United States v. Charles Thomas Sell ( 2002 )


Menu:
  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 01-1862
    ___________
    United States of America,            *
    *
    Appellee,           *
    * Appeal from the United States
    v.                             * District Court for the
    * Eastern District of Missouri.
    Charles Thomas Sell,                 *
    *
    Appellant,          *
    *
    --------------------                 *
    *
    Association of American Physicians   *
    & Surgeons, Inc.                     *
    *
    Amicus on Behalf of Appellant. *
    ___________
    Submitted: October 15, 2001
    Filed: March 7, 2002
    ___________
    Before BOWMAN, HEANEY and BYE, Circuit Judges.
    ___________
    HEANEY, Circuit Judge.
    Appellant Dr. Charles Sell, D.D.S. is charged with health care fraud, attempted
    murder, conspiracy, and solicitation to commit violence. In this appeal, Sell
    challenges the district court’s1 determination that he may be involuntarily medicated
    with antipsychotic drugs for the sole purpose of rendering him competent for trial.
    We affirm.
    I. Background
    On May 16, 1997, Sell was charged in a federal criminal complaint with
    making false representations in connection with payments for health care services in
    violation of 18 U.S.C. § 1035(a)(2). The government alleged that Sell and his wife
    submitted false claims to Medicaid and private insurance companies for dental
    services not provided, including false documentation and bogus x-rays in support of
    these claims. On May 20, 1997, the government filed a motion for psychiatric
    examination of Sell to determine his competence to stand trial.2 On May 20, 1997,
    a magistrate judge ordered that Sell be sent to the U.S. Medical Center for Federal
    Prisoners at Springfield, Missouri (“Springfield”) for an evaluation. On July 15,
    1997, after receiving a psychiatric evaluation from Springfield, the district court held
    that Sell was competent to stand trial. The report, which was accepted without
    objection, stated that Sell was currently competent to stand trial but that there was a
    possibility that he would develop a psychotic episode in the future. On July 30, 1997,
    an indictment was returned against Sell and his wife, charging them with fifty-six
    counts of mail fraud, six counts of medicaid fraud, and one count of money-
    laundering.
    In August 1997, Sell was released on bond. On January 22, 1998, the
    government filed a bond revocation petition alleging that Sell had violated the
    conditions of his release by attempting to intimidate a witness. A warrant was issued
    1
    The Honorable Donald J. Stohr, United States District Court for the Eastern
    District of Missouri.
    2
    Sell has a history of mental illness.
    -2-
    for Sell’s arrest and he was brought before a magistrate judge for an initial
    appearance. Sell's behavior at this appearance was out of control. He screamed,
    shouted, and used racial epithets. Nonetheless, the judge tried to proceed, but when
    she advised Sell of his rights, he leaned towards her and spit directly in her face.
    On January 26, 1998, a bond revocation hearing was held, and shortly
    thereafter, the court ordered that Sell’s bond be revoked and that he be detained. At
    this hearing, the court received evidence that Sell’s mental condition was
    deteriorating. Sell was not sleeping at night because he expected the FBI to barge
    into his house. A psychiatrist reported that Sell soon could become a danger to
    himself and others.
    On April 23, 1998, Sell was charged in a second indictment with conspiring
    and attempting to kill a witness and an FBI agent. The government contends that Sell
    and his wife asked a hit man to plot the murder of a former employee at his dental
    office who planned to testify against him on the fraud charges. The government also
    alleges that Sell plotted to kill the African-American FBI agent who had arrested him.
    The two indictments were joined.
    During the next several months, the trial date was continued on a number of
    occasions at the request of both parties. On February 9, 1999, Sell’s counsel filed a
    motion asking this court to hold a hearing to determine Sell’s competency. The
    government filed a separate motion to have a government psychologist examine Sell.
    Both Sell’s psychologist and the government psychologist diagnosed Sell with
    delusional disorder, persecutory type.3
    3
    Delusional disorder is characterized by the presence of one or more non-
    bizarre delusions that persist for at least one month. Diagnostic and Statistical
    Manual of Mental Disorders IV at 296. The delusions are generally plausible ideas
    that can conceivably occur in real life. 
    Id. The persecutory
    subtype of delusional
    disorder is characterized by a person’s belief that he is being conspired against,
    -3-
    On April 14, 1999, the district court held a hearing on Sell’s competency.
    Upon consideration of the evidence, the court found that Sell was suffering from a
    mental disease or defect rendering him incompetent to assist properly in his defense,
    and thus incompetent to stand trial. The court ordered that Sell be hospitalized at
    Springfield for a reasonable period of time not to exceed four months to determine
    whether there was a substantial probability that Sell would attain the capacity to stand
    trial.
    At Springfield, Sell was under the care of two clinicians, Dr. DeMier, the
    clinical psychiatrist, and Dr. Wolfson, the consulting psychiatrist. Both Dr. DeMier
    and Dr. Wolfson determined that Sell was in need of antipsychotic medication.4 On
    cheated, spied on, followed, poisoned or drugged, maliciously maligned, harassed,
    or obstructed in the pursuit of long term goals. 
    Id. at 298.
