Opinion
21 Mag. 6626 (SN)
08-18-2022
UNITED STATES OF AMERICA v. NISHANT SHETH, Defendant.
MEMORANDUM & ORDER
SARAH NETBURN, UNITED STATES MAGISTRATE JUDGE:
Defendant Nishant Sheth is currently incarcerated on charges of cyberstalking and making threatening interstate communications. He has been found mentally incompetent to stand trial. The question before the Court is how to proceed given this determination. The Government has submitted a report that considers the Defendant's diagnosis and recommends a proposed course of medical treatment to be administered involuntarily that will enable the Defendant to stand trial and assist in his defense. The Government, however, requests that the Court appoint an independent expert to advise the Court on whether the proposal is medically necessary and appropriate. Defendant's attorney suggests that an independent assessment is superfluous and requests that the Court immediately order involuntary medication to avoid any further deterioration in his client's condition. The Government's application is GRANTED. Appointing an independent expert under Federal Rule of Evidence 706 safeguards the Defendant's due process rights before deciding if he should be involuntarily medicated.
BACKGROUND
Defendant was charged by complaint on June 30, 2021. The complaint alleges one count of threatening interstate communications and one count of cyberstalking. ECF No. 1. He was arrested the same day. On July 1, he was presented to the Court and detained without bail. An evaluation of Defendant's mental health was ordered, but because the Bureau of Prisons (“BOP”) reported that the assignment of a psychiatrist to conduct this evaluation would be delayed, the Court, with the consent of all parties, directed that the examination be conducted by Dr. N.G. Berrill, a private psychiatrist retained by defense counsel. ECF No. 17. Dr. Berrill's report concluded that without treatment, he would be unable to assist in his defense (the “Berrill Report”).
AH ECF citation refer to the docket for United States v. Sheth, 21-mj-6626, unless otherwise noted.
The Government, with defense counsel's consent, moved under 18 U.S.C. § 4241(d)(1) for a finding that Defendant is mentally incompetent such that he cannot assist properly in his defense and to order his confinement at the Federal Medical Center in Devens, Massachusetts (“FMC Devens”). ECF No. 19. Having reviewed the Berrill Report, the Court found by a preponderance of the evidence that Defendant is mentally incompetent, ordered his hospitalization in FMC Devens for up to four months and directed that, at the end of this period, the BOP prepare a report on Defendant, addressing if he had been restored to competence and, if not, whether there was a substantial probability that further hospitalization would restore him to competence. ECF No. 20. Defendant was transferred to FMC Devens by February 18, 2022.
For the next four months, Defendant was evaluated by Dr. Miriam Kissin, a forensic psychologist. Dr. Kissin submitted a report on June 7, 2022 (the “Kissin Report”). Like the Berrill Report, it found that Defendant was not competent to stand trial. Kissin Report at 13-14. It also noted that, while he is not competent to stand trial, he had not posed a threat to himself, others, or the safe operation of the facility during his period of observation. Id. at 13. Included with the Kissin Report is a three-page proposed course of treatment that the BOP would employ if the Court authorized involuntary medication (the “BOP Plan”).
Defense counsel and the government disagree on the proper next steps. Both agree that Defendant is not competent to proceed and that he will not likely become so without medication. They disagree on what to do about this. The Government requests that the Court appoint an independent expert to assist the Court in determining whether Defendant should be involuntarily medicated to render him competent for trial. Defendant's counsel requests that the Court order involuntary treatment immediately and without further evaluation. He also disputes that Defendant does not pose a danger to himself or others. XXXXX Defendant has been incarcerated for 13 months and has not consented to medical treatment at any point in these proceedings.
DISCUSSION
Appointing an independent expert best safeguards Defendant's due process rights before considering an order for involuntary medication. Defendant has “a significant liberty interest in avoiding the unwanted administration of [medication] under the Due Process Clause of the Fourteenth Amendment.” Washington v. Harper, 494 U.S. 210, 221-22 (1990).
