United States v. Nna Onuoha , 820 F.3d 1049 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50300
Plaintiff-Appellee,
D.C. No.
v. 2:13-cr-00676-
BRO-1
NNA ALPHA ONUOHA, AKA Naa
Alpha Onuoha,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Beverly Reid O’Connell, District Judge, Presiding
Argued and Submitted
December 8, 2015—Pasadena, California
Filed April 20, 2016
Before: Ronald M. Gould and Marsha S. Berzon, Circuit
Judges, and George Caram Steeh III,* Senior District
Judge.
Opinion by Judge Gould
*
The Honorable George Caram Steeh III, Senior District Judge for the
U.S. District Court for the Eastern District of Michigan, sitting by
designation.
2 UNITED STATES V. ONUOHA
SUMMARY**
Criminal Law
The panel vacated the district court’s order authorizing
the Bureau of Prisons to forcibly medicate the defendant to
restore his competency to stand trial, and remanded for
further proceedings, in a case in which the defendant was
charged under 18 U.S.C. §§ 844(e) and 1038(a)(1) for
making phone calls instructing authorities to evacuate the
Los Angeles International Airport.
Addressing the defendant’s challenges to the district
court’s conclusions on two of the requirements set forth in
Sell v. United States, 539 U.S. 166 (2003), the panel held that
there is an important government interest at stake in
prosecuting the defendant, but that the district court clearly
erred in finding that the proposed course of treatment was in
the defendant’s best medical interests.
COUNSEL
Hilary Potashner, Federal Public Defender; Brianna Fuller
Mircheff (argued), Deputy Federal Public Defender, Los
Angeles, California, for Defendant-Appellant.
Eileen M. Decker, United States Attorney; Patricia A.
Donahue, Assistant United States Attorney Chief, National
Security Division; Melissa Mills (argued) and Sarah J.
**
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. ONUOHA 3
Heidel, Assistant United States Attorneys, Los Angeles,
California, for Plaintiff-Appellee.
OPINION
GOULD, Circuit Judge:
Nna Alpha Onuoha appeals the district court’s order
authorizing the Bureau of Prisons (BOP) to forcibly medicate
him to restore his competency to stand trial. Onuoha was
charged under 18 U.S.C. §§ 844(e) and 1038(a)(1) for
allegedly making phone calls to authorities at the Los
Angeles International Airport (LAX) instructing them to
evacuate the airport. He was found unfit to stand trial, and
the district court ordered him to be forcibly medicated
pursuant to Sell v. United States, 539 U.S. 166 (2003). We
have jurisdiction over interlocutory appeals of Sell orders
under the collateral order doctrine. Sell, 539 U.S. at 176. We
hold that the district court clearly erred in finding that the
proposed course of treatment was in Onuoha’s best medical
interests. We vacate the order and remand for further
proceedings consistent with this opinion.
I
Onuoha served in the National Guard from 2004 to 2012,
including a stint with a peacekeeping force in Kosovo. After
returning from Kosovo, Onuoha worked as a Transportation
Security Administration (TSA) screener at LAX from 2006
to September 2013. Except for the charges in this case, he
has no criminal history.
4 UNITED STATES V. ONUOHA
In the summer of 2013, Onuoha was suspended from his
job with TSA for comments made to a female passenger. On
September 10, 2013, Onuoha went to LAX on his day off and
passed through security screening at several terminals. He
then went to TSA headquarters at LAX and resigned from his
job. Hours later, he returned to TSA headquarters and left an
envelope for a former supervisor involved with his
suspension. The government alleges that Onuoha then called
a TSA checkpoint and said that LAX should be evacuated.
During the phone call, Onuoha mentioned the package he left
for his former supervisor, indicated that it should be read
immediately, and said that he would be watching to see if
LAX was evacuated. Onuoha then called the LAX Police
Department and his TSA supervisor, telling them to evacuate
the airport because he was going to “deliver a message” to
America and the world. The recipients of these calls believed
that Onuoha was threatening to set off bombs or open fire at
the airport. The envelope Onuoha left for his supervisor was
discovered to contain religious writings, and did not include
any explosives. Authorities decided not to evacuate the
airport, but they did evacuate TSA headquarters.
