FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 04-50493 Plaintiff-Appellee,

D.C. No.

v.  CR-03-02294-NAJ

ABISAI RIVERA-GUERRERO,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of California

Napoleon A. Jones, District Judge, Presiding

Argued and Submitted

January 10, 2005—Pasadena, California

Filed October 19, 2005

Before: Stephen Reinhardt, Richard R. Clifton,

Circuit Judges, and Charles R. Weiner,*

Senior District Judge.

Opinion by Judge Reinhardt

*The Honorable Charles R. Weiner, Senior United States District Judge

for the Eastern District of Pennsylvania, sitting by designation. 

14319
COUNSEL

Zandra L. Lopez, Federal Defenders of San Diego, San

Diego, California, for the defendant-appellant. 

Carol C. Lam, United States Attorney; Roger W. Haines, Jr.,

Assistant U.S. Attorney (On the Briefs); Garrett M. Heenan,

Assistant U.S. Attorney, San Diego, California (Argued), for

the plaintiff-appellee.

OPINION

REINHARDT, Circuit Judge: 

This appeal involves questions relating to the involuntary

medication of a defendant awaiting trial in federal court. After

being arrested and charged with illegal entry, defendant Abisai Rivera-Guerrero was found incompetent to stand trial. Following his commitment to the Federal Medical Center

(“FMC”) pursuant to an order dated November 4, 2003, the

FMC doctors requested that the district court issue another

order permitting him to be involuntarily medicated with antipsychotic drugs for the purpose of restoring his competency so

that he could stand trial. The court ordered that a hearing be

held. When the hearing began, the magistrate judge decided

that it would be held pursuant to Sell v. United States, 539

U.S. 166 (2003) rather than Washington v. Harper, 494 U.S.

210 (1990). After the government’s witnesses, two FMC doctors, testified, defendant’s counsel requested a continuance so

that she could prepare her rebuttal. The district court denied

the request and issued an order permitting involuntary mediUNITED STATES v. RIVERA-GUERRERO 14323
cation. On October 4, 2004, the order was ultimately reaffirmed by the district court upon remand. 

We now reverse the district court’s denial of the continuance, vacate the involuntary medication order, and remand

with instructions that in light of intervening events the district

court obtain a report on Rivera-Guerrero’s present mental

condition and proceed in accordance with the second and

third sentences of 18 U.S.C. § 4241(d). In so doing, the district court shall treat the “reasonable period of time” for which

the Attorney General may maintain him in custody under that

subsection as having expired. The order of commitment to the

FMC shall be of no further force and effect. 

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Rivera-Guerrero was arrested on September 14, 2003 and

charged with illegal entry after deportation pursuant to 8

U.S.C. § 1326(a). After undergoing a psychological examination, he was found incompetent to stand trial, just as he had

been on two previous occasions. As a result, the district court

delivered him to the custody of the Attorney General so that

he could be “hospitalize[d] . . . for . . . a reasonable period of

time not to exceed four months . . . to determine whether there

is a substantial probability that in the foreseeable future” he

would become competent to stand trial. 18 U.S.C. § 4241(d)(1).1

Rivera-Guerrero was committed to the Federal Medical Center (“FMC”) in Springfield, Missouri in November of 2003.

On February 6, 2004, Dr. Sarrazin and Dr. Mrad, doctors

from the FMC, appeared before a magistrate judge to discuss

the need to involuntarily medicate Rivera-Guerrero. Dr. Mrad

1After the expiration of the initial four month period, the statute allows

for any additional “reasonable period of time” if the district court finds

that there is a “substantial probability that within such additional period

of time he will attain the capacity to permit the trial to proceed.” 18

U.S.C.A. § 4241(d)(2)(A). 

14324 UNITED STATES v. RIVERA-GUERRERO
explained that the defendant refused to consent to the administration of antipsychotic medication, without which he could

not be rendered competent. Following the doctors’ presentation, the magistrate judge scheduled a hearing to determine

Rivera-Guerrero’s medical condition, the legal standard to be

applied when adjudicating the FMC’s request for an involuntary medication order, and the appropriateness of such an

order. 

