United States v. Diaz

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 12, 2011
No. 09-15421 JOHN LEY
________________________ CLERK

D. C. Docket No. 04-00251-CR-BBM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL A. DIAZ,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(January 12, 2011)

Before HULL and MARCUS, Circuit Judges, and COOKE,* District Judge.

HULL, Circuit Judge:

*
Honorable Marcia G. Cooke, United States District Judge for the Southern District of
Florida, sitting by designation.
 Defendant Michael Diaz appeals from the district court’s order granting

permission for the government to medicate him involuntarily with anti-psychotic

medication to render him competent to stand trial for two armed robberies and

other firearm offenses. After review and oral argument, we affirm. Diaz has not

shown that the district court clearly erred in finding that the government satisfied

its burden under Sell v. United States, 539 U.S. 166, 123 S. Ct. 2174 (2003) and in

granting permission to medicate Diaz involuntarily.

I. BACKGROUND

A. First Competency Hearing and Trial

In July 2004, a superseding indictment charged Diaz with: (1) armed bank

robbery on January 27, 2004, in violation of 18 U.S.C. § 2113(a) and (d) (“Count

1”); (2) carrying and using a firearm in connection with a crime of violence—i.e.,

armed bank robbery, as charged in Count 1—in violation of 18 U.S.C. §

924(c)(1)(A) and (c)(1)(A)(iii) (“Count 2”); (3) another armed bank robbery on

April 8, 2004, in violation of 18 U.S.C. § 2113(a) and (d) (“Count 3”); (4) using a

firearm in connection with a crime of violence—i.e., armed bank robbery, as

charged in Count 3—in violation of 18 U.S.C. § 924(c)(1)(A) and (c)(1)(A)(iii)

(“Count 4”); and (5) possession of a firearm as a convicted felon, in violation of 18

2
U.S.C. §§ 922(g) and 924(a)(2) (“Count 5”). At the time of his arrest, Diaz was on

supervised release for a prior federal conviction for being a felon in possession of a

firearm in the Eastern District of Louisiana.

On March 7, 2005, the district court ordered the Bureau of Prisons (“BOP”)

to conduct a psychiatric examination of Diaz to determine his competency to stand

trial. From April 4 to May 4, 2005, and again from November 14, 2005 to January

3, 2006, Diaz was evaluated by Dr. Jorge Luis of the Federal Detention Center in

Miami, Florida (“FDC Miami”). Dr. Luis conducted extensive interviews with

Diaz and administered several psychological tests, including tests to assess

malingering psychological problems. Dr. Luis concluded that Diaz was competent

to stand trial.

On February 23, 2005, at the request of Diaz’s counsel, Diaz was evaluated

by Michael Hilton, M.D., a psychiatrist. Dr. Hilton’s report indicated that there

was limited information regarding Diaz’s previous mental health treatment.

During his interview, Diaz provided Dr. Hilton with an explanation of his

experiences beginning at age 13, whereby “Michael Anthony Diaz was

vanquished” and “subsequently took on a new identity of ‘MAD-one.’” At age 23,

Diaz changed identities again and “JahI” took over “as a result of spiritual growth.”

JahI was then vanquished and “Ichaelimaye,” or “Iko,” was “re-earthed.” Diaz

3
later became “Ineyah Imaye,” or “Yah,” and then later “Ieh” was “re-earthed.” Dr.

Hilton noted that Diaz’s “conversation flow is just about impossible to follow,”

determined that Diaz was suffering from “undifferentiated schizophrenia,” and

opined that he was not competent to stand trial.

In October 2005, the district court conducted a hearing at which both Dr.

Luis and Dr. Hilton testified.1 The district court found Diaz competent to stand

trial. Diaz later moved to dismiss his attorney and proceed pro se. The district

court granted Diaz’s motion, but ordered that his attorney remain as stand-by

counsel during the trial.

In a March 2006 bench trial, Diaz represented himself. The district court

found Diaz guilty of all five counts in the superseding indictment, and sentenced

him to a term of 584 months’ imprisonment. Diaz appealed. In August 2008, this

Court concluded that Diaz did not knowingly waive his right to a jury trial, and

vacated his convictions as to all five counts. See United States v. Diaz, 540 F.3d

1316 (11th Cir. 2008).

B. Second Competency Hearing

At some point Diaz was placed at the United States Penitentiary in

Lewisburg, Pennsylvania (“USP Lewisburg”). The staff at USP Lewisburg

1
More details about Dr. Hilton and Dr. Luis’s testimony are provided in this Court’s
opinion in United States v. Diaz, 540 F.3d 1316 (11th Cir. 2008).

4
referred Diaz to a telepsychiatry clinic for a psychiatric consultation to determine

whether he suffered from mental illness and would benefit from medication.2 On

July 24, 2008, Dr. James K. Wolfson, located at the Mental Health Evaluation Unit

at the U.S. Medical Center for Federal Prisoners in Springfield, Missouri

(“Springfield medical center”), conducted a telepsychiatric evaluation of Diaz.

Dr. Wolfson concluded that Diaz was psychotic, substantially impaired, and should

take anti-psychotic medication. Diaz refused to take medication voluntarily. Dr.

Wolfson opined that Diaz would not meet the criteria for involuntary medication,

and, therefore, did not prescribe medication for him.

On December 31, 2008, Diaz was admitted to Springfield medical center.

Diaz was initially placed in the open population, but was later placed in a locked

unit. From December 31, 2008 to January 31, 2009, Diaz was evaluated by Dr.

Christina Pietz, a forensic psychologist at Springfield medical center. Dr. Pietz’s

forensic report, dated February 3, 2009, stated that Diaz refused to participate in all

clinical interviews, refused to complete psychological testing, and refused to

answer any questions about his background.

On May 6, 2009, the district court conducted a second competency hearing

at which Dr. Pietz testified. In a written order, the court found that Diaz was

2
“Telepsychiatry” is a method of treating patients remotely via video screen. It is used if
the institution housing a patient does not have access to psychiatrists on-site.

5
incompetent to stand trial. The court’s order directed that (1) Diaz be committed to

the custody of the U.S. Attorney General and (2) the Attorney General hospitalize

Diaz for a maximum period of four months to determine whether there was a

substantial probability that, in the foreseeable future, he could attain the capacity to

stand trial. The court recommended that Diaz be returned to Springfield medical

center so that he could have continuity of treatment and surroundings.

C. Diaz’s Re-Admission to Springfield Medical Center

On May 21, 2009, Diaz was re-admitted to Springfield medical center. On

May 27, 2009, he received advance written notice that a Due Process Involuntary

Medication Hearing would be held on June 3, 2009. After a hearing, Dr. Carlos

Tomelleri concluded that he could not approve involuntary medication because

Diaz was not likely to cause harm to himself or others. Dr. Tomelleri’s report

stated that: (1) Diaz said that he was not mentally ill and “did not wish to consider

treatment with psychotropic medication”; (2) since Diaz’s admission to Springfield

medical center, Diaz “has refused psychological testing, [and] has refused to attend

required orientation proceedings”; and (3) psychotherapy and similar options

would be futile. Dr. Tomelleri’s report recommended a treatment of psychotropic

medication, which would have a “substantial probability” of restoring Diaz to

competency to proceed with his legal case. However, given that Diaz did not pose

6
a danger to himself or to others, the BOP could not involuntarily medicate Diaz

without a court order.

