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 distri ct court order requiring that he be involuntarily medicated in an effort to restor e him to competency to stand tr ial under Sell v. United States, 539 U.S. 166 (2003). Such orders are subject to our in terlocutory review under the collateral order doc trine. Id. at 177. Seaton conte nds that because the length of his pretrial detention (which would be credited to an y term of imprisonment) may be as long as h is Guidelines range, the distr ict court erroneously determined the governme nt’s interest in bri nging him to trial i s important. However, Seaton’s calculations fail to c onsider the potential for a term of supervised release,

* This order and judgment is not binding precedent, except underthe doctrines of law of the case, res judicata , and collateral estoppel. It may be cited, however, for its persuasive value consistentwith Fed. R. App. P. 32.1 and 1 0th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 10, 2019
Elisabeth A. Shumaker Clerk of Court2 which we conclude is particularly important under the facts of this case and would likely extend well beyond the dura tion of pretrial confinement. Seaton also argues the district court clearly erred in ruling that anti-psychotic medication is substantially likely to restore him to compet ency. In light of the expert te stimony provided on general success rates and factor s particular to Seaton, we disa gree. Accordingly, we affirm the district c ourt’s Sell order.
I Seaton is charged with one count of communicating a threat in i nterstate commerce in violation of 18 U. S.C. § 875(c) and one count of th reatening 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 all egedly made to a U.S. Senator. Seaton was arrested in January 2018. Shortly after being appoi nted, defense counsel moved for a competency e valuation. Forensic psychiatri st Dr. Susan Bograd conducted an in-person evaluati on of Seaton that lasted approxi mately four and a half hours. She determined he had s uffered from schizophrenia for approximately forty years, during which time he ha d not received mental health trea tment. Dr. Bograd opined that Seaton was not compete nt to stand trial because he was unable to assist in his defense and did not understa nd the nature and consequences of the proceeding. She also stated: “it is my opi nion with a reasonable degree of medical certainty that it is more likely than not that his psychiatric symptoms will b e insufficiently alleviated to achieve restoration to compe tency” because “[a] g reat deal of longlasting, well ingrained, compl ex and multilayered delusional th inking would have to3 resolve for him to understand th e nature and consequences of th e proceedings and to assist properly in his defense.” A second psychiatrist, Dr. Ka ren Fukutaki, also concluded Seaton was not competent to stand trial. Following a hearing at which Seaton, Dr. Bograd, and Dr. Fukut aki testified, the district court found S eaton incompeten t to proceed. It ordered him committed to custodial hospitalization under 18 U.S.C. § 4241(d) for up to f our months to determine whether his condition was likely to improve. Seaton was transferred to a Bureau of Prisons (“BOP”) medi cal facility in Springfield, Miss ouri. BOP forensic psychologist Dr. L ea Ann Preston Baecht saw Seaton routinely during his stay and c onducted numerous cli nical interviews. Sh e encouraged him to consent to anti-psychotic medica tion, but he refused. After se veral months at the facility, Dr. Preston Baecht opined that Seaton remained incomp etent and was unlikely to be restored to compet ency absent the use of anti-ps ychotic medication. She further stated that “it is s ubstantially likely that Mr. Se aton will be restored to competency” if he were administe red anti-psychotic medication. She explained that she could not “guarantee” such an outcome