UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-4482

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RICHARD LEROY ABNEY,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. George L. Russell, III, District Judge. (1:14-cr-00102-GLR-1)

Argued: September 28, 2018 Decided: January 23, 2019

Before KING, DUNCAN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion. Judge King wrote a separate concurring opinion.

ARGUED: Marta K. Kahn, THE LAW OFFICE OF MARTA K. KAHN, LLC, Baltimore, Maryland, for Appellant. Jeffrey J. Izant, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Stephen M. Schenning, Acting United States Attorney, Paul E. Budlow, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Appellant Richard Abney was indicted for armed bank robbery in 2014. Defense

counsel requested an evaluation and hearing on Abney’s competency to stand trial.

Following years of evaluations by various doctors, Abney was deemed incompetent to

stand trial unless he took medication. Because Abney was unwilling to take medication

for his condition, the government moved to place him on medication without his consent.

Following a hearing, the district court concluded that involuntarily medicating Abney

would not violate the Constitution; therefore, the district court issued an order granting

the government’s motion. Abney now appeals that order, and we affirm.

I.

On January 4, 2014, Abney allegedly committed armed bank robbery in Columbia,

Maryland. * A grand jury returned an indictment charging Abney with conspiracy to

commit armed bank robbery, armed robbery, and discharging a firearm during a crime of

violence. Abney was then placed in the Chesapeake Detention Facility (CDF) in

Baltimore, Maryland.

Over the next several years, Abney underwent a series of psychological

evaluations to determine his competency to stand trial. In March 2014, defense counsel

filed a motion pursuant to

(a) requesting what would be the first in this

* The majority of the record in this case has been sealed at Abney’s request, and the majority of the parties’ briefing has been redacted. Consequently, our recounting of the facts is severely constrained.

2 series of evaluations. Abney was transferred to the Federal Medical Center in Devens,

Massachusetts (FMC Devens) where he was evaluated in May and June of 2014 by Chad

Tillbrook. Dr. Tillbrook concluded that Abney was not suffering from a mental illness

that would compromise his understanding of the trial process and deemed him competent

to stand trial.

In the fall of 2014, Abney’s defense counsel retained forensic psychologist

Michael J. O’Connell to evaluate Abney’s competency. In March 2015, Dr. O’Connell

concluded that Abney’s mental condition prevented him from understanding legal

proceedings and Abney was therefore not competent to stand trial.

In May 2015, the district court conducted a competency hearing and concluded

that Abney was not competent to stand trial. The court committed Abney to the custody

of the Attorney General for hospitalization and treatment, and he was transferred to the

Federal Medical Center in Butner, North Carolina (FMC Butner). At FMC Butner,

Abney was treated by forensic psychologist Carlton Pyant. Dr. Pyant concluded that

Abney was competent to stand trial.

Abney was then transferred back to CDF, where Dr. O’Connell, the defense’s

forensic psychologist, evaluated him again in April 2016. Dr. O’Connell again

concluded that Abney was not competent to stand trial.

Given the conflicting conclusions regarding Abney’s mental state, the government

moved for a § 4241(c) hearing to determine Abney’s competency. The government

requested that it be allowed to conduct an updated psychological examination to prepare

for this hearing. The court granted this motion and transferred Abney to FMC Devens

3 where he was evaluated again by Dr. Tillbrook. This time, unlike in his 2014 evaluation

of Abney, Dr. Tillbrook concluded that Abney was not competent to stand trial and

recommended that he be committed for further evaluation to determine if his competency

could be restored.

Considering Dr. Tillbrook’s conclusion, the parties agreed that a second § 4241(c)

hearing was unnecessary. They filed a joint motion to have Abney further committed to

determine whether there was a substantial probability that his competency could be

restored in the foreseeable future. The court granted the motion and ordered that a report

on the question be made by an examining doctor. On December 27, 2016, Dr. Tillbrook

issued a report concluding that Abney remained incompetent, but that there was a

substantial probability that his competency could be restored by treatment with

antipsychotic medication. Because Abney had refused to accept medication voluntarily,

Dr. Tillbrook recommended that the medication be administered involuntarily pursuant to

Sell v. United States,

(2003).

On June 13 and 15, 2017, the court conducted a Sell hearing. Dr. Tillbrook

testified as an expert on both Abney’s competency to stand trial and the efficacy of

involuntary medication to restore competency. Although the defense had retained its

own expert to review and rebut Dr. Tillbrook’s report, it did not call that expert as a

witness. On July 18, 2017, the district court granted the government’s motion. This

appeal followed.

II.

