United States v. Sanchez-Hurtado

Full title: UNITED STATES of America, Plaintiff v. Jesus SANCHEZ-HURTADO, Defendant

Court: United States District Court, S.D. California

Date published: Nov 17, 1999

90 F. Supp. 2d 1049 (S.D. Cal. 1999)

Opinion

No. CRIM. 99CR2303-JPOR

November 17, 1999

Phillip Halpern, San Diego, CA, for the U.S.

Shaun Khojayan, Federal Defenders, San Diego, CA, for Jesus Sanchez-Hurtado.

ORDER RE GOVERNMENT'S MOTION TO CLARIFY ORDER COMMITTING DEFENDANT FOR TREATMENT

I . Introduction

A motion hearing came on regularly before this Court on November 4, 1999. Phillip Halpern, Assistant United States Attorney, appeared for the Government, and Shaun Khojayan appeared on behalf of Defendant Jesus Sanchez-Hurtado ("Defendant"). The Government moved the Court for clarification of its order of July 2, 1999. Specifically, the Government sought a declaration from the Court that commitment of Defendant for diagnosis and treatment of his mental defect includes implicit authority to administer psychotropic medication, even against Defendant's will. Defendant opposed his further commitment and the involuntary medication.

II . Factual Background

Defendant is a forty-four year old male who was born in Baja, California. On or about April 23, 1999, Defendant was arrested for (1) attempted illegal reentry into the United States in violation of 8 U.S.C. § 1326; and (2) falsely and willfully misrepresenting his national status to an Immigration and Naturalization Services ("INS") Inspector in violation of 18 U.S.C. § 911. On May 6, 1999, Defendant was arraigned before Magistrate Judge Louisa S. Porter. A preliminary examination was set for May 20, 1999.

On May 20, 1999, the date set for the preliminary examination, a hearing was held before Magistrate Judge Larry A. Burns in Judge Porter's absence. At that hearing, Mr. Khojayan requested that Defendant be examined in order to determine his competency to stand trial. Judge Burns found that there were "reasonable grounds to believe that Mr. Jesus Sanchez-Hurtado may be incompetent to understand the nature and consequences of the proceedings against him and/or assist properly in his defense." (Order Appointing Psychiatrist Pursuant to 18 U.S.C. § 4241(b) for Examination to Determine Present Mental Competency at 1.) In accordance with this finding, Judge Burns ordered that Defendant be examined by Dr. Mark Kalish to make a determination about Defendant's competency. ( Id. at 1-2.)

Dr. Kalish conducted a psychiatric examination of Defendant on June 15, 1999. During that examination, Defendant shared with Dr. Kalish his "messianic delusion" that he was Jesus Christ. (Report from Mark A. Kalish to Judge Burns of 6/21/99, at 2.) Defendant also demonstrated auditory hallucinations. ( Id.) Based upon his clinical evaluation, Dr. Kalish reported that Defendant suffered "from a significant mental illness." ( Id. at 4.) Dr. Kalish concluded that Defendant was "presently incompetent to assist his attorney in the preparation of a defense to the charges pending against him." ( Id. at 5.) Dr. Kalish expressed his belief that treatment with antipsychotic medications would quickly restore Defendant to competency. ( Id.)

On July 1, 1999, a hearing was held before Judge Porter to determine Defendant's mental competency. During that hearing, the Court received in evidence Dr. Kalish's report. After considering the report and comments from counsel, the Court found that Defendant was "presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense." (Order Finding Def. Not Competent to Stand Trial and Committing Def. for Treatment Pursuant to 18 U.S.C. § 4241(d) at 1.) In accordance with this finding, the Court ordered that Defendant be committed to the custody of the Attorney General for hospitalization and treatment to ensure Defendant's competency to stand trial, "and to also help clarify his diagnostic picture." ( Id.) A further status conference was scheduled for November 4, 1999.

On or about August 10, 1999, Defendant was admitted to the Mental Health Division of the Federal Correctional Institution ("FCI") at Butner, North Carolina. (Forensic Evaluation from FCI Butner to Judge Porter of 10/29/99, at 1.) Upon his arrival at that facility, Defendant was seen individually by Moira Artiguez, M.D., Fellow in Forensic Psychiatry, with supervision by Bruce Berger, M.D., a staff psychiatrist at FCI Butner. ( Id.) Defendant also received a psychological consultation with Angela Walden, Ph.D. ( Id.)

Defendant underwent a physical examination and laboratory tests on August 10, 1999. ( Id. at 5.) At the time of his initial mental status examination, Defendant reported "auditory hallucinations, `the voice of God' and a `whispering noise'" that indicated to him that his mind was being actively surveilled by the CIA. ( Id.) He also stated that he was "the Holy Spirit." ( Id.)

The forensic evaluation from FCI Butner indicates that Defendant "functioned adequately on the open compound, spending much of his time alone, seated in the dayroom watching the activity of staff and other inmates. He attended Catholic Mass. several times per week. He was pleasant and amenable to staff directions." ( Id. at 6.) However, the evaluation also indicates that Defendant continued to exhibit delusional beliefs and auditory hallucinations, and persisted in his belief that "he is `The Son of God,' that he is an informant for the CIA, and that his daughter's organs had been taken from her." ( Id.) The treatment team at FCI Butner felt that Defendant's beliefs "would interfere in a significant way with his ability to work with an attorney and prevented his rational comprehension of the nature of the charges against him." ( Id.)

The treatment team offered a trial of antipsychotic medications to Defendant to deal with his delusional beliefs. Defendant "did not agree that his auditory hallucinations and expressed delusional thoughts represented psychosis." ( Id.) Defendant refused the trial of medications, "stating he did not believe he had a mental illness." ( Id.)

