United States v. Darlene Fieste

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1739
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DARLENE FIESTE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 22-cr-10001 — James E. Shadid, Judge
____________________
ARGUED SEPTEMBER 7, 2023 — DECIDED OCTOBER 19, 2023
____________________
Before BRENNAN, ST. EVE, and JACKSON-AKIWUMI, Circuit
Judges.
ST. EVE, Circuit Judge. Defendant Darlene Fieste faces
charges for threatening to assault and murder two federal
judges, three former United States presidents, and the current
President. She is currently incompetent to stand trial—Fieste
struggles with a mental illness that causes her to experience
delusions. Now in custody, Fieste has refused the antipsy-
chotic medication that experts believe will restore her
2 No. 23-1739
competence. The government therefore has moved for per-
mission to involuntarily medicate her to render her compe-
tent to stand trial. The district court granted the motion, but
the order is stayed pending this appeal. For the following rea-
sons, we affirm in part, vacate in part, and remand.
I. Background
Darlene Fieste suffers from a mental illness that leads her
to hold the delusional belief that various high-ranking federal
officials have sexually abused and raped her. She has strug-
gled with her illness for more than thirty years.
Over the course of several days in December 2021, Fieste
sent a series of graphic emails and voicemails threatening to
kill federal judges and presidents, all of whom she believed
had sexually abused her. The messages began with a
voicemail on December 22, 2021, in which Fieste stated:
Judge [A] is f***in dead. I am going to f***in kill him.
Tell all the judges in your federal building in St. Louis,
that Judge [A], I’m gonna kill Judge [A]. I am f***ing
going to kill him.
Fieste left another voicemail several days later, this time tar-
geting a former president. She stated: “[President B] is a sick
f***. I’m gonna put a bullet right in his f***in head.”
Other emails and voicemails arrived in the days that fol-
lowed. Each was violent and targeted the life of a federal offi-
cial:
• “I WILL SHOOT … JUDGE [A].”
• “I WILL SHOOT … JUDGE [C].”
• “I WILL SHOOT … [PRESIDENT D].”
• “I WILL SHOOT … [PRESIDENT E].”
No. 23-1739 3
• “I WILL SHOOT … JOE BIDEN.”
A grand jury returned a seven-count indictment charging
Fieste with threatening to assault and murder two federal
judges, 18 U.S.C. § 115(a)(1)(B), threatening to kill three for-
mer presidents, 18 U.S.C. § 879, and threatening to kill the
current president, 18 U.S.C. § 871(a). Fieste was arrested on
January 20, 2022, and has remained in custody ever since.
Fieste’s conduct at her initial appearance prompted the
magistrate judge to order a competency evaluation. See 18
U.S.C. § 4241(b). Fieste was then transferred to the Federal
Medical Center (“FMC”) in Carswell, Texas, where several
months of psychiatric evaluation ensued.
FMC psychologists submitted their report to the district
court on June 7, 2022, concluding that Fieste was not compe-
tent to stand trial. They diagnosed Fieste with a “delusional
disorder” marked by paranoia and persecutory delusions,
which led her to believe numerous individuals had raped her.
FMC examiners noted Fieste’s deep fixation with the sub-
ject of her delusions. During the evaluation period, Fieste re-
ported a series of sexual assaults perpetrated by prominent
national political figures, judges, police officers, and hospital
staff. She also harbored paranoid ideas about government of-
ficials and federal law enforcement agencies, including the be-
lief that government officials had retaliated against her for
complaining about a federal judge.
Fieste’s delusions, her evaluators concluded, rendered her
incapable of assisting in her own defense. Even though Fieste
demonstrated an understanding of court proceedings, her de-
lusions interfered with her rational grasp of the accusations
against her and her ability to communicate with her attorney.
4 No. 23-1739
FMC psychologists predicted that Fieste’s prognosis was
“poor” absent medication and treatment. They added, how-
ever, that proper treatment was substantially likely to im-
prove her condition.
After receiving the report, both parties stipulated to its
findings and the magistrate judge found Fieste incompetent
to proceed. The magistrate judge then committed Fieste to the
custody of the Attorney General to determine whether there
was a substantial probability that she could attain compe-
tency in the foreseeable future. See 18 U.S.C. § 4241(d)(1).
Over the next four months, Bureau of Prisons psychologist
Matthew Opesso performed a competency evaluation for pur-
poses of section 4241(d)(1). In his report to the court, Dr.
Opesso observed that Fieste’s delusions occupied her
thoughts, led to altercations with medical staff and other in-
mates, and were the subject of almost daily emails she sent to
FMC Carswell staff. Dr. Opesso diagnosed Fieste with “bipo-
lar I disorder, current episode manic, with mood congruent
psychotic features.” He concluded, just as the first evaluation
had, that Fieste was incompetent to stand trial because her de-
lusions heavily impaired her abilities to participate in her de-
fense and communicate with her attorneys. Dr. Opesso
opined that Fieste’s chances of attaining competency to stand
trial were poor without medical treatment.
Dr. Opesso also commented on the outcome of psychiatric
treatment that Fieste voluntarily underwent during and after
the evaluation period. During the evaluation period, Fieste
agreed to take several antidepressants and “low-dose antipsy-
chotic medication.” Dr. Opesso found these treatments inef-
fective in addressing her mood instability and delusions. Af-
ter the evaluation period concluded, Fieste started taking an
No. 23-1739 5
injectable antipsychotic, Prolixin. Dr. Opesso observed that
Fieste’s time taking the Prolixin coincided with some im-
provement in her condition. He predicted that adhering to the
medication would give her a substantial probability of attain-
ing competency.
Not long after Dr. Opesso issued his report, Fieste began
to refuse medication. The government then moved to forcibly
medicate her to restore her to competency to stand trial under
Sell v. United States, 539 U.S. 166 (2003). Before the Sell hearing,
the Bureau of Prisons conducted a separate hearing to deter-
mine if involuntary medication was appropriate under Wash-
ington v. Harper, 494 U.S. 210 (1990), which authorizes invol-
untary medication if a defendant poses a danger to herself or
others while in custody. The Bureau of Prisons concluded that
Fieste had not behaved dangerously while in custody, and so
involuntary medication was unjustified on that basis.
