PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4388

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOHN WATSON, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. T. S. Ellis, III, Senior 

District Judge. (1:13-cr-00336-TSE-IDD-1)

Argued: December 11, 2014 Decided: July 17, 2015

Before TRAXLER, Chief Judge, and WYNN and HARRIS, Circuit 

Judges.

Reversed by published opinion. Judge Harris wrote the majority 

opinion, in which Judge Wynn joined. Chief Judge Traxler wrote 

a dissenting opinion.

ARGUED: Nicholas John Xenakis, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Alexandria, Virginia, for Appellant. Julia K. 

Martinez, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, 

Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, 

Federal Public Defender, Kenneth P. Troccoli, Assistant Federal 

Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, 

Alexandria, Virginia, for Appellant. Dana J. Boente, United 

States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, 

Alexandria, Virginia, for Appellee.
2

PAMELA HARRIS, Circuit Judge:

Following his arrest for firing a handgun at a Coast Guard 

helicopter, appellant John Watson, Jr. (“Watson”), who suffers 

from Delusional Disorder, Persecutory Type, was found 

incompetent to stand trial and committed to the custody of the 

Attorney General for mental health treatment and evaluation. 

After Watson refused to take antipsychotic medication in order

to render himself competent, the district court granted the 

government’s request that he be medicated by force. Given the 

critical liberty interests at stake, we require the government 

to meet a heavy burden to justify forcible medication, and we 

require courts to conduct a searching inquiry in order to ensure 

that this burden is met. In this case, we conclude, the 

government has not met its burden of proving that involuntary 

medication is substantially likely to restore Watson’s 

competency, as required by Sell v. United States, 539 U.S. 166 

(2003). Accordingly, we reverse.

I.

“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) (quoting Washington v. Harper, 494 U.S. 210, 229 (1990)). 

The interference is “particularly severe” when, as in this case,
3

the medication in question is an antipsychotic, Riggins, 504 

U.S. at 134, for the use of such medications threatens an 

individual’s “mental, as well as physical, integrity,” United 

States v. White, 620 F.3d 401, 422 (4th Cir. 2010) (Keenan, J., 

concurring). On the physical side, there is the “violence 

inherent in forcible medication,” id., compounded when it comes 

to antipsychotics by the possibility of “serious, even fatal, 

side effects,” Harper, 494 U.S. at 229. But it is the invasion 

into a person’s mental state that truly distinguishes 

antipsychotics, a class of medications expressly intended “to 

alter the will and the mind of the subject.” United States v. 

Bush, 585 F.3d 806, 813 (4th Cir. 2009) (quoting Harper, 494 

U.S. at 238 (Stevens, J., concurring in part and dissenting in 

part)). 

For those reasons, as we have recognized, the forcible 

administration of antipsychotic medication “constitutes a 

deprivation of liberty in the most literal and fundamental 

sense,” Bush, 585 F.3d at 813 (quoting Harper, 494 U.S. at 238 

(Stevens, J., concurring in part and dissenting in part)),

justified only by a government interest that rises to the level 

of “essential” or “overriding,” Sell v. United States, 539 U.S. 

166, 178-79 (2003) (quoting Riggins, 504 U.S. at 134, 135). The 

government’s interest in prison safety and security, the Supreme 

Court held in Harper, qualifies as such an interest, and may 
4

justify involuntary medication when an inmate suffering from a 

“serious mental illness” is “dangerous to himself or others,” 

and “the treatment is in [his] medical interest.” 494 U.S. at 

227. 

Under certain circumstances, a mentally ill defendant who 

is not dangerous to himself or others within the meaning of 

Harper may nevertheless be forcibly medicated for the sole 

purpose of rendering him competent to stand trial. See Sell, 

539 U.S. at 179. But that is the exception, not the rule. 

Forcible medication is not justified every time an incompetent 

defendant refuses treatment; on the contrary, “those instances 

may be rare.” Id. at 180. As we have emphasized, forcible 

medication under Sell is “a tool that must not be casually 

deployed,” and courts must be vigilant to ensure that such 

orders, which “carry an unsavory pedigree,” do not become 

“routine.” United States v. Chatmon, 718 F.3d 369, 373-74 (4th 

Cir. 2013).

To “minimize[] the risk of erroneous decisions in this 

important context,” we have set a deliberately high standard for 

the government to satisfy before it may forcibly medicate solely 

to render an inmate competent to stand trial. Bush, 585 F.3d at 

814. Like other courts of appeals to consider the issue, we 

require that the government meet its burden by the “clear and 

convincing” standard. Id.; see, e.g., United States v. Dillon, 
5

738 F.3d 284, 292 (D.C. Cir. 2013) (“Holding the government to a 

clear and convincing standard of proof affords due regard to the 

nature of the liberty interest at stake in forced-medication 

cases.”); United States v. Green, 532 F.3d 538, 545 (6th Cir. 

2008) (applying clear and convincing standard); United States v. 

Gomes, 387 F.3d 157, 160 (2d Cir. 2004) (same). That is a heavy 

burden, requiring “evidence of such weight that it produces in 

the mind of the trier of fact a firm belief or conviction, 

without hesitancy, as to the truth of the allegations sought to 

be established,” or “evidence that proves the facts at issue to 

be highly probable.” United States v. Heyer, 740 F.3d 284, 292 

(4th Cir. 2014) (quoting Jimenez v. DaimlerChrysler Corp., 269 

F.3d 439, 450 (4th Cir. 2001)).

In this context, we require that the government prove by 

clear and convincing evidence each of four factors. “First, the 

government must show that ‘important governmental interests are 

at stake’ and that special circumstances do not sufficiently 

mitigate those interests.” White, 620 F.3d at 410 (quoting 

Sell, 539 U.S. at 180). Second, the government must show that 

“involuntary medication . . . significantly further[s] [its]

interests,” which requires proof that the medication is 

“substantially likely to render the defendant competent to stand 

trial” and “substantially unlikely to have side effects that 

will interfere significantly with the defendant's ability to 
6

assist counsel at trial.” Id. (quoting Sell, 539 U.S. at 181)

(internal quotation marks omitted). “Third, the involuntary 

medication must be necessary to further the government's 

interests, and less intrusive means must be unlikely to achieve 

substantially the same results.” Id. (citing Sell, 539 U.S. at 

181). Fourth and finally, “the court must conclude that the 

administration of drugs is medically appropriate and in the 

patient’s best medical interests in light of [his] medical 

condition.” Id. (citing Sell, 539 U.S. at 181). With this 

demanding standard in mind, we now consider whether the district 

court properly found that forcible medication is justified in 

this case. United States v. Watson, No. 1:13-cr-366, 2014 WL 

1901256, at *1 (E.D. Va. Apr. 29, 2014). 

II.

A.

On September 28, 2012, Watson was observed shooting a 

handgun at a Coast Guard helicopter flying overhead. The 

helicopter was not damaged, and none of the three Coast Guard 

employees on board was injured. On August 15, 2013, Watson was 

indicted for attempted destruction of an aircraft, 

18 U.S.C. § 32(a)(1), (8); possession of a firearm by a felon, 

18 U.S.C. § 922(g)(1); and use of a firearm during a crime of 

violence, 18 U.S.C. § 924(c)(1)(A).
7

Days after Watson’s arrest, the magistrate judge granted 

the parties’ joint motion for a competency hearing, and Watson

was interviewed by licensed clinical psychologist Dr. Rebecca J. 

Peterson (“Peterson”). Watson told Peterson that he had been a 

covert operative for the British special forces since he was 

seven years old, that the Coast Guard and Secret Service were

among the government agencies “working to help protect him from 

danger and . . . guide him,” that certain “entities . . . ha[d]

‘tapped’ his phones and computer,” and “that someone ha[d] been 

on his boat going through his letters and papers.” Watson 

further indicated that this delusional system of beliefs had 

been guiding his behavior since at least February 2009, when he 

arrived in the Washington, D.C., area in order to seek the 

protection of the British Embassy and was referred to St. 

Elizabeth’s Hospital (“St. Elizabeth’s”) for mental health 

treatment.

On the basis of this interview, Peterson concluded that 

Watson was “unable to participate meaningfully and effectively 

in his defense” as a result of his delusions, and in particular 

his belief that his status as a covert operative for the United 

Kingdom entitles him to diplomatic immunity. The magistrate 

judge agreed, and Watson was transferred to the Federal Medical 

Center in Butner, North Carolina (“FMC Butner”) for mental 

health evaluation and treatment.
8

Approximately six months later, on April 4, 2013, the 

government submitted to the court a report completed by FMC 

Butner staff psychiatrist Dr. Robert G. Lucking (“Lucking”), 

which recommended that Watson be forcibly medicated in order to 

render him competent to stand trial. Because the government 

relies exclusively on Lucking’s opinion to show there is a

substantial likelihood that forcible medication would render 

Watson competent as required by Sell, we review Lucking’s report 

and testimony in some detail. 

In his report, Lucking diagnosed Watson with Delusional 

Disorder, Persecutory Type,1 a rare mental illness characterized 

by “the presence of one or more nonbizarre delusions that 

persist for at least one month.”2 Lucking further reported that 

Watson’s delusions had not been treated with antipsychotic 

medication at FMC Butner, and that Watson had refused to accept 

 1 The experts in this case use the terms “Persecutory Type” 

and “Paranoid Type” interchangeably. For clarity and 

consistency with the Diagnostic and Statistical Manual of Mental 

Disorders, we consistently refer to Watson’s condition as 

“Persecutory Type.” 

2 A delusion is “nonbizarre” if it involves a situation that 

can conceivably occur in real life, such as being followed, 

poisoned, infected, conspired against — or, as here, being 

recruited to work as a covert operative for a foreign 

government. “Bizarre” delusions, by contrast, are clearly 

implausible, not understandable, and not derived from ordinary 

life experiences, such as the belief that one’s internal organs 

have been removed and replaced by someone else’s organs without 

leaving a scar or wound.
9

such treatment. Lucking believed Watson to be neither gravely 

disabled nor a danger to himself or other inmates, as would be 

required to justify forcible medication under Harper. 

Nevertheless, he recommended that Watson be forcibly medicated

with the antipsychotic risperidone,3 asserting that

“antipsychotic medication is substantially likely to render 

[Watson] competent to stand trial.”

In support of his opinion, Lucking asserted that “there is 

extensive support in the psychiatric literature that individuals 

with the diagnosis of a psychotic illness obtain substantial 

reduction in their psychotic symptoms when treated with 

antipsychotic medication,” and that “a body of evidence” 

supports the related proposition that such individuals “can be 

restored to competency when treated with antipsychotic 

medication.” Lucking also asserted that Watson had taken

risperidone during his 2009 admission to St. Elizabeth’s, from 

which Lucking drew the “logical inference [that Watson] 

responded positively to the use” of that drug. However, Lucking

admitted that he did not have the medical records from that 

 3 The experts in this case use the generic name 

“risperidone” and the brand name “Risperdal” interchangeably. 

For clarity, we consistently refer to the drug by the generic 

name “risperidone.”
10

admission, and later testified that he would have recommended 

risperidone even if Watson had never received it before.

Finally, during a hearing on the government’s request for 

forcible medication, Lucking testified that his past experience 

as a psychiatrist supported the use of risperidone. Lucking

asserted that he had treated approximately ten other patients 

suffering from Delusional Disorder with antipsychotic

medication, and that he “believe[d] all of them” had been 

restored to competency. Lucking was, however, unable to provide 

any further information about the ten other patients, explaining

that he could “not remember details of patients [he] treated 

maybe five, six, seven, or eight years ago,” and that it would 

in any event be “inappropriate” to share such “treatment [and]

clinical information” in a public forum, “even with the 

[district court].”

Lucking’s opinion regarding the efficacy of involuntary 

medication was challenged on several grounds by the report of

defense expert and licensed psychologist Dr. James H. Hilkey

(“Hilkey”). With respect to the academic literature, Hilkey

emphasized that “there is little in the literature referencing 

well controlled, double-blind research studies as to the 

efficacy of pharmacological treatment of persons suffering from 

Delusional Disorders.” He also pointed out that the studies 

that do exist have consistently shown the Persecutory Type of 
11

the disorder — from which Watson suffers — to be the “most 

resistant” to treatment.

