U.S. v. WHITE

Cases Affirmed Without Opinion.

KEENAN, Circuit Judge, concurring:

I write separately to emphasize the constitutional liberty interest at stake and the high proof burden that the government bears when attempting to forcibly medicate a person accused of serious crimes. In conducting the constitutional analysis mandated by Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003), these fundamental considerations are paramount.

Because of the physical violence inherent in forcible medication, the Supreme Court has held that the government bears the burden of demonstrating an "over-riding" or "essential" interest to justify such treatment of an accused. See Riggins v. Nevada, 504 U.S. 127, 134, 135, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992). In my view, the government has fallen far short of meeting this burden of proof. I reach this conclusion without attempting to ascertain the sentence that White may receive if eventually convicted of these crimes.

As the majority opinion states, White possesses a "significant liberty interest" in avoiding the unwanted administration of antipsychotic drugs. That liberty interest protects her mental, as well as physical, integrity. See Washington v. Harper, 494 U.S. 210, 229, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990). Antipsychotic drugs, however, expressly are designed to alter the mind. See id. at 228, 110 S.Ct. 1028. Such drugs reset the brain's chemical balance, and affect the way a person perceives and interacts with the world. Id. at 229, 110 S.Ct. 1028. Although the intended effect is therapeutic, these drugs can cause serious and sometimes irreversible side effects. Id.

In addition, the forcible administration of drugs necessarily requires a substantial and degrading intrusion of the body. Here, the government proposes to have five medical personnel immobilize the defendant, inject her with a drug that she has not consented to take, and then repeat this procedure about every two weeks, from the time that her appeals in this case conclude through the end of her trial.

I accept the district court's finding that this forced regimen is the least intrusive way to restore White to competence. However, the district court's finding is of no moment unless fully supported by the Sell analysis.

Addressing the first factor in the Sell analysis, I agree that this court's decision in Evans mandates a conclusion that the government has charged White with "serious" crimes. See United States v. Evans, 404 F.3d 227, 238 (4th Cir. 2005). Thus, under Sell, the government has demonstrated an "important interest" in restoring White to competence to face trial on those charges. See Sell, 539 U.S. at 180, 123 S.Ct. 2174.

The prospect of a 10-year sentence, however, is not a de facto license to forcibly medicate a defendant in the manner described above, and neither the Supreme Court nor this court has held otherwise. Here, although the government has shown an "important interest" in prosecuting White, the government also must demonstrate that "special circumstances" do not so diminish this interest, rendering forced medication impermissible. See Sell, 539 U.S. at 180, 123 S.Ct. 2174; Evans, 404 F.3d at 235. I conclude that the government has failed to satisfy this aspect of its proof burden.

In Sell, the Supreme Court articulated a nonexclusive list of "special circumstances," including the need for timely prosecution and the possibility that a defendant has "already been confined for a significant amount of time for which [s]he would receive credit toward any sentence ultimately imposed." 539 U.S. at 180, 123 S.Ct. 2174 (parentheses omitted). The stated considerations guide but do not constrain the assessment of "special circumstances" in a particular case. See id.; Evans, 404 F.3d at 239.

There is no precise formula to predict the sentence that White might receive if she is convicted of all or some of the crimes charged. The treatment of her codefendant, Vonda Baker, is informative on this point, but is not dispositive of White's potential sentence as recognized by both the majority and the dissenting opinions. However, as of August 2010, White had been in custody for a significant period of time, about 41 months, and it is undisputed that she would receive credit in calculating her sentence for this period of incarceration and for "good time."

Additionally, our conclusion that the conduct alleged here is "serious" does not preclude us from considering the nature of the offenses in assessing whether "special circumstances" diminish the government's interest in prosecuting White. In fact, the dissenting opinion highlights the extensive range of property crimes that would be considered "serious" under our precedent, from conduct like that alleged here to multi-billion-dollar ponzi schemes. Over this spectrum of "serious" crimes against property, a multitude of offenses would more strongly justify forcible medication than the offenses at issue here.

