                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA


                                                             FILED
UNITED STATES OF AMERICA                  )
                                          )                 APR 0 a 2009
                                          )
                                                       NANCY MAYER WHITTINGTON, CLERK
            v.                            )                  U.S. DISTRICT COURT
                                          )
                                          ) Criminal Case No. 06-368 (RJL)
JAMES A. AUSTIN,                          )
                                          )
              Defendant.                  )
                                          )
                                          )

                                              .,..,J
                           MEMORANDUM OPINION
                              (April"3 , 2009)


       The Government asks this Court to order the involuntary medication of

defendant James A. Austin ("defendant" or "Austin"), who suffers from mental

illness, to render him competent to stand trial. The issue before the Court is

whether the Government's interest in prosecution sufficiently outweighs the

defendant's right to reject medical treatment to warrant the issuance of such an

order. Because the Government has failed to show that the administration of

antipsychotic drugs is substantially likely to return the defendant to competency,

this case does not fall within the "limited circumstances" established by the

Supreme Court in Sell v. United States, 539 U.S. 166, 169 (2003), that justify

involuntary medication. Accordingly, the Government's request is DENIED.
                                          BACKGROUND

         Austin, who is 56 years old, has struggled with mental illness for much of

his life. Gov't Ex. I, Psychological Report at 7, July 31, 2007. He has been

diagnosed with a variety of similar disorders, including schizophrenia, schizo-

affective disorder, and delusional disorder. Id. at 17. For the past twenty-three

years, he has been either incarcerated or committed to mental hospitals for

inpatient treatment. Id. at 6. Psychologists have "routinely" found him

incompetent to stand trial since 2002. Id. at 7.

         In December 2006, Austin allegedly threatened to assault and murder D.C.

Superior Court Judge John Ramsey Johnson. Indictment, Dec. 19,2006. Austin

made the threats by phone while undergoing treatment at St. Elizabeth's Hospital

in Washington, D.C. 1 Def. Ex. 11, Discharge Summ. at 2, Jan. 30, 2007. At the

time of the threats, doctors at St. Elizabeth's were involuntarily medicating

defendant, which did not alter his psychosis symptoms. Id. at 4.

         Following defendant's arrest, Magistrate Judge Alan Kay committed

defendant to the custody of the Federal Bureau of Prisons for a competency

evaluation. Order, Dec. 22, 2006. Dr. William Ryan, a staff psychologist at the

Metropolitan Correctional Center in New York, administered the evaluation and

recommended this Court find defendant incompetent to stand trial. The Court

concurred with Dr. Ryan's opinion and referred defendant to the United States



I Austin was committed to St. Elizabeth's for a mental health evaluation after being charged with
harassment, destruction of property, second degree theft, and arson. Def. Ex. 11, at 2.

                                                     2
Medical Center for Federal Prisoners ("USMCFP") in Springfield, Missouri for a

mental health evaluation and competency restoration. Gov't Ex. 1, at 1. Doctors

at USMCFP attempted to restore defendant to competency through non-

pharmacological means. Id. at 26. They were not successful and the defendant

has refused to voluntarily take antipsychotic medication. Id. at 13.

       Currently, defendant remains incompetent to stand trial. Id. at 26. Dr.

Robert G. Sarrazin, chief psychologist ofUSMCFP, recommended that the Court

conduct a hearing under Sell to determine if defendant could be involuntary

medicated. Id. Magistrate Judge Deborah Robinson held those hearings on

October 26,2007, October 30,2007, January 29,2008, January 30, 2008, and

February 11,2008. Before she could issue her findings of fact and

recommendation, however, defendant made threats against her in open court, and

she was recused from the case. Order, May 13,2008. This Court held further Sell

proceedings on June 23, 2008. Based on the evidence presented to Magistrate

Judge Robinson and to this Court, I find, for the following reasons, that the

Government has not shown, by clear and convincing evidence, that Austin should

be involuntarily medicated under Sell.