With respect to Watson in particular, Hilkey opined that 

“[t]he chronic nature of [Watson’s] illness and the fixed, well 

established nature of his aberrant thoughts” make his condition

resistant to treatment, whether pharmacological or 

psychological. He expressed concern that the involuntary 

treatment plan did not adequately address Watson’s “strongly 

held beliefs and reported personal experiences with psychotropic 

medications,” including “pronounced fears of death,” and opined 

that “[f]ailure to compassionately address these fears [would]

only contribute[] to fears of persecution” and thus aggravate 

his condition. Finally, Hilkey indicated that it was his 

“strongly held opinion” that supportive and cognitive behavioral 

therapy would “increase the likelihood [Watson’s] competency 

could be sufficiently restored,” given Watson’s apparent 

“capacity to form a degree of therapeutic alliance,” as 

demonstrated by his trusting relationship with his attorneys.

B.

On March 7, 2014, the magistrate judge recommended that 

Watson be forcibly medicated in order to restore his competency. 

Watson, 2014 WL 1901256, at *1, *4. The magistrate judge’s 

findings with respect to the first two Sell factors are relevant 

to Watson’s arguments on appeal. 
12

With respect to the first Sell factor, the magistrate judge 

found “that an important government interest is at stake in the 

prosecution of the defendant,” rejecting Watson’s argument that 

that interest was mitigated by “the possibility of an 

affirmative defense of not guilty by reason of insanity.” Id.

at *12, *14-15. In reaching this conclusion, the magistrate 

judge assumed that such a defense could constitute a mitigating 

special circumstance, but found that Watson had failed to prove 

that the defense was “likely [to] be successful” because he had 

not proffered expert testimony to that effect. Id. at *15. 

With respect to the second Sell factor, the magistrate 

judge found that the proposed treatment plan was substantially 

likely to restore Watson’s competency. To reach this 

conclusion, the magistrate judge relied entirely on Lucking’s 

testimony and report, which, he noted, referenced the academic 

literature and the experiences of Lucking’s other patients with 

Delusional Disorder. Id. The magistrate judge held that 

Hilkey’s forensic evaluation did not “undermine” Lucking’s 

conclusion, solely on the ground that Hilkey’s report nowhere 

“directly discredit[ed]” Lucking’s treatment plan. Id. at *16. 

On April 29, 2014, the district court issued a brief order 

adopting the recommendations and findings of the magistrate 

judge and granting the government’s motion for involuntary 

medication. Watson, 2014 WL 1901256, at *1, *4. The order has 
13

been stayed pending resolution of this appeal. Order, United 

States v. Watson, No. 1:13-cr-366 (E.D. Va. May 27, 2014), ECF 

No. 76.

III.

On appeal, Watson challenges the district court’s findings 

with respect to the first and second prongs of Sell. Because we 

conclude that the district court clearly erred in finding that 

the government had met its burden under the second prong of Sell

— and in particular, its burden of proving, by clear and 

convincing evidence, that forcible medication is substantially 

likely to restore Watson to competence4 — we do not decide

whether a possible insanity defense is a special circumstance 

that may mitigate the government interest in prosecution, or 

 4 The dissent objects that this issue is not properly before 

us, and that Watson’s argument on appeal is limited to the 

district court’s failure to order that the government provide 

supportive therapy in addition to forcible medication. We 

respectfully disagree. While it is true that Watson emphasizes 

Hilkey’s view that medication “must be combined with supportive 

therapy in order to be successful,” he does so only in support 

of his ultimate argument: that the only proposed treatment plan 

actually before the court “will be unsuccessful,” and that “the 

district court’s finding otherwise is clear error.” Watson Br. 

26. 
14

whether the district court otherwise erred in finding that the 

government met its burden under the first prong of Sell.5

A.

We have said that the second Sell factor involves factual 

determinations subject to clear error review, see White, 620 

F.3d at 410, and we recognize that our role is not to secondguess a district court’s factual findings, see United States v. 

Francis, 686 F.3d 265, 273 (4th Cir. 2012). We are, however, 

charged with ensuring that the district court actually makes the 

necessary findings, and that it makes them pursuant to the 

proper legal standard — that it asks and answers the right 

questions — in light of the record as a whole. See Jiminez v. 

Mary Washington Coll., 57 F.3d 369, 379 (4th Cir. 1995) (“We 

reverse a factual finding as being clearly erroneous if, 

‘although there is evidence to support it, the reviewing court 

on the entire evidence is left with the definite and firm 

 5 In the decision below, the district court assumed that a 

possible insanity defense could be considered in the special 

circumstances analysis under the first prong of Sell, see

Watson, 2014 WL 1901256, at *2, as have other courts within this 

circuit, see, e.g., United States v. Duncan, 968 F. Supp. 2d 

753, 765-66 (E.D. Va. 2013); United States v. Rodman, 446 

F. Supp. 2d 487, 496-97 (D.S.C. 2006). There is, however, 

division among the courts of appeals on the question. Compare

United States v. Morrison, 415 F.3d 1180, 1186 (10th Cir. 2005) 

(likely insanity defense diminishes government interest in 

trial), with United States v. Mikulich, 732 F.3d 692, 699-701

(6th Cir. 2013) (potential insanity defense does not undermine 

government interest).
15

conviction that a mistake has been committed.’” (quoting United 

States v. United States Gypsum Co., 333 U.S. 364, 395 (1948))). 

And in this highly sensitive context, governed by the exacting 

clear and convincing standard, it is especially important that a 

district court consider and contend with substantial evidence

that would undermine the case for forcible medication, and that 

it ensure that the government’s burden actually has been met. 

See id. (clear error may occur when a district court 

“disregard[s] substantial evidence that would militate a 

conclusion contrary to that reached” or otherwise reaches a 

conclusion “contrary to the clear weight of the evidence 

considered in light of the entire record”). On the basis of our 

review of the entire record, we conclude that the district court 

clearly erred in finding that the government had met its burden 

of proving, by clear and convincing evidence, that the proposed 

treatment is substantially likely to restore Watson’s 

competency. We further conclude that on the record before us, 

that exacting standard cannot be met.

B.

Under the second prong of Sell, the government must prove, 

by clear and convincing evidence, that involuntary medication 

significantly furthers its interests. See Chatmon, 718 F.3d at 

374. And as part of that showing, the government must

“demonstrat[e] that the proposed treatment plan, as applied to 
16

this particular defendant, is ‘substantially likely’ to render 

the defendant competent to stand trial.” United States v. 

Evans, 404 F.3d 227, 242 (4th Cir. 2005) (emphasis in original). 

Merely showing a proposed treatment to be “generally effective” 

against the defendant’s medical condition is insufficient to 

meet this burden. Id. at 241-42; see Bush, 585 F.3d at 816 

(“[I]n order to satisfy this second factor of the Sell test, the 

government must not only show that a treatment plan works on a 

defendant’s type of mental disease in general, but that it is 

likely to work on this defendant in particular.”) (emphasis in 

original); see also United States v. Ruiz-Gaxiola, 623 F.3d 684,

700 (9th Cir. 2010) (finding this burden unmet where the 

government’s “experts rely on generalities and fail to apply 

their views to [the defendant’s] condition with specificity”). 

Instead, the government must “relate the proposed treatment plan 

to the individual defendant’s particular medical condition,”

Evans, 404 F.3d at 242, which requires consideration of factors 

specific to the defendant in question, including not only his 

medical condition, but also his age and the nature and duration 

of his delusions, see id. at 241.

What is missing from the proceedings below is any finding 

assessing the likely success of the government’s proposed 

treatment plan in relation to Watson’s particular condition and 

particular circumstances. The district court did find that 
17

“[t]he record convincingly reflects that the government has 

satisfied” the second prong of Sell. Watson, 2014 WL 1901256, 

at *3. But nothing in the district court’s decision indicates 

that it actually considered whether the evidence proffered by 

the government sufficiently addressed Watson’s particular 

medical situation. Rather, the district court appears to have 

concluded that the “substantially likely” requirement had been

met merely because Lucking testified that it was. See id.

(finding that government had shown involuntary medication to be 

“substantially likely to render the defendant competent to stand 

trial” because “Lucking . . . testified that the treatment plan 

he designed for defendant . . . satisfies these requirements”). 

And if we go behind the district court’s order to the magistrate 

judge’s report and recommendation, the result is no better: In 

adopting Lucking’s conclusion, the magistrate judge pointed for 

support only to Lucking’s reliance on the academic literature 

and his experience with his own patients, see id. at *15,

neither of which bears on Watson’s particular medical condition 

or circumstances. 

It is critical that in evaluating the government’s case for 

forcible medication under Sell, courts engage in the proper 

inquiry: not whether a proposed treatment plan is likely to work 

in general, but whether it is likely to work as applied to a 

particular defendant. Permitting the government to meet its 
18

burden through generalized evidence alone would effectively 

allow it to prevail in every case involving the same condition 

or course of treatment. See Evans, 404 F.3d at 241. Because we 

are obligated to ensure that a given case is “sufficiently 

exceptional to warrant the extraordinary measure of forcible 

medication,” we cannot permit such deference here. White, 620 

F.3d at 413; see also Evans, 404 F.3d at 241. 

C.

In this case, the requirement that the court assess the 

efficacy of antipsychotics as applied “with specificity” to 

Watson’s circumstances, Ruiz-Gaxiola, 623 F.3d at 700, is more 

than a formality. The district court’s failure to look beyond 

Lucking’s conclusory assertion that the government’s burden had 

been met is problematic precisely because there is a near total 

absence of evidence in Lucking’s report or testimony that 

“relate[s] the proposed treatment plan to [Watson’s] particular 

medical condition.” Evans, 404 F.3d at 242. This is not a 

case, in other words, where the district court’s failure to 

properly synthesize or distill the evidence is harmless because 

we can see for ourselves that the government has met its burden 

under the second Sell prong. On the contrary: There is 

virtually nothing in Lucking’s report or testimony — the 

entirety of the government’s case — that is sufficiently 

specific to Watson that it could satisfy the government’s burden 
19

of showing that Watson is substantially likely to be rendered 

competent by forcible medication, let alone meet the rigorous 

clear and convincing standard.6

Lucking, for example, argues that risperidone is likely to 

restore Watson’s competency because “there is extensive support 

in the psychiatric literature that individuals with the 

diagnosis of a psychotic illness obtain substantial reduction in 

their psychotic symptoms when treated with antipsychotic 

medication.” In other words, he asserts: (1) antipsychotic 

medication effectively treats psychotic symptoms; (2) Watson has 

psychotic symptoms; (3) therefore, antipsychotic medication will 

effectively treat his psychotic symptoms. See also J.A. 75 

(Lucking testifying that Watson “has a psychotic symptom; 

therefore, he needs treatment with an antipsychotic”). This is 

exactly the kind of nonspecific, syllogistic reasoning we deemed 

insufficient in Evans, see 404 F.3d at 241, and it has not 

become any more persuasive over time.

 6 The dissent takes the position that the only question 

before us is whether the district court properly synthesized the 

record evidence, and not whether that evidence supports the 

district court’s holding. In our view, however, those issues 

are so closely interrelated in the context of this case that we 

are justified in addressing them together. As Watson argues on 

appeal, the district court’s synthesis errors matter precisely 

because the evidence that the proposed treatment plan will 

succeed is so thin. 
20

The insubstantiality of that reasoning is exacerbated here 

by the weaknesses in the studies actually cited in Lucking’s 

report. For one thing, many of those studies concern the 

efficacy of antipsychotics in general, rather than risperidone 

in particular, against psychotic illness in general, rather than

Delusional Disorder in particular. Cf. White, 620 F.3d at 421 

(discounting probative value of doctor’s “professional 

experience and expertise,” where doctor’s “area of expertise 

[was] schizophrenia, not delusional disorders”). Because they 

do not address the specifics of either the proposed treatment 

plan or Watson’s condition, these studies cannot satisfy the 

government’s burden of “relat[ing] the proposed treatment plan 

to the individual defendant’s particular medical condition.” 

Evans, 404 F.3d at 242.

