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 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 6, 2019             Decided October 4, 2019

                         No. 18-3082

                UNITED STATES OF AMERICA,
                        APPELLEE

                               v.

                    JEAN-PAUL GAMARRA,
                         APPELLANT


         Appeal from the United States District Court
                 for the District of Columbia
                    (No. 1:17-cr-00065-1)


     Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A.J. Kramer,
Federal Public Defender. Tony Axam Jr. and David W. Bos,
Assistant Federal Public Defenders, entered appearances.

    Nicholas P. Coleman, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jessie K. Liu,
U.S. Attorney, and Elizabeth Trosman, and Chrisellen R. Kolb,
Assistant U.S. Attorneys.
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   Before: ROGERS and PILLARD, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.

   Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.

    Concurring opinion filed by Circuit Judge PILLARD.1

     RANDOLPH, Senior Circuit Judge: This is a criminal case.
The defendant, Jean-Paul Gamarra, appeals from an order of the
district court. The order authorized the government to medicate
him without his consent for the purpose of rendering him
competent to stand trial.

     Questions about Gamarra’s soundness of mind arose from
these largely undisputed circumstances of his arrest on March
28, 2017. Gamarra approached a Secret Service Agent stationed
near the Treasury Department Building, adjacent to the White
House. Gamarra told the Agent that he had a package
containing a “nuclear bomb detonator or defuser.” The Agent
ordered Gamarra to place his package on the ground. On the
package were messages: “Warning this is a tre threat on the
President and Senator life Secure Keyboard to be Reversed
Engineered,” and “Warning 100% threat Brand New Electronic
Detonator Device president Secrete Servisce Explosive
technology Department.” On the package’s label was this:
“Blue tooth Bomb Explosion Component.”

    In response, the Agent arrested Gamarra while other law
enforcement officers closed the surrounding areas to pedestrian
and vehicular traffic for an hour and a half. When officers

       1
        NOTE: Portions of the concurring opinion contain Sealed
Information, which has been redacted.
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examined Gamarra’s package they found only an ordinary
Bluetooth keyboard.

     A grand jury indicted Gamarra for threatening bodily harm
to the President (18 U.S.C. § 871) and for conveying false
information concerning the use of an explosive (18 U.S.C.
§ 844(e)).

     Gamarra’s actions raised doubts about whether he was
competent to stand trial. On the government’s motion, the
magistrate judge ordered Gamarra committed to custody for the
purpose of evaluating his competency. A forensic psychologist
examined Gamarra and concluded that he suffered from a
‘schizoaffective disorder’ and that he was not competent to
stand trial. After a hearing, the Magistrate Judge agreed and
issued an order under 18 U.S.C. § 4241(d) committing Gamarra
to continuing custody for the purpose of determining whether he
could become competent. This subsection provides, in part:

    The Attorney General shall hospitalize the defendant
    for treatment in a suitable facility . . . for such a
    reasonable period of time, not to exceed four months,
    as is necessary to determine whether there is a
    substantial probability that in the foreseeable future he
    will attain the capacity to permit the proceedings to go
    forward[.]

    After some delay, Gamarra was transferred to the Federal
Medical Center, Butner, North Carolina. A psychology intern
at Butner and her supervisor, a forensic psychologist, attended
to Gamarra and signed a report. From multiple clinical
evaluations, interviews and observations, they concluded that
Gamarra suffered from delusional thinking and disorganized
speech. His medical history and the accounts of his family
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members indicated that he could not become competent without
anti-psychotic medicine. At Butner, Gamarra started taking the
prescribed medication, but within a short time became
noncompliant.

    The government therefore moved for an order authorizing
involuntary medication. After a three-day evidentiary hearing,
the Magistrate Judge recommended denying the motion on the
ground that the government failed to provide treatment to
Gamarra within the four month period specified in 18 U.S.C. §
4241(d)(2). The district court rejected the recommendation and
granted the government’s motion, concluding that under Sell v.
United States, 539 U.S. 166 (2003), “the government had met its
burden of proof with respect to each of the four Sell factors.”
United States v. Gamarra, 2018 WL 5257846, *9 (D.D.C.
2018).

