UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, Criminal No. 08-057-M (AK) v.

ALEKSANDER ALEKSOV,

Defendant.

MEMORANDUM OPINION

The Government asks this Court to order the involuntary medication of defendant Aleksander

Aleksov (“Defendant” or “Aleksov”), who suffers from mental illness, to render him competent to

stand trial. Pursuant to Sell v. United States,

,

,

(2003), this Court must consider whether involuntary medication is medically appropriate and

necessary to significantly further important government interests. Upon consideration of the

pleadings, the record, and the arguments and evidence presented at the April 20, 2009 Sell hearing,

the Court concludes that the Government has shown by clear and convincing evidence1 that the

standards under Sell have been met, and involuntary medication is required. The Government’s oral

motion to involuntarily medicate the Defendant is therefore granted.

1 Though the D.C. Circuit has not addressed the standard of proof applicable to a Sell hearing, other circuits and at least one district judge on this Court have approved of the use of the clear and convincing standard. See United States v. Austin, No. 06-368, 2009 W L 910187, at *2 n. 3 (D.D.C. April 6, 2009) (noting and applying the clear and convincing standard used by the Tenth and Second Circuits.)

-1- I. Background

On January 28, 2008, it is alleged that Aleksov approached two uniformed Secret Service

officers just outside the gates of the White House and stated that he wanted to kill the president.

(Govt.’s Mem. [11] at 1.) When asked to repeat what he had just said, Aleksov allegedly repeated

the statement. (Id.) The Defendant was arrested for making threats against the president, in

violation of

. A search incident to arrest revealed a small knife among his personal

belongings. (Id.) The Defendant was arraigned on January 29, 2008.

On February 6, 2008, the Court ordered the Defendant committed to the Attorney General

for the purpose of a competency evaluation. The Defendant was evaluated at the Federal Medical

Facility Devens in Ayer, Massachusetts, and the forensic report was authored by Shawn E. Channell,

Ph.D, on April 9, 2008. (See Forensic Report [12].) The report concluded that Defendant’s

delusional beliefs caused Defendant not to have a rational understanding of court proceedings and

that Defendant was not capable of assisting his attorney in his defense. (Id. at 8.) Dr. Channell

further noted that because Defendant did not have any insight into his illness and was opposed to

taking medication, involuntary medication might need to be pursued in the future to restore

competency. (Id.) The report recommended that Defendant be committed for further evaluation and

treatment for restoration of competency. (Id.)

On May 19, 2008, this Court held a competency hearing and subsequently found Defendant

to be incompetent. The Court further ordered that Defendant be returned to the custody of the

Attorney General for further treatment and a competency restoration study. Defendant was evaluated

at the Federal Medical Center in Butner, North Carolina. In a report dated November 13, 2008 that

was authored by Adeirde Stribling, Ph.D. and Kwanna Williamson, M.D., Defendant was diagnosed

as Schizophrenic, Paranoid Type. (See Forensic report [7] at 9.) The report found that Defendant

-2- requires treatment with antipsychotic medication, that his is not currently competent to consent to

or refuse such treatment, and that no less intrusive alternatives are available to address his needs.

(Id. at 19.) The report further concluded that there is a substantial probability2 that Defendant’s

capacity can be restored with a period of treatment with antipsychotic medication. (Id.)

At a November 20, 2008, Competency Status Hearing, Defendant orally opposed involuntary

medication and requested a Sell hearing. The Court ordered briefing and held a Sell hearing on April

20, 2009. At the hearing, the Government presented testimony from Dr. Stribling, staff psychologist

and Dr. Williamson, staff psychiatrist, via video-conference from the Federal Medical Center at

Butner. Dr. Stribling, who the Court qualified as an expert in the area of determining competency,

testified that in her opinion and to a medical degree of certainty, Defendant suffered from

Schizophrenia, Paranoid type. In particular, Dr. Stribling testified that Defendant suffers from

bizarre delusions that are, at least in part, intertwined with his understanding of the criminal case

against him and that Defendant is unable to separate his delusions from the case. The doctor further

testified that Defendant’s preoccupation with his delusions leave him below the threshold for

competency, but that it is substantially likely that medication will significantly improve his ability

to aid counsel and understand the nature of the case. Dr. Stribling also testified that potential side

effects from the proposed medication can be monitored and, if necessary, treated with other

medication or by stopping the treatment periodically. Dr. Williamson, who was qualified by the

Court as an expert in the diagnosis and treatment of mental illness, testified that treatment with

antipsychotic medication was medically necessary and that possible side-effects could be monitored

and targeted with other medication if needed. Dr. Williamson opined that the probability of success

2 The Report surmised that expected efficacy in this case should approach approximately 70%. (Id.)

-3- of treatment would approach 70%.

