United States v. Nna Onuoha

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-50300

Plaintiff-Appellee,

D.C. No.

v. 2:13-cr-00676-

BRO-1

NNA ALPHA ONUOHA, AKA Naa

Alpha Onuoha,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Central District of California

Beverly Reid O’Connell, District Judge, Presiding

Argued and Submitted

December 8, 2015—Pasadena, California

Filed April 20, 2016

Before: Ronald M. Gould and Marsha S. Berzon, Circuit

Judges, and George Caram Steeh III,* Senior District

Judge.

Opinion by Judge Gould

*

The Honorable George Caram Steeh III, Senior District Judge for the

U.S. District Court for the Eastern District of Michigan, sitting by

designation.

2 UNITED STATES V. ONUOHA

SUMMARY**

Criminal Law

The panel vacated the district court’s order authorizing

the Bureau of Prisons to forcibly medicate the defendant to

restore his competency to stand trial, and remanded for

further proceedings, in a case in which the defendant was

charged under 18 U.S.C. §§ 844(e) and 1038(a)(1) for

making phone calls instructing authorities to evacuate the

Los Angeles International Airport.

Addressing the defendant’s challenges to the district

court’s conclusions on two of the requirements set forth in

Sell v. United States, 539 U.S. 166 (2003), the panel held that

there is an important government interest at stake in

prosecuting the defendant, but that the district court clearly

erred in finding that the proposed course of treatment was in

the defendant’s best medical interests.

COUNSEL

Hilary Potashner, Federal Public Defender; Brianna Fuller

Mircheff (argued), Deputy Federal Public Defender, Los

Angeles, California, for Defendant-Appellant.

Eileen M. Decker, United States Attorney; Patricia A.

Donahue, Assistant United States Attorney Chief, National

Security Division; Melissa Mills (argued) and Sarah J.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. ONUOHA 3

Heidel, Assistant United States Attorneys, Los Angeles,

California, for Plaintiff-Appellee.

OPINION

GOULD, Circuit Judge:

Nna Alpha Onuoha appeals the district court’s order

authorizing the Bureau of Prisons (BOP) to forcibly medicate

him to restore his competency to stand trial. Onuoha was

charged under 18 U.S.C. §§ 844(e) and 1038(a)(1) for

allegedly making phone calls to authorities at the Los

Angeles International Airport (LAX) instructing them to

evacuate the airport. He was found unfit to stand trial, and

the district court ordered him to be forcibly medicated

pursuant to Sell v. United States, 539 U.S. 166 (2003). We

have jurisdiction over interlocutory appeals of Sell orders

under the collateral order doctrine. Sell, 539 U.S. at 176. We

hold that the district court clearly erred in finding that the

proposed course of treatment was in Onuoha’s best medical

interests. We vacate the order and remand for further

proceedings consistent with this opinion.

I

Onuoha served in the National Guard from 2004 to 2012,

including a stint with a peacekeeping force in Kosovo. After

returning from Kosovo, Onuoha worked as a Transportation

Security Administration (TSA) screener at LAX from 2006

to September 2013. Except for the charges in this case, he

has no criminal history.

4 UNITED STATES V. ONUOHA

In the summer of 2013, Onuoha was suspended from his

job with TSA for comments made to a female passenger. On

September 10, 2013, Onuoha went to LAX on his day off and

passed through security screening at several terminals. He

then went to TSA headquarters at LAX and resigned from his

job. Hours later, he returned to TSA headquarters and left an

envelope for a former supervisor involved with his

suspension. The government alleges that Onuoha then called

a TSA checkpoint and said that LAX should be evacuated.

During the phone call, Onuoha mentioned the package he left

for his former supervisor, indicated that it should be read

immediately, and said that he would be watching to see if

LAX was evacuated. Onuoha then called the LAX Police

Department and his TSA supervisor, telling them to evacuate

the airport because he was going to “deliver a message” to

America and the world. The recipients of these calls believed

that Onuoha was threatening to set off bombs or open fire at

the airport. The envelope Onuoha left for his supervisor was

discovered to contain religious writings, and did not include

any explosives. Authorities decided not to evacuate the

airport, but they did evacuate TSA headquarters.

