United States v. Morrison

merits, Third tion of the America, STATES UNITED stay an order held that Brothers

Richman Plaintiff-Appellee, is referring certain ing proceedings immediately not an to the FCC was sues v. F.2d at order. 953 collateral appealable courts, examining the deni 1447. Other MORRISON, Jay Richard and refer stay proceedings al of motions Defendant-Appellant. agency, have administrative issues to an No. 04-4174. Delta same conclusion. See come to the Serv., Inc., (holding F.2d at 914 Traffic Appeals, Court United States a federal of referral question that the Tenth Circuit. from the merits separate agency “was action, involved considerations but July factual and that were enmeshed plaintiffs’ cause comprising

legal issues and alteration omit (quotation

of action.”

ted)); Trucking Co. v. Feldspar also see Ass’n, 849 F.2d Shippers Atlanta

Greater (11th Cir.1988); Corp.

1389, 1392 Thill Sec. (7th Exch., 14, 16 469 F.2d

v. N.Y. Stock

Cir.1972). by the persuaded This court and holds that

reasoning of these courts staying the case district court’s order plaintiffs’ claims submission

pending an imme agencies is not

federal and state A dis

diately collateral order.7 appealable determination

trict court’s jurisdiction doctrine is primary

invoke the the cause of sufficiently separable from interlocutory for review. qualify

action to jurisdiction to

Accordingly, this court lacks stay in this case.

review the order CONCLUSION

IV. stay order the district court’s

Because appeal- nor an neither a final decision order, collateral this court DISMISS-

able jurisdiction. appeal for lack of

ES Cir.1976). convincing light reason- analysis, Circuit in Lit- the Fifth 7. With little Systems, Bell Tele- Inc. v. Southwestern cases ton Richman Brothers and other court’s referral phone that a district Co. held unper- question, court is this to consider jurisdiction to primary the doctrine of Systems and declines suaded Litton immediately agencies was an several state ply it in this case. (5th 539 F.2d appealable order. interest, ernment but the importance of may interest by specific reduced circumstances, such as the amount of time already defendant has spent in confine- toward, (which ment would be credited any sentence) eventual or the possibility of civil commitment criminal trial. Id. absent.a Second, a court must find that the medi- cation is “substantially both likely to ren- der the competent to stand tri- al” and “substantially unlikely to have side effects that will interfere significantly with ability defendant’s to assist counsel defense, conducting thereby trial render- ing 181, the trial Id. at unfair.” 123 S.Ct. Third, court “[t]he must find that alternative, less intrusive treatments substantially achieve Benjamin Hamilton, A. City, Salt Lake results,” same and “must consider less in- UT, for Defendant-Appellant. trusive means for administering Vincent, Mark K. Assistant United drugs,” such as a court order directing the (Paul Attorney Warner, States M. United defendant to take the medication. Id. And Attorney, brief), States him with on the fourth, “the court must conclude that ad- UT, City, Salt Lake for Plaintiff-Appellee. ministration of the drugs medically ap- i.e., propriate, patient’s best medical HENRY, HARTZ, Before light of his medical condition.” McCONNELL, Judges. Circuit Id. HARTZ, Judge. notes, however, Sell that “ordinarily” a Jay Richard court engage Morrison should not in the above anal peals a district ysis court order authorizing unless it has first considered whether involuntary administration of it antipsychotic appropriate to medicate the defendant medication to render him competent ensure the safety defendant’s or stand trial. safety We vacate the order and re- of others. Id. 123 S.Ct. mand for further proceedings. 2174. In its opinion earlier in Washington 210, 227, v. Harper, 494 U.S. 110 S.Ct. United, States, 166, 169, Sell v. 589 U.S. (1990), 108 L.Ed.2d 178 the Court (2003), 156 L.Ed.2d 197 permissible had held that it is to adminis sets forth a four-part test defining the antipsychotic ter drugs involuntarily to a limited circumstances in which the Govern- prison inmate with a serious mental illness ment antipsychotic “administer drugs “if dangerous the inmate is to himself or involuntarily mentally to a ill criminal de- others the treatment is in the inmate’s fendant —in order to render that defendant medical interest.” “First, to stand trial.” a important must find that governmental in- In this case the district court ordered terests are at stake.” Id. at 123 S.Ct. involuntary medication appli- based on its 2174. Bringing charged defendants cation of the four-part Sell test. But it did , serious crimes to trial is an important gov- not explore medi- incompetent to stand trial and was nor proper Harper, would be cation Regard- insane the time of the offense. why the Government had question did psychiatric report said competency, involuntary medication under sought ability Harper inquiry would has the Harper. cognitive Because inqui- consequences or inform the Sell nature moot the and either better understand him, proceedings against district court’s order of ry, we reverse the the ability counsel proceedings. properly further and the to assist and remand for However, fixed delu in defense. his his I. BACKGROUND intimately are entwined sional beliefs of against with substance the case the felony February filed on complaint