The court held a Sell hearing on March 20, 2023, which pri-
marily revolved around the testimony of three expert wit-
nesses. The government presented two experts: Dr. Opesso,
and Dr. Ramya Seeni, Fieste’s psychiatrist within the Bureau
of Prisons. Fieste, in turn, called a retained psychiatrist, Dr.
Michael Byrne, who had met with her for two hours to assess
her before the hearing.
At the hearing, the experts disagreed on the appropriate
diagnosis for Fieste. Dr. Opesso reiterated his earlier finding
that Fieste suffered from bipolar I disorder, current episode
manic, with mood-congruent psychotic features. Dr. Seeni
agreed. Dr. Byrne, in contrast, diagnosed Fieste with schizoaf-
fective disorder, bipolar type.
6 No. 23-1739
Notwithstanding that disagreement, the experts coalesced
around an appropriate course of treatment. Each concluded
that a long-term injectable antipsychotic medication would be
most effective in restoring Fieste to competency. Specifically,
Dr. Seeni endorsed Prolixin, the antipsychotic that previously
yielded significant improvement in Fieste. Dr. Seeni added
that another anti-psychotic, Seroquel, might be an appropri-
ate alternative, but that it would require a higher dosage than
Fieste had agreed to take. Dr. Byrne agreed that Prolixin was
“one of several appropriate medications.” No expert, how-
ever, discussed a specific dosage of Prolixin besides acknowl-
edging that identifying an effective dosage was a “trial-and-
error process.”
The experts further agreed that the medications they rec-
ommended carried potential side effects that could require
additional medication to control. Those side effects included
constipation, dry mouth, tremors, stiffness, shakes, anxiety,
GI distress, weight gain, restlessness, short- and long-term in-
voluntary muscle movements, cardiac effects, and even death.
To address them, Dr. Seeni recommended Ativan, an anti-
anxiety medication Fieste had previously taken to abate the
“body-locking symptoms” she was experiencing. Dr. Byrne
cautioned that Ativan had potentially addictive effects, but
agreed that it would address certain side effects in limited cir-
cumstances.
The experts opined that the likelihood Fieste could attain
competency for trial depended on her diagnosis. Dr. Opesso
testified that “the literature” suggested if Fieste had bipolar
disorder, there was an “almost 100 percent” chance she would
regain competency; if Fieste suffered from delusional disor-
der, chances dropped to 73 to 87 percent; if she had
No. 23-1739 7
schizoaffective disorder, chances ranged from 76 to 81 per-
cent; and if she had schizophrenia, chances were “about 76
percent.” Dr. Seeni testified that bipolar disorder carried a
“good” prognosis, but the chances of success dropped to be-
tween 32 and 72 percent if Fieste had schizoaffective disorder.
Although Dr. Byrne declined to provide exact estimates, he
indicated that the prognosis was “much poorer” if Fieste suf-
fered from schizoaffective disorder than if she suffered from
bipolar disorder. Despite the experts’ varied estimates, all
agreed that Fieste’s delusions were unlikely to subside com-
pletely, even with treatment.
The parties submitted briefs after the hearing. The govern-
ment also submitted a proposed order authorizing it to med-
icate Fieste involuntarily. Fieste did not specifically respond
to the government’s proposed order.
On April 13, 2023, the district court granted the govern-
ment’s motion to involuntarily medicate Fieste. The court’s
order adopted verbatim the language the government had
proposed. It reads in relevant part:
Defendant may be involuntarily medicated to restore
her competence if she does not voluntarily accept med-
ication, in accordance with Dr. Seeni’s treatment plan
and recommendation for long-acting injectable anti-
psychotic medication, along with other medications, as
outlined in her testimony and as it comports with her
best medical judgment; …
The period of treatment shall be four months from its
commencement, which may be extended upon Court
approval; …
8 No. 23-1739
If there is a change in relevant circumstances, including
changes in Defendant’s medical condition, Defendant
or the Government may move, at any time, to amend
this order[.]
Fieste promptly filed an interlocutory appeal and moved
to stay the order pending appeal. The district court granted
the motion to stay, and we granted Fieste’s motion to expedite
her appeal.
II. Analysis
Individuals have a “‘significant’ constitutionally protected
‘liberty interest’ in ‘avoiding the unwanted administration of
antipsychotic drugs.’” Sell, 539 U.S. at 178 (quoting Harper, 494
U.S. at 221). As the Supreme Court has explained, “[t]he for-
cible injection of medication into a non-consenting person’s
body represents a substantial interference with that person’s
liberty.” Harper, 494 U.S. at 229. That interference is “particu-
larly severe” in the case of antipsychotic drugs, whose pur-
pose is to alter the patient’s brain chemistry. Riggins v. Nevada,
504 U.S. 127, 134 (1992).
Accordingly, the government may forcibly medicate a de-
fendant only when an “essential” or “overriding” govern-
ment interest is at stake. Id. at 135. In Sell, the Supreme Court
held that the government’s interest in bringing a mentally in-
competent defendant to trial for serious crimes may outweigh
the defendant’s liberty interest in being free from unwanted
medication. 539 U.S. at 179. In these “rare” instances, the Due
Process Clause permits the government to medicate a defend-
ant against her will in order to render her competent to stand
trial. Id. at 179–80.
No. 23-1739 9
When the government seeks to involuntarily medicate a
defendant for this purpose, “it must meet a higher standard
to counterbalance the defendant’s right to avoid involuntary
medication.” United States v. Debenedetto, 757 F.3d 547, 552 (7th
Cir. 2014). In Sell, the Supreme Court determined that in order
to justify involuntary medication of a defendant, the govern-
ment must prove by clear and convincing evidence that: (1)
important governmental interests are at stake; (2) involuntary
medication will significantly further those interests; (3) invol-
untary medication is necessary to further those interests; and
(4) administration of the drugs is medically appropriate. 539
U.S. at 180–82; United States v. Breedlove, 756 F.3d 1036, 1040
(7th Cir. 2014).