Law enforcement officials went to Onuoha’s apartment to

apprehend him. They found that he had cleared out all of his

belongings and left only a large note reading “09/11/2013

THERE WILL BE FIRE! FEAR! FEAR! FEAR!” This

message led police to believe that Onuoha was an active

shooter seeking to evacuate the airport so that he could target

and kill people as they fled. Information about Onuoha’s

military background and potential access to firearms fed these

concerns. It was later discovered that Onuoha had posted to

his personal website an open letter “To LAX Passengers”

with religious comments. This letter stated that “the news

UNITED STATES V. ONUOHA 5

media have probably come to the conclusion that I’m a

terrorist,” but also stated “I did not call for any threat.”

Later that same day, Onuoha called LAX police to say

that he heard law enforcement was looking for him. He told

police he was at a church in Riverside, California, and

described the car he was driving. He also told police that he

did not intend to make a bomb threat, only to “deliver” a

message. Onuoha waited at the church until law enforcement

arrived and arrested him. When he was interviewed by

police, he reiterated that he did not intend to make a threat,

stating that “[k]illing was not on my mind.”

On September 11, 2013, the day after Onuoha was

arrested, the government filed a complaint against Onuoha

and requested pre-trial detention. Onuoha was later indicted

on three counts in violation of 18 U.S.C. § 1038(a)(1) (false

information and hoaxes) and three counts in violation of

18 U.S.C. § 844(e) (making telephonic threats). At the

detention hearing, the government moved for a competency

evaluation, which Onuoha’s defense counsel opposed. The

motion was denied, and defense counsel indicated that

Onuoha intended to proceed to trial. In February 2014, the

defense gave notice that it would raise a diminished-capacity

defense and submitted a report that Onuoha suffered from

paranoid schizophrenia. The government again filed a

motion for a competency evaluation, which this time was

granted by the district court.

The evaluation was performed by Bureau of Prisons

(BOP) medical personnel. The evaluation revealed that

Onuoha believed that he received revelations from God and

had a message to preach, and that these beliefs rose to the

level of delusions. The evaluation concluded that Onuoha

6 UNITED STATES V. ONUOHA

was not competent to stand trial. The district court found

Onuoha incompetent to stand trial and committed him to BOP

custody to determine whether he could be restored to

competency.

BOP psychologist Dr. Angela Alden-Weaver and BOP

psychiatrist Dr. Robert Lucking evaluated Onuoha for several

months. They submitted their evaluation to the district court

in November 2014. They agreed with the finding that

Onuoha was incompetent to stand trial and diagnosed him

with schizophrenia. They also found that Onuoha was not a

danger to himself or others. They further determined that

anti-psychotic medication would likely restore Onuoha to

competency, and recommended a course of long-acting

Haldol (haloperidol decanoate), including specific dosages

and a timetable. The recommended treatment included an

initial test dose of 10 milligrams of short-acting Haldol,

followed by 24 hours of observation for adverse side effects.

The treatment plan then recommended three 150-milligram

doses of long-acting Haldol at two-week intervals to obtain

a therapeutic blood level. After gaining this blood level, the

treatment plan recommended 150 to 200 milligrams of Haldol

every four weeks. Dr. Lucking predicted that this treatment

would take around four months to restore Onuoha to

competency.

The government filed a motion for an order to

involuntarily medicate Onuoha with the goal of restoring him

to competency, relying on Sell v. United States, 539 U.S. 166

(2003). Onuoha’s attorneys opposed the motion. The district

court held several hearings that included taking testimony

from government witnesses Dr. Lucking and Dr. Bryan

Herbel, a second BOP psychiatrist. After the hearings, the

district court granted the government’s motion and ordered

UNITED STATES V. ONUOHA 7

Onuoha to be involuntarily medicated in accordance with Dr.

Lucking’s recommendations as articulated in his and Dr.

Weaver’s evaluation. Onuoha filed a timely interlocutory

appeal, and the district court stayed its order pending our

decision.

II

In Sell v. United States, the Supreme Court recognized

that the government may involuntarily medicate a defendant

charged with a serious crime to restore that defendant to

competency to stand trial. 539 U.S. at 179. The Supreme

Court held that a court may not grant a Sell motion unless the

government proves four factors:

(1) “that important governmental interests are

at stake” in prosecuting the defendant for the

charged offense; (2) “that involuntary

medication will significantly further those

concomitant state interests,” i.e., it is

substantially likely to restore the defendant to

competency and substantially unlikely to

cause side effects that would impair

significantly his ability to assist in his defense

at trial; (3) “that involuntary medication is

necessary to further those interests,” i.e., there

are no less intrusive treatments that are likely

to achieve substantially the same results; and

(4) “that administration of the drugs is

medically appropriate, i.e., in the patient’s

best medical interest in light of his medical

condition.”

