United States v. John Hardimon , 700 F.3d 940 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 11-1821, 11-2515
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JOHN M. H ARDIMON,
Defendant-Appellant.
Appeals from the United States District Court
for the Southern District of Illinois.
No. 3:10-cr-30170-MJR-1—Michael J. Reagan, Judge.
A RGUED O CTOBER 2, 2012—D ECIDED N OVEMBER 7, 2012
Before E ASTERBROOK, Chief Judge, and P OSNER and
R OVNER, Circuit Judges.
P OSNER, Circuit Judge. The defendant, a chiropractor,
pleaded guilty to defrauding health insurers and to
money laundering and was sentenced to 70 months
in prison (the bottom of the applicable guidelines
range) and to pay restitution of almost $2 million. In
his guilty plea he waived his right to appeal; but shortly
after pleading guilty he moved to retract the plea on
2 Nos. 11-1821, 11-2515
the ground that he had been taking psychotropic
drugs that had clouded his mind and made his plea
involuntary. The judge denied the motion, and the de-
fendant’s first appeal attacks the denial as erroneous.
His second appeal, which is from the part of the sentence
that orders restitution, is blocked by the appeal waiver
if we uphold the judge’s ruling with respect to the guilty
plea. The first appeal is not blocked because the waiver
was part of the guilty plea agreement that the appeal
seeks to set aside as having been involuntary. If the plea
is set aside, the entire sentence will have to be vacated,
thus including the order to pay restitution. If the plea is
not set aside, the entire sentence will stand. So in no
event will we have to consider the merits of the restitu-
tion order in this appellate proceeding.
At the guilty-plea hearing the judge asked the de-
fendant whether he was “currently under the influence
of any drugs, medicine, or alcohol,” and the defendant
answered: “prescription medications.” The judge asked
him whether “any of these medications affect your
ability to think clearly,” and the defendant answered
“no,” and also “no” to whether he had been “treated in
the past 60 days for any addictions to drugs, medicine
or alcohol of any kind.” But he answered “yes” to the
next question—whether he’d been treated in the past
60 days for “any mental disorders, mental defects, or
mental problems.” The judge asked him to explain, and
he replied that he was taking medicines for “high
anxiety, depression, adult attention hyperactivity
disorder, and depression.” At “therapeutic level?” the
judge asked, and the defendant said “I believe so, yes.”
Nos. 11-1821, 11-2515 3
The judge asked the defendant whether he thought the
drugs were working and he said, “I believe the ADHD
[attention deficit hyperactivity disorder—the disorder
that he called ‘adult attention hyperactivity disorder’]
medicine makes me concentrate more. It does cause
quite a bit of anxiety, so they have given me something
else to help the anxiety a little bit, but it [the ADHD
medicine] definitely increases my alertness.” In answer
to further questions the defendant assured the judge
that he was “thinking clearly,” “capable of making deci-
sions, serious decisions,” such as pleading guilty to the 15-
count information that the government had filed
against him, and that he had no “physical conditions or
problems that affect” his “ability to think clearly.” The
judge then proceeded with the usual questions in a
plea hearing, received the usual answers, and accepted
the plea of guilty.
Six weeks later the defendant moved to withdraw the
plea, explaining that he had been taking Prozac to treat
his mental illnesses but that a week after the plea
hearing his primary-care physician had switched him
to Lexapro and “almost immediately” he experienced
“increased alertness, awareness and attentiveness” and
realized that at the plea hearing he had been “incapable
of understanding the true nature of the charges against
him . . . and the consequences of his plea.”
The district court conducted an evidentiary hearing.
The defendant submitted the abstract of a medical study
which states that Lexapro may be a more effective treat-
ment for major depression than Prozac. Andrea Cipriani
et al., “Escitalopram Versus Other Antidepressive
4 Nos. 11-1821, 11-2515
Agents for Depression,” The Cochrane Library, Oct. 7,
2009, http://onlinelibrary.wiley.com/doi/10.1002/14651858.
