                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-1862
                                   ___________

United States of America,            *
                                     *
                 Appellee,           *
                                     * Appeal from the United States
      v.                             * District Court for the
                                     * Eastern District of Missouri.
Charles Thomas Sell,                 *
                                     *
                 Appellant,          *
                                     *
--------------------                 *
                                     *
Association of American Physicians   *
& Surgeons, Inc.                     *
                                     *
     Amicus on Behalf of Appellant. *
                                ___________

                             Submitted: October 15, 2001

                                 Filed: March 7, 2002
                                  ___________

Before BOWMAN, HEANEY and BYE, Circuit Judges.
                         ___________

HEANEY, Circuit Judge.


     Appellant Dr. Charles Sell, D.D.S. is charged with health care fraud, attempted
murder, conspiracy, and solicitation to commit violence. In this appeal, Sell
challenges the district court’s1 determination that he may be involuntarily medicated
with antipsychotic drugs for the sole purpose of rendering him competent for trial.
We affirm.

                                     I. Background

       On May 16, 1997, Sell was charged in a federal criminal complaint with
making false representations in connection with payments for health care services in
violation of 18 U.S.C. § 1035(a)(2). The government alleged that Sell and his wife
submitted false claims to Medicaid and private insurance companies for dental
services not provided, including false documentation and bogus x-rays in support of
these claims. On May 20, 1997, the government filed a motion for psychiatric
examination of Sell to determine his competence to stand trial.2 On May 20, 1997,
a magistrate judge ordered that Sell be sent to the U.S. Medical Center for Federal
Prisoners at Springfield, Missouri (“Springfield”) for an evaluation. On July 15,
1997, after receiving a psychiatric evaluation from Springfield, the district court held
that Sell was competent to stand trial. The report, which was accepted without
objection, stated that Sell was currently competent to stand trial but that there was a
possibility that he would develop a psychotic episode in the future. On July 30, 1997,
an indictment was returned against Sell and his wife, charging them with fifty-six
counts of mail fraud, six counts of medicaid fraud, and one count of money-
laundering.

      In August 1997, Sell was released on bond. On January 22, 1998, the
government filed a bond revocation petition alleging that Sell had violated the
conditions of his release by attempting to intimidate a witness. A warrant was issued

      1
       The Honorable Donald J. Stohr, United States District Court for the Eastern
District of Missouri.
      2
          Sell has a history of mental illness.

                                            -2-
for Sell’s arrest and he was brought before a magistrate judge for an initial
appearance. Sell's behavior at this appearance was out of control. He screamed,
shouted, and used racial epithets. Nonetheless, the judge tried to proceed, but when
she advised Sell of his rights, he leaned towards her and spit directly in her face.

       On January 26, 1998, a bond revocation hearing was held, and shortly
thereafter, the court ordered that Sell’s bond be revoked and that he be detained. At
this hearing, the court received evidence that Sell’s mental condition was
deteriorating. Sell was not sleeping at night because he expected the FBI to barge
into his house. A psychiatrist reported that Sell soon could become a danger to
himself and others.

       On April 23, 1998, Sell was charged in a second indictment with conspiring
and attempting to kill a witness and an FBI agent. The government contends that Sell
and his wife asked a hit man to plot the murder of a former employee at his dental
office who planned to testify against him on the fraud charges. The government also
alleges that Sell plotted to kill the African-American FBI agent who had arrested him.
The two indictments were joined.

      During the next several months, the trial date was continued on a number of
occasions at the request of both parties. On February 9, 1999, Sell’s counsel filed a
motion asking this court to hold a hearing to determine Sell’s competency. The
government filed a separate motion to have a government psychologist examine Sell.
Both Sell’s psychologist and the government psychologist diagnosed Sell with
delusional disorder, persecutory type.3

      3
       Delusional disorder is characterized by the presence of one or more non-
bizarre delusions that persist for at least one month. Diagnostic and Statistical
Manual of Mental Disorders IV at 296. The delusions are generally plausible ideas
that can conceivably occur in real life. Id. The persecutory subtype of delusional
disorder is characterized by a person’s belief that he is being conspired against,

                                         -3-
       On April 14, 1999, the district court held a hearing on Sell’s competency.
Upon consideration of the evidence, the court found that Sell was suffering from a
mental disease or defect rendering him incompetent to assist properly in his defense,
and thus incompetent to stand trial. The court ordered that Sell be hospitalized at
Springfield for a reasonable period of time not to exceed four months to determine
whether there was a substantial probability that Sell would attain the capacity to stand
trial.