     Gamarra’s appeal is limited to the district court’s rulings on
two of the four Sell factors the second and the fourth. The
second Sell factor requires the government to establish that “the
administration of the drugs is substantially likely to render the
defendant competent to stand trial” and “substantially unlikely
to have side effects that will interfere significantly with the
defendant’s ability to assist counsel in conducting a trial
defense, thereby rendering the trial unfair.” Sell, 539 U.S. at
181. The fourth Sell factor requires the government to establish
that “administration of the drugs is medically appropriate, i.e.,
in the patient’s best medical interest in light of his medical
condition.” Id.

    The district court’s conclusions in favor of the government
must rest on “clear and convincing evidence.” United States v.
Dillon, 738 F.3d 284, 291 (D.C. Cir. 2013). Our review of those
conclusions is for “clear error.” Id. Under this standard, we
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may reverse only “if (1) the findings are ‘without substantial
evidentiary support or … induced by an erroneous application
of the law’; or if (2) ‘on the entire evidence [we are] left with the
definite and firm conviction that a mistake has been committed.”
Id. at 297 (quoting Cuddy v. Carmen, 762 F.2d 119, 124 (D.C.
Cir. 1985)).

     Gamarra’s objections to the district court’s assessment of
the second Sell factor are that the court should not have relied on
the opinion of Butner’s head psychiatrist Logan Graddy, M.D.
  because Dr. Graddy did not personally examine Gamarra, and
because he ignored Gamarra’s recollection and his medical
records regarding the side effects he experienced when he took
anti-psychotic medications in the past.

     Although Dr. Graddy acknowledged that it was “unusual”
and “unfortunate” that he was offering an opinion without a
personal examination, Gamarra has failed to identify how the
lack of a personal examination compromised Dr. Graddy’s
conclusion that the second Sell factor was satisfied. Moreover,
courts have relied on experts who reached their opinions based
on a review of a patient’s medical records and other information
without personally conducting an examination. See Jones v.
Sec’y, Fla. Dep’t Of Corr., 834 F.3d 1299, 1315 16 (11th Cir.
2016) (collecting cases in which courts relied on a medical
expert who had not personally examined the patient). As the
district court noted, an opinion of the American Psychiatric
Association’s Ethics Committee then in effect concluded that it
was both ethical and common for a “‘forensic expert to offer
opinions’ based on review of records and without examining the
defendant in person.” Gamarra, 2018 WL 5257846 at *10
(quoting American Psychiatric Ass’n, Opinions of the Ethics
Committee on The Principles of Medical Ethics 35 (2017),
available at https://www.psychiatry.org/psychiatrists/practice/
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ethics)). The government’s burden here was higher than under
the common preponderance of evidence standard. But Gamarra
has identified no countervailing authority connecting the lack of
personal examination with a failure to meet that burden.

     The district court also did not clearly err in concluding that
the prescribed medication was substantially unlikely to cause
side effects impairing Gamarra’s ability to assist his counsel.
Dr. Graddy reviewed Gamarra’s medical history, including
medical records of Gamarra’s previous experiences taking anti-
psychotic medication. Dr. Graddy based his judgment on those
records, on his clinical experience, and on his review of the
medical literature regarding the effects of anti-psychotic
medication. Gamarra argues that Dr. Graddy’s conclusion
affords insufficient weight to Gamarra’s experiences in taking
anti-psychotic medication. Dr. Graddy acknowledged the side
effects and explained how they would be managed if they
recurred. The District Court did not clearly err in crediting Dr.
Graddy’s opinion. We assume that Gamarra will be returned to
FMC Butner and that, as Dr. Graddy testified, the medical
personnel at that facility will adjust Gamarra’s medication to
minimize side effects. Were side effects to require attention
while Gamarra is in the District of Columbia awaiting trial or
during trial, the district court should ensure appropriate medical
personnel will promptly respond.

