United States v. Green

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0254p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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No. 06-6186

v.

,

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CUTERRIS GREEN, -

Defendant-Appellant. -

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Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 04-00153—Todd J. Campbell, Chief District Judge.

Argued: July 25, 2007

Decided and Filed: July 16, 2008

Before: KEITH and GRIFFIN, Circuit Judges; VAN TATENHOVE, District Judge.*

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COUNSEL

ARGUED: Caryll S. Alpert, FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee,

for Appellant. David Rivera, ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee,

for Appellee. ON BRIEF: Caryll S. Alpert, Michael C. Holley, FEDERAL PUBLIC

DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant. David Rivera, ASSISTANT

UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee.

VAN TATENHOVE, D. J., delivered the opinion of the court, in which GRIFFIN, J., joined.

KEITH, J. (pp. 17-20), delivered a separate dissenting opinion.

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OPINION

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VAN TATENHOVE, District Judge. Cuterris Green, a pretrial detainee, objects to the

involuntary administration of psychotropic drugs to render him competent to stand trial. We review

the district court’s consideration of whether the government’s interest in prosecution outweighs Mr.

Green’s constitutional right to refuse intervention. Sell v. United States, 539 U.S. 166 (2003).

*

The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern District of Kentucky,

sitting by designation.

1

No. 06-6186 United States v. Green Page 2

Because we conclude that it does, we affirm the district court’s decision and find that medications

properly may be administered to restore Mr. Green’s competency.1

I.

Cuterris Green (“Green”) was charged in a five-count indictment for the following drug-

related activities: (1) possession with intent to distribute approximately 29.6 grams of marijuana in

violation of 21 U.S.C. § 841(a)(1); (2) possession with intent to distribute approximately 1.8 grams

of cocaine in violation of 21 U.S.C. § 841(a)(1); (3) possession with intent to distribute

approximately 1.7 grams of cocaine in violation of 21 U.S.C. § 841(a)(1); (4) possession with intent

to distribute approximately 1.6 grams of cocaine in violation of 21 U.S.C. § 841(a)(1); and

(5) possession with intent to distribute approximately 50 grams of cocaine base, approximately 168

grams of cocaine, and approximately 140 grams of marijuana, all in violation of 21 U.S.C.

§ 841(a)(1) and 18 U.S.C. § 2. In addition to the counts charged, the indictment also contained two

Sentencing Allegations: first, that Green possessed with the intent to distribute between 150 and 500

grams of cocaine base, and second, that Green possessed a dangerous weapon during the

commission of the offense.

The charges in the indictment arise from activity occurring between April 28, 2004 and

May 7, 2004, during which time Green sold illegal drugs to an undercover law enforcement officer.

After the final sale, law enforcement officials followed Green and conducted a traffic stop where

they found a small amount of the drugs. Simultaneously, officials executed a search of Green’s

residence where they found a larger amount of crack cocaine and a loaded “Tech 9” semi-automatic

firearm, along with several empty magazines in a bedroom drawer.

Green was arrested, and temporarily detained pending arraignment and a hearing on the

government’s motion for detention. The next day, Green was arraigned, followed by the detention

hearing. The Magistrate Judge, noting Green’s prior convictions, which included the assault of his

mother, as well as the serious nature of the federal charges and potential penalties he faced,

concluded that Green had not overcome the rebuttable presumption of detention and that he posed

a “substantial risk of danger to the community.” Accordingly, Green was detained pending trial.

As part of the pretrial proceedings,2 Green moved for a determination of mental competency

pursuant to 18 U.S.C. § 4241(a). The United States similarly moved, and the district court

conducted a hearing at which it determined that Green may be suffering from a “mental defect

rendering him mentally incompetent to the extent that he is unable to understand the nature and

1

We have jurisdiction over Green’s appeal pursuant to the “collateral order” doctrine. In Sell, the Supreme

Court recognized that appellate review of interim orders such as the one from which Green appeals is proper under this

doctrine because the order:

(1) “conclusively determine[s] the disputed question,” (2) “resolve[s] an important issue completely

separate from the merits of the action,” and (3) is “effectively unreviewable on appeal from a final

judgment.”

Sell, 539 U.S at 176 (citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)). Although the Court discussed

the first two factors, it appears the Court’s primary focus was on the last given the “severity of the intrusion” on the

defendant’s body. See id. at 177. It is true that once a criminal defendant has been forcibly medicated, any appellate

review would be ineffective because the “very harm that he seeks to avoid” cannot be undone even if he is acquitted.

See id. Accordingly, appellate review of the district court’s non-final order is proper in this case.

2

There are several portions of the Joint Appendix, including the district court memorandum opinion and order

and many of the forensic reports at issue, which were filed under seal. To the extent these issues were either discussed

during oral argument or raised by the parties in their briefs, all of which is now part of the public record, those matters

are addressed openly in this opinion.

No. 06-6186 United States v. Green Page 3

consequences of the proceedings against him or to assist properly in his defense.” Pursuant to 18

U.S.C. §§4241 and 4247, and Federal Rule of Criminal Procedure 12.2(c), the district court ordered

that Green be committed to the custody of the Attorney General for a determination of his mental

competency, and that a report be filed outlining the result of the mental examination. Green was

transferred to the Federal Medical Center in Lexington, Kentucky (“FMC Lexington”), where an

April 13, 2005 Forensic Report concluded that he was incompetent to stand trial. Specifically, the

evaluation concluded that Green suffered from Psychotic Disorder Not Otherwise Specified. In her

written evaluation, Dr. Betsy Campbell concluded:

Mr. Green is currently suffering from a mental disease or defect rendering him

mentally incompetent to the extent he is unable to understand the nature and

consequences of the proceedings against him or to properly assist in his defense.

Therefore, it is the opinion of the undersigned evaluator he is not currently

competent to stand trial.

Although Green was not combative or otherwise disruptive during his evaluation, he denied any

history of mental illness and refused to accept any treatment in spite of clear and indisputable

evidence to the contrary.

For example, Green’s mother advised the evaluators that he had suffered from mental illness

for some time. In fact, his mental illness affected his ability to maintain stable employment and

Green had received disability benefits for psychiatric problems. Id. The FMC Lexington possessed

evidence that Green “hears voices,” demonstrates “compulsive” behaviors, paranoia, delusions, and

hallucinations. Likewise, the medical records from the Mental Health Co-Op confirmed these

general factual observations and medical conclusions regarding Green’s mental status. Accordingly,

Drs. Campbell and Helvey recommended commitment to a BOP inpatient treatment facility. They

advised that involuntary medication would likely be required to restore Green’s competency

“[b]ecause of his difficulty acknowledging his mental illness, accepting his need for treatment, and

complying with treatment when offered.”

Relying on the Forensic Report from FMC Lexington, both the government and counsel for

the Defendant agreed that Green was incompetent. Consequently, and after conducting a hearing,

the district court specifically determined the same, and held that Green was “presently suffering

from a mental disease or defect rendering him mentally incompetent to the extent that he is unable

to understand the nature and consequences of the proceedings against him or to assist properly in

his defense.” Accordingly, the trial court committed Green to the custody of the Attorney General

for a four-month period to determine whether he could attain the mental capacity to proceed to trial,

and noted that, given Green’s refusal to voluntarily medicate himself, any further requests regarding

involuntary medical treatment should be made to the district court in writing.

At that point, Green was transferred to the Federal Medical Center in Rochester, New York

(“FMC Rochester”) for continued evaluation, appropriate treatment, and a medical determination

regarding his ability to attain sufficient competency to stand trial. The FMC Rochester completed

its evaluation and provided it to the district court on January 3, 2006. Green was even more

uncooperative during his time at FMC Rochester than at FMC Lexington in that he refused to

discuss his legal case, denied any history of mental illness, refused any medical treatment or to

participate in any testing, and appeared generally confused and disoriented. Ultimately, those

physicians also concluded that Green suffers from Psychotic Disorder Not Otherwise Specified

(NOS) and Rule Out Malingering. In addition, the evaluation noted the existence of Green’s non-

insulin dependent Diabetes Mellitus. The examiners at FMC Rochester, including Dr. Andrew

Simcox, reached competency conclusions similar to those reached by the physicians at FMC

Lexington:

No. 06-6186 United States v. Green Page 4

Mr. Green is currently suffering from a mental disease or defect rendering him

mentally incompetent to the extent he is unable to understand the nature and

consequences of the proceedings against him or to properly assist in his defense.

