United States v. Jean-Paul Gamarra

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 6, 2019 Decided October 4, 2019

No. 18-3082

UNITED STATES OF AMERICA,

APPELLEE

v.

JEAN-PAUL GAMARRA,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:17-cr-00065-1)

Lisa B. Wright, Assistant Federal Public Defender, argued

the cause for appellant. With her on the briefs was A.J. Kramer,

Federal Public Defender. Tony Axam Jr. and David W. Bos,

Assistant Federal Public Defenders, entered appearances.

Nicholas P. Coleman, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Jessie K. Liu,

U.S. Attorney, and Elizabeth Trosman, and Chrisellen R. Kolb,

Assistant U.S. Attorneys.

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Before: ROGERS and PILLARD, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

RANDOLPH.

Concurring opinion filed by Circuit Judge PILLARD.1

RANDOLPH, Senior Circuit Judge: This is a criminal case.

The defendant, Jean-Paul Gamarra, appeals from an order of the

district court. The order authorized the government to medicate

him without his consent for the purpose of rendering him

competent to stand trial.

Questions about Gamarra’s soundness of mind arose from

these largely undisputed circumstances of his arrest on March

28, 2017. Gamarra approached a Secret Service Agent stationed

near the Treasury Department Building, adjacent to the White

House. Gamarra told the Agent that he had a package

containing a “nuclear bomb detonator or defuser.” The Agent

ordered Gamarra to place his package on the ground. On the

package were messages: “Warning this is a tre threat on the

President and Senator life Secure Keyboard to be Reversed

Engineered,” and “Warning 100% threat Brand New Electronic

Detonator Device president Secrete Servisce Explosive

technology Department.” On the package’s label was this:

“Blue tooth Bomb Explosion Component.”

In response, the Agent arrested Gamarra while other law

enforcement officers closed the surrounding areas to pedestrian

and vehicular traffic for an hour and a half. When officers

1

NOTE: Portions of the concurring opinion contain Sealed

Information, which has been redacted.

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examined Gamarra’s package they found only an ordinary

Bluetooth keyboard.

A grand jury indicted Gamarra for threatening bodily harm

to the President (18 U.S.C. § 871) and for conveying false

information concerning the use of an explosive (18 U.S.C.

§ 844(e)).

Gamarra’s actions raised doubts about whether he was

competent to stand trial. On the government’s motion, the

magistrate judge ordered Gamarra committed to custody for the

purpose of evaluating his competency. A forensic psychologist

examined Gamarra and concluded that he suffered from a

‘schizoaffective disorder’ and that he was not competent to

stand trial. After a hearing, the Magistrate Judge agreed and

issued an order under 18 U.S.C. § 4241(d) committing Gamarra

to continuing custody for the purpose of determining whether he

could become competent. This subsection provides, in part:

The Attorney General shall hospitalize the defendant

for treatment in a suitable facility . . . for such a

reasonable period of time, not to exceed four months,

as is necessary to determine whether there is a

substantial probability that in the foreseeable future he

will attain the capacity to permit the proceedings to go

forward[.]

After some delay, Gamarra was transferred to the Federal

Medical Center, Butner, North Carolina. A psychology intern

at Butner and her supervisor, a forensic psychologist, attended

to Gamarra and signed a report. From multiple clinical

evaluations, interviews and observations, they concluded that

Gamarra suffered from delusional thinking and disorganized

speech. His medical history and the accounts of his family

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members indicated that he could not become competent without

anti-psychotic medicine. At Butner, Gamarra started taking the

prescribed medication, but within a short time became

noncompliant.

The government therefore moved for an order authorizing

involuntary medication. After a three-day evidentiary hearing,

the Magistrate Judge recommended denying the motion on the

ground that the government failed to provide treatment to

Gamarra within the four month period specified in 18 U.S.C. §

4241(d)(2). The district court rejected the recommendation and

granted the government’s motion, concluding that under Sell v.

