                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-2085
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                    James S. Curtis

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                      Appeal from United States District Court
                  for the Western District of Arkansas - Ft. Smith
                                  ____________

                            Submitted: January 17, 2014
                               Filed: April 16, 2014
                                  ____________

Before WOLLMAN, BYE, and MELLOY, Circuit Judges.
                          ____________

WOLLMAN, Circuit Judge.

       James Curtis was indicted on one count of possession of a firearm after having
been committed to a mental institution, in violation of 18 U.S.C. § 922(g)(4). Curtis
was found incompetent to stand trial, and he objected to treatment with antipsychotic
medication to restore him to competency. The district court ordered that Curtis be
involuntarily medicated. We conclude that the case must be remanded to the district
court for further proceedings.
                                    I. Background

      Curtis is a 74-year-old man who suffers from delusional disorder, persecutory
type. This psychotic mental illness is primarily characterized by nonbizarre
delusions—specifically, the person believes “that he is being conspired against,
cheated, spied on, followed, poisoned or drugged, maliciously maligned, harassed, or
obstructed in the pursuit of long-term goals.” According to a government evaluation
of Curtis’s condition, Curtis has a “fixed, irrational belief that the police in Kentucky
follow him across the country, steal from him, and are involved in a cover-up
regarding the death of his friend. His ideas have expanded to include the Judge
assigned to his case.”

                        A. Curtis’s History of Mental Illness

       Curtis began exhibiting symptoms of delusional disorder as early as March
2009 after he fell from a ladder and lost consciousness. Curtis was hospitalized
because he suffered from recurring nausea and vomiting. He underwent a CT scan
that revealed “mild deep white matter disease.” Curtis’s wife reported that Curtis’s
mood and personality had changed dramatically after the injury; Curtis no longer
trusted people, became apathetic, and absconded from home for lengthy periods of
time.

       In April 2010, police officers were dispatched to Curtis’s residence following
a domestic dispute call. Curtis and his neighbor were arguing, and when the officers
arrived, Curtis threatened them with a gun. Curtis was taken into custody and was
later ordered to be evaluated by Western State Hospital in Kentucky, where he was
hospitalized for nine days. Curtis was diagnosed with delusional disorder and
prescribed a daily dose of two milligrams of risperidone, which was administered
orally. At discharge, Curtis was “able to carry on a reality based conversation without
evidence of paranoid ideas.” The Discharge Summary recommended that “no guns

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be in the home ever again.” Curtis’s wife removed more than 200 firearms from their
residence before Curtis returned home.

     In March 2011, Curtis was again ordered to be hospitalized for a mental
examination. The hospital report indicated that Curtis did not display any psychotic
symptoms. At the time of the evaluation, Curtis was not taking any antipsychotic
medication.

                              B. Curtis’s Indictment

       On January 29, 2012, Curtis was arrested when police officers found him
parked in front of the United States Attorney’s Office for the Western District of
Arkansas with firearms and ammunition inside his vehicle. The magistrate judge
thereafter ordered a mental evaluation of Curtis. On April 9, 2012, a jury indicted
Curtis on one count of possession of a firearm after having been committed to a
mental institution. Randall Rattan, Ph.D., the primary evaluating psychologist at the
Federal Correctional Institution in Fort Worth, Texas, evaluated Curtis to determine
whether he was competent to stand trial. Dr. Rattan diagnosed Curtis with delusional
disorder, persecutory type, and concluded that Curtis was incompetent to proceed to
trial.

       Based on Dr. Rattan’s report and Curtis’s testimony at the competency hearing,
the magistrate judge concluded that Curtis was incompetent to stand trial. The
magistrate judge recommended that Curtis be committed to the custody of the attorney
general to be hospitalized for treatment and for evaluation to determine if he could
attain the capacity to move forward in the criminal proceedings. The district court
adopted the magistrate judge’s report and recommendation.

      Curtis was then committed to the Federal Medical Center in Butner, North
Carolina. Angela Weaver, Ph.D., a forensic psychologist, evaluated Curtis, with

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psychiatric consultation by Robert Lucking, M.D., a staff psychiatrist. Drs. Weaver
and Lucking confirmed the diagnosis of delusional disorder, persecutory type. Their
report concluded that Curtis remained incompetent to stand trial but opined that there
was a substantial probability that Curtis’s competency could be restored through the
administration of antipsychotic medication. Because Curtis refused treatment, the
report recommended that he be involuntarily medicated. Based on the report, the
magistrate judge recommended that Curtis be involuntarily medicated to restore him
to competency.

