                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                 File Name: 13a0300p.06

              UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT
                               _________________


                                               X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                -
                                                -
                                                -
                                                    No. 12-1732
          v.
                                                ,
                                                 >
                                                -
                       Defendant-Appellant. -
 GARY JOHN MIKULICH,
                                               N
                  Appeal from the United States District Court
               for the Western District of Michigan at Marquette.
             No. 2:11-mj-00011-1—R. Allan Edgar, District Judge.
                                Argued: May 1, 2013
                        Decided and Filed: October 22, 2013
     Before: BATCHELDER, Chief Judge; GUY and BOGGS, Circuit Judges.

                                 _________________

                                     COUNSEL
ARGUED: Clare E. Freeman, FEDERAL PUBLIC DEFENDER’S OFFICE, Marquette,
Michigan, for Appellant. Maarten Vermaat, UNITED STATES ATTORNEY’S
OFFICE, Marquette, Michigan, for Appellee. ON BRIEF: Clare E. Freeman, Paul A.
Peterson, FEDERAL PUBLIC DEFENDER’S OFFICE, Marquette, Michigan, for
Appellant. Maarten Vermaat, UNITED STATES ATTORNEY’S OFFICE, Marquette,
Michigan, for Appellee.
                                 _________________

                                      OPINION
                                 _________________

       BOGGS, Circuit Judge. The Federal Bureau of Investigation arrested Gary John
Mikulich in March 2011 on suspicion that he planted an explosive device outside the
McNamara Federal Building in Detroit, Michigan, in February of the same year. During
his initial appearance, Mikulich exhibited erratic behavior, raising questions as to his
competency to stand trial. After he was adjudged incompetent and remanded for


                                           1
No. 12-1732         USA v. Mikulich                                                   Page 2


treatment, the Government requested that he be forcibly medicated with antipsychotic
drugs. Mikulich opposed this motion, arguing that the Government lacked a sufficiently
important interest in trying him due to the special circumstances of this case. Though
he acknowledged the grave nature of the charges against him, he claimed that he faces
civil confinement in the absence of criminal sanction and that he intends to raise an
insanity defense at trial. The magistrate judge rejected these arguments on the ground
that they were too speculative to override the Government’s interest in trying this matter.
The district court agreed and adopted the magistrate judge’s findings. We affirm this
decision.

                                              I

        In February 2011, a security officer found a canvas tool bag on the street outside
the McNamara Federal Building. Believing the item to be lost property, the officer
stored the bag in the building for three weeks without inspecting it. Eventually, someone
performed an x-ray scan of the bag and discovered wires, electronic components, and
other objects consistent with an explosive device. The Detroit Police Bomb Squad took
possession of the bag and detonated it. The procedure resulted in a sizable secondary
explosion, leading the FBI to conclude that the item was in fact a bomb.

        The tool bag containing the bomb was sold exclusively at a chain hardware store.
The store also sold the particular type of timer used in the device. The FBI discovered
a transaction in February 2011, several days before the bag was found, in which
a customer purchased both of these items.           Subsequent investigation led to the
identification of Mikulich as the man who made the purchase and placed the bag outside
the building. Federal officials arrested him in March 2011 and charged him with one
count each of attempting to destroy a government building by means of explosive while
creating a substantial risk of injury to a person, in violation of 18 U.S.C. § 844(f)(1)–(2),
using and carrying a destructive device during and in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(A) and (c)(1)(B)(ii), and possessing an unregistered
destructive device, in violation of 26 U.S.C. § 5861(d).
No. 12-1732            USA v. Mikulich                                                            Page 3


         Mikulich appeared before a federal magistrate judge following his arrest. During
his initial appearance, he began behaving in a bizarre manner.1 The magistrate judge
ordered a psychiatric evaluation to determine Mikulich’s competency to proceed to trial.
The evaluation, completed in July 2011, concluded that Mikulich suffered from an array
of intricate, deep-seated delusions brought upon by paranoid schizophrenia and that he
lacked sufficient competency to proceed to trial at the time. The magistrate judge agreed
with these findings and, pursuant to 18 U.S.C. § 4241(d), committed Mikulich to the
custody of the Attorney General to undergo treatment. Six months later, the warden of
the facility to which Mikulich was sent tendered a letter and report indicating that he
remained incompetent to stand trial and refused to take medication. The warden
recommended involuntary treatment with psychotropic drugs. The magistrate judge held
a second competency hearing and determined that, pursuant to the four-factor test laid
out in Sell v. United States, 539 U.S. 166 (2003), involuntary medication was warranted.

