US v. Basit Sheikh

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 5:13-cr-00305-BO-1. Copies to all parties and the district court/agency. [999838733] [15-4616]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4616

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BASIT JAVED SHEIKH, a/k/a Abdul Basit,
Defendant – Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:13-cr-00305-BO-1)

Argued:

May 12, 2016

Decided:

June 1, 2016

Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.

Affirmed by unpublished opinion. Judge Shedd wrote the opinion
in which Judge Wilkinson and Judge Motz joined.

ARGUED: Joseph Bart Gilbert, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.
Phillip
Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
ON BRIEF: Thomas P. McNamara,
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant.
John Stuart Bruce,
Acting United States Attorney, Jennifer P. May-Parker, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.

2

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SHEDD, Circuit Judge:
Based on his alleged attempt to join al-Nusrah Front, a
foreign terrorist organization designated by the Secretary of
State as an alias for the terrorist group al-Qa’ida, the United
States charged Basit Javed Sheikh in a single-count indictment
with violating 18 U.S.C. § 2339B. 1 After Sheikh underwent two
separate

pretrial

competency

examinations,

the

district

court

concluded that he is incompetent to stand trial and ordered him
hospitalized
based

on

to

attempt

Sheikh’s

competency

psychiatric

restoration.

evaluation

Thereafter,

and

refusal

to

cooperate with treatment, the United States moved for permission
to

involuntarily

medicate

him

to

restore

competency.

In

accordance with Sell v. United States, 539 U.S. 166 (2003), the
court conducted a hearing on the United States’ motion, during
which

three

medical

experts

testified.

The

court

thereafter

determined that involuntary medication is appropriate, but it
stayed

the

order

pending

Sheikh’s

anticipated

interlocutory

appeal, which is the matter now before us. For the following
reasons, we affirm.

1Section

2339B(a)(1) provides in pertinent part: “Whoever
knowingly provides material support or resources to a foreign
terrorist organization, or attempts or conspires to do so, shall
be fined under this title or imprisoned not more than 20 years,
or both. . . .” The statute was amended in 2015 to change the
statutory maximum from 15 to 20 years, but Sheikh was indicted
in 2013, and he faces a 15-year statutory maximum.
3

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I
The parties agree that Sheikh suffers from schizophrenia
and is incompetent to stand trial unless he is medicated. “The
question

of

when

the

government

may

involuntarily

administer

psychotropic drugs to a defendant for the purpose of rendering
him competent to stand trial entails a difficult balance between
the

defendant’s

interest

in

refusing

mind-altering

medication

and society’s interest in bringing the accused to trial. The
Supreme Court recognized the weighty concerns on both sides of
this balance in Sell, noting that while individual defendants
possess
interest

a

significant
in

antipsychotic
important

avoiding
drugs,

interest

so

in

constitutionally
the
too

unwanted
does

protecting

the

protected

liberty

administration

government

through

possess

application

of

of
an
the

criminal law the basic human need for security.” United States
v.

Chatmon,

718

F.3d

369,

373

(4th

Cir.

2013)

(internal

punctuation altered).
To resolve this question, courts apply a four-part test
established by Sell. Under this test, the government must prove
each of the following: (1) important governmental interests are
at stake and special circumstances do not sufficiently mitigate

4

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those interests; 2 (2) involuntary medication will significantly
further these interests by making it substantially likely to
render the defendant competent to stand trial and substantially
unlikely to have side effects that will interfere significantly
with the defendant’s ability to assist counsel in conducting a
trial

defense;