United States, 539 U.S. 166 (2003), “the government had met its

burden of proof with respect to each of the four Sell factors.”

United States v. Gamarra, 2018 WL 5257846, *9 (D.D.C.

2018).

Gamarra’s appeal is limited to the district court’s rulings on

two of the four Sell factors the second and the fourth. The

second Sell factor requires the government to establish that “the

administration of the drugs is substantially likely to render the

defendant competent to stand trial” and “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 fourth Sell factor requires the government to establish

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

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

condition.” Id.

The district court’s conclusions in favor of the government

must rest on “clear and convincing evidence.” United States v.

Dillon, 738 F.3d 284, 291 (D.C. Cir. 2013). Our review of those

conclusions is for “clear error.” Id. Under this standard, we

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may reverse only “if (1) the findings are ‘without substantial

evidentiary support or … induced by an erroneous application

of the law’; or if (2) ‘on the entire evidence [we are] left with the

definite and firm conviction that a mistake has been committed.”

Id. at 297 (quoting Cuddy v. Carmen, 762 F.2d 119, 124 (D.C.

Cir. 1985)).

Gamarra’s objections to the district court’s assessment of

the second Sell factor are that the court should not have relied on

the opinion of Butner’s head psychiatrist Logan Graddy, M.D.

because Dr. Graddy did not personally examine Gamarra, and

because he ignored Gamarra’s recollection and his medical

records regarding the side effects he experienced when he took

anti-psychotic medications in the past.

Although Dr. Graddy acknowledged that it was “unusual”

and “unfortunate” that he was offering an opinion without a

personal examination, Gamarra has failed to identify how the

lack of a personal examination compromised Dr. Graddy’s

conclusion that the second Sell factor was satisfied. Moreover,

courts have relied on experts who reached their opinions based

on a review of a patient’s medical records and other information

without personally conducting an examination. See Jones v.

Sec’y, Fla. Dep’t Of Corr., 834 F.3d 1299, 1315 16 (11th Cir.

2016) (collecting cases in which courts relied on a medical

expert who had not personally examined the patient). As the

district court noted, an opinion of the American Psychiatric

Association’s Ethics Committee then in effect concluded that it

was both ethical and common for a “‘forensic expert to offer

opinions’ based on review of records and without examining the

defendant in person.” Gamarra, 2018 WL 5257846 at *10

(quoting American Psychiatric Ass’n, Opinions of the Ethics

Committee on The Principles of Medical Ethics 35 (2017),

available at https://www.psychiatry.org/psychiatrists/practice/

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ethics)). The government’s burden here was higher than under

the common preponderance of evidence standard. But Gamarra

has identified no countervailing authority connecting the lack of

personal examination with a failure to meet that burden.

The district court also did not clearly err in concluding that

the prescribed medication was substantially unlikely to cause

side effects impairing Gamarra’s ability to assist his counsel.

Dr. Graddy reviewed Gamarra’s medical history, including

medical records of Gamarra’s previous experiences taking anti-

psychotic medication. Dr. Graddy based his judgment on those

records, on his clinical experience, and on his review of the

medical literature regarding the effects of anti-psychotic

medication. Gamarra argues that Dr. Graddy’s conclusion

affords insufficient weight to Gamarra’s experiences in taking

anti-psychotic medication. Dr. Graddy acknowledged the side

effects and explained how they would be managed if they

recurred. The District Court did not clearly err in crediting Dr.

Graddy’s opinion. We assume that Gamarra will be returned to

FMC Butner and that, as Dr. Graddy testified, the medical

personnel at that facility will adjust Gamarra’s medication to

minimize side effects. Were side effects to require attention

while Gamarra is in the District of Columbia awaiting trial or

during trial, the district court should ensure appropriate medical

personnel will promptly respond.

Accordingly, the district court did not commit any clear

error regarding the second Sell factor.

