    Case: 19-31011    Document: 00515426687    Page: 1   Date Filed: 05/22/2020




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                No. 19-31011                       May 22, 2020
                                                                  Lyle W. Cayce
                                                                       Clerk


UNITED STATES OF AMERICA,

                                          Plaintiff−Appellee,

versus

SUSAN KIRCHOFF JAMES,
also known as Susan James, also known as Susan Kirchoff,

                                          Defendant-Appellant.




                Appeal from the United States District Court
                   for the Eastern District of Louisiana




Before SMITH, HO, and OLDHAM, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Susan James was found incompetent to stand trial because of mental
illness. The district court granted the government authorization to administer
antipsychotic medication to James involuntarily for the sole purpose of restor-
ing her competency for trial. She brings a second interlocutory appeal per Sell
v. United States, 539 U.S. 166 (2003). We affirm.
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                                 No. 19-31011
                                        I.
      James has been in the government’s custody for two-and-one-half years
after her arrest and indictment for allegedly sending death threats by email to
her aunt and uncle, in violation of 18 U.S.C. § 875(c). In the interim, the dis-
trict court found her incompetent to stand trial and ordered that she be com-
mitted for restoration of competence.

      While incarcerated, James has been psychiatrically evaluated by several
medical professionals. To determine competency, James was evaluated by a
Bureau of Prisons (“BOP”) psychologist, who concluded that James was com-
petent notwithstanding her considerable mental health issues. James was also
evaluated by her expert psychiatrist, Dr. Loretta Sonnier, who disagreed with
the initial BOP conclusion and determined that James’s delusional persecutory
beliefs rendered her incompetent. The BOP, after discovering that James had
fabricated text messages on which its psychologist partly based her report,
stipulated to the findings of James’s expert regarding James’s incompetence.

      James underwent further BOP psychological evaluation specifically for
purposes of restoring her competency. A predoctoral intern, under the super-
vision of BOP psychologist Hayley Blackwood, interviewed James regularly
over five months. Blackwood subsequently submitted a report suggesting that
non-pharmacological treatment is unlikely to restore James’s competency.
Around the same time, BOP psychiatrist Gary Etter interviewed James,
reviewed her medical history, and prepared a treatment plan proposing anti-
psychotic medication. Because James refuses to take medication willingly,
Etter proposed injections of the antipsychotic drug Risperdal Consta. Dr. Jud-
ith Cherry, the chief psychiatrist at James’s holding facility, endorsed Etter’s
plan at a BOP administrative hearing, and BOP psychiatrist Jose Silvas
agreed with the plan after independently evaluating James.

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                                  No. 19-31011
      Blackwood, Silvas, and James testified at the Sell hearing. The district
court granted the government authorization to administer the involuntary
treatment but stayed its order pending James’s first appeal.

      In United States v. James, 938 F.3d 719, 720–21 (5th Cir. 2019), this
court held—as a matter of first impression—that the government’s burden in
cases such as this is proof by clear and convincing evidence. “Because [the
panel could not] determine what standard the district court applied, [it]
vacate[d] the Sell order and remand[ed] to allow the district court to apply the
clear and convincing standard in the first instance.” Id. at 723. On remand,
the district court clarified that it had applied the correct standard, and it
granted the government’s request a second time, detailing its analysis in a
seventeen-page opinion. James again appeals.

                                       II.
      “In reviewing a district court’s order to medicate a defendant involuntar-
ily, we review findings of fact for clear error and conclusions of law de novo.”
United States v. Gutierrez, 704 F.3d 442, 448 (5th Cir. 2013). “A factual finding
is not clearly erroneous as long as it is plausible in light of the record read as
a whole.” United States v. Dinh, 920 F.3d 307, 310 (5th Cir. 2019).

      Before the government may administer antipsychotic drugs involuntar-
ily for the sole purpose of restoring competency to stand trial, it must prove
four elements: (1) “that important governmental interests are at stake,” taking
into account that “[s]pecial circumstances may lessen the importance of that
interest”; (2) “that involuntary medication will significantly further those . . .
interests”; (3) “that involuntary medication is necessary to further those inter-
ests”; and (4) “that administration of the drugs is medically appropriate.” Sell,
539 U.S. at 180–81 (emphases omitted). Each element must be proven by clear
and convincing evidence. James, 938 F.3d at 723.
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                                      No. 19-31011
      James challenges the district court’s order on all four Sell factors. We
review the first factor de novo and the other three for clear error. United States
v. Palmer, 507 F.3d 300, 303 (5th Cir. 2007).

