United States v. Valenzuela-Puentes

                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                     March 15, 2007

                                  PUBLISH                         Elisabeth A. Shumaker
                                                                      Clerk of Court

              UNITED STATES COURT OF APPEALS
                       TENTH CIRCUIT


 U N ITED STA TES O F A M ER ICA,

       Plaintiff-Appellee,

 v.
                                                       No. 04-2283
 JO SE N A TIV ID A D V ALEN ZUELA-
 PUENTES,

       Defendant-Appellant.



                 Appeal from the United States District Court
                       for the District of New M exico
                          (D.C. No. CR-04-1433-RB)


Rosanne Camuñez of Las Cruces, New M exico, for D efendant-Appellant.

David N. W illiams, Assistant United States Attorney (David C. Iglesias, United
States Attorney, with him on the brief), Albuquerque, New M exico, for Plaintiff-
Appellee.


Before TA CH A, Chief Judge, and SEYM OUR, and BR ISC OE, Circuit Judges.


SE YM O UR, Circuit Judge.
      Jose Natividad Valenzuela-Puentes, a native of M exico, is charged with

reentering the United States after being previously deported following a

conviction for an aggravated felony in violation of 8 U.S.C. § 1326(a)(1), (2) and

8 U.S.C. § 1326(b)(2). The district court found him incompetent to stand trial

and ordered him sent to a federal medical center for a four-month evaluation.

Hospitalization failed to render him competent, and the government moved for an

order permitting involuntary medication. The district court conducted a hearing

pursuant to Sell v. United States, 539 U.S. 166 (2003), and granted the

government’s motion. M r. V alenzuela-Puentes filed this timely appeal.

Exercising jurisdiction under the collateral order exception to the final order rule

of 28 U.S.C. § 1291, see United States v. Bradley, 417 F.3d 1107, 1109 (10th Cir.

2005), we reverse.

                                          I

      M r. Valenzuela-Puentes was arrested in August 2003. Prior to the return of

an indictment, counsel for M r. Valenzuela-Puentes asked the district court for a

psychological evaluation and hearing pursuant to 18 U.S.C. § 4241(b) to

determine w hether her client was competent to stand trial. The district court

granted counsel’s motion and ordered an evaluation of M r. Valenzuela-Puentes at

the detention center where he was then incarcerated. The evaluation was

conducted on October 2, 2003, by Dr. Juan N. Sosa, a licensed clinical

psychologist. Dr. Sosa determined that M r. Valenzuela-Puentes was incompetent

                                         -2-
to stand trial, and that his amenability to treatment was questionable due to his

low level of intellect.

      On November 14, 2003, a magistrate judge conducted a competency

hearing at which M r. Valenzuela-Puentes’s attorney stipulated that her client was

incompetent to stand trial. The magistrate judge subsequently ordered M r.

Valenzuela-Puentes, pursuant to 18 U.S.C. § 4241(d), to undergo psychiatric

evaluation at a medical center for federal prisoners for a period not to exceed four

months.

      In January 2004, M r. Valenzuela-Puentes was transferred to the mental

health department of the federal medical center in Butner, North Carolina, where

he was evaluated by board-certified staff psychiatrist Dr. Bruce P. Capehart, as

well as staff psychologist Dr. Carlton Pyant and psychological intern Candyce

Shields. Referring to his report, Dr. Capehart testified that M r. Valenzuela-

Puentes suffered from a “psychotic disorder, not otherwise specified,” and that his

IQ scores fell “in approximately the first percentile rank, meaning that about 99

percent of the population would score higher than he did on an IQ test.” Rec.,

supp. vol. I, tr. at 19-20 (hereinafter cited as Tr.). Like D r. Sosa, Dr. Capehart

stated that M r. Valenzuela-Puentes was incompetent to stand trial, but he further

opined that M r. Valenzuela-Puentes would likely attain competency if treated

with antipsychotic medication. Dr. Capehart reported that M r. Valenzuela-

Puentes had been advised of his diagnosis and the recommended treatment but

                                          -3-
had consistently refused medication.

