United States v. Jaramillo-Ayala

526 F. Supp. 2d 1094 (2007)

UNITED STATES of America, Plaintiff,
v.
Jose Antonio JARAMILLO-AYALA, Defendant.

No. CRIM. 05CR1963J.

United States District Court, S.D. California.

August 24, 2007.

Karen P. Hewitt, United States Attorney, and Valerie Chu, Assistant United States Attorney, San Diego, for the Plaintiff United States.

Kris J. Kraus and Shereen J. Charlick, San Diego, for the Defendant Jose Antonio Jaramillo-Ayala.

ORDER GRANTING MOTION FOR COURT-ORDERED MEDICATION OF DEFENDANT [Doc. No. 53]

NAPOLEON A. JONES, JR., District Judge.

Before the Court is Plaintiff United States of America's ("Plaintiff" or "Government") Motion for Court-Ordered Medication of Defendant. [Doc. No. 53.] Defendant has filed Oppositions to Plaintiffs Motion. [Doc. Nos. 49, 54.] The Parties have also submitted supplemental briefing on this matter. [Doe. Nos. 60, 63.] The Court held evidentiary hearings on April 23, 2007, May 21, 2007, June 15, 2007, and June 22, 2007. [Doc. Nos. 52, 55-57.] For the reasons set forth below, the Court GRANTS Plaintiffs Motion for Court-Ordered Medication of Defendant.

Background

On September 24, 2005, Defendant was arrested near the U.S./Mexico international border for a potential violation of 8 U.S.C. § 1326. (See Def.'s Suppl. Br. at 2.) Plaintiff alleges that Defendant admitted that he was a citizen and national of Mexico, and that he had no documents allowing him to enter or remain in the United States. (See Pl.'s Suppl. Br. at 2.) On April 20, 2007, a superseding indictment was returned, alleging that Defendant had been found in the United States in violation of Sections 1326(a) and (b) subsequent to having been removed from the United States. (See id.) Following his arrest, Defendant was taken to the Alvarado Parkway Institute ("API") based on his admitted history of mental illness and substance abuse. (See Def.'s Suppl. Br. at 2.) While at API, Defendant was placed on Risperdal. (See id.)

On December 12, 2005, defense counsel moved for a competency evaluation of Defendant pursuant to 18 U.S.C. § 4241(a). (See id. at 2.) Dr. Gordon M. Zilberman, a psychologist at the Metropolitan Correctional Center in San Diego ("MCC"), diagnosed Defendant with Psychotic Disorder, Not Otherwise Specified, In Partial Remission, Alcohol Abuse, Prior History, and Amphetamine Abuse, Prior History. During this time, Defendant agreed to take Risperdal and was returned to the general population unit. (See Zilberman Report at 4-5.) Dr. Zilberman opined that Defendant's "symptoms may worsen if he were to discontinue taking [the] prescribed medication." (See id. at 5.) Dr. Zilberman concluded that Defendant was competent to stand trial. (See id. at 5-6.)

Dr. Bruce Yanofsky was appointed to conduct a second competency evaluation of Defendant. (See Pl.'s Suppl. Br. at 4.) Based on several interviews with Defendant, Dr. Yanofsky diagnosed Defendant with Psychotic Disorder, Not Otherwise Specified. (See Yanofsky Report at 22.) Defendant told Dr. Yanofsky that over his ten year prison sentence with the California Department of Corrections he was treated with antipsychotic medications, and during four of those years, he was involuntarily medicated. .(See id. at 8.) However, Defendant stopped taking the antipsychotic medication once he was deported to Mexico. (See id. at 8.) Ultimately, Dr. Yanofsky found Defendant competent to stand trial. (See id. at 24.) Dr. Yanofsky concluded that Defendant was able to appreciate the charges against him, fully appreciate the range of possible punishments that may be imposed, understand the adversary nature of the legal process, disclose pertinent facts to his attorney, present appropriate courtroom behavior, and present relevant testimony on his own behalf. (See id. at 23) However, Dr. Yanofsky found that these factors were somewhat limited by Defendant's delusional thoughts. (See id.) Dr. Yanofsky also noted that Defendant's condition seems to improve when on antipsychotic medication and that Defendant has discontinued the use of such medication. (See id. at 24). Dr. Yanofsky submitted an addendum to his initial report after evaluating Defendant a month later. Dr. Yanofsky found that Defendant's condition had deteriorated and. Defendant was no longer competent to stand trial due to his major psychiatric disorder. (See id. at 27-28.)

On October 2, 2006, the Court held a competency hearing. [Doc. No. 32.] During the hearing, Defendant interrupted the hearing several times and repeatedly demanded that the Court order the FBI and DEA to investigate his case and that his defense counsel be taken of his case. (See Oct. 2, 2006, Hr'g Tr. at 2-5.) On October 10, 2006, the Court found Defendant not competent to stand trial and committed Defendant for four months to a federal medical facility for competency restoration. (See Competency Order at 2.)

On December 15, 2006, Joseph McGuire, an attorney at the United States Medical Center for Federal Prisoners ("USMCFP") in Springfield, Missouri, wrote a letter to the Court indicating that Defendant required treatment with antipsychotic medication for competency restoration. (See Pl.'s Suppl. Br. at 7.) On January 8, 2007, the Government moved for a hearing pursuant to Sell v. United States, 539 U.S. 166, 123 S. Ct. 2174, 156 L. Ed. 2d 197 (2003), to determine whether Defendant could be forcibly medicated for the sole purpose of restoring Defendant to competency to stand trial. [Doc. No. 37.] On April 16, 2007, Defendant filed an Opposition to Plaintiff's oral Motion to Forcibly Medicate Defendant. [Doc. No. 49.] On May 7, 2007, Plaintiff filed its Motion for Court-Ordered Medication of Defendant. [Doc. No. 53.] On May 14, 2007, Defendant filed an Opposition to Plaintiff's written motion. [Doc. No. 54.] The Court held evidentiary hearings on April 23, 2007, May 21, 2007, June 15, 2007, and June 22, 2007. [Doc. Nos. 52, 55-57.] Dr. Lee Ann Preston and Dr. Robert Sarrazin, Chief of Psychiatry at USMCFP Springfield, testified for the Government, and. Dr. Matthew Carroll, MD. testified for Defendant. At the conclusion of the evidentiary hearings, the Parties submitted supplemental briefing. [Doc. Nos. 60, 63.] This matter came on for closing statements on August 20, 2007.