The district court next scheduled a hearing pursuant to the Supreme Court’s

decision in Sell v. United States, 539 U.S. 166, 123 S. Ct. 2174 (2003), which

addressed involuntary medication for the sole purpose of rendering a defendant

competent to stand trial.3 Sell laid out these four standards the government must

satisfy for involuntary medication to render a defendant competent to stand trial:

(1) important government interests must be at stake, (2) involuntary medication

must significantly further the state interests in assuring a fair and timely trial, (3)

involuntary medication must be necessary to further the state interests, and (4)

administration of the medication must be “medically appropriate, i.e., in the

patient’s best medical interest in light of his medical condition.” Id. at 180-81, 123

S. Ct. at 2184-85. Because this appeal turns largely on whether the district court

3
In Washington v. Harper, 494 U.S. 210, 110 S. Ct. 1028 (1990), the Supreme Court held
that the Due Process Clause permits a state to treat a prison inmate with anti-psychotic drugs
against his will when the inmate has a serious mental illness, is dangerous to himself or others,
and treatment is in his medical interest. Id. at 227, 110 S. Ct. at 1039-40, In Sell, the Court
stated that “[a] court need not consider whether to allow forced medication” to render a
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 individual’s dangerousness, or purposes
related to the individual’s own interests where refusal to take drugs puts his health gravely at
risk.” 539 U.S. at 181-82, 123 S. Ct. at 2185. A court, when considering whether to approve
involuntary medication to render a defendant competent to stand trial, “should ordinarily
determine whether the Government seeks, or has first sought, permission for forced
administration of drugs on these other Harper-type grounds; and, if not, why not.” Id. at 183,
123 S. Ct. at 2186.

7
erred in finding the government satisfied two of these factors, we review in great

detail the evidence at the Sell hearing.

D. Government’s Witnesses at Sell Hearing

On September 8, 2009, the district court conducted the Sell hearing, during

which counsel represented Diaz.4 Addressing the court, Diaz personally stated that

he retained “sovereign immunity” from the judicial proceedings, was not a citizen

of the United States and did not adhere to the laws of the United States, and

invoked his right against self-incrimination.

The government responded that it had a strong and important interest in

bringing Diaz’s case to trial because of the violent nature of his crimes–two armed

bank robberies and a felon-in-possession charge–and because of its interest in a

speedy trial. The government presented evidence on the Sell factors.

1. Dr. Christina Pietz

The government first called Dr. Pietz to testify. Dr. Pietz, a psychologist, is

Diaz’s primary clinician at Springfield medical center. Dr. Pietz opined that Diaz

suffers from paranoid schizophrenia. On May 21, 2009, Diaz was re-admitted to

Springfield medical center and, since being re-admitted, Diaz has refused to be

4
On the day of the Sell hearing, Diaz’s defense attorney, Timothy R. Saviello, requested a
continuance until later in the day to prepare for the hearing. The district court granted his
request for a continuance until 1:00 pm that same day.

8
interviewed by Dr. Pietz and has refused to take any medication. Diaz has also

refused the staff’s attempts to administer medication to him and refused to

participate in therapy sessions or undergo any other type of treatment.

Because Diaz would not take medicine, Springfield medical center

conducted the due process hearing to determine whether they forcibly could

medicate Diaz. After this hearing, Dr. Tomelleri found that (1) Diaz suffers from a

mental illness that requires medication, but (2) Diaz is not dangerous to himself or

others, and (3) thus the medical center staff could not forcibly medicate him .

Dr. Pietz opined that the administration of anti-psychotic drugs is medically

appropriate for Diaz because his condition will not improve and could deteriorate if

he does not receive medication. Dr. Pietz pointed out that Diaz’s condition has

worsened over the past few years. Dr. Pietz concluded that there are no alternative

treatments that would be effective in treating Diaz’s disorder. The potential

alternative treatment options are individual therapy, group therapy, or recreational

therapy. However, Diaz is not a candidate for those types of treatments due to his

demeanor, his refusal to cooperate with mental health professionals, and his

inability to function in an open group population. Diaz was not offered

opportunities to participate in individual or group therapy because those therapies

were not an option so long as he was unmedicated and held in a locked unit.

9
 In any case, Dr. Pietz has no reason to believe that Diaz would participate in

a competency restoration program or any other form of group therapy. While at

USP Lewisburg, Diaz was offered an opportunity to participate in a program called

the “Challenge Program,” designed to help inmates after they are released into

society, but Diaz refused to participate. Dr. Pietz also explained that medical-

center staff had attempted to educate Diaz regarding the benefits of anti-psychotic

medication, but that he had resisted these efforts.

Dr. Pietz further testified that the medication that she and Dr. Robert

Sarrazin, the medical center’s chief of psychiatry, recommended for Diaz has a

substantial likelihood of rendering Diaz competent to stand trial. For over 19

years, Dr. Pietz has treated individuals who were found to be incompetent to stand

trial. Between 60% and 70% of these patients were restored to competency with

medication. As for the individuals who did not attain competency, Dr. Pietz

explained that some of those individuals suffered from cognitive defects, such as

mental retardation, which rendered them unresponsive to medication. Dr. Pietz

stated that if the medical staff cannot treat Diaz with medication, they will never be

able to restore his competency to stand trial.

Addressing the potential side effects of anti-psychotic medication, Dr. Pietz

testified that such medication will likely improve Diaz’s ability to think in a

10
rational and organized manner and will likely decrease his paranoia and irritability.

As a result, Dr. Pietz believes that anti-psychotic medication will assist Diaz in

his cooperation with his attorney.

On cross-examination, Dr. Pietz testified that she last saw Diaz

approximately a month prior to testifying. When Diaz returned to Springfield

medical center in May 2009, Diaz did converse with her “at some length.”

However, toward the end of her more recent period of evaluation, Diaz typically

would not speak to Dr. Pietz or would engage in only limited conversation and

“dismiss” her. Despite the fact that Diaz is being held apart from the general

prison population, Dr. Pietz does not believe that he is a danger to himself or to

others, or that there are any other grounds on which to justify forced medication.5

In Dr. Pietz’s experience, it is “very rare” that, upon taking anti-psychotic

medication, a patient’s condition does not improve such that he becomes

competent. Dr. Pietz does not believe that individual or group therapy is

appropriate for Diaz because such therapy becomes useful only after a patient

begins taking medication that corrects the chemical imbalance that causes

5
During re-direct, Pietz stated that Diaz had been held in a “locked unit,” away from the
general prison population, since January 2009, when he received an “incident report” for being
in a forbidden area without permission and startling a staff member. Later, Diaz was involved in
a fight with another inmate in a secured recreational area. Despite these incidents, Dr. Pietz did
not believe that Diaz was a danger to himself or to others.

11
psychosis, which is a “biological condition.” Dr. Pietz does not believe that Diaz

is malingering.

On redirect, Dr. Pietz testified that, if Diaz is ordered to be forcibly

medicated, she and Dr. Sarrazin will be his clinical team, and Dr. Sarrazin will

write the prescription for the medication. In response to the court’s questions, Dr.

