United States v. Charles Gillenwater, II , 749 F.3d 1094 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30379
Plaintiff-Appellee,
D.C. No.
v. 2:11-cr-00121-
RMP-1
CHARLES LEE GILLENWATER, II,
AKA Charles Lee Gillenwater,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, Chief District Judge, Presiding
UNITED STATES OF AMERICA, No. 13-30284
Plaintiff-Appellee,
D.C. No.
v. 2:11-cr-00121-
LRS-1
CHARLES LEE GILLENWATER, II,
AKA Charles Lee Gillenwater,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
2 UNITED STATES V. GILLENWATER
Argued and Submitted
December 4, 2013—Seattle, Washington
Filed April 11, 2014
Before: Sandra Day O’Connor, Associate Justice (Ret.),*
and Richard C. Tallman and Carlos T. Bea, Circuit Judges.
Opinion by Justice O’Connor
SUMMARY**
Criminal Law
The panel affirmed the district court’s September 24,
2013, involuntary medication order (13-30284) and dismissed
as moot the defendant’s appeal of the district court’s
November 19, 2012, involuntary medication order (12-
30379), in a case in which the district court authorized the
government to medicate a defendant involuntarily to render
him competent to face charges of two counts of transmitting
threatening interstate communications and one count of
transmitting threatening communications by United States
mail.
*
The Honorable Sandra Day O’Connor, Associate Justice (Ret.) for the
Supreme Court of the United States, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. GILLENWATER 3
While recognizing the important interests at stake for both
the government and the defendant, and after entertaining the
defendant’s contentions that the government did not meet its
burden on the factors set forth in Sell v. United States, 539
U.S. 166 (2003), the panel concluded that the district court
did not err in authorizing the defendant’s involuntary
medication.
COUNSEL
Frank L. Cikutovich (argued), Stiley & Cikutovich, PLLC,
Spokane, Washington, for Defendant-Appellant.
Michael C. Ormsby, United States Attorney, and Timothy J.
Ohms (argued), Assistant United States Attorney, Spokane,
Washington, for Plaintiff-Appellee.
OPINION
O’CONNOR, Associate Justice (Ret.):
Defendant Charles Lee Gillenwater, II, was charged
with two counts of transmitting threatening interstate
communications and one count of transmitting threatening
communications by United States mail. After determining
that Gillenwater was not competent to stand trial, the district
court authorized the government to medicate Gillenwater
involuntarily to render him competent to face the charges
against him. While recognizing the important interests at
stake for both the government and Gillenwater, we conclude
that the district court did not err in authorizing Gillenwater’s
involuntary medication.
4 UNITED STATES V. GILLENWATER
I
Gillenwater once worked on the renovation of the
Flamingo Hotel in Las Vegas, Nevada. Gillenwater believes
that he and thousands of others were exposed to asbestos
during that renovation. He also believes that the government
allowed the exposure to occur and helped the hotel cover it
up. And Gillenwater believes that government and hotel
officials came after him when he tried to reveal the exposure
and cover up.
In November 2011, Gillenwater was charged with two
counts of transmitting threatening interstate communications,
in violation of 18 U.S.C. § 875(c), and one count of
transmitting threatening communications by United States
mail, in violation of 18 U.S.C. § 876(c).
In the proceedings that followed, the government claimed
that Gillenwater made graphic and disturbing threats against
a number of government officials and employees and showed
a possible intent and ability to carry them out. According to
the government, Gillenwater came to the attention of federal
authorities in July 2010, when an Occupational Safety and
Health Administration (OSHA) employee reported receiving
a threatening email from Gillenwater. Among other things,
the email stated: “Violence is my primary means of
communication and it usually takes the form of me choking
somebody while screaming ‘CAN YOU HEAR ME
NOW[?]’” ER 217–18.
Federal agents went to Gillenwater’s house to speak with
him about the email. He met them with a gun in hand. But
Gillenwater ultimately put the gun away and spoke with the
agents. The agents warned him to refrain from sending
UNITED STATES V. GILLENWATER 5
threatening emails as it was illegal and could result in his
arrest and prosecution. According to the government,
Gillenwater acknowledged his understanding.