Fieste contends that the government did not meet its bur-
den on the first and second Sell factors. Above and beyond
those shortcomings, Fieste takes issue with the specificity of
the district court’s Sell order. We address each argument in
turn.
A. Sell Factor One
The first Sell factor requires a court to find that “important
governmental interests are at stake.” Sell, 539 U.S. at 180. As a
general matter, the government has an important interest in
“bringing to trial an individual accused of a serious crime.”
Id.We evaluate the seriousness of an offense by looking to its
maximum statutory penalty. Breedlove, 756 F.3d at 1041;
Debenedetto, 757 F.3d at 553. Fieste faces charges for threaten-
ing to assault and murder two federal judges, three former
presidents, and the current president. See 18 U.S.C.
§§ 115(a)(1)(B), 879(a)(1), 871(a). These crimes carry
10 No. 23-1739
maximum penalties of ten years (threatening to assault and
murder federal judges) and five years (threatening to kill cur-
rent and former presidents). No one disputes these are serious
offenses within the meaning of Sell, and we agree. See United
States v. Evans, 404 F.3d 227, 238 (4th Cir. 2005) (holding a
charge under section 115(a)(1)(B) “is ‘serious’ under any rea-
sonable standard”).
Our measure of the government’s interest, however, does
not end there. Even when a defendant is charged with a seri-
ous crime, “[s]pecial circumstances may lessen the im-
portance” of the government’s interest in prosecuting her.
Sell, 539 U.S. at 180. These include the defendant’s lengthy
confinement in an institution for the mentally ill, the potential
for future confinement if the defendant regains competency,
and the amount of time a defendant already has been con-
fined while the charges have been pending. Id.; Debenedetto,
757 F.3d at 553. Unlike assessment of the seriousness of the
crime, consideration of mitigating special circumstances is a
fact-intensive inquiry. Sell, 539 U.S. at 180; Debenedetto, 757
F.3d at 553.
1. Standard of Review
We have called the first Sell factor a “purely legal issue”
that we review de novo. Breedlove, 756 F.3d at 1040. At the
same time, we recognize the Supreme Court’s directive that
courts consider the “facts of the individual case” when as-
sessing the government’s interest, particularly in the context
of a defendant’s “special circumstances.” See Sell, 539 U.S. at
180; see also Debenedetto, 757 F.3d at 553 (“In making the deter-
mination whether such special circumstances exist, the dis-
trict court must consider the facts of the individual case.”). We
review these embedded factual findings relevant to the
No. 23-1739 11
court’s legal conclusion for clear error. See Debenedetto, 757
F.3d at 552–53 (“We review the district court’s conclusions of
law de novo and its findings of fact for clear error.”); see also
United States v. Tucker, 60 F.4th 879, 886 (4th Cir. 2023); United
States v. Cruz, 757 F.3d 372, 382 (3d Cir. 2014); United States v.
Brooks, 750 F.3d 1090, 1096 (9th Cir. 2014); United States v. Dil-
lon, 738 F.3d 284, 291 (D.C. Cir. 2013); United States v. Gutierrez,
704 F.3d 442, 450 (5th Cir. 2013).
2. Burden of Proof
Everyone agrees the government shoulders the ultimate
burden of proving by clear and convincing evidence its im-
portant interest in prosecution. See Breedlove, 756 F.3d at 1040.
What is less clear, and of some consequence to this case, is
who must show that “special circumstances” sufficiently
lessen the government’s interest.
The Sixth and Third Circuits require a defendant to come
forward with evidence of her special circumstances. “While
the ultimate burden of proving an important interest in pros-
ecution always remains with the Government, [the court]
look[s] to the defendant to demonstrate that the special cir-
cumstances 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); see also Cruz, 757 F.3d at 382.
That approach sensibly balances the defendant’s and the
government’s competing incentives in Sell cases, and we
12 No. 23-1739
adopt it here. 1 Asking the defendant to come forward with
evidence of mitigating special circumstances appropriately
“recognizes the defendant’s interest in bringing [those] spe-
cial circumstances to light.” Cruz, 757 F.3d at 382. The defend-
ant not only has the best incentive to develop her individual
circumstances that undermine the government’s interest in
prosecution, but she also is in the best position to know them
in the first place. At the same time, holding the government to
a clear and convincing standard of proof on the ultimate issue
of its important interest “affords due regard to the nature of
the liberty interest at stake in forced-medication cases.” Dil-
lon, 738 F.3d at 292.
* * *
Turning to the merits, Fieste argues that two special cir-
cumstances severely diminish the government’s interest in
prosecuting her, even for serious crimes: (1) her high likeli-
hood of civil commitment if she is not prosecuted and con-
victed; and (2) the significant amount of time she will ulti-
mately spend in pretrial detention relative to her likely sen-
tence if convicted. We consider each argument in turn.
3. Civil Commitment
Fieste first contends that the high likelihood she will be
civilly committed significantly diminishes the government’s
interest in prosecuting her. See 18 U.S.C. § 4246. The civil com-
mitment statute, 18 U.S.C. § 4246, permits a district court to
commit an individual to the custody of the Attorney General
1 At oral argument, defense counsel conceded that Fieste has the bur-
den to come forward with evidence of special circumstances.
No. 23-1739 13
“[i]f, after [a] hearing, the court finds by clear and convincing
evidence that the person is presently suffering from a mental
disease or defect as a result of which [her] release would cre-
ate a substantial risk of bodily injury to another person or se-
rious damage to property of another.” In Sell, the Court ob-
served that “lengthy confinement in an institution for the
mentally ill … would diminish the risks that ordinarily attach
to freeing without punishment one who has committed a se-
rious crime.” 539 U.S. at 180. The Court did not “suggest that
civil commitment is a substitute for a criminal trial”; rather, it
held that “[t]he potential for future confinement affects, but
does not totally undermine, the strength of the need for pros-
ecution.” Id.Fieste argues for the first time on appeal that the likelihood
of civil confinement counsels against forcibly medicating her.
