UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

MICHAEL JAMES SEATON, 

 Defendant - Appellant. 

No. 19-1093 

(D.C. No. 1:18-CR-00027-RBJ-1) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before LUCERO, BACHARACH, and EID, Circuit Judges. 

_________________________________ 

Michael Seaton appeals a district court order requiring that he be involuntarily 

medicated in an effort to restore him to competency to stand trial under Sell v. United 

States, 539 U.S. 166 (2003). Such orders are subject to our interlocutory review 

under the collateral order doctrine. Id. at 177. Seaton contends that because the 

length of his pretrial detention (which would be credited to any term of 

imprisonment) may be as long as his Guidelines range, the district court erroneously 

determined the government’s interest in bringing him to trial is important. However, 

Seaton’s calculations fail to consider the potential for a term of supervised release, 

 * This order and judgment is not binding precedent, except under the doctrines 

of law of the case, res judicata, and collateral estoppel. It may be cited, however, for 

its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 10, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

which we conclude is particularly important under the facts of this case and would 

likely extend well beyond the duration of pretrial confinement. Seaton also argues 

the district court clearly erred in ruling that anti-psychotic medication is substantially 

likely to restore him to competency. In light of the expert testimony provided on 

general success rates and factors particular to Seaton, we disagree. Accordingly, we 

affirm the district court’s Sell order. 

I

Seaton is charged with one count of communicating a threat in interstate 

commerce in violation of 18 U.S.C. § 875(c) and one count of threatening to murder 

the family member of a U.S. official in violation of 18 U.S.C. § 115(a)(1)(A). The 

charges stem from a call he allegedly made to a U.S. Senator. 

Seaton was arrested in January 2018. Shortly after being appointed, defense 

counsel moved for a competency evaluation. Forensic psychiatrist Dr. Susan Bograd 

conducted an in-person evaluation of Seaton that lasted approximately four and a half 

hours. She determined he had suffered from schizophrenia for approximately forty 

years, during which time he had not received mental health treatment. Dr. Bograd 

opined that Seaton was not competent to stand trial because he was unable to assist in 

his defense and did not understand the nature and consequences of the proceeding. 

She also stated: “it is my opinion with a reasonable degree of medical certainty that 

it is more likely than not that his psychiatric symptoms will be insufficiently 

alleviated to achieve restoration to competency” because “[a] great deal of longlasting, well ingrained, complex and multilayered delusional thinking would have to 
3 

resolve for him to understand the nature and consequences of the proceedings and to 

assist properly in his defense.” A second psychiatrist, Dr. Karen Fukutaki, also 

concluded Seaton was not competent to stand trial. 

 Following a hearing at which Seaton, Dr. Bograd, and Dr. Fukutaki testified, 

the district court found Seaton incompetent to proceed. It ordered him committed to 

custodial hospitalization under 18 U.S.C. § 4241(d) for up to four months to 

determine whether his condition was likely to improve. Seaton was transferred to a 

Bureau of Prisons (“BOP”) medical facility in Springfield, Missouri. 

BOP forensic psychologist Dr. Lea Ann Preston Baecht saw Seaton routinely 

during his stay and conducted numerous clinical interviews. She encouraged him to 

consent to anti-psychotic medication, but he refused. After several months at the 

facility, Dr. Preston Baecht opined that Seaton remained incompetent and was 

unlikely to be restored to competency absent the use of anti-psychotic medication. 

She further stated that “it is substantially likely that Mr. Seaton will be restored to 

competency” if he were administered anti-psychotic medication. She explained that 

she could not “guarantee” such an outcome but noted that “the available literature 

supports the conclusion that most individuals with psychotic symptoms can be 

successfully restored to competency.” Dr. Robert Sarrazin, chief of psychiatry at the 

facility, prepared a treatment plan identifying specific medication and dosages. 

Dr. Bograd conducted a second interview with Seaton. She agreed that Seaton 

remained incompetent to proceed. She also concluded that anti-psychotic medication 

was in “Seaton’s best medical interest because of his mental health condition.” 
4 

However, Dr. Bograd concluded “that medication is not substantially likely to 

render . . . Seaton competent” because “[h]is delusional belief system is longstanding 

and complex.” 

The government then moved for a Sell hearing and an order for involuntary 

medication of Seaton. Seaton opposed the motion. The district court held an 

evidentiary hearing at which Dr. Bograd, Dr. Preston Baecht, and Dr. Sarrazin 

testified. 

Dr. Preston Baecht testified that she met with Seaton at least once per week 

over four months, and spent many hours with him. During her twenty-year BOP 

career, she had seen approximately fifty to seventy patients per year, the majority of 

whom were evaluated for restoration of competency. Based on that experience and 

on competency-restoration literature, Dr. Preston Baecht concluded that medication 

was substantially likely to render Seaton competent. She explained that the literature 

indicated approximately 75 to ninety percent of patients treated with anti-psychotic 

medication are restored to competency. 

She discussed several factors that influence individual defendants’ prognoses. 

