United States Court of Appeals

For the Eighth Circuit

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No. 13-2085

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

James S. Curtis

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Western District of Arkansas - Ft. Smith

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 Submitted: January 17, 2014

 Filed: April 16, 2014 

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Before WOLLMAN, BYE, and MELLOY, Circuit Judges.

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WOLLMAN, Circuit Judge.

James Curtis was indicted on one count of possession of a firearm after having

been committed to a mental institution, in violation of 18 U.S.C. § 922(g)(4). Curtis

was found incompetent to stand trial, and he objected to treatment with antipsychotic

medication to restore him to competency. The district court ordered that Curtis be

involuntarily medicated. We conclude that the case must be remanded to the district

court for further proceedings.
I. Background

Curtis is a 74-year-old man who suffers from delusional disorder, persecutory

type. This psychotic mental illness is primarily characterized by nonbizarre

delusions—specifically, the person believes “that he is being conspired against,

cheated, spied on, followed, poisoned or drugged, maliciously maligned, harassed, or

obstructed in the pursuit of long-term goals.” According to a government evaluation

of Curtis’s condition, Curtis has a “fixed, irrational belief that the police in Kentucky

follow him across the country, steal from him, and are involved in a cover-up

regarding the death of his friend. His ideas have expanded to include the Judge

assigned to his case.”

A. Curtis’s History of Mental Illness

Curtis began exhibiting symptoms of delusional disorder as early as March

2009 after he fell from a ladder and lost consciousness. Curtis was hospitalized

because he suffered from recurring nausea and vomiting. He underwent a CT scan

that revealed “mild deep white matter disease.” Curtis’s wife reported that Curtis’s

mood and personality had changed dramatically after the injury; Curtis no longer

trusted people, became apathetic, and absconded from home for lengthy periods of

time.

In April 2010, police officers were dispatched to Curtis’s residence following

a domestic dispute call. Curtis and his neighbor were arguing, and when the officers

arrived, Curtis threatened them with a gun. Curtis was taken into custody and was

later ordered to be evaluated by Western State Hospital in Kentucky, where he was

hospitalized for nine days. Curtis was diagnosed with delusional disorder and

prescribed a daily dose of two milligrams of risperidone, which was administered

orally. At discharge, Curtis was “able to carry on a reality based conversation without

evidence of paranoid ideas.” The Discharge Summary recommended that “no guns

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be in the home ever again.” Curtis’s wife removed more than 200 firearms from their

residence before Curtis returned home. 

In March 2011, Curtis was again ordered to be hospitalized for a mental

examination. The hospital report indicated that Curtis did not display any psychotic

symptoms. At the time of the evaluation, Curtis was not taking any antipsychotic

medication.

B. Curtis’s Indictment

On January 29, 2012, Curtis was arrested when police officers found him

parked in front of the United States Attorney’s Office for the Western District of

Arkansas with firearms and ammunition inside his vehicle. The magistrate judge

thereafter ordered a mental evaluation of Curtis. On April 9, 2012, a jury indicted

Curtis on one count of possession of a firearm after having been committed to a

mental institution. Randall Rattan, Ph.D., the primary evaluating psychologist at the

Federal Correctional Institution in Fort Worth, Texas, evaluated Curtis to determine

whether he was competent to stand trial. Dr. Rattan diagnosed Curtis with delusional

disorder, persecutory type, and concluded that Curtis was incompetent to proceed to

trial. 

Based on Dr. Rattan’s report and Curtis’s testimony at the competency hearing,

the magistrate judge concluded that Curtis was incompetent to stand trial. The

magistrate judge recommended that Curtis be committed to the custody of the attorney

general to be hospitalized for treatment and for evaluation to determine if he could

attain the capacity to move forward in the criminal proceedings. The district court

adopted the magistrate judge’s report and recommendation. 

Curtis was then committed to the Federal Medical Center in Butner, North

Carolina. Angela Weaver, Ph.D., a forensic psychologist, evaluated Curtis, with

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psychiatric consultation by Robert Lucking, M.D., a staff psychiatrist. Drs. Weaver

and Lucking confirmed the diagnosis of delusional disorder, persecutory type. Their

report concluded that Curtis remained incompetent to stand trial but opined that there

was a substantial probability that Curtis’s competency could be restored through the

administration of antipsychotic medication. Because Curtis refused treatment, the

report recommended that he be involuntarily medicated. Based on the report, the

magistrate judge recommended that Curtis be involuntarily medicated to restore him

to competency.