Two weeks later, after briefing by the parties as to the

appropriate standard, the magistrate judge held another hearing to determine finally the question of the applicable law. At

the urging of both parties, the court decided to apply Sell,

which pertains to involuntary medication for the purpose of

restoring a defendant’s competency for trial, rather than Harper, which also pertains to involuntary medication but

involves the element of dangerousness. Dr. Sarrazin testified

that the defendant suffered from a form of psychosis, possibly

schizophrenia, and that consequently, only medication could

render defendant competent. Dr. Sarrazin stated that RiveraGuerrero could be safely medicated because he planned on

experimenting with several different drugs — starting with

“atypical” antipsychotics and moving to “typicals,” if necessary, in light of the side-effects.2

 For example, Dr. Sarrazin

suggested administering one of the newer atypical drugs, such

as risperidone, which he acknowledged could cause nausea,

cognitive clouding, sedation, tardive dyskinesia,3 and diabe2Antipsychotic medication is currently divided into two categories:

“typicals” and “atypicals.” Typicals are older medications that were relied

upon extensively during the latter half of the 20th century to treat psychosis. Atypicals are the next generation of antipsychotics. There is some evidence that atypicals cause less side-effects than typicals. However, some

believe that atypicals are at best no better than the typicals, and at worst,

responsible for a different set of potentially more dangerous side-effects.

3

“Tardive dyskinesia is a neurological disorder, irreversible in some

cases, that is characterized by involuntary, uncontrollable movements of

various muscles, especially around the face.” Harper, 494 U.S. at 230

(emphasis added). 

UNITED STATES v. RIVERA-GUERRERO 14325
tes. If one of the atypicals produced intolerable side effects,

Dr. Sarrazin continued, he would slowly change RiveraGuerrero’s medical regime to another atypical. If RiveraGuerrero refused medication in contravention of a court order,

then the doctor would select a drug that could be forcibly

injected. 

Dr. Sarrazin did not state that such experimentation would

have a significant likelihood of rendering the defendant

legally competent. Instead, he explained that according to a

Bureau of Prisons study, “about 76 percent or so [of the

patients] that were involuntarily medicated were restored to

competency.” He could not say that he had enjoyed this kind

of success rate with his own patients or, more important, with

any of the drugs that he proposed. Indeed although Dr. Sarrazin explained that these medications would be very helpful

in “the treatment of [the defendant’s] underlying mental illness and his delusions,” it would only be after the drug had

already been administered and its effects known “that [the

FMC] would be able to tell more about his competency.”

Moreover, Dr. Sarrazin acknowledged that despite the variety

of drugs that he proposed, in his personal experience they had

been successful in restoring to competency only three

patients. Following Dr. Sarrazin’s testimony, Dr. Mrad told

the court that it was his opinion also that only medication

could restore Rivera-Guerrero’s competency. He specifically

rejected all alternative forms of treatment. 

At the conclusion of the hearing, counsel for RiveraGuerrero asked the magistrate judge for a continuance so that

she could consult independent doctors about the drugs that Dr.

Sarrazin proposed using and obtain an independent expert

medical opinion regarding the effectiveness and medical

appropriateness of the FMC’s suggested course of treatment.

Counsel intended to use the continuance to interview doctors,

and help prepare a medical expert who would rebut the testimony of the FMC physicians. The magistrate judge denied

counsel’s request, proceeded directly to her decision, and

14326 UNITED STATES v. RIVERA-GUERRERO
found the evidence sufficient to justify involuntary medication. She then issued an order authorizing Rivera-Guerrero’s

involuntary medication and extended his commitment at the

FMC for an additional four months pursuant to 18 U.S.C.

§ 4241(d)(1). 

After the issuance of the involuntary medication order,

defense counsel promptly appealed it to a district judge —

alleging that the magistrate judge lacked the constitutional

and statutory authority independently to issue an order for

involuntary medication. She also appealed the magistrate

judge’s determination on the merits. Counsel presented the

district court with several articles describing the powerful,

fatal, and trial-related side-effects of antipsychotic medication. The district judge then made several rulings. He dismissed the articles on hearsay grounds because no medical

expert had been retained to lay the foundation for their introduction into evidence, and affirmed the magistrate judge’s

denial of Rivera-Guerrero’s request for a continuance, thus

foreclosing the defendant from presenting any independent

medical expert. He also upheld the authority of the magistrate

judge and affirmed the order on the merits under a clear error

standard. 

Counsel for Rivera-Guerrero then filed an appeal to this

court. Without reaching the merits, we vacated the magistrate

judge’s order on the ground that “an involuntary medication

order is not the type of pretrial matter the Federal Magistrates

Act permits district courts to delegate final authority to magistrate judges.” United States v. Rivera-Guerrero, 377 F.3d

1064, 1071 (2004). As a result, the district court’s decision

was vacated with instructions that the district judge review the

merits of the magistrate judge’s decision de novo instead of

for clear error. 