A co-occurring cognitive disorder, such as dementia, or a prior history of failed 

treatments make it less likely that medication will be successful. Seaton did not 

present either factor. She also noted that Seaton’s “particular case” was not factually 

complex. Dr. Preston Baecht conceded some of Seaton’s characteristics had been 

found to correlate with less favorable prognoses, including poor adjustment prior to 

his primary diagnosis of schizophrenia and being male. However, she stated that 
5 

Seaton was not atypical in terms of the degree to which his delusions are entrenched 

or the extent of his impairment. 

Although she acknowledged that the length of untreated psychosis correlates 

with poor outcomes, Dr. Preston Baecht noted most of that research does not focus on 

competency restoration. And she stated that data on competency restoration typically 

does not “parse out duration of untreated psychosis.” But in her “personal 

experience,” she had observed improvement in “patients that have gone many, many 

years without being treated.” Dr. Preston Baecht further stated that she has had “a lot 

of patients that go a very long time without receiving treatment, and they still 

respond well to medicine.” She identified one patient who had been psychotic for 

approximately forty years, with one brief period of medical restoration fifteen years 

prior, whose symptoms had completely remitted. She concluded: 

although I think it is reasonable to be concerned that [Seaton] may not 

respond as well as if he had received treatment as soon as his symptoms 

emerged, I don’t think that it’s enough for me to say it’s a barrier that he 

will not be restored, because in my experience, even with long periods 

of untreated psychosis, I still see [patients] benefiting from treatment. 

Dr. Sarrazin also testified that medication was substantially likely to restore 

Seaton to competency. Based on his seventeen years of experience at the BOP 

facility, Dr. Sarrazin stated that approximately 75 percent of patients treated with 

anti-psychotic medication are restored to competency. He also identified several 

factors that influence the likelihood an individual will respond favorably, including 

past response to anti-psychotic medication, age, and a significant intellectual 

disability. He conceded that the duration of untreated psychosis is a factor. But he 
6 

explained that some of the literature to that effect focused on individuals who had 

either a separate cognitive issue or had been hospitalized for lengthy periods. 

Because Seaton had been functioning in society for the duration of his illness, Dr. 

Sarrazin suggested his issues were likely less severe than those who failed to respond 

to treatment. 

Dr. Bograd testified that anti-psychotic medication was not substantially likely 

to restore Seaton to competency. She stated that medication would likely provide 

some benefit, but the length of time Seaton had been suffering untreated and the fact 

that Seaton’s delusions were deeply ingrained made it less likely medication would 

restore him to competency. Dr. Bograd testified that she was not necessarily 

comparing the degree of Seaton’s delusional belief system with other schizophrenic 

patients, but that Seaton was an “exception in [her] broader experience.” She 

admitted, however, that Seaton had been able to live independently throughout his 

adult life despite his illness. 

At the close of the hearing the district court stated it was “probably” going to 

rule in favor of Seaton. However, Seaton indicated he would be willing to take 

medication. The government withdrew its Sell motion. Shortly after the hearing, 

however, defense counsel informed the court and the government that Seaton again 

refused medication. The government then renewed its Sell motion. 

The district court convened a second hearing but did not hear any additional 

evidence. It concluded the government had carried its burden of establishing the Sell 

factors by clear and convincing evidence. As to whether medication was 
7 

substantially likely to restore Seaton to competency, the district court summarized the 

testimony of the three witnesses. In discussing that testimony, the district court 

stated it had “no way of knowing” whether the medication would work, and “the only 

way that we can really find out if they will render him competent is to try it.” The 

court further stated “that these medications are very likely to help Mr. Seaton, and 

there is at least a decent possibility, maybe probability, that they would either render 

him competent or answer the question.” Defense counsel objected that the standard 

is substantial probability. The court then stated it had misspoken, and after again 

discussing the expert testimony found “that the evidence establishes that the 

medications are substantially likely to render the defendant competent and 

substantially unlikely to have side effects that will interfere with his ability to assist 

his counsel by a vote of two to one.” 

The district court entered a written order granting the government’s Sell 

motion. It permitted the government to pursue a specified treatment plan for a period 

of up to four months. Seaton filed a notice of appeal. The district court then stayed 

its order pending appeal. 

II

“The forcible injection of medication into a nonconsenting person’s body . . . 

represents a substantial interference with that person’s liberty.” Riggins v. Nevada, 

504 U.S. 127, 134 (1992) (quotation omitted). “[I]nstances of involuntary 

medication of a non-dangerous defendant solely to render him competent to stand 
8 

trial should be rare and occur only in limited circumstances.” United States v. 

Valenzuela-Puentes, 479 F.3d 1220, 1223 (10th Cir. 2007) (quotation omitted). 

To obtain an order for the involuntary medication of a pretrial detainee for the 

purpose of restoring him to competency, the government must show: 

(1) “important governmental interests are at stake”; (2) the “involuntary 

medication will significantly further” those interests; (3) the

“involuntary medication is necessary to further those interests,” e.g., 

less intrusive alternative treatments are unlikely to be effective; and (4) 

the administration of the medication is “medically appropriate” and in 

the defendant’s best medical interests. 

