United States v. Simon Dillon , 738 F.3d 284 ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 24, 2013 Decided December 24, 2013
No. 13-3044
UNITED STATES OF AMERICA,
APPELLEE
v.
SIMON A. DILLON,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cr-00012-1)
Christopher M. Davis, appointed by the court, argued the
cause for appellant. With him on the briefs was Mary E.
Davis, appointed by the court.
David B. Goodhand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney, and Elizabeth Trosman,
G. Michael Harvey, and Fernando Campoamor-Sanchez,
Assistant U.S. Attorneys.
Before: KAVANAUGH and SRINIVASAN, Circuit Judges,
and EDWARDS, Senior Circuit Judge.
2
EDWARDS, Senior Circuit Judge: This appeal contests the
District Court’s order authorizing the Government to
medicate Defendant-Appellant Simon Dillon, by force if
necessary, for the sole purpose of rendering him competent to
stand trial. We review this matter with a sobering awareness
that requiring a person to take unwanted psychotropic
medication entails a grave deprivation of a liberty interest
protected by the Due Process Clause. See Washington v.
Harper, 494 U.S. 210, 221 (1990) (noting that an individual
“possesses a significant liberty interest in avoiding the
unwanted administration of antipsychotic drugs”).
Our decision is largely controlled by Sell v. United States,
where the Supreme Court held that the Government may, on
“rare” occasions, forcibly medicate a defendant to restore his
competency. 539 U.S. 166, 180 (2003). But to do so, the
Government must establish, inter alia, (1) that the
Government has an “important” interest in the prosecution
that is undiminished by special circumstances and (2) that the
proposed medication will “significantly further” this
important interest. Id. at 180-81. The Government contends
this case is one of the “rare” instances contemplated by Sell.
Dillon, who has a history of mental illness, was indicted
for threatening the President in violation of 18 U.S.C. § 871.
The District Court found him incompetent to stand trial and,
upon the Government’s motion for involuntary medication,
conducted a Sell hearing in April 2013. The District Court
determined that the Government carried its burden of
establishing “that the Sell standards have been met and that
involuntary medication is appropriate and necessary.” United
States v. Dillon, No. 12-CR-12 (JDB), 2013 WL 1859289, at
*1 (D.D.C. May 3, 2013). This appeal followed.
3
Dillon argues that the District Court erred in failing to
consider whether the possibility of his being civilly confined
undermines the importance of the Government’s prosecutorial
interest under the first Sell factor. Br. of Appellant at 21-29.
Dillon also argues that the District Court erred in neglecting
to weigh that he is not a dangerous individual, a fact that he
contends should be relevant because it diminishes the
Government’s interest in his prosecution. Id. at 18-21. Finally,
Dillon contends that certain of the District Court’s findings
concerning his diagnosis were clearly erroneous. Id. at 29-43.
We reject Dillon’s arguments and affirm. First, given the
record in this case, we find no merit in Dillon’s claim that the
District Court committed reversible error in failing to consider
the prospect that he might face civil confinement. Dillon did
not argue to the District Court, as he does now, that he was
likely to be civilly confined and that his probable confinement
constituted a “special circumstance” weakening the
Government’s interest in prosecution. Dillon thus forfeited the
argument, and any claim to plain error is thwarted by Dillon’s
repeated assertions that he is not dangerous, which undercut
the likelihood that Dillon will be civilly confined. See 18
U.S.C. § 4246(d) (authorizing confinement only upon a
showing that an individual’s “release would create a
substantial risk of bodily injury to another person or serious
damage to property of another” (emphasis added)); D.C.
CODE § 21-545(b)(2) (authorizing commitment only if a
person is “likely to injure himself or others if not committed”
and requiring the “least restrictive alternative consistent with
the best interests of the person and the public” (emphasis
added)). Second, even if Dillon is correct that he is not
dangerous apart from allegedly threatening the President with
bodily harm, this fact by itself would not render unimportant
the Government’s interest in prosecuting him for a serious
and dangerous crime. Finally, we hold that the District
4
Court’s factual findings have a sound evidentiary basis and
are not clearly erroneous.
I. BACKGROUND
Dillon, who has been repeatedly hospitalized for his
mental illness, was indicted under 18 U.S.C. § 871 for
threatening to inflict bodily harm upon the President. On
December 10, 2011, he allegedly sent an e-mail to a United
States Secret Service agent from a location three blocks away
from the White House that stated that “no harm” would come
to the President if he met with Dillon and agreed to “meet the
demands of God.” If these demands went unmet, the e-mail
continued, the President would “get the worse [sic] Christmas
present ever,” “will suffer for 30 days,” and “will wish for
death, but death will not come to him.”
The Secret Service arrested Dillon the next day.
