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United States v. Grape

December 11, 2008


On Appeal from the United States District Court for the Western District of Pennsylvania, (D.C. No. 05-cr-00033E), District Judge: Honorable Maurice B. Cohill, Jr.

The opinion of the court was delivered by: Fisher, Circuit Judge.


Argued September 29, 2008

Before: FISHER, CHAGARES and HARDIMAN, Circuit Judges.


John Douglas Grape suffers from a long history of serious mental illness and is currently incarcerated pending trial on two charges involving the receipt and possession of child pornography. The District Court initially found Grape incompetent to stand trial on these charges, and the Government correspondingly wished to medicate him involuntarily pursuant to Sell v. United States, 539 U.S. 166 (2003), to render him competent. The District Court agreed with the Government and ordered Grape forcibly medicated following a Sell hearing. The District Court's order was stayed and Grape filed this interlocutory appeal, claiming that the Government failed to meet its burden of proof on the first two factors of the four-factor test laid out in Sell: (1) whether the Government had advanced sufficiently important interests to justify forcible medication, and (2) whether involuntary medication was substantially likely to restore Grape to competency. Id. at 180-81. However, Grape subsequently assaulted a corrections officer, and the Government then medicated him involuntarily on account of his dangerousness pursuant to Washington v. Harper, 494 U.S. 210 (1990). The District Court later deemed Grape competent. Grape wishes to pursue this appeal because the Government intends to use the District Court's original Sell order should Grape again become incompetent. We find that the Government has presented sufficiently important interests to involuntarily medicate Grape, and that the administration of medication to Grape is substantially likely to render him competent to stand trial. For the reasons set forth in further detail below, we will affirm the District Court's order.


On July 12, 2005, a federal grand jury returned a two-count indictment against Grape, charging him with: (1) receiving visual depictions of minors engaging in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2), and (2) knowingly possessing visual depictions of minors engaging in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(4)(B). These charges arose out of Pennsylvania state allegations that between December 2004 and May 2005 Grape brought minors to his bedroom and showed them child pornography while attempting to molest them.

A. Pre-Sell Hearing

Grape's first signs of serious mental illness emerged during his ten-year stay in prison, following a 1993 arrest and conviction for the attempted rape of a male minor. Soon after Grape's incarceration in 1995, he was diagnosed with depression but remained mentally stable otherwise. However, beginning in 2000, Grape experienced his first psychotic episode and prison medical staff consequently diagnosed him between then and his 2004 release with paranoid schizophrenia, among a number of other mental disorders. Notably, Grape has a history of noncompliance with prescribed medication, often refusing to take it entirely, dating back to his first imprisonment.

Since Grape's arrest on his current charges, he has been subjected to numerous psychological evaluations. On September 6, 2005, the District Court granted Grape's first motion for a competency hearing, and ordered it to be preceded by a psychological evaluation complete with a prepared report. Because Grape previously filed a notice of insanity defense, the Government filed its own motion for psychiatric examination in response, and on September 16, 2005, the District Court granted the Government's motion to determine if Grape was insane at the time of the offense. As a result of these orders, between November 2 and December 1, 2005, Grape was evaluated at the Metropolitan Correctional Center, in New York, New York ("MCC-NY").

On January 4, 2006, MCC-NY examining psychologist Cristina Liberati, Ph.D., filed a report based on her observations during Grape's stay. Ultimately, she diagnosed Grape in her report as follows: rule-out malingering;*fn1 alcohol abuse; rule-out schizophrenia, paranoid type; and rule-out pedophilia.*fn2 Because of Grape's lack of cooperation, she could not definitively diagnose his illness or assess his competency to stand trial.

The District Court granted Grape's second motion for a psychological evaluation on February 6, 2006, and on April 5, 2006, Grape was admitted for evaluation at the Metropolitan Correctional Center in Chicago. Dr. Jason Dana issued his report from this evaluation period on June 23, 2006, in which he expressed frustration with Grape's lack of cooperation and questioned the validity of his psychotic symptoms. Dr. Dana diagnosed Grape with: pedophilia; alcohol dependence; malingering; and rule-out psychotic disorder. Similar to Dr. Liberati, Dr. Dana ultimately was unable to determine Grape's competency to proceed to trial and could offer no opinion on Grape's sanity at the time of the offense.

The District Court held a competency hearing on July 20, 2006, and issued an order in response, finding Grape incompetent. Grape was then remanded to the U.S. Medical Center in Springfield, Missouri ("Springfield") for continued psychological evaluation and treatment to begin upon his September 7, 2006 arrival. The District Court set a hearing for Grape pursuant to Sell, and thereby ordered Grape's treating doctors to submit a report detailing his diagnosis, the type and dosage of medicine to be administered to him, potential side effects, the appropriateness of the medication, and why less intrusive alternatives were not available.

On February 15, 2007, Dr. Christina Pietz, Ph.D., a forensic psychologist, and Dr. Robert Sarrazin, M.D., the Chief of Psychiatry at Springfield, submitted a report to the District Court regarding their assessment of Grape. In the report, Drs. Pietz and Sarrazin stated that Grape suffers from paranoid schizophrenia and antisocial personality disorder and was mentally incompetent to stand trial at that time. They believed antipsychotic medication would restore Grape to competency, and discussed available medications and their side effects, as well as the overall process and rates of success in restoring competency.

