                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  April 19, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                         No. 10-2261
    v.                                         (D.C. No. 1:08-CR-02702-BB-1)
                                                          (D. N.M.)
    HAROLD TIMOTHY GALLAWAY,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before TYMKOVICH and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.



         Harold Timothy Gallaway appeals the district court’s order pursuant to

Sell v. United States, 539 U.S. 166 (2003), that he be committed to the custody of

the Attorney General for 120 days of hospitalization and psychological treatment,

including forcible treatment with antipsychotic medication. Because the district




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
court did not clearly err in determining that the proposed course of treatment is

medically appropriate for Mr. Gallaway, we affirm the order.

                                           I.

      Mr. Gallaway suffers from Bipolar I Disorder, severe with psychotic

features. After he was charged with six counts of bank robbery, the district court

found that he was incompetent to be tried. The court ordered him to be

committed for psychiatric treatment and evaluation. Psychologist Carlton Pyant

and psychiatrist Kwanna Williamson evaluated Mr. Gallaway over four months at

a federal medical center and issued a report concluding that he was incompetent

to stand trial, but that his competency likely could be restored by treatment with

antipsychotic medication. Mr. Gallaway refused to consent to the treatment.

      On September 9, 2010, the district court held a hearing to determine

whether the medication should be forcibly administered. After hearing testimony

from Dr. Pyant and Dr. Williamson that reaffirmed their written report, the court

considered the factors set forth in Sell, see 539 U.S. at 180-81. Ultimately the

court issued a written order concluding that: (1) the United States has a

significant interest in restoring Mr. Gallaway to competency, so it can proceed

with its prosecution for serious federal crimes; (2) the proposed course of

medication is substantially likely to restore Mr. Gallaway to competency and is

substantially unlikely to result in side effects that would interfere with his ability

to assist his counsel in defending against the charges; (3) forcibly medicating

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Mr. Gallaway is the only way to restore his competency, and thus is necessary to

further the interest of the United States; and (4) clear and convincing evidence

demonstrates that the proposed course of medication is medically appropriate.

      Mr. Gallaway appealed, but his notice of appeal was filed two days late.

He moved for a time extension, citing excusable neglect The district court

granted his Fed. R. App. P. 4(b)(4) motion to extend the time to file the notice of

appeal.

                                         II.

                                         A.

      We initially address the United States’ two motions to dismiss the appeal,

the first on the ground of untimeliness and the second on the ground of mootness.

                                     Timeliness

      While an untimely notice of appeal in a criminal case is not “mandatory

and jurisdictional,” “the time bar in Rule 4(b) must be enforced by this court

when properly invoked by the government.” United States v. Mitchell, 518 F.3d

740, 744 (10th Cir. 2008) (quotation omitted). The district court’s decision to

grant an extension is reviewed for a clear abuse of discretion. See United States

v. Vogl, 374 F.3d 976, 981 (10th Cir. 2004).

      The district court’s order extending the time to appeal is a summary order

that does not contain analysis or reasoning. We agree with the United States that

it would have been preferable had the district court explained its reasoning. After

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reviewing the record, however, we conclude that in these circumstances the court

did not clearly abuse its discretion in granting an extension. “[B]y empowering

the courts to accept late filings where the failure to act was the result of excusable

neglect, Congress plainly contemplated that the courts would be permitted, where

appropriate, to accept late filings” in limited circumstances. Pioneer Inv. Servs.

Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 388 (1993) (quotation and

citation omitted). Because “the determination is at bottom an equitable one,” we

must “tak[e] account of all relevant circumstances surrounding the party’s

omission.” Id. at 395. Taking account of all the circumstances, we do not

conclude that the district court abused its discretion in granting the extension.

See City of Chanute v. Williams Natural Gas Co., 31 F.3d 1041, 1046 (10th Cir.

1994) (holding that district court did not abuse its discretion in granting an

extension, even though the reason for the neglect was “arguable,” in light of the

circumstances of the case and the fact that the other three Pioneer factors favored

the movant); see also Vogl, 374 F.3d at 982 (“[W]e generally give greater

deference in criminal appeals.”). Thus, the notice of appeal was timely filed and

this court may hear this interlocutory appeal. See Sell, 539 U.S. at 177 (holding

that the collateral-order exception applies to appeals of forced-medication orders).