The government claimed that Gillenwater was back at it
two days later. He allegedly sent an email to Department of
Labor (DOL) employees, which, among other things, advised
them to “[l]ive in fear” and asked them “[d]o you really want
to be between me and my enemy?” Id. at 218. From there,
the situation continued to escalate. According to the
government, the volume and content of Gillenwater’s emails
eventually prompted DOL to block his email address. And
Gillenwater allegedly did not limit himself to sending
threatening emails to OSHA and DOL employees. The
government claimed that he also sent threatening emails to
Senators and federal agents. The emails said things like:
• “What is justice here? Should I slice his
wife and children open? What are your
thoughts on this matter?” Id. at 222.
• “You and all your little friends, I’ll pick you
off one at a time.” Id. at 223.
• “They may think they’re free, but their
heads are in a noose and the trap is about to
be tripped. My friends are more powerful
than yours.” Id.• “I’ve made the decision to kill[.] I’ll be
starting at the top[.] Have a nice day[.]” Id.• “I plan to kill her.” Id. at 221.
6 UNITED STATES V. GILLENWATER
Gillenwater admitted to sending at least some of the
threatening emails, including one that threatened the life of an
OSHA employee. But Gillenwater explained that he sent the
emails to bring attention to the government’s misconduct in
the Flamingo Hotel asbestos exposure and cover up.
Federal authorities arrested Gillenwater. They found him
with a gun and spare ammunition. According to the
government, the subsequent federal investigation revealed
that Gillenwater had military training in the use of guns and
that not all of his guns were accounted for at the time of his
arrest. While in custody, Gillenwater allegedly sent a
threatening postcard to an OSHA employee.
The district court ultimately ordered a competency
evaluation. Dr. Cynthia A. Low performed the evaluation
and diagnosed Gillenwater with delusional disorder,
persecutory type. As described by Dr. Low, delusional
disorder is characterized by “the presence of one or more
nonbizzare delusions that persist for at least a month.” Id. at
33. And patients that suffer from the persecutory type believe
that they are “being conspired against, cheated, spied on,
followed, harassed, or obstructed in the pursuit of long-term
goals.” Id. at 34. Dr. Low concluded that the disorder could
substantially impair Gillenwater’s ability to assist his attorney
with his defense.
The district court found that Gillenwater was not
competent to stand trial and remanded him to federal custody
to determine whether he could attain competency. Dr. Robert
G. Lucking and Dr. Angela Walden Weaver performed a
second competency evaluation of Gillenwater. They reached
the same delusional disorder diagnosis as Dr. Low and
concluded that Gillenwater was not competent to stand trial.
UNITED STATES V. GILLENWATER 7
Dr. Lucking and Dr. Weaver also concluded that Gillenwater
could attain competency with medication, namely the
antipsychotic drug haloperidol decanoate. Gillenwater
refused medication.
The government moved to order involuntary medication
pursuant to Sell v. United States, 539 U.S. 166 (2003). The
district court held three evidentiary hearings on the
government’s motion. Consistent with his competency
evaluation, Dr. Lucking testified that involuntary medication
with haloperidol decanoate was substantially likely to render
Gillenwater competent to stand trial. He also testified that
involuntary medication with haloperidol decanoate was
medically appropriate and unlikely to produce severe side
effects. He rejected other treatment options, including
voluntary psychotherapy.
Gillenwater then called Dr. C. Robert Cloninger to testify.
Dr. Cloninger had not met with or examined Gillenwater.
But he had reviewed the competency evaluations performed
by Drs. Low, Lucking, and Weaver and related court filings.
Based on those materials, Dr. Cloninger concluded that
Gillenwater did in fact suffer from delusional disorder, as
well as from a personality disorder with depressive and
narcissistic features. But Dr. Cloninger disagreed with Dr.
Lucking’s involuntary medication recommendation. He
testified that, in his view, involuntary medication is not
effective in treating delusional disorder and may even worsen
the condition. Dr. Cloninger also testified that the off-label
use of haloperidol decanoate is inappropriate if the
medication is administered involuntarily and that haloperidol
decanoate may produce severe side effects. He instead
recommended treating Gillenwater with voluntary
psychotherapy.
8 UNITED STATES V. GILLENWATER
On November 19, 2012, Chief Judge Peterson issued a
lengthy order authorizing involuntary medication with
haloperidol decanoate.
Gillenwater appealed both the November 19, 2012
involuntary medication order and the underlying competency
determination. While his appeal of the November 19, 2012
involuntary medication order was pending, this court vacated
the underlying competency determination, holding that
Gillenwater was denied a sufficient opportunity to testify at
his competency hearing. United States v. Gillenwater,
717 F.3d 1070, 1085 (9th Cir. 2013). We remanded to the
district court for a new competency hearing.