Pietz stated that to her knowledge, Diaz has never been medicated and she expects

that he will likely not respond quickly to medication. Dr. Pietz stated that if Diaz

is not restored to competency within four months, she will request an extension

from the court to continue administering medication for another four months, and

again at the end of eight months if Diaz is improving but is not yet restored to

competency. If all avenues are exhausted and Diaz is not restored to competency,

Dr. Pietz will return him to the court as incompetent.

2. Dr. Robert Sarrazin

The government next called Dr. Robert Sarrazin, Chief of Psychiatry at

Springfield medical center. Dr. Sarrazin has had hundreds of cases involving

involuntary medication. Of these cases, a small number involved the specific

question of involuntary medication to restore a patient to competency to stand trial.

In this group of cases, between 75% and 80% of patients forcibly medicated

attained competency to stand trial. Dr. Sarrazin assisted Dr. Pietz in treating Diaz

12
by acting as the consulting psychiatrist in Diaz’s case. Dr. Sarrazin personally

evaluated Diaz between May 21 and June 12, 2009, primarily by observing his

behavior. Dr. Sarrazin reviewed all of Diaz’s previous records and his current

chart and consulted with Dr. Pietz. Dr. Sarrazin met with Diaz on June 3, 2009

after the due process hearing conducted by Dr. Tomelleri. Based on his

observations of Diaz, his consultation with Dr. Pietz and his review of the reports,

Dr. Sarrazin concluded that Diaz suffers from chronic paranoid schizophrenia. Dr.

Sarrazin noted that Diaz was “not very cooperative” during the evaluation process

and would refuse to speak with others or leave his cell for an evaluation. While at

Springfield medical center, Diaz has refused to take medication.

Dr. Sarrazin reviewed several studies addressing the use of medication to

restore psychotic patients to competency. He summarized the results of these

studies as follows: (1) a general 1992 study of 150 incompetent defendants in a

state forensic hospital found that only 8 of these patients could not be restored to

competency, yielding an approximate 95% success rate; (2) a 1993 study of 45

incompetent pre-trial defendants, suffering from psychotic disorders, found that

87% of these patients were restored to competency with involuntary psychotropic

medication; (3) a 2007 study reviewing Ohio state psychiatric hospitalizations

from 1995 to 1999 found that 75% of patients were restored to competency with

13
involuntary medication; and (4) another 2007 study of 22 individuals diagnosed

with delusional disorder (a psychotic disorder different from schizophrenia) found

that 77% of the patients were restored to competency by the use of involuntary

anti-psychotic medication. Based on this data, as well as his own experience with

involuntary medication of patients, Dr. Sarrazin opined that it is “substantially

likely” that Diaz will be restored to competency if given anti-psychotic medication.

Dr. Sarrazin further testified that the American Psychiatric Association

(“APA”) has promulgated practice guidelines and data addressing the treatment of

schizophrenic patients. The APA data reported that 83% of “first episode” patients

experience “stable remission,” by the end of one year of treatment, meaning their

symptoms (such as hallucinations and confusion) decrease to the point that the

individual can return to his or her normal activities. The end point of the APA

data, Dr. Sarrazin stated, was that individuals get to this type of remission, rather

than “competency.” The APA data showed, however, that between 10% and 30%

of schizophrenic patients have little to no response to anti-psychotic medication,

and that up to another 30% have only a “partial” response to medication, “meaning

they exhibit improvement in psychopathology but continue to have mild to severe

residual hallucinations or delusions.” The APA data did not address success rates

in situations where competency, rather than remission, was the end point.

14
 Dr. Sarrazin also noted that, because Diaz has never taken anti-psychotic

medication, there is no record of whether he previously had responded or not

responded to medication. Dr. Sarrazin testified that, under the most optimistic

view of the APA data, there is a 90% chance that anti-psychotic medication will

restore Diaz to competency. Under the most pessimistic view of the APA data,

there is a 30% chance that Diaz will not respond to medication at all, a 30% chance

that Diaz will partially respond to the medication but will not attain competency,

and a 40% chance that Diaz will respond to the medication and attain competency.

Dr. Sarrazin explained that anti-psychotic medications improve cognitive thinking

and lessen hallucinations in individuals who suffer from schizophrenia.

As to side effects, Dr. Sarrazin testified that, although anti-psychotic

medications can cause sedation, this side effect is usually a short-term condition

and can be improved by shifting the timing of the medication or splitting the

dosage. Dr. Sarrazin clarified that anti-psychotic medication likely will improve

Diaz’s cognition, and is unlikely to cause a decrease in Diaz’s cognitive ability.

According to Dr. Sarrazin, anti-psychotic medications can be classified as

first-generation, or typical, medications, or as second-generation, or atypical,

medications. Second-generation and first-generation medications are equally

effective. However, second-generation medications are less likely to cause

15
neuromuscular side effects than first-generation medications.

The neuromuscular side effects at issue include stiffness, shakiness, and

akathisia, which is “an internal feeling of restlessness.” These side effects can be

controlled by administering supplemental medications, such as Benadryl or

Cogentin. Neuromuscular side effects are associated with injections of a

medication called Haldol (known generically as haloperidol decanoate, or simply

haloperidol) and, as a result, Springfield medical center staff usually adds

supplemental medication to Haldol to control these side effects. If the medical

center staff administered an anti-psychotic medication to Diaz, they would closely

monitor him for neuromuscular side effects, and if he displayed any acute

neuromuscular side effects, a treatment plan was already laid out. If supplemental

medications such as Benadryl or Artane are used with Haldol, Diaz would be

monitored to ensure that those medications do not cause confusion as a side effect.

Dr. Sarrazin further testified that patients who take a first-generation

medication over a term of years may experience “tardive dyskinesia” and “tardive

dystonia,” conditions where the patient experiences abnormal movements of the

mouth and tongue and, sometimes, other parts of the body. Patients taking second-

generation anti-psychotic medications experience these side effects at a rate of 2%,

or 5% in a population of elderly patients. Individuals on long-term treatment with

16
first-generation anti-psychotic medications experience tardive dystonia at a rate of

1%-2%.

Dr. Sarrazin also discussed “metabolic” side effects. Second-generation

anti-psychotic medications can cause elevated blood-sugar levels or diabetes.

Springfield medical center monitors patients’ blood-sugar levels and weight on a

monthly basis, and monitors patients’ lipid, cholesterol, and hemoglobin 6 levels

once every three months. If a patient experiences an increase in his blood-sugar

level, the medical staff responds by altering the patient’s diet or changing his anti-

psychotic medication. The medical center would likely administer to Diaz

medications called Geodon or Abilify, because these medications have a lower

association with heightened blood-sugar levels.

Dr. Sarrazin further testified that, on rare occasions, anti-psychotic

medications can cause serious or even fatal side effects. On “exceedingly rare”

occasions, and even more rare in second-generation anti-psychotics, a patient can

suffer from neuroleptic malignance syndrome, which causes a patient to become

rigid, have an elevated body temperature, and, without treatment, experience

muscle deterioration and kidney damage. If not treated promptly, this condition

poses a 10% to 20% mortality rate. Dr. Sarrazin explained that the medical center

6
The “hemoglobin A1C” test is used to measure the patient’s blood glucose levels over
the course of the three months before the test.

17
monitors patients for symptoms of this condition. In addition, some first-

generation medications, including Mellaril, can cause a patient to have an irregular

heartbeat that, in turn, can cause sudden death. The medical center avoids

prescribing these medications, and closely monitors patients who take these

medications.