As the Supreme Court indicated in Sell, forcible medication is justified only in exceptional cases. 539 U.S. at 180, 123 S.Ct. 2174. I agree with the majority that this is not an exceptional case, but rather comes "perilously close to a forcible medication regime best described . . . as routine." White has already been detained for more than three years even though she is presumed innocent of the charged offenses. The alleged crimes are serious, but entirely nonviolent, and the parties agree that White is not a danger to herself or to others. Thus, the government has failed to prove that its interests are not diminished conclusively by these and the other "special circumstances" discussed above. For these reasons, I join in the majority opinion that forcible medication is impermissible in this case, and that White's constitutional interest in remaining free from the involuntary administration of antipsychotic drugs must be honored.

NIEMEYER, Circuit Judge, dissenting:

Kimberly White stands charged with six felonies involving credit card fraud and aggravated identity theft. After evaluating her mental competence, federal medical experts diagnosed her with Delusional Disorder, Grandiose Type, and determined that she was incompetent to stand trial. But they also concluded that with medication, White could be restored to competence. Nonetheless, White refused to co-operate and to take any medication.

On the government's motion to medicate White involuntarily, the district court, in an especially careful and thorough review of the circumstances, concluded that White should be involuntarily medicated to restore her competence to stand trial. Faithfully applying the criteria outlined in Sell v. United States, 539 U.S. 166, 180-83, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003), the court found that the government had, by clear and convincing evidence, proved facts satisfying each of Sell's four factors.

If the majority were ever inclined to allow an order for involuntary medication to enable the government to try a defendant, this would be the paradigmatic case. Yet, the majority finds facts based on rank speculation that White will be detained before sentencing longer than she is likely to be sentenced and that she does not threaten the public safety. And then, relying on those facts, it concludes that the government's interest in prosecuting White is so diminished that, as a matter of law, she must now be set free, without facing a trial or the consequences of a potential conviction. The majority also commits errors of law in reaching that conclusion. For example, for purposes of applying Sell, it holds erroneously that crimes against property are less serious than crimes against the person and that therefore the government's interest in prosecuting crimes against property is diminished. Yet Sell rejects the notion. See Sell, 539 U.S. at 180, 123 S.Ct. 2174 (noting that government's interest in prosecuting serious crimes applies equally to serious crimes against property and serious crimes against the person); see also United States v. Evans, 404 F.3d 227, 237 (4th Cir. 2005) (holding that the seriousness of a crime for purposes of applying Sell is determined by "the maximum penalty authorized by statute").

I conclude that the strong public interest in trying White in the circumstances of this case should incline us to defer to the district court's careful factfinding and considered judgment. Accordingly, I would affirm.

Kimberly White was charged in March 2008 in a six-count indictment with one count of conspiracy to commit credit card fraud, in violation of 18 U.S.C. § 371 (carrying a maximum sentence of five years' imprisonment); three counts of credit card fraud, in violation of 18 U.S.C. § 1029(a)(2) (each carrying a maximum sentence of ten years' imprisonment); and two counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A (each carrying a mandatory penalty of two years' imprisonment, to run consecutively to any other term of imprisonment imposed).

On White's motion, the district court ordered that White be evaluated to determine her competence to stand trial, and for that purpose, she was committed to the Federal Medical Center in Carswell, Texas ("FMC Carswell") and evaluated by the medical staff. In a report dated June 23, 2008, the staff stated that they had diagnosed White with Delusional Disorder, Grandiose Type, and concluded that she was not competent to stand trial. In light of this report, the district court ordered that White be evaluated to determine whether there was a substantial probability that she would regain competence, pursuant to 18 U.S.C. § 4241(d).

After evaluating White, the medical staff at FMC Carswell submitted a second report, dated December 5, 2008, that summarized the forensic evaluation of the medical staff, particularly that of Dr. Leslie Powers, a forensic psychologist, and Dr. Robert Gregg, the chief psychologist, and concluded that there was a substantial probability that White could be restored to competence with antipsychotic medication. The report stated that White had consistently refused to cooperate with the staff conducting the evaluation — she refused to answer questions regarding her auditory or visual hallucinations and refused to consider taking any antipsychotic medications. The report noted that White's delusional disorder was characterized by her belief that she had discovered the cure for AIDS and breast cancer and that she could create this cure from her food and drink. This belief caused her to hoard her food in her cell and to refuse to leave her cell for fear that someone would steal her formula. As a result, White went without bathing for weeks at a time. She was observed writing notes on the walls of her cell regarding her delusions, and, when the staff took away writing implements, she even began to write these notes in her own blood.