Furthermore, we believe there is a substantial probability he will attain the capacity

to permit the trial to proceed in the forseeable future if he receives appropriate

mental health care. It appears clear the administration of such care would need to be

court ordered, as Mr. Green has consistently declined to consent to such treatment.

In addition to the above-outlined diagnosis, the FMC Rochester report considered the

propriety of involuntary medication in light of the Sell factors. Ultimately, the examiners concluded

that Green’s quality of life would benefit greatly from involuntary medication beyond simply

restoring his capacity to stand trial, particularly given his past positive response to similar treatment,

and noted that any side effects from such treatment were unlikely to interfere with his defense. The

report went on to note that his mental status would not likely improve absent the imposition of

medication and that no less intrusive means available would achieve the same result. The United

States then requested that the district court order involuntary medication to restore Green’s mental

competency to stand trial. Green opposed the motion, and both the government and Green filed

memoranda in support of their respective positions. Ultimately, on August 18, 2006, the district

court conducted a hearing at which it determined that Green should be involuntarily medicated to

restore his competency.3

At the hearing, the district court heard extensive testimony on behalf of the government from

two physicians from FMC Rochester, Dr. Andrew Simcox and Dr. Donna Christine Sigurdson. In

addition, Dr. John Griffin, a private psychologist, provided testimony on behalf of Green. Both Drs.

Simcox and Sigurdson testified that Green demonstrated paranoia and high levels of distrust, as well

as continued refusal to acknowledge his mental health issues. Dr. Sigurdson provided detailed

testimony regarding Green’s mental health, both past and present, the proposed treatment plan for

Green, the anticipated length of time required to restore him to competence, the virtues and hazards

of first and second generation anti-psychotic medications generally, and the effects of such

medications in light of Green’s individualized mental health and general medical conditions,

including diabetes.

Dr. Griffin testified on behalf of Green. During his testimony, Dr. Griffin agreed with the

proposed treatment plan offered by the government and their medical conclusions regarding Green’s

competency and potential improvement with involuntary medication. He testified that the preferred

method, in his view, would be therapeutic, but did not seriously dispute the conclusions reached by

the government’s experts, and likewise indicated that his private practice experience made him

unfamiliar with the prison context at issue here. Much of Dr. Griffin’s testimony centered on

“wellness”’ rather than competence to stand trial. In addition to the live testimony, the district court

received a substantial amount of written evidence, including the various FMC evaluations of Green,

which included information provided by his family, his prior medical records from the mental health

cooperative, and other relevant information provided by Green himself during the evaluation

process.

On August 24, 2006, the district court entered an order requiring the defendant be

involuntarily medicated and filed a separate memorandum in support. The Sealed Memorandum

detailed the court’s reasoning as it related to a finding for each Sell factor, and then, by separate

Sealed Order, recited verbatim from its Sealed Memorandum the following directive:

3

We note that the due process hearing required by 28 C.F.R. § 549.43 was conducted in advance of the district

court hearing. Neither party raises any procedural concerns in this appeal related to failure to exhaust any required

administrative processes. See United States v. White, 431 F.3d 431 (5th Cir. 2005) (holding that due process requires

exhaustion of administrative procedures under 28 C.F.R. § 549.43 before conducing Sell inquiry)

No. 06-6186 United States v. Green Page 5

Having determined that the Government has satisfied the Sell factors for

involuntary medication of the Defendant to restore him to competence, the Court

continues Defendant’s commitment pursuant to 18 U.S.C. §4241(d)(2)(A). The

Bureau of Prisons’ mental health professionals are authorized to involuntarily

medicate the Defendant, consistent with the prevaling standard of care for mental

health professionals, to restore the Defendant to competence. The commitment shall

continue for four months, or a lesser period if reasonably sufficient to restore him to

competency. At the end of four months, or when the Defendant’s competency is

restored if that occurs in less than four months, the Bureau of Prisons shall file a

report with the Court describing the results of the treatment.

It is from that Sealed Order, and the reasoning underlying it as expressed in the accompanying

Sealed Memorandum, that Green brings this interlocutory appeal pursuant to Sell v. United States,

539 U.S. 166 (2003).

II.

A.

In Sell v. United States, 539 U.S. 166 (2003), the United States Supreme Court considered

long-standing precedent4 regarding a defendant’s constitutional right to refuse medical treatment.

It held that, in certain circumstances, “the Constitution permits the Government involuntarily to

administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order

to render that defendant competent to stand trial.” Id. at 179-180.

From that standard, the Court articulated a four-part analysis to be conducted by the district

court when determining whether involuntary medication may be utilized to render5 a defendant

competent to stand trial where he does not pose a danger to himself or the community. A Sell order

requires the government to present clear and convincing evidence of the following: (1) the existence

of an “important” governmental interest; (2) that involuntary medication will “significantly further”

the government interest; (3) that involuntary medication is “necessary” to further those interests; and

(4) that the administration of the drugs must be “medically appropriate” for the individual

defendant.6 Id. at 180-181. Green contends that the district court erred as to factors one, two, and

4

The Sell Court considered the framework set forth by its predecessors in Washington v. Harper, 494 U.S. 210

(1990) and Riggins v. Nevada, 504 U.S. 127 (1992). Sell, 539 U.S. at 175-178. In Harper, the Court recognized that

an individual “possesses a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs

under the Due Process Clause of the Fourteenth Amendment.” Harper, 494 U.S. at 221-222 (citations omitted). The

Harper court noted, however, that the involuntary medication of an inmate would not violate due process if the inmate

were “dangerous to himself or others and the treatment is in the inmate’s medical interest.” Id. at 227. Likewise, in

Riggins, the Supreme Court found that forced medication would not violate due process if the government showed that

such medication was essential for the defendant’s “own safety or the safety of others.” Riggins, 504 U.S. at 135.

Further, the Riggins Court noted that forced medication may have been appropriate had the government shown that it

could not have conducted a fair trial absent any less intrusive means. See id. In light of these two cases, the Sell court

concluded that, in certain circumstances, the government’s interest in prosecution could outweigh a defendant’s

constitutional right to be free of unwanted medical treatment. Sell, 539 U.S. at 175-179.

5

The Sell standard applies when the forced medication is requested to restore competency to a pretrial detainee

and the pretrial detainee is not a danger to himself or others. When the pretrial detainee is a potential danger to himself

or others, the Harper standard is used. See Sell, 539 U.S. at 185.

6

Here, the parties have agreed that the Sell standard applied to the district court’s determination and that the

government bore the burden of proof by clear and convincing evidence. Because of this, the government was not

required to explain why it was not seeking involuntary medication on Harper-type grounds, nor was the district court

required to make such a finding in excess of stating why it applied the Sell standard, which it did in this case. See Sell,

No. 06-6186 United States v. Green Page 6

four, and provides the first opportunity this Circuit has had to consider the application of the Sell

factors.

B.

Green first argues that the district court erred when it determined that his crimes were

sufficiently “serious” to support an important governmental interest in prosecuting him. Our review

is guided by well-established principles in the Sixth Circuit. Generally, a de novo standard applies

to legal conclusions and findings of fact are reviewed for clear error. See e.g., United States v.

Carpenter, 360 F.3d 591, 594 (6th Cir. 2004). Although this Circuit has not specifically addressed

the nature of the Sell factors, our sister circuits have done so and determined that the first factor, the

existence of an “important” government interest, is a legal conclusion which requires a de novo

review. We agree. See e.g., United States v. Hernandez-Vasquez, 513 F.3d 908, 915-916 (9th Cir.

2008) (“We...review the district court’s determination with regard to the first Sell factor de novo and

the remaining Sell factors for clear error.”) (citation omitted); United States v. Evans, 404 F.3d 227,

236 (4th Cir. 2005) (“The district court’s determination that the government’s interest is ‘important’

is a legal conclusion that we review de novo.”) (citation omitted); United States v. Gomes, 387 F.3d

157, 160 (2d Cir. 2004) (“Whether the Government's asserted interest is important is a legal question

that is subject to de novo review.”); United States v. Bradley, 417 F.3d 1107, 1113-1114 (10th Cir.

