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United States v. Hardy

United States Court of Appeals, Second Circuit

August 2, 2013

DAMION HARDY, aka WORLD, Defendant-Appellant.

Argued: April 10, 2013

Appeal from an order of the United States District Court for the Eastern District of New York, Frederic Block, Judge, granting motion of the United States to authorize the Bureau of Prisons to medicate mentally ill defendant without his consent, on the principal ground that he is a danger to others and that medication is medically appropriate. See 878 F.Supp.2d 373 (2012).

JAMES P. LOONAM, Assistant United States Attorney, Brooklyn, New York (Loretta E. Lynch, United States Attorney for the Eastern District of New York, Peter A. Norling, Assistant United States Attorney, Brooklyn, New York, on the brief), for Appellee.

FRANCISCO E. CELEDONIO, New York, New York (David A. Ruhnke, Ruhnke & Barrett, Montclair, New Jersey, on the brief), for Defendant-Appellant.

Before: KEARSE, WALKER, and CHIN, Circuit Judges.

KEARSE, Circuit Judge

Defendant Damion Hardy, who is being detained at a hospital facility operated by the United States Bureau of Prisons ("BOP") pending trial on charges of, inter alia, drug trafficking, racketeering, and murder, and who has been found incompetent to stand trial, appeals from an order of the United States District Court for the Eastern District of New York, Frederic Block, Judge, granting the government's motion to authorize BOP medical personnel to treat Hardy with antipsychotic medications despite his unwillingness to undergo such treatment. The district court concluded that involuntary medication of Hardy is warranted because such treatment is medically appropriate, and it both is necessary for the protection of others, see Washington v. Harper, 494 U.S. 210 (1990) ("Harper"), and is appropriate in order to restore Hardy's competence to stand trial, see Sell v. United States, 539 U.S. 166 (2003). On appeal, Hardy contends principally (1) that involuntary medication pursuant to Harper is not necessary because his actions are non-violent and/or can be controlled by BOP staff and procedures; and (2) that the district court erred in concluding that the Sell test had been met because the government failed to show that there was a substantial likelihood that his competency could be restored with the use of antipsychotic medication. For the reasons that follow, we affirm the district court's order.


Hardy was arrested in August 2004. The one-count indictment filed against him in that month alleged, inter alia, that he was an organizer and leader of an extensive narcotics trafficking gang; it charged him with conspiring to distribute at least 1.5 kilograms of cocaine base (or "crack"), in violation of 21 U.S.C. § 846. The current 26-count superseding indictment, filed in January 2008, charges Hardy in 24 counts with, inter alia, racketeering conspiracy, narcotics trafficking conspiracy, use of firearms, and six murders in aid of racketeering. With respect to one of the murders, the government has filed notice of its intent to seek the death penalty.

A. Psychological Evaluations of Hardy's Competence To Stand Trial

In September 2004, the district court granted a motion by the government pursuant to 18 U.S.C. § 4241 for a psychiatric or psychological examination of Hardy to evaluate his competence to stand trial. In a "Competency To Stand Trial Evaluation" dated October 17, 2004 ("BOP 2004 Report"), the BOP psychologist who had attempted to interview Hardy reported that those attempts had been impeded by Hardy's refusal to cooperate with psychological testing. However, the report stated, inter alia, that Hardy "was fully oriented to time, place, person, and circumstance"; that "[h]e exhibited no trouble with attention and concentration"; that he "showed no signs of expressive or receptive speech difficulties"; that "[h]is speech was logical[] and coherent"; and that "[h]is thinking appeared organized . . . ." (BOP 2004 Report at 4.) The report noted that Hardy appeared to be preoccupied with religion, that much of his speech was irrelevant to the question of his comprehension and competency, and that the irrelevance appeared to be a matter of choice. (See id.; see also id. at 5 (Hardy "continuously repeated when the interviewer attempted to discuss topics other than religion that he was choosing not to discuss them.").) The psychologist noted that Hardy's defense attorney stated that Hardy "knows what the charges are, the background, specific events, legal arguments, and the court process"; that Hardy's "mind is clear and . . . . [h]e is very sharp"; and that

Hardy was able to assist in his defense. (Id. at 5-6 (internal quotation marks omitted).) The psychologist concluded by giving her opinion

that Mr. Hardy does not possess a Mental Disease or Defect that interferes with his ability to have a rational and factual understanding of the proceedings against him, to assist legal counsel in his defense if he chooses to, and to rationally make decisions regarding legal strategy. Therefore, it is the opinion of this evaluator that Mr. Hardy is Competent to Stand Trial.

