UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

_ _4_- 4_
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UNITED STATES OF AMERICA

v. criminal No. 17-65 (JDB)

FIl..ED
0£1192013`

Clerk, U.S. District and
Bankruptcy Courts

JEAN-PAUL GAMARRA,

Defendant.

 

 

 

MEMORANDUM OPINION

The government moves to involuntarily medicate defendant Jean-Paul Gamarra, vvho
suffers from mental illness, to render him competent to stand trial. Pursuant to Sell v. United
Qat_e§, the Court must determine Whether “in light of the efficacy, the side effects, the possible
alternatives, and the medical appropriateness of a particular course of antipsychotic drug treatment,
[the government has] shown a need for that treatment sufficiently important to overcome the
individual’s protected interest in refusing it.” 539 U.S. 166, 183 (2003). Upon consideration of
the pleadings, the testimony presented at the &:_l_l hearing before Magistrate Judge Deborah A.
Robinson held on April 13, 18, and 20, 2018,] and the entire record herein, the Court Will grant

the govemment’s motion.2

 

l _S_Y Tr. of§e_u Hr’g, Apr. 13, 2018 (“4/13/18 Hr’g Tr.”) [ECF No. 18]; Tr. ofS_ell Hr’g, Apr. 18, 2018
(“4/18/1 8 Hr’g Tr.”) [ECF No. 24]; Tr. of§e_|l Hr’g, Apr. 20, 2018 (“4/20/18 Hr’g Tr.”) [ECF No. 21].

2 At the status conference held on October 17, 2018, counsel for both parties stated that they had no objection
to this Court deciding this motion based upon the record, including the transcripts of the §gll hearing

l

BACKGROUND3

Gamarra was arrested outside the White House on March 28, 2017, after approaching
United States Secret Service Officers with a package that he claimed contained a detonator for a
nuclear device. Gamarra, 308 F. Supp. 3d at 231. He was indicted for threatening the President
in violation of 18 U.S.C. § 871 and threatening and conveying false information concerning the
use of an explosive device in violation of 18 U.S.C. § 844(e). ld_. at 232. The government
represents that Gamarra’s “threatening conduct caused a significant area of the District [of
Columbia] to be closed to traffic and commerce for approximately an hour and forty minutes.”
Gov’t’s Mot. to Medicate lnvoluntarily Def. to Restore Competency [ECF No. 22] (“Gov"t’s
l\/Iot.”) at 6. Gamarra was found to have a mental disease that rendered him incompetent to stand
trial, and he was hospitalized at Federal Medical Center (“FMC”) Butner for further evaluation
pursuant to 18 U.S.C. § 4241(d). Gamarra, 308 F. Supp. 3d at 232.4

At FMC Butner, forensic psychologist Evan S. Du Bois, Psy.D., and predoctoral
psychology intern Kelsey L. Laxton completed a forensic evaluation, ultimately concluding that
Gamarra remained “not competent to proceed to trial” but that “his competency is likely to be
restored with adherence to a medication regimen.” Gov’t’s Ex. 2 (“Forensic Evaluation”) at 14.5
FMC Butner Staff Psychiatrist Dr. Logan Graddy provided a forensic addendum and treatment
plan that similarly concluded that administration of antipsychotic medication was medically

appropriate, that other interventions were unlikely to be beneficial without medication, and that

 

3 The Court incorporates by reference fuller recitations of the factual and procedural history of this case in
its prior opinions. w United States v. Gamarra, 308 F. Supp. 3d 230, 231~33 (D.D.C. 2018); United States v.
Gamarra, Crim. No, 17-65, 2018 WL 4954128, at *1-3 (D.D.C. Oct. 12, 2018).

4 Section 4241(d) permits a defendant to be hospitalized for up to four months, but Gamarra ultimately spent
more than six months at FMC Butner. §§ This Court held that his extended hospitalization violated the statute but
that this did notjustify dismissal ofthe charges against him. l_d_. at 233_34.

5 All cited exhibits were admitted without objection during SLll proceedings before Magistrate Judge
Robinson. _S_Q Apr. 13, 2018 Min. Entry (admitting Gov’t Exs. 1-3, 11); Apr. 18, 2018 Min. Entry (admitting Gov’t
Exs. 10, lOA); Apr. 20, 2018 Min. Entry (admitting Gov’t Exs. 4, 12).

2

the benefits of medication would outweigh the risks. Gov’t’s Ex. 11 (“Forensic Add. and
Treatment Plan”) at 1, 3.

The government orally moved to have defendant involuntarily medicated, and the
defendant opposed the motion. Magistrate Judge Robinson held a gil hearing over three days in
April 2018 at which Dr. Du Bois, Laxton, and Dr. Graddy testified for the govemment. The
defendant did not present any witnesses.

Dr. Du Bois, whom the court qualified as an expert in clinical forensic psychology, testified
that, in his opinion and to a degree of professional certainty, Gamarra suffers from “schizophrenia,
continuous,” based on observations of delusional ideation, disorganized speech, and possible
auditory hallucinations. 4/13/18 Hr’g Tr. at 55:9-11; 58:3~10. Dr. Du Bois opined that Gamarra
was not competent to stand trial because, although Gamarra exhibited a basic factual understanding
of court proceedings in general, his understanding of his case and the charges against him were
“rooted in his delusional beliefs, which were a result of his schizophrenia.” § at 64:1-23. Dr.
Du Bois further opined that Gamarra would have difficulty testifying because he “would have
difficulty communicating clearly and organizing his thoughts and testimony” and because his
mental illness made it possible he would incriminate himself. l_d. at 64:24-65:14. Dr. Du Bois
concluded that Gamarra’s disorganized speech would also impair his ability to consult with
counsel. § at 65:15-25.

