USA v. Mark Ruark

Filing

Opinion issued by court as to Appellant Mark Joshua Ruark. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

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Date Filed: 05/27/2015

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[DO NOT PUBLISH]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)

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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, 539 U.S. 166, 123 S. Ct. 2174 (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. Id. at 180–81, 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, 630 F.3d 1314, 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).

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S. Ct. at 2184–85.2 This Court reviews the first Sell factor de novo, and we review
the remaining three Sell factors for clear error. United States v. Diaz, 630 F.3d
1314, 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. Diaz, 630 F.3d at 1332.
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).

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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
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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 PrestonBaecht, 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. PrestonBaecht 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
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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. PrestonBaecht 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
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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

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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,

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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. Firstgeneration 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.
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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.

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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
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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
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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 overcome.” 539 U.S. at 178–79, 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. Id. at 180–81, 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. Sell, 539 U.S. at 183, 123 S. Ct. at 2186 (2003). Involuntary medication is permitted
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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 trial. 630 F.3d at 1335. In Diaz, a defendant
suffering from paranoid schizophrenia, incarcerated at Springfield under the care
of, among others, Dr. Sarrazin, refused to take antipsychotic medication. Id. at
1318-25. 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. Id. at 1335. The defendant Diaz argued
that the government could not carry its burden on the second and third Sell factors.
Id. Looking to 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,” id. at 1332;
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, 494 U.S. 210, 110 S. Ct. 1028 (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.
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court did not clearly err in concluding that . . . involuntary medication is necessary
to render [defendant] competent to stand trial.” Id. at 1335-36.
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. Sell, 539 U.S. at 180, 123 S. Ct. at 2184. “[B]ringing to trial an individual
accused of a serious crime” is an important governmental interest. Id. Ruark is
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 id. Civil commitment 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 id. But these 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.
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Second, the district court must conclude that involuntary medication will
significantly further those concomitant state interests. Id. at 181, 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. PrestonBaecht 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 factor. 630 F.3d at 1332. 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 181, 123 S. Ct.
at 2184-85. 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. Id. at 181, 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
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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. Id. Here, the 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. Diaz, 630 F.3d at 133031. The record precludes our finding clear error in the decision of the district court
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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 180, 123 S. Ct. at 2184. 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.

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