(3)

involuntary

medication

is

necessary

to

further these interests and less intrusive means are unlikely to
achieve

substantially

administration
defendant’s

of

best

the
is

drugs
medical

same
medically

interests

results;

and

appropriate

in

light

of

(4)

the

and

in

the

his

medical

condition. Sell, 539 U.S. at 180-81.
We have previously recognized that Sell orders “are a tool
that must not be casually deployed, for forced medication is a
serious intrusion upon the integrity of the individual and the
effects

of

such

medication

upon

body

and

mind

are

often

difficult to foresee.” Chatmon, 718 F.3d at 374. To minimize the
risk of an erroneous Sell decision, “we have set a deliberately
high

standard

for

the

government

to

satisfy

before

it

may

forcibly medicate solely to render an inmate competent to stand
trial.” United States v. Watson, 793 F.3d 416, 420 (4th Cir.
2“While

the ultimate burden of proving an important interest
in prosecution always remains with the Government, we look to
the defendant to demonstrate that the special circumstances of
his case undermine the Government’s interest once it is
established that he stands accused of a serious crime.” United
States v. Mikulich, 732 F.3d 692, 699 (6th Cir. 2013).
5

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2015). Thus, when an issue involves fact-finding by the district
court, we require the government to prove facts by clear and
convincing evidence. Id. Additionally, we have emphasized that
in evaluating the government’s case for involuntary medication
under

Sell,

the

focus

must

be

specifically

directed

on

the

defendant: i.e., the test is “not whether a proposed treatment
plan is likely to work in general, but whether it is likely to
work as applied to a particular defendant.” Id. at 425.
Because the first Sell factor involves a legal question, we
review the district court’s ultimate decision on that factor de
novo and any subsidiary factual determinations for clear error.
United States v. White, 620 F.3d 401, 410 (4th Cir. 2010). We
review the remaining three Sell factors – which are factual in
nature - for clear error. Id.
II
At

the

Sell

hearing,

the

United

States

presented

three

witnesses, each of whom was qualified as an expert: Dr. Brianna
Grover,
Generally
suffers

Dr.

Angela

speaking,
from

Walden-Weaver,
these

and

witnesses

schizophrenia,

his

3At

Dr.

Alton

testified
condition

Williams. 3

that
will

Sheikh
likely

the time of their evaluation of Sheikh, Dr. WaldenWeaver was a forensic psychologist at FMC-Butner, Dr. Williams
was an FMC-Butner staff psychiatrist, and Dr. Grover had a
Masters degree in clinical psychology and was engaged in an
internship at FMC-Butner as part of her doctoral education.
6

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deteriorate over time without treatment, his lack of cooperation
has

hampered

attempts

involuntarily

to

medicated

treat

with

him,

and

anti-psychotic

he

should

medication.

be
The

United States also introduced the 15-page forensic evaluation
prepared by these witnesses, which detailed their diagnosis of
Sheikh, their attempts to treat him, and their recommendation of
involuntary medication. Sheikh cross-examined the United States’
witnesses but did not present any other witnesses.
In the Sell order, the district court began its analysis by
summarizing

the

controlling

legal

witnesses’

testimony

principles.

The

and

court

explaining

then

prefaced

the
its

application of the Sell test by noting that the “crux of this
case

is

whether

the

government

has

a

sufficiently

important

interest in prosecuting Mr. Sheikh such that interference by
forced

medication

interest

is

circumstances

with

his

justified,
weighing

constitutionally

as

measured

against

the

protected

against

any

asserted

liberty
special

important

governmental interests in bringing him to trial.” J.A. 149.
Addressing the first Sell factor, the court found that the
crime charged is serious because it involves terrorism and, if
convicted, Sheikh faces a 15-year maximum sentence. The court
thus held that “there is no doubt of the government’s important
interest in bringing Mr. Sheikh to trial.” Id. at 149-50. The
court then correctly recognized that special circumstances can
7

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mitigate

the

considered

the

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United
fact

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States’
that

important

Sheikh

had

interest,

been

in

and

custody

it
for

approximately 23 months. The court noted that 23 months “is not
an insignificant amount of time in custody” as a general matter,
but it found that 23 months “is not significant in light of . .
. the estimated sentences” Sheikh faces if convicted. Id. at
151.
The court further considered as a special circumstance the
fact that Sheikh would likely be recommended for involuntary
civil

commitment

under

18

U.S.C.