Discussion

I. Harper Analysis

In a hearing on a motion for forced medication of a defendant to restore competency, a court must initially consider whether the defendant may be involuntarily medicated on Harper-type grounds, i.e., an "individual's dangerousness or . . . [an] individual's own interests where refusal to take drugs puts his health gravely at risk." See Sell v. United States, 539 U.S. 166, 181-82, 123 S. Ct. 2174, 156 L. Ed. 2d 197 (2003) (citing Washington v. Harper, 494 U.S. 210, 225-26, 110 S. Ct. 1028, 108 L. Ed. 2d 178 (1990)). For the reasons set forth below, the Court FINDS that forced medication on Harper-type grounds is not appropriate in this case.

Defendant currently does not present a danger to himself or to others, and medication is not immediately necessary to protect Defendant's health, Plaintiff states that in a December 15, 2006 letter, Mr. McGuire, the USMCFP-Springfield attorney, reported that Defendant's treating doctors believed that Defendant was not currently a danger to himself or to others in the context of his confinement, and Defendant did not require emergency medical intervention based on his health. (See Pl.'s Suppl. Br. at 8.) Additionally, Defendant is currently in a locked housing unit in a single cell. (See April 23, 2007, Hr'g Tr. at 10.) Dr. Preston also testified that Defendant is uncooperative in the sense that he is unwilling to speak to staff and he is very withdrawn. (See id. at 43.) Dr. Preston testified that since Defendant has been at the Springfield facility, no altercations or problems involving Defendant have been reported. (See id.)

Defense counsel agrees that Defendant is not in a position to be medicated due to the danger to himself or to others. Defense counsel states that "this preliminary finding is a simple one to make: the medical professionals have repeatedly opined that Mr. Jaramillo-Ayala is not dangerous to himself or others; thus, if appropriate at all, forced medication could only be authorized for the sole purpose of restoring Mr. Jaramillo-Ayala to competency." (Def.'s April 16, 2007, Opp'n at 5.)

Accordingly, the Court FINDS that the forced medication of Defendant on Harper-type grounds is not appropriate.

II. Sell Analysis

A. Legal Standard

Having concluded that Defendant may not be medicated based on Harper-type grounds, the Court now turns to the analysis provided in Sell. It is well settled law that a defendant "possesses a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment." Washington v. Harper, 494 U.S. 210, 221-22, 110 S. Ct. 1028, 108 L. Ed. 2d 178 (1990); see also Riggins v. Nevada, 504 U.S. 127, 134, 112 S. Ct. 1810, 118 L. Ed. 2d 479 (1992) (repeating that an individual has a constitutionally protected liberty interest in avoiding involuntary administration of antipsychotic drugs, an interest that only an "essential" or "overriding" state interest might overcome). However, in Sell, the Supreme Court held that the Government may involuntarily administer antipsychotic drugs to a mentally ill defendant to render the defendant competent to stand trial under certain circumstances. Sell, 539 U.S. 166, 123 S. Ct. 2174, 156 L. Ed. 2d 197. Specifically, the Court held that

[T]he 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, it is necessary significantly to further important governmental trial-related interests.

Id. Though the Supreme Court cautioned that "[t]his standard will permit involuntary administration of drugs solely for trial competence purposes in certain instances," and "those instances may be rare Id. at 180, 123 S. Ct. 2174 (emphasis added). In order to override the defendant's constitutionally protected rights, (1) the court must find that "important governmental interests are at stake[;]" (2) the court must conclude that "involuntary medication will significantly further those concomitant state interests[;]" (3) the court must conclude that "involuntary medication is necessary to further those interests[;]" and (4) the court must conclude that "administration of the drugs is medically appropriate, i.e., in the patient's best medical interest in light of his medical condition." Id. at 180-81, 123 S. Ct. 2174 (emphasis in original). For the reasons discussed below, the Court FINDS that the Government has satisfied the standard set forth in Sell for forcibly medicating Defendant to restore competency for trial.

B. Burden of Proof

"The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to `instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.'" Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 282, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (1990) (quoting Addington v. Texas, 441 U.S. 418, 423, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979)). In Harper, the Supreme Court considered a Washington state law authorizing forced administration of antipsychotic drugs without a judicial hearing "to inmates who are . . . gravely disabled or represent a significant danger to themselves or others." 494 U.S. at 226, 110 S. Ct. 1028. In that context, the Court rejected the use of the clear and convincing standard of proof because "[t]his standard is neither required nor helpful when medical personnel are making the judgment required by the regulations here." Id. at 235,110 S. Ct. 1028.

In United States v. Brandon, 158 F.3d 947 (6th Cir.1998), the Sixth Circuit addressed the standard of proof by which the Government must prove its case to forcibly medicate a non-dangerous pretrial detainee to render him competent to stand trial. There, the Sixth Circuit concluded that a clear and convincing evidence standard is the appropriate standard of proof. Id. at 961. The Sixth Circuit explained:

We believe that the risk of error and possible harm involved in deciding whether to forcibly medicate an incompetent, non-dangerous pretrial detainee are likewise so substantial as to require the government to prove its case by clear and convincing evidence. Given the current risks associated with the administration of antipsychotic medication, no other standard would sufficiently protect [the defendant's] rights.

Id. (internal citations omitted); see also Addington, 441 U.S. at 432, 99 S. Ct. 1804 (requiring the Government to prove by clear and convincing evidence that an individual is mentally ill before an individual may be civilly committed); Santosky v. Kramer, 455 U.S. 745, 757-58, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) (applying a clear and convincing evidence standard before a state may sever completely and irrevocably the rights of parents in their natural child); Cruzan, 497 U.S. at 282, 110 S. Ct. 2841 (requiring a clear and convincing evidence standard before terminating an incompetent individual's life-sustaining treatment). In distinguishing Harper, the Sixth Circuit added:

Although this higher burden of proof was rejected in Harper, it was done in a context inapposite to the present case. In Harper, the Supreme Court held that the decision to medicate a dangerous convicted felon could be made solely by medical professionals without the need for a judicial hearing. Based on that fact, the Court concluded it would make no sense to require medical professionals to convince themselves of the medical appropriateness of their own decision by clear and convincing evidence. Here, however, we are dealing with a non-dangerous pretrial detainee, where a judge must conduct an evidentiary hearing on the forced-medication issue. . . . Therefore, Harper's reasoning does not apply to, the facts of this case.

Brandon, 158 F.3d at 961; see also United States v. Cruz-Martinez, 436 F.Supp.2d. 1157, 1160 (S.D.Cal.2006) (adopting the clear and convincing standard under the Sell analysis); United States v. Gomes, 387 F.3d 157, 160 (2d Cir.2004) (recognizing that the proper standard is by clear and convincing evidence); United States v. Weston, 255 F.3d 873, 880 n. 5 (D.C.Cir. 2001) ("The district court held the government to a clear-and-convincing-evidence burden of proof.")

