                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 03-2241
UNITED STATES OF AMERICA,
                                             Plaintiff-Appellee,
                              v.

SERGIUS A. RINALDI,
                                         Defendant-Appellant.
                        ____________
          Appeal from the United States District Court
               for the Central District of Illinois.
           No. 01 CR 30110—Richard Mills, Judge.
                        ____________
ARGUED SEPTEMBER 24, 2003—DECIDED DECEMBER 1, 2003
                   ____________


 Before BAUER, EASTERBROOK, and DIANE P. WOOD, Circuit
Judges.
   BAUER, Circuit Judge. Sergius Rinaldi pleaded guilty to
committing mail fraud and obstructing a health care fraud
investigation. Before sentencing, he moved to withdraw his
plea based on his claim that he suffers from Adult Attention
Deficit Disorder and that the disorder prevented him from
forming the requisite criminal intent at the time he commit-
ted the offenses. The district court denied the motion and
Rinaldi moved to reconsider. Rather than rule on the
motion to reconsider, the court ordered that the defendant
be committed for a custodial examination not to exceed 45
days to determine whether he was in fact suffering from a
claimed mental disease or defect during the commission of
2                                                No. 03-2241

his crimes. The defendant appeals this order. We remand
directing the rewriting of the order consistent with this
opinion.


                     BACKGROUND
  Rinaldi is an orthodontist with offices in Springfield
and Edwardsville, Illinois. His clients included wards of the
state of Illinois who were under the protection of the Illinois
Department of Children and Family Services (DCFS), and
individuals who were receiving Medicaid assistance from
the Illinois Department of Public Aid (IDPA). From 1994 to
2001, Rinaldi submitted claims to DCFS and the IDPA for
services rendered to these government insured patients. He
submitted claims to DCFS and IDPA for services he did not
perform. At least twice he billed the IDPA and/or DCFS for
putting braces on children, which he did not do, as well as
for “adjustments” to braces at times when he did not even
see the patients.
  In January 2001, Rinaldi was issued a grand jury sub-
poena demanding the production of records related to his
orthodontics practice. Specifically, the subpoena requested
the production of the original case files and claim forms for
selected patients, the explanation of benefit forms for those
same patients, appointment books for the years 1995-2000,
patient sign-in sheets, appointment logs, and records of
cancellations.
  The defendant refused to produce the records and the
district court conducted a hearing to determine if Rinaldi’s
refusal to reply was contemptuous. The government pre-
sented evidence to establish that the defendant removed
records from his Springfield office after being served with
the subpoena and was later seen hiding them near a
dumpster outside of a McDonald’s restaurant.
No. 03-2241                                                3

  During the contempt hearing Rinaldi testified on his own
behalf. At the conclusion of the hearing, the district court
remarked that it gave “absolutely no credence” to the de-
fendant’s testimony and found that “Dr. Rinaldi ha[d] lied”
and “had not been truthful with the Court.” In Re Grand
Jury Proceedings, 280 F.3d 1103,1106-07 (7th Cir.), cert.
denied, 536 U.S. 925 (2002). The court found the defendant
in wilful contempt and ordered him to be held in prison and
fined until he complied. The defendant remained confined
until November 2001. On November 8, 2001, Rinaldi was
indicted.
  The indictment charged that the defendant developed
a broad scheme to defraud DCFS and the Medicaid system
in the state of Illinois. Over a seven-year period, the de-
fendant submitted false documents to the IDPA and, during
an audit of his practice, obstructed the criminal investiga-
tion by removing and hiding records. The defendant entered
into a plea agreement with the government, agreeing to
plead guilty to charges of mail fraud and obstruction of a
health care fraud investigation.
  In January 2003, after the sentencing had been delayed
several times, the defendant filed a motion to withdraw his
guilty plea. In the motion, Rinaldi suggested that despite
having explored all of his defenses with his two attorneys
before his plea agreement, he nonetheless had discovered
new and viable defenses. One of his newfound defenses was
the fact that he had learned, subsequent to the plea
agreement, that any mistakes made by him with respect to
record keeping or the concealing of documents were the
result of a DSM IV diagnosis of Adult Attention Deficit
Disorder and not criminal intent. The court denied the
motion finding nothing deficient about the plea agreement
and that this new theory of defense was contrary to the
defendant’s prior testimony under oath.
  The defense then filed a motion to reconsider the denial
of the motion to withdraw the guilty plea. The district court
4                                                 No. 03-2241

did not rule on this motion. Instead, the court ordered
Rinaldi to submit to an independent mental examination.
The court ordered that the evaluation be performed in a
suitable facility as arranged by the United States Attorney
General, and ordered the defendant to submit himself to
custody for the examination. The defendant then filed
another motion requesting that the court modify its order.
The district court denied the motion to modify and reaf-
firmed its ruling on May 1, 2003. The matter was stayed,
pending this appeal.


