## F I L E D United States Court of Appeals Tenth Circuit 

### July 19, 2005 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 04-4174 JAY RICHARD MORRISON,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH (D.C. NO. 2:04-CR-288-PGC)

Benjamin A. Hamilton, Salt Lake City, Utah, for Def endant - Appellant. Mark K. Vincent, Assistant United States Attorney ( Paul M. Warner, United States Attorney, with him on the brief), Salt Lake City, Utah, for Plaintiff - Appellee.

Before HENRY , HARTZ , and McCONNELL , Circuit Judges.

HARTZ , Circuit Judge.

Defendant Jay Richard Morrison appeals a district c ourt order authorizing involuntary administration of antipsychotic medicat ion to render him competent to stand trial. We vacate the order and remand for fu rther proceedings.-2-

Sell v. United States , 539 U.S. 166, 169 (2003), sets forth a four-part test defining the limited circumstances in which the Gov ernment may “administer antipsychotic drugs involuntarily to a mentally ill criminal defendant—in order to render that defendant competent to stand trial.” “ First, a court must find that importantgovernmental interests are at stake.” Id. at 180. Bringing defendants charged with serious crimes to trial is an importan t government interest, but the importance of that interest may be reduced by speci fic circumstances, such as the amount of time the defendant has already spent in c onfinement (which would be credited toward any eventual sentence) or the possi bility of civil commitment absent a criminal trial. Id. Second, a court must find that the medication is both “substantially likely to render the defendant compe tent to stand trial” and “substantially unlikely to have side effects that w ill interfere significantly with the defendant’s ability to assist counsel in conduc ting a trial defense, thereby rendering the trial unfair.” Id. at 181. Third, “[t]he court must find that any alternative, less intrusive treatments are unlikely to achieve substantially the same results,” and “must consider less intrusive means f or administering the drugs,” such as a court order directing the defendant to ta ke the medication. Id. And fourth, “the court must conclude that administratio n of the drugs is medically appropriate , i.e., in the patient’s best medical interest in l ight of his medical condition.” Id.-3-

Sellnotes, however, that “ordinarily” a court should n ot engage in the above analysis unless it has first considered wheth er it is appropriate to medicate the defendant to ensure the defendant’s safety or t he safety of others. Id. at 183. In its earlier opinion in Washington v. Harper , 494 U.S. 210, 227 (1990), the Court had held that it is permissible to administerantipsychotic drugs involuntarily to a prison inmate with a serious men tal illness “if the inmate is dangerous to himself or others and the treatment is in the inmate’s medical interest.” In this case the district court ordered involuntary medication based on its application of the four-part Selltest. But it did not explore whether involuntary medication would be proper under Harper , nor did it question why the Government had not sought involuntary medication un der Harper . Because a Harper inquiry would either moot or better inform the Sellinquiry, we reverse the district court’s order and remand for further proce edings.
I. BACKGROUND In a felony complaint filed on February 14, 2003, i n the United States District Court for the District of Utah, Defendant was charged with two counts of violating 18 U.S.C. § 875(c) by willfully and knowi ngly transmitting in interstate commerce an internet communication threatening to i njure another person. The communications threatened the lives of Gordon Hinck ley, First President of the-4-

Church of Jesus Christ of Latter-day Saints, and th e members of the church’s Quorum of the Twelve Apostles. For example, on Feb ruary 6, 2003, Defendant allegedly posted the following message: I have been given the moral right to kill them, not only Gordon Hinckley but the entire first presidency and Quorum of the Twelve. . . . Thus I had the FBI banging on my doo r the week before last. . . . We are now going to proceed with killi ng them. These men are corrupt, totally and completely insane, complet ely evil. They deserve to be killed, they need to be killed and no w they are going to be killed. R., Vol. II, Doc. 1, at 4. At the Government’s request, the magistrate judge o n February 27, 2003, ordered Defendant committed for examination to dete rmine his competency to stand trial and his sanity at the time of the offen se. See 18 U.S.C. §§ 4241 (competency), 4242 (sanity), 4247 (psychiatric and psychological reports). The forensic evaluation by the United States Bureau of Prisons, dated July 7, 2003, found that Defendant was incompetent to stand trial and was likely insane at the time of the offense. Regarding competency, the psy chiatric report said [Defendant] has the cognitive ability to understand the nature and consequences of the court proceedings against him, and the ability to properly assist counsel in his defense. However, h is fixed delusional beliefs are intimately entwined with the substance of the case against him and thus his ability to cooperate with counsel and assist in his defense is presently undermined. He lacks any insi ght that he suffers from a mental illness, and is likely to want to eng age in counterproductive legal strategies against the advi ce of his attorney.-5-