8 UNITED STATES V. ONUOHA

United States v. Ruiz-Gaxiola, 623 F.3d 684, 687–88 (9th Cir.

2010) (quoting Sell, 539 U.S. at 180–81) (emphasis in Sell).

Each of these factors must be proven by clear and convincing

evidence. Id. at 692. Orders based on Sell authorizing

involuntary medication are “disfavored.” United States v.

Rivera-Guerrero, 426 F.3d 1130, 1137 (9th Cir. 2005).

The district court found that all four Sell factors were

satisfied. On this appeal Onuoha challenges only the district

court’s conclusions on the first and fourth factors, and so we

limit our discussion, first, to whether important government

interests are at stake in prosecuting Onuoha and, second, to

whether administration of the prescribed drugs is medically

appropriate, i.e., in the patient’s best medical interests in light

of his medical condition. We conclude that the first factor is

met but that the fourth factor is not: there is an important

governmental interest in prosecuting Onuoha, but the

proposed treatment is not in his best medical interests.

A

Under Sell we first address whether important

governmental interests support prosecuting Onuoha. We

review this factor de novo. Ruiz-Gaxiola, 623 F.3d at 693.

The Sell Court recognized that “[t]he Government’s interest

in bringing to trial an individual accused of a serious crime is

important,” but it also noted that “[s]pecial circumstances

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

180. The Court mentioned several examples of “special

circumstances” that diminish the government’s interest in

prosecution, including the potential for civil commitment, the

length of time needed to restore a defendant to competency,

the effect of the potential delay on the government’s interest

in timely prosecution, the length of time the defendant has

UNITED STATES V. ONUOHA 9

already been confined, and constitutional requirements of a

fair trial. Id.

Our analysis of the first Sell factor proceeds as a two-step

inquiry. In our first step, we consider whether the alleged

crime is sufficiently “serious” to establish an important

governmental interest. See United States v. Gillenwater,

749 F.3d 1094, 1101 (9th Cir. 2014); Ruiz-Gaxiola, 623 F.3d

at 693. If an important governmental interest is established,

we evaluate in the second step of this analysis whether any

“special circumstances” lessen that interest. Gillenwater,

749 F.3d at 1101; Ruiz-Gaxiola, 623 F.3d at 693–94. This

second step requires measuring any mitigating circumstances

against the established government interest. See, e.g., United

States v. Brooks, 750 F.3d 1090, 1097 (9th Cir. 2014)

(explaining that courts must consider whether a potential

sentence is outweighed by the likelihood of civil commitment

and the length of time a defendant has already served).

Onuoha argues that the district court erroneously treated

the first Sell factor as a totality-of-the-circumstances test. We

agree that a totality test is inappropriate in the context of the

first Sell factor. A relatively weak governmental interest

could not properly prevail in scenarios without mitigating

circumstances, because the Sell Court held that “important

governmental interests” must be implicated to justify forcible

medication. Sell, 539 U.S. at 180 (emphasis in the original).

Our two-step approach helps to ensure that the interests at

stake are important. If the government cannot demonstrate at

the outset that its interest in prosecution meets a significant

threshold, the inquiry ends there.

10 UNITED STATES V. ONUOHA

1

We next address the facts here. We must consider

whether Onuoha’s charged crimes are sufficiently “serious”

to indicate an important governmental interest. We have

previously held that the U.S. Sentencing Guidelines range is

“the appropriate starting point” because it is the “best

available predictor of the length of a defendant’s

incarceration.” United States v. Hernandez-Vasquez,

513 F.3d 908, 919 (9th Cir. 2007). Both parties agree that the

Sentencing Guidelines range for Onuoha’s alleged crimes is

27 to 33 months. This range is lower than any range we have

previously held to be indicative of a “serious” crime under the

first Sell factor. See, e.g., Gillenwater, 749 F.3d at 1101

(range of 33 to 41 months); Ruiz-Gaxiola, 623 F.3d at 694

(range of 100 to 125 months); Hernandez-Vasquez, 513 F.3d

at 911–12 (range of 92 to 115 months).

