United States v. Weston, Russell

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 4, 1999 Decided October 29, 1999

No. 99-3016

United States of America,
Appellee

v.

Russell Eugene Weston, Jr.,
Appellant

Appeal from the United States District Court
for the District of Columbia
(No. 98cr00357-01)

A. J. Kramer, Federal Public Defender, argued the cause
and filed the briefs for appellant. L. Barrett Boss, Assistant
Federal Public Defender, entered an appearance.

David B. Goodhand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Wilma A.
Lewis, U.S. Attorney, and John R. Fisher and Erik P.
Christian, Assistant U.S. Attorneys.

 Before: Edwards, Chief Judge, Wald and Williams,
Circuit Judges.

Opinion for the Court filed by Chief Judge Edwards.

Dissenting opinion filed by Circuit Judge Wald.

Edwards, Chief Judge: Russell Eugene Weston, Jr., the
appellant in this case, is charged with the murder of two
United States Capitol Police Officers and the attempted
murder of a third. In this appeal, Weston seeks to challenge
an order of the District Court requiring him to undergo a
competency examination to be conducted by a psychiatrist
suggested by the Government. Weston claims that he can
only be examined by a psychiatrist of his own choosing or by
a neutral doctor appointed by the trial court. However,
Weston never suffered the situation of which he complains,
because he repeatedly refused to speak to the psychiatrist
who had been appointed at the suggestion of the Government.
Due to Weston's refusal to undergo an examination by a
Government psychiatrist, the prosecution finally withdrew its
objection to a finding of incompetency and Weston was com-
mitted for treatment to restore competency pursuant to 18
U.S.C. s 4241(d) (1994). As a result, the order that Weston
challenges was never carried out and it is no longer in effect.
Accordingly, we dismiss the appeal as moot.

I. Background

On October 9, 1998, Russell Weston was indicted for the
July 24, 1998 murders of United States Capitol Police Officer
Jacob J. Chestnut and Special Agent John M. Gibson, and
with the attempted murder of United States Capitol Police
Officer Douglas B. McMillan. On October 15, 1998, the
Government and the defense filed a joint request pursuant to
18 U.S.C. s 4241 for a mental competency examination of
Weston.

The District Court appointed Dr. Sally C. Johnson, the
Chief Psychiatrist and Associate Warden of Health Services
at the Mental Health Division of the Federal Correctional
Institution in Butner, North Carolina ("FCI-Butner"), to

conduct an outpatient psychiatric examination of the defen-
dant to assist the court in determining whether the defendant
was competent to stand trial. Dr. Johnson spent approxi-
mately 20 hours with the defendant, personally administering
psychiatric and personality tests to him; she also reviewed
numerous medical and mental health records and interviewed
family members. Following her examination, Dr. Johnson
submitted a report to the District Court and defense counsel
under seal. Thereafter, defense counsel consented to a re-
lease of the report in unredacted form to the Government.
Dr. Johnson concluded that the defendant was presently
incompetent to stand trial, but that competency might be
restored with extended hospitalization and treatment with
anti-psychotic medication.

Concerned by what it perceived to be certain omissions and
inconsistencies in Dr. Johnson's report and in the defendant's
conduct, the prosecutor asked the District Court to compel
the defendant to submit to an examination by a mental health
expert of the Government's choosing. By Memorandum and
Order filed January 28, 1999, reprinted in Joint Appendix at
35-60, and modified on February 12, 1999, United States v.
Weston, 36 F. Supp. 2d 7 (D.D.C. 1999), the District Court
granted the Government's motion. The same order also
committed the defendant to the United States Medical Center
for Federal Prisoners at Springfield, Missouri ("Springfield")
for an examination by another court-selected expert. The
examination by the Government doctor was to take place
while the defendant was at Springfield.

The defendant was sent to Springfield on February 3, 1999.
A staff psychiatrist there, Dr. James Wolfson, was to serve as
the court-selected examiner; Dr. Debra DePrato was re-
tained as the Government's expert. The defendant refused to
answer substantive questions posed by Dr. Wolfson, Dr.
DePrato, or other staff members at Springfield, repeatedly
stating that he declined to answer questions upon the advice
of counsel. Counsel for Mr. Weston states that this behavior
was "solely a product of [Weston's] delusions," and that
Weston has refused to talk to his own attorney on the same
grounds. Appellant's Reply Br. at 4 n.2, 10. In any event, as

a result, the doctors were unable to obtain any pertinent
information and the District Court ordered that Weston be
brought back to Washington, D.C.

