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# Unite d States Court of Appe als

F O R T H E D I S T R

I C T O F C O L U M B I A

C I R C U I T

Arg ued September

6, 2019 Dec ided Octobe r 4, 2019

No. 18-3082

U N I TE D S TA TE S O F A M E R I C A , A P P E L L E E

v.

J E A N -P A U L G A M A R R A , A P P E L L A N T

Appea l from the United States District Court for the D istrict of Columbia (No. 1:17-c r-00065- 1)

Lisa B. W right

, Assistant Fe dera l Public Def ender

, arg ued the cause for appellant. Wit h her on the briefs was A.J. Kramer
, Fe dera l P u blic Def

ender

. Tony Axam Jr. and David W

. Bos
, Assistant Fede ral Public Def ender s, entere d appea

ranc es.

Nicholas P. Cole ma n , Assistant U.S. Attorney
, arg ued the

cause for appellee

. Wit h him on th e b ri ef wer e Jessie K. Liu
, U.S. Attorney
, and Elizabeth Trosman
, and Chrisellen R. Kolb

, Assistant U.S. Attorney s.PUB LIC COPY – SEALED INFORM ATION DELETED 2

Be fore : R O G E R S an d P I L L A R D , Circuit Judges

, and R A N D O L P H , Senior Circuit Judge

. Opinion for the C o u rt filed by Senior Circuit Judge R A N D O L P H

. Concurring opinion filed by Circuit Judge P I L L A R D

. 1

R A N D O L P H , Senior Circuit Judge : T his is a criminal ca se. The defe ndant, J ean- Paul Gamar ra, appea ls from an order of the district court. The order authorized the g overnme nt to medicate him without his consent for the purpose of rende ring him competent to stand trial.

Questions about Gamarra ’s s oundness of mind arose from these larg ely undisputed circ umst an ce s of his arr est on Marc h 28, 2017. Gamar

ra approa ched a Secre t Service Ag ent stationed

near the Trea sury Depa

rtment Building

, adjac ent to the Whit e House. Gamarra told the Ag ent that he had a packa g e containing a “nucle ar bomb d et o n ator or defuse r.” The Ag ent order ed Gamar

ra to place his packa g e on the g round. On the packa g e wer e messag es: “Warning this is a tre t h reat on the P re s ident and Senator life Secure Key board to be Reverse d Eng ineer ed,” and “Warning 100% threa t Br and New Electronic Detonator Device president S ecr ete Servisce Ex plosive
t ec h n ology Depa

rtment.” On the packa g e’s label was this: “B lue tooth Bomb Explos ion Component.”

I n response , the Ag ent arr ested Gamar ra while other l aw enfor ceme nt office rs closed the surrounding are as to pedestria n and vehicular traff

ic for an hour an d a half. When office rs

NOTE: Por

ti ons of the c onc urri ng o pinio n co ntai n Seale d 1 Inf ormation , whi ch has bee n reda ct ed.PUB LIC COPY – SEALED INFORM ATION DELETED 3

examined Gamar

ra’ s pac k age they found only an ordinary Blue tooth key

board.

A g rand jury indicted Gamar ra for threa tening bodily harm
to the President (18 U.S.C. § 871) and for convey ing false information conce rning the use of an ex p l o s i ve (18 U.S.C. § 844(e) ).

Gamar ra’ s ac tions raised doubts about whether he was competent to stand trial. On th e go v ernment’s motion, the
mag istrate judge order ed Gamar ra committed to custody for the
purpose of evalua

ting his competenc y

. A fore nsic psy cholog ist examined Gamar

ra and conclude d that he suffe red from a ‘schizoaffe ct ive disorder’ and that he was not competent to stand trial. After a hear ing, t h e Mag istrate J udg e ag ree d and issued an order under 18 U.S.C. § 4241(d) committing Gamar ra to continuing custody for the purpose of deter mining whether he could bec ome compete nt. This subsection provides, in part:

The Attorney Gene ral shal l hospitaliz e the defe ndant for trea tm en t i n a suitable fac ility

. . . for such a

rea sonable period o f t ime, not to exceed four m onths,

as is nece ssary to deter mine whether there is a substantial probability that in the fore seea ble future he will attain the capa city to permit the proce eding s to g o forwa rd[.]

