                REVISED February 14, 2013
        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT

                                                          United States Court of Appeals
                                                                   Fifth Circuit

                                 No. 12-50028                  FILED
                                                           January 11, 2013

                                                             Lyle W. Cayce
UNITED STATES OF AMERICA
                                                                  Clerk
                                           Plaintiff - Appellee
v.

JESSE JOE GUTIERREZ

                                           Defendant - Appellant



                 Appeal from the United States District Court
                      for the Western District of Texas



Before JOLLY, JONES, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      Defendant - Appellant Jesse Joe Gutierrez (“Gutierrez”) appeals an order
of the district court directing the Bureau of Prisons (“BOP”) to involuntarily
administer psychiatric medicine to him for the purpose of restoring his
competency to stand trial. For the following reasons, we AFFIRM the order of
the district court.
                               BACKGROUND
I.    Offense and Initial Commitment
      In November and December of 2008, Gutierrez made over one hundred
telephone calls to a television station in Austin, Texas, threatening to harm or
                                  No. 12-50028

kill former President George W. Bush, Texas Governor Rick Perry, and both of
their wives. This prompted an investigation by the Secret Service and a visit to
Gutierrez by a Secret Service Agent, Nguyen Vu. On August 27, 2009, Gutierrez
called Agent Vu and left a message on his voice mail. Gutierrez claimed to be
delivering a message from God, and threatened to kill President Obama, former
Presidents George W. Bush and George H.W. Bush, Agent Vu, and “all lawyers.”
      Gutierrez was arrested and charged with threatening to kill the President,
a former President, and a federal law enforcement officer. On the government’s
motion, the district court ordered that Gutierrez be given a mental examination
to determine his competency to stand trial as well as his sanity at the time of the
alleged offenses. Dr. Dwyer, a BOP forensic psychologist, diagnosed paranoid
schizophrenia and opined that Gutierrez could not understand the nature and
consequences of the proceedings against him or assist in his defense. Dr. Dwyer
offered no opinion as to Gutierrez’s sanity at the time of his alleged offenses.
Based on Dr. Dwyer’s report, the district court found that Gutierrez was
incompetent to stand trial and committed him to the BOP to be hospitalized for
treatment and determination of whether he was likely to regain competency in
the foreseeable future.
II.   Forensic Evaluation and First Administrative Hearing
      In July 2010, Dr. Pyant, a BOP psychologist, and Dr. Williamson, a BOP
psychiatrist, completed a forensic evaluation of Gutierrez. In the evaluation, Dr.
Pyant and Dr. Williamson diagnosed Gutierrez with Schizophrenia,
Undifferentiated Type. Dr. Pyant and Dr. Williamson found a substantial
probability that Gutierrez’s competency could be restored by treatment with
psychiatric medicine, but opined that he was unlikely to regain competency
without such medicine.      Dr. Pyant and Dr. Williamson also stated that
administration of psychiatric medicine would be “medically appropriate” and
described a proposed course of treatment.         However, Dr. Pyant and Dr.


                                        2
                                    No. 12-50028

Williamson noted that Gutierrez refused to take any medicine because he did not
believe that he was mentally ill.
       On July 21, 2010, the BOP held a hearing to determine whether Gutierrez
could be involuntarily medicated on the grounds that he was gravely disabled or
a danger to himself or others at the institution. The hearing officer, Dr.
Newman, determined that involuntary medication was not justified on these
grounds. Nonetheless, Dr. Pyant and Dr. Williamson “highly recommended”
that Gutierrez be involuntarily medicated in order to restore his competency.
III.   First Sell Hearing in the District Court
       On December 17, 2010, the government moved for a hearing pursuant to
Sell v. United States, 539 U.S. 166 (2003), to determine whether Gutierrez could
be involuntarily medicated to restore his competency to stand trial.           On
February 3, 2011, after conducting a hearing, the district court issued an opinion
analyzing the four factors set forth in Sell and ordering that Gutierrez be
involuntarily medicated for this purpose. See United States v. Gutierrez, No.
1:09-CR-453, 2011 WL 386784 (S.D. Tex. Feb. 3, 2011). Gutierrez’s counsel
appealed this order, arguing that before the district court could order
involuntary psychiatric medication for the purpose of restoring competency to
stand trial, the BOP must hold a hearing in which a neutral hearing officer
determines that medication is necessary for this purpose. Gutierrez’s counsel
also argued, based on the first Sell factor, that important government interests
did not justify involuntary medication.
IV.    Reversal of Involuntary Medication Order on Appeal
       A panel of this court reversed the district court’s order. See United States
v. Gutierrez, 443 F. App’x 898 (5th Cir. 2011). The panel relied upon United
States v. White, 431 F.3d 431, 433 (5th Cir. 2005), in which this court noted that
the BOP had adopted by regulation mandatory procedures dealing with
involuntary medication, and held that “when an inmate refuses medication, he

