United States v. Simon Dillon

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 24, 2013 Decided December 24, 2013

No. 13-3044

UNITED STATES OF AMERICA,

APPELLEE

v.

SIMON A. DILLON,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cr-00012-1)

Christopher M. Davis, appointed by the court, argued the

cause for appellant. With him on the briefs was Mary E.

Davis, appointed by the court.

David B. Goodhand, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Ronald C.

Machen Jr., U.S. Attorney, and Elizabeth Trosman,

G. Michael Harvey, and Fernando Campoamor-Sanchez,

Assistant U.S. Attorneys.

Before: KAVANAUGH and SRINIVASAN, Circuit Judges,

and EDWARDS, Senior Circuit Judge.

2

EDWARDS, Senior Circuit Judge: This appeal contests the

District Court’s order authorizing the Government to

medicate Defendant-Appellant Simon Dillon, by force if

necessary, for the sole purpose of rendering him competent to

stand trial. We review this matter with a sobering awareness

that requiring a person to take unwanted psychotropic

medication entails a grave deprivation of a liberty interest

protected by the Due Process Clause. See Washington v.

Harper, 494 U.S. 210, 221 (1990) (noting that an individual

“possesses a significant liberty interest in avoiding the

unwanted administration of antipsychotic drugs”).

Our decision is largely controlled by Sell v. United States,

where the Supreme Court held that the Government may, on

“rare” occasions, forcibly medicate a defendant to restore his

competency. 539 U.S. 166, 180 (2003). But to do so, the

Government must establish, inter alia, (1) that the

Government has an “important” interest in the prosecution

that is undiminished by special circumstances and (2) that the

proposed medication will “significantly further” this

important interest. Id. at 180-81. The Government contends

this case is one of the “rare” instances contemplated by Sell.

Dillon, who has a history of mental illness, was indicted

for threatening the President in violation of 18 U.S.C. § 871.

The District Court found him incompetent to stand trial and,

upon the Government’s motion for involuntary medication,

conducted a Sell hearing in April 2013. The District Court

determined that the Government carried its burden of

establishing “that the Sell standards have been met and that

involuntary medication is appropriate and necessary.” United

States v. Dillon, No. 12-CR-12 (JDB), 2013 WL 1859289, at

*1 (D.D.C. May 3, 2013). This appeal followed.

3

Dillon argues that the District Court erred in failing to

consider whether the possibility of his being civilly confined

undermines the importance of the Government’s prosecutorial

interest under the first Sell factor. Br. of Appellant at 21-29.

Dillon also argues that the District Court erred in neglecting

to weigh that he is not a dangerous individual, a fact that he

contends should be relevant because it diminishes the

Government’s interest in his prosecution. Id. at 18-21. Finally,

Dillon contends that certain of the District Court’s findings

concerning his diagnosis were clearly erroneous. Id. at 29-43.

We reject Dillon’s arguments and affirm. First, given the

record in this case, we find no merit in Dillon’s claim that the

District Court committed reversible error in failing to consider

the prospect that he might face civil confinement. Dillon did

not argue to the District Court, as he does now, that he was

likely to be civilly confined and that his probable confinement

constituted a “special circumstance” weakening the

Government’s interest in prosecution. Dillon thus forfeited the

argument, and any claim to plain error is thwarted by Dillon’s

repeated assertions that he is not dangerous, which undercut

the likelihood that Dillon will be civilly confined. See 18

U.S.C. § 4246(d) (authorizing confinement only upon a

showing that an individual’s “release would create a

substantial risk of bodily injury to another person or serious

damage to property of another” (emphasis added)); D.C.

CODE § 21-545(b)(2) (authorizing commitment only if a

person is “likely to injure himself or others if not committed”

and requiring the “least restrictive alternative consistent with

the best interests of the person and the public” (emphasis

added)). Second, even if Dillon is correct that he is not

dangerous apart from allegedly threatening the President with

bodily harm, this fact by itself would not render unimportant

the Government’s interest in prosecuting him for a serious

and dangerous crime. Finally, we hold that the District

4

Court’s factual findings have a sound evidentiary basis and

are not clearly erroneous.

I. BACKGROUND

Dillon, who has been repeatedly hospitalized for his

mental illness, was indicted under 18 U.S.C. § 871 for

threatening to inflict bodily harm upon the President. On

December 10, 2011, he allegedly sent an e-mail to a United

States Secret Service agent from a location three blocks away

from the White House that stated that “no harm” would come

to the President if he met with Dillon and agreed to “meet the

demands of God.” If these demands went unmet, the e-mail

continued, the President would “get the worse [sic] Christmas

present ever,” “will suffer for 30 days,” and “will wish for

death, but death will not come to him.”

The Secret Service arrested Dillon the next day.