United States v. Chavez, 734 F.3d 1247, 1249 (10th Cir. 2013) (quoting Sell, 539 

U.S. at 180-81 (emphases omitted)). The first two prongs “are primarily legal 

questions that we review de novo.” Id. at 1250. Any underlying factual findings, 

which the district court must find by clear and convincing evidence, are reviewed for 

clear error. Id. Clear and convincing evidence is that which “places in the ultimate 

factfinder an abiding conviction that the truth of its factual contentions are highly 

probable.” Valenzuela-Puentes, 479 F.3d at 1228 (quotation and alteration omitted). 

The first two prongs of the Sell test are at issue in this appeal. 

A 

In general, “[t]he Government’s interest in bringing to trial an individual 

accused of a serious crime is important.” Sell, 539 U.S. at 180. “Whether a crime is 

‘serious’ relates to the possible penalty the defendant faces if convicted, as well as 

the nature or effect of the underlying conduct for which he was charged.” 

Valenzuela-Puentes, 479 F.3d at 1226. In Valenzuela-Puentes, we concluded a crime 
9 

with a statutory maximum of twenty years was “serious,” and cited with approval a 

Fourth Circuit case holding that a crime with a statutory maximum of ten years also 

so qualified. Id. (citing United States v. Evans, 404 F.3d 227, 232 (4th Cir. 2005)). 

The statutory maximum under § 875(c) is five years, and the maximum under § 115 

is ten years. We also agree with the district court that the threatening conduct at 

issue was of considerable gravity. See Evans, 404 F.3d at 232 (holding that threats 

made to a federal judge charged under § 115 are sufficiently serious). 

Although the government’s interest in charging Seaton is important, “[s]pecial 

circumstances may lessen the importance of that interest.” Valenzuela-Puentes, 479 

F.3d at 1227 (quotation omitted). For example, a defendant may have “already been 

confined for a significant amount of time (for which he would receive credit toward 

any sentence ultimately imposed).” Id. (quotation omitted). Accordingly, “when the 

amount of time the defendant is confined pending determination of competency is in 

parity with an expected sentence in the criminal proceeding, the Government may no 

longer be able to claim an important interest in prosecution.” Id. (quotation omitted); 

see also United States v. Bradley, 417 F.3d 1107, 1117 (10th Cir. 2005) (considering 

the time that “elapsed between [defendant]’s commitment for competency 

examination and the court’s order for involuntary administration of antipsychotic 

drugs”). In determining the expected sentence, we have looked to the statutory 

maximum and the likely Guidelines range. See Valenzuela-Puentes, 479 F.3d at 

1226 (noting defendant “faces a statutory maximum prison term of twenty years, 
10 

although if he pleads guilty he will likely be sentenced within the guideline range to a 

term of 77 to 96 months”).1

 

As noted above, Seaton’s statutory maximum sentences are five and ten years. 

§ 875(c); § 115. The parties provide a number of potential Guidelines ranges. It 

appears Seaton’s criminal history category is I and the base offense level for both 

charges is twelve.2 See U.S.S.G. § 2A6.1(a)(1). It is not clear whether his two 

offenses would be grouped under U.S.S.G. § 3D1.2. If they do not group, he could 

be subject to an increased offense level. See U.S.S.G. § 3D1.4. Seaton might face a 

two-level enhancement if the offense involved more than two threats, U.S.S.G. 

§ 2A6.1(b)(2)(A), and a four-level enhancement if the threat resulted in a substantial 

expenditure of resources, U.S.S.G. § 2A6.1(b)(4)(B). Seaton could also obtain a twolevel reduction for acceptance of responsibility. U.S.S.G. § 3E1.1. If each of these 

issues were decided in Seaton’s favor, his Guidelines range could be as low as six to 

twelve months. If each of these issues were decided in the government’s favor, his 

 1

 Seaton argues that the district court failed to consider this special 

circumstance. However, during the first hearing, the district court discussed the 

matter. At one point, the court stated that Seaton’s “sentence might be eaten up 

already by the time he’s served, right? That’s what you’re trying to convince me in 

your document.” It also noted that Seaton could be in pretrial custody for “around 30 

months.” In making its ruling on the first prong, the court stated that it had 

“considered defendant’s position.” We thus reject Seaton’s contention that the 

district court failed to assess whether his pretrial detention diminished the 

government’s interest. 

2

 The foregoing discussion of Seaton’s potential Guidelines calculations are 

based on the parties’ submissions. We of course cannot definitively calculate his 

Guidelines range at this stage of the proceeding. 
11 

range could be as high as thirty to 37 months. The government also notes that Seaton 

faces a term of supervised release following any sentence of imprisonment. Under 

U.S.S.G. § 5D1.2(a)(1), he would likely receive one to three years of supervised 

release. The district court referenced supervised release several times during the 

hearing. 

At the time of the district court’s decision, Seaton had been in custody for 

fourteen months. Restoration to competency through the use of anti-psychotic 

medication generally takes four to eight months. Additional time would be required 

for pretrial motions, potentially a trial, and sentencing to be completed. Seaton also 

notes good-time credits are available at a rate of 54 days per year. 18 U.S.C. 

§ 3624(b). 