Dr. Du Bois testified that he did not recommend individual therapy in place of
antipsychotic medication because delusional beliefs, like those to which Gamarra ascribed, “often
don’t respond to behavioral or therapy techniques.” Ld. at 94:24-95:1 1. He and Laxton “attempted

to challenge some of [Gamarra’s delusional] beliefs or introduce evidence that would oppose them,

which is the recommended method for opposing or trying to change delusional beliefs, . . . [but
this course of treatment was] not effective.” § at 95112-17.

Laxton, who was qualified as an expert in clinical forensic psychology without objection,6
testified that, in her opinion and based on a reasonable degree of professional certainty, Gamarra
suffers from “schizophrenia, continuous,” and was not competent to stand trial. § at 13:10-115,
18:8-19, 20:12-18. ln particular, Laxton testified that while Gamarra had a factual understanding
of the court proceedings, including an understanding of basic legal terminology and concepts,. he
had “some difficulty rationally understanding the proceedings against him, especially the potential
consequences of his case.” § at 21:6-22. She explained that Gamarra’s understanding of the
charges against him and his defenses to those charges were themselves rooted within his delusional
belief system. § at 22:23-23:10. As a consequence, she opined that Gamarra lacked capacity to
testify because his condition made it difficult for him to communicate “in a clear and coherent way

. . without discussing further his delusional belief systems” and because he would “likely ~. . .
incriminate himselfwithout realizing that he was doing so.” § at 23114-24:8. For essentially the
same reasons, Laxton concluded that Gamarra also lacked capacity to consult with counsel. § at
2419-19. In addition, Laxton noted that Gamarra’s delusional beliefs around electric waves,
computers, and telephones would affect his competency to stand trial; for example, “in the
courtroom, he thought that the presence of the telephone would be detrimental to him or his case
or even have some physical impact on [the] judge . . . .” § at 22:6-22.

Laxton also testified that, in her opinion, administration of antipsychotic medication was a

“key piece” of Gamarra’s treatment plan that would be “necessary to get [Gamarra’s] symptoms

 

6 The magistrate judge received Laxton, who served as an intern under Dr. Du Bois, as an expert “with the
understanding that the licensed clinical psychologist who approved the report will also be a witness in this
proceeding.” § at 13:13~15.

in control to a point that he would be competent to stand trial,” and it was “unlikely” that Gamarra’s
condition would improve without medication. § at 37:10-38:9. Though staff had “encouraged
Mr. Gamarra to take medications,” Laxton explained that Gamarra refused to take antipsychotic
medications at various times while at Butner because ofhis beliefs that “he had . . . died previously

33 44

taking another medication, that he does not have a mental illness and does not need those
medications,” and that his religion prohibited taking what he believed were addictive medications
§ at 26:21-27:10; 37:20. l\/ls. Laxton observed, however, that during her examination Gamarra
communicated more clearly on medication and that this improvement was corroborated by reports
from Gamarra’s family (and Gamarra himself) that antipsychotic medication improved Gamarra’s
condition. § at 27:23_28:18. Gamarra’s family members reported that he was “highly intelligent
and functioned well when he [had] complied with medications” in the past. § at 2814-8. Laxton
herself observed that Gamarra “communicated slightly better” during the brief periods at FMC
Butner when he was “more compliant with [prescribed antipsychotic] medication.” § at 28:16-
18.

Dr. Graddy, whom the court qualified as an expert in the field of forensic psychiatry,
testified that, in his opinion and based on a reasonable degree of medical certainty, Gamarra suffers
from “schizophrenia, multiple episodes, currently in[ an ]active episode.” § at 1 12:2-11; l 1418-
15. Dr. Graddy did not meet Gamarra in person, but he “reviewed the full record” before making
his diagnosis § at 114:8~115110. His diagnosis, in contrast to Dr. Du Bois and Laxton’s
diagnosis of “schizophrenia, continuous,” was based on his observation that “Gamarra has gotten

better in the past on medications, significantly better, such that l have classified him as having

multiple distinct episodes rather than one continuous episode.” § at 115:19-25.7

 

7 Dr. Samantha DiMisa diagnosed Gamarra with schizoaffective disorder, a related but distinct condition,
during his time at the Metropolitan Correctional Center (“MCC”) in New York, New York. Forensic Add. and

