United States v. Norman Breedlove , 756 F.3d 1036 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3406
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NORMAN W. BREEDLOVE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 10 CR 50078-5 — Fredrick J. Kapala, Judge.
____________________
ARGUED APRIL 10, 2014 — DECIDED JUNE 30, 2014
____________________
Before CUDAHY and EASTERBROOK, Circuit Judges, and
LAWRENCE, District Judge. *
CUDAHY, Circuit Judge. The case before us raises the ques-
tion whether a presentence detainee may be involuntarily
medicated in order to restore competency for sentencing. In
Sell v. United States the Supreme Court determined the
* Of the Southern District of Indiana, sitting by designation.
2 No. 13-3406
framework for involuntarily administering antipsychotic
drugs to a detainee in order to make him competent to stand
trial. 539 U.S. 166 (2003). Because the district court made ad-
equate findings as to each of the four Sell factors prior to ap-
proving the involuntary medication of Appellant Norman
Breedlove, we now affirm.
Breedlove pleaded guilty to various drug trafficking and
firearms offenses. In exchange for his testimony against four
co-conspirators, the government agreed to request a reduced
sentence of ten years. 1 Shortly before his sentencing hearing,
Breedlove filed a “Notice of Ineffective Counsel” in which he
complained of a conspiracy between his counsel, his co-
defendants and the court system. Breedlove was provided
new counsel, who recommended that Breedlove be evaluat-
ed to determine competence since he was exhibiting signs of
paranoid delusion.
Breedlove was first evaluated by Dr. Szyhowski, who di-
agnosed Breedlove as suffering from paranoid schizophre-
nia. Breedlove was then committed to custody at a federal
medical facility in Butner, North Carolina (Butner). Subse-
quently, the Bureau of Prisons requested judicial authoriza-
tion to involuntarily medicate Breedlove with antipsychotic
medications pursuant to Sell. Accordingly, the district court
conducted a Sell hearing to determine whether involuntary
medication was appropriate. During the hearing the gov-
ernment called two expert witnesses, Dr. Maureen Reardon,
a psychologist, and Dr. Sarah Ralston, a psychiatrist who
1 The government calculates that Breedlove’s sentence without the plea
deal would have carried a mandatory minimum of 25 years, with a max-
imum sentence of life imprisonment.
No. 13-3406 3
jointly authored the forensic report which ultimately rec-
ommended involuntary medication. Dr. Reardon, a Board
certified forensic psychologist, testified that Breedlove suf-
fered from psychotic symptoms and would require medica-
tion to restore his competency. She ultimately settled on a
less specific diagnosis than Dr. Szyhowski’s of a psychotic
disorder not otherwise specified. Dr. Reardon testified that
the modified diagnosis was based on uncertainties in her ex-
amination of Breedlove, but noted that the treatment and
symptoms of each diagnosis were the same. Dr. Reardon also
testified that Breedlove exhibited certain positive indicators,
which suggested he would respond positively to the anti-
psychotic medication. In Dr. Reardon’s opinion, the delu-
sions that Breedlove suffered from would remain fixed and
would both prevent him from consenting to medication and
continue to make him incompetent to undergo sentencing.
On cross examination Dr. Reardon acknowledged that as a
forensic psychologist the treatments she provides are aimed
less at individual therapy to improve the patient’s quality of
life and more at restoring competency. However, she also
noted that Breedlove would likely experience several bene-
fits from the treatment, such as reduced stress levels due to
the reduction in his paranoid delusions.
Dr. Ralston testified as to the appropriate treatment for
Breedlove’s condition. In her opinion the involuntary admin-
istration of Haloperidol would be substantially likely to re-
store Breedlove to competency. Dr. Ralston testified that
Haloperidol was not only appropriate to restore an inmate’s
competency, but that she would prescribe it in a clinical set-
ting to a patient with similar symptoms to Breedlove’s. Dr.
Ralston also detailed the potential side effects of this particu-
lar course of treatment, some of which are severe and irre-
4 No. 13-3406
versible in their most serious manifestations. Despite the po-
tential for severe side effects, Dr. Ralston was still comforta-
ble with the treatment plan because they would monitor
Breedlove for symptoms of any side effects and adjust his
treatment plan accordingly. Both doctors testified that Breed-
love would be closely monitored while he remained under
their care at Butner. However, they also acknowledged that
when Breedlove was transferred back to Illinois, they would
not have the capacity to monitor him, nor did they know the
extent to which those facilities would monitor Breedlove.
