United States v. John Hardimon

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 11-1821, 11-2515

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

JOHN M. H ARDIMON,

Defendant-Appellant.

Appeals from the United States District Court

for the Southern District of Illinois.

No. 3:10-cr-30170-MJR-1—Michael J. Reagan, Judge.

A RGUED O CTOBER 2, 2012—D ECIDED N OVEMBER 7, 2012

Before E ASTERBROOK, Chief Judge, and P OSNER and

R OVNER, Circuit Judges.

P OSNER, Circuit Judge. The defendant, a chiropractor,

pleaded guilty to defrauding health insurers and to

money laundering and was sentenced to 70 months

in prison (the bottom of the applicable guidelines

range) and to pay restitution of almost $2 million. In

his guilty plea he waived his right to appeal; but shortly

after pleading guilty he moved to retract the plea on

2 Nos. 11-1821, 11-2515

the ground that he had been taking psychotropic

drugs that had clouded his mind and made his plea

involuntary. The judge denied the motion, and the de-

fendant’s first appeal attacks the denial as erroneous.

His second appeal, which is from the part of the sentence

that orders restitution, is blocked by the appeal waiver

if we uphold the judge’s ruling with respect to the guilty

plea. The first appeal is not blocked because the waiver

was part of the guilty plea agreement that the appeal

seeks to set aside as having been involuntary. If the plea

is set aside, the entire sentence will have to be vacated,

thus including the order to pay restitution. If the plea is

not set aside, the entire sentence will stand. So in no

event will we have to consider the merits of the restitu-

tion order in this appellate proceeding.

At the guilty-plea hearing the judge asked the de-

fendant whether he was “currently under the influence

of any drugs, medicine, or alcohol,” and the defendant

answered: “prescription medications.” The judge asked

him whether “any of these medications affect your

ability to think clearly,” and the defendant answered

“no,” and also “no” to whether he had been “treated in

the past 60 days for any addictions to drugs, medicine

or alcohol of any kind.” But he answered “yes” to the

next question—whether he’d been treated in the past

60 days for “any mental disorders, mental defects, or

mental problems.” The judge asked him to explain, and

he replied that he was taking medicines for “high

anxiety, depression, adult attention hyperactivity

disorder, and depression.” At “therapeutic level?” the

judge asked, and the defendant said “I believe so, yes.”

Nos. 11-1821, 11-2515 3

The judge asked the defendant whether he thought the

drugs were working and he said, “I believe the ADHD

[attention deficit hyperactivity disorder—the disorder

that he called ‘adult attention hyperactivity disorder’]

medicine makes me concentrate more. It does cause

quite a bit of anxiety, so they have given me something

else to help the anxiety a little bit, but it [the ADHD

medicine] definitely increases my alertness.” In answer

to further questions the defendant assured the judge

that he was “thinking clearly,” “capable of making deci-

sions, serious decisions,” such as pleading guilty to the 15-

count information that the government had filed

against him, and that he had no “physical conditions or

problems that affect” his “ability to think clearly.” The

judge then proceeded with the usual questions in a

plea hearing, received the usual answers, and accepted

the plea of guilty.

Six weeks later the defendant moved to withdraw the

plea, explaining that he had been taking Prozac to treat

his mental illnesses but that a week after the plea

hearing his primary-care physician had switched him

to Lexapro and “almost immediately” he experienced

“increased alertness, awareness and attentiveness” and

realized that at the plea hearing he had been “incapable

of understanding the true nature of the charges against

him . . . and the consequences of his plea.”

The district court conducted an evidentiary hearing.

The defendant submitted the abstract of a medical study

which states that Lexapro may be a more effective treat-

ment for major depression than Prozac. Andrea Cipriani

et al., “Escitalopram Versus Other Antidepressive

4 Nos. 11-1821, 11-2515

Agents for Depression,” The Cochrane Library, Oct. 7,

2009, http://onlinelibrary.wiley.com/doi/10.1002/14651858.