4 We are asked to decide whether the involuntary medication of a defendant is

constitutional in this case under the test set forth by the Supreme Court in Sell v. United

States,

(2003). This appeal focuses on one element of that test: whether the

government proved that involuntary medication is substantially likely to render Abney

competent and substantially unlikely to cause side effects that would, themselves,

undermine the fairness of the trial. We hold that the district court did not clearly err in

finding that the government had met its burden for this element of the Sell test, and we

therefore affirm the district court’s order.

A.

The Supreme Court held in Sell that given the important governmental interest of

bringing a person accused of a serious crime to trial, it is constitutionally permissible in

some circumstances to involuntarily administer medication to render a defendant

competent to stand trial.

. The government may administer treatment

involuntarily only if it “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.”

The Court articulated a four-part test that the government must satisfy to

show that involuntary medication is warranted: 1) “a court must find that important

governmental interests are at stake;” 2) “the court must conclude that involuntary

medication will significantly further those concomitant state interests;” 3) “the court must

conclude that involuntary medication is necessary to further those interests,” and 4) “the

5 court must conclude that administration of the drugs is medically appropriate.”

at

180–81 (emphasis in original). The government must prove each of these elements by

clear and convincing evidence. United States v. Bush,

(4th Cir. 2009).

Abney challenges only the second element of the Sell test, which considers

whether involuntary medication will significantly further state interests. To satisfy this

element, the government must show both that the “administration of the drugs is

substantially likely to render the defendant competent to stand trial” and that the

“administration of the drugs is substantially unlikely to have side effects that will

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

defense, thereby rendering the trial unfair.” Sell,

. “[T]he government

must make this showing with respect to the particular defendant it seeks to medicate

involuntarily.” Bush, 585 F.3d at 815–16. In other words, the test is “not whether a

proposed treatment plan is likely to work in general, but whether it is likely to work as

applied to a particular defendant.” United States v. Watson,

(4th Cir.

2015).

The second element of the Sell test presents a factual question, which we review

for clear error. United States v. White,

(4th Cir. 2010). “We reverse a

factual finding as being clearly erroneous if, although there is evidence to support it, the

reviewing court on the entire evidence is left with the definite and firm conviction that a

mistake has been committed.” Jiminez v. Mary Washington Coll.,

(4th

Cir. 1995) (internal citation and quotation marks omitted).

6 B.

We note that our discussion and evaluation of the district court’s decision is

frustrated by the fact that at Abney’s request, the majority of the record in this case,

including the district court’s order and the expert report on which the court relied, has

been sealed. Our analysis is by necessity somewhat conclusory.

We have reviewed the record under seal. Based on our review, we are satisfied

that the district court did not clearly err in finding that involuntary administration of

medication would significantly further state interests. Through Dr. Tillbrook’s expert

report and testimony, the government met its burden of proving with sufficient

particularity that involuntary medication is substantially likely to render Abney

competent to stand trial and substantially unlikely to induce side effects that would

undermine a fair trial.

Dr. Tillbrook’s report cited studies showing that medications like those

recommended for Abney have been effective when involuntarily administered to inmates

with his condition. The report also considered Abney’s individual characteristics and

medical history in gauging the effectiveness of the proposed treatment. The report

described in detail the typical side effects associated with the proposed medication, the

likelihood of such effects, and plans to monitor and manage such effects in Abney. In

response to Dr. Tillbrook’s report, Abney presented no evidence or expert testimony

suggesting that the proposed course of treatment would be ineffective. In sum, Dr.

Tillbrook’s report was supported by research particular to Abney’s symptoms and

disease. Reviewing the record under the deferential clear-error standard, we are not “left

7 with a definite and firm conviction that a mistake has been committed.” Jiminez,

.

III.

For the foregoing reasons, we affirm the district court’s order granting the

government’s motion for involuntary medication.

AFFIRMED

8 KING, Circuit Judge, concurring:

I am pleased to concur in the per curiam opinion of the panel. I write separately,

however, to briefly discuss the lack of transparency in some court proceedings. As the

opinion correctly observes, a majority of this record is sealed. See ante 2 n.1. In addition

to constraining our ability to recite pertinent facts, extensive sealing — at times without

full compliance with the applicable rules and absent sufficient explanations — can

undermine a foundational principle of our judicial system. Put succinctly, court

proceedings are “presumptively open to public scrutiny.” See United States v. Adams,

(4th Cir. 2015) (quoting Doe v. Pub. Citizen,

(4th

Cir. 2014)). This Court, on several occasions, has emphasized this settled tenet, and we

have urged that the sealing of court records be regularly reexamined and that alternatives

to sealing be considered. See id. at 115-16 (recommending that court consider on remand

alternatives to sealing); see also United States v. Caluori,

, 280 n.* (4th

Cir. 2018) (proposing that court contemplate unsealing portions of record). As in those

examples, a careful reexamination of the sealed portions of the record in this case is

entirely appropriate.

9