                                         3
                                  No. 12-50028

is entitled to an administrative hearing at the facility to determine whether he
may be medicated against his will.” Although White did not squarely address
whether the BOP must determine in the first instance whether involuntary
medication is necessary to restore a defendant’s competency to stand trial, the
panel held that such a determination is required.
      The government pointed out on appeal that at the time of Gutierrez’s
administrative hearing, the BOP had proposed new regulations that would not
require the BOP to determine whether involuntary medication is necessary to
restore a defendant’s competency. By the time the panel issued its opinion,
these regulations had been adopted. The new regulations authorize the BOP to
administer psychiatric medicine involuntarily only on the grounds that an
inmate “is dangerous to self or others, poses a serious threat of damage to
property affecting the security or orderly running of the institution, or is gravely
disabled (manifested by extreme deterioration in personal functioning).” 28
C.F.R. § 549.46(a)(7). The regulations further state that “[o]nly a Federal court
of competent jurisdiction may order the involuntary administration of
psychiatric medication for the sole purpose of restoring a person’s competency
to stand trial.” 28 C.F.R. § 549.46(b)(2). However, the panel held that the BOP
was required to follow the regulations in place at the time of the hearing.
Furthermore, the panel held that the BOP must apply the earlier 1992
regulations on remand in order to avoid the “improper retroactive effect” that
would be caused by applying the new regulations.
V.    Second Administrative Hearing
      On remand, the district court requested that the BOP hold a new
administrative hearing in accordance with the panel’s directions. Dr. Pyant and
Dr. Williamson submitted a new evaluation to the hearing officer recommending
once again that Gutierrez be involuntarily medicated to restore his competency
and opining that “no other less intrusive means are available to treat his mental

                                         4
                                  No. 12-50028

illness and achieve competency restoration.” The hearing officer, Dr. Zula,
concluded that involuntary medication was “in [Gutierrez’s] best medical
interest” and was likely to restore his competency. However, Dr. Zula noted that
“[s]econdary to the Supreme Court Sell decision, we are unable to treat Mr.
Gutierrez involuntarily for the purpose of restoring him to competency to stand
trial; that authority is restricted to the Court.” Gutierrez appealed the hearing
officer’s decision, stating: “I don’t need medicine. Your government is broken
and corrupt.” Gutierrez also complained about his mail, discrimination, and
delay by the courts. The warden rejected Gutierrez’s appeal and referred the
matter back to the district court.
VI.   Second Sell Hearing in the District Court
      On January 4, 2012, the district court held a second hearing to determine
whether Gutierrez could be involuntarily medicated. In a subsequent order
addressing the four Sell factors, the district court first held that “[t]wo equally
important government interests weigh heavily in favor of involuntary
treatment”: the government’s interest in “bringing to trial an individual accused
of a serious crime,” and the government’s interest in “avoiding the alternatives
to forced medication and trial.” The district court stated that “[o]nly one
alternative exists if Gutierrez does not become competent and cannot be
prosecuted: he will spend the rest of his life in a hospital.” Gutierrez’s counsel
argued that there is no important government interest in prosecuting a
defendant who almost certainly would not be convicted due to the significant,
uncontested evidence of his insanity at the time of the offense. The district court
responded that “[t]he rule announced in Sell would be a dead letter if courts
accepted Gutierrez’s argument, which begs the question of whether, on the
merits, Gutierrez will prove he was insane when the offense occurred.” The
district court further stated that although there was “little doubt that Gutierrez



