United States of America v.  Herbert G. Evans, Jr.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-4230 
HERBERT G. EVANS, JR.,
Defendant-Appellant. 
Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
James P. Jones, District Judge.
(CR-02-136-jpj; MISC-04-14-1-jpj)
Argued: December 3, 2004
Decided: April 12, 2005
Before WILLIAMS and MICHAEL, Circuit Judges, and
Henry F. FLOYD, United States District Judge for the
District of South Carolina, sitting by designation.
Vacated and remanded with instructions by published opinion. Judge
Williams wrote the opinion, in which Judge Michael and Judge Floyd
joined.
COUNSEL
ARGUED: Monroe Jamison, Jr., Abingdon, Virginia, for Appellant.
Steven Randall Ramseyer, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for
Appellee. ON BRIEF: John L. Brownlee, United States Attorney,
Roanoke, Virginia, for Appellee.

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OPINION
WILLIAMS, Circuit Judge:
Herbert G. Evans, Jr. was indicted on federal charges of assaulting
a United States agricultural employee and threatening to murder a
United States judge. The district court found that Evans was incompe-
tent to stand trial because of his paranoid schizophrenia. Evans
refused treatment, and the Government moved to medicate him
against his will to restore his competence so it could try him on the
charges.
In Sell v. United States, 123 S.Ct. 2174 (2003), the Supreme Court
held that the government may involuntarily medicate a defendant for
the purpose of rendering him competent to stand trial if (1) the gov-
ernment has an "important" interest in trying him, (2) involuntary
medication will "significantly further" that interest, (3) involuntary
medication is "necessary" to further the government’s interest, and (4)
administration of the drugs is "medically appropriate." Id. at 2184-85.
Applying this four-part test, the district court granted the Govern-
ment’s motion, and Evans now appeals.
For the reasons explained below, we hold that the district court cor-
rectly found that the Government’s interest in prosecuting Evans is an
"important" one. Evans is facing a serious charge with a statutory
maximum punishment of ten years for threatening to murder a United
States judge, and there are no special circumstances that undermine
the Government’s interest. We also hold that the district court errone-
ously concluded that the Government demonstrated that involuntary
medication would "significantly further" its prosecutorial interest and
was "medically appropriate." The Government failed to explain what
specific medications it planned to give Evans and failed to examine
these two factors with sufficient particularity. We therefore vacate the
district court’s order and remand for further proceedings with instruc-
tions to allow the parties to supplement the record in a manner consis-
tent with this opinion.
I. Factual Background
On November 4, 2002, Evans, then a 74-year-old military veteran,
entered the Rural Development Agency (RDA) office in Wytheville,
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Virginia to complain about a late-payment notice he received on a
housing loan. The RDA, which is an arm of the United States Depart-
ment of Agriculture (USDA), administered the loan. According to the
RDA agent with whom Evans spoke, Evans became "extremely angry
and loud," (J.A. at 12), and claimed that the late notices were evi-
dence that the government was "out to get him." (J.A. at 11.) He told
the agent that the "United States was heading toward communism"
and that he had three crosses in his yard—"one for Ruby Ridge, one
for Waco, and one for Oklahoma City." (J.A. at 11.) He said that he
"had lived his life, and would not mind taking a few with [him]."
(J.A. at 11.) Evans then stated that "he was experienced . . . with
chemical and biological warfare and . . . the [RDA should] get the sit-
uation straightened out with his loan [because] . . . they didn’t [know
what terrorism was] until they saw what he could do." (J.A. at 11-12.)
On November 14, 2002, Evans was arrested on a misdemeanor
charge of "assault[ing], resist[ing], or [impeding] [an employee of the
USDA]" under 18 U.S.C.A. § 111(a)(1) (West Supp. 2004).1 On
November 19, 2002, a magistrate judge held Evans’s detention hear-
ing. At the hearing, the magistrate judge granted the Government’s
motion for a psychiatric examination to determine Evans’s compe-
tency to stand trial. Evans was transferred to the Federal Correctional
Institution in Butner, N.C. (Butner), where medical staff evaluated
him and prepared a competency report. Based on the report, the mag-
istrate judge determined, on March 24, 2003, that Evans was incom-
petent to stand trial. The magistrate judge recommitted Evans to
Butner for the purpose of evaluating whether Evans could attain com-
petency in the foreseeable future.
