     Case: 19-30049   Document: 00515119477        Page: 1   Date Filed: 09/16/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                    No. 19-30049                      FILED
                                                              September 16, 2019
                                                                 Lyle W. Cayce
UNITED STATES OF AMERICA,                                             Clerk

             Plaintiff - Appellee

v.

SUSAN KIRCHOFF JAMES, also known as Susan James, also known as
Susan Kirchoff,

             Defendant - Appellant




                Appeal from the United States District Court
                   for the Eastern District of Louisiana


Before JOLLY, HO, and ENGELHARDT, Circuit Judges.
JAMES C. HO, Circuit Judge:
      Forced medication to ensure that a mentally troubled criminal defendant
is competent to stand trial implicates profound liberty interests under the Due
Process Clause. To protect those interests, the Supreme Court has established
a four-prong test that prosecutors must satisfy before a court may compel the
medication of the accused. See Sell v. United States, 539 U.S. 166 (2003).
      To date, however, neither the Supreme Court nor this court have stated
what burden of proof the government must carry under the four-prong test.
But our sister circuits overwhelmingly agree that the government must estab-
lish the four factors by clear and convincing evidence, and not just by a
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                                       No. 19-30049
preponderance of the evidence. The parties here agree as well. We now join
our sister circuits and adopt the same burden of proof today.
       Because it is not clear from the record what burden of proof the district
court applied here, and because of the sensitivity of the interests involved, we
vacate and remand so that the district court can apply the clear and convincing
evidence standard accordingly.
                                              I.
       Susan James allegedly threatened to kill her aunt and uncle in violation
of 18 U.S.C. § 875(c). After she was arrested and taken into custody, the dis-
trict court held a hearing to determine whether James was competent to stand
trial, in light of her stated belief that everyone involved in this prosecution,
including her own lawyer, was conspiring against her. Prior to the February
7, 2018, hearing, James underwent a court-ordered psychiatric and psycholog-
ical evaluation conducted by Dr. Tennille Warren-Phillips, a licensed psycholo-
gist, at the Bureau of Prisons (BOP) federal detention center in Houston,
Texas. Dr. Warren-Phillips diagnosed James with General Personality Disor-
der and Obsessive-Compulsive Disorder, but nevertheless initially concluded
that she was competent to stand trial. 1
       James’s attorney, however, was concerned about her own fraught inter-
actions with James. So she requested an independent evaluation.
       The independent evaluation conducted by Dr. Loretta Sonnier, a forensic
psychiatrist, concluded that James was not competent to stand trial. As re-
flected in her December 21, 2017 report, Dr. Sonnier diagnosed James with
“schizoaffective disorder, bipolar type”—a condition marked by “fixed false



       1 The BOP later questioned its initial conclusion after learning that James had lied
during its evaluation of her. It thereafter “support[ed] an effort to commit Ms. James to a
federal medical center for treatment for restoration to competency.” Accordingly, the district
court did not consider this initial report at the Sell hearing.
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                                     No. 19-30049
beliefs” that “affect her judgment.” Dr. Sonnier further concluded that psycho-
tropic medication would be “substantially likely” to render James competent to
stand trial.
          After a hearing held on February 7, 2018, the district court found James
was not competent to stand trial.
          James was then sent to a medical facility in an effort to restore her com-
petency. Dr. Hayley Blackwood, a forensic psychologist, informed the court of
her conclusion that James suffered from Delusional Disorder, Persecutory
Type, and would need to be medicated to stand trial. In a preliminary letter
submitted to the court, Dr. Blackwood said: “[W]e believe there is an increased
likelihood that with [psychotropic medication], [James] could be restored to
competency to stand trial in the foreseeable future.” She repeated this conclu-
sion in her full report to the court.
          The BOP held an administrative hearing and reaffirmed Dr. Blackwood’s
conclusions. Dr. Judith Cherry, who oversaw the hearing, concluded that
“[a]ntipsychotic medication is [] recognized as a safe and standard treatment
for Delusional Disorder. The evidence presented is clear, and persuasive that
involuntary treatment with antipsychotic medication is medically appropriate
and the only viable option to restore Ms. James to mental competence to stand
trial.”
          James consistently refused consent to be medicated. So the government
requested a hearing under Sell to determine whether it could medicate her
involuntarily. See 539 U.S. at 179–81.
          At the January 10, 2019 hearing, both Dr. Blackwood and Dr. Jose Sil-
vas, a psychiatrist in charge of James’s medication, testified that medication
was necessary to restore James’s competency. James’s counsel cross-examined
the government’s witnesses, and James spoke on her own behalf, but otherwise
did not provide her own evidence.
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                                       No. 19-30049
       In an oral pronouncement, the district court concluded that the govern-
ment met its burden under Sell, and ordered that James
       shall be involuntarily medicated, in an attempt to render her com-
       petent to stand trial, in accordance with the treatment plan rec-
       ommended by Dr. Silvas . . . . Prior to each administration of in-
       voluntary medication, James shall be provided an opportunity to
       voluntarily receive antipsychotic medication, as directed by Dr.
       Silvas, as an alternative to involuntary medication. . . . James
       shall remain confined at the Carswell Federal Medical Center
       (FMC) for six (6) months, or a lesser period that is reasonably suf-
       ficient to restore her to competency.