         Mikulich appealed to the United States District Court for the Western District of
Michigan. See W.D. Mich. LCrR 57.2(e); W.D. Mich. LCivR 72.3(a). Though he
conceded that three of the four Sell factors were satisfied, Mikulich claimed that the
Government lacked a sufficiently important interest in bringing him to trial, so as to
override his Fifth Amendment liberty interest in being free from involuntary medication.
He admitted that the crimes of which he is charged are serious, but stated that he faces
civil confinement if not prosecuted and that he plans to raise an insanity defense at his
trial, thus lessening the Government’s interest in trying him. The district court rejected
this argument and adopted the findings of the magistrate judge. Mikulich filed a timely
interlocutory appeal with this court.



         1
          According to the magistrate judge, Mikulich claimed that he was once President of the United
States, Co-Governor of California, a Secret Service Agent, and a Deputy United States Marshal. His odd
behavior continued throughout the proceedings below. Mikulich filed two pro se documents with the
magistrate judge, claiming, inter alia, that he is an uncredited song writer for the bands Steely Dan,
Aerosmith, and Mötley Crüe (to which a fellow inmate and alleged former saxophonist for Steely Dan
could aver), that a Cold War era satellite system (which, along with the Pentagon, was responsible for the
September 11, 2001 terrorist attacks) was attacking and “erasing” his contacts in the government, and that
members of the FBI stationed in Detroit had stolen over $1 billion dollars in “various large monetary
funds” from him. He further intimated that there is some link between his incarceration and the deaths of
Michael Jackson, Whitney Houston, and Steve Jobs. He asserts that no one else recalls this because of
constant attacks by the aforementioned satellite system.
No. 12-1732        USA v. Mikulich                                                  Page 4


                                            II

       An individual has a constitutionally protected liberty interest in avoiding the
unwanted administration of medication, and the Government may not deprive him of this
liberty without an essential or overriding interest in doing so. Sell, 539 U.S. at 178–79.
The Government may force medication upon an inmate in order to restore his
competency to stand trial under certain circumstances, as the Government has a
recognized interest in protecting “the basic human need for security” through the prompt
administration of criminal justice. Id. at 180. Pursuant to Sell, the Government must
present clear and convincing evidence of four factors in order to secure an order of
involuntary medication: “(1) the existence of an ‘important’ governmental interest;
(2) that involuntary medication will ‘significantly further’ the government interest;
(3) that involuntary medication is ‘necessary’ to further those interests; and (4) that
administration of the drugs must be ‘medically appropriate’ for the individual
defendant.” United States v. Green, 532 F.3d 538, 545 (6th Cir. 2008) (quoting Sell,
539 U.S. at 180–81).

       The current matter involves only the first of these factors—the existence of an
“important” governmental interest. The Government has an important interest in
prosecuting a defendant if he is charged with a “serious” crime and no “special
circumstances” diminish the necessity of prosecution. Sell, 539 U.S. at 180; Green,
532 F.3d at 545–46, 551; see also United States v. Evans, 404 F.3d 227, 236–40 (4th Cir.
2005) (applying the same two-step analysis). We have previously addressed the first
element of the Sell analysis as a question of law reviewed under a de novo standard.
Green, 532 F.3d at 545. As in Green, the present case contains no issues of fact, and a
de novo standard is accordingly appropriate for the entirety of our analysis. See Evans,
404 F.3d at 236 (“The district court’s determination that the government’s interest is
‘important’ is a legal conclusion that we review de novo, although we review any factual
findings relevant to this legal determination for clear error.” (citations omitted)).
No. 12-1732        USA v. Mikulich                                                  Page 5


                                            III

        Generally, the Government has an important interest in trying an individual
accused of a “serious” crime. Sell, 539 U.S. at 180. The Supreme Court did not define
what makes a crime “serious” for the purposes of involuntary medication; however, this
circuit looks to the maximum penalty authorized by statute. Green, 532 F.3d at 547–48.
This objective measure not only respects the legislature’s fundamental role in
determining the seriousness of a particular type of criminal behavior, but also reduces
the potential for arbitrariness inherent in the consideration of more subjective factors.
Id. at 548.

