United States v. Grape

Opinions of the United

2008 Decisions States Court of Appeals

for the Third Circuit

12-11-2008

USA v. Grape

Precedential or Non-Precedential: Precedential

Docket No. 07-3682

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 07-3682

UNITED STATES OF AMERICA

v.

JOHN DOUGLAS GRAPE,

Appellant

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 05-cr-00033E)

District Judge: Honorable Maurice B. Cohill, Jr.

Argued September 29, 2008

Before: FISHER, CHAGARES and HARDIMAN, Circuit

Judges.

(Filed: December 11, 2008)

Thomas W. Patton (Argued)

Office of Federal Public Defender

1001 State Street

1111 Renaissance Centre

Erie, PA 16501

Attorney for Appellant

Robert L. Eberhardt

Rebecca R. Haywood (Argued)

Office of United States Attorney

700 Grant Street, Suite 4000

Pittsburgh, PA 15219

Attorneys for Appellee

OPINION OF THE COURT

FISHER, Circuit Judge.

John Douglas Grape suffers from a long history of

serious mental illness and is currently incarcerated pending trial

on two charges involving the receipt and possession of child

pornography. The District Court initially found Grape

incompetent to stand trial on these charges, and the Government

correspondingly wished to medicate him involuntarily pursuant

to Sell v. United States, 539 U.S. 166 (2003), to render him

competent. The District Court agreed with the Government and

ordered Grape forcibly medicated following a Sell hearing. The

District Court’s order was stayed and Grape filed this

2

interlocutory appeal, claiming that the Government failed to

meet its burden of proof on the first two factors of the four-

factor test laid out in Sell: (1) whether the Government had

advanced sufficiently important interests to justify forcible

medication, and (2) whether involuntary medication was

substantially likely to restore Grape to competency. Id. at 180-

81. However, Grape subsequently assaulted a corrections

officer, and the Government then medicated him involuntarily

on account of his dangerousness pursuant to Washington v.

Harper, 494 U.S. 210 (1990). The District Court later deemed

Grape competent. Grape wishes to pursue this appeal because

the Government intends to use the District Court’s original Sell

order should Grape again become incompetent. We find that the

Government has presented sufficiently important interests to

involuntarily medicate Grape, and that the administration of

medication to Grape is substantially likely to render him

competent to stand trial. For the reasons set forth in further

detail below, we will affirm the District Court’s order.

I.

On July 12, 2005, a federal grand jury returned a two-

count indictment against Grape, charging him with:

(1) receiving visual depictions of minors engaging in sexually

explicit conduct in violation of 18 U.S.C. § 2252(a)(2), and

(2) knowingly possessing visual depictions of minors engaging

in sexually explicit conduct in violation of 18 U.S.C.

§ 2252(a)(4)(B). These charges arose out of Pennsylvania state

allegations that between December 2004 and May 2005 Grape

brought minors to his bedroom and showed them child

pornography while attempting to molest them.

3

A. Pre-Sell Hearing

Grape’s first signs of serious mental illness emerged

during his ten-year stay in prison, following a 1993 arrest and

conviction for the attempted rape of a male minor. Soon after

Grape’s incarceration in 1995, he was diagnosed with

depression but remained mentally stable otherwise. However,

beginning in 2000, Grape experienced his first psychotic episode

and prison medical staff consequently diagnosed him between

then and his 2004 release with paranoid schizophrenia, among

a number of other mental disorders. Notably, Grape has a

history of noncompliance with prescribed medication, often

refusing to take it entirely, dating back to his first imprisonment.

Since Grape’s arrest on his current charges, he has been

subjected to numerous psychological evaluations. On

September 6, 2005, the District Court granted Grape’s first

motion for a competency hearing, and ordered it to be preceded

by a psychological evaluation complete with a prepared report.

Because Grape previously filed a notice of insanity defense, the

Government filed its own motion for psychiatric examination in

response, and on September 16, 2005, the District Court granted

the Government’s motion to determine if Grape was insane at

the time of the offense. As a result of these orders, between

November 2 and December 1, 2005, Grape was evaluated at the

Metropolitan Correctional Center, in New York, New York

(“MCC-NY”).

On January 4, 2006, MCC-NY examining psychologist

Cristina Liberati, Ph.D., filed a report based on her observations

during Grape’s stay. Ultimately, she diagnosed Grape in her

4

report as follows: rule-out malingering;1 alcohol abuse; rule-out

schizophrenia, paranoid type; and rule-out pedophilia.2 Because

of Grape’s lack of cooperation, she could not definitively

diagnose his illness or assess his competency to stand trial.

The District Court granted Grape’s second motion for a

psychological evaluation on February 6, 2006, and on April 5,

2006, Grape was admitted for evaluation at the Metropolitan

Correctional Center in Chicago. Dr. Jason Dana issued his

report from this evaluation period on June 23, 2006, in which he

expressed frustration with Grape’s lack of cooperation and

questioned the validity of his psychotic symptoms. Dr. Dana

diagnosed Grape with: pedophilia; alcohol dependence;

malingering; and rule-out psychotic disorder. Similar to Dr.