Following our remand, the district court received a letter

from the FMC stating that on August 31, 2004, medical personnel involuntarily medicated Rivera-Guerrero in an emerUNITED STATES v. RIVERA-GUERRERO 14327
gency procedure pursuant to 28 C.F.R. § 549.43(b). The letter

also stated that the FMC will continue to involuntarily medicate Rivera-Guerrero “unless or until the Court advises them

to stop.” In response to this new development, counsel for

Rivera-Guerrero requested an evidentiary hearing to explore

the facts behind the emergency medication and the effects, if

any, the medication had on Rivera-Guerrero’s competency.

Counsel also explained that the evidentiary hearing was necessary to update the court on the medical condition of RiveraGuerrero, whom defense counsel had not seen in almost a

year. The request, however, was denied by the district court.

On October 4, 2004, the district judge issued an opinion

adopting the recommendations of the magistrate judge for reasons nearly identical to those contained in the order we had

previously vacated. He denied a stay in part because he concluded that the emergency medication of Rivera-Guerrero

rendered the order’s provisions moot. This court denied a stay

as well. Rivera-Guerrero appeals the district court’s October

4th order. 

DISCUSSION

A. The Law of Involuntary Medication 

Although we resolve this appeal on the ground that the district court erred in failing to grant the defendant a continuance, the law regarding involuntary medication guides our

determination on that question. The Supreme Court’s refusal

to permit involuntary medication except in highly-specific

factual and medical circumstances illustrates the importance

of a complete factual and medical record upon which a judge

can base his decision. Recognizing what is at stake, we must

be vigilant in our review of procedural rulings that deny the

defendant an opportunity to challenge the government’s case.

“The Supreme Court has thrice recognized a ‘liberty interest in freedom from unwanted antipsychotic drugs.’ ” United

14328 UNITED STATES v. RIVERA-GUERRERO
States v. Williams, 356 F.3d 1045, 1053 (9th Cir. 2004) (quoting Riggins v. Nevada, 504 U.S. 127, 137 (1992)). In Washington v. Harper, the Court held that prisoners “possess[ ] a

significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause

of the Fourteenth Amendment.” 424 U.S. at 221. It explained

that involuntary medication is permitted only for “inmates

who are . . . gravely disabled or represent a significant danger

to themselves or others,” id. at 226, and only after the court

is satisfied that the medication would be “in the prisoner’s

medical interests, given the legitimate needs of his institutional confinement.” Id. at 222. 

Two years later in Riggins v. Nevada, the Court again proclaimed that an individual has a constitutionally protected

right to “avoid[ ] involuntary administration of antipsychotic

drugs,” only this time in the context of a criminal defendant

facing trial. 504 U.S. at 134. The defendant who was involuntarily medicated pending trial challenged his ensuing conviction; he alleged that because he was forced by the state to

continue his antipsychotic medication even after he had

decided that he no longer wished to do so, he was prejudiced

by the subtle but significant effects of the anti-psychotic drug

upon his demeanor and his ability to testify at trial. See id. at

132. The Supreme Court agreed. It reversed the defendant’s

murder conviction, holding that the record before the state

court failed to justify its involuntary medication order, and

that there was a likelihood that the defendant was prejudiced

by the drug. Id. at 137. 

[1] Most recently in Sell v. United States, 539 U.S. 166

(2003), the Supreme Court, extrapolating from Harper and

Riggins, held that the “Constitution permits the Government

involuntarily to administer antipsychotic drugs to a mentally

ill defendant facing serious criminal charges in order to render

that defendant competent to stand trial, but only if the treatment is “medically appropriate, i.e., in the patient’s best medical interest in light of his medical condition,” id. at 181

UNITED STATES v. RIVERA-GUERRERO 14329
(emphasis in original), is substantially unlikely to have side

effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related

interests,” id. at 179. Noting that the case was dissimilar to

Harper in that in Sell the government’s only proffered interest

in involuntary medication was to render the defendant competent to stand trial, the Court explained that unlike in Harper,

the decision was not entirely medical in nature. Indeed,

according to the Court, the “balanc[ing of] harms and benefits” required by Sell “related to the more quintessentially

legal questions of trial fairness and competence.” Id. at 182.

Subsequent to Sell, we held that in light of the importance of

judicial balancing, and the implication of deep-rooted constitutional rights, a court that is asked to approve involuntary

medication must be provided with a complete and reliable

medically-informed record, based in part on independent

medical evaluations, before it can reach a constitutionally balanced Sell determination. See Williams, 356 F.3d at 1056 (citing Harper, 494 U.S. at 233-35 (emphasizing the necessity for

independent medical decisionmaking in the context of involuntary medication)). 