2005) (finding that, as to factors one and two, the balance between government’s interest and

defendant’s is a mixed question of law and fact that nonetheless requires de novo review). We

therefore hold that the question of whether an important governmental interest is at stake is a legal

question which requires de novo review.

Green makes two basic points. First, he contends the district court should not have applied

the Fourth Circuit’s “potential penalty” rule in determining whether the crime was “serious” because

Green’s penalties were arbitrarily enhanced by the presence of crack cocaine even though his

charges were non-violent. Second, Green believes that the crimes with which he is charged are not

serious crimes against “persons” or “property” as required by Sell. He believes that the crimes for

which he is charged are nonviolent, “victimless” street-level drug trafficking offenses. Absent the

existence of “crack cocaine,” Green argues, the penalty would have been less severe than the

statutory ten year mandatory minimum he currently faces. Notably, the existence of a firearm in his

home during the commission of a drug offense operates as a sentencing enhancement under the

United States Sentencing Guidelines, which makes Green’s potential sentence between 210 and 262

months (17.5 years to 21.8 years).7 Although Green acknowledges the enhancement, it’s a fact that

he contends should not be relevant to the “serious” nature of the crime committed. Because we

ultimately conclude the Sentencing Guidelines are not an entirely objective measure of the

seriousness of a crime, but rather look to the maximum statutory penalty, this point is not dispositive

of the current question.8

539 U.S. at 181-183. Further, in his initial brief, Green cited United States v. Brandon, 158 F.3d 947, 957 (6th Cir. 1998)

which adopted a strict scrutiny standard when considering whether a defendant should be involuntarily medicated to

restore his competence to stand trial. Because Brandon was decided five years earlier than Sell v. United States, and the

parties have stipulated to the Sell standard, this Court finds Brandon inapplicable to the instant case given subsequent

Supreme Court precedent.

7

U.S.S.G. § 2D1.1(b)(1) provides for a two-point increase in a defendant's offense level if a firearm is

“possessed” during a drug-trafficking crime. See e.g., United States v. Hill, 79 F.3d 1477, 1485 (6th Cir.1996)

(articulating four-part test to determine whether sentencing enhancement is proper); United States v. Moses, 289 F.3d

847, 850 (6th Cir. 2002) (finding proper application of firearm enhancement).

8

Subsequent to the briefing in this appeal, the United States Sentencing Commission amended the United States

Sentencing Guidelines for certain categories of offenses involving crack cocaine. See U.S.S.G. § 1B1.10 (also noted in

Amendment 706, Appendix C, U.S.S.G. Manual). Specifically, the amendment effectively lowers the Guideline range

No. 06-6186 United States v. Green Page 7

In the instant case, the district court correctly found that the government had an “important”

interest in prosecuting Green for the crimes charged after careful consideration of the exact

arguments he makes as part of the instant appeal. As we do here, it rejected Green’s argument that

his crimes were not “serious” simply because they did not involve “large-scale drug trafficking:”

Given the potential sentence faced by the Defendant, the Court concludes that the

Government has an important interest in bringing the Defendant to trial. Despite

Defendant’s argument that “street level drug deals” do not qualify as “serious,” the

substantial sentences attached to the charged offenses reflects a policy decision by

Congress that the crimes are serious ones.

The district court noted that other circuits had considered both the potential statutory penalty and

the potential Guideline range in determining whether a crime was sufficiently “serious” to meet the

first prong of the Sell standard. See e.g., United States v. Evans, 404 F.3d 227 (4th Cir. 2005)

(holding that maximum statutory penalty of ten years warrants finding of serious to support Sell

order). We agree. Therefore, this legal determination was not error.

In Sell, the Supreme Court did not delineate exactly those crimes which should be considered

“serious” or even outline the considerations a court should take into account when making that

determination. Rather, it simply said,

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. That is so whether the offense is a serious crime against the person or

a serious crime against property. In both instances the Government seeks to protect

through application of the criminal law the basic human need for security.

Sell, 539 U.S. at 180 (“‘[P]ower to bring an accused to trial is fundamental to a scheme of “ordered

liberty” and prerequisite to social justice and peace’”) (citing Riggins v. Nevada, 504 U.S. 127, 135-

136 (1992) quoting Illinois v. Allen, 397 U.S. 337, 347 (1970)). Without more specific guidance or

a rigid test, courts are left to fashion appropriate, and presumably objective parameters by which to

assess seriousness. Other courts considering whether a crime meets the seriousness requirement

have looked, as the district court did in this case, to the potential statutory penalty and/or Guideline

range of imprisonment which may be imposed. See e.g., United States v. Evans, 404 F.3d 227 (4th

Cir. 2005) (holding that maximum statutory penalty of ten years warrants finding of serious to

support Sell order); United States v. Gomes, 387 F.3d 157, 160 (2d Cir. 2004) (noting the defendant

faced a mandatory statutory minimum of 15 years imprisonment because of his prior drug

convictions evidenced congressional view that crime was “serious”); United States v. McCray, 474

F.Supp.2d 671, 677 (D.N.J. 2007) (relying on statutory maximum sentences to determine whether

crime was “serious” for purposes of Sell order).

by reducing the base offense level by approximately two points for the quantities of crack cocaine outlined in the Drug

Quantity Table contained in U.S.S.G. § 2D1.1. Although the effective date of the amendment was March 3, 2008, it will

have retroactive effect for certain, eligible defendants who were sentenced on or after November 1, 2007. See id; 18

U.S.C. §§ 994(u), 3582(c)(2). Although neither Green or the government raises this issue, nor does it alter our holding,

we feel it must be addressed given the arguments made by Green. First, because of our conclusion that district courts

must look to the statutory penalty set forth by Congress to determine whether a crime is “serious” for purposes of a Sell

analysis, any changes in the potential Guideline ranges are irrelevant. Second, the potential applicability of the reduction

and retroactive effect continues to depend on subjective factors (e.g., nature and characteristics of the particular

defendant and his or her crime) and specifically cannot override any mandatory statutory minimum sentences set forth

by Congress. These caveats only underscore our holding that the statutory penalty is the more appropriate, and most

objective measure by which to determine the seriousness of a particular crime.

No. 06-6186 United States v. Green Page 8

In United States v. Evans, the Fourth Circuit determined that “it is appropriate to focus on

the maximum penalty authorized by statute in determining if a crime is ‘serious’ for involuntary

medication purposes.” United States v. Evans, 404 F.3d 227, 237 (4th Cir. 2005). Underlying this

rationale is both a recognition of and respect for the fundamental role of the legislative process in

making these seriousness determinations, as well as an effort to find some objective standard by

which to analyze the first Sell factor. See id. Such an approach avoids an arbitrary determination

of seriousness that could befall appellate courts given the breadth of potential criminal charges, the

prevailing attitudes of a particular community as it relates to a specific crime, the particularities of

any given case, as well as any number of other subjective factors that could influence this

determination, and ultimately, lead to unavoidable disparity among the circuits regarding what

constitutes a “serious” crime. As recognized by the Fourth Circuit, the United States Supreme Court

cautions the judiciary against just such an intrusion into the legislative process:

In recent years, however, we have sought more “objective indications of the

seriousness with which society regards the offense. [W]e have found the most

relevant such criteria in the severity of the maximum authorized penalty.” In fixing

the maximum penalty for a crime, a legislature “include[s] within the definition of

the crime itself a judgment about the seriousness of the offense.” The judiciary

should not substitute its judgment as to seriousness for that of a legislature, which

is “far better equipped to perform the task, and [is] likewise more responsive to

changes in attitude and more amenable to the recognition and correction of their

misperceptions in this respect.”

Blanton v. City of North Las Vegas, 489 U.S. 538, 541-542 (1989) (citations omitted).

Here, Green argues that the statutory penalty imposed for possession of crack cocaine was

not an accurate measure of the seriousness of his crime because he possessed only a small amount

of the drug, the crime is non-violent9, and that the crime is “victimless” because the Sentencing

Guidelines designate it as such. We disagree.