but noted that “the a vailable literature supports the conclusion that most individuals with psychotic sy mptoms can be successfully restored to compete ncy.” Dr. Robert Sarrazin, chi ef of psychiatry at the facility, prepared a treatment p lan identifying specific medica tion and dosages. Dr. Bograd conducted a second inte rview with Seaton. She agree d that Seaton remained incompetent to proceed . She also concl uded that anti- psychotic medication was in “Seaton’s best medical int erest because of his mental he alth condition.”4 However, Dr. Bograd concluded “t hat medication is not substanti ally likely to render . . . Seaton competent” becau se “[h]is delusional belief system is longstanding and complex.” The government then moved for a Sell hearing and an order for i nvoluntary medication of Seaton. Seaton opposed the motion. The district court held an evidentiary hearing at which Dr . Bograd, Dr. Preston Baecht, an d 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 tw enty-year BOP career, she had seen a pproximately fifty to seventy patients pe r year, the majority of whom were evaluated for restora tion of competenc y. Based on th at experience and on competency-restoration literature, Dr. Preston Baecht conclu ded that medication was substantially likely to rende r Seaton competent. She expla ined that the literature indicated approximately 75 to nin ety percent of patients treate d with anti-psychotic medication are restored to competency. She discussed several factors that influence individual defenda nts’ prognoses. A co-occurring cognitive disorder , such as dementia, or a priorhistory of failed treatments make it le ss likely that medication will be successf ul. Seaton did not present either factor. She also noted that Seaton’s “particula r case” was not factually complex. Dr. Preston Baecht con ceded some of Seaton’s characte ristics had been found to correlate with less fa vorable prognoses, including poo r adjustment prior to his primary diagnosis of schiz ophrenia and being male. However , she stated that5 Seaton was not atypical in terms of the degree to which his del usions are entrenched or the extent of his impairment. Although she acknowledged that the length of untreated psychosi s correlates with poor outcomes, Dr. Preston Baecht noted most of that resea rch 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 h er “personal experience,” she had observed im provement in “patients that hav e gone many, many years without being treated.” Dr . Preston Baecht further state d that she has had “a lot of patients that go a very long time without receiving treatmen t, and they still respond well to medicine.” She i dentified one patient who had been psychotic for approximately forty years, with one brief period of medical res toration fifteen years prior, whose symptoms had comple tely remitted. She concluded: although I think it is reasonable to be concerned that [Seaton] may not respond as well as if he had rec eived treatment as soon as his symptoms emerged, I don’t think that it’s enough for me to say it’s a ba rrier 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 l ikely to restore Seaton to competency. Based on his seventeen years of experien ce at the BOP facility, Dr. Sarrazin stated tha t approximately 75 percent of patients treated with anti-psychotic medication ar e restored to competency. He also identified several factors that influen ce the likelihood an individual will respon d favorably, including past response to anti-psychotic m edication, age, and a signific ant intellectual disability. He conceded that th e duration of untreated psychos is is a factor. But he6 explained that some of the liter ature to that effect focused on individuals who had either a separate cognitive issu e 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 we re likely less severe than thos e who failed to respond