Law enforcement officials went to Onuoha’s apartment to
apprehend him. They found that he had cleared out all of his
belongings and left only a large note reading “09/11/2013
THERE WILL BE FIRE! FEAR! FEAR! FEAR!” This
message led police to believe that Onuoha was an active
shooter seeking to evacuate the airport so that he could target
and kill people as they fled. Information about Onuoha’s
military background and potential access to firearms fed these
concerns. It was later discovered that Onuoha had posted to
his personal website an open letter “To LAX Passengers”
with religious comments. This letter stated that “the news
UNITED STATES V. ONUOHA 5
media have probably come to the conclusion that I’m a
terrorist,” but also stated “I did not call for any threat.”
Later that same day, Onuoha called LAX police to say
that he heard law enforcement was looking for him. He told
police he was at a church in Riverside, California, and
described the car he was driving. He also told police that he
did not intend to make a bomb threat, only to “deliver” a
message. Onuoha waited at the church until law enforcement
arrived and arrested him. When he was interviewed by
police, he reiterated that he did not intend to make a threat,
stating that “[k]illing was not on my mind.”
On September 11, 2013, the day after Onuoha was
arrested, the government filed a complaint against Onuoha
and requested pre-trial detention. Onuoha was later indicted
on three counts in violation of 18 U.S.C. § 1038(a)(1) (false
information and hoaxes) and three counts in violation of
18 U.S.C. § 844(e) (making telephonic threats). At the
detention hearing, the government moved for a competency
evaluation, which Onuoha’s defense counsel opposed. The
motion was denied, and defense counsel indicated that
Onuoha intended to proceed to trial. In February 2014, the
defense gave notice that it would raise a diminished-capacity
defense and submitted a report that Onuoha suffered from
paranoid schizophrenia. The government again filed a
motion for a competency evaluation, which this time was
granted by the district court.
The evaluation was performed by Bureau of Prisons
(BOP) medical personnel. The evaluation revealed that
Onuoha believed that he received revelations from God and
had a message to preach, and that these beliefs rose to the
level of delusions. The evaluation concluded that Onuoha
6 UNITED STATES V. ONUOHA
was not competent to stand trial. The district court found
Onuoha incompetent to stand trial and committed him to BOP
custody to determine whether he could be restored to
competency.
BOP psychologist Dr. Angela Alden-Weaver and BOP
psychiatrist Dr. Robert Lucking evaluated Onuoha for several
months. They submitted their evaluation to the district court
in November 2014. They agreed with the finding that
Onuoha was incompetent to stand trial and diagnosed him
with schizophrenia. They also found that Onuoha was not a
danger to himself or others. They further determined that
anti-psychotic medication would likely restore Onuoha to
competency, and recommended a course of long-acting
Haldol (haloperidol decanoate), including specific dosages
and a timetable. The recommended treatment included an
initial test dose of 10 milligrams of short-acting Haldol,
followed by 24 hours of observation for adverse side effects.
The treatment plan then recommended three 150-milligram
doses of long-acting Haldol at two-week intervals to obtain
a therapeutic blood level. After gaining this blood level, the
treatment plan recommended 150 to 200 milligrams of Haldol
every four weeks. Dr. Lucking predicted that this treatment
would take around four months to restore Onuoha to
competency.
The government filed a motion for an order to
involuntarily medicate Onuoha with the goal of restoring him
to competency, relying on Sell v. United States, 539 U.S. 166
(2003). Onuoha’s attorneys opposed the motion. The district
court held several hearings that included taking testimony
from government witnesses Dr. Lucking and Dr. Bryan
Herbel, a second BOP psychiatrist. After the hearings, the
district court granted the government’s motion and ordered
UNITED STATES V. ONUOHA 7
Onuoha to be involuntarily medicated in accordance with Dr.
Lucking’s recommendations as articulated in his and Dr.
Weaver’s evaluation. Onuoha filed a timely interlocutory
appeal, and the district court stayed its order pending our
decision.
II
In Sell v. United States, the Supreme Court recognized
that the government may involuntarily medicate a defendant
charged with a serious crime to restore that defendant to
competency to stand trial. 539 U.S. at 179. The Supreme
Court held that a court may not grant a Sell motion unless the
government proves four factors:
(1) “that important governmental interests are
at stake” in prosecuting the defendant for the
charged offense; (2) “that involuntary
medication will significantly further those
concomitant state interests,” i.e., it is
substantially likely to restore the defendant to
competency and substantially unlikely to
cause side effects that would impair
significantly his ability to assist in his defense
at trial; (3) “that involuntary medication is
necessary to further those interests,” i.e., there
are no less intrusive treatments that are likely
to achieve substantially the same results; and
(4) “that administration of the drugs is
medically appropriate, i.e., in the patient’s
best medical interest in light of his medical
condition.”