Gamarra’s arguments regarding the fourth Sell factor

overlap with his arguments regarding the second Sell factor. We

are again told that the district court should not have credited Dr.

Graddy’s opinion on medical appropriateness because he did not

interview Gamarra. Once again, Gamarra has failed to identify

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how the district court clearly erred in relying on Dr. Graddy’s

testimony to determine that the government satisfied the fourth

Sell factor. The fact that Dr. Graddy did not personally examine

Gamarra does not detract from his finding that Gamarra’s

symptoms would be ameliorated through medication. Dr.

Graddy understood Gamarra’s condition from his review of the

medical records and reports of forensic psychologists who

interacted with Gamarra. We therefore believe Gamarra has

presented no basis for concluding that the district court clearly

erred in relying on Dr. Graddy to conclude that involuntary

medication would be in Gamarra’s best medical interests.

For the reasons stated above, the district court’s order

authorizing involuntary medication is

Affirmed.

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PILLARD, Circuit Judge, concurring: 1 A district court

order authorizing the forcible medication of an incompetent

defendant has serious consequences, implicating the

defendant’s “significant constitutionally protected liberty

interest in avoiding the unwanted administration of anti-

psychotic drugs.” Sell v. United States, 539 U.S. 166, 178

(2003) (internal quotation marks omitted) (quoting Washington

v. Harper, 494 U.S. 210, 221 (1990)). Medication “changes

one’s mental state—one’s very thought processes—and in a

way that can’t be resisted by any effort.” Elyn R. Saks,

Refusing Care: Forced Treatment and the Rights of the

Mentally Ill 87 (2002). State-imposed medication raises the

stakes even further, conjuring up plots of dystopian science

fiction.

The Supreme Court has held that forced medication to

render a defendant competent for trial is intended to be “rare,”

appropriate only when the four specified “Sell” factors are

satisfied. Sell, 539 U.S. at 180. These factors permit forcible

medication only where (1) “important governmental interests

are at stake”; (2) “involuntary medication will significantly

further those concomitant state interests” by administration of

drugs “substantially likely to render the defendant competent

to stand trial” and “substantially unlikely to have side effects

that will interfere significantly with the defendant’s ability to

assist counsel in conducting a trial defense”; (3) “involuntary

medication is necessary to further [state] interests”; and (4)

“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. In the aftermath of Sell,

lower courts have further acknowledged the gravity of this step

by requiring the government to demonstrate that the Sell factors

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NOTE: Portions of this opinion contain Sealed

Information.

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are met by clear and convincing evidence. See, e.g., United

States v. Dillon, 738 F.3d 284, 291-92 (D.C. Cir. 2013)

(collecting cases).

The government must exercise exacting diligence to meet

its burden. The grave risks involuntary psychotropic

medication pose to a person’s liberty and autonomy—his say

over what is done to his own brain—call for heightened

attention. This is especially so given the broader context in

which forcible medication may occur. Not only does the

government control whether to initiate prosecution against

incompetent defendants, it oversees the medical personnel in

federal facilities who observe such defendants and, where

warranted, treats them, and it determines in the first instance

whether such defendants have been rendered competent for

trial. As a result, the government almost always has superior

expertise and access to information than does defense counsel

or the courts. Defense counsel, for their part, face extra

challenges posed by the imperative to mount the most powerful

and comprehensive defense while guided by the wishes of a

client who, even though not competent for trial, retains legal

authority to direct his representation. These unusual

background conditions strain our adversary system.

This case illustrates these complexities and raises

questions about whether the government has met its burden

under the demanding Sell standard. The government seeks to

medicate Gamarra against his will based almost exclusively on

the report and testimony of a single psychiatrist, Dr. Graddy,

without requiring or outlining any specifics regarding the

dosage and timeframe of the envisioned course of treatment, in

a context where Gamarra has already spent longer in detention

than he will for any sentence he is likely to receive. By the

time of the Sell hearing, Gamarra had been detained for seven

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months, but Dr. Graddy had not met with him, and it does not

appear that any psychiatrist or other health care provider sought

to establish a consistent therapeutic relationship with him. The

record is thin—quite frankly, thinner than it should be—as to

the current importance of the government’s interest in this

prosecution, the details and rationales of the planned treatment,

the extent to which voluntary compliance was meaningfully

sought as a less restrictive means, and whether the specific drug

chosen is the best one.