                                            A.
      “The Government’s interest in bringing to trial an individual accused of
a serious crime is important.” Sell, 539 U.S. at 180. That said, “[s]pecial cir-
cumstances may lessen the importance of that interest.” Id. If, for example, a
defendant would otherwise face “lengthy confinement in an institution for the
mentally ill[,] that would diminish the risks that ordinarily attach to freeing
without punishment one who has committed a serious crime.” Id. Similarly,
it might be consequential “that the defendant has already been confined for a
significant amount of time (for which he would receive credit toward any sen-
tence ultimately imposed . . . ).” Id. But even under such circumstances, a
court may determine that the government’s interest remains sufficiently
important. See id. (stating that “potential for future [civil] confinement” or
ultimate credit for time served “affects, but does not totally undermine, the
strength of the need for prosecution”). It is therefore enough that a court “con-
sider the facts of the individual case in evaluating the Government’s interest
in prosecution.” Id.

      James’s charges carry a maximum imprisonment of five years; accord-
ingly, she concedes that she is accused of a “serious” crime under this circuit’s
precedent. See Palmer, 507 F.3d at 304. She asserts, however, that hers are
“special circumstances” reducing the importance of the government’s interest.
Specifically, James suggests that she could be civilly committed given “that a
dangerousness determination already was made,” 1 and she notes that she



      1   James also states, erroneously, that “the federal . . . statute requires that an
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                                       No. 19-31011
already has been confined for half of the maximum. She contends that such
circumstances, combined with the relative mildness of her actions compared to
those in other § 875(c) prosecutions, critically diminish the government’s inter-
est in prosecution.

       Those theories are unpersuasive. First, it is not enough that James could
potentially be civilly committed; for the government’s prosecutorial interest to
be lessened meaningfully, James’s civil commitment would need to be certain. 2

       James’s civil commitment is not a certainty. She would face civil commit-
ment only “[i]f, after [a] hearing, the court [should] find[] by clear and convinc-
ing evidence that [she] is presently suffering from a mental disease or defect
as a result of which [her] release would create a substantial risk of bodily injury
to another person or serious damage to the property of another.” 18 U.S.C.
§ 4246(d). Although the magistrate judge had found that James could not be
released while “reasonably assur[ing] the safety of any other person and the
community,” he did not purport to base his decision exclusively (or at all) on
James’s “mental disease or defect.” In fact, the chief psychiatrist at the facility
where James was being held noted that James “is not imminently dangerous,”
at least “in [the] secure correctional environment.” And “[o]ther than making
threats over [email], the record contains no evidence of any past violence on
[her] part.” Gutierrez, 704 F.3d at 450. To be sure, James could potentially be
civilly committed, but such potentiality “is far from certain[ty].” Id.




individual’s release be imminent before civil commitment is considered.” In fact, the statute
explicitly allows hearings for persons “committed to the custody of the Attorney General
pursuant to section 4241(d).” 18 U.S.C. § 4246(a). Such persons include defendants, like
James, whom a court has found to be “presently suffering from a mental disease or defect
rendering [them] mentally incompetent” to stand trial. Id. § 4241(d).
       2  Gutierrez, 704 F.3d at 450 (“[T]he government’s interest in prosecution is not dimin-
ished if the likelihood of civil commitment is uncertain.”).
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                                   No. 19-31011
      Second, “even assuming [James] would serve little or no prison time if
tried and convicted, the government’s interest in prosecution is not extin-
guished.” Id. at 451. James is accused of threatening her family members’
lives. The government bears an interest not in punishing her per se but in
trying her and vindicating the law publicly. See id. (citing Palmer, 507 F.3d
at 304). “Additionally, conviction would authorize the district court to impose
a term of supervised release, which would facilitate monitoring of [James] to
ensure that [she] does not pose a threat to others.” Id.

      The district court, weighing such factors, determined that James’s were
not “[s]pecial circumstances [ ] lessen[ing] the importance of [the government’s]
interest.” Sell, 539 U.S. at 180. That determination was not error.

                                         B.
      If the government has an important interest in restoring the defendant
to competency, it next must persuade the court “that involuntary medication
will significantly further those . . . interests.” Id. at 181 (emphasis in original).
The calculus has two subparts: The government must show, first, “that admin-
istration of the drugs is substantially likely to render the defendant competent
to stand trial” and, second, “that administration of the drugs is substantially
unlikely to have side effects that will interfere significantly with the defen-
dant’s ability to assist counsel in conducting a trial defense.” Id. James asserts
that the government failed to meet its burden on both counts.