CD006532.pub2/abstract (all web sites cited in this

opinion were visited on Nov. 2, 2012). He also submitted

an email from his psychiatrist saying that certain rare

side effects of Prozac, including hallucinations, could

affect a person’s “ability to think and make decisions.”

Hallucinations are also a possible, though again a rare,

side effect of Lexapro. “Drugs & Medications—Lexapro,”

W ebM D, ww w.webmd.com/drugs/drug-63990-

Lexapro.aspx?pagenumber=6. The psychiatrist noted that

in the past the defendant had reported having a “better

response to Lexapro than Prozac . . . in terms of . . . more

clear thoughts.” This is possible because although the

drugs are very similar (both are SSRIs— selective serotonin

reuptake inhibitors), people may react somewhat differ-

ently to them. Harvard Health Publications, “What

Are The Real Risks of Antidepressants?” www.

health.harvard.edu/newsweek/What_are_the_real_risks_

of_antidepressants.htm; Mayo Clinic, “Selective Serotonin

Reuptake Inhibitors (SSRIs),” www.mayoclinic.com/health/

ssris/MH00066.

The judge denied the motion to withdraw the guilty

plea, in part because the defendant had presented no

evidence that switching from Prozac to Lexapro could

have the dramatic effects he claimed it had, and in

part because at the plea hearing he had been alert and

responsive and exhibited no signs of confusion. He cer-

tainly had not been hallucinating.

He argues that the judge should have inquired more

deeply at the plea hearing into the drugs he was taking—

Nos. 11-1821, 11-2515 5

should have asked him how much of each drug he was

taking and what “effects the medications [as distinct

from the underlying mental illnesses] might have on [his]

clear-headedness.” We don’t think that such an inquiry

was required. United States v. Weathington, 507 F.3d

1068, 1073-74 (7th Cir. 2007); United States v. Rollins,

552 F.3d 739, 741-42 (8th Cir. 2009); United States v.

Lessner, 498 F.3d 185, 193-96 (3d Cir. 2007); United States v.

Savinon-Acosta, 232 F.3d 265, 269 (1st Cir. 2000); Miranda-

Gonzalez v. United States, 181 F.3d 164 (1st Cir. 1999). The

judge had already asked him whether he could think

clearly, and he had said he could, which implies that

he didn’t think his medications were affecting his ability

to think clearly. Not being a psychiatrist, the judge

could not use dosage information to infer inability to

think clearly. He would have had to require the at-

tendance of the defendant’s psychiatrist at the plea

hearing and question him about the dosages and their

actual and possible consequences. If we imposed such

a requirement we might create a situation in which a

significant fraction of criminal defendants are placed

in detention for psychiatric evaluation before being

allowed to plead guilty.

A judge is required to investigate the defendant’s

mental state if there are indications at the plea hearing or

later of an impairment that made him incompetent to

plead. The fact that a defendant seems competent when

answering the judge’s questions at the plea hearing

should not be conclusive; mental diseases, or mental

impairments brought on by psychotropic drugs, might

alter the premises of a person’s thinking rather than

6 Nos. 11-1821, 11-2515

the articulation of his thoughts or his outward ap-

pearance or manner. See American Psychiatric Association,

Diagnostic and Statistical Manual of Mental Disorders, Text

Revision (DSM-IV-TR) 329 (4th ed. 2000) (diagnostic

criteria for “delusional disorder” include delusion

lasting at least one month but also that “apart from

the impact of the delusion(s) or its ramifications, func-

tioning is not markedly impaired and behavior is not

obviously odd or bizarre”); Gerard H. H. Benthem et al.,

“Teaching Psychiatric Diagnostics to General Practitioners:

Educational Methods and Their Perceived Efficacy,” 31

Medical Teacher e279 (2009); Abdel-hamid Afana et al.,

“The Ability of General Practitioners to Detect Mental

Disorders Among Primary Care Patients in a Stressful

Environment: Gaza Strip,” 24 J. Pub. Health Medicine

326 (2002). General practitioners struggle to detect psychi-

atric disorders. Benthem et al., supra. Even in a discus-

sion with someone who believes he’s Napoleon, you

might find his speech lucid and (given the irrational

premise) logical, and his affect normal. See Jeanette

Hewitt, “Schizophrenia, Mental Capacity, and Rational

Suicide,” 31 Theoretical Medicine & Bioethics 63, 67-68 (2010).