On September 7, 1999, an involuntary medication hearing was held. ( Id.) The hearing officer agreed with the treatment staff that Defendant was psychotic and "that he was not competent to stand trial in his current mental state."¹ ( Id.) Defendant disagreed with this finding and appealed that decision to the warden. ( Id.) The warden denied Defendant's appeal on September 14, 1999. ( Id.) Defendant has not received any treatment with antipsychotic medications pending resolution of the legal issues involved in the decision whether to involuntarily medicate him.

1 At oral argument, the Government represented that the hearing officer also recommended that Defendant be treated with antipsychotic medications. However, the Court finds no such indication in the forensic evaluation.

The forensic evaluation from FCI Butner indicates that Defendant is diagnosed with Schizophrenia, Paranoid Type. ( Id. at 7.) The evaluation indicates that the usual treatment for this diagnosis is antipsychotic medications. ( Id.) It is the belief of the treatment staff at FCI Butner that Defendant could be restored to competency with this treatment. ( Id. at 8.)

III .

Commitment Under 18 U.S.C. § 4241(d) 18 U.S.C. § 4241 sets out the procedures that apply in determining whether a defendant is competent to stand trial. Section 4241(d) provides that if, after a hearing, a court finds that, a defendant is incompetent to stand trial,

the court shall commit the defendant to the Attorney General. The Attorney General shall hospitalize the defendant for treatment in a suitable facility —

(1) 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 he will attain the capacity to permit the trial to proceed; and

(2) for an additional reasonable period of time until —

(A) his 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 trial to proceed; or

(B) the pending charges against him are disposed of according to law;

whichever is earlier.

18 U.S.C. § 4241(d).

In this case, the Court held a hearing regarding Defendant's competency, and after finding him incompetent to stand trial, committed Defendant to the custody of the Attorney General for treatment in a suitable facility for a reasonable period of time. As stated in the statute, the purpose of this hospitalization is to determine whether there is a substantial probability that Defendant will, in the foreseeable future, attain the capacity for the trial to proceed. The medical staff at FCI Butner believe that the appropriate treatment for Defendant's incompetence is antipsychotic medications, and that with such treatment he could be restored to competency. However, Defendant has refused the antipsychotic medications, and no other treatment has been discussed. This Court, therefore, finds itself in the position of being unable to determine if there is a substantial probability that Defendant will be made competent without first deciding whether Defendant may be medicated against his will. If Defendant may be medicated against his will, then there is a substantial probability that he will, in the foreseeable future, attain competency. However, if Defendant may not be medicated against his will, and in the absence of some other form of treatment, there is little, if any, chance that Defendant will attain the capacity for the trial to proceed.

The Court notes that Defendant's hospitalization began on August 10, 1999, and that according to 18 U.S.C. § 4241(d)(1), his four-month time period will elapse on December 10, 1999. Defendant argues that a "substantial injustice" would result if he was hospitalized for an additional four months. However, the Court has not recommended any hospitalization of Defendant beyond the four-month time period as permitted by the statute, much less an additional four months. At this time, the Court finds that it is necessary to continue Defendant's hospitalization until December 10, 1999, but until the four-month time period has elapsed, the Court need not decide whether to continue Defendant's hospitalization beyond that time period.²

2 Notwithstanding the above, the Court notes that whether that four-month time period is an absolute limitation appears to be open to question. Compare United States v. Ecker, 30 F.3d 966, 969 (8th Cir. 1994), with United States v. Donofrio, 896 F.2d 1301, 1303 (11th Cir. 1990).

IV . Involuntary Medication

As stated above, before this Court can determine whether there is a substantial probability that Defendant will, in the foreseeable future, attain the capacity for the trial to proceed, the Court must determine whether Defendant may be treated with antipsychotic medications against his will. The Government argues that Defendant should be involuntarily medicated. Defendant disagrees.

The administrative safeguards associated with psychiatric treatment and medication of persons in the custody of the Attorney General are set out in 28 C.F.R. § 549.43. Defendant asserts that it is arguable whether these procedures apply to him. ( See Def.'s Opp'n to Further Commitment Under 4241(D) and Involuntary Medication at 4.) However, Defendant does not provide the Court with any authority to support this assertion. In the absence of such authority, the Court finds that Defendant is covered by the administrative safeguards of 28 C.F.R. § 549.43.

The Government argues that it has complied with the administrative safeguards as set out in the regulations. Defendant does not explicitly dispute this finding. The Court's own inquiry indicates that Defendant did receive an administrative hearing in accordance with the federal regulations. ( See Forensic Evaluation, at 6.) It also indicates that Defendant submitted an appeal of the hearing officer's decision, which he is entitled to do under the regulations. ( See id.) However, the evaluation does not provide any details of the hearing, such as the name of the hearing officer and whether that person was involved in Defendant's diagnosis or treatment, nor does it indicate whether Defendant received all of the procedural safeguards associated with the hearing. Although the Government argues that it has complied with the administrative safeguards, there is no evidence presently before the Court to make that determination, and the Court declines to do so in the absence of such evidence.

Assuming, however, that the Government has complied with the administrative safeguards, it argues that "[d]ue process requires no more." ( See Gov't's Mot. to Clarify Order Committing Def. for Treatment at 5.) Defendant counters that due process requires that the decision whether to forcibly medicate Defendant must survive strict scrutiny. ( See Def.'s Opp'n at 4-5.)

In support of its position, the Government primarily relies on the decisions of Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178(1990), and Riggins v. Nevada, 504 U.S. 127, 112 S.Ct. 1810, 118 L.Ed.2d 479(1992). In Harper, the United States Supreme Court held that prisoners possess "a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs" under the Due Process Clause. 494 U.S. at 221-22, 110 S.Ct. 1028. The Supreme Court held that "given the requirements of the prison environment, the Due Process Clause permits the State to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate's medical interest." Id. at 227, 110 S.Ct. 1028, 108 L.Ed.2d 178. Harper, however, is distinguishable from the present case in one major respect. In Harper, the Court was dealing with a prisoner who had assaulted two individuals, while the Defendant in this case has not demonstrated any assaultive or violent behavior during his hospitalization. In fact, the report from FCI Butner indicates that Defendant is "pleasant and amenable to staff direction." ( See Forensic Evaluation, at 6.) In the face of this significant factual difference, this Court finds that Harper is not controlling in the present case.

