                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1769
                                   ___________

United States of America                *
                                        *
                      Appellee,         *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri.
Hessam Ghane,                           *
                                        *
                     Appellant.         *
                                   ___________

                             Submitted: September 17, 2004
                                Filed: December 20, 2004
                                 ___________

Before COLLOTON, HEANEY, and HANSEN, Circuit Judges.
                          ___________

HEANEY, Circuit Judge.

       Hessam Ghane is a 54-year-old naturalized United States citizen of Iranian
descent who suffers from delusional disorder. On February 4, 2003, Ghane was
admitted to an Overland Park Hospital emergency room, stating that he was suicidal
because he was depressed and out of work. He told a physician’s assistant that he
intended to kill himself using a solid form of cyanide, which he had acquired through
his years as a chemist, and stored in his home. The physician’s assistant notified the
Independence, Missouri Police Department, and detectives were sent to interview
Ghane, who consented to a search of his home. During the search, a bottle half-filled
with white powder was found under Ghane’s kitchen sink. The powder was later
determined to be bicarbonate and seventy-five percent potassium cyanide. Ghane
stated he did not know it was illegal to possess potassium cyanide, and claimed he
intended to use it in teaching, to conduct experiments, or to commit suicide. He was
charged with criminal possession of potassium cyanide, in violation of 18 U.S.C. §§
229(a)(1) and 229A(a)(1).

       On October 30, 2003, the court held a competency hearing and determined that
Ghane was incompetent to stand trial. The magistrate conducted a Sell1 hearing on
January 12, 2004 and ordered Ghane to be involuntarily medicated with antipsychotic
medications in order to restore him to competency to stand trial. The magistrate
found that the recommended treatment is substantially likely to render Ghane capable
of standing trial because medical testimony indicated there was a ten percent chance
of success. Ghane appeals this order.

       Appellate review of a district court’s findings of fact is for clear error. United
States v. Cook, 356 F.3d 913, 918 (8th Cir. 2004). An individual has a
constitutionally protected liberty interest in rejecting or avoiding the administration
of antipsychotic medications. Washington v. Harper, 494 U.S. 210, 221-22 (1990).
Before the court may authorize the involuntary administration of antipsychotic
medication for the purpose of rendering Ghane competent to stand trial, the
government must show: (1) important government interests are at stake; (2)
involuntary medication 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 at trial; (3) involuntary
medication is necessary to further the government’s interests, and less intrusive
means are unlikely to achieve substantially the same results; and (4) the
administration of the drugs is medically appropriate. See Sell, 539 U.S. at 180-182.
Neither the Supreme Court nor our circuit has spoken on the standard of proof that


      1
       Sell v. United States, 539 U.S. 166 (2003).

                                          -2-
attaches to Sell proceedings. In United States v. Gomes, 387 F.3d 157, 160 (2nd Cir.
2004), the Second Circuit determined that a clear and convincing standard should
apply. Ghane asks us to use the preponderance of the evidence standard, and the
district court applied a lesser standard. We need not determine which to use in this
case, however, because each of the standards would yield the same result: the
government has failed to sustain its burden.

      The second and fourth Sell factors are at issue here: is the involuntary
administration of antipsychotic medication substantially likely to render Ghane
competent to stand trial; and is the administration of an increased dosage of
antipsychotic medication medically appropriate? The magistrate made the following
findings about Ghane’s psychotic disorder after considering testimony from at least
four psychiatrists:

             Delusional disorder is characterized by the presence of one or
         more fixed, nonbizarre, and unvarying delusions. Patients with
         delusional disorder do not experience hallucinations or disorders
         of thinking or perception. Rather, they maintain delusions, or false
         beliefs, despite any amount of evidence to contradict those beliefs.
         The delusions are “nonbizarre,” meaning they involve events or
         situations that could conceivably occur in real life, rather than
         supernatural agents or phenomena. In the Persecutory Type of
         delusional disorder, individuals typically believe they are being
         conspired against, spied on, poisoned or drugged, or otherwise
         persecuted.

         Delusional disorder resists treatment by both psychotherapy and
         antipsychotic medication. Patients with delusional disorder are
         fully intact individuals, and the delusions themselves are not
         indicative of a thought disorder. The delusions are a fixed part of
         the individual’s thought pattern, and, except in the mildest cases,
         they cannot be convinced through behavioral therapy to ignore the
         delusional beliefs or to recognize their falsity. Antipyschotic
         medication is similarly ineffective at treating delusional disorder.

                                         -3-
          Approximately 10 percent of patients who receive antipsychotic
          drugs experience a lessening of symptoms or remission. Of that 10
          percent, about half, or 5 percent, are symptom-free after treatment.
          The remainder are considered “improved,” meaning the patients are
          less preoccupied with their delusions, either because the delusions
          appear in the past tense or because they are able to adopt a
          behavioral stance of acting as though the delusions are false.
          Ninety percent of delusional disorder patients do not experience
          improvement with treatment.


United States v. Ghane, No. 03-00171-01-CR-W-ODS, slip op. at 5 (D. Mo. Feb. 12,
2004) (Report and Recommendation on Government’s Sell Mot.) (Citations omitted)
(Emphasis added). On the basis of these facts, the court below determined that
involuntarily medicating Ghane was substantially likely to restore his competency.
We cannot accept that a “glimmer of hope” for his restored competence rises to the
level of “substantial likelihood,” as mandated by the Supreme Court’s holding in Sell.
A five to ten percent chance of restored competence cannot be considered
substantially likely under any circumstances.2 It was error for the court below to
hold that the government had met its burden in establishing the second Sell factor.
We therefore reverse the district court.
                         ______________________________




      2
        Compare Gomes, 387 F.3d at 161-62 (finding that a seventy percent success
rate in restoring defendant’s competence through drug treatment was substantially
likely to render Gomes competent and substantially unlikely to have disabling side
effects).

                                          -4-