       At Springfield, Sell was under the care of two clinicians, Dr. DeMier, the
clinical psychiatrist, and Dr. Wolfson, the consulting psychiatrist. Both Dr. DeMier
and Dr. Wolfson determined that Sell was in need of antipsychotic medication.4 On

cheated, spied on, followed, poisoned or drugged, maliciously maligned, harassed,
or obstructed in the pursuit of long term goals. Id. at 298.
      4
       Justice Kennedy described antipsychotic medications in his concurring
opinion in United States v. Riggins:

      First introduced in the 1950’s, antipsychotic drugs . . . have wide
      acceptance in the psychiatric community as an effective treatment for
      psychotic thought disorders. See American Psychiatric Press Textbook
      of Psychiatry 770-774 (J. Talbott, R. Hales, & S. Yodofsky eds. 1988
      (Textbook of Psychiatry); Brief for American Psychiatric Association as
      Amicus Curiae 6-7. The medications restore normal thought processes
      by clearing hallucinations and delusions. Textbook of Psychiatry at 744.

United States v. Riggins, 504 U.S. 127,141 (1992) (Kennedy, J., concurring). In
Washington v. Harper, the Supreme Court discussed the side effects associated with
antipsychotic medications:

      The purpose of the drugs is to alter the chemical balance in a patient’s
      brain, leading to changes, intended to be beneficial, in his or her
      cognitive processes. (Citation omitted). While the therapeutic benefits
      of antipsychotic drugs are well documented, it is also true that the drugs
      can have serious, even fatal, side effects. One such side effect identified

                                          -4-
June 9, 1999, an administrative hearing was held before a medical hearing officer.
Dr. DeMier and Dr. Wolfson testified in favor of using antipsychotic medication in
the treatment of Sell, and testified that it was the only way he could be restored to
competency. Sell proffered the affidavit of his psychiatrist, Dr. Cloninger, who
asserted that he did not think Sell would respond well to medication. Cloninger Aff.
¶¶ 8, 17. Sell also called a number of witnesses and testified that he did not want to
take antipsychotic medication and have his chemistry altered. The medical hearing
officer concluded that antipsychotic medication was the treatment of choice. This


      by the trial court is acute dystonia, a severe involuntary spasm of the
      upper body, tongue, throat, or eyes. The trial court found that it may be
      treated and reversed within a few minutes through use of the medication
      Cogentin. Other side effects include akathesia (motor restlessness, often
      characterized by an inability to sit still); neuroleptic malignant syndrome
      (a relatively rare condition which can lead to death from cardiac
      dysfunction); and tardive dyskinesia, perhaps the most discussed side
      effect of antipsychotic drugs. See Finding of Fact 9, App. to Pet. for
      Cert. B-7; Brief for American Psychological Association as Amicus
      Curiae 6-9. Tardive dyskinesia is a neurological disorder, irreversible in
      some cases, that is characterized by involuntary, uncontrollable
      movements of various muscles, especially around the face. See Mills,
      457 U.S., at 293, n. 1, 102 S.Ct., at 2445, n. 1. The State, respondent,
      and amici sharply disagree about the frequency with which tardive
      dyskinesia occurs, its severity, and the medical profession's ability to
      treat, arrest, or reverse the condition. A fair reading of the evidence,
      however, suggests that the proportion of patients treated with
      antipsychotic drugs who exhibit the symptoms of tardive dyskinesia
      ranges from 10% to 25%. According to the American Psychiatric
      Association, studies of the condition indicate that 60% of tardive
      dyskinesia is mild or minimal in effect, and about 10% may be
      characterized as severe. Brief for American Psychiatric Association et
      al. as Amici Curiae 14-16, and n. 12; see also Brief for American
      Psychological Association as Amicus Curiae 8.

Washington v. Harper, 494 U.S. 210, 229-30 (1990).

                                         -5-
finding was based on the fact that his delusional thinking could make him dangerous
and that no other drug could treat his delusional symptoms. Dr. Sell filed an
administrative appeal that was denied. The Medical Center delayed the
administration of the medication to give Sell the opportunity to seek review by the
district court.

       On September 29, 1999, a United States Magistrate Judge conducted a full
judicial hearing. At that hearing, the Government called two witnesses, Dr. DeMier
and Dr. Wolfson. They testified that Sell was in need of antipsychotic medication,
that his condition would continue to deteriorate without it, that his behavior could be
dangerous, and that antipsychotic medication was likely to restore him to
competency. On August 9, 2000, the magistrate entered an order finding that Sell
posed a danger to himself and others. United States v. Sell, No. 4: 98CR177, (E.D.
Mo. Aug. 9, 2000) (order granting government’s motion to involuntarily medicate
defendant). Based on this finding, the magistrate authorized the government to
forcibly medicate Sell with antipsychotic medication.

      In April 2001, the district court reversed the magistrate's finding that Sell posed
a danger to himself and others, noting that the evidence in the record was insufficient
to support such a finding. Despite this reversal, the district court affirmed the
magistrate's order, holding that the Government's interest in restoring Sell to
competency so that he can stand trial was alone sufficient to warrant forcible
medication.

        Sell appeals this decision and asks this court to decide whether the district
court erred in holding that he could be forcibly injected with antipsychotic drugs for
the sole purpose of restoring his competency to stand trial. Sell also asks us to
examine whether: (1) the district court applied the correct standard of review; (2)
whether the district court properly considered his Sixth Amendment right to a fair
trial, and (3) whether the government has proven by clear and convincing evidence

                                          -6-
that the medication is medically appropriate and that the medication has a reasonable
probability of restoring his competency. The Government argues that the district
court did not err on these grounds. It further argues that the district court’s finding
that Sell was not dangerous was erroneous and that Sell’s dangerousness provides an
alternate grounds for affirmance in this case.