1

Dr. Christina Pietz, a forensic psychologist, testified at

Grape’s June 26, 2007 hearing pursuant to Sell v. United States,

539 U.S. 166 (2003), that “malingering” has two possible

meanings: “One is that [the patient is] acting, that he’s faking

a mental illness. But [it] also [includes] individuals that actually

suffer from a mental illness and exaggerate the nature of their

deficits.”

2

A “rule-out” diagnosis, according to Dr. Pietz’s

testimony, means there is “evidence that [the patient] may meet

the criteria for that diagnosis, but [the doctors] need more

information to rule it out.” In other words, there is reason to

suspect the presence of a “rule-out” psychotic disorder, but the

doctor would not be comfortable giving such a diagnosis at that

time.

5

Liberati, Dr. Dana ultimately was unable to determine Grape’s

competency to proceed to trial and could offer no opinion on

Grape’s sanity at the time of the offense.

The District Court held a competency hearing on July 20,

2006, and issued an order in response, finding Grape

incompetent. Grape was then remanded to the U.S. Medical

Center in Springfield, Missouri (“Springfield”) for continued

psychological evaluation and treatment to begin upon his

September 7, 2006 arrival. The District Court set a hearing for

Grape pursuant to Sell, and thereby ordered Grape’s treating

doctors to submit a report detailing his diagnosis, the type and

dosage of medicine to be administered to him, potential side

effects, the appropriateness of the medication, and why less

intrusive alternatives were not available.

On February 15, 2007, Dr. Christina Pietz, Ph.D., a

forensic psychologist, and Dr. Robert Sarrazin, M.D., the Chief

of Psychiatry at Springfield, submitted a report to the District

Court regarding their assessment of Grape. In the report, Drs.

Pietz and Sarrazin stated that Grape suffers from paranoid

schizophrenia and antisocial personality disorder and was

mentally incompetent to stand trial at that time. They believed

antipsychotic medication would restore Grape to competency,

and discussed available medications and their side effects, as

well as the overall process and rates of success in restoring

competency.

Meanwhile, prior to the June Sell hearing, Dr. Carlos

Tomelleri, a psychiatrist at Springfield, conducted an

6

examination pursuant to Harper 3 on May 15, 2007. Dr.

Tomelleri found that Grape was severely mentally ill, diagnosed

him with paranoid schizophrenia, and acknowledged that his

threatening behavior indicated potential danger to others.

However, Dr. Tomelleri conceded that Grape’s inappropriate

behavior could be adequately managed by the conditions of his

confinement at that time. Dr. Tomelleri concluded that Grape

therefore could not be involuntarily medicated on the grounds

that he was a danger to himself or others under Harper, but

agreed that medication was in Grape’s best interest.

B. Grape’s Sell Hearing

On June 26, 2007, the District Court held a Sell hearing

to determine whether it could authorize the involuntary

medication of Grape. The Government presented Dr. Pietz and

Dr. Sarrazin as witnesses via video conference from Springfield.

Grape also appeared via video conference from Springfield.

Grape presented no witnesses.

Dr. Pietz testified that over the course of a few months,

she saw Grape several times a week. She believed Grape suffers

from paranoid schizophrenia, as demonstrated through his

auditory hallucinations, responses to internal stimuli,

3

Washington v. Harper allows the involuntary

administration of drugs to a prisoner with serious mental illness

under limited circumstances if: (1) the inmate is dangerous to

himself or others, and (2) the treatment is in the inmate’s

“medical interest.” 494 U.S. 210, 227 (1990).

7

inappropriate display of emotion, and paranoia. Further, she

disputed the prior diagnoses that Grape was malingering,

testifying that he was unable to maintain a logical thought

process, or showed “cognitive slippage,” which is very difficult

for a patient to fake, and that he may pretend his mental illness

is less severe than it is. Dr. Pietz testified that Grape would

benefit from taking antipsychotic medicine for his schizophrenia

to “stabilize his mood[,] . . . [diminish his] attending to internal

stimuli, . . . and restore his competency.” However, Dr. Pietz

deferred to Dr. Sarrazin on the specific plan for medicating

Grape. Dr. Pietz admitted that she believed that if Grape were

not in custody, he could present a danger to himself or others.

She agreed that his mental state declined during his stay in

Springfield, that his symptoms would likely stay consistent

without medication, and that residing in a locked unit would

have adverse effects on his mental condition.

Dr. Sarrazin testified second and, given his limited

meetings with Grape, relied heavily on Dr. Pietz’s observations

in reaching his conclusions. Dr. Sarrazin believed that Grape

suffers from paranoid schizophrenia and antisocial personality

disorder, though he had not seen him hallucinate or respond to

internal stimuli, and that Grape’s condition did not improve

between his February 2007 evaluation and the June 2007 Sell

hearing. Dr. Sarrazin testified in detail about medicating Grape,

and opined that “there is a substantial probability that with

antipsychotic medications . . . Grape will be restored to

competency to stand trial.” Specifically, Dr. Sarrazin hoped

medication would help treat Grape’s symptoms of disorganized,

delusional, and psychotic thought.

