United States Court of
FOR THE EIGHTH CIRCUIT
United States of America,
** Appeal from the United States
** District Court for the
** Eastern District of Missouri.
Charles Thomas Sell,
- - - - - - - - - - - - - - - - - - -------------------
Association of American Physicians
& Surgeons, Inc.
Amicus on Behalf of
Submitted: October 15, 2001
Filed: March 7, 2002
Before BOWMAN, HEANEY and BYE, Circuit Judges.
HEANEY, Circuit Judge.
Appellant Dr. Charles Sell,
D.D.S. is charged with health care fraud, attempted murder, conspiracy,
and solicitation to commit violence. In this appeal, Sell challenges
the district court's1 determination that he may be involuntarily medicated
with antipsychotic drugs for the sole purpose of rendering him competent
for trial. We affirm.
On May 16, 1997, Sell was charged in a
federal criminal complaint with making false representations in connection
with payments for health care services in violation of 18 U.S.C.
1035(a)(2). The government alleged that Sell and his wife submitted
false claims to Medicaid and private insurance companies for dental
services not provided, including false documentation and bogus x-rays in
support of these claims. On May 20, 1997, the government filed a motion
for psychiatric examination of Sell to determine his competence to stand
trial.2 On May 20, 1997,
a magistrate judge ordered that Sell be sent to the U.S. Medical Center
for Federal Prisoners at Springfield, Missouri ("Springfield")
for an evaluation. On July 15, 1997, after receiving a psychiatric
evaluation from Springfield, the district court held that Sell was
competent to stand trial. The report, which was accepted without
objection, stated that Sell was currently competent to stand trial but
that there was a possibility that he would develop a psychotic episode in
the future. On July 30, 1997, an indictment was returned against
Sell and his wife, charging them with fifty-six counts of mail fraud, six
counts of medicaid fraud, and one count of money-laundering.
In August 1997, Sell was released on bond.
On January 22, 1998, the government filed a bond revocation petition
alleging that Sell had violated the conditions of his release by
attempting to intimidate a witness. A warrant was issued
1The Honorable Donald J. Stohr, United
States District Court for the Eastern
District of Missouri.
2 Sell has a history of mental illness.
for Sell's arrest and he was brought before a magistrate judge for an
initial appearance. Sell's behavior at this appearance was out of
control. He screamed, shouted, and used racial epithets.
Nonetheless, the judge tried to proceed, but when she advised Sell of his
rights, he leaned towards her and spit directly in her face.
On January 26, 1998, a bond revocation
hearing was held, and shortly thereafter, the court ordered that Sell's
bond be revoked and that he be detained. At this hearing, the court
received evidence that Sell's mental condition was deteriorating.
Sell was not sleeping at night because he expected the FBI to barge into
his house. A psychiatrist reported that Sell soon could become a
danger to himself and others.
On April 23, 1998, Sell was charged in a
second indictment with conspiring and attempting to kill a witness and an
FBI agent. The government contends that Sell and his wife asked a
hit man to plot the murder of a former employee at his dental office who
planned to testify against him on the fraud charges. The government
also alleges that Sell plotted to kill the African-American FBI agent who
had arrested him. The two indictments were joined.
During the next several months, the trial
date was continued on a number of occasions at the request of both
parties. On February 9, 1999, Sell's counsel filed a motion asking
this court to hold a hearing to determine Sell's competency. The
government filed a separate motion to have a government psychologist
examine Sell. Both Sell's psychologist and the government psychologist
diagnosed Sell with delusional disorder, persecutory type.3
3Delusional disorder is characterized by
the presence of one or more non-
bizarre delusions that persist for at least one month. Diagnostic
Manual of Mental Disorders IV at 296. The delusions are generally
that can conceivably occur in real life. Id. The
persecutory subtype of delusional
disorder is characterized by a person's belief that he is being conspired
April 14, 1999, the district court held a hearing on Sell's competency.
Upon consideration of the evidence, the court found that Sell was
suffering from a mental disease or defect rendering him incompetent to
assist properly in his defense, and thus incompetent to stand trial.
The court ordered that Sell be hospitalized at Springfield for a
reasonable period of time not to exceed four months to determine whether
there was a substantial probability that Sell would attain the capacity to
Springfield, Sell was under the care of two clinicians, Dr. DeMier, the
clinical psychiatrist, and Dr. Wolfson, the consulting psychiatrist.
Both Dr. DeMier and Dr. Wolfson determined that Sell was in need of
On cheated, spied on, followed, poisoned or
drugged, maliciously maligned, harassed, or obstructed in the pursuit of
long term goals. Id. at 298.