      Following receipt of Dr. Capehart’s report, the government moved under

Sell, 539 U.S. 166, for an order permitting involuntary medication in order to

render M r. Valenzuela-Puentes competent to stand trial. The district court

conducted a hearing on the government’s motion on September 27, 2004.

      In their testimony at the Sell hearing, Dr. Sosa and Dr. Capehart stated that

M r. Valenzuela-Puentes exhibited delusional thinking characteristic of a

psychotic disorder, and that he was incompetent to stand trial. Specifically, both

doctors testified that M r. Valenzuela-Puentes believed he could not be facing

federal immigration charges because he was employed as a “federal runner” by

the United States government and had either some form of dual citizenship or was

a citizen of “the U nited States of M exico,” w hich he described as a single country

comprised of Canada, M exico and the United States. Tr. at 19-20, 58. Both

doctors opined that these delusional beliefs were deeply ingrained, and that M r.

Valenzuela-Puentes had little or no insight into his diminished mental capacity.

      Both doctors further agreed in their reports and their testimony that, in

addition to being delusional, M r. Valenzuela-Puentes functioned intellectually

within the range of borderline deficiency. Dr. Sosa reported that M r. Valenzuela-

Puentes’s nonverbal IQ score of 73 and a verbal IQ score of 76, placed him within

a percentile ranking of 4, which Dr. Sosa explained indicated borderline

intellectual deficiency. Id. at 59-60. Based on cognitive testing conducted

                                          -4-
several months after Dr. Sosa’s testing, Dr. Capehart reported an even lower

nonverbal IQ score, placing M r. Valenzuela-Puentes in the first percentile, which

Dr. Capehart characterized as falling within the “very poor” range.

       Finally, both doctors reported that M r. Valenzuela-Puentes’s psychosis did

not present a danger to himself or others. Specifically, Dr. Capehart testified at

the Sell hearing that during his four months at the federal medical center, M r.

Valenzuela-Puentes

       was very pleasant. He never gave anyone any trouble. The nurses
       never had anything unusual to say about him, except that whenever
       they asked him about what was on his mind, he would talk about
       being a runner with the M arshals Service and the United States of
       M exico and so forth. But other than that, he was a very pleasant
       person to have. He gave us no management problems at all.

Id. at 35.

       The opinions of the two doctors diverged, however, on whether medication

would render M r. Valenzuela-Puentes competent to stand trial. Dr. Capehart

opined that medication would lessen the effects of M r. Valenzuela-Puentes’s

psychotic disorder and permit him to be educated as to the charges against him,

the role of the court, and how to assist his attorney in his defense. Tr. at 24-25,

27. W ithout medication, Dr. Capehart stated that M r. Valenzuela-Puentes was

unlikely to obtain competency because his disorder was not amenable to

alternative forms of treatment. Id. at 25-26. Dr. Sosa, on the other hand, opined

that M r. Valenzuela-Puentes’s low intellectual functioning was a substantial



                                          -5-
factor contributing to his incompetence, and therefore medication would have

little or no effect. Id. at 61-64.

       The doctors also disagreed as to whether the benefits of antipsychotic

medication would outweigh the possible health risks. Dr. Capehart acknowledged

the possibility of adverse side effects, especially given the paucity of knowledge

relating to M r. Valenzuela-Puentes’s medical history, but he thought they would

be relatively mild and controllable. He testified that the likelihood M r.

Valenzuela-Puentes would be rendered competent through medication justified the

risk. Dr. Sosa disagreed, as did a second witness introduced by the defense at the

Sell hearing, Dr. Abraham Fiszbein, a licensed psychiatrist, who did not examine

M r. Valenzuela-Puentes but was familiar with the details of his diagnosis. Dr.