The more persuasive authority in the present case is found in Riggins. In that case, a pre-trial detainee who reported hearing voices in his head and trouble sleeping was treated with antipsychotic medications. 504 U.S. at 129, 112 S.Ct. 1810. At some point during the trial, the defense moved the court for an order suspending the antipsychotic medication until the end of the defendant's trial. Id. at 130, 112 S.Ct. 1810. The defense argued that "continued administration of these drugs infringed upon [the defendant's] freedom and that the drugs' effect on his demeanor and mental state during trial would deny him due process." Id. The defense also asserted that because defendant "would offer an insanity defense at trial, he had a right to show jurors his `true mental state.'" Id. After an evidentiary hearing, the court denied the defendant's motion with no indication of its rationale. Id. at 130-31, 112 S.Ct. 1810. The Nevada Supreme Court affirmed that decision. Id. at 132, 112 S.Ct. 1810.

The U.S. Supreme Court reversed the decision of the state courts due to an absence of necessary findings. Id. at 136-38, 112 S.Ct. 1810. The Court stated that due process certainly would have been satisfied "if the prosecution had demonstrated, and the District Court had found, that treatment with antipsychotic medication was medically appropriate and, considering less intrusive alternatives, essential for the sake of Riggins' own safety or the safety of others." Id. at 135, 112 S.Ct. 1810. The Court further stated that the government "might have been able to justify medically appropriate, involuntary treatment with the drug by establishing that it could not obtain an adjudication of Riggins' guilt or innocence by using less intrusive means." Id.

Here, the Government argues that the latter statement is the standard for determining whether Defendant should be involuntarily medicated, while Defendant argues the former. Exactly which standard applies, however, is unclear. What is clear from the majority opinion is that it was not prescribing any substantive standards, and was certainly not adopting a standard of strict scrutiny. Id. at 136, 112 S.Ct. 1810.

While the majority opinion in Riggins is persuasive authority, it, too, is factually and legally distinguishable from the present case. Riggins involved a pre-trial detainee who agreed to treatment with antipsychotic medication before trial. Riggins eventually attained the capacity for the trial to proceed, and then during his trial requested that he be removed from the antipsychotic medications. The majority opinion in Riggins addressed the issue of "whether forced administration of antipsychotic medication during trial violated rights guaranteed by the Sixth and Fourteenth Amendments." Id. at 132-33, 112 S.Ct. 1810 (emphasis added). In contrast, in the present case Defendant has not agreed to be medicated with antipsychotic drugs, nor has he attained the capacity for the trial to proceed. Hence, the issue in this case is whether forced administration of antipsychotic drugs before trial, and for the sole purpose of making Defendant competent to stand trial, violates Defendant's constitutional rights.

This precise issue is more squarely addressed by Justice Kennedy in his concurring opinion in Riggins. There, Justice Kennedy discusses the effects of involuntary medication with antipsychotic drugs on the right of a criminal defendant to a fair trial. He defines the issue as whether the government's "interest in conducting the trial allows it to ensure the defendant's competence by involuntary medication, assuming of course there is a sound medical basis for the treatment." Id. at 140, 112 S.Ct. 1810 (Kennedy, J., concurring). Justice Kennedy writes that in this situation "elementary protections against state intrusion require the State in every case to make a showing that there is no significant risk that the medication will impair or alter in any material way the defendant's capacity or willingness to react to the testimony at trial or to assist his counsel." Id. at 141, 112 S.Ct. 1810 (Kennedy, J., concurring).

In addition to Harper and Riggins, the Government cites Kulas v. Valdez, 159 F.3d 453 (9th Cir. 1998), as the controlling Ninth Circuit law applicable to this case. However, that case arose out of a civil rights action filed by a pre-trial detainee against the doctors involved in his medical treatment at a county jail, and the judge who committed him to the county facility. Id. at 455. The constitutional rights guaranteed to criminal defendants were not at issue in that civil trial, therefore that case is not controlling here.

Counsel concede that there are no other Ninth Circuit cases clearly on point with the facts and issue involved in this case. The Sixth Circuit, however, has addressed this issue in United States v. Brandon, 158 F.3d 947 (6th Cir. 1998), which appears to be factually consistent with the present case. In Brandon, a pre-trial detainee was found incompetent to stand trial and committed to the custody of the Attorney General pursuant to 18 U.S.C. § 4241(d). Id. at 950. The Federal Medical Center in Rochester, Minnesota, recommended that Brandon be treated with antipsychotic medication, which Brandon refused to take. Id. Brandon then moved the court for a evidentiary hearing to determine whether the hospital could forcibly medicate him with antipsychotic medication. Id. The court denied that motion, and Brandon appealed. Id. The Sixth Circuit phrased the issue before it as "whether the Due Process Clause of the Fifth Amendment requires a judicial hearing to determine whether a non-dangerous pretrial detainee can be forcibly medicated in order to render him competent to stand trial." Id. In deciding this issue, the court considered four factors; (1) the individual's interests, (2) the government's interests, (3) the value of a judicial hearing, and (4) the risks of an administrative hearing. Id. at 953-56. The court stated that the ultimate decision was not "whether treatment with drugs is in the detainee's medical interests," but rather whether the drugs would effect the detainee's right to a fair trial and his right to counsel. Id. at 955. After considering these factors, the court concluded that "due process considerations" required a judicial hearing. Id.