Curtis objected and requested a hearing pursuant to Sell v. United States, 539

U.S. 166 (2003). At the hearing, Drs. Weaver and Lucking’s report was admitted into

evidence, and Dr. Lucking testified via telephone. The magistrate judge issued an

amended report and recommendation, in which he found that the government had met

its burden of proving each of the Sell factors by clear and convincing evidence. 

Accordingly, the magistrate judge recommended that the district court grant the

government’s request to involuntarily medicate Curtis with an injection of twenty-five

milligrams of risperidone every two weeks for a period of up to four months. Curtis

filed objections to the report and recommendation. The district court denied Curtis’s

objections and adopted the magistrate judge’s amended report and recommendation

in its entirety. The district court stayed the imposition of its order pending this

interlocutory appeal.

II. Discussion

In Sell v. United States, the United States Supreme Court considered longstanding precedent regarding a defendant’s constitutional right to refuse medical

treatment. 539 U.S. 166, 177-80 (2003). The Court held that, in certain

circumstances, “the Constitution permits the Government involuntarily to administer

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

to render that defendant competent to stand trial[.]” Id. at 179-80. The Court

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articulated a four-factor test for determining the circumstances in which the

government may obtain a court order to involuntarily medicate a defendant to render

him competent to stand trial. The test requires a court to find: “(1) that an important

governmental interest is at stake; (2) that involuntary medication will significantly

further that governmental interest; (3) that involuntary medication is necessary to

further that interest; and (4) that administration of the drugs is medically appropriate.” 

United States v. Mackey, 717 F.3d 569, 573 (8th Cir. 2013) (citing Sell, 539 U.S. at

180-81). 

Curtis challenges the district court’s findings that the government had satisfied

the second and fourth factors of the Sell test. He claims that the government failed to

prove that involuntary medication would “significantly further” its interest or that it

is “medically appropriate” for him. The government must prove those factors by clear

and convincing evidence, and we review the district court’s findings on those factors

for clear error. Mackey, 717 F.3d at 573.

A. The Second Sell Factor

To show that involuntary medication will “significantly further” the

government’s interest under the second Sell factor, the government must establish by

clear and convincing evidence that involuntary medication is both (1) “substantially

likely to render the defendant competent to stand trial” and (2) “substantially unlikely

to have side effects that will interfere significantly with the defendant’s ability to

assist counsel in conducting a trial defense[.]” Sell, 539 U.S. at 181. 

We conclude that the district court did not clearly err in finding that the

involuntary administration of risperidone would significantly further the government’s

interest in prosecuting this case. The district court accepted the testimony of Dr.

Lucking that antipsychotic medication is substantially likely to render Curtis

competent to stand trial. Dr. Lucking based his opinion on the following evidence. 

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First, Curtis was treated with two milligrams of risperidone daily when he was

hospitalized at Western State Hospital, and at discharge Curtis “was described as

being able to carry on a reality based conversation without evidence of paranoid

ideas.” Dr. Lucking found this to be direct evidence from which to infer that Curtis

would respond to antipsychotic medication. Second, Dr. Lucking relied on recent

medical studies and literature that indicate that psychotic illnesses, including

delusional disorder, can be treated effectively with antipsychotic medication. Dr.

Lucking also opined that treatment with risperidone is substantially unlikely to

produce side effects that would interfere with Curtis’s ability to assist his attorney in

preparing a defense.

Curtis contends that Dr. Lucking’s opinion that antipsychotic medication is

substantially likely to render him competent to stand trial is unsubstantiated and

contrary to medical studies and literature. Curtis first asserts that “it is impossible to

definitively conclude that [he] benefitted from risperidone during

his . . . hospitalization” at Western State Hospital. Curtis also asserts that medical

studies and literature demonstrate that antipsychotic medication is ineffective in

treating delusional disorder. Curtis points to United States v. Ghane, 392 F.3d 317

(8th Cir. 2004), in which we reversed the district court’s Sell order because the expert

testimony provided by Dr. Lucking and other psychiatrists established that

antipsychotic medication was ineffective in treating delusional disorder and had only

a five to ten percent chance of restoring competency.

Curtis’s counsel cross-examined Dr. Lucking at great length on the

considerations that formed the basis of his opinion. Curtis’s counsel explored the

possibility that Curtis’s ability to carry on a reality based conversation at the end of

his nine day hospitalization at Western State Hospital was not the result of his being

treated with risperidone. Dr. Lucking acknowledged that his report stated that

risperidone “does not begin to exert its therapeutic effect for several weeks after the

first injection” but explained that the length of time it takes for risperidone to exert its

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effect varies on an individual basis and that he has seen patients respond with only one

dose. Further, Dr. Lucking stated that it was unlikely that Curtis had deluded the

evaluator.