Even so, White tended to express her delusions most vigorously when she was being asked to participate in a forensic evaluation or was being questioned about her medical and mental health history. Similarly, her aggressive behavior was most apparent when interacting with authority. The report noted:

Although a diagnosis of Delusional Disorder, Grandiose Type, has been given in this case, it should be noted that her symptomology is atypical, as she has no history of psychotic symptoms before her arrest and she possesses a remarkable ability to modulate her symptoms in different situations. It is also believed that much of her behavior is contrived and volitional, particularly with regards to her defiance and aggression towards authority.

J.A. 156. In fact, the report described one instance where White had refused to bathe for 21 days, until officials assembled to enter her cell to remove her forcibly, pursuant to a Bureau of Prisons' policy. Just before the team entered her cell, however, she agreed to participate voluntarily and allowed an officer to apply handcuffs so she could be taken to the shower room. According to the report, as White passed her forensic evaluator, she grinned and said, "Good times."

The report concluded that White was not a danger to herself or to others and that the only basis for involuntarily medicating her would be to restore her competence to stand trial, pursuant to Sell, 539 U.S. 166, 123 S.Ct. 2174. The report rendered the staffs opinion that medication could be prescribed that would restore White to competence and that would be substantially unlikely to have side-effects that would undermine the trial's fairness. The report also concluded that there were no less intrusive alternatives that would successfully treat White's illness.

In response to this report, the government filed a motion to medicate White involuntarily to restore her competence to stand trial and requested a hearing to enable it to present evidence satisfying the Sell factors. The court scheduled a hearing to consider the government's motion, and at the hearing the government presented the testimony of Dr. Leslie Powers, a staff forensic psychologist at FMC Cars-well who had evaluated White, and Dr. Camille Kempke, the psychiatrist at FMC Carswell treating White. White presented no witnesses at the hearing. Indeed, she elected not to attend it.

Dr. Powers testified to White's diagnosis and the nature of her delusional disorder, indicating that she had observed and evaluated White for over a year. She testified that after diagnosing White with Delusional Disorder, she pursued nonmedical treatment options to address the disorder by attempting to get White to participate in competency-restoration counseling classes. White, however, refused to leave her cell to attend the classes. Dr. Powers also testified that she sought to have White voluntarily take medication to treat her disorder but that White also refused to do that.

Dr. Powers indicated that White exhibited no suicidal or homicidal behavior and that she presented no risk to herself or to others. She also indicated that White's health would not be at grave risk without such medication.

Dr. Kempke testified that she agreed with Dr. Powers' diagnosis and assessment that White could not be civilly committed or involuntarily medicated on grounds other than to stand trial, in accordance with Sell. Dr. Kempke also stated that White's condition could be successfully treated with antipsychotic medication and explained the treatment plan she would adopt.

She indicated that there were three medications to consider: Haldol Decanoate, Prolixin Decanoate, and Risperdal Consta. Haldol Decanoate and Prolixin Decanoate, she explained, were first-generation drugs, while Risperdal Consta was a second-generation drug. For each of the drugs, Dr. Kempke provided a detailed dosage regimen that she would prescribe for White.

Because Risperdal, which was Dr. Kempke's preferred method of treatment, was not available in short-acting injectable form, Dr. Kempke's first attempt at treatment would be to try to get White voluntarily to take a Risperdal tablet orally to check for allergic reactions. If White consented and had no allergic reaction, an injection of 25 milligrams would be given to White every two weeks. If White refused to take the Risperdal tablet, Dr. Kempke testified that she would use Haldol, beginning with a short-acting dose of 10 milligrams to check for allergy. As long as White showed no allergic reaction, Dr. Kempke would administer Haldol via "a 50 milligram IM every two to four weeks, attempting to go up to four weeks, up to a maximum of 100 milligrams every four weeks." If White had any negative reaction to Haldol, Dr. Kempke would use Prolixin by giving a short-acting injection to check for allergy, followed by an injection of 25 to 50 milligrams every two weeks.