CD006532.pub2/abstract (all web sites cited in this
opinion were visited on Nov. 2, 2012). He also submitted
an email from his psychiatrist saying that certain rare
side effects of Prozac, including hallucinations, could
affect a person’s “ability to think and make decisions.”
Hallucinations are also a possible, though again a rare,
side effect of Lexapro. “Drugs & Medications—Lexapro,”
W ebM D, ww w.webmd.com/drugs/drug-63990-
Lexapro.aspx?pagenumber=6. The psychiatrist noted that
in the past the defendant had reported having a “better
response to Lexapro than Prozac . . . in terms of . . . more
clear thoughts.” This is possible because although the
drugs are very similar (both are SSRIs— selective serotonin
reuptake inhibitors), people may react somewhat differ-
ently to them. Harvard Health Publications, “What
Are The Real Risks of Antidepressants?” www.
health.harvard.edu/newsweek/What_are_the_real_risks_
of_antidepressants.htm; Mayo Clinic, “Selective Serotonin
Reuptake Inhibitors (SSRIs),” www.mayoclinic.com/health/
ssris/MH00066.
The judge denied the motion to withdraw the guilty
plea, in part because the defendant had presented no
evidence that switching from Prozac to Lexapro could
have the dramatic effects he claimed it had, and in
part because at the plea hearing he had been alert and
responsive and exhibited no signs of confusion. He cer-
tainly had not been hallucinating.
He argues that the judge should have inquired more
deeply at the plea hearing into the drugs he was taking—
Nos. 11-1821, 11-2515 5
should have asked him how much of each drug he was
taking and what “effects the medications [as distinct
from the underlying mental illnesses] might have on [his]
clear-headedness.” We don’t think that such an inquiry
was required. United States v. Weathington, 507 F.3d
1068, 1073-74 (7th Cir. 2007); United States v. Rollins,
552 F.3d 739, 741-42 (8th Cir. 2009); United States v.
Lessner, 498 F.3d 185, 193-96 (3d Cir. 2007); United States v.
Savinon-Acosta, 232 F.3d 265, 269 (1st Cir. 2000); Miranda-
Gonzalez v. United States, 181 F.3d 164 (1st Cir. 1999). The
judge had already asked him whether he could think
clearly, and he had said he could, which implies that
he didn’t think his medications were affecting his ability
to think clearly. Not being a psychiatrist, the judge
could not use dosage information to infer inability to
think clearly. He would have had to require the at-
tendance of the defendant’s psychiatrist at the plea
hearing and question him about the dosages and their
actual and possible consequences. If we imposed such
a requirement we might create a situation in which a
significant fraction of criminal defendants are placed
in detention for psychiatric evaluation before being
allowed to plead guilty.
A judge is required to investigate the defendant’s
mental state if there are indications at the plea hearing or
later of an impairment that made him incompetent to
plead. The fact that a defendant seems competent when
answering the judge’s questions at the plea hearing
should not be conclusive; mental diseases, or mental
impairments brought on by psychotropic drugs, might
alter the premises of a person’s thinking rather than
6 Nos. 11-1821, 11-2515
the articulation of his thoughts or his outward ap-
pearance or manner. See American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders, Text
Revision (DSM-IV-TR) 329 (4th ed. 2000) (diagnostic
criteria for “delusional disorder” include delusion
lasting at least one month but also that “apart from
the impact of the delusion(s) or its ramifications, func-
tioning is not markedly impaired and behavior is not
obviously odd or bizarre”); Gerard H. H. Benthem et al.,
“Teaching Psychiatric Diagnostics to General Practitioners:
Educational Methods and Their Perceived Efficacy,” 31
Medical Teacher e279 (2009); Abdel-hamid Afana et al.,
“The Ability of General Practitioners to Detect Mental
Disorders Among Primary Care Patients in a Stressful
Environment: Gaza Strip,” 24 J. Pub. Health Medicine
326 (2002). General practitioners struggle to detect psychi-
atric disorders. Benthem et al., supra. Even in a discus-
sion with someone who believes he’s Napoleon, you
might find his speech lucid and (given the irrational
premise) logical, and his affect normal. See Jeanette
Hewitt, “Schizophrenia, Mental Capacity, and Rational
Suicide,” 31 Theoretical Medicine & Bioethics 63, 67-68 (2010).