                                    II. Discussion

A.    Sell’s Dangerousness to Himself and Others.

       First, we consider the government’s claim that the district court erred in
overturning the magistrate’s determination that Sell is dangerous. We review the
district court’s determination of questions of fact under the clearly erroneous
standard. See United States v. Kissinger, 986 F.2d 1244, 1246 (8th Cir. 1993). The
government argues that the district court did not give adequate weight to Sell’s
potential to be a danger to himself or others. The district court noted, however, that
Sell’s inappropriate behavior at Springfield amounted at most to an “inappropriate
familiarity and even infatuation” with a nurse. Upon review, we agree that the
evidence does not support a finding that Sell posed a danger to himself or others at
the Medical Center. The district court properly reversed the magistrate’s finding.

B. Forcible Administration of Antipsychotic Drugs to Restore Competency

        Next, we consider the question of whether the district court erred in holding
that a pretrial detainee may be forcibly injected with antipsychotic medication for the
sole purpose of rendering him competent to stand trial. This is an issue of first
impression for this court. Cf. Papantony v. Hedrick, 215 F.3d 863, 865 (8th Cir. 2000)
(holding that in the context of a Bivens action, there is no clearly established right of
a pre-trial detainee not to be forcibly administered antipsychotic drugs for the sole
purpose of rendering him competent for trial). In Washington v. Harper, the Supreme

                                          -7-
Court recognized that individuals possess “a significant liberty interest in avoiding
unwanted administration of antipsychotic drugs.” 494 U.S. 210, 221 (1990); cf.
United States v. Weston, 255 F.3d 873, 876 (D.C. Cir. 2001) (citations omitted) (“The
due process liberty interest in avoiding unwanted antipsychotic medication may be
‘significant,’ but it is not absolute.”). In Harper, a convicted prison inmate claimed
that the State of Washington violated his due process rights by administering
antipsychotic drugs against his will. 494 U.S. at 217. The Court acknowledged that
Harper had a liberty interest in avoiding unwanted medication but held that the “Due
Process Clause permits the state to treat a prison inmate who has a serious mental
illness with antipsychotic drugs against his will, if [the inmate] is dangerous to
himself or others and the treatment is in [the inmate’s] medical interest.” Id. at 211.

       In Riggins v. Nevada, the Court applied its Harper analysis to the issue of
whether a pre-trial detainee may be forcibly injected with antipsychotic medication
for the purpose of rendering him competent for trial. 504 U.S. 127 (1992). In
Riggins, a pre-trial detainee was forcibly administered the antipsychotic drug Mellaril
after a Nevada district court denied the detainee’s pre-trial motion to terminate the
medication with a one-page order that gave no indication as to the court's rationale.
See id. at 130-31. A jury convicted Riggins,5 and he appealed, arguing that the forced
administration of Mellaril denied him the ability to assist in his own defense and
prejudicially affected his attitude, appearance and demeanor at trial. See id. at 131.
Riggins further argued that the prejudice was not justified because the state did not
demonstrate a need to administer the drug, nor did it explore alternative treatments.
The Supreme Court agreed, and held that Riggins’s Fourteenth Amendment rights had
been violated because the Nevada court did not acknowledge the detainee's liberty
interest in freedom from unwanted medication, make any findings on the need for
forced medication, and make findings on reasonable alternatives to antipsychotic


      5
       At trial, Riggins unsuccessfully presented an insanity defense and was
convicted of murder and sentenced to death.

                                         -8-
medication. See id. at 136-37. The Court also noted that forcible administration of
antipsychotic drugs may have interfered with Riggins’s Sixth Amendment right to a
fair trial. See id. The Court, therefore, reversed and remanded the case.

       The Supreme Court did not have the opportunity to determine when
involuntary medication could be used on a pre-trial detainee because the Nevada
court offered the accused almost no protection against involuntary medication. The
Supreme Court did note, however, that:

      Under Harper, forcing antipsychotic drugs on a convicted prisoner is
      impermissible absent a finding of overriding justification and a
      determination of medical appropriateness. The Fourteenth Amendment
      guarantees at least as much protection to persons the state detains for
      trial. (Citation omitted).

            . . . Nevada certainly would have satisfied due process if the
      prosecution had demonstrated, and the district court had found, that
      treatment with antipsychotic medication was medically appropriate and,
      considering less intrusive alternatives, essential for the sake of Riggins'
      own safety or the safety of others. (Citation omitted). Similarly, the state
      might have been able to justify medically appropriate, involuntary
      treatment with the drug by establishing that it could not obtain an
      adjudication of Riggins’ guilt or innocence by using less intrusive
      means.

Id. at 135.

      Based on this language, we conclude that subject to the limitations outlined
below, the government may forcibly administer antipsychotic medication for the sole
purpose of rendering a pre-trial detainee competent to stand trial without violating the
accused’s due process rights.