In Addington, the Supreme Court considered "both the extent of the individual's interest in not being involuntarily confined indefinitely and the state's interest in committing the emotionally disturbed under a particular standard of proof." 441 U.S. at 425, 99 S. Ct. 1804. Expressing concerns about the possible risk of improperly committing an individual and the seriousness of the loss of liberty, the Addington Court determined that "increasing the burden of proof is one way to impress the factfinder with the importance of the decision and thereby perhaps to reduce the chances that inappropriate commitments will be ordered." 441 U.S. at 427, 99 S. Ct. 1804. The Court further noted:

The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state. We conclude that the individual's interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence.

Id.

While Defendant has a constitutionally protected liberty interest in avoiding involuntary administration of antipsychotic drugs, the primary governmental purpose for medicating Defendant is to render him competent to stand trial for illegal reentry after removal. The Supreme Court recognizes that the "power to bring an accused to trial is fundamental to a scheme of `ordered liberty' and prerequisite to social justice and peace." Riggins, 504 U.S. at 136, 112 S. Ct. 1810 (quoting Illinois v. Allen, 397 U.S. 337, 347, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970) (Brennan, J. concurring)) (internal quotations omitted). Nevertheless, due to the serious side effects that may occur from the use of antipsychotic medication, using a clear and convincing evidence standard is certainly one way to ensure that the involuntary administration of medication is appropriate under the circumstances. Similar to civil commitment, and perhaps even more so in this context, the defendant should not equally share the risk of error with the Government, as the potential dangers of antipsychotic medication and its effects on the chemical balance in a patient's brain exceed any possible harm to the state. Accordingly, the Court holds the Government to a clear and convincing evidence standard.

B. Governmental Interest in Prosecuting Defendant

In conducting a Sell analysis, the Court must first "find that important governmental interests are at stake." Sell, 539 U.S. at 180, 123 S. Ct. 2174 (emphasis in original). The Government argues that Defendant is charged with a serious crime based on the fact that the violation entitles him to a jury trial, he faces a twenty-year maximum penalty and a 100-125 month advisory sentencing range, and he has a long criminal history. (See generally Pl.'s May 8, 2007, Mot.) Defendant, however, argues that the Government misinterprets the Sell standard by failing to recognize that "serious crimes" are limited to those against the person or property and by incorrectly suggesting that a person's criminal history should be considered. (See Def.'s May 14, 2007, Opp'n at 3.)

As briefed by the Parties, the difficulty in assessing the meaning of a "serious crime" for forced medication purposes is due to the lack of specificity within the Sell opinion and the dearth of subsequent case law dealing with this issue. The extent of the Supreme Court's delineation of its meaning in Sell is the following:

[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.

Sell, 539 U.S. at 180, 123 S. Ct. 2174. Additionally, "Courts . . . must consider the facts of the individual case in evaluating the Government's interest in prosecution," as "[s]pecial circumstances may lessen the importance of that interest." Id. While Sell is of little help to the Court in addressing the current charges, the Court FINDS that the Government has an important interest in bringing Defendant to trial and Defendant is charged with a "serious crime" for purposes of a Sell hearing.

I. Duncan is Inapplicable to the Sell Standard

Plaintiff argues that the Court should consider the "serious crime" requirement within the context of the Sixth Amendment right to a jury trial as provided by Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968). For the reasons discussed below, the Court FINDS that the Duncan definition of a "serious crime" is inapplicable to the forced medication context.

In United States v. Evans, the defendant was in the custody of the Attorney General in an attempt to restore competency to stand trial under 18 U.S.C. § 4241(d)(1) 293 F. Supp. 2d 668, 669-70 (W.D.Va.2003). There, the defendant "was arrested on a misdemeanor charge of `assault[ing], resist[ing], or [impeding] [an employee of the USDA]' under 18 U.S.C. § 111(a)(1);" and was also later charged with violating 18 U.S.C. § 115(a)(1)(B) for "threaten[ing] to murder a United States judge, with intent to retaliate against such judge, on account of the performance of official duties." United States v. Evans, 404 F.3d 227, 233-34 (4th Cir.2005). In order to determine whether such an offense was a "serious" crime, the Fourth Circuit looked to jurisprudence relating to what amounts to a serious crime within the context of the Sixth Amendment right to a jury, trial, as well as the maximum penalty attached to the offense. See id. at 237. The Fourth Circuit recognized that the Sixth Amendment right to a jury trial extends only to persons charged with serious crimes, i.e., those offenses for which a term of imprisonment exceeding six months may be imposed. See id. at 237-38 (citing Duncan v. Louisiana, 391 U.S. 145, 154-55, 159, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968); Baldwin v. New York, 399 U.S. 66, 68-69, 90 S. Ct. 1886, 26 L. Ed. 2d 437 (1970)). The Fourth Circuit found "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." Id. at 238.

However, the jury trial standard cannot be appropriately applied within a Sell analysis. First, the Supreme Court in Sell did not mention Duncan or even analogize the definition of a "serious crime" with that of any offense warranting a jury trial. Second, if the Duncan standard were to apply, situations in which the Sell analysis could apply would cease to be "rare" and "limited" as prescribed by the Supreme Court. As Defendant points out, such an expansion of the meaning would apply to a wide variety of cases, thus nullifying the Supreme Court's indication that such situations should be limited. (See Def.'s May 14, 2007, Opp'n at 5.) Defendant notes that crimes such as making a false statement to a federal officer, making a false claim for United States citizenship, or tampering with an odometer would meet the Duncan standard. (See id.) Third and most important, the interests sought to be advanced in Sell and in Duncan are diametrically opposed. In Duncan, the Supreme Court sought to provide a broad protection to criminal defendants by ensuring that they be tried by a jury of their peers. The Court in Sell, however, provided the standard by which the Government may supersede a defendant's due process right to not be forcibly medicated. "As such, a `serious' crime is defined relative to the interested party[-]in the case of jury trials, the defendant[;] in the case of involuntary medication, the government." United States v. Barajas-Torres, 2004 WL 1598914, *3 (W.D.Tex.2004) (finding the charge of illegal reentry without an apparent criminal history to not be a "serious crime" within the meaning of Sell as it is not a crime against the person or property).

Accordingly, for the reasons that the Duncan standard is broad, the Sell standard is narrow—both seek to curb the risk of oppressive governmental conduct. Thus, "[g]iven the divergent interest implicated in the two analyses, the definition . . . is not interchangeable." Barajas-Torres, 2004 WL 1598914, at *3.

