GUY NEIGHBORS Appeals Brief

8/7/2019 GUY NEIGHBORS Appeals Brief

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NOS. 10-3202, 10-3203 and 10-3204

IN THE UNITED STATES COURT OF APPEALSFOR THE TENTH CIRCUIT

--------------------------------------------------------x

UNITED STATES OF AMERICA, :

Plaintiff-Appellee, :

- v. - :

GUY NEIGHBORS, :

Defendant-Appellant. :

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O n A p p e a l f r o m t h e U n i t e d S t a t e s D i s t r i c t C o u r tfor the District of Kansas

The Honorable Carlos Murgia, District JudgeD.C. Nos. 07-CR-20073-CM, 07-CR-20124-CM

and 08-CR-20105-CM

M R . N E IG H B O R S O P E N IN G B R IE FRespectfully submitted,RAYMOND P. MOOREFederal Public Defender

HOWARD A. PINCUSAssistant Federal Public Defender633 17th Street, Suite 1000

Denver, Colorado 80202(303) 294-7002

ORAL ARGUMENT IS REQUESTED

SCANNED PDF FORMAT ATTACHMENTS ARE INCLUDEDWITH DIGITAL SUBMISSION SENT VIA EMAIL

February 2011

Appellate Case: 10-3204 Document: 01018588207 Date Filed: 02/18/2011 Page: 1


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TABLE OF CONTENTSPage

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

PRIOR OR RELATED APPEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE ISSUE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATEMENT OF FACTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

The initial hearing following the Lucking report. . . . . . . . . . . . . . . . . . . . . . 9

The defense moves to preclude involuntary medication as notpermissible under Sell. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

The request that Mr. Neighbors be allowed time to take medicationvoluntarily . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

The second hearing: initially premised on the belief that Mr.Neighbors will voluntarily take the drugs. . . . . . . . . . . . . . . . . . . . . . . . . . 14

Mr. Neighbors makes clear that he had not, in fact, agreed to take theantipsychotic drugs unless he were ordered to do so. . . . . . . . . . . . . . . . . . 16

The court, without further evidence or findings, orders Mr.Neighbors to take the antipsychotic drugs voluntarily, on pain of

contempt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Mr. Neighbors asks the court to rule on the issue of involuntarymedication and the court refuses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

The courts written order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20



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SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

ARGUMENT

BECAUSE THE DISTRICT COURT ENTERED ITSCONTEMPT-BASED ORDER THAT MR. NEIGHBORS TAKEANTIPSYCHOTIC DRUGS WITHOUT MAKING THEFINDINGS NEEDED FOR INVOLUNTARY MEDICATION,ITS ORDER MUST BE VACATED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

A. As this court has held, a contempt-based order thata defendant take antipsychotic drugs - like the onethe district court entered here - is an order for

involuntary medication that must be justified underSell. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

B. Because the district court did not address any of theSell factors, its order must be vacated. . . . . . . . . . . . . . . . 28

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

STATEMENT AS TO ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 36

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

CERTIFICATE OF DIGITAL SUBMISSION.. . . . . . . . . . . . . . . . . . . . . . . . . . 38

CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

ATTACHMENTS

District courts written order of August 3, 2010(Vol. 2 at 58-60). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

District courts oral ruling from July 28, 2010 hearing(Vol. 3 at 70-72). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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TABLE OF AUTHORITIES

PAGECASES

Drope v. Missouri, 420 U.S. 162 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Foster v. Ward, 182 F.3d 1177 (10th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . 25

Pate v. Robinson, 383 U.S. 375 (1966). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Riggins v. Nevada, 504 U.S. 127 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Sell v. United States, 539 U.S. 166 (2003).. . . . . . . . . . . . . . . . . . . . . . . . . passim

United States v. Bradley, 417 F.3d 1107 (10th Cir. 2005). . . . . . . . . . . . passim

Washington v. Harper, 494 U.S. 210 (1990). . . . . . . . . . . . . . . . . . . . . . . . . 8, 25

STATUTES

18 U.S.C. 371. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

18 U.S.C. 922(g)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

18 U.S.CC. 924(a)(2).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

18 U.S.C. 1343. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

18 U.S.C. 1512(c).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

18 U.S.C. 1956(a)(1)(A)(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

18 U.S.C. 1956(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

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18 U.S.C. 3231. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

21 U.S.C. 841(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

21 U.S.C. 841(b)(1)(D). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5

21 U.S.C. 846. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

OTHER

Fed. R. App. P. 4(b)(1)(A)(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Fed. R. App. P. 4(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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PRIOR OR RELATED APPEALS

Carrie Neighbors - who is Guy Neighbors wife and codefendant in

the three underlying district-court cases - has filed numerous appeals in

this court. She filed interlocutory appeals, which were case numbers 10-

3813, 10-3185, 10-3186, 10-3187, 10-3188 and 10-3189, and all of which have

been dismissed. In case number 10-3251, this court dismissed as

unnecessary Carrie Neighbors request for permission to file a second or

successive motion under 28 U.S.C. 2255. Her direct appeal from her

conviction and sentence are the subject of the consolidated appeals that are

pending in numbers 10-3242 and 11-3037.