Considering all of these factors, we conclude that “the amount of time [Seaton] 

is confined pending determination of competency” is not “in parity with an expected 

sentence.” Valenzuela-Puentes, 479 F.3d at 1227 (quotation omitted). We 

acknowledge the possibility that Seaton’s Guidelines calculations could result in one 

of the lower ranges he identifies. Nevertheless, a lengthy term of pretrial detention in 

relation to the expected sentence “affects, but does not totally undermine, the 

strength of the need for prosecution.” Sell, 539 U.S. at 180. 

Even if the length of Seaton’s pretrial detention were to fall near his 

Guidelines range for imprisonment, he likely would face a term of supervised release. 

We are particularly persuaded that the government maintains an interest in supervised 

release in Seaton’s specific case should he be convicted. In United States v. Onuoha, 
12 

820 F.3d 1049 (9th Cir. 2016), a defendant charged with making threats had been in 

custody for longer than his minimum Guidelines range sentence, but the court 

explained that “a sentence might also include a period of supervised release, which 

would help ensure that [the defendant] does not return to making threats when 

released into the public.” Id. at 1056 (quotation omitted). Other courts have made 

similar observations. See United States v. Mackey, 717 F.3d 569, 575 (8th Cir. 

2013) (noting that a term of supervised release, a “sanction—not available in a civil 

commitment proceeding—furthers the government’s interest”); United States v. 

Gutierrez, 704 F.3d 442, 451 (5th Cir. 2013) (noting that a “conviction would 

authorize the district court to impose a term of supervised release, which would 

facilitate monitoring of [the defendant] to ensure that he does not pose a threat to 

others”); United States v. White, 620 F.3d 401, 413 (4th Cir. 2010) (identifying the 

fact that “if a conviction were obtained, the district court would have the option of 

imposing a period of supervised release as a factor bolstering the government’s 

interest”). 

 We accordingly affirm the district court’s ruling that the government has 

established “important governmental interests are at stake.” Chavez, 734 F.3d at 

1249 (quotation and emphasis omitted).

B 

Seaton also argues the district court should be reversed on the second prong of 

the Sell test, whether involuntary medication will “significantly further” the 

government’s interest. 539 U.S. at 180. To satisfy this prong, the government must 
13 

prove “that administration of the drugs is substantially likely to render the defendant 

competent to stand trial.” Id. at 181.3

 It must do so by clear and convincing 

evidence. Valenzuela-Puentes, 479 F.3d at 1224. 

Seaton advances two separate arguments. First, he contends the district court 

applied an incorrect standard. He relies on the district court’s initial statements that 

there was “a decent possibility, maybe probability” that Seaton would be restored to 

competency and that the only way to be certain “is to try it.” We agree with Seaton 

that these comments reflect an incorrect standard. But the district court explained 

that it had misstated its conclusions, and expressly entered the finding “that the 

medications are substantially likely to render the defendant competent.”4

 Seaton also 

points to the court’s statement that he was likely to become competent “by a vote of 

two to one,” explaining that a court cannot “base its decision on a mechanical nose 

count of witnesses.” Sahara Coal Co. v. Fitts, 39 F.3d 781, 782-83 (7th Cir. 1994). 

We read the district court’s statement as merely a summary of the witnesses’ 

testimony rather than a rationale for its decision. 

 3

 The government is also required to prove “that administration of the drugs is 

substantially unlikely to have side effects that will interfere significantly with the 

defendant’s ability to assist counsel in conducting a trial defense, thereby rendering 

the trial unfair.” Id. But that portion of the test is not in dispute. 

4

 Our dissenting colleague cites Chavez for the proposition that the district 

court’s finding was insufficient. (Dissenting Op. 1-2 n.1.) In that case, we 

considered a Sell order that lacked “any details regarding what drugs could be 

administered to [the defendant] or at what doses.” Id. at 1252. The “high level of 

detail,” id. we referred to relates to the requirement that Sell orders “specify which 

medications might be administered and their maximum dosages,” id. at 1253. 
14 

Second, Seaton argues the district court clearly erred in finding the 

government carried its burden. We are not persuaded. Dr. Preston Baecht testified 

that approximately 75 to ninety percent of patients who are medicated are restored to 

competency. Dr. Sarrazin similarly stated that the success rate is approximately 75 

percent. Of course, as one of our sibling circuits has observed, the government 

cannot merely show that a proposed treatment is “generally effective” but instead 

must prove that a proposed treatment plan, “as applied to this particular defendant, is 

substantially likely to render the defendant competent to stand trial.” United States 

v. Watson, 793 F.3d 416, 424 (4th Cir. 2015) (quotations and emphasis omitted). 

That burden “requires consideration of factors specific to the defendant in question.” 

Id. 

In addition to relying on statistical information from the literature and their 

general experience with patients, the government’s witnesses identified numerous 

individualized factors suggestive of a positive outcome in Seaton’s particular case. 

As the district court explained, “[t]hey cited the statistics, yes, over and over, but 

they also—both of them said that they assessed him on his own, and felt that based 

on their assessment he likely would fit into the statistical categories.” Drs. Preston 

Baecht and Sarrazin testified that the following individual factors indicated that 

Seaton was likely to be restored to competence: (1) Seaton did not suffer from a cooccurring cognitive disorder; (2) he did not have a prior history of failed treatments; 

(3) his court case is not factually complex; and (4) Seaton had been functioning in 

society despite his lack of treatment. 
15 

Dr. Bograd disagreed with this assessment based on two inter-related factors 

indicating a poorer prognosis: the duration and depth of Seaton’s delusions. The 

government’s witnesses both acknowledged these factors lessen the likelihood of 

successful treatment. But they persuasively rebutted Dr. Bograd’s overall 

conclusion. 