On March 3, 1999, the District Court modified its order to
permit Dr. Wolfson and Dr. DePrato to examine Weston at
the courthouse or at the Correctional Treatment Facility in
Washington, D.C., and to allow Dr. DePrato to arrange
psychological testing of Weston. However, Weston again
refused to cooperate with the doctors.

Weston's competency hearing was scheduled to take place
on April 22, 1999, but on April 9, 1999, in light of Weston's
refusal to cooperate with any further mental examinations
and concerned that the case not be delayed any longer than
necessary, the Government withdrew its objection to a finding
of incompetency based on Dr. Johnson's original report. On
April 22, 1999, the District Court found Weston incompetent
to stand trial and committed him for treatment to restore
competency pursuant to 18 U.S.C. s 4241(d).

II. Analysis

In this appeal, Weston argues that the District Court
lacked the authority to order a competency examination by a
doctor chosen by the Government. Weston claims that, un-
der 18 U.S.C. ss 4241 and 4247(b), competency examinations
may be conducted only by mental health experts appointed by
the trial court or selected by the defendant. The Govern-
ment does not contend that it has an absolute right to the
appointment of an expert to conduct a competency examina-
tion; rather, the Government claims only that it has the right
to request, and the District Court has the discretion to grant,
a competency examination by a mental health expert suggest-
ed by the Government. We need not decide the scope of the
disputed statutory provisions, however, because the instant
appeal is moot.

The date(s) for the competency examinations at issue have
come and gone. Because the defendant refused to speak to
the Government's suggested psychiatrist, no examination ever
took place. By withdrawing its objection to a finding of

incompetency, the Government also necessarily withdrew its
request that the defendant be compelled to submit to an
examination by a doctor other than Dr. Johnson. The defen-
dant has been found incompetent to proceed and has been
committed for treatment to restore competency pursuant to
18 U.S.C. s 4241(d). In sum, the order that Weston seeks to
challenge was never carried out and is no longer in effect.

"[A] federal court has neither the power to render advisory
opinions nor 'to decide questions that cannot affect the rights
of litigants in the case before them.' " Preiser v. Newkirk,
422 U.S. 395, 401 (1975) (citation omitted). "For that reason,
if [ ] event[s] occur while a case is pending on appeal that
make[ ] it impossible for the court to grant 'any effectual
relief whatever' to a prevailing party, the appeal must be
dismissed [as moot]." Church of Scientology of California v.
United States, 506 U.S. 9, 12 (1992). That is precisely what
has occurred here. Events have transpired such that Weston
did not submit to the disputed examination and is no longer
subject to any order requiring him to do so.

Weston argues, however, that the case should not be dis-
missed as moot because it falls within the exception to the
mootness doctrine for cases capable of repetition yet evading
review. This exception applies if: "(1) the challenged action
[is] in its duration too short to be fully litigated prior to its
cessation or expiration[;] and (2) there [is] a reasonable
expectation that the same complaining party [will] be subject
to the same action again." LaRouche v. Fowler, 152 F.3d
974, 978 (D.C. Cir. 1998) (alterations in original) (citing
Spencer v. Kemna, 118 S. Ct. 978, 988 (1998)).

We assume, in agreement with the defendant, that the
disputed issue is capable of repetition, because Weston might
again be ordered to submit to a Government competency
examination. First, if the doctors at FCI-Butner ultimately
conclude that Weston cannot be restored to competence in
the foreseeable future, the prosecution may seek an examina-
tion by a Government psychiatrist to challenge that conclu-
sion. Second, even if the doctors at FCI-Butner conclude
that Weston has regained competency, Weston may call a

number of defense experts to challenge that conclusion and,
in that event, the Government may want its own expert to
assist in responding to the defense experts. In either event,
the District Court may again order a competency examination
by a mental health expert suggested by the Government.
However, even assuming that the issue surrounding the Gov-
ernment's asserted right to suggest the appointment of a
mental health expert is capable of repetition, this case is
nonetheless moot because any further dispute over this issue
will not evade review.

Weston argues that an order compelling a defendant to
undergo a competency examination by a Government mental
health expert is immediately appealable under this court's
decision in United States v. Weissberger, 951 F.2d 392 (D.C.
Cir. 1991). Weissberger held that an order compelling a 30-
day competency evaluation was immediately appealable under
the collateral order doctrine, which allows the appeal of
orders that might otherwise be viewed as non-final, so long as
three conditions are met: the order must "(1) 'conclusively
determine the disputed question,' (2) 'resolve an important
issue completely separate from the merits of the action,' and
(3) 'be effectively unreviewable on appeal from a final judg-
ment.' " Weissberger, 951 F.2d at 396 (quoting Coopers &
Lybrand v. Livesay, 437 U.S. 463, 468 (1978)). There is no
doubt that if Weissberger applies in a situation such as the
one at hand, then the case is moot. This is because immedi-
ate appeal will be available in the future in the event that
Weston is again ordered to undergo a competency examina-
tion by a Government mental health expert. Thus, the issue
would not escape review.

