United States v. Frank Chatmon

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4725

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

FRANK CHATMON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:10-cr-00477-CMH-7)

Argued: May 15, 2013 Decided: June 10, 2013

Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.

Vacated and remanded by published opinion. Judge Wilkinson
wrote the opinion, in which Judge Motz and Judge Shedd joined.

ARGUED: Charles Burnham, BURNHAM & GOROKHOV PLLC, Washington,
D.C., for Appellant. Lisa Owings, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Eugene
V. Gorokhov, Ziran Zhang, BURNHAM & GOROKHOV PLLC, Washington,
D.C., for Appellant. Neil H. MacBride, United States Attorney,
Sean P. Tonolli, Assistant United States Attorney, Scott B.
Nussbum, Special Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
WILKINSON, Circuit Judge:

After his indictment for conspiracy to distribute crack

cocaine and heroin, appellant Frank Chatmon was diagnosed with

paranoid schizophrenia and deemed incompetent to stand trial.

The government then filed a motion seeking permission to

forcibly medicate Chatmon in order to restore him to competency,

which the district court granted.

In doing so, the district court purported to apply the

standard mandated in Sell v. United States, 539 U.S. 166, 181

(2003). That standard permits involuntary medication for trial

competency purposes if, inter alia, “less intrusive treatments

are unlikely to achieve substantially the same results.” Id.

The district court found this criterion satisfied, summarily

stating that “involuntary drugging [is] necessary because there

is no less intrusive means shown to be available.” In reaching

that conclusion, however, the court did not mention or analyze

any of the less intrusive alternatives suggested by the Supreme

Court in Sell or by Chatmon himself. Because careful findings

concerning the availability of less intrusive means are

necessary to vindicate the Supreme Court’s admonition that

forcible medication motions should be carefully scrutinized due

to their impact on personal liberty, see id. at 180-81, we

vacate the district court’s order and remand for further

proceedings.

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 I.

A.

In December 2010, Chatmon was arrested and charged with

conspiracy to distribute 280 grams or more of crack cocaine and

100 grams or more of heroin, in violation of 21 U.S.C.

§§ 841(a)(1) and 846. Before he could be tried on these

charges, Chatmon’s attorney expressed concern about his

psychological condition, declaring to the district court that

Chatmon’s “mental state has deteriorated to the point where I

feel he doesn’t understand what’s going on anymore.” Chatmon’s

attorney thus filed a motion seeking a formal competency

evaluation under 18 U.S.C. § 4241(a).

The district court granted the motion and ordered that

Chatmon be evaluated at the Butner Federal Medical Center in

North Carolina. Pursuant to that order, Chatmon was transferred

to Butner from his jail cell in Alexandria, Virginia for

evaluation by a staff psychologist in May and June 2011. The

psychologist’s report diagnosed Chatmon with “Schizophrenia,

Paranoid Type” and described several of his symptoms, including

the fact that he heard voices in his head and his beliefs that a

satellite was attached to his brain and that his thoughts were

being manipulated via remote control. The report concluded with

the opinion that Chatmon suffers from a mental disease that

3
renders him “unable to understand the nature and consequences of

the proceedings against him or assist counsel in his defense.”

Based on these unchallenged findings, the district court

deemed Chatmon incompetent to stand trial and ordered that he be

returned to Butner for hospitalization and treatment to

determine whether he might be restored to competency such that

the criminal proceedings could go forward. See 18 U.S.C. §

4241(d). Chatmon was accordingly transferred back to Butner for

a competency restoration evaluation in September 2011.

Upon his return to Butner, Chatmon was placed in the

facility’s Restrictive Movement Unit (“RMU”), a unit in which

individuals are held in solitary confinement in cells for all

but one hour of the day. Chatmon was housed in the RMU during

the entire period in which his competency restoration evaluation

was performed. That evaluation was conducted by three Butner

employees: Samantha DiMisa, a psychology intern who was

Chatmon’s primary evaluator; Dr. Angela Weaver, a staff

psychologist who supervised DiMisa; and Dr. Robert Lucking, a

staff psychiatrist who interviewed Chatmon once to discuss

antipsychotic medication. Together, the three produced a report

on December 9, 2011. The report confirmed Chatmon’s initial

diagnosis of paranoid schizophrenia and identified symptoms such

as paranoid ideation, auditory hallucinations, delusional

beliefs, hostility, and tangential conversation. The report

4
also observed that Chatmon “denied having a mental illness and

would not consent to treatment with psychotropic medication.”