Following his detention, the D.C. Department of Mental

Health sought his involuntary civil commitment. After an

administrative hearing on January 5, 2012, the D.C. Mental

Health Commission recommended that Dillon be committed

on an outpatient basis. Dillon contested this recommendation

before the D.C. Superior Court, which stayed the matter after

criminal charges were filed.

On January 13, 2012, eight days after the D.C. Mental

Health Commission had recommended outpatient civil

commitment, a grand jury indicted Dillon under 18 U.S.C.

§ 871. Dillon was then arrested, and, shortly thereafter, the

District Court ordered that he be committed to the care of the

Attorney General for a competency determination pursuant to

18 U.S.C. § 4241.

5

Government doctors evaluated Dillon’s competency on

three separate occasions during pretrial proceedings and

reached three distinct diagnoses. First, Drs. William J. Ryan

and Elissa R. Miller evaluated Dillon at the Metropolitan

Correctional Center. In a competency report issued in March

2012, Drs. Ryan and Miller diagnosed Dillon with

Schizophrenia, Paranoid Type. Drs. Ryan and Miller

nevertheless concluded that Dillon was competent to stand

trial, albeit with the caveat that their opinion was offered

“with less than the usual degree of psychological certainty”

because Dillon was “unable to rationally consider an Insanity

Defense to which he may be entitled.”

Second, after both parties orally moved for further

psychiatric evaluation, Dr. Heather H. Ross evaluated Dillon

at Butner Federal Medical Center (“Butner”). In an August

2012 report, Dr. Ross diagnosed Dillon with Delusional

Disorder, Grandiose Type. Dr. Ross further concluded that

Dillon’s mental illness rendered him incompetent to stand

trial because it prevented him from assisting properly in his

defense. The District Court then held a competency hearing

and, consistent with Dr. Ross’s recommendation, found

Dillon incompetent to stand trial.

Third, after the District Court found Dillon incompetent,

it ordered that he again be committed to the custody of the

Attorney General, this time for a determination of whether,

with treatment, there would be “a substantial probability that

. . . [Dillon would] attain the capacity to permit the

proceedings to go forward.” 18 U.S.C. § 4241(d)(1). Drs. Jill

R. Grant and Jill C. Volin evaluated Dillon at Butner and

authored a competency restoration study that they submitted

to the District Court in February 2013. They diagnosed Dillon

with Schizoaffective Disorder, Bipolar Type and concluded

that Dillon remained incompetent to stand trial. Drs. Grant

6

and Volin also concluded that there was a substantial

probability that Dillon could be restored to competence with

antipsychotic medication. They based their conclusion on a

number of studies estimating the rate at which psychotic

defendants are successfully restored to competency. See, e.g.,

Robert E. Cochrane et al., The Sell Effect: Involuntary

Medication Treatment Is a “Clear and Convincing” Success,

LAW & HUM. BEHAV. (2012), reprinted in Joint Appendix

(“J.A.”) 279-88; Bryon L. Herbel & Hans Stelmach,

Involuntary Medication Treatment for Competency

Restoration of 22 Defendants with Delusional Disorder, 35 J.

AM. ACAD. PSYCHIATRY & LAW 47 (2007), reprinted in J.A.

289-301. In further support of their conclusion, Drs. Grant

and Volin also pointed to Dillon’s medical history that

indicated that he had responded favorably to psychotropic

medication during past hospitalizations.

Based on their findings, Drs. Grant and Volin requested a

judicial order under Sell authorizing them to administer a

course of involuntary antipsychotic medication to restore

Dillon’s competency. Drs. Grant and Volin stated that they

sought authorization under Sell because Dillon did not meet

the criteria for forcible medication articulated in Harper. See

494 U.S. at 227 (holding that “given the requirements of the

prison environment, the Due Process Clause permits the State

to treat a prison inmate who has a serious mental illness with

antipsychotic drugs against his will, if the inmate is dangerous

to himself or others and the treatment is in the inmate’s

medical interest”).

Based on the February 2013 competency restoration

study, the Government moved to have Dillon forcibly

medicated. In April 2013, the District Court conducted a Sell

hearing at which Drs. Grant and Volin testified as expert

witnesses in the areas of clinical forensic psychology and

7

forensic psychiatry, respectively. Dillon also testified that a

past diagnosis of psychosis was due to behavior induced by

peyote, and that he suffered side effects in the form of

depression and numbness in his extremities after he was

administered Risperdal, an antipsychotic medication. Tr. of

Hr’g (Apr. 17, 2013) at 127-29, reprinted in J.A. 184-86.

Shortly after the hearing, the District Court issued its

Memorandum Opinion authorizing involuntary medication.