                                      Mootness

      Unlike the timeliness of the notice of appeal in a criminal case, mootness is

a jurisdictional issue, see Chihuahuan Grasslands Alliance v. Kempthorne,

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545 F.3d 884, 891 (10th Cir. 2008). But a case is moot only “when it is

impossible to grant any effectual relief.” Id. “Even where it is too late to provide

a fully satisfactory remedy the availability of a partial remedy will prevent the

case from being moot.” BioDiversity Conservation Alliance v. Bureau of Land

Mgmt., 608 F.3d 709, 714 (10th Cir. 2010) (alterations and quotations omitted).

“If a party to an appeal suggests that the controversy has, since the rendering of

judgment below, become moot, that party bears the burden of coming forward

with the subsequent events that have produced that alleged result.” Chihuahuan

Grasslands Alliance, 545 F.3d at 891 (quotation omitted).

      The United States argues that this appeal is moot because Mr. Gallaway has

been committed to a federal medical center and has begun treatment. These facts,

however, do not establish the lack of any effectual remedy. The district court

authorized commitment and forcible medication for a period of 120 days in an

effort to make Mr. Gallaway competent for trial. If we were to reverse the district

court’s order at any time before the end of the 120-day period or before

Mr. Gallaway becomes competent, he would be able to avoid at least some

portion of the involuntary treatment. The government has not shown that the

treatment period has expired, that Mr. Gallaway has been declared competent, or

that the treatment has been discontinued for any other reason. Thus, there

remains at least a partial remedy. The appeal is not moot.




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                                           B.

      Moving on to the merits, “we bear in mind that involuntary administration

of antipsychotic medications implicates a constitutional right.” United States v.

Bradley, 417 F.3d 1107, 1113 (10th Cir. 2005). “[A]n individual has a

constitutionally protected liberty interest in avoiding involuntary administration

of antipsychotic drugs – an interest that only an essential or overriding state

interest might overcome.” Sell, 539 U.S. at 178-79 (quotations omitted).

      In Sell, the Supreme Court identified four factors that must be satisfied

before a defendant may be committed and forcibly medicated for the purpose of

making him competent to stand trial. “First, a court must find that important

governmental interests are at stake.” Id. at 180. “Second, the court must

conclude that involuntary medication will significantly further those concomitant

state interests.” Id. at 181. As part of the second factor, the court “must find that

administration of the drugs is substantially likely to render the defendant

competent to stand trial” and “that administration of the drugs is substantially

unlikely to have side effects that will interfere significantly with the defendant’s

ability to assist counsel in conducting a trial defense.” Id. “Third, the court must

conclude that involuntary medication is necessary to further those interests.” Id.

And “[f]ourth, . . . the court must conclude that administration of the drugs is

medically appropriate, i.e., in the patient’s best medical interest in light of his

medical condition.” Id.

                                          -6-
      The first and second factors primarily are legal questions, reviewed de

novo. See Bradley, 417 F.3d at 1113. The third and fourth factors depend on

factual findings, so they are reviewed for clear error. See id. at 1114. “A finding

of fact is clearly erroneous if it is without factual support in the record or if the

appellate court, after reviewing all the evidence, is left with a definite and firm

conviction that a mistake has been made.” Manning v. United States, 146 F.3d

808, 812 (10th Cir. 1998) (quotations omitted). In light of “the vital

constitutional liberty at stake” in avoiding forcible medication, in undertaking a

Sell analysis the district court must find all facts by “clear and convincing

evidence.” Bradley, 417 F.3d at 1114. “[T]he government establishes a fact by

clear and convincing evidence only if the evidence places in the ultimate

factfinder an abiding conviction that the truth of its factual contentions are highly

probable.” United States v. Valenzuela-Puentes, 479 F.3d 1220, 1228-29

(10th Cir. 2007) (alteration and quotations omitted).