4Justice Kennedy described antipsychotic medications in his concurring
opinion in United States v. Riggins:
introduced in the 1950's, antipsychotic drugs . . . have wide
acceptance in the psychiatric community as an effective treatment for
psychotic thought disorders. See American Psychiatric Press Textbook
Psychiatry 770-774 (J. Talbott, R. Hales, & S. Yodofsky eds. 1988
(Textbook of Psychiatry); Brief for American Psychiatric Association as
Curiae 6-7. The medications restore normal thought processes
clearing hallucinations and delusions. Textbook of Psychiatry at
United States v. Riggins, 504 U.S. 127,141 (1992) (Kennedy, J.,
Washington v. Harper, the Supreme Court discussed the side effects
purpose of the drugs is to alter the chemical balance in a patient's
leading to changes, intended to be beneficial, in his or her
cognitive processes. (Citation omitted). While the therapeutic benefits
antipsychotic drugs are well documented, it is also true that the drugs
have serious, even fatal, side effects. One such side effect identified
June 9, 1999, an administrative hearing was held before a medical hearing
officer. Dr. DeMier and Dr. Wolfson testified in favor of using
antipsychotic medication in the treatment of Sell, and testified that it
was the only way he could be restored to competency. Sell proffered
the affidavit of his psychiatrist, Dr. Cloninger, who asserted that he did
not think Sell would respond well to medication. Cloninger Aff.
8, 17. Sell also called a number of witnesses and testified that he
did not want to take antipsychotic medication and have his chemistry
altered. The medical hearing
officer concluded that antipsychotic medication was the treatment of
by the trial court is acute dystonia, a
severe involuntary spasm of the
upper body, tongue, throat, or eyes. The
trial court found that it may be
treated and reversed within a few minutes
through use of the medication
Cogentin. Other side effects include
akathesia (motor restlessness, often
characterized by an inability to sit
still); neuroleptic malignant syndrome
(a relatively rare condition which can lead
to death from cardiac
dysfunction); and tardive dyskinesia,
perhaps the most discussed side
effect of antipsychotic drugs. See Finding
of Fact 9, App. to Pet. for
Cert. B-7; Brief for American Psychological
Association as Amicus
Curiae 6-9. Tardive dyskinesia is a
neurological disorder, irreversible in
some cases, that is characterized by
movements of various muscles, especially
around the face. See Mills,
457 U.S., at 293, n. 1, 102 S.Ct., at 2445,
n. 1. The State, respondent,
and amici sharply disagree about the
frequency with which tardive
dyskinesia occurs, its severity, and the
medical profession's ability to
treat, arrest, or reverse the condition. A
fair reading of the evidence,
however, suggests that the proportion of
patients treated with
antipsychotic drugs who exhibit the
symptoms of tardive dyskinesia
ranges from 10% to 25%. According to the
Association, studies of the condition
indicate that 60% of tardive
dyskinesia is mild or minimal in effect,
and about 10% may be
characterized as severe. Brief for American
Psychiatric Association et
al. as Amici Curiae 14-16, and n. 12; see
also Brief for American
Psychological Association as Amicus Curiae
Washington v. Harper, 494 U.S. 210, 229-30 (1990).
finding was based on the fact that his delusional thinking could make him
dangerous and that no other drug could treat his delusional symptoms.
Dr. Sell filed an administrative appeal that was denied. The Medical
Center delayed the administration of the medication to give Sell the
opportunity to seek review by the district court.
On September 29, 1999, a United
States Magistrate Judge conducted a full judicial hearing. At that
hearing, the Government called two witnesses, Dr. DeMier and Dr. Wolfson.
They testified that Sell was in need of antipsychotic medication, that his
condition would continue to deteriorate without it, that his behavior
could be dangerous, and that antipsychotic medication was likely to
restore him to competency. On August 9, 2000, the magistrate entered
an order finding that Sell
posed a danger to himself and others. United States v. Sell, No. 4:
98CR177, (E.D. Mo. Aug. 9, 2000) (order granting government's motion to
involuntarily medicate defendant). Based on this finding, the
magistrate authorized the government to forcibly medicate Sell with
In April 2001, the district court
reversed the magistrate's finding that Sell posed a danger to himself and
others, noting that the evidence in the record was insufficient to support
such a finding. Despite this reversal, the district court affirmed
the magistrate's order, holding that the Government's interest in
restoring Sell to competency so that he can stand trial was alone
sufficient to warrant forcible medication.