Here, as in Brandon, the Court is faced with a non-dangerous pre-trial detainee who has been found incompetent to stand trial, has been committed to the custody of the Attorney General, and has refused antipsychotic medication against the recommendation of his treating physicians. Considering these factual similarities, this Court finds the reasoning of the Sixth Circuit in Brandon particularly compelling. Based upon that reasoning, and the majority opinion in Riggins, this Court finds that a judicial hearing is required in this case.³

3 While the majority opinion in Riggins did not explicitly hold that a judicial hearing is required, the opinion's criticism of the district court's "laconic order," and its remand of the case for further proceedings implies that a judicial hearing is required. 504 U.S. at 136. 112 S.Ct. 1810.

Although Riggins supports holding a judicial hearing in this situation, as stated above, the majority opinion does not set forth any substantive standards to apply to the hearing. Accordingly, this Court looks to Brandon for such standards. The Brandon court found that involuntary treatment with antipsychotic drugs affected a fundamental right. Id. at 957. As a result, the court stated that the government's request to forcibly medicate Brandon "must be reviewed under the strictscrutiny standard." Id. at 957. This result, however, is contrary to the majority opinion in Riggins, wherein the Supreme Court clearly stated that it was not adopting a standard of strict scrutiny. 504 U.S. at 136, 112 S.Ct. 1810. Accordingly, this Court declines to adopt a standard of strict scrutiny for the judicial hearing in this case.

In light of the opposite standard set out by the Sixth Circuit in Brandon, this Court returns to Riggins for guidance as to the appropriate standard to apply to the judicial hearing. Based upon both the majority opinion in Riggins and Justice Kennedy's concurrence, this Court sets out a three-prong test which the Government must satisfy before Defendant may be forcibly medicated with antipsychotic drugs.

First, the government must demonstrate that "administration of antipsychotic medication [is] necessary to accomplish an essential state policy." Riggins, 504 U.S. at 138, 112 S.Ct. 1810. Second, the government must show that "there is a sound medical basis for treatment with antipsychotic medication." Id. at 140, 112 S.Ct. 1810 (Kennedy, J., concurring). In making this showing, the government may provide "medical testimony regarding [Defendant's] mental illness and its symptoms, as well as the effects that antipsychotic medication will have, both beneficial and harmful, on [Defendant's] physical and mental health." Brandon., 158 F.3d at 960. Third, and most importantly, the government must establish "that there is no significant risk that the medication will impair or alter in any material way the defendant's capacity or willingness to react to the testimony at trial or to assist his counsel." Riggins, 504 U.S. at 141, 112 S.Ct. 1810 (Kennedy, J., concurring). Although this Court rejects the strict scrutiny standard set out in Brandon, this Court agrees that "the risk of error and possible harm involved in deciding whether to forcibly medicate an incompetent, non-dangerous pre-trial detainee" are substantial. Brandon, 158 F.3d at 961. Accordingly, the government must establish these elements "by clear and convincing evidence." Id.

In determining whether the government has established these three elements, the Court will balance several factors. First, the Court will consider Defendant's interests at stake in this decision. Second, the Court will weigh the interests of the Government in forcibly medicating Defendant with antipsychotic drugs. In addition to these two major factors, the Court will also consider "(1) whether the pretrial detainee is dangerous to himself or others, (2) the seriousness of the crime, and (3) whether the detainee will be released from confinement if not made to stand trial." Id. at 960. Lastly, the Court may consider whether there are any less intrusive alternatives available to enable Defendant to attain the capacity for the trial to proceed. See Riggins, 504 U.S. at 135, 112 S.Ct. 1810.

V . Conclusion

After thoroughly reviewing the Government's moving papers, Defendant's opposition papers, hearing oral argument from the parties and considering the relevant case law, this Court finds that a further judicial hearing is required to determine whether Defendant may be involuntarily medicated with antipsychotic drugs. Accordingly, IT IS HEREBY ORDERED:

1. An evidentiary hearing shall be held on December 9, 1999, at 9:00 a.m. in Courtroom H. The purpose of this evidentiary hearing is to determine (1) whether Defendant shall be involuntarily medicated with antipsychotic drugs in order to be made competent for the trial to proceed, and (2) whether to continue Defendant's commitment under 18 U.S.C. § 4241(d). The Government shall have an opportunity to make the requisite showing as discussed above. Defendant shall have an opportunity to present his own evidence and to rebut the Government's evidence.

2. A letter and the forensic evaluation from FCI Butner dated October 26, 1999, have been received by the Court and are attached to this Order. The Court hereby enters these documents into evidence in this case. If Defendant requests the presence of the treating psychiatrists and psychologist that contributed to this report at the evidentiary hearing, such request shall be made in writing to the Government and the Court within ten (10) days of the date of this order.

3. If Defendant wishes to be transported back to San Diego for this hearing, or if he wishes to have a guardian ad litem appointed to represent his interests at this hearing, such request shall be made in writing to the Government and the Court within ten (10) days of this order.

4. Any request to continue this hearing shall be made at least ten (10) days before the hearing.

ATTACHMENT

U.S. Department of Justice Federal Bureau of Prisons

Federal Correctional Institution ____________________________________________________________________________

P.O. Box 1000 Bunter, North Carolina 27509-1000 October 26, 1999

The Honorable Louisa S. Porter United States District Court Southern District of California 1140 Edward J. Swartz U.S. Courthouse 940 Front Street San Diego, California 92101-8925

RE: SANCHEZ-HURTADO, Jesus Register Number: 96278-098 Docket Number: 99MG1116

Dear Judge Porter:

In accordance with your most recent Court Order of July 2, 1999, a psychiatric evaluation on Mr. Sanchez-Hurtado has been completed.

It is our opinion that Mr. Sanchez-Hurtado is suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings filed against him or assist an attorney in his own defense. We do believe that with an additional period of hospitalization and treatment, Mr. Sanchez-Hurtado's competency to stand trial may be restored. Therefore, we respectfully request that he be continued at our facility pursuant to Section 4241(d), for a full 120 days as allowed by the Statute. I have enclosed the report prepared by our staff reflecting these opinions.