          4
    Justice Kennedy described antipsychotic medications in his concurring
    opinion in United States v. Riggins:
    First introduced in the 1950’s, antipsychotic drugs . . . have wide
    acceptance in the psychiatric community as an effective treatment for
    psychotic thought disorders. See American Psychiatric Press Textbook
    of Psychiatry 770-774 (J. Talbott, R. Hales, & S. Yodofsky eds. 1988
    (Textbook of Psychiatry); Brief for American Psychiatric Association as
    Amicus Curiae 6-7. The medications restore normal thought processes
    by clearing hallucinations and delusions. Textbook of Psychiatry at 744.
    United States v. Riggins, 
    504 U.S. 127
    ,141 (1992) (Kennedy, J., concurring). In
    Washington v. Harper, the Supreme Court discussed the side effects associated with
    antipsychotic medications:
    The purpose of the drugs is to alter the chemical balance in a patient’s
    brain, leading to changes, intended to be beneficial, in his or her
    cognitive processes. (Citation omitted). While the therapeutic benefits
    of antipsychotic drugs are well documented, it is also true that the drugs
    can have serious, even fatal, side effects. One such side effect identified
    -4-
    June 9, 1999, an administrative hearing was held before a medical hearing officer.
    Dr. DeMier and Dr. Wolfson testified in favor of using antipsychotic medication in
    the treatment of Sell, and testified that it was the only way he could be restored to
    competency. Sell proffered the affidavit of his psychiatrist, Dr. Cloninger, who
    asserted that he did not think Sell would respond well to medication. Cloninger Aff.
    ¶¶ 8, 17. Sell also called a number of witnesses and testified that he did not want to
    take antipsychotic medication and have his chemistry altered. The medical hearing
    officer concluded that antipsychotic medication was the treatment of choice. This
    by the trial court is acute dystonia, a severe involuntary spasm of the
    upper body, tongue, throat, or eyes. The trial court found that it may be
    treated and reversed within a few minutes through use of the medication
    Cogentin. Other side effects include akathesia (motor restlessness, often
    characterized by an inability to sit still); neuroleptic malignant syndrome
    (a relatively rare condition which can lead to death from cardiac
    dysfunction); and tardive dyskinesia, perhaps the most discussed side
    effect of antipsychotic drugs. See Finding of Fact 9, App. to Pet. for
    Cert. B-7; Brief for American Psychological Association as Amicus
    Curiae 6-9. Tardive dyskinesia is a neurological disorder, irreversible in
    some cases, that is characterized by involuntary, uncontrollable
    movements of various muscles, especially around the face. See 
    Mills, 457 U.S., at 293
    , n. 
    1, 102 S. Ct., at 2445
    , n. 1. The State, respondent,
    and amici sharply disagree about the frequency with which tardive
    dyskinesia occurs, its severity, and the medical profession's ability to
    treat, arrest, or reverse the condition. A fair reading of the evidence,
    however, suggests that the proportion of patients treated with
    antipsychotic drugs who exhibit the symptoms of tardive dyskinesia
    ranges from 10% to 25%. According to the American Psychiatric
    Association, studies of the condition indicate that 60% of tardive
    dyskinesia is mild or minimal in effect, and about 10% may be
    characterized as severe. Brief for American Psychiatric Association et
    al. as Amici Curiae 14-16, and n. 12; see also Brief for American
    Psychological Association as Amicus Curiae 8.
    Washington v. Harper, 
    494 U.S. 210
    , 229-30 (1990).
    -5-
    finding was based on the fact that his delusional thinking could make him dangerous
    and that no other drug could treat his delusional symptoms. Dr. Sell filed an
    administrative appeal that was denied. The Medical Center delayed the
    administration of the medication to give Sell the opportunity to seek review by the
    district court.
    On September 29, 1999, a United States Magistrate Judge conducted a full
    judicial hearing. At that hearing, the Government called two witnesses, Dr. DeMier
    and Dr. Wolfson. They testified that Sell was in need of antipsychotic medication,
    that his condition would continue to deteriorate without it, that his behavior could be
    dangerous, and that antipsychotic medication was likely to restore him to
    competency. On August 9, 2000, the magistrate entered an order finding that Sell
    posed a danger to himself and others. United States v. Sell, No. 4: 98CR177, (E.D.
    Mo. Aug. 9, 2000) (order granting government’s motion to involuntarily medicate
    defendant). Based on this finding, the magistrate authorized the government to
    forcibly medicate Sell with antipsychotic medication.
    In April 2001, the district court reversed the magistrate's finding that Sell posed
    a danger to himself and others, noting that the evidence in the record was insufficient
    to support such a finding. Despite this reversal, the district court affirmed the
    magistrate's order, holding that the Government's interest in restoring Sell to
    competency so that he can stand trial was alone sufficient to warrant forcible
    medication.
    Sell appeals this decision and asks this court to decide whether the district
    court erred in holding that he could be forcibly injected with antipsychotic drugs for
    the sole purpose of restoring his competency to stand trial. Sell also asks us to
    examine whether: (1) the district court applied the correct standard of review; (2)
    whether the district court properly considered his Sixth Amendment right to a fair
    trial, and (3) whether the government has proven by clear and convincing evidence
    -6-
    that the medication is medically appropriate and that the medication has a reasonable
    probability of restoring his competency. The Government argues that the district
    court did not err on these grounds. It further argues that the district court’s finding
    that Sell was not dangerous was erroneous and that Sell’s dangerousness provides an
    alternate grounds for affirmance in this case.