But the Guidelines range is only the starting point in

determining whether the government has an important

interest in prosecution. Brooks, 750 F.3d at 1097. In Sell, the

Supreme Court stated that courts also “must consider the facts

of the individual case in evaluating the Government’s interest

in prosecution.” 539 U.S. at 180. Although our analysis

begins with the Guidelines range, it is not “the only factor

that should be considered” because it does “not reflect the full

universe of relevant circumstances.” Hernandez-Vasquez,

513 F.3d at 919.

In addition to the Guidelines range, we have previously

considered the specific facts of the alleged crime as well as

the defendant’s criminal history. In Gillenwater, for

example, we determined that the defendant’s threats to choke,

rape, and kill government officials and employees was

UNITED STATES V. ONUOHA 11

sufficiently serious criminal conduct to satisfy the first Sell

factor despite the low Guidelines range of 33 to 41 months.

749 F.3d at 1101. And in both Ruiz-Gaxiola and Hernandez-

Vasquez, we considered the defendants’ extensive criminal

history in concluding that the crimes at issue were sufficiently

serious. Ruiz-Gaxiola, 623 F.3d at 694; Hernandez-Vasquez,

513 F.3d at 919.

Onuoha has no criminal history and his Guidelines range

is low. But even so, when we look at the substance of

Onuoha’s conduct, the stress he placed upon the airport’s

security systems, and the nature of the crimes charged, we

conclude that Onuoha’s criminal conduct is without doubt

sufficiently serious to support a strong governmental interest.

It is not just that he is the subject of prosecution; as the

Fourth Circuit notes, this is a “truism[] applicable to any case

where the government seeks forcible medication: without a

prosecution, there would be no case.” United States v. White,

620 F.3d 401, 413 n.9 (4th Cir. 2010) (emphasis in the

original). Rather, Onuoha’s alleged conduct threatened “the

basic human need for security” to such an extent that it

weighs heavily in favor of an interest in prosecution. Sell,

539 U.S. at 180. Onuoha is accused of making phone calls to

LAX officials on the eve of the anniversary of the September

11th attacks, urging evacuation of the airport. These phone

calls were reasonably perceived as terrorism threats, and they

considerably disrupted airport activities and diverted law

enforcement resources. The government did not merely have

an interest in incarcerating Onuoha for a time for this

conduct. It had an interest in gaining a trial conviction to

show others that such conduct will result predictably in

conviction and a serious penalty of incarceration.

12 UNITED STATES V. ONUOHA

Onuoha argues that his alleged criminal conduct is not

sufficiently serious because his statements were “cryptic” and

not specifically violent in nature. He has also continually

maintained that he did not intend to threaten anyone, only to

“deliver” a message. We conclude that these arguments are

unavailing. Onuoha knew or reasonably should have known

that the recipients of his phone calls would assume he was

threatening terrorism. Terrorism, whether real or perceived,

threatens our need for security. We agree with the district

court’s assessment that “[t]hreats of terrorism, whether

genuine or fraudulent, are of grave severity, particularly when

they involve a highly populated public venue such as an

airport.”

The district court also considered Onuoha’s potential for

future violence as strengthening the need for prosecution.

This consideration was wholly unnecessary to justify

involuntary medication for the purpose of permitting trial and

conviction. And reliance on Onuoha’s dangerousness was

potentially an error. Whether a defendant should be

involuntarily medicated because they pose a danger to

themselves or others is governed by a separate test,

articulated in Washington v. Harper, 494 U.S. 210, 227

(1990). Courts should “remain mindful of the Supreme

Court’s distinction between the purposes and requirements of

involuntary medication to restore competency and

involuntary medication to reduce dangerousness. It should

take care to separate the Sell inquiry from the Harper

dangerousness inquiry and not allow the inquiries to collapse

into each other.” Hernandez-Vasquez, 513 F.3d at 919.

Additionally, the record contains no firm evidence that

Onuoha is an actual danger to himself or others, or that he

will become a danger in the future. Drs. Lucking and Weaver

specifically noted in their evaluation that Onuoha did not

UNITED STATES V. ONUOHA 13

pose a threat to himself or others and would not qualify for

involuntary medication under the Harper analysis.