to treatment. Dr. Bograd testified that anti-ps ychotic medication was not sub stantially likely to restore Seaton to competency . She stated that medication wo uld likely provide some benefit, but the length of time Seaton had been suffering untreated and the fact that Seaton’s delusions were deep ly ingrained made it less like ly medication would restore him to competency. Dr. B ograd testified that she was n ot necessarily comparing the degree of Seaton’s delusional belief system with other schizophrenic patients, but that Seaton was an “exception in [her] broader ex perience.” She admitted, however, that Seaton ha d been able to live independen tly throughout his adult life despite his illness. At the close of the hearing the district court stated it was “p robably” going to rule in favor of Seaton. However , Seaton indicated he would be willing to take medication. The government wit hdrew its Sell motion. Shortly after the hearing, however, defense counsel informed the court and the government that Seaton again refused medication. The government then rene wed its Sell motion. The district court convened a se cond hearing but did not hear a ny additional evidence. It concluded the govern ment had carried its burden o f establishing the Sell factors by clear and convincing evidence. As to whether medica tion was7 substantially likely to restore S eaton to compete ncy, the distr ict 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 i f they will render him compete nt 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 po ssibility, maybe probability, that they would either render him competent or answer the que stion.” Defense counsel objecte d that the standard is substantial probability. The c ourt then stated it had missp oken, and after again discussing the expert testimony found “that the evidence establ ishes that the medications are substantially lik ely to render the defendant co mpetent and substantially unlikely to have side effects that will interfere with his ability to assist his counsel by a vot e of two to one.” The district court entered a wr itten order granting the governm ent’s Sell motion. It permitted the governme nt to pursue a specified trea tment plan for a period of up to four months. Seaton file d a notice of appeal. The di strict court then stayed its order pending appeal.
II “The forcible injection of medic ation into a nonconsenting pers on’s body . . . represents a substantial interf erence with that person’s libert y.” Riggins v. Nevada, 504 U.S. 127, 134 (1992) (quota tion omitted). “[I]nstances of involuntary medication of a non-dangerous def endant solely to render him co mpetent to stand8 trial should be rare and occur on ly in limited cir cumstances.” United States v. Valenzuela-Puentes, 479 F.3d 12 20, 1223 (10th Ci r. 2007) (quota tion omitted). To obtain an order for the invol untary medication of a pretrial detainee for the purpose of restoring him to compe tency, the government must sho w: (1) “important governmental inter ests are at stake”; (2) the “i nvoluntary medication will significantly furth er” those interests; (3) the “involuntary medication is necessary to further those interests ,” e.g., less intrusive alternative treat ments are unlikely to be effect ive; and (4) the administration of the medic ation 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 (emphase s omitted)). The fir st two prongs “are primarily legal questions that we rev iew de novo.” Id. a t 1250. Any underlyin g factual findings, which the district court must f ind by clear and convincing evid ence, are reviewed for clear error. Id. Clear and convi ncing 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 appe al.
A In general, “[t]he Government’s interest in bringing to trial a n individual accused of a serious crime is im portant.” Sell, 539 U.S. at 18 0. “Whether a crime is ‘serious’ relates to the possibl e penalty the defendant faces i f convicted, as well as the nature or effect of the unde rlying conduct for which he was charged.” Valenzuela-Puentes, 479 F.3d at 1226. In Valenzuela-Puentes, w e concluded a crime9 with a statutory maxim um of twenty years wa s “serious,” and cit ed with approval a Fourth Circuit case holding that a crime with a statutory maxim um of ten years also so qualified. Id. (citing Unite d States v. Evans, 404 F.3d 227 , 232 (4th Cir. 2005)). The statutory maximum under § 87 5(c) is five years, and the max imum under § 115 is ten years. We also agree with the district court that the t hreatening conduct at issue was of considerable gra vity. See Evans, 404 F.3d at 232 (holding that threats made to a federal judge charged under § 115 are sufficiently se rious). Although the government’s interes t in charging Seaton is import ant, “[s]pecial circumstances may lessen the im portance of that interest.” Val enzuela-Puentes, 479 F.3d at 1227 (quotation omitted) . For example, a defendant may have “already been confined for a significant amountof time (for which he would r eceive credit toward any sentence ultimately impos ed).” Id. (quotation omitted). A ccordingly, “when the amount of time the defendant is c onfined pending determination of competency is in parity with an expected sentence in the criminal proceeding, th e Government may no longer be able to claim an important interest in prosecution.” Id. (quotation omitted); see also United States v. Bradl ey, 417 F.3d 1107, 1117 (10th Ci r. 2005) (considering the time that “elapsed between [defendant]’s commitment for com petency examination and the court’s or der for involuntary administratio n of antipsychotic drugs”). In determining the exp ected sentence, we have looked to the statutory maximum and the likely Guidelines range. See Valenzuela-Puente s, 479 F.3d at 1226 (noting defendant “faces a statutory maximum prison term o f twenty years,10 although if he pleads guilty he w ill likely be sentenced within the guideline range to a term of 77 to 96 months”). 1 As noted above, Seaton’s statutor y maximum sentences are five a nd ten years. § 875(c); § 115. The parties provi de a number of potential Gui delines ranges. It appears Seaton’s criminal history category is I and the base of fense 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 n ot group, he could be subject to an increased offens e level. See U.S.S.G. § 3D1.4 . Seaton might face a two-level enhancement if the off ense involved more than two thr eats, U.S.S.G. § 2A6.1(b)(2)(A), and a four-lev el enhancement if the threat re sulted in a substantial expenditure of resources, U.S. S.G. § 2A6.1(b)(4)(B). Seaton co uld also obtain a twolevel reduction for acceptance of responsibility. U.S.S.G. § 3 E1.1. If each of these issues were decided in Seaton’s favor, his Guidelines range cou ld be as low as six to twelve months. If each of these issues were decided in the gov ernment’s favor, his