The testimony from both doctors was based on hours of
face-to-face interview time and observation of Breedlove.
Their testimony was also, at least in part, influenced by a
study that Dr. Reardon authored with two other colleagues
(the Butner study), which examined all federal detainees
treated under Sell between 2003 and 2009 and determined
that 79% of all treatment resulted in restored competency,
and that the success rate rose to 93% for individuals with the
same disorder as Breedlove.
The defense declined to call any witnesses, but merely
submitted the testimony of Dr. Cloninger who suggested
that the 79% success-rate figure in the Butner study was too
high. This testimony was only brought up in the cross exam-
ination of Dr. Ralston, who stated that she disagreed with
Dr. Cloninger’s assessment. Further, Dr. Cloninger’s testimo-
ny was not given in connection to this case, but for a Sell
hearing in the District of Arizona. Dr. Cloninger did not tes-
tify in this Sell hearing.
Shortly after the Sell hearing, Breedlove’s counsel moved
for reevaluation, to which he attached an affidavit of his own
observations of Breedlove’s behavior. The motion had no
No. 13-3406 5
other evidence showing Breedlove had in fact recovered
from his mental disorder. Based on all the evidence present-
ed, the district court granted the request to medicate Breed-
love in order to restore his competency. The district court al-
so denied the motion for reevaluation, explaining that the
counsel’s expertise was in the law, not psychology, and relied
on the determinations of the three doctors instead.
I.
In Sell the Court determined that in order to allow invol-
untary medication of a defendant the government must
prove by clear and convincing evidence that: (1) important
governmental interests are at stake; (2) involuntary medica-
tion will significantly further those state interests; (3) invol-
untary medication is necessary to further those interests, i.e.
no viable alternative exists; and (4) administration of the
drugs is medically appropriate, i.e., in the patient’s best med-
ical interest in light of his medical condition. See Sell, 539
U.S. at 180–82. We apply de novo review to the district
court’s determination on issues of law (the first Sell factor),
and clear error review of its factual findings (Sell factors two
through four). United States v. Lyons, 733 F.3d 777, 782 (7th
Cir. 2013); United States v. Tinnie, 629 F.3d 749, 751 (7th Cir.
2011).
Sell factor one: is there an important government interest?
The first Sell factor is the most contentious. In order to
satisfy the first element the district court needed to find that
“important governmental interests” were at stake. Sell, 539
U.S. 181–82. Here, the government’s interest is sentencing
Breedlove. In Sell, the Supreme Court held that the Govern-
ment has an important interest in bringing an individual ac-
6 No. 13-3406
cused of a serious crime to trial. Id. This requires us to make
two determinations: whether the Government may have an
important interest in restoring Breedlove’s competency so
that he may be sentenced, and more importantly whether
Breedlove’s crime is “serious.” The first Sell factor is a purely
legal issue, and thus our review is de novo.
Initially it is worth noting that Breedlove does not chal-
lenge the application of the Sell analysis to the sentencing
context. Thus, we do not need to pass on the question
whether the government has an interest in restoring compe-
tency in order to sentence an individual. We will point out
however that other courts have determined that Sell applies
to this context. See, e.g., United States v. Baldovinos, 434 F.3d
233, 240-41 (4th Cir. 2006); United States v. Wood, 459
F.Supp.2d 451, 457-59 (E.D. Va. 2006).
Instead, we focus our analysis on whether Breedlove’s
crime was sufficiently serious. Breedlove argues that Sell is
limited to crimes against the person or property, and as such
his crimes—heroin trafficking and possession of a firearm in
furtherance—are not serious enough under Sell to justify
medication. In support, Breedlove cites the Court’s language
in Sell: “The Government's interest in bringing to trial an in-
dividual 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. In both instances the Gov-
ernment seeks to protect through application of the criminal
law the basic human need for security.” Sell, 539 U.S. at 180.