2

Because the alleged crime is sufficiently serious to

support a governmental interest in prosecution, we proceed to

the second step of the first Sell factor and consider any

“[s]pecial circumstances [that] may lessen the importance of

that interest.” Sell, 539 U.S. at 180. Onuoha argues that the

time he has already spent in custody constitutes a “special

circumstance” and diminishes the government’s interest in

incapacitating him. Sell suggests that length of time a

defendant has already spent in confinement is a mitigating

factor, although it “does not totally undermine” the need for

prosecution. Id. Onuoha has been incarcerated since

September 2013 and has already served more time than the

minimum Guidelines range of 27 months. Possibly, if

Onuoha is ultimately restored to competency and convicted,

he may conceivably be sentenced to time served. However,

a sentence might also include a period of supervised release,

which “would help ensure that [Onuoha] does not return to

making threats when released into the public.” Gillenwater,

749 F.3d at 1102. Additionally, there is an important

distinction between incarceration itself, and the significance

for society of gaining a criminal conviction for a defendant’s

violation of the law. A conviction and resulting sentence

serves more purposes than the incapacitation, specific

deterrence, and rehabilitation of an individual; general

deterrence of the serious crime at issue here is also an

important consideration. See, e.g., Furman v. Georgia,

408 U.S. 238, 343 (1972) (per curiam) (Marshall, J.,

concurring) (“Our jurisprudence has always accepted

deterrence in general, deterrence of individual recidivism,

14 UNITED STATES V. ONUOHA

isolation of dangerous persons, and rehabilitation as proper

goals of punishment.”); United States v. Barker, 771 F.2d

1362, 1368 (9th Cir. 1985) (“[P]erhaps paramount among the

purposes of punishment is the desire to deter similar

misconduct by others.”); 18 U.S.C. § 3553(a)(2)(B) (courts

should consider “adequate deterrence to criminal conduct” in

selecting a sentence).

Here, the government had a valid interest in prosecuting

Onuoha for generating public fear over terrorism. That

interest of the government cannot be served by mere

detention; instead, general deterrence for the benefit of

society is served when a person is convicted of a serious

crime, thus deterring others from making the same mistake.

We conclude that in this case, the particular circumstance of

Onuoha’s detention does not displace the governmental

interest in prosecution.

There are no other circumstances that diminish the

governmental interest in prosecution. Nothing in the record

indicates that Onuoha is a candidate for civil commitment,

and Onuoha has not argued that any delay resulting from the

restoration process will interfere with the government’s

interest in timely prosecution or his constitutional rights to a

fair trial. See Sell, 539 U.S. at 180. We agree with the

district court’s finding that the alleged crimes are sufficiently

serious to support an important governmental interest and that

special circumstances do not diminish the importance of that

interest. The first Sell factor is satisfied.

B

To satisfy the fourth Sell factor, we must conclude that

the proposed treatment plan is “medically appropriate, i.e., in

UNITED STATES V. ONUOHA 15

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

condition.” Sell, 539 U.S. at 181 (emphasis in the original).

Whether the course of treatment recommend by the BOP is in

Onuoha’s best medical interests is a question of fact reviewed

for clear error. Hernandez-Vasquez, 513 F.3d at 916–17.

This is a deferential standard. See Easley v. Cromartie,

532 U.S. 234, 242 (2001). We may not reverse a factual

finding without a “definite and firm conviction that a mistake

has been committed.” Id. (quoting United States v. United

States Gypsum Co., 333 U.S. 364, 395 (1948)).

The district court adopted Dr. Lucking’s recommended

treatment as articulated in his and Dr. Weaver’s evaluation.

The proposed treatment includes an initial test dose of 10

milligrams of short-acting Haldol in the first 24 hours,

followed by three 150-milligram doses of the long-acting

version of Haldol at two-week intervals until a therapeutic

blood level is obtained. Onuoha raises several objections to

this treatment, arguing that the district court clearly erred in

concluding that Dr. Lucking’s recommendation is in his best

medical interest. He primarily argues that the course of

treatment increases the risk of side effects; the dosage is

significantly higher than is generally recommended; and the

use of long-acting Haldol does not conform to the community

standard of care.

We first address Onuoha’s concerns about the

“extrapyramidal” (neurological) side effects of Haldol,

including dystonia (muscle contractions that cause abnormal

twisting postures), akathisia (the urge to move continuously),

and pseudoparkinsonism (drug-induced Parkinson’s disease).