                                  DISCUSSION

       In Sell, the Supreme Court held that, in limited circumstances, the Fifth

Amendment permits the administration of antipsychotic medication against a

defendant's will to render the defendant competent to stand trial. 539 U.S. at 169.

However, the Government can administer those drugs only if: 1) important

                                         3
governmental interests are at stake; 2) involuntary medication will significantly

further those interests; 3) involuntary medication is necessary to further those

interests; and 4) administering the drugs is medically appropriate. Id. at 180-81.2

         After evaluating these factors, the Court finds that the Government has not

shown each of these criteria by clear and convincing evidence. 3 While the

government has demonstrated important governmental interests at stake (i. e.,

prosecuting threatening conduct directed towards judicial officers), that interest is

firmly outweighed by the unlikelihood that involuntary medication will

"significantly further those interests." Id. at 181. Specifically, the Government

has not shown that there is a substantial likelihood the defendant will be restored

to competency. Therefore, under Sell, involuntary medication is inappropriate.

How so?

    I. Importance of the Government's Interest

         To render a defendant competent to stand trial through involuntary

medication, the Government must have an "important" interest at stake. Id. at

180. To evaluate the nature of the Government's interest, the court must consider:


2 Notably, the Supreme Court emphasized that a district court should "consider whether forced
administration of drugs can be justified on ... alternate grounds before turning to the trial competence
question." Sell v. United States, 539 U.S. 166, 182 (2003); see also United States v. Morrison, 415 F.3d
1180,1186 (lOth Cir. 2005). Dr. Sarrazin concluded that defendant "could not be involuntarily medicated
under the Harper criteria." Gov't Ex. 1, at 14. The parties do not challenge this finding. It is therefore
appropriate to consider whether the involuntary medication proposed here satisfies the Sell criteria.
3 While the D.C. Circuit has not addressed the standard of proof applicable to a Sell proceeding, other
circuits have adopted a clear and convincing evidence standard for each of the Sell criteria. See United
States v. Valenzuela-Puentes, 479 F.3d 1220, 1224 (lOth Cir. 2007) ("Given 'the vital constitutional liberty
at stake' ... the district court must find all necessary facts by 'clear and convincing evidence. "') (quoting
United States v. Bradley, 417 F.3d 1107, 1114 (lOth Cir. 2005»; United States v. Gomes, 387 F.3d 157,
160 (2d Cir. 2004) ("[T]he relevant findings must be supported by clear and convincing evidence."). This
Court finds their reasoning to be sound and uses the same standard here.

                                                      4
1) whether the defendant is charged with a serious crime; and 2) if any special

circumstances, such as the length of time defendant has already been confined,

undermine the importance of the Government's interest in prosecution. Id.

         Although the severity of the offense in this case is - to say the least -

obvious, the possible sentence for a crime is also an important factor in gauging its

relative seriousness as an offense. See United States v. Hernandez-Vasquez, 513

F.3d 908, 918-19 (9th Cir. 2008); United States v. Valenzuela-Puentes, 479 F.3d

1220, 1226 (lOth Cir. 2007). Here, both the maximum sentence (ten years) and

the proposed sentence under the federal guidelines (at a maximum, forty-one

months)4 indicate defendant's crime is a serious one. Moreover, the Fourth Circuit

has held that "threatening to murder a federal judge ... is 'serious' under any

reasonable standard." United States v. Evans, 404 F.3d 227,238 (4th Cir. 2005)

(internal citations omitted). Surely, the Government has demonstrated an

important interest in trying an individual charged with this offense.

      Yet that interest is, to some extent, undermined by the length of time

defendant has already been confined. Sell, 539 u.S. at 180. Defendant was

arrested on December 20,2006. As of the date of this Opinion, he has been

committed for twenty-seven months. If defendant were restored to competency -

a process which can take up to four months, ifsuccessful, Tr. 1129108 at 68:10-12

- tried, convicted, and sentenced, he would already have served a substantial


4 The Government and defendant disagree as to the specific calculations under the federal sentencing
guidelines. For the purposes ofthis opinion, the Court refers to the lengthier guidelines range provided by
the Government - 33 to 41 months. Tr. 7/29/08 at 5:11-16.

