Case: 14-14469   Date Filed: 05/27/2015   Page: 1 of 18


                                                       [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 14-14469
                     ________________________

             D.C. Docket No. 1:10-cr-00160-ODE-GGB-1



UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                 versus

MARK JOSHUA RUARK,

                                                       Defendant-Appellant.

                     ________________________

              Appeal from the United States District Court
                 for the Northern District of Georgia
                    ________________________



                            (May 27, 2015)
                Case: 14-14469       Date Filed: 05/27/2015       Page: 2 of 18


Before HULL, ANDERSON, and FARRIS, * Circuit Judges.

PER CURIAM:

       Defendant Mark Ruark appeals from the district court’s order granting the

government permission to medicate him involuntarily for the purpose of rendering

him competent to stand trial.1 To prevail, Ruark must show that the district court

clearly erred in finding that the government satisfied its burden under Sell v.

United States, 

, 

(2003).

       In Sell, the Supreme Court laid out four factors the government must satisfy

for involuntary medication to render a defendant competent to stand trial: (1)

important government interests must be at stake; (2) involuntary medication must

significantly further the state interests in assuring a fair and timely trial; (3)

involuntary medication must be necessary to further the state interests; and (4)

administration of the medication must be medically appropriate, meaning in the

patient’s best medical interest in light of his medical condition. 

123



       *
        Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
       1
        The order on appeal is not a final order. See 28 U.S.C. §§ 1291, 1292. Nevertheless, we
have jurisdiction over the present appeal under the collateral-order doctrine, as it: (1)
conclusively determines the disputed question; (2) resolves an important issue completely
separate from the merits of the action; and (3) is effectively unreviewable on appeal from a final
judgment. United States v. Diaz, 

, 1330 n. 12 (11th Cir. 2011) (affirming district
court order granting government motion for involuntary medication for purposes of rendering
defendant facing armed robbery and firearms charges competent to stand trial).


                                                2
                Case: 14-14469       Date Filed: 05/27/2015       Page: 3 

–85.2 This Court reviews the first Sell factor de novo, and we review

the remaining three Sell factors for clear error. United States v. Diaz, 

, 1330-31 (11th Cir. 2011). After review of the parties’ briefs and the record,

and with the benefit of oral argument, we affirm.

                                    I. BACKGROUND

A.     Indictment and Initial Competency Determination

       On April 13, 2010, Defendant Ruark was charged with bank robbery, Hobbs

Act robbery, two counts of carrying a firearm during a crime of violence, and

possession of a firearm by a convicted felon. 3 Immediately following his

indictment, Ruark was brought into federal custody on a writ, and the magistrate

judge assigned to his case ordered his detention. Ruark has been in custody since

April 2010.




       2
         The government bears the burden of proving the factual findings underlying the Sell
factors by clear and convincing evidence. 

.

       3
        On April 13, 2010, a federal grand jury returned a five-count indictment against Ruark.
Count One alleges that in December of 2009 Ruark carried out an armed robbery of a bank in
Kennesaw, Georgia, in violation of 18 U.S.C. § 2113(a) and (d). Count Two charges Ruark with
carrying and brandishing a firearm during and in relation to that bank robbery, in violation of 18
U.S.C. § 924(c)(1)(A)(ii). Count Three states that, also in December of 2009, Ruark robbed the
Cost Plus World Market in Kennesaw, a business engaged in interstate commerce, in violation of
18 U.S.C. § 1951. Count Four alleges that Ruark brandished and carried a firearm during that
Cost Plus robbery, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Finally, Count Five charges
Ruark with unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. §
922(g)(1).


                                                3
              Case: 14-14469    Date Filed: 05/27/2015   Page: 4 of 18


      In May 2011, Ruark’s trial counsel moved for an order declaring Ruark

incompetent to stand trial. On February 13, 2012, following a psychiatric

evaluation and a competency hearing, both sides agreed that Ruark was not fit to

stand trial, and the magistrate judge entered an order committing Ruark to the

custody of the Attorney General for psychiatric treatment. Ruark was transferred

to the Medical Center for Federal Prisoners in Springfield, Missouri

(“Springfield”). On September 13, 2012, the magistrate judge granted the

government “an additional reasonable period of time” to continue Ruark’s mental

health treatment to determine if there was a substantial probability Ruark could be

rendered competent to stand trial. That additional period of mental health

treatment at Springfield was to end December 18, 2012.