        While we have not set a numeric threshold at which a crime may be deemed
“serious,” we held in Green that the punishment for possession of crack cocaine, which
at the time carried a mandatory minimum of 10 years and a maximum of life in prison,
manifested a sufficient degree of seriousness to warrant involuntary medication. Here,
Mikulich faces a combined mandatory minimum of 37 years, with a maximum penalty
of life. Furthermore, and unlike Green, the charges in this case unquestionably relate
to violent behavior and carry a unique governmental interest, in that Mikulich is charged
with attempting to bomb a federal building. Mikulich himself concedes that the charges
are very serious. Appellant’s Br. 12. The first element is therefore satisfied.

        Even if the Government has an important interest in prosecuting a particular type
of crime, we must “consider the facts of the individual case” to determine if special
circumstances lessen the Government’s interest in taking the matter to trial. Sell,
539 U.S. at 180; Green, 532 F.3d at 551. “The defendant’s failure to take drugs
voluntarily, for example, may mean lengthy confinement in an institution for the
mentally ill,” which may diminish the risks that ordinarily attach to freeing a perpetrator
of a serious crime without punishment. Sell, 539 U.S. at 180. “The same is true of the
possibility that the defendant has already been confined for a significant amount of time
(for which he would receive credit toward any sentence ultimately imposed . . . ).” Ibid.
No single factor necessarily controls this analysis. See United States v. Bush, 585 F.3d
806, 814–15 (4th Cir. 2009) (holding that, despite a serious argument that the defendant
No. 12-1732        USA v. Mikulich                                                Page 6


had already served the vast majority of the time to which she could potentially be
sentenced, the Government maintained an important interest in prosecuting and
convicting the defendant).

       Mikulich claims that two such circumstances militate against involuntary
medication in this case: the possibility that he will be civilly committed in the absence
of prosecution, and the possibility that he will raise an insanity defense at trial. The
Government counters that Mikulich has adduced no evidence of either circumstance,
thus leaving him to rely upon bare uncertainty as to the outcome of the case. Mikulich
does not dispute this assertion. Rather, he cites this court’s recent opinion in United
States v. Grigsby, 712 F.3d 964 (6th Cir. 2013), for the proposition that uncertainty is
enough to undermine the Government’s interest in prosecution.           This argument,
however, stretches the holding of this court’s opinion far beyond that necessary to
support the outcome. Grigsby turned on two key factual distinctions, neither of which
is present here: testimony that the Government planned to initiate a civil-commitment
proceeding if Grigsby were not prosecuted, and the potential for a relatively low
Guideline sentence that would have mostly been served by the time Grigsby reached
trial. We find the case to be distinguishable and Mikulich’s argument unpersuasive.

                                           A

       We begin with an examination of Grigsby. Dennis Grigsby was arrested after
committing a string of unarmed bank robberies in and around Columbus, Ohio. The
Government brought a three-count federal indictment against him for violation of
18 U.S.C. § 2113(a). Soon after his detention, he was diagnosed with paranoid
schizophrenia and remanded to the custody of the Attorney General for treatment.
Grigsby, 712 F.3d at 965–66. The Government moved for involuntary medication under
Sell after Grigsby refused treatment for his condition. Id. at 967. Grigsby challenged
the motion, expressing concern as to the drugs’ efficacy, the potential for serious side
effects, and, most relevant to our case, the strength of the Government’s interest in
prosecuting him in light of the circumstances of the case. Id. at 967–68. Like Mikulich,
No. 12-1732         USA v. Mikulich                                                   Page 7


Grigsby claimed that he faced a lengthy period of involuntary commitment in the
absence of prosecution and that he had a meritorious insanity defense.