                                                     5
portion of a sentence within the federal guidelines range. Under these

circumstances, the importance of the Government's interest, while not eradicated,

is certainly diminished.

    II. Probability of Restoration to Competency

        Although the Government may have a strong interest in prosecuting Austin,

it fails to proffer clear and convincing evidence that "involuntary medication will

significantly further" that interest. Sell, 539 U.S. at 181. Involuntary medication

significantly furthers the government interest if: 1) the administration of drugs is

"substantially likely to render defendant competent to stand trial," and 2) the drugs

are substantially unlikely to have side effects that would interfere significantly

with the defendant's ability to "assist counsel in conducting a trial defense." Id. at

181 (emphasis added). Expert testimony regarding the likelihood of success must

reflect an individualized assessment of the patient's medical history and mental

illness. See Evans, 404 F.3d at 241 (expert testimony that did not consider "all of

the particular characteristics of the individual defendant" was insufficient to

sustain government's burden). Here, unfortunately for the Government, the expert

testimony does not meet that standard.

        During the Sell hearing, Dr. Robert G. Sarrazin, the Government's chief

expert witness,5 testified that he did not review all of Austin's medical records.

Dr. Sarrazin mainly relied upon a discharge summary from St. Elizabeth's

5 The Government also proffered the testimony of Dr. Chad Brinkley, a clinical psychologist at USMCFP,
but it has since conceded that Dr. Brinkley did not have sufficient expertise to address the question of
whether anti-psychotic medicine would be substantially likely to restore Austin to competency. Tr. 2111108
at 7:22-24.

                                                    6
Hospital in 2003 in recommending involuntary medication, but he admitted to

having only "likely skimmed" the records documenting Austin's progress through

competency restoration treatment at the hospital. Tr. 1130108 at 11:8-15. Indeed,

the discharge summary provides few specifics about Austin's restoration to

competency, noting only that it occurred after Austin began taking the medication.

Def. Ex. 4, Discharge Summ., June 26,2003. As a result, Dr. Sarrazin could not

testify with certainty that antipsychotic medication was responsible for Austin's

restoration to competency in 2003. Tr. 1129/08 at 58:6-23. As such, Dr.

Sarrazin's cursory review of Austin's records is insufficient to show, by clear and

convincing evidence, that Austin will likely be restored to competency.

         To the contrary, Austin's medical history indicates that a restoration to

competency is unlikely. He has a lengthy history of civil and criminal

commitment resulting from his mental illness, during which he has repeatedly

been adjudicated incompetent to stand trial. Unfortunately, as time passes, Austin

becomes less and less likely to respond to medication. Tr. 1130108 at 30:22-31 :20.

Indeed, he has never been adjudicated to be competent after undergoing

involuntary medication. 6 And perhaps most tellingly, Austin committed the crime

with which he is charged while involuntarily medicated and participating in a

competency restoration program. Def. Ex. 11, at 4.

        Because the Government has failed to show that involuntary medication is


6 Although Austin was deemed competent in 2003 by the doctor completing his discharge, no court of law
has ever found Austin competent to stand trial after undergoing competency restoration treatment. Def. Ex.
4, Discharge Summ., 2003.

                                                    7
substantially likely to restore Austin to competency, the Government cannot

administer antipsychotic medication to defendant against his will. 7

                                          CONCLUSION

         Thus, for all of the foregoing reasons, the Government's request to

involuntarily medicate defendant James Austin is DENIED.




                                                             ~United States District Judge




7  The final prongs of the Sell analysis require this Court to consider whether involuntary medication is
necessary to further the government interests, and whether the treatment is "medically appropriate." Sell,
539 U.S at 181. However, because the government has failed to proffer sufficient evidence that medication
is likely to restore Austin to competency, consideration of these factors is unnecessary.

                                                    8