    II. Discussion
    A.    Sell’s Dangerousness to Himself and Others.
    First, we consider the government’s claim that the district court erred in
    overturning the magistrate’s determination that Sell is dangerous. We review the
    district court’s determination of questions of fact under the clearly erroneous
    standard. See United States v. Kissinger, 
    986 F.2d 1244
    , 1246 (8th Cir. 1993). The
    government argues that the district court did not give adequate weight to Sell’s
    potential to be a danger to himself or others. The district court noted, however, that
    Sell’s inappropriate behavior at Springfield amounted at most to an “inappropriate
    familiarity and even infatuation” with a nurse. Upon review, we agree that the
    evidence does not support a finding that Sell posed a danger to himself or others at
    the Medical Center. The district court properly reversed the magistrate’s finding.
    B. Forcible Administration of Antipsychotic Drugs to Restore Competency
    Next, we consider the question of whether the district court erred in holding
    that a pretrial detainee may be forcibly injected with antipsychotic medication for the
    sole purpose of rendering him competent to stand trial. This is an issue of first
    impression for this court. Cf. Papantony v. Hedrick, 
    215 F.3d 863
    , 865 (8th Cir. 2000)
    (holding that in the context of a Bivens action, there is no clearly established right of
    a pre-trial detainee not to be forcibly administered antipsychotic drugs for the sole
    purpose of rendering him competent for trial). In Washington v. Harper, the Supreme
    -7-
    Court recognized that individuals possess “a significant liberty interest in avoiding
    unwanted administration of antipsychotic drugs.” 
    494 U.S. 210
    , 221 (1990); cf.
    United States v. Weston, 
    255 F.3d 873
    , 876 (D.C. Cir. 2001) (citations omitted) (“The
    due process liberty interest in avoiding unwanted antipsychotic medication may be
    ‘significant,’ but it is not absolute.”). In Harper, a convicted prison inmate claimed
    that the State of Washington violated his due process rights by administering
    antipsychotic drugs against his 
    will. 494 U.S. at 217
    . The Court acknowledged that
    Harper had a liberty interest in avoiding unwanted medication but 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. at 211.
    In Riggins v. Nevada, the Court applied its Harper analysis to the issue of
    whether a pre-trial detainee may be forcibly injected with antipsychotic medication
    for the purpose of rendering him competent for trial. 
    504 U.S. 127
    (1992). In
    Riggins, a pre-trial detainee was forcibly administered the antipsychotic drug Mellaril
    after a Nevada district court denied the detainee’s pre-trial motion to terminate the
    medication with a one-page order that gave no indication as to the court's rationale.
    See 
    id. at 130-31.
    A jury convicted Riggins,5 and he appealed, arguing that the forced
    administration of Mellaril denied him the ability to assist in his own defense and
    prejudicially affected his attitude, appearance and demeanor at trial. See 
    id. at 131.
    Riggins further argued that the prejudice was not justified because the state did not
    demonstrate a need to administer the drug, nor did it explore alternative treatments.
    The Supreme Court agreed, and held that Riggins’s Fourteenth Amendment rights had
    been violated because the Nevada court did not acknowledge the detainee's liberty
    interest in freedom from unwanted medication, make any findings on the need for
    forced medication, and make findings on reasonable alternatives to antipsychotic
    5
    At trial, Riggins unsuccessfully presented an insanity defense and was
    convicted of murder and sentenced to death.
    -8-
    medication. See 
    id. at 136-37.
    The Court also noted that forcible administration of
    antipsychotic drugs may have interfered with Riggins’s Sixth Amendment right to a
    fair trial. See 
    id. The Court,
    therefore, reversed and remanded the case.
    The Supreme Court did not have the opportunity to determine when
    involuntary medication could be used on a pre-trial detainee because the Nevada
    court offered the accused almost no protection against involuntary medication. The
    Supreme Court did note, however, that:
    Under Harper, forcing antipsychotic drugs on a convicted prisoner is
    impermissible absent a finding of overriding justification and a
    determination of medical appropriateness. The Fourteenth Amendment
    guarantees at least as much protection to persons the state detains for
    trial. (Citation omitted).
    . . . Nevada certainly would have satisfied due process if the
    prosecution had demonstrated, and the district court had found, that
    treatment with antipsychotic medication was medically appropriate and,
    considering less intrusive alternatives, essential for the sake of Riggins'
    own safety or the safety of others. (Citation omitted). Similarly, the state
    might have been able to justify medically appropriate, involuntary
    treatment with the drug by establishing that it could not obtain an
    adjudication of Riggins’ guilt or innocence by using less intrusive
    means.
    
    Id. at 135.
    Based on this language, we conclude that subject to the limitations outlined
    below, the government may forcibly administer antipsychotic medication for the sole
    purpose of rendering a pre-trial detainee competent to stand trial without violating the
    accused’s due process rights.