2. Seriousness of the Crime and Criminal History

Plaintiff also argues that the Supreme Court's instruction in Sell that the court should "consider the facts of the individual case in evaluating the Government's interest in prosecution" implies that the court should consider a defendant's criminal history and the possible penalty that may be imposed and should not limit the Sell inquiry to crimes against a person or property. (See Pl.'s Suppl. Br. at 11-16.) Defendant argues that "serious crimes" should be limited to those against the person or property and that a person's criminal history is not relevant in a Sell inquiry. (See Def.'s May 14, 2007, Opp'n at 3.)

However, Plaintiff interprets this language too broadly. The Supreme Court states that:

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 defendant's failure to take drugs voluntarily, for example, may mean, lengthy confinement in an institution for the mentally ill — and that would diminish the risks that ordinarily attach to freeing without punishment one who has committed a serious crime. We do not mean to suggest that civil commitment is a substitute for a criminal trial. The Government has a substantial interest in timely prosecution. And it may be difficult or impossible to try a defendant who regains competence after years of commitment during which memories may fade and evidence may be lost. The potential for future 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)).

Sell 539 U.S. at 180, 123 S. Ct. 2174. Accordingly, a reading of Sell indicates that the Court intended to instruct courts to consider individual facts to determine whether the government's interest is lessened. Facts of individual, cases can lessen the government's interest by demonstrating, for example, that it would take years to bring a person to competence in order to stand trial or that by the time of trial the defendant would qualify to be released on time served.

However, in United States v. Valenzuela-Puentes, the Tenth Circuit indicated that "[w]hether a crime is `serious' relates to the possible penalty the defendant faces if convicted, as well as the nature or effect of the underlying conduct for which he was charged." 479 F.3d 1220, 1226 (10th Cir. 2007). In evaluating whether the maximum penalty and advisory guideline range makes the crime charged "serious," the Tenth Circuit also considered the defendant's "long criminal history" and the fact that he was a recidivist as factors that increase the government's interest in prosecuting the defendant. See id. The Tenth Circuit, thus, found that the defendant was charged with a serious crime, "despite there being no indication that the conduct for which he was charged was violent or harmful to others." Id. at 1226-27.

Additionally, it is important to note that in a recent, unpublished opinion, the Ninth Circuit indicated that a defendant's criminal history is relevant in evaluating the government's interest.^[1]See United States v. Espinoza-Pareda, 226 Fed.Appx. 730, 731 (9th Cir.2007) (remanding case for a general failure to make findings pursuant to Harper and Sell). The Ninth Circuit stated that the defendant's "criminal history and the particular circumstances leading up to her arrest and indictment no doubt bear on the importance of the government's interest in bringing her to trial, because the nature of the offense and characteristics of the offender shed light on the seriousness of the crime." Id. However, while the Ninth Circuit indicated that it "bears on" and "sheds light on" the seriousness of the crime, it gave no specificity as to the extent of criminal history or characteristics of the offender necessary to render a crime serious. A rule that simply indicates a broad consideration of criminal history fails to recognize a defendant's liberty interest against forced medication and the Supreme Court's caution that this should apply in limited circumstances.

While the Court is acutely aware of the significant liberty interests at stake, the Court cannot rationally evaluate the circumstances of Defendant's case within a vacuum. However, for the reasons discussed above, the Court declines to adopt a sweeping view of Sell that would allow the Court to consider broad factors such as the possible or maximum penalty imposed, whether Defendant would have a right to a jury trial, or all of Defendant's criminal history. Fundamentally, the Court recognizes the Government's interest in protecting "through application of the criminal law the basic human need for security." Sell, 539 U.S. at 180, 123 S. Ct. 2174. Yet, the lack of elucidation of the meaning of "serious crime" in Sell or in subsequent Ninth Circuit opinions requires the Court to limit itself to a review of the charged offenses or portions of Defendant's criminal history that constitute serious crimes against the person or serious crimes against property as set forth in Sell, in order to err on the side of protecting Defendant's due process rights. See id. Such limitation allows the Court to preserve the Supreme Court's admonishment that cases in which a defendant may be forcibly medicated to restore competency for trial should be limited and rare, while providing the Court with a realistic opportunity to evaluate whether the Government has an important interest in protecting the community.

Here, Defendant has a long history of serious offenses against the person and property. Based on the circumstances Of Defendant's case, the Government meets even the narrow test employed by the Court. Needless to say, the Government would also meet the broader tests used by other circuits. See Valenzuela-Puentes, 479 F.3d at 1226 (possible penalty and the nature or effect of the underlying conduct); Evans, 404 F.3d at 238 (Sixth Amendment right to a jury trial and maximum punishment). Defendant has been indicted for a violation of 8 U.S.C. § 1326(a) and (b) for having been found in the United States after having been excluded, deported, and removed from the United States to Mexico. (See April 20, 2007 Superseding Indictment.) According to the Government, Defendant was ordered deported from the United States on February 25, 1995 and has been removed from the United States on four occasions—December 16, 1987, February 25, 1994, November 16, 1995, and February 28, 2005. In 1985, Defendant was convicted of burglary and sentenced to 180 days in jail and 36 months probation. (See April 23, 2007, Add'l Docs. at 2.) In 1989, Defendant was convicted of vehicle theft and received sixty days in jail and twenty-four months probation. (See id.) In 1991, Defendant was again convicted of vehicle theft. (See id.) In 1992, Defendant was convicted of escape from jail and his probation was revoked. (See id.) That same year, Defendant was also convicted of second degree burglary and vehicle theft, receiving thirty-six months probation and thirty months in custody, respectively. (See id.) In 1996, Defendant was convicted of carjacking involving the use of a firearm and kidnapping and received ten years in prison served concurrently. (See id.)

The nature of Defendant's charge under Section 1326 is Defendant's illegal reentry after having been removed subsequent to a conviction for the commission of an aggravated felony. The characteristics of Defendant no doubt bear here on the seriousness of Defendants illegal reentry. Defendant has been removed four times and has a long track record of committing serious crimes against the person and property, culminating in Defendant's most recent conviction for carjacking with the use of a firearm and kidnapping. The Court cannot turn a blind eye to the obvious need to protect the community from a recurrence of such serious criminal conduct. The Court is not disregarding the charged offense itself but recognizes that the charged offense is related to Defendant's serious and recidivistic criminal history. While a Section 1326 violation alone (or even repeated Section 1326 violations) would not constitute a serious crime, Defendant is charged with illegal reentry subsequent to the commission of aggravated felonies against persons and property, which the Court finds constitutes a serious crime for Sell purposes. Accordingly, the Court FINDS that important governmental interests are at stake.