At Butner, Evans refused antipsychotic medication, and the Butner
staff set in motion administrative proceedings to determine the propri-
ety of medicating him against his will. Before these proceedings con-
cluded, the United States Supreme Court decided Sell v. United
States, 123 S.Ct. 2174 (2003), which clarified the legal standard for
administering involuntary medication to render a defendant compe-
tent to stand trial. On June 24, 2003, in response to Sell, the Govern-
1The statutory maximum penalty for a misdemeanor violation of
§ 111(a)(1) is one year imprisonment. 18 U.S.C.A. § 111(a) (West Supp.
2004).
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ment moved to allow the Butner staff to medicate Evans against his
will.
On October 31, 2003, the magistrate judge held an evidentiary
hearing, during which she accepted into evidence several reports pre-
pared at Butner—specifically, Evans’s competency report and the
Butner staff’s evaluation of whether Evans should be involuntarily
medicated (IM report)—and testimony and a report from Evans’s wit-
ness, Dr. Margaret Robbins, a forensic psychiatrist, also evaluating
whether Evans should be involuntarily medicated. The Butner reports,
which detailed Evans’s medical history, concluded that Evans had
been suffering from paranoid schizophrenia since at least 1966 and
had last been medicated for his condition in 1984. As relevant here,
the IM report stated conclusorily that second-generation, or atypical
antipsychotic medications, which were created in the 1990s, would be
"substantially likely" to allow Evans to attain competency to stand
trial. (J.A. at 315.) In addition, it stated summarily that such medica-
tion would be "substantially unlikely to have side effects that will
interfere significantly with [Evans’s] ability to assist counsel in con-
ducting a defense." (J.A. at 315.) Finally, it concluded that involun-
tary medication would be "medically appropriate" for Evans. (J.A. at
316.)
Despite extolling the virtues of the atypical antipsychotic medica-
tions, the IM report never actually stated that the Butner staff pro-
posed to give Evans such treatment; in fact, the report did not specify
any type of medication the staff planned to give Evans. Moreover, the
IM report contained little analysis explaining the rationale for its con-
clusions. In concluding that antipsychotic medication was "substan-
tially likely" to restore Evans’s competency, the report generally
stated that such medication was "[t]he primary [way to treat] Schizo-
phrenia." (J.A. at 315.) Likewise, in concluding that such treatment
was "substantially unlikely" to produce significant side effects, the
report stated that atypical antipsychotic medications "have a more
favorable side effect profile for many patients who were previously
treated with conventional antipsychotic medication," (J.A. at 315),
and that the side effects produced by the atypical antipsychotic medi-
cation "are routinely managed by thousands of American psychiatrists
in daily clinical practice, who assess the risks and benefits of any par-
ticular medication in treating their patients." (J.A. at 315.) Finally, it
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concluded that involuntary medication was "medically appropriate"
because "the standard treatment of anyone with [Evans’s] condition
of Schizophrenia would involve the prescription of antipsychotic
medication." (J.A. at 316.)
Dr. Robbins’s opinion, which was based on her review of Evans’s
medical records and an interview with him that lasted one and a half
hours, was that Evans’s delusional beliefs were "fixed." (J.A. at 101.)
She concluded that because Evans did not want to be medicated, the
medicine might calm him down, but his core delusions were "imper-
vious to medication." (J.A. at 101.) She also opined that "in order to
really assess whether . . . there would be side effects, [it would] be
necessary to know specific medications that were proposed for
administration." (J.A. at 107.) Finally, she testified that if she were
treating Evans, she would not medicate him, although she admitted
that she was "not sure that [she had] seen anything in the record that
would suggest that [treatment without medication] would be success-
ful." (J.A. at 123.)
On December 1, 2003, the magistrate judge denied the Govern-
ment’s motion to medicate Evans against his will. The magistrate
judge found that the Government’s interest in bringing Evans to trial
was not important enough to outweigh Evans’s liberty interest in
avoiding involuntary medication because the maximum penalty for
violating § 111(a) was less than the time Evans already had been con-
fined. The magistrate judge scheduled a hearing for January 23, 2004
to determine whether Evans was dangerous and should therefore con-
tinue to be confined. Evans was then sent to New River Valley
Regional Jail in Dublin, Virginia, to await the hearing.