B.    First Treatment at Springfield

      On January 15, 2013, the medical staff at Springfield issued a psychiatric

report on Ruark’s status and treatment. The report shows that Ruark meets the

diagnostic criteria for paranoid schizophrenia. It further stated that Ruark was

“substantially unlikely to be restored to competency in the foreseeable future in the

absence of anti-psychotic medication.”

      On February 25, 2013, the government moved for involuntary medication of

Ruark for the purpose of restoring his competency to stand trial. The government

requested (1) a hearing as outlined in Sell v. United States and (2) that Ruark be


                                          4
              Case: 14-14469     Date Filed: 05/27/2015   Page: 5 of 18


medicated involuntarily in attempt to render him competent. Ruark opposed the

motion.

C.    The Sell Hearing

      The Sell hearing before the magistrate judge was held in two stages. On

May 20, 2013, the government presented testimony from Dr. Lea Ann Preston-

Baecht, a staff psychologist at Springfield, and Dr. Robert Sarrazin, the chief of

psychiatry at Springfield. On November 5 and 6, 2013, Ruark’s counsel was given

the opportunity to cross-examine both Dr. Preston-Baecht and Dr. Sarrazin in

person. At that hearing, defense counsel also presented testimony from Dr.

Gabriella Ramirez-Laon, a clinical psychologist at the United States Penitentiary in

Atlanta (“USP Atlanta”). Because the evidence made available to the court at the

Sell hearing underlies this appeal, we review in detail the testimony of the

witnesses.

      Dr. Preston-Baecht has worked as a staff psychologist at Springfield since

2000. In this time, she has evaluated hundreds of inmates and has testified as an

expert in forensic psychology in numerous federal court proceedings, including 30

to 40 hearings regarding the involuntary medication of a defendant. Dr. Preston-

Baecht testified that an earlier review (in 2007) of her cases revealed that 80

percent of the defendants who were involuntarily medicated were successfully

restored to competency. She also testified that success rate since that time was


                                          5
              Case: 14-14469     Date Filed: 05/27/2015   Page: 6 of 18


relatively similar, with 75 to 80 percent of involuntarily medicated defendants

being restored to competency.

      Dr. Preston-Baecht conducted an evaluation of Ruark when he first arrived

at Springfield. Based on Ruark’s medical records and the personal evaluation, Dr.

Preston-Baecht diagnosed Ruark as suffering from paranoid schizophrenia. Dr.

Preston-Baecht saw Ruark on a regular basis during his time at Springfield. For a

short period of time, Dr. Preston-Baecht was able to convince him to resume taking

Geodon, an antipsychotic which he took briefly under the care of doctors at USP

Atlanta. After two months, Ruark abruptly stopped taking the Geodon because he

believed that it weakened his immune system, causing him to catch a cold. Dr.

Preston-Baecht did not believe that Ruark was on the Geodon for long enough, or

in a high enough dose, for it to be fully effective. Ruark briefly resumed the

Geodon in August of 2012, but stopped again after a short time and refused to take

it for the remainder of his stay at Springfield.

      Because of Ruark’s refusal to take antipsychotic medication, Dr. Preston-

Baecht requested an administrative hearing on whether Ruark could be

involuntarily medicated on grounds of disability or dangerousness. Bureau of

Prisons (“BOP”) regulations allow for an administrative order of involuntary

medication in cases where the inmate’s condition poses a danger to himself or to

others. The hearing officer concluded that Ruark did suffer from a psychotic


                                           6
              Case: 14-14469    Date Filed: 05/27/2015   Page: 7 of 18


disorder but did not pose a danger to others while he remained in a correctional

environment. Therefore, that request for involuntary medication was denied.