In a cooperate ability him thus his to and 14, 2003, in States District the United with and assist in his defense counsel Utah, for the of Defendant Court District lacks presently undermined. He violating counts of charged two was with insight from a mental suffers 875(c) by willfully know- and 18 U.S.C. illness, in engage and is to want to in interstate commerce ingly transmitting strategies counterproductive legal communication threatening to an internet against attorney. of the advice his another The communica- injure person. R., 1, the lives of Gordon Ill, sanity tions threatened Exhibit 14. As for Vol. Hinckley, of the offense, First President Church report at the time of the the ob- Saints, Latter-day and the Jesus Christ served: Quorum church’s

members respect With of criminal issue Apostles. example, For on Febru- Twelve case, responsibility present in the 2003, 6, allegedly posted the ary Defendant pears suffered following message: from a disorder for an extend- delusional kill right

I been the moral to given period genuinely ed and he was them, Hinckley period but the only during question. Gordon delusional Quorum addition, presidency entire first it appears that his delusion- Thus I had FBI directly the Twelve.... al to his be- beliefs contributed on banging my posting threatening door week before state- havior when going proceed Consequently, last.... We are now ments on internet. killing These men are cor- them. convinced conduct- since he was he was totally insane, rupt, completely Lord,” com- work of “the he was killed, pletely They criminality evil. deserve be appreciate unable to they they need to killed and now his or to "conform conduct to conduct his However, going to be killed. law. requirements following regards treatment with II, R., 1, Vol. Doc. at 4. issue re- competency may require this request, magis- At the Government’s evaluation. February on judge trate ordered Id. Defendant committed for examination to July competency hearing At competency his stand trial

determine by a sanity magistrate judge found and his at the time of the offense. Defen- preponderance of the evidence that (competency), §§ 18 U.S.C. See from disease (sanity), psychologi- suffered mental (psychiatric him to assist forensic evaluation defect that rendered unable reports). cal Prisons, judge defense. The or- properly Bureau of dated his the United States Bureau 7, 2003, dered committed to the July found that Defendant was treatment and evaluation to psychologist, of Prisons for testified in conformity with determine whether there was substantial her report. December 18 Dr. James Wolf- compe- son, that he would become probability supervising psychiatrist pre- who tent the near future. See 18 U.S.C. Seroquel, scribed the testified regarding 4241(d). the side effects and benefits of drug, concluding that it an was effective treat- During this commitmént Defendant ini- ment for Defendant’s condition and that he tially refused to take medication. But regain competence absent voluntarily October 2003 he consented to antipsychotic medication. quetiapine, Seroquel, take brand-name for approximately he continued to do so The Government contended that the ex- four weeks. He then refused the medi- pert testimony satisfied the last three cation, claiming that it caused him to have prongs of the Sell test. And on the first response “heart attacks.” con- to his prong important-government-interest —the cern, electrocardiograms per- two were requirement Government offered two —-the normal, Both formed. were but Defendant (1) requirement contentions: that the was nonetheless to continued refuse to take the satisfied “because the defendant’s been ac- medication. crime,” R., IV, cused of a serious Yol. at (2) 115, and that “the facts