Moreover, the cited studies that do specifically address 

Delusional Disorder are equivocal at best. One study, Lucking 

reports, finds a positive response to medication in fewer than 

half of the cases reviewed, while another places the positive 

response rate at less than 15%. Still another study identifies 

Watson’s particular condition — the Persecutory Type — as having 

an especially “poor response rate (50% improvement rate with no 

reported complete recovery).” The one study cited by the 

government that does unequivocally support the involuntary use 

of antipsychotic medication to restore the competency of 
21

defendants with the Persecutory Type of Delusional Disorder is, 

by its own terms, vulnerable to “bias[] in favor of finding a 

positive response to treatment” due to its experimental design. 

Byron L. Herbel & Hans Stelmach, Involuntary Medication 

Treatment for Competency Restoration of 22 Defendants With 

Delusional Disorder, 35 J. Am. Acad. Psychiatry L. 47, 58 

(2007). 

This is not to say that these and other studies mentioned

in Lucking’s report are of no evidentiary weight at all. They 

fairly could be understood to provide some evidence that 

antipsychotic medication may be effective against Delusional 

Disorder in general. But standing alone, without explanation or 

analysis applying their findings to Watson as an individual, we 

do not believe they can provide the requisite clear and 

convincing proof that the forcible injection of risperidone is 

substantially likely to succeed in treating Watson’s specific

persecutory delusions. Cf. Evans, 404 F.3d at 241-42 (finding 

government report inadequate to prove that proposed treatment 

plan was “substantially likely” to restore defendant’s 

competency where it stated only that “such medication is the 

‘primary’ way to treat Schizophrenia” and “nowhere addressed” 

defendant’s individual concerns). 

Lucking’s testimony regarding his past experience treating 

patients with Delusional Disorder also fails to take account of 
22

Watson’s particular condition and circumstances. The 

experiences of similar patients treated with antipsychotics of 

course could be relevant to Watson specifically — but here, 

Lucking was unable to provide any information demonstrating that 

his patients in fact were similarly situated to Watson. There 

is, for instance, no evidence that they suffered from the same 

type of Delusional Disorder, that they received the same 

medication, that the medication was administered involuntarily,

or that their delusions were meaningfully similar in nature and 

persistence. Indeed, Lucking indicated that he was unable to 

recall any information about these patients, testifying that he 

could “not remember details of patients [he] treated maybe five, 

six, seven, or eight years ago,” and that it would, in any case,

be “inappropriate to share other people’s treatment [and]

clinical information,” “even with the [district court].” But 

without information relating his patients’ experiences to 

Watson’s own circumstances, that data set is just another form 

of generalized evidence.

Nor do we think this gap can be filled with evidence that 

is particularized to Watson but goes to an entirely different 

question: not whether forcible medication is substantially 

likely to render Watson competent to stand trial, but whether it 

is substantially unlikely to have side effects that will 

interfere with his ability to assist counsel. Those are two 
23

separate and independent showings, each of which the government 

must make under Sell’s second prong, 539 U.S. at 181, by clear 

and convincing evidence, see Bush, 585 F.3d at 815; one cannot 

substitute for the other. And as we have held, both showings 

must be made “with respect to the particular defendant [the 

government] seeks to medicate involuntarily,” id. at 815-16, 

with the same “exacting focus on the personal characteristics of 

the individual defendant and the particular drugs the 

[g]overnment seeks to administer,” id. at 816 (quoting United 

States v. Baldovinos, 434 F.3d 233, 240 n.5 (4th Cir. 2006)).

In this case, however, while the government does provide an 

individualized analysis of Watson’s vulnerability to 

counterproductive side effects from risperidone, that only 

highlights its failure to provide comparable individualized 

analysis of the likelihood that risperidone will actually 

succeed in rendering Watson competent. 

Finally, Lucking himself undermines the one section of his 

report that purports to explain why risperidone was recommended 

for Watson in particular. In that section, Lucking asserts that 

risperidone is likely to be effective because Watson was treated 

with risperidone during his 2009 admission to St. Elizabeth’s. 

The report itself qualifies this assertion in at least two ways:

It admits that Lucking had not reviewed the hospital records 

from that admission, and also that the mere fact that Watson
24

“was treated and released” by St. Elizabeth’s constitutes only 

“indirect evidence of a positive response to antipsychotic 

medication.” More importantly, the assertion was deprived of 

significance during an April 30, 2013, hearing on the motion for 

involuntary medication, when Lucking admitted that he would have 

recommended risperidone even if he learned that Watson had never 

taken it before. As Lucking made clear, his recommendation 

rested not on any individualized assessment of Watson, but on 

the belief that “antipsychotics are the treatment of choice for 

psychotic symptoms” — the same nonspecific, syllogistic 

reasoning we have previously rejected. See Evans, 404 F.3d at 

241.

D.

We are concerned here not only with the deficiencies in the 

government’s affirmative case for forcible medication, but also 

with the substantial questions raised about the government’s 

proposed treatment plan by Hilkey — questions never addressed by 

the magistrate judge or district court. As we have recognized, 

careful scrutiny by courts of proposed forcible administration 

of antipsychotics is necessary to minimize the risk of error 

where such important liberty interests are at stake. See Bush, 

585 F.3d at 814. That scrutiny necessarily requires 

consideration of any substantial and credible evidence that 
25

undermines the case for forcible medication. But there is no 

indication that such consideration occurred here.

The magistrate judge and district court did not examine and 

then reject the concerns raised by Hilkey in his report, making 

subsidiary factual determinations to which we would owe the 

normal deference. Instead, they summarily disregarded Hilkey’s 

report in its entirety, solely because Hilkey failed to state 

expressly that the proposed treatment plan would not succeed. 

Watson, 2014 WL 1901256, at *3, *16 (“As the Report and 

Recommendation correctly notes, defendant’s medical expert, Dr. 

Hilkey, did not state in his report that Dr. Lucking’s plan will 

not succeed.”). But it is the government’s burden to prove, by 

clear and convincing evidence, that its proposed treatment plan 

is “substantially likely to render [Watson] competent to stand 

trial,” White, 620 F.3d at 410 (quoting Sell, 539 U.S. at 181),

and not Watson’s burden to prove that it is not. 

And by perfunctorily disregarding Hilkey’s report, the 

district court here excluded from consideration significant 

evidence that does indeed call into question whether forcible 

medication is likely to “succeed” by restoring Watson’s 

competency. For example, Hilkey disputes Lucking’s reading of 

the scientific literature, asserting that “little is known about 

[Delusional Disorder] compared to other psychotic disorders,” 

and that what research does exist as to Delusional Disorder 
26

indicates that individuals suffering from the Persecutory Type 

are “most resistant” to treatment. Hilkey’s objections to the 

scientific literature on the use of antipsychotic medication to 

treat Delusional Disorder are particularly concerning in light 

of Lucking’s heavy reliance on this research in his own report

and the magistrate judge’s second-order reliance on the same 

research. Yet these concerns are barely acknowledged, let alone 

adequately addressed, in the district court order. 

The decisions below also failed to give adequate 

consideration to Hilkey’s concern that Watson’s particular 

persecutory delusions are especially unlikely to respond to 

treatment. Hilkey opines that: (1) due to “[t]he chronic nature 

of [Watson’s] illness and the fixed, well established nature of 

his aberrant thoughts,” Watson’s condition is likely to be 

“resistant to change,” and (2) without supportive therapy to 

address Watson’s “strongly held beliefs and reported personal 

experiences with psychotropic medications,” which “include 

pronounced fears of death,” involuntary treatment will “only 

contribute[] to [Watson’s] fears of persecution.” Those are 

exactly the kind of individualized concerns that we have said 

must be addressed by the government in order to meet its burden 

of proving that the proposed treatment is substantially likely 

to restore the defendant’s competency, see Evans, 404 F.3d at 

241 (finding second-factor burden unmet where government 
27

“nowhere addressed [the defense expert’s] concern that Evans’s 

delusions of governmental conspiracies that ha[d] persisted 

longer than 40 years [would] resist involuntary medication 

precisely because the government administers the medication”) —

and yet they were summarily dismissed by the district court, see

Watson, 2014 WL 1901256, at *2-3, *16.

E.

In sum, the district court in this case did not undertake 

the searching and individualized assessment of Watson’s likely 

susceptibility to forcible medication that is required by our 

case law. It took the government at its word when it argued 

that the requirements of Sell had been met, without considering 

whether the government had produced evidence “relat[ing] the 

proposed treatment plan to the individual defendant’s particular 

medical condition.” Evans, 404 F.3d at 242. This failure to 

apply the proper legal standard exacerbated the district court’s 

apparent failure to consider the concerns raised by Hilkey’s 

report, which did relate to Watson specifically. See Chatmon, 

718 F.3d at 376 (finding clear error where the district court 

failed to “offer some reason why it did not” credit contrary 

arguments). Perhaps as a result of these errors of synthesis, 

the district court overlooked the issue lying at the heart of 

this case: the meagerness of the evidence that forcible 

treatment is substantially likely to restore Watson’s 
28

competency, when his particular medical situation is taken into 

account — especially as evaluated under the requisite clear and 

convincing standard of proof. 

Any one of these problems would raise questions under the 

clear error standard of review, whether for misapprehension of 

the relevant legal standard, failure to consider contrary 

evidence, or reaching a conclusion against the clear weight of 

the record. See Jiminez, 57 F.3d at 379. In this case, it is 

enough to say that cumulatively, they leave us with “the 

definite and firm conviction that a mistake has been committed,”

Francis, 686 F.3d at 273 (quoting United States v. Hall, 664 

F.3d 456, 462 (4th Cir. 2012)), in a context where the costs of 

error are exceedingly high. We therefore hold that the district 

court clearly erred in finding that the government has met its 

burden of proving by clear and convincing evidence — i.e.,

evidence of a sufficient weight to produce a “firm belief or 

conviction, without hesitancy, as to the truth of the 

allegations sought to be established,” Heyer, 740 F.3d at 292 —

“that the proposed treatment plan, as applied to this particular 

defendant, is ‘substantially likely’ to render the defendant

competent to stand trial,” Evans, 404 F.3d at 242 (emphasis in 

original). 

We further conclude that this is the rare case in which a 

remand is inappropriate because “the record permits only one 
29

resolution of the factual issue”: that this burden cannot be 

met. Pullman-Standard v. Swint, 456 U.S. 273, 292 (1982); see, 

e.g., Ruiz-Gaxiola, 623 F.3d at 696 (declining to remand where 

“[t]here is no explanation that the court could provide on 

remand and no findings consistent with the record before us that 

would allow us to conclude that the government has met its 

burden under the second Sell factor”). In Bush, 585 F.3d at 

817, 818, and Evans, 404 F.3d at 242-43, we remanded rather than 

reversing after finding the record insufficient to support 

forced medication under Sell. But in those cases, we 

articulated new legal standards, Bush, 585 F.3d at 817; Evans, 

404 F.3d at 241-42, and our remands, at least in part, afforded 

the parties their first opportunities to present evidence and 

make arguments under those standards. The standard we apply 

today, by contrast, was established over ten years ago in Evans, 

and we believe that the government has had ample opportunity to 

assemble and defend the evidence necessary to meet it. 

Because the government must prove that it has satisfied 

each of the four Sell prongs before it may forcibly medicate a 

defendant, we need not reach Watson’s remaining arguments to 

conclude that the government has not justified forcible 

medication in this case.
30

IV.

Accordingly, the order of the district court is

REVERSED.
31

TRAXLER, Chief Judge, dissenting:

The district court granted the government’s petition to 

involuntarily medicate John Watson in order to restore his 

competency to stand trial. The majority reverses that order, 

concluding that the government’s evidence was insufficient to 

prove that the proposed treatment plan was substantially likely 

to render Watson competent. In his appeal, however, Watson does 

not challenge the sufficiency of the government’s evidence 

establishing the necessity of medication. Instead, he argues 

that the district court erred by not requiring supportive 

therapy in addition to medication, which Watson contends would 

increase the likelihood that he would be restored to competency. 