The hearing did not occur. Instead, on January 23, 2004, the Gov-
ernment filed a criminal complaint against Evans charging him with
violating 18 U.S.C.A. § 115(a)(1)(B) (West 2000) for "threaten[ing]
to murder a United States judge, with intent to retaliate against such
judge, on account of the performance of official duties."2 (J.A. at
167.) The affidavit submitted with the complaint alleged that, while
incarcerated at New River Valley, Evans stated to fellow inmates that
2The statutory maximum penalty for violation of § 115(a)(1)(B) is 10
years. 18 U.S.C.A. § 115(b)(1)(4) (West Supp. 2004).
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the magistrate judge was responsible for his continued incarceration,
that "he [had] a good idea where [the magistrate judge] resides" and
that "when he is released from prison he will find her, hunt her down,
and get rid of her and her family." (J.A. at 169.) The magistrate judge
recused herself from the case, and it was reassigned.
On March 5, 2004, the district court held a hearing wherein the
Government renewed its motion to involuntarily medicate Evans. On
March 18, 2003, after reviewing the evidence submitted at the March
5, 2004 and October 31, 2003 hearings, and after receiving arguments
of counsel, the district court issued an order authorizing the Govern-
ment to medicate Evans against his will in order to render him compe-
tent to stand trial. The order observed that the facts had changed since
the magistrate judge’s order, in that the charge under § 115(a)(1)(B),
a felony that carried with it a maximum imprisonment term of 10
years, made the Government’s interest in bringing Evans to trial an
important one. In addition, the district court credited the Butner
reports over Dr. Robbins’s because "the Butner staff . . . had a much
longer opportunity to observe and evaluate Evans, and their conclu-
sions better correspond[ed] with Evans’[s] medical and social his-
tory," (J.A. at 240), and concluded that the Government’s
prosecutorial interest outweighed Evans’s interest in not being invol-
untarily medicated.
The district court granted Evans’s motion to stay execution of its
order granting the motion for involuntary medication, and Evans
timely appealed. We have jurisdiction over the appeal, see Sell, 123
S.Ct. at 2181-82, and, for the reasons that follow, we now vacate and
remand with instructions.
II. Sell v. United States
In Sell, the Supreme Court held that the government’s interest in
bringing a mentally incompetent defendant to trial can outweigh the
defendant’s liberty interest in being free from unwanted medication,
such that the Due Process Clause will allow the government to medi-
cate the defendant against his will. 123 S.Ct. at 2187. To comply with
the Constitution, however, the government must first make a four-part
showing. See Riggins v. Nevada, 504 U.S. 127, 135 (1992) (observing
that the state bears the burden of proving that involuntary medication
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satisfies the Constitution). First, it must show that "important govern-
mental interests are at stake." Sell, 123 S.Ct. at 2184 (emphasis omit-
ted). An "important" governmental interest exists when the defendant
is accused of a "serious" crime and "[s]pecial circumstances" do not
undermine the government’s interest in trying him for that crime. Id.
Second, it must show that involuntary medication will "significantly
further" the state’s interest. Id. (emphasis omitted). In other words, it
must show that the involuntary administration of the medication is
both (a) "substantially likely to render the defendant competent to
stand trial" and (b) "substantially unlikely to have side effects that
will interfere significantly with the defendant’s ability to assist coun-
sel in conducting a trial defense, thereby rendering the trial unfair."
Id. at 2184-85. Third, it must show that involuntary medication is
"necessary" to further its interests by showing that "any alternative,
less intrusive treatments are unlikely to achieve substantially the same
result." Id. at 2185 (emphasis omitted). Fourth, it must show that the
administration of the drugs is "medically appropriate," or that it is in
the defendant’s "best medical interest in light of his medical condi-
tion." Id. (emphasis omitted).3
3The Supreme Court has outlined different tests for when the govern-
ment may involuntarily medicate an individual, depending on whether
the medication is for purposes of prison control or prisoner health on the
one hand, see Washington v. Harper, 494 U.S. 494 U.S. 210, 227 (1990)
(holding that involuntary medication of an inmate with a serious mental
illness is constitutionally appropriate where the inmate is dangerous to
himself or others and the treatment is in the inmate’s medical interest),
or, on the other hand, for the purpose of prosecuting an incompetent
defendant, see Sell v. United States, 123 S.Ct. 2174 (2003) (Sell). In Sell
the Supreme Court admonished that
[a] court need not consider whether to allow forced medication
for [the purpose of rendering the defendant competent to stand
trial], if forced medication is warranted for a different purpose,
such as the purposes set out in Harper related to the [impris-
oned] individual’s dangerousness, or purposes related to the
[imprisoned] individual’s own interests where refusal to take
drugs puts his health gravely at risk.