The United States Marshal Service will be contacted for return of Mr. Sanchez-Hurtado to your District Court when a hearing is imminent.

If I can be of further assistance to the Court in this or other matters, please do not hesitate to contact me.

Sincerely,

J.R. James Warden

Enclosures

JRJ/JK:pw

FORENSIC EVALUATION

NAME: SANCHEZ-HURTADO, Jesus REGISTER NUMBER: 96278-098 DOCKET NUMBER: 99MG1116 DATE OF BIRTH: 12/25/54 DATE OF REPORT: 10/29/99

IDENTIFYING INFORMATION: Mr. Sanchez-Hurtado is a 44 year old, single Hispanic male from Tijuana, Mexico admitted to the Mental Health Division of the Federal Correctional Institution in Butner, North Carolina on 08/10/99. On 07/02/99 the United States District Court for the Southern District of California received into evidence the written report of Mark Kalish, M.D. The Court. having considered evidence and arguments of counsel, found that Mr. Sanchez-Hurtado was suffeering from a mental disease or defect rendering him mentally incompetent to the extent that he was unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense. The Honorable Louisa S. Porter. United States Magistrate Judge for the Southern District of California, ordered Mr. Sanchez-Hurtado to be hospitalized for treatment in a suitable facility in order to ensure his competency to stand trial and to help clarify his diagnostic picture. It was further ordered that a report on Mr. Sanchez-Hurtado's status be provided to the Court by 10/26/99 to allow for a review of the defendant's mental status, and that counsel appear for a Status Conference on 11/04/99 at 2:00 p.m. to confer on the treatment process; the probability that in the foreseeable future Mr. Sanchez-Hurtado would attain the capacity to permit the trial to proceed; and whether additional reasonable time periods are necessary to allow his mental condition to improve to the point that trial may proceed. Mr. Sanchez-Hurtado is charged with Illegal Re-Entry which occurred on 04/23/99, in El Paso, Texas. He has no co-defendants. Shaun Khojayan is the Federal Public Defender. The Assistant U.S. Attorney assigned to the case is Philip Halpern.

DATES OF CONTACT/PROCEDURES ADMINISTERED: Since his arrival at FCI Butner, Mr. Sanchez-Hurtado has been seen individually by Moira Artigues, M.D., Fellow in Forensic Psychiatry, with supervision by Bruce Berger, M.D., Staff Psychiatrist. Psychological consultation was provided by Angela Walden, Ph.D. Other members of the Forensic Team, Correctional and Mental Health Staff also had the opportunity to observe Mr. Sanchez-Hurtado since his arrival. Their comments have been considered prior to the preparation of this report. The following assessment procedures were conducted for the evaluation:

Clinical Interviews (ongoing) Physical Examination (07/26/99)

Collateral information available for review included a copy of the Court Order dated 07/02/99; a document entitled, "Conflict of Interest Certification," dated 04/26/99, United States District Court, Southern District of California Complaint for Violation of Title 8, U.S.C. § 1326-Attempted Re-Entry After Deportation, filed against Mr. Jesus Sanchez-Hurtado, dated 04/24/99; a document entitled, "Continuation of Complaint, Re: Sanchez-Hurtado, Jesus, Statement of Facts," not dated; a document entitled, "January 1999, Office of the United States Attorney, Southern District of California, Felony Prosecution Guidelines and Worksheet." not dated; a letter from Virginia A. Black, Assistant U.S. Attorney, to Shaun Khojayan, Federal Public Defender, dated 04/28/99; a Plea Agreement from the United States District Court, Southern Distnct of California, not dated or signed; United States District Court, Southern District of California Waiver of Indictment, not dated or signed; report of psychiatric examination of Jesus Sanchez-Hurtado prepared by Mark A. Kalish, M.D., M.P.H., dated 06/21/99; United States District Court. Southern District of California April 1999 Grand Jury Indictment of Mr. Jesus Sanchez-Hurtado, dated 08/11/99, not signed; a document entitled, Magistrate Information Sheet, dated 04/26/99; copies of documents from the United States Department of Justice Immigration and Naturalization Service entitled Incident Report dated 04/23/99; Warning as to Rights, dated 04/23/99, Record of Deportable/Inadmissable Alien, dated 04/23/99; 1-94 Arrival/Departure Record, dated 05/22/99, Detainer-Notice of Action, dated 04/23/99; 2 copies of Warrant of Removal/Deportation, dated 12/22/98 and 06/12/98; Notice of Intent/Decision to Reinstate Prior Order, dated 12/22/98; 2 copies of Warning to Alien Ordered Removed or Deported one not dated and one dated 07/08/98; Notice to Appear, dated 06/15/98; copies of mug shots and fingerprints of Mr. Sanchez-Hurtado, not dated; United States Department of Justice, Federal Bureau of Prisons Prisoner Remanding Form, not dated; two documents entitled, Immigration Court, dated 07/08/99; a document entitled, Judgement and Commitment, United States District Court, Southern District of California, dated 11/23/87; a document entitled, Criminal Alien Status Sheet, dated 04/26/99; and telephone conversations by Moira Artigues, M.D. with Maria de los Angeles Hurtado, Mr. Sanchez-Hurtado's mother, with interpretation of Spanish by staff, Shaun Khojayan, Mr. Sanchez-Hurtado's attorney; and Philip Halpern, AUSA.

BACKGROUND INFORMATION: At the outset of this evaluation and several times throughout the course of this evaluation, Mr. Sanchez-Hurtado was informed about the purpose of the evaluation, the limits of confidentiality, and that any information obtained could be shared with the Court as well as the defense and prosecuting attorneys in the form of a written report. Mr. Sanchez-Hurtado verbalized that he understood these limits of confidentiality. The information contained in this section is a composite of that obtained through the direct interviews of Mr. Sanchez-Hurtado and the collateral sources listed above. Mr. Sanchez-Hurtado was considered a generally reliable historian.