(Id. at 6-7.) Thereafter, Hardy's mental condition deteriorated.

In 2007, Judge David G. Trager, to whom the case was then assigned, granted the government's motion for an order that Hardy undergo a new psychiatric or psychological examination. In a "Competency To Stand Trial Evaluation" dated January 22, 2008 ("BOP January 2008 Report"), the BOP psychologist who conducted the new examination stated that since 2004, "Mr. Hardy appears to have become less cooperative with counsel and has made increasingly bizarre statements"; he opined that Hardy had "grandiose and hyper-religious beliefs" that "are genuinely delusional in nature." (BOP January 2008 Report at 8.) This report concluded with the opinion that "[b]ecause Mr. Hardy did not cooperate with the evaluation, conclusions are speculative and lack the usual level of psychological certainty. However, it is the opinion of this evaluator that Mr. Hardy is currently Not Competent to Stand Trial." (Id. at 9.)

In March 2008, the district court ordered another psychiatric or psychological examination. In the ensuing "Forensic Report" dated July 2, 2008 ("BOP July 2008 Report"), the BOP psychologist who conducted this examination concluded that "Hardy suffers from Schizophrenia" and that his "mental disease or defect . . . renders him unable to understand the nature and consequences of the proceedings against him, or to assist properly in his defense." (BOP July 2008 Report at 17.) Thereafter, the district court found, by a preponderance of the evidence, that Hardy was "presently incompetent to stand trial." Order dated July 29, 2008 ("2008 Competency Order"). In that order, the court committed Hardy "to the custody of the Attorney General" for 120 days' hospitalization "in order to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the proceedings to go forward." Id.

Pursuant to the 2008 Competency Order, Hardy was transferred to BOP's Medical Center for Federal Prisoners in Springfield, Missouri ("Springfield") in October 2008.

B. Medical Evaluations in 2008-2009 as to the Likely Success of Treating Hardy with Antipsychotic Medication

The original impetus for Hardy's psychiatric and psychological examinations was the issue of his competence to stand trial; the initial focus of the evaluations at Springfield was whether medication would restore him to that level of competency. Hardy's conduct at that facility--and at other BOP facilities--led the psychiatric and psychological inquiry to encompass the additional issue of whether such medication was needed for the safety of BOP staff and other inmates.

The proceedings spanned several years. As described below, administrative hearings were held in 2008 and 2011; written reports were submitted by BOP medical personnel in 2009; opinions were submitted by medical experts retained by the defense in 2009 and 2011; and the authors of those reports and opinions testified at district court hearings in 2009 and/or 2012. At the 2012 hearing, the court also heard testimony from numerous BOP guards as to Hardy's aggressive conduct, which had been described in incident reports, copies of which were submitted to the court.

1. The 2008 Administrative Hearing

Following Hardy's arrival at Springfield, given his lack of consent to receive medication, an administrative hearing was held--as a matter of BOP routine policy--to determine whether Hardy posed a danger to himself or others and whether involuntary medication should be recommended. The resulting "Involuntary Medication Report" dated January 20, 2009 ("BOP January 2009 Report"), written by Dr. Carlos Tomelleri, a nontreating BOP psychiatrist who conducted the hearing, concluded that involuntary medication was not recommended at that time:

For the last nine months Mr. Hardy has not engaged in behavior that would appear dangerous to others. The episode of pulling away from officers was explained by Mr. Hardy as being upset that he was not being released. He did not verbalize any further thoughts of aggression toward officers or other staff. Likewise, Mr. Hardy has not manifested any thoughts or actions indicative of potential self injury.

(BOP January 2009 Report at 5.) However, Dr. Tomelleri also noted that

[r]egarding restoration of competency, treatment of psychotropic medication has a substantial probability of improving Mr. Hardy's mental condition to the point where he could fulfill conditions necessary to proceed with his legal case.

(Id. at 6.)

2. BOP Doctors' Views as to the Likely Value of Treatment

Pursuant to the 2008 Competency Order, BOP medical personnel at Springfield observed Hardy and issued two reports in February 2009, giving their opinions as to whether there was a substantial likelihood that medication would be effective to render Hardy competent to stand trial. In a February 2, 2009 "Psychiatric Report" ("BOP February 2, 2009 Report"), BOP psychiatrist Dr. Robert G. Sarrazin diagnosed Hardy with schizophrenia, stating, inter alia, that Hardy "remains extremely delusional, particularly in light of the fact that he states that there is no case against him . . . ." (BOP February 2, 2009 Report at 3.) Dr. Sarrazin concluded, however, that with antipsychotic medications "there is a substantial probability that Mr. Hardy's competency status can be restored . . . ." (Id. at 15.)