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JURISDICTION

The United States District Court for the Kansas had jurisdiction over

the three criminal actions that underlie these consolidated appeals

pursuant to 18 U.S.C. 3231. The district court held Mr. Neighbors to be

incompetent to stand trial in any of the cases. See Vol. 1 at 20 (docket entry

describing order). On August 3, 2010, memorializing a directive1

announced at a July 28 hearing, the court ordered Mr. Neighbors to consult

with his attorney and doctors at a medical facility about the voluntary

administration of antipsychotic drugs. Vol. 2 at 59. The order stated that if

Mr. Neighbors did not voluntarily submit to such a drug regimen, he

would be found in contempt of court. Id.

This order, which uses the coercive threat of contempt, is one for the

involuntary medication of drugs. United States v. Bradley, 417 F.3d 1107,

1113 & n.11 (10th Cir. 2005). It is the permissible subject of an interlocutory

The pleadings relevant to the issue in these appeals were captioned1

for all three district-court cases. Likewise, the hearings that bear on theappellate issue covered all of the district-court cases. For simplicity,citations will be to the record on appeal in this courts case number 10-3202, unless otherwise indicated. Citations will be to the volume and tothe number in the lower, right-hand side of each page.



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appeal under the collateral-order doctrine. Sell v. United States, 539 U.S.

166, 175-78 (2003); Bradley, 417 F.3d at 1109 & n.1.

Mr. Neighbors filed, pro se, a pleading that contained in the caption

the docket number for each of the three cases, and which was titled, Writ

of Habeas Corpus, Injunctive Relief, and Stay of Execution of the Order

Given on 7/28/2010, by the Honorable Carlos Murgia. Vol. 2 at 61. This

court has interpreted this pleading as being a notice of appeal in each case.

Although filed in advance of the entry of the written order regarding the

July 28 hearing, the notices are by rule treated as filed on the day of, and

after, the entry of the order. Fed. R. App. P. 4(b)(2). The notices are

therefore timely filed, see Fed. R. App. P. 4(b)(1)(A)(i) (fourteen days to

appeal from order), and, as Sell and Bradly hold, this court has jurisdiction

over the appeals.

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STATEMENT OF THE ISSUE

The district court found Guy Neighbors to be incompetent. It later

entered an order that he voluntarily take medication that a Bureau of

Prison doctor asserted could return him to competence. If Mr. Neighbors

did not do so, the order provided, he would be held in contempt of court.

This court has held such a contempt-backed order to be for involuntary

medication and an involuntary-medication order must satisfy the four-

factor test of Sell v. United States, 539 U.S. 166 (2003). The district court,

however, did not perform the Sell analysis. Was the entry of the order

error?

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STATEMENT OF THE CASE

Guy Neighbors was indicted in three separate cases in the United

States District Court for the District of Kansas. The district court case

numbers are 07-cr-20124-CM, 08-cr-20105-CM, and 07-cr-20073-CM. These

cases are, respectively, associated with appeals number 10-3202, 10-3203

and 10-3204 in this court. This court has consolidated the three appeals.

In case number 07-cr-20124-CM in the district court, Mr. Neighbors

was accused of conspiring to commit wire fraud, in violation of 18 U.S.C.

371; fourteen substantive counts of wire fraud, in violation of 18 U.S.C.

1343; and three counts of money laundering, in violation of 18 U.S.C.

1956(a)(1)(A)(i) and (2). See Supp. Vol. 1 (10-3202) at 1-42. The

indictment also contained related forfeiture counts. Id. at 42-43.

In district-court case number 08-cr-20105-CM, the single charge was

that Mr. Neighbors obstructed justice, an offense under 18 U.S.C. 1512(c).

See Supp. Vol. 1 (10-3203) at 16. In the third district-court case, number 07-

cr-20073-CM, Mr. Neighbors was charged with conspiring to manufacture

an unspecified amount of marijuana, contrary to 21 U.S.C. 846, two

counts of manufacturing marijuana, contrary to 21 U.S.C. 841(a)(1) and

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(b)(1)(D), and possessing firearms as a user of a controlled sentence, see 18

U.S.C. 922(g)(3) and 924(a)(2). There was, as well, a forfeiture allegation

involving the guns. See Supp. Vol. 1 (10-3204) at 19-22.

For appellate purposes, the relevant events in the underlying cases

are the same. In an order that covered all three cases, the district court

directed that Mr. Neighbors be evaluated to determine whether he was

competent to stand trial. See Vol. 1 at 19 (docket entry 219). After

receiving a report and holding a hearing, the court entered an order

covering the three cases that found Mr. Neighbors not competent to stand

trial. Vol. 1 at 55. The order directed that he be hospitalized to determine

whether there was a substantial probability that he would attain

competency in the foreseeable future. Id.; see also generally Vol. 3 at 7-8

(describing orders and hearings).

On receiving the evaluation, the court held the joint proceedings in

the three cases that give rise to this appeal. The evaluation asserted that

the administration of antipsychotic drugs were sufficiently likely to restore

Mr. Neighbors to competence and urged their involuntary administration.

June 14, 2010 Report of Drs. Robert Lucking and Angela Weaver (Lucking

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Report) at 18-29. The government sought such an order pursuant to Sell

v. United States, 539 U.S. 116 (2003). See Vol. 3 at 9.2

Defense counsel eventually filed a motion to preclude involuntary

administration of antipsychotic drugs. The fifteen-page motion argued

that involuntary administration could not be justified under Sell. See Vol.