2013 WL 1859289. As relevant to this appeal, the District

Court found that the “government has an important interest in

bringing defendant to trial” that is not undermined by “special

circumstances,” id. at *3-4, and that “involuntary medication

will significantly further the government’s interest in

prosecuting defendant,” id. at *7.

This court has jurisdiction to hear this appeal under 28

U.S.C. § 1291 because an order authorizing the administration

of involuntary medication meets the “collateral order”

exception to the usual rule that pretrial orders are not

immediately appealable. Sell, 539 U.S. at 176-77.

II. ANALYSIS

The parties do not dispute that the Supreme Court’s

decision in Sell largely controls the disposition of this case.

They do not agree, however, on how the holdings of Sell

should be applied to the facts of this case. We will therefore

preface our analysis of the parties’ claims with a close reading

of Sell to determine the legal parameters that guide our

decision.

The Supreme Court’s decision in Sell relied on two of its

prior decisions – Harper and Riggins v. Nevada, 504 U.S. 127

(1992) – to formulate the constitutional prerequisites to the

8

Government’s involuntarily medicating a defendant to restore

his trial competency. Sell, 539 U.S. at 177-79. In Harper, the

Court concluded that an individual’s liberty interest in

avoiding forced medication, though “significant,” could be

overcome by the important state interest in “providing

appropriate medical treatment to reduce the danger that an

inmate suffering from a serious mental disorder represents to

himself or others.” 494 U.S. at 221, 236. It was thus

constitutionally permissible for the State of Washington to

medicate a non-consenting inmate whose mental illness

caused him to be a danger to himself or others in the prison

environment. Id. at 225-26, 236. And in Riggins, the Court

observed that, in addition to the governmental interest in

mitigating an inmate’s dangerousness, a state could forcibly

medicate a defendant for the purpose of bringing him to trial.

504 U.S. at 135 (“[T]he State might have been able to justify

medically appropriate, involuntary treatment with the drug by

establishing that it could not obtain an adjudication . . . by

using less intrusive means.”).

Relying on Harper and Riggins, the Supreme Court

prescribed a detailed, four-part inquiry for district courts to

undertake prior to authorizing involuntary medication to

restore defendants to competency:

First, a court must find that important governmental

interests are at stake. The Government’s interest in

bringing to trial an individual accused of a serious crime

is important. . . .

Courts, however, must consider the facts of the

individual case in evaluating the Government’s interest in

prosecution. Special circumstances may lessen the

importance of that interest. . . .

9

Second, the court must conclude that involuntary

medication will significantly further those concomitant

state interests. It must find that administration of the

drugs is substantially likely to render the defendant

competent to stand trial. At the same time, it must find

that administration of the drugs is substantially unlikely

to have side effects that will interfere significantly with

the defendant’s ability to assist counsel in conducting a

trial defense, thereby rendering the trial unfair. . . .

Third, the court must conclude that involuntary

medication is necessary to further those interests. The

court must find that any alternative, less intrusive

treatments are unlikely to achieve substantially the same

results. . . .

Fourth, as we have said, the court must conclude that

administration of the drugs is medically appropriate, i.e.,

in the patient’s best medical interest in light of his

medical condition.

Sell, 539 U.S. at 180-81 (citations omitted).

In addition, the Court in Sell took pains to ensure that the

four-part inquiry it announced would not be conflated with a

Harper inquiry into whether an individual’s dangerousness

could justify the forcible administration of antipsychotic

medication. Id. at 181-82. The Court instructed that “[t]here

are often strong reasons for a court to determine whether

forced administration of drugs can be justified on these

alternative [Harper] grounds before turning to the trial

competence question.” Id. at 182. By considering Harper

grounds first, a court might obviate the need to conduct the

more difficult inquiry under Sell, and “[e]ven if a court

decides medication cannot be authorized on the alternative

10

grounds, the findings underlying such a decision will help to

inform expert opinion and judicial decisionmaking in respect

to a request to administer drugs for trial competence

purposes.” Id. at 183. Trial courts should thus “ordinarily

determine whether the Government seeks, or has first sought,

permission for forced administration of drugs on these other

Harper-type grounds; and, if not, why not.” Id.

In this case, the District Court conducted an analysis

pursuant to Sell after Drs. Grant and Volin reported that

Dillon did not meet the criteria for forcible medication

articulated in Harper. And the Government does not contend

that Dillon was a danger to himself or others while

incarcerated and, thus, should be forcibly medicated pursuant

to Harper. Given this record, the focus of our decision will be

on the dictates of Sell, not Harper.

A. Standards of Review and Proof

The Supreme Court in Sell did not prescribe a standard of

appellate review, and this circuit has yet to address the matter.

Most of our sister circuits conduct de novo review of a district

court’s holding that the Government’s interest is “important”

under the first prong of Sell, and assess a district court’s

remaining Sell findings for clear error. See United States v.