Fiszbein testified that twenty percent of patients suffering from delusions do not

respond to antipsychotic medication. M oreover, the likelihood that a patient’s

delusions are untreatable increases if the patient, like M r. Valenzuela-Puentes, is

over forty years old. Dr. Fiszbein further testified that the brains of patients w ith

low intellectual functioning are “more sensitive to any medication,” and thus

administering regular dosages to such patients “could cause something that is

almost like being intoxicated with medication.” Tr. at 81.

       The district court issued a memorandum opinion and order granting the

government’s motion and permitting involuntary medication. M r. Valenzuela-

Puentes appealed.

                                          -6-
                                          II

      It is well-settled law that M r. Valenzuela-Puentes “possesses a significant

liberty interest in avoiding the unwanted administration of antipsychotic drugs

under the Due Process Clause of the Fourteenth Amendment.” Washington v.

Harper, 494 U.S. 210, 221-22 (1990). In 2003, however, the Supreme Court

recognized in Sell the right of the government to seek involuntary medication of a

non-dangerous defendant who, even after months of hospitalization, is found

incompetent to stand trial. 539 U.S. 166. Prior to Sell, the government could

request an order of involuntary medication only upon a showing that the

defendant w as dangerous to himself or others, see Harper, 494 U.S. at 227.

      The Court stated in Sell that instances of involuntary medication of a non-

dangerous defendant solely to render him competent to stand trial should be

“rare” and occur only in “limited circumstances.” 539 U.S. at 169, 180. In light

of this admonishment, the Court set forth the inquiry a district court must

undertake before granting a motion for involuntary medication.

      First, [the] court must find that important governmental interests are
      at stake. . . . Second, the court must conclude that involuntary
      medication will significantly further those concomitant state
      interests. . . . Third, the court must conclude that involuntary
      medication is necessary to further those interests. . . . [And f]ourth, .
      . . the court must conclude that administration of the drugs is
      medically appropriate, i.e., in the patient’s best interest in light of
      his medical condition.

Id. at 180-81 (emphasis in original).



                                         -7-
      Although the Court did not set forth the government’s burden of proof on

each of these four prongs, we have since held in Bradley, 417 F.3d at 1113, that

Sell’s first factor – whether important governmental interests are at stake – is

review ed de novo, as is the second factor – whether involuntary medication will

significantly further those state interests. See id. W e said the remaining two Sell

factors, which depend on factual findings, are reviewed for clear error. Id. Given

“the vital constitutional liberty at stake,” id. at 1114, we held that the district

court must find all necessary facts by “clear and convincing evidence,” id. See

also United States v. Gomes, 387 F.3d 157, 160 (2d Cir. 2004).

      On appeal, M r. Valenzuela-Puentes contends: (1) that before considering

the Sell factors, the district court was required by this court’s opinion in United

States v. M orrison, 415 F.3d 1180 (10th Cir. 2005), to make preliminary findings

regarding M r. Valenzuela-Puentes’s dangerousness to himself or others; and (2)

the government failed to show by clear and convincing evidence a need for

treatment sufficient to overcome his protected interest in refusing it. W e address

each issue in turn.

                                           III

      As we have previously noted, the Supreme Court made clear in Sell that

orders permitting forcible medication based solely on the need to render an

incompetent defendant competent to stand trial should be “rare” and occur only in

“limited circumstances.” 539 U.S. at 169, 180. One means of rendering a Sell

                                           -8-
order “rare” is to first conduct a Harper inquiry to determine whether the

defendant may be involuntarily medicated because he presents a danger to himself

or others. If a district court may order involuntary medication based on the

Harper inquiry, then there is no need to consider a Sell order. As we recognized

in M orrison, the Court implicitly favored involuntary medication on Harper

dangerousness grounds over involuntary medication merely on Sell incompetence

grounds and directed courts, when appropriate, first to consider the applicability

of Harper before turning to Sell. See United States v. White, 431 F.3d 431, 435

(5th Cir. 2005); United States v. Rivera-Guerrero, 426 F.3d 1130, 1137 (9th Cir.

2005); M orrison, 415 F.3d at 1181.

      In the present case, no suggestion was ever made that a Harper inquiry was

appropriate or necessary, no doubt because there is no evidence that M r.