                                          -9-
C.    The Standard of Review for Forcible Administration of Antipsychotic Drugs.

       We now consider Sell’s claim that the district court employed the wrong
standard of review to determine whether forced administration of medication is
appropriate in this case. Sell encourages us to adopt strict scrutiny, but the Supreme
Court declined to adopt such a standard in Riggins. See Riggins 504 U.S. at 136.6
Based on the Supreme Court’s decision in Riggins and Harper, and the decisions of
our sister courts,7 we hold that the government must meet the following test in order


      6
       The court stated: “ We have no occasion to finally prescribe such substantive
standards . . . since the District Court allowed administration of Mellaril to continue
without making any findings about reasonable alternatives.” Riggins, 504 U.S. at
136.
      7
       Other courts have come to contradictory conclusions on what substantive
standards are necessary to satisfy a pretrial detainee’s due process rights. The Sixth
Circuit held that courts must apply the strict scrutiny standard when the state wishes
to forcibly medicate a non-dangerous pre-trial detainee. See United States v.
Brandon, 158 F.3d 947, 960 (6th Cir. 1998). The D.C. Circuit interpreted Riggins to
require “heightened scrutiny” that takes into consideration the severity of
infringement that antipsychotic drugs impose on an individual's liberty interest, the
need to find an essential state policy that provides an overriding justification for
forced medication, and a requirement to consider less intrusive alternatives. See
United States v. Weston, 255 F.3d 873, 880 (D.C. Cir. 2001). Similarly, the Southern
District of California refused to adopt a strict scrutiny standard. Rather, it stated that
the government must meet the following standard:

      First, the government must demonstrate that “administration of anti-
      psychotic drugs is necessary to accomplish an essential state policy.”
      (Citation omitted). Second, the government must show that “there is a
      sound medical basis for treatment with anti-psychotic medication.”
      (Citation omitted). In making this showing, the government may
      provide “medical testimony regarding [Defendant's] mental illness and
      its symptoms as well as the effects that anti-psychotic medication will
      have, both beneficial and harmful, on [Defendant's] physical and mental

                                          -10-
for the government to forcibly medicate an individual. First, the government must
present an essential state interest that outweighs the individual’s interest in remaining
free from medication. See Riggins, 540 U.S. at 135 (noting that the government must
prove an overriding state interest). Second, the government must prove that there is
no less intrusive way of fulfilling its essential interest. See id. Third, the government
must prove by clear and convincing evidence that the medication is medically
appropriate. See id. Medication is medically appropriate if: (1) it is likely to render
the patient competent, see Weston, 255 F.3d at 876; (2) the likelihood and gravity of
side effects do not overwhelm its benefits, see id.; and (3) it is in the best medical
interests of the patient. See Harper, 494 U.S. at 227 (noting that the court should
consider the petitioner’s medical interest). The district court did not explicitly apply
this test, so we review the district court in light of the standards we have set forth.

       The first question, therefore, is whether the district court erred by holding that
the government’s interest in bringing Sell to trial is sufficient to outweigh Sell’s
interest in refusing medication. This is a mixed question of law and fact, so we
review the district court’s finding de novo. See Boysiewick v. Schriro, 179 F.3d 616,
619 (8th Cir. 1999). To make this determination, we must weigh the government’s

      health.” Third, and most importantly, the government must establish
      “that there is no significant risk that the medication will alter in any
      material way the defendant's capacity or willingness to react to
      testimony at trial or assist counsel.” (Citation omitted). [T]he
      government must establish these elements by clear and convincing
      evidence.

United States v. Sanchez-Hurtado, 90 F. Supp.2d 1049, 1055 (S.D. Cal. 1999). Like
our sister courts, we believe that we must apply some sort of heightened standard of
review, but unlike the Sixth Circuit, we do not adopt the strict scrutiny standard. See
e.g. Weston, 255 F.3d at 888 (noting that the Supreme Court denied adopting a strict
scrutiny test in Riggins but also appeared not to apply a reasonableness test or its
various analogues: arbitrary and capricious, rational basis or exercise of professional
judgment).

                                          -11-
interest in rendering Sell competent against Sell’s interest in refusing unwanted
medication.

        The government has an essential interest in bringing a defendant to trial. See
Illinois v. Allen, 397 U.S. 337, 347 (1970) (Brennan, J., concurring) (“Constitutional
power to bring an accused to trial is fundamental to a scheme of ‘ordered liberty’ and
a prerequisite to social justice and peace.”). Not all charges, however, are sufficient
to justify forcible medication of a defendant; rather, the charges must be serious. See
United States v. Brandon, 158 F.3d 947, 961 (6th Cir. 1998). Here, the sixty-two
charges of fraud and the single charge of money-laundering are serious, a fact not
denied by the defendant.8 Despite Sell’s significant liberty interest in refusing
antipsychotic medication, in view of the seriousness of the charges, we believe that
the government’s interest in restoring his competency so that he may be brought to
trial is paramount.9