Sell appeals this decision and asks
this court to decide whether the district court erred in holding that he
could be forcibly injected with antipsychotic drugs for the sole purpose
of restoring his competency to stand trial. Sell also asks us to
examine whether: (1) the district court applied the correct standard of
review; (2) whether the district court properly considered his Sixth
Amendment right to a fair trial, and (3) whether the government has proven
by clear and convincing evidence
that the medication is medically appropriate and that the medication has a
reasonable probability of restoring his competency. The Government
argues that the district court did not err on these grounds. It
further argues that the district court's finding that Sell was not
dangerous was erroneous and that Sell's dangerousness provides an
alternate grounds for affirmance in this case.
A. Sell's Dangerousness to Himself and Others.
First, we consider the government's claim
that the district court erred in overturning the magistrate's
determination that Sell is dangerous. We review the district court's
determination of questions of fact under the clearly erroneous standard.
See United States v. Kissinger, 986 F.2d 1244, 1246 (8th Cir. 1993).
The government argues that the district court did not give adequate weight
to Sell's potential to be a danger to himself or others. The
district court noted, however, that Sell's inappropriate behavior at
Springfield amounted at most to an "inappropriate familiarity and
even infatuation" with a nurse. Upon review, we agree that the
evidence does not support a finding that Sell posed a danger to himself or
others at the Medical Center. The district court properly reversed the
B. Forcible Administration of Antipsychotic Drugs to Restore
Next, we consider the question of whether
the district court erred in holding that a pretrial detainee may be
forcibly injected with antipsychotic medication for the sole purpose of
rendering him competent to stand trial. This is an issue of first
impression for this court. Cf. Papantony v. Hedrick, 215 F.3d 863,
865 (8th Cir. 2000) (holding that in the context of a Bivens action, there
is no clearly established right of a pre-trial detainee not to be forcibly
administered antipsychotic drugs for the sole purpose of rendering him
competent for trial). In Washington v. Harper, the Supreme
Court recognized that individuals possess "a significant liberty
interest in avoiding
unwanted administration of antipsychotic drugs." 494 U.S. 210,
221 (1990); cf.
United States v. Weston, 255 F.3d 873, 876 (D.C. Cir. 2001) (citations
due process liberty interest in avoiding unwanted antipsychotic medication
`significant,' but it is not absolute."). In Harper, a
convicted prison inmate claimed
that the State of Washington violated his due process rights by
antipsychotic drugs against his will. 494 U.S. at 217.
The Court acknowledged that
Harper had a liberty interest in avoiding unwanted medication but held
that the "Due
Process Clause permits the state to treat a prison inmate who has a
illness with antipsychotic drugs against his will, if [the inmate] is
himself or others and the treatment is in [the inmate's] medical
interest." Id. at 211.
In Riggins v. Nevada, the Court applied its
Harper analysis to the issue of
whether a pre-trial detainee may be forcibly injected with antipsychotic
for the purpose of rendering him competent for trial. 504 U.S. 127
Riggins, a pre-trial detainee was forcibly administered the antipsychotic
after a Nevada district court denied the detainee's pre-trial motion to
medication with a one-page order that gave no indication as to the court's
See id. at 130-31. A jury convicted Riggins,5 and he appealed,
arguing that the forced
administration of Mellaril denied him the ability to assist in his own
prejudicially affected his attitude, appearance and demeanor at trial.
See id. at 131.
Riggins further argued that the prejudice was not justified because the
state did not
demonstrate a need to administer the drug, nor did it explore alternative
The Supreme Court agreed, and held that Riggins's Fourteenth Amendment
been violated because the Nevada court did not acknowledge the detainee's
interest in freedom from unwanted medication, make any findings on the
forced medication, and make findings on reasonable alternatives to
5At trial, Riggins unsuccessfully presented
an insanity defense and was
convicted of murder and sentenced to death.
medication. See id. at 136-37. The Court also noted that
forcible administration of
antipsychotic drugs may have interfered with Riggins's Sixth Amendment
right to a
fair trial. See id. The Court, therefore, reversed and
remanded the case.
The Supreme Court did not have the
opportunity to determine when
involuntary medication could be used on a pre-trial detainee because the
court offered the accused almost no protection against involuntary
Supreme Court did note, however, that:
Under Harper, forcing antipsychotic drugs
on a convicted prisoner is
impermissible absent a finding of
overriding justification and a
determination of medical appropriateness.
The Fourteenth Amendment
guarantees at least as much protection to
persons the state detains for
trial. (Citation omitted).
. . . Nevada certainly would have satisfied due process if the
prosecution had demonstrated, and the
district court had found, that
treatment with antipsychotic medication was
medically appropriate and,
considering less intrusive alternatives,
essential for the sake of Riggins'
own safety or the safety of others.