Following his detention, the D.C. Department of Mental
Health sought his involuntary civil commitment. After an
administrative hearing on January 5, 2012, the D.C. Mental
Health Commission recommended that Dillon be committed
on an outpatient basis. Dillon contested this recommendation
before the D.C. Superior Court, which stayed the matter after
criminal charges were filed.
On January 13, 2012, eight days after the D.C. Mental
Health Commission had recommended outpatient civil
commitment, a grand jury indicted Dillon under 18 U.S.C.
§ 871. Dillon was then arrested, and, shortly thereafter, the
District Court ordered that he be committed to the care of the
Attorney General for a competency determination pursuant to
18 U.S.C. § 4241.
5
Government doctors evaluated Dillon’s competency on
three separate occasions during pretrial proceedings and
reached three distinct diagnoses. First, Drs. William J. Ryan
and Elissa R. Miller evaluated Dillon at the Metropolitan
Correctional Center. In a competency report issued in March
2012, Drs. Ryan and Miller diagnosed Dillon with
Schizophrenia, Paranoid Type. Drs. Ryan and Miller
nevertheless concluded that Dillon was competent to stand
trial, albeit with the caveat that their opinion was offered
“with less than the usual degree of psychological certainty”
because Dillon was “unable to rationally consider an Insanity
Defense to which he may be entitled.”
Second, after both parties orally moved for further
psychiatric evaluation, Dr. Heather H. Ross evaluated Dillon
at Butner Federal Medical Center (“Butner”). In an August
2012 report, Dr. Ross diagnosed Dillon with Delusional
Disorder, Grandiose Type. Dr. Ross further concluded that
Dillon’s mental illness rendered him incompetent to stand
trial because it prevented him from assisting properly in his
defense. The District Court then held a competency hearing
and, consistent with Dr. Ross’s recommendation, found
Dillon incompetent to stand trial.
Third, after the District Court found Dillon incompetent,
it ordered that he again be committed to the custody of the
Attorney General, this time for a determination of whether,
with treatment, there would be “a substantial probability that
. . . [Dillon would] attain the capacity to permit the
proceedings to go forward.” 18 U.S.C. § 4241(d)(1). Drs. Jill
R. Grant and Jill C. Volin evaluated Dillon at Butner and
authored a competency restoration study that they submitted
to the District Court in February 2013. They diagnosed Dillon
with Schizoaffective Disorder, Bipolar Type and concluded
that Dillon remained incompetent to stand trial. Drs. Grant
6
and Volin also concluded that there was a substantial
probability that Dillon could be restored to competence with
antipsychotic medication. They based their conclusion on a
number of studies estimating the rate at which psychotic
defendants are successfully restored to competency. See, e.g.,
Robert E. Cochrane et al., The Sell Effect: Involuntary
Medication Treatment Is a “Clear and Convincing” Success,
LAW & HUM. BEHAV. (2012), reprinted in Joint Appendix
(“J.A.”) 279-88; Bryon L. Herbel & Hans Stelmach,
Involuntary Medication Treatment for Competency
Restoration of 22 Defendants with Delusional Disorder, 35 J.
AM. ACAD. PSYCHIATRY & LAW 47 (2007), reprinted in J.A.
289-301. In further support of their conclusion, Drs. Grant
and Volin also pointed to Dillon’s medical history that
indicated that he had responded favorably to psychotropic
medication during past hospitalizations.
Based on their findings, Drs. Grant and Volin requested a
judicial order under Sell authorizing them to administer a
course of involuntary antipsychotic medication to restore
Dillon’s competency. Drs. Grant and Volin stated that they
sought authorization under Sell because Dillon did not meet
the criteria for forcible medication articulated in Harper. See
494 U.S. at 227 (holding that “given the requirements of the
prison environment, 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”).
Based on the February 2013 competency restoration
study, the Government moved to have Dillon forcibly
medicated. In April 2013, the District Court conducted a Sell
hearing at which Drs. Grant and Volin testified as expert
witnesses in the areas of clinical forensic psychology and
7
forensic psychiatry, respectively. Dillon also testified that a
past diagnosis of psychosis was due to behavior induced by
peyote, and that he suffered side effects in the form of
depression and numbness in his extremities after he was
administered Risperdal, an antipsychotic medication. Tr. of
Hr’g (Apr. 17, 2013) at 127-29, reprinted in J.A. 184-86.
Shortly after the hearing, the District Court issued its
Memorandum Opinion authorizing involuntary medication.
2013 WL 1859289. As relevant to this appeal, the District
Court found that the “government has an important interest in
bringing defendant to trial” that is not undermined by “special
circumstances,” id. at *3-4, and that “involuntary medication
will significantly further the government’s interest in
prosecuting defendant,” id. at *7.