Dr. Kempke also described the possible side effects from the use of each of the medications. Haldol and Prolixin, she pointed out, would carry a risk of muscular problems, including tardive dyskinesia, extrapyramidal symptoms, neuroleptic malignant syndrome, instability in movement, and agranulocytosis. She explained that the second-generation medications, such as Risperdal, have a lower risk of tardive dyskinesia and extrapyramidal symptoms, but present a greater risk of elevated glucose and cholesterol, increasing the risk of diabetes and cardiovascular diseases. But ultimately, Dr. Kempke noted that Risperdal, Haldol, and Prolixin were all considered relatively safe and that they have been used to treat millions of people with major benefits and relatively minor risks of serious side effects.

Dr. Kempke also testified to her proposed management of side effects, stating that they could be "effectively dealt with by treatment strategies or by changing the medication." White would be monitored monthly for abnormal, involuntary movements, and other signs of tardive dyskinesia, and daily for other serious symptoms, and she would have her glucose and cholesterol checked against a baseline every three months. If side effects were to occur, Dr. Kempke explained that they could be counteracted by administering an anticholinergic drug, such as benztropine, or by changing medication or dosage.

Finally, Dr. Kempke gave her opinion that the involuntary medication protocol would be substantially likely to render White competent to stand trial and would be substantially unlikely to give rise to side effects that would interfere significantly with her ability to assist counsel in conducting a trial defense. She testified that there were no less intrusive methods of treating White and that it was in White's best medical interest to be treated with these medications. Dr. Kempke expected that White would be restored to competence within a couple of weeks after receiving her first long-acting injection of a first-generation drug and within four weeks of her first long-acting injection of a second-generation drug, but that it could take as many as five months for White's competence to be fully restored.

After considering the evidence and the arguments of counsel, the district court granted the government's motion to involuntarily medicate White, finding that the government had proved each of the Sell factors by clear and convincing evidence. The court directed, in addition, that all medical personnel treating White first request that she voluntarily take the medication before they administered it involuntarily.

From the district court's order, dated October 9, 2009, White filed this interlocutory appeal.

The governing factors for determining whether the government can involuntarily medicate a defendant to restore her competence to stand trial are not disputed. Under Sell, 539 U.S. at 180-81, 123 S.Ct. 2174, the government must prove (1) that it has at stake important governmental interests; (2) that involuntary medication will significantly further those interests; (3) that involuntary medication is necessary to further those interests; and (4) that administration of the drugs is medically appropriate. And we have held that the government must satisfy these requirements by clear and convincing evidence. United States v. Bush, 585 F.3d 806, 814 (4th Cir. 2009).

With respect to the first factor — whether important governmental interests are at stake — the Sell Court has observed that "[t]he Government's interest in bringing to trial an individual accused of a serious crime is important." Sell, 539 U.S. at 180, 123 S.Ct. 2174. And to determine what constitutes a serious crime, we have concluded that a court should "focus on the maximum penalty authorized by statute." Evans, 404 F.3d at 237.

Even when a defendant is charged with a "serious crime," creating an "important governmental interest," "[s]pecial circumstances" may lessen the importance of that interest. See Sell, 539 U.S. at 180, 123 S.Ct. 2174. These "[s]pecial circumstances include (1) the possibility that the defendant might be confined to an institution for the mentally ill, thus `diminishing] the risks that ordinarily attach to freeing without punishment one who has committed a serious crime'; (2) the potential for future confinement should the defendant regain competence; and (3) the fact that `the defendant has already been confined for a significant amount of time (for which he would receive credit toward any sentence ultimately imposed).'" Bush, 585 F.3d at 815 (alteration in original) (quoting Sell, 539 U.S. at 180, 123 S.Ct. 2174).