(Citation omitted). Similarly, the state
might have been able to justify medically
treatment with the drug by establishing
that it could not obtain an
adjudication of Riggins' guilt or innocence
by using less intrusive
Id. at 135.
Based on this language, we conclude that
subject to the limitations outlined
below, the government may forcibly administer antipsychotic medication for
purpose of rendering a pre-trial detainee competent to stand trial without
accused's due process rights.
C. The Standard of Review for Forcible Administration of
We now consider Sell's
claim that the district court employed the wrong
standard of review to determine whether forced administration of
appropriate in this case. Sell encourages us to adopt strict
scrutiny, but the Supreme
Court declined to adopt such a standard in Riggins. See Riggins 504
U.S. at 136.6
Based on the Supreme Court's decision in Riggins and Harper, and the
our sister courts,7 we hold that the government must meet the following
test in order
6 The court stated:
" We have no occasion to finally prescribe such substantive
standards . . . since the District Court allowed administration of
Mellaril to continue
without making any findings about reasonable alternatives."
Riggins, 504 U.S. at
7Other courts have come
to contradictory conclusions on what substantive
standards are necessary to satisfy a pretrial detainee's due process
rights. The Sixth
Circuit held that courts must apply the strict scrutiny standard when the
to forcibly medicate a non-dangerous pre-trial detainee. See United
Brandon, 158 F.3d 947, 960 (6th Cir. 1998). The D.C. Circuit
interpreted Riggins to
require "heightened scrutiny" that takes into consideration the
infringement that antipsychotic drugs impose on an individual's liberty
need to find an essential state policy that provides an overriding
forced medication, and a requirement to consider less intrusive
United States v. Weston, 255 F.3d 873, 880 (D.C. Cir. 2001).
Similarly, the Southern
District of California refused to adopt a strict scrutiny standard.
Rather, it stated that
the government must meet the following standard:
First, the government
must demonstrate that "administration of anti-
psychotic drugs is
necessary to accomplish an essential state policy."
Second, the government must show that "there is a
sound medical basis for
treatment with anti-psychotic medication."
In making this showing, the government may
testimony regarding [Defendant's] mental illness and
its symptoms as well as
the effects that anti-psychotic medication will
have, both beneficial and
harmful, on [Defendant's] physical and mental
for the government to forcibly medicate an individual. First, the
present an essential state interest that outweighs the individual's
interest in remaining
free from medication. See Riggins, 540 U.S. at 135 (noting that the
prove an overriding state interest). Second, the government must
prove that there is
no less intrusive way of fulfilling its essential interest. See id.
Third, the government
must prove by clear and convincing evidence that the medication is
appropriate. See id. Medication is medically appropriate if:
(1) it is likely to render
the patient competent, see Weston, 255 F.3d at 876; (2) the likelihood and
side effects do not overwhelm its benefits, see id.; and (3) it is in the
interests of the patient. See Harper, 494 U.S. at 227 (noting that
the court should
consider the petitioner's medical interest). The district court did
not explicitly apply
this test, so we review the district court in light of the standards we
have set forth.
The first question, therefore, is
whether the district court erred by holding that
the government's interest in bringing Sell to trial is sufficient to
interest in refusing medication. This is a mixed question of law and
fact, so we
review the district court's finding de novo. See Boysiewick v.
Schriro, 179 F.3d 616,
619 (8th Cir. 1999). To make this determination, we must weigh the
health." Third, and most
importantly, the government must establish
"that there is no significant
risk that the medication will alter in any
material way the defendant's capacity
or willingness to react to
testimony at trial or assist
counsel." (Citation omitted). [T]he
government must establish these
elements by clear and convincing
United States v. Sanchez-Hurtado, 90 F. Supp.2d 1049, 1055 (S.D. Cal.
our sister courts, we believe that we must apply some sort of heightened
review, but unlike the Sixth Circuit, we do not adopt the strict scrutiny
e.g. Weston, 255 F.3d at 888 (noting that the Supreme Court denied
adopting a strict
scrutiny test in Riggins but also appeared not to apply a reasonableness
test or its
various analogues: arbitrary and capricious, rational basis or exercise of
interest in rendering Sell competent against Sell's interest in refusing
The government has an essential interest in
bringing a defendant to trial. See
Illinois v. Allen, 397 U.S. 337, 347 (1970) (Brennan, J., concurring)
power to bring an accused to trial is fundamental to a scheme of `ordered
a prerequisite to social justice and peace."). Not all charges,
however, are sufficient
to justify forcible medication of a defendant; rather, the charges must be
United States v. Brandon, 158 F.3d 947, 961 (6th Cir. 1998). Here,
charges of fraud and the single charge of money-laundering are serious, a
denied by the defendant.8 Despite Sell's significant liberty
interest in refusing
antipsychotic medication, in view of the seriousness of the charges, we
the government's interest in restoring his competency so that he may be
trial is paramount.9
The second part of our analysis is whether
the district court erred in finding
that there were no less intrusive means by which the government may
essential interest. See Riggins, 540 U.S. at 135 (noting that the
prove that there is no less intrusive means). The government may not
bring an incompetent defendant to trial, see Pate v. Robinson, 383 U.S.