Thus, relying on a singular sentence referring to only crimes
against the person and property, Breedlove argues that drug
trafficking and felony possession of firearms are crimes that
are categorically excluded from the Sell analysis.
No. 13-3406 7
The Fourth, Sixth, Ninth and Tenth Circuits disagree,
each holding that Sell did not categorically exclude non-
violent, non-property crimes. See e.g., United States v. Hernan-
dez-Vasquez, 513 F.3d 908, 917 (9th Cir. 2008); United States v.
Green, 532 F.3d 538, 550 (6th Cir. 2008); United States v. Valen-
zuela-Puentes, 479 F.3d 1220, 1226–27 (10th Cir. 2007); United
States v. Evans, 404 F.3d 227, 237 n.6 (4th Cir. 2005). Instead,
the appropriate consideration is whether any type of crime is
serious enough to give rise to an important government in-
terest in light of the individual facts of the case. See Hernan-
dez-Vasquez, 531 F.3d at 917–18. Breedlove’s rather extreme
categorical exclusion of all crimes but those against people
and property “would ignore the breadth of the Supreme
Court’s concern that the Government be able to bring an ac-
cused to trial, which it described as ‘fundamental to a
scheme of ordered liberty.’” Id. at 918 (quoting Sell, 539 U.S.
at 180). Therefore, we will follow the non-categorical ap-
proach of our fellow circuits, as we too are convinced that
the Sell majority did not intend to exclude all non-violent,
non-property crimes.
To determine the seriousness of a crime the government,
and a majority of the circuits, analogize the Supreme Court’s
approach in the Sixth Amendment context, which looks to
the maximum statutory penalty. See Evans, 404 F.3d at 237.
Breedlove’s crimes carry a maximum statutory penalty of life
imprisonment—this severe punishment obviously suggests
that his crimes were serious. There is logic in this approach,
as the maximum statutory penalty reflects at least some
measure of legislative judgment regarding the seriousness of
a crime. See, e.g., Green, 532 F.3d at 547–48. Breedlove wants
us to take into account that his plea agreement would only
result in a ten year sentence. However, when we are analyz-
8 No. 13-3406
ing the objective seriousness of a crime for the purposes of
Sell, we are not as concerned with the various factors that
shape a reduced sentence, which are after the fact, subjective
considerations. Cf. Green, 532 F.3d at 548 (indicating a con-
cern that subjective determinations of seriousness lead to
disparity among the circuits). Thus, looking at the fact that
Breedlove’s crimes carry a life penalty, we conclude that his
crimes were serious within the meaning of Sell.
Finally, regardless of the maximum statutory penalty, it is
no stretch to determine that heroin trafficking and felony
possession of a firearm are serious crimes. And that while
there may be few if any identifiable victims of these crimes,
the indirect victims (i.e. those affected by drug violence) are
widespread. See, e.g., Green, 532 F.3d at 549. We can thus con-
clude that Breedlove’s crimes were sufficiently serious, and
affirm the district court’s ruling as to the first Sell factor.
Sell factor two: does involuntary medication further the govern-
ment’s interest?
To satisfy this factor the district court must find that there
is clear and convincing evidence that the proposed treatment
will be substantially likely to render the defendant compe-
tent and that the side effects will not interfere substantially
with the defendant’s ability to participate in the proceedings.
Sell, 559 U.S. at 181. The district court, relying on the testi-
mony of Drs. Reardon and Ralston, found that administering
the antipsychotic medication would restore Breedlove’s
competency. In the opinion of the experts, Breedlove dis-
played positive indicators that suggested he would respond
positively to the treatment and that any potential side effects
of the treatment would be monitored and addressed so that
they would not interfere with restoring Breedlove’s compe-
No. 13-3406 9
tency. The doctors’ testimony was based on personal obser-
vation of Breedlove as well as the Butner study, which found
that there is a 79% likelihood of success in restoring the
competence of federal patients subject to involuntary medi-
cation, and a 93% likelihood of success for individuals with
the same diagnosis as Breedlove.