        During an evidentiary hearing, Grigsby elicited testimony from the
Government’s psychiatrist that, absent forced medication and prosecution, medical staff
intended to move for civil commitment. Without medication, the doctor opined, Grigsby
would remain psychotic, and though he had shown no indicia of dangerousness within
the structured confines of a federal psychiatric hospital, he may not be fit for release into
society at large. Ibid. Grigsby followed this with testimony from his own medical
expert, a clinical psychologist, who claimed that Grigsby may well have been mentally
ill during his crime spree and that he believed that Grigsby could pursue an insanity
defense if brought to trial. Id. at 968. After the hearing, the district court granted the
Government’s motion, finding Grigsby’s objections to be too speculative to defeat the
Government’s interest in prosecuting a concededly serious criminal offense. Ibid.

        A divided panel of this circuit reversed the Sell order and remanded the matter
to the district court for a civil-commitment hearing under 18 U.S.C. § 4246. The
majority roundly criticized the district court’s opinion. However, the outcome of the
case turns on two specific faults. The majority first cited the lower court for completely
ignoring “significant evidence” that Grigsby “may face a lengthy civil commitment due
to his mental illness . . . . ” Grigsby, 712 F.3d at 970. It specifically highlighted the
testimony from the Government psychiatrist that a civil-commitment proceeding was a
very real possibility for Grigsby were he not medicated and taken to trial. Ibid. The
district court gave no apparent consideration to this testimony, focusing instead on the
speculative nature of Grigsby’s potential for hospitalization under 18 U.S.C. § 4243
following a finding of insanity at trial. Id. at 970–71.

        In light of the availability of an alternative, the majority went on to consider the
societal benefit that would inure from forcing medication upon Grigsby, namely his
potential sentence. The majority calculated Grigsby’s Guideline sentence to be 41 to 51
months. Id. at 974. At the time of his appeal, he had been in custody for 33 months,
about 65% of the low-end Guideline range. Ibid. Based on the record, the majority
No. 12-1732        USA v. Mikulich                                                  Page 8


estimated that it would take between 4 and 12 months to restore his sanity. Ibid.
Assuming a best-case scenario of a four-month recovery, Grigsby would have served
37 months—over 90% of his low-end Guideline sentence—before the Government
would have even brought him to trial. The majority ultimately concluded that this
meager benefit did not justify the cost to Grigsby’s constitutional rights, particularly in
light of the likelihood for civil commitment. Id. at 976.

                                            B

        In contrast to Grigsby, Mikulich presents no evidence, let alone significant
evidence, to support his challenge to the Sell order. Rather, he claims that neither the
district court nor this court can know the outcome of a civil-commitment hearing or the
merit of his insanity defense. His contention is undoubtedly true: we are judges, not
oracles, and thus necessarily have a degree of uncertainty about future events. However,
reliance upon this obvious fact is not enough to prevail. While the ultimate burden of
proving an important interest in prosecution always remains with the Government, we
look to the defendant to demonstrate that the special circumstances of his case
undermine the Government’s interest once it is established that he stands accused of a
serious crime. See Green, 532 F.3d at 551; Evans, 404 F.3d at 239–40. Mikulich has
failed to do so.

        To determine whether Mikulich has demonstrated a sufficient likelihood of his
civil commitment, we look to both federal law and the law of the state in which he is
being prosecuted, in this case, Michigan. United States v. Bradley, 417 F.3d 1107,
1116–17 (10th Cir. 2005). Under both the laws of the United States and the laws of
Michigan, civil commitment requires clear and convincing evidence that Mikulich is so
disabled that he is a serious danger to himself or others. See 18 U.S.C. § 4246(a)
(permitting institutionalization of a person in custody who is due for release only if that
person “is presently suffering from a mental disease or defect as a result of which his
release would create a substantial risk of bodily injury to another person or serious
damage to property of another”); Mich. Comp. Laws § 330.1401(1)(a)–(d) (defining a
“person requiring treatment” as an individual who generally can be expected to cause
No. 12-1732          USA v. Mikulich                                                  Page 9


serious physical harm to himself or others or who lacks the ability to attend to basic
needs).