Fazio, 599 F.3d 835, 839 (8th Cir. 2010) (noting the

“overwhelming majority of courts” adopting this approach);

see also United States v. Diaz, 630 F.3d 1314, 1331 (11th Cir.

2011); United States v. Green, 532 F.3d 538, 546, 552 (6th

Cir. 2008); United States v. Hernandez-Vasquez, 513 F.3d

908, 915-16 (9th Cir. 2007) (as amended Jan. 22, 2008);

United States v. Palmer, 507 F.3d 300, 303 (5th Cir. 2007);

United States v. Evans, 404 F.3d 227, 236, 240 (4th Cir.

2005); United States v. Gomes, 387 F.3d 157, 160 (2d Cir.

2004). But see United States v. Bradley, 417 F.3d 1107, 1113-

11

14 (10th Cir. 2005) (concluding that second Sell factor, in

addition to the first, is a “legal question” to be reviewed de

novo).

We adopt the approach taken by the majority of circuits.

See Hernandez-Vasquez, 513 F.3d at 915 (following the

majority’s approach of reviewing the second Sell factor for

clear error, instead of the Tenth Circuit’s approach, because

the question of whether medicating a defendant would

“significantly further” the Government’s interest “typically

involves substantial questions of fact”). We thus review de

novo the District Court’s conclusion that the Government has

an important interest in prosecuting Dillon, and consider

whether the balance of the District Court’s findings are

clearly erroneous.

We hasten to add one qualification, however. To the

extent that the District Court’s determination under the first

prong of Sell depends on findings of fact, see Sell, 539 U.S. at

180 (“Courts . . . must consider the facts of the individual

case in evaluating the Government’s interest in prosecution.”

(emphasis added)), we review those findings under a

clear-error standard. See Evans, 404 F.3d at 236 (observing

that although the Fourth Circuit’s review under the first prong

of Sell is de novo, “review [of] any factual findings relevant to

this legal determination [is] for clear error”); see also United

States v. Mikulich, 732 F.3d 692, 696 (6th Cir. 2013).

The Supreme Court also did not establish the burden of

proof to be applied to Sell determinations. Noting the absence

of controlling authority in our circuit, the District Court

concluded that the Government was required to establish each

Sell factor under a clear and convincing standard of proof,

adopting the approach taken by other courts of appeals.

Dillon, 2013 WL 1859289, at *1 n.1 (citing United States v.

12

Bush, 585 F.3d 806, 814 (4th Cir. 2009); Green, 532 F.3d at

545 n.6). The Government has not disputed this conclusion,

and Dillon has not advocated for a higher burden.

We agree with the District Court’s approach and join our

sister circuits in holding that factual determinations under Sell

must be supported by clear and convincing evidence. See

Diaz, 630 F.3d at 1331 (“Other circuit courts that have

considered this issue uniformly concluded that in Sell cases

the government bears the burden of proof on factual questions

by clear and convincing evidence.”); United States v.

Chatmon, 718 F.3d 369, 374 (4th Cir. 2013); Fazio, 599 F.3d

at 840 n.2; Bradley, 417 F.3d at 1114; Gomes, 387 F.3d at

160. Holding the Government to a clear and convincing

standard of proof affords due regard to the nature of the

liberty interest at stake in forced-medication cases. See United

States v. White, 620 F.3d 401, 422 (4th Cir. 2010) (Keenan, J.,

concurring) (noting “the physical violence inherent in forcible

medication” and that “forcible administration of drugs

necessarily requires a substantial and degrading intrusion of

the body”).

B. The First Sell Factor

Dillon begins by challenging the District Court’s

determination under the first Sell factor that “important

governmental interests are at stake” in his prosecution. 539

U.S. at 180. A proper analysis of this first factor addresses

two distinct questions. A court must first determine whether

the charged crime is “serious,” because the Government’s

interest in a prosecution generally qualifies as “important”

when the defendant is charged with a serious crime. Id. Next,

considering the specific facts of the case before it, a court

must evaluate whether “[s]pecial circumstances . . . lessen the

importance of that interest.” Id. Sell lists two examples of

13

special circumstances: an extended period of pretrial

detention and the prospect of lengthy civil confinement. Id.

Observing that Dillon had conceded the seriousness of

his alleged offense, the District Court concluded that the

Government’s interest in prosecuting him was “important.”

2013 WL 1859289, at *3. Turning to the second part of the

analysis, the District Court considered, and rejected, Dillon’s

argument that his pretrial confinement undercut the

Government’s interest. Id. at *3-4. The District Court did not

consider the prospect that Dillon might face a lengthy civil

confinement because Dillon “did not make such an

argument.” Id. at *3 n.7. Nor did the District Court consider

any other special circumstance. Id. at *3-4.