First, we simply cannot conclude that only “violent” crimes are “serious” for purposes of this

analysis. There are any number of criminal behaviors that do not involve crimes of violence that

are “serious” matters. Indeed, the Sell court noted that fraud was a serious crime. See Sell, 539 U.S.

at 180; see also United States v. Valenzuela-Puentes, 479 F.3d 1220, 1226-1227 (10th Cir. 2007)

(finding illegal entry charge a “‘serious crime’ despite there being no indication that the conduct for

which he was charged was violent or harmful to others” for purposes of Sell analysis). Hence,

violence alone does not define a “serious” crime.

Second, we do not subscribe to the theory that the legislative branch considers drug-

trafficking crimes as “victimless,” regardless of the scale of the operation. If a criminal defendant

possesses an illegal substance with the intent to distribute that substance to others, unquestionably

there are victims. The lack of an identifiable person in this case does not equate to a completely

“victimless” crime. Fortunately, Green sold the drugs in question to a confidential informant who

had no intention of disseminating the drugs into the larger community. Had the buyer been an actual

dealer or user, however, it is doubtful that he would make this same argument. Certainly, it would

have even less credence than it has now. Society as a whole is the victim when illegal drugs are

being distributed in its communities. It follows that Green’s family is a victim because of his illicit

activities. And, perhaps most importantly, Congress’ imposition of such harsh penalties for these

drug-related crimes underscores our view.

9

Notably, Green’s argument omits the fact that he faces a sentencing enhancement for possession of a firearm

during the drug offense, although it was not “charged” in the indictment.

No. 06-6186 United States v. Green Page 9

Third, the maximum statutory penalty is the most objective means of determining the

seriousness of a crime and the standard we adopt. In this case, the mandatory statutory minimum

is sufficient. If Green were convicted of possession with intent to distribute, he faces a statutory

minimum sentence of ten years imprisonment under 21 U.S.C. § 841(b)(1)(A). The maximum which

could be imposed is life imprisonment. See id. Unquestionably, these penalties represent a decision

by the legislature that possession of crack cocaine with the intent to distribute is a “serious” crime

warranting a serious punishment. By utilizing the potential statutory penalty to assess the

seriousness of a crime, we employ an objective standard for application and thereby avoid any

arbitrary determinations, and further, respect the judgment of the legislative branch as reflective of

societal attitudes.

Moreover, the Supreme Court has spoken on this very point in other jurisprudence. Whether

a crime is “serious” should be determined by its maximum statutory penalty. See e.g., Lewis v.

United States, 518 U.S. 322, 326 (1996) (“Now, to determine whether an offense is petty, we

consider the maximum penalty attached to the offense. This criterion is considered the most relevant

with which to assess the character of an offense, because it reveals the legislature's judgment about

the offense’s severity. ‘The judiciary should not substitute its judgment as to seriousness for that of

a legislature, which is far better equipped to perform the task.’ In evaluating the seriousness of the

offense, we place primary emphasis on the maximum prison term authorized. While penalties such

as probation or a fine may infringe on a defendant's freedom, the deprivation of liberty imposed by

imprisonment makes that penalty the best indicator of whether the legislature considered an offense

to be ‘petty’ or ‘serious.’”) (citations omitted); see also Blanton v. City of North Las Vegas, 489 U.S.

538, 541-542 (1989) (“‘[W]e have found the most relevant such criteria in the severity of the

maximum authorized penalty.’ In fixing the maximum penalty for a crime, a legislature ‘include[s]

within the definition of the crime itself a judgment about the seriousness of the offense.’”) (citations

omitted).

Further, we need not decide whether consideration of the potential Guideline range leads to

the same result. First, the Sentencing Guidelines are now advisory and a district court is not

required to impose a particular sentence in accordance with the projected range. See United States

v. Booker and United States v. Fanfan, 543 U.S. 220, 245-246 (2005) (“So modified, the federal

sentencing statute, see Sentencing Reform Act of 1984, (Sentencing Act), as amended, makes the

Guidelines effectively advisory. It requires a sentencing court to consider Guidelines ranges, see 18

U.S.C.A. § 3553(a)(4) (Supp.2004), but it permits the court to tailor the sentence in light of other

statutory concerns as well.) (citations omitted). Second, the Guideline ranges reflect the views of

the Sentencing Commission rather than Congress as a duly elected body of the people. See U.S.S.G.

§ 1A1.1 (“The guidelines, policy statements, and commentary set forth in this Guidelines Manual,

including amendments thereto, are promulgated by the United States Sentencing Commission.”).

Finally, it would be impossible for a district court to adequately utilize the Guideline range in

making an objective decision as to the seriousness of a particular crime. Most often, the Guideline

range is not determined finally until after a defendant has been convicted and a presentence

investigation report has been completed. See Fed. R. Crim. P. 32(c). As part of that process, many

variables impact a potential range. For example, previous criminal history points may or may not

be assigned depending on how such crimes are categorized and punished in different states, as well

as various enhancements and reductions depending on the particular circumstances of an individual

defendant’s case, to name a few. None of this information would be available to a district court at

the time it must make the seriousness determination on an involuntary medication request. While

Guideline estimates may be provided in advance of the presentence investigation report, those are

merely estimates, and are based solely on the limited information available at a very early stage of

a criminal proceeding and are subject to change as additional information becomes available. All

of these considerations weigh against relying on the Sentencing Guidelines to determine whether

a crime is “serious” for purposes of a Sell order, and counsel in favor of using the statutory

maximum prescribed by Congress.

No. 06-6186 United States v. Green Page 10

We do not read Sell to impose a requirement that the crime at issue be against “person” or

“property” to be “serious,” as Green suggests. In support, Green relies on United States v. Barajas-

Tores, No. CRIM EP-03-CR-2011KC, 2004 WL 1598914, *1 (W.D. Tex. July 1, 2004), where the

district court held that a charge of illegal reentry into the United States was not “serious” for

purposes of the Sell standard because it did not involve a crime against person or property. See id.

at *3. Other circuits have disagreed with the district court in Texas. For example, in United States

v. Valenzuela-Puentes, 479 F.3d 1220, 1226-1227 (10th Cir. 2007), the Tenth Circuit Court of

Appeals held that an illegal entry charge was a “‘serious crime’” for purposes of the Sell analysis,

“despite there being no indication that the conduct for which he was charged was violent or harmful

to others.” Id. Likewise, we conclude that a district court may rely on the potential statutory

penalty to determine whether the crime meets the “serious” requirement to justify the important

governmental interest in prosecuting a particular defendant, regardless of whether the crime is

against persons or property, or neither. While the nature of the crime committed and the potential

Sentencing Guideline range may bear on the district court’s assessment, those factors alone are not

dispositive in and of themselves. Rather, we believe that the prescribed statutory penalty provides

the most objective view of seriousness because it necessarily takes into account such factors as the

nature of the crime, as well as the defendant’s characteristics (e.g., subsequent or second offender

penalities).

In identifying the nature of the government’s interest in involuntary medication, the Sell

court found that “[t]he Government's interest in bringing to trial an individual accused of a serious

crime is important. That is so whether the offense is a serious crime against the person or a serious

crime against property.” Sell, 539 U.S. at 180. The Evans court interpreted this statement to merely

reference the charges with which Sell himself was charged rather than as a specific requirement

regarding the nature of the crime in every instance. Evans, 404 F.3d at 227, fn 6. We agree. Had

the Sell Court intended Green’s suggested result, it could have easily made this point as it did with

respect to the specificity it required of the district courts in the findings which must be made under

the other factors. See id. at 181-182.

Rather, the reference more readily appears to be descriptive of the government’s interest as

it relates to the charges in that particular case. Charles Sell was charged with fraud and intimidation

of a witness. The former is a crime against property and the latter a crime against the person. What

the Court did say is that the government has an interest in prosecuting serious crimes and that crimes

against persons or property could be serious enough to warrant the government’s interest in

prosecution. Just as we are unpersuaded by Green’s argument that only violent crimes with victims

are serious, we are equally unpersuaded that only crimes against persons or property are serious.

Accordingly, we hold that the district court correctly found that the United States met its burden as

to factor one of the Sell test in establishing a sufficiently important government interest in light of

the “serious” crime charged against Green.

Finally, having found that the government has an “important” governmental interest at stake

in prosecuting Green, we note that are no special circumstances which “lessen the importance of that

interest” such as a “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” or “the possibility that the defendant has already been confined for a significant amount of

time (for which he would receive credit toward any sentence ultimately imposed, see 18 U.S.C.