The mere fact that a defendant has already spent a significant amount of time in custody, however, does not alone defeat the government's interest, as other aspects of a trial and conviction may be sufficient to keep the government's interest in the prosecution high. These interests include the message a prosecution sends to the public about the seriousness of an offense, the potential for a period of supervised release following conviction, and the restrictions on firearm ownership and other civil rights that follow from a conviction. Bush, 585 F.3d at 815.

The majority has relied on the first Sell factor, particularly the circumstances that mitigate it, effectively to order White released without a trial. The majority gives virtually determinative weight to its findings that White, upon completion of litigation, will have been detained for 57.7 months and that the sentence White will likely receive, if convicted, is the "relatively light sentence" of 42-51 months' imprisonment. It thus concludes that White's "pretrial detention (taking account of likely good time credits) will have extended considerably longer than her likely sentence," ante at 418, which "substantially lessens the significance of the government's interest in prosecuting White," ante at 419. But the majority's findings to support these conclusions bubble with speculation of the grandest type.

Beginning with the majority's speculation about White's potential sentence if White were convicted, the majority conducts its own sentencing proceeding, but without the benefit of a presentence report and the facts necessary to conduct such a proceeding. In a proper sentencing proceeding, the sentencing judge would be required to consider a presentence report which would define the relevant conduct and reveal White's criminal history, which is unknown to the majority. The report would also provide for consideration by the sentencing court the particulars of White's role in the offense and the losses she caused her victims. The government could then introduce evidence that would justify an enhancement of White's sentence, such as egregiousness and aggressiveness in the offense conduct. And the government could even introduce evidence of criminal conduct not charged in the indictment as a basis for enhancing White's sentence within the statutory maximum. See United States v. Grubbs, 585 F.3d 793, 798-99 (4th Cir. 2009). Not only does the majority not have access to these factual matters necessary for sentencing, it does not even purport to apply the Sentencing Guidelines or the factors required for consideration by 18 U.S.C. § 3553. Rather, to predict White's sentence, it looks to the sentence of White's differently situated co-conspirator, Vonda Machelle Baker, and to national statistics issued about fraud convictions generally. This approach is unprecedented and unsupportable.

First, Baker's circumstances are so dissimilar from White's as to provide little or no support for the majority's use of them. Baker was only charged with two counts (including only one count of aggravated identity theft with a mandatory consecutive two-year sentence), whereas White was charged with six (including two counts with mandatory consecutive two-year sentences). In addition, Baker was repentant, voluntarily entered into a guilty plea, and provided substantial assistance to the government, for which she obtained a downward adjustment in the Sentencing Guidelines' calculation. There is also no basis from which to conclude that White and Baker have similar criminal histories. And, in considering Baker's sentence, the majority overlooks significant aspects of Baker's sentence other than her time of detention. In addition to serving a term in prison, Baker was sentenced to three years' supervised release and ordered to pay over $36,000 in restitution to her victims. Under the majority's outcome, however, White would be relieved of both of these consequences.

The majority also relied on statistics for fraud convictions obtained across the country for all types of fraud crimes, which it then intuitively adjusted. Based on unexamined and general data, it observes that there is "between a 1-in-4 and 1-in-5 chance that White would receive little or no sentence for the fraud counts" — a conclusion that is undermined by consideration of even Baker's lenient sentence for the types of fraud charged in this case. Ante at 416-17. The majority thus concludes that White "would likely receive a relatively short sentence for each count." Ante at 417. The majority then takes the national median sentence for fraud generally to assume that White would receive a sentence of 18 to 27 months' imprisonment — "although we cannot determine White's likely sentence with certainty, a number within the range created by the medians, 18-27 months, is most appropriate." Ante at 417. It then concludes that the sentences for White's four counts of fraud should run concurrently, again without any support. Ante at 417-18.

With respect to White's two counts of aggravated identity theft, each of which requires a mandatory 24-month consecutive sentence, see 18 U.S.C. § 1028A, the majority adds to White's predicted sentence only one consecutive sentence for one count of aggravated identity theft, ignoring the other count. With this one consecutive sentence it reaches its prediction of 42-51 months' imprisonment.

