Case o' The Week: Quicks Sticks in Time Not Saved in Nine - Onuoha and Sell Involuntary Medication

  Here’s an efficient idea: why not involuntary medicate our clients with six times the recommended dose of psychotropic drugs? Easier for BOP staff, and a quicker hustle to restored competency. 

  (The Ninth, thankfully, doesn't buy it either).

United States v. Onuoha, 2015 WL 1579952(9th Cir. April 20, 2016), decision available here.

 

Honorable Judges Gould and Berzon

Players:  Decision by Judge Gould, joined by Judge Berzon and District Judge Steeh. Important win for CD Cal AFPD Briana Fuller Mircheff.

Facts: Onuoha, a mentally ill man and former TSA screener, is charged under 18 USC §§ 844(e) and 1038(a)(1) for allegedly making threatening calls to LAX and telling them to clear the airport. Id. at *1. The defense noticed a diminished capacity defense before trial, and the district court then granted the government’s motion for a competency evaluation. Id. at *2. 

  After the BOP found Onuoha incompetent the government sought forced medication to restore competency under Sell v. United States, 539 U.S. 166 (2003). Id. at *2. 

  Over defense objection, the district court ordered involuntary medication. Id. at *2. Onuoha filed an interlocutory appeal. Id.

Issue(s): “On this appeal Onuoha challenges only the district court’s conclusions on the first and fourth [Sell] factors, and so we limit our discussion, first, to whether important government interests are at stake in prosecuting Onuoha and, second, to whether administration of the prescribed drugs is medically appropriate, i.e., in the patient's best medical interests in light of his medical condition.” Id. at *3.

Held: “We conclude that the first factor is met but that the fourth factor is not: there is an important  governmental interest in prosecuting Onuoha, but the proposed treatment is not in his best medical interests.” Id.

Of Note: Onuoha’s Guideline range is only at 27-33 months. Id. at *4. When the Ninth upheld the “important governmental interest” in this case (the first Sell factor), Onuoha becomes the lowest guideline range to satisfy the “important governmental interest” test. Id. The Ninth adds many caveats, however, that make this a one-off case for this factor.  Onuoha was a former TSA screener who allegedly made threatening calls to LAX on the eve of 9-11, who left notes leading law enforcement to believe he was an active shooter, and generally caused much havoc. Id. at *5. Moreover, the Ninth rejects the district court’s reliance on “future dangerousness” as a basis for the “governmental interest” inquiry. Id. 

  Don’t let an AUSA get away with a casual cite to this low range for this factor – this is a nuanced and fact-bound analysis of “governmental interest,” and is readily distinguishable in most low-guideline range cases.

How to Use: The BOP’s Dr. Lucking recommended forced injections of Haldol, at doses higher than the BOP’s own own recommendations. Id. at *7. Dr. Lucking recommended this high dose – up to six times higher than the BOP’s guidelines– “so that treatment moves on in a more rapid manner.” Id. at *8. The Ninth is appropriately unimpressed: “restoring competency quickly is not a controlling concern under the fourth Sell factor – only the best medical interests are considered.” Id. 

  Not that Judge Gould refuses to demure to the BOP’s doc’s “expertise:” “a physician's word is not absolute, not even the word of a reputable and experienced doctor. Although Dr. Lucking has administered involuntary medication hundreds of times, his recommendations are still subject to Sell’s rigorous analysis.” Id. at *9.

  Onuoha illustrates why the defense really has to tear apart any BOP forced-med recommendation: it is a defendant-centered (actually, patient-centered, id. at *9) opinion that rightly puts our client’s health front and center. 

  A new leading opinion on Sell litigation, and a must-read for any forced-med case.

                                               

For Further Reading: Nna Alpha Onuoha is a former U.S. Army vet, and a former TSA worker, who allegedly made the threats to LAX the day after he resigned. For a news account of this sad and troubled man, see Former SoCal TSA Employee Arrested After Threats to LAX, available here.