After some delay

, Gamar ra was transfe rre d to the Fe d er al Medica l Center, Butner, North Carolina. A ps y cholog y intern
at Butne r and her supervisor, a fore nsic psy ch o l o gist, attended
to Gamarra and signe d a repor t. Fr om multipl e clinical evalua tions, interviews and observa tions, t h ey conclude d that Gamar ra s u ffe red from delusional thinking and disorg anized
speec h. Hi s m ed i ca l history and the acc ounts of his familyPUB LIC COPY – SEALED INFORM ATION DELETED 4

members indicated that he could not become competent without anti-psy chotic medicine. At Butne r, Gamar ra started taking the
presc ribed medication, but within a sho rt time beca me noncompliant.

The g overnme nt there fore moved for an order autho rizing involuntary medication. After a three-da y evi d entiary hear ing, the Mag istrate J udg e rec ommended deny ing the motion on the
g round that the g overnme nt failed to provi d e trea tment to Gamar ra w ithin the four month period spec ified in 18 U.S.C. § 4241(d)( 2). The district court reje cted the rec ommendation and
g rante d the g overnme nt’s motion, conc luding that under Sell v. United States
, 539 U.S. 166 (2003), “the g overnme nt had met its burden of proof with respe ct to ea ch o f the four Sell fac tors.” United States v. Gamarra
, 2018 WL 5257846
, * 9 (D.D.C. 2018).

Gamar ra’ s appea l is limit ed to the district court’s ruling s on t wo of the four Sell fac tors – the second and the fourth

. T h e second Sell fac tor require s the g overnme nt to establish that “the administration of the drug s is substantially lik el y to rende r the defe ndant competent to stand trial” and “substantially unlikely
t o have side eff

ects that will interfe re signific antly wit h t h e defe ndant’s ability to assist counsel in conducting a trial defe nse, th er eb y rende ring the trial unfair.” Sell

, 539 U.S. at 181. The fourth Sell fac tor require s the g overnme nt to establish that “administration of the drugs is medically appropriate

, i.e.
, in the patient’s best medical interes t i n light of his medical condition.” Id.

The district court’s conclusions in favor of the g overnme nt must re st on “cle ar and convincing evidenc e.” United States v. Dillon

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

co n cl u s i o ns is for “cle ar err or.” Id. Under this standard, wePUB LIC COPY – SEALED INFORM ATION DELETED 5

may reve rse only “if (1) the fi n d i ng s are ‘without substantial evidentiary support or

... induced by an err oneous applicatio n of the law’; or if (2) ‘on the entire evidenc e [we are ] left with the definite and firm conviction that a mistake has been committed.” Id. at 297 (quoting Cuddy v. C armen , 762 F.2d 119, 124 (D.C. Cir. 1985)).

Gamar ra’ s objections to the distri ct court’s assessment of the second Sell fac tor are that the court should not have relied on the opinion of Butne r’s head psy chiatrist – L og an Gra ddy

, M.D.

– beca use Dr. Gra ddy did not persona lly examine Gamar ra, and beca use he ignor ed Gamar

ra’ s rec ollection and h i s medical

rec ords re g arding

the side ef

fec ts he experience d when he took anti-psy chotic medica

tions in t he past.

Although Dr. Gra dd y acknow ledg ed that it was “unusual” and “u n fortunate ” that he was offe ring an opinion without a persona l examination, Gamar ra has faile d t o identify how the lack o f a persona l examination compromised Dr. Gra ddy ’s conclusion that the second Sell fac tor was satisfied. Moreove r, courts have relied on e x perts who r eac hed their opinions based

on a revie w of a patient’s medical rec ords and other information without persona lly conducting an examination

. See Jones v. Sec’ y, Fla. Dep’ t Of Corr.
, 834 F.3d 1 2 9 9, 1315–16 (11th Cir. 2016) (collec ting case s in which courts re l i ed on a medical

ex p er t who had not persona lly examined the patient). As t h e district court noted, an opinion of the Americ an Psy ch i atric Association’s Ethics Commi ttee then in eff ect conclude d that it

was both ethical and common for a “‘f orensic ex p ert to offe r opinions’ based on revie w of rec ords and without examining the defe ndant in person.” Gamarra
, 2018 WL 5257846 at *10 (quoting Americ an Psy chiatric Ass’n, Opinions of the Ethics Committee on The Principles of Medic al Ethics 35 (2017), available at https:/ /www.psy chiatry .org /psy chiatrists /prac tice/PUB LIC COPY – SEALED INFORM ATION DELETED 6

ethi cs ). The g overnme nt’s burden here was highe r than under the common preponde ranc e of evidenc e standard. But Gamar ra has identified no counter

vailing authority connec ting the lack of
persona l examination wit h a fa ilure to meet that burde n.

