United States v. Magassouba

06-2628-cr
United States v. Magassouba

UNITED STATES COURT OF APPEALS

FOR THE S ECOND C IRCUIT

August Term, 2006

(Argued: May 10, 2007 Decided: September 19, 2008)

Docket No. 06-2628-cr

U NITED S TATES OF A MERICA,

Appellee,
—v.—

M OUSTAPHA M AGASSOUBA,

Defendant-Appellant.

Before:

B.D. P ARKER, R AGGI, and W ESLEY, Circuit Judges.

Appeal from an order of the Southern District of New York (Deborah A. Batts, Judge)

(1) denying defendant’s motion for dismissal of the indictment and unconditional release

from federal custody; and (2) ordering defendant’s commitment for psychiatric treatment,

including the involuntary administration of antipsychotic medication, pursuant to 18 U.S.C.

§ 4241(d)(2)(A) (2006).

A FFIRMED.

1
 A NDREW R. P OLLAND (John P. Cooney, Jr., on the brief), New York, New
York, for Defendant-Appellant.

M ARIA E. D OUVAS, Assistant United States Attorney (Jonathan S.
Kolodner, Assistant United States Attorney, on the brief), for Michael J.
Garcia, United States Attorney for the Southern District of New York, New
York, New York, for Appellee.

R EENA R AGGI, Circuit Judge:

Defendant Moustapha Magassouba appeals from a May 10, 2006 interlocutory order

of the United States District Court for the Southern District of New York (Deborah A. Batts,

Judge) that (1) denied his motion to dismiss the indictment charging him with conspiracy to

distribute and possess with intent to distribute one kilogram or more of heroin in violation

of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A), 846; and (2) ordered his hospitalization pursuant to

18 U.S.C. § 4241(d)(2)(A) for psychiatric treatment, including the involuntary administration

of antipsychotic medication. On this appeal, Magassouba does not dispute the merits of the

district court’s findings that (a) he is incompetent to stand trial, see 18 U.S.C. § 4241(d); (b)

there is a substantial probability that, with treatment, he could attain competency in the

foreseeable future, see id. § 4241(d)(2)(A); or (c) the circumstances of his case satisfy the

criteria for involuntary treatment specified in Sell v. United States, 539 U.S. 166 (2003).

Instead, he argues that, at the time of the challenged order, the district court lacked authority

to commit him for psychiatric treatment. He further submits that the length of his

2
unauthorized confinement violated due process so as to require the dismissal of his

indictment and his release from custody.

Magassouba’s arguments largely depend on the construction of § 4241(d), a statute

that authorizes a district court to commit a mentally incompetent defendant to custodial

hospitalization (1) for a reasonable period “not to exceed four months” to determine whether

he can attain competency to stand trial, 18 U.S.C. § 4241(d)(1); and, (2) if the court finds a

“substantial probability” that the defendant can attain such competency in the “foreseeable

future,” for an additional “reasonable period” of appropriate treatment, id. § 4241(d)(2)(A).

Magassouba submits that a district court is only authorized to order additional hospitalization

if it makes the requisite substantial probability finding under § 4241(d)(2)(A) within the term

of a defendant’s § 4241(d)(1) confinement, which was not done in this case.

The government submits that we lack jurisdiction to hear this interlocutory appeal.

Alternatively, it challenges defendant’s arguments on the merits.

For the reasons stated herein, we conclude that the collateral order doctrine supports

our exercise of jurisdiction. We further conclude that the district court did not exceed its

authority in ordering Magassouba’s § 4241(d)(2)(A) commitment for additional custodial

hospitalization and involuntary psychiatric treatment. We agree with defendant that §

4241(d) does not permit an incompetent defendant to be held in uninterrupted custodial

hospitalization unless a district court finds, before the expiration of a defendant’s initial term

of § 4241(d)(1) confinement (which cannot exceed four months), that circumstances warrant

3
additional hospitalization pursuant to § 4241(d)(2)(A). Thus, when a defendant’s term of §

4241(d)(1) confinement expires and no § 4241(d)(2) order has yet been entered, the Attorney

General lacks statutory authority to hold a defendant in further custodial hospitalization. But

we cannot agree that the statute also limits a district court’s authority to enter a §

4241(d)(2)(A) order to the term of § 4241(d)(1) confinement. Such a construction could

itself raise constitutional concerns to the extent it failed to afford a defendant a reasonable

time to secure and present evidence in opposition to additional § 4241(d)(2)(A)

hospitalization, particularly hospitalization involving involuntary medication. See Sell v.

United States, 539 U.S. at 180-81.

In this case, it appears that the Attorney General exceeded his § 4241(d) authority by

holding Magassouba in custodial hospitalization for a few weeks longer than the four months

authorized by the district court’s § 4241(d)(1) order. We conclude that this error was

harmless because Magassouba was not subjected to psychiatric treatment during this

unauthorized hospitalization, and his general confinement was otherwise authorized by the

Bail Reform Act, 18 U.S.C. § 3142. Thus, the error could not deprive the district court of

its authority subsequently to enter the challenged § 4241(d)(2)(A) order.

We further conclude that Magassouba’s nineteen-month detention from the time he

was found incompetent until the date of the challenged order was not constitutionally

unreasonable so as to violate due process. Magassouba’s refusal to accept treatment that his

own lawyers acknowledged would likely render him competent required the district court

4
carefully to consider a host of medical and legal factors that due process demands be satisfied

before a defendant can be hospitalized for involuntary medication. See Sell v. United States,

539 U.S. at 180-81.

Accordingly, we affirm the challenged order denying dismissal of the indictment and

ordering further hospitalization and treatment pursuant to 18 U.S.C. § 4241(d)(2).

I. Background

A. The Indictment and § 3142 Order of Detention

Moustapha Magassouba is a citizen of Guinea who has resided in the United States

since 1990. On August 12, 2003, a grand jury sitting in the Southern District of New York

charged Magassouba in a one-count indictment with conspiracy to distribute one kilogram

or more of heroin, a crime carrying a sentencing range from ten-years-to-life incarceration.

See 21 U.S.C. §§ 841(a)(1) & (b)(1)(A), 846. This charge gave rise to a presumption of

detention under the Bail Reform Act, 18 U.S.C. §§ 3142(e), (f)(1)(C) (establishing rebuttable

presumption “that no condition or combination of conditions will reasonably assure the

[defendant’s] appearance . . . and the safety of the community” for drug offenses carrying

maximum prison sentence of ten years or more), and Magassouba was ordered detained

under this statute without objection.

A few months later, in November 2003, defendant’s initial attorney was relieved and

present counsel was appointed by the court. At no time in the district court did past or

present counsel challenge the § 3142 detention order or seek its amendment. On January 29,

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2004, however, defense counsel raised a concern as to Magassouba’s mental competence.

To understand the proceedings that ensued and defendant’s challenge on this appeal, it is

necessary briefly to outline the federal statutory scheme for resolving the competency of

criminal defendants.

B. The Statutory Scheme for Determining a Criminal Defendant’s Competency

1. The Initial Competency Determination

When a criminal defendant’s competency is called into question, 18 U.S.C. § 4241(d)

requires the district court to make a preliminary finding as to whether a preponderance of the

evidence demonstrates that the defendant is, in fact, incompetent, i.e., whether a “mental

disease or defect” renders him “unable to understand the nature and consequences of the

proceedings against him or to assist properly in his defense.” To make this determination,

the district court must conduct a hearing at which the defendant, represented by counsel, is

afforded an opportunity to testify and to call and confront witnesses. See 18 U.S.C. §§

4241(a), (c) & 4247(d). Prior to this hearing, the district court “may order” a psychiatric or

psychological examination of the defendant. Id. § 4241(b). To effect such examination, the

court “may” order the defendant committed “to the custody of the Attorney General for

placement in a suitable facility.” Id. § 4247(b). This commitment may not “exceed thirty

days,” although the statute permits the director of the designated commitment facility to

apply for a “reasonable extension . . . not to exceed fifteen days.” Id.

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 2. The Evaluation and Treatment of Incompetent Defendants

If the district court makes a preliminary finding of incompetence, the second step of

the statutory scheme – at issue in this case – mandates the defendant’s custodial

hospitalization for evaluation and possible treatment. The district court “shall commit the

defendant to the custody of the Attorney General,” who “shall hospitalize the defendant for

treatment in a suitable facility.” Id. § 4241(d). Initially, such hospitalization seeks “to

determine whether there is a substantial probability that in the foreseeable future [the

defendant] will attain the capacity to permit the proceedings to go forward.” Id. §

4241(d)(1). This evaluative hospitalization is limited to “a reasonable period of time, not to

exceed four months.” Id. Thereafter, “if the court finds that there is a substantial

probability” that the defendant “will attain the capacity to permit the proceedings to go

forward,” the law provides for further hospitalization “for an additional reasonable period

of time.” Id. § 4241(d)(2)(A).

3. The Final Competency Determination

At the conclusion of the specified hospitalization commitment, if the court determines

that the defendant has not attained the competency necessary to proceed to trial, § 4241(d)

provides for the defendant to be referred for civil commitment pursuant to 18 U.S.C. §§ 4246

and 4248. If, however, the director of the hospital facility to which the defendant is

committed determines that he has attained the requisite mental competency, the director shall

so certify to the court, which must then hold another competency hearing. See 18 U.S.C. §

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4241(e). If the court then finds by a preponderance of the evidence that the defendant is

competent to stand trial, it “shall order his immediate discharge from the facility in which he

is hospitalized and shall set the date for trial or other proceedings.” Id. Upon such

discharge, the defendant is “subject to the provisions of chapters 207 and 227,” which

include the detention provisions of the Bail Reform Act. Id.

C. The Competency Proceedings Leading to the Challenged Order

1. The District Court Finding of Magassouba’s Incompetency

When, on January 29, 2004, defense counsel voiced concern about Magassouba’s

mental competency, the district court did not order confinement for examination pursuant to

18 U.S.C. §§ 4241(b) and 4247(b). Instead, on January 30, 2004, it granted the defense

motion to have Magassouba, who was then confined in the Metropolitan Detention Center

(“MDC”) pursuant to the Bail Reform Act, 18 U.S.C. § 3142, examined at that Brooklyn

facility by a private psychologist, Dr. Gary Robert Collins. In a report dated March 31, 2004,

Dr. Collins expressed his expert opinion that Magassouba was incompetent to stand trial. Dr.

Collins found that Magassouba suffered from a psychotic disorder, with the most likely

diagnosis being Delusional Disorder, Mixed Type.1 Dr. Collins concluded that, as a result

1
As Dr. Collins detailed in his report, a person with this disorder “suffers from false
fixed beliefs of a ‘nonbizarre’ quality.” Dr. Collins determined that Magassouba suffered
specifically from persecutory delusions, i.e., he believed that the judge, the attorneys, and
unknown court personnel involved in his case were conspiring against him and that his
mother-in-law was trying to kill him.

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of this disorder, the defendant lacked both a reasonable degree of rational understanding of

the proceedings against him and a present ability to consult with his attorneys with a

reasonable degree of rational understanding. The doctor recommended Magassouba’s

hospitalization for a full medical and psychiatric-neurological evaluation and possible

treatment with antipsychotic medication.