2 at 22-37. The government, in reply, maintained that the Sell factors did

warrant such a procedure. Id. at 38-52.

Shortly before the hearing on the matter, defense counsel filed a

motion seeking that Mr. Neighbors be given the opportunity to decide

whether to voluntarily take the drugs. Id. at 54-57. The government

concurred in the request. Id. at 54, 56.

At the ensuing hearing, the courts initial assumption was that Mr.

Neighbors was willing to take the medication. Vol. 3 at 54-55, 71. Mr.

Neighbors later made clear that he was not willing to take the drugs absent

a court order that he do so. Id. at 66-67.

The Lucking Report was designated for inclusion in the record on2

appeal in each of the three cases, but does not appear to have beentransmitted to this court. By separate, unopposed motion, counsel will bemoving to supplement the record on appeal with this report.

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Ultimately, the district court entered an order for Mr. Neighbors to

consult with his attorney and the doctors about taking the medication

voluntarily. Vol. 2 at 59. The order provides that if Mr. Neighbors does

not take the drugs voluntarily, he will be held in contempt. Id. The order

did not make any determinations under Sell, deeming it unnecessary at

that time to consider issues of involuntary medication. Id.

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STATEMENT OF FACTS

After the district court found Guy Neighbors incompetent to stand

trial, it ordered that he be evaluated to see whether he could be restored to

competency. Vol. 1 at 55-56. The ensuing report, of which Bureau of

Prisons psychiatrist Dr. Robert Lucking was the primary evaluator, stated

that Mr. Neighbors suffered from a delusional disorder. Lucking Report at

14. The delusions did not prevent Mr. Neighbors from appreciating the

nature of the proceedings and following what occurred in court. Id. at 18.

But they did render him unable properly to assist in his defense. Id.

Stating that Mr. Neighbors was unwilling to take recommended

antipsychotic drugs, id., the report recommended that he be involuntarily

medicated. The report acknowledged that Mr. Neighbors was not a danger

to himself or others. Accordingly, he could not be involuntary medicated

under Washington v. Harper, 494 U.S. 210 (1990). Lucking Report at 18.

Instead, the report urged that involuntary medication was warranted as a

means of restoring Mr. Neighbors to competency under Sell v. United

States, 539 U.S. 116 (2003). Lucking Report at 18-19.

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Dr. Lucking admitted that [p]ast opinion was pessimistic about

the efficacy of treating delusional disorders with antipsychotic medication,

as he recommended. Id. at 27. Indeed, the prevailing opinion was that

only about ten percent of those with delusion disorder would respond to

such drug treatment. Id. Still, he claimed, the few recent studies that he

discussed in the report indicate[] that the disorder can be treated

effectively. Id.

The initial hearing following the Lucking report

The district court soon held a hearing. Agreeing with the BOP

doctor, the government was of the view that an involuntary-medication

order should issue. Vol. 3 at 9. Defense counsel wanted time to review the

report with Mr. Neighbors. She stated that there are procedures that are

spelled out in Sell and declared that she would like an opportunity to

brief that. Id. at 10. She also wanted the chance to discuss with Mr.

Neighbors whether he might agree to voluntary take medication. Id. at 10,

17.

The court agreed to the request for additional time. It stressed that

involuntary medication was a very serious matter for the court. Id. at 19.

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Were Mr. Neighbors to agree to take this medication, the court noted, it

may make the whole matter moot. Id. at 16. In that event, the court told

Mr. Neighbors, we wont have this hearing about you being involuntarily

medicated. Id.

The defense moves to preclude involuntary medicationas not permissible under Sell

Defense counsel soon filed a motion to preclude involuntary

medication. The fifteen-page motion laid out how, under the four factors

in Sell, involuntary medication was not justified here.

The motion first urged the governments interest in trying Mr.

Neighbors, the first of the Sell factors, was diminished here. The motion

argued that even were Mr. Neighbors to be convicted in all three cases, he

might well receive a sentence of from one and one-half to three years.

Vol.2 at 28. Mr. Neighbors had at that point already been detained for

fourteen months and restoration of competency, if it were even possible,

would likely take many more months. Id. Given the length of detention

before any trial could take place and its relation to his likely sentence, there

were, said the motion, special circumstances that under Sell weakened

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the governments interest in prosecution. Id. at 25, 28. The motion insisted

that there thus was not a government interest that was important enough

to justify involuntary medication. Id. at 26.

The motion also stressed that the second Sell factor - which calls for

a government showing that involuntary medication is substantially likely

to restore the defendant to competency - was not established. The motion

pointed out flaws in the studies that, according to the report, justified

repudiating prior thinking that drugs can affect delusional disorders in

only about one in ten cases. See id. at 30-33. For example, one of the

studies dealt with schizophrenics, and Mr. Neighbors does not have

schizophrenia. Id. at 30. Although antipsychotic drugs may succeed in

treating schizophrenia, the motion continued, several cases had found that

they rarely are successful in treating delusional disorders. Id. at 30-31

(citing cases). The motion quoted one of the cited cases as reiting the

agreement of defense and government experts that the common wisdom

in the psychiatric community is that delusional disorders rarely respond to

medication. Id. at 31 (quotation omitted).