Sell orders are disfavored. The Supreme Court clearly

intends courts to explore other procedures, such as Harper

hearings (which are to be employed in the case of dangerousness) before considering involuntary medication orders under

Sell. The Sell Court explained that “[t]here are often strong

reasons for a court to determine whether forced administration

of drugs can be justified on . . . alternative grounds before

turning to the trial competence question.” Sell, 539 U.S. at

182 (emphasis in original). It preferred the dangerousness

inquiry under Harper because that inquiry is ordinarily more

“objective and manageable” than one based entirely on the

interest of the government in rendering a defendant competent

to stand trial. Id. (quoting Riggins, 504 U.S. at 140) (internal

quotation marks omitted). The Court explained that even if

the government requests an order on Sell grounds, a judge

14330 UNITED STATES v. RIVERA-GUERRERO
should “ordinarily determine whether the Government seeks,

or has first sought, permission for forced administration of

drugs on these other Harper-type grounds; and, if not, why

not.” Id.4

[2] Harper, Riggins, and Sell demonstrate the Court’s

reluctance to permit involuntary medication except in rare circumstances. See e.g., Sell, 539 U.S. at 180 (noting that while

the Sell “standard . . . permit[s] involuntary administration of

drugs solely for trial competence purposes in certain

instances[,] . . . those instances may be rare.” (emphasis

added)); Riggins, 504 U.S. at 127 (explaining that involuntary

medication is “impermissible absent a finding of overriding

justification”). The importance of the defendant’s liberty

interest, the powerful and permanent effects of anti-psychotic

medications, and the strong possibility that a defendant’s trial

will be adversely affected by the drug’s side-effects all counsel in favor of ensuring that an involuntary medication order

is issued only after both sides have had a fair opportunity to

present their case and develop a complete and reliable record.

B. Denial of a Continuance and the Need for an Evidentiary

Hearing 

The dispositive question on this appeal is whether the district court abused its discretion in denying the defendant’s

request for a continuance. The defendant sought the continuance so that he could obtain the services of a medical expert

who would be able to rebut the testimony of the two FMC

doctors. The district court’s ruling deprived him of an “independent . . . evaluation . . . by a medical professional . . . as

4The record strongly suggests that in the case before us the district court

should have conducted a Harper dangerousness hearing instead of proceeding under Sell. Nevertheless, in light of our decision to remand on

other grounds and the subsequent change in circumstances, including the

emergency administration of involuntary medication and the substantial

passage of time, we need not decide that issue here. 

UNITED STATES v. RIVERA-GUERRERO 14331
well as an opportunity . . . to challenge the evaluation and

offer his or her own medical evidence in response.” Williams,

356 F.3d at 1056. Indeed, the continuance resulted in the

defendant’s inability to present any evidence that might rebut

the government’s medical assertions. Because defendant’s

counsel acted reasonably in relation to preparing for the hearing, a continuance was important to her presentation of an

adequate defense, the record fails to reflect that a continuance

would have caused any substantial inconvenience to the court

or the parties, and the defendant was prejudiced by the denial

of a continuance, we hold that the district court abused its discretion in denying the defendant’s request. 

[3] A district court’s denial of a continuance is reviewed for

an abuse of discretion. Reversal is required if “after carefully

evaluating all the relevant factors,” we conclude that “the

denial was arbitrary or unreasonable.” See United States v.

Flynt, 756 F.2d 1352, 1358 (9th Cir 1985). “There are no

mechanical tests for deciding when a denial of a continuance

is so arbitrary as to violate due process. The answer must be

found in the circumstances present in every case, particularly

in the reasons presented to the trial judge at the time the

request is denied.” Ungar v. Sarafite, 376 U.S. 575, 589

(1964). Although we have stated that our inquiry is not

mechanical, we have developed a four factor test to guide our

analysis, which includes:

[1] the extent of appellant’s diligence in his efforts

to ready his defense prior to the date set for hearing

. . . [2] how likely it is that the need for a continuance could have been met if the continuance had

been granted . . . [3] the extent to which granting the

continuance would have inconvenienced the court

and the opposing party, including its witnesses . . .

[4] the extent to which the appellant might have suffered harm as a result of the district court’s denial.