       The second part of our analysis is whether the district court erred in finding
that there were no less intrusive means by which the government may achieve its
essential interest. See Riggins, 540 U.S. at 135 (noting that the government must
prove that there is no less intrusive means). The government may not constitutionally
bring an incompetent defendant to trial, see Pate v. Robinson, 383 U.S. 375 (1966),
so the only way the government may try Sell is by restoring his competency. Both
Dr. Wolfson and Dr. DeMier testified that antipsychotic medication is the most

      8
       Although Sell is also charged with conspiring to murder an FBI officer and a
witness, we base our reasoning solely on the seriousness of the fraud charges. It is
possible that Sell’s threats after his first indictment were a manifestation of his
delusional disorder and we decline to make a determination about whether those
charges suffice to involuntarily medicate him.
      9
        We note that the government’s interest in preserving a scheme of ordered
liberty can only be achieved if a defendant is competent at trial. If the medication
does not render Sell competent, his trial cannot proceed. See infra Part II.D.

                                         -12-
effective treatment for delusional disorder and that it is the only way Sell could be
restored to competency. See Transcript of Evidentiary Hr’g, Sept. 29, 1999 at 21, 75-
78. Even Dr. Cloninger, who submitted an affidavit on behalf of Sell and stated that
antipsychotic drugs are not a proven treatment, did not suggest any alternative means
of restoring competency. See generally Cloninger Aff. Based on this evidence, we
believe that the district court correctly concluded that there were no less intrusive
means.

       Third, we must determine whether the evidence supports the district court’s
conclusion that antipsychotic medication is medically appropriate for Sell’s treatment.
We review the district court’s findings of fact under the clearly erroneous standard.
See Love v. M.D. Reed, 216 F.3d 682, 687 (8th Cir. 2000). Whether a proposed
action is medically appropriate depends on the judgment of medical professionals.
See Harper, 494 U.S. at 231, 233-34. At the hearing before the Magistrate Judge, the
government presented testimony from Dr. DeMier and Dr. Wolfson. Dr. DeMier,
Sell’s treating psychologist, testified that antipsychotic medication is the only
treatment that has been shown to be effective in treating delusional disorder and it is
the only treatment that could restore Sell to competency. He also stated that he has
treated two patients suffering from delusional disorder with antipsychotic medication.
Of the two, one was restored to clinical competency; the other patient improved, but
did not regain competency.10 Dr. DeMier also stated that antipsychotic medications
have “potentially significant side effects, but there’s also potentially, very significant
recovery from symptoms.”

       Dr. Wolfson, the staff psychiatrist who works as a consultant on Sell’s case,
also recommended that Sell be treated with antipsychotic drugs. Dr. Wolfson has


      10
        The patient who was successfully treated was given Haldol, a typical
antipsychotic drug. The patient who was not restored to competency received
Olanzapine, an atypical antipsychotic drug.

                                          -13-
treated seven patients with delusional disorder but only four for the purpose of
restoring competency.11 Dr. Wolfson reported that all seven benefitted clinically from
antipsychotic medication and of the four who were treated for restoration of
competency, three regained competency. Dr. Wolfson testified that the medical
literature indicated that patients with delusional disorder respond less to medication
than patients with other illnesses, but he stated that he doubts the accuracy of that
conclusion and noted that the literature shows favorable results in many cases.12 Dr.
Wolfson admitted that there are both harmful and unpleasant side effects to
antipsychotic drugs; these include sedation, neuroleptic malignant syndrome, which
is rare but fatal,13 and tardive dyskinesia and/or dystonic reaction, which causes a
person to have involuntary movements of various parts of the body. Dr. Wolfson also
stated, however, that the existence and/or degree of side effects could be controlled
by changes in the doses and type of medication being used. He testified that the new
generation of atypical antipsychotic drugs, such as Pimozide, have more benign side
effects than the older typical antipsychotic drugs, such as Haldol. Dr. Wolfson
admitted, however, that the atypical drugs can only be administered orally, and
therefore cannot be used to forcibly drug uncooperative patients.


      11
        He treated one of the patients twice. This patient was restored to competency,
relapsed, then restored a second time.
      12
           Dr. Wolfson explained that:

      First, the delusions stop expanding. . . . It’s even conceivable that some
      delusional material may regress. . . . [O]ur first goal [is] to diminish the
      impact on . . . actions and . . . judgment of the illness. Second, [is] to
      minimize the expansion of the delusional system. . . . [I]t’s typically
      been my experience [that this is] accomplished with other patients.

Transcript of Evidentiary Hr’g, Sept. 29, 1999 at 137.
      13
       Dr. Wolfson testified that the incidence of this side-effect is one in ten
thousand cases.