    -9-
    C.    The Standard of Review for Forcible Administration of Antipsychotic Drugs.
    We now consider Sell’s claim that the district court employed the wrong
    standard of review to determine whether forced administration of medication is
    appropriate in this case. Sell encourages us to adopt strict scrutiny, but the Supreme
    Court declined to adopt such a standard in Riggins. See 
    Riggins 504 U.S. at 136
    .6
    Based on the Supreme Court’s decision in Riggins and Harper, and the decisions of
    our sister courts,7 we hold that the government must meet the following test in order
    6
    The court stated: “ We have no occasion to finally prescribe such substantive
    standards . . . since the District Court allowed administration of Mellaril to continue
    without making any findings about reasonable alternatives.” 
    Riggins, 504 U.S. at 136
    .
    7
    Other courts have come to contradictory conclusions on what substantive
    standards are necessary to satisfy a pretrial detainee’s due process rights. The Sixth
    Circuit held that courts must apply the strict scrutiny standard when the state wishes
    to forcibly medicate a non-dangerous pre-trial detainee. See United States v.
    Brandon, 
    158 F.3d 947
    , 960 (6th Cir. 1998). The D.C. Circuit interpreted Riggins to
    require “heightened scrutiny” that takes into consideration the severity of
    infringement that antipsychotic drugs impose on an individual's liberty interest, the
    need to find an essential state policy that provides an overriding justification for
    forced medication, and a requirement to consider less intrusive alternatives. See
    United States v. Weston, 
    255 F.3d 873
    , 880 (D.C. Cir. 2001). Similarly, the Southern
    District of California refused to adopt a strict scrutiny standard. Rather, it stated that
    the government must meet the following standard:
    First, the government must demonstrate that “administration of anti-
    psychotic drugs is necessary to accomplish an essential state policy.”
    (Citation omitted). Second, the government must show that “there is a
    sound medical basis for treatment with anti-psychotic medication.”
    (Citation omitted). In making this showing, the government may
    provide “medical testimony regarding [Defendant's] mental illness and
    its symptoms as well as the effects that anti-psychotic medication will
    have, both beneficial and harmful, on [Defendant's] physical and mental
    -10-
    for the government to forcibly medicate an individual. First, the government must
    present an essential state interest that outweighs the individual’s interest in remaining
    free from medication. See 
    Riggins, 540 U.S. at 135
    (noting that the government must
    prove an overriding state interest). Second, the government must prove that there is
    no less intrusive way of fulfilling its essential interest. See 
    id. Third, the
    government
    must prove by clear and convincing evidence that the medication is medically
    appropriate. See 
    id. Medication is
    medically appropriate if: (1) it is likely to render
    the patient competent, see 
    Weston, 255 F.3d at 876
    ; (2) the likelihood and gravity of
    side effects do not overwhelm its benefits, see id.; and (3) it is in the best medical
    interests of the patient. See 
    Harper, 494 U.S. at 227
    (noting that the court should
    consider the petitioner’s medical interest). The district court did not explicitly apply
    this test, so we review the district court in light of the standards we have set forth.
    The first question, therefore, is whether the district court erred by holding that
    the government’s interest in bringing Sell to trial is sufficient to outweigh Sell’s
    interest in refusing medication. This is a mixed question of law and fact, so we
    review the district court’s finding de novo. See Boysiewick v. Schriro, 
    179 F.3d 616
    ,
    619 (8th Cir. 1999). To make this determination, we must weigh the government’s
    health.” Third, and most importantly, the government must establish
    “that there is no significant risk that the medication will alter in any
    material way the defendant's capacity or willingness to react to
    testimony at trial or assist counsel.” (Citation omitted). [T]he
    government must establish these elements by clear and convincing
    evidence.
    United States v. Sanchez-Hurtado, 
    90 F. Supp. 2d 1049
    , 1055 (S.D. Cal. 1999). Like
    our sister courts, we believe that we must apply some sort of heightened standard of
    review, but unlike the Sixth Circuit, we do not adopt the strict scrutiny standard. See
    e.g. 
    Weston, 255 F.3d at 888
    (noting that the Supreme Court denied adopting a strict
    scrutiny test in Riggins but also appeared not to apply a reasonableness test or its
    various analogues: arbitrary and capricious, rational basis or exercise of professional
    judgment).
    -11-
    interest in rendering Sell competent against Sell’s interest in refusing unwanted
    medication.
    The government has an essential interest in bringing a defendant to trial. See
    Illinois v. Allen, 
    397 U.S. 337
    , 347 (1970) (Brennan, J., concurring) (“Constitutional
    power to bring an accused to trial is fundamental to a scheme of ‘ordered liberty’ and
    a prerequisite to social justice and peace.”). Not all charges, however, are sufficient
    to justify forcible medication of a defendant; rather, the charges must be serious. See
    United States v. Brandon, 
    158 F.3d 947
    , 961 (6th Cir. 1998). Here, the sixty-two
    charges of fraud and the single charge of money-laundering are serious, a fact not
    denied by the defendant.8 Despite Sell’s significant liberty interest in refusing
    antipsychotic medication, in view of the seriousness of the charges, we believe that
    the government’s interest in restoring his competency so that he may be brought to
    trial is paramount.9
    The second part of our analysis is whether the district court erred in finding
    that there were no less intrusive means by which the government may achieve its
    essential interest. See 
    Riggins, 540 U.S. at 135
    (noting that the government must
    prove that there is no less intrusive means). The government may not constitutionally
    bring an incompetent defendant to trial, see Pate v. Robinson, 
    383 U.S. 375
    (1966),
    so the only way the government may try Sell is by restoring his competency. Both
    Dr. Wolfson and Dr. DeMier testified that antipsychotic medication is the most
    8
    Although Sell is also charged with conspiring to murder an FBI officer and a
    witness, we base our reasoning solely on the seriousness of the fraud charges. It is
    possible that Sell’s threats after his first indictment were a manifestation of his
    delusional disorder and we decline to make a determination about whether those
    charges suffice to involuntarily medicate him.