8 UNITED STATES V. ONUOHA
United States v. Ruiz-Gaxiola, 623 F.3d 684, 687–88 (9th Cir.
2010) (quoting Sell, 539 U.S. at 180–81) (emphasis in Sell).
Each of these factors must be proven by clear and convincing
evidence. Id. at 692. Orders based on Sell authorizing
involuntary medication are “disfavored.” United States v.
Rivera-Guerrero, 426 F.3d 1130, 1137 (9th Cir. 2005).
The district court found that all four Sell factors were
satisfied. On this appeal Onuoha challenges only the district
court’s conclusions on the first and fourth factors, and so we
limit our discussion, first, to whether important government
interests are at stake in prosecuting Onuoha and, second, to
whether administration of the prescribed drugs is medically
appropriate, i.e., in the patient’s best medical interests in light
of his medical condition. We conclude that the first factor is
met but that the fourth factor is not: there is an important
governmental interest in prosecuting Onuoha, but the
proposed treatment is not in his best medical interests.
A
Under Sell we first address whether important
governmental interests support prosecuting Onuoha. We
review this factor de novo. Ruiz-Gaxiola, 623 F.3d at 693.
The Sell Court recognized that “[t]he Government’s interest
in bringing to trial an individual accused of a serious crime is
important,” but it also noted that “[s]pecial circumstances
may lessen the importance of that interest.” Sell, 539 U.S. at
180. The Court mentioned several examples of “special
circumstances” that diminish the government’s interest in
prosecution, including the potential for civil commitment, the
length of time needed to restore a defendant to competency,
the effect of the potential delay on the government’s interest
in timely prosecution, the length of time the defendant has
UNITED STATES V. ONUOHA 9
already been confined, and constitutional requirements of a
fair trial. Id.
Our analysis of the first Sell factor proceeds as a two-step
inquiry. In our first step, we consider whether the alleged
crime is sufficiently “serious” to establish an important
governmental interest. See United States v. Gillenwater,
749 F.3d 1094, 1101 (9th Cir. 2014); Ruiz-Gaxiola, 623 F.3d
at 693. If an important governmental interest is established,
we evaluate in the second step of this analysis whether any
“special circumstances” lessen that interest. Gillenwater,
749 F.3d at 1101; Ruiz-Gaxiola, 623 F.3d at 693–94. This
second step requires measuring any mitigating circumstances
against the established government interest. See, e.g., United
States v. Brooks, 750 F.3d 1090, 1097 (9th Cir. 2014)
(explaining that courts must consider whether a potential
sentence is outweighed by the likelihood of civil commitment
and the length of time a defendant has already served).
Onuoha argues that the district court erroneously treated
the first Sell factor as a totality-of-the-circumstances test. We
agree that a totality test is inappropriate in the context of the
first Sell factor. A relatively weak governmental interest
could not properly prevail in scenarios without mitigating
circumstances, because the Sell Court held that “important
governmental interests” must be implicated to justify forcible
medication. Sell, 539 U.S. at 180 (emphasis in the original).
Our two-step approach helps to ensure that the interests at
stake are important. If the government cannot demonstrate at
the outset that its interest in prosecution meets a significant
threshold, the inquiry ends there.
10 UNITED STATES V. ONUOHA
1
We next address the facts here. We must consider
whether Onuoha’s charged crimes are sufficiently “serious”
to indicate an important governmental interest. We have
previously held that the U.S. Sentencing Guidelines range is
“the appropriate starting point” because it is the “best
available predictor of the length of a defendant’s
incarceration.” United States v. Hernandez-Vasquez,
513 F.3d 908, 919 (9th Cir. 2007). Both parties agree that the
Sentencing Guidelines range for Onuoha’s alleged crimes is
27 to 33 months. This range is lower than any range we have
previously held to be indicative of a “serious” crime under the
first Sell factor. See, e.g., Gillenwater, 749 F.3d at 1101
(range of 33 to 41 months); Ruiz-Gaxiola, 623 F.3d at 694
(range of 100 to 125 months); Hernandez-Vasquez, 513 F.3d
at 911–12 (range of 92 to 115 months).