Despite not raising this argument during the Sell hearing, Fi-
este insists that civil commitment was “clearly broached” and
that the record is “replete with evidence” showing that Fieste
“almost certainly” will be civilly committed. We disagree on
both counts.
The parties scarcely discussed civil commitment during
the Sell proceedings. It came up twice, and only procedurally.
At the outset of the hearing, the district court asked the parties
what the “next step” was “procedurally,” if the government
failed to meet its burden under Sell. The government re-
sponded that “the next step would be to have an evaluation
done for commitment under … [section] 4246.” Defense coun-
sel agreed. Later, the government reiterated that it would seek
an evaluation under section 4246 as “alternative relief” to in-
voluntary medication under Sell. These brief procedural
14 No. 23-1739
discussions alone are insufficient to flag the issue as a mitigat-
ing circumstance.
Moreover, not one of the experts opined on Fieste’s dan-
gerousness under the civil commitment standard. In fact, the
experts expressly distanced themselves from commenting on
the issue. Dr. Opesso noted that his analysis did not focus on
Fieste’s dangerousness, underscoring that civil commitment
“would require an additional and different type of inter-
view.” Dr. Byrne likewise stressed that an assessment for dan-
gerousness “wasn’t the primary target … of the evaluation,”
and that he was “not opining to [the] standard” of civil com-
mitment.
By contrast, the parties themselves discussed civil commit-
ment in the cases on which Fieste relies. In Debenedetto, for ex-
ample, defense counsel mentioned that the likelihood of civil
commitment diminished the government’s prosecutorial in-
terest. We remanded because the district court’s order “was
silent on how th[at] special circumstance factored into its
analysis.” 757 F.3d at 553. The Sixth Circuit similarly reversed
in United States v. Grigsby because the district court “did not
specifically address [the expert’s] testimony regarding poten-
tial civil commitment under § 4246 when analyzing whether
the government’s interest in prosecution is mitigated by the
special circumstance of potential lengthy civil commitment.”
712 F.3d 964, 970–71 (6th Cir. 2013). There, too, the parties had
raised the issue of civil commitment—the government’s ex-
pert substantively discussed the likelihood of civil commit-
ment and indicated that FMC medical staff would support
civil commitment if the defendant was not forcibly medicated
for trial. Id. The throughline in these cases is that the district
No. 23-1739 15
court erred because it failed to address a topic the parties had
themselves presented. That was not the case here.
We disagree with Fieste that the district court was obliged
to consider the likelihood of civil commitment regardless of
whether she raised it. Sell instructs no differently. Although
the Sell Court held that district courts “must consider the facts
of the individual case in evaluating the Government’s interest
in prosecution,” that mandate does not relieve defendants of
the duty to bring those facts to light in the first place. 2 See 539
U.S. at 180.
Of course, once a defendant raises civil commitment (or
any other special circumstance), the district court must con-
sider it. But here the court had nothing to address and so com-
mitted no error. 3 See Dillon, 738 F.3d at 287 (finding no error
2 Indeed, it is not uncommon for defendants to bear the burden of
raising affirmative defenses they wish to assert. See Walsh v. Mellas, 837
F.2d 789, 799 (7th Cir. 1988) (“[A]ffirmative defenses upon which the de-
fendants bear the burden of proof … may be deemed as waived if not
properly and timely presented before the district court.”).
3 To the extent Fieste asks us to consider her forfeited argument on
appeal, we find no plain error. United States v. Macias, 927 F.3d 985, 989
(7th Cir. 2019). Fieste has not shown that the district court’s failure to an-
alyze the possibility of civil commitment had “an effect on h[er] substan-
tial rights—that is, a ‘reasonable probability that, but for the error, the out-
come of the proceeding would have been different.” United States v. Smartt,
58 F.4th 358, 362 (7th Cir. 2023) (quoting Molina-Martinez v. United States,
578 U.S. 189, 194 (2016)). It is far from clear from the underdeveloped rec-
ord that Fieste would face civil commitment. Further, the Bureau of Pris-
ons concluded that involuntary medication under Harper was unjustified
because Fieste did not present a danger to herself or others while in cus-
tody, a finding that “suggest[s] that it is far from certain that [Fieste]
16 No. 23-1739
where the defendant “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”); United
States v. Gillenwater, 749 F.3d 1094, 1101 (9th Cir. 2014) (same
where “nothing in the record” suggested eligibility for civil
commitment and “none of the experts who evaluated [the de-
fendant] took a position on that issue”); Gutierrez, 704 F.3d at
450 (same, even though “[t]he district court did not even set
forth the elements required for civil commitment, much less
discuss how or why [the defendant] would satisfy them for
the remainder of his life”); United States v. Green, 532 F.3d 538,
551 (6th Cir. 2008) (same where the defendant “d[id] not ar-
gue that such circumstances exist, and neither expert indi-
cated that [the defendant] would be a candidate for civil com-
mitment”). But see United States v. Brooks, 750 F.3d 1090, 1097
(9th Cir. 2014) (holding “the district court must consider ….
the potential for and anticipated length of future civil com-
mitment” and remanding where it was “not clear from the
record that the district court conducted this inquiry”).
4. Pretrial Confinement
Fieste next argues that the government’s interest in prose-
cuting her is significantly diminished because, by the time in-
voluntary treatment restores her competence and trial
would be eligible for civil commitment.” Gutierrez, 704 F.3d at 450. Fieste
herself consistently asserted that she was not dangerous. See Dillon, 738
F.3d at 294 (reasoning that the defendant’s “consistent assertions that he
is not dangerous serve only to dilute any argument that [he] is likely to be
civilly confined”). We do not decide the civil commitment question one
way or the other today.
No. 23-1739 17
concludes, she will have spent significantly more time incar-
cerated than her expected sentence. Fieste’s lengthy stay in
pretrial detention no doubt warrants meaningful considera-
tion. Even so, that pretrial detention does not extinguish the
government’s prosecutorial interests here.
