United States v. Gutierrez
| Decision Date | 11 October 2011 |
| Docket Number | No. 11-50146,11-50146 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JESSE JOE GUTIERREZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Before DAVIS, CLEMENT, and ELROD, Circuit Judges.
Defendant Jesse Joe Gutierrez appeals the district court's order that he be involuntary medicated to render him competent to stand trial. He is charged with threatening to kill and inflict bodily harm on President Obama, in violation of 18 U.S.C. § 871; threatening to kill and inflict bodily harm on former Presidents George W. Bush and George H. W. Bush, in violation of 18 U.S.C. § 879; and threatening to assault and murder a Special Agent of the UnitedStates Secret Service with intent to retaliate against the agent on account of the performance of the agent's official duties, in violation of 18 U.S.C. § 115. We VACATE and REMAND for proceedings consistent with this opinion.
Over the course of a few weeks in late 2008, Gutierrez made over 100 phone calls to KVUE, a television station in Austin, Texas, threatening to harm or kill former President George W. Bush, First Lady Laura Bush, Texas Governor Rick Perry, and his wife Anita Perry. He later left a message on the Secret Service voicemail system threatening a Secret Service agent, President Obama, former Presidents George H.W. Bush and George W. Bush, Governor Perry, all law enforcement, and all lawyers. He was arrested the next day and subsequently indicted.
On motion of the government, the district court held a hearing and found Gutierrez incompetent to stand trial. He was admitted to the Mental Health Department at the Butner Federal Correctional Complex in Butner, North Carolina. The staff diagnosed him with schizophrenia, undifferentiated type, observing that Gutierrez displayed grandiose and paranoid delusions, had disorganized speech, and was hostile in interactions with the doctors. They reported that Gutierrez believed he was being conspired against because he was "King Blessed, King of Kings," waiting on word from God to engage in aggressive behavior towards others.
Because Gutierrez refused medication for his schizophrenia, his treatment team, psychiatrist Dr. Kwanna Williamson and psychologist Carlton Pyant, set a hearing to have a neutral psychiatrist determine whether Gutierrez should be involuntarily medicated under Washington v. Harper, which permits forcedmedication after a Bureau of Prisons (BOP) hearing if a person is a danger to himself or others. 494 U.S. 210, 227, 231 (1990). The BOP regulations in place at the time the government sought to medicate Gutierrez (the 1992 regulations) required that the hearing be conducted by a hearing officer, who must be "a psychiatrist who is not currently involved in the diagnosis or treatment of the inmate"; in other words, a neutral psychiatrist. 28 C.F.R. § 549.43(a)(3).1 Here, the Harper hearing was conducted by Dr. Ralph Newman. Dr. Newman submitted a report concluding that forcible medication for dangerousness was not warranted. He was not asked to, and did not, consider whether forcible medication was warranted under Sell v. United States, 539 U.S. 166 (2003), to render Gutierrez competent to stand trial for serious, but nonviolent, crimes.2The government then moved the district court for a medical examination and a determination under Sell. The defendant opposed the motion, arguing that no drug therapy was required to render him competent for trial and that the government had failed to exhaust the required administrative procedure under the applicable 1992 regulation, 28 C.F.R. § 549.43. Gutierrez's treatment team, Williamson and Pyant, submitted a report to the district court that concluded that treatment with psychotropic medication was substantially likely to render Gutierrez competent to stand trial with minimal detrimental side effects, basedon the fact that Gutierrez had successfully been rendered competent by the use of drug therapy in the past. The doctors opined that alternative, less-intrusive means would be unlikely to restore Gutierrez to competency and that forcible medication was medically appropriate.
At the Sell hearing, the district court heard testimony from Dr. Williamson. She testified that Gutierrez had responded favorably to treatment in the past without notable side effects, and it was expected that he would respond beneficially to the same treatment, again without side effects. She also testified that there was no probability that Gutierrez would be restored to competency without medication. Dr. Newman did not testify; nor did any other psychiatrist not involved in Gutierrez's treatment. Gutierrez offered no evidence and stated that he would offer "no contrary testimony with regard to" the Sell factors at the hearing in the district court.