This court has jurisdiction to hear this appeal under 28
U.S.C. § 1291 because an order authorizing the administration
of involuntary medication meets the “collateral order”
exception to the usual rule that pretrial orders are not
immediately appealable. Sell, 539 U.S. at 176-77.
II. ANALYSIS
The parties do not dispute that the Supreme Court’s
decision in Sell largely controls the disposition of this case.
They do not agree, however, on how the holdings of Sell
should be applied to the facts of this case. We will therefore
preface our analysis of the parties’ claims with a close reading
of Sell to determine the legal parameters that guide our
decision.
The Supreme Court’s decision in Sell relied on two of its
prior decisions – Harper and Riggins v. Nevada, 504 U.S. 127
(1992) – to formulate the constitutional prerequisites to the
8
Government’s involuntarily medicating a defendant to restore
his trial competency. Sell, 539 U.S. at 177-79. In Harper, the
Court concluded that an individual’s liberty interest in
avoiding forced medication, though “significant,” could be
overcome by the important state interest in “providing
appropriate medical treatment to reduce the danger that an
inmate suffering from a serious mental disorder represents to
himself or others.” 494 U.S. at 221, 236. It was thus
constitutionally permissible for the State of Washington to
medicate a non-consenting inmate whose mental illness
caused him to be a danger to himself or others in the prison
environment. Id. at 225-26, 236. And in Riggins, the Court
observed that, in addition to the governmental interest in
mitigating an inmate’s dangerousness, a state could forcibly
medicate a defendant for the purpose of bringing him to trial.
504 U.S. at 135 (“[T]he State might have been able to justify
medically appropriate, involuntary treatment with the drug by
establishing that it could not obtain an adjudication . . . by
using less intrusive means.”).
Relying on Harper and Riggins, the Supreme Court
prescribed a detailed, four-part inquiry for district courts to
undertake prior to authorizing involuntary medication to
restore defendants to competency:
First, a court must find that important governmental
interests are at stake. The Government’s interest in
bringing to trial an individual accused of a serious crime
is important. . . .
Courts, however, must consider the facts of the
individual case in evaluating the Government’s interest in
prosecution. Special circumstances may lessen the
importance of that interest. . . .
9
Second, the court must conclude that involuntary
medication will significantly further those concomitant
state interests. It must find that administration of the
drugs is substantially likely to render the defendant
competent to stand trial. At the same time, it must find
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, thereby rendering the trial unfair. . . .
Third, the court must conclude that involuntary
medication is necessary to further those interests. The
court must find that any alternative, less intrusive
treatments are unlikely to achieve substantially the same
results. . . .
Fourth, as we have said, the court must conclude that
administration of the drugs is medically appropriate, i.e.,
in the patient’s best medical interest in light of his
medical condition.
Sell, 539 U.S. at 180-81 (citations omitted).
In addition, the Court in Sell took pains to ensure that the
four-part inquiry it announced would not be conflated with a
Harper inquiry into whether an individual’s dangerousness
could justify the forcible administration of antipsychotic
medication. Id. at 181-82. The Court instructed that “[t]here
are often strong reasons for a court to determine whether
forced administration of drugs can be justified on these
alternative [Harper] grounds before turning to the trial
competence question.” Id. at 182. By considering Harper
grounds first, a court might obviate the need to conduct the
more difficult inquiry under Sell, and “[e]ven if a court
decides medication cannot be authorized on the alternative
10
grounds, the findings underlying such a decision will help to
inform expert opinion and judicial decisionmaking in respect
to a request to administer drugs for trial competence
purposes.” Id. at 183. Trial courts should thus “ordinarily
determine whether the Government seeks, or has first sought,
permission for forced administration of drugs on these other
Harper-type grounds; and, if not, why not.” Id.
In this case, the District Court conducted an analysis
pursuant to Sell after Drs. Grant and Volin reported that
Dillon did not meet the criteria for forcible medication
articulated in Harper. And the Government does not contend
that Dillon was a danger to himself or others while
incarcerated and, thus, should be forcibly medicated pursuant
to Harper. Given this record, the focus of our decision will be
on the dictates of Sell, not Harper.
A. Standards of Review and Proof
The Supreme Court in Sell did not prescribe a standard of
appellate review, and this circuit has yet to address the matter.
Most of our sister circuits conduct de novo review of a district
court’s holding that the Government’s interest is “important”
under the first prong of Sell, and assess a district court’s
remaining Sell findings for clear error. See United States v.
Fazio, 599 F.3d 835, 839 (8th Cir. 2010) (noting the
“overwhelming majority of courts” adopting this approach);
see also United States v. Diaz, 630 F.3d 1314, 1331 (11th Cir.