Flynt, 756 F.2d at 1359. None of the first three factors is ordinarily dispositive. The defendant must, however, establish the

14332 UNITED STATES v. RIVERA-GUERRERO
fourth — prejudice. Id. Here, our assessment of the Flynt factors reveals that at least three of them, including the prejudice

factor, support reversal of the district court’s order. 

i. Diligence 

The first factor we consider is diligence. The government

argues that the district court’s denial of Rivera-Guerrero’s

request for a continuance was proper because the defendant’s

need for the continuance was caused by counsel’s lack of diligence in preparing his defense. The government points out

that the magistrate judge denied defendant’s request for a continuance because, “[t]he defense was aware of this hearing,

the nature of the hearing, the date of the hearing,” and should

have presented its expert rebuttal evidence at the hearing. The

district court, in reviewing the magistrate judge’s decision,

affirmed the denial on the same ground. 

[4] The diligence factor does not play a significant role in

our resolution of this appeal. Even if we assume that defense

counsel’s preparation was not exemplary and that counsel

could have obtained the services of a medical expert prior to

the hearing,5 defendant’s request for additional time should

have been granted. Had the defendant retained an expert for

5

It is unclear that defense counsel had the information necessary to

secure a competent expert before the February 19th hearing, given the lack

of specific information provided prior to that date. When counsel asked

the FMC doctors at the February 6th hearing which specific drugs would

be used in the course of treatment, Dr. Sarrazin simply offered a list of the

available drugs — including Alanzapin, Risperidone, Perazidone,

Haloperidol and Phuphesedene — instead of identifying the specific drug

or drugs that the FMC intended to administer. Dr. Sarrazin went on to confirm that he would not be able to say “at this point . . . exactly what medication” would be used and that often, many medications may be attempted

before finding one that is effective. Indeed, it was not until the hearing

itself that the doctors from the FMC committed to starting with Risperidone, and then to use injectable Geodon (which was not mentioned in the

initial conference) or Haloperidol after that, if the FMC could not orally

administer the medication. 

UNITED STATES v. RIVERA-GUERRERO 14333
the hearing, the expert would have needed additional time to

review the specific course of treatment recommended by the

FMC’s doctors and the medical consequences of treating the

particular defendant in the manner prescribed, because those

recommendations were not disclosed prior to the hearing.6

As the Supreme Court has explained, at a Sell hearing the

court is required to consider specific drugs, their unique side

effects, and their medical appropriateness. Specificity as to

the medications to be administered is critical. See Sell, 539

U.S. at 181 (“The specific kinds of drugs at issue may matter

. . . [because d]ifferent kinds of antipsychotic drugs may produce different side effects and enjoy different levels of success.” (emphasis added)); id. at 185 (“Whether a particular

drug will tend to sedate a defendant, interfere with communication with counsel, prevent rapid reaction to trial developments, or diminish the ability to express emotions are matters

important in determining the permissibility of medication to

restore competence.” (citing Riggins, 504 U.S. at 142-45)

(emphasis added). Counsel for Rivera-Guerrero attempted to

6To avoid this kind of surprise at trial, and to ensure that proper

responses to, and effective cross examination of, expert testimony can be

secured, the federal rules require the government, when asked, to provide

a written opinion of every expert it plans to call. See Fed. R. Crim. P.

16(a)(1); see also, Fed. R. Civ. P. 26(a)(2) (providing for advance disclosure of expert reports in civil cases). Indeed, the Advisory Committee

Notes to this Rule explain that it 

is intended to minimize surprise that often results from unexpected expert testimony, reduce the need for continuances, and to

provide the opponent with a fair opportunity to test the merit of

the expert’s testimony through focused cross examination. 

Fed. R. Crim. P. 16 advisory committee’s note; cf. United States v. Kelly,

420 F.2d 26, 28 (2nd Cir. 1969) (“Indeed, it is important that the defense

be given a chance to research the techniques and results of scientific tests

taken by the government.”). Rivera-Guerrero’s Sell hearing was not an

actual trial, and is therefore not subject to Rule 16. We note, however, that

counsel’s lack of knowledge about the specific drugs and the proposed

course of treatment until the day of the hearing is precisely the type of predicament that Rule 16 tried to eliminate. 

14334 UNITED STATES v. RIVERA-GUERRERO
procure such necessary specific information in advance in

order to provide an adequate rebuttal, only to be given a nonspecific and unhelpful general listing of available medications

by the FMC doctors before the magistrate judge terminated

the inquiry. Thus, it was not until the Sell hearing itself that

counsel was able to obtain the necessary information regarding the FMC’s plans and intentions. We have held that “fairness requires that adequate notice be given the defense to

check the findings and conclusions of the government’s

experts.” United States v. Barrett, 703 F.2d 1076, 1081 (9th

Cir. 1982) (quoting United States v. Kelly, 420 F.2d 26, 29

(2nd Cir. 1969) (internal quotation marks omitted)). That was

not the case here. 