Breedlove’s primary challenge to this factor is an alleged
defect with this study, on which the doctors partially relied
in making their conclusions. Breedlove claims that the study
is faulty because it had no control group. This challenge fails
for two reasons. First, the doctors relied on their personal
observation of Breedlove and experience with Haloperidol in
addition to the challenged study. Both doctors spent hours
observing and interviewing Breedlove, and Dr. Ralston testi-
fied that she has prescribed Haloperidol to over 100 patients.
Without the study, there was sufficient evidence to satisfy
this factor in the absence of contradictory testimony. Moreo-
ver, Dr. Reardon testified that the study could not have been
performed ethically if it had a control group, and that de-
spite the absence of a control group the study still has value.
Second, Breedlove had scant evidence to support his
challenge. Breedlove submitted only one piece of evidence,
the testimony of an expert, Dr. Cloninger, from a completely
separate Sell hearing. This testimony suggested that Drs.
Reardon and Ralston’s 79% success-rate figure was too high.
However, not only did Dr. Cloninger not actually testify at
Breedlove’s hearing, but his testimony was only brought up
once on the cross-examination of Dr. Ralston, who stated
that she disagreed with Dr. Cloninger’s assessment. Dr.
Reardon was not asked about Dr. Cloninger’s testimony. As a
result, the district court gave more weight regarding the con-
10 No. 13-3406
tested study to the opinions of the two experts who were ac-
tually present and testified at the Sell hearing. In any event,
the doctors’ conclusions regarding Breedlove’s treatment
were based on multiple factors in addition to the contested
study—the district court did not clearly err in finding this
second factor satisfied.
Sell factor three: are there viable alternatives?
For the third Sell factor, the district court must have
found that involuntarily medicating Breedlove is necessary
to further the Government’s interest. 539 U.S. at 181. In other
words, the court must have found that no other alternative,
less intrusive treatments were likely to obtain the same re-
sults that involuntary medication would. Id. In fact, a district
court’s failure to find that less intrusive treatments would
not achieve the same results as forcible medication is
grounds for reversal. United States v. Debenedetto, 744 F.3d
465, 472–73 (7th Cir. 2013). However, here the district court
made a clear finding based on substantial evidence in the
record that involuntary medication was necessary and that
no viable alternative existed to restore Breedlove’s compe-
tency.
The record clearly reflected the opinions of Drs. Reardon
and Ralston that therapy or other non-medication based
treatments would be substantially unlikely to restore Breed-
love’s competency, because his present mental condition
prevents him from participating in those treatments. Moreo-
ver, the district court found that the treatment method
would follow the least intrusive course possible, only using
forced injections if Breedlove refused to take the medication
orally. Nothing in the record contradicts this opinion. In-
stead, in mounting his challenge to this factor Breedlove
No. 13-3406 11
again points to the testimony of Dr. Cloninger in which he
opines that the Butner study overestimated the likelihood
that this involuntary administration of antipsychotics will
restore competency. Thus, Breedlove appears to argue that
the government cannot sufficiently prove that Breedlove will
not regain competency on his own, rendering non-treatment
a viable, less intrusive alternative.
This argument fails for two reasons. First, according to
the district court, the government’s experts convincingly tes-
tified to the opposite, that Breedlove will actually experience
cognitive decline if his condition is not treated—this was
based on personal observation in addition to the Butner
study. And second, the court did not credit Breedlove’s asser-
tion, through his counsel, that his condition was improving.
It appears, then, that there was clear and convincing evi-
dence that administration of Haloperidol was necessary to
restore Breedlove’s competence and that his competence was
unlikely to be restored with alternative treatments, much
less no treatment. Given the weight of the evidence from the
experts who testified in this hearing and personally ob-
served Breedlove, the district court was justified in affording
their testimony greater weight than that of Dr. Cloninger
and Breedlove’s counsel. We find that the balance of evi-
dence does not suggest the district court clearly erred in
finding this factor satisfied.
Sell factor four: is the treatment medically appropriate?
The fourth and final factor in the Sell analysis is that
“administration of the drugs is medically appropriate, i.e., in
the patient’s best medical interest in light of his medical con-
dition.” Debenedetto, 744 F. 3d at 473 (quoting Sell, 539 U.S. at
181). This requires that the district court’s finding recognize
12 No. 13-3406
the defendant’s diagnosis and personal medical history. Id. at
473.