R., Vol. III, Exhibit 1, at 14. As for sanity at t he time of the offense, the report observed: With respect to the issue of criminal responsibility in the present case, it appears that [Defendant] has suffered from a del usional disorder for an extended period and that he was genuinely delusi onal during the period in question. In addition, it appears that h is delusional beliefs directly contributed to his behavior when posting t hreatening statements on the internet. Consequently, since he was convinced he was conducting the work of “the Lord,” he was unabl e to appreciate the criminality of his conduct or to conform his co nduct to the requirements of the law. However, following treatm ent with regards to competency this issue may require re-evaluation. Id. At a competency hearing on July 29, 2003, the magis trate judge found by a preponderance of the evidence that Defendant suffer ed from a mental disease or defect that rendered him unable to assist properly in his defense. The judge ordered Defendant committed to the Bureau of Prison s for treatment and evaluation to determine whether there was a substan tial probability that he would become competent in the near future. See 18 U.S.C. § 4241(d). During this commitment Defendant initially refused to take medication. But in October 2003 he voluntarily consented to take qu etiapine, brand-name Seroquel, and he continued to do so for approximately four we eks. He then refused the medication, claiming that it caused him to have “he art attacks.” In response to his concern, two electrocardiograms were performed. Bo th were normal, but Defendant nonetheless continued to refuse to take t he medication.-6-

In a forensic report dated December 18, 2003, Dr. L ea Ann Preston, the clinical psychologist treating Defendant, stated th at antipsychotic medication was necessary to restore his competency. Addressing th e second, third, and fourth prongs of the Selltest, Dr. Preston rendered her opinion that (1) th ere was a substantial probability that the medication would r ender Defendant competent to stand trial without producing side effects that wou ld impair his ability to assist his attorney; (2) his psychotic symptoms were unlikely to improve without involuntary medication; and (3) medication was medically approp riate for his condition, schizophrenia. Accordingly, on January 15, 2004, t he Government moved to authorize involuntary medication. Pending evaluati on by a nongovernment expert, the Government moved for an order that Defendant ta ke the medication or face contempt-of-court proceedings. The magistrate judg e issued the requested order on February 5, 2004, but Defendant still refused to take the medication. On April 22, 2004, the magistrate judge held a hear ing on the Government’s January 15 motion. Dr. Preston, the treating psych ologist, testified in conformity with her December 18 report. Dr. James Wolfson, th e supervising psychiatrist who prescribed the Seroquel, testified regarding th e side effects and benefits of the drug, concluding that it was an effective treatment for Defendant’s condition and that he was unlikely to regain competence absent an tipsychotic medication.-7-

The Government contended that the expert testimony satisfied the last three prongs of the Selltest. And on the first prong—the important-govern ment-interest requirement—the Government offered two contentions: (1) that the requirement was satisfied “because the defendant’s been accused of a serious crime,” R., Vol. IV, at 115, and (2) that “the facts show that [Defe ndant] is a danger to the community . . ., that there’s a serious government interest in bringing the defendant to trial because of the victims that have been involved, good members of society.” Id. Because the witnesses at the hearing had not test ified regarding Defendant’s danger to himself or others, the Govern ment’s mention of “the facts” showing dangerousness must have been a reference to evidence of Defendant’s crime. Responding to the testimony by Drs. Preston and Wol fson, defense counsel (1) conceded that the medication was likely to rest ore competency, but argued that adverse side effects such as kidney pain, heart pal pitations, and frequent sweating—all of which Defendant claimed to have suf fered—would interfere with his ability to assist counsel and could adversely a ffect how he looked to the jury; (2) stipulated that Sell’s third prong was satisfied; and (3) contended that the side effects experienced by Defendant, either real or im agined, made the medication medically inappropriate. Defense counsel’s princip al focus, however, was Sell’s first prong. Although he stipulated that prosecuti ng a defendant for a serious-8-

