                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-11-2008

USA v. Grape
Precedential or Non-Precedential: Precedential

Docket No. 07-3682




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                                       PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                    No. 07-3682


         UNITED STATES OF AMERICA

                           v.

             JOHN DOUGLAS GRAPE,

                          Appellant


   On Appeal from the United States District Court
       for the Western District of Pennsylvania
               (D.C. No. 05-cr-00033E)
   District Judge: Honorable Maurice B. Cohill, Jr.


             Argued September 29, 2008
Before: FISHER, CHAGARES and HARDIMAN, Circuit
                      Judges.

             (Filed: December 11, 2008)
Thomas W. Patton (Argued)
Office of Federal Public Defender
1001 State Street
1111 Renaissance Centre
Erie, PA 16501
       Attorney for Appellant

Robert L. Eberhardt
Rebecca R. Haywood (Argued)
Office of United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
       Attorneys for Appellee




                 OPINION OF THE COURT


FISHER, Circuit Judge.

       John Douglas Grape suffers from a long history of
serious mental illness and is currently incarcerated pending trial
on two charges involving the receipt and possession of child
pornography.      The District Court initially found Grape
incompetent to stand trial on these charges, and the Government
correspondingly wished to medicate him involuntarily pursuant
to Sell v. United States, 539 U.S. 166 (2003), to render him
competent. The District Court agreed with the Government and
ordered Grape forcibly medicated following a Sell hearing. The
District Court’s order was stayed and Grape filed this

                                2
interlocutory appeal, claiming that the Government failed to
meet its burden of proof on the first two factors of the four-
factor test laid out in Sell: (1) whether the Government had
advanced sufficiently important interests to justify forcible
medication, and (2) whether involuntary medication was
substantially likely to restore Grape to competency. Id. at 180-
81. However, Grape subsequently assaulted a corrections
officer, and the Government then medicated him involuntarily
on account of his dangerousness pursuant to Washington v.
Harper, 494 U.S. 210 (1990). The District Court later deemed
Grape competent. Grape wishes to pursue this appeal because
the Government intends to use the District Court’s original Sell
order should Grape again become incompetent. We find that the
Government has presented sufficiently important interests to
involuntarily medicate Grape, and that the administration of
medication to Grape is substantially likely to render him
competent to stand trial. For the reasons set forth in further
detail below, we will affirm the District Court’s order.

                               I.

       On July 12, 2005, a federal grand jury returned a two-
count indictment against Grape, charging him with:
(1) receiving visual depictions of minors engaging in sexually
explicit conduct in violation of 18 U.S.C. § 2252(a)(2), and
(2) knowingly possessing visual depictions of minors engaging
in sexually explicit conduct in violation of 18 U.S.C.
§ 2252(a)(4)(B). These charges arose out of Pennsylvania state
allegations that between December 2004 and May 2005 Grape
brought minors to his bedroom and showed them child
pornography while attempting to molest them.

                               3
                      A. Pre-Sell Hearing

       Grape’s first signs of serious mental illness emerged
during his ten-year stay in prison, following a 1993 arrest and
conviction for the attempted rape of a male minor. Soon after
Grape’s incarceration in 1995, he was diagnosed with
depression but remained mentally stable otherwise. However,
beginning in 2000, Grape experienced his first psychotic episode
and prison medical staff consequently diagnosed him between
then and his 2004 release with paranoid schizophrenia, among
a number of other mental disorders. Notably, Grape has a
history of noncompliance with prescribed medication, often
refusing to take it entirely, dating back to his first imprisonment.

       Since Grape’s arrest on his current charges, he has been
subjected to numerous psychological evaluations.             On
September 6, 2005, the District Court granted Grape’s first
motion for a competency hearing, and ordered it to be preceded
by a psychological evaluation complete with a prepared report.
Because Grape previously filed a notice of insanity defense, the
Government filed its own motion for psychiatric examination in
response, and on September 16, 2005, the District Court granted
the Government’s motion to determine if Grape was insane at
the time of the offense. As a result of these orders, between
November 2 and December 1, 2005, Grape was evaluated at the
Metropolitan Correctional Center, in New York, New York
(“MCC-NY”).

       On January 4, 2006, MCC-NY examining psychologist
Cristina Liberati, Ph.D., filed a report based on her observations
during Grape’s stay. Ultimately, she diagnosed Grape in her

                                 4
report as follows: rule-out malingering;1 alcohol abuse; rule-out
schizophrenia, paranoid type; and rule-out pedophilia.2 Because
of Grape’s lack of cooperation, she could not definitively
diagnose his illness or assess his competency to stand trial.

        The District Court granted Grape’s second motion for a
psychological evaluation on February 6, 2006, and on April 5,
2006, Grape was admitted for evaluation at the Metropolitan
Correctional Center in Chicago. Dr. Jason Dana issued his
report from this evaluation period on June 23, 2006, in which he
expressed frustration with Grape’s lack of cooperation and
questioned the validity of his psychotic symptoms. Dr. Dana
diagnosed Grape with: pedophilia; alcohol dependence;
malingering; and rule-out psychotic disorder. Similar to Dr.