The district court concluded that involuntary medication of Gutierrez was justified, rejecting the argument that the court's consideration of this motion was premature because the government failed to exhaust administrative procedures under the 1992 regulation. Accordingly, the court entered an order compelling Gutierrez's involuntary medication. This appeal followed.
In reviewing a district court's order to medicate a defendant forcibly, this court reviews findings of fact for clear error and conclusions of law de novo. United States v. White, 431 F.3d 431, 433 (5th Cir. 2005). As such, we review de novo whether the government has exhausted administrative processes.
The government concedes that it did not hold an administrative hearing on competency at the BOP. It argues, however, that it was not required to do sobecause Sell implicitly overruled the 1992 regulations. The government further argues that it should not have had to comply with the 1992 regulations because compliance would not have served the purposes of exhaustion and because the BOP had proposed changes that would do away with the administrative process on competency.3 In the alternative, the government argues that, even if the 1992 regulations were still viable at the time it sought to medicate Gutierrez, its failure to comply should be excused because a BOP hearing would be futile given the specific facts of this case.
Criminal defendants have a significant liberty interest in avoiding the administration of unwanted medication. Id. As such, prison officials may only administer unwanted medication for limited purposes, such as to render the defendant non-dangerous or competent to stand trial. Sell, 539 U.S. at 179-80 (competency); Washington v. Harper, 494 U.S. 210, 225 (1990) (dangerousness). Given that high standard, the instances when medication is permitted "may be rare." Sell, 539 U.S. at 180.
In addition to those substantive due process requirements, an inmate is also entitled to certain procedural due process protections. The 1992 regulations in place at the time the government sought to medicate Gutierrez outlined the "administrative due process procedures" that "must be provided to the inmate," separate and apart from the inmate's substantive due process right to be free from unwanted medication. White, 431 F.3d at 433; see United States v. Morgan, 193 F.3d 252, 263 (4th Cir. 1999).
The processes laid out in the 1992 regulations were straightforward. Before forcibly medicating an inmate "in order to attempt to make the inmate competent for trial or . . . because the inmate is dangerous," the BOP was required to give notice of "the reasons for the medication proposal." 28 C.F.R. § 549.43(a)(1), (5). It then had to hold an administrative hearing at which the inmate was entitled to appear, present evidence, and have a staff representative. Id. at § 549.43(a)(2). The hearing officer must have been "a psychiatrist who is not currently involved in the diagnosis or treatment of the inmate," id. at § 549.43(a)(3), and must have made a determination that medication was necessary for the reason for which it is being sought, id. at § 549.43(a)(5). In addition, the inmate's treating psychiatrist must have been present at the hearing and provided background information that is pertinent to the need for medication. Id. at § 549.43(a)(4). At the conclusion of the hearing, the hearing officer was required to prepare a written report outlining his decision, which would then be given to the inmate, who had the right to appeal the decision to a facility administrator. Id. at § 549.43(a)(5), (6). As we recognized in White, "the unequivocal, mandatory language of the regulation . . . is specifically tailored to protect the inmate's due process rights." 431 F.3d at 434.
The government concedes that it did not conduct an administrative hearing on competency. It is undisputed that Dr. Newman, the hearing officer at the administrative hearing and the only psychiatrist to participate in the hearing who was not involved in Gutierrez's treatment, considered only dangerousness and recommended that Gutierrez not be medicated. Rather than simultaneously seeking a determination on medication for the purpose of competency, the government bypassed the administrative competency processand went directly to the district court. As a result of the government's disregard of the 1992 regulations, Gutierrez lost the protections provided therein: notice that the BOP was considering medication for competency, the opportunity to present witnesses on the issue of competency at the hearing, and, importantly, the right to appeal any decision made by the neutral psychiatrist and to have another independent decision-maker review the substance of the psychiatrist's findings. See generally 28 C.F.R. § 549.43(a)(1)-(8). Gutierrez never had the opportunity to present his evidence to a hearing officer, not involved in his treatment, tasked with determining whether medication for competency was medically proper at the administrative level. Simply put, the government was...
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