This court generally does not address issues not raised by the 

parties, and I believe it inappropriate in this case for the 

majority to reverse the district court on an issue raised sua 

sponte, particularly without giving the government notice of the 

change in issues or an opportunity to address it. If the issue 

were properly before us, however, I would find the evidence in 

the record sufficient to support the district court’s order.

As to the issues actually raised by Watson, I conclude 

that, as to one narrow issue, the district court failed to make 

the necessary findings. However, I believe the proper course in 

this circumstance is to vacate and remand for additional 
32

findings, not simply reverse the district court outright. 

Accordingly, I respectfully dissent.

I.

When seeking to involuntarily medicate a defendant for the 

purpose of restoring his competency to stand trial, the 

government must establish four factors by clear and convincing 

evidence. See Sell v. United States, 539 U.S. 166, 180-81 

(2003); United States v. Bush, 585 F.3d 806, 813-14 (4th Cir. 

2009). First, the government must prove that “important

governmental interests are at stake” that are not mitigated by 

“[s]pecial circumstances.” Sell, 539 U.S. at 180. Second, the 

government must establish that forced medication “significantly 

further[s]” the government’s interests because it is 

“substantially likely to render the defendant competent to stand 

trial” and “substantially unlikely” to have side effects that 

would undermine the fairness of a trial. Id. at 181. Third, it 

must show that forced medication is “necessary to further” the 

government’s interests because “less intrusive means are 

unlikely to achieve substantially the same results.” Id. 

Fourth, the government must prove that the administration of the 

requested drug is “medically appropriate, i.e., in the patient’s 

best medical interest in light of his medical condition.” Id.

To carry its burden under Sell, the government must submit 

a proposed treatment plan specifying the particular drug and 
33

dosage it intends to administer. See United States v. Evans, 

404 F.3d 227, 241 (4th Cir. 2005). For the treatment plan to 

satisfy the requirements of the second factor, the government 

must show that the plan relates

to the individual defendant’s particular medical 

condition. In other words, the government, 

considering all of the particular characteristics of 

the individual defendant relevant to such a 

determination, must first show that the treatment plan 

will significantly further its interests. It must do 

so by demonstrating that the proposed treatment plan, 

as applied to this particular defendant, is 

substantially likely to render the defendant competent 

to stand trial and substantially unlikely to produce 

side effects so significant as to interfere with the 

defendant’s ability to assist counsel in preparing a 

defense.

Id. at 242 (first emphasis added; footnote and internal 

quotation marks omitted).

The question posed by the first Sell factor is a legal one, 

and we therefore review the district court’s ultimate answer de 

novo and any subsidiary factual determinations for clear error. 

The remaining three factors pose factual questions subject to 

clear error review. See United States v. White, 620 F.3d 401, 

410 (4th Cir. 2010).

Clear error, of course, is a very deferential standard. “A 

court reviewing for clear error may not reverse a lower court’s 

finding of fact simply because it would have decided the case 

differently. Rather, a reviewing court must ask whether, on the 

entire evidence, it is left with the definite and firm 
34

conviction that a mistake has been committed.” United States v. 

Wooden, 693 F.3d 440, 451 (4th Cir. 2012) (internal quotation 

marks and alteration omitted). “If the district court’s account 

of the evidence is plausible in light of the record viewed in 

its entirety, the court of appeals may not reverse it even 

though convinced that had it been sitting as the trier of fact, 

it would have weighed the evidence differently.” Anderson v. 

City of Bessemer City, 470 U.S. 564, 573–74 (1985). “In cases 

in which a district court’s factual findings turn on assessments 

of witness credibility or the weighing of conflicting evidence 

during a bench trial, such findings are entitled to even greater 

deference.” Helton v. AT & T, Inc., 709 F.3d 343, 350 (4th Cir.

2013).

II.

Given the fact-bound nature of this appeal, I will first 

summarize the primary evidence before the district court: the 

report and testimony of Dr. Robert Lucking, the government’s 

expert witness and staff psychiatrist at the Federal Medical 

Center in Butner, North Carolina, the facility where Watson is 

housed; a study by Byron L. Herbel and Hans Stelmach (the 

“Herbel Study”)1 that was relied upon by Lucking; and the report 

 1 See Byron L. Herbel & Hans Stelmach, Involuntary 

Medication Treatment for Competency Restoration of 22 Defendants 

With Delusional Disorder, 35 J. Am. Acad. Psychiatry & L. 47 
35

of Dr. James Hilkey, a psychologist who served as Watson’s 

expert witness.

A.

Dr. Lucking submitted a report detailing his views and 

testified at the two Sell hearings conducted by the magistrate

judge. In his report, Lucking diagnosed Watson as suffering 

from delusional disorder, paranoid (or persecutory) type and a 

“substantial thought disorder.” J.A. 357. Lucking described 

the nature of delusional disorder and stated his opinion that 

Watson was incompetent to stand trial because his “paranoid 

delusional beliefs” prevented Watson from “understand[ing] the 

nature and consequences of the proceedings against him” and 

prevented him from assisting his attorney. J.A. 359, 360. 

Lucking stated his opinion that there was a “substantial 

probability Mr. Watson’s competency can be restored” through 

treatment with an antipsychotic medication. J.A. 376.

Lucking explained that antipsychotic medications can 

restore the competency of those with active psychotic illnesses, 

and he summarized various studies supporting this general 

principle. As to delusional disorder more specifically, Lucking

 

(2007). The Herbel Study was submitted to the district court as 

part of Watson’s opposition to the government’s petition.
36

noted in his report that “[p]ast opinion of the treatment of 

delusional disorder with antipsychotic medication was 

pessimistic. The prevailing opinion was that only a fraction of 

individuals with delusional disorder would respond to treatment 

(approximately 10%).” J.A. 371 (emphasis added). Lucking 

explained, however, that “more recent literature indicates a 

significantly better response rate,” J.A. 372, and he summarized 

those more recent studies, which included several with rates of 

successful treatment (i.e., full or partial remission of 

symptoms)2 exceeding 75%. Lucking acknowledged that there are 

“no double-blind placebo-controlled or non-blinded placebocontrolled trials in the literature related to the treatment of 

delusional disorder,” and that the more recent literature 

involved case studies, which yield “lower quality” evidence than 

the evidence obtained through placebo-controlled trials. J.A. 

372. These shortcomings notwithstanding, Lucking believed the 

more recent studies “indicate delusional disorder can be treated 

effectively with antipsychotic medication.” J.A. 374.

 2 Lucking explained that “it is generally psychotic symptoms 

which render an individual incompetent,” and that “the fewer 

psychotic symptoms present, and the less intense the symptoms, 

the more likely that individual is to be competent. Therefore, 

even a partial response to antipsychotic medication can result 

in a restoration of competency.” J.A. 370.
37

The report explained the difference between first- and 

second-generation antipsychotic drugs and noted that secondgeneration antipsychotics “are considered to be the first line 

treatment for psychotic conditions due to [their] less onerous 

side effect profile.” J.A. 376. The report discussed the three 

antipsychotic medications that could be administered 

involuntarily and noted that risperidone is the only secondgeneration antipsychotic that could practicably be administered 

involuntarily. Lucking stated in the report that Watson had 

previously been admitted to a hospital in Washington, D.C., 

where he was treated with risperidone. Lucking inferred from 

the fact that Watson was released from the hospital that he

responded positively to the drug, and his treatment plan for 

Watson recommended the use of risperidone.

Lucking’s report stated that treatment with an 

antipsychotic would not produce side effects that would 

interfere with Watson’s ability to assist his attorney; that 

Watson had no underlying disease that would preclude the 

standard treatment of any side effects or make him susceptible 

to particular side effects; that risperidone would not interact 

with any of the other medications prescribed for Watson; and 

that Watson had no “underlying medical illness or conditions 

which would preclude or be worsened by the use of antipsychotic 

medication.” J.A. 375.
38

In the report, Lucking explained that no less-intrusive 

treatments were likely to achieve the same results as treatment 

with risperidone. While acknowledging that psychotherapy can be 

beneficial as an adjunct to treatment with antipsychotics, 

Lucking noted that there is “no evidence that psychotherapeutic 

techniques alone are effective alternatives for treatment with 

antipsychotic agents.” J.A. 375 (emphasis added). Lucking also 

indicated that therapy would not succeed in this case because 

Watson does not understand that he has a mental illness, does 

not believe he needs treatment, and would not participate in any 

form of therapy. 

During the Sell hearings held before the magistrate judge, 

Lucking testified about the matters set out in his report and 

reiterated his views that Watson’s delusional disorder rendered 

him incompetent to stand trial and that treatment with an 

antipsychotic medication was substantially likely to restore 

Watson’s competency. Lucking also testified that he had treated 

“[o]n an involuntary basis” approximately ten delusionaldisorder patients with antipsychotic medication, all of them 

successfully.3 J.A. 32. Lucking’s testimony also elaborated on 

 3 The majority questions whether Lucking’s testimony 

establishes that the ten patients were treated involuntarily. 

In my view, it clearly does. See J.A. 32 (“Q. How many patients 

suffering from delusional disorder have you treated with 

antipsychotic medication? A. On an involuntary basis, it’s not 
39

the position expressed in the report that therapy would not be 

helpful for Watson. Lucking explained that because thought 

disorders and delusions respond positively to antipsychotic 

medications but are not helped by therapy, he did not believe 

therapy would be effective to restore Watson’s competency to 

stand trial.

Although Lucking’s report recommended risperidone because 

Watson had previously been treated with it and apparently 

responded positively to it, Lucking testified at the hearing 

that he would recommend risperidone even if Watson had never 

taken the drug. As Lucking explained, 

[t]he reason the risperidone was chosen is because we 

are very limited. The fact that he had received it 

before is a fraction of the reason for choosing that 

medication. That medication is chosen, one, because 

it’s appropriate to treat his delusional disorder; 

two, the side effects are more tolerable than ones 

from the 1st generation; the medicine is effective; 

and I use it a lot, and I get [a] good response [to] 

it. The fact that he had been on it is not the main 

reason I chose it for the treatment plan.

J.A. 64-65; see also J.A. 76 (“[C]linically, I believe 

[risperidone] is the best choice for treatment at this point in 

time for Mr. Watson.”).

 

a lot of them because many of them – it’s a rather rare disorder 

that you don’t see very often. So probably somewhere around ten 

patients over the course of my career here I've treated with 

antipsychotics.” (emphasis added)).
40

B.

Dr. James Hilkey, Watson’s expert witness, prepared a 

report after interviewing Watson for nearly ten hours over the 

course of four separate interviews. Hilkey agreed that Watson 

was suffering from delusional disorder, persecutory type, and 

that Watson was incompetent to stand trial.

Hilkey’s report confirmed that Watson had been previously 

treated with risperidone during an inpatient hospital stay. The 

hospital records reviewed by Hilkey noted that Watson had an 

adverse reaction to higher dosages of lithium but mentioned no 

adverse reaction to the risperidone. Watson, however, told 

Hilkey that he was “terrified” of the side effects of 

antipsychotic medications and that he had “severe reactions” to 

the single dose of risperidone he took under court order. J.A. 

381. In Hilkey’s view, Watson’s fears about the medication 

“interfaced with his conspiratorial belief system.” Id.

As to treatment with antipsychotics, Hilkey stated that 

“pharmacological treatment of Delusional Disorders [is] less 

efficacious than with typical psychotic disorder[s] such as 

Schizophrenia.” Id. Hilkey noted the “paucity of controlled, 

double-blind studies on treatment of individuals with delusional 

disorders,” id., and observed that the “existing studies” show 

that the persecutory type of the delusional disorder is the most 

resistant to treatment, J.A. 382.
41

Hilkey had “some question about the efficacy of 

pharmacological treatment with Mr. Watson,” J.A. 383, noting 

that “[t]he chronic nature of Mr. Watson’s illness and the 

fixed, well established nature of his aberrant thoughts make 

response to treatment (pharmacological and psychological) 

resistant to change,” J.A. 383. However, Hilkey never directly 

stated an opinion on the likely success of the treatment plan 

proposed by Lucking. Hilkey instead focused on the need for 

“[s]upportive therapy,” which “has been shown to be an effective 

treatment.” J.A. 382. As Hilkey explained, 

[t]he general goals of supportive therapy are to 

facilitate the treatment adherence and develop a 

therapeutic alliance, to provide education about the 

disorder, to improve social skills (i.e. not talking 

about delusional systems in social places) and to 

manage behavioral and psychological problems 

associated with the delusions. This is a slow 

process; failure to offer this type of supportive 

treatment in lieu of more aggressive therapy only 

reinforces the established fears that characterize 

persecutory delusional disorders.