In a show that report forensic dated December Preston, danger is a community Dr. Ann Lea the clinical ..., Defendant, that there’s a psychologist treating government serious in- stated in bringing terest antipsychotic that medication was neces- the defendant to trial sary to because of the that competency. restore his Address- victims have been in- volved, second, third, good ing prongs society.” and fourth members Id. Be- test, cause the hearing the Sell Dr. Preston her witnesses rendered had (1) testified opinion regarding that Defendant’s danger there was a substantial to others, probability that himself or the medication would ren- Government’s men- tion of showing “the facts” dangerousness der Defendant to stand trial producing without must have been a reference to side effects that evidence of would (2) Defendant’s impair ability his to crime. attorney; assist his psychotic symptoms unlikely his were Responding to testimony by Drs. medication; improve involuntary without Wolfson, (1) Preston and defense counsel (3) medically and medication appropri- that likely conceded the medication was condition, ate for schizophrenia. his Ac- competency, argued restore but that ad- 15, 2004, cordingly, January the Gov- kidney pain, verse side effects such as ernment moved to authorize palpitations, frequent heart sweat- Pending medication. evaluation a non- ing of which Defendant claimed to —all government expert, the Government have suffered —would interfere with his for an moved order that Defendant take ability to assist counsel and could adverse- the medication or face contempt-of-court (2) ly jury; affect how he looked to the proceedings. magistrate judge issued stipulated prong that Sell’s third was satis- requested 5, 2004, February. order on (3) fied; and that contended the side ef- but Defendant still refused to take the Defendant, experienced by fects either real medication. imagined, made the medication medical- 22, 2004, April magistrate judge On ly inappropriate. princi- Defense counsel’s focus, a hearing however, held on the pal prong. Government’s Janu- was Sell’s first ary Preston, treating 15 motion. Dr. Although stipulated prosecuting he that 1) are Important governmental interests impor- an a serious crime is

defendant for bringing at stake in the defendant interest, out government pointed tant (who been accused of serious a court consider that that “must Sell states crimes) trial; facts of the individual case evaluat- 2) Forced medication the defendant government’s prosecu- significantly further government will “[s]pecial circumstances tion” because likely by being substantially interests interest.” importance lessen the competent to to render the defendant R., IV, 112. Counsel asserted Vol. substantially stand trial and interest was diminished the Government’s interfere side effects will had a in this case because significantly with defendant’s (as supported by insanity both defense ability conducting assist counsel expert and the Bureau of Prisons defense defense; 2003) already report July and had 3) Forced medication of term to for almost the entire been confined necessary previously to further those under the which he would be sentenced pronounced interests and there Sentencing Coun- Guidelines convicted. alternative, intrusive not less sel noted that if Defendant was found available to achieve sub- treatments step by insanity, the next guilty reason results, stantially to wit: the same hearing a for civil dangerousness would be restoring compe- defendant’s mental pro- § commitment under the same trial; tency to and stand required cess that if he was would 4) anti-psychotic The administration a reason- competency restored within by appropriate medications medical 4241(d). Thus, time, § able see 18 U.S.C. for Bureau of staff the United States counsel, according defense the shorter medically appropriate. Prisons is simply end route inevitable would be R., II, 33, at Supp. Vol. Doc. 4. rather hearing to hold the now involuntary than ordering court, medication. appealed Defendant district which, relying Federal Rule on of Criminal magistrate expressed concern judge The 58(g)(2)(D), applied Procedure the same sys- a might manipulate that defendant a circuit court standard review by to take and refusing tem medication apply appeal on and thus reviewed would thereby also charges. avoid criminal He novo legal conclusions de and factual noted that the outcome a 4246 dan- affirmed, for It findings clear error. stat- gerousness hearing predicted, could not be “Having ing, magistrate [the reviewed making impossible thus to balance analysis by judge’s] arguments prosecution against current conclude parties, both the court cannot possibility prolonged a commit- civil magistrate judge] in order- [the erred ment. “I know what the result of don’t forcibly to be medicated.” be, can I hearing the 4246 will how so I, R., 2. The Doc. at district court Vol. balance,” TV, R., make that Vol. said. appeal. stayed pending its order at 123. appealed to this court. Defendant then magistrate judge The concluded that involuntary-medication ap- order is an four Sell Government had established all order. 539 U.S. at pealable collateral 176-77, 123 prongs preponderance of the evidence 2174. We therefore involuntary jurisdiction §§ His U.S.C. 1291 & ordered medication. under 28 findings written state: grounds