But the Guidelines range is only the starting point in
determining whether the government has an important
interest in prosecution. Brooks, 750 F.3d at 1097. In Sell, the
Supreme Court stated that courts also “must consider the facts
of the individual case in evaluating the Government’s interest
in prosecution.” 539 U.S. at 180. Although our analysis
begins with the Guidelines range, it is not “the only factor
that should be considered” because it does “not reflect the full
universe of relevant circumstances.” Hernandez-Vasquez,
513 F.3d at 919.
In addition to the Guidelines range, we have previously
considered the specific facts of the alleged crime as well as
the defendant’s criminal history. In Gillenwater, for
example, we determined that the defendant’s threats to choke,
rape, and kill government officials and employees was
UNITED STATES V. ONUOHA 11
sufficiently serious criminal conduct to satisfy the first Sell
factor despite the low Guidelines range of 33 to 41 months.
749 F.3d at 1101. And in both Ruiz-Gaxiola and Hernandez-
Vasquez, we considered the defendants’ extensive criminal
history in concluding that the crimes at issue were sufficiently
serious. Ruiz-Gaxiola, 623 F.3d at 694; Hernandez-Vasquez,
513 F.3d at 919.
Onuoha has no criminal history and his Guidelines range
is low. But even so, when we look at the substance of
Onuoha’s conduct, the stress he placed upon the airport’s
security systems, and the nature of the crimes charged, we
conclude that Onuoha’s criminal conduct is without doubt
sufficiently serious to support a strong governmental interest.
It is not just that he is the subject of prosecution; as the
Fourth Circuit notes, this is a “truism[] applicable to any case
where the government seeks forcible medication: without a
prosecution, there would be no case.” United States v. White,
620 F.3d 401, 413 n.9 (4th Cir. 2010) (emphasis in the
original). Rather, Onuoha’s alleged conduct threatened “the
basic human need for security” to such an extent that it
weighs heavily in favor of an interest in prosecution. Sell,
539 U.S. at 180. Onuoha is accused of making phone calls to
LAX officials on the eve of the anniversary of the September
11th attacks, urging evacuation of the airport. These phone
calls were reasonably perceived as terrorism threats, and they
considerably disrupted airport activities and diverted law
enforcement resources. The government did not merely have
an interest in incarcerating Onuoha for a time for this
conduct. It had an interest in gaining a trial conviction to
show others that such conduct will result predictably in
conviction and a serious penalty of incarceration.
12 UNITED STATES V. ONUOHA
Onuoha argues that his alleged criminal conduct is not
sufficiently serious because his statements were “cryptic” and
not specifically violent in nature. He has also continually
maintained that he did not intend to threaten anyone, only to
“deliver” a message. We conclude that these arguments are
unavailing. Onuoha knew or reasonably should have known
that the recipients of his phone calls would assume he was
threatening terrorism. Terrorism, whether real or perceived,
threatens our need for security. We agree with the district
court’s assessment that “[t]hreats of terrorism, whether
genuine or fraudulent, are of grave severity, particularly when
they involve a highly populated public venue such as an
airport.”
The district court also considered Onuoha’s potential for
future violence as strengthening the need for prosecution.
This consideration was wholly unnecessary to justify
involuntary medication for the purpose of permitting trial and
conviction. And reliance on Onuoha’s dangerousness was
potentially an error. Whether a defendant should be
involuntarily medicated because they pose a danger to
themselves or others is governed by a separate test,
articulated in Washington v. Harper, 494 U.S. 210, 227
(1990). Courts should “remain mindful of the Supreme
Court’s distinction between the purposes and requirements of
involuntary medication to restore competency and
involuntary medication to reduce dangerousness. It should
take care to separate the Sell inquiry from the Harper
dangerousness inquiry and not allow the inquiries to collapse
into each other.” Hernandez-Vasquez, 513 F.3d at 919.
Additionally, the record contains no firm evidence that
Onuoha is an actual danger to himself or others, or that he
will become a danger in the future. Drs. Lucking and Weaver
specifically noted in their evaluation that Onuoha did not
UNITED STATES V. ONUOHA 13
pose a threat to himself or others and would not qualify for
involuntary medication under the Harper analysis.
