               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,              No. 12-30264
            Plaintiff-Appellee,
                                         D.C. No.
              v.                   3:11-cr-00074-HA-1

JOSEPH HARVEY BROOKS,
          Defendant-Appellant.            OPINION


    Appeal from the United States District Court
              for the District of Oregon
  Ancer L. Haggerty, Senior District Judge, Presiding

                Argued and Submitted
        February 5, 2014—Seattle, Washington

                   Filed May 7, 2014

    Before: Raymond C. Fisher, Ronald M. Gould,
        and Morgan Christen, Circuit Judges.

              Opinion by Judge Christen
2                  UNITED STATES V. BROOKS

                           SUMMARY*


                          Criminal Law

    The panel vacated the district court’s order authorizing
involuntary medication in order to render the defendant
competent to stand trial, in a case in which the parties agree
that remand is necessary so that specific time limitations may
be added to the involuntary-medication order.

    The panel held that the district court did not clearly err in
determining that the defendant suffered from a mental illness.

    Because over a year has passed since the district court’s
order was entered, the panel believed that a new inquiry
pursuant to Sell v. United States is required, and took the
opportunity to provide additional guidance concerning the
procedures to be followed on remand. The panel instructed
the district court to make a specific determination that no
other basis for forcibly administering medication is
reasonably available before conducting a new Sell analysis.

    Regarding the Sell requirement that important
governmental interests must be at stake, the panel wrote that
the district court must consider, on the one hand, the potential
for and anticipated length of future civil commitment in the
event the defendant is not medicated and the amount of time
the defendant has already been confined, versus the period of
confinement that could reasonably be expected if the
defendant were restored to competency and convicted of the

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 UNITED STATES V. BROOKS                     3

charged offense. The panel wrote that the district court
should also consider any other significant factors that could
strengthen or weaken the governmental interests in
prosecuting the defendant, including the extent to which
delaying the prosecution could jeopardize the government’s
position at trial.


                         COUNSEL

C. Renée Manes (argued), Assistant Federal Public Defender,
Office of the Federal Public Defender, Portland, Oregon, for
Defendant-Appellant.

Stephen F. Peifer (argued), Assistant United States Attorney,
S. Amanda Marshall, United States Attorney, Kelly A.
Zusman, Appellate Chief, Office of the United States
Attorney, Portland, Oregon, for Plaintiff-Appellee.


                         OPINION

CHRISTEN, Circuit Judge:

     Among the most weighty decisions our society can make
is to subject someone to a powerful medication against his or
her will. The government must meet the demanding standard
set by the Supreme Court in Sell v. United States, 539 U.S.
166 (2003), before involuntary medication may be
administered in an effort to restore a defendant’s competency
to stand trial. This case requires that we consider whether the
district court appropriately authorized involuntary medication
in order to render Joseph Brooks competent to stand trial for
arson. Brooks and the government agree that remand is
4                  UNITED STATES V. BROOKS

necessary so that specific time limitations may be added to
the district court’s order authorizing involuntary medication.
Because over a year has passed since the district court’s order
was entered, we believe a new Sell inquiry is required, and
we take this opportunity to provide additional guidance
concerning the procedures to be followed on remand.

                         BACKGROUND

    Joseph Harvey Brooks, age 53, has a lengthy history of
mental health issues including paranoid schizophrenia. This
is not the first time a government entity has sought to
medicate Brooks against his will. After he was charged with
assault in 2004, Brooks underwent several forensic
evaluations of his mental health. In 2004 and 2005, he was
hospitalized to restore his competency to stand trial for
assault. During this period, a Washington state court
authorized a hospital to treat Brooks with antipsychotic
medications if necessary, and he received such medications.