          As stated in Grigsby, a defendant is not required to manifest an absolute certainty
of future civil confinement in order to undermine the Governments interest in
prosecution. 712 F.3d at 972. However, this does not mean that uncertainty will carry
the day. Quite to the contrary, our sister circuits have held “that the government’s
interest in prosecution is not diminished if the likelihood of civil commitment is
uncertain.” United States v. Gutierrez, 704 F.3d 442, 450 (5th Cir. 2013) (citing United
States v. Nicklas, 623 F.3d 1175, 1178–79 (8th Cir. 2010); United States v. Palmer,
507 F.3d 300, 304 (5th Cir. 2007); United States v. Bradley, 417 F.3d 1107, 1116–17
(10th Cir. 2005); United States v. Evans, 404 F.3d 227, 239 (4th Cir. 2005); United
States v. Gomes, 387 F.3d 157, 161 (2d Cir. 2004)). We join them in this opinion.

          The record before us shows nothing beyond complete uncertainty as to whether
Mikulich would face civil commitment under either federal or state law.                Both
psychiatric evaluations in the record state that Mikulich has no prior record of violent
behavior, save one episode in his early twenties in which he slapped his mother. During
his incarceration, he has been cooperative and nonviolent. Mikulich proffers no other
relevant data in the record, and we cannot find any. This evidence supports, at best, an
uncertain probability of civil commitment. This is insufficient to undermine the
Government’s interest in prosecuting Mikulich.

                                              C

          Mikulich next asserts that: “It is likely that [he] will plead insanity should this
case ever go to trial. An insanity defense cuts against the government’s interest in
prosecution.” Appellant’s Br. 12 (citations omitted). He does not explain how such a
plea would undermine the Government’s interest in prosecution, nor does he present any
evidence suggesting that he would prevail on such a theory. More fundamentally, he
assumes that a possible insanity defense is a relevant “special circumstance” under Sell,
without addressing contrary authority by one of our sister circuits. We conclude that it
is not. Furthermore, even if we were to assume arguendo that an insanity defense is
No. 12-1732           USA v. Mikulich                                                        Page 10


relevant to the Sell calculus, Mikulich has presented insufficient evidence to demonstrate
any appreciable likelihood of his success on the merits of the defense, and has thus failed
to undermine the Government’s interest in prosecution.

                                                  1

          In a passing comment, the majority in Grigsby asserted: “That Grigsby
potentially may be found not guilty by reason of insanity, even if he is restored to mental
competency to stand trial, is a special circumstance that should have been fully
considered in weighing the government’s interest in prosecution.” 712 F.3d at 970. As
one must infer from our prior discussion of Grigsby, the majority’s consideration of this
argument was not central to the outcome of the case. Moreover, both sides in Grigsby
appear to have simply assumed that an insanity defense was germane to the first Sell
factor, and therefore did not address the same issue that we do here. See id. at 970–71
(citing, without additional analysis, three unpublished district court opinions, all of
which similarly accept, without reasoning, that an insanity defense was relevant to a Sell
claim).

          During the pendency of this appeal, the Fifth Circuit published its opinion in
United States v. Gutierrez, 704 F.3d 442 (5th Cir. 2013). We find Gutierrez to be
instructive here: The defendant, accused of threatening to kill a number of current and
former federal officials (including President Obama and former Presidents George H.W.
Bush and George W. Bush), challenged the Government’s interest in prosecuting him
in light of “the significant, uncontested evidence of his insanity at the time of the
offense.” Id. at 446–47. To be sure, the nature of his crimes spoke volumes as to his
mental state at the time,2 a fact that the panel acknowledged in finding “little doubt that
Gutierrez [would] ultimately be found insane . . . .” Id. at 447.