so the only way the government may try Sell is by restoring his
Dr. Wolfson and Dr. DeMier testified that antipsychotic medication is the
Sell is also charged with conspiring to murder an FBI officer and a
witness, we base our reasoning solely on the seriousness of the fraud
charges. It is
possible that Sell's threats after his first indictment were a
manifestation of his
delusional disorder and we decline to make a determination about whether
charges suffice to involuntarily medicate him.
9We note that the government's interest in
preserving a scheme of ordered
liberty can only be achieved if a defendant is competent at trial.
If the medication
does not render Sell competent, his trial cannot proceed. See infra
effective treatment for delusional disorder and that it is the only way
Sell could be
restored to competency. See Transcript of Evidentiary Hr'g, Sept.
29, 1999 at 21, 75-
78. Even Dr. Cloninger, who submitted an affidavit on behalf of Sell
and stated that
antipsychotic drugs are not a proven treatment, did not suggest any
of restoring competency. See generally Cloninger Aff. Based on this
believe that the district court correctly concluded that there were no
Third, we must determine whether the
evidence supports the district court's
conclusion that antipsychotic medication is medically appropriate for
We review the district court's findings of fact under the clearly
See Love v. M.D. Reed, 216 F.3d 682, 687 (8th Cir. 2000). Whether a
action is medically appropriate depends on the judgment of medical
See Harper, 494 U.S. at 231, 233-34. At the hearing before the
Magistrate Judge, the
government presented testimony from Dr. DeMier and Dr. Wolfson. Dr.
Sell's treating psychologist, testified that antipsychotic medication is
treatment that has been shown to be effective in treating delusional
disorder and it is
the only treatment that could restore Sell to competency. He also
stated that he has
treated two patients suffering from delusional disorder with antipsychotic
Of the two, one was restored to clinical competency; the other patient
did not regain competency.10 Dr. DeMier also stated that
have "potentially significant side effects, but there's also
potentially, very significant
recovery from symptoms."
Dr. Wolfson, the staff psychiatrist who
works as a consultant on Sell's case,
also recommended that Sell be treated with antipsychotic drugs. Dr.
10The patient who was successfully treated
was given Haldol, a typical
antipsychotic drug. The patient who was not restored to competency
Olanzapine, an atypical antipsychotic drug.
treated seven patients with delusional disorder but only four for the
restoring competency.11 Dr. Wolfson reported that all seven
benefitted clinically from
antipsychotic medication and of the four who were treated for restoration
competency, three regained competency. Dr. Wolfson testified that
literature indicated that patients with delusional disorder respond less
than patients with other illnesses, but he stated that he doubts the
accuracy of that
conclusion and noted that the literature shows favorable results in many
Wolfson admitted that there are both harmful and unpleasant side effects
antipsychotic drugs; these include sedation, neuroleptic malignant
is rare but fatal,13 and tardive dyskinesia and/or dystonic reaction,
which causes a
person to have involuntary movements of various parts of the body.
Dr. Wolfson also
stated, however, that the existence and/or degree of side effects could be
by changes in the doses and type of medication being used. He
testified that the new
generation of atypical antipsychotic drugs, such as Pimozide, have more
effects than the older typical antipsychotic drugs, such as Haldol.
admitted, however, that the atypical drugs can only be administered
therefore cannot be used to forcibly drug uncooperative patients.
11He treated one of the patients twice.
This patient was restored to competency,
relapsed, then restored a second time.
12Dr. Wolfson explained that:
First, the delusions stop expanding. . . .
It's even conceivable that some
delusional material may regress. . . .
[O]ur first goal [is] to diminish the
impact on . . . actions
and . . . judgment of the illness. Second, [is] to
minimize the expansion of the delusional
system. . . . [I]t's typically
been my experience [that this is]
accomplished with other patients.
Transcript of Evidentiary Hr'g, Sept. 29, 1999 at 137.
13Dr. Wolfson testified that the incidence
of this side-effect is one in ten
To combat this testimony, Sell presented
the affidavit of Dr. Cloninger. Dr.