On October 13, 2004, at a competency hearing held pursuant to 18 U.S.C. § 4241(a),

the district court heard directly from Dr. Collins, and from the Drug Enforcement

Administration agent who had arrested Magassouba and reviewed telephone conversations

between defendant and his wife recorded while the former was incarcerated in this case. The

court found by a preponderance of the evidence that the defendant was “suffering from a

mental disease or defect rendering him mentally incompetent to the extent that he is unable

to assist properly in his defense, . . . and perhaps may not even understand the nature of the

charges against him and the consequences of the proceedings.” Hearing Tr., Oct. 13, 2004,

at 76.

2. Magassouba’s Commitment Pursuant to § 4241(d)(1)

At the conclusion of the October 13, 2004 hearing, the district court orally ordered

Magassouba committed pursuant to § 4241(d)(1) “to the custody of the Bureau of Prisons

[‘BOP’] for a period of 60 days, during which time he shall be placed in a suitable hospital

setting so that he may receive treatment to restore competency and to be evaluated further

to determine whether there is a substantial probability that he will attain mental competency

9
in the foreseeable future.” Id. at 77. The BOP was ordered to detail its determination as to

the probability of Magassouba regaining competency in a written report to be filed with the

court “[w]ithin 30 days of the expiration of this 60 day order,” id., in short, by January 11,

2005. The order granted the parties two weeks thereafter to file written responses to the BOP

report, after which the court would schedule a second competency hearing “as soon as is

practicable.” Id.2

3. The Bureau of Prisons’ § 4241(d)(1) Report

Various circumstances contributed to the BOP not filing its evaluation report until

May 27, 2005, more than seven months after the district court’s initial hospitalization order.

Notably, on or about November 18, 2004, more than a month after the district court had

orally ordered Magassouba hospitalized for evaluation, prosecutors learned that the order had

not yet been executed by the United States Marshals Service, apparently because the marshals

had never received notice of the directive. The government alerted the district court to this

fact, and, on November 22, 2004, the court reduced its commitment order to writing. The

order was entered on the docket on November 24, 2004, and presumably transmitted to the

Marshals Service at or about that time.

2
Had this schedule been adhered to, it is conceivable that the district court have
decided whether further hospitalization pursuant to § 4241(d)(2)(A) was warranted before
February 14, 2005, four months after its oral § 4241(d)(1) order.

10
 A month later, on December 22, 2004, Magassouba was finally admitted to the BOP

hospital facility in Butner, North Carolina (“Butner”).3 By letter dated December 28, 2004,

Butner’s Warden wrote to the district court requesting that the ordered evaluation period

commence with Magassouba’s arrival at Butner and that the period be extended from 60 days

to four months, ending on April 20, 2005. The district court granted the Warden’s request

on January 4, 2004, ordering the BOP to submit its written findings 30 days after the close

of this evaluation period, i.e., on May 20, 2005. The court also scheduled a competency

hearing for June 15, 2005. No party objected to this amended § 4241(d)(1) order.

Approximately six weeks later, on February 15, 2005, defense counsel sent a letter to

the government’s attorneys requesting the BOP’s prompt completion of Magassouba’s

evaluation and noting that “significant due process concerns” were implicated in the length

of defendant’s evaluation confinement. Cooney Letter to Douvas, Feb. 15, 2005. Nothing

in the record before this court indicates that a copy of this letter was filed with the district

court, or that defense counsel otherwise objected to or sought amendment of the schedule set

by the district court.

On May 3, 2005, four months and two weeks after Magassouba arrived at Butner,

officials at that facility informed the marshals that “[t]he period of study and observation

concerning the [defendant] has ended. He is now ready to be returned to [the Southern

3
In the interim, Magassouba had apparently written to the district court seeking
reconsideration of its incompetency finding and replacement of counsel. The district court
denied both applications by order dated December 9, 2004.

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District of New York] for continuation of proceedings.” Memorandum from Cruze, Inmate

Systems Manager at FMC Butner, to U.S. Marshals Service, May 3, 2005. Nine days later,

on May 12, 2005, deputy marshals transported Magassouba back to New York where he has

since been housed at the Metropolitan Correction Center (“MCC”) in Manhattan.

On May 27, 2005, one week after the court-ordered May 20, 2005 filing deadline, the

BOP issued a twenty-page single-spaced report of its determination as to the probability of

Magassouba’s regaining competency. Like Dr. Collins, the evaluating BOP psychiatrist and

psychologist diagnosed Magassouba to have a Delusional Disorder, Mixed Type. The

doctors reported that this disorder “prevents [Magassouba] from possessing a rational

understanding of the charge against him,” which “inhibits his ability to assist in his own

defense.” BOP Evaluation at 7. Further, Magassouba’s “mental disease causes him to be

unable to communicate verbally in a meaningful fashion with his attorney,” in part because

it caused him to hold “delusional beliefs” about his counsel as well as the prosecutors. Id.

at 8.

The BOP evaluators nevertheless determined that it was substantially likely that

Magassouba could regain competency through a course of psychotropic medication, which

they explained in some detail. At the same time, they noted that, while at Butner,

Magassouba had “rigidly opposed” taking any such medication, insisting that he was “not

mentally ill.” Id. at 7. Because Magassouba did not pose a threat to himself or others at the

hospital facility, Butner officials had concluded that he did not meet the BOP’s

12
administrative criteria for involuntary medication derived from Washington v. Harper, 494

U.S. 210 (1990). Id. at 9. Nevertheless, the BOP doctors reported that involuntary

medication for purposes of restoring competency might be authorized by the court pursuant

to Sell v. United States, 539 U.S. 166. Id. In Sell, the Supreme Court had ruled that an

incompetent defendant may be involuntarily medicated for the sole purpose of rendering him

competent to stand trial only if four criteria are satisfied: (1) there are important government

interests in trying the individual; (2) the treatment will significantly further those interests;

(3) the treatment is necessary to further those interests, considering any less intrusive

alternatives; and (4) the treatment is medically appropriate. See id. at 180-81. While the

BOP evaluators reported that the first factor was outside the scope of their medical expertise,

they discussed in detail how the remaining three factors supported Magassouba’s involuntary

medication.

4. The Parties’ Joint Proposal for Treatment to Help Magassouba Attain
Competency

On June 3, 2005, within days of receiving the BOP report, the district court afforded

the parties thirty days within which to submit responses. In a June 29, 2005 letter response,

defense counsel did not complain that Magassouba had been detained beyond the time

permitted by statute, or that the district court lacked authority to order his further

commitment or treatment, the arguments raised on this appeal. Instead, defense counsel

joined with the government in agreeing with the BOP’s determination that Magassouba’s

“competence could be restored with the administration of antipsychotic medication.” Cooney

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Letter to Judge Batts, June 29, 2005, at 1; see Douvas Letter to Judge Batts, July 1, 2005, at

1 (urging that defendant be treated according to plan proposed by defense “to restore

defendant’s competency status”). In a proposed order, submitted by defense counsel on July

13, 2005, with the government’s consent, the parties urged the district court to order

Magassouba hospitalized for treatment “with or without defendant’s consent” according to

a modified version of the BOP treatment plan “consistent with the goals of restoring

defendant’s competency status and/or diagnosing his psychiatric and medical condition.”

Proposed Order at 3, accompanying Polland Letter to Judge Batts, July 13, 2005.4

5. The District Court’s Request for Additional Information

Despite the parties’ agreement, the district court did not sign the jointly proposed

order. Instead, on July 15, 2005, it ordered that, within thirty days, the prosecution and the

BOP provide the court with more information to assist it in determining the propriety of

involuntary treatment consistent with Sell v. United States, 539 U.S. 166. To ensure the first

Sell factor, i.e., that the government’s interest in bringing Magassouba to trial was

sufficiently important to overcome the defendant’s interest in refusing the involuntary

4
The modified plan, set forth in a June 29, 2005 letter from defense counsel to the
court and agreed to by the government, sought to provide treating physicians with “a more
expansive range of options” than specified in the BOP evaluation report, by (1) expanding
the “range of doses” for medications specified in the report, (2) authorizing “alternative and
additional drugs,” (3) authorizing “additional antipsychotic and mood stabilizing drugs . . .
as contingent medications,” and (4) authorizing “continued psychotherapy . . . as an
additional treatment to supplement drug therapy.” Cooney Letter to Judge Batts, June 29,
2005, at 1-2.

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administration of drugs (the one issue not addressed by the BOP in its evaluation), the district

court instructed the government to submit a “written offer of proof” with respect to the

charged crime. Order, July 15, 2005, at 1. The court further directed the BOP to explain

more particularly why it was “medically appropriate forcibly to administer antipsychotic

drugs to an individual who is (1) not dangerous and (2) is competent to make up his own

mind about treatment.” Id. at 2 (emphasis in original).

6. The Parties’ Responses and Renewed Request for Involuntary
Treatment

By letter dated August 15, 2005, the prosecution declined to provide the requested

offer of proof, stating that the government’s strong interest in pursuing Magassouba’s

prosecution could be inferred from the ten-year mandatory minimum sentence that he faced

if convicted of the charged conspiracy. Dissatisfied with what it characterized as a

“nonresponse response,” the district court issued a new order on August 18, 2005, directing

the government for a “second time” to provide an offer of proof. Order, Aug. 18, 2005, at

1. The prosecution complied by filing a sealed, ex parte submission on September 2, 2005.5

5
Because Magassouba does not challenge the district court’s ultimate conclusion that
the government satisfied the Sell factors for ordering involuntary medication, we have no
occasion on this appeal to consider the propriety of such an ex parte, sealed offer of proof.
Cf. United States v. Abuhamra, 389 F.3d 309 (2d Cir. 2004) (holding that ex parte, in camera
submissions from the government should generally not be entertained in denying bail
release). Similarly, we need not address the government’s argument that such a proffer was
unnecessary to establish the first Sell factor in light of the nature of the charge against
Magassouba and its ten-year mandated minimum penalty.

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 Meanwhile, the BOP inexplicably failed to respond to the district court’s July 15,

2005 order until November 10, 2005. Its belated submission explained that, although

Magassouba posed no threat of harm and was competent to make medical treatment

decisions, an involuntary treatment order was “medically appropriate” from a “cost/benefit

standpoint,” in that the “potential for benefit from psychotropic medication would far

[outweigh] the potential for significant adverse reactions.” BOP Addendum to Evaluation

at 1-2.

Thereafter government and defense counsel submitted letters to the district court that

reiterated their agreement that Magassouba was incompetent to stand trial and that

psychotropic medication would likely restore his competency. They each requested that the

court order such treatment, involuntarily if necessary.6

7. The District Court’s Efforts to Secure Magassouba’s Voluntary
Submission to Treatment

Even after the parties had thus communicated for a second time their agreement on

the propriety of an order authorizing defendant’s involuntary medication, the district court

6
Defense counsel noted that, although Magassouba refused to consent to antipsychotic
medication while at Butner, he had never been ordered by the court to submit to such
treatment. Accordingly, counsel requested “that any forthcoming Order on this issue direct
Mr. Magassouba to take the medication prescribed by his treating doctor(s) on his own
accord, and only authorize the forcible administration of such drugs in the event he refuses
to comply with the Court’s order.” Polland Letter to Judge Batts, Dec. 2, 2005, at 3; see
Douvas Letter to Judge Batts, Dec. 6, 2005, at 4 (requesting order that BOP “medicate the
defendant involuntarily should the defendant refuse to comply with the Court’s [treatment]
directive”).