The majority's process for predicting White's sentence is not only unsupportable, it is totally without legal support. Courts of Appeals cannot conduct sentencings, and a sentencing by any court cannot be based on national averages for the broad class of fraud convictions. The governing statutes set forth specific sentences and sentencing ranges, and cases applying them provide precise rubrics that are the subject of thousands of our opinions, none of which the majority has followed.

The majority then concludes that the predicted sentence of 42-51 months is exceeded by White's detention, finding that she will be detained 57.7 months. In making this finding, the majority gives White credit for (1) time detained pursuant to state charges; (2) time that White will be litigating this case, including proceedings in the Supreme Court; and (3) good time credits that the majority assumes White will earn. Again, these findings are based on speculation.

In short, the majority creates new standards and a new process without legal support and relies on gross speculation to find that the government's interest in prosecuting White is overcome by the length of White's assumed detention.

In addition to its reliance on White's time of detention, the majority assumes that White poses no risk to the public safety and that, for that reason also, the government's interest is diminished. The majority gives two reasons. First, because White was committed to a mental institution for evaluation in this case, she has been "adjudged" a "mental defective" as used in 18 U.S.C. § 922(g)(4) and, therefore, will never be entitled to possess a firearm. And second, because the crimes of which White is charged are nonviolent, they are less serious and therefore are, by implication, less of a threat to public safety. Neither reason is valid.

While one "adjudged" a "mental defective" may not possess a firearm under § 922(g)(4), neither party has asserted or claimed that the district court's orders that White be evaluated for her competency to stand trial amount to such adjudication, and that point remains to be demonstrated.

But the majority relies more heavily on its assertion that White's crimes were non-violent, and therefore the public's safety is not at risk if she is not prosecuted. As the majority explains, "Not every serious crime is equally serious. The nature of White's crimes lessens the government's interest in prosecuting her because her alleged crimes were nonviolent offenses." Ante at 419. The majority's statement inappropriately assumes, without legal support, that crimes against the person are more serious than crimes against property for applying the Sell factors. A given crime against property, however, can be serious or even more serious than a given crime against the person. Enormous harm and distress can be caused by fraud and Ponzi schemes, as can be witnessed on a grand scale in the case of Bernard Madoff in New York. More importantly, Sell itself refused to recognize such a distinction. see Sell, 539 U.S. at 180, 123 S.Ct. 2174. Moreover, the seriousness of a crime for determining the government's interest is determined not by judges' intuitive evaluations but by the maximum sentence established by Congress for the crime. See Evans, 404 F.3d at 237.

In its analysis, the majority has not only misapplied the weight and relevance of White's detention, but it has also undervalued the government's interests by failing to recognize the other important ways in which a trial could serve governmental interests. A trial would serve the dual purposes of publicly confronting White with the serious charges against her, thus enabling the government to seek a conviction that would label White as a felon and her conduct as wrongful, and it would serve as a deterrent to others. Also, if the government were able to secure a conviction, White would lose the right to carry firearms as well as other civil rights. A conviction would, moreover, subject White to a period of supervised release, which might be especially important in circumstances such as those presented here, where White's failure to recognize the seriousness of her conduct suggests that she may pose a substantial threat of reoffending if set free. Finally, because of the nature of White's crimes, there are numerous victims who individually sustained substantial losses. Any conviction of White would mandatorily result in an order of restitution, requiring White to repay the losses she caused. See 18 U.S.C. §§ 3556, 3663A(c)(1)(A)(ii).

These circumstances indicate that the majority's reliance on White's period of detention, even if it were possible to predict, is simply too meager a basis on which to rest an order effectively releasing her without a trial. Such a decision leaves the public with substantial risks, not taken into account by the majority, that the criminal justice system would address, inasmuch as a trial and conviction would go a long way toward incapacitating White and preventing her from reoffending, and it allows White to avoid the full punishment for her crimes. Also, if White is released now and it turns out that she has manufactured many of her symptoms of mental incompetence, the public would face yet a higher risk of reoffense because White would not be subject to any supervision.

In short, I respectfully submit that this case presents the paradigmatic case that Sell anticipated would appropriately justify involuntary medication to enable a defendant to stand trial. For these reasons, I would affirm the district court's considered judgment.