    9
    We note that the government’s interest in preserving a scheme of ordered
    liberty can only be achieved if a defendant is competent at trial. If the medication
    does not render Sell competent, his trial cannot proceed. See infra Part II.D.
    -12-
    effective treatment for delusional disorder and that it is the only way Sell could be
    restored to competency. See Transcript of Evidentiary Hr’g, Sept. 29, 1999 at 21, 75-
    78. Even Dr. Cloninger, who submitted an affidavit on behalf of Sell and stated that
    antipsychotic drugs are not a proven treatment, did not suggest any alternative means
    of restoring competency. See generally Cloninger Aff. Based on this evidence, we
    believe that the district court correctly concluded that there were no less intrusive
    means.
    Third, we must determine whether the evidence supports the district court’s
    conclusion that antipsychotic medication is medically appropriate for Sell’s treatment.
    We review the district court’s findings of fact under the clearly erroneous standard.
    See Love v. M.D. Reed, 
    216 F.3d 682
    , 687 (8th Cir. 2000). Whether a proposed
    action is medically appropriate depends on the judgment of medical professionals.
    See 
    Harper, 494 U.S. at 231
    , 233-34. At the hearing before the Magistrate Judge, the
    government presented testimony from Dr. DeMier and Dr. Wolfson. Dr. DeMier,
    Sell’s treating psychologist, testified that antipsychotic medication is the only
    treatment that has been shown to be effective in treating delusional disorder and it is
    the only treatment that could restore Sell to competency. He also stated that he has
    treated two patients suffering from delusional disorder with antipsychotic medication.
    Of the two, one was restored to clinical competency; the other patient improved, but
    did not regain competency.10 Dr. DeMier also stated that antipsychotic medications
    have “potentially significant side effects, but there’s also potentially, very significant
    recovery from symptoms.”
    Dr. Wolfson, the staff psychiatrist who works as a consultant on Sell’s case,
    also recommended that Sell be treated with antipsychotic drugs. Dr. Wolfson has
    10
    The patient who was successfully treated was given Haldol, a typical
    antipsychotic drug. The patient who was not restored to competency received
    Olanzapine, an atypical antipsychotic drug.
    -13-
    treated seven patients with delusional disorder but only four for the purpose of
    restoring competency.11 Dr. Wolfson reported that all seven benefitted clinically from
    antipsychotic medication and of the four who were treated for restoration of
    competency, three regained competency. Dr. Wolfson testified that the medical
    literature indicated that patients with delusional disorder respond less to medication
    than patients with other illnesses, but he stated that he doubts the accuracy of that
    conclusion and noted that the literature shows favorable results in many cases.12 Dr.
    Wolfson admitted that there are both harmful and unpleasant side effects to
    antipsychotic drugs; these include sedation, neuroleptic malignant syndrome, which
    is rare but fatal,13 and tardive dyskinesia and/or dystonic reaction, which causes a
    person to have involuntary movements of various parts of the body. Dr. Wolfson also
    stated, however, that the existence and/or degree of side effects could be controlled
    by changes in the doses and type of medication being used. He testified that the new
    generation of atypical antipsychotic drugs, such as Pimozide, have more benign side
    effects than the older typical antipsychotic drugs, such as Haldol. Dr. Wolfson
    admitted, however, that the atypical drugs can only be administered orally, and
    therefore cannot be used to forcibly drug uncooperative patients.
    11
    He treated one of the patients twice. This patient was restored to competency,
    relapsed, then restored a second time.
    12
    Dr. Wolfson explained that:
    First, the delusions stop expanding. . . . It’s even conceivable that some
    delusional material may regress. . . . [O]ur first goal [is] to diminish the
    impact on . . . actions and . . . judgment of the illness. Second, [is] to
    minimize the expansion of the delusional system. . . . [I]t’s typically
    been my experience [that this is] accomplished with other patients.
    Transcript of Evidentiary Hr’g, Sept. 29, 1999 at 137.
    13
    Dr. Wolfson testified that the incidence of this side-effect is one in ten
    thousand cases.
    -14-
    To combat this testimony, Sell presented the affidavit of Dr. Cloninger. Dr.