      At the subsequent Sell hearing in November 2013, Dr. Preston-Baecht also

testified that alternative forms of treatment such as counseling likely would not be

successful in reducing Ruark’s paranoia. The Springfield facility has a

competency restoration group that prisoners are encouraged to attend on a weekly

basis. Ruark attended two sessions of the group and subsequently refused to

attend.

      Dr. Preston-Baecht opined that Ruark was unlikely to regain competency

without medication. His symptoms affected his ability to meaningfully participate

in his defense. Dr. Preston-Baecht stated that Ruark did not show a rational

appreciation of the charges against him and “expressed great distress towards a

number of individuals in the courtroom,” including defense counsel. Without

further treatment, Dr. Preston-Baecht did not believe that Ruark would be able to

testify relevantly, communicate with his defense counsel, or make well-reasoned

decisions regarding his case.

      Testifying about the necessary length of treatment, Dr. Preston-Baecht

testified that patients with schizophrenia generally must take medication for four to

eight months before successfully regaining competency. She testified both that




                                          7
              Case: 14-14469    Date Filed: 05/27/2015    Page: 8 of 18


antipsychotic medication would be medically appropriate in Ruark’s case and that

there are no less intrusive methods available.

      Dr. Robert Sarrazin testified that he has served as chief of psychiatry at

Springfield since 2004. He has performed psychiatric evaluations in hundreds of

cases and has frequently testified in cases where involuntary medication is sought

by the government. In cases where involuntary medication was ordered, Dr.

Sarrazin testified that between 75 and 80 percent of his patients were ultimately

restored to competency. In his written report, Dr. Sarrazin discusses multiple

studies regarding the effectiveness of involuntary medication in treating

schizophrenic prisoners. Based on these studies and his own experience, Dr.

Sarrazin believes that antipsychotic medications are “the gold standard for

treatment of individuals with schizophrenia.”

      Dr. Sarrazin noticed some improvement in Ruark’s symptoms during the

period Ruark was on Geodon. But Dr. Sarrazin also stated such progress was

limited. Ruark remained “hypervigilant” and paranoid in his dealings with others.

In Dr. Sarrazin’s opinion, had Ruark stayed on the medication, he would have

increased the dosage to 80 milligrams during the day and 120 milligrams in the

evening. Ruark appeared to be tolerating the Geodon “without difficulty,” and Dr.

Sarrazin observed no serious side effects. In his testimony and his written report,




                                          8
                Case: 14-14469        Date Filed: 05/27/2015       Page: 9 of 18


Dr. Sarrazin also described the potential side effects of antipsychotic medications

at some length. 4

       Further, Dr. Sarrazin testified that Ruark is not likely to regain competency

in the absence of medication. According to Dr. Sarrazin, a patient on

antipsychotics generally will begin to show signs of improvement within six to

eight weeks, with full restoration to competency in four to eight months. Although

there is no cure for schizophrenia, the rationale for antipsychotic medications is

that they will likely reduce Ruark’s level of paranoia and make him less focused on

his delusions, allowing him to work with his attorney on his defense strategy.

       4
         These drugs are classified as “first generation” or “second generation.” Examples of
first-generation drugs include Haloperidol (also known as Haldol) and Fluphenazine Prolixin.
Second-generation antipsychotics include Geodon, Abilify, Risperdal, and Zyprexa. First-
generation antipsychotics sometimes cause shakiness, stiffness, akathisia (internal restlessness),
and tardive dyskinesia, which is characterized by abnormal body movements. Those symptoms
are not seen as frequently with second-generation drugs. On the other hand, second-generation
drugs can cause elevated glucose levels, weight gain, and elevated lipids. These metabolic
symptoms are often seen with Seroquel and Zyprexa but are less common with Abilify and
Geodon.
        The staff at Springfield is trained to recognize and treat all of these side effects. Most
symptoms can be treated by adjusting the dosage of the antipsychotic medication or by
administering ancillary medications. Patients are monitored to ensure that they are not
displaying elevated levels of glucose, lipids, and cholesterol. Those problems can be treated by
changing medication dosages, altering diet, or encouraging patients to get more exercise. If a
patient suffers from serious side effects, the patient will be switched to a different antipsychotic
medication.
        Other side effects are rarer but more serious. Neuroleptic malignant syndrome is a
condition that triggers high body temperature, muscle breakdown, and kidney problems. It
usually occurs when a patient is given an initial dose of a first-generation antipsychotic. Another
dangerous side effect is cardiac arrythmia, which can result in sudden death. The medical staff
monitors for this condition by checking an electrocardiogram. The medical staff has the ability
to quickly move the patient to a nearby hospital if an intensive care setting is needed.
Antipsychotics also can trigger drug-induced parkinsonism, which is characterized by tremors
similar to those seen in Parkinson’s disease. That condition can be effectively treated through
the use of ancillary medications.
                                                 9
             Case: 14-14469     Date Filed: 05/27/2015    Page: 10 of 18


