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United States v. Brown

United States District Court, E.D. Virginia, Norfolk Division

December 23, 2019



          Raymond A. Jackson, United States District Judge.

         Before the Court is the Government's Motion to Involuntarily Medicate Defendant Brown To Restore His Competency to Stand Trial ("Sell Motion"). ECF No. 100. The Court held a hearing and considered the parties' filings on the matter. The Government's Sell Motion is GRANTED with respect to Option 2A of the Individualized Treatment Plan, but DENIED with respect to Option 1 and Option 2B of the Individualized Treatment Plan.


         Eric Brian Brown ("Defendant") is charged with Count 1, Kidnapping Resulting in Death, in violation of 18 U.S.C. § 1201(a)(1) and (2); Count 2, Assault with Intent to Commit Aggravated Sexual Abuse and Sexual Abuse, in violation of 18 U.S.C. § 113(a)(1); Count 3, Assault with Intent to Commit a Felony, in violation of 18 U.S.C. 113(a)(2); Count 4, Assault Resulting in Serious Bodily Injury, in violation of 18 U.S.C. § 113(a)(6); Count 5, Theft of Personal Property, in violation of 18 U.S.C. § 661; and Count 6, Stalking, in violation of 18 U.S.C. § 2261 A(1). ECF No. 104. On December 15, 2017, the Court ordered an examination of Defendant to determine his competency to stand trial pursuant to 18 U.S.C. § 4241(a) and Fed. R. Crim. P. 12.2(c)(1)(A). ECF No. 17. On January 23, 2018, the Court received the forensic report on the Defendant, which informed the Court's determination that Defendant was incompetent to stand trial. ECF Nos. 20, 24. Since that time, Defendant has been committed to the custody of the Attorney General in FMC Burner in an attempt to restore his competency to stand trial. Since his admission into FMC Burner, Defendant has consistently refused all voluntary treatment and the oral administration of antipsychotic medication.

         On June 22, 2018, the Court affirmed the Bureau of Prison's ("BOP") administrative determination to forcibly medicate Defendant pursuant to Washington v. Harper, 494 U.S. 210 (1990). ECF No. 45. Since his Harper hearing, Defendant has been treated under the Harper Factors. His treatment consists of the involuntarily medication of haloperidol, an antipsychotic that is administered via injection and mitigates the symptoms of Defendant's schizophrenia and catatonia enough to place him in partial remission and limit the acute risk he will harm himself or others. See ECF No. 94. This treatment with a single antipsychotic drug is considered a form of monotherapy. However, Defendant still suffers residual symptoms that continue to interfere with his competency to stand trial. Id.

         On July 11, 2019, FMC Butner issued a report on the Defendant's status, indicating its recommendation that Defendant be further involuntarily medicated pursuant to Sell v. United States, 539 U.S. 166 (2003) for the purpose of restoring his competence to stand trial. Id. On August 6, 2019, the Court issued an order directing that FMC Butner prepare a Sell Appendix Report. ECF No. 98.

         On September 4, 2019, FMC Butner issued its Individualized Treatment Plan for Defendant in accordance with the Court's order. ECF No. 117. The Individualized Treatment Plan contains the following conclusions: (1) Defendant suffers from schizophrenia, which is currently in partial remission; (2) Defendant's symptoms of acute danger and grave disability have been treated with haloperidol following his Harper hearing; and (3) Defendant requires additional treatment to attain competency. Id. The Individualized Treatment Plan further proposes that Defendant be placed on a "multi-step medication plan." Id. The first two proposed treatments qualify as Antipsychotic Polypharmacy ("APP"), or treatment of schizophrenia using multiple antipsychotic drugs. ECF No. 117 at 10. Option 1 is an APP treatment of haloperidol by injection and aripiprazole by mouth. Id. Option 2A is an APP treatment of olanzapine and haloperidol by injection. Id. Option 2B is switching Defendant's injection monotherapy from haloperidol to fluphenazine. Id.

         Defendant objects to the Government's Sell Motion and the parties have made numerous filings in support of their positions. ECF Nos. 103, 110, 111, 113-115. On December 10, 2019, the Court held a hearing on the Government's Sell Motion, at which time the Court heard testimony from the Government's expert, Dr. Logan Graddy ("Dr. Graddy"), and the Defendant's expert, Dr. George P. Corvin ("Dr. Corvin"). See ECF No. 118. Most of the dispute between the parties involves Option 2A and the merits of an involuntary APP treatment using a combination of haloperidol and olanzapine. At the conclusion of the December 10, 2019 hearing, the Court ordered supplemental briefings on the Sell Motion from the parties. Id. The matter is now fully briefed (ECF Nos. 120, 121) and the Sell Motion is ripe for determination.