    The current appeal relates to a different incident. The
government alleges that Brooks attempted to set fire to cables
connecting a radio antenna on a roof at Oregon Health
Sciences University. Brooks was indicted for arson in federal
district court in 2011. After reviewing Brooks’s forensic
mental health evaluations, the district court found Brooks
mentally incompetent to stand trial and ordered his
hospitalization pursuant to 18 U.S.C. § 4241(d)(1).1 On


    1
     Under 18 U.S.C. § 4241(d)(1), a federal court may hospitalize a
mentally incompetent defendant “for such a reasonable period of time, not
to exceed four months, as is necessary to determine whether there is a
substantial probability that in the foreseeable future he will attain the
capacity to permit the proceedings to go forward.”
                    UNITED STATES V. BROOKS                              5

December 16, 2011, Brooks was admitted to the U.S. Medical
Center for Federal Prisoners in Springfield, Missouri.

    An internal administrative hearing pursuant to 28 C.F.R.
§ 549.43 was held on March 5, 2012 at the federal medical
facility to determine if Brooks met the criteria for involuntary
administration of antipsychotic medication for reasons such
as grave disability or because he posed a danger to himself or
to others at the facility.2 This proceeding is referred to as a
Harper hearing.3 See Washington v. Harper, 494 U.S. 210
(1990). The hearing officer determined that Brooks did not
meet the Harper criteria, and he was not involuntarily
medicated.

    The government then filed a motion seeking court
approval to medicate Brooks with antipsychotic drugs against
his will so that he would regain competency to stand trial,
pursuant to the Supreme Court’s decision in Sell. 539 U.S. at
177–83. In Sell, the Court reaffirmed that “an individual has
a significant constitutionally protected liberty interest in
avoiding the unwanted administration of antipsychotic
drugs.” Id. at 178 (citation and internal quotation marks
omitted). Sell also held that “the Constitution permits the
Government involuntarily to administer antipsychotic drugs
to a mentally ill defendant facing serious criminal charges in
order to render that defendant competent to stand trial,” but
only if a court determines that four conditions are met. Id. at
179. These conditions, which we refer to as the “Sell


   2
    The procedures that must be followed before medication may be
involuntarily administered to an inmate are outlined in 28 C.F.R. § 549.46.
  3
    At oral argument for this appeal, the government agreed that the
March 5, 2012 internal administrative hearing was a Harper hearing.
6                   UNITED STATES V. BROOKS

factors,” are that: (1) there are “important governmental
interests” at stake; (2) “involuntary medication will
significantly further those concomitant state interests;”
(3) “involuntary medication is necessary to further those
interests;” and (4) “administration of the drugs is medically
appropriate, i.e., in the patient’s best medical interest in light
of his medical condition.” Id. at 179–81.

    Under Sell, before a court orders involuntary medication
for purposes of restoring competency to stand trial, the court
must determine “whether the Government seeks, or has first
sought, permission for forced administration of drugs on . . .
other, Harper-type grounds; and, if not, why not.” Id. at
183.4

    The Sell standard for involuntary medication is “more
demanding” than the Harper standard.5 United States v.
Loughner, 672 F.3d 731, 747 (9th Cir. 2012). Sell inquiries
are “disfavored,” United States v. Rivera-Guerrero, 426 F.3d
1130, 1137 (9th Cir. 2005), in part because they are less
“objective and manageable” than Harper inquiries, id.
(quoting Sell, 539 U.S. at 182). We have explained that,


    4
    Accordingly, our court has held that “prior to undertaking the Sell
inquiry, a district court should make a specific determination on the record
that no other basis for forcibly administering medication is reasonably
available,” and that “[i]f a district court does not conduct a dangerousness
inquiry under Harper, it should state for the record why it is not doing so.”
United States v. Hernandez-Vasquez, 513 F.3d 908, 914 (9th Cir. 2007).
    5
    Harper 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.” 494 U.S. at 227; see Sell,
539 U.S. at 178.
                 UNITED STATES V. BROOKS                      7

under Harper, “an inmate . . . is being treated for reasons that
are in his and the institution’s best interests,” while under
Sell, “the inmate is being treated because of the government’s
trial interests, not the prison’s interests or the inmate’s
medical interests.” Loughner, 672 F.3d at 758–59. Put
another way, the Harper inquiry determines whether
medication may be involuntarily administered “to render an
individual nondangerous” during confinement, while a Sell
inquiry asks whether medication is necessary to allow the
government to prosecute the individual. Id. at 747.