                                        5
                                  No. 12-50028

will ultimately be found insane, Gutierrez nevertheless bears the burden of
proving this affirmative defense.”
      Addressing the second Sell factor, the district court found that medication
is substantially likely to render Gutierrez competent to stand trial. The district
court noted that, as part of this analysis, it must determine whether the
medication will produce side effects that will interfere significantly with
Gutierrez’s ability to assist counsel in conducting a trial defense. However, the
district court did not discuss this issue other than to note that the 2010 forensic
evaluation had concluded that treatment was “substantially unlikely” to have
such side effects.
      Addressing the third Sell factor, the district court found that no
alternative, less intrusive treatments are likely to achieve substantially the
same results. The district court noted that no one, including Gutierrez, had ever
argued that any less intrusive treatments would achieve the same results. The
district court further noted that “every expert appears to agree . . . that only
medication can help Gutierrez regain competence, because the nature of his
psychosis is such that he has no idea he is ill, and so is unable and unwilling to
accept other forms of therapy.” Although Gutierrez argued that the hearing
officer’s report failed to make a finding that less intrusive methods were unlikely
to succeed, the district court rejected this argument. The district court noted
that the hearing officer’s report had indicated that alternative treatments were
considered, and suggested that the report’s subsequent silence on the matter
implied that these alternatives had been rejected. The district court also noted
that the hearing officer, Dr. Zula, had testified at the second Sell hearing that
no alternative treatments were likely to succeed. Finally, addressing the fourth
Sell factor, the district court found that medication was medically appropriate
and in Gutierrez’s best interests.



                                        6
                                  No. 12-50028

      The district court also rejected Gutierrez’s argument that he was being
denied due process because the administrative hearing did not fully comply with
the 1992 regulations. The district court explained that “[t]he most important
issue, and the one that appears to have motivated the Fifth Circuit’s holding in
this case, appears to be . . . the requirement of having the hearing before an
independent, nontreating psychiatrist.” The district court found that “[a]lthough
the October 21, 2011 Hearing may not have perfectly complied with the 1992
regulations, it did meet the substantive due process concerns raised by the Court
of Appeals.” The district court also found that “any further effort by the
Government to obtain administrative relief would be futile” because BOP
officials believed, based on the advice of Department of Justice lawyers, that
“they have no authority under Sell to actually order and carry out forced
medication solely for the purpose of making a defendant competent for trial.”
Accordingly, the district court held that the government had properly exhausted
administrative remedies and complied with due process requirements. The
district court concluded that it was appropriate to order forced medication under
the Sell analysis. See United States v. Gutierrez, No. 1:09-CR-453 (S.D. Tex. Jan.
10, 2012) (ECF No. 69).
                          STANDARD OF REVIEW
      In reviewing a district court’s order to medicate a defendant involuntarily,
we review findings of fact for clear error and conclusions of law de novo. United
States v. White, 431 F.3d 431, 433 (5th Cir. 2005). “[W]hether the government’s
asserted interests are sufficiently important is a legal issue subject to de novo
review.” United States v. Palmer, 507 F.3d 300, 303 (5th Cir. 2007).
                                 DISCUSSION
      An individual “possesses a significant liberty interest in avoiding the
unwanted administration of antipsychotic drugs.” Washington v. Harper, 494
U.S. 210, 221 (1990). However, “in certain instances” which “may be rare,” the

                                        7
                                  No. 12-50028

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.” Sell v. United States, 539 U.S.
166, 179-80 (2003). First, a court must determine that “important governmental
interests are at stake.” Id. at 180. Second, the court must determine that
involuntary medication “will significantly further” those interests – that is, that
“administration of the drugs is substantially likely to render the defendant
competent to stand trial” and 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. at 181. Third, the court must determine that
involuntary medication “is necessary to further those interests” – that is, that
“any alternative, less intrusive treatments are unlikely to achieve substantially
the same results.” Id. Fourth, the court must determine that “administration
of the drugs is medically appropriate” – that is, “in the patient’s best medical
interest in light of his medical condition.” Id.
I.    Compliance with Regulatory Procedure
      The prior 1992 version of CFR § 549.43(a)(5) required that a psychiatrist
hearing officer “determine whether treatment or psychotropic medication is
necessary in order to attempt to make the inmate competent for trial.”
Gutierrez’s counsel argues that the government still has not complied with this
procedure because the hearing officer did not make a specific finding that
medication was “necessary” for this purpose. It appears that the BOP declined
to use the word “necessary” because it viewed such a finding as tantamount to
an approval of involuntary medication. As the BOP correctly noted, only a
district court can make the quintessentially legal determination of whether the
government’s interest in prosecution overrides a defendant’s liberty interest in
avoiding forced medication.



