United States v. Debenedetto, 13–3281.

• Decision Date: 04 April 2014
• Docket Number: No. 13–3281.,13–3281.
• Citation: 757 F.3d 547
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Gary DEBENEDETTO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

757 F.3d 547

UNITED STATES of America, Plaintiff–Appellee,

v.Gary DEBENEDETTO, Defendant–Appellant.

No. 13–3281.

United States Court of Appeals, Seventh Circuit.

Submitted Nov. 27, 2013.

Decided April 4, 2014.

Nicole Kim, Attorney, Mark E. Schneider, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Gary W. Adair, Attorney, Gary W. Adair & Associates, Chicago, IL, Defendant–Appellant.

Gary Debenedetto, Chicago, IL, pro se.

Before FLAUM, RIPPLE, and HAMILTON, Circuit Judges.

ORDER

The Government has filed a Petition for Panel Rehearing requesting that we amend our opinion of March 3, 2014, to reflect that the Government never was ordered to respond to Mr. Debenedetto's motion to stay. It also requests that we designate our March 3 opinion as nonprecedential. The Government explains that it did not have an opportunity to address fully the issue of whether, in assessing the importance of the Government's interests under the first prong of the analysis under Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003), the district court should focus on the maximum sentence or the probable Guidelines sentence. This issue, however, has been fully briefed in United States v. Breedlove, No. 13-3406, scheduled for oral argument later this month.

The panel has reexamined its March 3 opinion, and now withdraws that opinion and substitutes the attached revised opinion. Accordingly,

IT IS ORDERED that the petition for panel rehearing is DENIED.

IT IS FURTHER ORDERED that the opinion entered in this case on March 3, 2014, be and is hereby WITHDRAWN, and that the attached revised opinion of this date be SUBSTITUTED.

RIPPLE, Circuit Judge.

Gary Debenedetto has been charged in a five-count indictment with knowingly transmitting through interstate commerce threats to injure another person, in violation of 18 U.S.C. § 875(c). Following his arrest, the district court ordered a mental competency evaluation and made an initial finding that Mr. Debenedetto suffers from a mental disease or defect that renders him mentally incompetent to the extent that he is unable to understand the nature 2 No. 13–3281 and consequences of the proceedings against him or to assist in his defense. The court ordered him to be placed in a facility pursuant to 18 U.S.C. § 4241(d) for further evaluation, and Mr. Debenedetto was sent to the Federal Medical Facility in Butner, North Carolina (“Butner”).

The evaluating psychiatrist at Butner conducted additional examinations, which led him to conclude that Mr. Debenedetto would require involuntary treatment with psychotropic medications to restore his competency for trial. At a follow-up hearing, the district court considered the psychiatrist's report and determined that Mr. Debenedetto should be committed for treatment, including involuntary medication, as is necessary to attain the capacity to permit the criminal proceedings to go forward. See18 U.S.C. § 4241(d)(2)(A).

Mr. Debenedetto filed a pro se appeal from the district court's commitment order, but after the Government notified the court of its intent to execute promptly the district court's order absent an order from this court, his attorney filed both a motion to stay the order and a motion to withdraw as counsel from the appeal. We ordered a temporary stay of the order. After reviewing the submissions of the parties and the transcript of the district court hearing, we hold that the hearing and subsequent written findings of the district court do not constitute adequate compliance with the requirements set forth in Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003).¹ We therefore must vacate the court's commitment order and remand for further proceedings consistent with this opinion.

I

Mr. Debenedetto was arrested on April 11, 2012, on charges that he transmitted threatening communications to various individuals, in violation of 18 U.S.C. § 875(c). While Mr. Debenedetto was in custody pending trial, the district court ordered, on its own initiative, a mental competency evaluation. Pursuant to this order, the district court received the results of a forensic examination performed by the Metropolitan Correctional Center in Chicago, Illinois (“MCC”), and later conducted a hearing at which the evaluating forensic psychologist testified. Following the hearing, the court determined that Mr. Debenedetto suffered from a mental disease or defect that rendered him mentally incompetent to stand trial. The district court therefore ordered that he be placed in the custody of the Attorney General for additional mental competency evaluations.