§ 3585(b)).” Sell, 539 U.S. at 180. As the district court correctly noted, Green does not argue that

such circumstances exist, and neither expert indicated that Green would be a candidate for civil

commitment. See also United States v. Gomes, 387 F.3d 157, 161 (2d Cir. 2004) (noting that lack

of evidence that defendant would qualify for civil commitment weighs in favor of government’s

interest). In addition, if convicted, Green, having only been confined for three years, would still

have the majority of a ten year mandatory minimum sentence to serve, at the least. Accordingly,

No. 06-6186 United States v. Green Page 11

the government’s important interest in prosecuting Green is not lessened by any special

circumstances.

C.

Green also challenges the district court’s conclusions on the second and fourth Sell factors,10

namely whether the district court correctly concluded that involuntary medication would

significantly further the government’s interest and whether it is medically appropriate for Green.

These remaining considerations consist of factual findings; therefore the district court’s conclusions

as to those will be reviewed for clear error. See also United States v. Hernandez-Vasquez, 513 F.3d

908, 915-916 (9th Cir. 2008) (“We...review the district court’s determination with regard to the first

Sell factor de novo and the remaining Sell factors for clear error.”) (citation omitted); United States

v. Evans, 404 F.3d 227, 236 (4th Cir. 2005) (“The district court's determination that the

government's interest is ‘important’ is a legal conclusion that we review de novo, although we

review any factual findings relevant to this legal determination for clear error.”) (citations omitted);

United States v. Gomes, 387 F.3d 157, 160 (2d Cir. 2004) (finding that district court determinations

as to Sell factors two, three, and four were factual and thus subject to review for clear error). In our

Circuit, a factual finding is clearly erroneous only when “‘the reviewing court on the entire evidence

is left with the definite and firm conviction that a mistake has been committed.’” Tran v. Gonzales,

447 F.3d 937, 943 (6th Cir. 2006) (citing Heights Cmty. Cong. v. Hilltop Realty, Inc., 774 F.2d 135,

140 (6th Cir.1985)).

Specifically, Green contends that the district court’s Sealed Order effectively issued a “blank

check” to the government to medicate Green by failing to require a specific treatment plan with

specific medications, amounts of medication, and an appropriately specific consideration of the

potential side effects on Green given his history of diabetes. It appears Green’s argument in this

regard goes most appropriately to his challenge of the district court’s finding as to the fourth factor,

but because Green specifically questions the finding as to factor two, we address it as well.

Having determined that involuntary medication will significantly further an important

government interest, the district court must find that “administration of the drugs is substantially

likely to render the defendant competent to stand trial” and 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.” Sell, 539 U.S. at

181 (citations omitted). In reviewing the district court’s factual findings on this second factor, we

conclude there was no clear error.

In reaching its conclusion that the second factor had been satisfied by the government by

clear and convincing evidence, the district court relied upon the following:

The Government’s experts both testified that the proposed medications were

substantially likely to render the Defendant competent to stand trial. The statistical

data cited in their opinions found improvement in a range of approximately 76% to

93% of those treated. Dr. Sigurdson described the history of mental health treatment

received by the Defendant, as set forth in the available records, and opined that the

10

The Sell Court set forth the third factor as requiring the court to “conclude that involuntary medication is

necessary to further those interests.” Sell, 539 U.S. at 181. In this vein, there must be a finding that “any alternative,

less intrusive treatments are unlikely to achieve substantially the same results” and “the court must consider less intrusive

means for administering the drugs, e.g., a court order to the defendant backed by the contempt power, before considering

more intrusive methods.” Id. (citations omitted). Here, because Green does not challenge the district court’s finding that

the government proved this element by clear and convincing evidence, the Court need not address it.

No. 06-6186 United States v. Green Page 12

Defendant would likely respond well to medication as he has responded well to

treatment in the past.

Dr. Griffin did not dispute that the proposed medications would likely restore

the Defendant to competence. Dr. Griffin cited lower statistics in discussing the

Defendant’s likely response to medication, but explained that the statistics he quoted

related to restoring an individual to “wellness” rather than competency.

As to side effects, Dr. Sigurdson testified as to the likely side effects of the

types of medications she would likely prescribe, and described the treatment she

would prescribe to alleviate those side effects. Nothing in the testimony of the

experts suggests that the likely side effects would interfere significantly with the

Defendant’s ability to assist counsel. Thus, the Court finds that involuntary

treatment is substantially likely to render the Defendant competent, and is

substantially unlikely to have side effects that will interfere significantly with his

ability to assist counsel.

The hearing testimony of the witnesses confirm that the district court correctly assessed that

involuntary medication was substantially likely to render Green competent to stand trial, and that

such medication likely would not have side effects that would interfere with Green’s ability to assist

his counsel. To the contrary, without medication, Green appeared to distrust his counsel and refused

to talk to her or meet with her at times during his evaluations and confinement. At one point, Green

denied having ever met with an attorney. The medical records suggest that Green’s quality of life

and communications with others improved drastically while taking anti-psychotic medications.

Thus, the medication presumably will only improve Green’s relationship with his counsel, and his

ability to participate effectively in this trial. Dr. Sigurdson testified that medication was more than

ninety percent likely to restore Green’s competency. Such an undisputed high probability of success

certainly meets the “substantial likelihood” requirement mandated by Sell and any minimum

standard recognized as appropriate by our sister circuits. See e.g., United States v. Gomes, 387 F.3d

157, 161-162 (2d Cir. 2004) (noting that seventy percent chance defendant will be restored to

competency is “substantial likelihood”); United States v. Ghane, 392 F.3d 317, 319-320 (8th Cir.

2004) (ten percent insufficient to meet substantial likelihood of restored competence).

Dr. Griffin, Green’s expert witness, did not dispute these findings, but rather focused on

achieving complete “wellness” rather than trial competence through varying treatments. Even if Dr.

Griffin is correct, the question of competence is the one before this Court. He agreed that the

proposed treatment plans likely would restore Green’s competency, although he cited lower statistics

regarding the potential response rate as between 25-75 percent. That is a potential response rate,

and did not address Green specifically. Further, he did not dispute that Green’s relationship with

his counsel would improve, nor did he dispute that receiving these medications would improve his

abilities to participate substantively in his defense at trial.

Finally, and contrary to the impression left by the dissent, the record reveals specific

consideration of the side effects of anti-psychotic medications on Green generally and their potential

impact on his diabetes. Dr. Sigurdson testified specifically about the impact of first and second

generation drugs on the development of diabetes, and then specifically addressed the impact of

antipsychotic medications on individuals, like Green, who already have diabetes. She noted that the

primary side effect for Green would be potential weight gain, a matter that would need to be

monitored, and which he had experienced previously when taking Zyprexa voluntarily. On these

facts, we are not “left with the definite and firm conviction that a mistake has been committed” by

the district court as to this factor. See Tran v. Gonzales, 447 F.3d 937, 943 (6th Cir. 2006) (citing

Heights Cmty. Cong. v. Hilltop Realty, Inc., 774 F.2d 135, 140 (6th Cir. 1985)).

No. 06-6186 United States v. Green Page 13

D.

Green also challenges the district court’s conclusion that the proposed course of treatment

was medically appropriate for him. Green raises this challenge based on his assertion that Sell

requires a more particularized order than the one entered by the district court here. Specifically, the

district court held that the Bureau of Prisons was authorized to involuntarily medicate Green

“consistent with the prevailing standard of care for mental health professionals” for a period of four

months or less if competency was restored, at which point a status report must be filed. Although

the district court heard testimony, and obviously considered the alternative treatment plans offered

by Dr. Sigurdson and Dr. Griffin, the Sealed Order did not make any reference to the specific

medications, dosages, or length of treatment. In its Sealed Memorandum accompanying the Sealed

Order, however, the district court generally outlined its reasoning for adopting the course of

treatment proposed by Dr. Sigurdson at the hearing, although it did not provide a verbatim recitation

of that treatment plan in either the Sealed Order or Memorandum. Although the dissent suggests

otherwise, we do not dispute the general principle that a district court speaks through its “orders.”

To be sure, our holding rests not just on the Sealed Order, but also11the reasoning and analysis

outlined in the district court’s accompanying Sealed Memorandum. To hold otherwise would

elevate form over substance in determining the appropriateness of the directive issued here.