                                        8
                                  No. 12-50028

      In Gutierrez’s prior appeal, this court described the procedure under the
1992 regulations as a “bifurcated process” under which “[t]he BOP made medical
findings: whether medication was necessary and effective to render a defendant
competent” and “[t]he district court . . . made a legal determination: whether the
person could, consistent with the Constitution and substantive due process, be
forced to receive medication.” Gutierrez, 443 F. App’x at 903. We emphasized
that requiring the government to “satisfy a psychiatrist not involved in [an
inmate’s] treatment that medication [is] justified as a medical determination”
served to “protect the inmate’s substantive right to be free from forced
medication.” Id. at 903 & 906. Accordingly, the question is whether the BOP
adequately made the medical findings required by Sell: whether medication is
substantially likely to render a defendant competent to stand trial, whether less
intrusive treatments are likely to achieve substantially the same results, and
whether medication is “medically appropriate.”
      In this case, Dr. Zula, a neutral hearing officer, concluded after a proper
hearing that involuntarily medicating Gutierrez would be in his best medical
interests, would likely restore his competency, and was the only treatment that
had any chance of success. Although Dr. Zula could have been more explicit on
the last point in her report, it is clearly implied by the report and confirmed in
her testimony before the district court. Moreover, none of these conclusions is
actually in dispute. No person involved with this case has ever suggested that
medication is unlikely to render Gutierrez competent to stand trial or that any
alternative treatment is likely to achieve the same results. And although
Gutierrez personally believes that he is not mentally ill and does not need
medication, no one else has seriously suggested that medication would not be in
his best medical interest. We find that the BOP satisfactorily complied with the
1992 regulations.



                                        9
                                  No. 12-50028

II.   Important Government Interests
      In Sell, the Supreme Court provided the following guidance on
determining whether important government interests are at stake:
      The Government’s interest in bringing to trial an individual accused
      of a serious crime is important. That is so whether the offense is a
      serious crime against the person or a serious crime against property.
      In both instances the Government seeks to protect through
      application of the criminal law the basic human need for security.
      ...
      Courts, however, must consider the facts of the individual case in
      evaluating the Government’s interest in prosecution. Special
      circumstances may lessen the importance of that interest. The
      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.
      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 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.
Sell, 539 U.S. at 180.
      Gutierrez’s counsel does not contest that Gutierrez is charged with a
“serious crime.” Rather, counsel argues that special circumstances lessen the
government’s interest in prosecution.        Counsel first points to the “strong
likelihood that [Gutierrez] will continue to be institutionalized,” apparently
referring to the possibility of civil commitment. Second, counsel argues that the
time Gutierrez has already spent in custody, thirty-one months, is longer than
the likely sentence he would receive upon conviction. Third, counsel argues that

                                        10
                                  No. 12-50028

forcibly medicating Gutierrez may undermine his right to a fair trial. Finally,
counsel argues that there is no significant government interest in prosecuting
Gutierrez because it is virtually certain that he would be found not guilty by
reason of insanity.
      A.    Possibility of Civil Commitment
      This court and other circuits have held that the government’s interest in
prosecution is not diminished if the likelihood of civil commitment is uncertain.
See, e.g., United States v. Nicklas, 623 F.3d 1175, 1178-79 (8th Cir. 2010);
Palmer, 507 F.3d at 304; United States v. Bradley, 417 F.3d 1107, 1116-17 (10th
Cir. 2005); United States v. Evans, 404 F.3d 227, 239 (4th Cir. 2005); United
States v. Gomes, 387 F.3d 157, 161 (2d Cir. 2004). Under 18 U.S.C. § 4246,
Gutierrez could be civilly committed only if a court finds “by clear and convincing
evidence that [he] 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 the property of another.” Similarly, under
Texas law, Gutierrez could be civilly committed only if a judge or jury finds by
clear and convincing evidence that he is likely to cause serious harm to himself
or others, or is “suffering severe and abnormal mental, emotional, or physical
distress” that causes “substantial mental or physical deterioration of [his] ability
to function independently” and is “unable to make a rational and informed
decision as to whether or not to submit to treatment.” Tex. Health & Safety
Code § 574.035(a)(2) (West 2010). To be “clear and convincing,” the evidence
“must include expert testimony and evidence of a recent overt act or a continuing
pattern of behavior that tends to confirm: (1) the likelihood of serious harm to
[himself] or others; or (2) [his] distress and the deterioration of [his] ability to
function.” Id. § 574.035(e).
      It is not clear that Gutierrez would be eligible for civil commitment under
either federal or Texas law. Notably, the BOP concluded that involuntary