       1
         Dr. Christina Pietz, a forensic psychologist, testified at
Grape’s June 26, 2007 hearing pursuant to Sell v. United States,
539 U.S. 166 (2003), that “malingering” has two possible
meanings: “One is that [the patient is] acting, that he’s faking
a mental illness. But [it] also [includes] individuals that actually
suffer from a mental illness and exaggerate the nature of their
deficits.”
       2
        A “rule-out” diagnosis, according to Dr. Pietz’s
testimony, means there is “evidence that [the patient] may meet
the criteria for that diagnosis, but [the doctors] need more
information to rule it out.” In other words, there is reason to
suspect the presence of a “rule-out” psychotic disorder, but the
doctor would not be comfortable giving such a diagnosis at that
time.

                                 5
Liberati, Dr. Dana ultimately was unable to determine Grape’s
competency to proceed to trial and could offer no opinion on
Grape’s sanity at the time of the offense.

       The District Court held a competency hearing on July 20,
2006, and issued an order in response, finding Grape
incompetent. Grape was then remanded to the U.S. Medical
Center in Springfield, Missouri (“Springfield”) for continued
psychological evaluation and treatment to begin upon his
September 7, 2006 arrival. The District Court set a hearing for
Grape pursuant to Sell, and thereby ordered Grape’s treating
doctors to submit a report detailing his diagnosis, the type and
dosage of medicine to be administered to him, potential side
effects, the appropriateness of the medication, and why less
intrusive alternatives were not available.

       On February 15, 2007, Dr. Christina Pietz, Ph.D., a
forensic psychologist, and Dr. Robert Sarrazin, M.D., the Chief
of Psychiatry at Springfield, submitted a report to the District
Court regarding their assessment of Grape. In the report, Drs.
Pietz and Sarrazin stated that Grape suffers from paranoid
schizophrenia and antisocial personality disorder and was
mentally incompetent to stand trial at that time. They believed
antipsychotic medication would restore Grape to competency,
and discussed available medications and their side effects, as
well as the overall process and rates of success in restoring
competency.

      Meanwhile, prior to the June Sell hearing, Dr. Carlos
Tomelleri, a psychiatrist at Springfield, conducted an


                               6
examination pursuant to Harper 3 on May 15, 2007. Dr.
Tomelleri found that Grape was severely mentally ill, diagnosed
him with paranoid schizophrenia, and acknowledged that his
threatening behavior indicated potential danger to others.
However, Dr. Tomelleri conceded that Grape’s inappropriate
behavior could be adequately managed by the conditions of his
confinement at that time. Dr. Tomelleri concluded that Grape
therefore could not be involuntarily medicated on the grounds
that he was a danger to himself or others under Harper, but
agreed that medication was in Grape’s best interest.

                   B. Grape’s Sell Hearing

       On June 26, 2007, the District Court held a Sell hearing
to determine whether it could authorize the involuntary
medication of Grape. The Government presented Dr. Pietz and
Dr. Sarrazin as witnesses via video conference from Springfield.
Grape also appeared via video conference from Springfield.
Grape presented no witnesses.

       Dr. Pietz testified that over the course of a few months,
she saw Grape several times a week. She believed Grape suffers
from paranoid schizophrenia, as demonstrated through his
auditory hallucinations, responses to internal stimuli,


       3
        Washington v. Harper allows the involuntary
administration of drugs to a prisoner with serious mental illness
under limited circumstances if: (1) the inmate is dangerous to
himself or others, and (2) the treatment is in the inmate’s
“medical interest.” 494 U.S. 210, 227 (1990).

                               7
inappropriate display of emotion, and paranoia. Further, she
disputed the prior diagnoses that Grape was malingering,
testifying that he was unable to maintain a logical thought
process, or showed “cognitive slippage,” which is very difficult
for a patient to fake, and that he may pretend his mental illness
is less severe than it is. Dr. Pietz testified that Grape would
benefit from taking antipsychotic medicine for his schizophrenia
to “stabilize his mood[,] . . . [diminish his] attending to internal
stimuli, . . . and restore his competency.” However, Dr. Pietz
deferred to Dr. Sarrazin on the specific plan for medicating
Grape. Dr. Pietz admitted that she believed that if Grape were
not in custody, he could present a danger to himself or others.
She agreed that his mental state declined during his stay in
Springfield, that his symptoms would likely stay consistent
without medication, and that residing in a locked unit would
have adverse effects on his mental condition.

       Dr. Sarrazin testified second and, given his limited
meetings with Grape, relied heavily on Dr. Pietz’s observations
in reaching his conclusions. Dr. Sarrazin believed that Grape
suffers from paranoid schizophrenia and antisocial personality
disorder, though he had not seen him hallucinate or respond to
internal stimuli, and that Grape’s condition did not improve
between his February 2007 evaluation and the June 2007 Sell
hearing. Dr. Sarrazin testified in detail about medicating Grape,
and opined that “there is a substantial probability that with
antipsychotic medications . . . Grape will be restored to
competency to stand trial.” Specifically, Dr. Sarrazin hoped
medication would help treat Grape’s symptoms of disorganized,
delusional, and psychotic thought.