Finally, the report expressed the evaluators’ shared opinion

that although Chatmon remained incompetent for trial, there is a

“substantial probability that Mr. Chatmon’s competency can be

restored with a period of treatment with haloperidol decanoate,”

a type of antipsychotic medication.

On December 20, 2011 (eleven days after Chatmon’s

competency restoration report had been completed but before it

had been submitted to the parties or the district court),

Chatmon was transferred from the RMU to an open population unit

within Butner where he was able to move freely in and out of his

cell and interact with other inmates. Chatmon had previously

made multiple requests to be transferred into such a unit, but

each had been rejected. According to DiMisa, the reasons for

allowing the transfer were that Chatmon had begun to show

“greater engagement” with Butner staff members and that he had

completed paperwork that he had previously refused to sign.

Chatmon demonstrated notable improvement in his behavior

while in the open unit. DiMisa testified that when she met with

him two weeks after his transfer, on January 5, 2012, Chatmon

was more responsive to her redirection during conversation,

visited the library and exercised regularly, had a good

relationship with his roommate, and expressed the desire to take

5
a GED class and work in the kitchen. In DiMisa’s opinion,

Chatmon had “adjusted well when transferred to the open

population.” DiMisa also noted, however, that “just because

someone becomes better able to manage their behavior does not

necessarily indicate that [they are] competent” to stand trial.

Still, notwithstanding Chatmon’s progress, Butner staff did not

conduct any additional evaluation of his competency and instead

submitted the December 9, 2011 report to the parties and the

district court on January 10, 2012.

B.

Based on the findings in the December report, the

government filed a motion for permission to forcibly medicate

Chatmon in February 2012. The district court held a hearing on

the motion on August 29.

During the hearing, the district court began its analysis

by identifying the four-part standard provided by Sell v. United

States, 539 U.S. 166 (2003), for determining whether the

government may involuntarily medicate a defendant in order to

restore him to competency for trial. 1 As relevant to the two

1
The government has made no contention that Chatmon is
dangerous to others, which would remove this case from the Sell
framework discussed herein. See 539 U.S. at 181-82 (discussing
Washington v. Harper, 494 U.S. 210, 225-26 (1990), which
recognized the government’s important interest in medicating
prisoners who pose a danger to themselves or to others).

6
elements at issue in this appeal, the court found first that the

government had shown an important interest in medicating Chatmon

because he had been charged with “one of the most serious

offenses that can be committed,” a drug offense punishable by a

term of up to life in prison. See id. at 180. Second, the

court stated that “involuntary drugging would be necessary

because there is no less intrusive means shown to be available.”

See id. at 181. In reaching that conclusion, however, the

district court did not address a particular alternative required

by Sell: “a court order to the defendant backed by the contempt

power.” Id. Nor did the court discuss two less intrusive

treatments proposed by Chatmon: group therapy and permitting

Chatmon to remain in an open unit rather than solitary

confinement. 2 The court nonetheless issued an order permitting

the government to medicate Chatmon against his will, which

Chatmon now appeals.

II.

The question of when the government may involuntarily

administer psychotropic drugs to a defendant for the purpose of

2
According to Chatmon’s counsel, after Chatmon’s competency
restoration evaluation was completed (and after he had made
progress while being housed in Butner’s open unit), Chatmon was
returned to jail in Alexandria and placed in solitary
confinement, where his mental health again deteriorated.

7
rendering him competent to stand trial entails a difficult

balance between the defendant’s interest in refusing mind-

altering medication and society’s interest in bringing the

accused to trial. The Supreme Court recognized the weighty

concerns on both sides of this balance in Sell, noting that

while individual defendants possess a “‘significant’

constitutionally protected ‘liberty interest’ in ‘avoiding the

unwanted administration of antipsychotic drugs,’” so too does

the government possess an “important” interest in “protect[ing]

through application of the criminal law the basic human need for

security.” 539 U.S. at 178, 180 (quoting Washington v. Harper,

494 U.S. 210, 221 (1990)).

Our own cases have conveyed the same point. In United

States v. White, for example, we characterized recourse to

forced medication as a “drastic resort” that, if allowed to

become “routine,” could threaten an elementary “imperative of

individual liberty.” 620 F.3d 401, 422 (4th Cir. 2010). We

also acknowledged, however, that “when an individual is alleged

to have committed a serious crime,” the individual may in some

cases “forfeit[] her liberty interest . . . to the extent

necessary for the government to bring her to trial.” Id. at 409.