In so concluding, Dr. Sarrazin relied in part on the American Psychiatric Association's "Practice Guideline for the Treatment of Patients with Schizophrenia, " which indicated that generally about 10-30% of patients receiving antipsychotic medications have little or no response to medication and that an additional 30% have only a partial response to such treatment. (See id. at 5.) Thus, under the least optimistic interpretation of the data, Hardy had a 40% chance of restoration to competency; under the most optimistic, he had a 90% chance. (See id. at 5-6.) Dr. Sarrazin estimated that greater, rather than less, optimism was warranted for Hardy's prognosis because, although "patients who have prominent negative symptoms are . . . less likely to respond to medication treatment" than those who do not, Hardy lacked such symptoms and had a "relatively high level of social functioning despite his low level thought disorder." (Id. at 15.) Dr. Sarrazin also cited several empirical studies that had shown that involuntary treatment with antipsychotic medication to restore the competency of various inmates who suffered from mental conditions similar to Hardy's had resulted in favorable responses in the range of 75-87% of the patients. (See id. at 3-5.) The BOP February 2, 2009 Report ultimately estimated that the likelihood of success for Hardy would be in that range. (See id. at 11.)

Dr. Sarrazin described possible side effects of antipsychotic medications and noted that the most serious side effects were also the most rare. (See BOP February 2, 2009 Report at 6-9.) The report stated, moreover, that any side effects could be prevented and/or controlled through a well-planned, progressive treatment plan. (See id. at 7-9, 15.) In particular, Dr. Sarrazin wrote that, with respect to the proposed treatment plan for Hardy,

[t]he goal is to achieve clinical improvement at the lowest effective dose starting at the low end of the dosing range and gradually increasing the dose as clinically indicated. If Mr. Hardy developed intolerable side effects to any one of the medications that was [sic] not amenable to dosage adjustment or addition of adjunctive medication, the treatment regimen would be switched to another of the antipsychotic medications . . . .

(Id. at 13.) In the event that Hardy was not amenable to oral medication, "injections of long acting antipsychotic medication" would be given after Hardy received "a test dose" to "identify any rare idiosyncratic reactions to this medication." (Id.)

A "Forensic Report" dated February 10, 2009 ("BOP February 10, 2009 Report"), by Dr. Lea Ann Preston-Baecht, the BOP psychologist attending Hardy, detailed Hardy's background and medical history. This report indicated that Hardy's family reportedly had noted changes in his behavior in 2002 or 2003 when he converted to Islam and became increasingly preoccupied with religion. (See BOP February 10, 2009 Report at 5.) Dr. Preston-Baecht also relayed the contents of a January 2004 interview of Hardy on a New York City radio program, in which Hardy had "made repeated references to conspiracies among the Masons and Jews, " had stated that "his relationship with Lil' Kim had ended because she was 'part of the secret society of the Masons, '" and he had "insisted various rappers were Masonic members and homosexuals and that the Masons had tried to get Lil' Kim to 'get me join the homo club.'" (Id.) The report continued that "[i]n April 2004, Mr. Hardy traveled to the Middle East, where he stayed for four months. He reportedly flew to Jordan and went to the royal palace in order to urge the King of Jordan to step down . . . . He reportedly traveled to Morocco and was arrested after he twice tried to visit the King of Morocco. He was returned to Jordan and arrested for speaking against the King of Jordan." (Id.)

As to her interactions with Hardy, Dr. Preston-Baecht commented that Hardy "consistently refused to speak with" her, and when he did, Hardy spoke about something he called "'Ethou law'":

"It goes into effect four years, two months and 17 days from when the Court learns there is no case. . . If they don't do it, it's over. That's it. If a person is not released on day of the time limit, then the President of the United States signs an order for soldiers to go into the jail and get that person. . . It's an unusual law. No one can change it. Not even the Supreme Court."

(BOP February 10, 2009 Report at 9.) Hardy continued that "the Judge in his case 'in August 2004 . . . [s]tated I was to be released on November 3, 2008'" (id.), and Hardy "insisted that he was being held illegally" (id. at 10).