[5] We reject, therefore, the district court’s determination

that the defendant’s request for a continuance was necessitated by her own lack of diligence. Furthermore, even if counsel’s request for a continuance had been due in some measure

to a lack of diligence, that finding would not end our inquiry.

The four-factor test of Flynt is not mechanically applied. We

have reversed a district court’s denial of a continuance even

after concluding that the defendant failed the diligence prong

of the analysis. See United States v. 2.61 Acres of Land, More

or Less, Situated in Mariposa County, State of Cal., 791 F.2d

666, 671-72 (9th Cir. 1985); see also Flynt, 756 F.2d at 1359

(“The weight . . . attribute[d] to any single factor may vary

with the extent of the showings on the other factors.”).7

Accordingly, we turn our attention now to the remaining factors to be considered under Flynt. 

7Moreover, if the district court should have been aware of the need for

a continuance to permit the defendant to get a medical evaluation, the

denial of the continuance request may constitute an abuse of discretion

even if the failure to obtain the evidence earlier resulted from a lack of diligence on the defendant’s part. See United States v. Pope, 841 F.2d 954,

956-57 (9th Cir. 1988) (“the court’s colloquy with Pope should have

alerted the court to the defendant’s flawed perception of reality and should

have underscored the importance of a continuance to enable the defense

to secure a psychiatric evaluation.”). 

UNITED STATES v. RIVERA-GUERRERO 14335
ii. Utility 

[6] Next, we consider the utility of granting a continuance.

Would the continuance have resulted in the production of relevant evidence? See Flynt, 756 F.2d at 1360. When requesting

a continuance, a defendant is not required to demonstrate

what specific evidence he would present if a continuance

were granted; rather, a showing that evidence helpful to his

position could be produced is sufficient. “To require any

greater specificity under these circumstances would not have

been reasonable.” Id.

[7] Rivera-Guerrero’s counsel informed the district court

that probative evidence could be available if a continuance

were granted, and described the type of evidence she would

present. Substantial rebuttal evidence against involuntary

medication was available to counsel had she been allowed

time to prepare her client’s defense. This is demonstrated by

the large collection of articles expressing views contrary to

those presented by the FMC that the defendant offered to the

district court. See e.g., Robert Whitaker, The Case Against

Antipsychotic Drugs: A 50-year Record of Doing More Harm

than Good, 62 Med. Hypotheses 5 (2004) (arguing that treating many patients without antipsychotic medication would

increase recovery rates and decrease chronic illness); Maurice

Rappaport, et al., Are There Schizophrenics for Whom Drugs

May be Unnecessary or Contraindictated?, 13 INT’L PHARMACOPSYCHIATRY 100 (1978) (arguing for selective utilization

of antipsychotic medication and reporting a number of schizophrenics who do relatively well long term without routine or

continuous medication).8 These articles suggest that a respect8Reviewing the medical literature on antipsychotic medication, some

Supreme Court justices have also acknowledged the potential harmful

effects of antipsychotics. See Harper, 494 U.S. at 239 (1990) (Stevens, J.,

concurring in part and dissenting in part) (noting that antipsychotics “alter

the chemical balance in a patient’s brain,” “can cause irreversible and fatal

side effects,” and “[t]he risk of side effects increases over time”); Riggins,

504 U.S. at 138-39 (Kennedy, J., concurring) (“fil[ing a] separate opinion

. . . to express doubt that the showing [necessary to support involuntary

medication] can be made in most cases, given our present understanding

of the properties of these drugs.”) 

14336 UNITED STATES v. RIVERA-GUERRERO
able, though minority, portion of the medical community

strongly believes that antipsychotic medications cause longterm and irreversible harm and have a high chance of producing trial-related and even fatal side-effects, and that such

drugs are not universally considered medically appropriate in

light of other available alternatives. A continuance would

have permitted the defendant to provide testimony that would

have tended to counter the claims of the FMC doctors. Without the continuance, defendant was unable to do so. The utility of granting a continuance in this case is therefore evident

from the record, and this factor weighs strongly in favor of

Rivera-Guerrero. 

iii. Inconvenience 

[8] There is no evidence that the court, the parties, or any

witnesses would have been inconvenienced by a continuance.

Rivera-Guerrero’s request came at the end of a hearing at

which only the FMC doctors testified. No further witnesses

were scheduled. “Nor [was] there any indication that the . . .

delay would have necessitated the recalendaring of other matters, or otherwise have caused any significant inconvenience

to the court.” United States v. West, 828 F.2d 1468, 1470

(10th Cir. 1987). 