                                         1.
      James contends that the government failed to show that the proposed
medication is “substantially likely” to restore her competence. Specifically, she
asserts that there was an insufficient basis in the record: No one provided an
exposition of the mechanism of the treatment or a statistical probability of the

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                                  No. 19-31011
treatment’s success, and, at the Sell hearing, the prosecution effectively spoon-
fed the term “substantially likely” to its witness, Silvas. Such evidence, James
asserts, was insufficient to satisfy the government’s burden, and the district
court clearly erred by holding otherwise.

      We disagree. Several doctors stated on the record that medical treat-
ment should restore James’s competence. Etter, in devising James’s proposed
treatment plan, stated “that treatment with antipsychotic medication is . . .
likely to resolve the psychotic symptoms of [James’s] Delusional Disorder that
prevent her from being able to work productively with her attorney to defend
herself in court.” Cherry, who conducted the BOP hearing, agreed that Etter’s
proposed treatment is “recognized as effective and safe treatment for Delu-
sional Disorder.” Blackwood testified that, regarding her four-year employ-
ment with the BOP, she could “think of at least 10 to 15 individuals who have
been successfully restored through treatment with medication,” and she could
“think of about two people who have not been successfully restored to compe-
tency.” And Silvas, who agreed with the government’s characterization of the
treatment’s success as “substantially likely,” spoke from thirty-seven years’
experience during which he had prescribed antipsychotic medication to
“hundreds” of patients.

      Although none of those doctors explained precisely what he or she meant
by “likely” or “substantially likely” (or “effective”), James neither elicited con-
tradictory testimony on cross-examination nor submitted contradictory evi-
dence. In fact, her expert psychiatrist opined that “within a reasonable degree
of medical certainty, [ ] it is substantially likely that with proper psychotropic
medications, Ms. James’s mental disease would improve enough as to permit
her to have a rational understanding of the proceedings and assist counsel
properly in her defense.” To be sure, the government could have submitted

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                                       No. 19-31011
more robust evidence—such as scientific studies, patient success rates, and
mathematical probabilities—but the numerous medical opinions do constitute
evidence. And, whatever the strength of that evidence, the record provides no
reason to question its accuracy.

       Given James’s failure to submit contradictory evidence, we cannot say
that the district court’s determination was “implausible in light of the record
as a whole,” United States v. Griffith, 522 F.3d 607, 612 (5th Cir. 2008), or that
we are left “with the definite and firm conviction that a mistake has been com-
mitted,” United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011). 3 The
district court’s finding is not error at all, much less clear error.

                                              2.
       James asserts that the government failed to meet its burden of showing
that the proposed medication “is substantially unlikely to have side effects that
will interfere significantly with [James’s] ability to assist counsel in conducting
a trial defense.” Sell, 539 U.S. at 181. She posits that the expert opinions
considered not her individual characteristics but generalities based on her
diagnosis. In sum, James urges, this court should hold that the district court
clearly erred by accepting the government’s insufficient and generic evidence.

       Again, we disagree. As the district court noted, Silvas recounted the
usual, generally mild side effects of antipsychotic medications such as Risper-
dal Consta. Etter’s greatest concern was the medication’s sedative effect,
though he stated that such effect “can usually be managed effectively” in that
it “tends to lessen over time, . . . is dose dependent[,] and usually occurs early
in treatment before the patient has acclimated to taking the medication.” As


       3See also United States v. Silva, 865 F.3d 238, 243 (5th Cir. 2017) (per curiam) (finding
no clear error, in part, because the defendant “presented no evidence to contradict this
testimony”).
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                                  No. 19-31011
for the more serious (though rare) potential side effects that could significantly
hamper James’s defense, such as Tardive Dyskinesia (a potentially irreversible
movement disorder), both doctors noted that the risk of occurrence is low and
that, even then, it could be minimized through close monitoring.

      Those opinions were based on more than James’s general diagnosis.
Before devising James’s proposed treatment, Etter “interviewed [James],
reviewed her records, . . . [and] discussed the case in detail with Dr. Black-
wood,” who was familiar with James’s delusional beliefs and behavioral his-
tory. Etter noted that “[t]here are no known contraindications to any of the
proposed medications for [ ] James.” He made the general observation that
Tardive Dyskinesia “most often occurs in those over the age of 50 . . . and in
long-term treatment with relatively high doses of antipsychotic medications.”
Although Etter did not explicitly apply that statement to James, the district
court could read between the lines: James is not yet fifty years of age; she
should reach a “full therapeutic response” within “[t]hree to six months of
antipsychotic medication treatment”; and her dosage would begin low and
would be kept as minimal as possible.