1 Seaton argues that the district court failed to consider this special circumstance. However, during th e first hearing, the district court discussed the matter. At one point, the court st ated that Seaton’s “sentence might be eaten up already by the time h e’s served, right? That’s what you’re try ing to convince me in your document.” It also noted t hat Seaton could be in pretrial custody for “around 30 months.” In making its ruling on the first prong, the court st ated that it had “considered defendant’s positi on.” We thus reject Seaton’s con tention that the district court failed to assess w hether his pretrial detention diminished the government’s interest.

2 The foregoing discussion of Sea ton’s potential Guidelines calc ulations are based on the parties’ submissi ons. We of course cannot definit ively calculate his Guidelines range at this s tage 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 relea se following any sentence of im prisonment. Under U.S.S.G. § 5D1.2(a)(1), he woul d likely receive one to three ye ars of supervised release. The district court refe renced supervised release seve ral times during the hearing. At the time of the district c ourt’s decision, Seaton had been i n custody for fourteen months. Restoration to c ompetency through the use of anti-psychotic medication generally takes fourto eight months. Additional ti me would be required for pretrial motions, potentially a trial, and sentencing to be completed. Seaton also notes good-time credits are avail able 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 determinati on of competency” is not “in par ity with an expected sentence.” Valenzuel a-Puentes, 479 F.3d at 1227 (quotation omi tted). We acknowledge the possibility that Seaton’s Guidelines calculatio ns could result in one of the lower ranges he identifie s. Nevertheless, a lengthy ter m of pretrial detention in relation to the expected sentenc e “affects, but does not totall y undermine, the strength of the need for prosecu tion.” Sell, 539 U.S. at 180. Even if the length of Seaton’s pr etrial detention were to fall near his Guidelines range for imprisonmen t, he likely would face a term of supervised release. We are particularly p ersuaded that the government maintains an interest in supervised release in Seaton’s specific case should he be convicted. In U nited States v. Onuoha,12 820 F.3d 1049 (9th Cir. 2016), a d efendant charged with making threats had been in custody for longer than his minim um Guidelines range sentence, but the court explained that “a sentence mightalso include a period of super vised release, which would help ensure that [the de fendant] does not return to makin g threats when released into the public.” Id. at 1056 (quotation omitted). O ther courts have made similar observations. See United States v. Mackey, 717 F.3d 56 9, 575 (8th Cir. 2013) (noting that a term of supe rvised release, a “sanction—no t available in a civil commitment proceeding—furthers t he government’s interest”); Uni ted States v. Gutierrez, 704 F.3d 442, 451 (5t h Cir. 2013) (noting that a “co nviction would authorize the district court to i mpose a term of supervised rel ease, which would facilitate monitoring of [the de fendant] to ensure that he does not pose a threat to others”); United States v. Wh ite, 620 F.3d 401, 413 (4th Cir. 2 010) (identifying the fact that “if a conviction were obtained, the district court wo uld have the option of imposing a period of supervised r elease as a factor bolstering the government’s interest”). We accordingly affirm the distr ict court’s ruling that the go vernment has established “importantgovernmental interes ts are at stake.” C havez, 734 F.3d at 1249 (quotation and emphasis omitted).
B Seaton also argues the districtcourt should be reversed on the second prong of the Sell test, whether involunta ry medication will “significant ly further” the government’s interest. 539 U. S. at 180. To satisfy this prong , the government must13 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-Pue ntes, 479 F.3d at 1224. Seaton advances two separate ar guments. First, he contends the district court applied an incorrect standard. H e 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 dis trict court explained that it had misstated its conclu sions, and expressly entered th e finding “that the medications are substantially lik ely to render the defendant co mpetent.” 4 Seaton also points to the court’s statement that he was likel y to become co mpetent “by a vote of two to one,” explaining that a court cannot “base its decision on a mechanical nose count of witnesses.” Sahara Co al Co. v. Fitts, 39 F.3d 781, 78 2-83 (7th Cir. 1994). We read the district court’s stat ement as merely a summary of t he witnesses’ testimony rather than a rati onale 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 c ounsel in conducting a trial def ense, thereby rendering the trial unfair.” Id. But that portion of the test is not in dispute.