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Likewise, the motion observed that courts had recognized that two of

the other studies had limitations in data or were not of sufficient probative

force. Id. at 31-32, 33. And, the motion maintained, Mr. Neighbors had

several characteristics that made him especially unlikely to be restored to

competence, and that one characteristic also undermined the predictive

value of a fourth study. Id. at 33-34.

The motion then discussed how one of the proposed medications had

side effects that could interfere with Mr. Neighbors right to a fair trial. Id.

at 34-35. As to this medication, the motion also argued, the government

could not show -- by the clear and convincing proof by which it had to bear

its burden of proving this fourth of the Sell factors -- that the medications

use was medically appropriate. Id. at 35-36.

In response, the government took issue with the likely sentence and

the weightiness of the government interest here. Id. at 40-43. On the

remaining, factual prongs of the Sell test, the government relied almost

exclusively on the report, which it quoted at length. Id. at 43-52. The

government recognized that at least one court had criticized one of the

studies in Dr. Luckings report, but claimed that this study is supported

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by the findings in a large number of studies also cited in the Evaluation

Report. Id. at 45. The government also disputed the suggestion that Mr.

Neighbors delusions were not of recent vintage, which the defense had

used to attack another study on its own terms. Id.

The request that Mr. Neighbors be allowed time totake medication voluntarily

Two days before the next hearing, defense counsel filed a motion that

sought time to allow Mr. Neighbors the chance voluntarily to comply with

a treatment program that would include counseling and possibly

medication. Id. at 54. Counsel pledged her best efforts to persuade Mr.

Neighbors to participate in such a program::

Counsel intends to do all she can to persuade Mr.Neighbors to participate voluntarily in a treatment regimenconsisting of counseling and, if deemed appropriate by thedoctors, medication. Counsel strongly believes that this routeis preferable to a treatment regimen involving involuntarymedication.

Id. at 56. The government concurred in this approach. Id. at 54, 56.

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The second hearing: initially premised on the beliefthat Mr. Neighbors will voluntarily take the drugs

At the hearing, the prosecutor noted that if Mr. Neighbors were

agreeable to voluntary medication, the court could just enter an orderfor

that and Dr. Lucking could outline what it entailed. Vol. 3 at 35. If not, the

prosecutor said, we can go forward with the Sell hearing. Id.

Defense counsel replied that Mr. Neighbors did not want to just

volunteer absent court order, but would comply with an order directing

him to comply with a voluntary program of medication, that is, taking

medication orally. Id. Counsel soon explained that the order should be

one that gave Mr. Neighbors a period of time to comply with the

voluntary program. Id. at 36. Mr. Neighbors, she said, had just told her

he would comply with such an order. Id.

The government was evidently satisfied that this obviated the need

for a Sell hearing. The prosecutor stated that if the court were inclined to

enter such an order, she would, as she had indicated, simply have Dr.

Lucking explain what a voluntary regimen entailed. Id. at 36-37. With the

courts assent, id. at 37, that is how the testimony was presented.

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After the testimony concluded, the court addressed Mr. Neighbors.

In doing so, the court noted that it had proceeded as it did based on its

understanding that Mr. Neighbors would voluntarily take the drugs:

Now, its my understanding that youve said that youll do thisof your own free will, of your own volition - I dont know iffree will is the right word, but your own choice at this time.

Id. at 55. That is, the court had understood that Mr. Neighbors had sai[d]

that youre going to do this. Id.

On this premise, the district court announced that it was ordering

Mr. Neighbors returned to the Bureau of Prisons facility where he had just

been evaluated, in order for [him] to voluntarily comply with what the

suggested medical treatment is for [his] condition. Id. Such voluntary

medication, the court observed, was preferable to taking the very, very

serious step or ordering involuntary medication. Id.

The court then outlined what would happen if Mr. Neighbors for

some reason . . . were to change [his] mind. Id. In that event, the court

would permit a motion once again to be brought that would possibly

subject [Mr. Neighbors] to involuntary medication. Id. at 56. Consistent

with this, the court denied the motion to preclude involuntary medication

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as moot, without prejudice to renewal, based on what has been

represented to the court. Id. at 56.

Mr. Neighbors makes clear that he had not, in fact, agreed to take theantipsychotic drugs unless he were ordered to do so

The court then heard directly from Mr. Neighbors on a number of

matters, including his right to appeal such an order. See id. at 57-61. On

the possibility of an appeal, the court stated that had it ordered him to be

involuntarily medicated, an interlocutory appeal might lie. Id. at 63. But,

the court observed, [t]hats not what I did. Id. Rather, the district court

described its action as granting the motion for voluntary medication,

which was your request. Id.

When the court finished speaking, Mr. Neighbors declared that he

understood this a little better now. Id. at 65. And, he made clear to the

court that he would only take medication if he were ordered to do so. As

the court recognized, such an order would be for involuntary medication.

Their colloquy reads as follows:

THE COURT: Right now, the order in effect is that youvetold the court that youre voluntarily going to take themedication.

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THE DEFENDANT: That was my understanding thatthe court - if the court ordered me to, that I would.

THE COURT: With - well, thats involuntary

medication. And what I understood is that you on your own,based on the report and the recommendation from thephysician, he is recommending that you take this medication.Now, you have -

THE DEFENDANT: I misunderstood my attorney.