The district court also did not clea rly err in concluding that the presc ribed medication was substantially unlikely to cause side eff ects impairing Gamar

ra’ s ab i l i t y to assist his counsel. Dr. Gra ddy revie wed Gamar ra’ s medical history

, incl u d i ng medical rec ords of Gamar ra’ s previous experience s taking antipsy chotic medication. Dr. Gra ddy based his judgme nt on those

re co rds, on his clinical experience

, and on his revie w of the medical literature reg arding t h e eff ects of anti-psy chotic medication. Gamar

ra arg ues that Dr. Gra ddy ’s conclusion aff ords insufficient weig ht t o Gamar ra’ s experience s in taking anti-psy chotic medication. Dr. Gra ddy acknow ledge d the side eff ects and explained how they would be manag ed i f they

rec urre d. The District Court did not clea rly err in c rediting Dr. Gra ddy ’s opinion. We assume that Gamar ra will be returne d to FM C Butne r and that, as Dr. Gra ddy testified, the med i ca l
personne l at that fac ility will adjus t Gamar ra’ s medication to minimi ze side eff

ects. Were side eff

ects to require attention while Gamar

ra is in t h e District of Columbi a awa iting trial or during trial, the district court should ensure appropr iate medical
personne l will promptl y

respond.

Acc ording ly

, the district court did not commit any clea r

err or re g arding the sec ond Sell fac tor.

Gamar ra’ s arg uments reg arding t h e fourth Sell fac tor overla p with his arg uments reg arding the second Sell fac tor. We

are ag ain told that the district court should not have cre dited Dr. Gra ddy ’s opinion on medical appropr iateness beca use he did not interview Gamar

ra. Once ag ain, Gamar

ra has failed to identifyPUB LIC COPY – SEALED INFORM ATION DELETED 7

how the district court clea rly err ed in rely

ing o n Dr. Gra ddy ’s testimony to de termine that the g overnme nt sa tisfied the fourth Sell fac tor. The fac t that Dr. Gra ddy did not persona lly examine Gamar ra does not detra ct from his fi nding that Gamar ra’ s sy mptoms would be ameliora ted throug h medication. Dr. Gra ddy understood Gamar ra’ s condition from his revie w of the medical rec ords and repor ts of fore nsic p s y cholog ists who interac ted with Gamar

ra. We therefore believe Gamar ra has
prese nted no basis for concluding that the district court clea rly

err ed in rely ing on Dr. Gr ad d y to conclude that involuntary medication would be in Ga marra ’s best medica l interests.

For the rea sons stated above, the district court’s order authorizing involuntary

medication is

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P ILLARD , Circuit Judge

, concurring: 1 A district court order authoriz ing 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 raise s the stakes even further, conjuring up plots of dystopian science fiction.

T he 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 administr ation 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) “in voluntary 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 1 80

- 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

1 NOTE: Portion s of this opinion contain Sealed Information

.2

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– SEALED I NFORMATION DELETED 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).

Th e 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 height ened 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 defendant s , it oversee s the medical personnel in federal faci lities who observe such defendants and, where warranted, treat s them, and it determin e s in the first instance whether such defendant s h a ve been rendered competen t for trial. As a result

, the government almost always h as superior expertise and access to information than does defense counsel or the courts

. Defense counsel , for their part, face extra challenge s posed by the imperative to mount the most powerful and comprehensive defense while guided by the wishes of a client who

, ev en though not competent for trial

, retain s legal authority to direct his representation. These unusual background conditions strain our adversary system.

This case illustrates the se complexities and raise s questions about whether the government has met its burden under th e 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 outlini ng 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 seven3

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– SEALED I NFORMATION DELETED 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

.

M ost of the questions these circumstances evoke we re n ot raised on appeal

. And our review is for clear error . Th e 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 me dication 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.