      Similarly, Silvas noted that James does not present any of the acknowl-
edged risk factors for side effects from antipsychotics. He testified that the
most significant side effects of antipsychotics are not associated with Risperdal
Consta, the proposed medication for James’s condition. Regardless, Silvas
stated, James would “be monitored to see if [side effects] emerge, how they
emerge, and to what degree they emerge, and then efforts will be made to man-
age them, decrease them, and, if possible, eradicate them.”

      The district court was presented with ample evidence concerning the
medication’s expected side effects both generally and as to James. “[A]ll the
doctors who testified at the hearing agree that . . . in the vast majority of

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                                  No. 19-31011
cases”—and in James’s case—“the side effects can be treated or minimized.”
Palmer, 507 F.3d at 304. Accordingly, it was not clearly erroneous for the
district court to find such evidence clear and convincing of the conclusion that
the medication’s side effects are substantially unlikely to interfere significantly
with James’s defense.

                                        C.
      Even if involuntary medication is substantially likely to further an im-
portant governmental interest, “the court must conclude that [such] medica-
tion is necessary to further [that] interest[].” Sell, 539 U.S. at 181. The inquiry,
as relevant here, requires the court “find that any alternative, less intrusive
treatments are unlikely to achieve substantially the same results.” Id.

      James asserts that the government failed to present sufficient evidence
to surmount its burden. She posits that “BOP officials did not appear to have
even considered the possibility of alternative treatment,” aside from “group
educational classes that, by BOP’s own account, would not actually address the
causes of [James’s] incompetency.” And, although “some BOP officials opined
generally that no other type of treatment will ever work with delusional dis-
order, [n]o expert cited any authority to support those broad claims . . . [or] tied
their assessments to patient-specific analysis.” By accepting such evidence as
clear and convincing, James urges, the district court clearly erred.

      As a preliminary matter, it is largely irrelevant whether BOP considered
or offered James meaningful alternative treatment.           The question is not
whether BOP has attempted less intrusive treatment; instead, it is whether
such treatment would be “unlikely to achieve substantially the same results”
as medication. Sell, 539 U.S. at 181. Depending on the evidence before it, the
court may be able to discount alternative treatments that have not been tried.
Although the government’s position would be strengthened if it could cite
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                                       No. 19-31011
alternative treatment options that had been tried for James without success,
there is no requirement that it first pursue such alternatives. 4

       More importantly, the record supports the district court’s determination
that less intrusive means are unlikely to achieve results similar to those of
involuntary medication. First, James is unwilling to attend group sessions for
fear that her attendance would be a tacit admission of mental illness. James
suggests that those specific group sessions are not designed for persons with
her condition and, therefore, would be ineffective. Perhaps that is so. Regard-
less, nothing in the record suggests that James’s refusal to attend such sessions
was informed by a belief that they are inappropriate for her condition; instead,
in the words of her own expert psychiatrist, she has “strongly resisted the
suggestion that she [has] a mental illness that is in need of treatment.” The
district court might have reasonably inferred that she would feel the same
way—even if the treatments were tailored to her condition.

       Second, medical experts are on the record as explaining that James is
unlikely to respond to non-pharmacological treatment. James believes that
those around her are conspiring against her. Blackwood testified that, on
account of James’s inability to consider alternative explanations for her case,
talk therapy “would not be successful.” Etter, when drafting the proposed
treatment plan, wrote that “less intrusive forms of treatment, such as psycho-
therapy have been shown to be ineffective in conditions such as [James’s] for
the treatment of a psychotic disorder.” Sonnier—James’s own expert—opined
that “[p]sychotropic medications . . . [would be] the least intrusive measure for
competency restoration.” Once again, James did not submit any evidence to


       4See United States v. Gomes, 387 F.3d 157, 162 (2d Cir. 2004) (accepting doctors’
testimony “that alternative forms of treatment (such as verbal therapy) would be ineffective,”
even though that notion was “untested” because the defendant “had no treatment of any kind
during his time in custody”).
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                                 No. 19-31011
the contrary.

      The government presented multiple, uncontradicted expert witnesses
who explained, while referencing James’s specific condition and manifest
symptoms, that she would not respond to alternative treatment. By finding
such evidence clear and convincing, the district court did not clearly err.