Four months later, the court received and reviewed the result of a second examination performed at Butner. According to the district court, “Dr. Robert Lucking, the evaluating psychiatrist, opined that defendant need[ed] to be involuntarily treated with psychotropic medications in order to restore his competency to proceed to trial.” ² On October 8, 2013, therefore, the Court held a hearing regarding the need to medicate Mr. Debenedetto without his consent.

At the hearing, Mr. Debenedetto's attorney initially objected to the intended course of medication. He stated that he did not believe that “the first prong of Sell,” relating to the importance of the Government's interest, was met.³ He went on to explain that he believed that Mr. Debenedetto's guideline range for the crimes charged would be ten to sixteen months and that he already had been incarcerated for sixteen months. Counsel for Mr. Debenedetto also raised concerns regarding the effectiveness of the drugs that would be administered; he specifically noted that “30 percent of these involuntary medications don't always work.” ⁴

In response, counsel for the Government took issue with defense counsel's estimated guideline range, which she calculated to be between thirty-seven and forty-six months. Nevertheless, the Government's counsel acknowledged that “[t]here is some uncertainty as [to] how Mr. Debenedetto will take the medication and whether he will be restored [to competency] within six months,” but noted that, “at least in the opinion of the medical professionals at Butner, they do believe there's a substantial likelihood that Mr. Debenedetto can be restored within that time.” ⁵

The district court never directly addressed the parties' arguments because the court believed that defense counsel was proposing that Mr. Debenedetto be involuntarily committed. The court suggested that defense counsel file a written motion to which the Government could respond. Defense counsel asked for a short adjournment to confer with Mr. Debenedetto. When proceedings resumed, counsel represented that Mr. Debenedetto had agreed to go back to Butner and, “if they feel involuntary medication is appropriate, that should be done, but they should also review or consider less intrusive measures other than that if appropriate or if he would agree. And if not, they can involuntarily medicate. He's agreed to that.” ⁶

Mr. Debenedetto, however, then requested the opportunity to speak. He stated:

I have to, you know, ask you, okay, that I have a brother in California, okay, who had taken some psychotropic neuroleptics. Okay. He went into seizures, all right? They gave me an advanced, second-generation form of psychotropics at MCC on July 11th, one pill. It was called Geodon. It was the most advanced, side-effect-free, okay? I fell down on the floor. I was in seizures for eight hours.⁷

The court responded, “[s]o you don't want to do that again,” and Mr. Debenedetto replied, “[e]xactly.” ⁸

Mr. Debenedetto also made statements that appear to indicate his belief that medication was not necessary. He referenced classes he had been taking at Butner that “teach competency,” reported that he had been in law school and explained that he was able to function in the open population at Butner without medication.⁹

The hearing concluded with the court stating that it would “enter an appropriate order. I'm going to ask the government to submit it. You can look at it, ... and, if necessary, the psychotropic medications will be administered, but they will be administered in a way that is not prejudicial to Mr. Debenedetto's physical health.” ¹⁰ The district court subsequently entered the following finding: “Based on the seriousness of the charged conduct in the indictment, the reports, and the referenced studies, the facts in the instant matter satisfy the requirements for imposition of involuntary treatment as outlined in Sell v. United States, 539 U.S. 166, 180–81, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003)[ ]....” ¹¹ After reiterating the requirements of Sell, the court then ordered, in relevant part:

1. The recommended medication be involuntarily administered according to the procedures recommended in the Forensic Evaluation. However, prior to the involuntary administration of medication, less intrusive measures should be considered and taken if deemed appropriate and available.

2. Any recommended medication being involuntarily administered should not in any way endanger the health of defendant.¹²

Mr. Debenedetto filed a pro se appeal from the district court's commitment order, but after the Government notified this court of its intent to execute promptly the order absent a stay, his attorney filed a motion to stay as well as a motion to withdraw as counsel from the appeal. We entered a temporary stay of the order and now address the merits of the district court's commitment order.

II

The decision to medicate involuntarily a defendant must balance the interests of the defendant with the interests of the Government, and these interests differ depending on the purpose of the medication. For instance, the Government has a strong interest in using involuntary medication to control a defendant who is dangerous to himself or others in order to ensure prison safety and security. Washington v. Harper, 494 U.S. 210, 223, 110 S.Ct....