                                 8
        Dr. Sarrazin reviewed the different types of antipsychotic
medications available for Grape generally, comparing first- and
second-generation medicines.4 He described the treatment
available to Grape if he were to voluntarily accept oral
medication, expressing a preference for prescribing oral second-
generation antipsychotics. However, presuming that Grape
would continue to refuse medical treatment, Dr. Sarrazin
proposed a plan for his involuntary medication.                He
recommended treating Grape with a first-generation
antipsychotic medication called haloperidol,5 which is available
in oral, and short- and long-acting injectable forms. If Grape
refused to take the oral medicine, Dr. Sarrazin proposed starting
with a short-acting injectable form, which he would administer
daily, not to exceed a week at the maximum. He hoped that
once medicated and “de-escalate[d]” after taking the short-
acting injectable drug, Grape would choose to cooperate and
take his medicine orally from that point. Because haloperidol
also comes in long-acting injectable form, Dr. Sarrazin would
inject Grape with that if the first week of daily short-acting
injections did not render him cooperative.             Other oral
antipsychotic medications could be administered while the long-


       4
        Dr. Sarrazin testified that antipsychotic medicines come
in two broad categories right now – first-generation and second-
generation medication.           First-generation antipsychotic
medication has existed for many years, compared with the
relatively new second-generation medicines.
       5
        Haloperidol’s nongeneric trade             name,     used
interchangeably in the record, is Haldol.

                                9
acting injectable medication was still potent. Dr. Sarrazin
believed Grape would have to be medicated for a minimum of
four to six months.

        Practically, the forcible medication would happen in the
following manner. Medical center nursing staff would first give
Grape a chance to take medicine orally; if he refused, they
would administer the medicine via an injection. To do so, the
nurses would restrain Grape’s hands through his food slot, open
his cell door, inject him with the medication, leave the cell, and
then remove the handcuffs through the food slot. If Grape
refused to submit to hand restraints, the nurses would come with
a lieutenant, and even a four-cell boot team if necessary. The
lieutenant and boot team would open the door and restrain
Grape’s hands and legs, the nurses would then enter and give the
injection (usually in the buttocks), someone from the medical
staff would examine Grape for injury, and then the team would
leave. A lieutenant would videotape the entire event according
to procedure.

       Dr. Sarrazin believed “the medications would not have
side effects that would significantly inhibit [Grape’s] ability to
be competent for his trial, [or] to interact with his attorney.” If
possible side effects such as sedation, lightheadedness, or others
occurred, the doctors would no longer deem Grape competent to
proceed with his trial and would make changes to his treatment.
Other potential side effects include: extrapyramidal side effects
(“EPS”), which involve feelings of stiffness; feeling as though
one’s feet must keep moving (tardive dyskinesia); dry mouth;
diabetes or changes in blood glucose levels; involuntary
movements of the tongue and mouth; or neuroleptic malignant

                                10
syndrome, a more serious side effect that affects less than one
percent of those treated and causes the body not to be able to
regulate its own temperature. These side effects, especially
neuroleptic malignant syndrome, EPS or stiffness, and tardive
dyskinesia, which could be permanent, are less common in
second-generation antipsychotics than in first-generation
medicines such as haloperidol. Dr. Sarrazin said Grape would
be monitored closely for any of these side effects and believed
no alternative or less intrusive treatment would be effective in
treating him; counseling or therapy would not have been
effective at this stage.

       Dr. Sarrazin testified that the Bureau of Prisons has
approximately a 70% success rate in restoring forcibly
medicated defendants to competency, and that the numbers at
Springfield roughly mirror that statistic, estimating a 70 to 75%
success rate for his facility.          However, Dr. Sarrazin
acknowledged that the success rate in restoring patients to
competency “is a little bit lower for people that have to be
forcibly medicated than for people who do not,” including
individuals who are “uncooperative with our treatment and . . .
[those] more seriously mentally ill[, including those who] do not
believe they are mentally ill,” such as Grape. Overall, Dr.
Sarrazin testified that his proposed method of treatment is
medically appropriate for Grape, that this treatment is in Grape’s
“best medical interests,” and that his condition would “most
likely” continue to deteriorate, and would not improve, absent
medication.

       On cross examination, Dr. Sarrazin agreed that Grape
could potentially cause harm to others if he were placed among

                               11
the open population at the medical facility. He also conceded
that Grape repeatedly threatened Dr. Pietz and that if Grape
were released onto the street, he could harm a member of the
public at large. However, Dr. Sarrazin emphasized that he had
no way of knowing whether Grape would be civilly committed
if he could not be restored to competence.

       The District Court filed its opinion on September 6, 2007,
granting the Government’s request to involuntarily medicate
Grape in order to restore him to competency to stand trial.
Grape timely filed his notice of appeal to the District Court’s
order.