     Accordingly, the district court did not commit any clear
error regarding the second Sell factor.

     Gamarra’s arguments regarding the fourth Sell factor
overlap with his arguments regarding the second Sell factor. We
are again told that the district court should not have credited Dr.
Graddy’s opinion on medical appropriateness because he did not
interview Gamarra. Once again, Gamarra has failed to identify
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how the district court clearly erred in relying on Dr. Graddy’s
testimony to determine that the government satisfied the fourth
Sell factor. The fact that Dr. Graddy did not personally examine
Gamarra does not detract from his finding that Gamarra’s
symptoms would be ameliorated through medication. Dr.
Graddy understood Gamarra’s condition from his review of the
medical records and reports of forensic psychologists who
interacted with Gamarra. We therefore believe Gamarra has
presented no basis for concluding that the district court clearly
erred in relying on Dr. Graddy to conclude that involuntary
medication would be in Gamarra’s best medical interests.

    For the reasons stated above, the district court’s order
authorizing involuntary medication is

                                                       Affirmed.
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     PILLARD, Circuit Judge, concurring: 1 A district court
order authorizing the forcible medication of an incompetent
defendant has serious consequences, implicating the
defendant’s “significant constitutionally protected liberty
interest in avoiding the unwanted administration of anti-
psychotic drugs.” Sell v. United States, 539 U.S. 166, 178
(2003) (internal quotation marks omitted) (quoting Washington
v. Harper, 494 U.S. 210, 221 (1990)). Medication “changes
one’s mental state—one’s very thought processes—and in a
way that can’t be resisted by any effort.” Elyn R. Saks,
Refusing Care: Forced Treatment and the Rights of the
Mentally Ill 87 (2002). State-imposed medication raises the
stakes even further, conjuring up plots of dystopian science
fiction.

     The Supreme Court has held that forced medication to
render a defendant competent for trial is intended to be “rare,”
appropriate only when the four specified “Sell” factors are
satisfied. Sell, 539 U.S. at 180. These factors permit forcible
medication only where (1) “important governmental interests
are at stake”; (2) “involuntary medication will significantly
further those concomitant state interests” by administration of
drugs “substantially likely to render the defendant competent
to stand trial” and “substantially unlikely to have side effects
that will interfere significantly with the defendant’s ability to
assist counsel in conducting a trial defense”; (3) “involuntary
medication is necessary to further [state] interests”; and (4)
“administration of the drugs is medically appropriate, i.e., in
the patient’s best medical interest in light of his medical
condition.” Sell, 539 U.S. at 180-81. In the aftermath of Sell,
lower courts have further acknowledged the gravity of this step
by requiring the government to demonstrate that the Sell factors


       1
         NOTE:       Portions of this opinion contain Sealed
Information.
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are met by clear and convincing evidence. See, e.g., United
States v. Dillon, 738 F.3d 284, 291-92 (D.C. Cir. 2013)
(collecting cases).

      The government must exercise exacting diligence to meet
its burden.      The grave risks involuntary psychotropic
medication pose to a person’s liberty and autonomy—his say
over what is done to his own brain—call for heightened
attention. This is especially so given the broader context in
which forcible medication may occur. Not only does the
government control whether to initiate prosecution against
incompetent defendants, it oversees the medical personnel in
federal facilities who observe such defendants and, where
warranted, treats them, and it determines in the first instance
whether such defendants have been rendered competent for
trial. As a result, the government almost always has superior
expertise and access to information than does defense counsel
or the courts. Defense counsel, for their part, face extra
challenges posed by the imperative to mount the most powerful
and comprehensive defense while guided by the wishes of a
client who, even though not competent for trial, retains legal
authority to direct his representation.       These unusual
background conditions strain our adversary system.