The government’s interest in prosecution is lessened when
“the defendant has already been confined for a significant
amount of time (for which he would receive credit toward any
sentence ultimately imposed).” Sell, 539 U.S. at 180 (citation
omitted). This is because a particularly long period of pretrial
confinement reduces, or even eliminates, the amount of
prison time a defendant will serve. See 18 U.S.C. § 3585(b)(1)
(“A defendant shall be given credit toward the service of a
term of imprisonment for any time he has spent in official de-
tention prior to the date the sentence commences as a result
of the offense for which the sentence was imposed.”).
That is especially true when a defendant faces a sentence
of time served. As a matter of specific deterrence, sentences of
time served diminish the government’s interest in prosecu-
tion because the defendant receives no additional period of
incarceration after her conviction. United States v. Berry, 911
F.3d 354, 363 (6th Cir. 2018) (“Where a defendant has already
served sufficient time that a guilty verdict will result only in a
sentence of time served, the deterrent effect of imprisonment
has evaporated, and the overall governmental interest in
prosecution is weakened.”).
a. Measuring Pretrial Confinement
The Sell court noted only that pretrial confinement must
be “significant” to diminish the government’s interest in pros-
ecution. Sell, 539 U.S. at 180. Circuit courts to consider the
18 No. 23-1739
issue of “significant with respect to what” have adopted dif-
ferent approaches. The Second, Fifth, and Tenth Circuits com-
pare pretrial confinement to the statutory maximum sentence
of the defendant’s accused crimes. See Gutierrez, 704 F.3d at
451, United States v. Bradley, 417 F.3d 1107, 1117 (10th Cir.
2005); United States v. Gomes, 387 F.3d 157, 160 (2d Cir. 2004).
The Fourth, Sixth, and Ninth circuits, on the other hand, use
a defendant’s Guidelines range to measure the significance of
pretrial detention under the first Sell factor. 4 See Grigsby, 712
F.3d at 973–74; White, 620 F.3d at 414; United States v. Ruiz-
Gaxiola, 623 F.3d 684, 694 (9th Cir. 2010).
We need not wade into that debate today because the gov-
ernment forfeited any argument that the statutory maximum
Fieste faces—and not her Guidelines range—should be used
to measure the significance of her pretrial detention. During
the Sell proceedings, Fieste repeatedly argued that her Guide-
lines range and expected sentence governed the pretrial-con-
finement analysis. The government never took the position
that the statutory maximum was instead the proper measur-
ing stick until it submitted its brief to this court. Nor did the
government contest the parties’ purported agreement about
Fieste’s anticipated Guidelines range. The government’s
4 The Eighth Circuit has suggested that it considers both the statutory
maximum and a defendant’s likely sentence under the Guidelines. See
United States v. Nicklas, 623 F.3d 1175, 1179 n.5 (8th Cir. 2010) (“Although
the projected Guidelines sentence is relevant to this factor, in a review at
this stage of the proceedings, we place greater weight on the statutory
maximum. We decline to rely heavily upon a ‘sentencing proceeding …
[conducted] without the benefit of a presentence report and the facts nec-
essary to conduct such a proceeding.’” (quoting United States v. White, 620
F.3d 401, 428–29 (4th Cir. 2010) (Niemeyer, J., dissenting))).
No. 23-1739 19
failure to object in the court below forfeits plenary review of
the issue on appeal. Macias, 927 F.3d at 989.
Our review is therefore limited to correcting plain error.
Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 732
(1993); Smartt, 58 F.4th at 362. Under that “stringent” legal
standard, the government must establish that (1) an error oc-
curred; (2) the error was “plain,”—i.e., obvious or clear; (3)
the error affected substantial rights; and (4) the error seriously
affected the fairness, integrity or public reputation of the pro-
ceedings. Smartt, 58 F.4th at 362 (quoting United States v.
Nance, 236 F.3d 820, 825 (7th Cir. 2000)).
The district court did not plainly err when it relied on Fi-
este’s anticipated Guidelines range to evaluate the signifi-
cance of her pretrial detention. For one thing, the disagree-
ment among the courts of appeals and the lack of controlling
precedent in our circuit prevent us from concluding that any
error by the court was “clear or obvious.” United States v. Hop-
per, 11 F.4th 561, 572 (7th Cir. 2021).
We also cannot say that the district court’s determination
seriously affected the fairness, integrity, or public reputation
of the proceedings. See Smartt, 58 F.4th at 362. Even using the
more favorable comparator of Fieste’s anticipated Guidelines
range as its point of reference, the district court correctly con-
cluded that Fieste’s pretrial detention does not by itself dis-
place the government’s interests in prosecution. No matter
the measuring stick—the Guidelines or the statutory maxi-
mum—the government prevails under Sell factor one.
b. Fieste’s Pretrial Confinement
The Court correctly noted that “the parties anticipate a
sentencing guideline range of 12 to 18 months” and that Fieste
20 No. 23-1739
will “likely face a sentence of time served” if convicted. In-
deed, Fieste’s pretrial detention threatens to nearly double her
anticipated Guidelines range by the time sentencing comes
around. At the time of oral argument, Fieste already had spent
nearly twenty months in pretrial confinement. She will spend
even more time in custody if forcibly medicated and prosecu-
tion continues. As the parties agreed, medicating Fieste to the
point of competency would consume at least four more
months. At the end of the day, it is safe to say that Fieste faces
at least thirty months in pretrial confinement.
Pretrial confinement almost two times in excess of a de-
fendant’s likely sentence undoubtedly qualifies as “signifi-
cant” for purposes of the first Sell factor. See White, 620 F.3d at
414 (“Because White will likely be entitled to credit for having
served a period of approximately 57.7 months by the time she
is tried, and if convicted, will be unlikely to be sentenced to
more than 42–51 months, we find that White has been con-
fined for ‘a significant amount of time’ in light of her likely
sentence.”). The fact that Fieste likely faces a sentence of time
served diminishes, to some extent, the government’s interest
in prosecuting her. See Berry, 911 F.3d at 363 (“The fact that
Berry will likely not receive additional time significantly un-
dercuts the government’s interest in prosecuting him.”);
Grigsby, 712 F.3d at 974 (finding that the government’s interest
was diminished under the first Sell factor where the defendant
“may remain in federal detention for a period roughly equiv-
alent to the length of any prison sentence he may ultimately
receive”).