Images of the Honorable Judges Gould and Berzon from http://www.advocate.com/sites/advocate.com/files/2014/09/03/3judgesx400.jpg

Steven Kalar, Federal Public Defender, ND Cal FPD. Website at www.ndcalfpd.org

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Case o' The Week: Easy Sell for Involuntary Meds - Gillenwater, Sell, and Restoration of Competency

  What stands between a government shrink with a needle, and our incompetent clients?

  Less, now.                                                                                                        

United States v. Gillenwater, 2014 WL 1394960 (9th Cir. Apr. 11, 2014), decision available here.

Players: Decision by Justice O’Connor, joined by Judges Tallman and Bea.  

Facts: Gillenwater felt he had been exposed to asbestos while renovating the Las Vegas Flamingo Hotel. Id. at 1. Convinced the government was helping to cover up this exposure, he wrote a series of threatening emails to government employees. Id. When agents showed up at his house to tell him to knock it off, he met them with gun in hand – but put it away, talked to the agents, and acknowledged that he shouldn’t sent these emails. Id. Two days later, he allegedly started sending them again. Id. When he was arrested, the feds found guns and ammo, and while in custody, Gillenwater allegedly sent a threatening postcard to an OSHA employee. Id. at 2. The district court ordered a competency evaluation, Gillenwater was found incompetent, and the government psychiatrist recommended medication (that Gillenwater refused). Id. The government moved for involuntary medication under Sell, and after a number of hearings with conflicting psych testimony, the district court agreed. Id. at *3. After appeals and remands, the case ended up back before the Ninth on the involuntary medication issue. Id. 

Issue(s): “Gillenwater contends that the government did not meet its burden on all four Sell factors and that the district court’s order authorizing his involuntary medication must therefore be reversed.” Id. at *4.

Held: “While recognizing the important interests at stake for both the government and Gillenwater, we conclude that the district court did not err in authorizing Gillenwater’s involuntary medication.” Id. at *1.

Of Note: Sell v. United States, 539 U.S. 166 (2003) is the seminal Justice Breyer decision on the rights of defendants facing involuntary medication to restore competency.  Justice O’Connor’s decision in Gillenwater arguably waters down the Sell factors. Of most concern, the decision distinguishes authority on the first Sell factor: “the important government interests factor.” 

   Here, Gillenwater was only looking at a guideline range of 33-41 months, had already served 32 months, and his mental disorder clearly drove the conduct. Gillenwater, 2014 WL 1394960 at 4-5. In previous cases, each of those facts would have cut against involuntary medication. Here, Justice O’Connor finds an “important government interest” nonetheless. 

  It’s a discouraging opinion for those representing vulnerable folks facing restraining straps and a needle full of haloperidol in the hands of a government shrink.

How to Use: Comparatively low sentencing range, most of the sentence already served, mental illness as a mitigating factors – these are facts that traditionally undercut involuntary medication. How does one distinguish Gillenwater when fighting involuntary medication? Well, there were some admittedly bad facts here: guns throughout the investigation, threats to choke, rape, and kill government employees, and a jailhouse threat postcard (why is there always the jailhouse letter, in a threats case?) Id. at 2-5. On less – "threatening" – facts, there may be some life left in the first Sell “important interest” factor.

                                               

For Further Reading: The Sentencing Commission voted to reduce the drug guidelines by 2 offense levels! See USSG Press Release here. Not effective until Nov. 1, 2014, but DOJ instructed USAOs not to object to variances for current cases, in anticipation of that amendment! See DOJ Press Release here. 

 What’s the next step towards just sentencing for our drug clients? Retroactivity. The comment period for the Commission is fast approaching for this critical issue – an important time to speak out for our clients. See Sentencing Commission Comments description here.   

Image of injection from http://www.mhra.gov.uk/ConferencesLearningCentre/LearningCentre/Medicineslearningmodules/Reducingmedicinerisk/Antipsychoticslearningmodule/CON155606?useSecondary=&showpage=35

Steven Kalar, Federal Public Defender N.D Cal. Website at www.ndcalfpd.org

Case o' The Week: Ninth Doesn't Buy Government's Hard Sell -- Involuntary medication to restore comptency, Ruiz-Gaxiola

This week Judge Reinhardt writes, and CJ Kozinski joins, a great decision on Sell involuntary medication to restore competency. United States v. Ruiz-Gaxiola, Slip Op. 16275 (9th Cir. Sept. 24, 2010), decision available here.