123 S.Ct. at 2185 (emphasis in original). Here, the magistrate judge
found that Evans neither posed a danger to himself or others in the prison
community, nor was he "gravely" ill. (J.A. at 159.) The parties do not
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On appeal, Evans challenges the district court’s conclusions that
the Government satisfied the first, second, and fourth parts of the Sell
test.4 First, he argues that the Government does not have an "impor-
tant" interest in trying him under Sell’s first part. Next, he claims that
the Government failed to prove that involuntary medication would
"significantly further" its interest or is "medically appropriate" for
him under Sell’s second and fourth parts.5 We address these conten-
tions in turn.
III. Importance of the Government’s Interest
To render a defendant competent to stand trial through involuntary
medication, the government must have an "important" interest in try-
ing the defendant. Id. at 2184 (emphasis omitted). The government’s
challenge this finding. We must therefore consider whether the involun-
tary medication proposed here was constitutional under Sell’s frame-
work. Because Sell, and not Harper, provides the framework for
deciding the Government’s motion for involuntary medication here, this
opinion’s discussion of involuntary medication is limited to the criteria
for administration of involuntary medication for prosecutorial purposes.
4Sell’s third part—the necessity requirement—means that the court
must consider whether any "alternative, less intrusive treatments [than
involuntary medication] are [ ]likely to achieve substantially the same
results." 123 S.Ct. at 2185. In addition, "the court must consider less
intrusive means for administering the drugs [than involuntary administra-
tion], e.g., a court order to the defendant backed by the contempt power,
before considering more intrusive methods." Id. The district court found
that there were no less intrusive treatments than medication. Evans does
not challenge this finding on appeal. Moreover, Evans’s counsel con-
firmed at oral argument that Evans would not be persuaded to take antip-
sychotic medication pursuant to a court order. Sell’s third factor is
therefore resolved in the Government’s favor.
5Evans also argues that the Due Process Clause requires the Govern-
ment to prove its case under Sell by clear and convincing evidence.
Evans, however, failed to raise this argument before the district court. He
has therefore waived it on appeal. See Holland v. Big River Minerals
Corp., 181 F.3d 597, 605 (4th Cir. 1999). Nothing in this opinion pre-
cludes the district court from considering the issue of the appropriate
standard of proof on remand.
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interest is "important" if the defendant is both charged with a "serious
crime" and "[s]pecial circumstances" do not undermine the govern-
ment’s interest in trying him for that crime. Id. The district court
resolved both of these issues in the Government’s favor. Evans dis-
agrees with both conclusions. The district court’s determination that
the government’s interest is "important" is a legal conclusion that we
review de novo, see Gomes, 387 F.3d at 160, although we review any
factual findings relevant to this legal determination for clear error. Cf.
United States v. Holmes, 376 F.3d 270, 273 (4th Cir. 2004) (applying
the clear error standard of review to the district court’s factual find-
ings on appeal from denial of the appellant’s motion to suppress).
A. Seriousness of the Offense
Evans claims that the district court erred by focusing on the statu-
tory maximum penalty for the crimes with which he was charged as
the determinant of seriousness. He contends that the proper focus
should be on the sentence he was most likely to receive under the
Sentencing Guidelines, and argues that because his probable guideline
range is only 14-20 months, the charges against him were not serious.
We disagree with Evans’s analysis of this issue.
In discussing the seriousness requirement, the Supreme Court in
Sell said only that
a court must find that important governmental interests are
at stake. 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 human need for security.
123 S.Ct. at 2184 (emphasis omitted). Although the Court in Sell
offered no guidance on how to determine the seriousness of an
offense, the Supreme Court has described "serious" crimes in other
contexts. In Duncan v. Louisiana, 391 U.S. 145 (1968), for example,
the Supreme Court observed that the Sixth Amendment’s right to trial
by jury exists only in "serious" criminal cases. Id. at 158. It admon-
ished that "the penalty authorized for a particular crime is of major
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relevance in determining whether it is serious." Id. at 159 (emphasis
added). In fact, it explicitly rejected Louisiana’s argument that the
proper focus of whether a crime is "serious" for purposes of the Sixth
Amendment right to trial is the actual "length of punishment." Id. at
162 n. 35. More recent right-to-jury cases have explicitly found that
the primary measure of seriousness is "the maximum penalty attached
to the offense." See, e.g., Lewis v. United States, 518 U.S. 322, 326
(1996).