      Dr. Sarrazin believed that treatment with antipsychotics is appropriate for

Ruark on medical grounds. Antipsychotics are unlikely to cause side effects that

will prevent Ruark from communicating with his attorney or receiving a fair trial.

      Dr. Sarrazin’s written report details the treatment plan that will be

implemented should a court order that Ruark be involuntarily medicated. The staff

at Springfield will first present Ruark with a copy of the order and will try to

convince him to take an oral antipsychotic medication at the lowest effective dose.

If Ruark is willing to cooperate, he will be given Abilify, Geodon, Risperdal, or

Haldol. If he suffers from any side effects that are not relieved by adjunctive

medications, he will be switched to another antipsychotic. If Ruark is unwilling to

cooperate and must be forcibly medicated, Dr. Sarrazin will begin by administering

a test dose of 5 milligrams of Haldol. If Ruark develops neuromuscular side

effects during his treatment, he will be given other medications to treat those

adverse effects. If Ruark becomes agitated or combative during the involuntary

medication process, he will be given an injection of Lorazepam, a sedative.

      While Ruark is being involuntarily medicated, he will be “monitored for

possible development of diabetes or possible emergence of elevated serum lipids.”

The medical staff will check his weight and glucose level every month and monitor

his serum lipids every three months.




                                          10
             Case: 14-14469     Date Filed: 05/27/2015   Page: 11 of 18


      Dr. Gabriella Ramirez-Laon also testified. Dr. Ramirez-Laon works as a

psychologist at USP Atlanta. Dr. Ramirez-Laon testified that Ruark took

medication only sporadically since returning to USP Atlanta.

      Ruark also spoke for himself during the Sell hearing. At the conclusion of

the first part of the hearing on May 20, he expressed adamant opposition to any

involuntary medication and suggested that the Geodon that he previously took had

caused serious side effects:

             That is like rape. I never hurt nobody. I was thinking
             differently than they want me to think. I was taking the
             medicine when I had problems, I still wasn’t thinking the
             way they wanted me to think. They wanted me to take
             more, couldn’t walk down the hallway, lay in bed all
             hours of the day until I work again. I will not feel better,
             I will not talk to doctors any more if they do that. I
             barely not talk to them. I trusted Dr. Preston. She sat
             there today and lied.

Ruark reiterated his objections during the second part of the hearing.

      Ruark, through his counsel, also introduced excerpts from the Physician’s

Desk Reference (“PDR”) regarding treatment guidelines for various antipsychotic

drugs. These guidelines show that Geodon was approved by the Food and Drug

Administration (“FDA”) for target ranges between 20 milligrams and 100

milligrams twice per day. In the PDR, dosages of greater than 80 milligrams twice

per day are “not generally recommended.” Ruark argued that these excerpts show

that the maximum dosages that Dr. Sarrazin requested permission to administer are


                                         11
              Case: 14-14469    Date Filed: 05/27/2015    Page: 12 of 18


greater than those approved by the FDA. Dr. Sarrazin testified, however, that there

are instances when psychiatrists may prescribe medications off-label. Sometimes

literature will be published after FDA approval showing that a greater dosage than

what is prescribed in the PDR is medically appropriate.

      Ruark also presented evidence that he has a history of diabetes in his family.