The Government, however, argues that Weissberger is inap-
posite. In the Government's view, the court's determination
in Weissberger that the District Court's order would be
effectively unreviewable on appeal after final judgment was
based on the loss of liberty associated with the confinement
for the competency evaluation ordered in that case, not the
intrusion of the examination itself. In this case, the Govern-
ment argues, Weston has already been held without bail so
there is no loss of liberty.

 We need not decide the applicability of Weissberger in this
case, because, regardless of the availability of immediate
appeal, the issue raised in this case will not evade review. If
Weissberger does apply (so that any future order of a mental
examination by a Government doctor is immediately reviewa-
ble and, presumably, subject to a stay pending review), then
the defendant's interest in avoiding the intrusion of the
examination will be protected. On the other hand, if Weiss-
berger does not apply and the defendant must wait until after
his conviction (if any) to obtain review, that result will neces-
sarily reflect the court's conclusion that the order at issue is
not "effectively unreviewable on appeal from a final judg-
ment" and that protecting a defendant from the intrusion
associated with a particular medical examination is not, by
itself, worth the extra delay and disruption of the criminal
trial process.

In sum, because any future order compelling this defendant
to undergo a competency examination by a Government psy-
chiatrist will be subject to review, either immediately or
following a final judgment, the case is moot.

III. Conclusion

For the foregoing reasons, the appeal is dismissed as moot.

So ordered.

Wald, Circuit Judge, dissenting: I believe this court
should at a minimum make clear that in the future district
court orders such as the one in question here are immediately
appealable under United States v. Weissberger, 951 F.2d 392
(D.C. Cir. 1991). Weston raises a serious challenge to the
district court's authority to order that he undergo a psychiat-
ric examination by an expert of the government's choosing.1
Today's panel opinion delays, perhaps indefinitely, a decision
as to whether defendants can be subjected to such examina-
tions. I think both the mootness doctrine and a healthy
respect for the proper administration of justice, if not for
potential violations of defendants' rights, require that we
resolve the applicability of Weissberger to cases such as this
one.

Had my colleagues' opinion made clear that Weissberger
would allow an appeal of any future order like this one, then I
would agree this appeal was moot, since the examination in
dispute here had already taken place and the issue would not
be "capable of repetition, yet evading review," because in the
future this defendant would be entitled to interlocutory re-
view of a similar order.

I agree with the panel as well that if Weissberger does not
apply to this case, i.e., if there is no liberty interest in
avoiding a court-ordered examination by a psychiatrist of the
government's choice, then the issue would not be "capable of
repetition, yet evading review," because the question of

__________
1 The government suggests that since Weston does not contest
the authority of the district court to order an examination by a
court-appointed expert under 18 U.S.C. ss 4241, 4247, he has no
liberty interest in avoiding an examination by a government-
retained expert, even if the district court lacked the authority to
order Weston to undergo such an evaluation. This argument
borders on sophistry. If Weston has a liberty interest in avoiding
unwanted medical examinations, the fact that the statute authorizes
an examination by a court-appointed expert does not vitiate Wes-
ton's liberty interest in avoiding other, unauthorized, examinations.
The putative liberty interest is in avoiding forced psychiatric evalu-
ations, although in this case the only alleged unlawful infringement
of that interest is the examination by government-retained experts.

whether the district court was within its authority in ordering
the examination could be effectively reviewed on appeal from
a final judgment of conviction.2

Where the panel opinion falls down on the job, however, is
its obliviousness to a repetition of what has just occurred in
this case, i.e., a situation where the trial judge orders a
challenged examination and the court of appeals denies a
stay, so that by the time an appeal reaches a merits panel the
defendant's alleged liberty interest in not being examined by
a government-retained psychiatrist has already been violated.
At that point, unless the defendant goes to trial and is
convicted, he may never have the issue decided.3 The defen-
dant could indeed undergo many such examinations without
any opportunity to test their validity on appeal. That unfor-
tunate cycle could be avoided by this court's undertaking to
decide the limited question of whether Weissberger's provi-
sion for an interlocutory appeal would apply in any such
future occurrence.