Dr. Preston Baecht stated that most of the research regarding duration of 

untreated illness does not look at competency restoration. She explained that the 

standards for competency and general clinical success differed because “[i]t is not 

necessary for all symptoms to remit completely in order for someone to be 

considered competent.” Relying on her personal experience,5

 Dr. Preston Baecht 

testified that she observed “many patients over the years that were treated, their 

delusions reduced in intensity but did not go away, and were ultimately found to be 

competent because they were able to work with their attorney for the resolution of 

their case without allowing those delusional beliefs to impact their decision-making.” 

She stated that many of her patients had lengthy histories of untreated delusions but 

nevertheless responded favorably, specifically discussing one such patient with a 

history similar to Seaton’s. Dr. Preston Baecht, who spent the most time with Seaton 

 5

 Dr. Preston Baecht has conducted hundreds of evaluations for restoration to 

competency. Althought the dissent focuses on a few of the particular patients she 

discussed at the hearing, Dr. Preston Baecht was clear she was using those 

individuals as examples from her more extensive experience. 
16 

of the witnesses,6

 also testified that Seaton did not have unusually entrenched 

delusions or an unusually severe impairment. 

Dr. Sarrazin also noted certain confounding factors as to duration of illness. 

He challenged one particular study about the duration of untreated illness, stating that 

unrestorable patients with a lengthy history in that study also had “severe mental 

illness.” Although he admitted that Seaton has a “significant delusion system,” Dr. 

Sarrazin testified that because Seaton had been functioning in the community, “been 

able to live with others, live independently, and hasn’t been involuntarily 

hospitalized,” his illness “may not be as severe as some other individuals, because he 

hasn’t come to the attention of authorities.” 

The government in this case was required to prove all necessary facts by clear 

and convincing evidence—a high bar. Valenzuela-Puentes, 479 F.3d at 1224. But in 

reviewing the district court’s factual finding that Seaton is substantially likely to 

regain competency through the proposed treatment plan, our review is for clear error. 

Chavez, 734 F.3d at 1249. A finding is clearly erroneous if “the reviewing court, on 

review of the entire record, is left with the definite and firm conviction that a mistake 

has been committed.” United States v. Gilgert, 314 F.3d 506, 515 (10th Cir. 2002) 

(quotation and alteration omitted). Under this standard, “our role is not to re-weigh 

the evidence; rather, our review of the district court’s finding is significantly 

 6

 The dissent claims that much of Dr. Preston Baecht’s time with Seaton did 

not result in meaningful insight into his condition. (Dissenting Op. 8.) However, she 

merely stated that she found it unproductive to spend a significant amount of time 

having Seaton repeat the issues on which he was fixated. 
17 

deferential.” Id. at 515-16 (quotation omitted). Having reviewed the entire record, 

we cannot say the district court clearly erred in finding a substantial likelihood that 

Seaton will be restored to competency. 

III

AFFIRMED. 

Entered for the Court 

Carlos F. Lucero 

Circuit Judge 
United States v. Seaton, No. 19-1093 

BACHARACH, J., dissenting. 

 I agree with the majority that the government established the first of 

the Sell elements: Mr. Seaton is charged with a serious crime, and 

important governmental interests are at stake. Maj. Order & Judgment at 8–

12. The majority also concludes that the government met its burden under 

Sell’s second element. I disagree with this conclusion, so I respectfully 

dissent. 

1. Introduction 

On the second element of Sell, the district court concluded that the 

government had shown by clear and convincing evidence that the forced 

administration of psychotropic drugs was substantially likely to restore Mr. 

Seaton to competency. The court first acknowledged uncertainty about the 

likelihood of restoring Mr. Seaton’s competency through involuntary 

medication, commenting that the three doctors could provide only educated 

guesses about that issue. When reminded of the government’s strenuous 

burden, the court revised its explanation, stating that it had found 

restoration to competency substantially likely by a vote of two to one 

(because two expert witnesses testified that involuntary medication would 

likely be effective and only one expert testified to the contrary).1

 

 

1

 The majority downplays this comment, stating that the district 

court’s reference to the number of expert witnesses served only as “a 
2 

In my view, the district court clearly erred in finding that the 

government had shown by clear and convincing evidence that involuntary 

medication was substantially likely to restore Mr. Seaton to competency. I 

would thus vacate the district court’s order and remand with instructions to 

deny the government’s Sell motion. 

2. Sell orders

The government bears a strenuous evidentiary burden because 

involuntary medication substantially interferes with the defendant’s 

liberty. See Washington v. Harper, 494 U.S. 210, 229 (1990) (“The forcible 

injection of medication into a nonconsenting person’s body represents a 

substantial interference with that person’s liberty.”). Given the 

interference with the defendant’s liberty, the government must justify 

involuntary medication with clear and convincing evidence on each of the 

four Sell elements. United States v. Bradley, 417 F.3d 1107, 1114 (10th 

Cir. 1995). 