Meanwhile, prior to the June Sell hearing, Dr. Carlos Tomelleri, a psychiatrist at Springfield, conducted an examination pursuant to Harper*fn3 on May 15, 2007. Dr. Tomelleri found that Grape was severely mentally ill, diagnosed him with paranoid schizophrenia, and acknowledged that his threatening behavior indicated potential danger to others. However, Dr. Tomelleri conceded that Grape's inappropriate behavior could be adequately managed by the conditions of his confinement at that time. Dr. Tomelleri concluded that Grape therefore could not be involuntarily medicated on the grounds that he was a danger to himself or others under Harper, but agreed that medication was in Grape's best interest.

B. Grape's Sell Hearing

On June 26, 2007, the District Court held a Sell hearing to determine whether it could authorize the involuntary medication of Grape. The Government presented Dr. Pietz and Dr. Sarrazin as witnesses via video conference from Springfield. Grape also appeared via video conference from Springfield. Grape presented no witnesses.

Dr. Pietz testified that over the course of a few months, she saw Grape several times a week. She believed Grape suffers from paranoid schizophrenia, as demonstrated through his auditory hallucinations, responses to internal stimuli, inappropriate display of emotion, and paranoia. Further, she disputed the prior diagnoses that Grape was malingering, testifying that he was unable to maintain a logical thought process, or showed "cognitive slippage," which is very difficult for a patient to fake, and that he may pretend his mental illness is less severe than it is. Dr. Pietz testified that Grape would benefit from taking antipsychotic medicine for his schizophrenia to "stabilize his mood[,] . . . [diminish his] attending to internal stimuli, . . . and restore his competency." However, Dr. Pietz deferred to Dr. Sarrazin on the specific plan for medicating Grape. Dr. Pietz admitted that she believed that if Grape were not in custody, he could present a danger to himself or others. She agreed that his mental state declined during his stay in Springfield, that his symptoms would likely stay consistent without medication, and that residing in a locked unit would have adverse effects on his mental condition.

Dr. Sarrazin testified second and, given his limited meetings with Grape, relied heavily on Dr. Pietz's observations in reaching his conclusions. Dr. Sarrazin believed that Grape suffers from paranoid schizophrenia and antisocial personality disorder, though he had not seen him hallucinate or respond to internal stimuli, and that Grape's condition did not improve between his February 2007 evaluation and the June 2007 Sell hearing. Dr. Sarrazin testified in detail about medicating Grape, and opined that "there is a substantial probability that with antipsychotic medications . . . Grape will be restored to competency to stand trial." Specifically, Dr. Sarrazin hoped medication would help treat Grape's symptoms of disorganized, delusional, and psychotic thought.

Dr. Sarrazin reviewed the different types of antipsychotic medications available for Grape generally, comparing first- and second-generation medicines.*fn4 He described the treatment available to Grape if he were to voluntarily accept oral medication, expressing a preference for prescribing oral second-generation antipsychotics. However, presuming that Grape would continue to refuse medical treatment, Dr. Sarrazin proposed a plan for his involuntary medication. He recommended treating Grape with a first-generation antipsychotic medication called haloperidol,*fn5 which is available in oral, and short- and long-acting injectable forms. If Grape refused to take the oral medicine, Dr. Sarrazin proposed starting with a short-acting injectable form, which he would administer daily, not to exceed a week at the maximum. He hoped that once medicated and "de-escalate[d]" after taking the short-acting injectable drug, Grape would choose to cooperate and take his medicine orally from that point. Because haloperidol also comes in long-acting injectable form, Dr. Sarrazin would inject Grape with that if the first week of daily short-acting injections did not render him cooperative. Other oral antipsychotic medications could be administered while the long- acting injectable medication was still potent. Dr. Sarrazin believed Grape would have to be medicated for a minimum of four to six months.

Practically, the forcible medication would happen in the following manner. Medical center nursing staff would first give Grape a chance to take medicine orally; if he refused, they would administer the medicine via an injection. To do so, the nurses would restrain Grape's hands through his food slot, open his cell door, inject him with the medication, leave the cell, and then remove the handcuffs through the food slot. If Grape refused to submit to hand restraints, the nurses would come with a lieutenant, and even a four-cell boot team if necessary. The lieutenant and boot team would open the door and restrain Grape's hands and legs, the nurses would then enter and give the injection (usually in the buttocks), someone from the medical staff would examine Grape for injury, and then the team would leave. A lieutenant would videotape the entire event according to procedure.

Dr. Sarrazin believed "the medications would not have side effects that would significantly inhibit [Grape's] ability to be competent for his trial, [or] to interact with his attorney." If possible side effects such as sedation, lightheadedness, or others occurred, the doctors would no longer deem Grape competent to proceed with his trial and would make changes to his treatment. Other potential side effects include: extrapyramidal side effects ("EPS"), which involve feelings of stiffness; feeling as though one's feet must keep moving (tardive dyskinesia); dry mouth; diabetes or changes in blood glucose levels; involuntary movements of the tongue and mouth; or neuroleptic malignant syndrome, a more serious side effect that affects less than one percent of those treated and causes the body not to be able to regulate its own temperature. These side effects, especially neuroleptic malignant syndrome, EPS or stiffness, and tardive dyskinesia, which could be permanent, are less common in second-generation antipsychotics than in first-generation ...

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