If Weissberger were held to apply, the case would not be
"capable of repetition, yet evading review," in that our deci-
sion would have clarified the availability of an interlocutory
appeal, and in so doing, we could assume that a stay of an
order allowing a challenged examination would be granted
pending appeal.4

__________
2 Alternatively, the question could be reviewed on appeal from an
order of commitment, but to date Weston has not challenged his
commitment under 18 U.S.C. s 4247(b) (competency evaluation) and
under 18 U.S.C. s 4241(d) (determination of likelihood of future
competency).

3 A decision about whether to grant a stay of the district court's
order should not be mistaken for a decision on the merits of the
order. A motion for a stay is decided without the benefit of full
briefing or oral argument and, under the court's "stringent" stan-
dards, is rarely granted. See, e.g., Joint Appendix ("J.A.") at 74
(order denying stay).

4 The panel opinion "assumes" that this issue is capable of repeti-
tion. See Maj. Op. at 5. There is good reason for that assumption.
The Supreme Court has made it clear that the question is whether

 But, alas, nothing in today's panel opinion prevents Weston
from being denied a stay from this court the next time he
objects to a court-ordered psychiatric evaluation by a govern-
ment expert; indeed nothing suggests that it would be inap-
propriate for the court to deny such a stay. On the other
hand, the lack of guidance in today's panel opinion means that
a future panel could grant a stay, in order to resolve the
question of whether Weissberger applies. Cf. In re Sealed
Case, 151 F.3d 1059, 1067 (D.C. Cir. 1998) (mandamus appro-
priate "when the appellate court is convinced that resolution
of an important, undecided issue will forestall future error in
trial courts, eliminate uncertainty and add importantly to the
efficient administration of justice") (quotation marks omitted);
Southern Bell Tel. & Tel. Co. v. United States, 541 F.2d 1151,
1155 (5th Cir. 1976) ("[W]ithout criticizing our previous deni-
als of motions to stay, this abortive case serves to convince us
that special consideration should be given by us and by the
District Court in future similar cases."). But in making its
stay decision--which is where the rubber hits the road for a
defendant in Weston's position--the next court is back at
square one, just as the prior court was when it denied
Weston's stay this time.

__________
"the controversy was capable of repetition and not ... whether the
claimant ha[s] demonstrated that a recurrence of the dispute [is]
more probable than not." Honig v. Doe, 484 U.S. 305, 318-19 n.6
(1988). Our own cases also make it clear that this requirement
should not be interpreted overly stringently. See Christian
Knights of the Klu Klux Klan Invisible Empire, Inc. v. District of
Columbia, 972 F.2d 365, 370 (D.C. Cir. 1992) (reasonable expecta-
tion that racist group would seek to march in D.C. again, despite
fact that group did not aver it had plans to do so, sufficient to avoid
mootness); Doe v. Sullivan, 938 F.2d 1370, 1378 (D.C. Cir. 1991)
(soldier's challenge to policy of using experimental vaccines on
members of armed services without consent not moot in light of
increasing risks of biological warfare, despite fact that Gulf War
was only occasion military had not sought consent before vaccinat-
ing service members). The possibility that there will be another
contested competency hearing, where the government will seek to
rely on its own expert, fits comfortably within this line of cases as
satisfying the "capable of repetition" requirement.

 Thus, if this court fails to issue a stay the next time the
issue presents itself, it is hard to see why that case would not
become moot for the same reasons cited by this panel.5 The
real possibility that a future case would also be moot means
that this case satisfies the "capable of repetition, yet evading
review" exception to mootness. See Weinstein v. Bradford,
423 U.S. 147, 149 (1975) (per curiam).

For that reason, I believe it is necessary to rule that
Weissberger allows for immediate appeal of district court
orders requiring a defendant to undergo a psychiatric exam
at the hands of a government-retained expert before we can
find that this case is moot. I do not find that proposition
daunting.

In Weissberger, this court held plainly that an order requir-
ing a defendant to undergo a competency evaluation is imme-
diately appealable under the collateral order doctrine.
Weissberger, 951 F.2d at 397. The court noted that the
requirements of the collateral order doctrine were "easily
satisfie[d]." Id. at 396. The court explained that a forced
competency evaluation is unreviewable on an appeal from
final judgment for the same reasons that a denial of bail
cannot be effectively reviewed.