 

summary of the witnesses’ testimony rather than a rationale for its 

decision.” Maj. Order & Judgment at 13. I question this interpretation. In 

stating that the vote was “two to one,” the court did not refer to the content 

of any of the testimony. Appellant’s Opening Br., attach. A, at 6. But if the 

majority’s interpretation is correct, the district court supplied no reason for 

finding that the government had satisfied its burden on Sell’s second 

element. The absence of any explanation would require us to reverse 

because Sell requires at least some explanation for the findings on the 

second element. See United States v. Chavez, 734 F.3d 1247, 1252 (10th 

Cir. 2013) (stating that Sell “plainly contemplate[s]” “comprehensive 

findings” and “a high level of detail”). 
3 

 Evidence is clear and convincing only when it triggers an “abiding 

conviction” in the correctness of the government’s position, “instantly 

tilt[ing] the evidentiary scales” when weighed against the defendant’s 

contrary evidence. United States v. Valenzuela-Puentes, 479 F.3d 1220, 

1228 (10th Cir. 2007) (quoting Colorado v. New Mexico, 467 U.S. 310, 316 

(1984)). The rigor of this burden reflects the Supreme Court’s 

consideration of the relative risks when psychotropic medication is forced 

on defendants to restore competency. See Addington v. Texas, 441 U.S. 

418, 427 (1979) (“The individual should not be asked to share equally with 

society the risk of error when the possible injury to the individual is 

significantly greater than any possible harm to the state.”). 

 Applying the Supreme Court’s treatment of the relative risks, the 

district court must consider the evidence in light of the intensity of the risk 

to Mr. Seaton. The government bears a particularly heavy burden because 

the risk of injury to defendants, like Mr. Seaton, dwarfs the risk to society 

at large. Id. If the psychotropic drugs are substantially likely to restore Mr. 

Seaton to competency, the parties would both benefit substantially. (The 

government would be able to prosecute the criminal case, and Mr. Seaton’s 

mental health would improve.) But if the court allows involuntary 

medication without the required proof, not only would the government 

remain unable to try Mr. Seaton but he would also lose freedom over his 

own thought processes. Thus, the district court must reserve Sell orders to 
4 

“rare” and “limited” circumstances and require the government to establish 

the necessary facts by clear and convincing evidence. Sell v. United States, 

539 U.S. 166, 169 (2003). 

The majority acknowledges that the government must show that the 

proposed treatment plan, “as applied to this particular defendant, is 

substantially likely to render the defendant competent to stand trial.” Maj. 

Order & Judgment at 14 (quoting United States v. Watson, 793 F.3d 416, 

424 (4th Cir. 2015)). As a result, the government’s evidence must go 

beyond generalities, focusing on the particular defendant’s mental 

condition, including the intensity and duration of his or her delusions. See 

United States v. Evans, 404 F.3d 227, 242 (4th Cir. 2005). 

3. The evidence presented to the district court

 To support its request for a Sell order, the government presented 

testimony from two psychiatrists: Dr. Lea Ann Preston Baecht and Dr. 

Robert Sarrazin. In reaching their conclusions regarding the effectiveness 

of involuntarily medicating Mr. Seaton, Dr. Preston Baecht and Dr. 

Sarrazin relied on generalized evidence, focusing on statistics reflecting 

the effectiveness of involuntary medication in restoring competency to 

defendants with a broad swath of psychotic disorders. For example, Dr. 

Preston Baecht testified that roughly 75–90% of individuals with psychotic 

disorders are restored to competency when treated with antipsychotic 

medication. 
5 

 Mr. Seaton countered with psychiatric testimony focusing on his own 

particular circumstances: roughly 40 years of intense delusions without any 

treatment whatsoever. His expert witness, Dr. Susan Bograd, first 

examined Mr. Seaton for over four hours. After this examination, Dr. 

Bograd focused on Mr. Seaton’s deeply entrenched delusions, concluding 

that they were probably too intense and durable to permit restoration of 

competency through forced medication: 

Wherein I see a real problem in this case is the issue of 

restoration to competency. [Mr.] Seaton has been quite mentally

ill for approximately 40 years. He has not received mental health 

treatment for approximately 40 years. His long-standing 

delusional belief system is well ingrained, complex, and 

multilayered. His life has revolved around his delusional belief 

system. 

 . . . 

In the event that he were to receive antipsychotic medication, 

whether voluntarily or not, it is my opinion with a reasonable 

degree of medical certainty that it is more likely than not that 

his psychiatric symptoms will be insufficiently alleviated to 

achieve restoration to competency. A great deal of long-lasting, 

well ingrained, complex and multilayered delusional thinking 

would have to resolve for him to understand the nature and 

consequences of the proceedings and to assist properly in his 

defense. 

R., vol. II, at 40. 

 After a follow-up examination that lasted roughly two hours, Dr. 

Bograd reaffirmed her earlier conclusion: 

It is my opinion with a reasonable degree of medical certainty 

that with appropriate medication there is not a substantial 

likelihood that his understanding of the charges against him 
6 

would cease to be distorted, that he would be able to rationally 

understand the roles of the various officers of the court[,] that 

he would be able to rationally understand legal advice and 

concepts provided him by his attorney and that he would be able

to provide his attorney rational information sufficient to prepare 

for trial. 