Dillon continues to concede on appeal that the charged

crime is “serious” under Sell. Br. of Appellant at 18. In light

of Dillon’s concession, we need not wade into the debate

among our sister circuits about whether the seriousness of a

crime is measured by the statutory maximum or the likely

guideline sentence, or both. Compare United States v.

Valenzuela–Puentes, 479 F.3d 1220, 1226 (10th Cir. 2007)

(examining both the statutory maximum and the likely

guideline sentence to determine whether a crime is “serious”),

with Evans, 404 F.3d at 238 (4th Cir. 2005) (concluding that

focusing on a defendant’s probable guideline range would be

“unworkable”). However, Dillon argues that the District

Court erred by failing to consider two “special circumstances”

that he claims diminish what would otherwise qualify as an

important governmental interest in his prosecution. The first

special circumstance, he contends, is the prospect of his civil

confinement. Br. of Appellant at 21-29. The second is his own

purported non-dangerousness. Id. at 18-21. We consider each

argument in turn.

14

1. Possibility of Lengthy Confinement Resulting

from Civil Commitment

As noted above, Sell makes clear that a district court may

appropriately consider the likelihood of a defendant’s civil

confinement in determining whether to order the forcible

medication of a defendant to restore his competency to stand

trial. On this point, the Court pointed out that “[t]he potential

for future confinement affects, but does not totally undermine,

the strength of the need for prosecution.” Sell, 539 U.S. at

180. This is unsurprising because a “defendant’s failure to

take drugs voluntarily . . . may mean lengthy confinement in

an institution for the mentally ill—and that would diminish

the risks that ordinarily attach to freeing without punishment

one who has committed a serious crime.” Id. Here, the

District Court declined to analyze the issue or make a finding

concerning the likelihood of civil confinement. Dillon now

contends this was error.

To begin with, the District Court correctly concluded that

Dillon failed to raise this argument during its proceedings. In

his opposition to the Government’s motion for involuntary

medication, Dillon identified his pretrial custody and his

purported non-dangerousness as “special circumstances”

undermining the prosecutorial interest; he did not mention the

prospect of civil confinement. Def.’s Opp’n to Involuntary

Medication, reprinted in J.A. 12-21. And Dillon failed to

pursue the point during arguments before the District Court,

even though the Government mentioned the issue in its brief

and at argument. See Gov’t’s Mem. at 18, reprinted in J.A.

39; Tr. of Oral Arg. (Apr. 26, 2013) at 13-14, reprinted in

J.A. 212-13. The issue was never joined.

It is also important to note that the District Court did not

in any way foreclose Dillon from arguing the civil-

15

commitment point or from introducing evidence that his

confinement was likely. Thus, Dillon had ample opportunity

to cross-examine the Government’s witnesses and to call his

own. Tr. of Hr’g (Apr. 17, 2013) at 25, 95, 136, reprinted in

J.A. 82, 152, 193. In short, the record provides no basis for

Dillon’s statement to this court that the District Court

“foreclosed consideration” of civil commitment. See Br. of

Appellant at 27 n.8.

Under our well-established precedent, Dillon’s

civil-confinement argument was forfeited when he failed to

raise it with the District Court. See, e.g., Potter v. District of

Columbia, 558 F.3d 542, 550 (D.C. Cir. 2009) (“It is well

settled that issues and legal theories not asserted at the District

Court level ordinarily will not be heard on appeal.” (quoting

District of Columbia v. Air Fla., Inc., 750 F.2d 1077, 1084

(D.C. Cir. 1984))). Because Dillon did not argue the point

before the District Court, and because the District Court did

not address it, we generally inquire no further into the matter.

See Dyson v. District of Columbia, 710 F.3d 415, 419 (D.C.

Cir. 2013).

At oral argument before this court, however, counsel for

Dillon asked us to review the District Court’s omission for

plain error. Under Federal Rule of Criminal Procedure 52(b),

we can correct unpreserved error only when there is (1)

“error,” (2) that is “plain,” and (3) that “affects substantial

rights.” United States v. Olano, 507 U.S. 725, 732 (1993)

(alteration omitted). If all three conditions are met, we may

“notice a forfeited error, but only if (4) the error ‘seriously

affect[s] the fairness, integrity, or public reputation of judicial

proceedings.’” Johnson v. United States, 520 U.S. 461, 467

(1997) (quoting Olano, 507 U.S. at 732). See generally

EDWARDS, ELLIOTT & LEVY, FEDERAL STANDARDS OF

REVIEW ch. VIII (2d ed. 2013).