If appeal is not allowed from an order requiring pre-trial
detention, there can be no remedy for the resulting loss
of liberty. The issue becomes moot upon conviction and
sentence. The same is true here. Not only would
Weissberger be subjected to a 30-day confinement in a
mental institution, but he also would be subjected to the
additional intrusion of a forced medical examination. If

__________
5 It can hardly be argued that, absent a stay, an order requiring
the defendant to submit to a psychiatric examination would not
normally be implemented before this court could review the order.
See 18 U.S.C. s 4247(b) (court may commit defendant for reason-
able period not to exceed thirty days for purposes of competency
evaluation); Hinckley v. United States, 163 F.3d 647, 651 (D.C. Cir.
1999) ("[B]oth Supreme Court and circuit precedent hold that
orders of less than two years' duration ordinarily evade review.")
(quotation marks omitted).

 he is declared competent and the trial proceeds, post-
confinement review will provide no relief for the loss of
liberty associated with the competency evaluation.

Id. at 396-97 (citations omitted). I read this opinion as
controlling the case before us today.

The government suggests that Weissberger is inapplicable
because there the defendant was challenging two aspects of
the competency evaluation order, the confinement as well as
the examination, whereas Weston only challenges one aspect
of the district court's order, the examination. Cf. United
States v. Deters, 143 F.3d 577, 582 (10th Cir. 1998) (holding
competency evaluation order appealable where defendant
challenges confinement, but noting that whether examination
itself is immediately appealable is a separate question).
However, Weissberger nowhere indicates that its result
turned on the fact that Weissberger was challenging the
confinement aspect of the order.

Reading Weissberger to allow appeals only where the de-
fendant is challenging his confinement could lead to incongru-
ous results. A defendant such as Weissberger, who is or-
dered to undergo inpatient evaluation, can challenge both the
psychiatric examination and the commitment order. Howev-
er, where the court orders an inpatient examination, and
later, like the court below, issues another order allowing
further examination by government-retained psychiatrists,
the defendant would be unable to challenge that examination,
even though it differs from Weissberger's only in the question
of when the court's confinement order was entered. Like-
wise, a defendant who is subjected to an outpatient examina-
tion while in custody in a non-psychiatric prison facility, as
Weston was, would also be unable to challenge the examina-
tion. It does not seem to me that the right to interlocutory
appeal under Weissberger should depend on such vagaries of
timing and location.

In fact, Weissberger makes clear that the court was con-
cerned with the "intrusion of a forced medical examination"
and found the order appealable because "post-confinement
review will provide no relief for the loss of liberty associated

with the competency evaluation." Weissberger, 951 F.2d at
396-97 (emphasis added). Furthermore, there is good prece-
dent for the principle that a forced medical examination
constitutes an invasion of a person's liberty interests. See
United States v. Davis, 93 F.3d 1286, 1289 (6th Cir. 1993)
(competency evaluation orders immediately appealable be-
cause "the loss of liberty occasioned by the commitment for
examination, and the forced intrusion of a court-ordered
psychiatric examination, are completely unreviewable by the
time of final judgment") (emphasis added); Union Pac. Ry. v.
Botsford, 141 U.S. 250, 251 (1891) (federal courts have no
inherent power to order medical examinations in civil cases
because "[n]o right is held more sacred, or is more carefully
guarded by the common law, than the right of every individu-
al to the possession and control of his own person, free from
all restraint or interference of others, unless by clear and
unquestionable authority of law"); cf. Cruzan v. Director,
Missouri Dep't of Health, 497 U.S. 261, 287 (1990) (O'Connor,
J., concurring) ("I agree that a protected liberty interest in
refusing unwanted medical treatment may be inferred from
our prior decisions...."); United States v. Morgan, ___ F.3d
___, ___ 1999 WL 734700 at *6 (4th Cir. Sept. 21, 1999) (order
allowing forced medication of pretrial detainee immediately
appealable); United States v. Brandon, 158 F.3d 947, 951 (6th
Cir. 1998) (same). But cf. United States v. Barth, 28 F.3d
253, 255 (2d Cir. 1994) (competency evaluation order not
immediately appealable on grounds that competency determi-
nation is not separate from merits of action, and defendant
could challenge commitment by writ of habeas corpus).

Weissberger, correctly, requires that orders requiring de-
fendants to undergo psychiatric examinations are immediately
appealable, and I believe this court should at least make that
clear if this defendant, and others like him, are not to be
repeatedly subjected to psychiatric examinations whose pro-
priety has never been established. At a minimum, Weston
deserves a meaningful opportunity for judicial review of the
validity of these "intrusive, unwanted medical examina-
tion[s]." Weissberger, 951 F.2d at 396.

 Even if I am wrong, and Weissberger is eventually read
more narrowly not to provide an interlocutory appeal from a
competency examination per se, it would be in the interests of
everyone--this defendant, future defendants, their counsel,
and the government--to know that in advance of the next
time the issue is raised. Otherwise everyone runs the risk of
another abortive attempt to learn just what the law is, and to
plan accordingly.

For these reasons, I dissent.