Green’s challenge surrounds Dr. Sigurdson’s testimony regarding alternative treatment plans

with different medications, neither of which could she commit to until she had the opportunity to

determine whether, after the district court’s ruling, Green would agree to take the medication in a

pill form or require intravenous injection. He asserts that, by allowing the involuntary medication

“consistent with the prevailing standard of care for mental health professionals” the district court

violated certain progeny, and specifically United States v. Evans, 404 F.3d 227 (4th Cir. 2005) and

United States v. Hernandez-Vasquez, 513 F.3d 908 (9th Cir. 2008),12 by issuing a “blank check”

for “carte-blanche” medical treatment.

Pursuant to the dictates of Sell, the district court must have concluded that “administration

of the drugs is medically appropriate, i.e., in the patient's best medical interest in light of his medical

condition. The specific kinds of drugs at issue may matter here as elsewhere. Different kinds of

antipsychotic drugs may produce different side effects and enjoy different levels of success.” Sell,

539 U.S. 166, 182 (2003).

In Evans, the Fourth Circuit found that the lower court erred in ordering involuntary

medication where the report failed to identify the medication which would be given the defendant,

or any proposed course of treatment as it related to the defendant as an individual and his “particular

mental and physical condition.” Evans, 404 F.3d at 241. There, the government simply discussed

11

The dissent challenges the lack of specificity contained in the Sealed Order, but asks the majority to ignore

the accompanying memorandum which contains the rationale the dissent seeks, because the district court chose to create

two separate documents. We cannot subscribe to a theory of appellate review which ignores the document containing

the very rationale we are asked to require. This is not to say that an order similar to the one at issue here, standing alone,

would pass muster under Sell, but in this case, the district court’s findings are sufficient. The Sealed Memorandum

sufficiently addresses the issues presented and the separate Sealed Order arguably was unnecessary. In Section IV of

its Sealed Memorandum, the district court states the verbatim language contained in the “Sealed Order” and then states

“It is so ORDERED.” The Sealed Order contains no information or language not already present in the Sealed

Memorandum, and this is not a situation where the court’s failure to act is in some way construed as a pronouncement.

See Bell v. Thompson, 545 U.S. 794, 804 (2005).

12

Green submitted this supplemental authority after the briefing and oral argument had been completed in this

case.

No. 06-6186 United States v. Green Page 14

anti-psychotic drugs and their benefits and burdens in a general manner that in no way considered

the particularized medical needs of the defendant in question. For example, the report did not

address the potential side effects of a medication on Mr. Evans, an elderly man with diabetes,

hypertension, and asthma, or its interaction with other medications to treat those ailments. The

report did not identify the specific medication to be used much less a dosage range. See id. at 241-

242. Accordingly, the Evans Court required more from the government, and appropriately so.

The Fourth Circuit requires the government to “show that its proposed treatment plan is

‘medically appropriate’” by explaining “why it proposed the particular course of treatment, provide

the estimated time the proposed treatment plan will take to restore the defendant's competence and

the criteria it will apply when deciding when to discontinue the treatment, describe the plan's

probable benefits and side effect risks for the defendant's particular medical condition, show how

it will deal with the plan's probable side effects, and explain why, in its view, the benefits of the

treatment plan outweigh the costs of its side effects.” See id. (citations omitted).

Likewise, in Hernandez-Vasquez, the Ninth Circuit held that an order which provides only

that the “method of treatment and type of medication to be used shall be at the discretion of the

treating medical professionals within the Bureau of Prisons” and expecting the government and the

defendant to pursue “an agreed-upon course of treatment” did not meet the requirements of Sell. See

Hernandez-Vasquez, 513 F.3d at 917. The lower court there allowed the physician to start with a

“second-generation” medication, determine whether there was improvement, and then determine

whether a different type of medication would be appropriate. See id. Such a broad delegation of

authority leaves the Bureau of Prisons with unfettered discretion in treating a defendant, and such

discretion renders the judicial inquiry merely “academic.” See id. at 916. Accordingly, the appellate

court held that the minium requirements for a Sell order are as follows:

(1) the specific medication or range of medications that the treating physicians are

permitted to use in their treatment of the defendant, (2) the maximum dosages that

may be administered, and (3) the duration of time that involuntary treatment of the

defendant may continue before the treating physicians are required to report back to

the court on the defendant's mental condition and progress. We stress that while the

court may not simply delegate unrestricted authority to physicians, the restrictions

it does impose should be broad enough to give physicians a reasonable degree of

flexibility in responding to changes in the defendant's condition. Moreover, the

Government or the defendant may move to alter the court's order as the

circumstances change and more becomes known about the defendant's response to

the medication.

Id. at 916-917 (9th Cir. 2008) (emphasis added).13

Both the Fourth and Ninth Circuits set forth parameters to ensure the government meets its

burden under the fourth Sell factor. These cases are distinguishable from the record before us where

the government clearly met its burden, and in fact, would have done so under the parameters set

forth by our sister circuits, but the district court failed to include the specific treatment plan before

it in its written order. Its reasoning, however, demonstrates that the district court here clearly

13

The Ninth Circuit issued its original decision on October 31, 2007, however the government moved for re-

hearing. Although the appellate court denied the government’s motion, it amended the cited paragraph as part of its order

and issued a superseding opinion. The italicized portion denotes the amendment. The previous paragraph contained the

following language instead: “By setting such parameters within which physicians must operate, district courts will leave

physicians enough discretion to act quickly to respond to changes in the defendant’s condition.” United States v.

Hernandez-Vasquez, 506 F.3d 811, 819 (9th Cir. 2007) amended and superseded by 513 F.3d 908, 916-17 (9th Cir.

2008).

No. 06-6186 United States v. Green Page 15

considered the treatment plans offered both by the United States and Green, and determined that

involuntary medication was appropriate in this case in accordance with the plan set out by Dr.

Sigurdson.

For example, in its accompanying Sealed Memorandum, the district court noted the

following relevant testimony and evidence:

Dr. Sigurdson testified at length about the possible medications to treat psychotic

disorders, described the medications she would likely prescribe for the Defendant

after consultation with her colleagues, and explained the reasons for her conclusions.

She testified that the proposed course of treatment would be in the Defendant’s best

interests by improving his quality of life beyond restoration of competency. She

testified that given the Defendant’s present condition, it is unlikely that he would

even be able to live on his own outside the prison setting. Without medication, Drs.

Simcox and Sigurdson both testified, Defendant’s condition is likely to worsen.

Other than placing a greater emphasis on attempting to persuade the Defendant to

take medications through therapy, Dr. Griffin did not seriously dispute Dr.

Sigurdson’s testimony and conceded that he did not practice in the prison setting.

Again, we cannot conclude that the district court committed clear error in reaching this factual

finding.

Both witnesses who testified on behalf of the government had significant contact with Green

during his confinement and evaluation periods. Their testimony included specific and particularized

medical opinions as they related to Green in light of his past mental health treatment, his current

status and behaviors, the onset and management of his diabetes, as well as his responses to various

mental health treatments at different periods of his life, including times during which he was a

diabetic and those when he was not. Further, Dr. Sigurdson prepared a chronological chart detailing

this information for the district court.

With respect to the proposed treatment plan, Dr. Sigurdson testified that if Green were

willing to take an oral medication, she would prescribe Geodon and noted the specific dosage she

would prescribe. She then discussed the potential side effects of this medication and noted that it

would not likely exacerbate the weight gain concern as it related to Green’s diabetes. Dr. Sigurdson

also offered an alternative treatment plan in the event Green required a forcible injection. She

recommended the injection of Haldol, noted the specific dosage, and discussed the potential side

effects in light of Green’s specific medical condition - diabetes - and his current prescribed

medications. Finally, she noted that if Green decided he wanted to voluntarily return to taking

Zyprexa, the anti-psychotic oral medication he had taken in the past, she would not object given the

importance of forming a therapeutic alliance with Green.

Significantly, Dr. Griffin, Green’s expert, did not disagree with Dr. Sigurdson’s medical

recommendations or proposed treatment plan, other than to indicate a preference for therapeutic

treatment over forced medication. More importantly, Dr. Griffin established the firm caveat that he

had no experience in the prison setting and had great respect for the professional abilities of both

Drs. Sixcox and Sigurdson. In light of the record before the district court, we do not find that it

committed a clear error in determining that involuntary medication as set forth in the record was

medically appropriate for Green. See Tran v. Gonzales, 447 F.3d 937, 943 (6th Cir. 2006) (citing

Heights Cmty. Cong. v. Hilltop Realty, Inc., 774 F.2d 135, 140 (6th Cir.1985)).