          2
            “In November and December of 2008, Gutierrez made over one hundred telephone calls to a
television station in Austin, Texas, threatening to harm or kill former President George W. Bush, Texas
Governor Rick Perry, and both of their wives. This prompted an investigation by the Secret Service and
a visit to Gutierrez by a Secret Service Agent, Nguyen Vu. On August 27, 2009, Gutierrez called Agent
Vu and left a message on his voice mail. Gutierrez claimed to be delivering a message from God, and
threatened to kill President Obama, former Presidents George W. Bush and George H.W. Bush, Agent Vu,
and ‘all lawyers.’” Id. at 444.
No. 12-1732         USA v. Mikulich                                                Page 11


        Notwithstanding, the court held that “even if it were certain that Gutierrez would
successfully plead not guilty by reason of insanity, the government would continue to
have an interest in prosecution . . . . ” Id. at 452. The unanimous panel reasoned that
“the shifted burden of proof for insanity acquittees in civil commitment proceedings”
makes prosecution of these cases of interest to the Government. Ibid. This is certainly
true: pre-trial civil commitment and post-trial hospitalization of an insanity acquittee are
not equivalent. A finding of insanity shifts the burden from the Government to the
insanity acquittee, who must prove that he is not dangerous before he may be released.
Compare 18 U.S.C. § 4243(d) (hospitalization of a person found not guilty only by
reason of insanity), with id. § 4246(d) (hospitalization of a person due for release but
suffering from mental disease or defect).

        We find the Fifth Circuit’s logic to be eminently reasonable. We add to it by
observing that affirmative defenses such as insanity are strikingly different from the two
examples of special circumstances announced in Sell. Unlike the possibility of civil
commitment or the relative length of time already served for the crime, an insanity
defense relates to the triable merits of the case. To be sure, this defense is of no real
value to Mikulich until the Government has presented its case-in-chief and survived a
motion for acquittal at trial. See Fed. R. Crim. P. 29(a). Further to the point, an insanity
defense is typically pursued as a fall-back in addition to a defense against the merits of
the Government’s case. See 18 U.S.C. § 4242(b) (distinguishing a verdict of “not guilty”
from a verdict of “not guilty only by reason of insanity”). It is a defensive theory that
accepts that the accused may well be proven to have committed the criminal acts beyond
a reasonable doubt, but “as a result of a severe mental disease or defect, [he] was unable
to appreciate the nature and quality or the wrongfulness of his acts.” 18 U.S.C. § 17(a).
It is fully contingent upon the occurrence of a condition precedent—the Government
taking the case to trial and surviving a Rule 29 motion. It is thus logically backwards
to say that a potential insanity defense may somehow lessen the value of the condition
precedent coming to pass in the first instance. Accordingly, we join the Fifth Circuit in
holding that, where the Government has already demonstrated an important interest in
No. 12-1732        USA v. Mikulich                                                Page 12


prosecuting the defendant, the potential assertion of an insanity defense does not
undermine the Government’s interest in taking the case to trial.

                                            2

       Even if we were to assume that an insanity defense could defeat the
Government’s interest in prosecuting a serious crime, Mikulich cites no evidence tending
to prove that he, “as a result of a severe mental disease or defect, was unable to
appreciate the nature and quality or the wrongfulness of his acts.” See ibid. He has not
explicated his theory of insanity or produced any relevant expert reports. Indeed, it is
not even clear that Mikulich will raise an insanity defense at trial. See Appellant’s Br.
12 (“It is likely that Mr. Mikulich will plead insanity should this case ever go to trial.”
(emphasis added)). As the record currently stands, Mikulich would not even meet his
burden to put insanity into issue at trial, let alone prove it by clear and convincing
evidence as required by statute. See 18 U.S.C. § 17(b); see also Dixon v. United States,
548 U.S. 1, 14 (2006) (stating that “the one relying on an affirmative defense must set
it up and establish it”). Furthermore, nothing in the record indicates that Mikulich has
given the Government notice of his intent to raise a defense of insanity as required by
Rule 12.2 of the Federal Rules of Criminal Procedure. As pointed out by the magistrate
judge, the district court, and the Government, Mikulich’s argument is far too speculative
to be persuasive, even on its own terms.

                                            IV

       While we should not take lightly the decision to medicate a defendant against his
will, we also should not discount the Government’s interest in bringing an accused
would-be terrorist to justice.     Mikulich has not demonstrated that any special
circumstances of this case weaken the Government’s clear interest in trying him for the
serious crimes of which he stands accused. We AFFIRM the ruling of the district court.