Even so, the district court correctly recognized that a de-
fendant’s pretrial confinement “affects, but does not totally
undermine, the strength of the need for prosecution.” 539 U.S.
No. 23-1739 21
at 180; United States v. Bush, 585 F.3d 806, 815 (4th Cir. 2009)
(finding that a potential sentence of time served “alone does
not defeat the government’s interest” (quotation marks omit-
ted)). That principle is even more relevant here, where the
government has shown it has a particularly strong prosecuto-
rial interests at stake.
Fieste is charged with unquestionably violent crimes:
threatening to assault and murder two federal judges and
four presidents. She sent graphic messages promising to “put
a bullet” in the heads of these officials, and her threats did not
stand alone. Fieste formulated a plan to illegally obtain a fire-
arm, and Fieste’s treating psychiatrist testified that she be-
lieved Fieste capable of following through with her threats.
This kind of conduct undeniably undermines “the basic hu-
man need for security,” Sell, 539 U.S. at 180, and its violent
nature intensifies the government’s interests in prosecution,
see United States v. Onuoha, 820 F.3d 1049, 1055 (9th Cir. 2016);
Cruz, 757 F.3d at 387 (recognizing the government’s interest
in “preserving ‘human security’”); White, 620 F.3d at 414, 419(distinguishing violent crimes from non-violent crimes in
cases authorizing involuntary medication and noting that
“[n]ot every serious crime is equally serious”); Nicklas, 623
F.3d at 1180 (“[T]he government has a stronger interest in
bringing a defendant who threatens to murder FBI agents to
trial than it does in a case involving non-violent crime”).
It is no small matter either that Fieste directed her threats
toward public officials. In prosecuting Fieste, “the govern-
ment is seeking to protect the very integrity of our system of
government.” Gillenwater, 749 F.3d at 1101. Indeed, every
court of appeals to consider a defendant facing similar
charges has found that the government met its burden on the
22 No. 23-1739
first Sell factor. See, e.g., Gutierrez, 704 F.3d at 450–51; United
States v. Palmer, 507 F.3d 300, 303–04 (5th Cir. 2007); Dillon, 738
F.3d at 287; Evans, 404 F.3d at 238; Cruz, 757 F.3d at 386–87;
United States v. Seaton, 773 F. App’x 1013, 1017–19 (10th Cir.
2019); United States v. Springs, 687 F. App’x 672, 674 (9th Cir.
2017); United States v. Pfeifer, 661 F. App’x 618, 619 (11th Cir.
2016).
The successful prosecution of these crimes will also pro-
mote general deterrence. See Furman v. Georgia, 408 U.S. 238,
343 (1972) (per curiam) (Marshall, J., concurring) (“Our juris-
prudence has always accepted deterrence in general, deter-
rence of individual recidivism, isolation of dangerous per-
sons, and rehabilitation as proper goals of punishment.”).
Prosecuting Fieste conveys society’s condemnation of the al-
leged conduct and provides a deterrent to others from follow-
ing in her footsteps.
Several other considerations also make it important to
bring Fieste to trial. First, Fieste’s actions take place amidst an
alarming uptick in violent threats against public officials. See
Peter Simi & Seamus Hughes, Understanding Threats to Public
Officials (2023), available at https://www.un-
omaha.edu/ncite/news/2023/08/re-edit-simi-report.pdf; see
also Lisa Hagen, Violent Threats Against Public Officials are Ris-
ing. Here’s Why, NPR (Aug. 12, 2023, 5:00 AM),
https://www.npr.org/2023/08/12/1193463117/violent-threats-
against-public-officials-are-rising-heres-why. The govern-
ment’s imperative to demonstrate intolerance of political vio-
lence—which weakens our institutions of government and
undermines democracy—has rarely been higher.
Second, conviction would limit Fieste’s ability to obtain
and own a firearm, 18 U.S.C. § 922(d)(1), (g)(1), diminishing
No. 23-1739 23
her ability to carry out her threats in the future and furthering
the government’s interest in public safety. 5 See Bush, 585 F.3d
at 815 (“[T]he fact of a conviction would create certain limita-
tions on Bush’s subsequent activities, such as her ability to ob-
tain and own firearms, which may be particularly important
where, as here, Bush is charged with making threats against
federal judges.”).
Third, a conviction will likely subject Fieste to a period of
supervised release. See 18 U.S.C. § 3585. That sanction—una-
vailable in civil commitment proceedings—ensures Fieste is
subject to appropriate monitoring and allows the government
to protect the public from future crimes. See Bush, 585 F.3d at
815. We find the possibility of supervised release particularly
relevant here given Fieste’s long struggle with mental illness.
See Gillenwater, 749 F.3d at 1102 (“[T]he monitoring that ac-
companies supervised release may be especially valuable here
because Gillenwater allegedly persisted in making threats de-
spite law enforcement intervention.”). Fieste’s delusions that
myriad individuals are raping her have persisted for over
thirty years and there is no guarantee that medication will
fully abate them. Pursuing supervised release in the interest
5 We put lesser weight on this consideration given that Fieste will for-
ever be prohibited from owning firearms by virtue of the district court’s
earlier finding of mental incompetence. See 18 U.S.C. § 922(g)(4) (prohib-
iting firearm possession by “any person who has been adjudicated as a
mental defective or who has been committed to a mental institution”). A
firearm prohibition will follow Fieste regardless of the outcome of any
prosecution in this case. White, 620 F.3d at 420 (noting that the defendant’s
“commitment in the prison mental hospital forever limits her from certain
activities, such as her ability to obtain and own firearms”).
24 No. 23-1739
of public safety gives the government further reason to pros-
ecute this case.