4 Our dissenting colleague cite s Chavez for the proposition that the district court’s finding was insufficien t. (Dissenting Op. 1-2 n.1.) I n that case, we considered a Sell order that lack ed “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 rela tes to the requirement that Sel l orders “specify which medications might be administer ed and their maximum dosages,” i d. at 1253.14 Second, Seaton argues the distri ct court clearly erred in findi ng the government carried its burden . We are not persuaded. Dr. Pres ton Baecht testified that approximately 75 to ninety pe rcent of patients who are med icated are restored to competency. Dr. Sarrazin simila rly stated that the success rat e is approximately 75 percent. Of course, as one of our sibling circuits has observe d, the government cannot merely show that a propose d treatment is “generally effe ctive” but instead must prove that a proposed treat ment plan, “as applied to this particular defendant, is substantially likely to render th e defendant competent to stand trial.” United States v. Watson, 793 F.3d 416, 424 (4 th Cir. 2015) (quotations and em phasis omitted). That burden “requires considerat ion of factors specific to the defendant in question.” Id. In addition to relying on statisti cal information from the lite rature and their general experience with patient s, the government’s witnesses id entified numerous individualized factors suggestive of a positive outcome in Seat on’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 woul d fit into the statistical ca tegories.” Drs. Preston Baecht and Sarrazin testified th at the following individual fac tors 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 histo ry of failed treatments; (3) his court case is not factual ly complex; and (4) Seaton had been functioning in society despite his l ack of treatment.15 Dr. Bograd disagreed with this a ssessment based on two inter-re lated factors indicating a poorer prognosis: t he duration and depth of Seato n’s delusions. The government’s witnesse s both acknowledged the se factors lessen t he likelihood of successful treatment. But they persuasively rebutted Dr. Bogra d’s overall conclusion. Dr. Preston Baecht stated that mo st of the research regarding d uration of untreated illness does not look at competency re storation. She explained that the standards for competency and ge neral clinical success differed because “[i]t is not necessary for all symptoms to rem it completely in order for som eone to be considered competent.” Relyi ng on her personal experience, 5 Dr. Preston Baecht testified that she observed “man y patients over the years that were treated, their delusions reduced in intensity but did not go away, and were ul timately found to be competent because they were able to work with their attorney fo r the resolution of their case without allowing thos e delusional beliefs to impact their decision-making.” She stated that many of her patie nts had lengthy histories of u ntreated delusions but nevertheless responded favorably , specifically discussing one s uch patient with a history similar to Seaton’s. D r. Preston Baecht, who spent the most time with Seaton

5 Dr. Preston Baecht has conducted hundreds of evaluations for r estoration to competency. Althought the dissentfocuses on a few of the part icular patients she discussed at the hearing, Dr. P reston Baecht was clear she was using those individuals as examples from he r more extensive experience.16 of the witnesses, 6 also testified that Seaton di d not have unusually entrenched delusions or an unusually severe impairment. Dr. Sarrazin also noted certain confounding factors as to durat ion of illness. He challenged one particular stu dy about the duration of untrea ted illness, stating that unrestorable patients with a le ngthy history in that study also had “severe mental illness.” Although he admitted th at Seaton has a “significant delusion system,” Dr. Sarrazin testified that because Seaton had been functioning in the community, “been able to live with oth ers, live independen tly, and hasn’t been i nvoluntarily hospitalized,” his illness “may not be as severe as some other individuals, because he hasn’t come to the att ention of authorities.” The government in this case was required to prove all necessary facts by clear and convincing evidence—a high ba r. Valenzuela-Puentes, 479 F. 3d at 1224. But in reviewing the district court’s factual finding that Seaton is s ubstantially likely to regain competency through the pr oposed treatment plan, our revi ew is for clear error. Chavez, 734 F.3d at 1249. A fin ding is clearly erroneous if “t he reviewing court, on review of the entire record, is left with the definite and firm conviction that a mistake has been committed.” United St ates v. Gilgert, 314 F.3d 506, 5 15 (10th Cir. 2002) (quotation and alteration omitte d). Under this standard, “our role is not to re-weigh the evidence; rather, our review of the district court’s findin g is significantly

6 The dissent claims that much of Dr. Preston Baecht’s time with Seaton did not result in meaningful insightinto his condition. (Dissenti ng Op. 8.) However, she merely stated that she found it unproductive to spend a signifi cant amount of time having Seaton repeat the issue s on which he was fixated.17 deferential.” Id. at 515-16 (q uotation omitted). Having revie wed the entire record, we cannot say the district court clearly erred in finding a sub stantial likelihood that Seaton will be restored to competency.
III
AFFIRMED

.

Entered for the Court

Carlos F. Lucero Circuit JudgeUnited States v. Seaton , No. 19-1093
BACHARACH , J., dissenting. I agree with the majority that t he government est ablished the first of the Sell elements: Mr. Seaton is charge d with a serious crime, and important governmental interests are at stake. Maj. Order & Jud gment at 8– 12. The majority also concludes that the government met its bur den under
Sell ’s second element. I disagree with this conclusion, so I respec tfully dissent.
1. Introduction On the second element of Sell , the district court concluded that the government had s hown by clear and convin cing evidence that the forced administration of psychotropic drugs was substantially likely t o restore Mr. Seaton to compet ency. The court first acknowledged uncertainty about the likelihood of restori ng Mr. Seaton’s compet ency through involun tary medication, commenting that the three doctors could provide onl y educated guesses about that issue. When re minded of the government’s str enuous burden, the court rev ised its explanation , stating that it had found restoration to competency substantially likely by a vote of two to one (because two expert w itnesses testified that involuntary medica tion would likely be effective and only one e xpert testified to the contra ry). 1