                                        11
                                  No. 12-50028

medication was not justified because Gutierrez did not present a danger to
himself or others and was not severely disabled by his mental illness. This
finding, of course, was made in the context of his commitment at a mental
hospital and did not directly address his expected dangerousness or his ability
to function upon release. Nonetheless, it does suggest that it is far from certain
that Gutierrez would be eligible for civil commitment. Other than making
threats over the telephone, the record contains no evidence of any past violence
on his part.
      Gutierrez’s counsel argues that the district court’s statement in its
involuntary medication order that Gutierrez “will spend the rest of his life in a
hospital” if he “does not become competent and cannot be prosecuted” was a
factual finding that he would almost certainly be eligible for civil commitment.
We do not believe that the district court intended this remark as a factual
finding, and we do not interpret it as such. The district court did not even set
forth the elements required for civil commitment, much less discuss how or why
Gutierrez would satisfy them for the remainder of his life. In any event, if we
viewed this statement as a factual finding, we would find it to be clearly
erroneous based on the evidence in the record.
      B.       Time Already Spent in Custody
      Gutierrez is charged with threatening to kill the President and
threatening to kill a former President, each of which carries a five-year statutory
maximum, as well as threatening to kill a federal law enforcement officer with
intent to interfere with the performance of official duties, which carries a ten-
year statutory maximum. 18 U.S.C. §§ 115(b)(4), 871(a) & 879(a). Accordingly,
assuming conviction on all counts and consecutive sentencing, Gutierrez could
receive a maximum of twenty years imprisonment. Gutierrez’s counsel argues
that the “likely” advisory guidelines range upon conviction would be fifteen to
twenty-one months imprisonment, whereas the government suggests that the


                                        12
                                  No. 12-50028

range appears to be at least seventy-eight to ninety-seven months and “possibly”
as high as 235 to 293 months.
      This disagreement between the parties illustrates the difficulty of trying
to estimate the applicable guidelines range without the benefit of a presentence
report. Gutierrez’s counsel suggests that the district court could have directed
the U.S. Probation Office to prepare a report calculating the likely guidelines
sentence in advance of the Sell hearing. This is not an acceptable solution. A
presentence report involves an often lengthy investigation by a probation officer,
after which both parties have an opportunity to object.          An incompetent
defendant is, by definition, unable to meaningfully participate in this process.
      More importantly, even if it were possible to produce an accurate
presentence report in advance of a Sell hearing, this would not take into account
the broad discretion of the district judge to impose a sentence outside the
advisory guidelines range. It is not appropriate either to require a district court
to conduct a mock sentencing hearing and select a provisional sentence at a
Sell hearing, or to prematurely speculate about a defendant’s possible sentence
in an interlocutory appeal. Accordingly, we follow the approach of several other
circuits in comparing the time already served by Gutierrez with the statutory
maximum authorized for his indicted offenses. See, e.g., Bradley, 417 F.3d at
1117; Evans, 404 F.3d at 239; Gomes, 387 F.3d at 160; but see United States v.
Ruiz-Gaxiola, 623 F.3d 684, 694 (9th Cir. 2010) (using expected guidelines range
rather than statutory maximum to determine “seriousness” of crime, as well as
additional incarceration that the defendant would face upon conviction). Under
this standard, the government’s interest in prosecution is clearly not diminished.
      Furthermore, even assuming Gutierrez would serve little or no prison time
if tried and convicted, the government’s interest in prosecution is not
extinguished.   In Palmer, we noted that “the government interest, as the
[Supreme C]ourt explained in Sell, is not in seeing [a defendant] convicted, but

                                        13
                                  No. 12-50028

rather in ensuring that he is brought to trial.” Palmer, 507 F.3d at 304. Aside
from exacting retribution against and incapacitating Gutierrez himself,
prosecution of the instant offenses expresses society’s disapproval of such
conduct and potentially deters others from engaging in it.            Additionally,
conviction would authorize the district court to impose a term of supervised
release, which would facilitate monitoring of Gutierrez to ensure that he does
not pose a threat to others.
      C.    Right to a Fair Trial
      In discussing the government’s interest in bringing a defendant to trial,
the Supreme Court in Sell stated also that “the Government has a concomitant,
constitutionally essential interest in assuring that the defendant’s trial is a fair
one.” Sell, 539 U.S. at 180. The Court has also suggested that psychiatric
medication may impinge upon a defendant’s right to a fair trial by adversely
affecting his “outward appearance, . . . the content of his testimony on direct or
cross examination, his ability to follow the proceedings, or the substance of his
communication with counsel.” Riggins v. Nevada, 504 U.S. 127, 137 (1992). As
explained further in Justice Kennedy’s concurrence, the concerns with a
defendant’s “outward appearance” arise from the possibility that medication will
“alter[] his demeanor in a manner that will prejudice his reactions and
presentation in the courtroom.” Id. at 142 (Kennedy, J., concurring). If a
defendant testifies, his “demeanor can have a great bearing on his credibility,
persuasiveness, and on the degree to which he evokes sympathy.” Id. “[S]erious
prejudice could result if medication inhibits the defendant’s capacity to react and
respond to the proceedings and to demonstrate remorse or compassion.” Id. at
143-44. Antipsychotic drugs may cause the defendant to be “restless and unable
to sit still”; may cause “tremor of the limbs, diminished range of facial
expression, or slowed movements and speech”; and may cause extreme
drowsiness. Id. at 142-43.