       Curtis objected and requested a hearing pursuant to Sell v. United States, 539
U.S. 166 (2003). At the hearing, Drs. Weaver and Lucking’s report was admitted into
evidence, and Dr. Lucking testified via telephone. The magistrate judge issued an
amended report and recommendation, in which he found that the government had met
its burden of proving each of the Sell factors by clear and convincing evidence.
Accordingly, the magistrate judge recommended that the district court grant the
government’s request to involuntarily medicate Curtis with an injection of twenty-five
milligrams of risperidone every two weeks for a period of up to four months. Curtis
filed objections to the report and recommendation. The district court denied Curtis’s
objections and adopted the magistrate judge’s amended report and recommendation
in its entirety. The district court stayed the imposition of its order pending this
interlocutory appeal.

                                    II. Discussion

      In Sell v. United States, the United States Supreme Court considered long-
standing precedent regarding a defendant’s constitutional right to refuse medical
treatment. 539 U.S. 166, 177-80 (2003). The Court held that, in certain
circumstances, “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[.]” Id. at 179-80. The Court

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articulated a four-factor test for determining the circumstances in which the
government may obtain a court order to involuntarily medicate a defendant to render
him competent to stand trial. The test requires a court to find: “(1) that an important
governmental interest is at stake; (2) that involuntary medication will significantly
further that governmental interest; (3) that involuntary medication is necessary to
further that interest; and (4) that administration of the drugs is medically appropriate.”
United States v. Mackey, 717 F.3d 569, 573 (8th Cir. 2013) (citing Sell, 539 U.S. at
180-81).

       Curtis challenges the district court’s findings that the government had satisfied
the second and fourth factors of the Sell test. He claims that the government failed to
prove that involuntary medication would “significantly further” its interest or that it
is “medically appropriate” for him. The government must prove those factors by clear
and convincing evidence, and we review the district court’s findings on those factors
for clear error. Mackey, 717 F.3d at 573.

                              A. The Second Sell Factor

       To show that involuntary medication will “significantly further” the
government’s interest under the second Sell factor, the government must establish by
clear and convincing evidence that involuntary medication is both (1) “substantially
likely to render the defendant competent to stand trial” and (2) “substantially unlikely
to have side effects that will interfere significantly with the defendant’s ability to
assist counsel in conducting a trial defense[.]” Sell, 539 U.S. at 181.

       We conclude that the district court did not clearly err in finding that the
involuntary administration of risperidone would significantly further the government’s
interest in prosecuting this case. The district court accepted the testimony of Dr.
Lucking that antipsychotic medication is substantially likely to render Curtis
competent to stand trial. Dr. Lucking based his opinion on the following evidence.

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First, Curtis was treated with two milligrams of risperidone daily when he was
hospitalized at Western State Hospital, and at discharge Curtis “was described as
being able to carry on a reality based conversation without evidence of paranoid
ideas.” Dr. Lucking found this to be direct evidence from which to infer that Curtis
would respond to antipsychotic medication. Second, Dr. Lucking relied on recent
medical studies and literature that indicate that psychotic illnesses, including
delusional disorder, can be treated effectively with antipsychotic medication. Dr.
Lucking also opined that treatment with risperidone is substantially unlikely to
produce side effects that would interfere with Curtis’s ability to assist his attorney in
preparing a defense.

        Curtis contends that Dr. Lucking’s opinion that antipsychotic medication is
substantially likely to render him competent to stand trial is unsubstantiated and
contrary to medical studies and literature. Curtis first asserts that “it is impossible to
definitively conclude that [he] benefitted from risperidone during
his . . . hospitalization” at Western State Hospital. Curtis also asserts that medical
studies and literature demonstrate that antipsychotic medication is ineffective in
treating delusional disorder. Curtis points to United States v. Ghane, 392 F.3d 317
(8th Cir. 2004), in which we reversed the district court’s Sell order because the expert
testimony provided by Dr. Lucking and other psychiatrists established that
antipsychotic medication was ineffective in treating delusional disorder and had only
a five to ten percent chance of restoring competency.

        Curtis’s counsel cross-examined Dr. Lucking at great length on the
considerations that formed the basis of his opinion. Curtis’s counsel explored the
possibility that Curtis’s ability to carry on a reality based conversation at the end of
his nine day hospitalization at Western State Hospital was not the result of his being
treated with risperidone. Dr. Lucking acknowledged that his report stated that
risperidone “does not begin to exert its therapeutic effect for several weeks after the
first injection” but explained that the length of time it takes for risperidone to exert its

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effect varies on an individual basis and that he has seen patients respond with only one
dose. Further, Dr. Lucking stated that it was unlikely that Curtis had deluded the
evaluator.

