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United States v. Cortez-Perez

September 10, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JOSE CORTEZ-PEREZ, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matter before the Court is the Motion (Doc. # 41) for an order to the Federal Medical Center, Butner, N.C., to involuntarily medicate for an additional four month period of commitment filed by Plaintiff United States of America.

BACKGROUND

On March 6, 2007, this Court entered an order granting the Plaintiff's Motion for an order to the Federal Medical Center, Butner, N.C., to involuntarily medicate the Defendant. The Court made the following findings:

The record in this case establishes by clear and convincing evidence that the Defendant suffers from schizophrenia; that the Defendant is not currently able to assist properly in his defense; and that the Defendant will not likely attain the capacity to proceed to trial without appropriate medication.

The conditions in Sell are applied when the court is seeking to determine whether involuntary administration of drugs is necessary to further the particular governmental interest in rendering the defendant competent to stand trial and not for a different purpose related to "the individual's dangerousness, or purposes related to the individual's own interests where refusal to take drugs puts his health gravely at risk." Sell, 539 U.S. at 182. The Government concedes that there is no evidence in this case to suggest an order of involuntary medication on the grounds of dangerousness and seeks an order for involuntary medication based only upon conditions set forth by the Supreme Court in Sell.

(1) "Important Governmental Interests are at Stake"

"The Government's interest in bringing to trial an individual accused of a serious crime is important. That is so whether the offense is a serious crime against the person or a serious crime against property. In both instances the Government seeks to protect through the application of the criminal law the basic human need for security." Sell, 539 U.S. at 180.

The Court must "consider the facts of the individual case in evaluating the Government's interest in prosecution." Id. The Government asserts an important governmental interest in prosecuting this Defendant with a serious criminal history accused of the crime of illegal re-entry. The Government asserts that a determination has been made that the security of the country in general and this District in particular depends upon the prosecution of individuals like this Defendant who have serious criminal histories and continue to enter the United States illegally.

Defendant asserts that his criminal history is old and that the Government's interest in prosecuting a sick man with fake documents is not significant. Defendant in this case is charged with being a deported alien found in the United States in violation of 8 U.S.C. § 1326. Because the Defendant has prior convictions, he is facing a 20 year maximum sentence and a guideline range of 100-125 months under the United States Sentencing Guidelines. Defendant does not contest the following convictions: (1) May 13, 2005; Southern District of California; illegal entry 8 U.S.C. § 1325; 30 months sentence; (2) January 14, 1998; California Municipal Court in Stockton; possession of controlled substance (cocaine base) for sale California Code § 11351; 6 years sentence; (3) October 2, 1998; Southern District of California; illegal entry 8 U.S.C. § 1325; 24 months sentence; supervised release revoked additional year in custody; (4) May 25, 1993 California Superior Court San Joaquin County; possession of controlled substance for sale California Code § 11351; 4 years sentence. Defendant does not contest the following dates of prior deportations: July 14, 2005; February 15, 1991; August 14, 1990; and May 23, 1989; and the following dates of removals: July 21, 2005; January 16, 2003; May 2, 1997; and May 23, 1989.

Defendant has a serious criminal history including multiple drug convictions and immigration convictions. Defendant has entered the country illegal on numerous occasions. Taking into consideration the seriousness of the charges in this case and the seriousness of the Defendant's prior record, this Court finds that important interests are at stake for the prosecution. Congress has determined that illegal re-entry after deportation subsequent to a felony conviction is a serious offense punishable by a term of imprisonment up to 20 years and the Government has a substantial interest in preventing this Defendant with a serious criminal history from continually illegally reentering the United States.

2) "involuntary Medication will Significantly Further Those [government] Interests";

The Court must find that "the administration of drugs is substantially likely to render the defendant competent to stand trial. At the same time, it must find that 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 181. The Court has examined the specific course of treatment proposed for this Defendant, the side effects and the medical appropriateness of the medications proposed. Guerrero, 426 F.3d at 1140.

The evaluators at the Federal Medical Center evaluated the Defendant in 2004/2005 and again in 2006. The evaluators concluded that Haldol would be an effective treatment and that Defendant has been treated with Haldol in the past with manageable side effects. The evaluators concluded that the Defendant "would be substantially likely to become competent to stand trial . . [and] that the proposed treatment would be substantially unlikely to cause side effects which would interfere with his ability to assist in his defense ." Forensic Evaluation at 6. Dr. Berger testified at the evidentiary hearing that the course of treatment proposed for this Defendant rendered him competent to stand trial in a four month period in 2004/2005. Dr. Berger testified that the side effects experienced by the Defendant consisted of mild stiffness of the muscles which responded to treatment. Dr. Berger testified that past experience is the most accurate predictor and that he believed that the Defendant would respond in a positive way to the same course of treatment. Dr. Gomez stated in his report that Defendant is suffering from Chronic Schizophrenia and becomes psychotic and disorganized when not following-up his medication. Dr. Gomez stated that in his opinion, the ...


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