The crux of Breedlove’s challenge to this factor is that the
forcible medication is only for the purpose of restoring com-
petency, and that this is not medically appropriate because it
does not consider Breedlove’s individual interests. However,
this argument directly contradicts Sell, which explicitly au-
thorized involuntary medication for the limited purpose of
restoring competency. See Sell, 539 U.S. at 181. To the extent
that Breedlove challenges the treatment because of the risk
of side-effects, this risk was apparently not significant
enough to prevent Drs. Ralston and Reardon from recom-
mending this treatment. In fact, Dr. Ralston testified that she
would prescribe this treatment to any member of the com-
munity if appropriate, and not just in the Sell context. She
also testified that Breedlove would likely experience person-
al benefits, noting that the treatment would “reduce the
stress and anxiety caused by his mental illness and improve
his overall health.” Further, the doctors testified that Breed-
love would be closely monitored while they treated him,
mitigating some of the risk of side-effects from the treat-
ment. The doctors’ testimony was not contradicted, and the
district court’s findings were not clearly erroneous.
II.
Breedlove also claims on appeal that the district court did
not satisfy its duty to make appropriate findings under Sell
because it did not provide a sufficiently individualized
treatment plan for Breedlove’s involuntary medication. To
satisfy its duty, the district court must indicate the medica-
tion or range of medications to be administered, the dose
range and the length of treatment. See, e.g., United States v.
No. 13-3406 13
Hernandez Vasquez, 513 F.3d 908 (9th Cir. 2008); Evans, 404
F.3d at 241–42. There is no doubt that the district court’s or-
der specified the medication (Haloperidol) and the length of
treatment (up to four months). The district court, however,
did not include a maximum dosage in its order, which
Breedlove contends is a reversible error. We disagree.
The courts that have rejected involuntary treatment plans
as insufficiently individualized seemingly did so to prevent
the prison medical staff from having “carte blanche to exper-
iment with … dangerous drugs or dangerously high dosages
of otherwise safe drugs.” Evans, 404 F.3d at 241; see also Unit-
ed States v. Chavez, 734 F.3d 1247 (10th Cir. 2013); Hernandez-
Vasquez, 513 F.3d at 917. At the Sell hearing the government
detailed a specific treatment plan, including dosage
amounts, and a detailed plan to address any side effects. The
district court discussed this treatment plan at length and left
very little doubt that Breedlove would be medicated accord-
ing to this plan. It did not reiterate every detail in the pro-
posed treatment plan, including dosage levels, but those
were clearly defined in the treatment plan. Given the detail
of the treatment plan, we find that the district court’s analy-
sis here is sufficient to ensure that the prison medical staff
does not have unfettered authority to experiment with vary-
ing dosage levels or different medications. The cases Breed-
love cites to support his argument that maximum dosage is
an absolute requirement involve drastically different factual
situations—those cases invariably involve unrestricted dis-
cretion to the medical staff or vague treatment plans based
on little or no evidence of the defendant’s individual condi-
tion. See, e.g., Hernandez-Vasquez, 513 F.3d at 917; Chavez, 734
F.3d at 1253. Due to the government’s detailed treatment
plan, the concerns the Ninth and Tenth Circuits dealt with in
14 No. 13-3406
those cases are not implicated. We are therefore content that
the district court’s instructions and reference to the govern-
ment’s detailed treatment plan satisfied its burden under
Sell, even if a maximum dosage was not explicitly included
in the district court’s order.
III.
The final issue on appeal is whether the district court
abused its discretion in denying Breedlove’s request to have
his competency reexamined. Breedlove’s request was sup-
ported only by an affidavit from his counsel indicating that,
in his counsel’s opinion, he was showing signs of improve-
ment in his understanding of the proceedings. This request
was submitted a mere three weeks after the Sell hearing. We
agree with the district court that Breedlove’s counsel did not
have the expertise to make such a judgment, and his opinion
should not be afforded the same weight as the opinions of
the three mental health professionals who determined
Breedlove was not competent. Given the short proximity in
time between this request and the Sell hearing as well as the
opinions of the evaluating professionals, we find nothing to
suggest that denying reexamination was an abuse of discre-
tion.
AFFIRMED.