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opted to proceed more cautiously. On January 3, 2006, the court entered an order finding

that Magassouba was incompetent to stand trial and likely to remain so absent medication.

The order employed language strongly encouraging Magassouba’s voluntary submission to

medication, but it stopped short of authorizing involuntary administration:

Without medication, Mr. Magassouba continues to be incompetent to proceed to
trial. Mr. Magassouba has declined to be medicated. Mr. Magassouba has been
found not to be a danger to others or to himself.

Mr. Magassouba represents that he wishes to move forward in this matter. In
order for this court to find him competent, however, Mr. Magassouba has to
voluntarily accept and continue medication. Until that time, this Court’s finding
of his incompetence stands.

Order, Jan. 3, 2006, at 1.

By letter dated January 27, 2006, defense counsel advised the court that Magassouba

had directed them to convey his unwillingness to accept medication voluntarily. On January

30, 2006, the government renewed its motion for involuntary medication. The next day, the

court summarily denied the motion.

8. Magassouba’s Motion for Dismissal of the Indictment and
Unconditional Release

Two months later, on March 22, 2006, defense counsel moved for dismissal of the

indictment and for Magassouba’s unconditional release. Counsel argued – for the first time

– that the district court lacked authority to order Magassouba’s additional hospitalization and

treatment pursuant to § 4241(d)(2)(A) because it had not made a finding of a substantial

probability that the defendant would attain competence in the foreseeable future within four

months of defendant’s § 4241(d)(1) commitment, as required by statute. Alternatively,

17
counsel argued that defendant’s continued confinement to attain competency exceeded the

“reasonable” period contemplated by the statute and the Due Process Clause.

The prosecution opposed the motion in a letter dated April 26, 2006. It argued that

Magassouba was not being detained in violation of § 4241(d) because his hospitalization

under that statute had ended more than a year earlier. It submitted that Magassouba’s present

detention in the MCC was pursuant to the Bail Reform Act, 18 U.S.C. § 3142, and based on

the court’s unchallenged finding at the time of defendant’s arraignment that he posed a

presumptive risk of flight and danger to the community. To the extent Magassouba had not

yet been brought to trial because of his incompetence, the prosecution asserted that his ability

to regain competence was undisputed. Examining government and defense experts agreed

that, with recommended medication, there was a substantial probability that the defendant

would attain competence in the foreseeable future. The reason this probability had not been

realized was that defendant refused to take the prescribed medication. Under these

circumstances, the prosecution argued that Magassouba should not be allowed to use his

incompetence as both a shield to avoid trial and a sword to demand unconditional release.

It urged the district court to take the steps necessary to bring the case to trial, i.e., (1) formally

find under § 4241(d)(2) a substantial probability that, with the recommended medication,

Magassouba would attain competency; and (2) order that the recommended medication be

administered, involuntarily if necessary pursuant to Sell v. United States, 539 U.S. 166.

18
 9. The Challenged Order Denying Dismissal and Ordering Involuntary
Medication

By order dated May 10, 2006, the district court denied Magassouba’s motion for

dismissal and release. In so ruling, the court rejected the defense argument that it had failed

to make the findings required by § 4241(d)(2). The court observed that the requisite finding

that, with treatment, Magassouba could regain competence was implicit in its order seeking

further information as to the propriety of ordering such treatment to be administered even

involuntarily. While expressing a general reluctance to order involuntary medication for a

defendant who posed no danger to himself or others, the district court acknowledged that

such an order might be warranted to “move the criminal process forward” when a defendant,

such as Magassouba, deliberately refused treatment likely to render him competent to stand

trial. Order, May 10, 2006, at 3. Specifically detailing how each of the four Sell factors were

satisfied in the case, the court ordered Magassouba “committed to the custody of the

Attorney General for psychiatric treatment, including the involuntary administration of anti-

psychotic medication . . . in accordance with the Proposed Treatment Plan set forth in

Defense counsel’s letter of June 29, 2005, and agreed to by the Government.” Id. at 4-5.

Magassouba appeals this commitment order.

II. Discussion

A. Jurisdiction

The government submits that this court lacks jurisdiction to hear Magassouba’s appeal

because the challenged order is not a “final decision” of the district court. 28 U.S.C. § 1291.

19
The final-decision rule applies with particular force in criminal cases, which we generally

review only after sentence has been imposed and a judgment of conviction entered. See

United States v. Robinson, 473 F.3d 487, 490 (2d Cir. 2007); United States v. Olmeda, 461

F.3d 271, 278 (2d Cir. 2006); United States v. Gold, 790 F.2d 235, 237 (2d Cir. 1986). An

order denying a motion to dismiss an indictment is usually viewed as “interlocutory and not

appealable.” United States v. Midland Asphalt Corp., 840 F.2d 1040, 1042 (2d Cir. 1988).

Under the collateral order doctrine, the law nevertheless recognizes a small class of

preliminary rulings, even in criminal cases, as final when they (1) conclusively resolve a

disputed question that (2) is an important issue completely separate from the merits of the

action, and that (3) would be effectively unreviewable on appeal from a final judgment. See,

e.g., Flanagan v. United States, 465 U.S. 259, 265 (1984) (and cases cited therein); accord

United States v. Robinson, 473 F.3d at 490-91 (and cases cited therein). Applying this three-

part test in United States v. Gold, 790 F.2d 235, this Court concluded that a § 4241(d)(1)

commitment order was immediately appealable. Gold observed that the order was based on

a finding that defendant was incompetent to stand trial, which was conclusive in requiring

defendant’s custodial hospitalization for up to four months. See 790 F.2d at 239. A finding

of present incompetency to stand trial was, moreover, distinct from the expected trial issue

of Gold’s competency to commit the charged crime. See id. at 238. Finally, the order was

effectively unreviewable on appeal from a final judgment because if defendant were never

tried or were tried and acquitted, there would be no appellate review, and if he were tried and

20
convicted, no meaningful relief would be available. See id. at 239 (noting that “[w]hether

or not the conviction were set aside, nothing could recover for the defendant the time lost

during his confinement; probably no one could be held liable to him in damages for the loss

of his liberty”).

While Gold’s reasoning as to the appealability of § 4241(d)(1) hospitalization

commitment orders would seem to apply with equal force to § 4241(d)(2) orders for

additional custodial hospitalization,7 we note one concern in relying on its conclusion that

the challenged order “conclusively determine[d] Gold’s present right to be at liberty prior to

trial.” Id. Gold does not indicate whether the § 4241(d)(1) order was the sole ground for the

defendant’s confinement or whether he was also detained pursuant to 18 U.S.C. § 3142. See

id. at 236 (noting simply that defendant “was arrested and sent to the United States Medical

Center for Federal Prisoners in Springfield, Missouri” for preliminary competency

examination). An observation in United States v. Filippi suggests that the answer might be

relevant to the application of the collateral order doctrine. See 211 F.3d 649, 650-51 (1st Cir.

2000) (holding that collateral order doctrine supported jurisdiction to review challenged §

4241(d)(1) order in case where defendant was not otherwise detained, while noting that he

7
Gold itself observed that its reasoning would not apply to § 4241 orders that
committed a defendant for preliminary examination as to competency. See Gold v. United
States, 790 F.2d at 239. As this court subsequently explained in United States v. Barth, 28
F.3d 253, 255-56 (2d Cir. 1994), such a “first-step” order does not “resolve an important
issue” distinct from the merits of the action, specifically, defendant’s competency to stand
trial. Rather, it “is a preliminary step” to the district court’s “ultimate determination” of that
issue. Id. at 255.

21
was “not being detained as a flight risk or danger to the community” under 18 U.S.C. §

3142). Whether the custodial hospitalization pursuant to § 4241(d)(1) or (d)(2) of a

defendant who is already generally detained pursuant to § 3142 qualifies as an appealable

final order in every case is not something we need here decide because the § 4241(d)(2)(A)

order here at issue not only commits Magassouba for an additional period of hospitalization,

but also authorizes his involuntary medication.

In Sell v. United States, the Supreme Court ruled that a § 4241(d) order authorizing

the involuntary medication of an incompetent defendant is an immediately appealable

collateral order. 539 U.S. at 177. Sell observed that (1) an involuntary medication order

conclusively resolves the legal question of the defendant’s right to refuse treatment, which

(2) is a legal question of constitutional significance separate from the merits of the

underlying criminal action, that (3) is effectively unreviewable on appeal from a final

judgment because, by that time, the defendant would have undergone the compelled

medication he sought to avoid. See id. at 176-77 (noting that defendant “cannot undo that

harm even if he is acquitted. Indeed, if he is acquitted, there will be no appeal through which

he might obtain review”). Following this precedent, we conclude that the collateral order

doctrine affords us jurisdiction over this appeal, because the challenged order authorizes

Magassouba’s involuntary medication while confined to a prison hospital facility.

In urging against this conclusion, the government argues that Sell is inapplicable to

this case because Magassouba, unlike Sell, does not challenge the adequacy of the district

court’s findings supporting his involuntary medication. Rather, he challenges the timing of

22
the district court’s medication order, claiming that because the district court failed to find

within four months of his initial § 4241(d)(1) confinement a substantial probability that he

would attain competence with additional hospitalization, the district court lacked authority

to enter the challenged May 10, 2006 order. The government submits that this challenge is

akin to a speedy trial claim, which precedent holds is not immediately appealable. See

generally United States v. MacDonald, 435 U.S. 850, 858-60 (1978); United States v. Reale,

834 F.2d 281, 283 (2d Cir. 1987). We are not persuaded.

The jurisdictional dismissal of a speedy trial challenge results in a defendant going

to trial. If the trial results in acquittal, there is no harm to review. If it results in conviction,

the alleged speedy trial error can be fully addressed on direct appeal. But the jurisdictional

dismissal of an involuntary treatment challenge results in an action – forcible medication –

that cannot be effectively reviewed and remedied after trial for reasons explained in Sell, 539

U.S. at 176-77. This conclusion applies regardless of whether the defendant’s ground for

challenging the involuntary treatment order is the purported inadequacy of the district court’s

findings, as in Sell, or its alleged lack of authority to enter the order at all, as in this case.

Thus, here, no less than in Sell, the challenged order conclusively resolves against the

defendant the legal question of his right not to be subjected to involuntary psychiatric

treatment. Here, as in Sell, that legal question is distinct from the merits of the underlying

criminal action. See generally United States v. Charters, 829 F.2d 479, 484 (4th Cir. 1987)

(observing that court’s authority over defendant’s person is necessary prerequisite to any

23
forcible medication order). Finally, in this case, as in Sell, once the defendant is forcibly

medicated, the challenged treatment order is effectively unreviewable.