Valenzuela-Puentes might present a danger to himself or others. Because

dangerousness w as never an issue, the district court was not obligated to perform

a Harper inquiry before it performed its Sell inquiry. Our opinion in M orrison

does not hold to the contrary. Unlike M r. Valenzuela-Puentes, the defendant in

M orrison was charged with a crime that was fundamentally violent in nature,

namely, the transmission of communications threatening to kill or injure other

people. M orrison, 415 F.3d at 1182. M ore importantly, no evidence was

presented showing M r. M orrison was not dangerous. Instead, the evidence

focused entirely on his competence to stand trial. Under those circumstances, w e

                                         -9-
held the district court must first consider whether M r. M orrison could be

involuntarily medicated under Harper before it considered whether he could be

medicated under Sell. Id. at 1186. Here, all parties expressly stated that M r.

Valenzuela-Puentes did not present a danger to himself or others. Accordingly,

there was no need for the district court to perform a Harper inquiry or make

Harper findings.

                                          IV

      M r. Valenzuela-Puentes also contends the government failed to show by

clear and convincing evidence that its interest in medicating him outweighed his

constitutionally protected interest in refusing medication. This claim essentially

challenges the district court’s factual findings and conclusions of law regarding

the nature and weight of the governmental interests at stake, the appropriateness

of medicating M r. Valenzuela-Puentes, and the likelihood that medication will

render him competent to stand trial.

      The Sell hearing here was conducted prior to the publication of our decision

in Bradley, and the record reveals uncertainty as to the nature and extent of the

government’s burden of proof. The government argued it should be held to no

more than a preponderance of the evidence standard, Tr. 12, 97. Although the

district court did state that it “would . . . be surprised if [the standard] were a

preponderance,” the court never stated on the record what burden it w as applying.

Id. at 11. M ore importantly, the court did not set forth a standard in its written

                                          -10-
opinion ordering involuntary medication.

      As to the first Sell factor, the district court stated that reentry after being

previously deported following conviction for an aggravated felony is a serious

crime, and hence “the Government possesses an important interest in the timely

prosecution of M r. Valenzuela[-Puentes].” Rec., vol. I, doc. 37 at 3. The court

further stated that “in order to ensure a fair trial [M r. Valenzuela-Puentes] must

be competent, that is, able to assist his attorney in his own defense.” Id.

      As to the second factor, the court concluded that “administration of the

drugs is substantially likely to render [M r. Valenzuela-Puentes] competent to

stand trial,” noting that Dr. Capehart specifically so testified. The court also

pointed to both Dr. Capehart’s and Dr. Fiszbein’s testimony that they regularly

prescribe antipsychotic medication to delusional patients, and said that M r.

Valenzuela-Puentes failed to show he may be “particularly susceptible” to

developing any serious side effects. Id. at 4.

      As to the third factor, the court held an order permitting involuntary

medication was the least intrusive, necessary means of furthering the

government’s interest in prosecuting M r. Valenzuela-Puentes. The court cited Dr.

Capehart’s testimony that M r. Valenzuela-Puentes was unlikely to respond to

other forms of treatment, and that a contempt of court order requiring to him to

accept medication would be insufficient. Thus, “forcibly medicating M r.

Valenzuela-Puentes is the only way the Government can restore him to

                                          -11-
competency.” Id. at 5.

      Finally, the court held that administering antipsychotic medication to M r.

Valenzuela-Puentes was in his best medical interests. Although recognizing the

scant knowledge relating to M r. Valenzuela-Puentes’s medical history made it

“unclear w hether he will exhibit any side effects as a result of taking medication,”

the court noted that both Dr. Capehart and Dr. Fiszbein “regularly prescribe

antipsychotic drugs to treat patients with the same psychosis as M r. Valenzuela[-

Puentes].” Id. The court further stated that

      [t]hough neither doctor could guarantee that the drugs w ould
      completely eliminate M r. Valenzuela[-Puentes]’s delusions, the
      Court finds that administering antipsychotic medication to M r.
      Valenzuela[-Puentes] is in his best medical interests because the
      medicine could potentially cure his psychosis or at least allow him to
      more ably assist counsel in his own defense.