     In this case, on August 7, 2012, the district court held a
Sell hearing on the government’s motion for involuntary
medication. Brooks testified that a “Ku Klux Klan Mafia
mob organization” was trying to murder him, as foretold in
the Biblical Book of Revelations. He claimed that a contract
to kill him had been put out by the “kingpin” of the Ku Klux
Klan—allegedly “the owner manager of the Riverside Motel
in Vancouver, Washington.” He stated “I am not a violent
person,” and “I’m not psychotic or delusional.” In response
to the court’s questioning, he indicated his willingness to take
medications “as a last resort . . . until I get some appropriate
help from law enforcement” in fighting the Ku Klux Klan
mafia. But later in the hearing, referring to the Ku Klux Klan
or mafia conspiracy against him, he stated: “I don’t need no
medication to stop something that ain’t gonna be stopped by
medication.”

    The court also heard testimony from Dr. Robert Sarrazin,
Brooks’s treating physician and the chief of psychiatry at the
Federal Medical Center in Springfield, Missouri. Dr.
Sarrazin testified that he had been involved in over fifty Sell
hearings. He stated that Brooks had been diagnosed with
paranoid schizophrenia, was “clearly . . . delusional” as
8                UNITED STATES V. BROOKS

evidenced by his false beliefs regarding the mafia, and that
absent treatment with antipsychotic medications he “will not
become competent in the foreseeable future.” At the time of
the Sell hearing, Dr. Sarrazin testified that Brooks’s mental
illness had been ongoing for more than a year. In fact, from
medical records it appears that he has been mentally ill for
around a decade or longer.

    Dr. Sarrazin opined that it was “substantially likely that
Mr. Brooks will be restored to competency in the foreseeable
future with treatment with antipsychotic medications.” Dr.
Sarrazin testified that similarly situated prisoners have been
“restored to competency over 70 percent of the time.”
Because Brooks “ha[d] no insight into his illness” and “was
quite insistent that he has no mental illness and needs no
treatment,” Dr. Sarrazin indicated that there was no reason to
believe he would consent to voluntary medication.
According to Dr. Sarrazin, medication was a “necessary
treatment” and the least intrusive treatment likely to achieve
success. He also concluded that there was nothing about
Brooks’s physical condition that would render medication
inappropriate.

    Based on its consideration of the sealed record and the
evidence presented at the Sell hearing held on August 7,
2012, the district court granted the government’s motion for
authorization to medicate Brooks involuntarily. The court
found that each of the Sell requirements was met. Its written
order did not expressly explain how the government had
established the first prong of the Sell test, that important
governmental interests are at stake. At the hearing, however,
the court told Brooks: “For the record, I will find that the
governmental interests in this case are high from the
standpoint that if, in fact, you were not in custody, there’s a
                    UNITED STATES V. BROOKS                               9

likelihood that you would, in fact, cause harm to the members
of the public or property.” The written Sell order authorized
the Federal Bureau of Prisons to administer one or more
antipsychotic medications at specified dosages but did not
include a time limitation. The court authorized Brooks’s
continued commitment pursuant to 18 U.S.C.
§ 4241(d)(2)(A)6 “until further order of the court to set
another hearing to assess the status of defendant’s treatment
and to determine whether defendant may be returned to the
District of Oregon to participate in further proceedings.”

    Brooks appealed to this court. The district court stayed
the involuntary medication order pending this appeal.

                            DISCUSSION

    “Ordinarily, an appellate court may hear appeals only
from a district court’s final decision.” Loughner, 672 F.3d at
742 (citing 28 U.S.C. § 1291). Here, we have jurisdiction to
review the district court’s involuntary medication order under
the collateral order doctrine. Id. at 743; see also Sell,
539 U.S. at 177 (holding that district court’s involuntary
medication order was an appealable collateral order). This
court has held “that the first Sell factor . . . is a legal question
subject to de novo review, and that the remaining Sell factors
are factual questions . . . reviewed for clear error.”
Hernandez-Vasquez, 513 F.3d at 915–16.