II. DISCUSSION alternative turning to the before trial competence question. appeal raises two On issues. (citation 181-82, Id. reversal, 123 S.Ct. 2174 omit- ground first for which was

His ted). court, below, Sell concluded that a when not raised is that district court asked involuntary to order required de medication to to exercise novo review of render a magistrate defendant judge’s order the facts to stand trial, at the outset “should ordinarily as well as the law. Defendant well be de- authority seeks, There for termine propo correct. Government or v. has first sought, permission sition. See United States Rivera- for forced ad- Guerrero, (9th Cir.2004). drugs F.3d 1064 ministration of on ... Harper-type issue, grounds; not, But we need not why address be if not.” Id. we ground, cause reverse on the second 110 S.Ct. 1028. (via

his claim the district Harper addressed whether a convicted magistrate judge’s did not ruling) comply prisoner mentally who was ill posed with Sell. likelihood of serious harm to himself others involuntarily could be previously explained,

As Sell holds that medicated with antipsychotic drugs. The State of permits the Constitution the Govern- Washington, practices whose were re involuntarily ment to administer anti- viewed in Harper, allowed ill psychotic drugs mentally to a defen- (1) “only medication of an inmate if he facing charges serious criminal (2) suffers from a ‘mental disorder’ and to render that compe- order ‘gravely poses disabled’ or trial, ‘likelihood only tent stand but the treat- himself, serious harm’ to others or their medically is appropriate, ment is. sub- property.” 215, 494 stantially Harper, U.S. at 110 unlikely to have side effects S.Ct. 1028. The held may “given Court that undermine the fairness of the trial, requirements the prison and of the environ taking account less intrusive ment, alternatives, the necessary permits is Due Process Clause the significantly to State to important prison further treat a inmate who a governmental trial-re- lated interests. serious mental illness with antipsychotic will, drugs against if is his the inmate Sell, 179, 539 U.S. at 123 S.Ct. 2174. But dangerous to himself or others the the the Court cautioned that same result treatment in inmate’s is medical inter can often be reached on less troublesome 227, Rig est.” Id. at 110 S.Ct. In 1028. grounds: Nevada, 127, gins 133-36, v. U.S. 112 504 A need not consider whether to 1810, (1992), L.Ed.2d 479 allow forced medication for purpose [the applied analysis Court Harper’s pretrial to rendering Defendant. detainees such as See Jurasek trial], stand if medication forced is war- 506, v. Hosp., Utah State 158 F.3d 510-11 purpose, ranted for a such as different (10th Cir.1998) (Harper applies to pretrial purposes Harper set out in related civilly detainees and also to committed dangerousness, individual’s persons). purposes related to the individual’s own drugs interests where to take the Harper inquiry refusal Sell reasoned that puts his health at risk. gravely step inqui- There should be the first because “the strong ry often for a permissible, reasons court to into whether medication is ' say, to nondangerous determine whether forced administra- render an individual of drugs justified usually ‘objective tion can be is and manageable’ these more tri- incompetent into confined because stand inquiry than the whether medication a al “would credit toward sen- is to render defendant com receive permissible Sell, ultimately imposed, at tence see 18 petent.” 539 U.S. 123 S.Ct. U.S.C. 3585(b)”). 140, 112 Accordingly, § unless Riggins, 504 at Defen- (quoting U.S. J., unusually that an (Kennedy, concurring)). dangerous is so S.Ct. 1810 appropriate, extended is particular prison a medication is sentence Judging whether in governmental separating control interest medically appropriate likely to society a him from is to be dangerous straightfor behavior is more served And if for medical than a future criminal trial. he is question experts ward society a “balancing] continuing harms and benefits related to such threat because illness, legal questions of his mental then to be quintessentially more competence.” civilly Id. The confined under 18 U.S.C. trial fairness beyond Harper Court further observed which could result confinement law, permitted time even it under the criminal inquiry would wasted medication, compulsory again reducing governmental does not result findings underlying confining “the such a Defendant under criminal because magistrate help opinion to inform sentence. The reason the expert decision will consider, judicial decisionmaking respect judge part to a as refused interests, drugs balancing request possibility to administer for trial com petence at purposes.” Id. 123 S.Ct. Defendant’s confinement 4246 is that he regarding had no information likelihood of such