                                         -14-
        To combat this testimony, Sell presented the affidavit of Dr. Cloninger. Dr.
Cloninger stated that “there is no evidence that [antipsychotic medications] are
beneficial for patients with Delusional Disorder.” Cloninger Aff. at 8. Dr. Cloninger
admitted that antipsychotic drugs are often beneficial in treating schizophrenia but
maintained that they do not provide the same benefit in the treatment of delusional
disorder. Dr. Cloninger attached to his affidavit an excerpt from the American
Psychiatric Press Textbook of Psychiatry. That text notes that there is a disagreement
between experts on the effectiveness of treating delusional disorders with
antipsychotic medication, but it also states that the medication may be useful,
particularly for accompanying anxiety, agitation, and psychosis. Donald W. Black
et.al., Schizophrenia, Schizophreniform Disorder, and Delusional (Paranoid)
Disorders, in Textbook of Psychiatry (John A. Talbott et. al. eds.) 1988.          Dr.
Cloninger was not able to recommend a less intrusive alternative to restore Sell to
competency; rather, he suggested that treatment be limited to basic support and
voluntary symptomatic treatment, and that such treatment also include access to
exercise and reading material. See Cloninger Aff. ¶¶ 18-19.

      In addition, Sell also presented the court with a report from the Federal Bureau
of Prisons Institutional Metropolitan Correctional Center (“MCC”) in which Dr.
Daniel Greenstein, the forensic psychologist at MCC, stated that delusional disorders
do not typically respond to medication or psychotherapy.

       Based on the totality of this evidence, Sell argues that the district court was
clearly erroneous in finding that antipsychotic medication was medically appropriate.
He contends that the district court erred by basing its finding, in part, on testimony
that atypical antipsychotic medications have more benign side effects, because
atypical drugs can only be administered orally, thus they cannot be given
involuntarily. Sell also argues that the government did not prove that the medication
has a reasonable probability of restoring competency. Finally, Sell argues that the
court erred in finding medical appropriateness when the government failed to disclose

                                        -15-
which medication it would use.14 Sell posits that without knowing which drugs would
be administered, he was incapable of making anything more than a generalized
argument. See United States v. Sell, No. 4: 98CR177 at 7 (April 4, 2001) (upholding
Magistrate’s order allowing the involuntarily medication of Sell and stating that Sell’s
arguments against medication were generalized).

       We disagree with these assertions. We acknowledge that there is a difference
of opinion on the efficacy of using antipsychotic drugs to treat delusional disorder,
but we do not believe that the district court committed clear error in finding that the
government proved medical appropriateness by clear and convincing evidence. First,
the government presented evidence that the medication can reasonably be expected
to minimize Sell’s delusions and render him competent for trial. Dr. DeMier has a
50% success rate and Dr. Wolfson has a 75 % success rate in restoring competency
to patients with delusional disorders. Moreover, the medication improved the
condition of all the patients they treated, whether or not they were restored to
competency. Dr. Wolfson testified about how the medication works, stating that the
medication should reduce the impact of the delusion on Sell’s thought process.
Although we cannot say with 100% certainty whether Sell will regain competency
with his treatment, the district court did not clearly err in finding a sufficient
likelihood that antipsychotic medication will restore Sell’s competence.

       Second, the government proved that the side-effects produced by the
medication could be minimized through careful treatment and changing medications
and dosages. Although Dr. Wolfson did not name a specific medication, he did name
the two he would most likely use. Therefore, we reject Sell’s contention that he was
not given the opportunity to make specific objections to specific drugs. Furthermore,


      14
       Dr. Wolfson stated that he did not want to be pinned down to a single drug
because he hoped to leave part of the choice up to Sell. He recommended that the
drugs Quetiapine or Olanzapine be used.

                                         -16-
we reject Sell’s argument that the court erred in basing its opinion in part on the
availability of atypical antipsychotic drugs which can only be administered orally.
The availability of the atypical medications was not determinative to the district
court’s findings, and the evidence supports the conclusion that the doctors treating
Sell will be able to reduce the incidence of unpleasant and harmful side-effects
produced by typical antipsychotic medication as well.

       Finally, the district court appropriately considered Sell’s medical interest. The
court noted that Sell’s delusions interfere with his ability to make sound judgments
about his life and his treatment, and that his disorder currently impairs and misleads
his interpretation of reality and his reasoning. The government presented evidence
that antipsychotic medication is commonly used to help reduce delusions and their
impact on an individual’s life, and the court found that these benefits outweighed the
risks associated with antipsychotic drugs.

       The district court did not err in applying the wrong standard of review. As
required, the court found that the government has an essential interest in adjudicating
the serious charges against Sell. The court found that involuntary medication is the
only way for the government to achieve its interest in fairly trying Sell and found that
the medication is medically appropriate for him. The government proved these
elements by clear and convincing evidence. Therefore, we find no reversible error
in the standard of review employed by the district court.

      We note, however, that this is a limited holding. We do not believe this
standard will be met in all circumstances in which the government wishes to restore
competence. Furthermore, we note that an entirely different case is presented when
the government wishes to medicate a prisoner in order to render him competent for
execution. See, e.g., Singleton v. Norris, 267 F.3d 859 (8th Cir. 2001), vacated and
reh’g en banc granted (Dec. 5, 2001). Therefore, our holding must be read narrowly.