The only argument relating to inconvenience raised by the

government before the district court was its inability promptly

to medicate Rivera-Guerrero, render him competent, and

bring him to trial on the one count of illegal entry. It appears

that the magistrate judge adopted this unconventional theory:

“I feel that there have been significant delays . . . not only to

make this gentleman competent but to — to get him some

relief from his illness.” 

The district court’s approach ignores the defendant’s rights

and misperceives the government’s interests. The defendant’s

fundamental liberty interest is at stake. He is entitled to a full

and fair hearing before being subjected involuntarily to the

UNITED STATES v. RIVERA-GUERRERO 14337
administration of antipsychotic medications, and no such

hearing could have occurred in the absence of a continuance.

True, the government was anxious to conduct a criminal trial,

but it could not do so until after the hearing regarding involuntary medication had been completed. Moreover, a delay in

conducting a criminal trial of a person who is lawfully confined in a mental hospital does not, without more, constitute

inconvenience to the government. 

[9] If Rivera-Guerrero had been tried and convicted after

having been granted an appropriate continuance, the fact that

he would have had to begin serving his sentence at a date later

than the one the government had hoped for, would not cause

the government any inconvenience. If the continued hearing

had resulted in a determination that Rivera-Guerrero should

not be tried, certainly no inconvenience would have been suffered by anyone. Thus, this factor also weighs heavily in favor

of the defendant. 

iv. Prejudice 

Unlike the other Flynt factors, prejudice must be shown by

the party seeking the continuance. Here the defendant has

established the requisite prejudice. 

[10] “Where the denial of a continuance prevents the introduction of specific evidence, the prejudice inquiry focuses on

the significance of that evidence.” United States v. Mejia, 69

F.3d 309, 317 (9th Cir. 1995). The significance of the omitted

evidence in this case is undisputed. Because the magistrate

judge’s refusal to grant a continuance precluded RiveraGuerrero from having a fair opportunity to present rebuttal

evidence to the testimony of the FMC doctors, he was involuntarily medicated solely on the basis of the evidence offered

by the very doctors who requested his involuntary medication

in the first place. “Thus, the result of the court’s refusal to

grant a continuance ‘was to deprive [Rivera-Guerrero] of the

only testimony potentially effective to his defense.’ ” Flynt,

14338 UNITED STATES v. RIVERA-GUERRERO
756 F.2d at 1361 (quoting United States v. Fessel, 531 F.2d

1275, 1280 (5th Cir. 1976)); see also United States v. Pope,

841 F.2d 954, 958 (9th Cir. 1988) (finding prejudice where

the denial of a continuance prevented the defendant from

introducing “the only testimony that could plausibly have

helped him.”); United States v. 2.61 Acres of Land, 791 F.2d

666, 671 (9th Cir. 1985) (finding defendant was prejudiced

because denial of a continuance prevented him from introducing any evidence in support of his position); Armant v. Marquez, 772 F.2d 552 (9th Cir. 1985) (finding prejudice where

denial of a continuance effectively denied defendant the

opportunity to prepare his own defense). 

Moreover, the district court’s denial of Rivera-Guerrero’s

request for a continuance made it impossible for a medicallyinformed record to be developed in the proceeding. We have

held that “the unique nature of involuntary antipsychotic medication and the attendant liberty interest require that imposition of . . . [involuntary medication pursuant to Sell] occur

only on a medically-informed record.” Williams, 356 F.3d at

1056. We require that such a record be developed whenever

a Sell determination is to be made — a record that “encompasses an independent and timely evaluation of the [defendant] by a medical professional, including attention to the

type of drugs proposed, their dosage, and the expected duration of a person’s exposure, as well as an opportunity for the

[defendant] to challenge the evaluation and offer his or her

own medical evidence in response.” Id. (emphasis added). 

By relying entirely on the medical testimony of the two

FMC doctors who initiated the request to involuntarily medicate Rivera-Guerrero, and by refusing to give RiveraGuerrero the opportunity to present in rebuttal the evaluations

of independent medical experts as to his physical and mental

condition and as to the medical regime the government proposed to use, the district court ordered involuntary medication

without the requisite complete and reliable medicallyinformed record. 

UNITED STATES v. RIVERA-GUERRERO 14339
[11] In short, because the district court’s denial of defendant’s request for a continuance both prevented RiveraGuerrero from presenting any evidence in his defense and

deprived the court of a medically-informed record upon which

the defendant’s constitutional rights could be weighed against

the government’s interest, we conclude that prejudice is

clearly established. 

v. Summary 

[12] Rivera-Guerrero has a constitutional right not to be

involuntarily medicated in the absence of a full and fair hearing. Our analysis of the four Flynt factors, as set forth supra,

plainly demonstrates that the denial of a continuance was

arbitrary and unreasonable and served to deny the defendant

due process of law. See Flynt, 756 F.2d at 1359 (reversing

denial of a continuance and stating that “appellant was entitled to call psychiatric witnesses of his own choosing who,

after examining appellant, could testify as to his mental

state”). Accordingly, we reverse the district court’s order and

remand for further proceedings.