The crux of the matter, then, is how to reconcile these

competing individual and societal interests so as to know which

cases warrant the serious intervention of forced medication and

8
which do not. Courts are guided in this process by the four-

part test announced in Sell, which we have described as follows:

First, the government must show that “important
governmental interests are at stake” and that special
circumstances do not sufficiently mitigate those
interests. Sell, 539 U.S. at 180. Second, involuntary
medication must significantly further the government's
interests by making it “substantially likely to render
the defendant competent to stand trial” and
“substantially unlikely to have side effects that will
interfere significantly with the defendant’s ability
to assist counsel” at trial. Id. at 181. Third, the
involuntary medication must be necessary to further
the government’s interests, and less intrusive means
must be unlikely to achieve substantially the same
results. Id. And last, the court must conclude that
the administration of drugs is medically appropriate
and in the patient’s best medical interests in light
of her medical condition. Id.

White, 620 F.3d at 410. The government must establish each

element of this test by clear and convincing evidence. United

States v. Bush, 585 F.3d 806, 814 (4th Cir. 2009).

In applying the Sell test, we note that circuit courts have

upheld involuntary medication orders on prior occasions. See,

e.g., United States v. Green, 532 F.3d 538 (6th Cir. 2008);

United States v. Bradley, 417 F.3d 1107 (10th Cir. 2005). But

we have never departed from the recognition that such orders are

a tool that must not be casually deployed, for forced medication

is a serious intrusion upon the integrity of the individual and

the effects of such medication upon body and mind are often

difficult to foresee. See White, 620 F.3d at 422 (Keenan, J.,

concurring). While involuntary medication orders may sometimes

9
be necessary, they carry an unsavory pedigree. See Harper, 494

U.S. at 229-30 (describing how forced administration of

antipsychotic medication can have “serious, even fatal side

effects,” such as cardiac dysfunction and tardive dyskinesia, a

neurological disorder in 10% to 25% of patients characterized by

“uncontrollable movements of various muscles”). With this

understanding of the legal framework, we turn now to the

application of the Sell test to Chatmon’s case.

III.

A.

Chatmon argues first that the district court incorrectly

deemed his drug trafficking charge a “serious” crime, a ruling

that (if correct) gives rise to an important government

interest. See Sell, 539 U.S. at 180 (“The Government’s interest

in bringing to trial an individual accused of a serious crime is

important.”). Unfortunately for Chatmon, the central

consideration when determining whether a particular crime is

serious enough to satisfy this factor is the “maximum penalty

authorized by statute.” United States v. Evans, 404 F.3d 227,

237 (4th Cir. 2005). For example, we held in White that certain

offenses were “serious” because they exposed a defendant to a

maximum prison term of “over ten years.” 620 F.3d at 410-11.

That Chatmon has been accused of a serious crime is thus clear

10
because the offense with which he is charged carries the highest

possible maximum prison term: life imprisonment. 21 U.S.C.

§ 841(b)(1)(A). The seriousness of Chatmon’s charged offense is

also reinforced by the fact that § 841(b)(1)(A) imposes a

mandatory minimum of ten years, which rises to twenty years if

the defendant has a prior felony drug conviction, as the

government contends is true of Chatmon.

Chatmon responds that the maximum statutory prison term for

his drug trafficking charge is of no consequence because Sell

commands that in order to constitute a “serious crime,” the

offense must be against “persons” or “property.” Appellant’s

Br. 22. But that is not the law. Indeed, we expressly rejected

this argument in Evans, where we held that Sell’s mention of

serious crimes “against the person or . . . against property”

does not “impose[] the additional requirement that the crime

also be against either [a] person or property in order to be a

‘serious’ one.” 404 F.3d at 237 n.6. Other circuits agree.

See, e.g., United States v. Green, 532 F.3d 538, 550 (6th Cir.

2008). Instead, as we explained in Evans, the Sell Court

mentioned crimes against persons and property for the

unexceptional purpose of highlighting that those were the type

of charges that Sell himself faced. 404 F.3d at 237 n.6.

Finally, Chatmon points to no special circumstance that

would mitigate the government’s interest in bringing him to

11
trial. Sell, 539 U.S. at 180. Chatmon’s case, for example, is

unlike White because the defendant in that case faced a likely

prison sentence of approximately 42-51 months if convicted --

and would have already served more than that amount by the time

of trial. 620 F.3d at 418. Here, by contrast, Chatmon faces a

potential mandatory minimum of twenty years if convicted, and

has been confined to date for but a fraction of that time --

roughly two and a half years. Furthermore, as the government

notes, this is likely not a case where its interest in

prosecuting Chatmon could be assuaged through a civil commitment

order because Chatmon has not been found to pose the risk of

injury to others necessary to warrant such commitment under 18

U.S.C. § 4246(d). We therefore reject Chatmon’s contention that

the government has no important interest at stake in his case.

