U.S. v. Bush

• Decision Date: 29 October 2009
• Docket Number: No. 08-6725.,08-6725.
• Citation: 585 F.3d 806
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Barbara Michelle BUSH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

585 F.3d 806 UNITED STATES of America, Plaintiff-Appellee,
v.
Barbara Michelle BUSH, Defendant-Appellant. No. 08-6725. United States Court of Appeals, Fourth Circuit. Argued: September 24, 2009. Decided: October 29, 2009.

[585 F.3d 809]

ARGUED: Marta K. Kahn, Baltimore, Maryland, for Appellant. Bonnie S. Greenberg, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

ON BRIEF: Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.

Before NIEMEYER and MICHAEL, Circuit Judges, and JAMES P. JONES, Chief United States District Judge for the Western District of Virginia, sitting by designation.

Vacated and remanded for further proceedings by published opinion. Judge NIEMEYER wrote the opinion, in which Judge MICHAEL and Judge JONES joined.

OPINION

NIEMEYER, Circuit Judge:

After Barbara Michelle Bush was indicted on two counts of threatening a federal judge, in violation of 18 U.S.C. § 876(c), a psychiatric evaluation, sought by both the government and Bush, concluded that Bush was not competent to stand trial but that there was a "substantial probability" that the administration of antipsychotic medication would restore her competence. Because Bush refused treatment, the government filed a motion for an order permitting it to medicate Bush involuntarily to render her competent to stand trial.

Applying the standard set out in Sell v. United States, 539 U.S. 166, 179-83, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003), the district court granted the government's motion and ordered Bush committed for hospitalization at the Federal Medical Center in Carswell, Texas ("FMC Carswell"), where "[t]he psychiatric staff at FMC Carswell will administer antipsychotic drug treatment to Ms. Bush on an involuntary basis if she continues to refuse treatment." The court stayed its order pending Bush's appeal.

On appeal, we conclude that the government had the burden of satisfying the Sell standard by clear and convincing evidence and that when the current state of the record is considered with this higher standard of proof, questions arise whether the government carried its burden under Sell. Accordingly, we vacate the district court's April 16, 2008 order and remand for further proceedings.

I

Barbara Bush suffers from Delusional Disorder, Persecutory Type, a psychotic mental illness primarily characterized by "nonbizarre delusions (i.e. situations that occur in real life such as being followed or persecuted)," which, according to the government's report of her condition, causes her to believe that "several federal judges, her attorney, agencies in the State of Maryland and her former employers in the federal government are conspiring to deny her money, medical treatment, educational opportunities, housing, and employment ... [and] are attempting to discredit her by bringing criminal charges and subjecting her to psychological evaluation." She has suffered from this disease since at least 1996 and exhibited symptoms possibly as early as 1985. The disease has manifested itself in Bush by extreme litigiousness, which has led her to file, by her

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account, over 100 civil lawsuits since 1995. This case has its genesis in one of those suits.

While enrolled in classes at Prince George's Community College, Bush came to believe that she was improperly denied disability accommodations, was subjected to loan fraud, and was unjustly harassed regarding email communications with another student, leading her to commence a civil action in the District of Maryland, Bush v. Kofie, et al., Civil Action No. PJM-05-3263 (D.Md.), which is the litigation underlying the case before us. In the course of the underlying litigation—as well as in others—Bush became convinced that the judges hearing her cases were deliberately "committing acts of abuse and assaults against her" by dismissing her claims and refusing her relief. She alleged that the stress caused by these recurring dismissals caused her to suffer several health problems.

Emanating from these perceptions, Bush wrote a letter dated December 1, 2005, to United States District Judge Deborah K. Chasanow, copying District Judge Catherine C. Blake and District Judge Colleen Kollar-Kotelly, and attached it to a pleading in Bush v. Kofie. While the letter's purpose to the litigation is unclear, in it she quoted a 1907 legal treatise to describe her understanding of the application of self-defense to her situation:

Barbara Michelle Bush's intentional infliction of (or, if she misses, her attempt to inflict) physical harm upon the other, or her threat to inflict such harm, is said to be justified when she acts in proper self-defense against Catherine C. Blake, Col[l]een Kotelly, and Deborah Chasanow et al., so that she is not guilty of any crime.

