# United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 13-2085

___________________________ United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.
James S. Curtis

lllllllllllllllllllll Defendant - Appellant

____________ Appeal from United States District Court for the Western District of Arkansas - Ft. Smith

____________ Submitted: January 17, 2014 Filed: April 16, 2014

____________ Before WOLLMAN, BYE, and MELLOY, Circuit Judges.

____________ 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 heobjected 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 suffe rs 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 ma ligned, 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 de lusional 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 diseas e.” Curtis’s wife reported that Curtis’s mood and personality had chan ged dramatically after the injury; Curtis no longer trusted people, became apathetic, and ab sconded from home for lengthy periods of time.

In April 2010, police officers were dispat ched to Curtis’s residence following a domestic dispute call. Curtis and his ne ighbor were arguing, and when the officers arrived, Curtis threatened them with a gun. Curtis was take n 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 ba sed conversation without evidence of paranoid ideas.” The Discharge Summary recommended that “no guns

-2-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 orde red 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 arre sted when police officers found him parked in front of the United States Atto rney’s Office for the Western District of Arkansas with firearms and ammunition in side his vehicle. The magistrate judge thereafter ordered a mental evaluation of Cu rtis. On April 9, 2012, a jury indicted Curtis on one count of possession of a fi rearm 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 th at 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 a nd 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 Fede ral Medical Center in Butner, North Carolina. Angela Weaver, Ph.D., a forens ic psychologist, evaluated Curtis, with

-3-psychiatric consultation by R obert Lucking, M.D., a staff psychiatrist. Drs. Weaver and Lucking confirmed the diagnosis of de lusional disorder, persecutory type. Their report concluded that Curtis remained incomp etent 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 hear ing pursuant to Sell v. United States , 539 U.S. 166 (2003). At the hearing, Drs. Weaverand Lucking’s report was admitted into evidence, and Dr. Lucking testified via te lephone. The magistrate judge issued an amended report and recommendation, in whic h 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 recomme nded 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 fo r a period of up to four months. Curtis filed objections to the report and recommendati on. The district court denied Curtis’s objections and adopted the magistrate judge’s amended report and recommendation in its entirety. The district court st ayed the imposition of its order pending this interlocutory appeal.

II. Discussion

In Sell v. United States , the United States Suprem e 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 th e Government involuntarily to administer antipsychotic drugs to a ment ally ill defendant facing serious criminal charges in order to render that defendant compet ent to stand trial[.]” Id. at 179-80. The Court

-4-articulated a four-factor test for dete rmining the circumstances in which the government may obtain a court order to i nvoluntarily medicate a defendant to render him competent to stand trial. The test requi res 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 involunt ary 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 conducti ng 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.

-5-First, Curtis was treated with two millig rams of risperidone daily when he was hospitalized at Western State Hospital, a nd 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 dir ect evidence from which to infer that Curtis would respond to antipsychotic medication. Second, Dr. Lucking relied on recent medical studies and literature that indi cate that psychotic illnesses, including delusional disorder, can be treated effectiv ely with antipsychotic medication. Dr. Lucking also opined that treatment with risperidone is substantially unlikely to produce side effects that would interfere withCurtis’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 competen t to stand trial is unsubstantiated and contrary to medical studies and literature. Cu rtis first asserts that “it is impossible to definitively conclude that [he] benefitted from risperidone during his . . . hospitalization” at Western State Ho spital. Curtis also asserts that medical studies and literature demonstrate that an tipsychotic medication is ineffective in treating delusional disorder. Curtis points to United States v. Ghane , 392 F.3d 317 (8th Cir. 2004), in which we reve rsed the district court’s Sell order because the expert testimony provided by Dr. Lucking and other psychiatrists established that antipsychotic medication was ineffective intreating delusional disorder and had only a five to ten percent chan ce 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 Stat e 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 ther apeutic effect for se veral weeks after the first injection” but explained that the length of time it takes for risperidone to exert its

-6-effect varies on an individual basis and th at he has seen patie nts 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 ha d 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 bei ng treated with antipsychotic medication. Among the studies that Dr. Lucking cite d 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 th e 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 ri speridone would be effective in restoring Curtis to competency, and the district c ourt found him credible. Dr. Lucking also substantiated his opinion that treatment withrisperidone 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 distri ct court’s decision to credit Dr. Lucking’s report and testimony was not clearly errone ous, 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 limite d and tentative” and that “they do not constitute clear and convincing evidence th at involuntarily medicating [the defendant] . . . is substantially likely to restore him to competency[.]” Un ited States v. RuizGaxiola , 623 F.3d 684, 698 (9th Cir. 2010).
-7-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 fo r that opinion; Dr. Lucking’s opinion that treatment with antipsychotic medication is substantially unlikely to produce side effects that would interfere with Curtis’s ab ility to assist his attorney in preparing a defense; Dr. Lucking’s opinion that antip sychotic 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 withmedication; and Dr. Lucking’s testimony that patients treated at the facility are closely monitored for adverse reactions to medication. The distri ct court also noted that it found compelling the fact that Curtis had been previously treated with risperi done 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 wh ether the medication is “substantially likely to render the defendant competent to stand trial” and “substantia lly 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 th e 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

-8-relevant to such a required fi nding, 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 wei ghed against the likelihood and severity of its potential harms over the course of the tr eatment). In the ab sence of a specific determination by the district court whethe r administering risperidone constitutes a medically appropriate treatment for Cu rtis, 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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