Id.

      W e turn first to whether the district court erred in its conclusion that the

government has a significant interest in involuntarily medicating M r. Valenzuela-

Puentes. As we stated in Bradley, it is “well-settled law ” that “the G overnment’s

interest in bringing a criminal defendant to trial [is] fundamental” in nature. 417

F.3d at 1116 (citing Illinois v. Allen, 397 U.S. 337, 347 (1970) (Brennan, J.,

concurring). M oreover, the government has an important interest in maintaining

the integrity of the criminal justice system. As the Second Circuit said in Gomes,

387 F.3d at 162, going ahead with a criminal trial “with a certifiedly delusional



                                         -12-
defendant advancing a possibly delusional defense [] is not an option in our

system.” In sum, the government has an important interest in prosecuting

defendants for serious crimes w ith which they are charged and in ensuring their

mental competence for the duration of their prosecutions.

      M r. Valenzuela-Puentes argues that in his case the government’s interest is

lessened, claiming the crime with which he was charged is not a “serious crime”

because “[n]o specific intent is required[; n]o victims are involved[; n]o

threatening or violent conduct is involved[; and t]ypically no one is put in danger

or at risk except the defendant himself” when an individual illegally reenters the

United States. Aplt. Br. at 22. Under the circumstances of this particular case,

we are not persuaded. W hether a crime is “serious” relates to the possible penalty

the defendant faces if convicted, as well as the nature or effect of the underlying

conduct for w hich he was charged. See Bradley, 417 F.3d at 1114 (no contest as

to seriousness of charges faced by defendant where he faced possible

imprisonment for up to fifty years); United States v. Evans, 404 F.3d 227, 232

(4th Cir. 2005) (defendant faced a “serious charge” with a statutory maximum

punishment of ten years incarceration for threatening to murder a federal judge).

See also United States v. M artinez-Espinoza, 299 F.3d 414, 418 (5th Cir. 2002)

(charge of illegal reentry after having been deported following conviction for an

aggravated felony where defendant faced a possible prison term of twenty years a

“serious charge” for purposes of the Speedy Trial Act.). If convicted on the

                                         -13-
charges against him, M r. Valenzuela-Puentes faces a statutory maximum prison

term of twenty years, although if he pleads guilty he will likely be sentenced

within the guideline range to a term of 77 to 96 months, or between six to eight

years. Aplt. Br. at 23. W e consider a maximum sentence of twenty years and a

likely guideline sentence of six to eight years sufficient to render the underlying

crime “serious.” This is particularly so given M r. Valenzuela-Puentes’s long

criminal history. Documentation gathered by the INS for the purpose of

evaluating M r. Valenzuela-Puentes’s competence to stand trial reveals that he has

state court convictions for burglary in W ashington, Idaho, and Colorado; and

convictions for possession of a controlled substance, criminal trespass, and fraud.

The documentation further reveals he was previously deported on at least two

occasions. In 1996, he pled guilty to a charge of illegally reentering the United

States follow ing deportation and was sentenced to 78 months incarceration. He

was ordered removed from the United States on February 26, 2003. The fact that

M r. Valenzuela-Puentes is a recidivist not only increases the possible sentence he

faces if convicted, but also increases the government’s interest in prosecuting

him. Accordingly, we conclude he is charged with a “serious crime,” despite

there being no indication that the conduct for which he was charged was violent

or harmful to others.

      But our review of w hether the governmental interests in prosecuting M r.