Thus, according to Maryland criminal law, Barbara Michelle Bush may slay any of such persons or all of them, if it reasonably appears to her to be necessary so to do to protect herself from anymore great bodily harm or death.

J.A. 152; cf. Francis Wharton, The Law of Homicide § 240, at 396-97 (Frank H. Bowlby ed., 3d ed.1907).

This letter prompted the FBI to approach Bush on December 9, 2005, and warn her to stop mailing threatening communications to federal judges. It also prompted District Judge Peter J. Messitte, to whom Bush v. Kofie had been assigned, to warn Bush in a memorandum opinion dated December 27, 2005, not to include "threatening language" in communications with the court. Bush has remained adamant, however, that she did not intend to threaten the judges and that she did not believe her letter was threatening. In fact, in a communication to the Department of Justice, Bush claimed that the officials were accusing her of making threats as part of a "cover up," that she was simply quoting the language from a decision of the Maryland Court of Appeals, and that Judge Messitte admonished her only after he "got upset because [she] appealed his decision."

On January 6, 2006, in response to Judge Messitte's memorandum opinion, Bush sent another letter to the district court entitled "Plaintiff v. Peter J. Messitte." This letter included, in bold letters at the top, the words "NO THREAT." In the letter, Bush expressed her opinion that Judge Messitte's actions were a threat against her and that Judge Messitte had committed "an assault" against her because he "contributed to and/or caused [her] to suffer a stroke as a direct result of Unreasonable and cruel assaults to [her] known disabilities," presumably by denying her claim for relief and warning her not to threaten federal judges. Bush again included the same language about "slaying" in self-defense that she had quoted

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in her December 1 letter, this time including Judge Messitte's name.

Following the second letter, Bush was arrested and charged with two counts of making threats to federal judges, in violation of 18 U.S.C. § 876(c). She was incarcerated at the Montgomery County Detention Center, where she presented "with rambling speech and as grandiose and delusional .... [H]er speech was described as tangential and her thought content as disordered and illogical at times." A medical examination revealed also that she had diabetes and high blood pressure, which confirmed earlier medical records. To have her evaluated, Bush was thereafter transferred to FMC Carswell in Texas.

The medical staff at FMC Carswell evaluated Bush, concluding that she suffered from Delusional Disorder, Persecutory Type, and that she was incompetent to stand trial. The report also suggested that there was a substantial probability that Bush would regain competence if treated with antipsychotic medication and that without medication it was unlikely that she would regain her competence. The report added that it was unlikely that the medication would produce serious side effects and that any side effects could be controlled.

Appended to the medical staff's report was an individual report prepared by Dr. Edulfo Gonzalez, a psychiatrist at FMC Carswell, which included his opinion that Bush would respond well to treatment with medication. Dr. Gonzalez stated that "[i]n [his] opinion, treatment with antipsychotic medication is medically indicated, and is substantially likely to render Ms. Bush competent to stand trial." Addressing the medication specifically, Dr. Gonzalez stated that only three medications could be administered involuntarily by injection— Haldol Decanoate, Prolixin Decanoate or Enanthate, and Risperdal Consta. He explained that "the first two drugs are of the older, typical class of antipsychotic medication and potentially have more troublesome significant side effects." He therefore indicated that Risperdal Consta "would be preferable because of having fewer side effects."

Dr. Gonzalez then listed the potential side effects of antipsychotic medications, which included, among other things, "the possibility of elevated glucose and lipids, at times causing the development of diabetes mellitus in individuals who are predisposed to develop that illness." Although Bush was known to have a history of diabetes, Dr. Gonzalez did not explain why she would not be at heightened risk of developing side effects relating to this disease. Instead, he stated simply, "To the best of my knowledge Ms. Bush does not suffer from any medical conditions which would place her at substantial risk of developing any severe side effects from treatment with antipsychotic medications." Finally, Dr. Gonzalez stated, "In my experience, treating individuals with this type of problem, I have never encountered a side effect that endangered the fairness of a trial."

Because Bush refused "to cooperate with the medical staff in taking the drugs necessary to restore her to competency," the government filed a motion in the district court to order her forcibly medicated to render her competent to stand trial. The court thereafter conducted three hearings, during the first of which it...