Ruark argued this was relevant because elevated glucose levels are one side effect

of antipsychotic medications. When questioned about Ruark’s family history, Dr.

Sarrazin noted that some second-generation antipsychotics, such as Abilify and

Geodon, do not appear to have any effect on the patient’s glucose level and

restated that Ruark’s glucose levels will be closely monitored.

D.    The District Court’s Order

      On February 25, 2014, the magistrate judge issued a report and

recommendation (“R&R”) concluding that the government met its burden under

Sell and that involuntary medication of Ruark should proceed. Ruark filed

objections to the R&R.

      In an October 2, 2014 order, the district court overruled Ruark’s objections,

adopted the R&R in full, and granted the government’s motion for involuntary

medication.

      Ruark timely appealed. On October 14, 2014, following a motion by

Ruark’s defense counsel and a hearing, the district court stayed its authorization of


                                         12
               Case: 14-14469       Date Filed: 05/27/2015      Page: 13 of 18


involuntary medication pending this appeal. However, the district court denied

defense counsel’s motion as to the remainder of its order, which transferred Ruark

back to Springfield for psychiatric treatment (though not involuntarily medication).

Ruark is currently incarcerated at Springfield.

                                     II. DISCUSSION

A.     Sell v. United States and United States v. Diaz

       In Sell v. United States, the Supreme Court held that “an individual has a

constitutionally protected liberty interest in avoiding involuntary administration of

antipsychotic drugs—an interest that only an essential or overriding state interest

might 

–79, 123 S. Ct. at 2183 (internal quotation

marks omitted). As noted above, when the government seeks to have a defendant

involuntarily medicated in order to restore him to competency, a court must

consider four factors: (1) whether the government has an important interest in

proceeding to trial; (2) whether involuntary medication would significantly further

that interest; (3) whether involuntary medication is necessary to further the

government’s interest; and (4) whether involuntary medication is medically

appropriate, meaning that it is in the patient’s best medical interest in light of his

medical condition. 

123 S. Ct. at 2184-85.5


       5
         Before even applying the Sell factors, a district court first should consider whether
involuntary medication is appropriate on the ground that the defendant poses a danger to himself
or others. 

, 123 S. Ct. at 2186 (2003). Involuntary medication is permitted
                                               13
               Case: 14-14469      Date Filed: 05/27/2015       Page: 14 of 18


       In United States v. Diaz, this Court held that a defendant awaiting trial on

charges of armed robbery and firearms offenses could be involuntarily medicated

to restore him to competency to stand 

. In Diaz, a defendant

suffering from paranoid schizophrenia, incarcerated at Springfield under the care

of, among others, Dr. Sarrazin, refused to take antipsychotic medication. 

The government moved for involuntary medication under Sell, which the

district court granted.

       This Court held that the district court did not clearly err in ordering

involuntary medication of the defendant. 

The defendant Diaz argued

that the government could not carry its burden on the second and third Sell factors.

the wealth of evidence available from the Sell hearing about

defendant Diaz, we stated: (1) “the district court did not clearly err because the

evidence strongly demonstrates a substantial likelihood that anti-psychotic

medication will restore Diaz to competency and is not substantially likely to cause

side effects that would interfere with Diaz’s ability to assist counsel,” 

and (2) “[g]iven the ample evidence . . . that [defendant] has . . . refused to take

medication, and that alternative treatments . . . would be ineffective, the district




in those situations under Washington v. Harper, 

, 

(1990). Here, the
BOP has determined that Ruark does not pose a danger so long as he remains in a penal setting.
Thus, involuntary medication under Harper would not be appropriate at this time.
                                              14
              Case: 14-14469     Date Filed: 05/27/2015    Page: 15 of 18


court did not clearly err in concluding that . . . involuntary medication is necessary

to render [defendant] competent to stand trial.” 

B.    Applying Sell and Diaz Here

      The four-factor test of Sell was met by the government here. The

government introduced sufficient evidence to show that the district court’s order of

involuntary medication was not clear error. We review the Sell factors separately.

      First, the district court must find that important governmental interests are at

stake. 