There is no evidence in the record to refute the conclusion that anti-pyschotic medication is

in Green’s best medical interest. Moreover, the proposed treatment plans recommended by Dr.

Sigurdson, regardless of the drug, take into consideration the particularized medical needs of the

No. 06-6186 United States v. Green Page 16

individual defendant, Green. It sets forth the specific medications, alternative means of injecting

it, the specific dosage, and the potential side effects Green could face. The fact that Dr. Sigurdson

offered alternatives depending on Green’s reaction to forced medication only supports the

individualized and appropriately tailored nature of her treatment plan. Offering alternatives does

not alone render a proposed treatment plan defective for purposes of a Sell finding. See e.g., Evans,

404 F.3d at 242, fn 14 (“We do not imply that the government may set forth only one treatment plan.

Instead, the government may set forth alternative treatment plans in the event the primary treatment

plan is defective for one reason or another.”). Even the authority cited by Green acknowledges this

point. United States v. Hernandez-Vasquez, 513 F.3d 908 (9th Cir. 2008).

Finally, we are not inclined to find a lack of specific directives fatal to the propriety of the

Sell Order here. This is not a situation, such as that presented in Evans or Hernandez-Vasquez,

where the government failed to present sufficient evidence to meet its burden, or a case where the

defendant was denied the opportunity to present any independent medical evidence. See e.g., United

States v. Rivera-Guerrero, 426 F.3d 1130 (9th Cir. 2005) (finding error where a district court relied

exclusively on the government’s physicians, and failed to grant the defendant a continuance to

obtain its own expert in Sell proceeding). Rather, it is a situation where the district court simply

chose not to incorporate all the evidence presented to it in its written order. Therefore, we assume,

as did the district court, that Green will be medicated in accordance with the proposed treatment

plans of Dr. Sigurdson as described at the hearing below. Further, how the plan is implemented

depends, in part, on whether Green voluntarily takes the medication orally, or whether it must be

given by injection.

A district court is not in the position, and does not possess the requisite knowledge to dictate

a precise course of medical action for any defendant. Nor should it in order to avoid the “blank

check” appellate challenge raised here. We require that the record is clear that physicians exercise

their medical judgment and make decisions in accordance with prevailing medical standards, all

while taking into account the particular needs and decisions of the individual patient. As noted, the

detailed record before us shows a treatment plan with the specific medication or range of

medications to be administered by the Bureau of Prisons, and under what circumstances each will

be administered (e.g., voluntarily or forcibly), as well as the expected dosages and the expected time

frame for achieving competence.

At the hearing in this case, Dr. Sigurdson outlined exactly this information for the district

court. Green may consent to oral medication, and that course of treatment would be different than

the one described with forcible injections. Having made the determination that each course of

treatment recommended by Dr. Sigurdson is sufficiently tailored in its own right, we find that

providing the Bureau of Prisons physicians the latitude and flexibility to adjust their treatment

options to the responses provided by the patient, Green, is not only consistent with the Supreme

Court’s holding in Sell, but required by it in order to ensure that any course of treatment is medically

appropriate. In the final analysis, Green asks us to substitute our Juris Doctor for a Medical Doctor.

We decline to do so.

III.

For these reasons, we AFFIRM.

No. 06-6186 United States v. Green Page 17

_________________

DISSENT

_________________

DAMON J. KEITH, Circuit Judge, dissenting. In its zeal to render Green competent to stand

trial, the majority has given carte blanche to the government to forcibly administer whatever

antipsychotic drugs it desires, whenever it chooses, using whichever method it deems appropriate.

In so doing, the Court displays an astonishing indifference and disregard for Green’s constitutional

liberty interests. Because our Constitution demands so much more, I dissent.

The Supreme Court has long stressed the “significant liberty interest in avoiding the

unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth

Amendment.” Washington v. Harper, 494 U.S. 210, 221-22, 110 S.Ct. 1028, 108 L.Ed.2d 178

(1990); accord Sell v. United States, 539 U.S. 166, 178, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003).

Indeed, “[n]o right is held more sacred, or is more carefully guarded, by the common law, than the

right of every individual to the possession and control of his own person, free from all restraint or

interference of others, unless by clear and unquestionable authority of law.” Union Pac. R. Co. v.

Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 35 L.Ed. 734 (1891). Only an essential or overriding

state interest can overcome that constitutionally protected liberty interest. Riggins v. Nevada, 504

U.S. 127, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992). While the Supreme Court noted that, “in certain

instances,” the government may deprive an individual of his liberty interest to refuse medical

treatment, it emphasized that “those instances may be rare.” Sell, 539 U.S. at 180. It is with respect

for the sacred right of individuals to refuse unwanted medical treatment that I must evaluate the

district court’s order authorizing the government to forcibly medicate Green.

I.

In determining whether this case is a “rare” instance in which such orders are constitutionally

permissible, Sell requires this Court to decide whether: (1) “important governmental interests are

at stake”; (2) “involuntary medication will significantly further those concomitant state interests”;

(3) “involuntary medication is necessary to further those interests”; and (4) “the 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 (emphasis in original). Not only must these four factors be met,

but they must be demonstrated by “clear and convincing” evidence. See United States v. Gomes,

387 F.3d 157, 160 (2d Cir. 2004).

While I agree with the majority’s holding that important governmental interests are at stake,

I strongly disagree with the majority’s conclusion that the second, third, and fourth factors are also

satisfied. The district court’s Order and the government’s evidence neglected to identify the specific

antipsychotic drug (or drugs) to be administered, the dosage range for that mystery drug, and the

method of administration. Without these specifics, I fail to see how the majority can conclude that

the second, third, and fourth Sell factors have been established under any standard—much less the

“clear and convincing” standard.

II.

The second Sell factor requires the court to find that involuntary medication will

“significantly further” the government’s interests. Sell, 539 U.S. at 181. In so doing, the court must

decide (1) “that administration of the drugs is substantially likely to render the defendant competent

to stand trial[,]” and (2) “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.” Id.

No. 06-6186 United States v. Green Page 18

Here, the district court, relying on testimony from medical experts, concluded that forced

medication is “substantially likely” to render Green competent to stand trial. (J.A. 239-40.) One

of those experts, Dr. Donna Christine Sigurdson, testified that the fact that Green had responded well

to treatment in the past indicates that the administration of antipsychotic drugs is substantially likely

to restore Green’s competency to stand trial. (J.A. 104-24.) When pressed on which specific

antipsychotic drug she would administer to Green, Dr. Sigurdson testified that the antipsychotic

drug, “if it was injectable,” could “either be Geodon or Haldol.” (J.A. 138.) (emphasis added). But

she did not commit to a particular drug, stating, “I am not trying to be funny. I can’t give you an

honest answer that I know right now this day which I’d use.”1 Id.

At the conclusion of the hearing, it was not at all clear which antipsychotic drug (or drugs)

would be forcibly administered to Green. And therein lies the fatal flaw in the government’s

evidence—an utter lack of specificity. Although testimony was offered about the different types of

antipsychotic medication (such as “first generation” and “second generation” antipsychotic drugs,

and “Haldol” and “Geodon”), the government never committed to any specific drug (or drugs) that

it planned to administer to Green. Dr. Sigurdson said that there were several possible drugs that she

could administer, but that the ultimate choice would be made through a “consensus” with her

colleagues. (J.A. 136.)

Treatment without a specific plan can exert harmful consequences not only on Green’s

medical condition but also on his ability to stand trial. Certain types of “antipsychotic drugs might

have side effects that would interfere with the defendant’s ability to receive a fair trial.”2 Sell, 539

U.S. at 179. Some antipsychotic medications may actually render Green incompetent to stand trial.