Dr. Sarrazin also mentioned that some anti-psychotic medications have side

effects, such as light-headedness, constipation, and trouble with urination. Those

side effects can be managed by lowering the dosage and selecting medications that

have a lower risk of these side effects. Dr. Sarrazin has been successful in

reducing or eliminating side effects.

Dr. Sarrazin then discussed data regarding the efficacy of psychotherapy for

treating individuals with schizophrenia. Dr. Sarrazin opined that individual

psychotherapy without medication is not an effective treatment option for Diaz,

and that the preferred treatment for schizophrenia is anti-psychotic medication.

Once a patient begins taking medication, however, psychotherapy is useful

primarily to encourage the patient to continue to take his medicine, and it may be

helpful for Diaz once he begins taking medication.

Dr. Sarrazin reiterated that anti-psychotic medication is medically

appropriate for the treatment of schizophrenia as it is the “treatment of choice” and

18
the “gold standard” for treating patients with the disease. Dr. Sarrazin opined that

the administration of anti-psychotic medicine to Diaz will likely render him

competent to stand trial and will be unlikely to cause side effects that would

interfere significantly with Diaz’s ability to assist counsel in conducting his

defense. Because Diaz is not currently on any medications, Dr. Sarrazin is not

concerned about any drug interactions.

Dr. Sarrazin and Dr. Pietz created a treatment plan for Diaz. Dr. Sarrazin

would administer to Diaz, on a daily basis, one of these medications: (1) 15 to 60

milligrams of Abilify, (2) 80 to 320 milligrams of Geodon, (3) 2 to 12 milligrams

of Risperdal, or (4) 2 to 40 milligrams of Haldol. Each medication is a second-

generation medication, with the exception of Haldol, a first-generation medication.

Dr. Sarrazin would first attempt to administer orally a second-generation

medication to Diaz, starting with low doses and increasing the dosage slowly to

lessen side effects while monitoring Diaz closely. They would administer Haldol

only if Diaz were to refuse to take medication voluntarily by swallowing a pill,

thus making it necessary to use an injectable medication.

Dr. Sarrazin testified that, in commencing Diaz’s treatment, medical-center

staff plan to show Diaz a copy of the court’s order for involuntary medication and

ask him to comply with the order. If Diaz refuses to comply, the staff forcibly will

19
inject Diaz with his medication. Dr. Sarrazin will prescribe the lowest dosage

possible in order to treat Diaz effectively. If Diaz becomes agitated or combative

when receiving medication, the staff will inject him with a dose of 2 milligrams of

Lorazepam, which will calm him down so that he can be safely released from

restraints.

Dr. Sarrazin verified that the government requested a four-month period in

which to restore Diaz to competency. Because Diaz is going to be involuntarily

medicated, the period of time may need to be six or eight months before Diaz can

be effectively restored to competency. Diaz will continue to receive involuntary

treatment to maintain his competency until the conclusion of all pretrial and trial

proceedings. Dr. Sarrazin believes that anti-psychotic medication has a substantial

probability of rendering Diaz competent to stand trial. If Diaz indicates that he

will cooperate with oral medication, the staff will switch from injecting his

medication to oral medication.

On cross-examination, Dr. Sarrazin conceded that, because Dr. Pietz has

other patients for whom she is the primary clinician, she has been unable to spend

all of her working hours focused on establishing a relationship with Diaz and

convincing him to take his medication. Dr. Sarrazin does not believe that Diaz is

malingering. If Diaz is malingering, the medication will have no effect on his

20
fabrication of symptoms. Dr. Sarrazin does not believe that physically forcing a

patient to take medication will have long-lasting psychological effects on the

patient. On redirect examination, Dr. Sarrazin reiterated that treatment with anti-

psychotic medications is medically appropriate for Diaz, and that Diaz will not

regain competency without medication.

E. Government Exhibits at Sell Hearing

At the Sell hearing, the government’s exhibits included (1) Dr. Sarrazin’s

written psychiatric report, dated June 12, 2009, (2) a second forensic psychological

report by Dr. Pietz, dated June 18, 2009,7 and (3) Springfield medical center’s

involuntary-medication report based on the due process hearing held on June 3,

2009 and conducted by Dr. Tomelleri.

Dr. Sarrazin’s written report noted that Diaz initially was admitted into

Springfield medical center on December 30, 2008. Diaz subsequently left the

center in order to participate in a court hearing and returned to the center on May

21, 2009 following the district court’s finding that he was not competent to

proceed with his legal case. Dr. Sarrazin evaluated Diaz between May 21 and June

12, 2009. Dr. Sarrazin’s report states that (1) Diaz did not cooperate during

7
Dr. Pietz’s first forensic psychological report dated February 3, 2009, which was
admitted as evidence during the second competency hearing on May 6, 2009, was not admitted
as evidence at the Sell hearing on September 8, 2009.

21
interviews and refused to answer questions; (2) in an interview with Dr. Sarrazin

on June 3, 2009, Diaz refused to provide details about his past psychiatric history

and previous treatment; and (3) Diaz “appears to be disorganized in his

presentation, uncooperative, clearly delusional, and describes his system of bizarre

delusional beliefs.”

Dr. Sarrazin’s report summarized the empirical data supporting his opinion

that anti-psychotic medication will restore Diaz to competency and the likelihood

of side effects. Dr. Sarrazin’s report also noted, as he had testified, that Diaz

would be monitored for any acute neuromuscular side effects during the treatment.

The report laid out a detailed plan of how to manage such side effects by treating

Diaz with various supplemental medications. The report noted that neuromuscular

side effects were more likely to occur in a first generation anti-psychotic than in

the second generation medications. Haldol carries a much higher risk of both acute

and delayed neuromuscular reactions but this can be treated with supplemental

medication. Akathisia can occur in 20% to 30% of patients treated with first

generation medications, and in lower rates with second generation medications, but

can be treated by reducing the dosage or using supplemental medication.

The second most likely side effect was “drug induced parkinsonism,” which

is characterized by muscle rigidity, resting tremor (muscle contractions, or

22
twitching), and decreased spontaneous facial expressions. Between 15% and 50%

of patients taking a first-generation medication and, in lower rates, patients taking a

second-generation medication, experience drug induced parkinsonism. These

symptoms are “easily treated” by reducing a patient’s dosage, or by using a

supplemental medication. Acute dystonic reactions, defined as sustained

contraction of various muscle groups, occur in 2% to 10% of patients treated with

first generation medications, and in lower rates with second generation

medications. These reactions are “easily, effectively and quickly” treated with

supplemental medication.

Dr. Sarrazin’s report noted that, based on the statistical data, Diaz would be

unlikely to experience the delayed neuromuscular side effects of tardive dyskinesia

or tardive dystonia if treated for a year with either a first- or second-generation

medication,8 but noted that he will be monitored on a monthly basis for any

delayed onset movement disorders.

Dr. Sarrazin’s report noted that metabolic side effects could be prevented

largely by avoiding second generation medications highly associated with such

side effects and by monitoring Diaz. Anticholinergic side effects such as

8
The rate of tardive dyskinesia with first-generation treatments is 5% yearly in a general
population and 25%-30% in an elderly population. With second-generation treatments, it is only
2% yearly in the general population and 5% in an elderly population. Tardive dystonia occurs in
1%-2% of individuals receiving long term treatment with first-generation medications.