8

Dr. Sarrazin reviewed the different types of antipsychotic

medications available for Grape generally, comparing first- and

second-generation medicines.4 He described the treatment

available to Grape if he were to voluntarily accept oral

medication, expressing a preference for prescribing oral second-

generation antipsychotics. However, presuming that Grape

would continue to refuse medical treatment, Dr. Sarrazin

proposed a plan for his involuntary medication. He

recommended treating Grape with a first-generation

antipsychotic medication called haloperidol,5 which is available

in oral, and short- and long-acting injectable forms. If Grape

refused to take the oral medicine, Dr. Sarrazin proposed starting

with a short-acting injectable form, which he would administer

daily, not to exceed a week at the maximum. He hoped that

once medicated and “de-escalate[d]” after taking the short-

acting injectable drug, Grape would choose to cooperate and

take his medicine orally from that point. Because haloperidol

also comes in long-acting injectable form, Dr. Sarrazin would

inject Grape with that if the first week of daily short-acting

injections did not render him cooperative. Other oral

antipsychotic medications could be administered while the long-

4

Dr. Sarrazin testified that antipsychotic medicines come

in two broad categories right now – first-generation and second-

generation medication. First-generation antipsychotic

medication has existed for many years, compared with the

relatively new second-generation medicines.

5

Haloperidol’s nongeneric trade name, used

interchangeably in the record, is Haldol.

9

acting injectable medication was still potent. Dr. Sarrazin

believed Grape would have to be medicated for a minimum of

four to six months.

Practically, the forcible medication would happen in the

following manner. Medical center nursing staff would first give

Grape a chance to take medicine orally; if he refused, they

would administer the medicine via an injection. To do so, the

nurses would restrain Grape’s hands through his food slot, open

his cell door, inject him with the medication, leave the cell, and

then remove the handcuffs through the food slot. If Grape

refused to submit to hand restraints, the nurses would come with

a lieutenant, and even a four-cell boot team if necessary. The

lieutenant and boot team would open the door and restrain

Grape’s hands and legs, the nurses would then enter and give the

injection (usually in the buttocks), someone from the medical

staff would examine Grape for injury, and then the team would

leave. A lieutenant would videotape the entire event according

to procedure.

Dr. Sarrazin believed “the medications would not have

side effects that would significantly inhibit [Grape’s] ability to

be competent for his trial, [or] to interact with his attorney.” If

possible side effects such as sedation, lightheadedness, or others

occurred, the doctors would no longer deem Grape competent to

proceed with his trial and would make changes to his treatment.

Other potential side effects include: extrapyramidal side effects

(“EPS”), which involve feelings of stiffness; feeling as though

one’s feet must keep moving (tardive dyskinesia); dry mouth;

diabetes or changes in blood glucose levels; involuntary

movements of the tongue and mouth; or neuroleptic malignant

10

syndrome, a more serious side effect that affects less than one

percent of those treated and causes the body not to be able to

regulate its own temperature. These side effects, especially

neuroleptic malignant syndrome, EPS or stiffness, and tardive

dyskinesia, which could be permanent, are less common in

second-generation antipsychotics than in first-generation

medicines such as haloperidol. Dr. Sarrazin said Grape would

be monitored closely for any of these side effects and believed

no alternative or less intrusive treatment would be effective in

treating him; counseling or therapy would not have been

effective at this stage.

Dr. Sarrazin testified that the Bureau of Prisons has

approximately a 70% success rate in restoring forcibly

medicated defendants to competency, and that the numbers at

Springfield roughly mirror that statistic, estimating a 70 to 75%

success rate for his facility. However, Dr. Sarrazin

acknowledged that the success rate in restoring patients to

competency “is a little bit lower for people that have to be

forcibly medicated than for people who do not,” including

individuals who are “uncooperative with our treatment and . . .

[those] more seriously mentally ill[, including those who] do not

believe they are mentally ill,” such as Grape. Overall, Dr.

Sarrazin testified that his proposed method of treatment is

medically appropriate for Grape, that this treatment is in Grape’s

“best medical interests,” and that his condition would “most

likely” continue to deteriorate, and would not improve, absent

medication.

On cross examination, Dr. Sarrazin agreed that Grape

could potentially cause harm to others if he were placed among

11

the open population at the medical facility. He also conceded

that Grape repeatedly threatened Dr. Pietz and that if Grape

were released onto the street, he could harm a member of the

public at large. However, Dr. Sarrazin emphasized that he had

no way of knowing whether Grape would be civilly committed

if he could not be restored to competence.

The District Court filed its opinion on September 6, 2007,

granting the Government’s request to involuntarily medicate

Grape in order to restore him to competency to stand trial.

Grape timely filed his notice of appeal to the District Court’s

order.