     This case illustrates these complexities and raises
questions about whether the government has met its burden
under the demanding Sell standard. The government seeks to
medicate Gamarra against his will based almost exclusively on
the report and testimony of a single psychiatrist, Dr. Graddy,
without requiring or outlining any specifics regarding the
dosage and timeframe of the envisioned course of treatment, in
a context where Gamarra has already spent longer in detention
than he will for any sentence he is likely to receive. By the
time of the Sell hearing, Gamarra had been detained for seven
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months, but Dr. Graddy had not met with him, and it does not
appear that any psychiatrist or other health care provider sought
to establish a consistent therapeutic relationship with him. The
record is thin—quite frankly, thinner than it should be—as to
the current importance of the government’s interest in this
prosecution, the details and rationales of the planned treatment,
the extent to which voluntary compliance was meaningfully
sought as a less restrictive means, and whether the specific drug
chosen is the best one.

     Most of the questions these circumstances evoke were not
raised on appeal. And our review is for clear error. The
standard of review reflects the institutional advantage of
district courts’ first-hand evaluation of factual circumstances—
an advantage especially significant in the context of highly
contextual decisions regarding psychiatric intervention. I
therefore join the panel opinion. Nonetheless, because
approving the forcible administration of medication here
without additional comment threatens “the sensitive balancing
required by Sell in light of the significant liberty interests
implicated by forcible medication,” id. at 296, I write
separately to highlight benchmarks we expect the government
to meet when requesting approval for forcible medication
going forward, with the hope that these benchmarks provide
useful guidance to district courts evaluating such motions in
future cases.

                               I.

     The government must show by clear and convincing
evidence that it has a continuing, important interest in forcibly
medicating an incompetent defendant. Sell, 539 U.S. at 180.
Satisfying that first Sell factor requires the government to
provide affirmative answers to “two distinct questions”: First,
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“whether the charged crime is ‘serious,’ because the
Government’s interest in a prosecution generally qualifies as
‘important’ when the defendant is charged with a serious
crime”; and, second, whether no ‘“[s]pecial circumstances . . .
lessen the importance of that interest.’” Dillon, 738 F.3d at 292
(quoting Sell, 539 U.S. at 180). The government’s ordinarily
strong interest in prosecuting serious crimes may be offset
where there are countervailing considerations, such as “the
prospect of lengthy civil commitment” or “an extended period
of pretrial detention.” Id.; see also Sell, 539 U.S. at 180.

     Subjecting a defendant to an extended period of pretrial
detention may lessen the government’s penal interest to the
point that it no longer justifies forcibly medicating the
defendant. Gamarra has been in detention on these charges
since March 28, 2017. See Gamarra Rule 28(j) Letter (filed
9/6/19).    The government calculated Gamarra’s likely
Guidelines range, in the event that he is convicted of the
charges against him, to be from 21 to 27 months in prison. J.A.
100. We have yet to decide this issue, but other circuits, faced
with charged crimes they treat as “serious,” compare the
recommended Guidelines range that the defendant is likely to
face if convicted to the amount of time the defendant has
already spent in custody. See, e.g., United States v. Berry, 911
F.3d 354, 362-63 (6th Cir. 2018); United States v. Grigsby, 712
F.3d 964, 973-74 (6th Cir. 2013); United States v. Ruiz-
Gaxiola, 623 F.3d 684, 694 (9th Cir. 2010); United States v.
White, 620 F.3d 401, 413-19 (4th Cir. 2010). They do so
because the Bureau of Prisons is required to credit pre-trial
detention toward any term of imprisonment imposed, see 18
U.S.C. § 3585(b)(1), and because “[w]here 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,” Berry, 911 F.3d at 363. The
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government has already detained Gamarra for longer than the
recommended Guidelines range. It will need to detain him for
several more weeks to medicate him and bring him to trial.
Whatever specific deterrent effect a post-conviction term of
imprisonment is supposed to have on the defendant, section
3585(b)(1) tells us, will be effectively achieved by that time.