Most of the questions these circumstances evoke were not

raised on appeal. And our review is for clear error. The

standard of review reflects the institutional advantage of

district courts’ first-hand evaluation of factual circumstances—

an advantage especially significant in the context of highly

contextual decisions regarding psychiatric intervention. I

therefore join the panel opinion. Nonetheless, because

approving the forcible administration of medication here

without additional comment threatens “the sensitive balancing

required by Sell in light of the significant liberty interests

implicated by forcible medication,” id. at 296, I write

separately to highlight benchmarks we expect the government

to meet when requesting approval for forcible medication

going forward, with the hope that these benchmarks provide

useful guidance to district courts evaluating such motions in

future cases.

I.

The government must show by clear and convincing

evidence that it has a continuing, important interest in forcibly

medicating an incompetent defendant. Sell, 539 U.S. at 180.

Satisfying that first Sell factor requires the government to

provide affirmative answers to “two distinct questions”: First,

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“whether the charged crime is ‘serious,’ because the

Government’s interest in a prosecution generally qualifies as

‘important’ when the defendant is charged with a serious

crime”; and, second, whether no ‘“[s]pecial circumstances . . .

lessen the importance of that interest.’” Dillon, 738 F.3d at 292

(quoting Sell, 539 U.S. at 180). The government’s ordinarily

strong interest in prosecuting serious crimes may be offset

where there are countervailing considerations, such as “the

prospect of lengthy civil commitment” or “an extended period

of pretrial detention.” Id.; see also Sell, 539 U.S. at 180.

Subjecting a defendant to an extended period of pretrial

detention may lessen the government’s penal interest to the

point that it no longer justifies forcibly medicating the

defendant. Gamarra has been in detention on these charges

since March 28, 2017. See Gamarra Rule 28(j) Letter (filed

9/6/19). The government calculated Gamarra’s likely

Guidelines range, in the event that he is convicted of the

charges against him, to be from 21 to 27 months in prison. J.A.

100. We have yet to decide this issue, but other circuits, faced

with charged crimes they treat as “serious,” compare the

recommended Guidelines range that the defendant is likely to

face if convicted to the amount of time the defendant has

already spent in custody. See, e.g., United States v. Berry, 911

F.3d 354, 362-63 (6th Cir. 2018); United States v. Grigsby, 712

F.3d 964, 973-74 (6th Cir. 2013); United States v. Ruiz-

Gaxiola, 623 F.3d 684, 694 (9th Cir. 2010); United States v.

White, 620 F.3d 401, 413-19 (4th Cir. 2010). They do so

because the Bureau of Prisons is required to credit pre-trial

detention toward any term of imprisonment imposed, see 18

U.S.C. § 3585(b)(1), and because “[w]here a defendant has

already served sufficient time that a guilty verdict will result

only in a sentence of time served, the deterrent effect of

imprisonment has evaporated,” Berry, 911 F.3d at 363. The

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government has already detained Gamarra for longer than the

recommended Guidelines range. It will need to detain him for

several more weeks to medicate him and bring him to trial.

Whatever specific deterrent effect a post-conviction term of

imprisonment is supposed to have on the defendant, section

3585(b)(1) tells us, will be effectively achieved by that time.

Governmental interests in criminal prosecution extend

beyond incapacitation and deterrence of the particular

defendant. Sell, 539 U.S. at 186; Dillon, 738 F.3d at 296. They

include the “significance for society” of a prosecution,

including achieving general deterrence. United States v.