THE COURT: - the options you have, and the one Ibelieve that youve presented to the court today was with that

in mind, that youve now agreed to voluntarily take thatmedication.

THE DEFENDANT: If the court ordered me to.

THE COURT: Court wouldnt order you to voluntarilydo something. Voluntary by its description, its definition,means you on your own are deciding to do something.

Id. at 66.

Mr. Neighbors then informed the court that he had misunderstood

his attorney and apologized for wasting the courts time. Id. He had, he

said, assumed he was agreeing to take the medication after the court had

ordered me to do so. Id. at 67. His position evidently had been that were

the court to order his involuntary medication, he wanted to be able to

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ingest the drugs on his own, rather than to be strapped down and forcibly

injected. Id. at 65-66.

The court, in turn, said that if Mr. Neighbors were saying he was not

agreeing to take the medication of his own volition, it would have to have

the motion for involuntarily medication re-brought to the court. Id. That,

Mr. Neighbors agreed, was what needed to be done. I think thats what

we need to do, Your Honor. Im sorry for wasting the courts time. I

misunderstood. Id.

The court, without further evidence or findings, orders Mr.Neighbors to take the antipsychotic drugs voluntarily, on pain ofcontempt

The attorneys and the court then huddled at the bench. Defense

counsel described Mr. Neighbors as very combative today, or at least

disagreeing with suggested courses of action. Id. at 68. She asked

whether the court could enter an order that returned him to the Fedearl

Medical Center at Butner and gave directions to comply with the doctors

recommendation. Id. The prosecutor thought that would give Mr.

Neighbors the order hes looking for, and that the doctor would have to

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understand he may not involuntarily medicate [Mr. Neighbors] until

further order of the court. Id.

Defense counsel seemed to draw this same distinction. She stated

there should be an order directing Mr. Neighbors to comply except for

involuntary medication. Id.; see also id. at 69 (similar). Defense counsel

noted that were the court to enter an order with some directive sound to

it, she believe[d] Mr. Neighbors would follow it because [he] does

respect the tribunal. Id. The prosecutor concurred in such an approach

because it does not order [Mr. Neighbors] to be involuntarily medicated.

Id. at 70.

When proceedings resumed in open court, the court did not recount

what happened at the bench. Instead, it first reiterated that it had operated

from the premise that Mr. Neighbors had agreed to the proposed treatment

plan. Id. at 71. But, the court continued, Mr. Neighbors had later indicated

that he had misunderstood, and had sort of indicated that he did not

really want to take the drugs. Id. at 72. The court then announced the

order it would be entering in light of [Mr. Neighbors] present status as

not being competent to understand whats going on or being able to assist

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in [his] defense. Id. That order was that Mr. Neighbors voluntary comply

with Dr. Luckings treatment plan within at most ten days, or be held in

contempt. Id.

Mr. Neighbors asks the court to rule on the issue ofinvoluntary medication and the court refuses

When the court asked the attorneys and Mr. Neighbors whether

there was anything further, Mr. Neighbors requested that the court rule on

the involuntary-medication issue. Id. at 73. He explained that he did not

want to agree with involuntary medication and that he was very concerned

with his health. Id. He cited his arthritis and high blood pressure, and also

noted that the governments interest in prosecuting him was minimal. Id.

The court responded that it was not ordering involuntary medication. Id.

at 73-74.

The courts written order

The ensuing order comported with what the court outlined at the

hearing. It directed Mr. Neighbors to consult with counsel and the doctors

at the medical facility about the voluntary administration of antipsychotic

drugs. Vol. 2 at 59. The order stated that if Mr. Neighbors did not submit

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to this medication regimen voluntarily within ten (10) days of his arrival at

the designated medical facility, he would be held in civil contempt. Id.

The order stated that if that occurred, the court would, on further

motion, address the issue of involuntary administration of the medication

under Sell. Id. With no need to address the Sell factors if the Defendant

voluntarily complies with a medication regimen, the court denied the

motion to preclude involuntary medication as moot, without prejudice to

renewal. Id.

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SUMMARY OF ARGUMENT

Guy Neighbors has a significant, and personal, interest in his bodily

integrity. This constitutional interest is infringed by the involuntary

administration of antipsychotic drugs in an effort to restore him to

competency to stand trial. The district court could only enter an order to

involuntarily medicate Mr. Neighbors only on a government showing that

the demanding, four-part test of Sell v. United States, 539 U.S. 116 (2003),

was satisfied.

The district court entered just such an order here without going

through any of the Sell analysis. What the district court termed as an order

for voluntary medication was anything but that. The district court itself

had recognized that an orderto voluntarily take a drug is an involuntary-

medication order. As the court then stated, voluntary action requires

that it be of the defendants own will. Its ensuing order, however, invoked

the coercive power of the court. The order provided that if Mr. Neighbors

did not voluntarily take the recommended drugs, he would be held in

contempt.

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In United States v. Bradley, 417 F.3d 1107 (10h Cir. 2005), this court

held that such an order - indeed, the virtually identical order as here -is

an involuntary-medication order. That holding controls here.