C. Post-Sell Hearing

After Grape’s Sell hearing, his mental condition

continued to deteriorate, and on October 25, 2007, Grape

physically and verbally assaulted a Springfield correctional

officer. Springfield held a Harper hearing that day, during

which it determined that Grape qualified for forcible medication

under the Harper standard because he presented a danger to

others and the treatment was in his medical interest. See 494

U.S. at 225-27. Staff began forcibly medicating Grape

immediately. According to the Government, Grape’s

understanding and behavior improved significantly over the

course of his first months on antipsychotic medications. As of

April 2, 2008, the warden of Springfield deemed Grape

competent to stand trial, as noted in a letter to the District Court.

The District Court subsequently found Grape competent to stand

trial and ordered him discharged from Springfield to the Erie

County Prison in Erie, Pennsylvania.

12

Grape acknowledges that although he was deemed

competent to stand trial, he voluntarily stopped taking his

antipsychotic medication at the end of June 2008, and has

received no antipsychotic medicine since that time. In fact, at

oral argument, Grape’s counsel represented that he had recently

met with Grape and already witnessed him exhibiting signs of

cognitive slippage. Grape’s counsel also reported that while on

the antipsychotic medication, Grape suffered terrible side

effects, including shaking, body aches, and EPS. Recognizing

that the state of his competency is not static, Grape therefore

wishes to maintain this appeal in the event that he again

becomes incompetent and the Government attempts to use the

original District Court order to forcibly medicate him. The

Government has not indicated that it would not use the District

Court order to involuntarily medicate Grape in the future if the

need arises.

II.

A. Jurisdiction

We have jurisdiction over the District Court’s order

allowing the Government to forcibly medicate Grape pursuant

to 28 U.S.C. § 1291, under the collateral order doctrine

exception. See Sell, 539 U.S. at 175-77; Coopers & Lybrand v.

Livesay, 437 U.S. 463, 468-69 (1978); Cohen v. Benefit Indus.

Loan Corp., 337 U.S. 541, 546 (1949).

Additionally, we must resolve the issue of mootness

before we exercise jurisdiction and proceed to the merits of this

case. North Carolina v. Rice, 404 U.S. 244, 246 (1971).

13

Despite Grape’s restored competency, brought to our attention

only weeks before oral argument, his appeal is not moot because

it meets the necessary factors under the “voluntary cessation”

exception. Under this doctrine, mootness is not presumed if the

respondent has stopped the offending action, but may resume it

at any time. De Funis v. Odegaard, 416 U.S. 312, 318 (1974).

Grape has an ongoing illness and retains an interest in the

present appeal. City of Erie v. Pap’s A.M., 529 U.S. 277, 288

(2000). Although the Government has not yet medicated Grape

involuntarily subject to Sell, under the appealed District Court

order, nothing prevents it from doing so at any time the District

Court again deems Grape incompetent to stand trial. Thus, the

Government is “is free to return to [its] old ways” whenever it

desires. United States v. W. T. Grant Co., 345 U.S. 629, 632

(1953). Grape’s appeal before us therefore is not moot, and we

have jurisdiction to review it.6

B. Standards of Review

The Sell Court did not specify a standard for reviewing

Sell orders, and because this is a matter of first impression in

6

The Government also admitted at oral argument that it

had not received the updated September 12, 2008 forensic report

stating that Grape was refusing to take his antipsychotic

medication at the time it filed its September 11, 2008 motion to

dismiss for lack of jurisdiction. Accordingly, the Government

agreed to withdraw its motion to dismiss, conceding that the

issues in Grape’s appeal are not moot.

14

this Court, we must first determine the appropriate standards of

review. Several of our sister circuits have specified standards of

review for each factor of the Sell test. Grape appeals the District

Court’s determination on two of the four Sell factors.

All courts of appeals that have addressed this issue

review the first Sell factor as a legal question subject to de novo

review. See, e.g., United States v. Hernandez-Vasquez, 513 F.3d

908, 915-16 (9th Cir. 2007).7 Because we agree that the first

issue presents a legal question, we will review the first Sell

factor – whether the Government has advanced sufficiently

important interests to justify forcible medication – de novo.

Sell, 539 U.S. at 180.

The Supreme Court and this Court have similarly not

addressed the standard of review for the second Sell factor –

whether involuntary medication is substantially likely to restore

Grape to competency. Id. at 181. All but one of the other courts

of appeals that have faced this issue agree that Sell factors two

through four present factual questions subject to clear error

7

See also United States v. Green, 532 F.3d 538, 546 (6th

Cir. 2008) (reviewing the first Sell factor de novo); United

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

United States v. Bradley, 417 F.3d 1107, 1113-14 (10th Cir.

2005) (same); United States v. Evans, 404 F.3d 227, 236 (4th

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

(2d Cir. 2004) (same).