16

Sell leaves little doubt that the prospect of a defendant’s

lengthy civil confinement is a focal point of the “special

circumstances” analysis. 539 U.S. at 180. However, even if

the District Court plainly erred when it declined to analyze the

possibility of civil confinement, this omission did not affect

Dillon’s substantial rights under the third prong of Olano

because Dillon has not shown “a reasonable probability that,

but for the error claimed, the result of the proceeding would

have been different.” United States v. Dominguez Benitez, 542

U.S. 74, 82 (2004) (quotation and alteration omitted);

EDWARDS, ELLIOTT & LEVY, supra, at 105. We rest this

conclusion on the record and on Dillon’s own arguments:

First, the record as it stands offers insufficient support for the

proposition that Dillon is likely to be civilly confined (as

opposed to committed as an outpatient); and, second, Dillon’s

consistent assertions that he is not dangerous serve only to

dilute any argument that Dillon is likely to be civilly

confined. We amplify these two points below.

The record before us does not support a finding that

Dillon is likely to be civilly confined. Although the Sell Court

mentioned “civil commitment,” it is clear from the context

that the Court was concerned with the prospect of civil

confinement. See 539 U.S. at 180 (“The defendant’s failure to

take drugs voluntarily . . . may mean lengthy confinement . . .

that would diminish the risks that ordinarily attach to freeing

without punishment one who has committed a serious crime.”

(emphasis added)). The D.C. Mental Health Commission

recommended to the D.C. Superior Court that Dillon be

civilly committed on an outpatient basis. Gov’t’s Mem. at 12,

reprinted in J.A. 33. Even though this report does not appear

in the record, we know from the applicable statute that the

Commission can recommend commitment only after finding

that Dillon was “mentally ill, and because of the illness is

17

likely to injure himself or other persons if not committed.”

D.C. CODE § 21-544. But we also know that the Commission

recommended outpatient treatment, which indicates that the

Commission considered Dillon’s risk to the public at large to

be minimal. See D.C. CODE § 21-545(b)(2) (authorizing the

D.C. Superior Court to commit a mentally ill person to “the

Department or to any other facility, hospital, or mental health

provider that the Court believes is the least restrictive

alternative consistent with the best interests of the person and

the public” (emphasis added)).

Although Dillon asserts that his outpatient status will be

revoked if and when he does not take his medication, Br. of

Appellant at 26-27, the applicable statute makes clear that

revocation of an individual’s outpatient status requires a

judicial finding that “a more restrictive treatment alternative

is required to prevent the person from injuring himself or

others.” D.C. CODE § 21-548(a) (emphasis added). Simply

put, Dillon’s outpatient civil commitment does not imply that

civil confinement is probable, as there would have to be a

judicial finding by clear and convincing evidence that his

confinement is “required to prevent [Dillon] from injuring

himself or others.” Id.

Furthermore, Dillon’s own assertions critically weaken

his civil-confinement argument. Beginning with his

opposition to the Government’s motion before the trial court,

Dillon has consistently stated that he poses no significant

danger to himself or others. See Def.’s Opp’n to Involuntary

Medication at 6, reprinted in J.A. 17 (“Dillon has no history

of violence . . . .”); Tr. of Oral Arg. (Apr. 26, 2013) at 32,

reprinted in J.A. 231 (“Nobody thinks [Dillon is] particularly

dangerous to himself or others . . . .”); Br. of Appellant at 18-

19, 24, 27. Assuming that Dillon is correct that he presents, at

most, a minimal risk to himself or others, this fact would

18

make it less likely that Dillon will be confined. See 18 U.S.C.

§ 4246(d) (authorizing civil confinement when a “court finds

by clear and convincing evidence that the person is presently

suffering from a mental disease or defect as a result of which

his release would create a substantial risk of bodily injury to

another person or serious damage to property of another”

(emphasis added)); D.C. CODE § 21-545(b)(2) (“If the Court

or jury finds that the person is mentally ill and, because of

that mental illness, is likely to injure himself or others if not

committed, the Court may order the person’s commitment to

the Department or to any other facility, hospital, or mental

health provider that the Court believes is the least restrictive

alternative consistent with the best interests of the person and

the public.” (emphasis added)).

Dillon’s plain-error challenge thus fails for want of

showing a “reasonable probability” that, but for the District

Court’s failure to consider civil confinement, Dillon would

not be subject to involuntary medication. The record before us

does not offer a basis for finding that Dillon is dangerous

enough to lead to his being civilly confined (as opposed to

committed as an outpatient). See Br. of Appellant at 22

(“Obviously, the level of appellant’s dangerousness was

marginal; otherwise the D.C. Mental Health Commission

would not have recommended commitment to an outpatient

treatment program.”). And Dillon’s consistent claims that he

is not dangerous undercut the notion that a better developed

record would be any different.

2. Dillon’s Purported Non-dangerousness

Dillon argues that he is not dangerous and that this fact

undermines the Government’s interest in prosecuting him. He

further argues that because the District Court “did not believe

dangerousness should be considered at all, the matter should

19

be remanded for fact development.” Br. of Appellant at 21.