Onuoha also points to other, similarly serious, side effects,

some of which increase the risk of death. The district court

heard testimony from Dr. Lucking that side effects at the

16 UNITED STATES V. ONUOHA

recommended dosage of Haldol were infrequent and easily

treatable with anticholinergic medication. Based on this

testimony, the district court made “the factual finding that the

treatment plan proposed by the government is unlikely to

cause [Onuoha] significant side effects” and that involuntary

medication was in Onuoha’s best medical interest given the

“significant delusions that have impacted his life.”

In Gillenwater, which involved similar testimony from

the same Dr. Lucking regarding haloperidol deconoate (long-

acting Haldol), we held that the district court did not clearly

err in determining that medication was in the defendant’s

“best medical interest when the potential harms and benefits

of the treatment are viewed against the seriousness of his

condition.” 749 F.3d at 1105. However, we did not consider

the recommended dosage in Gillenwater. Here, the district

court heard testimony from Dr. Lucking that side effects are

more likely to occur at higher doses. As Onuoha argued

during the Sell hearing and maintains on appeal, Dr.

Lucking’s recommended dose is much higher than the BOP’s

own internal recommendations. The district court did not

consider this contention in its written analysis.

Under the recommended treatment, Dr. Lucking proposed

injecting Onuoha with 10 milligrams of short-acting Haldol

to observe adverse side effects for 24 hours before

administering 150 milligrams every two weeks for the first

three doses. This dosage equates to 300 milligrams of long-

acting Haldol in the first month of treatment. The BOP

recommendations list the starting dose of short-acting Haldol

at two to five milligrams per day, and the starting dose of

long-acting Haldol at 25 to 50 milligrams every two weeks.

The manufacturer of Haldol and the Physicians’ Desk

Reference (PDR) similarly recommend a short-acting Haldol

UNITED STATES V. ONUOHA 17

test dose of two to five milligrams and state that the initial

injections of long-acting Haldol should not exceed 100

milligrams. Dr. Lucking’s recommended test dose is two to

five times the BOP’s starting recommendation, and his

recommended starting dose for long-acting Haldol is three to

six times the BOP’s starting recommendation. Also, the

BOP’s recommended dose—after a starting dose—for long-

acting Haldol is 50 to 200 milligrams every two to four

weeks, and its maximum recommended dose is 300

milligrams every three to four weeks. Dr. Lucking’s plan

skips the starting dose and goes straight to the maximum dose

of 300 milligrams per month.

Dr. Lucking testified that he regularly administers these

starting doses “so that treatment moves on in a more rapid

manner and [the recipient] can be restored in a more timely

manner.” But restoring competency quickly is not a

controlling concern under the fourth Sell factor—only best

medical interests are considered. Dr. Lucking did not set

forth any explanation why a dose above what is generally

recommended is in Onuoha’s best medical interests. Dr.

Lucking suggests only that it would let Onuoha reach a

therapeutic blood level faster.

The government contends that the BOP’s internal

standards are just “recommendations” that are not binding on

a prescribing doctor. This observation is insufficient

affirmatively to demonstrate that a high dosage is in

Onuoha’s best medical interest, which the government must

prove by clear and convincing evidence. Ruiz-Gaxiola,

623 F.3d at 692. The government also argues that the

recommendations were not written with restoration in mind.

But the pertinent consideration under the fourth Sell factor is

not restoration, but best medical interest.

18 UNITED STATES V. ONUOHA

Also, the district court appears to have miscalculated the

amount of long-acting Haldol that Onuoha would receive in

the first month. The district court incorrectly stated that

Onuoha “would be administered doses of 150 milligrams on

a monthly basis,” which the district court described as “on the

lower end of typical doses of this medication.” In fact, under

Dr. Lucking’s recommended treatment, Onuoha would

receive 300 milligrams in the first month, followed by 150

milligrams in the subsequent months. As previously noted,

300 milligrams as a starting dose is three to six times higher

than the BOP’s starting recommendation, and is the

maximum recommended by the BOP as a non-starting dose.

In light of the recommendations of the BOP and other

medical sources, 300 milligrams cannot accurately be

described as a low starting dose, or even a low dose. Because

the district court miscalculated the dosage and failed to take

into account the BOP dosage recommendations, it clearly

erred in concluding that the proposed treatment was in

Onuoha’s best medical interest.

Onuoha also argues that the long-acting form of Haldol

recommended will not allow doctors to monitor side effects

and adjust his dosage as they would on short-acting Haldol.