Id. at 64. Dr. Bograd added that forced medication would only deepen Mr. 

Seaton’s delusions: “It is also my opinion with reasonable degree of 

medical certainty that [Mr.] Seaton would experience forced medication as 

abusive and that it would feed into his delusional belief system.” Id. 

 The majority acknowledges Dr. Bograd’s opinions but concludes that 

they had been effectively rebutted by the government’s two expert 

witnesses. But at oral argument, the government acknowledged that its 

expert witnesses had not addressed Dr. Bograd’s testimony, explaining that 

the two government witnesses had simply arrived at a different conclusion. 

The government was right: Its expert witnesses hadn’t addressed Dr. 

Bograd’s testimony. Both government witnesses reviewed Dr. Bograd’s 

report prior to testifying. But Dr. Sarrazin never discussed Dr. Bograd’s 

analysis or her conclusions. Unlike Dr. Sarrazin, Dr. Preston Baecht did 

refer to Dr. Bograd, but only to express agreement with her diagnosis of 

Mr. Seaton. 

Rather than address Dr. Bograd’s particularized focus on the 

intensity and duration of Mr. Seaton’s delusions, Dr. Sarrazin and Dr. 

Preston Baecht relied on generalized statistical evidence about the 
7 

effectiveness of involuntary medication. This generalized evidence did not 

satisfy the government’s rigorous burden in the absence of a reason to 

discount Dr. Bograd’s opinion testimony focusing on Mr. Seaton’s 

delusions over roughly 40 years. See United States v. Valenzuela-Puentes, 

479 F.3d 1220, 1228–29 (10th Cir. 2007) (stating that we could not affirm 

the district court’s factual findings when a physician had testified that the 

defendant’s delusions were too “deeply ingrained” to disappear with 

psychotropic medication). 

The majority concludes that the district court could reasonably credit 

the government’s expert witnesses over Mr. Seaton’s witness because (1) 

one of them (Dr. Preston Baecht) had spent more time with Mr. Seaton, (2) 

one of Dr. Preston Baecht’s patients had been restored to competency 

despite a history resembling Mr. Seaton’s, and (3) both of the government 

witnesses explained why they believed that Mr. Seaton’s delusions were 

treatable with medication. 

I respectfully disagree with the majority analysis for four reasons: 

1. The district court did not rely on these factors when granting 

the government’s request for a Sell order. 

2. Dr. Preston Baecht acknowledged that much of her time with 

Mr. Seaton was useless. 

3. Dr. Preston Baecht’s limited experience with three other 

patients does not supply meaningful guidance on how Mr. 

Seaton would react to involuntary medication after 

experiencing intense delusions for approximately 40 years. 
8 

4. The government’s two expert witnesses did not supply any 

reason to question the severity of Mr. Seaton’s delusions. 

First, the majority’s explanations are post-hoc. The district court did 

not suggest that it was crediting the government’s evidence for the reasons 

now offered by the majority. The court instead relied solely on the fact that 

the government had presented two expert witnesses and Mr. Seaton had 

presented only one. 

 Second, the amount of time that Dr. Preston Baecht had spent with 

Mr. Seaton could not supply meaningful guidance on the second Sell 

element. Dr. Preston Baecht did testify that she had met with Mr. Seaton 

over a period of about four months. But she didn’t suggest meaningful 

insight from this time with Mr. Seaton. Indeed, she said the opposite, 

admitting that much of the time was unhelpful: “[Mr. Seaton] perseverated 

on the same issues, and so what I found was it wasn’t really productive to 

spend a significant amount of time going over that material.” R., vol. III, 

at 17. 

 Third, Dr. Preston Baecht did not say, or even suggest, that she had a 

suitable universe of comparable patients to meaningfully guide her 

assessment of Mr. Seaton. She mentioned three patients. Two showed 

improvement after experiencing delusions for about ten years, and Dr. 

Preston Baecht did not say that their medication had been involuntary. A 

third patient had experienced psychoses for roughly 40 years. After about 
9 

25 years, he improved with psychotropic medication. He then stopped 

taking the medication for over a decade, but his symptoms remitted after 

he started taking the medication again.2

 

 Dr. Preston Baecht’s experience with these three patients did not 

provide a sufficient basis to predict the effectiveness of involuntary 

medication on Mr. Seaton. Indeed, Dr. Preston Baecht acknowledged that 

she had never treated anyone who, like Mr. Seaton, “has gone 40 years 

without treatment.” R. vol. III, at 54. And she acknowledged that no one 

knows how Mr. Seaton would respond to medication because he “may have 

been ill for a very, very long time without treatment.” Id. at 25; see 

Christopher Slobogin, Sell’s Conundrums: The Right of Incompetent 

Defendants to Refuse Anti-Psychotic Medication, 89 Wash. U.L. Rev. 1523, 

1530 n.43 (2012) (“The longer the duration between the onset of serious 

psychosis and treatment, the more likely long-term disability will result.”). 