                         ANALYSIS
I.   Jurisdiction
  First, we consider whether we have appellate jurisdiction
over this interlocutory appeal. Generally, the final judg-
ment rule is strictly applied, particularly in criminal cases.
Flanagan v. United States, 465 U.S. 259, 264-65 (1984).
However, the collateral order doctrine does permit an
interlocutory appeal for some non-final orders that are too
important to be denied review and which are so discon-
nected from the merits that appellate consideration is re-
quired before final adjudication. Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 546 (1949).
  In United States v. Barth, the Second Circuit held that a
commitment order for a preliminary psychiatric evaluation
was not reviewable on an interlocutory appeal. 28 F.3d 253
(2nd Cir. 1994). We decline to follow that decision, following
instead the Supreme Court’s holding in Stack v. Boyle,
where the Court held that there was appellate jurisdiction
over an interlocutory appeal challenging pretrial bail as
excessive, violating the Eighth Amendment. 342 U.S. 1
(1951). In that case, the Court reasoned that where pretrial
bail is challenged, relief “must be speedy to be effective.” Id.
at 4. We believe that the same reasoning applies here.
No. 03-2241                                                5

When an order calls for a defendant’s incarceration,
appellate review is proper.
  According to the Supreme Court in Flanagan, an order
must meet three conditions to fit within this narrow ex-
ception: (1) the order must conclusively determine the dis-
puted question; (2) it must dispose of an issue totally apart
from merits of the action; and (3) it must be virtually
unreviewable on appeal from a final judgment. Flanagan,
465 U.S. at 265.
  The requirements of the collateral order doctrine are
easily satisfied in this case of an order of commitment for
psychiatric examination. United States v. Davis, 93 F.3d
1286, 1289 (6th Cir. 1996). First, the order conclusively
determined that Rinaldi should undergo a psychiatric ex-
amination to determine his capacity to form criminal intent.
Second, determinations about Rinaldi’s mental capacity are
separate from the issue of his guilt or innocence. Finally,
the order would be virtually unreviewable because there
would be no effective relief for Rinaldi’s loss of liberty
during the period of commitment. Id.; see also United States
v. Weissberger, 951 F.2d 392, 396 (D.C. Cir. 1991); United
States v. Gold, 790 F.2d 235, 239 (2nd Cir. 1986) (discussing
the unreviewability of an order of commitment); United
States v. White, 887 F.2d 705, 707 (6th Cir. 1989) (finding
jurisdiction is over an appeal from order of commitment to
determine competency). So the collateral order doctrine
applies here; we have jurisdiction.
  We now turn to the merits of the defendant’s appeal and
consider whether the district court’s order for an in-custody
mental examination of the defendant was proper.


II. Authority Under Federal Rule of Criminal Procedure
    12.2
 Federal Rule 12.2 was developed to require a defendant
who intended to present a defense of mental illness, insan-
6                                                No. 03-2241

ity, incompetence or diminished capacity to provide notice
to the government before trial. FED. R. CRIM. P. 12.2 (2002).
After notice, the government could request a psychiatric
evaluation of the defendant. Id. Rule 12.2 was amended to
address five issues: (1) to clarify that a court may order a
mental examination for a defendant who has indicated an
intention to raise a defense of mental condition bearing on
the issue of guilt; (2) to require the defendant to give notice
of intent to present expert evidence of mental condition in
a capital case; (3) to provide authority to the court to order
an examination in a capital sentencing; (4) to set the timing
of disclosure; and (5) to extend the sanctions provisions to
capital cases. Id. None of the stated purposes were to
create authority for the court to order in-custody examina-
tions of defendants filing notice of intent to present expert
evidence on a diminished capacity defense.
  In United States v. Davis, the Sixth Circuit held that
the district court lacked the authority to order the com-
mitment and examination of a defendant under Rule
12.2 where a defendant claimed lack of capacity to form
specific intent as opposed to a claim of incompetence or
insanity. 93 F3d 1286 (6th Cir. 1996). Although Davis
was decided before the 2002 amendments to Rule 12.2,
the amendments do not alter the holding in Davis. The
amendment codified the Davis holding that an outpatient
examination could be ordered when a defendant raises a
diminished capacity defense. The fact that the rule did not
address the in-custody examination suggests that the new
rule left the prohibition on in-custody evaluations intact.
See Committee Notes, 2002 Amendments, West Federal
Criminal Code and Rules (2003 ed.) at 88.


III. Authority Under 18 U.S.C. §§ 4241 and 4242
  The district court erred when it relied on 18 U.S.C.
§§ 4241 and 4242 as the basis for ordering an in-custody
No. 03-2241                                                7

examination. These sections only apply in specific circum-
stances and not in situations where the defendant has given
notice that he wishes to present evidence of diminished
capacity. Section 4241 applies where there is an issue of the
defendant’s competency to stand trial and Section 4242
applies when there is an issue of insanity at the time of
offense. Rinaldi does not fit the criteria for an in-custody
examination.


IV. Non-custodial Mental Examination Allowed
  While Rule 12.2 does not provide authority for the district
court to order a custodial examination, nothing in the rule
prevents a court from inviting the defendant’s consent to an
examination. This consent might be elicited by telling him
that unless he agreed to the mental examination, the court
will simply deny the motion to withdraw the plea and will
proceed with sentencing. Rinaldi has said that he will agree
to a non-custodial examination.


                      CONCLUSION
  The district court’s order for an in-custody mental ex-
amination of Rinaldi was improper. However, the court may
invite the defendant to consent to an outpatient examina-
tion. The defendant seeks to withdraw his guilty plea based
on his inability to form criminal intent and so the court is
certainly entitled to order its own examination to determine
the merits of his motion to withdraw his plea.
  This appeal is REVERSED and REMANDED for further
proceedings consistent with this opinion.
8                                          No. 03-2241

A true Copy:
       Teste:

                     ________________________________
                     Clerk of the United States Court of
                       Appeals for the Seventh Circuit




                USCA-02-C-0072—12-1-03