United States v. deShazer, 451 F.3d 1221 (10th Cir. 2006), cited by the government,

warrants no different conclusion. In that case, the Tenth Circuit ruled that an appeal from

the denial of a motion to dismiss an indictment on grounds of prejudicial delay in resolving

defendant’s competency was “in reality, a disguised speedy-trial claim,” and it dismissed the

case for lack of jurisdiction. Id. at 1222. Although Magassouba, like deShazer, also appeals

the denial of a dismissal motion based on delay in his competency proceedings, his case

differs from deShazer in a critical respect. In deShazer, the district court had not ordered the

defendant’s involuntary medication. Thus, the net effect of jurisdictional dismissal in

deShazer was simply to allow the defendant’s competency review to continue. If his case

proceeded to trial, his claim that delay prejudiced his defense could be reviewed after

judgment. By contrast, the immediate effect of jurisdictional dismissal in Magassouba’s case

will be his involuntary medication without any effective opportunity for appellate review of

that action. See Sell v. United States, 539 U.S. at 176-77.

Accordingly, because we conclude that this appeal, like that in Sell, satisfies the

collateral order doctrine, we proceed to exercise jurisdiction.

B. The District Court Did Not Exceed Its Authority in Issuing the Challenged §
4241(d)(2)(A) Order

Magassouba submits that a district court is not authorized to commit an incompetent

defendant for “additional” hospital treatment pursuant to 18 U.S.C. § 4241(d)(2) unless it

24
finds, before the conclusion of the defendant’s § 4241(d)(1) hospitalization “not to exceed

four months,” a substantial probability that the defendant will attain competency in the

foreseeable future. The government agrees that § 4241(d)(2) commitment cannot be

authorized without the requisite substantial probability finding, but it disputes that such a

finding must be made before the end of § 4241(d)(1) hospitalization.8 Because the parties’

disagreement depends on the proper construction of § 4241(d), this appeal raises a question

of law that we review de novo. See, e.g., United States v. Olmeda, 461 F.3d at 278.

1. The Term of a Defendant’s Evaluative Hospitalization Under §
4241(d)(1) Does Not Set a Deadline Beyond Which a District Court
Lacks Authority to Order Additional Restorative Hospitalization Under
§ 4241(d)(2)

a. Background to the Enactment of 18 U.S.C. § 4241

Before discussing the relevant text of § 4241, we recognize two well-established

principles that necessarily underlie this statute. The first principle recognizes the sovereign’s

“[p]ower to bring an accused to trial” as “fundamental to a scheme of ‘ordered liberty’ and

8
The parties have devoted considerable energy to disputing when the district court
first made the substantial probability finding required by § 4241(d)(2)(A). Because the
parties’ letters of June 29, 2005, and July 1, 2005, reported their agreement that the record
demonstrated such a probability, there was little need for the district court to make detailed
findings. In fact, we think its probability finding can be inferred from its July 15, 2005 order
requesting more information on a difficult question – involuntary treatment – that it did not
need to address unless it was satisfied that there was a substantial probability that the
defendant would regain competency with additional custodial hospitalization for the
prescribed course of treatment. The conclusion does not, however, dispose of defendant’s
statutory challenge because (1) § 4241(d)(1) limited defendant’s custodial hospitalization
under that subsection to four months; and (2) whatever predicate findings the district court
may have made by July 2005, it did not enter a § 4241(d)(2)(A) order until May 10, 2006.

25
prerequisite to social justice and peace.” Illinois v. Allen, 397 U.S. 337, 347 (1970)

(Brennan, J., concurring) (cited with approval in Riggins v. Nevada, 504 U.S. 127, 135-36

(1992)). The second holds that, consistent with due process, “a person whose mental

condition is such that he lacks the capacity to understand the nature and object of the

proceedings against him, to consult with counsel, and to assist in preparing his defense may

not be subjected to a trial.” Drope v. Missouri, 420 U.S. 162, 171 (1975) (noting that

principle was cited by Blackstone, 4 William Blackstone, Commentaries *24); see Cooper

v. Oklahoma, 517 U.S. 348, 354 (1996); Pate v. Robinson, 383 U.S. 375, 378 (1966); accord

Harris v. Kuhlmann, 346 F.3d 330, 349 (2d Cir. 2003).

To accommodate these two principles, federal law has long allowed the government

to commit an incompetent defendant to custody in order to render him competent to stand

trial. The original statutes, 18 U.S.C. §§ 4244, 4246 (1949), provided no time limit on such

confinement. To avoid constitutional concerns with the prospect of indefinite commitment,

federal appeals courts imposed a “rule of reasonableness” on the statutes, construing them

to allow commitment “only for a ‘reasonable period of time’ necessary to determine whether

there is a substantial chance of [the defendant] attaining the capacity to stand trial in the

foreseeable future.” Jackson v. Indiana, 406 U.S. 715, 733 (1972) (citing relevant cases).

In Jackson, the Supreme Court itself ruled that such a reasonableness requirement was

mandated by due process. Id. at 731 (proscribing “indefinite commitment of a criminal

26
defendant solely on account of his incompetency to stand trial”). To comport with due

process,

a person charged by a State with a criminal offense who is committed solely
on account of his incapacity to proceed to trial cannot be held more than the
reasonable period of time necessary to determine whether there is a substantial
probability that he will attain that capacity in the foreseeable future. If it is
determined that this is not the case, then the State must either institute the
customary civil commitment proceeding that would be required to commit
indefinitely any other citizen, or release the defendant. Furthermore, even if
it is determined that the defendant probably soon will be able to stand trial, his
continued commitment must be justified by progress toward that goal.

Id. at 738.

Responding to due process concerns identified in Jackson v. Indiana, in 1984,

Congress enacted 18 U.S.C. § 4241. See S. Rep. No. 98-225, at 236 (1984) (noting that,

“[i]n accord with the Supreme Court’s holding in Jackson v. Indiana, commitment under

section 4241 may only be for a reasonable period of time necessary to determine if there

exists a substantial probability that the person will attain the capacity to permit the trial to go

forward in the foreseeable future”); see also United States v. Strong, 489 F.3d 1055, 1061

(9th Cir. 2007) (observing that § 4241(d) “was enacted in response to the Jackson decision

and echoed Jackson’s language”); United States v. Donofrio, 896 F.2d 1301, 1302 (11th Cir.

1990) (same); United States v. Shawar, 865 F.2d 856, 864 (7th Cir. 1989) (same); United

States v. Filippi, 211 F.3d at 652 (same).

b. The Statutory Text

In considering Magassouba’s argument that § 4241(d)(2)(A) did not authorize the

district court to order “additional” custodial hospitalization in his case outside the time frame

27
of its four-month § 4241(d)(1) order, we begin, as we must with the language of the statute.

See, e.g., Bailey v. United States, 516 U.S. 137, 144 (1995). Where “statutory language is

unambiguous,” and where “the statutory scheme is coherent and consistent,” our inquiry need

go no further. Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (internal quotation marks

omitted). In determining whether statutory language is ambiguous, we “reference . . . the

language itself, the specific context in which that language is used, and the broader context

of the statute as a whole.” Id. at 341; accord United States v. Boccagna, 450 F.3d 107, 114

(2d Cir. 2006). “Only if we conclude that statutory language is ambiguous ‘do we resort .

. . to canons of construction and, if the meaning [still] remains ambiguous, to legislative

history.’” United States v. Boccagna, 450 F.3d at 114 (quoting Daniel v. Am. Bd. of

Emergency Med., 428 F.3d 408, 423 (2d Cir. 2005)). Among the canons of construction

relevant to our resolution of any textual ambiguity is the rule of constitutional avoidance,

which instructs that “where an otherwise acceptable construction of a statute would raise

serious constitutional problems,” a court should “construe the statute to avoid such problems

unless such construction is plainly contrary to the intent of Congress.” Edward J. DeBartolo

Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988); see

Clark v. Martinez, 543 U.S. 371, 380-82 (2005); United States v. Martinez, 525 F.3d 211,

215-16 (2d Cir. 2008); United States v. Gonzalez, 420 F.3d 111, 123-25 (2d Cir. 2005).

Applying these principles to this case, we readily identify certain language in § 4241

as unambiguous on its face. The statute plainly states that, if a district court finds by a

28
preponderance of the evidence that a defendant is mentally incompetent to stand trial, “the

court shall commit the defendant to the custody of the Attorney General.” 18 U.S.C. §

4241(d) (emphasis added). In short, in contrast to the discretion afforded district courts in

deciding whether to commit a defendant for a preliminary competency examination, see id.

§ 4241(b) (providing that district court “may order” a psychiatric or psychological

examination of defendant’s competency pursuant to § 4247(b)); id. § 4247(b) (providing that

district court “may commit” defendant for competency examination pursuant to § 4241), once

a defendant is found incompetent, commitment pursuant to § 4241(d) is mandatory. See

United States v. Ferro, 321 F.3d 756, 761 (8th Cir. 2003) (noting that although “[i]t is clear

that the statutory scheme detailed by Congress in § 4241(d) provides the district court with

the discretion to initially determine whether the defendant is competent to stand trial . . . after

determining that a defendant is incompetent . . . a district court is required to commit the

defendant to the custody of the Attorney General for a reasonable period of time to evaluate

whether treatment would allow the trial to proceed”); United States v. Filippi, 211 F.3d at

651 (stating that statute establishes non-discretionary general rule of commitment without

a “case-by-case choice by the district court as to whether to incarcerate once the

incompetency finding has been made”); United States v. Donofrio, 896 F.2d at1302 (holding

that commitment under § 4241(d) is “mandatory” once court determines defendant to be

incompetent); United States v. Shawar, 865 F.2d at 860 (holding that “plain meaning” of

phrase “shall commit” is “that once a defendant is found incompetent to stand trial, a district

court has no discretion in whether or not to commit him”).

29
 For a defendant such as Magassouba, already detained as a risk of flight and danger

to the community pursuant to 18 U.S.C. § 3142, the commitment mandate of § 4241(d) might

be viewed as duplicative in depriving him of basic liberty. But the text of § 4241(d) goes

further, mandating both a particular place and condition of confinement: “[t]he Attorney

General shall hospitalize the defendant for treatment in a suitable facility.” 18 U.S.C. §

4241(d) (emphasis added). At the same time that § 4241(d) mandates custodial

hospitalization and treatment for defendants found mentally incompetent to stand trial, two

subsections of the statute limit the time and purpose of such commitments.

Section 4241(d)(1) authorizes custodial hospitalization

for such a reasonable period of time, not to exceed four months, as is necessary
to determine whether there is a substantial probability that in the foreseeable
future [the defendant] will attain the capacity to permit the proceedings to go
forward.

As this language makes plain, the initial purpose of custodial hospitalization is evaluative:

“to determine whether there is a substantial probability that in the foreseeable future [the

defendant] will attain the capacity to permit the proceedings to go forward.” Id. §

4241(d)(1). Consistent with Jackson v. Indiana, an incompetent defendant may be

hospitalized for such an evaluative purpose only for “a reasonable period of time, not to

exceed four months.” Id. This four-month limitation is, in fact, the only explicit time

reference in § 4241, and the lack of any provision for its extension appears deliberate in light

of § 4247(b), which authorizes commitment “not to exceed thirty days” to make an initial

determination of a defendant’s competency, but allows for a reasonable extension “not to

30
exceed fifteen days.” See generally Hamdan v. Rumsfeld, 548 U.S. 557, 578 (2006) (noting

“familiar principle of statutory construction” that “negative inference may be drawn from the

exclusion of language from one statutory provision that is included in other provisions of the

same statute”); Lindh v. Murphy, 521 U.S. 320, 326-30 (1997) (same).