                      C. Post-Sell Hearing

        After Grape’s Sell hearing, his mental condition
continued to deteriorate, and on October 25, 2007, Grape
physically and verbally assaulted a Springfield correctional
officer. Springfield held a Harper hearing that day, during
which it determined that Grape qualified for forcible medication
under the Harper standard because he presented a danger to
others and the treatment was in his medical interest. See 494
U.S. at 225-27. Staff began forcibly medicating Grape
immediately.       According to the Government, Grape’s
understanding and behavior improved significantly over the
course of his first months on antipsychotic medications. As of
April 2, 2008, the warden of Springfield deemed Grape
competent to stand trial, as noted in a letter to the District Court.
The District Court subsequently found Grape competent to stand
trial and ordered him discharged from Springfield to the Erie
County Prison in Erie, Pennsylvania.

                                 12
        Grape acknowledges that although he was deemed
competent to stand trial, he voluntarily stopped taking his
antipsychotic medication at the end of June 2008, and has
received no antipsychotic medicine since that time. In fact, at
oral argument, Grape’s counsel represented that he had recently
met with Grape and already witnessed him exhibiting signs of
cognitive slippage. Grape’s counsel also reported that while on
the antipsychotic medication, Grape suffered terrible side
effects, including shaking, body aches, and EPS. Recognizing
that the state of his competency is not static, Grape therefore
wishes to maintain this appeal in the event that he again
becomes incompetent and the Government attempts to use the
original District Court order to forcibly medicate him. The
Government has not indicated that it would not use the District
Court order to involuntarily medicate Grape in the future if the
need arises.

                               II.

                        A. Jurisdiction

       We have jurisdiction over the District Court’s order
allowing the Government to forcibly medicate Grape pursuant
to 28 U.S.C. § 1291, under the collateral order doctrine
exception. See Sell, 539 U.S. at 175-77; Coopers & Lybrand v.
Livesay, 437 U.S. 463, 468-69 (1978); Cohen v. Benefit Indus.
Loan Corp., 337 U.S. 541, 546 (1949).

       Additionally, we must resolve the issue of mootness
before we exercise jurisdiction and proceed to the merits of this
case. North Carolina v. Rice, 404 U.S. 244, 246 (1971).

                               13
Despite Grape’s restored competency, brought to our attention
only weeks before oral argument, his appeal is not moot because
it meets the necessary factors under the “voluntary cessation”
exception. Under this doctrine, mootness is not presumed if the
respondent has stopped the offending action, but may resume it
at any time. De Funis v. Odegaard, 416 U.S. 312, 318 (1974).

       Grape has an ongoing illness and retains an interest in the
present appeal. City of Erie v. Pap’s A.M., 529 U.S. 277, 288
(2000). Although the Government has not yet medicated Grape
involuntarily subject to Sell, under the appealed District Court
order, nothing prevents it from doing so at any time the District
Court again deems Grape incompetent to stand trial. Thus, the
Government is “is free to return to [its] old ways” whenever it
desires. United States v. W. T. Grant Co., 345 U.S. 629, 632
(1953). Grape’s appeal before us therefore is not moot, and we
have jurisdiction to review it.6

                    B. Standards of Review

       The Sell Court did not specify a standard for reviewing
Sell orders, and because this is a matter of first impression in


       6
        The Government also admitted at oral argument that it
had not received the updated September 12, 2008 forensic report
stating that Grape was refusing to take his antipsychotic
medication at the time it filed its September 11, 2008 motion to
dismiss for lack of jurisdiction. Accordingly, the Government
agreed to withdraw its motion to dismiss, conceding that the
issues in Grape’s appeal are not moot.

                               14
this Court, we must first determine the appropriate standards of
review. Several of our sister circuits have specified standards of
review for each factor of the Sell test. Grape appeals the District
Court’s determination on two of the four Sell factors.

        All courts of appeals that have addressed this issue
review the first Sell factor as a legal question subject to de novo
review. See, e.g., United States v. Hernandez-Vasquez, 513 F.3d
908, 915-16 (9th Cir. 2007).7 Because we agree that the first
issue presents a legal question, we will review the first Sell
factor – whether the Government has advanced sufficiently
important interests to justify forcible medication – de novo.
Sell, 539 U.S. at 180.

       The Supreme Court and this Court have similarly not
addressed the standard of review for the second Sell factor –
whether involuntary medication is substantially likely to restore
Grape to competency. Id. at 181. All but one of the other courts
of appeals that have faced this issue agree that Sell factors two
through four present factual questions subject to clear error




       7
        See also United States v. Green, 532 F.3d 538, 546 (6th
Cir. 2008) (reviewing the first Sell factor de novo); United
States v. Palmer, 507 F.3d 300, 303 (5th Cir. 2007) (same);
United States v. Bradley, 417 F.3d 1107, 1113-14 (10th Cir.
2005) (same); United States v. Evans, 404 F.3d 227, 236 (4th
Cir. 2005) (same); United States v. Gomes, 387 F.3d 157, 160
(2d Cir. 2004) (same).