crime is an important government interest, he point ed out that Sellstates that a court “must consider the facts of the individual ca se in evaluating the government’s interest in prosecution” because “[s]p ecial circumstances may lessen the importance of that interest.” R., Vol. IV, at 112. Counsel asserted that the Government’s interest was diminished in this case b ecause Defendant had a likely insanity defense (as supported by both a defense expert and the Bureau of Prisons report of July 7, 2003) and had already been confin ed for almost the entire term to which he would be sentenced under the Sentencing Gu idelines if convicted. Counsel noted that if Defendant was found not guilty by reason of insanity, the next step would be a dangerousness hearing for civi l commitment under § 4246, the same process that would be required if he was n ot restored to competency within a reasonable time, see 18 U.S.C. § 4241(d). Thus, according to defense counsel, the shorter route to the inevitable end wo uld be simply to hold the § 4246 hearing now rather than ordering involuntary medication. The magistrate judge expressed concern that a defen dant might manipulate the system by refusing to take medication and there by avoid criminal charges. He also noted that the outcome of a § 4246 dangerousne ss hearing could not be predicted, thus making it impossible to balance the current interest in prosecution against the possibility of a prolonged civil commit ment. “I don’t know what the-9-

result of the 4246 hearing will be, so how can I ma ke that balance,” he said. R., Vol. IV, at 123. The magistrate judge concluded that the Government had established all four Sellprongs by a preponderance of the evidence and orde red involuntary medication. His written findings state: 1) Important governmental interests are at stake in bringing the defendant (who has been accused of serious crimes) to trial; 2) Forced medication of the defendant will significa ntly further government interests by being substantially likely to render the defendant competent to stand trial and substantiall y unlikely to have side effects that will interfere significantly with the defendant’s ability to assist counsel in conducting a defense; 3) Forced medication of the defendant is necessary t o further those previously pronounced interests and there are not a ny alternative, less intrusive treatments available to achieve substantially the same results, to wit: restoring d efendant’s mental competency to stand trial; and 4) The administration of anti-psychotic medications by appropriate medical staff for the United States Bureau of Priso ns is medically appropriate. R., Supp. Vol. II, Doc. 33, at 4. Defendant appealed to the district court, which, re lying on Federal Rule of Criminal Procedure 58(g)(2)(D), applied the same st andard of review that a circuit court would apply on appeal and thus reviewed the l egal conclusions de novo and factual findings for clear error. It affirmed, sta ting, “Having reviewed [the magistrate judge’s] analysis and the arguments by b oth parties, the court cannot-10-

conclude that [the magistrate judge] erred in order ing [Defendant] to be forcibly medicated.” R., Vol. I, Doc. 9, at 2. The distric t court stayed its order pending appeal. Defendant then appealed to this court. The involun tary-medication order is an appealable collateral order. Sell , 539 U.S. at 176-77. We therefore have jurisdiction under 28 U.S.C. §§ 1291 & 1294.
II. DISCUSSION On appeal Defendant raises two issues. His first g round for reversal, which was not raised below, is that the district court wa s required to exercise de novo review of the magistrate judge’s order on the facts as well as the law. Defendant may well be correct. There is authority for the pr oposition. See United States v.
Rivera-Guerrero , 377 F.3d 1064 (9th Cir. 2004). But we need not a ddress the issue, because we reverse on the second ground, his claim that the district court (via the magistrate judge’s ruling) did not comply with Sell