2
Because the alleged crime is sufficiently serious to
support a governmental interest in prosecution, we proceed to
the second step of the first Sell factor and consider any
“[s]pecial circumstances [that] may lessen the importance of
that interest.” Sell, 539 U.S. at 180. Onuoha argues that the
time he has already spent in custody constitutes a “special
circumstance” and diminishes the government’s interest in
incapacitating him. Sell suggests that length of time a
defendant has already spent in confinement is a mitigating
factor, although it “does not totally undermine” the need for
prosecution. Id. Onuoha has been incarcerated since
September 2013 and has already served more time than the
minimum Guidelines range of 27 months. Possibly, if
Onuoha is ultimately restored to competency and convicted,
he may conceivably be sentenced to time served. However,
a sentence might also include a period of supervised release,
which “would help ensure that [Onuoha] does not return to
making threats when released into the public.” Gillenwater,
749 F.3d at 1102. Additionally, there is an important
distinction between incarceration itself, and the significance
for society of gaining a criminal conviction for a defendant’s
violation of the law. A conviction and resulting sentence
serves more purposes than the incapacitation, specific
deterrence, and rehabilitation of an individual; general
deterrence of the serious crime at issue here is also an
important consideration. See, e.g., Furman v. Georgia,
408 U.S. 238, 343 (1972) (per curiam) (Marshall, J.,
concurring) (“Our jurisprudence has always accepted
deterrence in general, deterrence of individual recidivism,
14 UNITED STATES V. ONUOHA
isolation of dangerous persons, and rehabilitation as proper
goals of punishment.”); United States v. Barker, 771 F.2d
1362, 1368 (9th Cir. 1985) (“[P]erhaps paramount among the
purposes of punishment is the desire to deter similar
misconduct by others.”); 18 U.S.C. § 3553(a)(2)(B) (courts
should consider “adequate deterrence to criminal conduct” in
selecting a sentence).
Here, the government had a valid interest in prosecuting
Onuoha for generating public fear over terrorism. That
interest of the government cannot be served by mere
detention; instead, general deterrence for the benefit of
society is served when a person is convicted of a serious
crime, thus deterring others from making the same mistake.
We conclude that in this case, the particular circumstance of
Onuoha’s detention does not displace the governmental
interest in prosecution.
There are no other circumstances that diminish the
governmental interest in prosecution. Nothing in the record
indicates that Onuoha is a candidate for civil commitment,
and Onuoha has not argued that any delay resulting from the
restoration process will interfere with the government’s
interest in timely prosecution or his constitutional rights to a
fair trial. See Sell, 539 U.S. at 180. We agree with the
district court’s finding that the alleged crimes are sufficiently
serious to support an important governmental interest and that
special circumstances do not diminish the importance of that
interest. The first Sell factor is satisfied.
B
To satisfy the fourth Sell factor, we must conclude that
the proposed treatment plan is “medically appropriate, i.e., in
UNITED STATES V. ONUOHA 15
the patient’s best medical interest in light of his medical
condition.” Sell, 539 U.S. at 181 (emphasis in the original).
Whether the course of treatment recommend by the BOP is in
Onuoha’s best medical interests is a question of fact reviewed
for clear error. Hernandez-Vasquez, 513 F.3d at 916–17.
This is a deferential standard. See Easley v. Cromartie,
532 U.S. 234, 242 (2001). We may not reverse a factual
finding without a “definite and firm conviction that a mistake
has been committed.” Id. (quoting United States v. United
States Gypsum Co., 333 U.S. 364, 395 (1948)).
The district court adopted Dr. Lucking’s recommended
treatment as articulated in his and Dr. Weaver’s evaluation.
The proposed treatment includes an initial test dose of 10
milligrams of short-acting Haldol in the first 24 hours,
followed by three 150-milligram doses of the long-acting
version of Haldol at two-week intervals until a therapeutic
blood level is obtained. Onuoha raises several objections to
this treatment, arguing that the district court clearly erred in
concluding that Dr. Lucking’s recommendation is in his best
medical interest. He primarily argues that the course of
treatment increases the risk of side effects; the dosage is
significantly higher than is generally recommended; and the
use of long-acting Haldol does not conform to the community
standard of care.
We first address Onuoha’s concerns about the
“extrapyramidal” (neurological) side effects of Haldol,
including dystonia (muscle contractions that cause abnormal
twisting postures), akathisia (the urge to move continuously),
and pseudoparkinsonism (drug-induced Parkinson’s disease).