5

Dr. Graddy noted several studies indicating that antipsychotic medications restored
competency in more than seventy-five percent of defendants suffering from schizophrenia and
other psychotic disorders. Of particular relevance, Dr. Graddy cited a 2012 study in which 62 of
81 defendants diagnosed with schizophrenia Were restored to competency with antipsychotic
medications, for a restoration rate of approximately 76%. gee 4/18/18 Hr’g Tr. at 40:20~41:18
(discussing Gov’t’s Ex. 10 at 3). Although Dr. Graddy did not directly evaluate Gamarra’s
competency, Dr. Graddy noted that Gamarra “appears . . . to be consistent With other . . . defendants
who did regain their competency when treated with antipsychotic medication” and that this
conclusion was “stronger” because Gamarra “has documented improvement on antipsychotic
medication in the past.” 4/13/18 Hr’g Tr. at 116:1-11. Dr. Graddy testified that antipsychotic
medications “are generally safe and effective” and that “patients with schizophrenia or
schizoaffective disorder . . . need medications to improve” because “[o]ther treatments are not very
effective for these conditions.” § at 118211-24. Dr. Graddy did not believe that other, less-
invasive treatments would be effective. § at l2l:10-l3; 143:4-8. Dr. Graddy stated that he
would propose beginning Gamarra’s treatment with the antipsychotic medication risperidone
because it “is a medicine he took in the past” that he “appeared to tolerate . . . well” and that had
been documented to “improv[e] . . . his mental state.” § at 123:15-18.

ln addition, Dr. Graddy opined that medication would be “medically appropriate,”
particularly since “he appears . . . to be a patient who does get better with treatment.” § at 120:1 l-
19. Dr. Graddy explained that antipsychotic medication is the course of treatment he would

recommend to Gamarra “if he were to come and see me with this complaint in the community"` or

 

Treatment Plan at 2 nr2. Dr. Graddy’s report explained that “this diagnosis and the treatment required for it are not
significantly different from [his] diagnosis” of schizophrenia § Furthermore, Dr. Graddy noted that the “diagnostic
difference” between his conclusion that Gamarra suffered from schizophrenia, multiple episodes, currently in active
episode, and Dr. Du Bois’s diagnosis of schizophrenia, continuous, “is minor.” I_d_.

6

“[i]f his family were to approach me” seeking advice on treatment § at 122:11-23. He also
noted that antipsychotic medications were prescribed to Gamarra “every time he’s gone into -the
hospital.” § Dr. Graddy also highlighted that he considered risperidone “one of our best
medications” for treating patients with schizophrenia-type diagnoses, even in light of the potential
risk of side effects. 4/20/18 Hr’g Tr. at 43:1-12.

As to potential side effects, Dr. Graddy testified that antipsychotic medications are known
to have a significant risk of serious side effects, including acute dystonic reactions (involuntary
muscle contractions), parkinsonism (characterized by muscle rigidity, tremors, and decreased
spontaneous facial expressions), dyskinesias (characterized by involuntary grimacing, tongue
movements, rapid blinking, and rapid limb movement), and akathisia (uncomfortable inner
restlessness). 4/18/18 Hr’g Tr. 22115~24:6; 31:22-32:16; 38:6-40:19. Dr. Graddy testified that
various studies suggested that the reaction rates for antipsychotic medications generally ranged
from two to ten percent for dystonic reactions, up to fifty percent for parkinsonism, up to thirty-
two percent for dyskinesias, and up to thirty percent for akathisia. § at 24:23-25:1; 33:7-25;
39:3~9; 40:6-11.

He opined, however, that if Gamarra were medicated, any side effects that Gamarra might
experience would be closely monitored and managed by medical staff, either by adjusting the
dosage of antipsychotic medication, prescribing a different antipsychotic medication, or by treating
the side effects with other medications 4/13/18 Hr’g Tr. at 122:24-123:25. Dr. Graddy
acknowledged that Gamarra’s medical records noted that he had “complained of some

5

neuromuscular symptoms,” particularly “stiffness,’ in response to risperidone, which a treating
physician would “watch closely if we have to treat him with that” medication. 4/20/18 Hr’g Tr. at

36:19-37:3. But because negative reactions tend to “occur early in treatment” and would be noted

by medical providers, Dr. Graddy believed the risk of Gamarra experiencing, for example, a
dystonic reaction while taking risperidone to be “fairly low since he’s tolerated [this] medicine in
the past.” § at 25:12-16; 28:2~4; 4/20/18 Hr’g Tr. at 3617-13; see also 4/20/18 Hr’g Tr. 19:22-
2012 (Dr. Graddy explaining his use of past medical records in recommending medication to
patients). Furthermore, any side effects from the medication would be “very unlikely to cause him
to not be able to be competent” to stand trial. 4/13/18 Hr’g Tr. at 120:20-7. ln all, despite the
risks of side effects, Dr. Graddy stated that “from a medical perspective, benefits of treatment, in
my opinion, outweigh the risks.” § at 120:16~19.
DISCUSSION
“Although an individual has a constitutionally protected interest in avoiding involuntary

medication, that interest can be overcome by an ‘essential’ or ‘overriding’ state interest in some
circumstances.” United States v. Dillon, 943 F. Supp. 2d 30, 34 (D.D.C. 2013), aff’d, 738 F.3d
284 (D.C. Cir. 2013) (quoting §e_l_l, 539 U.S. at 179-80). The Supreme Court in S§ll “prescribed
a detailed, four-part inquiry for district courts to undertake prior to authorizing involuntary
medication to restore defendants to competency.” United States v. Dillon, 738 F.3d 284, 290 (D.C.
Cir. 2013). Pursuant to §§_l_l,

a court may order the administration of medication to render a mentally ill

defendant competent to stand trial on criminal charges if:

(l) doing so advances an important government interest, such as bringing to trial

an individual accused of a serious crime;

(2) the medication is substantially likely to render defendant competent to stand

trial[] and substantially unlikely to have side effects that will interfere

significantly with defendant’s ability to assist counsel in conducting a trial

defense;

(3) alternative less intrusive treatments are unlikely to achieve substantially the

same result; and

(4) administration ofthe medication is medically appropriate, i.e., in the patient’s
best interest in light of his medical condition.