J.A. 382-83 (footnote omitted). Given Watson’s “strongly held 

beliefs and reported personal experiences with psychotropic 

medications to include pronounced fears of death,” Hilkey 

believed that “any treatment approach be it pharmacological or 

psychological must be offered in a supportive manner designed to 

mitigate the fears of the individual being treated. Failure to 

compassionately address these fears only contributes to fears of 

persecution.” J.A. 383. In Hilkey’s view, Watson’s relationship 
42

with his attorneys showed his ability to form some degree of the 

“therapeutic alliance” required for therapy to succeed, and 

Hilkey “strongly believed” that supportive therapy “could 

increase the likelihood his competency could be sufficiently 

restored.” J.A. 384.

C.

The Herbel Study reported findings from an evaluation of 

the case files of twenty-two men involuntarily medicated at FMCButner, the same facility where Watson is housed and Dr. Lucking 

works. Of the twenty-two cases studied, sixteen of the patients 

suffered from delusional disorder, persecutory type; one had 

delusional disorder, grandiose type; and five were mixed 

persecutory and grandiose type. Overall, seventeen of the 

twenty-two patients (77%) were reported restored to competency. 

And of the sixteen patients diagnosed with delusional disorder, 

persecutory type, eleven (69%) were reported restored to 

competency. Of the five patients who were not restored to 

competency, one was mixed type and the other four were 

persecutory type.

The information reviewed was sufficient in nineteen cases 

for the authors of the Herbel Study to determine how long before 

treatment the symptoms had begun. The symptoms had been present 

for five years or less for nine patients, seven of whom were 

restored to competency. Six patients had had symptoms for seven 
43

to ten years, and all six of those patients were restored to 

competency. Of the four patients who were symptomatic for a 

much longer period of time (thirteen to twenty-four years), only 

one was restored to competency.4

The study reported that seven patients were restored to 

competency within six weeks of beginning treatment, but that the 

other ten who were restored to competency did not shows signs of 

improvement until undergoing at least three months of continuous 

treatment, and that some of the patients required five months of 

treatment before regaining competency. The authors thus 

recommended treatment trials of at least four months, and noted 

that many previous studies involved significantly shorter 

medication trials. In the authors’ view, the too-short duration 

of medication in the previous studies provided a “plausible 

explanation” for the incorrect “conventional wisdom that these 

patients are refractory to treatment with antipsychotic 

medication.” J.A. 147; see also J.A. 141 (describing as 

“empirically unsupported” the opinion asserted in forensic 

psychiatric literature that “Delusional Disorder is notoriously 

treatment resistant”).

 4 The evidence in the record establishes that Watson had 

been suffering from delusions since 2008 or 2009. Thus, when 

the district court issued its order in April 2014, Watson had 

been suffering from the disorder for five to six years. 
44

The authors noted that some experts have expressed concern 

that patients whose core delusion involves a belief that they 

are victims of a governmental conspiracy were not likely to 

respond to forced medication “‘precisely because the government 

administers the medication.’” J.A. 149 (quoting United States 

v. Evans, 404 F.3d 227, 241 (4th Cir. 2005)). As to the twentytwo cases studied, sixteen had delusions of governmental 

persecution, eleven of whom (65%) were restored to competency; 

the five patients who were not restored to competency all had 

such delusions. In light of that data, the authors concluded 

that “the presence of delusions involving themes of persecution 

by the same government that is implementing involuntary 

medication does not appear to be a useful predictor of 

nonresponse to treatment.” J.A. 149.

The authors noted that their study was subject to the 

“usual limitations” inherent in “retrospective inpatient chart 

review,” including the “lack of standardized clinical 

assessments with rating scales and diagnostic instruments, as 

well as lack of interrater reliability studies.” Id. Because 

of those limitations, 

some patients may have been misdiagnosed and wrongly 

included or excluded from this study population. 

Standard research methods to reduce bias, such as 

random assortment to assigned treatment groups, the 

use of a placebo control group, and blinded outcome 

measures, were not possible in this study. Without 

these safeguards, the opinions of the forensic 
45

examiners may have been biased in favor of finding a 

positive response to treatment.

J.A. 149-50. The authors, however, also pointed out a strength 

of the study:

[T]he patient cohort was selected in a real-world 

manner by criminal prosecution, after which they were 

assessed and involuntarily treated in a real-world 

manner at a forensic mental health facility. The main 

contribution of this study was the observation of 

treatment response in patients with delusional 

disorder who, in contrast to the usual protocols in 

community research studies, were not permitted to drop 

out of treatment. That 10 of the 17 patients who 

responded to treatment required continuous 

antipsychotic treatment for at least three months, and 

some up to five months, was unexpected. This result 

provides a plausible explanation for the presumed 

refractory nature of delusional disorder symptoms. 

The real obstacle to a positive treatment response in 

delusional disorder may not be the intrinsic 

biological features of the illness, but may instead be 

the difficulties in convincing these patients to 

adhere to an adequate trial of medication. 

J.A. 150 (emphasis added). 

III.

When considering whether the government’s proposed 

treatment plan was “substantially likely to render the defendant 

competent to stand trial,” Sell, 539 U.S. at 181, the district 

court concluded that Dr. Hilkey strongly recommended supportive 

therapy but that he never opined that medication alone would not 

restore Watson’s competency. On appeal, Watson contends that 

the district court’s analysis reflects a clearly erroneous 

understanding of Hilkey’s testimony. See Brief of Appellant at 
46

2 (“[T]he district court clearly err[ed] by misunderstanding the 

opinion of the defense expert about the necessity of holistic 

treatment.”); id. at 25 (“The district court’s misunderstanding 

of Dr. Hilkey’s conclusions constitutes clear error.”). 

Acknowledging that Hilkey never directly stated that the 

proposed treatment plan would not work, Watson contends that 

when Hilkey’s report is considered in its entirety, its meaning 

is clear: “Dr. Hilkey does not disagree with Dr. Lucking that 

Mr. Watson should be medicated. To the contrary, Dr. Hilkey 

agrees that medication is necessary, but it must be combined 

with supportive therapy in order to be successful.” Brief of 

Appellant at 24. Watson thus argues the district court clearly 

erred by misinterpreting Hilkey’s report and by not requiring 

the government to provide supportive therapy as part of the 

treatment plan.

Rather than focusing on the need for supportive therapy, 

however, the majority reverses the district court’s order after 

concluding that the government’s evidence was insufficiently 

related to Watson himself and his particular medical condition, 

and that the government’s “generalized” evidence was 

insufficient to carry its burden of proof under Sell. See 

Majority Op. at 2 (“[T]he government has not met its burden of 

proving that involuntary medication is substantially likely to 

restore Watson’s competency . . . .”); id. at 17-18 (“Permitting 
47

the government to meet its burden through generalized evidence 

alone would effectively allow it to prevail in every case 

involving the same condition or course of treatment.”).

A challenge to the overall sufficiency of the evidence, 

however, is very different from a challenge to the sufficiency 

of the district court’s distillation of the evidence. A 

challenge to the sufficiency of the evidence asks whether there 

is any plausible view of the evidence that supports the district 

court’s decision. See Anderson, 470 U.S. at 573-74; United 

States v. Springer, 715 F.3d 535, 545 (4th Cir. 2013); see also

VICI Racing, LLC v. T-Mobile USA, Inc., 763 F.3d 273, 283 (3d 

Cir. 2014) (“A finding of fact is clearly erroneous when it is 

completely devoid of minimum evidentiary support displaying some 

hue of credibility or bears no rational relationship to the 

supportive evidentiary data.” (internal quotation marks 

omitted)). A challenge to sufficiency of the district court’s 

distillation of the evidence, however, asks whether the district 

court as factfinder properly “synthesize[d] the evidence in a 

manner that accounts for conflicting evidence or the gaps in a 

party’s evidentiary presentation.” Doe v. Menefee, 391 F.3d 

147, 164 (2d Cir. 2004) (Sotomayor, Circuit Judge); accord

Miller v. Mercy Hosp., Inc., 720 F.2d 356, 361 (4th Cir. 1983) 

(explaining that clear error may be found where “the findings 

under review . . . were made without properly taking into 
48

account substantial evidence to the contrary”). An insufficient 

distillation of the evidence is an error that can be corrected 

by the district court, through an order on remand that considers 

all evidence and properly accounts for contrary evidence. 

Insufficient evidence, by contrast, cannot be corrected by the 

district court -- insufficient evidence is insufficient, 

regardless of the thoroughness of the order evaluating it.

In this case, Watson simply does not challenge the 

sufficiency of the government’s evidence. Watson does not argue 

on appeal that the government’s evidence, standing alone, was 

insufficient to satisfy the Sell requirements, nor does he 

contend that the government’s evidence was not sufficiently 

individualized to him and his condition. Instead, by arguing 

that the district court failed to grasp the import of Hilkey’s 

report, Watson is challenging only the district court’s 

synthesis of the evidence, not the existence of the evidence. 

Indeed, Watson’s argument that Hilkey’s report establishes the 

need for medication and supportive therapy effectively concedes

that the record contains evidence sufficient to establish that 

Watson’s competency can be restored. 

Thus, without acknowledging what it is doing, the majority 

disregards the argument actually made by Watson and resolves the 

appeal on an entirely different basis involving an entirely 

different kind of error -- the government’s failure to carry its 
49

burden of proof, rather than the district court’s failure to 

properly synthesize the evidence.5 Moreover, by reversing the 

district court’s order without remanding, the majority is 

granting relief that no one has sought, as Watson does not seek 

a reversal, but instead asks this court to vacate and remand for 

further proceedings.6

It is well-settled that this court may affirm a district 

court’s order on any basis appearing in the record. See, e.g., 

Blum v. Bacon, 457 U.S. 132, 137 n.5 (1982) (“[A]n appellee may 

rely upon any matter appearing in the record in support of the 

judgment below.”); Scott v. United States, 328 F.3d 132, 137 

(4th Cir. 2003) (“We are, of course, entitled to affirm on any 

ground appearing in the record, including theories not relied 

 5 While the majority does note some deficiencies in the 

district court’s order and briefly mentions the cumulative 

effect of the errors it identifies, the opinion nonetheless 

makes it clear that the majority is reversing for insufficient 

evidence. See Majority Op. at 2 (“In this case, we conclude, 

the government has not met its burden of proving that 

involuntary medication is substantially likely to restore 

Watson’s competency.”); id. at 25 (“We therefore hold that the 

district court clearly erred in finding that the government has 

met its burden of proving, by clear and convincing evidence, . . 

. that the proposed treatment plan, as applied to this 

particular defendant, is substantially likely to render the 

defendant competent to stand trial.” (internal quotation marks 

omitted)).

6 Although Watson’s opening and reply briefs ask us to 

vacate without mentioning remand, counsel made clear at oral 

argument that Watson is asking us to vacate the district court’s 

order and remand for further proceedings. 
50

upon or rejected by the district court.”). When it comes to 

reversing a district court’s order, however, our discretion is

much more constrained. As a general rule, this court does not 

consider non-jurisdictional issues that are not properly 

presented in an appellant’s opening brief, see, e.g., SuarezValenzuela v. Holder, 714 F.3d 241, 248-49 (4th Cir. 2013), much 

less issues that the appellant never even attempts to raise. 