We believe that in light of Duncan and its progeny, it is appropriate
to focus on the maximum penalty authorized by statute in determining
if a crime is "serious" for involuntary medication purposes. Such an
approach respects legislative judgments regarding the severity of the
crime, see Blanton v. North Las Vegas, 489 U.S. 538, 541-42 (1989)
("The judiciary should not substitute its judgment as to seriousness
for that of a legislature, which ‘is far better equipped to perform the
task, and [is] likewise more responsive to changes in attitude and
more amenable to the recognition and correction of their mispercep-
tions in this respect.’" (quoting Landry v. Hoepfner, 840 F.2d 1201,
1209 (5th Cir. 1988) (alteration in original))), while at the same time
giving courts an objective standard to apply, see Lewis, 518 U.S. at
325-26.6
A focus on a defendant’s probable guideline range to determine an
offense’s seriousness would similarly respect legislative judgments,
see Mistretta v. United States, 488 U.S. 361, 412 (1989) (holding that
the sentencing guidelines are promulgated pursuant to Congress’s
valid delegation of legislative authority), while also giving courts an
objective standard to apply. Such a focus, however, would simply be
unworkable because at this stage in the proceedings, there is no way
of accurately predicting what that range will be. The final guideline
6We do not believe that the Supreme Court’s focus in Sell on "whether
the offense is a serious crime against the person or a serious crime
against property," 123 S.Ct. at 2184 (emphasis added), imposes the addi-
tional requirement that the crime also be against either person or property
in order to be a "serious" one. Instead, we believe the Supreme Court was
merely describing the charges Sell himself faced: intimidation of a wit-
ness, a crime against the person, and fraud, a crime against property. Id.
at 2179.
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range is computed only after the district court makes findings of fact
relevant to sentencing categories. These factual findings are based on
the Presentence Report (PSR), which the Probation Office prepares
pursuant to testimony presented at trial or the plea and a detailed
investigation of the defendant. A focus on the probable guideline
range as the barometer of seriousness would shift this fact-finding to
a time before the defendant’s trial or plea, before the Probation Office
prepares its report, and at a time when the district court has already
ruled that the defendant himself is incompetent. Fact-finding under
these circumstances—with no PSR and with the defendant unable to
testify or render other assistance to counsel—would be uniquely inap-
propriate.7
To answer the question of whether the crimes on which Evans was
indicted were "serious," we are not required to set forth any rigid rule
as to what the statutory maximum must be for a crime to be a serious
one. Even if the charge of assaulting, resisting, or impeding an agri-
cultural official under § 111(a)(1), a misdemeanor whose maximum
7The briefs and oral argument in this case were completed before the
Supreme Court issued its decision in United States v. Booker, 125 S.Ct.
738 (2005) invalidating the United States Sentencing Guidelines under
the Sixth Amendment, id. at 752, severing 18 U.S.C.A. §§ 3553(b)(1)
(requiring sentencing courts to impose a sentence within the applicable
guidelines) and 3742(e) (setting forth appellate standards of review) from
the Sentencing Reform Act of 1984, id. at 764, and interpreting the Act
as implying a "reasonableness" standard of review, id. at 766. Under
Booker, district courts are no longer required to sentence a defendant
within the applicable guideline range, but must only consider the defen-
dant’s guideline range in determining the appropriate sentence. Id. at 767
("The district courts, while not bound to apply the Guidelines, must con-
sult those Guidelines and take them into account when sentencing."); 18
U.S.C.A. §§ 3553 (a)(4), (5) (West Supp. 2004). Because the district
courts now have some leeway in determining whether to sentence a
defendant within or outside of the probable guideline range, the post-
Booker probable guideline range may be less accurate an indicator of the
defendant’s actual sentence as the pre-Booker probable guideline range.
Our consequent inability to predict a defendant’s actual sentence based
on his probable guideline range is another reason to reject as unworkable
Evans’s suggestion that we should determine seriousness solely by
examining his probable guideline range.
