United States District Court, W.D. New York
DECISION AND ORDER
RICHARD J. ARCARA, District Judge.
The defendant in this case, Robert E. Baschmann, Jr., suffers from a delusional disorder leaving him unable to understand the nature and consequences of the criminal proceedings against him and to assist properly in his defense. As a result, pursuant to 18 U.S.C. § 4241(d) and Dusky v. United States, 362 U.S. 402 (1960), the Court has found defendant Baschmann mentally incompetent to stand for trial and ordered the defendant committed to the custody of the Federal Bureau of Prisons for mental health treatment and to determine whether there is a substantial probability in the foreseeable future that he can be restored to competency. However, the defendant does not believe himself incompetent, and he refuses treatment that may restore him to competency.
Presently before the Court is the United States' motion, pursuant to 18 U.S.C. § 4241(d), and the four-part test stated by the Supreme Court in Sell v. United States, 539 U.S. 166 (2003), to forcibly medicate the defendant to restore him to mental competency for trial. On May 30, 2014 and June 23, 2014, the Court held an evidentiary hearing to consider, in light of the § 4241(d) factors announced in Sell, whether defendant Baschmann should be forcibly medicated. For the reasons that follow, upon consideration of the evidence and testimony received during the Sell hearing, and pursuant to § 4241(d), the Court grants the United States' motion to forcibly medicate the defendant potentially for a period of four months.
Defendant Baschmann is accused of a mortgage loan advance-fee scheme in an Indictment charging three counts of mail fraud in violation of 18 U.S.C. § 1341 and one count of wire fraud in violation of 18 U.S.C. § 1343. The defendant is alleged to have defrauded more than 100 victims of more than $1, 000, 000.
On December 6, 2012, defendant Baschmann appeared before the Court to enter into an plea agreement and to plead guilty. During the plea proceeding, the Court became concerned about the defendant's mental state, and adjourned entry of the change of plea.
At defendant Baschmann's next appearance on January 14, 2013, his counsel reported a serious breakdown in communication with the defendant. After colloquy regarding the issue, the Court scheduled a status conference for approximately one month later.
In early February 2013, defendant Baschmann's counsel made an unopposed motion requesting that the Court order the defendant to undergo a mental competency exam. Pursuant to 18 U.S.C. § 4241(a) and (b), the Court granted the motion, and after receiving a report of an examination of the defendant by Dr. Ana Natasha Cervantes, M.D., the Court granted defense counsel's supplemental motion, made at the request by Dr. Cervantes, that the defendant undergo psychological testing by Dr. Daniel Antonius, Ph.D.
Both Dr. Cervantes and Dr. Antonius diagnosed defendant Baschmann as suffering from a delusional disorder, mixed type. The defendant suffers from mixed grandiose and persecutory delusions. Both Dr. Cervantes and Dr. Antonius opined the defendant lacks the ability to assist properly in his defense and that he is mentally incompetent to stand for trial. See Gov't Ex. 1 at 5; Gov't Ex. 3503.
Upon review of the reports and opinions of Dr. Cervantes and Dr. Antonius, the Court found pursuant to 18 U.S.C. § 4241(d), by a preponderance of the evidence, that the defendant is mentally incompetent to stand for trial. The Court ordered that the defendant be committed to a suitable facility at which he could be further examined and potentially treated. See Min. Entry for May 30, 2013, Dkt. No. 82.
Defendant Baschmann was admitted to the Federal Medical Center at Butner, North Carolina (FMC Butner) in October, 2013. See Gov't Ex. 1 at 1. After examining the defendant at FMC Butner for approximately two-and-a-half months, Dr. Robert Lucking, M.D., and Dr. Angela Walden Weaver, Ph.D. -respectively, a staff psychiatrist and a staff psychologist at FMC Butner-submitted a report summarizing their evaluation of the defendant. See Gov't Ex. 1. The report concluded that the defendant suffers a delusional disorder, mixed type, and is not competent for trial. See Gov't Ex. 1 at 10. The report also noted, however, that the defendant does not believe he suffers from delusions, or a mental disorder requiring treatment, and that he refuses treatment that would likely restore him to competency. Id. at 12.