2011); United States v. Green, 532 F.3d 538, 546, 552 (6th
Cir. 2008); United States v. Hernandez-Vasquez, 513 F.3d
908, 915-16 (9th Cir. 2007) (as amended Jan. 22, 2008);
United States v. Palmer, 507 F.3d 300, 303 (5th Cir. 2007);
United States v. Evans, 404 F.3d 227, 236, 240 (4th Cir.
2005); United States v. Gomes, 387 F.3d 157, 160 (2d Cir.
2004). But see United States v. Bradley, 417 F.3d 1107, 1113-
11
14 (10th Cir. 2005) (concluding that second Sell factor, in
addition to the first, is a “legal question” to be reviewed de
novo).
We adopt the approach taken by the majority of circuits.
See Hernandez-Vasquez, 513 F.3d at 915 (following the
majority’s approach of reviewing the second Sell factor for
clear error, instead of the Tenth Circuit’s approach, because
the question of whether medicating a defendant would
“significantly further” the Government’s interest “typically
involves substantial questions of fact”). We thus review de
novo the District Court’s conclusion that the Government has
an important interest in prosecuting Dillon, and consider
whether the balance of the District Court’s findings are
clearly erroneous.
We hasten to add one qualification, however. To the
extent that the District Court’s determination under the first
prong of Sell depends on findings of fact, see Sell, 539 U.S. at
180 (“Courts . . . must consider the facts of the individual
case in evaluating the Government’s interest in prosecution.”
(emphasis added)), we review those findings under a
clear-error standard. See Evans, 404 F.3d at 236 (observing
that although the Fourth Circuit’s review under the first prong
of Sell is de novo, “review [of] any factual findings relevant to
this legal determination [is] for clear error”); see also United
States v. Mikulich, 732 F.3d 692, 696 (6th Cir. 2013).
The Supreme Court also did not establish the burden of
proof to be applied to Sell determinations. Noting the absence
of controlling authority in our circuit, the District Court
concluded that the Government was required to establish each
Sell factor under a clear and convincing standard of proof,
adopting the approach taken by other courts of appeals.
Dillon, 2013 WL 1859289, at *1 n.1 (citing United States v.
12
Bush, 585 F.3d 806, 814 (4th Cir. 2009); Green, 532 F.3d at
545 n.6). The Government has not disputed this conclusion,
and Dillon has not advocated for a higher burden.
We agree with the District Court’s approach and join our
sister circuits in holding that factual determinations under Sell
must be supported by clear and convincing evidence. See
Diaz, 630 F.3d at 1331 (“Other circuit courts that have
considered this issue uniformly concluded that in Sell cases
the government bears the burden of proof on factual questions
by clear and convincing evidence.”); United States v.
Chatmon, 718 F.3d 369, 374 (4th Cir. 2013); Fazio, 599 F.3d
at 840 n.2; Bradley, 417 F.3d at 1114; Gomes, 387 F.3d at
160. Holding the Government to a clear and convincing
standard of proof affords due regard to the nature of the
liberty interest at stake in forced-medication cases. See United
States v. White, 620 F.3d 401, 422 (4th Cir. 2010) (Keenan, J.,
concurring) (noting “the physical violence inherent in forcible
medication” and that “forcible administration of drugs
necessarily requires a substantial and degrading intrusion of
the body”).
B. The First Sell Factor
Dillon begins by challenging the District Court’s
determination under the first Sell factor that “important
governmental interests are at stake” in his prosecution. 539
U.S. at 180. A proper analysis of this first factor addresses
two distinct questions. A court must first determine whether
the charged crime is “serious,” because the Government’s
interest in a prosecution generally qualifies as “important”
when the defendant is charged with a serious crime. Id. Next,
considering the specific facts of the case before it, a court
must evaluate whether “[s]pecial circumstances . . . lessen the
importance of that interest.” Id. Sell lists two examples of
13
special circumstances: an extended period of pretrial
detention and the prospect of lengthy civil confinement. Id.
Observing that Dillon had conceded the seriousness of
his alleged offense, the District Court concluded that the
Government’s interest in prosecuting him was “important.”
2013 WL 1859289, at *3. Turning to the second part of the
analysis, the District Court considered, and rejected, Dillon’s
argument that his pretrial confinement undercut the
Government’s interest. Id. at *3-4. The District Court did not
consider the prospect that Dillon might face a lengthy civil
confinement because Dillon “did not make such an
argument.” Id. at *3 n.7. Nor did the District Court consider
any other special circumstance. Id. at *3-4.
Dillon continues to concede on appeal that the charged
crime is “serious” under Sell. Br. of Appellant at 18. In light
of Dillon’s concession, we need not wade into the debate
among our sister circuits about whether the seriousness of a
crime is measured by the statutory maximum or the likely
guideline sentence, or both. Compare United States v.