Lastly, Defendant argues that special circumstances lessen the Government's interest and thus, counsel against forced medication. (See Def.'s Suppl. Br. at 15.) As described above, the Court must consider facts that may lessen this interest such as a "defendant's failure to take drugs voluntarily . . ., [which] may mean lengthy confinement in an institution for the mentally ill and that would diminish the risks that ordinarily attach to freeing without punishment one who has committed a serious crime," the difficulty in trying "a defendant who regains competence after years of commitment during which memories may fade and evidence may be lost," or "the possibility that the defendant has already been confined for a significant amount of time." Sell, 539 U.S. at 180, 123 S. Ct. 2174. Defendant argues that he "has already spent in excess of 20 months in pretrial detention and if forcibly medicated, he will spend a minimum of four additional months if he can even be restored to competency under a forced medication regimen." (See Def.'s Suppl. Br. at 15.)

However, whether Defendant faces a maximum penalty of 20 years (or 10 years as disputed by Defendant) or an advisory sentencing range of 100-125 months, Defendant's likely sentence if convicted is still significantly longer than the time already spent in custody. Additionally, there is no indication that Defendant's length of confinement would diminish memories or that evidence is a risk of being lost. In fact, evidence in a Section 1326 conviction generally relies primarily on documentary evidence in a defendant's immigration file. Lastly, if Defendant is not restored to competency for trial, it is unlikely that he will continue to be committed, but would rather be turned over for deportation. Thus, the Court FINDS that the Government's interest has not diminished to the point of counseling against forced medication.

Accordingly, the Court FINDS that the Government has an important interest in bringing Defendant to trial and Defendant is charged with a "serious crime" for purposes of a Sell hearing.

C. Likelihood of Rendering Defendant Competent to Stand Trial and Potential Side Effects

The Court must next "conclude that involuntary medication will significantly further those concomitant state interests." Sell, 539 U.S. at 181, 123 S. Ct. 2174 (emphasis in original). In addition, the Court "must find that administration of the drugs is substantially likely to render the defendant competent to stand trial[,]" and "Nit the same time, it must find that administration of the drugs is substantially unlikely to have side effects that will interfere significantly with the defendant's ability to assist counsel in conducting a trial defense, thereby rendering the trial unfair." Id. Recognizing the "importance of the defendant's liberty interest, the powerful and permanent effects of anti-psychotic medications, and the strong possibility that a defendant's trial will be adversely affected by the drug's side-effects all counsel in favor of ensuring that an involuntary medication order is issued only after both sides have had a fair opportunity to present their case and develop a complete and reliable record." United States v. Rivera-Guerrero, 426 F.3d 1130, 1138 (9th Cir.2005). "While it is unclear what the exact percentage chance of success should be, a court in the Southern District of California has held that a 50 percent probability of success is insufficient." United States v. Cruz-Martinez, 436 F. Supp. 2d 1157, 1160 (S.D.Cal.2006) (citing United States v. Rivera-Morales, 365 F. Supp. 2d 1139, 1141 (S.D.Cal.2005)). However, an "80 percent chance of success appears to be sufficient." Id. (citing United States v. Bradley, 417 F.3d 1107, 1115 (10th Cir.2005)). "Also, the Court must examine closely the government's expert testimony, in particular, its reasoning and conclusions," and "[c]onclusory statements by the government's experts that antipsychotic drugs are substantially likely to render a defendant competent are inadequate." Id. (citing United States v. Evans, 404 F.3d 227, 233-34, 242-43 (4th Cir. 2005)). For the reasons discussed below, the Court FINDS that the Government has demonstrated by clear and convincing evidence that involuntary medication is substantially likely to render Defendant competent to stand trial and it is unlikely that the possible side effects will interfere significantly with. Defendant's ability to assist counsel during trial.

At the April 23, 2007 hearing, Dr. Preston testified that during her initial interview of Defendant, Defendant "demonstrated prominent psychotic symptoms; that is, he expressed the paranoid delusional belief that people were attempting to harm him and reported that he could hear them talking about him." (Apr. 23, 2007, Hr'g Tr. at 8.) At that time, Dr. Preston indicated that she "offered the diagnosis of psychotic disorder not otherwise specified," which "is a type of psychotic disorder that is used when there is little information regarding a person's history available and . . . as a result, a person is unable to determine which type of psychotic disorder best fits." (Id. at 9.) Based on the ongoing treatment and encounters with Defendant since that initial interview, Dr. Preston testified that "with continuing observations and review of the records, [she found] that a more appropriate diagnosis is likely paranoid schizophrenia," (See id. at 12.) Specifically, Dr. Preston stated that her initial concern was psychotic symptoms combined with manic symptoms, but that "with several months of observation, there is no indication that he has been manic during that time, and it appears that his hallucinations and paranoid delusions are the prominent symptoms." (See id. at 12-13.) "Those two symptoms are the most consistent with the diagnosis of paranoid schizophrenia." (See id. at 13.) Dr. Preston indicated that this is not necessarily a different diagnosis, but rather a "more refined diagnosis." (See id. at 39.) Dr. Sarrazin testified that he found the revised diagnosis to be appropriate based on his continued experience of paranoid delusions as well as reported auditory hallucinations, which "all fits into the diagnosis of chronic paranoid schizophrenia." (See id. at 63.)

Both of Plaintiff's experts, Dr. Preston and Dr. Sarrazin, testified that involuntary treatment with antipsychotic medication is substantially likely to restore Defendant to competency. (See id. at 14, 64.) As discussed in further detail below, the opinions of Dr. Preston and Dr. Sarrazin are based on a previous study, statistical compilations, Defendant's history, interactions with Defendant, and the personal experience of each expert.

As an initial matter, it is important to note that Defendant has responded positively to antipsychotic medication, specifically, Risperdal, in the past. Defendant has also previously expressed a willingness to take Risperdal. Dr. Sarrazin testified that at Defendant's initial interview, Defendant agreed to take Risperdal at that time and that he had discussed the potential side effects of Risperdal. (See id. at 58.) Dr. Sarrazin's review of the record indicated that it was unclear whether Defendant actually took one dose, but that Defendant subsequently refused to continue taking the medication. (See id. at 58; May 21, 2007, Hr'g Tr. at 50-51.) However, Dr. Sarrazin testified that based on the information received from psychologists at the San Diego institution, Defendant had previously voluntarily taken Risperdal and was "competent to proceed when he was taking Risperdal." (Apr. 23, 2007, Hr'g Tr. at 63.) Thus, Dr. Sarrazin recommended that Defendant be medicated beginning with Risperdal since he has "a history that shows that he tolerated the medication and that he responded to it to the point where the psychologists felt that he was competent to proceed." (Id. at 65, 56 ("sonic evidence from prior evaluations that, at 4 milligrams [of Risperdal] a day, Mr. Jaramillo was found to be competent."))

