United States v. Dillon

• Decision Date: 12 March 2014
• Docket Number: No. 13–3044.,13–3044.
• Parties: UNITED STATES of America, Appellee v. Simon A. DILLON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

738 F.3d 284

UNITED STATES of America, Appellee

v.Simon A. DILLON, Appellant.

No. 13–3044.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 24, 2013.

Decided Dec. 24, 2013.

Rehearing En Banc Denied March 12, 2014.

Christopher M. Davis, appointed by the court, argued the cause for appellant. With him on the briefs was Mary E. Davis, appointed by the court.

David B. Goodhand, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, and Elizabeth Trosman, G. Michael Harvey, and Fernando Campoamor–Sanchez, Assistant U.S. Attorneys.

Before: KAVANAUGH and SRINIVASAN, Circuit Judges, and EDWARDS, Senior Circuit Judge.

EDWARDS, Senior Circuit Judge:

This appeal contests the District Court's order authorizing the Government to medicate Defendant–Appellant Simon Dillon, by force if necessary, for the sole purpose of rendering him competent to stand trial. We review this matter with a sobering awareness that requiring a person to take unwanted psychotropic medication entails a grave deprivation of a liberty interest protected by the Due Process Clause. See Washington v. Harper, 494 U.S. 210, 221, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) (noting that an individual “possesses a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs”).

Our decision is largely controlled by Sell v. United States, where the Supreme Court held that the Government may, on “rare” occasions, forcibly medicate a defendant to restore his competency. 539 U.S. 166, 180, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003). But to do so, the Government must establish, inter alia, (1) that the Government has an “ important ” interest in the prosecution that is undiminished by special circumstances and (2) that the proposed medication will “ significantly further ” this important interest. Id. at 180–81, 123 S.Ct. 2174. The Government contends this case is one of the “rare” instances contemplated by Sell.

Dillon, who has a history of mental illness, was indicted for threatening the President in violation of 18 U.S.C. § 871. The District Court found him incompetent to stand trial and, upon the Government's motion for involuntary medication, conducted a Sell hearing in April 2013. The District Court determined that the Government carried its burden of establishing “that the Sell standards have been met and that involuntary medication is appropriate and necessary.” United States v. Dillon, 943 F.Supp.2d 30, 32 (D.D.C.2013). This appeal followed.

Dillon argues that the District Court erred in failing to consider whether the possibility of his being civilly confined undermines the importance of the Government's prosecutorial interest under the first Sell factor. Br. of Appellant at 21–29. Dillon also argues that the District Court erred in neglecting to weigh that he is not a dangerous individual, a fact that he contends should be relevant because it diminishes the Government's interest in his prosecution. Id. at 18–21. Finally, Dillon contends that certain of the District Court's findings concerning his diagnosis were clearly erroneous. Id. at 29–43.

We reject Dillon's arguments and affirm. First, given the record in this case, we find no merit in Dillon's claim that the District Court committed reversible error in failing to consider the prospect that he might face civil confinement. Dillon did not argue to the District Court, as he does now, that he was likely to be civilly confined and that his probable confinement constituted a “special circumstance” weakening the Government's interest in prosecution. Dillon thus forfeited the argument, and any claim to plain error is thwarted by Dillon's repeated assertions that he is not dangerous, which undercut the likelihood that Dillon will be civilly confined. See18 U.S.C. § 4246(d) (authorizing confinement only upon a showing that an individual's “release would create a substantial risk of bodily injury to another person or serious damage to property of another” (emphasis added)); D.C. CODE § 21–545(b)(2) (authorizing commitment only if a person is “likely to injure himself or others if not committed” and requiring the “least restrictive alternative consistent with the best interests of the person and the public” (emphasis added)). Second, even if Dillon is correct that he is not dangerous apart from allegedly threatening the President with bodily harm, this fact by itself would not render unimportant the Government's interest in prosecuting him for a serious and dangerous crime. Finally, we hold that the District Court's factual findings have a sound evidentiary basis and are not clearly erroneous.

I. Background

Dillon, who has been repeatedly hospitalized for his mental illness, was indicted under 18 U.S.C. § 871 for threatening to inflict bodily harm upon the President. On December 10, 2011, he allegedly sent an e-mail to a United States Secret Service agent from a location three blocks away from the White House that stated that “no harm” would come to the President if he met with Dillon and agreed to “meet the demands of God.” If these demands went unmet, the e-mail continued, the President would “get the worse [sic] Christmas present ever,” “will suffer for 30 days,” and “will wish for death, but death will not come to him.”