M, 943 F. Supp. 2d at 34~35 (citing _S_e_ll, 539 U.S. at 180~82). The government must prove
each M factor by clear and convincing evidence. Qi_ll§n, 738 F.3d at 291-92.8
I. IMPoRTANT GovERNMENT INTEREST

The first S§ll factor requires a court to “find that important government interests are at
stake."’ M, 539 U.S. at 180. “The [g]overnment’s interest in bringing to trial an individual
accused of a serious crime is important,” but courts “must consider the facts of the individual
case,” as “[s]pecial circumstances may lessen the importance of that interest.” § In particular,
“the defendant already having been confined for a significant period oftime” may “undermine the
importance of the government’s interest in prosecution.” wm 943 F. Supp. 2d at .35.
Furthermore, the possibility that a defendant might face “lengthy confinement in an institution for
the mentally ill” notwithstanding his inability to stand trial can “diminish the risks that ordinarily
attach to freeing without punishment one who has committed a serious crime.” §§L 539 U.S. at
180.

The government asserts that important governmental interests are at stake in this case
because it seeks to bring Gamarra to trial on charges of serious offenses The crimes with which
he is charged involve threats to health and safety, and “the government has a significant interest in
bringing . . . to justice” defendants charged with “[a]ny threat on a governmental official,

particularly the President.” Gov’t’s l\/lot. at 6. Furthermore, “[f]ailure to bring such offenders to

 

3 As a threshold inquiry, the Supreme Court in §ej directed that a court should consider whether forced
medication might be warranted on dangerousness grounds_that is, due to the danger defendant poses to himself or
others-~before determining whether involuntary medication to restore competency is appropriate §<N, 539 U.S. at
182-83 (discussing involuntary medication criteria under Washington v. Harper, 494 U.S. 210, 225~26 (1990)).
Neither party contends that Gamarra would qualify for forced medication under Harper. Furthermore, Dr. Graddy’s
report concluded that Gamarra would not “meet criteria under BOP policy” for forced medication under Harp_er
because “Gamarra was able to function adequately in the Mental Health Department [at FMC Butner] without
engaging in behavior that posed a risk of being dangerous to himself or others.” Forensic Add. & Treatment Plan at
1_2. Accordingly, this court will proceed past this threshold inquiry to analysis ofthe §e_ll factors.

9

justice has the potential to substantially undermine or interfere with the orderly process of
government and thereby have a negative impact on the community as a whole.” §

The D.C. Circuit has not yet “wade[d] into the debate among [its] sister circuits about
whether the seriousness ofa crime is measured by the statutory maximum or the likely guideline
sentence, or both,” _Qmo_n, 738 F.3d at 292, so this Court will examine both the statutory maximum
and the likely Guidelines sentence.9 lf convicted, the government estimates that Gamarra would
face a recommended sentencing range of twenty-one to twenty-seven months’ imprisonment,
based upon a Base Offense Level of 12 under U.S. Sentencing Guideline § 2A6.1 and a four-level
increase under § 2A6.l(b)(4)(A) because the offense allegedly resulted in “substantial disruption
of public, governmental, or business functions or services.” U.S. Sentencing Guidelines Manual
§ 2A6.1 (U.S. Sentencing Comm’n 2016) (“U.S.S.G”); Gov’t’s l\/lot. at 7.10 The Court also notes

that all criminal offenses with a total offense level of sixteen fall within Zone D of the U.S.

 

9 Circuit courts have applied the first §§Q factor differently. Most circuits seek “objective parameters by
which to assess seriousness,” including consideration of “the potential statutory penalty and/or Guideline range of
imprisonment which may be imposed.” United States v. Green, 532 F.3d 538, 547 (6th Cir. 2008). Some circuits
look primarily to statutory maximums and minimums, s_ee i_d at 549; United States v. Evans 404 F 3d 227, 237 38
(4th Cir. 2005), while other courts consider both statutory maximum sentences and likely sentencing ranges under the
Guidelines s_ee United States v. Valenzuela- Puentes 479 F 3d 1220, 1226 (IOth Cir. 2007)

Furthermore, because the Supreme Court noted 1n S§ll that under the first factor a court must “consider the
facts of the individual case in evaluating the Government’s interest in prosecution,” 539 U.S. at 180, the Eleventh
Circuit has applied a circumstance-specific approach to determine whether a crime is “serious.” See, e.g., United
States v. Fuller, 581 F. App’x 835, 836 (l lth Cir. 2014) (per curiam) (noting no need to “decide whether the charged
offense here . . . is, as a general matter, a serious crime” because “the facts of the instant case” were sufficiently
alarming to conclude the defendant’s alleged conduct was “serious”). The Ninth Circuit follows a blended approach,
starting with the likely Guidelines range and then considering “the specific facts ofthe alleged crime as well as the
defendant’s criminal history.” Onuoha, 820 F.3d at 1055.