                                15
review. See, e.g., Hernandez-Vasquez, 513 F.3d at 915-16.8
Determining whether “involuntary medication will significantly
further [the proffered] state interests,” Sell, 539 U.S. at 181,
including the medication’s likely effect on a defendant and his
ability to stand trial and help prepare for it, requires us to resolve
a factual question. We therefore review the second Sell factor
for clear error, and defer to the District Court’s findings of fact.

       Further, all courts of appeals addressing this issue have
held that the Government bears the burden of proof on factual
questions by clear and convincing evidence. See, e.g., United
States v. Gomes, 387 F.3d 157, 159 (2d Cir. 2004) (applying and
requiring the Government to meet the “clear and convincing
evidence” standard previously articulated in Riggins v. Nevada,
504 U.S. 127, 134 (1992), as to the factual findings in Sell
factors two through four).9


       8
         See also Green, 532 F.3d at 551-52 (holding that Sell
factors two, three, and four are factual questions reviewed for
clear error); Palmer, 507 F.3d at 303 (same); Evans, 404 F.3d at
240 (same); Gomes, 387 F.3d at 160 (same). But see Bradley,
417 F.3d at 1113-14 (holding that both Sell factors one and two
are legal, or mixed legal and factual, questions subject to de
novo review).
       9
        See also Green, 532 F.3d at 545 (“A Sell order requires
the government to present clear and convincing evidence of [the
factual components of each of the four factors].”); Bradley, 417
F.3d at 1114 (agreeing that Sell factors two through four are
factual findings that the Government must prove by clear and

                                 16
                               III.

                    A. The Sell Framework

       In the instant appeal, Grape seeks relief from the District
Court’s order allowing the Government to forcibly medicate him
to render him competent to stand trial pursuant to Sell, but the
Government already forcibly medicated him in Fall 2007
pursuant to Harper.          Harper allows the involuntary
administration of drugs to a prisoner with serious mental illness
under limited circumstances if: (1) the inmate is dangerous to
himself or others, and (2) the treatment is in the inmate’s
“medical interest.” 494 U.S. at 227. In deciding Harper, the
Supreme Court found that although an inmate “possesses a
significant liberty interest in avoiding the unwanted
administration of antipsychotic drugs under the Due Process
Clause of the Fourteenth Amendment,” this interest can be
overcome by a “legitimate” and “important” government interest
in “providing appropriate medical treatment to reduce the
danger” the inmate presents. Id. at 221-22, 236.

       We do not reach consideration of the four-factor Sell test
unless an inmate does not qualify for forcible medication under
Harper, as determined at a Harper hearing generally held within


convincing evidence); Evans, 404 F.3d at 236 n.5 (stating that
Evans argued that the “Due Process Clause requires the
Government to prove its case under Sell by clear and convincing
evidence,” but that in failing to raise this argument before the
district court, he waived it on appeal).

                               17
the inmate’s medical center. Because Dr. Tomelleri found at
Grape’s first Harper hearing in Spring 2007 that he did not meet
the Harper standard for involuntary medication, the Government
continued to pursue Grape’s forcible medication through Sell.
We distinguish here between the two methods of involuntary
medication because, although Grape appeals only his Sell order,
the details of his eventual medication pursuant to Harper, as
determined at his Fall 2007 Harper hearing, are relevant to our
Sell analysis.

        In Sell, the Supreme Court explicitly allowed the forcible
medication of an inmate “solely for trial competence purposes”
in certain “rare” instances. 539 U.S. at 180. The Court set a
standard that the government must meet in order to overcome
the inmate’s liberty interest, as laid out in a four-factor test.
First, “a court must find that important governmental interests
are at stake,” though “[s]pecial circumstances may lessen the
importance of that interest.” Id. Second, “the court must
conclude that involuntary medication will significantly further
those concomitant state interests.” Id. at 181. This includes
finding that “administration of the drugs is substantially likely
to render the defendant competent to stand trial,” and “[a]t the
same time, . . . that administration of the drugs is substantially
unlikely to have side effects that will interfere significantly with
the defendant’s ability to assist counsel in conducting a trial
defense, thereby rendering the trial unfair.” Id. 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.” Id. Fourth, and finally, “the court must conclude that
administration of the drugs is medically appropriate, i.e., in the

                                18
patient’s best medical interest in light of his medical condition.”
Id. The Court then emphasized that the goal of this test is “to
determine whether involuntary administration of drugs is
necessary significantly to further a particular governmental
interest, namely, the interest in rendering the defendant
competent to stand trial.” Id.

        In this appeal, Grape challenges only the first two Sell
factors, arguing that the Government has not met its burden on
either. This is an issue of first impression in this Court.

       B. Sufficiently Important Government Interests

        Grape first argues that the District Court erred because
the Government did not satisfy factor one of the Sell test, which
is a legal determination that we review de novo. As instructed
by the Supreme Court, a reviewing court’s role regarding this
first factor is to determine whether “important government
interests are at stake,” while “consider[ing] the facts of the
individual case in evaluating the [strength of the] Government’s
interest.” Id. at 180.

