the applicability of
18 U.S.C. § 4243. The government filed its reply on June 20, 2001.
On June 25, 2001, the defendant filed a supplemental response advising
that Dr. Ragusea *fn1 would be available to conduct a further
evaluation, if so ordered.
On July 2, 2001, defendant filed on his own behalf a response regarding
the applicability of 18 U.S.C. § 4243, concurring with defense
counsel's June 18, 2001 memorandum, and requesting that Dr. Ragusea be
permitted to conduct a psychological exam, if so ordered.
The precise question at hand is whether the court is required to order
a psychological evaluation of the defendant as a person found not guilty
only by reason of insanity at the time of the offense charged," and
conduct a hearing under 18 U.S.C. § 4243, despite the fact that
defendant has also been convicted on another charge and currently faces
continued and extended incarceration as a result of a prior conviction.
*fn2 See Defendant's Memorandum Regarding the Applicability of
18 U.S.C. § 4243 ("Defendant's Memorandum)
(record doc. no. 126,
filed June 18, 2001) at 2.
The Insanity Defense Reform Act ("the Act"), 18 U.S.C. § 4243,
which was enacted by Congress in 1984, provides for the mandatory
hospitalization of defendants found not guilty of federal crimes by
reason of insanity. Under § 4243(a), once the special verdict of not
guilty only by reason of insanity is rendered in a case, the defendant
shall be committed to a suitable facility for care and treatment until he
is eligible for release. Under § 4243(c), the defendant must also be
granted a hearing no later than 40 days after the verdict to determine
whether his release endangers others or their property. *fn3 Notably, as
provided in § 4243(d), it is the defendant, and not the government,
that carries the burden of proof in the hearing. When a defendant fails
to meet his burden of proof, the court is required to commit him to the
custody of the Attorney General of the United States for care and
treatment. 18 U.S.C. § 4243(e).
The circumstances of the case at hand are indeed atypical. Although the
court recognizes the mandatory directive imposed by Congress, the court
makes the following determination regarding the applicability of
18 U.S.C. § 4243 in this case in accordance with both the exceptional
circumstances presented and the central purpose of the Act.
Subsection(a) of § 4243 states: "If a person is found not guilty
only by reason of insanity at the time of the offense charged, he shall
be committed to a suitable facility until such time as he is eligible for
release pursuant to subsection(e) ." It is defense counsel's position
that the directive of § 4243, indicated by the word "shall," should
be read as mandatory only in situations to which it was intended to
apply. Defendant's Memorandum at 3. Defense counsel also points to the
words "the offense charged" (emphasis added), and submits that the use of
"the" rather than "`an' indicates that [§ 4243] was intended to apply
to [a] situation where a single charge has resultecZ in an acquittal by
reason of insanity and not in a situation such as the case at bar, where
a conviction is returned on another charge which will prevent the
[d]efendant's release." Id.
As defense counsel correctly notes, the purpose of the Insanity Defense
Reform Act of 1984, 18 U.S.C. § 4243, is to ensure  that a federal
criminal defendant found not guilty by reason of insanity will not be
released onto the streets." Frank v. United States, 506 U.S. 932 (1992)
(Justice Stevens opinion regarding denial of petition for writ of
certiorari). Indeed, the legislative history of the Act indicates that
§ 4243 deals with acquitted persons "where the issue posed is ...