                                       D.
      To satisfy the fourth and final prong of the Sell analysis, the government
must show “that administration of the drugs is medically appropriate, i.e., in
[James’s] best medical interest in light of [her] medical condition.”         Sell,
539 U.S. at 181. The analysis is solely concerned with the patient: “[I]n anal-
yzing this factor, courts must consider the long-term medical interests of the
individual rather than the short-term institutional interests of the justice
system.” United States v. Ruiz-Gaxiola, 623 F.3d 684, 703 (9th Cir. 2010). The
requirement “ensur[es] that antipsychotic medications will be administered
only in those cases where appropriate by medical standards,” i.e., that the med-
ication could “be administered [ ] for treatment purposes” and not only to serve
the governmental interest.     Washington v. Harper, 494 U.S. 210, 222 n.8
(1990).

      James challenges the district court’s finding that administration of Ris-
perdal Consta is medically appropriate. She claims that the government pre-
sented no evidence as to how the medication would be in her long-term medical
interests, particularly when considering that her treatment is expected to be
short and that, regardless, long-term treatment increases the chances of seri-
ous side effects. Even in the short term, James asserts that there is no evidence
on record suggesting how the medication would provide her any medical
benefit—as distinguished from the non-medical benefit of allowing a faster


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                                       No. 19-31011
resolution of her case. The district court clearly erred, James contends, be-
cause the record lacks evidence “that long-term benefits to Ms. James of being
forcibly injected with [Risperdal Consta] would outweigh all of the possible
harms.”

       That argument incorrectly assumes that the government’s interest in
restoring James to competency is entirely separate from James’s medical inter-
est. To the contrary, any treatment program would seek—for James’s own
sake—to reduce the frequency and severity of her explosive outbursts and to
restore her ability to engage in rational communication and decisionmaking.
Of course, such goals were presented to the district court as serving the gov-
ernment’s interest, but the court may reasonably infer that they would also
serve James’s. 5 There is, in other words, no requirement that the record
contain an explicit statement that a reduction in the patient’s mental illness
symptoms would be a “medical benefit.”

       That is not to suggest that just any proposed treatment to restore a
defendant’s competency will be “medically appropriate” under the fourth Sell
factor. Certain side effects might not “interfere significantly with the defen-
dant’s ability to assist counsel in conducting a trial defense,” Sell, 539 U.S.
at 181, yet nevertheless might present serious health consequences. A high
risk of such side effects may render the treatment medically improper and
therefore impermissible—even if all other Sell factors be met and the medi-
cation should therefore bring the patient some benefit (either short- or long-
term) in the form of improved cognitive understanding and communication.




       5 James’s irrational behavior obviously has had a deleterious effect on her. In the
words of her own psychiatrist, Sonnier, James’s “paranoia and persecutory delusions . . . have
impaired her level of functioning at work, in interpersonal relations, and led to strained rela-
tionships with her family members.”
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                                  No. 19-31011
      Regardless, the record does not suggest that the administration of Ris-
perdal Consta would be medically improper. Cherry, when certifying the BOP
administrative hearing, noted that “[a]ntipsychotic medication is [ ] recognized
as a safe and standard treatment for Delusional Disorder,” a sentiment shared
by James’s expert, Sonnier. Silvas testified that James’s case does not present
any of the recognized risk factors for side effects linked to Risperdal Consta,
which itself has fewer serious side effects than do earlier generation anti-
psychotics. Silvas and Etter noted that serious side effects (such as Tardive
Dyskinesia) may nevertheless develop after long-term treatment but that
those side effects can be effectively monitored and managed.

      Without addressing those points, James contends that the proposed
treatment cannot be in her long-term medical interests because “the proposed
treatment plan anticipates that [she] will be medicated only to the extent nec-
essary to restore her competency for trial and no longer.” That is not quite
accurate. More precisely, the plan anticipates that James will be involuntarily
medicated with Risperdal Consta for as short a time as possible. As Silvas
explained, once James’s faculties are restored, ideally she will “consent [to]
voluntary treatment, [which would] open[ ] up a whole line of treatment
options, . . . mak[ing] it [ ] easier for [doctors] to adjust the dose to a lower
better tolerated dose.”

      The government presented the district court with detailed, uncontested
evidence suggesting that the proposed treatment plan would be in James’s
medical interest. It was not clearly erroneous for the district court to find such
evidence clear and convincing.

      AFFIRMED.




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