§ 4246

if

involuntary

medication was not ordered. 4 Noting, for that reason, that the
chance that Sheikh would be released into the community and the
United

States

would

lose

its

ability

to

prosecute

him

is

“minimal,” J.A. 151, the court concluded that the possibility of
civil commitment weighs against the United States’ prosecution
interest.
commitment
that

However,

the

possibility

interest,

court

also

concluded

“alone

does

not

particularly

given

the

that

the

sufficiently
nature

of

the

civil

mitigate
charges

here.” Id. at 152.
Turning to the second Sell factor, the court found that the
record “convincingly demonstrates” that the United States proved

4Dr.

Walden-Weaver testified that if Sheikh is not
medicated, she would recommend his evaluation for § 4246 civil
commitment.
8

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that

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the

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administration

of

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the

drugs

would

be

substantially

likely to render Sheikh competent to stand trial and that the
drugs

were

substantially

unlikely

to

have

side

effects

that

would significantly interfere with his ability to assist in his
own

defense.

J.A.

152.

The

court

pointed

to

Dr.

Williams’

testimony that antipsychotic drugs, including injectable Haldol,
are the “normal course of treatment for psychotic disorders,
specifically schizophrenia, and enjoy high rates of success.”
Id. The court acknowledged that it is “impossible to predict the
occurrence of side effects with 100% accuracy,” but it noted
that Dr. Williams’ testimony “established that the side effects
are rare and most are treatable.” Id. The court further stated
that

“the

experts

contingency
including

plans

at
to

decreases

medications

to

FMC-Butner
address

in

manage

.

any

medication
side

.

side

.

reported

effects

dosage,

effects,

use
or

several

that
of

arise,

adjunctive

treatment

with

alternative antipsychotic medication.” Id.
Regarding the third Sell factor, the court found that the
United States proved that involuntary medication is necessary to
further its interests and less intrusive means are unlikely to
achieve substantially the same results. The court credited Dr.
Williams’ testimony that Sheikh’s inability and/or unwillingness
to

communicate

therapists,

with

made

anyone

at

alternative

the

hospital,

treatments
9

including

unlikely

to

his
be

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The

court

also

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found

that

medication

is

the

most

effective treatment for schizophrenia, but Sheikh has refused to
take medication voluntarily.
Finally, on the fourth Sell factor, the court found that
the United States proved that its proposed involuntary treatment
is medically appropriate. The court acknowledged that different
antipsychotic

drugs

may

have

different

side

effects

and

different success rates, but it credited Dr. Williams’ testimony
that antipsychotics are a typical treatment for schizophrenia
and that Haldol was medically appropriate in Sheikh’s case. As
the court explained: “The rates of side effects testified to by
Dr.

Williams

inappropriate,

do

not

make

particularly

administration
given

the

thereof

expert

medically

testimony

that

established that any adverse side effects that arise would be
promptly

treated

or

addressed

with

medication

changes.”

J.A.

154. The court also specifically addressed the individualization
of the protocol to Sheikh, discussing Dr. Williams’ testimony
that Haldol was the most appropriate drug because Risperdol,
which

has

advantages,

requires

ongoing

laboratory

testing

to

which Sheikh will not consent.
Having thus concluded that the United States met its burden
under

Sell,

the

court

ordered

involuntary

medication

with

conditions tailored to Sheikh’s case. As noted, the court stayed
its order to permit Sheikh to pursue this appeal.
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III
In challenging the Sell order, Sheikh contends that the
government failed to establish three of the four Sell factors. 5
Considering
Sheikh’s

the

factors

contention

out

that

the

of

order,

government

we

initially

failed

to

reject

meet

its

burden of proving the second and fourth factors by clear and
convincing evidence. Based on our careful review of the parties’
arguments

and

the

record,

we

discern

no

clear

error

in

the

district court’s findings that (1) involuntary medication will
significantly further the United States’ prosecution interests
by making it substantially likely to render Sheikh competent to
stand trial and substantially unlikely to have side effects that
will

interfere

significantly

with

the

his

ability

to

assist

counsel in conducting a defense and (2) the administration of
drugs is medically appropriate and in his best medical interests
in light of his medical condition. 6 The court applied the proper

5Sheikh

does not challenge the district court’s finding on
the third factor – i.e., involuntary medication is necessary to
further the United States’ interests and less intrusive means
are unlikely to achieve substantially the same results. See
Brief for Appellant, at 19 (“The government has failed to
establish three of the four prongs required by Sell.”).
6The

United States notes in its brief that after the Sell
hearing,
prison
medical
staff
administered
two
separate
emergency doses of medicines because of Sheikh’s incoherent
yelling, acute agitation, and resistance to a scheduled cell
(Continued)
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legal principles and adequately explained its findings, which we
believe

are

supported

by

the

record.