, 123 S. Ct. at 2184. “[B]ringing to trial an individual

accused of a serious crime” is an important governmental interest. 

accused of, among other crimes, armed robbery of a bank and a retail market.

These are serious crimes.

      Ruark rightly argues that special circumstances may lessen the importance

of that interest. See 

may diminish the risks attached to

releasing an accused criminal without punishment. So too may the length of

pretrial detention if an individual serves time equal to or greater than his likely

sentence if found guilty. See 

caveats do not apply to Ruark’s case.

There is no evidence as to his likelihood of civil commitment, and the crimes with

which he was charged carry mandatory sentences well in excess of the his current

pretrial detention. Under the facts of this case, the district court did not err in

finding important governmental interests at stake.


                                           15
              Case: 14-14469     Date Filed: 05/27/2015    Page: 16 of 18


      Second, the district court must conclude that involuntary medication will

significantly further those concomitant state interests. 

123 S. Ct. at

2184. It must find that administration of the drugs is substantially likely to render

the defendant competent to stand trial. On the evidence presented at Ruark’s Sell

hearing, the government met this burden too. Both Dr. Sarrazin and Dr. Preston-

Baecht testified that, in their experience and according to studies, 75 to 80 percent

of patients who are involuntarily medicated are restored to competency. In Diaz,

this Court relied on precisely this evidence to conclude the district court did not

clearly err as to the second Sell 

. We hold the same here.

      Within the second factor, the government must also show 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, 539 U.S. at 

-85. Here, too, the government satisfied that burden. Dr. Sarrazin testified

as to the limited side effect of the particular, intended antipsychotic medication as

well as to the procedures for closely monitoring those side effects.

      Third, the district court must conclude that involuntary medication is

necessary to further the government interests. 

123 S. Ct. at 2185.

Specifically, the district court must find that any alternative, less intrusive

treatments are unlikely to achieve substantially the same results. That is precisely


                                           16
             Case: 14-14469     Date Filed: 05/27/2015   Page: 17 of 18


what the district court did here, supported by ample evidence. Dr. Preston-Baecht

noted that paranoid schizophrenia has a strong biological basis and that Ruark is

unlikely to recover in the absence of medication. She testified that the variety of

non-medication alternatives, such as the competency restoration group, counseling,

and psychotherapy, would all be ineffective because of Ruark’s persistent

paranoia.

      Fourth, as we have said, the district court must also conclude that

administration of the drugs is medically appropriate. 

government has

presented an individualized treatment plan that details the drugs to be used and the

relevant dosage ranges. Both Dr. Sarrazin and Dr. Preston-Baecht testified that the

administration of antipsychotics would be medically appropriate in this case. Dr.

Sarrazin, further, proposed a detailed treatment plan describing the procedure to be

followed if a court orders Ruark to be involuntarily medicated. Additionally, Dr.

Sarrazin testified that any dosage going beyond the range described in the PDR

reflects the learned experience of the medical community with regard to dosing.

      The magistrate judge and district court were in the best position to make

factual findings based on evidence presented at these two separate hearings. As

this Court held in Diaz, we review these factual findings under the second, third,

and fourth prongs of the Sell analysis only for clear error. 

-

31. The record precludes our finding clear error in the decision of the district court


                                          17
             Case: 14-14469     Date Filed: 05/27/2015   Page: 18 of 18


not to upend the medical analysis offered in these hearings. This decision is

necessarily limited to the facts of this case and the evidence presented before the

magistrate judge and district court. Additionally, the only issue before this Court is

Ruark’s involuntary medication. At this time, there is no claim seeking release

from Springfield, release from BOP custody, or for dismissal of the indictment

against Ruark.

      As the Supreme Court noted in Sell (and this Court repeated in Diaz), the

instances in which involuntary medication is appropriate “may be rare.” 539 U.S.

at 

. But where, as here, the government presents clear and

convincing evidence that each of the four Sell requirements have been met, the

district court does not clearly err in granting the government’s motion.

                                III. CONCLUSION

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

2, 2014.

      AFFIRMED.




                                         18