C. On Remand 

Although we remand this case for further proceedings

because of the district court’s refusal to grant the defendant’s

request for a continuance, since the time of the defendant’s

last hearing his factual circumstances have changed dramatically. The district court received a report from the FMC that

pursuant to its emergency powers, Rivera-Guerrero had been

involuntarily medicated because of alleged dangerousness.

The forced administration of medication has already occurred

and Rivera-Guerrero has already been confined in a suitable

facility for more than the permissible period of time. Accordingly, on remand, conducting a Sell inquiry no longer constitutes the appropriate procedure. 

Under § 4241(d), after conducting a hearing and finding

that a defendant is incompetent to stand trial, the court com14340 UNITED STATES v. RIVERA-GUERRERO
mits him to a suitable facility under the custody of the Attorney General for a “reasonable period of time, not to exceed

four months.” Id. This period may be extended for “an additional reasonable period of time until” the defendant is

restored to competency if the court concludes that “there is a

substantial probability that within such additional period of

time [the defendant] will attain the capacity to permit the trial

to proceed; or . . . the pending charges against him are disposed of according to law; whichever is earlier.” Id. Courts

have generally construed this subsection to allow extensions

for a reasonable period of time only when “the individual is

likely to attain competency within a reasonable time.” See

e.g., United States v. Baker, 807 F.2d 1315, 1320 (6th Cir.

1986). Thereafter, the defendant may be tried, if competent,

or, if not, either civil commitment proceedings must be instituted against him under 18 U.S.C. § 4246 or he must be

released. Because of the extended period of time that has transpired since Rivera-Guerrero was committed to the FMC,

almost two years, and since the FMC commenced treating

him with antipsychotic medication, approximately one year

ago, it seems clear that the statutory “reasonable period of

time” has expired and that his commitment under § 4241 must

be terminated. The only questions that remain are: what has

been the result of the FMC’s medical treatment and what are

Rivera-Guerrero’s legal rights and remedies presently? 

Upon remand, the district court is directed to order the

FMC to submit a report promptly on Rivera-Guerrero’s current medical status, including how he has responded to the

emergency involuntary medication and whether such treatment is presently continuing. If the FMC reports that RiveraGuerrero has been rendered competent to stand trial as a result

of its administration of the medication, and the district court

accepts that assertion, then the district court may proceed with

the criminal trial should the government still desire to do so.

If the defendant challenges the FMC report, however, the

court shall hold an appropriate hearing before determining

whether to accept the report and its findings and conclusion.

UNITED STATES v. RIVERA-GUERRERO 14341
See 18 U.S.C. § 4241(d). If, in contrast, the FMC report

asserts that, despite the passage of time and the administration

of involuntary medication, Rivera-Guerrero has not been rendered competent and the district court accepts that representation, then civil commitment proceedings may be initiated

against him as provided in § 4246 (if appropriate in light of

his Mexican citizenship), deportation proceedings may be

undertaken (if such proceedings would be lawful notwithstanding his incompetence), or he shall be unconditionally

released. 

CONCLUSION

The administration of involuntary medication ordinarily

constitutes a serious and substantial constitutional violation of

a defendant’s liberty interest. Although certain exceptions

exist to the general rule prohibiting involuntary medication,

the law recognizes “the importance of independent medical

decision-making” and the need for defendants to have the

“opportunity . . . to challenge [the adverse] medical evidence.” Williams, 356 F.3d at 1056. Because the district

court’s denial of a continuance deprived the defendant of the

opportunity both to present such a challenge and to offer its

own independent expert witnesses, and because, as a result, a

complete and reliable medically-informed record could not be

developed, the district court’s order is reversed. On remand,

the district court shall obtain a report from the FMC and

determine defendant’s current mental status. See 18 U.S.C.

§ 4241(d). Depending on the court’s determination as to the

defendant’s competence to stand trial, the government may

prosecute him on the pending charges, deport him, if lawful

under the applicable immigration statutes, institute civil commitment proceedings under § 4246, if appropriate, or release

him unconditionally. 

REVERSED AND REMANDED. 

14342 UNITED STATES v. RIVERA-GUERRERO