Valenzuela-Puentes outweigh his interest in refusing medication does not end

                                         -14-
here. As we stated in Bradley, Sell indicates that while the “G overnment’s

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

. . [c]ourts must consider the facts of the individual case in evaluating the

Government’s interest in prosecution. Special circumstances may lessen the

importance of that interest.” Bradley, 417 F.3d at 1116 (quoting Sell, 539 U.S. at

180). In one example of such a special circumstance, “a defendant may have

already been confined for a lengthy period of time pending a determination of

competency, confinement for which he . . . would receive credit against any

sentence ultimately imposed.” 417 F.3d at 1116. W e have read this example to

suggest that

      when the amount of time the defendant is confined pending
      determination of competency is in parity with an expected sentence
      in the criminal proceeding, the Government may no longer be able to
      claim an important interest in prosecution.

Id.

      M r. Valenzuela-Puentes contends that his lengthy pre-trial confinement

significantly weakens the government’s interest. W hile w e are not comfortable

with the length of time it has taken to prosecute this case, we are not prepared to

say that the government’s interest has been lessened to such an extent as to render

it less weighty than M r. Valenzuela-Puentes’s interest. M r. Valenzuela-Puentes

has been confined since his arrest on August 6, 2003. He had already been in

confinement for longer than fourteen months when the district court ordered that



                                         -15-
he be involuntarily medicated. Fourteen months far exceeds the four months of

medical confinement for evaluative purposes permitted by 18 U.S.C. §

4241(d)(1). See United States v. Duhon, 104 F. Supp.2d 663, 678-80 (W .D. La.

2000) (discussing history of § 4241 and considering options for continued

hospitalization when confinement pursuant to § 4241(s)(1) has concluded).

Nonetheless, assuming for the purposes of this appeal that M r. Valenzuela-

Puentes is rendered competent through involuntary medication to stand trial in the

near future, he still faces the possibility of a sixteen-year sentence and the

likelihood of a remaining two to four-year sentence. The clock is ticking,

however, and we urge the government to aggressively pursue its interest or risk

having it diminish to the point where dismissal of the charges is the only

reasonable option.

      Having concluded the district court did not err in deciding the government

has a compelling interest in prosecuting M r. Valenzuela-Puentes in parity with

M r. Valenzuela-Puentes’s interest in refusing medication, we now consider his

contention that there is not clear and convincing evidence in the record to support

the district court’s conclusion under the second prong of the Sell inquiry, namely

that “involuntary medication will significantly further” the government’s interest

in prosecuting him. Sell, 539 U.S. at 181 (emphasis in the original).

      The Supreme Court stated in Sell that a district court’s determination that

involuntary medication will significantly further the government’s interest must

                                          -16-
include a predicate finding “that administration of the drugs is substantially likely

to render the defendant competent to stand trial.” Id. (emphasis added).

M oreover, the district court must also “find that administration of the drugs is

substantially unlikely to have side effects that will interfere significantly with the

defendant’s ability to assist counsel in conducting a trial defense.” Id. (emphasis

added). As we concluded in Bradley, only in the event the district court

determines that the government has proved these two factors by clear and

convincing evidence may it conclude that involuntary medication will

significantly further the government’s interest.

       Significantly, the Supreme Court has made clear that the government

establishes a fact by clear and convincing evidence only if the evidence

       place[s] in the ultimate factfinder an abiding conviction that the truth
       of its factual contentions are “highly probable.” See C. M cCormick,
       Law of Evidence § 320, p. 679 (1954). This would be true, of
       course, only if the material it offered instantly tilted the evidentiary
       scales in the affirmative when weighed against the evidence New
       M exico offered in opposition. See generally M cBaine, Burden of
       Proof: Degrees of Belief, 32 Calif.L.Rev. 242, 251,254 (1944).

Colorado v. New M exico, 467 U.S. 310, 316 (1984). W e assess the record and the

district court’s findings in this light.

       In its order, the district court stated that “Dr. Capehart testified, without

dispute, that the administration of antipsychotic medication to [M r. Valenzuela-

Puentes] is substantially likely to render him competent to stand trial.” Rec., vol.