Valenzuela–Puentes, 479 F.3d 1220, 1226 (10th Cir. 2007)
(examining both the statutory maximum and the likely
guideline sentence to determine whether a crime is “serious”),
with Evans, 404 F.3d at 238 (4th Cir. 2005) (concluding that
focusing on a defendant’s probable guideline range would be
“unworkable”). However, Dillon argues that the District
Court erred by failing to consider two “special circumstances”
that he claims diminish what would otherwise qualify as an
important governmental interest in his prosecution. The first
special circumstance, he contends, is the prospect of his civil
confinement. Br. of Appellant at 21-29. The second is his own
purported non-dangerousness. Id. at 18-21. We consider each
argument in turn.
14
1. Possibility of Lengthy Confinement Resulting
from Civil Commitment
As noted above, Sell makes clear that a district court may
appropriately consider the likelihood of a defendant’s civil
confinement in determining whether to order the forcible
medication of a defendant to restore his competency to stand
trial. On this point, the Court pointed out that “[t]he potential
for future confinement affects, but does not totally undermine,
the strength of the need for prosecution.” Sell, 539 U.S. at
180. This is unsurprising because a “defendant’s failure to
take drugs voluntarily . . . may mean lengthy confinement in
an institution for the mentally ill—and that would diminish
the risks that ordinarily attach to freeing without punishment
one who has committed a serious crime.” Id. Here, the
District Court declined to analyze the issue or make a finding
concerning the likelihood of civil confinement. Dillon now
contends this was error.
To begin with, the District Court correctly concluded that
Dillon failed to raise this argument during its proceedings. In
his opposition to the Government’s motion for involuntary
medication, Dillon identified his pretrial custody and his
purported non-dangerousness as “special circumstances”
undermining the prosecutorial interest; he did not mention the
prospect of civil confinement. Def.’s Opp’n to Involuntary
Medication, reprinted in J.A. 12-21. And Dillon failed to
pursue the point during arguments before the District Court,
even though the Government mentioned the issue in its brief
and at argument. See Gov’t’s Mem. at 18, reprinted in J.A.
39; Tr. of Oral Arg. (Apr. 26, 2013) at 13-14, reprinted in
J.A. 212-13. The issue was never joined.
It is also important to note that the District Court did not
in any way foreclose Dillon from arguing the civil-
15
commitment point or from introducing evidence that his
confinement was likely. Thus, Dillon had ample opportunity
to cross-examine the Government’s witnesses and to call his
own. Tr. of Hr’g (Apr. 17, 2013) at 25, 95, 136, reprinted in
J.A. 82, 152, 193. In short, the record provides no basis for
Dillon’s statement to this court that the District Court
“foreclosed consideration” of civil commitment. See Br. of
Appellant at 27 n.8.
Under our well-established precedent, Dillon’s
civil-confinement argument was forfeited when he failed to
raise it with the District Court. See, e.g., Potter v. District of
Columbia, 558 F.3d 542, 550 (D.C. Cir. 2009) (“It is well
settled that issues and legal theories not asserted at the District
Court level ordinarily will not be heard on appeal.” (quoting
District of Columbia v. Air Fla., Inc., 750 F.2d 1077, 1084
(D.C. Cir. 1984))). Because Dillon did not argue the point
before the District Court, and because the District Court did
not address it, we generally inquire no further into the matter.
See Dyson v. District of Columbia, 710 F.3d 415, 419 (D.C.
Cir. 2013).
At oral argument before this court, however, counsel for
Dillon asked us to review the District Court’s omission for
plain error. Under Federal Rule of Criminal Procedure 52(b),
we can correct unpreserved error only when there is (1)
“error,” (2) that is “plain,” and (3) that “affects substantial
rights.” United States v. Olano, 507 U.S. 725, 732 (1993)
(alteration omitted). If all three conditions are met, we may
“notice a forfeited error, but only if (4) the error ‘seriously
affect[s] the fairness, integrity, or public reputation of judicial
proceedings.’” Johnson v. United States, 520 U.S. 461, 467
(1997) (quoting Olano, 507 U.S. at 732). See generally
EDWARDS, ELLIOTT & LEVY, FEDERAL STANDARDS OF
REVIEW ch. VIII (2d ed. 2013).