                                         -17-
D.    Sell’s Sixth Amendment Rights

       Finally, we consider whether the district court properly considered Sell’s Sixth
Amendment right to a fair trial when it ordered the forcible medication. The district
court held that Sell’s Sixth Amendment claim was premature because the effects of
the medication on his competency to assist counsel and on his demeanor could
properly be considered after medication. We note that before forcibly medicating an
accused, there must be evidence that he will be able to participate in a fair trial. See
Brandon, 158 F.3d at 960. That burden was met in this case. First, the magistrate
found that the evidence indicated that Sell would be able to participate meaningfully
in his trial while he is under the influence of the medication. See United States v.
Sell, 4:98CR177 at 13 (E.D. Mo. Aug. 9, 2000). Also, the magistrate found that the
medication would allow him to communicate with his counsel in a rational manner.
See id. The magistrate further noted that Dr. Wolfson intends to use drugs with a low
side-effect profile, to change drugs and dosages based on the side-effects Sell
experiences, and above all, to avoid sedation. See id. The district court affirmed
these findings. See generally United States v. Sell, 4:98CR177 at 5-9 (E.D. Mo. Apr.
4, 2001)

       We find that the medical evidence presented indicated a reasonable probability
that Sell will fairly be able to participate in his trial. As a result, we believe that the
effects of the medication on Sell’s competency and demeanor may properly be
considered once the medication is administered. The district court noted its
willingness to re-examine Sell’s Sixth Amendment claim after the medication
regimen has begun. See id. at 15. The evidence offered, that the drugs should not
interfere with Sell’s right to a fair trial, as well as post-medication procedures that
ensure he will not be tried unfairly, are sufficient to protect Sell. There is no
reversible error.




                                           -18-
                                    III. Conclusion

      Having found no reversible errors, we affirm the district court’s
determination that Sell may be involuntarily medicated for the purpose of
rendering him competent to stand trial.

BYE, Circuit Judge, dissenting.

      Unlike the majority, I would apply the strict scrutiny standard of review for the
reasons enunciated by the Sixth Circuit in United States v. Brandon, 158 F.3d 947,
956-61 (6th Cir. 1998). But even under the majority's three-part test, the charges
against Dr. Sell are not sufficiently serious to forcibly inject him with antipsychotic
drugs on the chance it will make him competent to stand trial. I therefore respectfully
dissent.

       The first part of the majority's test requires the government to demonstrate an
essential interest that outweighs his interest in remaining free from medication. Ante
at 11. The majority perfunctorily concludes the government's interest in prosecuting
the defendant for sixty-two counts of fraud and one count of money laundering
qualifies as an essential interest that trumps Dr. Sell's significant liberty interest in
refusing antipsychotic medication. I strongly disagree.

       While the government possesses an interest in bringing a defendant to trial,
ante at 12, I do not believe every charge is sufficient to justify forcible medication of
a defendant. See Riggins v. Nevada, 504 U.S. 127, 135 (1992) (stating the
government might be able to medicate a defendant involuntarily if "it could not obtain
an adjudication of [his] guilt or innocence by using less intrusive means") (emphasis
added). It is helpful to compare two recent decisions confronting this precise issue.
In United States v. Weston, 255 F.3d 873 (D.C. Cir. 2001), the Court of Appeals for

                                          -19-
the District of Columbia recognized the government's interest in adjudicating those
who violate the law. In that case, Russell Weston entered the Capitol building and
shot three police officers, killing two of them. A grand jury indicted Weston on two
counts of murder, and one count of attempted murder of a federal law officer, in
addition to three counts of using a firearm in a crime of violence. Weston explained
that "[t]he government's interest in finding, convicting, and punishing criminals
reaches its zenith when the crime is the murder of federal police officers in a place
crowded with bystanders where a branch of government conducts its business." 255
F.3d at 881. Weston also noted "[t]he statutory sentences for the crimes Weston is
accused of committing—life in prison and death—reflect the intensity of the
government's interest in bringing those suspected of such crimes to trial." Id.
(emphasis added).

       Weston typifies the case where the government's interest is paramount because
the charges include the most serious crimes known to man. Few cases involve crimes
as serious as those in Weston, however. In Brandon, the Sixth Circuit noted the
government's reduced interest in trying a defendant accused of lesser crimes. 158
F.3d at 947. Ralph Brandon was charged with sending a threatening communication
through the mail. The Sixth Circuit stated "[w]e find it difficult to imagine . . . that
the government's interest in prosecuting the charge of sending a threatening letter
through the mail could be considered a compelling justification to forcibly medicate
Brandon." Id. at 961; cf. Bee v. Greaves, 744 F.2d 1387, 1395 (10th Cir. 1984)
(questioning whether the state's interest in trying suspects could ever outweigh a
criminal defendant's interest in avoiding forcible medication with antipsychotic
drugs). Brandon also noted the maximum penalty the defendant faced for sending a
threatening communication—five years imprisonment. 158 F.3d at 961.