There can be no claim that the district court made the findings

required by Sell to allow for the entry of such an order. Indeed, the district

court was explicit that it was not performing a Sell analysis. The order

stated that there was no need to address the Sell factors if Mr. Neighbors

voluntarily complies with a medication regimen. The court thus denied as

moot Mr. Neighbors motion to preclude involuntary medication and

deferred any such analysis until (if at all) a later date.

The district court seemed to think its contempt-based order was

outside the ambit of Sell. Bradley again is the answer to such a contention.

It subjected the contempt-based order there to the analysis of Sell.

Because the district court never performed the Sell analysis, or held

an appropriate Sell hearing, it committed legal error and its involuntary-

medication order cannot stand. This court should vacate the order and

remand this case to the district court.

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ARGUMENT

BECAUSE THE DISTRICT COURT ENTERED ITS CONTEMPT-BASEDORDER THAT MR. NEIGHBORS TAKE ANTIPSYCHOTIC DRUGS

WITHOUT MAKING THE FINDINGS NEEDED FOR INVOLUNTARYMEDICATION, ITS ORDER MUST BE VACATED.

Mr. Neighbors made clear at the hearing that he did not want to take

antipsychotic drugs. He would do so only on court order and, it appeared,

solely to avoid being restrained and having these powerful drugs injected

by force.

The district court recognized that ordering Mr. Neighbors to take the

drugs to restore him to competency was inconsistent with his voluntarily

doing so. But in the end, this is precisely what the court did. It ordered

Mr. Neighbors to consult with his lawyer and the doctors about taking the

drugs. And if after doing so Mr. Neighbors refused to take the drugs, he

would be held in contempt. That is, the court threatened Mr. Neighbors

with coercive action if he did not voluntarily take the drugs.

This order, which sought to overbear Mr. Neighbors will, was one

for involuntary medication. It infringed on Mr. Neighbors significant and

constitutionally protected interest in avoiding the unwanted

administration of anti-psychotic drugs. Sell v. United States, 539 U.S.

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166, 179 (2003) (quoting Washington v. Harper, 494 U.S. 210, 221 (1990)).

The order was, therefore, permissible only on a showing of an essential

or overriding state interest. Id. at 179-80 (quoting Riggins v. Nevada,

504 U.S. 127, 134 (1992)). Sell details four determinations that a district

court must make before ordering involuntary administration on a

restoration-to-competency theory. See id. at 180-83.

The district court did not require the government to justify the order

under Sell. Nor did the court make any of the four Sell determinations.

Indeed, the district court disclaimed a Sell analysis. The courts failure to

follow Sell is legal error that this court reviews de novo, cf. Foster v. Ward,

182 F.3d 1177, 1189 (10th Cir. 1999) (failure to conduct competency hearing,

as distinguished from findings actually made at a competency hearing,

reviewed de novo), and that calls for vacatur of the district courts order.

A. As this court has held, a contempt-based order that adefendant take antipsychotic drugs - like the one thedistrict court entered here - is an order for involuntarymedication that must be justified under Sell.

The district courts initial, common-sense belief was correct.

Coercing compliance is inconsistent with voluntary action. The courts

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ultimate order that Mr. Neighbors take antipsychotic drugs on pain of

contempt was, under Sell, one for the involuntary administration of drugs.

This court easily reached this conclusion in United States v. Bradley,

417 F.3d 1107 (10th Cir. 2005). Just like Mr. Neighbors, the defendant there

had testified that he would not voluntarily take the drugs that, it was

asserted, would return him to competence. The order there contained the

same contempt-backed directive as the one here. The district court ordered

Bradley to take the medication and provided that, if he refuse[d] to

comply, . . . he [would] be found in civil contempt. Id. at 1113 (quoting

order) (brackets added).

This court, in introducing the order it proceeded to quote, described

the order as one for the involuntary administration of medication. Id. at

1112. And in a footnote appended to the quoted order, this court explained

that it was the coercive nature of the contempt threat that made this so.

Drawing on Sell, this court first declared unequivocally that the order was

for involuntary medication, even though physical force was not involved:

The courts order is no less one for involuntarymedication of antipsychotic medication because its means ofenforcement is through the exercise of the contempt power ofthe court rather than by forcible medication. See Sell, 529 U.S.

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at 181 ([T]he court must consider less intrusive means foradministering the drugs, e.g., a court order to the defendantbacked by the contempt power, before considering moreintrusive methods.).

Bradley, 417 F.3d at 1113 n.11 (brackets by court in Bradley; parallel

citation omitted).

Elaborating on the point, and again relying on Sell, this court stressed

that it was the orders trumping of the defendants will that mattered:

The hallmark of an order for the involuntary administration ofmedication is that it breaches the defendants will. See [Sell,539 U.S.] at 171 (The staff sought permission to administer themedication against Sells will. That effort is the subject of thepresent proceedings.). A defendant who is unwilling tovoluntarily take medication, which fairly describes Bradley, isno less overcome by a threat to be found in contempt than he orshe is by being forcibly medicated.

Bradley, 417 F.3d at 1113 n.11 (parallel citation omitted).