Cloninger stated that "there is no evidence that [antipsychotic
beneficial for patients with Delusional Disorder." Cloninger Aff. at
8. Dr. Cloninger
admitted that antipsychotic drugs are often beneficial in treating
maintained that they do not provide the same benefit in the treatment of
disorder. Dr. Cloninger attached to his affidavit an excerpt from
Psychiatric Press Textbook of Psychiatry. That text notes that there
is a disagreement
between experts on the effectiveness of treating delusional disorders with
antipsychotic medication, but it also states that the medication may be
particularly for accompanying anxiety, agitation, and psychosis. Donald W.
et.al., Schizophrenia, Schizophreniform Disorder, and Delusional
Disorders, in Textbook of Psychiatry (John A. Talbott et. al. eds.) 1988.
Cloninger was not able to recommend a less intrusive alternative to
restore Sell to
competency; rather, he suggested that treatment be limited to basic
voluntary symptomatic treatment, and that such treatment also include
exercise and reading material. See Cloninger Aff.
In addition, Sell also presented the court
with a report from the Federal Bureau
of Prisons Institutional Metropolitan Correctional Center ("MCC")
in which Dr.
Daniel Greenstein, the forensic psychologist at MCC, stated that
do not typically respond to medication or psychotherapy.
Based on the totality of this evidence,
Sell argues that the district court was
clearly erroneous in finding that antipsychotic medication was medically
He contends that the district court erred by basing its finding, in part,
that atypical antipsychotic medications have more benign side effects,
atypical drugs can only be administered orally, thus they cannot be given
involuntarily. Sell also argues that the government did not prove
that the medication
has a reasonable probability of restoring competency. Finally, Sell
argues that the
court erred in finding medical appropriateness when the government failed
which medication it would use.14 Sell posits that without knowing
which drugs would
be administered, he was incapable of making anything more than a
argument. See United States v. Sell, No. 4: 98CR177 at 7 (April 4,
Magistrate's order allowing the involuntarily medication of Sell and
stating that Sell's
arguments against medication were generalized).
We disagree with these assertions. We
acknowledge that there is a difference
of opinion on the efficacy of using antipsychotic drugs to treat
but we do not believe that the district court committed clear error in
finding that the
government proved medical appropriateness by clear and convincing
the government presented evidence that the medication can reasonably be
to minimize Sell's delusions and render him competent for trial. Dr.
DeMier has a
50% success rate and Dr. Wolfson has a 75 % success rate in restoring
to patients with delusional disorders. Moreover, the medication
condition of all the patients they treated, whether or not they were
competency. Dr. Wolfson testified about how the medication works,
stating that the
medication should reduce the impact of the delusion on Sell's thought
Although we cannot say with 100% certainty whether Sell will regain
with his treatment, the district court did not clearly err in finding a
likelihood that antipsychotic medication will restore Sell's competence.
Second, the government proved that the
side-effects produced by the
medication could be minimized through careful treatment and changing
and dosages. Although Dr. Wolfson did not name a specific
medication, he did name
the two he would most likely use. Therefore, we reject Sell's
contention that he was
not given the opportunity to make specific objections to specific drugs.
14Dr. Wolfson stated that he did not want
to be pinned down to a single drug
because he hoped to leave part of the choice up to Sell. He
recommended that the
drugs Quetiapine or Olanzapine be used.
we reject Sell's argument that the court erred in basing its opinion in
part on the
availability of atypical antipsychotic drugs which can only be
The availability of the atypical medications was not determinative to the
court's findings, and the evidence supports the conclusion that the
Sell will be able to reduce the incidence of unpleasant and harmful
produced by typical antipsychotic medication as well.
Finally, the district court appropriately
considered Sell's medical interest. The
court noted that Sell's delusions interfere with his ability to make sound
about his life and his treatment, and that his disorder currently impairs
his interpretation of reality and his reasoning. The government
that antipsychotic medication is commonly used to help reduce delusions
impact on an individual's life, and the court found that these benefits
risks associated with antipsychotic drugs.
The district court did not err in applying
the wrong standard of review. As
required, the court found that the government has an essential interest in
the serious charges against Sell. The court found that involuntary
medication is the
only way for the government to achieve its interest in fairly trying Sell
and found that
the medication is medically appropriate for him. The government
elements by clear and convincing evidence. Therefore, we find no
in the standard of review employed by the district court.
We note, however, that this is a limited
holding. We do not believe this
standard will be met in all circumstances in which the government wishes
competence. Furthermore, we note that an entirely different case is
the government wishes to medicate a prisoner in order to render him
execution. See, e.g., Singleton v. Norris, 267 F.3d 859 (8th Cir.