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term of imprisonment is one year, is not of sufficient seriousness
alone, we conclude that the second charge—threatening to murder a
federal judge under § 115(a)(1)(B), a felony whose maximum term of
imprisonment is 10 years—is "serious" under any reasonable stan-
dard. Cf. Baldwin v. New York, 399 U.S. 66, 71 (1970) (holding that
crimes authorizing punishment for over six months are "serious"
under Duncan for purposes of the Sixth Amendment’s right to trial by
jury). We think it beyond dispute that the Government does have an
important interest in trying a defendant charged with a felony carrying
a maximum punishment of 10 years imprisonment.8
B. Special Circumstances
Although we conclude that Evans is facing a serious charge, the
Supreme Court noted in Sell that the state’s important interest in pros-
ecuting the defendant on serious charges can be "lessen[ed]" under
"[s]pecial circumstances." 123 S.Ct. at 2184. "The defendant’s failure
to take drugs voluntarily, for example, may mean lengthy confine-
ment in an institution for the mentally ill[, a fact] that would diminish
the risks that ordinarily attach to freeing without punishment one who
has committed a serious crime." Id. "The same is true," the Court
observed, "of the possibility that the defendant has already been con-
fined for a significant amount of time (for which he would receive
credit toward any sentence ultimately imposed)." Id. (citation omit-
ted).
Evans argues that the Government’s interest in prosecuting him,
even if on a "serious" charge, is made unimportant because: (1) he has
already been incarcerated for over two years; and (2) there is a possi-
bility he could be civilly committed if he is not involuntarily medi-
cated. The district court correctly rejected these arguments.
First, while the length of Evans’s confinement for evaluation may
lessen the importance of the state’s interest, it does not defeat it. Even
8By focusing on only one of the two crimes with which Evans is
charged, we do not imply that courts may not aggregate charges when
determining whether the government has an important interest. To
resolve the case before us, it is enough to say that the Government has
an important interest based on the felony charge alone.
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if credited with the over two years he has spent at Butner and New
River Valley under 18 U.S.C.A. § 3585(b) (West 2000) (providing
that a defendant shall be given credit for certain pre-sentencing time
spent in detention), Evans is still facing almost 8 years in prison on
the felony charge against him. Again, under any reasonable standard,
the Government has an important interest in trying a defendant who
is charged with a crime that has the potential of an almost 8-year
prison term.9 Second, it is unlikely that Evans would be civilly com-
mitted. Both the IM report and Dr. Robbins’s testimony explained
that Evans would not meet the criteria for civil commitment under 18
U.S.C.A. § 4246 (West 2000). Moreover, as the district court found,
because the evidence against Evans at his trial for threatening to mur-
der a United States judge would be in the form of testimony from the
New River Valley inmates to whom Evans communicated his threats
against the magistrate judge, "it may be difficult or impossible to try
[Evans in the future if he] regains competence after years of commit-
ment during which [the] memories [of those who will testify for and
against him] may fade." Sell, 123 S.Ct. at 2184.10 Evans’s past deten-
tion and unlikely future civil confinement do not, therefore, make
unimportant the Government’s interest in prosecuting him on the seri-
ous charges against him.
9By focusing on the amount of time with which Evans would be cred-
ited under 3585(b), we do not imply that time is the only consideration
relevant to whether special circumstances undermine the government’s
interest. There may be purposes of criminal punishment unrelated to the
actual length of incarceration that would continue to give the government
an important interest in trying a defendant accused of a serious crime
even if the time he spends in pre-trail detention approaches the statutory
maximum penalty for the crime with which he is charged. See Sell, 123
S.Ct. at 2184 (noting that the defendant’s pre-trial confinement "affects,
but does not totally undermine, the strength of the need for prosecu-
tion."). Because we conclude that the Government continues to have an
important interest in trying Evans based on the potential length of his
incarceration alone, we need not consider this more difficult issue here.
10Evans agues that the district court made no factual finding on this
point and that it was therefore improper for the court to consider it. We
believe, however, that the district court was within its discretion in taking
judicial notice of the fact that memories may fade over time. See Gomes,
387 F.3d at 161 (concluding, on the basis of briefing alone, that memo-
ries may fade over time).
