United States v. Basit Sheikh

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4616
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BASIT JAVED SHEIKH, a/k/a Abdul Basit,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:13-cr-00305-BO-1)
Argued: May 12, 2016 Decided: June 1, 2016
Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished opinion. Judge Shedd wrote the opinion
in which Judge Wilkinson and Judge Motz joined.
ARGUED: Joseph Bart Gilbert, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Phillip
Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara,
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. John Stuart Bruce,
Acting United States Attorney, Jennifer P. May-Parker, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
SHEDD, Circuit Judge:
Based on his alleged attempt to join al-Nusrah Front, a
foreign terrorist organization designated by the Secretary of
State as an alias for the terrorist group al-Qa’ida, the United
States charged Basit Javed Sheikh in a single-count indictment
with violating 18 U.S.C. § 2339B. 1 After Sheikh underwent two
separate pretrial competency examinations, the district court
concluded that he is incompetent to stand trial and ordered him
hospitalized to attempt competency restoration. Thereafter,
based on Sheikh’s psychiatric evaluation and refusal to
cooperate with treatment, the United States moved for permission
to involuntarily medicate him to restore competency. In
accordance with Sell v. United States, 539 U.S. 166 (2003), the
court conducted a hearing on the United States’ motion, during
which three medical experts testified. The court thereafter
determined that involuntary medication is appropriate, but it
stayed the order pending Sheikh’s anticipated interlocutory
appeal, which is the matter now before us. For the following
reasons, we affirm.
1Section 2339B(a)(1) provides in pertinent part: “Whoever
knowingly provides material support or resources to a foreign
terrorist organization, or attempts or conspires to do so, shall
be fined under this title or imprisoned not more than 20 years,
or both. . . .” The statute was amended in 2015 to change the
statutory maximum from 15 to 20 years, but Sheikh was indicted
in 2013, and he faces a 15-year statutory maximum.
3
I
The parties agree that Sheikh suffers from schizophrenia
and is incompetent to stand trial unless he is medicated. “The
question of when the government may involuntarily administer
psychotropic drugs to a defendant for the purpose of rendering
him competent to stand trial entails a difficult balance between
the defendant’s interest in refusing mind-altering medication
and society’s interest in bringing the accused to trial. The
Supreme Court recognized the weighty concerns on both sides of
this balance in Sell, noting that while individual defendants
possess a significant constitutionally protected liberty
interest in avoiding the unwanted administration of
antipsychotic drugs, so too does the government possess an
important interest in protecting through application of the
criminal law the basic human need for security.” United States
v. Chatmon, 718 F.3d 369, 373 (4th Cir. 2013) (internal
punctuation altered).
To resolve this question, courts apply a four-part test
established by Sell. Under this test, the government must prove
each of the following: (1) important governmental interests are
at stake and special circumstances do not sufficiently mitigate
4
those interests; 2 (2) involuntary medication will significantly
further these interests by making it substantially likely to
render the defendant competent to stand trial and substantially
unlikely to have side effects that will interfere significantly
with the defendant’s ability to assist counsel in conducting a
trial defense; (3) involuntary medication is necessary to
further these interests and less intrusive means are unlikely to
achieve substantially the same results; and (4) the
administration of drugs is medically appropriate and in the
defendant’s best medical interests in light of his medical
condition. Sell, 539 U.S. at 180-81.
We have previously recognized that Sell orders “are a tool
that must not be casually deployed, for forced medication is a
serious intrusion upon the integrity of the individual and the
effects of such medication upon body and mind are often
difficult to foresee.” Chatmon, 718 F.3d at 374. To minimize the
risk of an erroneous Sell decision, “we have set a deliberately
high standard for the government to satisfy before it may
forcibly medicate solely to render an inmate competent to stand
trial.” United States v. Watson, 793 F.3d 416, 420 (4th Cir.
2“While
the ultimate burden of proving an important interest
in prosecution always remains with the Government, we look to
the defendant to demonstrate that the special circumstances of
his case undermine the Government’s interest once it is
established that he stands accused of a serious crime.” United
States v. Mikulich, 732 F.3d 692, 699 (6th Cir. 2013).
5
2015). Thus, when an issue involves fact-finding by the district
court, we require the government to prove facts by clear and
convincing evidence. Id. Additionally, we have emphasized that
in evaluating the government’s case for involuntary medication
under Sell, the focus must be specifically directed on the
defendant: i.e., the test is “not whether a proposed treatment
plan is likely to work in general, but whether it is likely to
work as applied to a particular defendant.” Id. at 425.