        Dr. Lucking also acknowledged that he had held a different opinion about the
effectiveness of antipsychotic medications in treating delusional disorder when he
testified in Ghane. But he explained that he had changed his opinion as a result of
reviewing recent medical studies and literature. Dr. Lucking’s report pointed to recent
medical studies and literature that provide evidence that individuals with delusional
disorder achieve positive results after being treated with antipsychotic medication.
Among the studies that Dr. Lucking cited was a 2007 article by Drs. Herbel and
Stelmach (the Herbel Study), which found that after involuntary treatment with
antipsychotic medication, seventy-seven percent of defendants with delusional
disorder were restored to competency.1

       We are charged with deciding whether the district court’s findings were clearly
erroneous based on the evidence and testimony before it. Dr. Lucking substantiated
his opinion before the district court that risperidone would be effective in restoring
Curtis to competency, and the district court found him credible. Dr. Lucking also
substantiated his opinion that treatment with risperidone is substantially unlikely to
produce side effects that would interfere with Curtis’s ability to assist his attorney in
preparing a defense. Notwithstanding the Ninth Circuit’s skepticism regarding the
Herbel Study, we conclude that the district court’s decision to credit Dr. Lucking’s
report and testimony was not clearly erroneous, since it constituted a permissible view
of the evidence presented to it.


      1
          As Curtis points out in his Reply Brief, the Ninth Circuit concluded that “the
findings of the Herbel Study are both limited and tentative” and that “they do not
constitute clear and convincing evidence that involuntarily medicating [the defendant]
. . . is substantially likely to restore him to competency[.]” United States v. Ruiz-
Gaxiola, 623 F.3d 684, 698 (9th Cir. 2010).

                                          -7-
                              B. The Fourth Sell Factor

      The fourth Sell factor requires the government to prove by clear and convincing
evidence that “administration of the drugs is medically appropriate, i.e., in the
patient’s best medical interest in light of his medical condition.” Sell, 539 U.S. at 181.



       In finding that the government had satisfied the fourth Sell factor by clear and
convincing evidence, the district court relied upon the following: Dr. Lucking’s
opinion that antipsychotic medication is substantially likely to render Curtis
competent to stand trial and the basis for that opinion; Dr. Lucking’s opinion that
treatment with antipsychotic medication is substantially unlikely to produce side
effects that would interfere with Curtis’s ability to assist his attorney in preparing a
defense; Dr. Lucking’s opinion that antipsychotic medication would not adversely
interact with Curtis’s other medications; Dr. Lucking’s testimony that the possible
symptoms of the side effects of risperidone can be addressed with medication; and Dr.
Lucking’s testimony that patients treated at the facility are closely monitored for
adverse reactions to medication. The district court also noted that it found compelling
the fact that Curtis had been previously treated with risperidone at Western State
Hospital without any indication of an adverse reaction.

       The foregoing evidence primarily supports the second Sell factor, which
requires the district court to determine whether the 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 in conducting a trial defense[.]” Id. In contrast, the fourth Sell factor requires
the district court to consider all of the circumstances relevant to the particular
defendant and to consider the entirety of the consequences of the proposed involuntary
medication. See, e.g., Ruiz-Gaxiola, 623 F.3d at 704-05; United States v. Evans, 404
F.3d 227, 242 (4th Cir. 2005). The district court did not consider the circumstances

                                           -8-
relevant to such a required finding, such as Curtis’s need for long-term treatment and
Curtis’s current quality of life. See, e.g., Mackey, 717 F.3d at 576 (recognizing that
as to the fourth Sell factor the testifying doctor opined that “the medication not only
would restore [the defendant’s] competency to stand trial, but would allow the
patient—who was not showering, recreating, or communicating with staff—to ‘have
a better quality of life and to kind of move forward’”); Ruiz-Gaxiola, 623 F.3d at 705
(discussing the defendant’s positive quality of life and questioning the value of the
medication’s potential benefits when weighed against the likelihood and severity of
its potential harms over the course of the treatment). In the absence of a specific
determination by the district court whether administering risperidone constitutes a
medically appropriate treatment for Curtis, as required by the fourth Sell factor, there
is no finding for us to review, and thus remand is required.

                                   III. Conclusion

       We hold that the district court did not err in finding that the government had
satisfied the second Sell factor. We remand the case to the district court with
directions that it determine whether the government has established by clear and
convincing evidence that involuntarily administering the recommended medication
regime to Curtis is medically appropriate.
                        ______________________________




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