The Secret Service arrested Dillon the next day. Following his detention, the D.C. Department of Mental Health sought his involuntary civil commitment. After an administrative hearing on January 5, 2012, the D.C. Mental Health Commission recommended that Dillon be committed on an outpatient basis. Dillon contested this recommendation before the D.C. Superior Court, which stayed the matter after criminal charges were filed.

On January 13, 2012, eight days after the D.C. Mental Health Commission had recommended outpatient civil commitment, a grand jury indicted Dillon under 18 U.S.C. § 871. Dillon was then arrested, and, shortly thereafter, the District Court ordered that he be committed to the care of the Attorney General for a competency determination pursuant to 18 U.S.C. § 4241.

Government doctors evaluated Dillon's competency on three separate occasions during pretrial proceedings and reached three distinct diagnoses. First, Drs. William J. Ryan and Elissa R. Miller evaluated Dillon at the Metropolitan Correctional Center. In a competency report issued in March 2012, Drs. Ryan and Miller diagnosed Dillon with Schizophrenia, Paranoid Type. Drs. Ryan and Miller nevertheless concluded that Dillon was competent to stand trial, albeit with the caveat that their opinion was offered “with less than the usual degree of psychological certainty” because Dillon was “unable to rationally consider an Insanity Defense to which he may be entitled.”

Second, after both parties orally moved for further psychiatric evaluation, Dr. Heather H. Ross evaluated Dillon at Butner Federal Medical Center (“Butner”). In an August 2012 report, Dr. Ross diagnosed Dillon with Delusional Disorder, Grandiose Type. Dr. Ross further concluded that Dillon's mental illness rendered him incompetent to stand trial because it prevented him from assisting properly in his defense. The District Court then held a competency hearing and, consistent with Dr. Ross's recommendation, found Dillon incompetent to stand trial.

Third, after the District Court found Dillon incompetent, it ordered that he again be committed to the custody of the Attorney General, this time for a determination of whether, with treatment, there would be “a substantial probability that ... [Dillon would] attain the capacity to permit the proceedings to go forward.” 18 U.S.C. § 4241(d)(1). Drs. Jill R. Grant and Jill C. Volin evaluated Dillon at Butner and authored a competency restoration study that they submitted to the District Court in February 2013. They diagnosed Dillon with Schizoaffective Disorder, Bipolar Type and concluded that Dillon remained incompetent to stand trial. Drs. Grant and Volin also concluded that there was a substantial probability that Dillon could be restored to competence with antipsychotic medication. They based their conclusion on a number of studies estimating the rate at which psychotic defendants are successfully restored to competency. See, e.g., Robert E. Cochrane et al., The Sell Effect: Involuntary Medication Treatment Is a “Clear and Convincing” Success,Law & Hum. Behav.. (2012), reprinted in Joint Appendix (“J.A.”) 279–88; Bryon L. Herbel & Hans Stelmach, Involuntary Medication Treatment for Competency Restoration of 22 Defendants with Delusional Disorder, 35 J. Am. Acad. Psychiatry & Law 47 (2007), reprinted in J.A. 289–301. In further support of their conclusion, Drs. Grant and Volin also pointed to Dillon's medical history that indicated that he had responded favorably to psychotropic medication during past hospitalizations.

Based on their findings, Drs. Grant and Volin requested a judicial order under Sell authorizing them to administer a course of involuntary antipsychotic medication to restore Dillon's competency. Drs. Grant and Volin stated that they sought authorization under Sell because Dillon did not meet the criteria for forcible medication articulated in Harper. See494 U.S. at 227, 110 S.Ct. 1028 (holding that “given the requirements of the prison environment, the Due Process Clause permits the State to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate's medical interest”).

Based on the February 2013 competency restoration study, the Government moved to have Dillon forcibly medicated. In April 2013, the District Court conducted a Sell hearing at which Drs. Grant and Volin testified as expert witnesses in the areas of clinical forensic psychology and forensic psychiatry, respectively. Dillon also testified that a past diagnosis of psychosis was due to...