In sum, the district court correctly concluded—even with
Fieste’s anticipated Guidelines range as its chosen measuring
stick—that Fieste’s pretrial detention is “insufficient to over-
come the government’s interest in prosecution.” We therefore
find that the government has met its burden under Sell factor
one based on the facts of this case.
B. Sell Factor Two
Fieste next challenges the district court’s finding on the
second Sell factor. To satisfy the second Sell factor, the district
court must find by clear and convincing evidence that (1) the
proposed treatment plan is substantially likely to render the
defendant competent, and (2) that the side effects are substan-
tially unlikely to significantly interfere with the defendant’s
ability to participate in the proceedings. Sell, 539 U.S. at 181;
Breedlove, 756 F.3d at 1041. We review the district court’s con-
clusion on this factor for clear error. Breedlove, 756 F.3d at 1040.
At the Sell hearing, the experts coalesced around a treat-
ment plan: long-acting injectable antipsychotic medications.
The success of that treatment plan, however, varied depend-
ing on the diagnosis, about which there was some disagree-
ment. Dr. Opesso, relying in part on scientific literature on the
subject, estimated that the chances of successful treatment
ranged from likely to nearly certain. Specifically, he opined
that if Fieste had bipolar disorder, there was an “almost 100
percent” chance that she would regain competency; if Fieste
suffered from delusional disorder, chances dropped to 73 to
87 percent; if she had schizoaffective disorder, chances ranged
from 76 to 81 percent; and if she had schizophrenia, chances
No. 23-1739 25
were “about 76 percent.” Dr. Seeni agreed that a “very high
percentage of people with Miss Fieste’s diagnosis can be re-
stored to legal competency.” On cross examination, she testi-
fied that bipolar disorder carried a “good” prognosis, but
chances of success dropped to between 32 and 72 percent if
Fieste had schizoaffective disorder. Dr. Byrne did not provide
exact numbers, but nonetheless asserted that the prognosis
was “much poorer” if Fieste suffered from schizoaffective dis-
order than if she suffered from bipolar disorder.
The district court credited Dr. Opesso’s testimony and
found that Fieste faced “at worst” a 73 percent chance of res-
toration. It therefore concluded that administering antipsy-
chotic medication was substantially likely to restore Fieste to
competency.
Fieste principally faults that conclusion for what she per-
ceives as the district court’s overreliance on generalized sta-
tistics, rather than individualized findings. The district court
(relying on Dr. Opesso’s testimony) did no such thing. To be
sure, Dr. Opesso grounded his prognoses in generalized “re-
search literature.” He confirmed that he had reviewed “mul-
tiple articles,” and that “research … suggest[ed]” the numeri-
cal estimates he provided. He prefaced those estimates, how-
ever, with the clarification that Fieste’s specific situation and
his professional judgment informed his ultimate conclusions.
He testified:
So, it’s hard to predict the exact outcome for any spe-
cific person, but I look at Miss Fieste’s case, and I com-
pare it to what does the research literature say about
effectiveness rates for competency restoration with an-
tipsychotic medication. That helps me form my opin-
ion.
26 No. 23-1739
Later, the government asked Dr. Opesso if he had other rea-
sons to believe that Fieste could be restored to competency
“beyond the literature on [the] subject.” He did. Dr. Opesso
reiterated that his personal observations of Fieste supported
his conclusion. He, along with other health professionals, had
seen “dramatic improvement” while Fieste was voluntarily
taking Prolixin. The fact that Fieste was “significantly
calmer,” “express[ed] the delusional material significantly
less often,” and had generally stopped acting on her delusions
reinforced his judgment that Fieste could be restored to com-
petency.
In other words, Dr. Opesso’s predictions were a product
of “multiple factors”: scientific literature, personal examina-
tion, and the marked improvement he observed during treat-
ment. Breedlove, 756 F.3d at 1042. That is precisely the kind of
holistic assessment the district court was entitled to credit.
The district court did not clearly err in finding the second Sell
factor satisfied. 6
C. Adequacy of the Sell Order
Finally, Fieste argues that the district court erred by im-
posing a Sell order lacking constraints on the medications and
dosages that her doctor could administer. We agree.
6 Fieste also raises the district court’s apparent failure to adequately
consider the impact of the side effects of treatment. She faults the district
court for finding that side effects could be “managed,” despite not know-
ing the specific medication regime and dosage that doctors would choose.
Because this issue relates closely to Fieste’s next argument—that the dis-
trict court erred by not specifying a dosage range in its Sell order—we take
it up in the following section.
No. 23-1739 27
The government cries waiver, primarily based on a brief
exchange during the Sell hearing. During Dr. Opesso’s testi-
mony, the district court asked about the proposed treatment
plan:
The Court: I guess what I’m asking, though, is if I find
that she should be involuntarily medicated, then do
you—are you guys asking me to decide, based upon
what I hear, what that course of treatment should be?
Or, once I’ve made that decision, that course of treat-
ment is going to belong to the experts, correct?
Government: Correct, Your Honor. Yes, we’re not ask-
ing the Court to determine dosages and things of that
nature.
The Court: Okay. Very good.
Defense Counsel: Correct.
The government views that “correct” as an agreement to a
dosage-less Sell order. A reading of the transcript does not
support that notion. The district court’s question merely
sought to confirm that its role was not to determine dosage
ranges by itself. That is, the district court correctly understood
that questions of dosages (and all medical determinations)
“belong[ed] to the experts.” There is nothing inconsistent
about agreeing that the district court should defer to the ex-
perts on the course of treatment and later arguing that the
court ultimately failed to constrain that course of treatment in
its Sell order by specifying a dosage range. Defense counsel’s
endorsement that it was “not asking the Court to determine
dosages” does not waive Fieste’s right to later challenge the
Sell order.