Two standards inform when this liberty interest may be overcome so that a prison administrator may involuntarily administer medication: “the Harper dangerousness test [and] the Sell restoration-to-competency test.” United States v. Hardy, 724 F.3d 280, 292 (2d Cir. 2013). The Harper dangerousness test applies when a court must account for “the State's legitimate interest in treating [a person] where medically appropriate for the purpose of reducing the danger he poses.” Harper, 494 U.S. at 211. This interest includes “ensuring the safety of prison staffs and administrative personnel... [and] the duty to take reasonable measures for the prisoners' own safety.” Id. at 225 (internal citations omitted).
The Harper test is inapposite. It is premised on prison administrators' legitimate interest in reducing the danger that a confined person poses to themselves, others, or the facility. The Kissin Report indicates that Defendant does not pose such risk. Kissin Report at 13. Without any prison-administrator identified threats to self or others, the Court finds no grounds to apply the Harper test.
The Court thus turns to the “restoration-to-competency test” set out in Sell v. United States, 539 U.S. 166 (2003). This four-factor test requires that, before ordering involuntary medication for the purpose of making a defendant competent to stand trial, a court find that: “(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.” United States v. Magassouba, 544 F.3d 387, 396 (2d Cir. 2008) (citing Sell, 539 U.S. at 180-81). Each factor “must be supported by clear and convincing evidence.” United States v. Gomes, 387 F.3d 157,160 (2d Cir. 2004) (“Gomes II”).
While involuntary medication may sometimes be required, “such orders are a tool that must not be casually deployed, for forced medication is a serious intrusion upon the integrity of the individual and the effects of such medication upon body and mind are often difficult to foresee.” United States v. Chatmon, 718 F.3d 369, 374 (4th Cir. 2013); see also United States v. Rivera-Guerrero, 426 F.3d 1130, 1137 (9th Cir. 2005) (“Sell orders are disfavored. The Supreme Court clearly intends courts to explore other procedures ... before considering involuntary medication orders under Sell.”')
Complicating the need for courts to approach Sell orders cautiously is the recognition that defendants facing mental health challenges may disagree with their counsel on the need for treatment. Unfortunately, due to the particular disabilities psychotic disorders can impose, it is not unheard of for defense counsel to urge involuntary medication with the support of the Government but against the wishes of her client. See, e.g., United States v. Sergentakis, 216 F.Supp.3d 343, 346 (S.D.N.Y. 2016) (“Sergentakis II”) (addressing a motion for involuntary antipsychotic medication “[w]here defense counsel and the Government are in agreement, but Defendant vehemently disagrees ....”); United States v. Bedros, No. 06-cr-249 (NGG), 2008 WL 2437865, at *3 (E.D.N.Y. June 13, 2008) (“[D]efense counsel stated that he did not object to granting the request for involuntary medication.”); United States v. Campbell, No. 13-cr-419 (DLI), 2015 WL 9460133, at *3 (E.D.N.Y. Dec. 23, 2015) (“[D]efense counsel... [stated that he] no longer was able to controvert the recommendation that Campbell be forcibly medicated in an effort to restore him to competence.”)
Where defense counsel does not oppose (or indeed supports) a request for involuntary medication “the Court recognizes its responsibility to exert additional oversight to protect [a defendant's] due process rights.” United States v. Sergentakis, No. 15-cr-0033 (NSR) (S.D.N.Y. Aug. 12, 2016) (“Sergentakis I”), ECF No. 56 at 5. To carry out this responsibility in the absence of adversarial proceedings, courts have employed a range of strategies. Some have rendered a decision based on the psychological reports already presented. See, e.g., Campbell, 2015 WL 9460133, at *3-*6. Others have appointed a guardian ad litem alongside defense counsel to “assure[] that these twin voices-that is, both the defendant's expressed and best interests-are presented to the court.” United States v. Pfeifer, 121 F.Supp.3d 1255,1259 (M.D. Ala. 2015).
Between these two poles, some courts have appointed an independent expert pursuant to Federal Rule of Evidence 706. See, e.g., United States v. Weston, 134 F.Supp.2d 115, 119 (D.D.C.) (“[T]he Court determined that it was in Weston's best interest to appoint an independent mental health expert, pursuant to Fed.R.Evid. 706.”) (“Weston I”); Sergentakis I, No. 15-cr-0033, ECF No. 56 at 6 (“[T]he appointment of an independent expert serves the dual aims of protecting Defendant's liberty interests and testing the details of the proposed treatment plan to ensure the Court can reliably decide whether or not to order the forcible medication.”)