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IV. Medical Record Relating to Involuntary Medication
Evans next argues that even if the Government’s interest in restor-
ing his competency is an important one, the district court erred in
finding that the Government satisfied Sell’s second and fourth parts,
i.e. that involuntary medication would "significantly further"11 its
interest and was "medically appropriate" for him. He contends that (1)
because the IM report provided no detail with respect to the specific
medication the Butner staff proposed to give him, and (2) because the
IM report failed to examine with sufficient particularity the effect that
antipsychotic medication would have on him as an individual, it was
impossible for the district court to evaluate these two elements of the
Sell formula. We review the district court’s resolution of Sell’s second
and fourth parts for clear error, see Gomes, 387 F.3d at 160, and agree
with Evans that the district court clearly erred because it was without
adequate information to support its holdings as to those parts.
First, we are unable to discern from the IM report what medication
the Butner staff planned to give Evans to restore his competency. The
report generally discusses the benefits of atypical antipsychotic medi-
cation over conventional antipsychotics, but it never actually states
the particular type of atypical antipsychotic medication the Butner
staff planned to administer to Evans. The government must propose
a course of treatment in which it specifies the particular drug to be
administered. See Sell, 123 S.Ct. at 2185 (describing the necessity of
determining whether "particular drugs" are medically appropriate); id.
at 2187 ("Whether a particular drug will tend to sedate a defendant,
interfere with communication with counsel, prevent rapid reaction to
trial developments, or diminish the ability to express emotions are
matters important in determining the permissibility of medication to
restore competence."); Riggins, 504 U.S. at 133-37 (discussing the
medical appropriateness of the particular antipsychotic drug Mellaril).
This stands to reason because Sell requires an evaluation of possible
11As discussed, whether involuntary medication will "significantly fur-
ther" the government’s interest in trying Evans under Sell’s second factor
is determined by examining whether such medication is "substantially
likely" to restore him to competency and "substantially unlikely" to pro-
duce side effects that will interfere significantly with his ability to assist
counsel. 123 S.Ct. at 2185.
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side effects, and different atypical antipsychotics will have different
side effect profiles. Without at least describing the proposed course
of treatment, it is tautological that the Government cannot satisfy its
burden of showing anything with regards to that treatment, much less
that it will "significantly further" the Government’s trial-related inter-
ests and be "medically appropriate" for Evans. Second, even assuming
the IM report outlined a sufficiently detailed treatment plan, we
would nevertheless conclude that the district court clearly erred in
granting the Government’s motion. While the IM report does indeed
state that involuntary medication would "significantly further" the
Government’s interests and be "medically appropriate" for Evans, it
failed to explain how it reached its conclusions on these points with
respect to Evans as an individual. In other words, it nowhere indicates
that the Butner staff actually considered Evans’s particular mental
and physical condition in reaching these conclusions.
With respect to whether involuntary medication would "substan-
tially further" the Government’s interest, the IM report concluded that
atypical antipsychotic medication would be "substantially likely" to
restore Evans’s competency merely because such medication is the
"primary" way to treat Schizophrenia. It nowhere addressed Dr. Rob-
bins’s concern that Evans’s delusions of governmental conspiracies
that have persisted longer than 40 years will resist involuntary medi-
cation precisely because the government administers the medication.
In addition, the IM report concluded that side effects that would inter-
fere with Evans’s ability to assist counsel were "substantially
unlikely" on the basis that newer antipsychotic medications "have a
more favorable side effect profile [than older antipsychotics] in many
patients." The report never addressed why it concluded that Evans, an
elderly man with diabetes, hypertension, and asthma who takes a
number of medications to treat these conditions, would not experience
side effects that would interfere with his ability to assist counsel. With
respect to whether involuntary medication would be "medically
appropriate" for Evans, the IM report states only that involuntary
medication is "medically appropriate" because "the standard treatment
of anyone with [Evans] condition of Schizophrenia would involve the
prescription of antipsychotic medication." (J.A. at 316.) Again, the
report nowhere indicates that it considered Evans’s particular medical
condition in reaching its conclusion.
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Instead of analyzing Evans as an individual, the report simply sets
up syllogisms to explain its conclusions: (1) atypical antipsychotic
medications are generally effective, produce few side effects, and are
medically appropriate, (2) Evans will be given atypical antipsychotic
medications, (3) therefore, atypical antipsychotic medication will be
effective, produce few side effects, and be medically appropriate for
Evans. To hold that this type of analysis satisfies Sell’s second and
fourth factors would be to find the government necessarily meets its
burden in every case it wishes to use atypical antipsychotic medica-
tion. We do not believe that Sell’s analysis permits such deference.