Because the first Sell factor involves a legal question, we
review the district court’s ultimate decision on that factor de
novo and any subsidiary factual determinations for clear error.
United States v. White, 620 F.3d 401, 410 (4th Cir. 2010). We
review the remaining three Sell factors – which are factual in
nature - for clear error. Id.
II
At the Sell hearing, the United States presented three
witnesses, each of whom was qualified as an expert: Dr. Brianna
Grover, Dr. Angela Walden-Weaver, and Dr. Alton Williams. 3
Generally speaking, these witnesses testified that Sheikh
suffers from schizophrenia, his condition will likely
3At the time of their evaluation of Sheikh, Dr. Walden-
Weaver was a forensic psychologist at FMC-Butner, Dr. Williams
was an FMC-Butner staff psychiatrist, and Dr. Grover had a
Masters degree in clinical psychology and was engaged in an
internship at FMC-Butner as part of her doctoral education.
6
deteriorate over time without treatment, his lack of cooperation
has hampered attempts to treat him, and he should be
involuntarily medicated with anti-psychotic medication. The
United States also introduced the 15-page forensic evaluation
prepared by these witnesses, which detailed their diagnosis of
Sheikh, their attempts to treat him, and their recommendation of
involuntary medication. Sheikh cross-examined the United States’
witnesses but did not present any other witnesses.
In the Sell order, the district court began its analysis by
summarizing the witnesses’ testimony and explaining the
controlling legal principles. The court then prefaced its
application of the Sell test by noting that the “crux of this
case is whether the government has a sufficiently important
interest in prosecuting Mr. Sheikh such that interference by
forced medication with his constitutionally protected liberty
interest is justified, as measured against any special
circumstances weighing against the asserted important
governmental interests in bringing him to trial.” J.A. 149.
Addressing the first Sell factor, the court found that the
crime charged is serious because it involves terrorism and, if
convicted, Sheikh faces a 15-year maximum sentence. The court
thus held that “there is no doubt of the government’s important
interest in bringing Mr. Sheikh to trial.” Id. at 149-50. The
court then correctly recognized that special circumstances can
7
mitigate the United States’ important interest, and it
considered the fact that Sheikh had been in custody for
approximately 23 months. The court noted that 23 months “is not
an insignificant amount of time in custody” as a general matter,
but it found that 23 months “is not significant in light of . .
. the estimated sentences” Sheikh faces if convicted. Id. at
151.
The court further considered as a special circumstance the
fact that Sheikh would likely be recommended for involuntary
civil commitment under 18 U.S.C. § 4246 if involuntary
medication was not ordered. 4 Noting, for that reason, that the
chance that Sheikh would be released into the community and the
United States would lose its ability to prosecute him is
“minimal,” J.A. 151, the court concluded that the possibility of
civil commitment weighs against the United States’ prosecution
interest. However, the court also concluded that the civil
commitment possibility “alone does not sufficiently mitigate
that interest, particularly given the nature of the charges
here.” Id. at 152.
Turning to the second Sell factor, the court found that the
record “convincingly demonstrates” that the United States proved
4Dr. Walden-Weaver testified that if Sheikh is not
medicated, she would recommend his evaluation for § 4246 civil
commitment.
8
that the administration of the drugs would be substantially
likely to render Sheikh competent to stand trial and that the
drugs were substantially unlikely to have side effects that
would significantly interfere with his ability to assist in his
own defense. J.A. 152. The court pointed to Dr. Williams’
testimony that antipsychotic drugs, including injectable Haldol,
are the “normal course of treatment for psychotic disorders,
specifically schizophrenia, and enjoy high rates of success.”
Id. The court acknowledged that it is “impossible to predict the
occurrence of side effects with 100% accuracy,” but it noted
that Dr. Williams’ testimony “established that the side effects
are rare and most are treatable.” Id. The court further stated
that “the experts at FMC-Butner . . . reported several
contingency plans to address any side effects that arise,
including decreases in medication dosage, use of adjunctive
medications to manage side effects, or treatment with
alternative antipsychotic medication.” Id.
Regarding the third Sell factor, the court found that the
United States proved that involuntary medication is necessary to
further its interests and less intrusive means are unlikely to
achieve substantially the same results. The court credited Dr.
Williams’ testimony that Sheikh’s inability and/or unwillingness
to communicate with anyone at the hospital, including his
therapists, made alternative treatments unlikely to be
9
effective. The court also found that medication is the most
effective treatment for schizophrenia, but Sheikh has refused to
take medication voluntarily.