Though the D.C. Circuit has not yet weighed in, Dillon, 738 F.3d at 292, the Court notes that the articulated
standard implies that a court should first examine objective criteria of the crime’s seriousness (such as the statutory
maximum and Guidelines range), and then it should evaluate the facts of the individual case in its “special
circumstances” analysis, §§ § (stating that “[a] court must first determine whether the charged crime is ‘serious”’
before moving on to a consideration of whether special circumstances apply based on “the specific facts ofthe case
before it”). Accordingly, the Court will follow this approach here.

10 Because the Guidelines provide that defendants with a total offense level of sixteen be imprisoned for
twenty-one to twenty-seven-months only if the defendant has a criminal history category of I, the Court presumes that
the government also represents that Gamarra would likely be assigned a criminal history category of I. S_ee U.S.S.G.
Ch. 5, Pt. A (Sentencing Table).

 

10

Sentencing Guidelines Sentencing Table regardless of an offender’s criminal history category,
which reflects the Sentencing Commission’s judgment that these offenses are of a type that always
require that a term of imprisonment be imposed_rather than, for example, probation or home
confinement _S_e_e U.S.S.G. Ch. 5, Pt. A; U.S.S.G. §§ 5B1.1, 5C1.1. Finally, each offense carries
a significant maximum penalty that reflects “legislative judgments concerning the severity of the
crime.” Gov’t’s Reply to Def.’s Opp’n [ECF No. 26] (“Gov’t’s Reply”) at 2-3 (citing w 404
F.3d at 237~38)). As the government notes in its brief, threatening the President, 18 U.S.C. § 871,
and threatening the use of an explosive device, 18 U.S.C. § 844(e), carry maximum terms of
imprisonment of five and ten years, respectively. Gov’t’s l\/lot. at 7.

Here, the Court concludes that both 18 U.S.C. §§ 871 and 844(e) may qualify as “seri'ous
crimes” for purposes of the S§ll analysis. This Court has previously found that making threats
against the President in violation of 18 U.S.C § 871 is a “serious crime,” M, 943 F. Supp. 2d
at 35-36; see also United States v. Aleksov, Crim. No. 1:08-57, 2009 WL 1259080 (D.D.C. May
7, 2009), at *2, and other federal courts have determined that threatening the use of explosives in
violation of 18 U.S.C. § 844(e) is similarly “serious,” United States v. Onuoha, 820 F.3d 1049,
1054-56 (9th Cir. 2016) (describing alleged violation of 18 U.S.C. § 844(e) as “sufficiently
serious” but vacating order to involuntarily medicate on other grounds); United States v. l\/lilliken,
Crim. No. 3:05-6-]-32, 2006 WL 2945957(1\/I.D. Fla. July 12, 2006) (finding alleged violations of
18 U.S.C. § 844(e) to be “no doubt serious”). The fact that these crimes repeatedly have been
found to be “serious,” alongside consideration of the maximum sentences that may be imposed
and the sentence likely to be imposed under the Guidelines, persuades the Court that both crimes

generally qualify as “serious crimes” for purposes of its S§ll analysis.

11

Gamarra does not dispute that he faces charges for “serious crimes.” He argues, rather,
that two “special circumstances” nevertheless sufficiently mitigate the government’s interest in
prosecution. Def.’s Opp’n to Gov’t’s Mot. (“Def.’s Opp’n”) [ECF No. 25] at 7.

Gamarra first argues that his lengthy pre-trial detention negates the government’s interest
in his continued prosecution. §_e_e i_d_. at 7~9. As noted above, Gamarra has been in federal custody
for almost nineteen months, since March 2017, and the government estimates that defendant would
face a Guidelines range of twenty-one to twenty-seven months’ imprisonment if convicted, §
Gov’t’s l\/lot. at 7. Therefore, Gamarra’s potential term of imprisonment under the Guidelines-
without accounting for the possibility of good-time credit-_would end between December 2018
and June 2019. Gamarra notes that “at least three or four months of continuous treatment” with
antipsychotic medication is anticipated to be required before his competency is likely to be
restored. Def.’s Opp’n at 8 (quoting Gov’t’s Ex. 10 at 9). Gamarra also stated his intention to
appeal an order granting the government’s motion, which would add additional time to Gamarra’s
stay in federal custody. § at 7-8. ln all, Gamarra estimates that thirty-four months-seven
months longer than the upper end of a sentence imposed under the Guidelines_could pass
between his arrest and the beginning of trial if the Court grants the government’s motion. § at 8.

On this point, the government argues that a lengthy term of pre-trial detention, caused in
part by Gamarra’s decisions not “to take prescribed medication” and, if the government is
successful in this motion, to “pursue[] his appellate rights,” does not “negate the government
interest.” Gov’t’s Reply at 1-2. Further, the government cites cases in which long terms of pretrial
detention did not preclude a court from finding that the important-governmental-interest prong of

the w test had been met. _Sg §ll

 

“ For example, in Aleksov, sixteen months’ detention did not preclude finding an important government
interest when the estimated sentencing range was ten to thirty-three months, 2009 WL 1259080, at *2. In Dillon, the

12

 

The Court is attentive to the fact that Gamarra has now been detained for over eighteen
months and that, if convicted, has therefore already served a significant portion of the
recommended Guidelines sentence of twenty-one to twenty-seven months’ incarceration ihe
length of Gamarra’s pre-trial detention certainly lessens to some extent the government’s interest
in prosecuting him because even if convicted Gamarra would likely have already served a
significant portion-or the entirety-of any sentence to be imposed.