          To evaluate the strength of the Government’s case, the
Sell Court stated that “[t]he Government’s interest in bringing
to trial an individual accused of a serious crime is important
. . . [,] whether the offense is a serious crime against the person
or a serious crime against property.” Id. Courts of appeals have
split on which test to employ in determining seriousness of the
crime. Some look to the maximum statutory penalty, while
others calculate the defendant’s probable sentencing range under


                                19
the U.S. Sentencing Guidelines (“Guidelines”). See Hernandez-
Vasquez, 513 F.3d at 917-19.

       Whether Grape’s alleged crimes are serious is not in
question. He faces statutory mandatory minimum sentences of
fifteen years for his receipt offense and ten years for his
possession offense, accounting for his prior conviction for
attempted rape. 18 U.S.C. § 2252(b)(1), (b)(2). The District
Court assessed Grape’s crimes in light of his criminal history
category of III and found that, if guilty, his “best case scenario”
punishment is likely 87 to 108 months’ imprisonment under the
Guidelines, though he would still be subject to the statutory
minimum sentences. Grape thus concedes that his offenses
qualify as serious under either test, and we agree.

       Additionally, we “must consider the facts of the
individual case in evaluating the Government’s interest in
prosecution,” remembering that “[s]pecial circumstances may
lessen the importance of that interest.” Sell, 539 U.S. at 180.
One significant mitigating circumstance for Grape is the
possibility of his civil confinement, upon which the Sell Court
elaborates: “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.” Id.

       The long-term prognosis for Grape’s currently restored
mental state is unclear, which affects the likelihood of his
potential future civil confinement. We therefore presume that
Grape would mentally deteriorate if not medicated, and proceed

                                20
under this assumption. Grape argues that under 18 U.S.C.
§ 4241(d), the statutory method of determining mental
competency to stand trial, if he is not medicated and therefore
not competent, he becomes subject to the provisions of 18
U.S.C. § 4246. Section 4246 provides the method for handling
a defendant once he is determined incompetent. The District
Court would first need to

       find[] by clear and convincing evidence that the
       person is presently suffering from a mental
       disease or defect as a result of which his release
       would create a substantial risk of bodily injury to
       another person or serious damage to property of
       another, [in which case] the court shall commit
       the person to the custody of the Attorney General.
       The Attorney General shall release the person to
       the appropriate official of the State in which the
       person is domiciled or was tried if such State will
       assume responsibility for his custody, care, and
       treatment. The Attorney General shall make all
       reasonable efforts to cause such a State to assume
       such responsibility. If, notwithstanding such
       efforts, neither such State will assume such
       responsibility, the Attorney General shall
       hospitalize the person for treatment in a suitable
       facility, until –

              (1) such a State will assume such
              responsibility; or



                               21
             (2) the person’s mental condition is
             such that his release, or his
             conditional release under a
             prescribed regimen of medical,
             psychiatric, or psychological care
             or treatment would not create a
             substantial risk of bodily injury to
             another person or serious damage
             to property of another;

      whichever is earlier.

18 U.S.C. § 4246(d). Further, Pennsylvania has its own
provisions for handling an incompetent inmate, if federal
authorities were to release Grape into state custody. The
relevant Pennsylvania statute states:

      Whenever a person is severely mentally ill and in
      need of immediate treatment, he may be made
      subject to involuntary emergency examination and
      treatment. A person is severely mentally disabled
      when, as a result of mental illness, his capacity to
      exercise self-control, judgment and discretion in
      the conduct of his affairs and social relations or to
      care for his own personal needs is so lessened that
      he poses a clear and present danger of harm to
      others or to himself. . . . If . . . the person has
      been found incompetent to be tried or has been
      acquitted by reason of lack of criminal
      responsibility on charges arising from conduct
      involving infliction of or attempt to inflict

                               22
       substantial bodily harm on another, . . . clear and
       present danger to others may be shown by
       establishing that the conduct charged in the
       criminal proceeding did occur, and that there is a
       reasonable probability that such conduct will be
       repeated. [A] clear and present danger of harm to
       others may be demonstrated by proof that the
       person has made threats of harm and has
       committed acts in furtherance of the threat to
       commit harm.

70 Pa. Cons. Stat. § 7301. Prior to Grape’s forcible medication
in Fall 2007, he most likely fell within the category of
individuals to whom this rule would apply if he were released in
Pennsylvania. In response to Grape’s arguments under these
federal and state statutes, the District Court found that “[e]ven
though a section 4246 hearing has not been held, there is no
serious dispute that the likelihood of Mr. Grape reentering
society unmedicated is extremely low.” Likewise, we believe it
is safe to assume that Grape would likely reenter this category
if his paranoid schizophrenia returned.

        The District Court further found that “there is no . . .
reading of the Medical Center’s Harper hearing conclusion
other than, but for his confinement, Mr. Grape would be a
danger.” In fact, we now know that, despite his confinement,
Grape when not medicated already posed a danger. Grape
argues that his apparently indefinite future civil confinement
decreases the need for his forcible medication to the point of it
becoming negligible. It is impossible for us to predict how
likely it is that Grape will relapse and again exhibit the same

                               23
dangerous symptoms that would bring him within the scope of
these civil confinement statutes. Grape’s currently restored
mental state weakens his argument. Yet, despite these recent
developments in Grape’s health, it is not difficult to agree with
the District Court’s assessment that “the likelihood of civil
commitment here does diminish the government’s interest in this
case.”