      Weston and Brandon teach us that the forcible administration of antipsychotic
medication may be warranted when the government seeks to prosecute incontestably
serious crimes, but not when it seeks to prosecute crimes less so. Cases involving

                                         -20-
crimes of intermediate severity may present vexing questions, but Dr. Sell's case
poses no such challenge. The crimes with which he has been charged are comparable
to those in Brandon and thoroughly distinct from those in Weston. Dr. Sell is charged
with making false representations in connection with the payment of health care
services, 18 U.S.C. § 1035(a)(2), and money laundering, 18 U.S.C. § 1957(a). The
maximum penalty for these charges is five and ten years imprisonment, respectively.
He cannot be put to death nor imprisoned for life if convicted of these crimes, as was
the case in Weston. He is charged with crimes which are far less serious than the
violent, heinous and deadly crimes with which Weston was charged. Indeed, they are
nonviolent and purely economic. There is no identifiable victim for these types of
crimes; rather, only society's interest is harmed.

       The majority deems the charges serious in part because of the number of counts
Dr. Sell faces (63). At first blush, the sixty-two counts of fraud and the single count
of money laundering might appear to make the charges seem more serious, but the
sheer number is an inaccurate yardstick for measuring the severity of his alleged
offenses. He will be sentenced under the United States Sentencing Guidelines, which
direct his sentence to be determined by the total dollar value of the fraud, not the
number of counts. See U.S. Sentencing Guidelines Manual (U.S.S.G.) ch. 3 pt. D &
§§ 5G1.2, 2B1.1, 2S1.1 (2001). An overly generous estimation of Dr. Sell's alleged
illegal activity would place the value of his fraud within the range of $400,000 to
$1,000,000. Applying this estimate, his base offense level would be 20 and
(assuming he has no prior criminal history) his sentencing range would be 33-41
months. See U.S.S.G. § 2B1.1. This sentencing range demonstrates the charges
against him are not serious enough to justify forcible medication. Ante at 12 ("Not
all charges, however, are sufficient to justify forcible medication of a defendant;
rather, the charges must be serious). In any event—setting aside the Guideline
estimations altogether—Dr. Sell’s potential sentence is far more proportional to the
maximum five year sentence in Brandon than to the maximum life-in-prison and
death sentences in Weston.

                                         -21-
       The majority states Dr. Sell does not deny the severity of the fraud and money
laundering charges. Ante at 12. This representation is wrenched from its context,
however. While he does not deny the severity of these charges in the abstract, he
certainly does not concede they are serious enough to warrant forced medication. In
fact, Dr. Sell devotes most of his efforts to defending and minimizing the charges of
conspiring to murder an FBI agent and witness, not to discussing the fraud and money
laundering charges.

       More telling still, neither the government nor the district court believe the fraud
and money laundering charges alone support the forcible administration of
medication. The government all but dismisses these counts when arguing about the
severity of the charges against him. The government focuses its attention almost
entirely on the charges related to the conspiracy to murder the FBI agent and witness.
Neither in its brief, nor during oral argument, has the government claimed the fraud
and money laundering charges by themselves are serious enough to warrant forced
medication. Likewise, the district court acknowledged the conspiracy to commit
murder charges tipped the balance in its conclusion that Dr. Sell's alleged offenses
were serious enough to warrant the forcible administration of antipsychotic drugs.

       Although the majority properly omits the charges of conspiracy to commit
murder from its analysis, ante at 12 n.8, the majority inexplicably turns a blind eye
to the apparent agreement of all parties that the fraud and money laundering charges
alone are insufficiently serious to warrant forcible medication. This course of action
is questioned.

       This is not meant to suggest the crimes with which Dr. Sell has been charged
should not be prosecuted. They will and should be. However, this defendant should
not be forced to take antipsychotic drugs in order to be prosecuted for them. The
government’s interest in forcibly medicating an accused murderer may be essential,
but its interest in forcibly medicating an accused thief is not. In my view, these

                                          -22-
charges are not serious enough to warrant the forced medication of the defendant,
who, we must not forget, is a non-dangerous pre-trial detainee cloaked with the
presumption of innocence. As a result, the government has failed to satisfy the first
part of the majority's three-part test.

                                          ***
       The government is not without recourse upon a finding that the charges against
Dr. Sell are insufficiently serious to warrant forcible medication. He will not be set
free. A civil commitment is in order for him until he becomes competent, or
voluntarily agrees to take medication. See Riggins, 504 U.S. at 145 (Kennedy, J.,
concurring) (stating that if the State cannot render the defendant competent without
involuntary medication, then it must resort to civil commitment). The government
asserts that its interest in punishing crime will be diminished by the option of civil
commitment. It is true Dr. Sell’s criminality will not be adjudicated as the civil
commitment unfurls. However, the government’s interest in forcing him to stand trial
on charges that may result in such limited punishment does not outweigh his
substantial rights under the First, Fifth and Sixth Amendments. See Brandon, 158
F.3d at 956-61 (enumerating an individual's rights in refusing antipsychotic
medication).

      I respectfully dissent.

      A true copy.

             Attest:

                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                        -23-