Mr. Sanchez-Hurtado was born in Baja, California, on 12/25/54, by his report. His mother. Maria de los Angeles Hurtado, and his father. Enrique Sanchez, are still married and reside in San Diego, California. He noted that his father was a United States citizen and that his mother was a Mexican National at the time of his birth. His mother has since become a United States citizen. Neither of his parents speaks English. He reported that his father had a conviction for "rape of a minor" in Tijuana, Mexico for which he served a two year sentence in 1995. His parents have no other criminal history and no psychiatric or substance abuse history was reported. His mother works in the home. His father is a farm laborer. He is the third child in a sibship of 13. He has seven brothers and five sisters ranging in age from 23 years old to 46 years old. Mr. Sanchez-Hurtado reported that he has a sister who has a mental illness that caused her to "hear voices and see spirits." His mother confirmed this report. He attested to one male sibling who is addicted to heroin; a male sibling who is an alcoholic; and multiple male siblings who use amphetamines. He reported one male sibling was deported due to a legal charge relating to amphetamine use. There is no other psychiatric, substance abuse, or criminal history among his siblings or in the extended family. Mr. Sanchez-Hurtado is heterosexual. He became sexually active at age 21. He has never been married. He reports a common-law relationship with a woman in Hollister, California from 1976 until 1981, when they separated. They lived together again intermittently after 1988. They have three children, a boy, Jesse, who is 21 years old, and twin girls, Elsie and Lucy, who are 18 years old. He had a common-law relationship with a woman in National City, California from 1981 until 1988 and intermittently since 1988. They have two children, a girl, Hilda, who is eight years old, and a girl, Vanessa, who is six years old. He reported he has had difficulty paying child support and has had his wages garnished in the pest for this reason.

Mr. Sanchez-Hurtado was not a member of the Armed Forces.

Mr. Sanchez-Hurtado has worked intermittently since age 14 years old. He left school in the sixth grade because his family could not afford to pay requisite public school fees or purchase books. His first job was in a leather factory in Mexico. He also worked picking tomatoes and loading trucks. He reported that in 1976, he began crossing the United States-Mexico border from Tijuana into San Diego on a student permit. He bought a Dodge van and earned money helping Mexican nationals cross the border. He also began a succession of jobs as a welder, working during short intervals for various companies, including San Diego Galvanizing, Ferry Moorse Security Company, San Jose Bautiste Company, and Marine Structures Incorporated. At San Diego Technical Institute, he completed training in welding and became certified by the American Welding Society, around 1980. He worked as a drywall hanger and worked at Southwest Marine Company in San Diego during the early 1980's. He stated that he was living with girlfriends in Hollister, California, and National City, California for some of this time and with a sister who lives in Tijuana. He reported that he had a driver's license and a Social Security number issued in the United States during this period. He denied having gone through procedures to become a United States citizen. In 1986, he spent 18 months in jail. This conviction is discussed below. Following release, he was instructed not to leave the United States for the next five years. He states that this was a condition of a bond agreement. He reported that during this five year period he worked as a welder for a sewage treatment plant in San Diego and at Southwest Marine. He was deported in 1992. Following deportation, he continued to cross the border in order to work at Southwest Marine, doing some work for this company in San Pedro, California, on the U.S.S. Ambassador. Since 1993, he has had few sustained periods of work. He reported he was fired from Southwest Marine due to drug use in 1994. He next worked in 1996 at Pacific Defense Systems, but was fired after six months due to poor job performance. He had several periods in which he collected unemployment. He has lived with his parents in San Diego and with a sister in Tijuana since 1993

Mr. Sanchez-Hurtado has an extensive history of substance abuse. He endorsed heavy use of alcohol, marijuana (smoking), cocaine (both snorting powder and smoking crack cocaine), and amphetamines (taking "crystal meth" tablets by mouth) in the past. He denies a history of intravenous drug use. He reported he stopped all drug and alcohol use one year ago "because God wanted me to". Collateral sources were uncertain as to the type and degree of his substance use.

Mr. Sanchez-Hurtado denied any history of psychiatric hospitalization, outpatient treatment, or treatment with psychiatric medications. His mother supported this. She stated that he has had episodes of auditory hallucinations, characterized as "hearing voices", since age twenty. She stated that "something goes wrong in his head". She had difficulty describing other specific symptoms or behaviors. She noted that psychiatric treatment was recommended upon his release from prison in the United States in 1987. but that he did not follow up as instructed.

Mr. Sanchez-Hurtado's past criminal history began in 1986 when he was convicted of Conspiracy to Possess With Intent to Distribute Marijuana. He served a total of 18 months and one day for this conviction and was released on $8,000 bond. He stated that he was instructed not to leave the United States for the next five years. He was deported on 09/04/92. In 1992. date unknown, he was charged with Illegal Entry Into the United States, was later convicted, and was deported in 1994, date unknown. On 05/26/97, he received an Order for Exclusion From the United States based on an attempted entry from Mexico. The disposition of this case is unknown. On 06/12/98, he was charged with Illegal Entry Into the United States and ordered to appear before an Immigration Judge on 06/15/98. The disposition of this case is also unknown. On 07/08/98, he attempted to enter the United States and was arraigned on that day in Immigration Court in Otay Mesa, California. He was ordered removed from the United States to Mexico on that same day. He was charged with Illegal Re-Entry Into the United States on 08/08/98. was convicted, and was deported on 12/22/98. He was charged with Illegal Re-Entry Into the United States on 04/23/99 (instant offense).