While we have the power to address issues not raised by the 

appellant, see A Helping Hand, LLC v. Baltimore Cnty, 515 F.3d 

356, 369 (4th Cir. 2008), we do not exercise that power in civil 

cases unless the issue “establishes fundamental error or a 

denial of fundamental justice,” In re Under Seal, 749 F.3d 276, 

285-86 (4th Cir. 2014) (internal quotation marks omitted).7

The majority does not contend that the error it identifies 

rises to the level of a fundamental error, nor does it otherwise 

attempt to explain why the facts of this case justify such a 

departure from our settled practice. This court should not be 

in the business of re-writing the parties’ briefs and raising 

 7 Of course, “[w]hen an issue or claim is properly before 

the court,” a reviewing court “is not limited to the particular 

legal theories advanced by the parties, but rather retains the 

independent power to identify and apply the proper construction 

of governing law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 

90, 99 (1991) (emphasis added). This rule has no application in 

this case because Watson does not challenge the sufficiency of 

the evidence, and the sufficiency issue thus is not properly 

before this court.
51

issues we think they should have raised. Watson does not 

challenge the sufficiency of the evidence on appeal, and I 

believe it is improper in this case for the majority to reverse 

the district court on an issue the majority has raised sua 

sponte, particularly where the government has been given no 

notice of the change in the direction of this appeal nor an 

opportunity to address the issue the majority finds dispositive.

IV.

As discussed above, I do not believe the sufficiency-ofthe-evidence question is properly before us. But if it were, I 

would disagree with the majority’s analysis. In my view, the 

evidence before the district court was sufficient to support the 

court’s factual determination that involuntary medication was 

“substantially likely to render the defendant competent to stand 

trial.” Sell, 539 U.S. at 181.

A.

In finding the government’s evidence insufficient, the 

majority focuses on our requirement that the government “show 

that a treatment plan works on a defendant’s type of mental 

disease in general, [and] that it is likely to work on this 

defendant in particular.” Bush, 585 F.3d at 816. To show the 

appropriate consideration of the defendant “as an individual,” 

Evans, 404 F.3d at 240, the evidence must establish that the 

experts recommending involuntary medication “actually considered 
52

[the defendant’s] particular mental and physical condition in 

reaching [their] conclusions,” id. In my view, Lucking’s 

report, fairly read, is replete with evidence of his 

consideration of Watson himself and his particular medical 

condition.

According to the majority, the entirety of Lucking’s 

analysis justifying the proposed treatment plan was that 

“(1) antipsychotic medication effectively treats psychotic 

symptoms; (2) Watson has psychotic symptoms; (3) therefore, 

antipsychotic medication will effectively treat his psychotic 

symptoms,” an analysis the majority rejects as “nonspecific,

syllogistic reasoning.” Majority Op. at 19. I disagree.

While Lucking did note in his report that “there is 

extensive support in the psychiatric literature that individuals 

with the diagnosis of a psychotic illness obtain substantial 

reduction in their psychotic symptoms when treated with 

antipsychotic medication,” J.A. 369, that was not the entirety 

of his analysis when recommending medication. Lucking’s report 

discussed delusional disorder in general, but also described how 

the disorder presented itself in Watson and the nature of 

Watson’s delusions. Lucking considered the general efficacy of 

antipsychotic medications on psychotic illnesses generally, but 

he then went on to consider the efficacy of antipsychotic 

medications on Watson’s specific condition by discussing the 
53

limited scientific literature addressing the treatment of 

delusional disorder, acknowledging studies to the contrary, but 

noting that the more recent literature shows a high rate of 

improvement in response to medication. Indeed, as Lucking’s 

report indicates, the Herbel Study shows a high treatment 

response rate by patients with the persecutory subtype (69% 

restored to competency) and high response rates by patients 

whose delusions had persisted for approximately as long as 

Watson’s.8 Lucking therefore supported his proposed treatment 

plan with scientific literature involving similarly situated 

patients suffering from Watson’s specific disorder, as we 

require. See Bush, 585 F.3d at 816 (concluding that Herbel 

Study did not “relate[] to the particular circumstances” of the 

defendant with 13-year history of untreated persecutory type of 

delusional disorder, because Herbel Study showed 25% recovery 

rate for defendants with “duration of untreated psychosis 

greater than 13 years”); White, 620 F.3d at 421 (finding Herbel 

Study to be of “limited assistance” in case involving female 

defendant suffering from grandiose type of delusional disorder 

 8 As noted, Watson had been delusional for five or six years 

prior to the district court’s ruling. Nine patients in the 

Herbel Study had been symptomatic for five years or less, seven 

of whom (77%) were restored to competency. Six patients been 

symptomatic for seven to ten years before treatment, all of whom 

(100%) were restored to competency.
54

because Herbel Study involved male defendants, only one of whom 

had the grandiose form of the disorder).

In addition, Lucking considered whether Watson was taking 

medication that would adversely interact with his proposed 

treatment or had other medical conditions that would place him 

at special risk for developing the more serious side effects or 

preclude the standard treatment for managing any side effects. 

Lucking also considered Watson’s beliefs about himself and his 

illness when concluding that therapy would not be beneficial. 

Cf. Bush, 585 F.3d at 818 (finding proposed treatment plan 

inadequate where it recommended medication that can cause 

diabetes without acknowledging that defendant had diabetes, 

addressing how the medications would affect his diabetes, or 

outlining a plan for controlling his condition).

And after considering all the circumstances, Lucking 

determined, in his expert opinion, that treating Watson with 

risperidone was substantially likely to restore his competence. 

As Lucking explained, it was the delusional beliefs that were 

rendering Watson incompetent, and risperidone

produces beneficial clinical effects such as 

decreasing delusional beliefs. . . . By decreasing 

delusional beliefs this decreases the influence they 

have on decisions, judgements, and perceptions. This 

will allow Mr. Watson to make reasonable, rational, 

reality based decisions regarding the processing of 

his legal charges. By decreasing delusional beliefs 

and restoring more normal thought processes, 
55

risperidone can improve the level of communication 

between the client and his attorney.

J.A. 369. Given the amount of detailed information contained in 

Lucking’s report and testimony, I fail to understand how the 

majority can reject Lucking’s analysis as “nonspecific, 

syllogistic reasoning.”

The majority contends that its rejection of Lucking’s 

evidence is warranted because his report and testimony failed to 

relate[] the proposed treatment plan to Watson’s 

particular medical condition. . . . There is 

virtually nothing in Lucking’s report or testimony . . 

. that is sufficiently specific to Watson that it 

could satisfy the government’s burden of showing that 

Watson is substantially likely to be rendered 

competent by forcible medication, let alone meet the 

rigorous clear and convincing standard.

Majority Op. at 17-18 (emphasis added). While the majority 

finds the government’s evidence insufficiently specific, it

provides no concrete example of how the evidence is inadequate 

or what other information should have been presented. The 

closest the majority comes to actually identifying the perceived 

deficiencies is its suggestion that the evidence failed to 

connect the proposed treatment plan “not only [to Watson’s] 

medical condition but also [to] his age and the nature and 

duration of his delusions.” Majority Op. at 16.

As recounted above, however, the evidence in the record 

does precisely that. The government’s evidence addresses the 

efficacy of involuntary treatment of those with the persecutory 
56

form of delusional disorder, which is Watson’s “medical 

condition.” The government’s evidence, particularly the Herbel 

Study, shows success in treating the persecutory subtype of 

delusional disorder and thus addresses the “nature” of Watson’s 

delusions. The Herbel Study likewise shows success in 

involuntarily treated defendants whose delusions have persisted 

approximately as long as Watson’s, thus addressing the 

“duration” of Watson’s illness.9

While the majority contends that the district court did not 

explicitly address questions raised by Dr. Hilkey about whether 

Watson’s “particular persecutory delusions” would respond to 

medication, Majority Op. at 26, a failure by the district court 

to address a given issue cannot be equated to a failure of 

proof. The evidence presented by the government provided bases 

for the district court to conclude, despite the questions raised 

by Hilkey, that the government’s proposed treatment plan was 

substantially likely to restore Watson’s competency. Given the 

wealth of information showing the government’s consideration of 

 9 As to age, the record shows that the government properly 

recorded and reported Watson’s age in the relevant forms and 

reports. Beyond the possible connection of age to the duration 

of symptoms, however, there is nothing in the record suggesting 

that a patient’s age is relevant to issues in this case. That 

is, nothing in the record suggests, for example, that older 

patients are more prone to suffer from the side effects of 

antipsychotics, or that patients of a particular age are more 

or less responsive to antipsychotic drugs.
57

Watson’s specific diagnosed psychological condition as well as 

his physical condition, the majority’s rejection of the 

government’s evidence simply cannot be squared with our highly 

deferential standard of review.

B.

The majority draws support for its conclusion on Lucking’s 

testimony at the Sell hearing that he would have recommended 

risperidone for Watson whether or not Watson had previously 

taken it. In the majority’s view, this testimony shows that 

Lucking’s recommendation “rested not on any individualized 

assessment of Watson, but on the belief that ‘antipsychotics are 

the treatment of choice for psychotic symptoms’ -- the same 

nonspecific, syllogistic reasoning we have previously rejected.” 

Majority Op. at 24.

Lucking’s risperidone recommendation was based on Lucking’s 

belief that Watson had previously taken it without incident and, 

as discussed above, on an individualized assessment of the 

particular disorder affecting Watson, the other medications 

Watson was taking, and whether Watson had any underlying 

conditions that would cause or complicate the treatment of any 

side effects. Moreover, Lucking reached his recommendation by 

relying on studies involving treatment of patients suffering 

from Watson’s specific disorder. Lucking’s recommendation was 

therefore based on a consideration of Watson’s particular 
58

diagnosis and physical condition. That Lucking also had more 

generalized reasons to chose risperidone10 does not somehow 

negate the individualized aspects of Lucking’s analysis and 

render it insufficient as a matter of law. 

C.

The majority also suggests that the government’s evidence 

is insufficient because the academic literature relied upon by 

Lucking does not “bear[] on Watson’s particular medical 

condition or circumstances,” Majority Op. at 17, and because of 

“weaknesses” the majority perceives in the studies that support 

Lucking’s conclusions, id. at 20. Again, I disagree.

1.

As noted by the majority, not all of the studies cited in 

Lucking’s report specifically address the treatment of 

delusional disorder, and not all of those specifically 

addressing delusional disorder show a positive response to 

treatment by a majority of the patients. Nonetheless, Lucking’s 

report discusses several studies, including the Herbel Study, 

that provide clear support for the use of antipsychotic drugs in 

the treatment of delusional disorder generally and more 

 10 As Lucking’s report and testimony established, secondgeneration antipsychotics are preferred over first-generation 

antipsychotics because of their less-severe side-effect profile, 

and risperidone is the only second-generation medication that 

can practicably be administered involuntarily.
59

specifically in the treatment of the persecutory form of the 

disorder.11

While the studies that discuss the general efficacy of 

antipsychotics in the treatment of psychotic illnesses may not 

bear on Watson’s particular medical condition, I am perplexed by 

the majority’s claim that the other studies do not bear on 

Watson’s condition. The issue in this case is whether Watson, 

who suffers from delusional disorder, should be involuntarily 

treated with antipsychotic medication. Lucking relied on 

literature addressing the treatment of delusional disorder with 

antipsychotic medication, including the Herbel Study, which 

 11 As the majority concedes, the Herbel Study “unequivocally 

support[s] the involuntary use of antipsychotic medication to 

restore the competency of defendants with the Persecutory Type 

of Delusional Disorder.” Majority Op. at 20-21. In addition to 

the Herbel Study, Lucking’s report discusses a 1995 article 

reviewing 209 cases of delusional disorder being treated with 

antipsychotics, which determined that 53% of the patients fully 

recovered, 28% partially recovered, and 20% did not improve. 

While there is no indication of how many of the patients 

suffered from the persecutory form of the disorder, the study 

revealed that “[t]reatment was positive regardless of delusional 

content,” J.A 372 (emphasis added), thus indicating that the 

persecutory form of the disorder is no less responsive to 

medication. And since the record establishes that “even a 

partial response to antipsychotic medication can result in a 

restoration of competency,” J.A. 370, the study’s 81% full-orpartial recovery rate clearly supports Lucking’s opinion that 

delusional disorder can be successfully treated with 

antipsychotics. Lucking’s report also discusses a 2006 study 

involving eleven patients with delusional disorder, ten of whom 

had a complete remission of symptoms after being treated with a 

first-generation antipsychotic.
60

studied the efficacy in the prison context of involuntary 

medication to restore the competency of defendants suffering 

from delusional disorder. The scientific literature thus 

directly addresses Watson’s specific condition and was properly 

relied on by Lucking and the district court. Indeed, if these 

studies do not bear on Watson’s particular medical condition, it 

seems unlikely that any academic literature short of a paper 

devoted entirely to the treatment of the actual defendant in 

question would meet the majority’s unexplained standard for 

“bearing” on an incompetent defendant’s particular medical 

condition.