15

review. See, e.g., Hernandez-Vasquez, 513 F.3d at 915-16.8

Determining whether “involuntary medication will significantly

further [the proffered] state interests,” Sell, 539 U.S. at 181,

including the medication’s likely effect on a defendant and his

ability to stand trial and help prepare for it, requires us to resolve

a factual question. We therefore review the second Sell factor

for clear error, and defer to the District Court’s findings of fact.

Further, all courts of appeals addressing this issue have

held that the Government bears the burden of proof on factual

questions by clear and convincing evidence. See, e.g., United

States v. Gomes, 387 F.3d 157, 159 (2d Cir. 2004) (applying and

requiring the Government to meet the “clear and convincing

evidence” standard previously articulated in Riggins v. Nevada,

504 U.S. 127, 134 (1992), as to the factual findings in Sell

factors two through four).9

8

See also Green, 532 F.3d at 551-52 (holding that Sell

factors two, three, and four are factual questions reviewed for

clear error); Palmer, 507 F.3d at 303 (same); Evans, 404 F.3d at

240 (same); Gomes, 387 F.3d at 160 (same). But see Bradley,

417 F.3d at 1113-14 (holding that both Sell factors one and two

are legal, or mixed legal and factual, questions subject to de

novo review).

9

See also Green, 532 F.3d at 545 (“A Sell order requires

the government to present clear and convincing evidence of [the

factual components of each of the four factors].”); Bradley, 417

F.3d at 1114 (agreeing that Sell factors two through four are

factual findings that the Government must prove by clear and

16

III.

A. The Sell Framework

In the instant appeal, Grape seeks relief from the District

Court’s order allowing the Government to forcibly medicate him

to render him competent to stand trial pursuant to Sell, but the

Government already forcibly medicated him in Fall 2007

pursuant to Harper. Harper allows the involuntary

administration of drugs to a prisoner with serious mental illness

under limited circumstances if: (1) the inmate is dangerous to

himself or others, and (2) the treatment is in the inmate’s

“medical interest.” 494 U.S. at 227. In deciding Harper, the

Supreme Court found that although an inmate “possesses a

significant liberty interest in avoiding the unwanted

administration of antipsychotic drugs under the Due Process

Clause of the Fourteenth Amendment,” this interest can be

overcome by a “legitimate” and “important” government interest

in “providing appropriate medical treatment to reduce the

danger” the inmate presents. Id. at 221-22, 236.

We do not reach consideration of the four-factor Sell test

unless an inmate does not qualify for forcible medication under

Harper, as determined at a Harper hearing generally held within

convincing evidence); Evans, 404 F.3d at 236 n.5 (stating that

Evans argued that the “Due Process Clause requires the

Government to prove its case under Sell by clear and convincing

evidence,” but that in failing to raise this argument before the

district court, he waived it on appeal).

17

the inmate’s medical center. Because Dr. Tomelleri found at

Grape’s first Harper hearing in Spring 2007 that he did not meet

the Harper standard for involuntary medication, the Government

continued to pursue Grape’s forcible medication through Sell.

We distinguish here between the two methods of involuntary

medication because, although Grape appeals only his Sell order,

the details of his eventual medication pursuant to Harper, as

determined at his Fall 2007 Harper hearing, are relevant to our

Sell analysis.

In Sell, the Supreme Court explicitly allowed the forcible

medication of an inmate “solely for trial competence purposes”

in certain “rare” instances. 539 U.S. at 180. The Court set a

standard that the government must meet in order to overcome

the inmate’s liberty interest, as laid out in a four-factor test.

First, “a court must find that important governmental interests

are at stake,” though “[s]pecial circumstances may lessen the

importance of that interest.” Id. Second, “the court must

conclude that involuntary medication will significantly further

those concomitant state interests.” Id. at 181. This includes

finding that “administration of the drugs is substantially likely

to render the defendant competent to stand trial,” and “[a]t the

same time, . . . 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. Third, “the

court must conclude that involuntary medication is necessary to

further those interests” and that “any alternative, less intrusive

treatments are unlikely to achieve substantially the same

results.” Id. Fourth, and finally, “the court must conclude that

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

18

patient’s best medical interest in light of his medical condition.”

Id. The Court then emphasized that the goal of this test is “to

determine whether involuntary administration of drugs is

necessary significantly to further a particular governmental

interest, namely, the interest in rendering the defendant

competent to stand trial.” Id.

In this appeal, Grape challenges only the first two Sell

factors, arguing that the Government has not met its burden on

either. This is an issue of first impression in this Court.

B. Sufficiently Important Government Interests

Grape first argues that the District Court erred because

the Government did not satisfy factor one of the Sell test, which

is a legal determination that we review de novo. As instructed

by the Supreme Court, a reviewing court’s role regarding this

first factor is to determine whether “important government

interests are at stake,” while “consider[ing] the facts of the

individual case in evaluating the [strength of the] Government’s

interest.” Id. at 180.