Dr. Lucking also acknowledged that he had held a different opinion about the

effectiveness of antipsychotic medications in treating delusional disorder when he

testified in Ghane. But he explained that he had changed his opinion as a result of

reviewing recent medical studies and literature. Dr. Lucking’s report pointed to recent

medical studies and literature that provide evidence that individuals with delusional

disorder achieve positive results after being treated with antipsychotic medication. 

Among the studies that Dr. Lucking cited was a 2007 article by Drs. Herbel and

Stelmach (the Herbel Study), which found that after involuntary treatment with

antipsychotic medication, seventy-seven percent of defendants with delusional

disorder were restored to competency.1

We are charged with deciding whether the district court’s findings were clearly

erroneous based on the evidence and testimony before it. Dr. Lucking substantiated

his opinion before the district court that risperidone would be effective in restoring

Curtis to competency, and the district court found him credible. Dr. Lucking also

substantiated his opinion that treatment with risperidone is substantially unlikely to

produce side effects that would interfere with Curtis’s ability to assist his attorney in

preparing a defense. Notwithstanding the Ninth Circuit’s skepticism regarding the

Herbel Study, we conclude that the district court’s decision to credit Dr. Lucking’s

report and testimony was not clearly erroneous, since it constituted a permissible view

of the evidence presented to it. 

1

As Curtis points out in his Reply Brief, the Ninth Circuit concluded that “the

findings of the Herbel Study are both limited and tentative” and that “they do not

constitute clear and convincing evidence that involuntarily medicating [the defendant]

. . . is substantially likely to restore him to competency[.]” United States v. RuizGaxiola, 623 F.3d 684, 698 (9th Cir. 2010).

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B. The Fourth Sell Factor

The fourth Sell factor requires the government to prove by clear and convincing

evidence 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. 

In finding that the government had satisfied the fourth Sell factor by clear and

convincing evidence, the district court relied upon the following: Dr. Lucking’s

opinion that antipsychotic medication is substantially likely to render Curtis

competent to stand trial and the basis for that opinion; Dr. Lucking’s opinion that

treatment with antipsychotic medication is substantially unlikely to produce side

effects that would interfere with Curtis’s ability to assist his attorney in preparing a

defense; Dr. Lucking’s opinion that antipsychotic medication would not adversely

interact with Curtis’s other medications; Dr. Lucking’s testimony that the possible

symptoms of the side effects of risperidone can be addressed with medication; and Dr.

Lucking’s testimony that patients treated at the facility are closely monitored for

adverse reactions to medication. The district court also noted that it found compelling

the fact that Curtis had been previously treated with risperidone at Western State

Hospital without any indication of an adverse reaction. 

The foregoing evidence primarily supports the second Sell factor, which

requires the district court to determine whether the medication 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[.]” Id. In contrast, the fourth Sell factor requires

the district court to consider all of the circumstances relevant to the particular

defendant and to consider the entirety of the consequences of the proposed involuntary

medication. See, e.g., Ruiz-Gaxiola, 623 F.3d at 704-05; United States v. Evans, 404

F.3d 227, 242 (4th Cir. 2005). The district court did not consider the circumstances

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relevant to such a required finding, such as Curtis’s need for long-term treatment and

Curtis’s current quality of life. See, e.g., Mackey, 717 F.3d at 576 (recognizing that

as to the fourth Sell factor the testifying doctor opined that “the medication not only

would restore [the defendant’s] competency to stand trial, but would allow the

patient—who was not showering, recreating, or communicating with staff—to ‘have

a better quality of life and to kind of move forward’”); Ruiz-Gaxiola, 623 F.3d at 705

(discussing the defendant’s positive quality of life and questioning the value of the

medication’s potential benefits when weighed against the likelihood and severity of

its potential harms over the course of the treatment). In the absence of a specific

determination by the district court whether administering risperidone constitutes a

medically appropriate treatment for Curtis, as required by the fourth Sell factor, there

is no finding for us to review, and thus remand is required.

III. Conclusion

We hold that the district court did not err in finding that the government had

satisfied the second Sell factor. We remand the case to the district court with

directions that it determine whether the government has established by clear and

convincing evidence that involuntarily administering the recommended medication

regime to Curtis is medically appropriate.

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