However, the government’s interest in prosecuting serious crimes is not limited to
punishing an individual offender with a term of imprisonment. §§ United States v. Claflin, 670
F. App’x 372, 373 (5th Cir. 2016) (per curiam) (“Even if it were determined that Claflin had
already served his likely sentence, such a circumstance does not defeat the Government’s interest
in prosecuting him.”); United States v. Springs, 687 F. App’x 672, 674 (9th Cir. 2017) (affirming
involuntary medication order of defendant facing twenty-one to twenty-seven month sentence who
had “already been in custody for nearly three years”).

As articulated by the Ninth Circuit, “there is an important distinction between
incarceration itself[] and the significance for society of gaining a criminal conviction for a
defendant’s violation ofthe law.” Onuoha, 820 F.3d at 1056. This principle is especially relevant
in cases involving threats against public officers; as the government explains, “[a]ny threat on a
government official” has the potential to undermine “the orderly process of government” more

broadly. Gov’t’s Mot. at 6; see also United States v. Pfeifer, 661 F. App’x 618, 619 (l lth Cir.

 

possibility of twenty-four months’ detention did not preclude finding an important government interest when the
estimated sentencing range was fifty-one to sixty months. 943 F. Supp. 2d at 35. In United States v. Bush, 585 F.3d
806 (4th Cir. 2009), the Fourth Circuit affirmed the district court’s finding of an important government interest when
the estimated sentencing range was twenty-four to thirty months and defendant had been held for eighteen months in
pretrial custody and more than twelve months in home confinement § at 815. And in United States v. Austin, 606
F. Supp. 2d 149 (D.D.C. 2009), the Court concluded that twenty-seven months’ detention when a defendant faced a
maximum sentence of forty-one months “certainly diminished” but still had not “eradicated” the government’s
interest, § at 151~152.

13

2016) (per curiam) (noting that “the Government’s interest in prosecuting [the defendant for
alleged violation of 18 U.S.C. § 871] is not only for protection of the president but to uphold`the
integrity of our system of government”). ln addition, deterrence-both general and specific_
forms an important part of the government’s interest. Here, the government points out that
Gamarra allegedly has demonstrated other “bizarre behavior in relation to public figures” in.the
past and thus that “the government has a significant interest in . . . limit[ing] his likelihood to
reoffend.” _S_e_e § at 6 & n.3. And a sentence is not limited to a term of imprisonment. As the
Fourth Circuit noted in B§sh, even when a defendant is convicted and released on a sentence of
time served, the court may impose conditions of supervised release to “ensure that [the defendant]
is not released into the public without appropriate monitoring.” 585 F.3d at 815; see also Onuoha,
820 F.3d at 1056 (noting that “a sentence might also include a period of supervised release, which
would help ensure that [defendant] does not return to making threats when released into the public”
even when the defendant would “conceivably be sentenced to time served” (quotation omitted)).
Finally, criminal convictions have other long-lasting consequences For example, conviction on
the instant offense could factor into Gamarra’s criminal history score were he to commit an offense
in the future. &§ U.S.S.G. § 4A1.l.

Although Gamarra’s lengthy term of pre-trial detention weighs against a finding of an
important government interest, these other considerations form a hefty counterbalance
Notwithstanding the length of his pre-trial detention, the government interest here is still strong
because of the seriousness of the charged offenses, the role that prosecution ofthe offense would
play in deterring Gamarra and others from committing such an offense, and the concomitant effects

that follow a conviction, including the possibility that a term ofsupervised release may be imposed.

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Accordingly, this Court concludes that the duration of his pre-trial detention alone will not negate
the government’s important interest in prosecuting this case.

Gamarra also argues that the government’s interest in prosecuting him is mitigated by the
likelihood that he will be civilly committed pursuant to 18 U.S.C. § 4246 if the government’s
motion to involuntarily medicate him is denied and he cannot proceed to trial. Def.’s Opp’n at 9~
10. The government counters that “[t]here has been no finding, or proffer of evidence, that the
characteristics ofthe defendant would lead to civil commitment in this case,” Gov’t’s Reply at 4,
and in any event, “the potential for future confinement affects, but does not totally undermine, the
strength of the need for prosecution,” i_d_. (quoting S§ll, 539 U.S. at 180). The Court agrees with
the government on this issue, as the Court has not been presented with any evidence regarding
whether Gamarra would be likely to face civil commitment under 18 U.S.C. § 4246 (or any other
statute) if he cannot stand trial. S_ee Ohuoha, 820 F.3d at 1057 (not weighing the possibility of
civil commitment against the government’s interest where “[n]othing in the record indicates that
[defendant] is a candidate for civil commitment”).

In sum, the Court finds that the government has proven by clear and convincing evidence
that-notwithstanding the length of Gamarra’s pretrial detention in relation to his likely
sentence_it has an important interest in prosecuting Gamarra because the alleged crimes are
serious and special circumstances do not diminish the importance of the government’s interest in
prosecuting those crimes.

