SCRANTON — The U.S. Attorney’s Office has asked a judge to dismiss all federal charges against a former Wilkes-Barre attorney they say bilked clients out of more than $6 million over 18 years.
U.S. Attorney Peter J. Smith on Monday filed a motion in U.S. District Court to dismiss a superseding indictment against Anthony Lupas Jr., 80, because his mental state has deteriorated to the point that he cannot assist his attorneys in his own defense and his prognosis is not expected to improve.
“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,” Smith wrote in his motion.
“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,” Smith wrote.
Smith also requested that the judge dismiss the pending charges against Lupas without prejudice, meaning if it was determined that Lupas’ condition did improve, charges could be refiled.
Lupas, former solicitor for Wilkes-Barre Area School District, had been charged on May 1, 2012 in an indictment with five counts of mail fraud for allegedly stealing $246,000 from a client. An indictment in May 2012 charged Lupas with 29 counts of mail fraud and one count each of conspiracy to commit mail fraud and conspiracy to commit money laundering.
Prosecutors say he bilked more than $6 million over an 18-year period from clients who were promised a return of 5 to 7 percent interest in a bogus investment scheme.
Lupas pleaded not guilty to all charges and raised a claim of incompetence to stand trial.
Lupas’ defense team had said he is suffering from an advanced stage of Alzheimer’s disease. Experts who assessed his condition said Lupas exhibited “significant cognitive decline.”
The court determined after a competency hearing in August 2013 that Lupas was not competent to stand trial and committed him to the custody of the Attorney General to receive further treatment at a suitable facility, including a psychiatric evaluation.
Lupas was committed to the mental health unit of the Bureau of Prisons Federal Correctional Center at Butner, North Carolina, in January. Prison physicians issued a report in June that led to Smith seeking dismissal of charges.
If a judge approves Smith’s motion, it is expected that Lupas will be released and either return home or go to a care facility such as Little Flower Manor in Wilkes-Barre, where he stayed before being sent to Butner.
Here is a timeline of Anthony Lupas’ case:
• May 1, 2012 — Lupas is charged in an indictment with five counts of mail fraud.
• July 31, 2012 — A superseding indictment was returned, charging Lupas with 29 counts of mail fraud, one count of conspiracy to commit mail fraud and once count of conspiracy to commit money laundering. Lupas entered a plea of not guilty to all charges and raised a claim of incompetence to stand trial.
• May 23, 2012 — the court appointed Dr. Richard Fischbein to examine Lupas and to submit a written report as to Lupas’ competence and ability to assist in his defense.
• June 28, 2012 — Fischbein submits an initial report to the court which included the recommendation that Lupas receive treatment from Dr. Mario Cornacchione for approximately three to four months. Cornacchione was described by Fischbein as having “great expertise in treating geriatric individuals with cognitive impairments.”
• Aug. 6, 2012 — The Court directs that Lupas receive treatment with Dr. Cornacchione for a period not to exceed four months and, upon completion of treatment, that Fischbein re-examine Lupas and render an opinion whether he was competent to stand trial.
• Nov. 20, 2012 — Fischbein advises that Lupas was not competent to stand trial, finding that his cognitive situation was “significantly impaired” and that guardianship was necessary to manage Lupas’s everyday living decisions. Smith requests that the court issue an order allowing the government’s expert, forernsic psychiatrist Dr. Timothy Michals, to examine Lupas to determine competency.
• Jan. 3, 2013 — Michals is ordered to examine Lupas’ competency to stand trial.
• April 2, 2013 — After an examination, Michals advises that Lupas is competent to assist his counsel at trial, and that Lupas understands the charges and procedures involved in his criminal case. Michals opines that while Lupas 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. Michals believed that Lupas’ motivation to avoid trial was supported by “documented suboptimal effort” exerted by Lupas during standard cognitive testing.
• Aug. 30, 2013 — A competency hearing is held; expert witnesses testify consistently with opinions expressed in their reports. Lupas also presents testimony of a family member who offers personal observations of Lupas’ failing cognitive ability, and a registered nurse from the Little Flower Manor speaks about Lupas’ daily behavior as observed by staff, as well as Lupas’ physical limitations.
• Nov. 18, 2013 — The court deems Lupas not competent to stand trial and commits him to the custody of the Attorney General to receive further treatment at a suitable facility, including a psychiatric evaluation.
• Jan. 7, 2014 — Lupas is committed to the mental health unit of the Bureau of Prisons Federal Correctional Center at Butner, North Carolina.
• June 10, 2014 — Butner physicians report that Lupas is suffering from a mental disease or defect rendering him mentally incompetent to stand trial, and that there is a substantial probability that his competency will not be restored in the foreseeable future.
Specifically, the report indicates that Lupas suffers from a severe neurocognitive disorder and symptoms related to the disorder; 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.
The physicians further find that Lupas’ prognosis is “quite poor” and that it is not anticipated that his cognitive abilities will improve over time.