      In this appeal, Mr. Gallaway challenges only the finding on the fourth

factor, that forcible medication is medically appropriate for him. With regard to

this factor, the district court found that antipsychotic medication “has a

well-documented history of producing beneficial clinical effects in patients with

the same psychosis as [Mr. Gallaway].” Aplt. App., Vol. 1 at 27. The court also

acknowledged that there were risks of side effects, but, according to the medical

experts, “these risks were manageable and would be monitored closely.” Id.

                                           -7-
“The doctors further noted that the risk associated with not treating

[Mr. Gallaway’s] illness are significant.” Id.

      Mr. Gallaway argues that the United States has not shown that the medical

benefits to him outweigh the “significant risks.” Aplt. Br. at 24. He contends

that the United States can forcibly medicate him only for the time needed for him

to face the charges against him; that the proposed course of treatment is not

reliably based on his particular circumstances; that he has shown he is capable of

attaining competency without medication; and that the risks from the medication,

including the possible side effects, “are considerable.” Id. at 26. In support of

his arguments, he points to United States v. Ruiz-Gaxiola, 623 F.3d 684, 704-06

(9th Cir. 2010), in which the Ninth Circuit held that the district court clearly erred

with regard to the fourth Sell factor.

      In Ruiz-Gaxiola, the government’s position that the proposed treatment was

the appropriate treatment for the defendant’s specific mental condition “was

thoroughly discredited by the defense and ultimately abandoned by the

government.” Id. at 697. And because the Ninth Circuit concluded with regard to

the second Sell factor that there was no record support for the proposition that

proposed treatment was substantially likely to restore the defendant’s

competency, it could not affirm the decision on the fourth Sell factor. Id. at 704.

Similarly, in reversing a forcible-medication order in Valenzuela-Puentes, we




                                          -8-
noted that persuasive record evidence contradicted the district court’s conclusions

about the efficacy of the proposed treatment. 479 F.3d at 1228-29.

      In contrast, in this case the district court credited the government’s

witnesses, and the record contains no contrary medical evidence. The medical

experts opined that Mr. Gallaway was not likely to become competent without

medication, and outlined why other forms of treatment likely would not work. 1

Further, referring to his specific condition, they opined that the particular

treatment they suggested was substantially likely to render him competent. The

record is clear that the treatment carries the risk of serious side effects, including

tardive dyskinesia. But the medical experts outlined protocols for minimizing the

risks of side effects, and they testified that they would monitor him closely and

modify or eliminate the treatment if they observed any profound side effects.

They also indicated that there were risks to leaving his mental illness untreated.

The medical practitioners’ unrebutted report and testimony provides clear and

convincing evidence to support the district court’s order. Finally, although not

part of the district court record, Mr. Gallaway filed supplemental briefing in this

1
      Mr. Gallaway suggests that he has shown an ability to become competent
without medication as recently as August 2008, and therefore “even if involuntary
medication would return [him] to a stable state, non-intrusive waiting might
accomplish the same thing.” Aplt. Br. at 26. But Mr. Gallaway was declared
incompetent in November 2009, so a year passed without improvement before the
court ordered treatment. And when asked whether he was likely to come out of
his manic state on his own, the psychiatrist testified it was “unlikely that his
symptoms will improve in a timely manner, without . . . an adverse outcome”
such as disruptive and problematic behaviors. Aplt. App., Vol. 3 at 9-10.

                                          -9-
appeal after the medication began, and identified no serious side effects as a

result of the treatment. Accordingly, the court did not clearly err in finding that

the proposed treatment was medically appropriate for Mr. Gallaway. See Bradley,

417 F.3d at 1115.

                                         III.

      The government’s motions to dismiss the appeal for untimeliness and for

mootness are DENIED. The district court’s order is AFFIRMED. 2


                                                     Entered for the Court



                                                     Timothy M. Tymkovich
                                                     Circuit Judge




2
        On April 13, 2011, this court received a voluminous set of documents from
Mr. Gallaway. Because he is represented by counsel in this appeal, we deny leave
to file these pro se documents. See United States v. Hildreth, 485 F.3d 1120,
1125 (10th Cir. 2007).

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