To evaluate the strength of the Government’s case, the

Sell Court stated that “[t]he Government’s interest in bringing

to trial an individual accused of a serious crime is important

. . . [,] whether the offense is a serious crime against the person

or a serious crime against property.” Id. Courts of appeals have

split on which test to employ in determining seriousness of the

crime. Some look to the maximum statutory penalty, while

others calculate the defendant’s probable sentencing range under

19

the U.S. Sentencing Guidelines (“Guidelines”). See Hernandez-

Vasquez, 513 F.3d at 917-19.

Whether Grape’s alleged crimes are serious is not in

question. He faces statutory mandatory minimum sentences of

fifteen years for his receipt offense and ten years for his

possession offense, accounting for his prior conviction for

attempted rape. 18 U.S.C. § 2252(b)(1), (b)(2). The District

Court assessed Grape’s crimes in light of his criminal history

category of III and found that, if guilty, his “best case scenario”

punishment is likely 87 to 108 months’ imprisonment under the

Guidelines, though he would still be subject to the statutory

minimum sentences. Grape thus concedes that his offenses

qualify as serious under either test, and we agree.

Additionally, we “must consider the facts of the

individual case in evaluating the Government’s interest in

prosecution,” remembering that “[s]pecial circumstances may

lessen the importance of that interest.” Sell, 539 U.S. at 180.

One significant mitigating circumstance for Grape is the

possibility of his civil confinement, upon which the Sell Court

elaborates: “The defendant’s failure to take drugs voluntarily,

for example, 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.

The long-term prognosis for Grape’s currently restored

mental state is unclear, which affects the likelihood of his

potential future civil confinement. We therefore presume that

Grape would mentally deteriorate if not medicated, and proceed

20

under this assumption. Grape argues that under 18 U.S.C.

§ 4241(d), the statutory method of determining mental

competency to stand trial, if he is not medicated and therefore

not competent, he becomes subject to the provisions of 18

U.S.C. § 4246. Section 4246 provides the method for handling

a defendant once he is determined incompetent. The District

Court would first need to

find[] 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, [in which case] the court shall commit

the person to the custody of the Attorney General.

The Attorney General shall release the person to

the appropriate official of the State in which the

person is domiciled or was tried if such State will

assume responsibility for his custody, care, and

treatment. The Attorney General shall make all

reasonable efforts to cause such a State to assume

such responsibility. If, notwithstanding such

efforts, neither such State will assume such

responsibility, the Attorney General shall

hospitalize the person for treatment in a suitable

facility, until –

(1) such a State will assume such

responsibility; or

21

(2) the person’s mental condition is

such that his release, or his

conditional release under a

prescribed regimen of medical,

psychiatric, or psychological care

or treatment would not create a

substantial risk of bodily injury to

another person or serious damage

to property of another;

whichever is earlier.

18 U.S.C. § 4246(d). Further, Pennsylvania has its own

provisions for handling an incompetent inmate, if federal

authorities were to release Grape into state custody. The

relevant Pennsylvania statute states:

Whenever a person is severely mentally ill and in

need of immediate treatment, he may be made

subject to involuntary emergency examination and

treatment. A person is severely mentally disabled

when, as a result of mental illness, his capacity to

exercise self-control, judgment and discretion in

the conduct of his affairs and social relations or to

care for his own personal needs is so lessened that

he poses a clear and present danger of harm to

others or to himself. . . . If . . . the person has

been found incompetent to be tried or has been

acquitted by reason of lack of criminal

responsibility on charges arising from conduct

involving infliction of or attempt to inflict

22

substantial bodily harm on another, . . . clear and

present danger to others may be shown by

establishing that the conduct charged in the

criminal proceeding did occur, and that there is a

reasonable probability that such conduct will be

repeated. [A] clear and present danger of harm to

others may be demonstrated by proof that the

person has made threats of harm and has

committed acts in furtherance of the threat to

commit harm.

70 Pa. Cons. Stat. § 7301. Prior to Grape’s forcible medication

in Fall 2007, he most likely fell within the category of

individuals to whom this rule would apply if he were released in

Pennsylvania. In response to Grape’s arguments under these

federal and state statutes, the District Court found that “[e]ven

though a section 4246 hearing has not been held, there is no

serious dispute that the likelihood of Mr. Grape reentering

society unmedicated is extremely low.” Likewise, we believe it

is safe to assume that Grape would likely reenter this category

if his paranoid schizophrenia returned.

The District Court further found that “there is no . . .

reading of the Medical Center’s Harper hearing conclusion

other than, but for his confinement, Mr. Grape would be a

danger.” In fact, we now know that, despite his confinement,

Grape when not medicated already posed a danger. Grape

argues that his apparently indefinite future civil confinement

decreases the need for his forcible medication to the point of it

becoming negligible. It is impossible for us to predict how

likely it is that Grape will relapse and again exhibit the same

23

dangerous symptoms that would bring him within the scope of

these civil confinement statutes. Grape’s currently restored

mental state weakens his argument. Yet, despite these recent

developments in Grape’s health, it is not difficult to agree with

the District Court’s assessment that “the likelihood of civil

commitment here does diminish the government’s interest in this

case.”