"As the Supreme Court has explained, at a Sell hearing the court is required to consider specific drugs, their unique side effects, and their medical appropriateness. Specificity as to the medications to be administered is critical." Rivera-Guerrero, 426 F.3d at 1140 (citing Sell, 539 U.S. at 181, 123 S. Ct. 2174 ("The specific kinds of drugs at issue may matter . . . [because afferent kinds of anti-psychotic drugs may produce different side effects and enjoy different levels of success." (emphasis added)); id. at 185, 123 S. Ct. 2174 ("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.") (citing Riggins, 504 U.S. at 142-45, 112 S. Ct. 1810) (emphasis added)). Accordingly, Dr. Sarrazin has provided a specific treatment plan. Dr. Sarrazin testified that he plans to first attempt medicating Defendant with Risperdal at a dosage of one milligram per day, escalating the dose over time to four milligrams a day. (See id. at 67.) Dr. Sarrazin intends to escalate the dosage slowly due to the side effects, such as sedation, dry mouth, and constipation, that people may experience if the dose is escalated too quickly. (See id.) If Defendant did not respond to the Risperdal or experienced side effects, Dr. Sarrazin would recommend another second generation medication antipsychotic, such as Geodon or Abilify.^[2](See id. at 65.) Dr. Sarrazin also testified that based on Defendant's past willingness (at least initially) to take Risperdal orally, he would attempt to discuss the Court order with Defendant and persuade Defendant to take the medication. (See id. at 65-66.) However, if Defendant does not comply, Dr. Sarrazin testified that it may be necessary to use an intermuscular injectable medication, such as Haloperidol or Haldol. (See id. at 66.) Dr. Sarrazin recommended starting with a dose of five milligrams of Haldol. (See id. at 67.) If an injection of Haldol is necessary, Dr. Sarrazin intends to again offer the Risperdal the next day. (See id. at 66.) If after three to four days of requiring an injectable medication Defendant is still not agreeing to take the oral medication, Dr. Sarrazin recommended switching to the long-acting Haloperidol, which only needs to be injected every two to four weeks. (See id. et 67.) Dr. Preston and Dr. Sarrazin agreed that it would likely take between four to eight months to restore Defendant to competency. (See id. at 64.)

Dr. Preston also testified as to the support for her opinion that Defendant can be restored to competency. Dr. Preston first cited to a 1993 study from the American Academy of Psychiatry and the Law which found that out of a sample of 68 patients that were treated with antipsychotic medication, 87 percent were restored to competency. (See id. at 15.) Forty-five out of the sixty-eight patients were treated involuntarily. (See June 22, 2007, Hr'g Tr. at 29.) Dr. Preston also testified as to a 2003 Federal Bureau of Prisons' study that showed that out of 285 patients, only 15 percent were not restored to competency with treatment. (See Apr. 23, 2007, Hr'g Tr. at 15.) Dr. Preston testified that 59 of the 285 patients required involuntary medication and approximately 75 percent of those involuntarily medicated were restored to competency. (See June 22, 2007, Hr'g Tr. at 31.)

Dr. Preston also testified as to her own success rate on the individual cases she has overseen and analyzed her data based on categorical limitations. Dr. Preston testified that out of 76 patients, 58 were treated with medication. (See id. at 10.) Out of those 58 patients, 51 (or 87 percent) were restored to competency. (See id.) Further, out of those 58 patients, 27 were involuntarily medicated, and 20 (or 74 percent) out of these 27 individuals were restored to competency. (See id. at 11.) Nine of Dr. Preston's patients were both diagnosed with Defendant's diagnosis, paranoid schizophrenia, and Dr. Preston had a 100 percent success rate in restoring this group to competency. (See id. at 12.) All three of the nine patients diagnosed with paranoid schizophrenia that were involuntarily medicated were restored to competency. (See id. at 12-13.) Additionally, 26 of her patients were treated with Haldol, and 22 out of the 26 were restored to competency, (See id. at 16.) Eighteen of those treated with Haldol were treated involuntarily, and 14 out of these 18 patients were restored to competency. (See id. at 20.) However, Dr. Preston was only definitively aware of seven patients that were put on medication solely for purposes of restoring competency under Sell.^[3](See id. at 37.) Out of these 7, 5 were placed on Haldol and all 5 were restored to competency. (See id. at 37-38.) Narrowing it down further, Dr. Preston testified that two of her patients were diagnosed with paranoid schizophrenia and involuntarily medicated with Haldol, and these two patients were restored to competency. (See id. at 41-42.) Additionally, Dr. Sarrazin testified that out of the 25-30 people he has treated with Haldol for restoration of competency, 70-80 percent were restored, (See May 21, 2007, Hr'g Tr. at 37.)

While it is not Defendant's burden to show that involuntary antipsychotic medication does not have a substantial likelihood of restoring Defendant to competency, the testimony of Defendant's expert, Dr. Carroll, adds little in support of the view that treatment will not be effective. Dr. Carroll concluded that "[a]s the Defendant has demonstrated that he is `hostile, paranoid, and uncooperative,' it is unlikely that forced medications will decrease his paranoid thoughts." (Carroll Decl. at 3.) Dr. Carroll states that "[f]orcing medications on him will likely reinforce this level of paranoia," and "[w]hile the medications may improve his [disorganized thinking], it is unlikely that they will improve his suspicious thoughts and will only increase these thoughts." (See id.) Dr. Carroll gave the opinion that "involuntary medication is not likely to restore the Defendant to competence." (See id.; May 21, 2007, Hr'g Tr. at 76.) Dr. Carroll testified that "although the medications will calm him down and make him think more clearly . . . [, the] paranoia is [not] simply just going to go away because that's more fixed in him, more of a delusion than just thoughts that there are voices out there, that he actually has these beliefs." (See May 21, 2007, Hr'g Tr. at 75-76.)

However, Dr. Carroll did not actually interview or observe Defendant. Additionally, Dr. Carroll could not cite to any specific studies for the contention that it would be likely that forced medication would increase the delusions of someone with such a severe level of delusion. (See June 15, 2007, Hr'g Tr. at 59.) Dr. Carroll also testified that in the "vast majority of [his] cases, [his opinion was that] the medication would restore [a person] to competency," and this included individuals who had paranoid schizophrenia. (See id. at 18-19.) Dr. Carroll has also never been responsible for restoring someone to competency. (See id. at 19.) His conclusion was based on his opinion that "as a psychiatrist, [he asked himself]: what is more likely to scare somebody [a person wearing a helmet and a flak jacket or a nurse or someone in civilian clothing]?" (May 21, 2007, Hr'g Tr. at 106.) This conclusion, he stated, was based on both common sense and his medical opinion. (See id.)