On remand, the case was reassigned to Judge Suko. The
parties agreed that a new competency evaluation was not
necessary and that the district court could consider the
evidence offered in the initial competency proceedings. The
district court held an additional evidentiary hearing at which
Gillenwater testified at length. On September 24, 2013, the
district court issued an order determining that Gillenwater
was not competent to stand trial and authorizing involuntary
medication with haloperidol decanoate. In doing so, the
district court incorporated the November 19, 2012
involuntary medication order.
Gillenwater appealed the September 24, 2013 involuntary
medication order. We consolidated that appeal with his
already pending appeal of the November 19, 2012
involuntary medication order. We have jurisdiction under the
collateral order exception to 28 U.S.C. § 1291. Sell, 539 U.S.
at 176–77.
UNITED STATES V. GILLENWATER 9
II
A defendant “has a ‘significant’ constitutionally protected
‘liberty interest’ in ‘avoiding the unwanted administration of
antipsychotic drugs.’” Id. at 178 (quoting Washington v.
Harper, 494 U.S. 210, 221 (1990)). For as the Supreme
Court has explained, “[t]he forcible injection of medication
into a nonconsenting person’s body represents a substantial
interference with that person’s liberty.” Harper, 494 U.S. at
229. Accordingly, the government may “medicate a
defendant involuntarily for the purpose of rendering him
competent to stand trial only in rare circumstances.” United
States v. Ruiz-Gaxiola, 623 F.3d 684, 687 (9th Cir. 2010).
When the government seeks to medicate a defendant
involuntarily for competency purposes, it must establish by
clear and convincing evidence the four Sell factors. See id. at
692.1 Those factors are: (1) “that important governmental
interests are at stake”; (2) “that involuntary medication will
significantly further” those interests; (3) “that involuntary
medication is necessary to further those interests”; and
1
In Harper, the Supreme Court held that the government may “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.” 494 U.S. at 227. We have
since explained that “the district court, in an ordinary case, should refrain
from proceeding with the Sell inquiry before examining” whether a
defendant may be medicated involuntarily under Harper. United States
v. Hernandez-Vasquez, 513 F.3d 908, 914 (9th Cir. 2008). As the district
court noted in authorizing involuntary medication under Sell, Dr. Lucking
concluded that Gillenwater did not meet the Harper criteria, and the
government therefore moved for a Sell order. Under those circumstances,
“we cannot fault the district court for honoring the parties’ agreement to
proceed directly to the Sell inquiry.” Id. at 915.
10 UNITED STATES V. GILLENWATER
(4) “that administration of the drugs is medically
appropriate.” Sell, 539 U.S. at 180–81.
Gillenwater contends that the government did not meet its
burden on all four Sell factors and that the district court’s
order authorizing his involuntary medication must therefore
be reversed.2 We review a district court’s determinations
with respect to the first Sell factor de novo. See United States
v. Hernandez-Vasquez, 513 F.3d 908, 915–16 (9th Cir. 2008).
And we review a district court’s determinations with respect
to the remaining three Sell factors for clear error. See id.A
We start with the first Sell factor—the important
governmental interests factor. Needless to say, the
government has an important interest “in bringing to trial an
individual accused of a serious crime.” Sell, 539 U.S. at 180.
To determine whether a crime is “serious” enough to satisfy
the first Sell factor, we first consider the likely Sentencing
Guidelines range applicable to the defendant and then
consider other relevant factors. Hernandez-Vasquez,
513 F.3d at 919.
The government calculates Gillenwater’s likely
Guidelines range as 33 to 41 months. That is lower than in,
for example, Hernandez-Vasquez, where we noted that the
government’s interest in prosecuting a defendant charged
2
The September 24, 2013 order, which incorporates the November 19,
2012 order, is the involuntary medication order currently in effect. We
therefore consider Gillenwater’s arguments as applied to the September
24, 2013 order. Because the November 19, 2012 order is no longer
operative, we dismiss as moot Gillenwater’s appeal of it.
UNITED STATES V. GILLENWATER 11
with illegally reentering the United States after removal could
satisfy the first Sell factor. See id. at 911–12, 919
(identifying likely Guidelines range of 92 to 115 months).
