US v. Hernandez-Vasquez

Citation513 F.3d 908
Decision Date31 October 2007
Docket NumberNo. 06-50198.,06-50198.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jose HERNANDEZ-VASQUEZ, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

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Robert A. Garcia, San Diego, CA, counsel for appellant.

Carol C. Lam, U.S. Attorney, Bruce M. Castetter and Neville S. Hedley (argued), Assistant U.S. Attorneys, San Diego, CA, for appellee.

Before: RAYMOND C. FISHER and RICHARD R. CLIFTON, Circuit Judges, and JEREMY FOGEL,* District Judge.

ORDER AMENDING OPINION AND DENYING PETITION FOR PANEL REHEARING AND AMENDED OPINION

ORDER

The opinion filed on October 31, 2007 and published at slip opinion 14310-14325, 506 F.3d 811 (9th Cir.2007) is AMENDED as follows:

Replace the third full paragraph on page 819 with the following:

Accordingly, we hold that a Sell order must provide at least some limitations on the medications that may be administered and the maximum dosages and duration of treatment. At a minimum, to pass muster under Sell, the district court's order must identify: (1) the specific medication or range of medications that the treating physicians are permitted to use in their treatment of the defendant, (2) the maximum dosages that may be administered, and (3) the duration of time that involuntary treatment of the defendant may continue before the treating physicians are required to report back to the court on the defendant's mental condition and progress. We stress that while the court may not simply delegate unrestricted authority to physicians, the restrictions it does impose should be broad enough to give physicians a reasonable degree of flexibility in responding to changes in the defendant's condition. Moreover, the Government or the defendant may move to alter the court's order as the circumstances change and more becomes known about the defendant's response to the medication.

With this amendment the panel has voted unanimously to deny the government's petition for panel rehearing.

IT IS SO ORDERED.

OPINION

FOGEL, District Judge:

Defendant-Appellant Jose Hernandez-Vasquez appeals the order of the district court permitting Appellee, the United States ("the Government"), to medicate him involuntarily to render him competent for trial. We vacate and remand.

BACKGROUND

Defendant was indicted on January 28, 2004 as a previously-deported alien found in the United States in violation of 8 U.S.C. § 1326.1 Defendant is subject to a maximum prison term of twenty years, and the Government calculates his likely sentencing range under the advisory sentencing guidelines as 92-115 months. On May 6, 2004, Defendant moved for a competency examination. On September 17, 2004, the district court found Defendant incompetent to stand trial and committed him to the custody of the Attorney General pursuant to 18 U.S.C. § 4241. Defendant subsequently was transferred to the United States Medical Center for Federal Prisoners in Springfield, Missouri.

On March 3, 2006, the Government requested an evidentiary hearing on its motion to medicate Defendant involuntarily to render him competent to stand trial. Alternatively, the Government requested an order directing the Medical Center to evaluate Defendant for dangerousness. At a hearing held on March 24, 2006, the district court granted the motion to medicate Defendant involuntarily. The district court issued a written order to that effect on March 29, 2006, and Defendant timely appealed. On April 5, 2006, a motions panel of this Court stayed the involuntary medication order pending the outcome of this appeal. Consequently, Defendant has not yet been medicated pursuant to the terms of the district court's order.

DISCUSSION

The parties agree that Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003), governs the instant dispute. In that case, the United States moved to medicate a criminal defendant involuntarily in order to restore his competency for trial. On appeal from the trial court's order granting the Government's motion, which the Eighth Circuit had affirmed, the Supreme Court considered "whether the Constitution permits the Government to administer antipsychotic drugs involuntarily to a mentally ill criminal defendant—in order to render that defendant competent to stand trial for serious, but nonviolent, crimes." Sell, 539 U.S. at 169, 123 S.Ct. 2174. The Court concluded that the Constitution allows the Government to do so "in limited circumstances." Id.

The Supreme Court began its analysis in Sell by reviewing its earlier decisions in Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990), and Riggins v. Nevada, 504 U.S. 127, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992). In Harper, the Supreme Court recognized that an individual has a significant liberty interest under the Due Process Clause of the Fourteenth Amendment in avoiding the unwanted administration of antipsychotic drugs. Harper, 494 U.S. at 221-22, 110 S.Ct. 1028. The Court concluded, however, that a state's interest in administering medication to a dangerous inmate is legitimate and important, id. at 225-26, 110 S.Ct. 1028, and held that the Due Process Clause allows a 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." Id. at 227, 110 S.Ct. 1028. In Riggins, the Supreme Court overturned an order permitting involuntary medication to render a defendant competent for trial on the basis that the district court "did not acknowledge the defendant's liberty interest in freedom from unwanted antipsychotic drugs." 504 U.S. at 137, 112 S.Ct. 1810. It concluded that "this error may well have impaired . . . constitutionally protected trial rights," by affecting the defendant's demeanor, testimony, ability to follow proceedings, and communications with counsel. Id. Sell synthesized these two decisions as follows:

Harper and Riggins indicate that the Constitution permits the Government involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests.
This standard will permit involuntary administration of drugs solely for trial competence purposes in certain instances. But those instances may be rare. That is because the standard says or fairly implies that the trial court must make four findings.

Sell, 539 U.S. at 179-80, 123 S.Ct. 2174.

First, the court must find that "important governmental interests are at stake." Id. at 180, 123 S.Ct. 2174 (emphasis in original).

The Government's interest in bringing to trial an individual accused of a serious crime is important. That is so whether the offense is a serious crime against the person or a serious crime against property. In both instances the Government seeks to protect through application of the criminal law the basic need for security.
Courts, however, must consider the facts of the individual case in evaluating the Government's interest in prosecution. Special circumstances may lessen the importance of that interest. . . . The potential for future civil 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.

Id. (internal citations omitted).

"Second, the court must conclude that involuntary medication will significantly further those concomitant state interests." Id. at 181, 123 S.Ct. 2174 (emphasis in original). Specifically, the court must find that "the administration of the drugs is substantially likely to render the defendant competent to stand trial" and "substantially unlikely to have side effects that will interfere significantly with the defendant's ability to assist counsel in conducting a trial defense." Id.

"Third, the court must conclude that involuntary medication is necessary to further those interests." Id. (emphasis in original). It must be shown that any alternative, less intrusive methods are unlikely to achieve substantially the same results; and the court must consider less intrusive means for administering the drugs, such as a court order "backed by the contempt power.". Id.

Finally, the court must find that "administration of the drugs is medically appropriate, i.e., in the patient's best medical interest in light of his medical condition." Id. (emphasis in original).

After identifying these four required findings, the Supreme Court stressed that a Sell inquiry is independent of the procedure that allows involuntary medication of dangerous inmates under Harper. In fact, the Court stated explicitly that consideration of an involuntary medication order based on dangerousness is preferable to consideration of an order intended to render a defendant competent for trial:

A court need not consider whether to allow forced medication to render a defendant competent for trial, if forced medication is warranted for a different purpose, such as the purposes set out in Harper related to the individual's dangerousness, or purposes related to the individual's own interests where refusal to take drugs puts his health gravely at risk. There are often strong reasons for a court to determine whether forced administration of
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