1 The majority downplays this co mment, stating tha t the distric t court’s reference to the number of expert witnesses served only as “a2 In my view, the district court clearly erred in finding that th e government had s hown by clear and convin cing evidence that invo luntary medication was substantially lik ely to restore Mr. Seaton to co mpetency. I would thus vacate the district court’s order and remand with in structions to deny the government’s Sell motion.
2. Sell orders The government bears a strenuous evidentiary bu rden because involuntary medication substantially interferes with the defend ant’s liberty. See Washington v. Harper , 494 U.S. 210, 229 (1990 ) (“The forcible injection of medicatio n into a nonconsenti ng person’s body repr esents a substantial interference with tha t person’s liberty.”). Given t he interference with the defendant’s liberty, the government must justify involuntary medication with cl ear and convincing evidence on ea ch of the four Sell elements. United States v. Bradley , 417 F.3d 1107, 1114 (10th Cir. 1995).

summary of the witne sses’ testimony rather than a rationale for its decision.” Maj. Order & Judgment at 13. I question this interpr etation. In stating that the vote was “two t o one,” the court did not refer to the content of any of the testimony. Appella nt’s Opening Br., attach. A, at 6. But if the majority’s interpretation is correct, the district court suppli ed no reason for finding that the government h ad satisfied i ts burden on Sell ’s second element. The absence of any explanation would require us to rev erse because Sell requires at least some explanation for th e 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 a nd convincing only when it triggers an “abi ding conviction” in the correctness of the government’s position, “i nstantly tilt[ing] the evidentia ry scales” when weigh ed against the defe ndant’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 t his burden reflects the Supreme Court’s consideration of the relative ri sks when psychot ropic medicatio n is forced on defendants to restore competency. See Addington v. Texas , 441 U.S. 418, 427 (1979) (“The i ndividual should not b e asked to share e qually with society the risk of er ror when the possible injury to the indiv idual is significantly greater than any po ssible harm to the state.”). Applying the Supreme Court’s tr eatment of the relative risks, the district court must consider the evidence in light of the inten sity of the risk to Mr. Seaton. The gov ernment bears a partic ularly heavy burden because the risk of injury to defendants, like Mr. Seaton, dwarfs the r isk to society at large. Id. If the psychotropic drugs are substantially likely to restore Mr. Seaton to compet ency, the parties would both benefit substantia lly. (The government would be able to prosecute the criminal case, and Mr . Seaton’s mental health would improve.) But if the court allows involunta ry medication without th e required proof, no t only would the gover nment remain unable to try Mr. Seaton b ut he would also lose freedom over his own thought processes. Thus, the d istrict court must reserve Sell orders to4 “rare” and “limited” circumstan ces and require the government t o 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 mu st show that th e proposed treatment pla n, “as applied to th is particular defenda nt, is substantially likely to render th e 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 mu st go beyond generalities, foc using on the particul ar defendant’s men tal condition, including the intensity and duration of his or her d elusions. 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 gover nment presented testimony from two psychiatrists: Dr. Lea Ann Preston Baecht an d Dr. Robert Sarrazin. In reaching the ir conclusions regarding the effectiveness of involuntarily medic ating Mr. Seaton, Dr . Preston Baecht and Dr. Sarrazin relied on generalized evidence, focusing on statistics reflecting the effectiveness of i nvoluntary medication in restoring compet ency to defendants with a broad swath of psychotic disorders. For examp le, Dr. Preston Baecht testified that roughly 75–90% of individuals wit h psychotic disorders are restored to compet ency when treated with antipsyc hotic medication.5 Mr. Seaton countered with psychiatric testimony focusing on hi s own particular circumstances: roughly 40 years of intense delusions without any treatment whatsoever. His exper t witness, Dr. Susan Bograd, fir st examined Mr. Seaton for over four hours. After this examination , Dr. Bograd focused on Mr. Seaton’s d eeply entrenched delusions, con cluding that they were probably too intense and durable to permit resto ration of competency through for ced 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 receive d mental heal th treatment for approximately 40 years. His long-standing delusional belief system is well ingrained, complex, and multilayered. His life has rev olved around his delusional belie f system.