T he government must show by clea r 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 quest ions” : First,4

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– SEALED I NFORMATION DELETED “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” ; a nd

, s econd, whether no ‘ “[s]pecial circumstances . . . lessen the importance of that interest.’” Dillon , 738 F.3d at 292 (quoting Sell , 539 U.S. at 180). T he 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 th e point that it no longer justifie s 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 calculat ed 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 circuit s , f aced with charged crimes they treat as “serious,” compare the recommended Guidelines range t hat 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); Uni ted 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) . Th ey do so because the Bureau of Prisons is required to credit pre

- trial detention toward any term of imprisonment impose d, se e 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. The5

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– SEALED I NFORMATION DELETED 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.

G overnment al interests in criminal prosecution extend beyond incapacitation and deterren ce 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 mo st general terms how these interests are promoted by the prosecution of Gamarra. W e do
not , however, resolve th e 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 interest6

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– SEALED I NFORMATION DELETED in prosecution. Sell , 539 U.S. at 18 1

. 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 administ ering 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

. T he record convincingly supports the conclusion that medication is an essential ingredient to restoration of Gamarra’s competence. But t hat is hardly the end of the me dical or legal story.

T he record does not paint a clear picture as to how or whether the government consider ed medically informed measures to enhance the prospect of voluntary compliance

. Nor does it explain in any detail any measures to minimize Gamar ra’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 depend s on establishing a consistent therapeutic relationship

. Indeed, Dr. Graddy testified that he believed “therapy plus medications7

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– SEALED I NFORMATION DELETED is the best treatment for pretty much any psychiatric pro blem.” See 4/13/18 Hr’g Tr. at 119. Yet, r emarkably, 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 d

uring 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 “receive d 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

.8

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– SEALED I NFORMATION DELETED Laxton, saw Gamarra 13

- 15 times before completing their report in January 2018

. B ut it appears that their primary purpose was to observe him for purposes of writing their report

, in which context they occasionally challenge d some of his delusional belie fs ; 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 d egree.” 4/13/18 Hr’g Tr. at 138. Apart from recounting those contacts, t he 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 render ed 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 g oes 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. T he 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 ord er 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

. ”9

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– SEALED I NFORMATION DELETED
4/13 /18 H r’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 w ere 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 18 1 . 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 court s should grapple with in resolving Sell motion s

.

Fir st, the government’s medical personnel should provide a specific treatment plan t o serve as the basis of the ir analysis of the benefits and side effects of medication , and the court’s review of that analysis

. As t he Tenth Circuit persuasively observes, “w ithout knowing which drugs the government might administer and at what range of doses, a court cannot properly conclude that such a vague treatment plan is10

PUBLIC COPY – SEALED I NFORMATION DELETED ‘medically appropriate.’” United States v. Chavez , 734 F.3d 1247, 1253 (10th Cir. 2013) (quoting Se ll , 539 U.S. at 181).

Here, it is unclear what the Butner staff have in mind as Gamarra’s treatment plan. Other than stating that

Dr. Graddy provides no details about his plans for Gamarra. He identifies no specific starting dose, nor does he commit to a maximum dosage that Gamarra will receive . All we have to go on is the generic statement in the appendix that Butner provi des in every Sell case , noting that

Dr. Graddy testified that he would monitor Gamarra and adjust his medication “imme diately” in response to any side effects. 4/20/ 18 Hr’g Tr. at 41. He also claimed that he would “immediately” act to mitigate any side effects

, perhaps by using beta blockers. Id. at 42 , 46.

Faced with plans sketched at th at level of generality, it is difficult to see how a court could make the medically informed determinations that the second and fourth Sell factors demand. How, for example, would Dr. Graddy modulate his treatment “immediately” if he has administered a long

- acting form of risperidone that lasts several weeks? Indeed, other courts have been able to reach those conclusions only by reviewing detailed, recommended treatment plans medical personnel proffer for specific patients, and probing them with the aid of academic studies and medical testimony

. See, e.g.
, Onuoha

, 820 F.3d at 1057-60 ; United States v. Watson , 793 F.3d 416, 424- 27 (4th Cir. 2015); Grigsby , 712 F.3d at 975 -76 ; United States v. Evans , 404 F.3d 227, 241 (4th Cir. 2005)

. It is unclear why the government did not provide a specific treatment plan here and how, without one , a district court can be expected to11

PUBLIC COPY – SEALED I NFORMATION DELETED engage in the “sensitive balancing” that Sell contemplates. Dillon , 738 F.3d at 296.