But we must balance Grape’s strong argument against the

Government’s interests. In that vein, the Sell Court states:

We do not mean to suggest that civil commitment

is a substitute for a criminal trial. The

Government has a substantial interest in timely

prosecution. And it may be difficult or

impossible to try a defendant who regains

competence after years of commitment during

which memories may fade and evidence may be

lost. The potential for future confinement affects,

but does not totally undermine, the strength of the

need for prosecution. The same is true of 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)). Moreover, the Government has a

concomitant, constitutionally essential interest in

assuring that the defendant’s trial is a fair one.

539 U.S. at 180.

24

In the instant case, the Government argues that a number

of factors increase its interest in prosecuting Grape. First, we

have recognized the seriousness of child pornography charges.

See United States v. Goff, 501 F.3d 250, 258-60 (3d Cir. 2007)

(highlighting the seriousness of and harm associated with the

use of child pornography). Also, Grape allegedly committed

child sex offenses within months of his discharge from prison

for his attempted rape, making him a repeat offender and

indicating a pattern of pedophilia. Further, the Government

asserts that the sheer strength of its interest in prosecuting Grape

decreases the ability of Grape’s special circumstances to

overcome those Government interests. The Government has a

strong case on the basis of these arguments.

The Government also argues that it has a strong interest

in prosecuting Grape sooner, while the evidence is fresh, but we

do not find this convincing alone. Grape states, importantly,

that his computer is the source of the evidence against him,

which would be available whenever he is prosecuted. However,

the Government argues regarding Grape’s sentence that if he

were never convicted and served a period of time in civil

confinement instead, he would not face the potential of a portion

of his punishment through supervised release. This would allow

the Government to continue to track him after his stay in prison.

Finally, at oral argument, the Government also expressed an

interest in trying Grape earlier because one of its goals is to

involve crime victims in the prosecution process.

We review this first Sell factor de novo. Other courts of

appeals in analyzing this factor have relied almost entirely on an

assessment of the seriousness of the defendant’s crime. See,

25

e.g., United States v. Green, 532 F.3d 538, 545-51 (6th Cir.

2008). Also, Grape has been confined on his current charges for

approximately three-and-a-half years. In light of the mandatory

minimum sentences of ten and fifteen years he faces, Grape

would still need to serve a majority of his sentence if convicted.

The Government has demonstrated the strength of its interest in

speedy prosecution with support from its additional enumerated

important interests.

We recognize that “[t]he forcible injection of medication

into a nonconsenting person’s body represents a substantial

interference with that person’s liberty.” Harper, 494 U.S. at

229. The fact that Grape has already been involuntarily

medicated and has been restored to competency diminishes his

countervailing interest. Of course, there is a strong possibility

that he will again relapse to incompetency due to his paranoid

schizophrenia. Grape argues that as more time lapses from the

time he stopped taking his medication, he will move closer to

incompetency and to his previous degree and symptoms of

mental disease. But, due to the volatility of Grape’s mental

state, we cannot be certain of Grape’s current mental health, or

the likelihood and timeline under which he would again become

incompetent.

Therefore, we are not in a position to agree

wholeheartedly with Grape’s statement that we “need not

override [his] constitutionally protected liberty interest in

refusing medical treatment when the end result of forcible

medication will be the same as allowing the individual to

continue to refuse treatment.” It is no longer clear that Grape’s

punishment – incarceration, whether in prison or a medical

26

facility – would be the same whether or not he were involuntary

medicated. Regardless, the District Court stated that it had “no

trouble concluding that important government interests are at

stake here.” We agree, and find that Grape’s arguments do not

outweigh the Government’s.10 Therefore, the Government’s

interest is sufficiently strong to outweigh Grape’s liberty interest

and to meet this factor of the Sell test.

C. Substantial Likelihood of

Medication to Restore Competency

Grape also argues that the District Court erred in finding

for the Government on factor two of the Sell test, which we

review for clear error. The Sell Court describes factor two as

follows:

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.

10

We also recognize, however, that Grape’s forced

medication pursuant to Harper before our decision in the instant

appeal altered the facts of his case. Therefore, we decline to

reach whether Grape’s potential for indefinite civil confinement

on the facts prior to his Harper medication would have sufficed

under the first Sell factor to overcome the Government’s stated

interests. We limit our holding here to the facts of Grape’s

individual case, as presented to us at the time of our decision.

27

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.

Sell, 539 U.S. at 181. The clear error standard of review is

important to our analysis of this issue. This Court has defined

clear error review as follows:

We accept the district court’s findings of fact

unless they are clearly erroneous. A finding of

fact is clearly erroneous when, after reviewing the

evidence, the court of appeals is “left with a

definite and firm conviction that a mistake has

been committed.” Thus, even if we might have

come to different factual conclusions based on

this record, we defer to the findings of the district

court unless we are convinced that the record

cannot support those findings.