See

Concrete

Pipe

and

Prods. of Cal., Inc. v. Construction Laborers Pension Trust for
S. Cal., 508 U.S. 602, 623 (1993) (explaining that the clearly
erroneous
‘definite

standard
and

committed’”);

“is

firm

significantly
conviction

Chatmon,

718

deferential,

that

F.3d

at

a
375

requiring

mistake

has

(explaining

a

been

that

a

district court commits clear error if it takes an erroneous view
of

the

controlling

legal

standard

or

makes

findings

without

properly taking into account substantial contrary evidence).
We now turn to the first Sell factor. Sheikh correctly does
not contest the district court’s determination that the United
States has an important interest in prosecuting him. In Sell,
the Court stated that the government’s “interest in bringing to
trial an individual accused of a serious crime is important,”
539

U.S.

recognized

at

180

that

(emphasis

“the

central

added),

and

we

consideration”

have
when

previously
determining

whether a particular crime is serious enough to satisfy this
factor

is

statute,

the

maximum

Chatmon,

718

penalty
F.3d

at

authorized
374.

by

Although

the
we

applicable
have

not

rotation. According to the United States, in both instances
Sheikh’s mental state partially improved, and no immediate side
effects were apparent.

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announced a “hard and fast rule,” our precedent establishes that
a crime carrying a statutory maximum of 10 years or more is
“serious” in this context. White, 620 F.3d at 410. Sheikh faces
a statutory maximum of 15 years, which unquestionably makes his
crime serious for purposes of the Sell test.
In

light

of

the

United

States’

important

prosecutorial

interest, Sheikh argues that the district court erred by failing
to conclude that the possibility of his civil commitment under
§ 4246 is a special circumstance that negates the United States’
interest.

As

indefinite

Sheikh

commitment,

explains,

he

functionally

“faces

the

a

sentence,

life

potential

of

through

civil commitment proceedings.” Brief for Appellant, at 25. For
this reason, Sheikh asserts that the United States “need not be
concerned that [he] will be released to the public.” Id. Sheikh
further

asserts

that

the

United

States

does

not

need

a

conviction against him to demonstrate the seriousness of the
crime or to deter others because “[m]uch publicity has resulted
from the government’s prosecutions throughout the United States
of others who have attempted to travel to Syria and Iraq based
on their distorted interpretation of the Islamic faith.” Id. at
26.
The Sell Court held that courts “must consider the facts of
the individual case in evaluating the Government’s interest in
prosecution. Special circumstances may lessen the importance of
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that interest.” 539 U.S. at 180. Moreover, the Court recognized
that

the

possibility

of

civil

commitment

may

lessen

the

government’s interest in prosecution, noting that a defendant’s
“failure

to

take

drugs

voluntarily

.

.

.

may

mean

lengthy

confinement in an institution for the mentally ill — and that
would

diminish

the

risks

that

ordinarily

attach

to

freeing

without punishment one who has committed a serious crime.” Id.
Continuing, however, the Court explained: “We do not mean to
suggest that civil commitment is a substitute for a criminal
trial.