Defendant also argues that the 1993 study used by Dr. Preston did not distinguish between voluntary and involuntary medication of patients and thus, the 87 percent success rate is suspect because voluntarily medicated individuals have a higher success rate. (See Def.'s Suppl. Br. at 17-18.) However, Dr. Preston testified that she wouldn't characterize the likelihood of restoring people to competency when they are voluntarily medicated as much higher, and that typically it is higher because those individuals are less ill and demonstrate better insight into their illness. (See June 22, 2007, Hr'g Tr. at 30.) Defendant also argues that Dr. Preston's own clinical data should be broken down according to Defendant's specific diagnosis, paranoid schizophrenia. However; Dr. Preston testified that "with any of the psychotic disorders, whether it be schizophrenia, delusional disorders, schizo-effective disorder, or bipolar disorder with psychotic features, all of them have the same course of treatment, which would include antipsychotic medication." (See Apr. 23, 2007, Hr'g Tr. at 50.) When asked if this would change the success rate, Dr. Preston testified "not meaningfully" and that there is "not a large difference at all." (See id. at 50-51.) In fact, Dr. Sarrazin testified that "people that are paranoid delusional, paranoid psychotic, have a better outcome than people that are disorganized psychotic, schizophrenic, catatonic schizophreni[c], or undifferentiated paranoid" and that "if you are going to be schizophrenic, it's better to be paranoid schizophrenic." (See id. at 73-74.)

Additionally, Defendant argues that Defendant, who has a history of drug use including methamphetamine use, could have brain damage, in which case, Dr. Sarrazin testified that antipsychotic drugs will have no positive effect. (See Def.'s Suppl. Br. at 10; May 21, 2007, Hr'g Tr. at 38.) However, there is evidence suggesting that Defendant has responded positively to antipsychotic medication in the past.

Accordingly, the Government has shown that Defendant has in the past responded positively to and become competent through the administration of antipsychotic medication, namely Risperdal. Defendant, thus, has a history of competency while on antipsychotic medications. Dr. Preston and Dr. Sarrazin also testified as to the specific medication plan proposed for Defendant based on Defendant's condition and history. Additionally, Dr. Preston and Dr. Sarrazin both testified as to their high success rates with restoring individuals to competency. Dr. Preston also testified to her high success rate on individuals with Defendant's diagnosis of paranoid schizophrenia and with the medication proposed for Defendant. Additionally, testimony demonstrates that success rates do not differ significantly based on the specific diagnosis of the patient or whether the patient was voluntarily or involuntarily medicated. Thus, for the reasons discussed above, the Court FINDS that the Government has shown by clear and convincing evidence that involuntary medication is substantially likely to render Defendant competent to stand trial.

As discussed above, the Court "must [also] find that administration of the drugs is substantially unlikely to have side effects that will interfere significantly with the defendant's ability to assist counsel in conducting a trial defense, thereby rendering the trial unfair." Sell, 539 U.S. at 181, 123 S. Ct. 2174. Here, testimony demonstrates that the proposed medication is unlikely to have side effects which would interfere with Defendant's ability, to assist in his trial. Dr. Preston testified that "as the treating and evaluating psychologist, [she] would be monitoring Mr. Jaramillo's response to the medication, asking him if he were experiencing any types of side effects, and . . . working closely with Dr. Sarrazin." (See Apr. 23, 2007, Hr'g Tr. at 17.) Dr. Preston testified that side effects of first generation medications include lethargy, restlessness in the feet or akathisia, and muscle stiffness. (See id. at 19.) Dr. Preston testified that if lethargy would occur, Dr. Sarrazin typically moves the medication dosage to night time. (See id.) Dr. Sarrazin also testified that while these can be very common early on, they usually resolve after two to four days, and can be helped by modifying the dose or adding other medications, such as cogentin and artane, to the regimen. (See id. at 69.) Dr. Sarrazin also testified about the potential of dystonia or abnormal movements of the face or parts of the body. (See id. at 68.) However, Dr. Sarrazin testified that they will likely inject the haloperidol with cogentin to reduce the likelihood of dystonias. (See id. at 69.)

Another potential side effect of first generation drugs is tardive dyskinesia, which is permanent and characterized by involuntary movements of the trunk and the face. (See id. at 19.) However, Dr. Preston testified that it is unlikely that this would develop during the short period of time that an individual would be an the medication for competency restoration. (See id.) Dr. Sarrazin also testified that tardive dyskinesia is more common in the higher dosages and longer periods of time and the incidence rate varies between 3 and 5 percent. (See id. at 70.) Dr. Carroll agreed that this condition is more common in women and older individuals. (See June 15, 2007, Hr'g Tr. at 35.) Another possible side effect is neuroleptic malignant syndrome where an individual's body is not able to regulate temperature and can cause muscle breakdown and kidney problems. (See Apr. 23, 2007, Hr'g Tr. at 70.) However, this is a very uncommon side effect (less than 1 percent) and is reversible. (See id. at 70-71.) Second generation antipsychotic medications can have side effects such as sedation and lightheadedness that usually go away over two to three days. (See id. at 70.) Another side effect is elevated glucose with diabetes. (See id. at 71.) However, this is most closely associated with cyprexa, which is not being recommended for Defendant. (See id. at 19.) Also, Dr. Sarrazin testified that they monitor monthly glucose levels, cholesterol levels, lipid profiles, and body weight. (See id. at 71.)

Defendant also argues that while Springfield has a staff able to monitor Defendant at all times, once Defendant attains competence and leaves the facility, he will no longer be monitored. (See Def.'s Suppl. Br. at 10.) Dr. Preston and Dr. Sarrazin both testified that once Defendant leaves Springfield, they will be unable to monitor his medical regime or side effects. (See Apr. 23, 2007, Hr'g Tr. at 47; May 21, 2007, Hr'g Tr. at 48.) However, Dr. Preston testified that they "often try to coordinate with the Court proactively so that [they] minimize the amount of time that they are sitting waiting for court proceedings" and in which time they could stop taking the medication. (Apr. 23, 2007, Hr'g Tr. at 47.) Additionally, all monitoring will not cease in pretrial facilities, as Defendant would be under the observance of prison staff. In the case that Defendant again becomes incompetent, the Court would declare Defendant as such and stop trial proceedings. Defendant also argues that minimizing the time that Defendant is in San Diego prior to trial would deprive defense counsel of the much needed pre-trial access to Defendant. (See Def.'s Suppl. Br. at 10.) However, Dr. Preston testified that accommodations would be made for video conferencing. (Apr. 23, 2007, Hr'g Tr. at 47.) There is no indication that this arrangement, while not ideal, would be insufficient.