   6
     This provision authorizes the Attorney General to hospitalize a
defendant for treatment in a suitable facility for a reasonable period of
time “if the court finds that there is a substantial probability that within
such . . . period of time he will attain the capacity to permit the
proceedings to go forward.” 18 U.S.C. § 4241(d)(2).
10              UNITED STATES V. BROOKS

I. The Defendant’s Mental Incompetency

    Brooks argues there is no need for involuntary medication
to restore him to competency because he is not mentally ill.
Brooks’s mental condition is a factual question, and the
district court’s determination that Brooks is mentally ill is
reviewed for clear error. Id.

    Brooks’s statements at the hearing, the testimony of Dr.
Sarrazin, and the sealed forensic reports and evaluations
included in the record provide ample support for the district
court’s finding that Brooks suffered from a mental illness at
the time of the hearing. In particular, multiple psychiatrists
diagnosed Brooks with delusions and paranoid schizophrenia,
and Brooks’s statements at the hearing regarding the Ku Klux
Klan and the mafia were consistent with these diagnoses.
The district court did not clearly err in determining that
Brooks suffered from a mental illness.

II. Consideration of Alternative Grounds for Involuntary
    Medication

    It appears that the district court reasonably concluded
there was no other basis for forcibly administering
medication because of the outcome of the March 5, 2012
Harper hearing; neither party contends otherwise. Given the
amount of time that has passed since the district court’s Sell
order, on remand the district court should make a specific
determination that no other basis for forcibly administering
medication is reasonably available before conducting a new
Sell analysis. The district court is not required to order or
conduct a new Harper hearing if one is not otherwise
indicated, but if the court does not conduct a dangerousness
                 UNITED STATES V. BROOKS                       11

inquiry, “it should state for the record why it is not doing so.”
Id. at 914.

III.    Governmental Interests in Involuntary Medication

    Of the four Sell factors, Brooks only specifically
challenges the district court’s determination of the first factor,
the requirement that important governmental interests must
be at stake. Our review of this legal question is de novo. Id.
at 915–16. Brooks argues that the government’s interest is in
public safety and that involuntary medication is unnecessary
to serve this interest because, absent medication, he will
remain confined pursuant to 18 U.S.C. § 4246. This
provision states that a district court may order the continued
hospitalization of:

        a person in the custody of the Bureau of
        Prisons . . . who has been committed to the
        custody of the Attorney General pursuant to
        section 4241(d), or against whom all criminal
        charges have been dismissed solely for
        reasons related to the mental condition of the
        person [if the 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.

18 U.S.C. § 4246(a).

    Brooks claims that if he were restored to competency, “he
would present the defense that he was not guilty by reason of
insanity.” His argument, in essence, is that he was so clearly
incompetent at the time of the underlying offense that the
12              UNITED STATES V. BROOKS

government has no independent interest in prosecution except
to keep him confined, which will be accomplished whether or
not he is prosecuted and convicted. See Clark v. Arizona,
548 U.S. 735, 768–69 (2006) (“‘A central significance of the
insanity defense . . . is the separation of nonblameworthy
from blameworthy offenders.’” (quoting D. Hermann, The
Insanity Defense: Philosophical, Historical and Legal
Perspectives 4 (1983))). Brooks argues that the government’s
interest in public safety may be adequately served by civil
commitment under 18 U.S.C. § 4246(a), which allows the
government to involuntarily hospitalize him so long as he
remains “a substantial risk of bodily injury to another person
or serious damage to property of another.”

    As a threshold matter, we reject Brooks’s premise that the
district court is required to speculate about whether Brooks
would be found not guilty by reason of insanity if he pursued
that defense. We also decline to analyze the first Sell factor
as applied to Brooks’s case. Brooks’s contention that the
district court did not adequately address this factor is well-
taken. But this is a fact-intensive analysis that the district
court is better suited to conduct in the first instance,
especially where, as here, the relevant considerations may
have changed with the passage of time. Instead, we
summarize below the Supreme Court and circuit authority
addressing the first Sell factor, and remand to the district
court to address Brooks’s argument when it conducts a new
Sell inquiry. Given that more than a year has passed since the
district court’s initial Sell hearing, the court should also
ascertain whether there have been significant changes in
Brooks’s mental and medical condition or in the relevant
standard of care for treatment aimed at restoring competency.
                 UNITED STATES V. BROOKS                     13