Section 4241(d)(2) authorizes custodial hospitalization

for an additional reasonable period of time until –

(A) [the defendant’s] mental condition is so improved that trial may
proceed, if the court finds that there is a substantial probability that
within such additional period of time he will attain the capacity to
permit the proceedings to go forward; or

(B) the pending charges against him are disposed of according to law;
whichever is earlier.

This language makes clear that the purpose of custodial hospitalization pursuant to subpart

(A) is restorative: “until – (A) [the defendant’s] mental condition is so improved that trial

may proceed.” 18 U.S.C. § 4241(d)(2)(A).9 Such restorative hospitalization is limited to an

“additional reasonable period” necessary to that specified purpose. The fact that Congress

placed no outside limit on this reasonable period (akin to the four months referenced in §

4241(d)(1)) affords district courts considerable discretion in making case-by-case

9
Section 4241(d)(2)(B), which is written in the alternative and applies only when
disposition of the pending criminal charges “is earlier” than defendant’s restoration to
competency under § 4241(d)(2)(A), is most obviously construed to permit additional
custodial hospitalization of incompetent defendants who are not expected to regain
competency until the criminal charges against them are dismissed in favor of civil
commitment proceedings. We need not here consider or decide whether this statutory
subsection admits any broader interpretation.

31
determinations as to what reasonable period of additional custodial hospitalization will likely

restore a defendant to competency consistent with due process. Congress’s use of the word

“additional” plainly signals its intent for any restorative commitment pursuant to §

4241(d)(2)(A) to follow evaluative commitment pursuant to § 4241(d)(1). Such additional

commitment is not, however, presumed. To the contrary, § 4241(d)(2)(A) commitment is

authorized only “if the court finds that there is a substantial probability that within such

additional period of time [the defendant] will attain the capacity to permit the proceedings

to go forward.” Id.

What the statutory text does not clearly state is when the district court must make this

finding. Defendant submits that the finding must be made before expiration of the

defendant’s § 4241(d)(1) commitment because nothing in the statute references an

interruption between § 4241(d)(1) and § 4241(d)(2) commitments. Magassouba’s argument

finds its strongest support in the statute’s mandate that district courts “shall commit”

incompetent defendants. Id. § 4241(d). The statutory structure appears to contemplate that

such commitment shall continue until the defendant is either restored to competency, in

which case the district court “shall order his immediate discharge” from hospital confinement

with further detainment subject to the Bail Reform Act, id. § 4241(e) (referencing chapter

207 of Title 18, which includes the Bail Reform Act), or, in the event the court determines

that the defendant has not so improved, he is referred for possible civil commitment

proceedings pursuant to 18 U.S.C. §§ 4246 and 4248, see id. § 4241(d).

32
 We nevertheless find defendant’s proposed construction of § 4241(d)(1)

unconvincing. It ascribes to Congress an intent more focused on ensuring that a defendant’s

entire term of custodial hospitalization be uninterrupted – something not mandated by due

process – than that an “additional” period of custodial hospitalization under 18 U.S.C. §

4241(d)(2)(A) be ordered only after a district court is satisfied as to the substantial

probability that it will restore a defendant to competency – a due process requirement, see

Jackson v. Indiana, 406 U.S. at 738. We are mindful that circumstances can frequently arise

that preclude a diligent district judge from making the required substantial probability finding

within four months of a defendant’s § 4241(d)(1) hospitalization. Indeed, those

circumstances can themselves implicate the defendant’s exercise of constitutional rights.

Specifically, a defendant may wish to oppose additional § 4241(d)(2)(A) commitment,

and affording him sufficient time to exercise this due process right may delay the district

court’s substantial probability finding beyond the four-month limit on the defendant’s §

4241(d)(1) hospitalization. To present effective opposition, defense counsel will need time

to review the BOP record, to consult with the defendant, and to retain one or more

independent mental health professionals. Those experts may, in turn, need time to examine

the defendant, to review BOP records for themselves, and to prepare their own evaluations

of defendant’s ability to attain competency. Thereafter, government counsel will

undoubtedly seek a reasonable time to respond, whereupon the court may require an

evidentiary hearing and briefing to permit it to make a careful finding as to whether there is

33
a substantial probability of defendant attaining competency with additional custodial

hospitalization. This sequence of events can easily take longer than four months, even when

the parties and the court give the matter diligent attention.

To construe the four-month limit on the term of custodial hospitalization under §

4241(d)(1) as a four-month limit on the court’s authority to order additional confinement

under § 4241(d)(2)(A) thus raises due process concerns.10 It is well-established that

“commitment for any purpose constitutes a significant deprivation of liberty that requires due

process protection.” Jones v. United States, 463 U.S. 354, 361 (1983) (quoting Addington

v. Texas, 441 U.S. 418, 425 (1979)). More to the point, “where liberty is at stake, due

process demands that the individual and the government each be afforded the opportunity not

only to advance their respective positions but to correct or contradict arguments or evidence

offered by the other.” United States v. Abuhamra, 389 F.3d at 322. Thus, in the absence of

a clear statement by Congress placing a time limitation on district courts’ decisional authority

to order § 4241(d)(2)(A) hospitalization, we decline to infer one from the evaluative

confinement limit specified in § 4241(d)(1).11 Indeed, the due process concern we identify

is compounded when the § 4241(d)(2)(A) order at issue would authorize a defendant’s

10
The fact that these particular concerns are not at issue in this case is irrelevant to our
obligation to construe the statute to avoid serious constitutional problems that could thus
arise in many custodial hospitalization cases.
11
Where Congress itself imposes procedural limitations, courts generally recognize
them to define the process due. Still even such limitations may run afoul of due process if
they offend some principle of justice so rooted in the traditions and conscience of our people
as to be ranked as fundamental. See Medina v. California, 505 U.S. 437, 445 (1992).

34
involuntary medication. A defendant opposing such an order is entitled to reasonable time

to develop and present evidence on a host of complex issues – medical and legal – identified

in Sell v. United States, 539 U.S. at 180-81. Cf. United States v. Rivera-Guerrero, 426 F.3d

1130, 1138-44 (9th Cir. 2005) (identifying error in district court’s refusal to grant defendant

continuance to secure independent medical opinions before ordering involuntary medication

while defendant committed pursuant to § 4241(d)(1)). Further, he is entitled to the district

court’s full and careful consideration of the Sell factors.

The constitutional concern we identify could not be avoided simply by requiring the

BOP to report its § 4241(d)(1) determination well in advance of the expiration of an ordered

four-month term of custodial hospitalization. First, we are doubtful that such action is

contemplated by the statutory scheme. Section 4241(d)(1) authorizes “the Attorney General”

to hospitalize an incompetent defendant for a period “not to exceed four months, as is

necessary to determine” the probability of his regaining competency. We construe this

language to reference a determination by the Attorney General, acting through his agents, the

mental health professionals of the BOP. As the Ninth Circuit recently observed in United

States v. Strong, the “overarching purpose of commitment under § 4241(d)[1] is to enable

medical professionals to accurately determine whether a criminal defendant is restorable to

mental competency.” 489 F.3d at 1062 (emphasis added). Thus, the Seventh Circuit

similarly construes § 4241(d)(1) to “give[] the Attorney General the authority . . . to conduct

an in-depth evaluation of the defendant to assess the likelihood that he will regain

35
competency . . . . It is during the evaluation period that the Attorney General has up to four

months to assess whether the defendant will regain competency to stand trial.” United States

v. Shawar, 865 F.2d at 861 (emphasis added).

Second, even if a district court could order § 4241(d)(1) commitment for four months

while affording the BOP only a fraction of that period for its evaluation, we expect it will

rarely make sense for it to do so. The cases in which a district court anticipates protracted

litigation as to the propriety of additional § 4241(d)(2)(A) hospitalization are the very ones

in which mental health professionals will likely require a full four months to conduct careful

and thorough § 4241(d)(1) evaluations. No one’s interests – not the parties’, not the court’s,

and not the public’s – are well served by encouraging undue haste in § 4241(d)(1)

evaluations. See United States v. Ferro, 321 F.3d at 762 (noting need for “careful and

accurate diagnosis” to determine if defendant is restorable to mental competency); accord

United States v. Strong, 489 F.3d 1062 (citing Ferro with approval).12

Even if it were practical – which we doubt – for district courts routinely to impose

evaluation deadlines significantly shorter than four months on the BOP, that action could not,

in any event, ensure that the remaining time of § 4241(d)(1) commitment would be sufficient

12
Any number of circumstances may reasonably prevent the BOP from making a
reliable § 4241(d)(1) evaluation on a short deadline. A defendant may suffer from a
challenging mental defect that precludes speedy evaluation of the probability of his regaining
competency, or a defendant may choose to obstruct rather than cooperate with the evaluative
efforts of BOP doctors, or a defendant may develop a physical ailment that delays psychiatric
treatments relevant to evaluating his ability to attain competency.

36
for the defense to secure and present evidence (including expert evidence) in opposition to

further custodial hospitalization, for the government to respond to that challenge, and for the

district court to hold hearings or to undertake any other review necessary to make a

responsible finding as to the substantial probability of defendant attaining competency with

further treatment, particularly treatment involving forced medication. Thus, in the absence

of clear congressional direction to the contrary and consistent with the principle of

constitutional avoidance, we decline to construe § 4241(d)(1) to impose a four-month

deadline on the district court’s decisional authority to order § 4241(d)(2) commitment.

Instead, we construe § 4241(d)(1) to impose a four-month limit only on the Attorney

General’s authority to hold an incompetent defendant in custodial hospitalization for the

purpose of determining the probability of his regaining competency. If at the end of an

ordered term of § 4241(d)(1) hospitalization “not to exceed four months,” the district court

has not ordered additional hospitalization pursuant to § 4241(d)(2), it does not lose its

authority to do so. Rather, upon expiration of a § 4241(d)(1) order and in the absence of a

§ 4241(d)(2) order, it is the Attorney General who lacks authority to hold the defendant in

further custodial hospitalization under § 4241(d). In such circumstances, the Attorney

General must restore a defendant to the status quo ante his § 4241(d)(1) confinement.13

13
In Magassouba’s case, that was general BOP confinement pursuant to § 3142. To
the extent Magassouba submits that an incompetent defendant cannot be confined pursuant
to § 3142 because he is not “pending trial,” our reasons for rejecting that argument are set
forth infra at [47-48].

37
 United States v. Baker, 807 F.2d 1315 (6th Cir. 1986), cited by defendant, supports

no different statutory construction. Although Baker ruled that § 4241(d) “requires that a

determination as to the individual’s mental condition be made within four months,” id. at

1320, the statement must be read in context. There was no question in Baker of a district

court’s authority to enter a § 4241(d)(2) order after the four-month period referenced in §

4241(d)(1). Rather, the issue in Baker was the Attorney General’s authority to keep a

defendant in custodial hospitalization for more than four months – specifically, from

September 1985 to March 1986 – in the absence of anything but a § 4241(d)(1) order. In

addressing this scenario, Baker ruled:

This confinement was clearly in excess of four months, and there is nothing in
the record to indicate that his period of confinement was properly extended.
Therefore, although the court’s initial commitment of appellant on September
30th was valid, we hold that there was no authority to confine appellant
beyond the four months authorized by section 4241(d).