But the offense conduct alleged in this case is nonetheless
serious enough to establish an important governmental
interest in Gillenwater’s prosecution. Gillenwater is accused
of making lurid and distressing threats against a bevy of
government officials and employees. He allegedly threatened
to, among other things, choke, rape, and kill people who serve
our country. The threats allegedly continued for over a year,
escalating in volume and violence. And the district court
found that Gillenwater “evidenced a possible intent and
ability to carry out th[e] threats.” ER 314. In prosecuting
him, the government is seeking “to protect through
application of the criminal law the basic human need for
security.” Sell, 539 U.S. at 180. Indeed, the government is
seeking to protect the very integrity of our system of
government.
Even when a defendant is charged with a serious crime,
“[s]pecial circumstances may lessen the importance” of the
government’s interest in prosecuting him. Id. Gillenwater
contends that three such special circumstances are at play
here. First, Gillenwater contends that the government has a
lessened interest in prosecuting him because his “illness and
resulting proclivities towards making threats might make him
subject to” civil commitment. Appellant’s Br. 17. Eligibility
for civil commitment may “diminish the risks that ordinarily
attach to freeing without punishment one who has committed
a serious crime,” Sell, 539 U.S. at 180, thereby lessening the
government’s interest in prosecuting him, Ruiz-Gaxiola,
623 F.3d at 694. But there is nothing in the record to suggest
that Gillenwater is eligible for civil commitment. The district
court did not determine whether Gillenwater would meet the
12 UNITED STATES V. GILLENWATER
civil commitment criteria, and none of the experts who
evaluated him took a position on that issue.
Second, Gillenwater contends that the government has a
lessened interest in prosecuting him because he has been in
custody for about 32 months. “[T]he possibility that the
defendant has already been confined for a significant amount
of time,” as Sell explained, “affects, but does not totally
undermine, the strength of the need for prosecution.”
539 U.S. at 180. Here, the government maintains a strong
interest in prosecuting Gillenwater. For one thing,
Gillenwater is charged with not one but three offenses. If
convicted, he may face sentences that run consecutively. See
18 U.S.C. § 3584. If convicted, Gillenwater may also face
supervised release, see 18 U.S.C. § 3583, which several of
our sister circuits have found significant in evaluating the
government’s showing on the first Sell factor, see, e.g.,
United States v. Gutierrez, 704 F.3d 442, 451 (5th Cir. 2013);
United States v. Nicklas, 623 F.3d 1175, 1179 (8th Cir. 2010);
United States v. Bush, 585 F.3d 806, 815 (4th Cir. 2009).
Supervised release would help ensure that Gillenwater does
not return to making threats when released into the public.
And the monitoring that accompanies supervised release may
be especially valuable here because Gillenwater allegedly
persisted in making threats despite law enforcement
intervention. After all, the government alleges that
Gillenwater returned to sending threatening emails two days
after federal agents warned Gillenwater that doing so could
land him behind bars. What is more, the government alleges
that Gillenwater sent a threatening postcard while in custody.
Finally, as explained by one of our sister circuits, “the fact of
a conviction would create certain limitations on
[Gillenwater’s] subsequent activities, such as [his] ability to
obtain and own firearms, see 18 U.S.C. § 922(d)(1), (g)(1),
UNITED STATES V. GILLENWATER 13
which may be particularly important where, as here,
[Gillenwater] is charged with making threats against federal
[officials and employees].” Bush, 585 F.3d at 815.
Third, Gillenwater contends that he “was inclined to
commit the subject offenses at least in part because of his
mental condition and, thus, such disorder should render it less
important to criminally prosecute [him].” Appellant’s Br. 18.
As we recognized in Ruiz-Gaxiola, the fact that a defendant’s
mental disorder contributed to his offense may weaken the
government’s interest in prosecuting him, but that will not
always be the case. See 623 F.3d at 695. Here, the link
between Gillenwater’s mental disorder and his charged
crimes makes his prosecution all the more important. The
government’s expert testified that without treatment,
Gillenwater is likely to continue to act on his delusions. And
the district court found that he “is at substantial risk to engage
in the type of violent conduct which is the subject of the
criminal proceeding against him if his mental condition is left
untreated.” 9/24/13 Order 9.
B
Turning to the second Sell factor, the government must
make a two-part showing to establish that involuntary
medication will significantly further the important
governmental interests at stake. First, the government must
show that “administration of the drugs is substantially likely
to render the defendant competent to stand trial.” Sell,
539 U.S. at 181. And second, it must show that
“administration of the drugs is substantially unlikely to have
side effects that will interfere significantly with the
defendant’s ability to assist counsel in conducting a trial
defense.” Id.14 UNITED STATES V. GILLENWATER
Gillenwater does not challenge the district court’s
determination that administration of haloperidol decanoate is
substantially unlikely to have side effects that will interfere
significantly with his ability to assist his counsel in his
defense. He contends only that the district court clearly erred
in determining that administration of the drug is substantially
likely to render him competent to stand trial.