2001), vacated and
reh'g en banc granted (Dec. 5, 2001). Therefore, our holding
must be read narrowly.
D. Sell's Sixth Amendment Rights
Finally, we consider whether the
district court properly considered Sell's Sixth
Amendment right to a fair trial when it ordered the forcible medication.
court held that Sell's Sixth Amendment claim was premature because the
the medication on his competency to assist counsel and on his demeanor
properly be considered after medication. We note that before
forcibly medicating an
accused, there must be evidence that he will be able to participate in a
fair trial. See
Brandon, 158 F.3d at 960. That burden was met in this case.
First, the magistrate
found that the evidence indicated that Sell would be able to participate
in his trial while he is under the influence of the medication. See
United States v.
Sell, 4:98CR177 at 13 (E.D. Mo. Aug. 9, 2000). Also, the magistrate
found that the
medication would allow him to communicate with his counsel in a rational
See id. The magistrate further noted that Dr. Wolfson intends to use
drugs with a low
side-effect profile, to change drugs and dosages based on the side-effects
experiences, and above all, to avoid sedation. See id. The
district court affirmed
these findings. See generally United States v. Sell, 4:98CR177 at
5-9 (E.D. Mo. Apr.
We find that the medical evidence
presented indicated a reasonable probability
that Sell will fairly be able to participate in his trial. As a
result, we believe that the
effects of the medication on Sell's competency and demeanor may properly
considered once the medication is administered. The district court
willingness to re-examine Sell's Sixth Amendment claim after the
regimen has begun. See id. at 15. The evidence offered, that
the drugs should not
interfere with Sell's right to a fair trial, as well as post-medication
ensure he will not be tried unfairly, are sufficient to protect Sell.
There is no
Having found no reversible errors, we
affirm the district court's
determination that Sell may be involuntarily medicated for the purpose of
rendering him competent to stand trial.
BYE, Circuit Judge, dissenting.
Unlike the majority, I would apply the
strict scrutiny standard of review for the
reasons enunciated by the Sixth Circuit in United States v. Brandon, 158
956-61 (6th Cir. 1998). But even under the majority's three-part
test, the charges
against Dr. Sell are not sufficiently serious to forcibly inject him with
drugs on the chance it will make him competent to stand trial. I
The first part of the majority's test
requires the government to demonstrate an
essential interest that outweighs his interest in remaining free from
at 11. The majority perfunctorily concludes the government's
interest in prosecuting
the defendant for sixty-two counts of fraud and one count of money
qualifies as an essential interest that trumps Dr. Sell's significant
liberty interest in
refusing antipsychotic medication. I strongly disagree.
While the government possesses an interest
in bringing a defendant to trial,
ante at 12, I do not believe every charge is sufficient to justify
forcible medication of
a defendant. See Riggins v. Nevada, 504 U.S. 127, 135 (1992)
government might be able to medicate a defendant involuntarily if "it
could not obtain
an adjudication of [his] guilt or innocence by using less intrusive
added). It is helpful to compare two recent decisions confronting
this precise issue.
In United States v. Weston, 255 F.3d 873 (D.C. Cir. 2001), the Court of
the District of Columbia recognized the government's interest in
who violate the law. In that case, Russell Weston entered the
Capitol building and
shot three police officers, killing two of them. A grand jury
indicted Weston on two
counts of murder, and one count of attempted murder of a federal law
addition to three counts of using a firearm in a crime of violence.
that "[t]he government's interest in finding, convicting, and
reaches its zenith when the crime is the murder of federal police officers
in a place
crowded with bystanders where a branch of government conducts its
F.3d at 881. Weston also noted "[t]he statutory sentences for
the crimes Weston is
accused of committing-life in prison and death-reflect the intensity of
government's interest in bringing those suspected of such crimes to
Weston typifies the case where the
government's interest is paramount because
the charges include the most serious crimes known to man. Few cases
as serious as those in Weston, however. In Brandon, the Sixth
Circuit noted the
government's reduced interest in trying a defendant accused of lesser
F.3d at 947. Ralph Brandon was charged with sending a threatening
through the mail. The Sixth Circuit stated "[w]e find it
difficult to imagine . . . that
the government's interest in prosecuting the charge of sending a
through the mail could be considered a compelling justification to
Brandon." Id. at 961; cf. Bee v. Greaves, 744 F.2d 1387, 1395
(10th Cir. 1984)
(questioning whether the state's interest in trying suspects could ever
criminal defendant's interest in avoiding forcible medication with
drugs). Brandon also noted the maximum penalty the defendant faced
for sending a
threatening communication-five years imprisonment. 158 F.3d at 961.