. . . In the event that he were to recei ve antipsychotic medication, whether voluntarily or not, it is my opinion with a reasonable degree of medical certainty that it is more likely than not tha t his psychiatric symptoms will be insufficiently alleviated to achieve restoration to competenc y. 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 pr oceedings and to assi st properly in his defense. R., vol. II, at 40. After a follow-up examination that lasted roughl y two hours, D r. Bograd reaffirmed her earlier conclusion: It is my opinion with a reasonab le degree of medical certainty that with appropriat e medication there is not a substantial likelihood that his understanding of the charges against him6 would cease to be distorted, that he would be able to rationall y understand the roles of the various officers of the court[,] th at 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 attorne y rational information sufficient to prep are for trial.
Id. at 64. Dr. Bograd added that forced medication would only deep en Mr. Seaton’s delusions: “It is also my opinion with reasonable degr ee of medical certainty that [Mr.] S eaton would experi ence forced med ication as abusive and that it would feed into his delusional belief syste m.” Id. The majority acknowledges Dr. B ograd’s opinions but concludes that they had been effec tively rebutted by the government’s two expe rt witnesses. But at oral argument, the government acknowledged th at its expert witnesses had not addre ssed Dr. Bograd’s testimony, expl aining that the two government witnesses had simply arrived a t a different conclusion. The government was right: Its expe rt witnesses hadn’t addressed Dr. Bograd’s testimony. Both government witnesses reviewed Dr. Bogr ad’s report prior to testifying. But Dr. Sarrazin never discussed Dr . Bograd’s analysis or her conclusions. Unl ike Dr. Sarrazin, Dr. Preston B aecht did refer to Dr. Bograd, but only to express agreement with her dia gnosis 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 relie d on generalized statis tical evidence about the7 effectiveness of involuntary medi cation. This generalized evide nce did not satisfy the government’s rigorou s burden in the absence of a re ason to discount Dr. Bograd’s opinion testimony foc using on Mr. Seaton’ s delusions over r oughly 40 years. See United States v. Valenzuela-Puentes , 479 F.3d 1220, 1228–29 (10t h Cir. 2007) (stati ng that we could not affirm the district court’s factual findings whe n a physicia n had test ified that the defendant’s delu sions were too “deeply i ngrained” to disappear with psychotropic medication). The majority concludes that the district court c ould reasonably credit the government’s exper t witnesses over Mr. Seaton’s witness bec ause (1) one of them (Dr. Prest on Baecht) had spent more time with Mr. S eaton, (2) one of Dr. Preston Baecht’s patients had been restored to compe tency despite a history resembling Mr. Seaton’s, and (3) both of the government witnesses explained why they believed that Mr. Seaton’s delusio ns were treatable with medication. I respectfully disagree with the majority analysis for four rea sons: 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 meani ngful 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 wit nesses did not supply any reason to question the severity of Mr. Seaton’ s delusions. First, the majority’s explanations are post-hoc. The district c ourt did not suggest that it was creditin g the government’ s evidence for the reasons now offered by the majo rity. The court inst ead relied solely on the fact that the government had presented two e xpert witnesses and Mr. Seato n had presented only one. Second, the amount of time that Dr. Preston Baecht had spent w ith Mr. Seaton could not supply mean ingful guidance on the second Sell element. Dr. Preston Baecht did testify that she had met with M r. Seaton over a period of about four months. But she didn’t suggest mean ingful insight from this time with Mr. Seaton. In deed, she said the op posite, admitting that much of the time was unhelpful: “[Mr. Seaton] pe rseverated on the same issues, a nd so what I found was it wasn’t really pr oductive to spend a significant am ount of time going ov er that material.” R ., vol. III,
at 17. Third, Dr. Preston Baecht did not say, or even suggest, that s he had a suitable universe of comparable p atients to meaningfully guide her assessment of Mr. Seaton. She mentioned three patients. Two sho wed improvement after experiencing delusions for about ten years, a nd Dr. Preston Baecht did not say that their medication had been invol untary. A third patient ha d experienced psychoses for roughly 40 years. A fter about9 25 years, he improved with psychotropic medication. He then sto pped taking the medication for over a decade, but his symptoms remit ted after he started taking the medication again. 2 Dr. Preston Baecht’s experience with these three patients did not provide a sufficient basis to pr edict the effectiveness of invo luntary medication on Mr. Seaton. Indeed , Dr. Preston B aecht acknowledg ed that she had never treate d anyone who, like Mr. Seaton, “has gone 40 years without treatment.” R . vol. III, at 54. An d she acknowledged th at no one knows how Mr. Seaton would respond to medication because he “ma y have been ill for a very, very long time without treatment.” Id. at 25; see Christopher Slobogin, Sell ’s Conundrums: The Ri ght 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 w ill result.”). Given this uncertainty about how Mr. Seaton wou ld respond to tr eatment, Dr. Preston Baecht co uld only guess about the applicability of her general