To be sure, as the first passage from Bradley shows in quoting Sell, a

contempt-backed order was a procedure the Supreme Court noted as

meriting a trial courts consideration. Sell, 539 U.S. at 181. But the Court in

Sell did not describe this as a possible alternative to an involuntary-

medication order. When it obligated trial courts to consider such

alternatives, it described these as alternative treatments. Id. The Court

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thus had in mind such things as the nondrug therapies that were

mentioned in a parenthetical to an accompanying citation. See id. In

contrast, the Court in Sell said that a trial court should consider such

procedures as a contempt-backed order as less intrusive means for

administering the drugs. Id. That is, if an order for involuntary

medication must be entered, it should be carried out in the least

burdensome way possible.

This distinction is plain enough from Sell. But even were it not, it

would be of no moment here. The decision in Bradley establishes without

doubt that a contempt-based order like the one the district court directed at

Mr. Neighbors is one for involuntary medication and is subject to the

dictates of Sell. See Bradley, 417 F.3d at 1114-17 (assessing the contempt-

based order there for compliance with Sell).

B. Because the district court did not address any of the Sellfactors, its order must be vacated.

The hearing at which the district court announced its contempt-

backed order did not proceed in accordance with Sell. The initial belief

was that if given the chance to take antipsychotic drugs, Mr. Neighbors

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would do so. As the prosecutor observed, this obviated the need for a Sell

hearing. Dr. Luckings testimony was accordingly brief. It did not, for

example, touch on the efficacy issues that counsel had raised in seeking to

preclude involuntary medication. The most that the doctor said about the

oral drugs he proposed to give was that they might help in restoring Mr.

Neighbors to competence, Vol. 3 at 45, and would increase his chances of

becoming competent, id. at 46.

Sell requires much more. A trial court must find that administration

of the drugs is substantially likely to render the defendant competent to

stand trial. Sell, 539 U.S. at 181 (emphasis added). And this essential

finding must be supported by clear and convincing proof. See Bradley, 417

F.3d at 1113-14. Of course, that a drug might help Mr. Neighbors, or that

it would in some unspecified way increase his chance of returning to

competency, is vastly different from the drug being substantially likely to

render him competent. What Dr. Lucking said at the hearing could

describe drugs that offer only the slimmest odds of working. This is not

proof that the drugs Dr. Lucking sought to use met the Sell standard for

efficacy, much less clear and convincing proof of this.

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Likewise, the district court did not conclude, as Sell requires, that

there were important government interests here. Although ultimately a

legal issue, see Bradley, 417 F.3d at 1113, the facts of the individual case

bear on the question and [s]pecial circumstances may diminish the

interest in prosecution, Sell, 539 U.S. at 180. In her motion to preclude

involuntary medication, defense counsel made assertions about the likely

sentence that bore on this point and that she urged made the government

interest inadequate for involuntary medication. These fact-based points

went unaddressed at the hearing.

Not only was there not a hearing trained on the factual issues that are

necessary to a Sell analysis, but the district court made no findings or legal

determinations on the four Sell factors that must be satisfied to permit an

involuntary-medication order. See Sell, 539 U.S. at 180-83 (describing the

four findings and conclusions that a trial court must make). Indeed, the

district court was quite explicit that it had not conducted a Sell analysis.

In its order, the court stated there was no need to address the Sell

factors if Mr. Neighbors were to voluntarily comply with the drug

regimen. Vol. 2 at 51. Instead, the court wrote, it would consider

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involuntary administration of the medication under Sell if the order it

entered did not lead to Mr. Neighbors taking the drugs. That is, the court

would in that eventuality do what it had not done in entering the

contempt-backed order. But as the order was indeed one for involuntary

medication, what the district court disclaimed doing was what it was in

fact obligated to do.

The district court evidently thought its order was one for voluntary

medication, and so was outside the ambit of Sell. After it announced the

contempt-backed order, Mr. Neighbors asked it to address the issue of

involuntary medication. The court declined the request as unnecessary. It

declared that it had not entered an order for involuntary medication. Vol.

2 at 74. Likewise, the courts written order provided that, despite what Mr.

Neighbors said at the hearing, the court preferred to give him the chance to

voluntarily comply with a medication regimen. Id. at 50. The order also

recounted that Sell said a court must consider less intrusive means of

administering drugs intended to restore competency. Id.

But as explained in the preceding section, these beliefs are in error.

Bradley holds that the order here was one for involuntary medication and

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it must be found to be justified under Sell. By not holding an appropriate

hearing, and by not addressing the Sell factors, the district court committed

legal error. Its order cannot stand.

That defense counsel broached the notion that the court issue an

order with some directory language does not mean the courts error can be

disregarded as invited. For one, the district court had just moments before

declared that ordering Mr. Neighbors take the drugs would be inconsistent

with him deciding voluntarily to do so. Nothing defense counsel said at

sidebar provided a basis for the court to believe otherwise. There was thus

not the lulling of the court into making a legal error that is emblematic of

an invited error.

To boot, after the court announced its contempt-backed order, Mr.

Neighbors, who was unaware of what transpired at the bench, asked the

court to rule on the involuntary-medication issue, because I dont want to

agree to involuntary medication. Vol. 3 at 73. This aptly described the

nature of what the court did. Nevertheless, the court refused to make the

requested ruling that was needed to support its order.

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In any event, the order here is one that, regardless of attorney action,

cannot be imposed if a court does not find it legally justified. Mr.

Neighbors has a deeply personal interest in his own bodily integrity. What

this court has aptly termed the vital constitutional liberty interest in not

being forced to take antipsychotic drugs against his will, Bradley, 417 F.3d

at 1114, was Mr. Neighhbors alone to waive. Counsel could not do so.