     Governmental interests in criminal prosecution extend
beyond incapacitation and deterrence of the particular
defendant. Sell, 539 U.S. at 186; Dillon, 738 F.3d at 296. They
include the “significance for society” of a prosecution,
including achieving general deterrence. United States v.
Onuoha, 820 F.3d 1049, 1056 (9th Cir. 2016); see also United
States v. Gutierrez, 704 F.3d 442, 451 (5th Cir. 2013). The
government may also pursue a prosecution to secure a term of
supervised release with specified conditions that follow
incarceration. See Onuoha, 820 F.3d at 1056; United States v.
Mackey, 717 F.3d 569, 575 (8th Cir. 2013); Gutierrez, 704 F.3d
at 451. The law places a burden on the government up to the
time of forcible administration of psychotropic medication to
have a current, important interest in prosecuting the defendant
that suffices to justify that grave intrusion. The government
has not explained in any but the most general terms how these
interests are promoted by the prosecution of Gamarra. We do
not, however, resolve the issue here because Gamarra has
failed to appeal the district court’s conclusion that the first Sell
factor has been satisfied.

                                II.

     The government may forcibly medicate a defendant only
where no treatment short of forced medication would render
the defendant competent to stand trial, such that “involuntary
medication is necessary to further” the government’s interest
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in prosecution. Sell, 539 U.S. at 181. In other words, a court
cannot approve involuntary administration of psychotropic
medication unless the government produces clear and
convincing evidence that any “alternative, less intrusive
treatments are unlikely to achieve substantially the same
results.” Id. Of particular import is whether medical staff have
adequately attempted to encourage the patient’s voluntary
compliance with a medication regimen before they resort to
administering medication by force.

     Here, too, Gamarra fails to make any argument on appeal.
Indeed, with the government focused on obtaining
authorization to administer medication even over Gamarra’s
objections, and Gamarra insisting that no medication is
necessary to render him competent, neither party fully explored
what would appear to be critical terrain: Which treatment
regimen is most likely to achieve the best results in pursuit of
the public interest with the least intrusion on the defendant’s
fundamental rights. The record convincingly supports the
conclusion that medication is an essential ingredient to
restoration of Gamarra’s competence. But that is hardly the
end of the medical or legal story.

     The record does not paint a clear picture as to how or
whether the government considered medically informed
measures to enhance the prospect of voluntary compliance.
Nor does it explain in any detail any measures to minimize
Gamarra’s risk of side effects—let alone any measure that
might limit or ameliorate the trauma associated with
involuntary administration. Any psychiatrist, Dr. Graddy
included, would agree that the prospects for voluntary
compliance with a course of psychotropic medication depends
on establishing a consistent therapeutic relationship. Indeed,
Dr. Graddy testified that he believed “therapy plus medications
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is the best treatment for pretty much any psychiatric problem.”
See 4/13/18 Hr’g Tr. at 119. Yet, remarkably, it appears from
the record that no psychiatrist had seen Gamarra in person, and
that no therapist of any sort had established a therapeutic
relationship with Gamarra or treated him on a regular basis
during the time from September 2017 to April 2018 that he had
been detained pursuant to a court order to “hospitalize the
defendant for treatment in a suitable facility.” 18 U.S.C.
§ 4241(d). 2

     The magistrate judge’s order authorizing commitment at
Butner stated, in accordance with 18 U.S.C. § 4241(d)(1), that
the purpose of confinement was “to determine whether there is
a substantial probability that in the foreseeable future
[Gamarra] will attain the capacity to permit the proceedings to
go forward.” J.A. 31. Gamarra arrived at Butner in September
2017 and was confined there for seven months prior to his Sell
hearing. During that period, Dr. Graddy could not recall a
single in-person meeting with Gamarra, stating only that “I
may have seen him around. I don’t know. I looked at his
picture. I’m not sure honestly.” 4/13/18 Hr’g Tr. at 135. Dr.
Graddy points to the fact that he “received updates” from Dr.
Laura Enman, a clinical pharmacist, id. at 112, but she appears
only to have dispensed medication when Gamarra asked for it,
and was not in a position to support compliance even with that
limited treatment regimen. A staff psychologist, Dr. DuBois,
saw Gamarra 5-7 times, and a graduate student intern, Ms.