      But we must balance Grape’s strong argument against the
Government’s interests. In that vein, the Sell Court states:

       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.

539 U.S. at 180.


                               24
        In the instant case, the Government argues that a number
of factors increase its interest in prosecuting Grape. First, we
have recognized the seriousness of child pornography charges.
See United States v. Goff, 501 F.3d 250, 258-60 (3d Cir. 2007)
(highlighting the seriousness of and harm associated with the
use of child pornography). Also, Grape allegedly committed
child sex offenses within months of his discharge from prison
for his attempted rape, making him a repeat offender and
indicating a pattern of pedophilia. Further, the Government
asserts that the sheer strength of its interest in prosecuting Grape
decreases the ability of Grape’s special circumstances to
overcome those Government interests. The Government has a
strong case on the basis of these arguments.

        The Government also argues that it has a strong interest
in prosecuting Grape sooner, while the evidence is fresh, but we
do not find this convincing alone. Grape states, importantly,
that his computer is the source of the evidence against him,
which would be available whenever he is prosecuted. However,
the Government argues regarding Grape’s sentence that if he
were never convicted and served a period of time in civil
confinement instead, he would not face the potential of a portion
of his punishment through supervised release. This would allow
the Government to continue to track him after his stay in prison.
Finally, at oral argument, the Government also expressed an
interest in trying Grape earlier because one of its goals is to
involve crime victims in the prosecution process.

      We review this first Sell factor de novo. Other courts of
appeals in analyzing this factor have relied almost entirely on an
assessment of the seriousness of the defendant’s crime. See,

                                25
e.g., United States v. Green, 532 F.3d 538, 545-51 (6th Cir.
2008). Also, Grape has been confined on his current charges for
approximately three-and-a-half years. In light of the mandatory
minimum sentences of ten and fifteen years he faces, Grape
would still need to serve a majority of his sentence if convicted.
The Government has demonstrated the strength of its interest in
speedy prosecution with support from its additional enumerated
important interests.

        We recognize that “[t]he forcible injection of medication
into a nonconsenting person’s body represents a substantial
interference with that person’s liberty.” Harper, 494 U.S. at
229. The fact that Grape has already been involuntarily
medicated and has been restored to competency diminishes his
countervailing interest. Of course, there is a strong possibility
that he will again relapse to incompetency due to his paranoid
schizophrenia. Grape argues that as more time lapses from the
time he stopped taking his medication, he will move closer to
incompetency and to his previous degree and symptoms of
mental disease. But, due to the volatility of Grape’s mental
state, we cannot be certain of Grape’s current mental health, or
the likelihood and timeline under which he would again become
incompetent.

       Therefore, we are not in a position to agree
wholeheartedly with Grape’s statement that we “need not
override [his] constitutionally protected liberty interest in
refusing medical treatment when the end result of forcible
medication will be the same as allowing the individual to
continue to refuse treatment.” It is no longer clear that Grape’s
punishment – incarceration, whether in prison or a medical

                               26
facility – would be the same whether or not he were involuntary
medicated. Regardless, the District Court stated that it had “no
trouble concluding that important government interests are at
stake here.” We agree, and find that Grape’s arguments do not
outweigh the Government’s.10 Therefore, the Government’s
interest is sufficiently strong to outweigh Grape’s liberty interest
and to meet this factor of the Sell test.

                C. Substantial Likelihood of
              Medication to Restore Competency

       Grape also argues that the District Court erred in finding
for the Government on factor two of the Sell test, which we
review for clear error. The Sell Court describes factor two as
follows:

              Second, the court must conclude that
       involuntary medication will significantly further
       those concomitant state interests. It must find that
       administration of the drugs is substantially likely
       to render the defendant competent to stand trial.


       10
         We also recognize, however, that Grape’s forced
medication pursuant to Harper before our decision in the instant
appeal altered the facts of his case. Therefore, we decline to
reach whether Grape’s potential for indefinite civil confinement
on the facts prior to his Harper medication would have sufficed
under the first Sell factor to overcome the Government’s stated
interests. We limit our holding here to the facts of Grape’s
individual case, as presented to us at the time of our decision.

                                27
       At the same time, it must find that administration
       of the drugs is substantially unlikely to have side
       effects that will interfere significantly with the
       defendant’s ability to assist counsel in conducting
       a trial defense, thereby rendering the trial unfair.

Sell, 539 U.S. at 181. The clear error standard of review is
important to our analysis of this issue. This Court has defined
clear error review as follows:

       We accept the district court’s findings of fact
       unless they are clearly erroneous. A finding of
       fact is clearly erroneous when, after reviewing the
       evidence, the court of appeals is “left with a
       definite and firm conviction that a mistake has
       been committed.” Thus, even if we might have
       come to different factual conclusions based on
       this record, we defer to the findings of the district
       court unless we are convinced that the record
       cannot support those findings.