Citing other circuits’ decisions finding that a defendant’s

dangerousness is relevant, Dillon reasons that “if

dangerousness bolsters the government’s interest under Sell,

the lack thereof must have the opposite effect.” Id. at 19-20

(citing United States v. Mackey, 717 F.3d 569, 575 (8th Cir.

2013); United States v. Ruiz-Gaxiola, 623 F.3d 684, 694 n.6

(9th Cir. 2010); Gomes, 387 F.3d at 160). Dillon also presses

the obvious point that if he was dangerous he would not have

been civilly committed on an outpatient basis by the D.C.

Mental Health Commission. Id. at 22.

We first dispose of the Government’s primary rejoinder

to these arguments. The Government asserts that lack of

dangerousness can never be considered to undermine the

importance of the Government’s interest in prosecution

because the Sell framework applies only after there has been a

predicate determination that a defendant is not dangerous. Br.

for Appellee at 34-39. That is, in the Government’s view, the

Supreme Court’s suggestion that courts sequence Harper

determinations before Sell determinations necessarily implies

that all defendants who make it to a Sell hearing are, by

definition, not dangers to society. On this view, then, the Sell

framework admits consideration of dangerousness “in only

two specific contexts”: (1) when assessing the likelihood of

civil commitment and (2) when evaluating the “characteristics

of the crime and whether the sentence for that crime reflects a

legislative determination that persons who commit it typically

present a serious risk to the safety of the community.” Id. at

36-38 (internal quotation marks omitted).

The Government’s argument misapprehends the nature of

the Sell inquiry. The “result of [a] Harper hearing . . .

establishes only that [a defendant] does not pose a danger to

himself or others while confined in the institutional context.

20

[It does] not address whether [the defendant] might pose a

danger to himself or others if released.” Ruiz-Gaxiola, 623

F.3d at 694 n.6 (citation omitted). It is simply incorrect, then,

to say that a court must assume that any defendant who

reaches the Sell inquiry poses no danger to society. It may be

that some persons who pose a danger to themselves or others

while confined might also pose a danger to themselves or

others if released, but the latter does not necessarily follow

from the former. The Government has cited no meaningful

studies or other evidence to show that the two propensities are

coterminous.

More fundamentally, the Government seeks to impose a

formalism and rigidity at odds with the sensitive balancing

required by Sell in light of the significant liberty interests

implicated by forcible medication. The Supreme Court crafted

a sensitive and fact-specific inquiry, stating that “[c]ourts . . .

must consider the facts of the individual case in evaluating the

Government’s interest in prosecution.” 539 U.S. at 180. And

the examples the Court listed (pretrial and future civil

confinement) are just that – examples. Id.; see also United

States v. Grigsby, 712 F.3d 964, 969-70 (6th Cir. 2013);

White, 620 F.3d at 412.

At bottom, Dillon makes a common-sense argument: The

dangerousness of a defendant surely may affect the strength

of the governmental interest. This is indisputable. The

Government has an interest in incapacitating individuals who

endanger the public, see United States v. Weston, 255 F.3d

873, 880-82 (D.C. Cir. 2001), and thus its interest in a

particular prosecution may be stronger in the case of a

dangerous defendant than in a case that involves a defendant

who is not dangerous. The simplicity of Dillon’s argument is

attractive, but the argument is shortsighted. It is one thing to

acknowledge that the Government often has a strong interest

21

in prosecuting persons who appear to be dangerous, but it is

quite another to say that the Government’s interest in

incapacitating a dangerous defendant is necessary to the

Government’s interest qualifying as “important” under the

first Sell factor. As we observed in Weston, a bundle of

governmental interests are implicated in any given

prosecution. Id.; cf. 18 U.S.C. § 3553(a)(2) (listing three

purposes of sentencing distinct from the need to protect the

public by incapacitating a defendant, including, e.g., the need

for a sentence “to reflect the seriousness of the offense, to

promote respect for the law, and to provide just punishment

for the offense”).

Dillon’s argument also fails to acknowledge that,

although a defendant’s dangerousness may be relevant to the

Government’s interest in prosecuting him, courts are

necessarily constrained in their fact-finding by the nature of

the charges for which a defendant has been indicted. This case

is a perfect example. Dillon has been charged with a crime

under 18 U.S.C. § 871 – “threat[ening] to take the life of, to

kidnap, or to inflict bodily harm upon the President of the

United States” – that is both serious and involves significant

danger. To permit a Sell hearing to focus on the underlying

criminal charges would risk converting the Sell inquiry into a

mini-trial on the merits. In other words, in response to the

Government’s request for authorization to medicate Dillon so

that he is competent to stand trial, the District Court would be

required to first adjudicate the merits of the indictment to

assess Dillon’s dangerousness. This would make little sense.