23
confusion, urinary retention and constipation are most likely to occur in a geriatric

population and are best managed by prescribing medication with low risk of

causing such side effects. As for more rare but dangerous side effects, such as

neuroleptic malignant syndrome and sudden death, the report noted that rates are

extremely low. As to other risks posed by drug interactions or medical ailments,

Dr. Sarrazin’s report noted that Diaz has no current medical diagnoses and is not

on any current medications that would result in potential drug interactions. Diaz

has no major medical diagnosis, and his laboratory studies have been

unremarkable.

Based on his review of statistical data and examination of Diaz, Dr. Sarrazin

believed that Diaz’s response would be similar to the empirical study showing 87%

of patients restored to competency, as well as two studies, one showing a 75%

“treatment response rate” and the other showing an 87% “treatment response rate.”

Based on this empirical data, Dr. Sarrazin opined that involuntary treatment of

Diaz with anti-psychotic medication will be substantially likely to render Diaz

competent to stand trial and substantially unlikely to have side effects that will

interfere significantly with Diaz’s ability to assist counsel in conducting a defense.

Diaz exhibited a relatively high level of social functioning, which indicates that

Diaz will react positively to medication.

24
 Dr. Sarrazin’s report also laid out, in detail, the proposed treatment plan

about which Dr. Sarrazin testified. Diaz will first be presented with a copy of the

court order authorizing involuntary treatment, and “[t]he treating psychiatrist [will]

attempt to enlist Mr. Diaz’s cooperation by engaging in a discussion of the

available options of taking oral anti-psychotic medications on a daily basis at the

lowest effective dose” and will explain the required procedures to take the

medication voluntarily. As long as Diaz is willing to cooperate, the treating

psychiatrist would prescribe one or more “trials” with one of several oral

medications,9 the “goal” being “to achieve clinical improvement at the lowest

effective dose starting at the low end of the dosing range and gradually increasing

the dose as clinically indicated.” The regimen will be switched to another

medication if Diaz develops intolerable side effects.

If Diaz refuses to take oral medication after receiving a copy of the court

order and after being given an opportunity to discuss the issues with the treating

psychiatrist, treatment will be initiated with long-acting anti-psychotic medication

9
Sarrazin’s report listed the following recommended oral medications and doses: (1)
aripriprazole (Abilify) at target doses of 15 mg-60 mg daily; (2) ziprasidone (Geodon) at target
doses of 80 mg-320 mg daily; (3) risperidone (Risperdal) at target doses of 2 mg-12 mg daily;
and (4) haloperidol (Haldol) at target doses of 2 mg-40 mg daily. The report specified that
aripriprazole or ziprasidone would be recommended as the initial treatment due to their more
favorable side effect profile, and that olanzapine would not be recommended unless trials with
aripripazole were not effective or well tolerated due to its somewhat higher risk of metabolic
side effects.

25
administered by injection. Diaz will first receive a “test dose” of 5 mg of

haloperidol to identify any reactions to the drug, and the next day he will receive

an injection of haloperidol decanoate, to be repeated two weeks later. Dr.

Sarrazin’s report listed several adjunctive medications and accompanying dosage

ranges to treat any neuromuscular side effects that arise.10 If such adjunctive

treatments are ineffective against such side effects, Diaz will be offered an

alternative anti-psychotic medication. Finally, if Diaz becomes agitated or

combative during the administration of medication, he may receive an injection of

2 mg of lorazepam to calm him down.

Dr. Sarrazin’s report noted that Diaz will be monitored for diabetes or

elevated serum lipids through monthly weighings and measurements of his glucose

and serum lipids. If Diaz refuses to cooperate with the monitoring protocols, the

staff will attempt to educate him as to the rationale for the tests, and if he further

refuses to cooperate, the protocol will be enforced involuntarily.

Dr. Pietz’s second written forensic report, dated June 18, 2009, noted that,

since Diaz was admitted to Springfield medical center on May 21, 2009, she had

10
Recommended adjunctive medication included: (1) for muscle stiffness or tremor,
bonztropine, at a dosage range of 0.5 mg to 1 mg, two to three times daily, (2) for restlessness,
propranolol at a dosage range of 10 mg to 40 mg, two to three times daily, (3) for neuromuscular
side effects that do not respond to other treatments, lorazepam at a dosage range of 0.5 mg to 1
mg, two to three times daily.

26
attempted to interview Diaz on two occasions. On each occasion, Diaz

“dismissed” her and refused to provide her with information about his background.

Diaz refused to cooperate with any assessment procedures. Diaz informed Dr.

Pietz that the judicial proceedings against him, as well as the psychological

evaluation, were “illegal” and denied that he suffered from a mental illness.

Although Dr. Pietz explained the need for Diaz to take medication for his illness,

he refused to take medication voluntarily.

Dr. Pietz’s report summarized past evaluations, including: (1) the evaluation

by Dr. Michael Hilton on February 23, 2005, in which Dr. Hilton concluded that

Diaz was incompetent to stand trial because he suffered from “undifferentiated

schizophrenia” and “presented as floridly psychotic;” (2) forensic evaluations by

Dr. Jorge Luis from April 4 to May 4, 2005, and from November 14, 2005 to

January 3, 2006, in which Dr. Luis opined that Diaz was malingering and was

competent to stand trial; (3) BOP records from seven different BOP facilities,

reflecting that after May 2005, Diaz was consistently described as exhibiting

psychotic symptoms; and (4) the telepsychiatric consultation by Dr. Wolfson on

July 24, 2008, after which Dr. Wolfson opined that Diaz appeared psychotic and

would likely benefit from taking anti-psychotic medication.

In her report, Dr. Pietz noted that the BOP records that she reviewed

27
included “numerous entries made by psychology staff providing services to Mr.

Diaz.” After May 2005, these clinicians, with the exception of staff at FDC

Miami, “consistently described” Diaz “as exhibiting psychotic symptoms. . . . [H]is

thought processes were often described as bizarre and disorganized. Some

clinicians described him as ‘delusional and paranoid at times.’” Dr. Pietz’s report

included the quote of one author who noted that Diaz “‘evidenced significant

psychotic delusions that appeared to be rigidly adhered to, as evidenced by his

stress response whenever this author or Dr. Gonzalez questionned [sic] him

regarding the veracity or accuracy of his beliefs . . . .’”

In her report, Dr. Pietz also stated that she consulted with Dr. Wolfson about

his telepsychiatric assessment of Diaz, and Dr. Wolfson noted that Diaz “spoke in

neologisms, was vague, paranoid, and [his] speech was disorganized and difficult

to follow.” “Dr. Wolfson reiterated that Mr. Diaz appeared psychotic and

substantially impaired during the consultation on July 24, 2008.”

Dr. Pietz’s report opined that treatment of Diaz with anti-psychotic

medication was medically appropriate, necessary, and substantially likely to restore

him to competency without side effects that would undermine the fairness of the

trial.

The government’s exhibits from the Sell hearing also include Springfield’s

28
report of the Due Process Involuntary Medication Hearing, which documented that

Dr. Tomelleri conducted the hearing on June 3, 2009 to determine whether the

medical center forcibly could medicate Diaz on the ground that he is dangerous or

suffers from a grave disability. The report reflects that Diaz received written

notice of the hearing on May 27, 2009.