II. INvoLUNTARY MEDlCATroN WiLL SIGNIFICANTLY FuRTHER THAT INTEREST

“Second, the court must conclude that involuntary medication will significantly further
those concomitant state interests.” Sell, 539 U.S. at 181. ln other words, involuntary medication

must be “substantially likely to render the defendant competent to stand trial” but also

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“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.” §

The government argues that involuntary medication significantly furthers its interest in
prosecuting Gamarra because medication is substantially likely to render Gamarra competent and
unlikely to cause side effects that would impair his ability to participate in his defense. ln
particular, the government points to Dr. Graddy’s testimony that Gamarra’s “prior history of
[successful] medication treatment” suggests that antipsychotic medication will render him
competent and that his individual characteristics were “consistent with other §el_l defendants who
did regain their competency under antipsychotic medication.” Gov’t’s Mot. at 12-13. 'fhe
government also cited Dr. Graddy’s opinion that antipsychotic medications were unlikely to cause
side effects that would render Gamarra incompetent § at 14.

ln response, Gamarra seeks to cast doubt on Dr. Graddy’s opinion, noting that Dr. Graddy
did not examine Gamarra in person and that the data on which he based his opinions involved
defendants diagnosed with several different psychiatric disorders and generalizations about_the
effects of antipsychotic medications as a class Gamarra states that Dr. Graddy did not provide
“the Court with M evidence concerning the restoration rate for defendants diagnosed
[specifically] with schizophrenia who were treated specifically with [r]isperidone.” Def.’s Opp’n
at 12. In other words, Gamarra contends that the government should have cited a study of
competency-restoration rates for defendants with schizophrenia treated with risperidone, not
simply for defendants with schizophrenia treated with antipsychotic medications similar to and
including risperidone. Similarly, Gamarra contends that the record does not include sufficient

evidence “relating to the potential side effects of |r|isperidone administered to defendants

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diagnosed with schizophrenia in M proceedings,” as opposed to defendants with schizophrenia
or other psychotic disorders § at 13.

Although data on restoration rates and side effects from studies specifically examining
defendants diagnosed with schizophrenia and prescribed risperidone would certainly be helpful to
the Court, Dr. Graddy’s failure to provide a study of such a narrowly tailored epidemiologic
population does not prevent the government from carrying its burden of proof as to the second w
factor. Here, the government has not only provided strong evidence that defendants suffering from
schizophrenia are likely to have their competency restored from treatment with M' of
antipsychotic medications that includes risperidone, but also that Gamarra in particular is likely to
have his competency restored because his condition has responded favorably in the past to
treatment with risperidone. Gamarra has provided no evidence to the contrary. Furthermore, while
the testimony makes clear that antipsychotic medications pose a significant risk of serious side
effects, the testimony also leads the Court to conclude that these side effects can be monitored and
managed, Gamarra may be less likely to experience some of these side effects because of his
treatment history and ability to tolerate these medications in the past, and any such side effects are
unlikely to negatively impact his competency. Hence, the Court concludes that the government
has proven by clear and convincing evidence that involuntary medication will significantly further
the government’s interest.

III. INvoLUNTARY MEDlCATIoN Is NECEssARY

“Third, the court must conclude that involuntary medication is necessary to further those
interests” and that “any alternative, less intrusive treatments are unlikely to achieve substantially

the same results.” §eu, 539 U.S. at 181.

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The government supports its contention that involuntary medication is necessary by citing
testimony from its experts stating that antipsychotic medication is likely to restore competency
and that other treatments are unlikely to be effective ln particular, it references Dr. Du Bois and
Laxton’s efforts to challenge Gamarra’s delusional beliefs and their conclusion that these

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techniques “were not effective.’ Gov’t’s l\/lot. at 15. The government also cites Dr. Graddy’s
opinion from both his testimony and the appendix to his report that there is generally no “viable”
or “effective” treatment for schizophrenia other than antipsychotic medication. § at 15-16. 'As
to Gamarra’s individual case, Dr. Graddy opined that “Gamarra has a mental condition that
responds to medication.” § at 16. F or these reasons, the government argues that “[a]t this stage,
no reasonable option exists other than to medicate the defendant.” §

In his opposition, Gamarra notes that the government “produced _tQ evidence that the
Bureau of Prisons made Ly attempt to restore Mr. Gamarra’s competency other than by
medication.” Def.’s Opp’n at 14. Gamarra cites several instances in which the government’s
witnesses explained that other treatments, including therapy, were not recommended for Gamarra.
§e§ i_d_. at 15-16.

The Court finds persuasive the detailed expert testimony from Dr. Du Bois, Laxton, and
Dr. Graddy indicating that antipsychotic medication is likely to restore Gamarra’s competency and
that other less-intrusive treatments are not likely to work. And Gamarra failed to provide evidence
either to rebut the government’s evidence that medication was likely to be effective or to suggest
that other treatments could be effective. For example, he does not challenge Dr. Du Bois and

Laxton’s observation that Gamarra’s delusional beliefs persisted after attempts to challenge them

and their conclusion that individual therapy was therefore unlikely to be effective lndeed, all

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evidence before this Court supports the government’s position that antipsychotic medication is the
only treatment likely to restore Gamarra to competency.

Accordingly, the Court finds that the government has met its burden to prove by clear and
convincing evidence that involuntary medication is necessary to further its important interest in
prosecuting Gamarra.