                                        14
                                  No. 12-50028

      The concern expressed by Gutierrez’s counsel is not comparable to the
concerns recognized by the Supreme Court as legitimate.           In essence, his
argument is that medication will undermine Gutierrez’s insanity defense by
making him appear to be more sane.            As other circuits have noted, an
incompetent defendant simply cannot be tried, regardless of the defense he
wishes to present. See Gomes, 387 F.3d at 162. If an insanity defense could not
be successfully advanced by a competent defendant, it would not exist. At trial,
Gutierrez could present evidence of his insanity at the time of his alleged offense
and could of course point out that his demeanor had been altered by involuntary
medication. Furthermore, “a defendant does not have an absolute right to
replicate on the witness stand his mental state at the time of the crime.” United
States v. Weston, 255 F.3d 873, 884 (D.C. Cir. 2001). We find that involuntary
medication would not interfere with Gutierrez’s right to a fair trial.
      D.    Likelihood of Successful Insanity Defense
      Although Gutierrez’s counsel argues that a verdict of not guilty by reason
of insanity is virtually certain if Gutierrez is restored to competency and
prosecution is resumed, this is not necessarily so. As the government points out,
Gutierrez could decide to dispute his guilt by arguing that he did not have the
requisite mens rea at the time he made the alleged threats. Gutierrez could
alternately decide that pleading guilty and accepting a possibly short sentence
is preferable to risking indeterminate civil commitment with an insanity plea.
Or, as Gutierrez’s counsel predicts, he could choose to plead not guilty by reason
of insanity. Because Gutierrez himself is currently incompetent to stand trial
due to mental illness, he cannot explain what he would do if restored to
competency. Given this uncertainty and the variety of possible outcomes, it does
not follow that prosecution is unnecessary.
      Furthermore, even if it were certain that Gutierrez would successfully
plead not guilty by reason of insanity, the government would continue to have

                                        15
                                 No. 12-50028

an interest in prosecution due to the shifted burden of proof for insanity
acquitees in civil commitment proceedings. Under the Insanity Defense Reform
Act, a defendant found not guilty by reason of insanity is automatically
committed unless he can prove “that his release would not create a substantial
risk of bodily injury to another person or serious damage of property of another
due to a present mental disease or defect.” 18 U.S.C. § 4243. If the charged
offense involved “bodily injury to, or serious damage to the property of, another
person, or . . . a substantial risk of such injury or damage,” the defendant must
prove his lack of dangerousness by clear and convincing evidence; otherwise it
must be proven by a preponderance of the evidence. Id. The Tenth Circuit,
apparently the only circuit to address the question in a published opinion, has
held that “the crime of making a threat against the President of the United
States in violation of 18 U.S.C. § 871 necessarily involves a substantial risk of
bodily injury to another person or damage to another person’s property.” United
States v. Gilgert, 314 F.3d 506, 515 (10th Cir. 2002).
      Under normal civil commitment procedures, the government must prove
by clear and convincing evidence that Gutierrez’s release would create a
substantial risk to others. Making Gutierrez prove by clear and convincing
evidence that his release would not create substantial risk to others is a very
different standard.   In a case such as this, where it is not clear whether
Gutierrez has the inclination to act on his threats, the difference in burdens
could well determine the outcome of a civil commitment proceeding. Moreover,
it is worth noting that this difference in burdens is not merely a procedural
anomaly or accident – the Insanity Defense Reform Act represents a clear
legislative judgment that persons who have in fact committed crimes but have
not been held legally responsible due to insanity should be presumed dangerous
rather than not dangerous.



                                       16
                                  No. 12-50028

                                CONCLUSION
      The district court’s order approving involuntary medication for the purpose
of restoring Gutierrez to competency is AFFIRMED. The case is remanded to
the district court for further proceedings.




                                       17