    Cloninger stated that “there is no evidence that [antipsychotic medications] are
    beneficial for patients with Delusional Disorder.” Cloninger Aff. at 8. Dr. Cloninger
    admitted that antipsychotic drugs are often beneficial in treating schizophrenia but
    maintained that they do not provide the same benefit in the treatment of delusional
    disorder. Dr. Cloninger attached to his affidavit an excerpt from the American
    Psychiatric Press Textbook of Psychiatry. That text notes that there is a disagreement
    between experts on the effectiveness of treating delusional disorders with
    antipsychotic medication, but it also states that the medication may be useful,
    particularly for accompanying anxiety, agitation, and psychosis. Donald W. Black
    et.al., Schizophrenia, Schizophreniform Disorder, and Delusional (Paranoid)
    Disorders, in Textbook of Psychiatry (John A. Talbott et. al. eds.) 1988.          Dr.
    Cloninger was not able to recommend a less intrusive alternative to restore Sell to
    competency; rather, he suggested that treatment be limited to basic support and
    voluntary symptomatic treatment, and that such treatment also include access to
    exercise and reading material. See Cloninger Aff. ¶¶ 18-19.
    In addition, Sell also presented the court with a report from the Federal Bureau
    of Prisons Institutional Metropolitan Correctional Center (“MCC”) in which Dr.
    Daniel Greenstein, the forensic psychologist at MCC, stated that delusional disorders
    do not typically respond to medication or psychotherapy.
    Based on the totality of this evidence, Sell argues that the district court was
    clearly erroneous in finding that antipsychotic medication was medically appropriate.
    He contends that the district court erred by basing its finding, in part, on testimony
    that atypical antipsychotic medications have more benign side effects, because
    atypical drugs can only be administered orally, thus they cannot be given
    involuntarily. Sell also argues that the government did not prove that the medication
    has a reasonable probability of restoring competency. Finally, Sell argues that the
    court erred in finding medical appropriateness when the government failed to disclose
    -15-
    which medication it would use.14 Sell posits that without knowing which drugs would
    be administered, he was incapable of making anything more than a generalized
    argument. See United States v. Sell, No. 4: 98CR177 at 7 (April 4, 2001) (upholding
    Magistrate’s order allowing the involuntarily medication of Sell and stating that Sell’s
    arguments against medication were generalized).
    We disagree with these assertions. We acknowledge that there is a difference
    of opinion on the efficacy of using antipsychotic drugs to treat delusional disorder,
    but we do not believe that the district court committed clear error in finding that the
    government proved medical appropriateness by clear and convincing evidence. First,
    the government presented evidence that the medication can reasonably be expected
    to minimize Sell’s delusions and render him competent for trial. Dr. DeMier has a
    50% success rate and Dr. Wolfson has a 75 % success rate in restoring competency
    to patients with delusional disorders. Moreover, the medication improved the
    condition of all the patients they treated, whether or not they were restored to
    competency. Dr. Wolfson testified about how the medication works, stating that the
    medication should reduce the impact of the delusion on Sell’s thought process.
    Although we cannot say with 100% certainty whether Sell will regain competency
    with his treatment, the district court did not clearly err in finding a sufficient
    likelihood that antipsychotic medication will restore Sell’s competence.
    Second, the government proved that the side-effects produced by the
    medication could be minimized through careful treatment and changing medications
    and dosages. Although Dr. Wolfson did not name a specific medication, he did name
    the two he would most likely use. Therefore, we reject Sell’s contention that he was
    not given the opportunity to make specific objections to specific drugs. Furthermore,
    14
    Dr. Wolfson stated that he did not want to be pinned down to a single drug
    because he hoped to leave part of the choice up to Sell. He recommended that the
    drugs Quetiapine or Olanzapine be used.
    -16-
    we reject Sell’s argument that the court erred in basing its opinion in part on the
    availability of atypical antipsychotic drugs which can only be administered orally.
    The availability of the atypical medications was not determinative to the district
    court’s findings, and the evidence supports the conclusion that the doctors treating
    Sell will be able to reduce the incidence of unpleasant and harmful side-effects
    produced by typical antipsychotic medication as well.
    Finally, the district court appropriately considered Sell’s medical interest. The
    court noted that Sell’s delusions interfere with his ability to make sound judgments
    about his life and his treatment, and that his disorder currently impairs and misleads
    his interpretation of reality and his reasoning. The government presented evidence
    that antipsychotic medication is commonly used to help reduce delusions and their
    impact on an individual’s life, and the court found that these benefits outweighed the
    risks associated with antipsychotic drugs.
    The district court did not err in applying the wrong standard of review. As
    required, the court found that the government has an essential interest in adjudicating
    the serious charges against Sell. The court found that involuntary medication is the
    only way for the government to achieve its interest in fairly trying Sell and found that
    the medication is medically appropriate for him. The government proved these
    elements by clear and convincing evidence. Therefore, we find no reversible error
    in the standard of review employed by the district court.
    We note, however, that this is a limited holding. We do not believe this
    standard will be met in all circumstances in which the government wishes to restore
    competence. Furthermore, we note that an entirely different case is presented when
    the government wishes to medicate a prisoner in order to render him competent for
    execution. See, e.g., Singleton v. Norris, 
    267 F.3d 859
    (8th Cir. 2001), vacated and
    reh’g en banc granted (Dec. 5, 2001). Therefore, our holding must be read narrowly.