. As previously explained, Sellholds that the Constitution permits the Government involuntari ly to administer antipsychotic drugs to a mentally ill defendant fac ing serious criminal charges in order to render that defendant competentto stand trial, but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairnes s of the trial, and taking account of less intrusive alternatives, is n ecessary significantly to further important governmental trial-related int erests.-11-

Sell , 539 U.S. at 179. But the Court cautioned that th e same result can often be reached on less troublesome grounds: A court need not consider whether to allow forced m edication for [the purpose of rendering the defendant competent to sta nd trial], if forced medication is warranted for a differentpurpose, such as the purposes set out in Harperrelated to the individual’s dangerousness, or purposes related to the individual’s own interests where refusal to take drugs puts his health gravely at risk. There are often strong reasons for a court to determine whether forced adm inistration of drugs can be justified on these alternative grounds before turning to the trial competence question. Id. at 181-82 (citation omitted). Sell concluded that a court, when asked to order involuntary medication to render a defendant compet ent to stand trial, at the outset “should ordinarily determine whether the Governmentseeks, or has first sought, permission for forced administration of drugs on .

. . Harper -type grounds; and if not, why not.” Id. at 183. Harperaddressed whether a convicted prisoner who was men tally ill and posed a likelihood of serious harm to himself or ot hers could be involuntarily medicated with antipsychotic drugs. The State of W ashington, whose practices were reviewed in Harper , allowed involuntary medication of an inmate “only if he (1) suffers from a ‘mental disorder’ and (2) is ‘gr avely disabled’ or poses a ‘likelihood of serious harm’ to himself, others or their property.” Harper , 494 U.S. at 215. The Court held that “given the requir ements of the prison environment, the Due Process Clause permits the State to treat a prison inmate-12-

who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the tr eatment is in the inmate’s medical interest.” Id. at 227. In Riggins v. Nevada , 504 U.S. 127, 133-36 (1992), the Court applied Harper’s analysis to pretrial detainees such as Defendant. See Jurasek v. Utah State Hosp. , 158 F.3d 506, 510-11 (10th Cir. 1998) ( Harper applies to pretrial detainees and also to civilly c ommitted persons). Sellreasoned that the Harperinquiry should be the first step because “the inquiry into whether medication is permissible, say , to render an individual nondangerous is usually more ‘objective and managea ble’ than the inquiry into whether medication is permissible to render a defen dant competent.” Sell , 539 U.S. at 182 (quoting Riggins , 504 U.S. at 140 (Kennedy, J., concurring)). Judg ing whether a particular medication is medically approp riate and likely to control dangerous behavior is a more straightforward questi on for medical experts than “balanc[ing] harms and benefits related to the more quintessentially legal questions of trial fairness and competence.” Id. The Court further observed that the Harper inquiry would not be time wasted even if it does n ot result in compulsory medication, because “the findings underl ying such a decision will help to inform expert opinion and judicial decisionmakin g in respect to a request to administer drugs for trial competence purposes.” Id. at 183.-13-

In our view the general rule set forth in Sellapplies here—the Harper inquiry should have preceded the Sellinquiry (or at least the Government should have explained why it did not pursue a Harperinquiry, see Sell , 539 U.S. at 183). Besides the general reason that a Harperinquiry is more tractable than a Sell inquiry, the central role of dangerousness in the Sellinquiry in this case calls out for proceeding under Harperfirst. Defendant, particularly after the time absorbed in appeals, will have been confined beyond the usual amount of time for those convicted of violating 18 U.S.C. § 875(c), even assuming he made more than tw o threats and is in criminalhistory category II. See United States Sentencing Guidelines § 2A6.1.(a) and (b)(2) (setting a base-offense level of 14, yieldin g a guidelines maximum of 24 months for criminal-history category II). This con finement would be credited to any sentence imposed after a criminal conviction. See Sell , 539 U.S. at 180 (a defendant confined because incompetent to stand tri al “would receive credit toward any sentence ultimately imposed, see 18 U.S. C. § 3585(b)”). Accordingly, unless Defendant is so dangerous that an unusually extended prison sentence is appropriate, the governmental interest in separatin g him from society is unlikely to be served by a future criminal trial. And if he is such a continuing threat to society because of his mental illness, then he is l ikely to be confined civilly under 18 U.S.C. § 4246, which could result in confinementbeyond that permitted under-14-