     2
       Whatever the situation when Dr. Graddy testified, it appears
that current ethical guidelines would not support testimony by a
psychiatrist who did not make reasonable efforts to examine the
patient in person. See American Psychiatric Ass’n, Opinions of the
Ethics Committee on The Principles of Medical Ethics 25 (2019),
available at https://www.psychiatry.org/psychiatrists/practice/ethics.
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Laxton, saw Gamarra 13-15 times before completing their
report in January 2018. But it appears that their primary
purpose was to observe him for purposes of writing their report,
in which context they occasionally challenged some of his
delusional beliefs; the record does not cast them in a
therapeutic role. Dr. Graddy confirmed at the Sell hearing that
“no one who was supervising Mr. Gamarra from a psychiatric
standpoint” between October 2017 and April 2018 “had a
medical degree.” 4/13/18 Hr’g Tr. at 138. Apart from
recounting those contacts, the record says nothing about what
individual therapeutic attention, if any, Gamarra received at
Butner.

     Under these circumstances, I am skeptical that the record
contains clear and convincing evidence that no treatment short
of forcible medication could have rendered Gamarra competent
for trial.    Indeed, the magistrate judge in this case
recommended that the government’s Sell motion be denied
precisely because she was uncertain whether Gamarra had
received treatment at all. J.A. 153-57. Although she framed
this question as preliminary to the Sell inquiry as a whole, her
concern also goes to whether the government has met its
burden under the third Sell factor. Of course, none of this is to
question the basic premise on which all treating personnel
agreed, namely, that some form of medication would be
required to render Gamarra competent. The only issue here is
whether the government met its burden of showing that
garnering voluntary compliance, most likely in the context of
an in-person therapeutic relationship, could not succeed.
Revealingly, Dr. Graddy testified that only with a Sell order in
hand would he embark on “hav[ing] a conversation with
[Gamarra] about what medication he wanted to start,” and that
“with [Gamarra’s] input, he could voluntarily decide at that
point to take medication in conjunction with the court order.”
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4/13/18 Hr’g Tr. at 123. To decide in favor of involuntary
medication in these circumstances puts the cart before the
horse.

    As noted above, Gamarra did not press this issue. In
general, however, a court should approve a Sell order only
where the government can demonstrate by clear and
convincing evidence not only that psychotropic medication is
needed, but also that medically appropriate efforts at voluntary
compliance have been made and were not successful.

                                III.

     Finally, in evaluating whether forcible medication is
warranted, district courts must also look beyond the immediate
goal of gaining competency for trial to determine whether the
particular treatment proposed to that end is in the defendant’s
best interest. Under the fourth Sell factor, courts must therefore
“conclude that administration of the drugs is medically
appropriate, i.e., in the patient’s best medical interest in light
of his medical condition.” Sell, 539 U.S. at 181. The “specific
kinds of drugs at issue may matter here as elsewhere” because
“[d]ifferent kinds of antipsychotic drugs may produce different
side effects and enjoy different levels of success.” Id. This
factor raises a series of issues that district courts should grapple
with in resolving Sell motions.

     First, the government’s medical personnel should provide
a specific treatment plan to serve as the basis of their analysis
of the benefits and side effects of medication, and the court’s
review of that analysis. As the Tenth Circuit persuasively
observes, “without knowing which drugs the government
might administer and at what range of doses, a court cannot
properly conclude that such a vague treatment plan is
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that adequate efforts at voluntary compliance were attempted,
and that medical staff have provided the court with a treatment
plan with enough specificity to guide the court’s Sell analysis.
In turn, the court must guarantee that an appropriate drug has
been prescribed and specify limits on what treatment the
patient may receive and for how long. Because Gamarra does
not raise these considerations on appeal, and in respect for the
district court’s superior vantage point, I join the opinion of the
court. But I do so uneasily. I would not in future be inclined
to rest on a trial-incompetent defendant’s forfeiture of
arguments to relieve the government of its burden to establish
each of the Sell factors by clear and convincing evidence.