Finally, on the fourth Sell factor, the court found that
the United States proved that its proposed involuntary treatment
is medically appropriate. The court acknowledged that different
antipsychotic drugs may have different side effects and
different success rates, but it credited Dr. Williams’ testimony
that antipsychotics are a typical treatment for schizophrenia
and that Haldol was medically appropriate in Sheikh’s case. As
the court explained: “The rates of side effects testified to by
Dr. Williams do not make administration thereof medically
inappropriate, particularly given the expert testimony that
established that any adverse side effects that arise would be
promptly treated or addressed with medication changes.” J.A.
154. The court also specifically addressed the individualization
of the protocol to Sheikh, discussing Dr. Williams’ testimony
that Haldol was the most appropriate drug because Risperdol,
which has advantages, requires ongoing laboratory testing to
which Sheikh will not consent.
Having thus concluded that the United States met its burden
under Sell, the court ordered involuntary medication with
conditions tailored to Sheikh’s case. As noted, the court stayed
its order to permit Sheikh to pursue this appeal.
10
III
In challenging the Sell order, Sheikh contends that the
government failed to establish three of the four Sell factors. 5
Considering the factors out of order, we initially reject
Sheikh’s contention that the government failed to meet its
burden of proving the second and fourth factors by clear and
convincing evidence. Based on our careful review of the parties’
arguments and the record, we discern no clear error in the
district court’s findings that (1) involuntary medication will
significantly further the United States’ prosecution interests
by making it substantially likely to render Sheikh competent to
stand trial and substantially unlikely to have side effects that
will interfere significantly with the his ability to assist
counsel in conducting a defense and (2) the administration of
drugs is medically appropriate and in his best medical interests
in light of his medical condition. 6 The court applied the proper
5Sheikh
does not challenge the district court’s finding on
the third factor – i.e., involuntary medication is necessary to
further the United States’ interests and less intrusive means
are unlikely to achieve substantially the same results. See
Brief for Appellant, at 19 (“The government has failed to
establish three of the four prongs required by Sell.”).
6The
United States notes in its brief that after the Sell
hearing, prison medical staff administered two separate
emergency doses of medicines because of Sheikh’s incoherent
yelling, acute agitation, and resistance to a scheduled cell
(Continued)
11
legal principles and adequately explained its findings, which we
believe are supported by the record. See Concrete Pipe and
Prods. of Cal., Inc. v. Construction Laborers Pension Trust for
S. Cal., 508 U.S. 602, 623 (1993) (explaining that the clearly
erroneous standard “is significantly deferential, requiring a
‘definite and firm conviction that a mistake has been
committed’”); Chatmon, 718 F.3d at 375 (explaining that a
district court commits clear error if it takes an erroneous view
of the controlling legal standard or makes findings without
properly taking into account substantial contrary evidence).
We now turn to the first Sell factor. Sheikh correctly does
not contest the district court’s determination that the United
States has an important interest in prosecuting him. In Sell,
the Court stated that the government’s “interest in bringing to
trial an individual accused of a serious crime is important,”
539 U.S. at 180 (emphasis added), and we have previously
recognized that “the central consideration” when determining
whether a particular crime is serious enough to satisfy this
factor is the maximum penalty authorized by the applicable
statute, Chatmon, 718 F.3d at 374. Although we have not
rotation. According to the United States, in both instances
Sheikh’s mental state partially improved, and no immediate side
effects were apparent.
12
announced a “hard and fast rule,” our precedent establishes that
a crime carrying a statutory maximum of 10 years or more is
“serious” in this context. White, 620 F.3d at 410. Sheikh faces
a statutory maximum of 15 years, which unquestionably makes his
crime serious for purposes of the Sell test.
In light of the United States’ important prosecutorial
interest, Sheikh argues that the district court erred by failing
to conclude that the possibility of his civil commitment under
§ 4246 is a special circumstance that negates the United States’
interest. As Sheikh explains, he “faces the potential of
indefinite commitment, functionally a life sentence, through
civil commitment proceedings.” Brief for Appellant, at 25. For
this reason, Sheikh asserts that the United States “need not be
concerned that [he] will be released to the public.” Id. Sheikh
further asserts that the United States does not need a
conviction against him to demonstrate the seriousness of the
crime or to deter others because “[m]uch publicity has resulted
from the government’s prosecutions throughout the United States
of others who have attempted to travel to Syria and Iraq based
on their distorted interpretation of the Islamic faith.” Id. at
26.