By the same token, defense counsels statements about an order with

directory language, or anything else she said that suggested the ultimate

order might be outside of Sell, did not relieve the district court of its duty

to follow Sell. Sell outlines what a trial court must find, on restoration-to-

competence grounds, before issuing an order to override the will of one

who does not wish to take antipsychotic drugs. The vital liberty interest at

stake demands the same kind of court protection as does the right not to be

tried when incompetent. Just as due process calls for a court to inquire sua

sponte where there is good reason to believe a defendant may be

incompetent, see Drope v. Missouri, 420 U.S. 162, 173 (1975); Pate v.

Robinson, 383 U.S. 375, 385 (1966), so must a court follow Sell - as the

mandatory language of that case indicates - before allowing the

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involuntary administration of drugs to one who is incompetent, even if

counsel erroneously believes it not to be implicated. The district court did

not do so here.

* * *

The district court committed legal error in not deciding whether its

involuntary-medication order was warranted under Sell. Accordingly, this

court should vacate the order and remand for further proceedings.3

The contempt-backed order evidently did not coerce Mr. Neighbors3

into taking the antipsychotic drugs. Counsel is aware that Dr. Luckingsubmitted a status report to the district court on October 8, 2010, which isnot reflected on the docket sheets. The report states that Dr. Lucking askedMr. Neighbors on three occasions whether he would voluntarily take thedrugs, and Mr. Neighbors would not do so.

The district court has not yet held Mr. Neighbors in contempt. Nor,as an examination of the district court docket sheets reveals, has that courttaken any other action of note in the underlying cases since the appealswere docketed. The order at issue here remains extant and subject to beingenforced against Mr. Neighbors at any time. That is, contempt remainsavailable as a means of inducing obedience to the Sell-noncompliant order.

It appears that matters are, as a practical matter, in suspense in the

district court awaiting this courts decision. This is so even though thedistrict court declared the appeals to be frivolous shortly after they werefiled and stating it would not, as it would ordinarily do, stay its hand whilean appeal was pending. See Vol. 1 at 60-61. The inactivity in the districtcourt may reflect the fact that two reasons the that court gave for its

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CONCLUSION

This court should vacate the involuntary-medication and remand this

matter to the district court.

Respectfully submitted,

RAYMOND P. MOOREFederal Public Defender

By: /S/ Howard A. PincusHOWARD A. PINCUSAssistant Federal Public Defender (Digital)

633 17th Street, Suite 1000Denver, Colorado 80202(303) 294-7002

Email Address: [email protected][email protected]

frivolousness determination - both of which are jurisdictional-based -have not led to dismissal here. One reason was that the notices of appealwere filed pro se. The other was that the order at issue is not subject to aninterlocutory appeal. Although the appellee at first sought dismissal of the

appeals on the latter ground, see docket sheet in 10-3202, entry of9/3/2010, it then moved to withdraw or strike the motion, see id., entry of9/16/2010. This court has referred the motions to the merits panel andordered these consolidated appeals placed on the first available argumentcalendar after completion of briefing. Id., entry of 9/8/2010.

35

mailto:[email protected]:[email protected]


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STATEMENT AS TO ORAL ARGUMENT

This court has ordered that this case be placed on the next available

oral-argument calendar upon the completion of briefing. Although

counsel believes that the order here is plainly contrary to Sell and Bradley,

he concurs that oral argument may materially assist the court in its

decisional process.

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CERTIFICATE OF COMPLIANCE

Please complete one of the sections:

Section 1. Word count

As required by Fed. R. App. P. 32(a)(7)(C), I certify that this brief is

proportionally spaced and contains 6,598 words.

Complete one of the following:

: I relied on my word processor to obtain the count and it is Corel

WordPerfectX3:

9 I counted five characters per word, counting all characters including

citations and numerals.

Section 2. Line count

My brief was prepared in a monospaced typeface and contains _____ lines

of text.

I certify that the information on this form is true and correct to the best of

my knowledge and belief formed after a reasonable inquiry.

By: /S/ Howard A. PincusHOWARD A. PINCUSAssistant Federal Public Defender

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CERTIFICATE OF DIGITAL SUBMISSION

I hereby certify that with respect to the foregoing

MR. NEIGHBROS OPENING BRIEF:

(1) all required privacy redactions have been made and, with theexception of those redactions, every document submitted in Digital Formor scanned PDF format is an exact copy of the written document filed withthe Clerk, and;

(2) the digital submissions have been scanned for viruses with themost recent version of a commercial virus scanning program Symantec

AntiVirus Corporate Edition version 10.1.7.7000, Virus Definition FileDated: February 17, 2011 r19, and, according to the program, are free ofviruses.

/s/Howard A. PincusHOWARD A. PINCUSAssistant Federal Public Defender

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CERTIFICATE OF SERVICE

I hereby certify that on February 17, 2011, I electronically filed theforegoing MR. NEIGHBORS OPENING BRIEF using the CM/ECF

system, which will send notification of this filing to the following e-mailaddress:

Leon PattonAssistant United States [email protected]

/S/ Howard A. PincusHoward A. Pincus

mailto:[email protected]:[email protected]

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