the criminal law, again reducing the governmental i nterest in confining Defendant under a criminal sentence. The reason the magistra te judge refused to consider, as part of the balancing of interests, the possibility of Defendant’s confinement under § 4246 is that he had no information regarding the likelihood of such confinement—an omission that could be filled, at le ast in part, by a Harper inquiry. To be sure, regardless of confinement there is an i mportant governmental interest in an adjudication regarding guilt. But d isposition of the criminal charge against Defendant may well not produce such a resul t. As defense counsel pointed out to the magistrate judge, not only has a defense expert concluded that Defendant was entitled to an insanity defense, but the Bureau of Prisons evaluation was the same (although it recommended further evalu ation if Defendant became competent to stand trial). There may be occasions when it is appropriate to re solve whether the fourpart Selltest justifies an order for involuntary administration of psychotropic drugs without first determining whether there is an alter native ground for such an order. But it would be good practice to assume otherwise. In this case, such an assumption would have been warranted, especially be cause of the particular relevance of information concerning Defendant’s pot ential dangerousness arising from his mental illness.-15-

We vacate the district court’s order and remand forfurther proceedings. On remand the district court should require the Govern ment to proceed first under Harper , or explain why it chooses not to. If involuntary medication is not appropriate under Harper , the district court may then reconsider whether an involuntary-medication order is appropriate under Sell

. III. CONCLUSION The order that Defendant be involuntarily medicated is VACATED and the case is REMANDED for further proceedings.United States v. Morrison , No. 04-4174

HENRY , J., concurring, I agree with the majority that the district court should direct the government to either proceed with the Harperinquiry or announce why it chooses not to do so. I write separately to state my view as to how the d istrict court should proceed if the government does not establish that Mr. Morrison is a danger to himself or others such that he may be involuntarily medicated under Harper

. In that event, I believe that the district court sh ould revisit the four-part Sell inquiry. First, the court should determine whetherthe prosecution, “in light of the efficacy, the side effects, the possible alternativ es, and the medical appropriateness of a particular course of antipsych otic treatment,” has shown “a need for that treatment sufficiently important to o vercome the individual’s protected interest in refusing it.” Sell , 539 U.S. 166, 183 (2003). The court “must consider the facts of the individual case in evalua ting the Government’s interest in prosecution.” Id. at 180; see also United States v. Gomes , 387 F.3d 157, 161 (2d Cir. 2004) (discussing the charges against the defe ndant and the potential sentence he could receive and determining “whether the poten tial for civil commitment abate[d] the Government’s interest in prosecuting [ the defendant]”). Here, Mr. Morrison has been charged with serious cr imes: two counts of making death threats in violation of 18 U.S.C. § 87 5(c). Each count carries a maximum sentence of five years’ incarceration. The seriousness of the charged-2-

offenses lends support to the prosecution’s argumen t for involuntary medication. On the other hand, Mr. Morrison has been held in cu stody since February 2003. Although we cannot now determine the length of the sentences that Mr. Morrison will receive if the criminal prosecution proceeds a nd he is convicted, it is conceivable that he will have already served a subs tantial part of those sentences by the time the criminal case is concluded. As a r esult, civil commitment proceedings may protect the public more effectively than the criminal prosecution. In any event, under the first prong of the Sell inquiry, these considerations should be carefully weighed by the district court on reman d. Next, in my view, the district court should proceed to the second, third, and fourth parts of the Sell inquiry. I agree with the Second Circuit that “th e relevant findings must be supported by clear and convincing evidence.” Gomes , 387 F.3d
at 160.