16
Sell leaves little doubt that the prospect of a defendant’s
lengthy civil confinement is a focal point of the “special
circumstances” analysis. 539 U.S. at 180. However, even if
the District Court plainly erred when it declined to analyze the
possibility of civil confinement, this omission did not affect
Dillon’s substantial rights under the third prong of Olano
because Dillon has not shown “a reasonable probability that,
but for the error claimed, the result of the proceeding would
have been different.” United States v. Dominguez Benitez, 542
U.S. 74, 82 (2004) (quotation and alteration omitted);
EDWARDS, ELLIOTT & LEVY, supra, at 105. We rest this
conclusion on the record and on Dillon’s own arguments:
First, the record as it stands offers insufficient support for the
proposition that Dillon is likely to be civilly confined (as
opposed to committed as an outpatient); and, second, Dillon’s
consistent assertions that he is not dangerous serve only to
dilute any argument that Dillon is likely to be civilly
confined. We amplify these two points below.
The record before us does not support a finding that
Dillon is likely to be civilly confined. Although the Sell Court
mentioned “civil commitment,” it is clear from the context
that the Court was concerned with the prospect of civil
confinement. See 539 U.S. at 180 (“The defendant’s failure to
take drugs voluntarily . . . may mean lengthy confinement . . .
that would diminish the risks that ordinarily attach to freeing
without punishment one who has committed a serious crime.”
(emphasis added)). The D.C. Mental Health Commission
recommended to the D.C. Superior Court that Dillon be
civilly committed on an outpatient basis. Gov’t’s Mem. at 12,
reprinted in J.A. 33. Even though this report does not appear
in the record, we know from the applicable statute that the
Commission can recommend commitment only after finding
that Dillon was “mentally ill, and because of the illness is
17
likely to injure himself or other persons if not committed.”
D.C. CODE § 21-544. But we also know that the Commission
recommended outpatient treatment, which indicates that the
Commission considered Dillon’s risk to the public at large to
be minimal. See D.C. CODE § 21-545(b)(2) (authorizing the
D.C. Superior Court to commit a mentally ill person to “the
Department or to any other facility, hospital, or mental health
provider that the Court believes is the least restrictive
alternative consistent with the best interests of the person and
the public” (emphasis added)).
Although Dillon asserts that his outpatient status will be
revoked if and when he does not take his medication, Br. of
Appellant at 26-27, the applicable statute makes clear that
revocation of an individual’s outpatient status requires a
judicial finding that “a more restrictive treatment alternative
is required to prevent the person from injuring himself or
others.” D.C. CODE § 21-548(a) (emphasis added). Simply
put, Dillon’s outpatient civil commitment does not imply that
civil confinement is probable, as there would have to be a
judicial finding by clear and convincing evidence that his
confinement is “required to prevent [Dillon] from injuring
himself or others.” Id.
Furthermore, Dillon’s own assertions critically weaken
his civil-confinement argument. Beginning with his
opposition to the Government’s motion before the trial court,
Dillon has consistently stated that he poses no significant
danger to himself or others. See Def.’s Opp’n to Involuntary
Medication at 6, reprinted in J.A. 17 (“Dillon has no history
of violence . . . .”); Tr. of Oral Arg. (Apr. 26, 2013) at 32,
reprinted in J.A. 231 (“Nobody thinks [Dillon is] particularly
dangerous to himself or others . . . .”); Br. of Appellant at 18-
19, 24, 27. Assuming that Dillon is correct that he presents, at
most, a minimal risk to himself or others, this fact would
18
make it less likely that Dillon will be confined. See 18 U.S.C.
§ 4246(d) (authorizing civil confinement when a “court finds
by clear and convincing evidence that the person is presently
suffering from a mental disease or defect as a result of which
his release would create a substantial risk of bodily injury to
another person or serious damage to property of another”
(emphasis added)); D.C. CODE § 21-545(b)(2) (“If the Court
or jury finds that the person is mentally ill and, because of
that mental illness, is likely to injure himself or others if not
committed, the Court may order the person’s commitment to
the Department or to any other facility, hospital, or mental
health provider that the Court believes is the least restrictive
alternative consistent with the best interests of the person and
the public.” (emphasis added)).
Dillon’s plain-error challenge thus fails for want of
showing a “reasonable probability” that, but for the District
Court’s failure to consider civil confinement, Dillon would
not be subject to involuntary medication. The record before us
does not offer a basis for finding that Dillon is dangerous
enough to lead to his being civilly confined (as opposed to
committed as an outpatient). See Br. of Appellant at 22
(“Obviously, the level of appellant’s dangerousness was
marginal; otherwise the D.C. Mental Health Commission
would not have recommended commitment to an outpatient
treatment program.”). And Dillon’s consistent claims that he
is not dangerous undercut the notion that a better developed
record would be any different.
2. Dillon’s Purported Non-dangerousness
Dillon argues that he is not dangerous and that this fact
undermines the Government’s interest in prosecuting him. He
further argues that because the District Court “did not believe
dangerousness should be considered at all, the matter should
19
be remanded for fact development.” Br. of Appellant at 21.
