UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4482
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD LEROY ABNEY,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
George L. Russell, III, District Judge. (1:14-cr-00102-GLR-1)
Argued: September 28, 2018 Decided: January 23, 2019
Before KING, DUNCAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion. Judge King wrote a separate concurring
opinion.
ARGUED: Marta K. Kahn, THE LAW OFFICE OF MARTA K. KAHN, LLC,
Baltimore, Maryland, for Appellant. Jeffrey J. Izant, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Stephen M.
Schenning, Acting United States Attorney, Paul E. Budlow, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellant Richard Abney was indicted for armed bank robbery in 2014. Defense
counsel requested an evaluation and hearing on Abney’s competency to stand trial.
Following years of evaluations by various doctors, Abney was deemed incompetent to
stand trial unless he took medication. Because Abney was unwilling to take medication
for his condition, the government moved to place him on medication without his consent.
Following a hearing, the district court concluded that involuntarily medicating Abney
would not violate the Constitution; therefore, the district court issued an order granting
the government’s motion. Abney now appeals that order, and we affirm.
I.
On January 4, 2014, Abney allegedly committed armed bank robbery in Columbia,
Maryland. * A grand jury returned an indictment charging Abney with conspiracy to
commit armed bank robbery, armed robbery, and discharging a firearm during a crime of
violence. Abney was then placed in the Chesapeake Detention Facility (CDF) in
Baltimore, Maryland.
Over the next several years, Abney underwent a series of psychological
evaluations to determine his competency to stand trial. In March 2014, defense counsel
filed a motion pursuant to 18 U.S.C. § 4241(a) requesting what would be the first in this
*
The majority of the record in this case has been sealed at Abney’s request, and
the majority of the parties’ briefing has been redacted. Consequently, our recounting of
the facts is severely constrained.
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series of evaluations. Abney was transferred to the Federal Medical Center in Devens,
Massachusetts (FMC Devens) where he was evaluated in May and June of 2014 by Chad
Tillbrook. Dr. Tillbrook concluded that Abney was not suffering from a mental illness
that would compromise his understanding of the trial process and deemed him competent
to stand trial.
In the fall of 2014, Abney’s defense counsel retained forensic psychologist
Michael J. O’Connell to evaluate Abney’s competency. In March 2015, Dr. O’Connell
concluded that Abney’s mental condition prevented him from understanding legal
proceedings and Abney was therefore not competent to stand trial.
In May 2015, the district court conducted a competency hearing and concluded
that Abney was not competent to stand trial. The court committed Abney to the custody
of the Attorney General for hospitalization and treatment, and he was transferred to the
Federal Medical Center in Butner, North Carolina (FMC Butner). At FMC Butner,
Abney was treated by forensic psychologist Carlton Pyant. Dr. Pyant concluded that
Abney was competent to stand trial.
Abney was then transferred back to CDF, where Dr. O’Connell, the defense’s
forensic psychologist, evaluated him again in April 2016. Dr. O’Connell again
concluded that Abney was not competent to stand trial.
Given the conflicting conclusions regarding Abney’s mental state, the government
moved for a § 4241(c) hearing to determine Abney’s competency. The government
requested that it be allowed to conduct an updated psychological examination to prepare
for this hearing. The court granted this motion and transferred Abney to FMC Devens
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where he was evaluated again by Dr. Tillbrook. This time, unlike in his 2014 evaluation
of Abney, Dr. Tillbrook concluded that Abney was not competent to stand trial and
recommended that he be committed for further evaluation to determine if his competency
could be restored.
Considering Dr. Tillbrook’s conclusion, the parties agreed that a second § 4241(c)
hearing was unnecessary. They filed a joint motion to have Abney further committed to
determine whether there was a substantial probability that his competency could be
restored in the foreseeable future. The court granted the motion and ordered that a report
on the question be made by an examining doctor. On December 27, 2016, Dr. Tillbrook
issued a report concluding that Abney remained incompetent, but that there was a
substantial probability that his competency could be restored by treatment with
antipsychotic medication. Because Abney had refused to accept medication voluntarily,
Dr. Tillbrook recommended that the medication be administered involuntarily pursuant to
Sell v. United States, 539 U.S. 166 (2003).
On June 13 and 15, 2017, the court conducted a Sell hearing. Dr. Tillbrook
testified as an expert on both Abney’s competency to stand trial and the efficacy of
involuntary medication to restore competency. Although the defense had retained its
own expert to review and rebut Dr. Tillbrook’s report, it did not call that expert as a
witness. On July 18, 2017, the district court granted the government’s motion. This
appeal followed.
II.