We cannot agree. The government’s expert, Dr. Lucking,
testified that haloperidol decanoate is substantially likely to
decrease Gillenwater’s delusional beliefs “to the extent where
he will then be able to interact with and work with his
attorney to plan a rational, logical defense.” ER 150. Dr.
Lucking has a robust knowledge base, and he presented a
strong case for the effectiveness of involuntary medication in
rendering Gillenwater competent to stand trial. Dr. Lucking
has been board certified in psychiatry and neurology for over
30 years. He has served as a staff psychiatrist at the Federal
Medical Center in Butner, North Carolina, where he
evaluated Gillenwater, for over 15 years. Based on his
clinical experience, Dr. Lucking testified that defendants with
psychotic disorders often attain competency when treated
with antipsychotic medication. He also presented several
recent studies indicating that more than 70% of persons
suffering from delusional disorder saw an improvement in
their symptoms when treated with antipsychotic medication.
While those studies were not double-blind or placebo-
controlled, both Dr. Lucking and Gillenwater’s expert, Dr.
Cloninger, testified that it would be very difficult, if not
impossible, to conduct double-blind or placebo-controlled
studies of the effectiveness of involuntarily medicating
persons suffering from delusional disorder.
UNITED STATES V. GILLENWATER 15
To support his position, Gillenwater points to Ruiz-
Gaxiola, a case in which Dr. Cloninger testified and we held
that the district court clearly erred in finding that the
government satisfied the second Sell factor. See 623 F.3d at
695–701. As we noted in Ruiz-Gaxiola, Dr. Cloninger is an
experienced psychiatrist with strong credentials. Id. at 690,
699–700. But this case is not Ruiz-Gaxiola. Unlike in Ruiz-
Gaxiola, Dr. Cloninger did not meet with or examine the
defendant in this case before drawing his conclusions. See id.
at 690. Dr. Cloninger also copied and pasted substantial parts
of his report in this case from the report he prepared in Ruiz-
Gaxiola, including an erroneous reference to deportation.
And most importantly, Dr. Cloninger relied exclusively on
older studies. Dr. Lucking explained that prior to the 1990s,
the commonly held psychiatric opinion was that delusional
disorder rarely responded to treatment with antipsychotic
medication. But Dr. Lucking relied on more recent studies
indicating that the older negative view was mistaken. On the
other side of the scale, Dr. Lucking is more experienced than
the government’s psychiatrist in Ruiz-Gaxiola. See id. at
689–90, 699–700. And as described above, he made a strong
case for involuntary medication, whereas the government’s
psychiatrist in Ruiz-Gaxiola pointed to only one study
supporting his treatment plan. See id. at 697–98.
In sum, we cannot conclude that the district court clearly
erred in accepting the testimony of an experienced expert
who examined the defendant and showed a greater awareness
and understanding of recent advances in the treatment of
delusional disorder.
16 UNITED STATES V. GILLENWATER
C
We next consider the third Sell factor—that involuntary
medication is necessary to further the important governmental
interests at stake. To satisfy the third Sell factor, the
government must show that “any alternative, less intrusive
treatments are unlikely to achieve substantially the same
results.” Sell, 539 U.S. at 181. And the district court must
also “consider less intrusive means for administering the
drugs . . . before considering more intrusive methods.” Id.Gillenwater does not contend that the district court failed
to consider less intrusive means for administering the
haloperidol decanoate. He contends only that the district
court clearly erred in rejecting an alternative, less intrusive
treatment option, namely the voluntary psychotherapy
suggested by Dr. Cloninger.
Dr. Cloninger opined that “the only appropriate medical
treatment” for Gillenwater was voluntary psychotherapy. ER
268. His treatment option required providing “a non-
adversarial therapeutic milieu in which [Gillenwater] can
recognize that he is respected and valued so as to allow the
natural recovery process to take place unimpeded.” Id. But
Dr. Lucking testified that voluntary psychotherapy was bound
to fail because Gillenwater does not recognize that he suffers
from a mental disorder and does not believe that he needs
treatment. And Dr. Lucking also testified that, because of his
mental disorder, Gillenwater “does not trust anybody”—a
major roadblock to voluntary psychotherapy, which requires
“the formation of a therapeutic alliance” built on trust
between the psychiatrist and his patient. Id. at 180.