B.

We turn now to Chatmon’s challenge relating to the third

Sell factor, the existence of means for restoring a defendant to

competency less intrusive than involuntary medication. 539 U.S.

at 181. Appellate courts have reviewed a district court’s

findings on this factor for clear error. See, e.g., United

States v. Fazio, 599 F.3d 835, 839-40 (8th Cir. 2010). As

relevant here, a district court commits clear error if it takes

“an erroneous view of the controlling legal standard” or makes

factual findings “without properly taking into account

12
substantial evidence to the contrary.” Miller v. Mercy Hosp.,

Inc., 720 F.2d 356, 361 (4th Cir. 1983).

To start, the district court misapprehended the legal

standard. In Sell, the Supreme Court explained that the

overarching inquiry with respect to the third factor is whether

“involuntary medication is necessary” because “alternative, less

intrusive treatments are unlikely to achieve substantially the

same results.” 539 U.S. at 181. But Sell also contained a

specific command that must be met before a district court may

answer this inquiry in the affirmative: the court “must consider

less intrusive means for administering the drugs, e.g., a court

order to the defendant backed by the contempt power.” Id.; see

also, e.g., United States v. Bradley, 417 F.3d 1107, 1115-16

(10th Cir. 2005) (finding third Sell factor satisfied where

court entered order requiring defendant to take medication on

threat of civil contempt). Of course, this is not tantamount to

a requirement that a defendant must be first held in contempt in

each and every case. This option would, however, allow the

defendant to decline at least for a period of time forcible

medication, albeit at the cost of confinement or some other

civil sanction.

The district court failed to heed this legal requirement.

The court’s discussion of less intrusive means at Chatmon’s

hearing was limited to the summary conclusion that “involuntary

13
drugging would be necessary because there is no less intrusive

means shown to be available.” The district court entered a

written order confirming this ruling a week later, but it was

just as brief, declaring simply that “involuntary medication of

the defendant is necessary to further the government’s interests

and any alternative, less intrusive treatments are unlikely to

achieve substantially the same result.” At no point did the

court acknowledge Sell’s requirement that it “must consider”

less intrusive means for administering Chatmon medication such

as a court order backed by contempt sanctions. We think such

consideration requires that the court explain upon remand why

less intrusive means would prove ineffectual.

The court also needs to account for evidence of other less

intrusive means presented by Chatmon. During the oral hearing

before the district court, Chatmon’s counsel discussed two

alternative means for restoring Chatmon to competency: group

therapy and allowing Chatmon to reside in an open population

unit rather than solitary confinement. In proposing those

alternatives, counsel repeatedly referenced supportive evidence

in the record, referring in particular to Ms. DiMisa’s

deposition testimony regarding Chatmon’s improvements upon being

admitted into Butner’s open unit. The district court

nevertheless found no less intrusive means to be available

without recognizing this contrary evidence or explaining why it

14
might be insufficient. Of course, a district court need not

credit a defendant’s evidence or accept his arguments, but its

findings should offer some reason why it did not. Here, during

oral argument, the government candidly conceded that the

district court offered no reasons why Chatmon’s alternatives

might be unavailing and essentially provided “no rationale” in

support of its ruling. See United States v. Francis, 686 F.3d

265, 273 (4th Cir. 2012) (“A court commits clear error when it

makes findings ‘without properly taking into account substantial

evidence to the contrary.’” (quoting Miller, 720 F.2d at 361)).

It is the context of this case that makes supported

findings significant. The need for such findings serves

typically not as a broad red light upon a judicial disposition

but as a blinking yellow. In a matter as sensitive as an

involuntary medication order, which trenches upon the elemental

individual liberty interest in refusing the invasive

administration of mind-altering medication, the need to slow

down and consider less intrusive alternatives is important. Put

simply, such consideration is necessary to provide this court

with assurance that forcible medication orders, while sometimes

warranted, will not become a device routinely or casually

employed.

Because the district court erred in its analysis of the

third Sell factor, we vacate the involuntary medication order

15
and remand for further findings. We remand because the district

court remains far better situated than we are to evaluate in the

first instance the conflicting evidence concerning the

availability and effectiveness of less intrusive means for

restoring Chatmon to competency.

Upon remand, we note that the district court should

consider, as Sell suggests, the less intrusive option of

ordering Chatmon to take his prescribed medication with the

backing of civil contempt sanctions. The district court should

also consider and evaluate less restrictive means that Chatmon

plausibly suggests for restoring him to competency.

For the foregoing reasons, we vacate and remand for further

proceedings consistent with this decision.

VACATED AND REMANDED

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