Onuoha, 820 F.3d 1049, 1056 (9th Cir. 2016); see also United

States v. Gutierrez, 704 F.3d 442, 451 (5th Cir. 2013). The

government may also pursue a prosecution to secure a term of

supervised release with specified conditions that follow

incarceration. See Onuoha, 820 F.3d at 1056; United States v.

Mackey, 717 F.3d 569, 575 (8th Cir. 2013); Gutierrez, 704 F.3d

at 451. The law places a burden on the government up to the

time of forcible administration of psychotropic medication to

have a current, important interest in prosecuting the defendant

that suffices to justify that grave intrusion. The government

has not explained in any but the most general terms how these

interests are promoted by the prosecution of Gamarra. We do

not, however, resolve the issue here because Gamarra has

failed to appeal the district court’s conclusion that the first Sell

factor has been satisfied.

II.

The government may forcibly medicate a defendant only

where no treatment short of forced medication would render

the defendant competent to stand trial, such that “involuntary

medication is necessary to further” the government’s interest

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in prosecution. Sell, 539 U.S. at 181. In other words, a court

cannot approve involuntary administration of psychotropic

medication unless the government produces clear and

convincing evidence that any “alternative, less intrusive

treatments are unlikely to achieve substantially the same

results.” Id. Of particular import is whether medical staff have

adequately attempted to encourage the patient’s voluntary

compliance with a medication regimen before they resort to

administering medication by force.

Here, too, Gamarra fails to make any argument on appeal.

Indeed, with the government focused on obtaining

authorization to administer medication even over Gamarra’s

objections, and Gamarra insisting that no medication is

necessary to render him competent, neither party fully explored

what would appear to be critical terrain: Which treatment

regimen is most likely to achieve the best results in pursuit of

the public interest with the least intrusion on the defendant’s

fundamental rights. The record convincingly supports the

conclusion that medication is an essential ingredient to

restoration of Gamarra’s competence. But that is hardly the

end of the medical or legal story.

The record does not paint a clear picture as to how or

whether the government considered medically informed

measures to enhance the prospect of voluntary compliance.

Nor does it explain in any detail any measures to minimize

Gamarra’s risk of side effects—let alone any measure that

might limit or ameliorate the trauma associated with

involuntary administration. Any psychiatrist, Dr. Graddy

included, would agree that the prospects for voluntary

compliance with a course of psychotropic medication depends

on establishing a consistent therapeutic relationship. Indeed,

Dr. Graddy testified that he believed “therapy plus medications

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is the best treatment for pretty much any psychiatric problem.”

See 4/13/18 Hr’g Tr. at 119. Yet, remarkably, it appears from

the record that no psychiatrist had seen Gamarra in person, and

that no therapist of any sort had established a therapeutic

relationship with Gamarra or treated him on a regular basis

during the time from September 2017 to April 2018 that he had

been detained pursuant to a court order to “hospitalize the

defendant for treatment in a suitable facility.” 18 U.S.C.

§ 4241(d). 2

The magistrate judge’s order authorizing commitment at

Butner stated, in accordance with 18 U.S.C. § 4241(d)(1), that

the purpose of confinement was “to determine whether there is

a substantial probability that in the foreseeable future

[Gamarra] will attain the capacity to permit the proceedings to

go forward.” J.A. 31. Gamarra arrived at Butner in September

2017 and was confined there for seven months prior to his Sell

hearing. During that period, Dr. Graddy could not recall a

single in-person meeting with Gamarra, stating only that “I

may have seen him around. I don’t know. I looked at his

picture. I’m not sure honestly.” 4/13/18 Hr’g Tr. at 135. Dr.

Graddy points to the fact that he “received updates” from Dr.

Laura Enman, a clinical pharmacist, id. at 112, but she appears

only to have dispensed medication when Gamarra asked for it,

and was not in a position to support compliance even with that

limited treatment regimen. A staff psychologist, Dr. DuBois,

saw Gamarra 5-7 times, and a graduate student intern, Ms.