The district court did not consider this point in its written

analysis, although it was raised and discussed at the Sell

hearing. At the hearing, Onuoha pointed out that the PDR

recommends that physicians stabilize patients on short-acting

drugs before injecting them with long-acting Haldol. The

manufacturer of Haldol also recommends that patients should

only be treated with long-acting Haldol if they are stable and

able to tolerate the short-acting version of Haldol. Dr.

Lucking recommended against the use of short-acting Haldol

because it would require daily injections that would be

“traumatic” for Onuoha and would put the treating staff at

UNITED STATES V. ONUOHA 19

risk, although he later acknowledged that Onuoha would

likely acquiesce to injections with “a minimum of resistance.”

Another government witness, Dr. Bryon Herbel, testified that

long-acting Haldol is used in federal prisons because prison

doctors are “trying to balance managing . . . the side effects

with the safety of repeated use of force . . . . So you look at

the—the risk of, say, getting injured in a repeated forced cell

extraction, that’s not a minimal risk.”

The district court appears to have accepted these expert

witnesses’ explanation that short-acting Haldol was not

appropriate for Onuoha. In response to Onuoha’s arguments

at the Sell hearing, the court noted, “[Dr. Herbel] said in the

custodial setting, that the PDR, Physicians’ Desk Reference,

is set up for volunteers out of custody and that—the custodial

situation is not set up to engage in the short-term.” However,

penological interests do not control under the fourth Sell

factor, which considers only “the patient’s best medical

interest in light of his medical condition.” Sell, 539 U.S. at

181. It may be significant that the Sell Court used the word

“patient” in its explanation of this factor, as opposed to the

word “defendant”—a choice that “serves to emphasize that,

in analyzing this factor, courts must consider the long-term

medical interests of the individual rather than the short-term

institutional interests of the justice system.” Ruiz-Gaxiola,

623 F.3d at 703. The record clearly indicates that

stabilization on a short-acting anti-psychotic before the

introduction of long-acting Haldol is the community standard

of care. We agree with Onuoha that “best medical interests

are best medical interests, whether that individual is in

custody or in the community.”

We acknowledge that courts must rely on the testimony

of medical experts in evaluating the constitutionality of

20 UNITED STATES V. ONUOHA

involuntary medication. But a physician’s word is not

absolute, not even the word of a reputable and experienced

doctor. Although Dr. Lucking has administered involuntary

medication hundreds of times, his recommendations are still

subject to Sell’s rigorous analysis. See United States v.

Watson, 793 F.3d 416, 424–27 (4th Cir. 2015) (holding that

Dr. Lucking’s proposed treatment did not satisfy the second

Sell factor); United States v. Grigsby, 712 F.3d 964, 975–76

(6th Cir. 2013) (holding that Dr. Lucking’s proposed

treatment did not satisfy the Sell analysis). On remand, the

district court should evaluate Dr. Lucking’s proposed

treatment plan against the recommendations of other medical

sources in the record, as well as consider any other pertinent

evidence.

III

Involuntary medication orders are disfavored in light of

the significant liberty interest at stake. Rivera-Guerrero,

426 F.3d at 1137. The government must demonstrate by clear

and convincing evidence that all four of the Sell factors are

satisfied. Ruiz-Gaxiola, 623 F.3d at 692. Here, we conclude

the fourth factor is lacking, and the district court clearly erred

in finding that the proposed treatment was in Onuoha’s best

medical interest. The record demonstrates that the proposed

treatment includes dosages higher than are generally

recommended and that the use of a long-acting medication

does not conform to the standard of care. Although we

recognize that the district court took pains to be careful and

fair-minded about its decision, we have the firm conviction

that the factual finding that the medication is in Onuoha’s

best medical interest is error on the current record. Although

Dr. Lucking testified that the medication and dosage was

appropriate, we conclude that the district court could not

UNITED STATES V. ONUOHA 21

credit his testimony on that point without exploring and

answering the questions posed by contradictory evidence in

the record. We vacate the district court’s order and remand

on an open record for all four Sell factors for proceedings

consistent with this opinion.1

VACATED and REMANDED.

1

We do not intend to express any view about what drug and dosage may

be in Onuoha’s best medical interests, when considered against a more

complete record or analysis. However, we do intend for the district court

to address the concerns we have identified.