Onuoha also points to other, similarly serious, side effects,
some of which increase the risk of death. The district court
heard testimony from Dr. Lucking that side effects at the
16 UNITED STATES V. ONUOHA
recommended dosage of Haldol were infrequent and easily
treatable with anticholinergic medication. Based on this
testimony, the district court made “the factual finding that the
treatment plan proposed by the government is unlikely to
cause [Onuoha] significant side effects” and that involuntary
medication was in Onuoha’s best medical interest given the
“significant delusions that have impacted his life.”
In Gillenwater, which involved similar testimony from
the same Dr. Lucking regarding haloperidol deconoate (long-
acting Haldol), we held that the district court did not clearly
err in determining that medication was in the defendant’s
“best medical interest when the potential harms and benefits
of the treatment are viewed against the seriousness of his
condition.” 749 F.3d at 1105. However, we did not consider
the recommended dosage in Gillenwater. Here, the district
court heard testimony from Dr. Lucking that side effects are
more likely to occur at higher doses. As Onuoha argued
during the Sell hearing and maintains on appeal, Dr.
Lucking’s recommended dose is much higher than the BOP’s
own internal recommendations. The district court did not
consider this contention in its written analysis.
Under the recommended treatment, Dr. Lucking proposed
injecting Onuoha with 10 milligrams of short-acting Haldol
to observe adverse side effects for 24 hours before
administering 150 milligrams every two weeks for the first
three doses. This dosage equates to 300 milligrams of long-
acting Haldol in the first month of treatment. The BOP
recommendations list the starting dose of short-acting Haldol
at two to five milligrams per day, and the starting dose of
long-acting Haldol at 25 to 50 milligrams every two weeks.
The manufacturer of Haldol and the Physicians’ Desk
Reference (PDR) similarly recommend a short-acting Haldol
UNITED STATES V. ONUOHA 17
test dose of two to five milligrams and state that the initial
injections of long-acting Haldol should not exceed 100
milligrams. Dr. Lucking’s recommended test dose is two to
five times the BOP’s starting recommendation, and his
recommended starting dose for long-acting Haldol is three to
six times the BOP’s starting recommendation. Also, the
BOP’s recommended dose—after a starting dose—for long-
acting Haldol is 50 to 200 milligrams every two to four
weeks, and its maximum recommended dose is 300
milligrams every three to four weeks. Dr. Lucking’s plan
skips the starting dose and goes straight to the maximum dose
of 300 milligrams per month.
Dr. Lucking testified that he regularly administers these
starting doses “so that treatment moves on in a more rapid
manner and [the recipient] can be restored in a more timely
manner.” But restoring competency quickly is not a
controlling concern under the fourth Sell factor—only best
medical interests are considered. Dr. Lucking did not set
forth any explanation why a dose above what is generally
recommended is in Onuoha’s best medical interests. Dr.
Lucking suggests only that it would let Onuoha reach a
therapeutic blood level faster.
The government contends that the BOP’s internal
standards are just “recommendations” that are not binding on
a prescribing doctor. This observation is insufficient
affirmatively to demonstrate that a high dosage is in
Onuoha’s best medical interest, which the government must
prove by clear and convincing evidence. Ruiz-Gaxiola,
623 F.3d at 692. The government also argues that the
recommendations were not written with restoration in mind.
But the pertinent consideration under the fourth Sell factor is
not restoration, but best medical interest.
18 UNITED STATES V. ONUOHA
Also, the district court appears to have miscalculated the
amount of long-acting Haldol that Onuoha would receive in
the first month. The district court incorrectly stated that
Onuoha “would be administered doses of 150 milligrams on
a monthly basis,” which the district court described as “on the
lower end of typical doses of this medication.” In fact, under
Dr. Lucking’s recommended treatment, Onuoha would
receive 300 milligrams in the first month, followed by 150
milligrams in the subsequent months. As previously noted,
300 milligrams as a starting dose is three to six times higher
than the BOP’s starting recommendation, and is the
maximum recommended by the BOP as a non-starting dose.
In light of the recommendations of the BOP and other
medical sources, 300 milligrams cannot accurately be
described as a low starting dose, or even a low dose. Because
the district court miscalculated the dosage and failed to take
into account the BOP dosage recommendations, it clearly
erred in concluding that the proposed treatment was in
Onuoha’s best medical interest.