Based on the Court's finding that defendant Baschmann is mentally incompetent to stand for trial because of his delusional disorder, mixed type, and on the defendant's refusal of potentially restorative treatment, the United States has moved pursuant to 18 U.S.C. § 4241(d) that the Court authorize mental health professionals at FMC Butner to forcibly medicate the defendant in accordance with a detailed treatment plan, to attempt to restore him to competency for trial.
Forced Medication to Restore Competency
Forcibly medicating a pre-trial defendant who does not pose a danger to himself or the public raises grave due process concerns. See Washington v. Harper, 494 U.S. 210, 229 (1990) ("The forcible injection of medication into a nonconsenting person's body represents a substantial interference with that person's liberty.") Nevertheless, in a line of cases ending with Sell v. United States, 539 U.S. 166 (2003), the Supreme Court has recognized that "the Constitution permits the Government involuntarily to administer antipsychotic drugs to a mentally ill defendant." Id. at 179.
To comport with the constitutional guarantee of due process, the Court in Sell required that courts make a series of findings and conclusions prior to ordering that a defendant be forcibly medicated. Thus, to order forcible medication of a pre-trial defendant who is "facing serious criminal charges, " the United States must prove that "the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests." Id. These so-called Sell factors, which the Court indicated would likely be satisfied only in "rare" instances, id. at 180, did not come with a standard of proof. In United States v. Gomes, 387 F.3d 157 (2d Cir. 2004), the Second Circuit concluded, based on pre- Sell involuntary medication case law, that "the relevant findings [under Sell ] must be supported by clear and convincing evidence." Id. at 160.
On May 30, 2014, the Court held a day-long evidentiary hearing, followed by a brief continuation on June 23, 2014. Three witnesses testified at the hearing. The Court found each witness to be qualified and credible.
The United States' first witness, Margaret Podkova, is a doctoral intern at FMC Butner, and is completing a rotation, half of which was spent in the general population and half of which was spent in clinical psychology. HT 4. Ms. Podkova earned a master's degree in forensic psychology from the John Jay College of Criminal Justice in 2003, is currently enrolled at Antioch University and, upon completion of her work at FMC Butner, is expected to receive her doctoral degree in clinical psychology in September 2014. Id. at 5-6. Ms. Podkova met with defendant Baschmann approximately eighteen times at FMC Butner and drafted the portions of the Bureau of Prisons report relating to the defendant's history, diagnoses, summary of previous psychological testing, impression, and opinion regarding competency. Id. at 7-8. Ms. Podkova is supervised by Dr. Angela Walden Weaver, Ph.D., a staff psychologist at FMC Butner. Id. at 7.
The United States' second witness, Dr. Robert G. Lucking, M.D., was board certified in psychiatry in 1982 and has been a staff psychiatrist at FMC Butner since 1998. Prior to his employment at FMC Butner, Dr. Lucking was a staff psychiatrist at multiple FMC facilities. Id. at 39; Gov't Exh. 3502.
The final witness during the Sell hearing, Dr. Ana Natasha Cervantes, M.D., is also board certified in psychiatry and testified as defendant Baschmann's witness in opposition to the motion for forcible mediation. Dr. Cervantes is a forensic psychiatrist who authored the first report as to the defendant's competency received by the Court. See Dkt. No. 90-1; Gov't Ex. 3503. Dr. Cervantes has been in private practice as a forensic psychiatrist since 2006, and has been a forensic evaluator for Erie County Mental Health Services since 2009. Id. Dr. Cervantes has also taught in the field of psychiatry since 2008. Id.
The Defendant's Delusional Disorder
It is undisputed that defendant Baschmann suffers from delusional disorder, mixed type, which renders him mentally incompetent to stand for trial. As stated by the United States' primary expert, Dr. Lucking, the condition is a "biological illness requiring a biological treatment." HT 58. In general, Dr. Lucking testified, "[a] delusion is a fixed false belief which is unrealistic. There is no evidence to support [the belief] and [it] is held with significant intensity, despite evidence to the contrary and it alters the reality of the person who is experiencing it." HT 44. Accord id. 153 (testimony of Dr. Cervantes) ("[D]elusional disorder, in general, is a psychiatric illness that is characterized by delusions or fixed false beliefs that are not based in reality.") According to Dr. Lucking, individuals with delusional disorder "almost always function well in the community. They have no difficulty functioning in terms of work, relationships, school, [or] job and they can function for quite some time in those ...