The official version of the instant offense is as follows. Mr. Sanchez-Hurtado made application for admission to the United States through the pedestrian entrance of the San Ysidro port of entry on 04/23/99 at approximately 5:45 p.m. He verbally declared himself as a United States citizen by naturalization to Primary Special Operations Inspector Braulio Braithewaite of the United States Immigration and Naturalization Service. Inspector Braithwaite noted that Mr. Sanchez-Hurtado was nervous and suspected that he was not a citizen based on this presentation Inspector Braithwaite escorted Mr. Sanchez-Hurtado to secondary inspection. A computerized check revealed he was a prior INS violator. Criminal history revealed deportation orders issued on 09/04/92 and 12/22/98. Records showed Mr. Sanchez-Hurtado had not applied to the Attorney General for permission to enter the United States. Mr. Sanchez-Hurtado was taken to the Metropolitan Correctional Center in San Diego, California pending arraignment on the charge of Attempted Re-Entry After Deportation. On 05/12/99, Shaun Khojayan, the Federal Public Defender assigned to Mr. Sanchez-Hurtado's case, met with him at the Metropolitan Correctional Center. Mr. Khojayan was prepared to offer Mr. Sanchez-Hurtado a plea agreement. Mr. Khojayan noted that Mr. Sanchez-Hurtado made statements indicating that he believed himself to be Jesus Christ. Mr. Khojayan felt Mr. Sanchez-Hurtado needed a psychiatric evaluation and filed a motion to that effect. On 05/25/99, a Court Order was issued by the Honorable Larry A. Burns for a psychiatric evaluation of Mr. Sanchez-Hurtado pursuant to Title 18, Unites States Code 4241, for assessment of competence to stand trial. Mr. Sanchez-Hurtado was examined by Mark A. Kalish, M.D., on 06/15/99 at the Metropolitan Correctional Center in San Diego. Dr. Kalish opined that Mr. Sanchez-Hurtado was not competent to stand trial due to active psychosis. Dr. Kalish noted messianic delusions, loose associations, auditory hallucinations (hearing voices) and ideas of reference (believing that he received special messages from radio and/or television). The diagnosis given to Mr. Sanchez-Hurtado by Dr. Kalish was Schizophrenia. Mr. Sanchez-Hurtado provided the following explanation of the above events. In 1997, he was watching television and a message appeared on the screen which said, "You are undercover in the game. Salute the flag." He later saluted an American flag and believed that he then became a U.S. citizen. He interpreted this message to mean that he was a confidential informant for the CIA. He accomplished this by projecting his thoughts into the minds of others who desired the information that he had. He noted that he would hear a buzzing sound in his ears which indicated to him that his mind was being surveilled. He stated that he was under satellite surveillance. He voiced his belief that he is a U.S. citizen, because of his status as a CIA informant and because of his past history of working "for the Federal Government" on the U.S.S. Ambassador. He also noted that he had a Social Security Card and a driver's license issued in the United States as further evidence that he is a U.S. citizen. He stated that the government is keeping his status as a U.S. citizen "top secret." Mr. Sanchez-Hurtado further stated that he was sent by God to judge mankind. He offered the facts that his first name is "Jesus" and that he was born on December 25th as evidence for this claim. He stated that God has no boundaries and therefore the Government cannot charge him with entering the United States illegally. He stated that the government knows that he is the son of God and is persecuting him and keeping his identity secret through incarceration.

COURSE IN INSTITUTION: Mr. Sanchez-Hurtado was admitted to the Admission/Seclusion Unit on 08/10/99. He underwent physical examination and laboratory testing on 08/10/99. He reported his past medical history as unremarkable. He was not taking medications. He had no known drug allergies. His height was measured at 5'11", oral temperature at 97.1 degrees Fahrenheit, pulse at 78 beats per minute, respirations at 20 per minute and blood pressure at 120/84. The results of the multisystem physical examination revealed no acute abnormalities.

Laboratory tests consisted of a complete blood count with differential, urinalysis, VDRL serology for syphilis screening, HIV-1 antibody screen, serum chemistries, and thyroid function tests. The results of all of these tests were within normal limits. On 08/12/99 a Mantoux Tuberculin Screening Test was administered and interpreted on 08/15/99 as negative with zero millimeters of tissue induration 48 hours later.

At the time of the initial mental status examination Mr. Sanchez-Hurtado was attired in an institution issued orange jumpsuit. He was mildly disheveled. His hygiene was adequate. He described his mood as "very, very good." He exhibited full range of affect, but had a mildly expansive affect for most of the interview. He reported auditory hallucinations, "the voice of God" and a "whispering noise" that indicated to him that his mind was being actively surveilled by the CIA. He expressed delusional beliefs, i.e. stated that "I am the Holy Spirit." He offered evidence of this that amounted to a delusional system in which he believed himself to be Jesus, and in which the past three years were the Year of the Father, of the Son, and of the Spirit. He stated that God would appear in the year 2000. This information was revealed to him "in a flash of light" in 1994 After seeing the light, he began to "carry the Holy Spirit." He also expressed other delusional beliefs, such as the belief that his daughter's organs had been stolen by physicians perforating a kidney transplant in 1991. He did not state these beliefs in an organized way but was digressive and disorganized in his thought processes. There was no evident response to internal stimuli. He was alert and oriented in four spheres. Mr. Sanchez-Hurtado was initially admitted to the Admission/Seclusion Unit on 08/10/99. He remained there for one day only, and was then released to the open compound. He functioned adequately on the open compound, spending much of his time alone, seated in the dayroom watching the activity of staff and other inmates. He attended Catholic mass several times per week. He was pleasant and amenable to staff direction. Throughout the duration of his stay at FCI Butner, Mr. Sanchez-Hurtado continued to exhibit disorganized thought processes, delusional beliefs, and auditory hallucinations much as he did on admission. He persisted in his belief that he is "The Son of God," that he is an informant for the CIA, and that his daughter's organs had been taken from her. These beliefs were impervious to staff's attempts to point out their irrational basis to Mr. Sanchez-Hurtado.