Oberti v. Bd. of Educ., 995 F.2d 1204, 1220 (3d Cir. 1993)
(citations omitted) (quoting Anderson v. Bessemer City, 470
U.S. 564, 573 (1985)). The Government bears the burden of
establishing the second Sell factor by clear and convincing
evidence. See Gomes, 387 F.3d at 159. The District Court
declared this part of its analysis the “central question in this
case[, i.e.,] whether medication is substantially likely to restore
Mr. Grape’s competency.”



                                28
         Grape challenges the District Court’s holding on this
factor in two ways. First, he challenges the sufficiency of the
evidence before the District Court to find that he was in fact
“substantially likely” to return to competence if administered
such antipsychotic drugs. The parties debated over the testifying
doctors’ evidence that the Government showed such a
substantial likelihood through Dr. Pietz’s testimony that “the
Bureau [of Prisons] has approximately a 70 percent success rate
in restoring involuntarily medicated defendants to competency.”
Yet, Dr. Sarrazin later acknowledged that the Bureau’s “success
in restoring competency is a little bit lower for people that have
to be forcibly medicated than for people who do not,” such as
Grape, because they are “uncooperative with [their] treatment[,]
. . . have absolutely no insight into their illness[,] do not believe
they are mentally ill[, and] are oftentimes sicker individuals.”

        Second, Grape argues that the District Court “fail[ed] to
appreciate that the government had the burden of proof on this
issue, and therefore any lack of evidence to support a finding
that forcible medication was substantially likely to render Mr.
Grape competent to stand trial had to be resolved against the
government, not [for] the government.” Grape has not shown
that the District Court clearly erred in accepting the doctors’
testimony that antipsychotic medication would be substantially
likely to render him competent to stand trial.

       However, we can dispose of Grape’s hypothetical
arguments as to Sell factor two by referring to the facts of what
actually happened after the Government forcibly medicated him



                                 29
pursuant to Harper. 11 Both the District Court and the
Springfield staff found that the medications restored Grape to
competency.      Regardless of whether the District Court
“abdicat[ed] its fact-finding role,” or failed to hold the
Government to its burden of proof, this tangible evidence shows
that “involuntary medication will significantly further those
concomitant state interests” by being “substantially likely to
render [Grape] competent to stand trial,” yet also being
“substantially unlikely” to have detrimental side effects
affecting Grape’s trial preparation. Sell, 539 U.S. at 181.




       11
         The District Court’s analysis, of course, did not
consider the actual results of Grape’s forcible medication with
antipsychotic drugs. However, “it would be pointless to remand
the case simply to have the District Judge take notice of that
which we may notice ourselves.” United States v. Remoi, 404
F.3d 789, 793 n.1 (3d Cir. 2005); see also Werner v. Werner,
267 F.3d 288, 295 (3d Cir. 2001) (“A court may take judicial
notice of an adjudicative fact if that fact is not subject to
reasonable dispute . . . [and such a] fact must either be generally
known within the jurisdiction of the trial court, or be capable of
accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.” (citing Fed. R. Evid.
201)); In re Indian Palms Assoc., Ltd., 61 F.3d 197, 205-06 (3d
Cir. 1995) (“Judicial notice may be taken at any stage of the
proceeding, including on appeal, as long as it is not unfair to a
party to do so and does not undermine the trial court’s
factfinding authority.” (citations omitted)).

                                30
        Thus we need not consider the research and scientific and
empirical evidence the parties debated regarding the likelihood
that antipsychotic medications would restore Grape to
competency.12 We now know that Grape most probably suffers
from paranoid schizophrenia, and definitely is responsive to
medicinal treatment for such a diagnosis. Further, although we
find that Grape did suffer side effects while taking antipsychotic
medications, we have limited information on the exact side
effects and their severity. Based on the parties’ representations
and the subsequent District Court finding of Grape’s
competency to stand trial, we assume that although Grape
suffered some side effects, they were not sufficient to “interfere
significantly with [his] ability to assist counsel in conducting a
trial defense.” Sell, 539 U.S. at 181. Therefore, the
Government has met its burden by clear and convincing
evidence that, if medicated involuntarily, Grape is substantially
likely to have his competence restored. For the above reasons,
the District Court did not clearly err in coming to the conclusion
it did.


       12
         The debate between the parties in their briefs hinges
around the 70% restoration of competence statistic, whether that
alone reaches a sufficient likelihood of restoration, and how far
under that threshold Grape falls. We find this inconsequential
because the tangible evidence garnered from Grape’s actual
forcible medication resolves the issue over which the parties
disputed – whether the medication plan outlined by Dr. Sarrazin
would be substantially likely to restore Grape to competence
with limited side effects. The plan did in fact restore Grape to
competence with limited side effects.

                               31
                               IV.

       For all of the above reasons, we conclude that, pursuant
to Sell, the Government has presented sufficiently important
interests to forcibly medicate Grape, and that the administration
of medication to Grape is substantially likely to render him
competent to stand trial, and unlikely to produce side effects that
may prevent him from helping prepare for his trial. Therefore,
we will affirm the District Court’s order.




                                32