Oberti v. Bd. of Educ., 995 F.2d 1204, 1220 (3d Cir. 1993)

(citations omitted) (quoting Anderson v. Bessemer City, 470

U.S. 564, 573 (1985)). The Government bears the burden of

establishing the second Sell factor by clear and convincing

evidence. See Gomes, 387 F.3d at 159. The District Court

declared this part of its analysis the “central question in this

case[, i.e.,] whether medication is substantially likely to restore

Mr. Grape’s competency.”

28

Grape challenges the District Court’s holding on this

factor in two ways. First, he challenges the sufficiency of the

evidence before the District Court to find that he was in fact

“substantially likely” to return to competence if administered

such antipsychotic drugs. The parties debated over the testifying

doctors’ evidence that the Government showed such a

substantial likelihood through Dr. Pietz’s testimony that “the

Bureau [of Prisons] has approximately a 70 percent success rate

in restoring involuntarily medicated defendants to competency.”

Yet, Dr. Sarrazin later acknowledged that the Bureau’s “success

in restoring competency is a little bit lower for people that have

to be forcibly medicated than for people who do not,” such as

Grape, because they are “uncooperative with [their] treatment[,]

. . . have absolutely no insight into their illness[,] do not believe

they are mentally ill[, and] are oftentimes sicker individuals.”

Second, Grape argues that the District Court “fail[ed] to

appreciate that the government had the burden of proof on this

issue, and therefore any lack of evidence to support a finding

that forcible medication was substantially likely to render Mr.

Grape competent to stand trial had to be resolved against the

government, not [for] the government.” Grape has not shown

that the District Court clearly erred in accepting the doctors’

testimony that antipsychotic medication would be substantially

likely to render him competent to stand trial.

However, we can dispose of Grape’s hypothetical

arguments as to Sell factor two by referring to the facts of what

actually happened after the Government forcibly medicated him

29

pursuant to Harper. 11 Both the District Court and the

Springfield staff found that the medications restored Grape to

competency. Regardless of whether the District Court

“abdicat[ed] its fact-finding role,” or failed to hold the

Government to its burden of proof, this tangible evidence shows

that “involuntary medication will significantly further those

concomitant state interests” by being “substantially likely to

render [Grape] competent to stand trial,” yet also being

“substantially unlikely” to have detrimental side effects

affecting Grape’s trial preparation. Sell, 539 U.S. at 181.

11

The District Court’s analysis, of course, did not

consider the actual results of Grape’s forcible medication with

antipsychotic drugs. However, “it would be pointless to remand

the case simply to have the District Judge take notice of that

which we may notice ourselves.” United States v. Remoi, 404

F.3d 789, 793 n.1 (3d Cir. 2005); see also Werner v. Werner,

267 F.3d 288, 295 (3d Cir. 2001) (“A court may take judicial

notice of an adjudicative fact if that fact is not subject to

reasonable dispute . . . [and such a] fact must either be generally

known within the jurisdiction of the trial court, or be capable of

accurate and ready determination by resort to sources whose

accuracy cannot reasonably be questioned.” (citing Fed. R. Evid.

201)); In re Indian Palms Assoc., Ltd., 61 F.3d 197, 205-06 (3d

Cir. 1995) (“Judicial notice may be taken at any stage of the

proceeding, including on appeal, as long as it is not unfair to a

party to do so and does not undermine the trial court’s

factfinding authority.” (citations omitted)).

30

Thus we need not consider the research and scientific and

empirical evidence the parties debated regarding the likelihood

that antipsychotic medications would restore Grape to

competency.12 We now know that Grape most probably suffers

from paranoid schizophrenia, and definitely is responsive to

medicinal treatment for such a diagnosis. Further, although we

find that Grape did suffer side effects while taking antipsychotic

medications, we have limited information on the exact side

effects and their severity. Based on the parties’ representations

and the subsequent District Court finding of Grape’s

competency to stand trial, we assume that although Grape

suffered some side effects, they were not sufficient to “interfere

significantly with [his] ability to assist counsel in conducting a

trial defense.” Sell, 539 U.S. at 181. Therefore, the

Government has met its burden by clear and convincing

evidence that, if medicated involuntarily, Grape is substantially

likely to have his competence restored. For the above reasons,

the District Court did not clearly err in coming to the conclusion

it did.

12

The debate between the parties in their briefs hinges

around the 70% restoration of competence statistic, whether that

alone reaches a sufficient likelihood of restoration, and how far

under that threshold Grape falls. We find this inconsequential

because the tangible evidence garnered from Grape’s actual

forcible medication resolves the issue over which the parties

disputed – whether the medication plan outlined by Dr. Sarrazin

would be substantially likely to restore Grape to competence

with limited side effects. The plan did in fact restore Grape to

competence with limited side effects.

31

IV.

For all of the above reasons, we conclude that, pursuant

to Sell, the Government has presented sufficiently important

interests to forcibly medicate Grape, and that the administration

of medication to Grape is substantially likely to render him

competent to stand trial, and unlikely to produce side effects that

may prevent him from helping prepare for his trial. Therefore,

we will affirm the District Court’s order.

32