Given this uncertainty about how Mr. Seaton would respond to treatment, 

Dr. Preston Baecht could only guess about the applicability of her general 

 

2

 The majority notes that Dr. Preston Baecht has conducted hundreds 

of evaluations for restoration of competency. Maj. Order & Judgment, at 

15 n.5. But the government hasn’t suggested that those hundreds of 

evaluation are pertinent. At oral argument, the Court asked the government 

what evidence existed to show that psychotropic medication would likely 

help restore competency for someone, like Mr. Seaton, who had gone 

roughly 40 years without any treatment. In response, the government relied 

solely on Dr. Preston Baecht’s testimony about her experience in treating 

these three individuals. 
10 

statistics. See Dora W. Klein, Curiouser & Curiouser: Involuntary 

Medications & Incompetent Criminal Defendants After Sell v. United 

States, 13 Wm. & Mary Bill of Rts. J. 897, 911 (2005) (“In most cases, . . . 

unless a defendant has taken psychotropic medications in the past, a court 

will be unable to do more than offer a best guess as to which—if any—

medications will render a defendant competent to stand trial.”). 

 Fourth, the government’s two expert witnesses provided no 

meaningful reason to question the severity of Mr. Seaton’s delusions. 

Dr. Sarrazin speculated that Mr. Seaton’s delusions might not be as 

severe as “some other individuals” because he had not “come to the 

attention of authorities.” R., vol. III, at 79. But Dr. Sarrazin did not 

identify “other individuals” in his comparison or suggest how Mr. Seaton’s 

delusions could have attracted the attention of the “authorities.” The 

authorities presumably wouldn’t have responded based on dangerousness 

because the parties agree that Mr. Seaton does not pose a danger to himself 

or others. 

And Dr. Preston Baecht did not question the severity of Mr. Seaton’s 

delusions. She testified that 

 Mr. Seaton had a “major mental illness,” characterized by 

hallucinations, delusional thinking, and thought 

disorganization, and 

 his “delusions [were] very entrenched, and his thinking [was] 

very disorganized.” 
11 

R., vol. III, at 18, 33. Nor did Dr. Preston Baecht suggest that she was 

basing her opinion on a belief that Mr. Seaton’s mental condition was 

commonplace. To the contrary, she based her opinion on statistics 

regarding competency restoration and her own experience in restoring 

other defendants to competency.

 Faced with a battle of the experts, the district court had to determine 

whether the government’s evidence “instantly tilted the evidentiary scales” 

when weighed against Mr. Seaton’s contrary evidence. United States v. 

Valenzuela-Puentes, 479 F.3d 1220, 1228 (10th Cir. 2007) (quoting 

Colorado v. New Mexico, 467 U.S. 310, 316 (1984)). And in determining 

whether the evidentiary scales instantly tilted, the district court needed to 

focus on the defendant’s particular circumstances rather than generalized 

evidence about the effectiveness of involuntary medication. See p. 4, 

above. This focus required more than unexplained deference to the 

government’s two expert witnesses. Indeed, it was “especially important” 

for the court to “consider and contend with substantial evidence that would 

undermine the case for forcible medication.” United States v. Watson, 793 

F.3d 416, 424 (4th Cir. 2015). 

In this case, the district court relied solely on a “vote of two to one,” 

referring to the presence of two expert witnesses for the government and 

only one for Mr. Seaton. Appellant’s Opening Br., attach. A, at 6. The 

existence of one additional expert witness for the government does not 
12 

supply clear and convincing evidence that involuntary medication is 

substantially likely to restore Mr. Seaton to competency. 

And even if we were to engage in post-hoc consideration of 

alternative justifications for the Sell order, the government’s two expert 

witnesses relied solely on generalized evidence involving the statistical 

effectiveness of involuntary medication. They didn’t even suggest that they 

were basing their opinions on Mr. Seaton’s particular circumstances. Such 

generalized statistical evidence does not substitute for meaningful 

consideration of Mr. Seaton’s particular circumstances. See United States 

v. Evans, 404 F.3d 227, 241 (4th Cir. 2005).3 Indeed, “[p]ermitting the 

government to meet its burden through generalized evidence” involving the 

statistical effectiveness of involuntary medication on defendants with 

psychoses “would effectively allow [the government] to prevail in every 

 

3

 The Evans court explained: 

Instead of analyzing Evans as an individual, the report 

simply sets up syllogisms to explain its conclusions: (1) atypical 

antipsychotic medications are generally effective, produce few 

side effects, and are medically appropriate, (2) Evans will be 

given atypical antipsychotic medications, (3) therefore, atypical 

antipsychotic medication will be effective, produce few side 

effects, and be medically appropriate for Evans. To hold that this 

type of analysis satisfies Sell’s second and fourth factors would 

be to find the government necessarily meets its burden in every

case it wishes to use atypical antipsychotic medication. We do 

not believe that Sell’s analysis permits such deference. 

404 F.3d at 241. 
13 

case” involving defendants experiencing psychoses. United States v. 

Watson, 793 F.3d 416, 425 (4th Cir. 2015). 

* * * 

For these reasons, I would vacate the district court’s Sell order and 

remand the case with instructions to deny the government’s motion for 

involuntary medication.