Based on her observations and her review of Hardy's background, Dr. Preston-Baecht diagnosed Hardy with paranoid schizophrenia. (See id. at 11.) She believed, however, that "[t]reatment with anti-psychotic medication . . . would likely reduce the intensity of Mr. Hardy's psychotic symptoms and improve his mental status to the level where he would be considered competent to stand trial." (Id. at 13.) Further, Dr. Preston-Baecht opined that "alternative, less intrusive treatments (e.g., psychotherapy, education, etc.) are unlikely to achieve substantially the same results." (Id. at 14.) Finally, Dr. Preston-Baecht noted that "medication side effects are routinely managed by thousands of American psychiatrists in daily clinical practice, who assess the risks and benefits of any particular medication in treating their patients" (id. at 13), and "it is well-established in the literature that the standard treatment for Mr. Hardy's mental illness is anti-psychotic medication" (id. at 14).

3. The Views of Doctors Retained by the Defense

To oppose the conclusions reached by Drs. Sarrazin and Preston-Baecht, Hardy submitted two written opinions in 2009 by psychiatrist Dr. Richard G. Dudley, Jr. (and a similar opinion by a psychologist in 2011). Dr. Dudley had met with Hardy on two occasions, reviewed Hardy's medical records, and interviewed Hardy's family. In opinion letters dated August 15, 2009 ("Dudley August 2009 Opinion"), and September 19, 2009 ("Dudley September 2009 Opinion"), Dr. Dudley concluded that there was not a substantial likelihood that Hardy could be restored to competency through the administration of antipsychotic medication. (See Dudley August 2009 Opinion at 1-2; Dudley September 2009 Opinion at 3.) Dr. Dudley relied principally on the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision to evaluate factors that would influence Hardy's prognosis. In Dr. Dudley's opinion, all of the prognostic factors were negative in light of, inter alia, the facts that Hardy "ha[d] suffered from Schizophrenia for much more than 5 years, " that he had "never been treated for his illness, " that "there is a family history of Schizophrenia, " that "his thinking is not only paranoid but also often disorganized, " and that "there was poor premorbid functioning." (Dudley September 2009 Opinion at 3; see also Dudley August 2009 Opinion at 1 ("[I]t has been well established that some persons who suffer from Schizophrenia, especially those who never obtain psychopharmacologic treatment, show a progressive worsening of the disease with a persistence of many of their symptoms and a resultant severe disability.").) Because "early intervention . . . is so much more likely to result in a good response to treatment compared to initiating treatment in a person who has already become chronically ill, " and because Hardy's condition had been untreated for several years and his symptoms were "increasingly chronic/unremitting" (Dudley August 2009 Opinion at 2), Dr. Dudley opined that the most pessimistic data cited by Dr. Sarrazin "are much more relevant to an understanding of the possibility of restoring [Hardy] to competency" and that Hardy was in the group least likely to respond positively (Dudley September 2009 Opinion at 3). Dr. Dudley indicated that many of Dr. Sarrazin's cited studies "would be relevant to a newly ill individual, " but that they were not relevant "to chronically ill persons such as Mr. Hardy." (Dudley August 2009 Opinion at 2.)

Finally, as to side effects, Dr. Dudley wrote that because Hardy was unlikely to accept oral medications, he would be subject to first-generation injections that are "the group most likely to cause the more serious adverse effects, " effects that are more likely to occur at higher potencies. (Dudley September 2009 Report at 4-5.) Dr. Dudley also noted that Hardy was at particular risk of seizures given that he has a history of seizures of unknown etiology. (See id. at 5.)

4. Testimony at the 2009 Hearing

Judge Trager held a hearing on August 25, 2009, and November 24, 2009, to allow the respective experts to testify and be questioned. At the August hearing, Drs. Sarrazin and Preston-Baecht reiterated the views set forth in their respective February 2009 reports, described in Part I.B.2. above, that there was a substantial likelihood that Hardy's competency could be restored with the use of antipsychotic medications and that competency was unlikely to be restored without such medication. (See, e.g., Hearing Transcript, August 25, 2009 ("Aug. 2009 Tr."), at 44-45, 4-15.) Dr. Preston-Baecht added that "in general the vast majority of [her] patients who have had to be involuntarily medicated have been restored to competency . . . . More than 75 percent have been restored." (Id. at 26.)

With respect to the likelihood of successful medication, Dr. Sarrazin agreed with Dr. Dudley that the earlier the patient receives treatment, the better the prospects for a positive response (see id. at 69-70). Dr. Sarrazin testified that among Hardy's positive prognostic factors were his ability to interact socially and the fact that Hardy was diagnosed with paranoid schizophrenia as contrasted with undifferentiated or disorganized schizophrenia. (See id. at ...

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