Id.

Similarly, in United States v. Donofrio, the Eleventh Circuit ruled that § 4241(d)(1)

“limits confinement to four months, whether more time [for evaluation of probable recovery]

would be reasonable or not,” 896 F.2d at 1303. Donofrio explained that “[a]ny additional

period of confinement depends upon the court’s finding [that] there is a probability that

within the additional time [the defendant] will attain capacity to permit trial.” Id. But like

Baker, Donofrio had no occasion to consider, and thus did not address, the district court’s

authority to make such a finding after a term of § 4241(d)(1) confinement expired if a

38
defendant were not held in custodial hospitalization in the interim. See also United States

v. Charters, 829 F.2d at 484-86 (reversing forcible medication order and remanding case for

further proceedings as defendant’s “federal custodians do not at present have legal authority

to detain” him because (a) § 4241(d)(1) order had expired, (b) court’s finding that he was

unlikely to recover precluded detention under § 4241(d)(2), and (c) court had failed to follow

procedures necessary for civil commitment pursuant to § 4246). Having now considered the

question not addressed in Donofrio and Baker, we conclude that district courts do have the

authority to order a defendant’s additional custodial hospitalization pursuant to §

4241(d)(2)(A) even after the limited period of evaluative hospitalization under § 4241(d)(1)

has expired.

We expect that, when dealing with incompetent defendants, district courts will, in fact,

generally strive to avoid breaks in custodial hospitalization by entering § 4241(d)(2) orders,

whenever possible, before the expiration of § 4241(d)(1) orders. Such expeditious resolution

of custodial treatment issues is to be encouraged. We here hold only that the statute does not

affirmatively require a district court to issue a § 4241(d)(2) commitment order before the

expiration of § 4241(d)(1) hospitalization order, nor does it strip a district court of the

authority to do so thereafter.

3. Applying the Statutory Construction to this Case

With this understanding of the statute, we consider the record in this case and

conclude that, although the district court did not exceed its authority in issuing the challenged

39
§ 4241(d)(2) order after the conclusion of Magassouba’s authorized term of § 4241(d)(1)

hospitalization, the Attorney General, acting through his agent, the BOP, did exceed his

authority in holding Magassouba in custodial hospitalization pursuant to § 4241(d)(1) for

longer than four months. Because this error was harmless, we can readily conclude that it

did not undermine the district court’s authority to order additional § 4241(d)(2)

hospitalization and treatment.

a. By Holding Magassouba in Custodial Hospitalization for Longer
than Four Months, the BOP Exceeded Its Confinement
Authority Under § 4241(d)

As detailed in the Background section of this opinion, the district court first found

Magassouba incompetent on October 13, 2004, and orally ordered his § 4241(d)(1)

commitment that same date. The order was not acted on, however, until approximately

November 24, 2004, when it was reduced to writing and served on the United States

Marshals Service. As a consequence, the Attorney General did not actually “hospitalize the

defendant for treatment,” 18 U.S.C. § 4241(d), until December 22, 2004, when Magassouba

was admitted to Butner. On January 4, 2005, in response to an unopposed application by the

BOP, the district court ordered that Magassouba’s § 4241(d)(1) confinement formally

commence with his arrival at Butner and that the evaluation period be expanded to four

months, to conclude on April 20, 2005. The record indicates that the BOP did not complete

its evaluation until May 3, 2005, and that Magassouba remained at Butner until May 12,

2005, when federal marshals transported him to the MCC in New York.

40
 Because § 4241(d)(1) is unequivocal in limiting custodial hospitalization under that

subsection to a reasonable period of time, “not to exceed four months,” we necessarily

conclude that the Attorney General exceeded its authority in holding Magassouba in custodial

hospitalization through May 12, 2005, approximately three weeks longer than the four

months specified in the court’s unopposed order of January 4, 2005.14

b. A § 4241(d)(1) Error May Be Reviewed for Harmlessness

Having identified § 4241(d)(1) error by the BOP, we consider whether such error

may be deemed harmless because a harmless error certainly would not warrant the relief

Magassouba seeks: dismissal of the indictment.15

Rule 52 of the Federal Rules of Criminal Procedure states that “[a]ny error, defect,

irregularity, or variance that does not affect substantial rights must be disregarded.” The

presumptive reach of this rule is broad. See Neder v. United States, 527 U.S. 1, 7 (1999)

(noting that harmless error presumptively applies to “all errors where a proper objection is

made” (emphasis in original)); Bank of Nova Scotia v. United States, 487 U.S. 250, 254

(1988) (“Rule 52 is, in every pertinent respect, as binding as any statute duly enacted by

Congress, and federal courts have no more discretion to disregard the Rule’s mandate than

14
Even if further inquiry were to reveal that Magassouba’s custodial hospitalization
ended on May 3, 2005, when Butner officials advised federal marshals that he could be
transported back to New York for further proceedings, we would still have to conclude that
the BOP had exceeded its § 4241(d)(1) detention authority, even if only by two weeks.
15
For reasons discussed infra at [45 n.16], we are inclined in any event to think that
writs of mandamus or habeas corpus are the remedies available to a defendant detained in
violation of § 4241(d)(1), not dismissal of the indictment.

41
they do to disregard constitutional or statutory provisions.”). Thus, to demonstrate that a

particular error is not subject to Rule 52 review, a defendant must point to “strong support”

for that conclusion. Zedner v. United States, 547 U.S. 489, 507 (2006). In Zedner, a case

in which a trial court failed to make findings specifically required by the Speedy Trial Act,

see 18 U.S.C. § 3161(h)(8), the Supreme Court identified such strong support in the statute’s

language, which was unequivocal both as to the findings mandated to extend the statute’s

time limitations and the remedy required for exceeding those limitations, i.e., dismissal of

the indictment. See Zedner v. United States, 547 U.S. at 506-08.

This case is readily distinguishable from Zedner because, although § 4241(d)(1) is

unequivocal in its mandate that evaluative hospitalization be limited to a reasonable period

“not to exceed four months,” the statute nowhere indicates an appropriate remedy for failing

to abide by this limitation. Certainly, nowhere does the statute mandate the dismissal remedy

that Magassouba seeks on this appeal. See generally United States v. Ecker, 78 F.3d 726,

728 (1st Cir. 1996) (holding that incompetent defendant subject to civil commitment

proceedings could not compel government to dismiss charges against him because “there is

nothing in the statute’s language that requires dismissal of a pending indictment”). Nor is

such relief constitutionally required. In Jackson v. Virginia, 406 U.S. at 738, the Supreme

Court identified a due process denial in the more-than-three-year detention of an incompetent

defendant without a substantial probability finding. Nevertheless, the Court did not order

dismissal of the charges. Rather, it remanded the case to the state courts for them to decide,

42
in the first instance, whether there was a substantial probability that Jackson could be

restored to competency within a reasonable time and, if so, to ensure that his continued

commitment was justified by progress toward that goal. See id.16

Accordingly, we conclude that the § 4241(d)(1) error noted in this case may be

reviewed for harmlessness. Indeed, that conclusion finds some support in the decisions of

our sister circuits according Rule 52 review to other errors arising in competency

proceedings. See United States v. Denkins, 367 F.3d 537, 545 (6th Cir. 2004) (identifying

district court’s failure to hold competency hearing required by § 4241(a) as “the very essence

16
Although we here note the unavailability of a dismissal remedy in either § 4241(d)
or Supreme Court precedent to support harmless error review of the statutory error alleged
in this case, we do not suggest an incompetent defendant is without significant remedies for
unlawful confinement. Such a defendant may petition this court for a writ of mandamus to
compel an inattentive district court to make the findings required by law to support the
challenged confinement. While the conditions necessary to secure mandamus relief are not
easily met, see Stein v. KPMG, LLP, 486 F.3d 753, 759-60 (2d Cir. 2007), even mandamus
denials can be fashioned to encourage prompt action by a district court, see, e.g., McGann
v. State of N.Y., 77 F.3d 672, 673 n.1 (2d Cir. 1996) (noting that district court ruling
followed this court’s order denying petition for writ of mandamus “without prejudice to
renew if the district court failed to rule on his motions within 30 days”). A defendant may
also petition for a writ of habeas corpus to secure release from unlawful custody. Because
habeas corpus originates in equity, it affords courts considerable flexibility to intervene to
ensure that cases of confined incompetent defendants are not allowed to languish, whether
the statute is alleged to be unlawful under § 4241(d), § 3142, some other statute, or the
Constitution. See Stone v. Powell, 428 U.S. 465, 491 n.31 (1976) (describing habeas corpus
“as a remedy for ‘whatever society deems to be intolerable restraints’” granted to “‘persons
whom society has grievously wronged’” (quoting Fay v. Noia, 372 U.S. 391, 401 (1963))).
To be sure, an incompetent defendant cannot be expected to pursue these remedies himself,
but that is precisely why he has an attorney whose responsibility it is to safeguard the
defendant’s legal interests. Cf. United States v. Purnett, 910 F.2d 51, 55 (2d Cir. 1990)
(holding that defendant whose competency is challenged cannot waive right to counsel and
represent himself).

43
of a ‘harmless error’” because all pertinent portions of process subsequently were employed

at behest of defendant); United States v. Barfield, 969 F.2d 1554, 1556-57 (4th Cir. 1992)

(applying harmless error review to competency proceeding); Sturgis v. Goldsmith, 796 F.2d

1103, 1109 (9th Cir. 1986) (same).

c. The Scope of the § 4241(d)(1) Error

Before undertaking harmlessness review, we consider defendant’s argument that the

scope of the § 4241(d)(1) error is, in fact, far greater than a mere two or three weeks of

unauthorized custodial hospitalization at Butner. Magassouba asserts that he was in §

4241(d)(1) custody for at least nineteen months, from the district court’s initial oral order of

October 13, 2004, until its challenged § 4241(d)(2) order on May 10, 2006. We are not

persuaded.17

To the extent Magassouba seeks to have the period from October 13, 2004, to

December 22, 2004, when he was admitted to Butner, treated as § 4241(d)(1) custody, a

question of waiver is raised by his counsel’s failure to object to the district court’s January

4, 2005 order dating the defendant’s § 4241(d)(1) commitment to commence with his arrival

at Butner. Similarly, the fact that, between May 12, 2004, when Magassouba was discharged

from Butner, and March 22, 2006, when he moved to dismiss the indictment, his counsel

17
Although we reject Magassouba’s claim that the identified nineteen months of
confinement must be viewed as a whole in assessing the § 4241(d)(1) violation, we
nevertheless conclude, for reasons discussed infra at [51-53], that this period of detention is
properly considered in assessing defendant’s due process challenge to further confinement.

44
never requested release from custody but, rather, urged the district court to order additional

custodial hospitalization suggests possible invited error. See generally United States v.