2.

More troubling than the majority’s claim that the academic 

literature does not bear on Watson’s particular condition, 

however, is the majority’s failure to give any weight to the 

supportive studies when determining the sufficiency of the 

evidence before the district court. The majority concedes that 

the Herbel Study provides unequivocal support for the 

government’s proposed treatment plan, but it dismisses that 

study as “vulnerable to bias in favor of finding a positive 

response to treatment.” Majority Op. at 21 (alteration and 

internal quotation marks omitted). The majority does not 

mention the other supportive studies, presumably because of the 

unidentified “weaknesses” perceived by the majority.
61

The majority’s treatment of these studies, particularly its 

rejection of the Herbel Study, fails to respect the limited role 

of an appellate court applying clear-error review. The question 

in this case is not whether the majority itself is persuaded by 

Dr. Lucking and the studies he relied on, but whether there is 

any plausible view of the record that clearly and convincingly 

establishes the propriety of the proposed treatment plan. See

Anderson, 470 U.S. at 573–74. And when answering that question, 

we are required to view the evidence in the light most favorable 

to the government, the prevailing party. See United States v. 

Antone, 742 F.3d 151, 155 n.1 (4th Cir. 2014) (reviewing 

district court’s order finding defendant subject to indefinite 

civil commitment as a sexually violent predator).

As noted above, Lucking’s report discussed studies that 

concluded that delusional disorder, including the persecutory 

subtype, can be successfully treated with antipsychotic 

medications, and he also discussed studies reaching the opposite 

conclusion. The district court was thus presented with 

conflicting evidence about the efficacy of treating delusional 

disorder with antipsychotic medications, a conflict that the 

court implicitly, but nonetheless undeniably, resolved in the 

government’s favor. And under our standard of review, this 

court is obliged to defer to the district court’s resolution of 

the conflict. See Anderson, 470 U.S. at 574 (explaining that 
62

deference to district court’s factual findings is required “even 

when the district court’s findings do not rest on credibility 

determinations, but are based instead on physical or documentary 

evidence or inferences from other facts”).

Rather than treating the positive studies as evidence 

supporting the proposed treatment plan, however, the majority 

treats the conflict in the evidence as an opportunity for 

factfinding. The majority weighs the conflicting scientific 

literature and declares it “equivocal,” and then rejects the 

equivocal evidence as insufficient to support Lucking’s opinion. 

This approach is inconsistent with our role as a reviewing 

court, “for our function is not to reweigh the evidence 

presented to the district court.” United States v. Charleston 

County, 365 F.3d 341, 349 (4th Cir. 2004); see Ceraso v. Motiva 

Enters., LLC, 326 F.3d 303, 316 (2d Cir. 2003) (“The weight of 

the evidence is not a ground for reversal on appeal, and the 

fact that there may have been evidence to support an inference 

contrary to that drawn by the trial court does not mean that the

findings are clearly erroneous.” (citation omitted)).

Moreover, the majority’s specific criticism of the Herbel 

Study -- that it is vulnerable to bias -- provides no basis for 

removing the Study from the sufficiency-of-the-evidence 

equation. As noted above, the authors of the Herbel Study 

acknowledged that “[s]tandard research methods to reduce bias, 
63

such as random assortment to assigned treatment groups, the use 

of a placebo control group, and blinded outcome measures, were 

not possible” given that the study consisted of a “retrospective 

inpatient chart review.” J.A. 149-50. These criticisms, 

however, could be levelled against all of the studies, positive 

or negative, addressing the treatment of delusional disorder. 

As the record makes clear, delusional disorder is very rare, and 

there are no controlled studies of the use of antipsychotic 

medication to treat delusional disorder, only case studies, 

which yield “lower quality” evidence than do controlled studies.

Notwithstanding the limitations inherent in the limited 

available scientific literature, both Dr. Lucking and Dr. Hilkey 

relied on the available literature when reaching their 

conclusions. There is no evidence in the record raising any 

question about the propriety of that reliance, nor is there any 

other evidence that otherwise would permit us to reject the 

Herbel Study or the other studies supporting Lucking’s position 

and exclude them from consideration when evaluating the 

sufficiency of the evidence.

The majority suggests that the supportive studies would be 

entitled to some evidentiary weight if there had been some 

“explanation or analysis applying their findings to Watson as an 

individual.” Majority Op. at 21. However, all of the 

information necessary to apply to the findings of these studies 
64

to Watson is found in Lucking’s report, which makes it clear 

that the studies involved the use of antipsychotic medications 

to treat those suffering from delusional disorder, including the 

persecutory subtype of the disorder. Lucking’s report does not 

use impenetrable scientific jargon when describing the studies, 

and the district court was thus more than capable of reading 

Lucking’s report and drawing its own conclusions about the 

various studies discussed in the report. See, e.g., United 

States v. Bales, 813 F.2d 1289, 1293 (4th Cir. 1987) (explaining 

that where the district court acts as factfinder, “the judge 

weighs the evidence, determines the credibility of the 

witnesses, and finds the facts . . . [and] may select among 

conflicting inferences to be drawn from the testimony”). While 

it perhaps would have been helpful if Lucking had explicitly 

testified that the studies addressed the very condition 

affecting Watson, his failure to do so cannot be grounds for 

reversal when that information was otherwise presented to the 

district court.

When the scientific evidence is considered along with 

Lucking’s report and testimony and viewed in the light most 

favorable to the government, see Antone, 742 F.3d at 155 n.1, I 

believe that evidence is sufficient to support the district 

court’s order.
65

D.

To the extent the majority’s real complaint is that the 

government’s evidence is not compelling enough to constitute 

clear and convincing evidence as a matter of law, then I again 

disagree. 

Evidence crosses the clear and convincing threshold if it 

is “of such weight that it produces in the mind of the trier of 

fact a firm belief or conviction, without hesitancy, as to the 

truth of the allegations sought to be established, and, as well, 

as evidence that proves the facts at issue to be highly 

probable.” Springer, 715 F.3d at 538 (internal quotation marks 

omitted).

In my view, a factfinder could reasonably find the Herbel 

Study more compelling and its conclusions more persuasive than 

the earlier studies questioning the efficacy of medication for 

delusional disorder. As previously noted, ten of the seventeen 

Herbel-Study patients restored to competency took three months 

or longer to respond to the medication, a period significantly 

longer than the medication trials involved in the earlier, more 

pessimistic studies. See J.A. 150 (“That 10 of the 17 patients 

who responded to treatment required continuous antipsychotic 

treatment for at least three months, and some up to five months, 

was unexpected. This result provides a plausible explanation 

for the presumed refractory nature of delusional disorder 
66

symptoms.”). Moreover, unlike earlier studies of voluntary

treatment for delusional disorder, the Herbel Study demonstrates 

the efficacy of medication when the subjects are not permitted 

to drop out of treatment. Because the Herbel Study assessed the 

success of involuntary treatment administered under 

circumstances largely identical to those at issue in this case 

and provides a reasonable basis for discounting the more 

pessimistic conclusions of other studies, I believe a factfinder 

could reasonably find that the Herbel Study clearly and 

convincingly supports the government’s position. Cf. United 

States v. Gillenwater, 749 F.3d 1094, 1103 (9th Cir.) (O’Connor, 

J.) (finding district court did not clearly err in accepting 

testimony of Dr. Lucking over defense expert who “relied 

exclusively on older studies,” when Lucking “relied on more 

recent studies indicating that the older negative view was 

mistaken”), cert. denied, 135 S. Ct. 222 (2014).

Similarly, there is evidence in the record making it 

reasonable for the factfinder to assign significant weight to 

Lucking’s recommendation. As noted above, Lucking testified 

that he had involuntarily medicated approximately ten 

defendants suffering from delusional disorder, all of whom were 

restored to competency. His personal success in treating the 

same disorder as Watson’s, under the same circumstances that 

Watson would be treated, could reasonably be viewed by the 
67

factfinder as strong evidence that the treatment plan proposed 

by the government was substantially likely to restore Watson’s 

competency.

The majority, however, dismisses the evidence of Lucking’s 

experience because Lucking provided no details about those 

patients and we therefore do not know how many of his patients 

suffered from the persecutory type of disorder or what type of 

medication was used. While more detail would be helpful, I do 

not believe the lack of detail somehow renders Lucking’s 

experience irrelevant, particularly since the Herbel Study shows 

a high response rate for all delusional-disorder patients, 

including those with the persecutory subtype, and finds that the 

presence of delusions of governmental persecution “does not 

appear to be a useful predictor of nonresponse to treatment.” 

J.A. 149. Because the factfinder would be entitled to consider 

Lucking’s testimony in light of the other evidence presented at 

trial, see, e.g., Davis v. Richmond, Fredericksburg & Potomac 

R.R. Co., 803 F.2d 1322, 1327 (4th Cir. 1986), the findings of 

the Herbel Study make the lack of detail in Lucking’s testimony 

less significant than the majority suggests. Under these 

circumstances, I believe it is improper for the majority to 

refuse to consider Lucking’s testimony about his experience 

treating defendants with delusional disorder as part of its 

evaluation of the sufficiency of the evidence.
68

In my view, then, the record thus provides a plausible 

basis for the factfinder to slide extra weight over to the 

government’s side of the scale and conclude that the evidence 

clearly and convincingly establishes the propriety of the 

proposed treatment plan. Although there is evidence supporting 

a contrary conclusion and raising questions about certain 

aspects of the government’s proposed plan, that contrary 

evidence does not raise such substantial questions about the 

government’s evidence as to render it insufficient as a matter 

of law, but instead simply creates questions of fact for 

resolution by the factfinder. See, e.g., United States v. 

Heyer, 740 F.3d 284, 292 (4th Cir. 2014) (“[E]valuating the 

credibility of experts and the value of their opinions is a 

function best committed to the district courts, and one to which 

appellate courts must defer.” (internal quotation marks 

omitted)). I therefore disagree with the majority’s conclusion 

that the government’s evidence was insufficient to carry its 

burden of proof.

V.

I now turn to the merits of Watson’s argument that the 

district court clearly erred by misinterpreting Hilkey’s report 

and the need for supportive therapy in addition to medication.
69

A.

In its order, the district court acknowledged that while 

Hilkey “strongly support[ed] the use of supportive . . . 

psychotherapy alongside pharmacological treatments, Hilkey “did 

not opine in his forensic evaluation that Dr. Lucking’s 

treatment plan will be unsuccessful.” J.A. 340. Citing 

Lucking’s report and testimony, the district court held that the 

proposed treatment plan was substantially likely to render 

Watson competent to stand trial, and the court granted the 

government’s motion to involuntarily medicate Watson without 

requiring the government to provide supportive therapy.

On appeal, Watson argues that the district court erred by 

finding that Hilkey only suggested supportive therapy in 

addition to medication. Watson contends that Hilkey’s report 

made it clear that medication must be combined with supportive 

therapy for the medication to succeed in restoring his 

competency. Watson argues that because the district court 

misunderstood Hilkey’s report, the district court never gave 

proper consideration to the evidence contradicting Lucking’s 

evidence and thus clearly erred.12 See, e.g., Wooden, 693 F.3d 

 12 The majority touches on this issue in the course of 

identifying various deficiencies in the district court’s order. 

According to the majority, the district court “summarily 

disregarded Hilkey’s report in its entirety, solely because 

Hilkey failed to state expressly that the proposed treatment 
70

at 454 (finding clear error where district court ignored

substantial amount of contradictory evidence). In support of 

his argument, Watson points to Hilkey’s statement that “any 

treatment approach be it pharmacological or psychological must 

be offered in a supportive manner designed to mitigate the fears 

of the individual being treated.” J.A. 383 (emphasis added). 