2 The majority notes that Dr. Preston Baecht has conducted hund reds of evaluations for restoration o f competency. Maj. Order & Judg ment, at 15 n.5. But the gover nment hasn’t suggeste d that those hundreds of evaluation are pertine nt. At oral argument, the Court asked the government what evidence existed to show that psychotropic medication woul d likely help restore competency for some one, like Mr. S eaton, who had g one roughly 40 years without any tr eatment. In response, the govern ment relied solely on Dr. Preston Baecht’s testimony about her experience i n treating these three individuals.10 statistics. See Dora W. Klein, Curiouser & Curiou ser: Involuntary Medications & Incompetent Criminal Defendants After Sell v. United States, 13 Wm. & Ma ry Bill of Rts. J

. 897, 911 (2005) (“In most cases, . . . unless a defendant has taken psychotropic medications in the pa st, a court will be unable to do more than o ffer a best guess as to which—i f any— medications will render a defendant competent to stand trial.”)

. Fourth, the government’s two e xpert witnesses provided no meaningful reason to question the severity of Mr. Seaton’s delu sions. Dr. Sarrazin speculated that Mr. Seaton’s delusions might not b e as severe as “some other individuals” because he had not “come to the attention of authori ties.” R., vol. III, a t 79. But Dr. Sarrazi n did not identify “other indivi duals” in his compar ison or suggest how M r. Seaton’s delusions could have attracted the attenti on of the “authoritie s.” The authorities presumably wouldn’t have responded based on dangero usness because the parties agree that Mr. Seaton does not pose a dange r to himself or others. And Dr. Preston Baecht did not question the severity of Mr. Sea ton’s delusions. She testified that

 Mr. Seaton had a “major mental illness,” characterized by hallucinations, delusiona l 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. Pres ton Baecht suggest tha t she was basing her opinion on a belief that Mr. Seaton’s mental conditi on was commonplace. To the cont rary, she based her opinion on statisti cs regarding compet ency restoration and her own experience in rest oring other defendants to competency. Faced with a battle of the experts, the district court had to determine whether the government’s evidenc e “instantly tilte d the evident iary 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 evidentia ry scales instantly t ilted, the district c ourt needed to focus on the defendant’s particu lar circumstances rather than g eneralized evidence about the e ffectiveness of involu ntary medication. See p. 4, above. This focus required more than unexplained deference to t he government’s two expert witnesses. Indeed, it was “especially i mportant” for the court to “consider and c ontend with substa ntial evidenc e that would undermine the case for forcible medication.” United States v. Watson , 793 F.3d 416, 424 (4t h Cir. 2015). In this case, the district court relied solely on a “vote of tw o to one,” referring to the presence of tw o expert witnesses for the gover nment and only one for Mr. Seaton. Appellant’s Opening Br., attach. A, at 6. The existence of one add itional expert witness for the government d oes not12 supply clear and conv incing evidence that involuntary medicatio n 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 genera lized evidence i nvolving the s tatistical effectiveness of involuntary me dication. They d idn’t even sugge st that they were basing their opinions on Mr . Seaton’s parti cular circumsta nces. Such generalized statistical evidence does not substitute for meanin gful 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 th rough generalized evidence” inv olving the statistical effectiveness of invo luntary medication on defendan ts with psychoses “would effectively a llow [the governme nt] 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) atypi cal antipsychotic medications are g enerally effectiv e, produce few side effects, and are medically appropriate, (2) Evans will be given atypical antipsychotic medications, (3) therefore, atypic al antipsychotic medicat ion will be effective, produce few side effects, and be medically approp riate for Evans. To hold that t his 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 an tipsychotic medi cation. We do not believe that Sell ’s analysis permit s 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 v acate the district court’s Sell order and remand the case with instruction s to deny the government’s moti on for involuntary medication.