Citing other circuits’ decisions finding that a defendant’s
dangerousness is relevant, Dillon reasons that “if
dangerousness bolsters the government’s interest under Sell,
the lack thereof must have the opposite effect.” Id. at 19-20
(citing United States v. Mackey, 717 F.3d 569, 575 (8th Cir.
2013); United States v. Ruiz-Gaxiola, 623 F.3d 684, 694 n.6
(9th Cir. 2010); Gomes, 387 F.3d at 160). Dillon also presses
the obvious point that if he was dangerous he would not have
been civilly committed on an outpatient basis by the D.C.
Mental Health Commission. Id. at 22.
We first dispose of the Government’s primary rejoinder
to these arguments. The Government asserts that lack of
dangerousness can never be considered to undermine the
importance of the Government’s interest in prosecution
because the Sell framework applies only after there has been a
predicate determination that a defendant is not dangerous. Br.
for Appellee at 34-39. That is, in the Government’s view, the
Supreme Court’s suggestion that courts sequence Harper
determinations before Sell determinations necessarily implies
that all defendants who make it to a Sell hearing are, by
definition, not dangers to society. On this view, then, the Sell
framework admits consideration of dangerousness “in only
two specific contexts”: (1) when assessing the likelihood of
civil commitment and (2) when evaluating the “characteristics
of the crime and whether the sentence for that crime reflects a
legislative determination that persons who commit it typically
present a serious risk to the safety of the community.” Id. at
36-38 (internal quotation marks omitted).
The Government’s argument misapprehends the nature of
the Sell inquiry. The “result of [a] Harper hearing . . .
establishes only that [a defendant] does not pose a danger to
himself or others while confined in the institutional context.
20
[It does] not address whether [the defendant] might pose a
danger to himself or others if released.” Ruiz-Gaxiola, 623
F.3d at 694 n.6 (citation omitted). It is simply incorrect, then,
to say that a court must assume that any defendant who
reaches the Sell inquiry poses no danger to society. It may be
that some persons who pose a danger to themselves or others
while confined might also pose a danger to themselves or
others if released, but the latter does not necessarily follow
from the former. The Government has cited no meaningful
studies or other evidence to show that the two propensities are
coterminous.
More fundamentally, the Government seeks to impose a
formalism and rigidity at odds with the sensitive balancing
required by Sell in light of the significant liberty interests
implicated by forcible medication. The Supreme Court crafted
a sensitive and fact-specific inquiry, stating that “[c]ourts . . .
must consider the facts of the individual case in evaluating the
Government’s interest in prosecution.” 539 U.S. at 180. And
the examples the Court listed (pretrial and future civil
confinement) are just that – examples. Id.; see also United
States v. Grigsby, 712 F.3d 964, 969-70 (6th Cir. 2013);
White, 620 F.3d at 412.
At bottom, Dillon makes a common-sense argument: The
dangerousness of a defendant surely may affect the strength
of the governmental interest. This is indisputable. The
Government has an interest in incapacitating individuals who
endanger the public, see United States v. Weston, 255 F.3d
873, 880-82 (D.C. Cir. 2001), and thus its interest in a
particular prosecution may be stronger in the case of a
dangerous defendant than in a case that involves a defendant
who is not dangerous. The simplicity of Dillon’s argument is
attractive, but the argument is shortsighted. It is one thing to
acknowledge that the Government often has a strong interest
21
in prosecuting persons who appear to be dangerous, but it is
quite another to say that the Government’s interest in
incapacitating a dangerous defendant is necessary to the
Government’s interest qualifying as “important” under the
first Sell factor. As we observed in Weston, a bundle of
governmental interests are implicated in any given
prosecution. Id.; cf. 18 U.S.C. § 3553(a)(2) (listing three
purposes of sentencing distinct from the need to protect the
public by incapacitating a defendant, including, e.g., the need
for a sentence “to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment
for the offense”).
Dillon’s argument also fails to acknowledge that,
although a defendant’s dangerousness may be relevant to the
Government’s interest in prosecuting him, courts are
necessarily constrained in their fact-finding by the nature of
the charges for which a defendant has been indicted. This case
is a perfect example. Dillon has been charged with a crime
under 18 U.S.C. § 871 – “threat[ening] to take the life of, to
kidnap, or to inflict bodily harm upon the President of the
United States” – that is both serious and involves significant
danger. To permit a Sell hearing to focus on the underlying
criminal charges would risk converting the Sell inquiry into a
mini-trial on the merits. In other words, in response to the
Government’s request for authorization to medicate Dillon so
that he is competent to stand trial, the District Court would be
required to first adjudicate the merits of the indictment to
assess Dillon’s dangerousness. This would make little sense.