    To evaluate the first Sell factor, the district court should
begin by considering “the seriousness of the underlying
crime.” Hernandez-Vasquez, 513 F.3d at 915; see United
States v. Gillenwater, No. 12-30379, 2014 WL 1394960, at
*4 (9th Cir. Apr. 11, 2014). Hernandez-Vasquez provides
guidance on how to analyze this question. 513 F.3d at
917–19. There, we held that the penalty for which the
defendant could be liable if convicted is a relevant factor, and
therefore “the likely guideline range is the appropriate
starting point for the analysis of a crime’s seriousness.” Id.
at 919. But the guideline range is the beginning of the
analysis, not the end. The Supreme Court has directed that
“courts must consider the facts of individual cases in
evaluating the government’s interest in prosecution.” Id. at
918; see also Sell, 539 U.S. at 180; Gillenwater, 2014 WL
1394960, at *4. “Such relevant circumstances include the
time a defendant has served while awaiting trial and the
possibility of future civil confinement.” Hernandez-Vasquez,
513 F.3d at 918 (citing Sell, 539 U.S. at 180).

    In Sell, the Supreme Court acknowledged that “[s]pecial
circumstances may lessen the importance” of the
governmental interests in prosecution. Sell, 539 U.S. at 180.
In particular, “[t]he defendant’s failure to take drugs
voluntarily, for example, may mean lengthy confinement in
an institution for the mentally ill—and that would diminish
the risks that ordinarily attach to freeing without punishment
one who has committed a serious crime.” Id. The Court went
on:

       We do not mean to suggest that civil
       commitment is a substitute for a criminal trial.
       The Government has a substantial interest in
       timely prosecution. And it may be difficult or
14                   UNITED STATES V. BROOKS

          impossible to try a defendant who regains
          competence after years of commitment during
          which memories may fade and evidence may
          be lost. The potential for future confinement
          affects, but does not totally undermine, the
          strength of the need for prosecution. 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, see 18 U.S.C. § 3585(b)).
          Moreover, the Government has a concomitant,
          constitutionally essential interest in assuring
          that the defendant’s trial is a fair one.

Id.7

    From this discussion of the first factor in Sell, we glean
the principle that the district court must consider, on the one
hand, the potential for and anticipated length of future civil
commitment in the event the defendant is not medicated and
the amount of time the defendant has already been confined,
versus the period of confinement that could reasonably be
expected if the defendant were restored to competency and
convicted of the charged offense. The district court should
also consider any other significant factors that could

  7
   The governmental interest in a fair trial is implicated by both the first
and second Sell factors. Under the second Sell factor, a court “must find
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, thereby rendering the trial unfair.”
Sell, 539 U.S. at 181. An individual defendant’s past responses to
antipsychotic medications, if any, will bear upon the likelihood and
severity of side effects.
                  UNITED STATES V. BROOKS                       15

strengthen or weaken the governmental interests in
prosecuting Brooks, including the extent to which delaying
the prosecution could jeopardize the government’s position
at trial. It is not clear from the record that the district court
conducted this inquiry. Where the district court has yet to
explore all the facts relevant to the first Sell factor, we decline
to create additional rules or guidance beyond what has been
expressed through binding authority. We have confidence in
the district court’s ability to weigh these considerations in the
first instance, and we believe it is in the best position to do so.

IV.     Time Limitations on Involuntary Medication

    A Sell order must identify “the duration of time that
involuntary treatment of the defendant may continue before
the treating physicians are required to report back to the court
on the defendant’s mental condition and progress.”
Hernandez-Vasquez, 513 F.3d at 917. The parties agree that
the district court’s order did not specify the time limitation.
Remand is necessary on this issue.

                        CONCLUSION

     Given that remand is necessary, a new Sell inquiry is
required because of the amount of time that has passed since
the district court’s order was entered. If the district court
determines on remand that no alternative basis for forcibly
medicating Brooks is indicated, it should proceed to consider
all four Sell factors anew.

      VACATED AND REMANDED.