The Sell Court held that courts “must consider the facts of
the individual case in evaluating the Government’s interest in
prosecution. Special circumstances may lessen the importance of
13
that interest.” 539 U.S. at 180. Moreover, the Court recognized
that the possibility of civil commitment may lessen the
government’s interest in prosecution, noting that 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.
Continuing, however, the Court explained: “We do not mean to
suggest that civil commitment is a substitute for a criminal
trial. The Government has a substantial interest in timely
prosecution. And it may be difficult or impossible to try a
defendant who regains competence after years of commitment
during which memories may fade and evidence may be lost. The
potential for future confinement affects, but does not totally
undermine, the strength of the need for prosecution.” Id.
The district court concluded that the possibility of civil
commitment weighs against the United States’ prosecution
interest, but that possibility “alone does not sufficiently
mitigate that interest, particularly given the nature of the
charges here.” J.A. 152. In making this determination, the court
tended towards the assumption that Sheikh will be civilly
committed if he is not involuntarily medicated, noting there is
“minimal” chance that he would be released into the community or
that the government would lose its ability to prosecute him.
14
J.A. 151. Sheikh similarly frames his argument, confidently
asserting that because of the possibility of civil commitment,
the United States “need not be concerned that [he] will be
released to the public.” Brief of Appellant, at 25. 7 However,
whether Sheikh is likely to meet the requirements for civil
commitment if he is not involuntarily medicated is a matter that
has yet to be litigated, and the record before us understandably
does not provide much guidance to predict the outcome of such a
determination. See generally Mikulich, 732 F.3d at 699 (“A
defendant is not required to manifest an absolute certainty of
future civil confinement in order to undermine the Government’s
interest in prosecution. However, this does not mean that
uncertainty will carry the day.”) (emphasis in original).
Even if we assume for purposes of our decision that there
is a fair possibility of Sheikh being civilly committed if he is
not involuntarily medicated, we conclude that the United States’
prosecutorial interest is not sufficiently mitigated to preclude
involuntary medication. In White, we stated that in considering
the special circumstances issue, one pertinent factor is the
“nature of the crime,” and “[n]ot every serious crime is equally
serious.” 620 F.3d at 413, 419. In addition to the fact that
Sheikh faces a 15-year statutory maximum, which is a significant
7Atoral argument, Sheikh’s counsel stated that he is
confident Sheikh will, in fact, be civilly committed.
15
punishment, we find that the United States has a particularly
strong interest in prosecuting this case based on the nature of
the crime charged.
“[T]he Government’s interest in combating terrorism is an
urgent objective of the highest order.” Holder v. Humanitarian
Law Project, 561 U.S. 1, 28 (2010). “Terrorism, whether real or
perceived, threatens our need for security,” United States v.
Onuoha, --- F.3d ---, --- (9th Cir. 2016), and “[t]he real
risks, the real threats, of terrorist attacks are constant and
not likely soon to abate,” Boumediene v. Bush, 553 U.S. 723, 793
(2008). The pertinent criminal statute - § 2339B - represents
“the considered judgment of Congress and the Executive that
providing material support to a designated foreign terrorist
organization — even seemingly benign support — bolsters the
terrorist activities of that organization.” Holder, 561 U.S. at
36.
Given the importance of the United States’ interest in
prosecuting Sheikh, we cannot agree with Sheikh that his
possible civil commitment is sufficient to override that
interest. Sheikh is certainly correct that if he is civilly
committed, he would not be released into the community. Although
that fact serves one aspect of the United States’ prosecutorial
interest, there is a more significant aspect that makes Sheikh’s
trial important. Specifically, Sheikh’s prosecution for the
16
alleged conduct “conveys a message about its seriousness and its
consequences.” United States v. Bush, 585 F.3d 806, 815 (4th
Cir. 2009); see also Onuoha, --- F.3d at --- (“[G]eneral
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.”). Sheikh attempts to downplay this interest,
arguing that the United States has prosecuted other individuals
for similar attempts to support terrorist organizations.
Regardless of any other similar prosecutions the United States
may have conducted, we are not persuaded that those prosecutions
diminish the importance of this one.
IV
We recognize that involuntarily medicating a defendant for
trial competency purposes is a “drastic resort,” White, 620 F.3d
at 422, and the instances in which such treatment is permissible
“may be rare,” Sell, 539 U.S. at 180. Given the importance of
the United States’ interest in prosecuting this case, the
evidentiary record presented, and the district court’s careful
fact-finding, we conclude that this is one of those instances.
Accordingly, we affirm the Sell order.
AFFIRMED
17