“Without at least describing the proposed course of treatment, it is tautological that the Government

cannot satisfy its burden of showing anything with regards to that treatment, much less that it will

‘significantly further’ the Government’s trial-related interests and be ‘medically appropriate’ for”

Green. Evans, 404 F.3d at 240 (emphasis added). The description of the proposed treatment, at the

very least, “must identify: (1) the specific medication or range of medications that the treating

physicians are permitted to use in their treatment of the defendant, (2) the maximum dosages that

may be administered, and (3) the duration of time that involuntary treatment of the defendant may

continue . . .” United States v. Hernandez-Vasquez, — F.3d —, 2008 WL 170201, * 1 (9th Cir. Jan.

22, 2008). In order to meet the first prong of Sell, therefore, “[t]he government must propose a

course of treatment in which it specifies the particular drug to be administered.” United States v.

Evans, 404 F.3d 227, 240 (4th Cir. 2005).

The fatal vagueness of the government’s planned proposal is underscored by the district

court’s Order. The district court must determine “[w]hether a particular drug will tend to sedate a

defendant, interfere with communication with counsel, prevent rapid reaction to trial developments,

or diminish the ability to express emotions.” Sell, 539 U.S. at 185. Instead, the district court, in the

most general terms possible, authorized the government “to involuntarily medicate the Defendant,

consistent with the prevailing standard of care for mental health professionals, to restore [] [Green]

to competence” to stand trial. (J.A. 243.) (emphasis added). But what exactly does the district court

mean by “consistent with the prevailing standard of care for mental health professionals”? And

1

Although the majority states that “Dr. Sigurdson provided detailed testimony regarding . . . the proposed

treatment plan for Green,” her testimony was at best speculative, as she refused to commit to a specific drug.

2

For instance, “a patient taking 800 milligrams of Mellaril each day might suffer from drowsiness or confusion.”

Riggins, 504 U.S. at 137. The administration of Mellaril, therefore, could fail to render Green competent to stand trial

because “such side effects [could have] an impact upon not just [the defendant’s] outward appearance, but also the

content of his testimony on direct or cross examination, his ability to follow the proceedings, or the substance of his

communication with counsel.” Riggins, 504 U.S. at 137.

No. 06-6186 United States v. Green Page 19

more importantly, how does this “prevailing standard of care” affect Green? The district court’s

Order does not tell us. Nor does the record.

It is any wonder then that the majority can reasonably conclude that the government’s

treatment—exactly what treatment, we do not know—is “substantially likely” to render Green

competent to stand trial. As the Fourth Circuit recognized, “[t]o approve of a treatment plan without

knowing [or specifying] the proposed medication and dose range would give prison medical staff

carte blanche to experiment with what might even be dangerous drugs or dangerously high dosages

of otherwise safe drugs and would not give defense counsel and experts a meaningful ability to

challenge the propriety of the proposed treatment.” Evans, 404 F.3d at 241. Simply put, an

unknown drug can never be substantially likely to do anything but keep its anonymity.

Although the majority claims that requiring more specificity would result in “substitut[ing]

[the court’s] juris doctor for a medical doctor,” this argument overstates what Sell requires. Sell

does not demand that the court act as a physician; it only calls for some specificity so that courts

could accurately determine whether, by “clear and convincing” evidence, the government has met

the four-prong Sell test before forcibly administering drugs to Green. This standard, at the very

least, requires the government to identify the specific antipsychotic drug it plans to administer. See

Sell, 539 U.S. at 181 (“Different kinds of antipsychotic drugs may produce different side effects and

enjoy different levels of success.”). With respect to the dosage level, “a reasonable range rather

than an exact dosage is appropriate.” Evans, 404 F.3d at 241 (emphasis added). This sort of

flexibility would allow Green’s doctors “to adapt [his] treatment to fit the often vagarious bodily and

psychical responses to medical treatment,” id., while providing the court with some assurance that

Green’s constitutional rights will not be violated. Thus, Sell permits a physician to exercise his or

her medical discretion provided that there is at least some specificity to court orders that delineates

the confines of forced medical treatment.

The majority tries to take refuge in the district court’s August 24, 2006, Sealed Memorandum

(“Memorandum”), claiming that it provides the requisite specificity. But the Memorandum is not

the mandate of the court—the Order is. See Bell v. Thompson, 545 U.S. 794, 805, 125 S.Ct. 2825,

162 L.Ed.2d 693 (2005) (“Basic to the operation of the judicial system is the principle that a court

speaks through its judgments and orders.”). And the Order does not limit the government’s

authorization to “the proposed medical treatment.” In determining Green’s treatment, solely based

on the Order, doctors may easily decide to administer a drug that was never mentioned during the

district court proceedings, administer a drug that would produce negative effects on Green’s

diabetes, or even administer Mellaril, a first-generation drug that may impair competency to stand

trial and that Justice Kennedy indicated should be forbidden except upon an “extraordinary

showing.” Riggins, 504 U.S. at 139-42 (Kennedy, J., concurring). Moreover, the Memorandum

itself provides absolutely no specificity; the Memorandum never mentions a single antipsychotic

drug that could potentially be administered to Green. (J.A. 236-42.)

There is, therefore, no clear and convincing evidence that administration of the drugs is

substantially likely to render Green competent to stand trial—for the Court does not even know what

that drug is. In short, if we do not know (and the district court’s Order does not tell us) the specific

antipsychotic medication with which Green is to be forcibly medicated, there cannot be clear and

convincing evidence that the forced administration of it is substantially likely to render Green

competent to stand trial. The district court accordingly committed clear error in concluding that

involuntarily medicating Green would significantly further the Government’s interest in bringing

him to trial.

No. 06-6186 United States v. Green Page 20

III.

The district court’s Order also fails the third prong—the requirement that the involuntary

medication is “necessary.” In assessing this prong, “[t]he court must find that any alternative, less

intrusive treatments are unlikely to achieve substantially the same results.” Sell, 539 U.S. at 181.

The government cannot demonstrate that involuntarily-administered antipsychotic medication is

“necessary” if the government has not proffered clear and convincing evidence that the treatment

would substantially further the government’s interests. Unless there is evidence regarding the

specific type of antipsychotic drug the government plans to administer to Green, it is impossible for

the court to determine whether “any alternative, less intrusive treatments” are likely to achieve

substantially the same results. Id. Some antipsychotic drugs may be taken orally (which would

appear to be less intrusive); others must be injected (inherently more intrusive). But again, without

knowing which antipsychotic drug the government plans to administer to Green, this Court cannot

accurately determine whether Green’s treatment is necessary and whether there is an alternative, less

intrusive treatment.

IV.

Finally, the fourth Sell requirement—“that administration of the drugs is medically

appropriate, i.e., in the patient’s best medical interest in light of his medical condition”—is not met.

Id. (emphasis in original). Green suffers from diabetes which may be aggravated by the

administration of certain antipsychotic medications. Although Dr. Sigurdson testified about the

relationship between diabetes and different types of antipsychotic medications, (J.A. 118-23), such

generalizations hold little weight in the face of the required specificity of Sell. Where, as here, the

government fails to commit to a specific medication or series of medications, there cannot be a clear

and convincing showing that the administration of the antipsychotic drugs is in Green’s best interest.

Evans, 404 F.3d at 241 (vacating an order in which there was no discussion as to why the defendant,

“an elderly man with diabetes, hypertension, and asthma who takes a number of medications to treat

these conditions, would” be medically appropriate.).

And, even if there were “clear and convincing” evidence to this effect, the district court’s

Order certainly does not limit the government’s authorization to forcibly administer antipsychotics

that would not exacerbate Green’s diabetes. It follows, therefore, that without specifying the course

of treatment, the district court cannot accurately measure Green’s best interests in light of his

medical condition. As the Supreme Court noted in Sell, “[t]he specific kind of drugs at issue may

matter here as elsewhere. Different kinds of antipsychotic drugs may produce different side effects

and enjoy different levels of success.” 539 U.S. at 181. Accordingly, it was clear error for the

district court to sweepingly conclude that antipsychotic drugs were in Green’s best interests.

V.

There is little evidence—much less “clear and convincing” evidence—that the forced

administration of antipsychotic drugs to Green would “significantly further” the government’s

interests, that it is even “necessary” to further those interests, and that forced medication is

“medically appropriate” for Green. These determinations cannot be made without knowing (with

specificity) which antipsychotic drug and what dosage of that drug would be administered. In its

opinion, the majority substitutes judicial checks on forced medical treatment with a blank check,

allowing physicians to do as they wish with a resistant patient. I DISSENT.