Here, as in Sergentakis I and Weston I, appointing an independent expert is the best way to protect Defendant's due process rights and provide the Court with the information required by Sell. Indeed, under similar circumstances, courts have looked skeptically at the appointment of a guardian ad litem. As the Court of Appeals for the D.C. Circuit explained, “[i]f the guardian consented on Weston's behalf, the government presumably may medicate him ... If the guardian withheld consent, we are in the same position as without a guardian” because the Court would still have to carry out the Sell analysis. United States v. Weston, 255 F.3d 873, 887 (D.C. Cir. 2001) (“Weston II”). The Court of Appeals for the Second Circuit has approved this rationale. United States v. Gomes, 289 F.3d 71, 8788 (2d Cir. 2002) (“Gomes I”), cert, granted, judgment vacated on other grounds, 539 U.S. 939 (2003) (“[W]e agree with [Weston II] that such an appointment [of a guardian ad litem] is unnecessary.”)
This analysis is even more compelling here. In both Gomes I and Weston II, the Sell analysis had already been completed. Here, the only potential effect of appointing a guardian would be to free the Court of the requirement to conduct a Sell analysis by letting someone consent to treatment on Defendant's behalf. Given the special care courts must take before issuing an involuntary medication order, the Court does not find it appropriate to outsource the decision to waive Defendant's due process rights to a guardian ad litem.
The best option is the appointment of an independent expert. An analysis of the Sell factors requires the Court to have substantial medical detail on the BOP Plan and confidence that the proposed course of treatment is necessary. For example, in assessing if involuntary treatment is necessary, the Court must conclude that “any alternative, less intrusive treatments are unlikely to achieve substantially the same results” and determine whether “less intrusive means for administering the drugs” exist. Sell, 539 U.S. at 181. Similarly, to “conclude that administration of the drugs is medically appropriate,” the Court must consider “specific kinds of drugs at issue” and account for the fact that “[different kinds of antipsychotic drugs may produce different side effects and enjoy different levels of success.” Id. Where the Court does not have access to an adversarial defense expert to assist in its analysis, an independent expert is valuable in allowing the Court to render these findings with confidence.
Federal Rule of Evidence 706(a) permits a Court to appoint an independent medical expert. Because the Government seeks the appointment of an expert over defense counsel's objection, it shall propose an appropriate candidate(s) but shall consult with defense counsel in an effort to reach consensus. Given Defendant's condition and the need to move this case forward efficiently, the Court expects the expert to deliver a report in 21 days from appointment.
In addition, the Government shall provide the Court with its analysis of the statutory maximum sentence and likely sentencing guidelines range in this case. The first Sell factor requires a court to “balance[e] a crime's seriousness against potential ‘special circumstances'” by reviewing “the applicable statutory maximum sentence, the likely United States Sentencing Guidelines range, the amount of time the defendant has already been held in custody, and the prospect of continued civil commitment should the defendant not be tried. United States v. Decoteau, 857 F.Supp.2d 295, 302 (E.D.N.Y. 2012). Accordingly, courts developing a record for a Sell analysis have directed the Government to provide a Sentencing Guidelines analysis. See, e.g., United States v. Weinberg, 743 F.Supp.2d 234, 237 (W.D.N.Y. 2010). This analysis should be provided by September 2, 2022. Defense counsel may respond by September 9.
Because this Order may touch on sensitive medical information, the Court provided a copy to the parties in advance of public filing with instructions to indicate whether they believe any items should be subject to redaction by August 19, 2022. The filed version of this Memorandum and Order reflects any redactions recommended by the parties and deemed acceptable by the Court.
CONCLUSION
The Court shall appoint an independent expert to review the BOP's proposed plan of involuntary medication for Defendant considering the criteria set forth in Sell v. United States, 539 U.S. 166. The Government shall submit its recommended expert(s) and their qualifications by August 22, 2022.
The Government shall provide an analysis of the Defendant's sentencing exposure by September 2, 2022. Defense counsel may provide any response to that analysis by September 9.
SO ORDERED.