The

Government

has

a

substantial

interest

in

timely

prosecution. And it may be difficult or impossible to try a
defendant

who

regains

competence

after

years

of

commitment

during which memories may fade and evidence may be lost. The
potential for future confinement affects, but does not totally
undermine, the strength of the need for prosecution.” Id.
The district court concluded that the possibility of civil
commitment
interest,

weighs
but

that

against

the

possibility

United
“alone

States’
does

not

prosecution
sufficiently

mitigate that interest, particularly given the nature of the
charges here.” J.A. 152. In making this determination, the court
tended

towards

the

assumption

that

Sheikh

will

be

civilly

committed if he is not involuntarily medicated, noting there is
“minimal” chance that he would be released into the community or
that the government would lose its ability to prosecute him.
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Sheikh

similarly

Pg: 15 of 17

frames

his

argument,

confidently

asserting that because of the possibility of civil commitment,
the

United

States

“need

not

be

concerned

that

[he]

will

be

released to the public.” Brief of Appellant, at 25. 7 However,
whether

Sheikh

is

likely

to

meet

the

requirements

for

civil

commitment if he is not involuntarily medicated is a matter that
has yet to be litigated, and the record before us understandably
does not provide much guidance to predict the outcome of such a
determination.

See

generally

Mikulich,

732

F.3d

at

699

(“A

defendant is not required to manifest an absolute certainty of
future civil confinement in order to undermine the Government’s
interest

in

prosecution.

However,

this

does

not

mean

that

uncertainty will carry the day.”) (emphasis in original).
Even if we assume for purposes of our decision that there
is a fair possibility of Sheikh being civilly committed if he is
not involuntarily medicated, we conclude that the United States’
prosecutorial interest is not sufficiently mitigated to preclude
involuntary medication. In White, we stated that in considering
the special circumstances issue, one pertinent factor is the
“nature of the crime,” and “[n]ot every serious crime is equally
serious.” 620 F.3d at 413, 419. In addition to the fact that
Sheikh faces a 15-year statutory maximum, which is a significant
7At

oral argument, Sheikh’s counsel stated that
confident Sheikh will, in fact, be civilly committed.
15

he

is

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punishment, we find that the United States has a particularly
strong interest in prosecuting this case based on the nature of
the crime charged.
“[T]he Government’s interest in combating terrorism is an
urgent objective of the highest order.” Holder v. Humanitarian
Law Project, 561 U.S. 1, 28 (2010). “Terrorism, whether real or
perceived, threatens our need for security,” United States v.
Onuoha,

---

F.3d

---,

---

(9th

Cir.

2016),

and

“[t]he

real

risks, the real threats, of terrorist attacks are constant and
not likely soon to abate,” Boumediene v. Bush, 553 U.S. 723, 793
(2008). The pertinent criminal statute - § 2339B - represents
“the

considered

providing

judgment

material

organization

—

of

support

even

Congress

to

a

seemingly

and

the

designated

benign

Executive

foreign

support

—

that

terrorist

bolsters

the

terrorist activities of that organization.” Holder, 561 U.S. at
36.
Given

the

prosecuting

importance

Sheikh,

possible

civil

interest.

Sheikh

we

the

cannot

commitment
is

of

agree

is

certainly

United

States’

with

sufficient
correct

that

interest

Sheikh
to
if

that

override
he

is

in
his

that

civilly

committed, he would not be released into the community. Although
that fact serves one aspect of the United States’ prosecutorial
interest, there is a more significant aspect that makes Sheikh’s
trial

important.

Specifically,
16

Sheikh’s

prosecution

for

the

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alleged conduct “conveys a message about its seriousness and its
consequences.” United States v. Bush, 585 F.3d 806, 815 (4th
Cir.

2009);

see

also

Onuoha,

---

F.3d

at

---

(“[G]eneral

deterrence for the benefit of society is served when a person is
convicted of a serious crime, thus deterring others from making
the same mistake.”). Sheikh attempts to downplay this interest,
arguing that the United States has prosecuted other individuals
for

similar

attempts

to

support

terrorist

organizations.

Regardless of any other similar prosecutions the United States
may have conducted, we are not persuaded that those prosecutions
diminish the importance of this one.
IV
We recognize that involuntarily medicating a defendant for
trial competency purposes is a “drastic resort,” White, 620 F.3d
at 422, and the instances in which such treatment is permissible
“may be rare,” Sell, 539 U.S. at 180. Given the importance of
the

United

States’

interest

in

prosecuting

this

case,

the

evidentiary record presented, and the district court’s careful
fact-finding, we conclude that this is one of those instances.
Accordingly, we affirm the Sell order.
AFFIRMED

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