A combination of deeply confused or clouded thinking
with coherent speech and a normal demeanor is rare,
however. “Delusional Disorder,” in American Psychiatric
Association, supra, at 326. (See also the diagnostic
criteria for delusion disorder, quoted above.) With the
Napoleon example we enter the realm of schizophrenia.
Mania and particularly schizophrenia do affect a patient’s
ability to perceive reality. “Schizophrenia,” PubMed Health,
Feb. 13. 2012, www.ncbi.nlm.nih.gov/pubmedhealth/
Nos. 11-1821, 11-2515 7
PMH0001925/; “Mania,” Wikipedia, http://en.wikipedia.org/
wiki/Mania. But as in our Napoleon example, the defen-
dant’s distorted thinking is likely to be apparent; “disorga-
nized speech (e.g. frequent derailment or incoherence)”
and “grossly disorganized or catatonic behavior” are
typical symptoms of schizophrenia. “Diagnostic Criteria
for Schizophrenia,” in American Psychiatric Association,
supra, at 312. Our defendant is neither manic nor schizo-
phrenic; and depression and anxiety do not present the
same risk of disordered cognition as mania or schizophre-
nia does, see “Anxiety,” Wikipedia, http://en.wikipedia.org/
wiki/Anxiety; Anxiety and Depression Association of
A m e rica, “D ep ression ,” http ://w w w .a d a a .o rg /
understanding-anxiety/depression, though they present
some risk of it, depression especially. See Terry A.
Maroney, “Emotional Competence, ‘Rational Understand-
ing,’ and the Criminal Defendant,” 43 Am. Crim. L. Rev.
1375, 1410-16 (2006).
The defendant’s focus is in any event on the drugs he
took rather than on the conditions for which the drugs
were prescribed. Such drugs can produce disor-
dered thinking, “Prozac Medication Guide,” www.
prozac.com/Pages/index.aspx; Drugs.com, “Lexapro
Side Effects,” www.drugs.com/sfx/lexapro-side-effects.
html; PubMed Health, “Dextroamphetamine and Am-
phetam ine,” www.ncbi.nlm.nih.gov/pubmedhealth/
PMH0000166/ (medication for ADHD), though the princi-
pal mental side effect of SSRIs is suicidal thinking.
These drugs are taken by millions of people, and it
can’t just be assumed from the fact that someone is
8 Nos. 11-1821, 11-2515
taking them that he can’t think straight. To make a case
for being permitted to withdraw his guilty plea when
the judge’s inquiries at the plea hearing had been
adequate and had revealed no impairment of the defen-
dant’s ability to think, the defendant needs to present
the affidavit of a qualified psychiatrist. Cf. United States
v. Jones, 381 F.3d 615, 618-19 (7th Cir. 2004); United States v.
Cruz, 643 F.3d 639, 643 (8th Cir. 2011). Such an affidavit
in this case might have described the possible effects of
Prozac and Lexapro in the dosages prescribed for the
defendant and any indications that his ability to think
had been materially impaired by the Prozac, which he
claims to have realized when he switched to Lexapro
and his mind cleared. Apparently the defendant’s
lawyer could find no psychiatrist willing to provide an
affidavit or testimony that would lay a factual basis
for a finding of incompetence to plead.
So the motion to vacate the guilty plea was properly
denied, the plea therefore stands, the waiver in the plea
bars the second appeal, and the judgment is therefore
A FFIRMED.
11-7-12