According to Watson, this statement “unequivocal[ly]” shows 

Hilkey’s view that “[a]ny treatment must be offered in a 

supportive manner. Otherwise, forcible medication just 

reinforces fears of persecution.” Brief of Appellant at 24.

In my view, Hilkey’s report is much less conclusive on this 

point than Watson contends. Regarding supportive therapy, 

Hilkey stated that “[s]upportive therapy has been shown to be an 

effective treatment” for delusional disorder, J.A. 382, and that 

“[t]he literature on treatment of persons with delusional 

[disorder] strongly encourages the use of supportive and 

 

plan would not succeed.” Majority Op. at 25. The majority 

contends that the district court thus failed to address Hilkey’s

questions about Lucking’s reading of the scientific literature, 

Hilkey’s view that “the fixed, well established nature” of 

Watson’s delusions made them “resistant to change,” J.A. 383, or 

Hilkey’s belief that supportive therapy was required to maximize 

the likelihood that medication would be effective. As 

previously noted, however, insufficiency of the government’s 

evidence, not inadequacy of the district court’s findings, is 

the basis for the majority’s reversal of the district court’s 

order.
71

cognitive behavioral psychotherapy for the treatment of 

Delusional Disorder,” J.A. 384. Noting that “Watson has the 

capacity to form a degree of therapeutic alliance should someone 

attempt to do so,” Hilkey stated his “strongly held opinion”

that such supportive therapy “could increase the likelihood his 

competency could be sufficiently restored.” Id. (emphasis 

added).

While it is apparent that Hilkey thought supportive therapy 

was very important, the district court correctly observed that 

Hilkey never directly stated that the proposed treatment plan of 

medication without therapy would not work. Indeed, Hilkey’s 

statement that supportive therapy could increase the likelihood 

of success suggests that medication alone has at least some

likelihood of success. And the statement that Watson emphasizes 

-- that “any treatment approach be it pharmacological or 

psychological must be offered in a supportive manner,” J.A. 383 

(emphasis added) -- seems to implicitly acknowledge that there 

are supportive and non-supportive ways to administer either

approach to treatment, medication or therapy. Under this 

reading, Hilkey’s recommendation that medication be administered 

in a supportive manner does not amount to a statement that 

supportive therapy is required. Given the lack of clarity in 

Hilkey’s report, I cannot find clear error in the district 

court’s conclusion that Hilkey did not opine that medication 
72

alone would not be effective to restore Watson’s competency. 

See Anderson, 470 U.S. at 573-74 (factual findings are not 

clearly erroneous “[i]f the district court’s account of the 

evidence is plausible in light of the record viewed in its 

entirety”); id. at 579 (deferring to trial court’s 

interpretation of ambiguous testimony).

Although I do not believe that the district court’s 

interpretation of Hilkey’s report is clearly erroneous, I 

nonetheless agree with Watson that the district court’s findings 

are inadequate to show that it properly considered the entire 

range of evidence relating to supportive therapy. While 

Hilkey’s report is ambiguous as to whether supportive therapy is 

required, the report unambiguously establishes that supportive 

therapy is beneficial as an adjunct to medication in that it 

can, inter alia, encourage compliance with the treatment plan 

and help mitigate the persecutory fears that might otherwise be 

exacerbated by the government forcibly administering the 

medication. Dr. Lucking made the same point in his report, 

noting that “there is evidence” that psychotherapy is 

“beneficial to an individual with psychotic symptoms . . . as an 

adjunctive treatment to the antipsychotic agents to improve such 

things as insight, compliance, or coping skills.” J.A. 375.

The district court thus had before it evidence from both 

the government and the defense establishing that supportive 
73

therapy is a beneficial addition to a medication-based treatment 

plan for patients suffering from delusional disorder, with no 

evidence raising any doubts about that conclusion. The court 

also had before it Dr. Hilkey’s undisputed13 opinion that 

including therapy in the treatment plan would increase the 

likelihood that the plan would succeed in restoring Watson’s 

competency to stand trial. The district court noted Hilkey’s 

strong preference for using therapy along with medication, but 

it did not acknowledge the additional benefits obtained when 

supportive therapy is added to a medication plan or the 

medication-success-enhancing nature of supportive therapy. And 

while the district court noted Lucking’s view that therapy alone

would not help Watson, the court did not explain why it 

determined that therapy should not be required in addition to 

medication.14

 13 Lucking did not affirmatively state that therapy 

increases the likelihood that medication will be successful, but 

nothing in his report or testimony contradicts or raises 

questions about Hilkey’s view.

14 Lucking testified that therapy alone would be ineffective 

because delusions respond to medication, but not therapy, and 

because Watson did not agree that he was mentally ill and would 

not participate in therapy. While using therapy as an adjunct

to medication would seem to eliminate at least a portion of 

these concerns, Lucking did not address whether adjunctive 

therapy would be appropriate in this case.
74

In my view, the evidence of the benefits of adjunctive 

supportive therapy is, at the very least, relevant to the 

factual question of whether the government’s medication-withouttherapy plan was not merely likely, but “substantially likely,” 

Sell, 539 U.S. at 181 (emphasis added), to restore Watson’s 

competency. Given the sensitive nature of “an involuntary 

medication order, which trenches upon the elemental individual 

liberty interest in refusing the invasive administration of 

mind-altering medication,” United States v. Chatmon, 718 F.3d 

369, 376 (4th Cir. 2013), it is important for the district court 

to fully consider treatment options that maximize the likelihood 

the treatment will succeed. And in this case, where there is 

disagreement over the medication-success-rates in the limited 

available scientific literature, but agreement among the expert 

witnesses that adjunctive therapy can increase treatment 

compliance, it seems especially important for the district court 

to give explicit consideration to the value of adjunctive 

therapy. Cf. Herbel Study, J.A. 150 (“The real obstacle to 

positive treatment response in delusional disorder may not be 

the intrinsic biological features of the illness, but may 

instead be the difficulties in convincing these patients to 

adhere to an adequate trial of medication.”).

While I do not suggest that the district court was required 

to order adjunctive supportive therapy, the court was at least 
75

required to acknowledge the evidence establishing its benefits. 

See Chatmon, 718 F.3d at 376 (“Of course, a district court need 

not credit a defendant’s evidence or accept his arguments, but 

its findings should offer some reason why it did not.”); Wooden, 

693 F.3d at 454 (“Although the district court might not have 

been required to accept that the evidence recounted above proved 

Wooden’s ongoing pedophilia, the court was required to at least 

consider the evidence, and account for it, when concluding 

otherwise.”). The district court’s failure to consider relevant 

evidence when determining that the government’s plan was 

substantially likely to succeed means that the court’s factual 

finding cannot be sustained. See United States v. Francis, 686 

F.3d 265, 273 (4th Cir. 2012) (“A court commits clear error when 

it makes findings without properly taking into account 

substantial evidence to the contrary.” (internal quotation marks 

omitted)); Jiminez v. Mary Washington Coll., 57 F.3d 369, 379 

(4th Cir. 1995) (explaining that district court clearly errs 

when it “disregard[s] substantial evidence that would militate a 

conclusion contrary to that reached”).

B.

I turn now to the question of remedy. The majority, 

finding the government’s evidence insufficient, reverses the 

district court’s order without remanding for additional 

proceedings. As I have explained, however, the sufficiency of 
76

the government’s evidence is not properly before this court. 

Instead, the only issue properly before this court is whether 

the district court’s factual findings are sufficient to support 

the court’s substantially-likely-to-succeed conclusion.

When an appeal turns on an error by the district court, the 

proper remedy would normally be to vacate the district court’s 

order and remand for further proceedings, so as to give the 

district court the opportunity to reconsider the issue; only in 

unusual cases would this court render judgment for a party after 

identifying an error by the district court. See PullmanStandard v. Swint, 456 U.S. 273, 291-92 (1982) (noting that when 

a district court fails to make required factual findings, “a 

remand is the proper course unless the record permits only one 

resolution of the factual issue”); aaiPharma Inc. v. Thompson, 

296 F.3d 227, 235 (4th Cir. 2002) (noting, after finding error

by district court, that “[o]rdinarily, the proper course would 

be to vacate the district court’s judgment and to remand,” but 

concluding that “special circumstances allow us to put aside the 

district court’s procedural error and render a decision on the 

merits” (emphasis added)); see generally Chatmon, 718 F.3d at 

376 (“Because the district court erred in its analysis of the 

third Sell factor, we vacate the involuntary medication order 

and remand for further findings.”); Wooden, 693 F.3d at 463 
77

(vacating and remanding for reconsideration after identifying 

numerous deficiencies in district court’s factual findings).

In this case, the record is not so one-sided that it 

renders the district court’s error harmless, nor is there any 

other reason to bypass the usual remand route.15 Accordingly, 

because I believe that the only error in this case is the 

district court’s failure to address the issue of adjunctive 

supportive therapy, I would vacate the district court’s order 

and remand for further proceedings to permit the district court 

reconsider the issue and make the findings necessary to support 

its ultimate conclusion.

VI.

For the reasons set out above, I believe that the 

sufficiency of the government’s evidence is not properly before 

 15 In the majority’s view, “remand is inappropriate because 

the record permits only one resolution of the factual issue: 

that this burden cannot be met.” Majority Op. at 28-29 

(internal quotation marks omitted). For the reasons previously 

discussed, I strongly disagree with the majority’s assessment of 

the record. Even if the evidence were insufficient, however, 

this court in such circumstances has previously remanded rather 

than reversed. See Bush, 585 F.3d at 817-18 (finding 

government’s proof deficient in several respects and 

“remand[ing] this issue for consideration of further evidence, 

if it is deemed appropriate, and findings by the court”); Evans, 

404 F.3d at 242-43 (finding government’s evidence insufficient 

to carry Sell burden and “remand[ing] with instructions for the 

district court to reassess the motion after affording the 

parties the opportunity to supplement the record in a manner 

consistent with this opinion”).
78

this court and that it is improper for the majority to reverse 

the district court on an issue the majority has raised sua 

sponte. The majority’s reversal is particularly inappropriate 

since the government has had no opportunity to brief the issue 

or defend the sufficiency of its evidence before this court. 

Indeed, counsel for the government will surely be surprised by 

the outright reversal in this case, given that the only relief 

sought by the appellant was the vacating and remanding for 

reconsideration of the district court’s order. Nonetheless, 

even if the sufficiency of the evidence were properly before us, 

I believe that the evidence is more than sufficient to survive 

appellate review. And as to the issues actually raised by 

Watson,16 I would vacate the district court’s order and remand 

 16 Watson also challenges the district court’s analysis of 

the first Sell factor, which requires the government to show 

that important interests are at stake that are not mitigated by 

special circumstances. See Sell v. United States, 539 U.S. 166, 

180 (2003). Watson contends that he would likely succeed in 

establishing an insanity defense, which would subject him to 

civil commitment, see 18 U.S.C. § 4243(a), and that the district 

court therefore erred by not treating that defense as a special 

circumstance that mitigated the government’s interest in 

prosecution. As the district court noted, however, an insanity 

defense and the competency-to-stand-trial inquiry focus on 

different questions, and there is nothing in the record 

establishing or even suggesting that the delusions prevented 

Watson from recognizing the wrongfulness of his actions. See

United States v. Mackey, 717 F.3d 569, 574 (8th Cir. 2013)

(“That Mackey was delusional at the time of his arrest does not 

necessarily mean that he could mount a successful insanity 

defense.”). I see no error in the district court’s conclusion 

that the record established only the possibility that Watson 
79

for reconsideration and additional findings by the district 

court on the necessity of adjunctive therapy.

Accordingly, I hereby respectfully dissent from the 

majority’s decision to reverse the district court’s order 

granting the government’s petition to involuntarily medicate 

Watson.

 

would assert and ultimately succeed on an insanity defense, and 

that the mere possibility of establishing the defense did not 

substantially undermine the government’s strong interest in 

prosecuting Watson. Cf. United States v. Evans, 404 F.3d 227, 

239-40 (4th Cir. 2005) (explaining that the “unlikely future

civil confinement” of the defendant does not “make unimportant 

the Government’s interest in prosecuting [the defendant] on the 

serious charges against him”).