    -17-
    D.    Sell’s Sixth Amendment Rights
    Finally, we consider whether the district court properly considered Sell’s Sixth
    Amendment right to a fair trial when it ordered the forcible medication. The district
    court held that Sell’s Sixth Amendment claim was premature because the effects of
    the medication on his competency to assist counsel and on his demeanor could
    properly be considered after medication. We note that before forcibly medicating an
    accused, there must be evidence that he will be able to participate in a fair trial. See
    
    Brandon, 158 F.3d at 960
    . That burden was met in this case. First, the magistrate
    found that the evidence indicated that Sell would be able to participate meaningfully
    in his trial while he is under the influence of the medication. See United States v.
    Sell, 4:98CR177 at 13 (E.D. Mo. Aug. 9, 2000). Also, the magistrate found that the
    medication would allow him to communicate with his counsel in a rational manner.
    See 
    id. The magistrate
    further noted that Dr. Wolfson intends to use drugs with a low
    side-effect profile, to change drugs and dosages based on the side-effects Sell
    experiences, and above all, to avoid sedation. See 
    id. The district
    court affirmed
    these findings. See generally United States v. Sell, 4:98CR177 at 5-9 (E.D. Mo. Apr.
    4, 2001)
    We find that the medical evidence presented indicated a reasonable probability
    that Sell will fairly be able to participate in his trial. As a result, we believe that the
    effects of the medication on Sell’s competency and demeanor may properly be
    considered once the medication is administered. The district court noted its
    willingness to re-examine Sell’s Sixth Amendment claim after the medication
    regimen has begun. See 
    id. at 15.
    The evidence offered, that the drugs should not
    interfere with Sell’s right to a fair trial, as well as post-medication procedures that
    ensure he will not be tried unfairly, are sufficient to protect Sell. There is no
    reversible error.
    -18-
    III. Conclusion
    Having found no reversible errors, we affirm the district court’s
    determination that Sell may be involuntarily medicated for the purpose of
    rendering him competent to stand trial.
    BYE, Circuit Judge, dissenting.
    Unlike the majority, I would apply the strict scrutiny standard of review for the
    reasons enunciated by the Sixth Circuit in United States v. Brandon, 
    158 F.3d 947
    ,
    956-61 (6th Cir. 1998). But even under the majority's three-part test, the charges
    against Dr. Sell are not sufficiently serious to forcibly inject him with antipsychotic
    drugs on the chance it will make him competent to stand trial. I therefore respectfully
    dissent.
    The first part of the majority's test requires the government to demonstrate an
    essential interest that outweighs his interest in remaining free from medication. Ante
    at 11. The majority perfunctorily concludes the government's interest in prosecuting
    the defendant for sixty-two counts of fraud and one count of money laundering
    qualifies as an essential interest that trumps Dr. Sell's significant liberty interest in
    refusing antipsychotic medication. I strongly disagree.
    While the government possesses an interest in bringing a defendant to trial,
    ante at 12, I do not believe every charge is sufficient to justify forcible medication of
    a defendant. See Riggins v. Nevada, 
    504 U.S. 127
    , 135 (1992) (stating the
    government might be able to medicate a defendant involuntarily if "it could not obtain
    an adjudication of [his] guilt or innocence by using less intrusive means") (emphasis
    added). It is helpful to compare two recent decisions confronting this precise issue.
    In United States v. Weston, 
    255 F.3d 873
    (D.C. Cir. 2001), the Court of Appeals for
    -19-
    the District of Columbia recognized the government's interest in adjudicating those
    who violate the law. In that case, Russell Weston entered the Capitol building and
    shot three police officers, killing two of them. A grand jury indicted Weston on two
    counts of murder, and one count of attempted murder of a federal law officer, in
    addition to three counts of using a firearm in a crime of violence. Weston explained
    that "[t]he government's interest in finding, convicting, and punishing criminals
    reaches its zenith when the crime is the murder of federal police officers in a place
    crowded with bystanders where a branch of government conducts its 
    business." 255 F.3d at 881
    . Weston also noted "[t]he statutory sentences for the crimes Weston is
    accused of committing—life in prison and death—reflect the intensity of the
    government's interest in bringing those suspected of such crimes to trial." 
    Id. (emphasis added).
    Weston typifies the case where the government's interest is paramount because
    the charges include the most serious crimes known to man. Few cases involve crimes
    as serious as those in Weston, however. In Brandon, the Sixth Circuit noted the
    government's reduced interest in trying a defendant accused of lesser 
    crimes. 158 F.3d at 947
    . Ralph Brandon was charged with sending a threatening communication
    through the mail. The Sixth Circuit stated "[w]e find it difficult to imagine . . . that
    the government's interest in prosecuting the charge of sending a threatening letter
    through the mail could be considered a compelling justification to forcibly medicate
    Brandon." 
    Id. at 961;
    cf. Bee v. Greaves, 
    744 F.2d 1387
    , 1395 (10th Cir. 1984)
    (questioning whether the state's interest in trying suspects could ever outweigh a
    criminal defendant's interest in avoiding forcible medication with antipsychotic
    drugs). Brandon also noted the maximum penalty the defendant faced for sending a
    threatening communication—five years 
    imprisonment. 158 F.3d at 961
    .