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We are asked to decide whether the involuntary medication of a defendant is
constitutional in this case under the test set forth by the Supreme Court in Sell v. United
States, 539 U.S. 166 (2003). This appeal focuses on one element of that test: whether the
government proved that involuntary medication is substantially likely to render Abney
competent and substantially unlikely to cause side effects that would, themselves,
undermine the fairness of the trial. We hold that the district court did not clearly err in
finding that the government had met its burden for this element of the Sell test, and we
therefore affirm the district court’s order.
A.
The Supreme Court held in Sell that given the important governmental interest of
bringing a person accused of a serious crime to trial, it is constitutionally permissible in
some circumstances to involuntarily administer medication to render a defendant
competent to stand trial. 539 U.S. at 179. The government may administer treatment
involuntarily only if it “is medically appropriate, is substantially unlikely to have side
effects that may undermine the fairness of the trial, and, taking account of less intrusive
alternatives, is necessary significantly to further important governmental trial-related
interests.” Id. The Court articulated a four-part test that the government must satisfy to
show that involuntary medication is warranted: 1) “a 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
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court must conclude that administration of the drugs is medically appropriate.” Id. at
180–81 (emphasis in original). The government must prove each of these elements by
clear and convincing evidence. United States v. Bush, 585 F.3d 806, 814 (4th Cir. 2009).
Abney challenges only the second element of the Sell test, which considers
whether involuntary medication will significantly further state interests. To satisfy this
element, the government must show both that the “administration of the drugs is
substantially likely to render the defendant competent to stand trial” and that the
“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. “[T]he government
must make this showing with respect to the particular defendant it seeks to medicate
involuntarily.” Bush, 585 F.3d at 815–16. In other words, the test is “not whether a
proposed treatment plan is likely to work in general, but whether it is likely to work as
applied to a particular defendant.” United States v. Watson, 793 F.3d 416, 425 (4th Cir.
2015).
The second element of the Sell test presents a factual question, which we review
for clear error. United States v. White, 620 F.3d 401, 410 (4th Cir. 2010). “We reverse a
factual finding as being clearly erroneous if, although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.” Jiminez v. Mary Washington Coll., 57 F.3d 369, 379 (4th
Cir. 1995) (internal citation and quotation marks omitted).
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B.
We note that our discussion and evaluation of the district court’s decision is
frustrated by the fact that at Abney’s request, the majority of the record in this case,
including the district court’s order and the expert report on which the court relied, has
been sealed. Our analysis is by necessity somewhat conclusory.
We have reviewed the record under seal. Based on our review, we are satisfied
that the district court did not clearly err in finding that involuntary administration of
medication would significantly further state interests. Through Dr. Tillbrook’s expert
report and testimony, the government met its burden of proving with sufficient
particularity that involuntary medication is substantially likely to render Abney
competent to stand trial and substantially unlikely to induce side effects that would
undermine a fair trial.
Dr. Tillbrook’s report cited studies showing that medications like those
recommended for Abney have been effective when involuntarily administered to inmates
with his condition. The report also considered Abney’s individual characteristics and
medical history in gauging the effectiveness of the proposed treatment. The report
described in detail the typical side effects associated with the proposed medication, the
likelihood of such effects, and plans to monitor and manage such effects in Abney. In
response to Dr. Tillbrook’s report, Abney presented no evidence or expert testimony
suggesting that the proposed course of treatment would be ineffective. In sum, Dr.
Tillbrook’s report was supported by research particular to Abney’s symptoms and
disease. Reviewing the record under the deferential clear-error standard, we are not “left
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with a definite and firm conviction that a mistake has been committed.” Jiminez, 57 F.3d
at 379.
III.
For the foregoing reasons, we affirm the district court’s order granting the
government’s motion for involuntary medication.
AFFIRMED
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KING, Circuit Judge, concurring:
I am pleased to concur in the per curiam opinion of the panel. I write separately,
however, to briefly discuss the lack of transparency in some court proceedings. As the
opinion correctly observes, a majority of this record is sealed. See ante 2 n.1. In addition
to constraining our ability to recite pertinent facts, extensive sealing — at times without
full compliance with the applicable rules and absent sufficient explanations — can
undermine a foundational principle of our judicial system. Put succinctly, court
proceedings are “presumptively open to public scrutiny.” See United States v. Adams,
788 F.3d 115, 116 (4th Cir. 2015) (quoting Doe v. Pub. Citizen, 749 F.3d 246, 265 (4th
Cir. 2014)). This Court, on several occasions, has emphasized this settled tenet, and we
have urged that the sealing of court records be regularly reexamined and that alternatives
to sealing be considered. See id. at 115-16 (recommending that court consider on remand
alternatives to sealing); see also United States v. Caluori, 712 F. App’x 278, 280 n.* (4th
Cir. 2018) (proposing that court contemplate unsealing portions of record). As in those
examples, a careful reexamination of the sealed portions of the record in this case is
entirely appropriate.
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