II. Discussion

The government may administer antipsychotic medication to render a mentally ill defendant

competent to stand trial on serious criminal charges if: (1) doing so advances important

governmental interests to include bringing to trial an individual accused of a serious crime and

assuring him of a fair trial; (2) the medication is substantially likely to render the defendant

competent and substantially unlikely to have side effects that will interfere significantly with the

defendant’s ability to assist counsel in conducting a trial defense; (3) alternative less intrusive

treatments are unlikely to achieve the same result; and (4) administration of the medication is

medically appropriate. Sell v. United States,

,

,

(2003).

On the first factor, whether involuntary medication will advance an important governmental

interest such a bringing to trial an individual accused of a serious crime, the Court finds that the

important governmental interest of bringing Defendant, who is charged with the very serious crime

of threatening to kill the President of the United States, to trial will be advanced by involuntary

medication. In making this determination, the Court has conscientiously considered the

circumstances of the instant case and Defendant’s current situation. As was noted by defense

counsel at the Sell hearing and in Defendant’s Opposition, Defendant has been confined for a

substantial period of time – what is now approximately sixteen months. As roughly calculated by

defense counsel, Defendant would likely face a sentencing range of anywhere from 10 to 33 months

based on the guidelines. Defendant has therefore already served a considerable portion of a possible

sentence should he be convicted. Moreover, a plea bargain might further reduce the sentence to the

-4- point where a sentence of time served and supervised release would be a realistic possibility. It is

unclear, however, whether Defendant, without medication rendering him competent, would within

a reasonable time period regain his liberty by being able to stand trial and, if convicted, serve out his

sentence. Magistrate Judge Facciola confronted a similar situation in United States v. Orloski,

(D.D.C. 2008), and concluded that where there was no certainty of the defendant’s civil

commitment and where the defendant’s resistance to involuntary medication was based on a

delusional system, involuntary medication was necessary for a prompt resolution of the matter and

was ultimately in the interest of both the government and the defendant. See

. This Court

concurs with and adopts Judge Facciola’s apt analysis of the competing interests in that case, whose

facts and posture significantly mirror the instant case. See

(describing the conflict inherent

in an incompetent defendant refusing medication and therefore facing the possibility of confinement

beyond a potential sentence for the crime with which he has been charged and concluding that

involuntary medication was ultimately in the defendant’s interest.) The Court therefore concludes

that the important governmental interest in bringing Defendant to trial will be advanced by

involuntary medication, and that a restoration of competency will allow for a prompt resolution of

the matter. This is ultimately in Defendant’s own interest.

There is little argument from Defendant rebutting the Government on the second through

fourth factors, and Defendant did not present any rebuttal evidence at the Sell hearing. The Court

is convinced that all three factors have been satisfied by the Government by clear and convincing

evidence. As detailed in the November 13, 2009 forensic report and confirmed through expert

testimony at the Sell hearing, the antipsychotic medication proposed for treatment is substantially

likely to render the Defendant competent to stand trial. (See Forensic report [7] at 15, 19.) The

doctors have concluded that the efficacy of such treatment would approach 70%. (Id. at 19)

-5- Furthermore, both doctors testified and concluded in their report that potential side effects could be

monitored closely and mitigated upon the first showing of symptoms. (Id. at 15-19.) The Court

therefore finds that the administration of such drugs is substantially unlikely to have side effects that

would interfere significantly with the Defendant’s ability to assist counsel in conducting a trial

defense. Alternative less intrusive treatments to medication would not be likely to achieve the same

results, as the doctors have testified and concluded that medication is the only primary treatment for

Defendant’s condition that would render him competent to stand trial. (See

.) Finally, the

Court concludes that the administration of medication is medically necessary, as it is the common

and standard course of treatment for Defendant’s psychotic condition. (Id.)

III. Conclusion

For the foregoing reasons, the Court will order that the Defendant be involuntarily medicated.

The Government, in consultation with the Federal Medical Center, will be required to provide the

Court with a detailed order that sets forth the protocol the Medical Center plans to follow in

medicating the Defendant involuntarily and the time line for apprising the Court of the status of

progress made. Such protocol shall be submitted to the Court within 10 days of the date of this

Memorandum Opinion.

An Order consistent with this Memorandum Opinion is filed contemporaneously herewith.

Dated: May 7th , 2009 /s/ ALAN KAY UNITED STATES MAGISTRATE JUDGE

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