In terms of his competency to stand trial, Mr. Sanchez-Hurtado was able to understand the basic procedures and personnel involved in hearing a case in the courtroom. He persisted in his beliefs that the United States government was aware that he was actually a citizen because he was a confidential informant of the CIA. and that the United States Government further knew he was Jesus Christ and therefore "has no boundaries" Additionally, he stated that he believed he had been illegally deported in the past and declared his intention to raise this as an issue in Court in his own defense. The Treatment Team felt that his beliefs would interfere in a significant way with his ability to work with an attorney and prevented his rational comprehension of the nature of the charges against him. These beliefs represented fixed delusions that would persist unless he were treated with antipsychotic medication. These issues were discussed with Mr. Sanchez-Hurtado at length. A trial of antipsychotic medications was offered to him. He did not agree that his auditory hallucinations and expressed delusional thoughts represented psychosis. He refused a trial of medications. stating that he did not believe he had a mental illness.

An Involuntary Medication Hearing was held on 09/07/99. The Hearing Officer agreed that Mr. Sanchez-Hurtado was psychotic and that he was not competent to stand trial in his current mental state. Mr. Sanchez-Hurtado did not agree with the findings of the Hearing Officer and appealed the decision of the Involuntary Medication Hearing to the Warden. The Warden denied his appeal on 09/14/99. Currently in the Federal legal system there is debate as to whether a defendant can be administered forced medications in order to restore competency alone. The decision in the case United States v. Brandon in the Sixth District concluded that forced medications maybe administered in cases of defendants who were dangerous to themselves or others, and not solely to restore competency. Letters outlining these issues were provided to the defense and the prosecution teams involved in Mr. Sanchez-Hurtado's case so that all parties could be informed as to the medical reasoning and the due process procedures involved in the decision to use forced medications in treating Mr. Sanchez-Hurtado. The decision to begin treatment was deferred until these issues were clarified for all parties involved in the action against Mr. Sanchez-Hurtado. These issues had not been resolved at the time of the date on which Judge Porter had requested a status report, 10/26/99, because all parties had not responded to the letters as above. Therefore, to date, Mr. Sanchez-Hurtado has not received treatment with antipsychotic medications.

PSYCHOLOGICAL TESTING: Mr. Sanchez-Hurtado manifested both objective and subjective evidence of ongoing psychosis during his stay at FCI Butner. Given the limited value of psychological testing in the context of psychosis and the fact that there appeared to be sufficient evidence of his psychosis any further data that could be provided with testing, the Treatment Team elected to defer psychological testing to a later date. IMPRESSIONS: According to the criteria in the Diagnostic and Statistical Manual of the Mental Disorders. Fourth Edition. Mr. Sanchez-Hurato's diagnoses are considered to be the following:

Axis I Schizophrenia, Paranoid Subtype, 295.30 (Primary Diagnosis)

Axis II No Diagnosis V7I.09

Axis III Tinia Pedis, resolved

The essential features of Schizophrenia are two or more psychotic symptoms present for a significant portion of time during a one month period (or less if successfully treated). Psychotic symptoms may include disordered thoughts, behavior, and emotions. In addition to psychotic symptoms, one or more major areas of functioning such as work, interpersonal relations, or self-care are usually markedly below the level achieved prior to the onset of the illness. Continuous signs of the disturbance must persist (or at least six months. Other major psychiatric illnesses have been ruled out. and the disturbance is not due to the direct physiological effects of a substance or a general medical condition. Paranoid Type is assigned whenever there is a preoccupation with delusional beliefs or there are auditory hallucinations as a prominent feature of the illness. According to Mr. Sanchez-Hurtado's mother, he has had episodic auditory hallucinations since he was in his twenties. Since his admission to FCI Butner, he has endorsed both auditory hallucinations and delusional beliefs. These delusional beliefs were also noted to be present by his attorney, who met with him in June of 1999. Mr. Sanchez-Hurtado's response to his unusual perceptual experiences has been to develop an elaborate system of beliefs that incorporates these experiences, rather than to question their basis in reality. Since his arrival at FCI Butner, he has exhibited disordered emotions in his inappropriate mood given his situation ("very, very good"). He has exhibited disordered behavior in his lack of motivation (or avolition). His time is largely spent seated in the dayroom of his housing unit, inactively. His past work history is remarkable for short stints at a number of different jobs. Since 1993, he has been unable to keep a job at all. According to him and to collateral sources, he has not suffered with a disturbance in mood, such as depression or mania. Although he has a history of extensive alcohol and drug use, these symptoms have persisted when he has abstained from their use, for example, while incarcerated. Due to these facts, Mr. Sanchez-Hurtado is diagnosed with Schizophrenia, Paranoid Type. The usual treatment for symptoms of Schizophrenia such as delusions and/or hallucinations is antipsychotic medications. The reasons for not treating Mr. Sanchez-Hurtado are outlined above. Due to the need for resolution of the aforementioned legal issues prior to treating him, a delay occurred which effectively prevented Mr. Sanchez-Hurtado from receiving treatment while at FCI Butner. The Treatment Team continues to believe that Mr. Sanchez-Hurtado's psychosis would interfere in a significant way with his ability to work with an attorney and would prevent his rational comprehension of the nature of the charges against him. We do believe that with medication his treatment could be restored. Therefore, the Treatment Team at FCI Butner respectfully requests that the Court grant an additional time period in which to treat Mr. Sanchez-Hurtado pursuant to 18 U.S.C. 4241(d).

______________________ _____________________ Moira Artigues, M.D. Supervised by: Bruce R. Berger, M.D. Staff Psychiatrist Staff Psychiatrist Mental Health Division FCI Butner, North Carolina

______________________ Angela Walden, Ph. D. Staff Psychologist