The court memorialized its oral ruling in a non-substantive written order,
which it stayed so James could seek an interlocutory appeal. See Sell, 539 U.S.
at 176–77 (permitting interlocutory appeal of such orders under the collateral-
order doctrine). To date, James has been in custody for over two years.
                                              II.
       The Due Process Clause of the Fifth Amendment guarantees that “[n]o
person shall . . . be deprived of life, liberty, or property, without due process of
law.” U.S. CONST. amend. V. Forcibly medicating a criminal defendant to en-
sure that he is competent to stand trial plainly intrudes upon liberty interests
protected by the Due Process Clause. See, e.g., Washington v. Glucksberg, 521
U.S. 702, 725 (1997) (noting our “long legal tradition protecting the decision to
refuse unwanted medical treatment”); Cruzan by Cruzan v. Dir., Mo. Dep’t of
Health, 497 U.S. 261, 269 (1990) (“At common law, even the touching of one
person by another without consent and without legal justification was a bat-
tery. . . . This notion of bodily integrity has been embodied in the requirement
that informed consent is generally required for medical treatment.”). 2


       2 Mental competence is a prerequisite to stand trial. See Drope v. Missouri, 420 U.S.
162, 171 (1975) (“It has long been accepted that a person whose mental condition is such that
he lacks the capacity to understand the nature and object of the proceedings against him, to
consult with counsel, and to assist in preparing his defense may not be subjected to a trial.”);
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                                        No. 19-30049
       In Sell, the Supreme Court set forth a four-prong test to govern the for-
cible medication of defendants to restore their competency for trial. District
courts must ask “(1) whether important governmental interests are at stake;
(2) whether involuntary medication will significantly further those interests;
(3) whether involuntary medication is necessary to further those interests; and
(4) whether the administration of the drugs is medically appropriate.” United
States v. Palmer, 507 F.3d 300, 303 (5th Cir. 2007) (citing Sell, 539 U.S. at 179).
       Sell did not, however, establish the government’s evidentiary burden.
But on appeal, the parties agree that the government must provide clear and
convincing evidence under the four-prong test before an accused may be forci-
bly medicated. Nine of our sister circuits take the same view today—as did the
United States government in Sell itself. 3
       Given the “particularly important individual interest[]” at issue here, we
see no reason to disagree. See Addington v. Texas, 441 U.S. 418, 424 (1979)
(specifying when a “clear and convincing” standard is appropriate, and noting
that civil commitment, deportation, and denaturalization proceedings are gov-
erned by such a standard); see also Washington v. Harper, 494 U.S. 210, 229




Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam) (defendant is competent if he
has a “sufficient present ability to consult with his lawyer with a reasonable degree of rational
understanding—and . . . a rational as well as factual understanding of the proceedings”)
(quoting Solicitor General).
        3 See United States v. Dillon, 738 F.3d 284, 291–92 (D.C. Cir. 2013); United States v.

Diaz, 630 F.3d 1314, 1331–32 (11th Cir. 2011); United States v. Fazio, 599 F.3d 835, 840 n.2
(8th Cir. 2010); United States v. Ruiz-Gaxiola, 623 F.3d 684, 692 (9th Cir. 2010); United
States v. Bush, 585 F.3d 806, 814 (4th Cir. 2009); United States v. Grape, 549 F.3d 591, 598,
604 (3d Cir. 2008); United States v. Green, 532 F.3d 538, 545 (6th Cir. 2008); United States v.
Bradley, 417 F.3d 1107, 1114 (10th Cir. 2005); United States v. Gomes, 387 F.3d 157, 160 (2d
Cir. 2004); see also Br. of United States 43 n.11, Sell, 539 U.S. 166 (No. 02-5664) (“The im-
portance and nature of the interests at stake here are comparable to the interests bearing on
the decision to civilly commit an individual, in which the Court adopted the clear and con-
vincing standard of proof. That standard is therefore the appropriate one in this setting.”)
(citations omitted).
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                                       No. 19-30049
(1990) (“The forcible injection of medication into a nonconsenting person’s body
represents a substantial interference with that person’s liberty.”).
       It is not clear whether the district court here applied a clear and convinc-
ing evidentiary standard—which is perhaps understandable, because until to-
day, our court has not adopted a standard. From our review of the record, the
district court only invoked the need for “clear and convincing evidence” when
it analyzed the second Sell factor. The court was silent as to the burden of
proof governing the other Sell factors—as the government recently acknowl-
edged in a post-oral-argument filing on appeal.
       Because we cannot determine what standard the district court applied,
we vacate the Sell order and remand to allow the district court to apply the
clear and convincing standard in the first instance. See, e.g., United States v.
Bush, 585 F.3d 806, 817 (4th Cir. 2009) (“[T]he application of the clear-and-
convincing standard in this case might be material to the question of whether
the government met its burden. For that reason, we remand this issue . . . to
the district court to receive further evidence, if it deems it appropriate, and to
apply the clear-and-convincing burden of proof.”).
                                            ***
       Forced medication would be a significant incursion into James’s liberty.
We cannot tell whether the district court here applied the proper burden of
proof—and thus we cannot tell whether the evidence is sufficient to support
such an incursion. Accordingly, we vacate the Sell order and remand for fur-
ther proceedings. 4




       4Many district courts issue written opinions to facilitate our appellate review under
Sell. See Palmer, 507 F.3d at 303 (“The magistrate judge issued a thorough and detailed
report and recommendation where he . . . recommended involuntary medication to restore
his competency.”); United States v. Rix, 574 F. Supp. 2d 726 (S.D. Tex. 2008) (written order);
United States v. Reynolds, 553 F. Supp. 2d 788 (S.D. Tex. 2008) (same); United States v.
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Algere, 396 F. Supp. 2d 734 (E.D. La. 2005) (same). On remand, the district court may wish
to do the same.