Weston and Brandon teach us that the
forcible administration of antipsychotic
medication may be warranted when the government seeks to prosecute
serious crimes, but not when it seeks to prosecute crimes less so.
crimes of intermediate severity may present vexing questions, but Dr.
poses no such challenge. The crimes with which he has been charged
to those in Brandon and thoroughly distinct from those in Weston.
Dr. Sell is charged
with making false representations in connection with the payment of health
services, 18 U.S.C. 1035(a)(2), and money laundering, 18 U.S.C.
maximum penalty for these charges is five and ten years imprisonment,
He cannot be put to death nor imprisoned for life if convicted of these
crimes, as was
the case in Weston. He is charged with crimes which are far less
serious than the
violent, heinous and deadly crimes with which Weston was charged.
Indeed, they are
nonviolent and purely economic. There is no identifiable victim for
these types of
crimes; rather, only society's interest is harmed.
The majority deems the charges serious in
part because of the number of counts
Dr. Sell faces (63). At first blush, the sixty-two counts of fraud
and the single count
of money laundering might appear to make the charges seem more serious,
sheer number is an inaccurate yardstick for measuring the severity of his
offenses. He will be sentenced under the United States Sentencing
direct his sentence to be determined by the total dollar value of the
fraud, not the
number of counts. See U.S. Sentencing Guidelines Manual (U.S.S.G.)
ch. 3 pt. D &
5G1.2, 2B1.1, 2S1.1 (2001). An overly generous
estimation of Dr. Sell's alleged
illegal activity would place the value of his fraud within the range of
$1,000,000. Applying this estimate, his base offense level would be
(assuming he has no prior criminal history) his sentencing range would be
months. See U.S.S.G. 2B1.1. This sentencing range
demonstrates the charges
against him are not serious enough to justify forcible medication.
Ante at 12 ("Not
all charges, however, are sufficient to justify forcible medication of a
rather, the charges must be serious). In any event-setting aside the
estimations altogether-Dr. Sell's potential sentence is far more
proportional to the
maximum five year sentence in Brandon than to the maximum life-in-prison
death sentences in Weston.
The majority states Dr. Sell does not deny
the severity of the fraud and money
laundering charges. Ante at 12. This representation is
wrenched from its context,
however. While he does not deny the severity of these charges in the
certainly does not concede they are serious enough to warrant forced
fact, Dr. Sell devotes most of his efforts to defending and minimizing the
conspiring to murder an FBI agent and witness, not to discussing the fraud
More telling still, neither the government
nor the district court believe the fraud
and money laundering charges alone support the forcible administration of
medication. The government all but dismisses these counts when
arguing about the
severity of the charges against him. The government focuses its
entirely on the charges related to the conspiracy to murder the FBI agent
Neither in its brief, nor during oral argument, has the government claimed
and money laundering charges by themselves are serious enough to warrant
medication. Likewise, the district court acknowledged the conspiracy
murder charges tipped the balance in its conclusion that Dr. Sell's
were serious enough to warrant the forcible administration of
Although the majority properly omits the
charges of conspiracy to commit
murder from its analysis, ante at 12 n.8, the majority inexplicably turns
a blind eye
to the apparent agreement of all parties that the fraud and money
alone are insufficiently serious to warrant forcible medication.
This course of action
This is not meant to suggest the crimes
with which Dr. Sell has been charged
should not be prosecuted. They will and should be. However,
this defendant should
not be forced to take antipsychotic drugs in order to be prosecuted for
government's interest in forcibly medicating an accused murderer may be
but its interest in forcibly medicating an accused thief is not. In
my view, these
charges are not serious enough to warrant the forced medication of the
who, we must not forget, is a non-dangerous pre-trial detainee cloaked
presumption of innocence. As a result, the government has failed to
satisfy the first
part of the majority's three-part test.
* * *
The government is not without recourse upon
a finding that the charges against
Dr. Sell are insufficiently serious to warrant forcible medication.
He will not be set
free. A civil commitment is in order for him until he becomes
voluntarily agrees to take medication. See Riggins, 504 U.S. at 145
concurring) (stating that if the State cannot render the defendant
involuntary medication, then it must resort to civil commitment).
asserts that its interest in punishing crime will be diminished by the
option of civil
commitment. It is true Dr. Sell's criminality will not be
adjudicated as the civil
commitment unfurls. However, the government's interest in forcing
him to stand trial
on charges that may result in such limited punishment does not outweigh
substantial rights under the First, Fifth and Sixth Amendments. See
F.3d at 956-61 (enumerating an individual's rights in refusing
I respectfully dissent.
A true copy.
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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