         Through a series of cases, the United States Supreme Court ("Supreme Court") has established a framework to determine whether the "forced administration of antipsychotic drugs to render [a criminal defendant] competent to stand trial unconstitutionally deprives [the defendant] of [their] 'liberty' to reject medical treatment." Sell v. United States, 539 U.S. 166, 177 (2003). In United States v. Harper, 494 U.S. 210 (1990), the Supreme Court "recognized that an individual has a 'significant' constitutionally protected 'liberty interest' in 'avoiding the unwanted administration of antipsychotic drugs.'" Id. at 178 (quoting Harper, 494 U.S. at 221). However, the Supreme Court also found that "the State's interest in administering medication was legitimate and important, and it held that the Due Process Clause permits the State to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate's medical interest." Id. (internal quotations and citations omitted). As the Supreme Court summarized in Sell, its decision in United States v. Riggins, 504 U.S. 127 (1992) recognizes, "that, in principle, forced medication in order to render a defendant competent to stand trial for murder was constitutionally permissible." Id. at 179. Considered together:

These two cases, Harper and Riggins, indicate that the Constitution permits the Government involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests.

Id. The Supreme Court has made clear that the circumstances justifying the intrusion of the liberty of an individual person implicit in the act of forcibility medicating a criminal defendant are "rare." Id.

         In order to justify forcibly medicating a criminal defendant to achieve competency for trial, a district court must make a series of findings with respect to four factors identified by the Supreme Court in Sell ("Sell Factors") as well as consider relevant special circumstances. Further, the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") has provided the following guidance for district courts in applying the Sell Factors:

Because the involuntary administration of antipsychotic drugs for purposes of trial competence implicates both a person's significant liberty interest in avoiding unwanted drugs and the public's interest in prosecuting crimes, a higher standard of proof for entry of such an order is desirable. A higher standard-a standard greater than the preponderance-of-the-evidence standard but not as demanding as the beyond-a-reasonable-doubt standard-minimizes the risk of erroneous decisions in this important context.

United States v. Bush, 585 F.3d 806, 814 (4th Cir. 2009) (internal citation omitted). Therefore, the Court must find that the Sell Factors weigh in favor of the Government by clear and convincing evidence. Id.

         A. Sell Factors

         In order to forcibly medicate a defendant to restore competency to stand trial, the Government must establish the following, by clear and convincing evidence: (1) that an important governmental interest exists, such as bringing a defendant to trial who is charged with a serious crime; (2) that involuntary medication will significantly further the Government's interest; (3) that involuntary medication is necessary to further the Government's interest, as less intrusive means of restoring competency are unlikely to be successful; and (4) that the use of any medicines are medically appropriate in light of the defendant's condition. Sell, 539 U.S. at 179.

         1. Important Governmental Interest

         A court contemplating forcibly medicating a defendant must "find that important governmental interests are at stake. The Government's interest in bringing to trial an individual accused of a serious crime is important. That is so whether the offense is a serious crime against the person or a serious crime against property." Sell, 539 U.S. at 180. The Fourth Circuit has further elaborated on what constitutes a serious crime for the purpose of Sell Factors analysis, holding that "the central consideration when determining whether a particular crime is serious enough to satisfy this factor is the 'maximum penalty authorized by statute.'" United States v. Chatmon, 718 F.3d 369, 374 (4th Cir. 2013) (citing United States v. Evans, 404 F.3d 227, 237 (4th Cir. 2005)). In United States v. White, the Fourth Circuit found that "[w]ithout establishing a hard and fast rule, we have held that a crime is * serious' for involuntary medication purposes where the defendant faced a ten-year maximum sentence for the charges against him." United States v. White, 620 F.3d 401, 410 (4th Cir. 2010). However, the Fourth Circuit also discussed and did not "flatly reject[]" a guidelines sentencing approach as an alternative means to determining whether a crime is serious. White, 620 F.3d at 411 n.7. Even using a guidelines sentencing approach, the Fourth Circuit still cautions that regardless of how much time a defendant actually would spend in prison, if convicted, "[t]here are other aspects to the government's interest that make it important to bring [defendants] to trial for the alleged criminal conduct," including conveying to the public the serious nature of the alleged conduct. Bush, 585 F.3d at 815 (internal citation omitted). However, the Fourth Circuit has tempered this view in more recent cases:

In Bush, we also explained that 'the very fact that the government is prosecuting Bush for this conduct conveys a message about its seriousness and its consequences.' Although this is true, it is not a unique characteristic in this case, nor could it ever be a unique characteristic of any case of this type. It is instead a truism, applicable to any case where the government seeks forcible medication: without a prosecution, there would be no case.

White, 620 F.3d at 413 (internal citation omitted).

         In determining whether a crime is serious, the Supreme Court also direct district courts to consider special circumstances that "may lessen the importance of that interest. The defendant's failure to take drugs voluntarily, for example, may mean lengthy confinement in an institution for the mentally ill-and that would diminish the risks that ordinarily attach to freeing without punishment one who has committed a serious crime." Sell, 539 U.S. at 180. The Sell Court also cites as a special circumstance the amount of time the defendant has already spent in custody and the time ...

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