UNITED STATES V. GILLENWATER 17
The district court did not clearly err in crediting Dr.
Lucking and rejecting Dr. Cloninger’s alternative treatment
option. Dr. Cloninger provided conflicting opinions in his
report and testimony on whether the type of voluntary
psychotherapy he envisioned could be effectively performed
at the federal facility in which Gillenwater is confined. He
also testified that his treatment option is “just not going to be
very effective” if Gillenwater refuses it. Id. at 379. And
Gillenwater “clearly reserved the right to refuse any treatment
he did not like.” 9/24/13 Order 11 n.5. As we have
previously recognized, a district court does not clearly err in
rejecting voluntary psychotherapy as an alternative, less
intrusive treatment option where, as here, it is far from clear
both that it can be effectively performed within the
constraints of the prison environment and that the defendant
will engage in it. See Ruiz-Gaxiola, 623 F.3d at 702–03.
D
Finally, we assess the fourth Sell factor. To establish that
administration of the drug is medically appropriate, the
government must show that involuntary medication is in “the
patient’s best medical interest in light of his medical
condition.” Sell, 539 U.S. at 181. In assessing whether the
government has made that showing, we consider “the long-
term medical interests of the individual rather than the short-
term institutional interests of the justice system.” Ruiz-
Gaxiola, 623 F.3d at 703.
Gillenwater contends that the district court clearly erred
in determining that involuntary treatment with haloperidol
decanoate is in his best medical interest because the potential
harms of that treatment outweigh the potential benefits. On
the potential harms side, long-term treatment with haloperidol
18 UNITED STATES V. GILLENWATER
decanoate can result in severe side effects, including tardive
dyskinesia, tardive dystonia, and tardive akathisia. But both
Dr. Lucking and Dr. Cloninger testified that such severe side
effects rarely emerge when an individual is treated with
haloperidol decanoate for only a short time, which is what Dr.
Lucking proposed for Gillenwater. Moreover, Dr. Lucking
testified that Gillenwater had no medical conditions and was
not taking any medications that would predispose him to
severe side effects. He also testified that Gillenwater would
be given a small test dose to ensure that “there are no major
adverse clinical effects or side effects” and that any side
effects from that test dose could be reversed. ER 148. And
Dr. Lucking testified that Gillenwater would be closely
monitored throughout the treatment and that his treatment
would be adjusted if any side effects did emerge.
On the potential benefits side, Dr. Lucking testified that
involuntary treatment with haloperidol decanoate was not
only substantially likely to render Gillenwater competent to
stand trial but that it could also open the door to other
treatment options. In particular, Dr. Lucking testified that it
could facilitate treatment with newer antipsychotic
medications that have a lower incidence of severe side effects
with long-term administration but that can be administered
only voluntarily. And Dr. Lucking testified that Gillenwater,
unlike, for example, the defendant in Ruiz-Gaxiola, is
“experiencing significant distress as a result of his condition.”
623 F.3d at 705. He explained that Gillenwater “believes that
he is being harassed, persecuted, and threatened with bodily
harm, even death, . . . based upon his possession of certain
information which he believes that others do not want
released into the community.” ER 145. “When you believe
that people are out to kill you because of information that you
have and that you have to run for your life, that people are
UNITED STATES V. GILLENWATER 19
hunting you down, that they’re plotting against you and
conspiring against you and you always have to watch your
back,” Dr. Lucking elaborated, “that is a very painful
experience” for which treatment “is in the best interests of the
individual.” Id. at 399–400. And based on their observations
of Gillenwater, both Chief Judge Peterson and Judge Suko
found that he is “deeply disturbed by his delusions and could
not lead a fulfilling life in the absence of some improvement
in his condition.” Id. at 334; 9/24/13 Order 12.
In sum, we cannot conclude that the district court clearly
erred in determining that involuntary medication is in
Gillenwater’s best medical interest when the potential harms
and benefits of the treatment are viewed against the
seriousness of his condition.
* * *
For the reasons discussed above, we AFFIRM the district
court’s September 24, 2013 involuntary medication order
(Case No. 13-30284). We DISMISS as moot Gillenwater’s
appeal of the district court’s November 19, 2012 involuntary
medication order (Case No. 12-30379).