F. Diaz’s Evidence at the Sell Hearing

After Dr. Sarrazin’s testimony, Diaz’s attorney informed the court that Diaz

wished to comment on the testimony thus far. At that point, Diaz made a variety of

comments, including that the administration of medication at the medical center

was a “war crime,” that Dr. Pietz had lied about why Diaz was in a locked unit, and

that Diaz was being unlawfully detained. Diaz contested the court’s jurisdiction

over him, complained about his attorney’s assistance, and claimed he had

additional witnesses who could speak on his behalf.

After Diaz’s comments, Diaz’s attorney introduced five documents that Diaz

wished to be part of the record: (1) a document handwritten by Diaz entitled

“Injunctive Suit Motion: Dialog in Truth,” (2) a form “Appeal of Involuntary

Medical Decision” issued by the medical center, attached to several handwritten

pages, (3) a handwritten document entitled, “Statement as a[n] International

Sovereign Diplomate [sic],” attached to a BOP form entitled “Request for

29
Administrative Remedy,” (4) a handwritten letter to the “Atlanta Consulate /

Consulate General,” dated May 7, 2009, and (5) an “Administrative Remedy

System Informal Resolution Form” issued by the medical center, attached to a

handwritten document. Diaz presented no further evidence.11

G. District Court’s Order

On October 13, 2009, the district court granted the government’s request to

medicate Diaz involuntarily. In its written order, the district court found that the

government bears the burden of proof, by clear and convincing evidence, on all

factual questions underlying the Sell factors. The district court first found that

there are no alternative grounds that justify involuntary medication other than the

government’s interest in restoring the defendant to competency to stand trial. The

district court noted that Dr. Tomelleri had conducted an administrative due process

hearing under Washington v. Harper, 494 U.S. 210, 110 S. Ct. 1028 (1990), and

found that Diaz does not present a danger to himself or others.

Next, the district court turned to the four Sell factors. As to the first factor,

the court found that the government has an important governmental interest in

prosecuting Diaz, because his crimes are serious, and there are no significant

11
The parties did not make closing arguments or statements. After the hearing, the parties
did not file legal memoranda asserting arguments as to whether Diaz should be involuntarily
medicated.

30
special circumstances—such as a lengthy pre-trial confinement or the possibility of

civil confinement—that lessen the importance of the government’s interest.

Second, the district court found that involuntary medication would

significantly further the government’s interest because it is: (1) substantially likely

to render Diaz competent to stand trial and (2) substantially unlikely to have side

effects that would interfere with Diaz’s ability to assist counsel in his defense. The

district court found that Dr. Sarrazin: (1) estimated that Diaz has between a 75%

and 87% chance of attaining competency if given medication involuntarily and (2)

explained that, although the APA data reflects a lower success rate, this is

attributable to the fact that this data is based on a different standard of success than

restoring individuals to competency. The district court noted that both Dr. Sarrazin

and Dr. Pietz (1) testified that medication likely will cause Diaz to attain

competency and (2) agreed that anti-psychotic medications improve a patient’s

cognitive ability.

The district court also found that the more common side effects of anti-

psychotic medication are relatively minor. Although the medication can cause

more serious side effects, these occurrences are uncommon and easily could be

treated with supplemental medication. The court emphasized that Diaz will be

closely monitored by medical staff for serious side effects.

31
 Third, the district court found that involuntary medication is necessary to

further governmental interests because (1) other less-intrusive treatments are

unlikely to achieve substantially the same results, and (2) psychotherapy alone

would not be effective in treating Diaz and is generally not effective in treating

schizophrenia. The court also found that Diaz (1) refused to take medication, (2)

consistently resisted medical staff’s attempts to conduct evaluations, and (3) denied

that he suffers from a mental illness. The court found that it is unlikely that Diaz

would comply with a court order directing him to take medication, as Diaz did not

recognize the court’s authority. Finally, the district court determined that the

administration of anti-psychotic medication is medically appropriate. In this

regard, the court noted that both Dr. Pietz and Dr. Sarrazin testified that this

treatment is medically appropriate, and that Dr. Pietz stated that Diaz’s condition

will not improve unless he takes anti-psychotic medication.

Given its assessment of the Sell factors, the district court directed

Springfield medical center to medicate Diaz forcibly in accordance with Dr.

Sarrazin’s treatment plan and the district court’s opinion, but only after “first

seeking to obtain Mr. Diaz’s voluntary participation with any treatment.”

Diaz filed a motion to stay the execution of the involuntary-medication order

32
pending appeal, which the district court granted.12 Diaz now appeals. Diaz

contends that the government failed to meet its burden as to the second and third

Sell factors.

II. STANDARD OF REVIEW

We generally review a district court’s factual findings for clear error and its

legal conclusions de novo. Thomas v. Bryant, 614 F.3d 1288, 1307 (11th Cir.

2010). We also review a district court’s application of the law to the facts de novo.

United States v. Frank, 599 F.3d 1221, 1228 (11th Cir.), cert. denied, 131 S. Ct.

186 (2010). Neither the Supreme Court nor this Court, however, has addressed

specifically the standard of review of a district court’s rulings as to the four Sell

factors. The majority of circuits that have considered the issue concluded that the

first Sell factor (whether important governmental interests are at stake) is a legal

question subject to de novo review, while the last three Sell factors present factual

questions subject to clear error review. See United States v. Fazio, 599 F.3d 835,

839-40 (8th Cir. 2010) (holding that first Sell factor is reviewed de novo, while

12
The district court’s involuntary-medication order is not a final order that ends the
litigation of this criminal case on the merits. See 28 U.S.C. §§ 1291, 1292; Atl. Fed. Sav. &
Loan Ass’n of Ft. Lauderdale v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 375-76 &
n.7 (11th Cir. 1989) (holding that we generally lack jurisdiction over an appeal from an
interlocutory order). Nevertheless, we have jurisdiction over the present appeal under the
collateral-order doctrine, as it (1) conclusively determines the disputed question; (2) resolves an
important issue completely separate from the merits of the action; and (3) is effectively
unreviewable on appeal from a final judgment. Sell, 539 U.S. at 176-77, 123 S. Ct. at 2182.

33
remaining factors are reviewed for clear error), cert. denied, __ S. Ct. __, 2011WL

55488 (U.S. Jan. 6, 2011) (No. 10-5998); United States v. Green, 532 F.3d 538,

546, 552 (6th Cir. 2008) (holding that first Sell factor is reviewed de novo, while

second and fourth factors are reviewed for clear error), cert. denied, 129 S. Ct.

2735 (2009); United States v. Hernandez-Vasquez, 513 F.3d 908, 915-16 (9th Cir.

2008) (holding that first Sell factor is reviewed de novo, while remaining factors

are reviewed for clear error); United States v. Palmer, 507 F.3d 300, 303 (5th Cir.

2007) (same); United States v. Evans, 404 F.3d 227, 240 (4th Cir. 2005)

(reviewing district court’s conclusions as to the second and fourth Sell factors for

clear error); United States v. Gomes, 387 F.3d 157, 160 (2d Cir. 2004) (holding

that first Sell factor is reviewed de novo, while the remaining factors are reviewed

for clear error); but see United States v. Bradley, 417 F.3d 1107, 1113-14 (10th

Cir. 2005) (holding that Sell factors one and two are legal questions reviewed de

novo, while factors three and four are factual findings reviewed for clear error).