Quinones, 511 F.3d 289, 321 (2d Cir. 2007) (comparing waivers resulting from defendant’s

failure to object to purported error with those attributable to “invited error”).18 We need not

here decide the difficult question of whether these waiver principles apply against an

incompetent defendant, see, e.g., United States v. Purnett, 910 F.2d at 55 (“Logically, the

trial court cannot simultaneously question a defendant’s mental competence to stand trial and

at one and the same time be convinced that the defendant has knowingly and intelligently

waived his right to counsel.”); Pate v. Robinson, 383 U.S. 375, 384 (1966) (“[I]t is

contradictory to argue that a defendant may be incompetent, and yet knowingly or

intelligently ‘waive’ his right to have the court determine his capacity to stand trial.”),

because we identify an alternate ground for rejecting Magassouba’s claim that he was in §

4241(d)(1) custody for nineteen months.

By its terms, § 4241(d)(1) confinement is limited not only as to time and purpose but

also as to place: the Attorney General must “hospitalize the defendant for treatment in a

suitable facility.” 18 U.S.C. § 4241(d)(1) (emphasis added). The only facility where

Magassouba appears to have been held in custodial hospitalization is Butner, where he was

confined for four months and three weeks. To the extent Magassouba was otherwise

18
Our identification of possible waiver or invited error to should not be construed as
any criticism of the representation afforded Magassouba by his able counsel.

45
generally detained at the MDC or MCC, that commitment was authorized not by § 4241(d)(1)

but by the Bail Reform Act, 18 U.S.C. § 3142.19 Magassouba was ordered detained at the

very start of this case as a presumptive risk of flight and a danger to the community pursuant

to § 3142(e). While Magassouba never challenged his § 3142 detention in the district court,

he contends on appeal that the statute could not authorize his detention after October 13,

2004, the date the district court found him incompetent pursuant to § 4241(d), because §

3142 applies only to cases “pending trial,” 18 U.S.C. § 3142(a), and due process prohibits

the trial of an incompetent defendant. Magassouba’s argument conflates the concept of

“pending trial” with that of being “on trial.” While an incompetent criminal defendant

cannot be placed “on trial” consistent with due process, there is no similar constitutional bar

to his remaining “pending trial” while competency proceedings are resolved. In Jackson v.

Indiana, the Supreme Court specifically held that the due process proscription on putting an

incompetent defendant “on trial” did not preclude a court from conducting certain pretrial

proceedings in his criminal case. See 406 U.S. at 740-41 (noting that states were not

precluded from “allowing at a minimum, an incompetent defendant to raise certain defenses

such as insufficiency of the indictment, or make certain pretrial motions through counsel that

19
We do not consider on this appeal the possibility of the Attorney General satisfying
the hospitalization mandate of § 4241(d) by designating an incompetent defendant to the
medical wing of pretrial detention facilities. Nor do we here address whether the time a
defendant, who is not otherwise detained pursuant to § 3142, spends in marshals’ custody
being transported to or from a prison hospital facility must be counted within the four-month
term of § 4241(d)(1) custodial hospitalization.

46
did not require personal participation of the defendant” (citing Model Penal Code § 4.06(3)).

A court necessarily conducts such proceedings pending a defendant’s trial.20 Because we

conclude that Magassouba remains pending trial through the completion of § 4241

proceedings, we necessarily reject his argument that he was no longer “pending trial” after

the October 13, 2004 finding of incompetency and, therefore, no longer detainable under §

3142.

We have identified one unpublished decision, United States v. Peppi, No. 06-157,

2007 U.S. Dist. LEXIS 13997 (D.N.J. Feb. 27, 2007), in which a court declined to find that

trial was pending against an incompetent defendant and, therefore, refused to impose release

conditions under the Bail Reform Act. The case is factually distinguishable from the one

before us in important respects. Specifically, in Peppi, the defendant’s inability to regain

competency was undisputed, and he had been referred for civil commitment pursuant to §

4246. It was in that context that the court observed that “[b]ecause Mr. Peppi cannot be

brought to trial now, it seems an impermissible fiction to pretend that one is pending. If not

pending trial, then the Bail Reform Act does not apply.” 2007 U.S. Dist. LEXIS 13997, at

*15. We need not here decide what conclusion we would reach on facts similar to those in

Peppi. We note simply that Magassouba has not been referred for civil commitment pursuant

20
A defendant charged with an offense is viewed as “pending trial” from his first
appearance before a judicial officer because the Constitution gives him the right to have the
charged offense resolved through that particular proceeding. U.S. Const. amend VI
(guaranteeing criminal defendant right to “speedy and public trial”).

47
to § 4246 as a defendant unlikely to attain competency. Indeed, not only are § 4241(d)

proceedings pending; the district court has specifically found pursuant to § 4241(d)(2) that

there is a substantial probability that Magassouba will attain competency with appropriate

medication. In these circumstances, we indulge no fiction to conclude that Magassouba

remains pending trial.21

Accordingly, we conclude that the § 4241(d)(1) confinement error in this case is

limited to the three weeks in excess of four months that Magassouba was held in custodial

hospitalization at Butner.

d. The Identified § 4241(d)(1) Error Was Harmless

In reviewing the identified error for harmlessness, we consider what prejudice to

substantial rights Magassouba sustained therefrom, and we identify none. See, e.g., United

States v. Mejia, 356 F.3d 470, 476 (2d Cir. 2004) (holding that ex parte communication by

21
No different conclusion is required by 18 U.S.C. § 4241(e), which expressly states
that, in the case of a defendant who regains competency, “[u]pon discharge” from custodial
hospitalization, “the defendant is subject to the provisions of chapter[] 207,” which includes
the Bail Reform Act. We do not construe this language to indicate that a § 3142 order of
detention is somehow vacated by a § 4241(d) hospitalization order. Rather, we understand
this language to signal Congress’s intent to give full force to § 3142 and any order entered
pursuant thereto whenever a defendant pending trial is not in hospital confinement. To be
sure, Congress specifically addressed only hospital discharge occurring after a defendant’s
competency is restored. The explanation likely lies in our earlier observation that Congress
did not anticipate circumstances requiring a discharge from § 4241(d)(1) evaluative
hospitalization before the commencement of § 4241(d)(2) restorative hospitalization. See
supra at [34]. Nevertheless, nothing in the statutory text of § 4241(d) signals Congress’
intent that, in any such an interval, a defendant who posed a risk of flight or a danger to the
community would not remain in custody pending trial pursuant to § 3142.

48
judge to jury in response to inquiry is harmless error where communication does not

prejudice defendant); United States v. Diaz, 176 F.3d 52, 98 (2d Cir. 1999).22

First, the unauthorized § 4241(d)(1) hospitalization did not deprive Magassouba of

basic liberty. Had Magassouba been discharged from hospitalization under that statute at the

conclusion of the maximum four-month period, he would not have been released from BOP

custody. Rather, for reasons discussed in the preceding section, Magassouba would have

been returned to pretrial detention pursuant to the Bail Reform Act, 18 U.S.C. § 3142(e).

Second, Magassouba does not contend that he sustained a greater loss of liberty in his final

three weeks at Butner than he would have experienced in a comparable time at a pretrial

detention facility such as the MCC or MDC. It is, after all, undisputed that Magassouba was

not subjected to involuntary medication during this period. Third, the unauthorized detention

did not prejudice Magassouba in stating his position to the court on additional §

4241(d)(2)(A) confinement. As already noted, defense counsel urged additional custodial

22
Although harmlessness review is most frequently employed after a judgment of
conviction to determine whether error prejudiced the outcome of a defendant’s trial, see, e.g.,
United States v. Kaplan, 490 F.3d 110, 122 (2d Cir. 2007) (noting that harmlessness of non-
constitutional error is determined by reference to whether error “did not influence the jury,
or had but very small effect” (quoting Kotteakos v. United States, 328 U.S. 750, 764-65
(1946)); United States v. Dukagjini, 326 F.3d 45, 62 (2d Cir. 2003) (holding that non-
constitutional error affects substantial rights if it had “substantial and injurious effect or
influence” on jury’s verdict), the breadth of Rule 52 supports harmlessness review in other
circumstances, see, e.g., United States v. Thompson, 287 F.3d 1244, 1253-54 (10th Cir.
2002) (employing harmless error analysis in appeal of dismissal of indictment due to
impropriety of sealing under Fed. R. Crim. P. 6(e)(4) by inquiring whether sealing error
“substantially influenced a defendant’s ability to defend against the charges”).

49
hospitalization, and Magassouba does not challenge the merits of the district court’s §

4241(d)(2) order on this appeal. Finally, the statutory error in this case does not rise to the

level of a due process violation under Jackson v. Indiana. Although Congress has

established a maximum four-month period of custodial hospitalization to evaluate the

probability of an incompetent defendant regaining competency to stand trial, due process

itself draws no such bright time line. See Jackson v. Indiana, 406 U.S. at 738-79 (declining

“to prescribe arbitrary time limits,” although noting that defendant had “been confined for

three and one-half years on a record that sufficiently establishes the lack of a substantial

probability that he will ever be able to participate fully in a trial”). At whatever point it

becomes constitutionally unreasonable to confine an incompetent defendant for any further

time solely to evaluate his competency to stand trial, we are satisfied that the line is not

crossed at four months and three weeks. See infra at [53-59] (explaining why even nineteen-

month detention did not violate due process in this case).

In sum, although we identify error by the Attorney General in confining Magassouba

to custodial hospitalization for two to three weeks longer than permitted by § 4241(d)(1), we

conclude that the error was harmless. As such, we need not consider whether such an error

could ever undermine a district court’s authority to order additional § 4241(d)(2)

confinement. We can confidently conclude that it had no such effect in this case.

C. Due Process Did Not Require the District Court to Dismiss the Indictment

Although we reject Magassouba’s statutory challenge to the district court’s entry of

a § 4241(d)(2) order on May 20, 2006, we proceed to consider his constitutional claim that,

50
by that date, his continued confinement for the purpose of restoring competency to stand trial

was no longer reasonable.

In Jackson v. Indiana, the Supreme Court identified a due process concern with

committing a defendant “solely on account of his incapacity to proceed to trial” for “more

than the reasonable period of time necessary to determine whether there is a substantial

probability that he will attain that capacity in the foreseeable future.” 406 U.S. at 738

(emphasis added). As we have already observed, for much of the time between the district

court’s October 13, 2004 finding of incompetence and its challenged May 20, 2006 order,

Magassouba was not confined solely to evaluate the probability of his regaining competency.

He was also detained pursuant to the Bail Reform Act, 18 U.S.C. § 3142, as a risk of flight

and danger to the community. We nevertheless conclude that the totality of Magassouba’s

post-October 13, 2003 confinement is appropriately considered in determining whether

further commitment beyond May 20, 2006 was so unreasonable as to violate due process.