IV. INvoLUNTARY MEDICATION Is MEDtCALLY APPROPRIATE

The fourth and final factor requires courts to find that “administration of the drugs is
medically appropriate, i_.e_., in the patient’s best medical interest in light of his medical condition.”
S§ll, 539 U.S. at 181. The Supreme Court noted in §§ that “[t]he specific kinds of drugs at issue
may matter here as elsewhere,” since “[d]ifferent kinds of antipsychotic drugs may produce
different side effects and enjoy different levels of success.” §

As to this final inquiry, the government cites Dr. Graddy’s opinion that administration of
antipsychotic medication was “clearly medically appropriate” in li ght of the fact that it is the course
of treatment Dr. Graddy would recommend to someone in the community with the same condition
as Gamarra and that such treatment has been prescribed “every time [Gamarra has] gone into a
hospital.” Gov’t’s Mot. at 16. Gamarra responds by arguing that “[i]n rendering his opinion in
this case, . . . Dr. Graddy violated the ethical standards of the American Psychiatric Association”
because he did not meet Gamarra in person before forming an opinion. Def.’s Opp’n at l7.
Gamarra also challenges Dr. Graddy’s opinion by noting that his diagnosis (schizophrenia,
multiple episodes, currently in an active episode) differed both from the diagnosis of Dr. Du Bois
and Laxton (schizophrenia, continuous) and Dr. Demisa at the Metropolitan Correctional Center
during an earlier competency evaluation (schizoaffective disorder, bipolar type, continuous), and

stating that this renders his opinion “suspect at best.” § at 17-18. ln its reply, the government

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notes that the ethics rule that Gamarra cites applies only to “a psychiatrist opining about matters
in the public domain, not to the ordinary practice of psychiatrists working with a practice team”
and thus does not apply here. Gov’t’s Reply at 8 (emphasis removed).

Overall, the Court finds that Dr. Graddy’s conclusion that involuntary medication is
medically appropriate is persuasive, especially since the record demonstrates that Gamarra has
been treated with antipsychotic medications including risperidone, on several past occasions in a
clinical setting and that these medications have significantly improved Gamarra’s condition. The
Court also finds relevant Dr. Graddy’s opinions on the effectiveness of risperidone_both in
general and as applied to Gamarra-which led Dr. Graddy to recommend its use notwithstanding
the risk of side effects, including the possibility that Gamarra might experience stiffness or other
neuromuscular symptoms E 4/20/18 Hr’g Tr. at 43:1-12 (calling risperidone “one of our best
medications”); 4/20/18 Hr’g Tr. at 36:19-41:3 (discussing Gamarra’s past history of treatment
with risperidone).

ln addition, Gamarra’s allegation that Dr. Graddy violated an ethical standard ofdhis
discipline in forming his opinions is unsupported As the text of the cited ethics rule makes clear,
it applies to occasions when “psychiatrists are asked for an opinion about an individual who is in
the light ofpublic attention or who has disclosed information about himself/herselfthrough public
media”_not, as here, where a psychiatrist is a patient’s treating physician. Am. Psychiatric Ass’n,
The Principles of Medical Ethics with Annotations Especiallv Applicable to Psychiatry 9 (2013),
available at https://www.psychiatry.org/psychiatrists/practice/ethics. Furthermore, in response to
the question of whether it was ethical for a psychiatrist to testify in a competency hearing “based
. . . on medical records” where he or she “did not examine the defendant,” the American Psychiatric

Association’s Ethics Committee responded “yes.” Am. Psychiatric Ass’n, Opinions of the Ethics

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Committee on The Principles of l\/ledical Ethics 35 (2017), available at
https://www.psychiatry.org/psychiatrists/practice/ethics. The Committee explained that “[i]t is
common for forensic experts to offer opinions” based on review of records and without examining
the defendant in person, and the rule was designed instead “to protect public figures from
psychiatric speculation that harms the reputation of the profession of psychiatry and of the
unsuspecting public figure.” § Thus, Dr. Graddy’s opinion does not violate the ethical standards
of his profession.

Furthermore, the Court has no reason to conclude that the variations in Gamarra’s diagnosis
offered by Dr. Graddy, Dr. Du Bois and Laxton, and Dr. Dimisa alter the conclusion that
antipsychotic medication, specifically risperidone, would be medically appropriate in treating
Gamarra’s condition. Dr. Graddy explained that these diagnoses were “not significantly different”
and that any difference was “minor.” w Forensic Add. and Treatment Plan at 2 n.2. Gamarra
does not explain why these diagnostic differences should lead the Court to reject Dr. Graddy’s
medical opinion as to the medical appropriateness of treating Gamarra with antipsychotic
medication, ln any event, Dr. Graddy testified that “patients with schizophrenia or schizoaffective
disorder . . . need medications to improve” because “[o]ther treatments are not very effective.for
these conditions,” 4/13/18 Hr’g Tr. at 118:16~24, which suggests that either diagnosis would lead
to the same conclusion that administration of antipsychotic medication would be medically
appropriate,

Hence, the Court concludes that the government has proven by clear and convincing
evidence that treatment with antipsychotic medication is in Gamarra’s best interest given_his

condition, and thus is medically appropriate in this case.

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CONCLUSION
For the foregoing reasons, the Court concludes that the government has met its burden of
proofwith respect to each ofthe four §e_ll factors Accordingly, the Court will order that Gamarra

be involuntarily medicated to restore his competency.

/s/
JOHN D. BATES
United States District Judge

Dated: October 19, 2018

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