While Dr. Preston and Dr. Sarrazin testified that antipsychotic medications have typical side effects, these side effects generally resolve after two to four days and can be lessened by modifying the dosage amount or the timing of the medication or by adding different medications. Additionally, the more serious side effects are rare and unlikely to occur in Defendant's case. Defendant's condition will also be actively monitored for any adverse reaction to the medications. Accordingly, the Court FINDS that the administration of the drugs is substantially unlikely to have side effects that will interfere significantly with Defendant's ability to assist counsel in conducting a trial defense.

D. Necessity of Involuntary Medication

"Third, the court must conclude that involuntary medication is necessary to further those interests. The court must find that any alternative, less intrusive treatments are unlikely to achieve substantially the same results." Sell, 539 U.S. at 181, 123 S. Ct. 2174 (emphasis in original). As discussed above, the Government has an important governmental interest in restoring Defendant to competency in order to stand trial. Additionally, evidence demonstrates that there is no alternative, less intrusive treatment that would achieve the same results.

Dr. Preston testified that "antipsychotic medication is necessary to restore the Defendant to competence." (Apr. 23, 2007, Hr'g Tr. at 14.) Dr. Sarrazin agreed that antipsychotic medications are necessary to restore Defendant to competency. (See id. at 63.) Dr. Preston also stated that she does not "believe that any alternative treatment available would alleviate his paranoid delusions or his auditory hallucinations." (See id. at 21.) Dr. Preston gave the opinion that "psychotherapy group treatment or education, although they could be helpful in their own right, they are not able to make delusions or hallucinations go away," and Defendant "is clearly uncooperative and unwilling to participate in individual psychotherapy." (See id) However, if Defendant improves with medication, Dr. Preston hopes to move Defendant into an unlocked housing unit to participate in competency restoration group meetings. (See id. at 22.) Accordingly, "these other forms of treatment would really be complementary to a course of medication and not separate, on their own, sufficient to restore him to competency." (See id.) Dr. Carroll also agreed that there are no viable alternatives, with the same level of effectiveness, to antipsychotic medication, especially for someone with paranoia. (See June 15, 2007, Hr'g Tr. at 14.) Additionally, Dr. Preston and Dr. Sarrazin plan to first attempt to communicate to Defendant that a court order has been issued in the hope of having Defendant voluntarily comply. (See Apr. 23, 2007, Hr'g Tr. at 22.) However, based on Defendant's uncooperative behavior, this option is unlikely.

Accordingly, the Court FINDS that the Government has shown by clear and convincing evidence that there is no alternative, less intrusive treatment that would achieve the same results.

E. Appropriateness of the Administration of the Medication in Light of Defendant's Medical Condition

Lastly, "the court must conclude that administration of the drugs is medically appropriate, i.e., in the patient's best medical interest in light of his medical condition." Sell, 539 U.S. at 181, 123 S. Ct. 2174 (emphasis in original). In evaluating this prong, the Court must consider that "[d]ifferent kinds of antipsychotic drugs may produce different side effects and enjoy different levels of success." Id.

Defendant has been diagnosed with paranoid schizophrenia. (See Apr. 23, 2007, Hr'g Tr. at 13, 63). Dr. Preston testified as to Defendant's condition and found Defendant to be "very ill and unable to communicate meaningfully." (See id. at 32.) According to Dr. Preston, "at the present time, he is not on psychiatric medication, so his symptoms are very acute. He is very paranoid, very psychotic." (See id. at 42.) Dr. Preston testified that "the current standard in the community for the treatment of schizophrenia is antipsychotic medication." (Id. at 14.) Dr. Sarrazin testified that it is clearly medically appropriate to treat Defendant's severe mental illness. (See id. at 61.) Defendant's expert, Dr. Carroll, also agreed that administering antipsychotic medications on Defendant is medically appropriate based on the records that he has reviewed. (See May 21, 2007, Hr'g Tr. at 101.) As indicated above, no alternatives exist with the same level of effectiveness for treating someone with paranoia.

As discussed above, Dr. Preston and Dr. Sarrazin testified at length as to the specific, potential side effects, the typicality of the side effects, and measures that will be taken to reduce the side effects. While antipsychotic medications have common side effects, Dr. Sarrazin testified that these side effects generally resolve after two to four days and can be lessened by modifying the dosage amount or the timing of the medication or by adding different medications. (See Apr. 23, 2007, Hr'g Tr. at 69.) The more serious side effects are rare and unlikely to occur in Defendant's case. (See id. at 19, 70-71.) Additionally, Dr. Preston and Dr. Sarrazin will be actively monitoring Defendant's reaction to the medications: (See id. at 17, 71.) The Springfield facility also has a 24-hour-a-day nursing and clinical staff to monitor individuals on medication. (See id. at 30.)

Accordingly, having considered Defendant's current condition and the specific kinds of antipsychotic medication that are proposed to be used on Defendant, the Court FINDS that the Government has shown by clear and convincing evidence that administration of antipsychotic drugs is medically appropriate.

Conclusion

For the reasons set forth above, the Court GRANTS the Government's Motion for Court-Ordered Medication of Defendant for competency restoration. Defendant's oral Request for a Stay of this Order is DENIED.

IT IS SO ORDERED.

NOTES

[1] Recognizing that there is no Ninth Circuit opinion directly addressing the "serious crime" issue with respect to criminal history, the Court looks to the unpublished opinion in Espinoza-Pareda solely for guidance and not as controlling authority or precedent. See 9th Cir. R. 36-3.

[2] "Anti-psychotic medication is currently divided into two categories: `typicals' [or first-generation] and `atypicals' [or second-generation]. Typicals are older medications that were relied upon extensively during the latter half of the 20th century to treat psychosis. Atypicals are the next generation of anti-psychotics. There is some evidence that atypicals cause less side-effects than typicals. However, some believe that atypicals are at best no better than the typicals, and at worst, responsible for a different set of potentially more dangerous side-effects." Rivera-Guerrero, 426 F.3d at 1135 n. 2. First-generation antipsychotic medication includes Haldol and Haloperidol and second general antipsychotic medication includes Risperdal. Dr. Sarrazin testified that second-generation antipsychotic medications were developed largely to avoid the side effects caused by first-generation antipsychotic medications, and that first-generation antipsychotic medications have a greater incidence of side effects than second-generation medications. (See May 21, 2007, Hr'g Tr. at 20-21.)

[3] According to Dr. Preston, prior to the Sell decision in 2003, FMC Springfield did not differentiate between medicating individuals for competency restoration or for other purposes, such as Harper-type grounds. (June 22; 2007, Hr'g Tr. at 35.) Thus, prior to 2003, individuals that were involuntarily treated were subject to a "due process hearing," which included "competency restoration . . . as one of the criteria for medication," as well as Harper-type grounds. (See id.)