confinement—an omis- general forth in our view rule set filled, part, by sion that at least in could be applies Harper inquiry Sell here —the Harper inquiry. (or preceded inquiry should have Sell sure, regardless the Government have ex- To be least should confinement pursue plained why Harper important governmental did there is an inter- adjudication regarding guilt. est in an But inquiry, see U.S. 123 S.Ct. 2174). charge general disposition against Besides the reason that a of the criminal more Harper inquiry produce tractable than a Defendant well not such a role inquiry, dangerous- pointed Sell the central of result. As defense counsel out to only in has inquiry magistrate judge, in the Sell this case calls a de- ness expert out under fense that Defendant proceeding Harper for first. concluded defense, insanity entitled to an but the Defendant, particularly after the time Bureau of was the Prisons evaluation same appeals, will have con- absorbed been (although it further recommended evalua- beyond the usual amount of time for fined if tion Defendant became of violating those convicted 18 U.S.C. trial). stand 875(c), § assuming he even made more in criminal-history may and is There occasions when it than two threats be is category Sentencing propriate four-part II. See United to resolve whether States 2A6.1.(a) (b)(2) justifies (setting involuntary a Sell test an order for Guidelines guide- psychotropic drugs yielding base-offense level administration of with- 24 there determining maximum of months for criminal- out first is an lines II). This alternative for such an order. But history category ground confinement it imposed good practice credited to would be assume other- would’be sentence case, an assumption a criminal conviction. 539 wise. this such after See (a warranted, especially 123 S.Ct. defendant would have been be- U.S. 2174; relevance of infor- see particular cause of the also United States v. (2d Gomes, concerning Cir.2004) Defendant’s potential mation F.3d arising from ill- dangerousness (discussing his mental the charges against the defen- ness. the potential sentence he could receive and determining po- “whether the district We vacate the court’s order tential civil for commitment abate[d] the On re- proceedings. remand for further Government’s prosecuting [the court require mand the district should defendant]”). Har- proceed Government to first under why it to. If per, explain or chooses not Here, Mr. Morrison been charged appropriate medication is not with serious crimes: of making two counts may Harper, the district court then death threats in violation 18 U.S.C. an involuntary-medi- reconsider whether 875(c). Each count carries a maximum appropriate cation order is under Sell. years’ sentence five incarceration. The of the charged seriousness offenses lends III. CONCLUSION support prosecution’s argument for The order that Defendant involun- be involuntary medication. On other tarily medicated VACATED and hand, Mr. Morrison has been held custo- case for proceed- is REMANDED further dy February Although since we ings. length cannot now determine the of the that Mr. will sentences Morrison receive if HENRY, Judge, concurring. prosecution the criminal proceeds and he majority I dis- agree with the that the convicted, it is conceivable he will government trict court direct the should already part served a substantial proceed Harper either inquiry by those sentences the time the criminal why announce chooses so. I not to do result, case is concluded. As a civil com- my write separately state as to view proceedings may protect pub- mitment proceed how the district court should lic effectively pros- more than the criminal government Mr. does establish that event, In any ecution. under the first danger to Morrison is a himself or others prong inquiry, Sell these consider- involuntarily such that he medicat- weighed carefully ations should be Harper. ed under district court remand. event, In that I believe that the district Next, view, my the district court four-part court should in- revisit Sell second, third, should proceed First, quiry. should determine I parts inquiry. agree fourth the Sell prosecution, whether the “in light “the relevant the Second effects, efficacy, possible the side alter- must be clear findings supported natives, and medical appropriateness Gomes, convincing evidence.” 387 F.3d at of a particular antipsychotic course treatment,” shown “a need for that sufficiently important treatment over- protected

come the individual’s interest

refusing it.” 539 U.S. (2003). L.Ed.2d

court “must consider the facts of the indi- evaluating

vidual case Government’s prosecution.” Id. at

Case Details

Case Name: United States v. Morrison

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Jul 19, 2005

Citation: 415 F.3d 1180

Docket Number: 04-4174

Court Abbreviation: 10th Cir.