    Weston and Brandon teach us that the forcible administration of antipsychotic
    medication may be warranted when the government seeks to prosecute incontestably
    serious crimes, but not when it seeks to prosecute crimes less so. Cases involving
    -20-
    crimes of intermediate severity may present vexing questions, but Dr. Sell's case
    poses no such challenge. The crimes with which he has been charged are comparable
    to those in Brandon and thoroughly distinct from those in Weston. Dr. Sell is charged
    with making false representations in connection with the payment of health care
    services, 18 U.S.C. § 1035(a)(2), and money laundering, 18 U.S.C. § 1957(a). The
    maximum penalty for these charges is five and ten years imprisonment, respectively.
    He cannot be put to death nor imprisoned for life if convicted of these crimes, as was
    the case in Weston. He is charged with crimes which are far less serious than the
    violent, heinous and deadly crimes with which Weston was charged. Indeed, they are
    nonviolent and purely economic. There is no identifiable victim for these types of
    crimes; rather, only society's interest is harmed.
    The majority deems the charges serious in part because of the number of counts
    Dr. Sell faces (63). At first blush, the sixty-two counts of fraud and the single count
    of money laundering might appear to make the charges seem more serious, but the
    sheer number is an inaccurate yardstick for measuring the severity of his alleged
    offenses. He will be sentenced under the United States Sentencing Guidelines, which
    direct his sentence to be determined by the total dollar value of the fraud, not the
    number of counts. See U.S. Sentencing Guidelines Manual (U.S.S.G.) ch. 3 pt. D &
    §§ 5G1.2, 2B1.1, 2S1.1 (2001). An overly generous estimation of Dr. Sell's alleged
    illegal activity would place the value of his fraud within the range of $400,000 to
    $1,000,000. Applying this estimate, his base offense level would be 20 and
    (assuming he has no prior criminal history) his sentencing range would be 33-41
    months. See U.S.S.G. § 2B1.1. This sentencing range demonstrates the charges
    against him are not serious enough to justify forcible medication. Ante at 12 ("Not
    all charges, however, are sufficient to justify forcible medication of a defendant;
    rather, the charges must be serious). In any event—setting aside the Guideline
    estimations altogether—Dr. Sell’s potential sentence is far more proportional to the
    maximum five year sentence in Brandon than to the maximum life-in-prison and
    death sentences in Weston.
    -21-
    The majority states Dr. Sell does not deny the severity of the fraud and money
    laundering charges. Ante at 12. This representation is wrenched from its context,
    however. While he does not deny the severity of these charges in the abstract, he
    certainly does not concede they are serious enough to warrant forced medication. In
    fact, Dr. Sell devotes most of his efforts to defending and minimizing the charges of
    conspiring to murder an FBI agent and witness, not to discussing the fraud and money
    laundering charges.
    More telling still, neither the government nor the district court believe the fraud
    and money laundering charges alone support the forcible administration of
    medication. The government all but dismisses these counts when arguing about the
    severity of the charges against him. The government focuses its attention almost
    entirely on the charges related to the conspiracy to murder the FBI agent and witness.
    Neither in its brief, nor during oral argument, has the government claimed the fraud
    and money laundering charges by themselves are serious enough to warrant forced
    medication. Likewise, the district court acknowledged the conspiracy to commit
    murder charges tipped the balance in its conclusion that Dr. Sell's alleged offenses
    were serious enough to warrant the forcible administration of antipsychotic drugs.
    Although the majority properly omits the charges of conspiracy to commit
    murder from its analysis, ante at 12 n.8, the majority inexplicably turns a blind eye
    to the apparent agreement of all parties that the fraud and money laundering charges
    alone are insufficiently serious to warrant forcible medication. This course of action
    is questioned.
    This is not meant to suggest the crimes with which Dr. Sell has been charged
    should not be prosecuted. They will and should be. However, this defendant should
    not be forced to take antipsychotic drugs in order to be prosecuted for them. The
    government’s interest in forcibly medicating an accused murderer may be essential,
    but its interest in forcibly medicating an accused thief is not. In my view, these
    -22-
    charges are not serious enough to warrant the forced medication of the defendant,
    who, we must not forget, is a non-dangerous pre-trial detainee cloaked with the
    presumption of innocence. As a result, the government has failed to satisfy the first
    part of the majority's three-part test.
    ***
    The government is not without recourse upon a finding that the charges against
    Dr. Sell are insufficiently serious to warrant forcible medication. He will not be set
    free. A civil commitment is in order for him until he becomes competent, or
    voluntarily agrees to take medication. See 
    Riggins, 504 U.S. at 145
    (Kennedy, J.,
    concurring) (stating that if the State cannot render the defendant competent without
    involuntary medication, then it must resort to civil commitment). The government
    asserts that its interest in punishing crime will be diminished by the option of civil
    commitment. It is true Dr. Sell’s criminality will not be adjudicated as the civil
    commitment unfurls. However, the government’s interest in forcing him to stand trial
    on charges that may result in such limited punishment does not outweigh his
    substantial rights under the First, Fifth and Sixth Amendments. See 
    Brandon, 158 F.3d at 956-61
    (enumerating an individual's rights in refusing antipsychotic
    medication).
    I respectfully dissent.
    A true copy.
    Attest:
    CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -23-