Players: Important victory by D. Az. AFPDs Deirdre Mokos and Saul Huerta, Jr.. Decision by Judge Reinhardt, joined by Chief Judge Kozinski (both pictured above right) and Senior District Judge Robert J. Timlin.

Facts: Ruiz-Gaxiola was charged with illegal reentry, and was diagnosed with delusional disorder, grandiose type, and found incompetent to stand trial. Id. at 16280. The BOP failed in its Harper hearing to show that he was a danger to himself or the community, so the government sought involuntary medication under Sell to restore the defendant to competency. Id. at 16280-81 (quoting Sell v. United States, 539 166, 180-81 (2003).

Expert shrinks testified for the government and the defense; the magistrate and the district court found the government had met its burden by clear and convincing evidence and ordered involuntary medication. Id. at 16281. Ruiz filed an interlocutory appeal and obtained an emergency stay. Id.

Issue(s): “The government is allowed to medicate a defendant involuntarily for the purpose of rendering him competent to stand trial only in rare circumstances. The question is whether this case presents those rare circumstances.” Id. at 16280.

Held: “Our answer is that it does not.” Id. “We conclude that the district court erred in finding that the Sell factors were met without affording the question the thorough consideration and justification and especially careful scrutiny required . . .

Further, we hold that the district court clearly erred in finding that the government proved by clear and convincing evidence that the proposed regime of involuntary medication is substantially likely to restore Ruiz to competency, as required by the second Sell factor.

We also conclude that the district court clearly erred in finding that the government proved by clear and convincing evidence that the proposed treatment is medically appropriate, as required under the fourth Sell factor.” Id. at 16281 (internal quotations and citations omitted).

Of Note: Judge Reinhardt creates a new rule in this decision, and the Ninth joins five other circuits to require clear and convincing evidence as the government’s burden of proof to satisfy the Sell factors. Id. at 16289.

A second, new (albeit implicit) rule is that a lower court must make and articulate specific factual findings to support its conclusion that a Sell factor has been proven: “There is a compelling need in cases such as this for the district court to make factual findings so that the defendant may be assured that the trial court has conducted the stringent review mandated in light of the substantial infringement on his liberty interests, and so that upon review the appellate court may determine whether the findings are supported by clear and convincing evidence.” Id. at 16295.

Ruiz-Gaxiola is a lengthy, detailed, and sensitive treatment of the often barbaric practice of involuntary medication to restore competency to face trial – the opinion should be featured prominently in any defense opposition to a Sell motion.

How to Use: Two players in this Sell litigation did not fare well in Judge Reinhardt’s detailed opinion: FMC Butner (a BOP medical facility tasked with, among other things, restoring defendants to competency), and Butner psychiatrist Dr. Mark Cheltenham. Id. at 16284. Ruiz-Gaxiola is a published decision that is now ready-made impeachment for both actors. Butner shrinks are often repeat witnesses in national federal cases: if Dr. Cheltenham appears as a witness in your Sell matter, it’s worth chasing down the transcripts from the Ruiz-Gaxiola Sell hearing.

For Further Reading: C.D. Cal Senior District Judge Robert Timlin visited and joined this panel with Chief Judge Kozinski and Judge Reinhardt. Id. at 16275. What is that like, to be a visiting DJ in conference with a pair of legendary Ninth friends/foes who have been embracing and battling for decades? See article here. Maybe it's like visiting grandparents who are very fond of each other, yet bicker constantly? See blog here, discussing colorful dissent by Chief Judge Kozinski in United States v. Cruz, 554 F.3d 840 (9th Cir. 2009), majority decision written by Judge Reinhardt.

(Note, however, that Judge Timlin has been a federal judge since 1971, and a district judge since ‘94: he undoubtably held his own. See post here.


Image of the Honorable Chief Judge Alex Kozinski and Judge Stephen Reinhardt from http://alex.kozinski.com/ak-sr-photo.jpg


Steven Kalar, Senior Litigator N.D. Cal FPD. Website at www.ndcalfpd.org