The parties here agree with these circuits.

After review, we agree with our sister circuits and hold that our review of

the first Sell factor is de novo, and our review of the remaining three Sell factors is

for clear error.

III. DISCUSSION

34
A. Four Sell Factors

In Sell, the Supreme Court indicated that “an individual has a

constitutionally protected liberty interest in avoiding involuntary administration of

anti-psychotic drugs—an interest that only an essential or overriding state interest

might overcome.” 539 U.S. at 178-79, 123 S. Ct. at 2183 (quotation marks

omitted). The Supreme Court instructed that, before considering whether a

defendant may be involuntarily medicated to attain competency to stand trial, a

district court should consider whether a defendant may be involuntarily medicated

for an alternative reason—such as the danger that he poses to himself or others, or

the fact that his refusal to take medication places his health at grave risk. Id. at

181-82, 123 S. Ct. at 2185.

However, if the defendant cannot be medicated for an alternative purpose, a

court may order under Sell that he be involuntarily medicated to attain competency

to stand trial, as long a court finds these criteria satisfied: (1) the government has

an “important” interest in going to trial; (2) involuntary medication would

“significantly further” the governmental interest; (3) involuntary medication is

necessary to further the governmental interest; and (4) involuntary medication is

medically appropriate, “i.e., in the patient’s best medical interest in light of his

medical condition.” Id. at 179-83, 123 S. Ct. at 2184-86. Given these

35
requirements, the Supreme Court noted that such instances “may be rare.” Id. at

180, 123 S. Ct. at 2184.

On appeal, Diaz argues that the government failed to carry its burden of

proof on the second and third Sell factors. We therefore address the burden of

proof.

B. Burden of Proof

Neither the Supreme Court nor this Court has addressed the burden of proof

in involuntary medication cases under Sell. See generally Sell, 539 U.S. at 169-86,

123 S. Ct. at 2178-87. Other circuit courts that have considered this issue

uniformly concluded that in Sell cases the government bears the burden of proof on

factual questions by clear and convincing evidence. See, e.g., Fazio, 599 F.3d at

840 n.2 (“We agree with our sister circuits that the government bears the burden of

proving the final three Sell factors by clear and convincing evidence.”); United

States v. Bush, 585 F.3d 806, 814 (4th Cir. 2009) (“[W]e conclude that the

government had the burden of satisfying the Sell standard by clear and convincing

evidence . . . .”); United States v. Grape, 549 F.3d 591, 598-99, 604 (3d Cir. 2008)

(“[A]ll courts of appeals addressing this issue have held that the Government bears

the burden of proof on factual questions by clear and convincing evidence.”);

Green, 532 F.3d at 545 (holding government bears burden of proof on all Sell

36
factors by clear and convincing evidence); United States v. Valenzuela-Puentes,

479 F.3d 1220, 1224 (10th Cir. 2007) (“[T]he district court must find all necessary

facts [in a Sell hearing] by ‘clear and convincing evidence.’”) (quoting Bradley,

417 F.3d at 1114); Gomes, 387 F.3d at 160 (“[T]he relevant findings [underlying

the Sell factors] must be supported by clear and convincing evidence.”).

Here, the government does not disagree that its burden is to prove the factual

questions underlying the Sell factors by clear and convincing evidence. We agree

with our sister circuits and hold that the government bears the burden of proving

the factual findings underlying the Sell factors by clear and convincing evidence.

C. Second Sell Factor

The second Sell factor is whether involuntary medication will significantly

further the government’s interest. As to this second factor, district courts must

consider and determine two underlying factual questions: (1) whether medication

is “substantially likely to render the defendant competent to stand trial,” and (2)

whether the medication 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. at

2184-85.

Contrary to Diaz’s claims about the second Sell factor, the district court did

37
not clearly err because the evidence strongly demonstrates a substantial likelihood

that anti-psychotic medication will restore Diaz to competency and is not

substantially likely to cause side effects that would interfere with Diaz’s ability to

assist counsel. Both Dr. Pietz and Dr. Sarrazin provided expert opinions

concluding that, based on the data available to them, as well as their personal

experiences in treating patients similar to Diaz, there is a substantial likelihood that

anti-psychotic medication would restore Diaz to competency. Their conclusions

largely were supported by statistical studies, which showed that between 75% and

87% of patients who were declared incompetent due to psychosis were restored to

competency with the use of anti-psychotic medication. See United States v.

Nicklas, 623 F.3d 1175, 1180 (8th Cir. 2010) (affirming district court’s conclusion

that second Sell factor satisfied because “based on Dr. Newman’s assessment of a

70% success rate, . . . medication is substantially likely to render [defendant]

competent to stand trial”) (quotation marks omitted); Green, 532 F.3d at 552-53

(affirming district court’s conclusion that second Sell factor satisfied where

statistical data cited by government experts “found improvement in a range of

approximately 76% to 93% of those treated,” and lower statistics cited by

defendant related to “wellness,” not competency); Bradley, 417 F.3d at 1115

(affirming district court’s conclusion that second Sell factor satisfied because

38
clinical psychologist testified that “more than 80% of defendants committed for

competency restoration treatment [at Springfield medical center] are later deemed

competent by the trier of fact”); Gomes, 387 F.3d at 161-62 (affirming district

court’s conclusion that second Sell factor satisfied where BOP had 70% success

rate restoring competence with anti-psychotic medication, and doctors at the

medical center testified there was a substantial likelihood of restoring the

defendant to competency); see also United States v. Ghane, 392 F.3d 317, 319-20

(8th Cir. 2004) (holding that district court clearly erred in finding second Sell

factor satisfied based on evidence of a 5-10% success rate in treating patients with

delusional disorder through medication).

Diaz argues that the district court erred because the lower success rates

reported in the American Psychiatry Association (“APA”) data and Dr. Sarrazin’s

testimony indicate that anti-psychotic medication has only between a 40% and

70% chance of restoring him to competency. However, Dr. Sarrazin testified that

the APA data did not address the success of medication in restoring patients to

competency but rather the endpoint of stable remission. Importantly, Dr.

Sarrazin’s report indicated that, although the APA data used a different standard of

success than competency, the data reflected that 83% of “first episode”

schizophrenic patients who took anti-psychotic medication experienced stable

39
remission of their symptoms after a year. Dr. Pietz also testified that, in her

experience, between 60% and 70% of patients were restored to competency with

involuntary medication, and those cases where a patient did not attain competency

usually were caused by a patient’s cognitive defect, such as mental retardation.

We recognize that Diaz also argues that his medical history does not show

that he has a history of responding to anti-psychotic medication. However, the

lack of prior documented history of Diaz’s reaction to anti-psychotic medication

does not change our conclusion. Diaz presented no evidence to contradict the

above findings or to show that he is not likely to have the favorable response

common in the statistical data. Cf. Gomes, 387 F.3d at 162 (in the context of the

third Sell factor, the district court did not clearly err in concluding forced

medication was necessary to further the government’s interest merely due to

defendant’s lack of prior treatment while in custody, where defendant presented no

evidence as to efficacy of alternative treatments). Moreover, although Diaz did not

have a history of treatment with such medication, Dr. Sarrazin reported that Diaz’s

relatively high level of social interaction made it more likely that he would respond

to anti-psychotic medication.

As for Diaz’s argument that the government failed to show that medication

is not substantially likely to cause side effects, the district court did not clearly err.