28 No. 23-1739
The context of the exchange further undermines the gov-
ernment’s waiver argument. Dr. Opesso is a clinical psycholo-
gist, not a psychiatrist. As the government conceded at oral
argument, he was not qualified to opine on medication. That
was the domain of the psychiatrists, who had yet to take the
stand. Waiver is not appropriate under these circumstances. 7
We thus turn to the merits, which are relatively straight-
forward. In Breedlove, we held that “the district court must in-
dicate the medication or range of medications to be adminis-
tered, the dose range and the length of treatment.” 756 F.3d at
1043. The court’s order here instructed only that Fieste be in-
voluntarily medicated “in accordance with Dr. Seeni’s treat-
ment plan and recommendation for long-acting injectable
anti-psychotic medication, along with other medications, as
outlined in her testimony and as it comports with her best
medical judgment.” Dr. Seeni’s testimony, however, failed to
address dosage. 8 The record thus stands in stark contrast from
the one we encountered in Breedlove, which “discussed [the]
treatment plan at length and left very little doubt that [the
7 The government also argues that Fieste waived the issue by failing
to raise concerns with the government-proposed Sell order. At worst, this
would amount to forfeiture—in which case we would nonetheless find
plain error, given a defendant’s significant liberty interest in avoiding for-
cible medication and our clear directive in Breedlove that Sell orders pro-
vide a dosage range. See United States v. Dridi, 952 F.3d 893, 898 (7th Cir.
2020) (“We construe waiver principles liberally in favor of the defend-
ant.”); United States v. Castaneda, 77 F.4th 611, 615 (7th Cir. 2023) (plain
error requires a clear or obvious error that affects substantial rights).
8 The government urges us to read the order as reaching back to the
dosage of Prolixin that Fieste was taking historically, meaning before she
began to refuse medication. Nothing in Dr. Seeni’s testimony suggests that
she intended to adopt those same dosages going forward.
No. 23-1739 29
defendant] would be medicated according to this plan.” 756
F.3d at 1044. The failure to mention dosage here results in an
order lacking the “high level of detail” that the Sell inquiry
demands. United States v. Chavez, 734 F.3d 1247, 1252 (10th Cir.
2013).
Additionally, a Sell order must “ensure that the prison
medical staff does not have unfettered authority to experi-
ment with … different medications.” Breedlove, 756 F.3d at
1044. The district court’s order permitting Fieste to be medi-
cated with “long-acting injectable anti-psychotic medication,
along with other medications” suggests a flexibility to adminis-
ter unspecified medication that Sell does not allow. See 539
U.S. at 181. While the district court may have intended its or-
der to encompass only those medications “outlined in [Dr.
Seeni’s] testimony” (such as those to counter side effects), the
district court should clarify that limit on the medical staff’s
discretion on remand.
We do not fault the district court for deferring to Fieste’s
treating psychiatrist when imposing its Sell order. Sell does
not demand that courts “micromanage all aspects of a defend-
ant’s treatment” and sensibly so—they are ill-equipped for
the task. See United States v. Hernandez-Vasquez, 513 F.3d 908,
917 (9th Cir. 2008). Judges, after all, are not doctors. And as
this case illustrates, identifying an effective dosage for a par-
ticular patient is inevitably a trial-and-error process in which
calibration and recalibration will inevitably occur.
But the district court must provide a dosage range based
on the expert’s recommendation or some other appropriate
evidence, whether directly in its order or by incorporating a
sufficiently detailed treatment plan. Dosage ranges, along
with the other details we recognized in Breedlove, are
30 No. 23-1739
meaningful constraints that protect defendants from the phy-
sician’s unfettered discretion to forcibly administer poten-
tially dangerous amounts of antipsychotic drugs. Breedlove,
756 F.3d at 1043–44; see also Evans, 404 F.3d at 241 (“To ap-
prove of a treatment plan without knowing the proposed
medication and dose range would give prison medical staff
carte blanche to experiment with what might even be danger-
ous drugs or dangerously high dosages of otherwise safe
drugs and would not give defense counsel and experts a
meaningful ability to challenge the propriety of the proposed
treatment.”); see also Hernandez-Vasquez, 513 F.3d at 917.
To be clear, we do not expect district courts to pin down
with certainty a specific dose of a medication for a particular
defendant. Rather, the dosage range that the district court im-
poses should be “broad enough” to give physicians reasona-
ble latitude to properly treat the defendant and respond to
changes in her condition. Hernandez-Vasquez, 513 F.3d at 917;
see also Chavez, 734 F.3d at 1254 (“[W]e are mindful of the bal-
ance we must strike between the judicial oversight necessary
to protect defendants’ constitutional rights and the need of
prison medical staff to retain a degree of flexibility in order to
provide effective treatment.”). Additionally, nothing forbids
the government or the defendant from moving to alter or
amend a court’s Sell order as things change. But here, the
court’s order does not meaningfully limit Fieste’s treatment
within a specified dosage range. We therefore vacate and re-
mand for further proceedings.
III. Conclusion
In sum, we affirm the district court’s conclusions that the
government has important interests at stake in prosecuting Fi-
este, and that involuntarily medicating Fieste will
No. 23-1739 31
significantly further those interests. The district court need
not reconsider these issues on remand. But because the dis-
trict court’s order did not include a dosage range, we vacate
the order and remand for the limited purpose of resolving
that issue.
One final note. We expedited Fieste’s appeal, and we ask
that the district court act with similar alacrity on remand. If
convicted, Fieste will likely have spent nearly twice the length
of her anticipated Guidelines range sentence in custody. All
proceedings should be expedited to avoid prolonging Fieste’s
pretrial detention any longer than absolutely necessary.
For the foregoing reasons, the district court’s Sell order is
AFFIRMED in part, VACATED in part, and REMANDED.
We granted the request to expedite the appeal. We exercise
our authority to expedite the issuance of the mandate and ad-
just the hearing deadlines. Fed. R. App. P. 35(c), 40(a), 41(b);
see, e.g., Boucher v. Sch. Bd. Of Sch. Dist. of Greenfield, 134 F.3d
821, 829 (7th Cir. 1998). The mandate shall issue seven days
after the date this opinion is issued. A petition for panel or en
banc rehearing must be filed within seven days after the issu-
ance of this opinion. A petition for rehearing shall stay issu-
ance of the mandate until disposition of the petition. If the pe-
tition is denied, the mandate shall issue immediately upon de-
nial.