2

Whatever the situation when Dr. Graddy testified, it appears

that current ethical guidelines would not support testimony by a

psychiatrist who did not make reasonable efforts to examine the

patient in person. See American Psychiatric Ass’n, Opinions of the

Ethics Committee on The Principles of Medical Ethics 25 (2019),

available at https://www.psychiatry.org/psychiatrists/practice/ethics.

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Laxton, saw Gamarra 13-15 times before completing their

report in January 2018. But it appears that their primary

purpose was to observe him for purposes of writing their report,

in which context they occasionally challenged some of his

delusional beliefs; the record does not cast them in a

therapeutic role. Dr. Graddy confirmed at the Sell hearing that

“no one who was supervising Mr. Gamarra from a psychiatric

standpoint” between October 2017 and April 2018 “had a

medical degree.” 4/13/18 Hr’g Tr. at 138. Apart from

recounting those contacts, the record says nothing about what

individual therapeutic attention, if any, Gamarra received at

Butner.

Under these circumstances, I am skeptical that the record

contains clear and convincing evidence that no treatment short

of forcible medication could have rendered Gamarra competent

for trial. Indeed, the magistrate judge in this case

recommended that the government’s Sell motion be denied

precisely because she was uncertain whether Gamarra had

received treatment at all. J.A. 153-57. Although she framed

this question as preliminary to the Sell inquiry as a whole, her

concern also goes to whether the government has met its

burden under the third Sell factor. Of course, none of this is to

question the basic premise on which all treating personnel

agreed, namely, that some form of medication would be

required to render Gamarra competent. The only issue here is

whether the government met its burden of showing that

garnering voluntary compliance, most likely in the context of

an in-person therapeutic relationship, could not succeed.

Revealingly, Dr. Graddy testified that only with a Sell order in

hand would he embark on “hav[ing] a conversation with

[Gamarra] about what medication he wanted to start,” and that

“with [Gamarra’s] input, he could voluntarily decide at that

point to take medication in conjunction with the court order.”

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4/13/18 Hr’g Tr. at 123. To decide in favor of involuntary

medication in these circumstances puts the cart before the

horse.

As noted above, Gamarra did not press this issue. In

general, however, a court should approve a Sell order only

where the government can demonstrate by clear and

convincing evidence not only that psychotropic medication is

needed, but also that medically appropriate efforts at voluntary

compliance have been made and were not successful.

III.

Finally, in evaluating whether forcible medication is

warranted, district courts must also look beyond the immediate

goal of gaining competency for trial to determine whether the

particular treatment proposed to that end is in the defendant’s

best interest. Under the fourth Sell factor, courts must therefore

“conclude that administration of the drugs is medically

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

of his medical condition.” Sell, 539 U.S. at 181. The “specific

kinds of drugs at issue may matter here as elsewhere” because

“[d]ifferent kinds of antipsychotic drugs may produce different

side effects and enjoy different levels of success.” Id. This

factor raises a series of issues that district courts should grapple

with in resolving Sell motions.

First, the government’s medical personnel should provide

a specific treatment plan to serve as the basis of their analysis

of the benefits and side effects of medication, and the court’s

review of that analysis. As the Tenth Circuit persuasively

observes, “without knowing which drugs the government

might administer and at what range of doses, a court cannot

properly conclude that such a vague treatment plan is

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that adequate efforts at voluntary compliance were attempted,

and that medical staff have provided the court with a treatment

plan with enough specificity to guide the court’s Sell analysis.

In turn, the court must guarantee that an appropriate drug has

been prescribed and specify limits on what treatment the

patient may receive and for how long. Because Gamarra does

not raise these considerations on appeal, and in respect for the

district court’s superior vantage point, I join the opinion of the

court. But I do so uneasily. I would not in future be inclined

to rest on a trial-incompetent defendant’s forfeiture of

arguments to relieve the government of its burden to establish

each of the Sell factors by clear and convincing evidence.