40
Under Sell, the pertinent side effects are those that could impede a defendant’s

ability to assist counsel. See Sell, 539 U.S. at 185-86, 123 S. Ct. at 2187. Diaz

focuses on the potential for first-generation medications, such as Haldol, to cause

neuromuscular side effects. However, Dr. Sarrazin testified that Springfield

medical center will inject Diaz with Haldol only if he refuses to take a second-

generation medication orally, and that the center will cease the injections entirely if

Diaz agrees to take medication voluntarily. Moreover, Dr. Sarrazin testified that

neuromuscular side effects easily can be controlled with supplemental medication,

and that Springfield medical center staff will monitor Diaz for these side effects.

The proposed treatment plan in Dr. Sarrazin’s report outlines in detail the types and

dosage ranges of adjunctive medication recommended to treat any potential side

effects that arise.

In addition, the proposed plan provides that if Diaz experiences side effects

that do not respond to these adjunctive medications, his treatment regimen will be

switched to another medication listed in Dr. Sarrazin’s report. The two life-

threatening conditions that can be caused by first-generation medications are

extremely rare, and Dr. Sarrazin testified that Springfield medical center staff

would monitor Diaz for symptoms of these conditions, as well as for diabetes and

other metabolic side effects. While Diaz argues that the district court

41
underestimated the impact that neuromuscular side effects can have on a defendant,

he does not explain how such side effects could interfere with his communications

with counsel or why he is especially likely to suffer from side effects that might

interfere in such a way. Nor does Diaz explain how the treatment plan in Dr.

Sarrazin’s report has failed to provide for the monitoring, prevention, and

treatment of such side effects.13

Diaz argues that because Haldol is a first-generation anti-psychotic

medication, it is in the same class of drugs as Mellaril, which he argues is

“notorious for potentially causing severe side effects that can both prevent an

individual from adequately participating in his defense and may cause irreversible

and serious damage to one’s health.” However, Dr. Sarrazin focused on the side

effects caused by Haldol, not Mellaril, because Mellaril is not on the list of

recommended medications in the proposed treatment plan for Diaz. Diaz has

offered no evidence that Mellaril and Haldol carry the same risk of side effects.

Furthermore, Dr. Sarrazin testified that Springfield medical center avoids

prescribing medications like Mellaril which can cause an irregular heartbeat, and

13
In his brief, Diaz has citations to medical journal articles that he did not submit as
evidence to the district court. This evidence is not part of the record on appeal, and we decline
to consider it. See Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 871 n.15 (11th Cir. 1986)
(holding that we would not consider the appellant’s argument that the district court erred by
failing to consider certain data, because this data was not part of the record on appeal); see also
United States v. Bonds, 12 F.3d 540, 552 (6th Cir. 1993) (holding that the court would not
“consider a report that is not part of the record”).

42
closely monitors patients who take such medications. Dr. Sarrazin did not mention

Haldol as a drug that, like Mellaril, could cause such symptoms.

In addition, while Diaz asserts that the government cannot meet its burden

merely by showing that anti-psychotic medication is safe for the general public,

this argument lacks merit because the government’s evidence relates to Diaz

personally. Dr. Sarrazin testified about, and his report discussed, potential side

effects and risks from medication based on Diaz’s specific health situation, and his

report proposed a detailed treatment plan that would avoid and counteract side

effects with low dosages, monitoring, and supplemental medication. Dr. Sarrazin’s

report noted that Diaz did not have another major medical diagnosis or ailment that

would pose an additional risk. Cf. Evans, 404 F.3d at 240-42 (concluding that

district court erred in finding second and fourth Sell factors satisfied where

treatment plan gave no specific dosage ranges and medications to restore

defendant’s competency and did not relate the proposed treatment plan to the

defendant’s particular medical condition where defendant was elderly, had

diabetes, asthma, and hypertension, and was already taking a number of

medications).

D. Third Sell Factor

The third Sell factor is whether involuntary medication is necessary to

43
further the government’s interests. As to the third factor, a district court must (1)

find any “alternative, less intrusive treatments are unlikely to achieve substantially

the same results,” and (2) “consider less intrusive means for administering the

drugs,” such as a court order backed by the power of contempt, before considering

more intrusive methods. Sell, 539 U.S. at 181, 123 S. Ct. at 2185.

Diaz contends that the government should have pursued the less-intrusive

alternative of convincing him to take his medication voluntarily by making a

serious effort to develop a stable relationship between Diaz and his therapist, but

instead the Springfield medical staff merely made “token” efforts to convince him

to take medication voluntarily before commencing due process involuntary

medication proceedings. Diaz, however, ignores the fact that he has refused

medication and other forms of treatment numerous times over the year prior to his

most recent stay at Springfield medical center. In July 2008, while at USP

Lewisberg, Diaz refused to take medication despite Dr. Wolfson’s

recommendation that he do so and refused to participate in a program to improve

his ability to function in society. During Diaz’s initial stay at Springfield in early

2009, Dr. Pietz attempted to evaluate Diaz from December 31, 2008 through

January 31, 2009, but he refused, despite numerous attempts by Dr. Pietz, to

participate in any clinical interviews, to complete psychological testing, and to

44
answer questions about his background. In her report, Dr. Pietz noted that when

Diaz initially arrived at Springfield on December 31, 2008, he refused to answer all

questions from the psychologist on staff and informed a nurse that he did not

believe in taking drugs.

Throughout his more recent stay at Springfield beginning in May 2009, Diaz

continued to refuse to participate in interviews with Dr. Pietz and Dr. Sarrazin.

Specifically, Dr. Pietz reported that she met with Diaz numerous times, and that he

often refused to speak to her and was “dismissive.” Dr. Tomelleri’s report

documented that Diaz did not wish to consider taking psychotropic medication and

that, since he had been admitted to Springfield, he had refused psychological

testing and refused to attend any required orientation proceedings.

Importantly, both Dr. Sarrazin and Dr. Pietz testified that psychotherapy,

which includes one-on-one conversations between a patient and his therapist, is not

effective to treat schizophrenia in the absence of medication because schizophrenia

is caused by a “biological condition”—a chemical imbalance that causes psychosis.

In his report, Dr. Tomelleri noted that treating Diaz with psychotherapy would be

“futile.” Diaz presented no evidence to contradict this testimony. The district

court was entitled to conclude that additional conversations between Dr. Pietz and

Diaz would not have induced Diaz to take medication voluntarily.

45
 Finally, Dr. Sarrazin testified that, before the medical-center staff injected

Diaz with any medication, they first would show him a copy of the court’s order

and ask him to comply with it. If Diaz became cooperative during the course of

treatment, the staff would switch from injecting his medication to allowing him to

take a medication orally.

Given the ample evidence presented by the government that Diaz has,

repeatedly and for a time period of over a year, refused to take medication, and that

alternative treatments for Diaz would be ineffective, the district court did not

clearly err in concluding that the government has shown by clear and convincing

evidence that involuntary medication is necessary to render Diaz competent to

stand trial. See Gomes, 387 F.3d at 162-63 (affirming district court’s conclusion

that less intrusive alternatives would be unlikely to render defendant competent

where doctors testified that alternative forms of therapy would be ineffective and

defendant had repeatedly refused treatment and indicated he would not cooperate

under any circumstances).

AFFIRMED.

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