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United States v. Ferretti

July 6, 2009


The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge


On February 15, 2008, defendant Diane Ferretti ("Ferretti") was arrested pursuant to a complaint alleging that on November 19, 2007, Ferretti threatened to harm Hillary Clinton*fn1 in violation of 18 U.S.C. § 879. Compl. (Docket No. 1); Docket entry dated 2/15/08. On February 20, 2008, Ferretti's counsel moved for a competency examination, the motion was granted, and on June 16, 2008, Ferretti was found incompetent to stand trial by reason of mental disease or defect. Docket Nos. 3, 6, 10. In accordance with 18 U.S.C. § 4241(d)(1), a hearing was directed to be held within four months to determine whether a substantial probability existed that Ferretti would become competent to stand trial. Docket No. 10.

In anticipation of the rehearing, a report was submitted by a Federal Bureau of Prisons ("BOP") psychologist concluding that Ferretti continued to be incompetent to stand trial and would remain so absent the administration of medication which Ferretti was refusing. Ex. G-1*fn2 (Forensic Evaluation dated Dec. 20, 2008) at 6; Docket No. 22-4 (same) at 6. The United States then moved for an order authorizing the involuntary medication of Ferretti to restore her to competence and Ferretti opposed the motion. Docket Nos. 16, 22. An evidentiary hearing was held on June 17, 2009*fn3 at which testimony was presented by four witnesses.*fn4 For the reasons set forth herein, it is recommended that the government's motion for an order authorizing the involuntary medication of Ferretti be denied.

I. Background

Ferretti, now thirty-eight, has been observed, examined, evaluated, and treated at Carswell since her arrival there on August 27, 2008. Docket entry (Court only) dated 9/15/08. Ferretti is single and has no children. Ex. G-1 at 2. She completed high school and one semester of college and served in the Army for nine months. Id. She has a minimal work history and for the ten years prior to her arrest, had supported herself financially principally from an inheritance. Id.

There exists no dispute over Ferretti's present competence. Ferretti has continuously exhibited a rigid belief that she is being persecuted by the United States government, including filing the false charge in this case by the Secret Service. Ex. G-1 at 3-5. This belief primarily led to the diagnosis of Delusional Disorder, Persecutory Type.

Id. at 5. Ferretti also holds the belief that she is being persecuted by the government because of her intelligence and expansive knowledge of the United States military. Id. This led evaluators to add Grandiose Type to her diagnosis. Id.*fn5 Based on this diagnosis, evaluators have concluded that Ferretti "suffers from a severe mental disease which renders her unable to understand the nature and consequences of the proceedings against her and to assist properly in her defense...." Ex. G-1 at 6.*fn6

There exists substantial dispute over the appropriate treatment for restoring Ferretti to competence. Those at Carswell agree that anti-psychotic medication affords the best option for treatment. Ex. G-1 at 6. Ferretti, however, has refused all medication. Id. The Carswell doctors believe that verbal therapy is unavailable as an option because it has been tried to date without success. They advise that because of her delusion of persecution by the government, Ferretti harbors such strong suspicions of the motives of all the personnel at Carswell, all government employees, that no one at Carswell can establish the trusting relationship with Ferretti essential to verbal therapy. T. 14-15. According to Dr. Cloninger, Ferretti's retained expert psychiatrist, verbal therapy remains an option for treatment. However, given Ferretti's principal delusion of persecution by the government, the therapy must be provided by someone unassociated with the government to allow development of trust with Ferretti. T. 172-77.

II. Discussion

All persons possess a "liberty interest in avoiding the unwanted administration of anti-psychotic drugs under the Due Process Clause...." Washington v. Harper, 494 U.S. 210, 221-22 (1990). However, the Supreme Court has carved a narrow exception to this rule which allows an incompetent defendant [to] be involuntarily medicated for the sole purpose of rendering him [or her] competent to stand trial only if...: (1) there are important government interests in trying the individual; (2) the treatment will significantly further those interests; (3) the treatment is necessary to further those interests, considering any less intrusive alternatives; and (4) the treatment is medically appropriate.

United States v. Magassouba, 544 F.3d 387, 396 (2d Cir. 2008) (citing Sell v. United States, 539 U.S. 166, 180-82 (2003)). In analyzing these factors, the "relevant findings must be supported by clear and convincing evidence." United States v. Gomes, 387 F.3d 157, 160 (2d Cir. 2004). The first factor presents a question of law. Id. The remaining three present primarily questions of fact. Id.

1. Government Interests

Sell recognized that there exists "an important government interest in ensuring that individuals accused of serious crimes are brought to trial." United States v. Palmer, 507 F.3d 300, 303 (5th Cir. 2007) (citing Sell, 539 U.S. at 180). In assessing the first factor, a court "must consider the facts of the individual case in evaluating the Government's interest in prosecution." Sell, 539 U.S. at 180. Factors to be considered may include the statutory maximum sentence for the offense charges, indicating Congress' assessment of the seriousness of the charge, see United States v. Evans, 404 F.3d 227, 237 (4th Cir. 2005); Gomes, 387 F.3d at 160; the likelihood of extended civil commitment following criminal prosecution, see Gomes, 387 F.3d at 160 (citing Sell, 539 U.S. at 180); and the sentencing range under the Sentencing Guidelines in comparison to the length of time the defendant has been detained, see United States v. Hernandez-Vasquez, 513 F.3d 908, 919 (9th Cir. 2008) ("[T]he likely guideline range is the appropriate starting point for the analysis of a crime's seriousness.") (gathering cases and disagreeing with the Fourth Circuit's holding to the contrary in Evans, 404 F.3d at 237).

Ferretti is charged with a violation of 18 U.S.C. § 879. The maximum penalty upon conviction is five years imprisonment. 18 U.S.C. § 879(a). Threatening the life of federally protected individual is, by definition, a serious offense and is punishable as a felony rather than a misdemeanor. See Evans, 404 U.S. at 238 (finding a serious offense where the defendant was charged with assaulting a government employee and threatening to murder a federal judge); United States v. Orlofsky, 554 F. Supp. 2d 4, 5 (D. D.C. 2008) (finding a serious offense where the defendant was charged with threatening to use chemical weapons in violation of 18 U.S.C. § 1038 which carries a five-year maximum sentence). The five-year maximum sentence here, however, is at the lower end of felony offenses. Compare United States v. Green, 532 F.3d 538, 549 (6th Cir. 2008) (finding a serious offense where the defendant faced a ten-year mandatory minimum term of ...

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