We conclude that for the district court even to assess whether
involuntary medication is constitutionally permissible under Sell’s
second and fourth factors, the government must set forth the particu-
lar medication, including the dose range, it proposes to administer to
Evans to restore his competency. See Sell, 123 S.Ct. at 2185 ("The
specific kinds of drugs at issue may matter. . . . Different kinds of
antipsychotic drugs may produce different side effects and enjoy dif-
ferent levels of success."). To approve of a treatment plan without
knowing the proposed medication and dose range would give prison
medical staff carte blanche to experiment with what might even be
dangerous drugs or dangerously high dosages of otherwise safe drugs
and would not give defense counsel and experts a meaningful ability
to challenge the propriety of the proposed treatment. Yet we believe
that a reasonable range rather than an exact dosage is appropriate
because the latter would unduly limit the medical provider’s ability
to adapt its treatment to fit the often vagarious bodily and psychical
responses to medical treatment. We believe that this approach best
balances the need for effective judicial review with the need to give
prison medical staff the flexibility subtly to modify their proposed
course of treatment to fit the defendant’s individual medical condition
if the treatment does not work exactly as initially expected.
While it is necessary for the government to set forth the particular
medication and dose range of its proposed treatment plan, such a
description alone is not sufficient to comply with Sell. Rather, the
government must also relate the proposed treatment plan to the indi-
vidual defendant’s particular medical condition. In other words, the
government, considering all of the particular characteristics of the
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individual defendant relevant to such a determination,12 must first
show that the treatment plan will "significantly further" its interests.
It must do so by demonstrating that the proposed treatment plan, as
applied to this particular defendant, is "substantially likely" to render
the defendant competent to stand trial and "substantially unlikely" to
produce side effects so significant as to interfere with the defendant’s
ability to assist counsel in preparing a defense. Second, the govern-
ment, again considering all of the circumstances relevant to the partic-
ular defendant, must show that its proposed treatment plan is
"medically appropriate." To do so, the government must spell out why
it proposed the particular course of treatment, see id. at 2185 (treat-
ment is "medically appropriate" if it is "in the patient’s best medical
interest in light of his medical condition"), provide the estimated time
the proposed treatment plan will take to restore the defendant’s com-
petence and the criteria it will apply when deciding when to discon-
tinue the treatment, describe the plan’s probable benefits and side-
effect risks13 for the defendant’s particular medical condition, see id.
(observing that efficacy and side effects are relevant to question of
whether the treatment is "medically appropriate"), show how it will
deal with the plan’s probable side effects, and explain why, in its
view, the benefits of the treatment plan outweigh the costs of its side-
effects.14 The Government’s evidence in this case fell well short of
this standard.
12Although we have mentioned the length of time Evans has suffered
from schizophrenia, Evans’s other health problems, and the medications
he is taking, we leave to the district court to determine, in the first
instance, what factors may be "relevant" under Sell.
13In considering whether involuntary medication will "significantly
further" the government’s trial-related interests, the district court should
consider, inter alia, whether the medication is "substantially unlikely" to
produce side effects that will interfere with the defendant’s "ability to
assist counsel in conducting a trial defense, thereby rendering the trial
unfair. Sell II, 123 S.Ct. at 2185. In considering whether involuntary
medication is "medically appropriate," the district court should consider
whether the medication is likely to produce any adverse side effects in
the defendant, see Sell II, 123 S.Ct. at 2185, including, but not limited
to those that may interfere with the defendant’s right to a fair trial. Id.
14We do not imply that the government may set forth only one treat-
ment plan. Instead, the government may set forth alternate treatment
plans in the event the primary treatment plan is defective for one reason
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V. Conclusion
For the foregoing reasons, we vacate the district court’s order
granting the Government’s motion to allow involuntary medication
and remand with instructions for the district court to reassess the
motion after affording the parties the opportunity to supplement the
record in a manner consistent with this opinion.
VACATED AND REMANDED
WITH INSTRUCTIONS
or another. If the government chooses to set forth alternate treatment
plans, it must explain which plan it intends to use first, second, etc., and
why it has so ordered the plans. The government must provide particular-
ized information regarding each treatment plan as applied to the individ-
ual defendant, as explained herein, and the district court must assess the
various treatment plans independently of one another.
To the extent the government proposes, and the district court approves,
a treatment plan that proves defective for one reason or another, nothing
in this opinion would preclude the government from filing a second
motion for involuntary medication and proposing an alternate treatment
plan.
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