Onuoha also argues that the long-acting form of Haldol
recommended will not allow doctors to monitor side effects
and adjust his dosage as they would on short-acting Haldol.
The district court did not consider this point in its written
analysis, although it was raised and discussed at the Sell
hearing. At the hearing, Onuoha pointed out that the PDR
recommends that physicians stabilize patients on short-acting
drugs before injecting them with long-acting Haldol. The
manufacturer of Haldol also recommends that patients should
only be treated with long-acting Haldol if they are stable and
able to tolerate the short-acting version of Haldol. Dr.
Lucking recommended against the use of short-acting Haldol
because it would require daily injections that would be
“traumatic” for Onuoha and would put the treating staff at
UNITED STATES V. ONUOHA 19
risk, although he later acknowledged that Onuoha would
likely acquiesce to injections with “a minimum of resistance.”
Another government witness, Dr. Bryon Herbel, testified that
long-acting Haldol is used in federal prisons because prison
doctors are “trying to balance managing . . . the side effects
with the safety of repeated use of force . . . . So you look at
the—the risk of, say, getting injured in a repeated forced cell
extraction, that’s not a minimal risk.”
The district court appears to have accepted these expert
witnesses’ explanation that short-acting Haldol was not
appropriate for Onuoha. In response to Onuoha’s arguments
at the Sell hearing, the court noted, “[Dr. Herbel] said in the
custodial setting, that the PDR, Physicians’ Desk Reference,
is set up for volunteers out of custody and that—the custodial
situation is not set up to engage in the short-term.” However,
penological interests do not control under the fourth Sell
factor, which considers only “the patient’s best medical
interest in light of his medical condition.” Sell, 539 U.S. at
181. It may be significant that the Sell Court used the word
“patient” in its explanation of this factor, as opposed to the
word “defendant”—a choice that “serves to emphasize that,
in analyzing this factor, courts must 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. The record clearly indicates that
stabilization on a short-acting anti-psychotic before the
introduction of long-acting Haldol is the community standard
of care. We agree with Onuoha that “best medical interests
are best medical interests, whether that individual is in
custody or in the community.”
We acknowledge that courts must rely on the testimony
of medical experts in evaluating the constitutionality of
20 UNITED STATES V. ONUOHA
involuntary medication. But a physician’s word is not
absolute, not even the word of a reputable and experienced
doctor. Although Dr. Lucking has administered involuntary
medication hundreds of times, his recommendations are still
subject to Sell’s rigorous analysis. See United States v.
Watson, 793 F.3d 416, 424–27 (4th Cir. 2015) (holding that
Dr. Lucking’s proposed treatment did not satisfy the second
Sell factor); United States v. Grigsby, 712 F.3d 964, 975–76
(6th Cir. 2013) (holding that Dr. Lucking’s proposed
treatment did not satisfy the Sell analysis). On remand, the
district court should evaluate Dr. Lucking’s proposed
treatment plan against the recommendations of other medical
sources in the record, as well as consider any other pertinent
evidence.
III
Involuntary medication orders are disfavored in light of
the significant liberty interest at stake. Rivera-Guerrero,
426 F.3d at 1137. The government must demonstrate by clear
and convincing evidence that all four of the Sell factors are
satisfied. Ruiz-Gaxiola, 623 F.3d at 692. Here, we conclude
the fourth factor is lacking, and the district court clearly erred
in finding that the proposed treatment was in Onuoha’s best
medical interest. The record demonstrates that the proposed
treatment includes dosages higher than are generally
recommended and that the use of a long-acting medication
does not conform to the standard of care. Although we
recognize that the district court took pains to be careful and
fair-minded about its decision, we have the firm conviction
that the factual finding that the medication is in Onuoha’s
best medical interest is error on the current record. Although
Dr. Lucking testified that the medication and dosage was
appropriate, we conclude that the district court could not
UNITED STATES V. ONUOHA 21
credit his testimony on that point without exploring and
answering the questions posed by contradictory evidence in
the record. We vacate the district court’s order and remand
on an open record for all four Sell factors for proceedings
consistent with this opinion.1
VACATED and REMANDED.
1
We do not intend to express any view about what drug and dosage may
be in Onuoha’s best medical interests, when considered against a more
complete record or analysis. However, we do intend for the district court
to address the concerns we have identified.