We reach this conclusion mindful that the reasonableness of a defendant’s § 3142

detention is generally defined by statutory and constitutional rights to a speedy trial. Under

the Speedy Trial Act, however, any period spent resolving a defendant’s competency to stand

trial is excluded from consideration when determining the date by which a defendant must

be brought to trial. See 18 U.S.C. § 3161(h)(1)(A) (excluding from Speedy Trial Act

consideration any “delay resulting from any proceeding, including any examinations, to

determine the mental competency . . . of the defendant”). We think that implicit in this

51
statutory exclusion is an assumption that defendant’s competency proceedings will be

resolved within the reasonable time requirements of due process. Otherwise, in a

circumstance where a § 4241(d)(1) order expired and no § 4241(d)(2) order was entered, §

3142 could itself become the vehicle for doing what the Due Process Clause proscribes:

subjecting incompetent defendants to indefinite commitment. Thus, we conclude that, once

a defendant is found incompetent, continued confinement while the parties and the court

assess his ability to regain competency must comport with the reasonable time limitations of

due process, regardless of whether that confinement involves custodial hospitalization

pursuant to § 4241(d) or general detention pursuant to § 3142.23

The nineteen-month period Magassouba spent in BOP custody from October 13, 2004,

when he was found incompetent, to May 10, 2006, when the court entered the challenged §

4241(d)(2) order, is not insignificant. Nevertheless, we conclude that the time was not

constitutionally unreasonable because Magassouba’s refusal to accept the treatment likely

to render him competent required the district court to address distinct and difficult due

process concerns relating to involuntary medication preliminary to entering the challenged

§ 4241(d)(2) order.

In reaching this conclusion, we reiterate our earlier observation that the Constitution

itself draws no bright lines signaling when an incompetent defendant’s continued detention

23
We do not here decide whether a different conclusion might apply when a defendant
is confined pursuant to some other authority as, for example, when a defendant is confined
on a judgment of conviction or as a danger to himself or others within a BOP facility.

52
to restore competency becomes unreasonable. See Jackson v. Indiana, 406 U.S. at 738. To

the extent the government urges us to use the sentence a defendant faces on the underlying

charges – in Magassouba’s case a term of ten-years-to-life imprisonment – as a benchmark

for assessing the reasonableness of confinement to restore competency, see, e.g., United

States v. Ecker, 30 F.3d 966, 969 (8th Cir. 1994) (concluding four-year detention not

unreasonable in light of fifteen-year mandatory minimum sentence), we note some

reservations as to the general utility of that particular tool to the specified task. We do not

pursue the matter further because, in this case, we can confidently conclude that, as of May

20, 2006, Magassouba had not been confined for such an unreasonable time as to preclude

additional § 4241(d)(2) commitment.

In determining what constitutes a constitutionally unreasonable period of detention

for an incompetent defendant, we necessarily consider the totality of the circumstances,

including (1) the length of time at issue; (2) the medical assessments of the defendant’s

ability to attain competency; (3) the reason for any delay in helping the defendant attain

competency; (4) the defendant’s assertion of his rights, whether as to custody or treatment;

and (5) any prejudice to the defendant, whether in attaining competency or in proceeding

thereafter to trial.24 We conclude that these factors do not demonstrate that Magassouba’s

24
We conduct a similarly broad review of the totality of relevant circumstances in
determining when pretrial confinement violates the Constitution’s Speedy Trial Clause. See
Barker v. Wingo, 407 U.S. 514, 530-33 (1972) (providing for consideration of (1) length of
confinement, (2) reason for delay, (3) defendant’s assertion of rights, and (4) prejudice). Of
course, the concerns animating due process concerns identified in Jackson v. Indiana are

53
detention was in violation of due process.

First, as with speedy trial, it is difficult to identify the precise time at which an

incompetent defendant’s continued detention becomes presumptively unreasonable. Cf.

United States v. Vassell, 970 F.2d 1162, 1164 (2d Cir. 1992) (discussing speedy trial). To

be sure, the nineteen-month period here at issue is far shorter than the three and one-half

years of commitment deemed unreasonable in Jackson v. Indiana, 406 U.S. at 738-39.

Nevertheless, mindful that after Magassouba’s May 12, 2005 discharge from Butner his

incompetency was untreated and his case was not advancing toward trial, we carefully

consider other factors to assess the reasonableness of this continued confinement.

Second, in Jackson, the defendant was confined for a lengthy time despite the fact that

medical experts had concluded that no effort could render him competent to stand trial in

light of his severe mental and physical impairments. See id. at 717-19. By contrast, in this

case, all doctors and lawyers agree that there is a substantial probability that Magassouba can

regain competency with additional hospitalization and treatment. See supra at [12-15]. This

immediately distinguishes this case from United States v. Walker, 335 F. Supp. 705, 708-09

(N.D. Cal. 1971) (finding continued commitment unreasonable where court found defendant

unlikely to regain competency in near future) and United States v. Jackson, 306 F. Supp. 4,

6 (N.D. Cal. 1969) (finding defendant unlikely to attain competency in foreseeable future),

different from those informing the right to speedy trial. Moreover, the due process inquiry
is conducted mindful that defendant, though represented by counsel, has been found
incompetent.

54
relied on by defendant. Indeed, where the record establishes a substantial probability that

additional confinement will restore a defendant to competency, continued confinement is

“reasonable” under the Due Process Clause as long as the commitment is “justified by

progress toward that goal.” Jackson v. Indiana, 406 U.S. at 738.

Third, insofar as the record indicates any delay in Magassouba’s progress toward

competency, we identify only brief times when anything less than conscientious attention was

being given to his condition.25 The first such period is the two months – from October 13,

2004, to December 22, 2004 – that it took to transport Magassouba to Butner for §

4241(d)(1) evaluation. The first month’s delay appears to be the product of inadvertent

human error in communicating the court’s § 4241(d)(1) order to federal marshals, a matter

quickly resolved by the court when brought to its attention. As for the second month’s delay,

various holidays in this period may have presented particular transport challenges. Whatever

the reason, these transport delays were not so egregious as to deny Magassouba due

process.26

25
We have already concluded that the four months and three weeks that Magassouba
spent in custodial hospitalization, although violative of § 4241(d)(1), was not constitutionally
unreasonable. See supra at [50-51]. This hospitalization allowed BOP to determine that
Magassouba could be rendered competent with appropriate treatment, a conclusion that is
undisputed even on this appeal.
26
We, nevertheless, remind the government that, under the Speedy Trial Act, a
presumption of unreasonableness attaches to times in excess of ten days used to transport a
detained defendant to another district. See 18 U.S.C. § 3161(h)(1)(H). While this time frame
does not control our due process determination, the government is well advised to use it as
a benchmark and to alert the district court when circumstances prevent the timely
transportation of an incompetent defendant subject to a § 4241(d) order.

55
 The second period of delay reflects the BOP’s failure to meet court filing deadlines.

Instead of submitting its initial evaluation report on the scheduled date of May 20, 2005, the

BOP filed its report on May 27, 2005. Similarly, in responding to the court’s inquiry for

further information, the BOP ignored the scheduled deadline of August 30, 2005, filing its

reply on November 10, 2005. We do not condone these unexcused delays; nor do we express

any view as to what sanctions a district court might impose in such circumstances. We hold

only that they did not unreasonably prolong Magassouba’s detention in violation of due

process, cf. United States v. Vasquez, 918 F.2d 329, 338 (2d Cir. 1990) (rejecting speedy

trial challenge because government’s negligent delay in evaluating defendant’s competency

at Butner was result of “‘institutional dysfunction’ rather than deliberate wrongdoing or bad

faith”). The delay in Magassouba’s attainment of competency is largely attributable to his

own action, specifically, his invocation while still at Butner of his right to refuse treatment.

This required the district court carefully to weigh Magassouba’s right to refuse treatment

against the public’s interest in bringing him to trial if he could, in fact, be restored to

competency. In deciding the difficult question whether to order Magassouba’s involuntary

medication, the district court necessarily expended considerable time reviewing and

developing evidence relevant to the factors specified in Sell v. United States, 539 U.S. at

180-81. It is apparent that, during the period from July 15, 2005, to May 10, 2006, the

district court diligently pursued the Sell inquiry preliminary to entering the challenged §

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4241(d)(2) order.27 The fact that it did so cautiously both to ensure a result respectful of

Magassouba’s rights and to afford him some time to reconsider his medication refusal merits

commendation not criticism.

Fourth, it was not until March 2006, when Magassouba moved to dismiss the

indictment, that he raised any court challenge to his continued confinement. Until that point,

defense counsel had actively supported it.28 Once the motion made it evident that further

judicial patience would not secure defendant’s cooperation in his own treatment, the district

court acted promptly in ordering defendant’s additional custodial hospitalization pursuant to

§ 4241(d)(2), with authorization for involuntary medication.

Fifth, Magassouba has not demonstrated any undue prejudice from his confinement,

either to his ability to attain competency or to his ability to defend against the charges at trial.

On the totality of these circumstances, we identify no merit in Magassouba’s

constitutional claim that, even though it is substantially probable that additional custodial

hospitalization and treatment will render him competent, his continued confinement beyond

27
Although a district court may be able to make the substantial probability finding
required by § 4241(d)(2) before resolving the question of involuntary treatment, that does not
mean that it can enter a commitment order under that subsection. An involuntary medication
decision would likely affect both the scope and term of a § 4241(d)(2) order.
28
As noted earlier, defense counsel’s February 15, 2005 letter to the prosecutors
urging prompt completion of Magassouba’s § 4241(d)(1) evaluation to avoid due process
concerns with further detention appears not to have been filed with the court. As for
Magassouba, although found incompetent, he communicated with the court both directly
(seeking reconsideration of the incompetency finding and new counsel) and through counsel
(reiterating his refusal to accept treatment). In no communication before March 2006 does
he appear to have challenged his continued confinement.

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May 10, 2006 for purposes of treatment was so unreasonable as to violate due process and

warrant dismissal of the indictment. Accordingly, we affirm the challenged May 10, 2006

order and remand the case for further proceedings.29

III. Conclusion

To summarize, we conclude:

1. Under the collateral order doctrine, we have jurisdiction to review defendant’s

interlocutory challenge to an order of commitment pursuant to 18 U.S.C. § 4241(d)(2)(A)

that authorizes involuntary medication. No different conclusion is warranted because

defendant’s challenge focuses on the timeliness of the order rather than the grounds for its

entry.

2. Magassouba’s timeliness challenge fails because § 4241(d)(1) imposes an outside

limit of four months only on the time the Attorney General can hold a criminal defendant in

custodial hospitalization for purposes of determining the probability of his attaining

competency in the foreseeable future. In the absence of a clear statement of congressional

intent, we decline to infer from this statutory language a four-month limit on a district court’s

authority to order a defendant’s additional hospitalization for treatment under §

4241(d)(2)(A), particularly as such a construction could raise constitutional concerns about

affording defendants a reasonable opportunity to oppose § 4241(d)(2)(A) orders, particularly

those providing for involuntary treatment.

29
Mindful of both possible changes in Magassouba’s mental condition and advances
in medical science, we leave it to the sound discretion of the district court whether to seek
updates of the evaluations informing the challenged order.

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 3. Although Magassouba’s custodial hospitalization pursuant to § 4241(d)(1)

exceeded the four-month statutory limit by two to three weeks, this error was harmless in

light of the fact that defendant was otherwise detained – without objection – pursuant to the

Bail Reform Act, 18 U.S.C. § 3142. As such, the error could not deprive the district court

of authority to order additional § 4241(d)(2) hospitalization and treatment.

4. Magassouba’s constitutional challenge also fails because the totality of the

circumstances – including Magassouba’s refusal of treatment, which required the district

court to engage in the multi-factor analysis outlined in Sell v. United States, 538 U.S. at 180-

81, demonstrate that his total nineteen months’ confinement from the time he was found

incompetent to stand trial until the district court entered the challenged treatment order was

not so unreasonable as to violate due process.

ORDER AFFIRMED .

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