In these circumstances, this court is hard pressed to give

credit to a claim that Dillon’s alleged lack of dangerousness is

a special circumstance that meaningfully weighs against the

Government’s interest in pursuing prosecution. Dillon has

been charged with a serious and dangerous crime. The only

22

way to determine whether he is guilty beyond a reasonable

doubt, and thus dangerous as charged, is to allow the

Government to proceed with prosecution. However, Dillon is

incompetent to stand trial sans medication, so we cannot

determine his dangerousness until his competence has been

restored and there has been a trial on the merits.

We thus conclude that it is unnecessary to remand the

case for further fact-finding with respect to Dillon’s purported

non-dangerousness. The necessary implications of the

indictment in this case preclude a finding that Dillon is

harmless. The grand jury indicted Dillon for threatening to

inflict bodily harm upon the President. Indictment, reprinted

in J.A. 9-10. Even assuming that Dillon is harmless in other

respects, the District Court could not find that Dillon poses no

danger to the President without a full trial on the merits of the

criminal charges. As a result, we hold that the District Court

correctly concluded that the Government established an

important interest in prosecuting Dillon.

C. The District Court’s Remaining Findings

Dillon also argues that the District Court’s findings are

clearly erroneous. Br. of Appellant at 29-43. A trial court’s

findings of fact are entitled to a presumption that they are

correct, see Bose Corp. v. Consumers Union of U.S., Inc., 466

U.S. 485, 500 (1984), and we will displace them only if (1)

the findings are “without substantial evidentiary support or

. . . induced by an erroneous application of the law”; or if (2)

“on the entire evidence [we are] left with the definite and firm

conviction that a mistake has been committed.” Cuddy v.

Carmen, 762 F.2d 119, 124 (D.C. Cir. 1985) (quotations and

citations omitted). See generally EDWARDS, ELLIOTT & LEVY,

supra, ch. II.

23

Dillon’s principal contention, it appears, is a two-step

challenge to the District Court’s finding under the second Sell

factor – i.e., that medication is substantially likely to restore

his competency and substantially unlikely to have side effects

that will interfere with his ability to assist in his defense. First,

Dillon asserts that his diagnosis of Schizoaffective Disorder is

erroneous and that he instead suffers from Delusional

Disorder, as Dr. Ross opined. Br. of Appellant at 33-37, 42.

Second, he argues that the success rate for treating Delusional

Disorder is too low to warrant forced medication, i.e., that the

medication is not substantially likely to restore his

competency. Id. at 38-41. We find no merit in either

argument.

The District Court reasonably credited the Grant-Volin

diagnosis over the previous two because Drs. Grant and Volin

observed Dillon for a longer period than did the other doctors,

and because they had more information at their disposal. 2013

WL 1859289, at *8 n.13. None of the arguments raised by

Dillon – including that the diagnostic criteria have changed –

cause us to question the validity of Drs. Grant and Volin’s

professional judgment that Dillon suffers from

Schizoaffective Disorder, Bipolar Type. To the contrary, there

is ample evidence that Dillon is afflicted by a mood disorder,

which offers a basis to diagnose Dillon with Schizoaffective

Disorder instead of with Delusional Disorder. See, e.g., Tr. of

Hr’g (Apr. 17, 2013) at 17, 21, 30, reprinted in J.A. 74, 78,

87.

Even if Dillon were correct that he suffers from

Delusional Disorder, the District Court’s finding of a

substantial likelihood of restored competency would not be

clear error. The Cochrane Study found that 73.3% of

defendants with Delusional Order were restored to

competency. Cochrane, supra, at 7 tbl. 4, reprinted in J.A.

24

285. And, more importantly, the competency restoration study

found that Dillon would respond well to antipsychotic

medication in part because “his psychotic symptoms have

responded favorably to medication in the past.” 2013 WL

1859289, at *5 (quoting Drs. Grant and Volin’s competency

restoration study at 31).

Finally, there is no merit to the claim that the District

Court erred in finding that the medication was substantially

unlikely to have side effects that would interfere with Dillon’s

trial defense. This claim is based on Dillon’s testimony that

medication he took during a prior hospitalization made him

depressed. Br. of Appellant at 42 & n.18. But as the District

Court observed, “Dr. Volin testified that any sadness or

depression that defendant experienced was a symptom of his

mental illness, not a side effect of antipsychotic medication.”

2013 WL 1859289, at *6 (emphasis added) (citing Tr. of Hr’g

(Apr. 17, 2013) at 86-88, reprinted in J.A. 143-45).

III. CONCLUSION

For the reasons stated above, we affirm the District

Court’s order authorizing involuntary medication.