Second, the government must dem onstrate by clear and convincing evidence that the particular drug recommended is medically appropriate. As noted, Sell itself provides that the “specific kinds of drugs at issue” are a relevant consideration under this factor. Sell , 539 U.S. at 18 1. In this case, Dr. Graddy

s aid that he would pursue a course of risperidone because Gamarra has responded well to it in the past . But G amarra’s medical records reveal an incident where he blacked out and was hospitalized after ingesting risperidone, with t reating staff recording an unhealthily low blood pressure level . And G amarra has consistently articulated an aversion to th at particular drug. To be sure, his aversion was irrationally expressed. He said that asserted that But e ven an aversion entangled in delusional beliefs would seem to bear on a patient’s level of compliance with the proposed medication regimen

, as well as the likelihood that its administration will be unnecessarily traumatic for him.

Indeed, Dr. Graddy’s own report suggests no reason to administer risperidone rather than another antipsychotic

, especially one such as Seroquel that Gamarra actually favored

.

Gamarra requested Seroquel when he arrived at FMC Butner , and he did at the outset demonstrate some compliance on it. The Sell Appendix asserts that12

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And

, as applied to Gamarra himself, Dr. Graddy’s report stated that

Perhaps there are good medical reasons for Dr. Graddy’s choice of risperidone, but th o se reasons are not apparent from the record.

Third, a court order granting a Sell motion should state meaningful limitations on what drugs and dosages a defendant may receive , and for how long attempts to restore a defendant ’s competence may continue. Other circuits have required that the “order to involuntarily medicate a non

- dangerous defendant solely in order to render him competent to stand trial mus t specify which medications might be administered and their maximum dosages.” Chavez , 734 F.3d at 1253; see also United States v. Breedlove , 756 F.3d 1036, 1043

- 44 (7th Cir. 2014); United States v. Hernandez -Vasquez , 513 F.3d 908, 916 -17 (9th Cir. 200 8 ); United States v. Bush , 585 F.3d 806, 817 -18 (4th Cir. 2009); Evans , 404 F.3d at 240-42. By statute, once it has been determined that “there is a substantial probability that in the foreseeable future” a defendant may be rendered competent, the defendant may be detained only for “the time period specified.” 18 U.S.C. § 4241(d) (1), (d) (2). He re, t he district court order granting forcible medication required only that the “medical staff at FMC Butner submit a report detailing Gamarra’s treatment (including the assessment and management of any side effects), and any further recommendations conce rning future treatment within thirty (30) days of the commencement of Gamarra’s involuntary medication, and then every thirty (30) days thereafter.” J.A. 207. An open -ended order of this kind impermissibly grants the Butner staff “ carte blanche ” to treat Gamarra as they see fit

.13

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Breedlove , 756 F.3d at 1044 (quoting Evans , 404 F.3d at 241)

. This is especially so since Dr. Graddy’s “proposed individualized treatment plan” broadly authorizes him to

It is thus worth stressing that o ur judgment here does not prevent the district court from seeking

an y further information it may need as Gamarra’s treatment proceeds to ensure that the treatment is carried out in a manner that is medically appropriate under Sell , and time

- limited as required by section 4241(d)(2).

Courts cannot and need not micromanage the medication decisions of medical professionals. Cf. Onuoha , 820 F.3d at 1059; Hernandez-Vasquez , 513 F.3d at 917. The medical decisions can be made only by experts . Bu t where the government seek s to medicate a defendan t in order to prosecute him , it must persuade the court that the medical decisions are appropriate. In this context, it is not too much to ask that doctors propose , and district courts set

, basic boundaries on permissible treatment , including the drug(s) to be administered

, the maximum dosage, and the contemplated timeframe for
treatment. Although Gamarra does not raise these considerations, other circuits have required such specificity for Sell orders within their jurisdiction , an d I see no reason why we would not follow suit.

* * *

In light of the serious liberty interest at stake in the forcible administration of psychotropic medication

, the government must demonstrate , in each case by clear and convincing evidence, that it retains an important interest in the prosecution,14

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– SEALED I NFORMATION DELETED that adequate efforts at voluntary compliance were attempted, and that medical staff ha ve 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 joi n 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

.