I, doc. 37 at 3 (emphasis added). Our review of the record does not bear out this

                                           -17-
assertion. Dr. Sosa testified that whether M r. Valenzuela-Puentes is amenable to

treatment “is questionable due to his low level of intellect.” Tr. at 61. Dr. Sosa

further stated that the delusions from which M r. Valenzuela-Puentes suffers, and

which render him incompetent to stand trial, are deeply ingrained. Specifically,

he testified that M r. Valenzuela-Puentes simply “thinks the way he thinks, and

that will never go away. . . I don’t care what medication you use.” Id. at 63.

W hen asked by defense counsel whether he believed that medicating M r.

Valenzuela-Puentes would restore his competency, Dr. Sosa relied “I don’t think

there is a basic competence” because “[h]is belief system is too well ingrained,

and he doesn’t have the cognitive skills and the upper level functioning, the

executive functioning in the brain . . .” Id. at 64. On cross-examination, Dr. Sosa

built on his prior testimony when he stated that even were he to be medicated, M r.

Valenzuela-Puentes’s poor cognition would still prevent him from “totally

comprehend[ing] what is happening to him.” Id. at 69. Dr. Sosa continued, “I

don’t think his character disorder and his ideas and his psychotic system [are]

going to function any better than [they are] now with any kind of medication.

That’s my opinion from experience over the last 40 years with knowing those

people.” Id.

      M oreover, Dr. Fiszbein testified that sometimes the kind of delusional

thinking displayed by M r. Valenzuela-Puentes “can be very resistant” to treatment

through medication and that the likelihood of success further decreases if the

                                        -18-
patient is older than forty, as is M r. V alenzuela-Puentes. Id. at 79-80. Dr.

Fiszbein further testified that the brains of individuals with low IQs are more

sensitive to medication and that “giving them regular doses could cause

something that is almost like being intoxicated with medication,” a condition

known as “akathisia.” Id. at 81. W hile Dr. Fiszbein did not testify as to the

likelihood that M r. Valenzuela-Puentes would suffer from akathisia, his testimony

raises the possibility that intoxication with medication could further compromise

M r. Valenzuela-Puentes’ competency and his ability to assist his attorney in

preparing his defense.

      In light of this evidence, we do not agree w ith the district court’s

conclusion that Dr. Capehart’s testimony regarding the likelihood of involuntary

medication restoring M r. V alenzuela-Puentes to competency was undisputed.

M ost significantly, however, we cannot be certain that the district court applied

the appropriate burden of proof. The record does not contain evidence from

which a conclusion of a substantial likelihood of restoring competency was

unavoidable, and the district court provided no explanation as to whether or why

it had become clearly convinced that M r. Valenzuela-Puentes could be rendered

competent through medication despite his exceptionally low IQ. This was the

principal point of contention in this case, and the district court’s silence is

troublesome. As it currently stands, we are unable to affirm the district court’s

factual findings. See United States v. Arnold, 106 F.3d 37, 44 (3d Cir. 1997),

                                          -19-
overruled on other grounds by Texas v. Cobb, 532 U.S. 162 (2001) (vacating

sentence and remanding when unclear from record what burden of proof was

applied); see also United States v. Fiorelli, 133 F.3d 218, 225 (3d Cir. 1998)

(reversing and remanding where appellate court found “inadequate other

assurance in the record that the district court . . . held the government to its heavy

burden of proving falsity and willfulness by clear and convincing evidence.”);

Griffin v. City of Omaha, 785 F.2d 620, 628 (8th Cir. 1986) (reversing and

remanding where district court failed to “assur[e] the appellate court, through

findings of fact or references in its memorandum opinion, that it had considered

strongly conflicting evidence and come to grips w ith apparently irreconcilable

conflicts.”) (Citation and internal quotation omitted).

      Accordingly, we REV ER SE and REM AND for further proceedings. O n

remand, the district court should apply the clear and convincing test in

determining whether it is constitutionally permissible for the government to

forcibly medicate M r. Valenzuela-Puentes, and must specifically consider the

impact of M r. Valenzuela-Puentes’s extremely low intelligence and the deep

entrenchment of his delusional thought patterns and beliefs on the likelihood that

medicating him will render him competent to stand trial.




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