A combination of deeply confused or clouded thinking

with coherent speech and a normal demeanor is rare,

however. “Delusional Disorder,” in American Psychiatric

Association, supra, at 326. (See also the diagnostic

criteria for delusion disorder, quoted above.) With the

Napoleon example we enter the realm of schizophrenia.

Mania and particularly schizophrenia do affect a patient’s

ability to perceive reality. “Schizophrenia,” PubMed Health,

Feb. 13. 2012, www.ncbi.nlm.nih.gov/pubmedhealth/

Nos. 11-1821, 11-2515 7

PMH0001925/; “Mania,” Wikipedia, http://en.wikipedia.org/

wiki/Mania. But as in our Napoleon example, the defen-

dant’s distorted thinking is likely to be apparent; “disorga-

nized speech (e.g. frequent derailment or incoherence)”

and “grossly disorganized or catatonic behavior” are

typical symptoms of schizophrenia. “Diagnostic Criteria

for Schizophrenia,” in American Psychiatric Association,

supra, at 312. Our defendant is neither manic nor schizo-

phrenic; and depression and anxiety do not present the

same risk of disordered cognition as mania or schizophre-

nia does, see “Anxiety,” Wikipedia, http://en.wikipedia.org/

wiki/Anxiety; Anxiety and Depression Association of

A m e rica, “D ep ression ,” http ://w w w .a d a a .o rg /

understanding-anxiety/depression, though they present

some risk of it, depression especially. See Terry A.

Maroney, “Emotional Competence, ‘Rational Understand-

ing,’ and the Criminal Defendant,” 43 Am. Crim. L. Rev.

1375, 1410-16 (2006).

The defendant’s focus is in any event on the drugs he

took rather than on the conditions for which the drugs

were prescribed. Such drugs can produce disor-

dered thinking, “Prozac Medication Guide,” www.

prozac.com/Pages/index.aspx; Drugs.com, “Lexapro

Side Effects,” www.drugs.com/sfx/lexapro-side-effects.

html; PubMed Health, “Dextroamphetamine and Am-

phetam ine,” www.ncbi.nlm.nih.gov/pubmedhealth/

PMH0000166/ (medication for ADHD), though the princi-

pal mental side effect of SSRIs is suicidal thinking.

These drugs are taken by millions of people, and it

can’t just be assumed from the fact that someone is

8 Nos. 11-1821, 11-2515

taking them that he can’t think straight. To make a case

for being permitted to withdraw his guilty plea when

the judge’s inquiries at the plea hearing had been

adequate and had revealed no impairment of the defen-

dant’s ability to think, the defendant needs to present

the affidavit of a qualified psychiatrist. Cf. United States

v. Jones, 381 F.3d 615, 618-19 (7th Cir. 2004); United States v.

Cruz, 643 F.3d 639, 643 (8th Cir. 2011). Such an affidavit

in this case might have described the possible effects of

Prozac and Lexapro in the dosages prescribed for the

defendant and any indications that his ability to think

had been materially impaired by the Prozac, which he

claims to have realized when he switched to Lexapro

and his mind cleared. Apparently the defendant’s

lawyer could find no psychiatrist willing to provide an

affidavit or testimony that would lay a factual basis

for a finding of incompetence to plead.

So the motion to vacate the guilty plea was properly

denied, the plea therefore stands, the waiver in the plea

bars the second appeal, and the judgment is therefore

A FFIRMED.

11-7-12