In these circumstances, this court is hard pressed to give
credit to a claim that Dillon’s alleged lack of dangerousness is
a special circumstance that meaningfully weighs against the
Government’s interest in pursuing prosecution. Dillon has
been charged with a serious and dangerous crime. The only
22
way to determine whether he is guilty beyond a reasonable
doubt, and thus dangerous as charged, is to allow the
Government to proceed with prosecution. However, Dillon is
incompetent to stand trial sans medication, so we cannot
determine his dangerousness until his competence has been
restored and there has been a trial on the merits.
We thus conclude that it is unnecessary to remand the
case for further fact-finding with respect to Dillon’s purported
non-dangerousness. The necessary implications of the
indictment in this case preclude a finding that Dillon is
harmless. The grand jury indicted Dillon for threatening to
inflict bodily harm upon the President. Indictment, reprinted
in J.A. 9-10. Even assuming that Dillon is harmless in other
respects, the District Court could not find that Dillon poses no
danger to the President without a full trial on the merits of the
criminal charges. As a result, we hold that the District Court
correctly concluded that the Government established an
important interest in prosecuting Dillon.
C. The District Court’s Remaining Findings
Dillon also argues that the District Court’s findings are
clearly erroneous. Br. of Appellant at 29-43. A trial court’s
findings of fact are entitled to a presumption that they are
correct, see Bose Corp. v. Consumers Union of U.S., Inc., 466
U.S. 485, 500 (1984), and we will displace them only if (1)
the findings are “without substantial evidentiary support or
. . . induced by an erroneous application of the law”; or if (2)
“on the entire evidence [we are] left with the definite and firm
conviction that a mistake has been committed.” Cuddy v.
Carmen, 762 F.2d 119, 124 (D.C. Cir. 1985) (quotations and
citations omitted). See generally EDWARDS, ELLIOTT & LEVY,
supra, ch. II.
23
Dillon’s principal contention, it appears, is a two-step
challenge to the District Court’s finding under the second Sell
factor – i.e., that medication is substantially likely to restore
his competency and substantially unlikely to have side effects
that will interfere with his ability to assist in his defense. First,
Dillon asserts that his diagnosis of Schizoaffective Disorder is
erroneous and that he instead suffers from Delusional
Disorder, as Dr. Ross opined. Br. of Appellant at 33-37, 42.
Second, he argues that the success rate for treating Delusional
Disorder is too low to warrant forced medication, i.e., that the
medication is not substantially likely to restore his
competency. Id. at 38-41. We find no merit in either
argument.
The District Court reasonably credited the Grant-Volin
diagnosis over the previous two because Drs. Grant and Volin
observed Dillon for a longer period than did the other doctors,
and because they had more information at their disposal. 2013
WL 1859289, at *8 n.13. None of the arguments raised by
Dillon – including that the diagnostic criteria have changed –
cause us to question the validity of Drs. Grant and Volin’s
professional judgment that Dillon suffers from
Schizoaffective Disorder, Bipolar Type. To the contrary, there
is ample evidence that Dillon is afflicted by a mood disorder,
which offers a basis to diagnose Dillon with Schizoaffective
Disorder instead of with Delusional Disorder. See, e.g., Tr. of
Hr’g (Apr. 17, 2013) at 17, 21, 30, reprinted in J.A. 74, 78,
87.
Even if Dillon were correct that he suffers from
Delusional Disorder, the District Court’s finding of a
substantial likelihood of restored competency would not be
clear error. The Cochrane Study found that 73.3% of
defendants with Delusional Order were restored to
competency. Cochrane, supra, at 7 tbl. 4, reprinted in J.A.
24
285. And, more importantly, the competency restoration study
found that Dillon would respond well to antipsychotic
medication in part because “his psychotic symptoms have
responded favorably to medication in the past.” 2013 WL
1859289, at *5 (quoting Drs. Grant and Volin’s competency
restoration study at 31).
Finally, there is no merit to the claim that the District
Court erred in finding that the medication was substantially
unlikely to have side effects that would interfere with Dillon’s
trial defense. This claim is based on Dillon’s testimony that
medication he took during a prior hospitalization made him
depressed. Br. of Appellant at 42 & n.18. But as the District
Court observed, “Dr. Volin testified that any sadness or
depression that defendant experienced was a symptom of his
mental illness, not a side effect of antipsychotic medication.”
2013 WL 1859289, at *6 (emphasis added) (citing Tr. of Hr’g
(Apr. 17, 2013) at 86-88, reprinted in J.A. 143-45).
III. CONCLUSION
For the reasons stated above, we affirm the District
Court’s order authorizing involuntary medication.