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United States v. Zarei

United States District Court, D. Arizona

June 10, 2015

United States of America, Plaintiff,
Erfan Zarei, Defendant.


NEIL V. WAKE, District Judge.

Before the court is the Government's motion to involuntarily medicate Defendant Erfan Zarei (Doc. 66). At the conclusion of an evidentiary hearing and oral argument on May 29, 2015, the court announced it would deny the Government's motion. This Order explains the reasons for that decision.


On November 12, 2013, a grand jury indicted Zarei on one count of communicating a threat to injure another in interstate commerce, in violation of 18 U.S.C. § 875(c). (Doc. 11.) The Government alleges that in early October 2013, Federal Bureau of Investigation Special Agent Jason Larsen, who had previously interviewed Zarei for an unrelated investigation in 2005, started receiving "a series of telephone calls" from Zarei. (Doc. 3 at 3.) Special Agent Larsen was able to identify Zarei based on his voice and the number from which the calls originated. (Id. ) In one voicemail, left on October 4, 2013, Zarei allegedly told Special Agent Larsen, "I need your supervisor's number. I'm going to call this (unintelligible) mother fucker. I'm going to kill them, OK? Go tell your supervisor. This is ERFAN ZAREI. I'm going to kill you mother fuckers all." (Id. at 3-4.) Although it is not charged in the indictment, the Government's Complaint also alleges that around the same time, Zarei made "a series of threatening telephone calls" to the co-owners of a car dealership where he had previously worked. (Id. at 4.) In those calls, Zarei allegedly threatened to kill both co-owners and to rape the sister, wife, and mother of one of them. (Id. )

On January 3, 2014, the court referred Zarei to Deborah J. Lewis, Ph.D., for a psychological examination, pursuant to 18 U.S.C. §§ 4241, 4247. (Doc. 27 at 1.) Dr. Lewis concluded in a February 16, 2014 report that Zarei suffered from delusional disorder, persecutory type. (Doc. 29 at 10.) The court conducted a competency hearing on April 15, 2014, and ruled the next day that, in the language of 18 U.S.C. § 4241(a), Zarei was "suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense." (Doc. 38 at 1.) Zarei was thereafter evaluated by staff at the Federal Medical Center in Butner, North Carolina, to determine whether he could be restored to competency. (Id. (citing 18 U.S.C. § 4241(d)).)

In a report dated November 7, 2014, Dr. Alton Williams, a staff psychiatrist who examined Zarei at Butner, indicated that Zarei was still incompetent as a result of his delusional disorder but "vehemently denied having a mental illness and related that any such claim was part of a plot to keep him silent and interfere with his ability to expose the alleged perpetrators." (Doc. 48 at 5, 7-8.) Dr. Williams believed there was "a substantial probability [Zarei's] competency [could] be restored in the foreseeable future if treated with psychotropic medication." (Id. at 8.) Zarei, however, refused to take the suggested medication. (Id. ) Without "antipsychotic and/or other medication as indicated for his underlying condition, " Dr. Williams wrote, "Mr. Zarei is substantially unlikely to attain the ability to fully appreciate the nature and consequences of the proceedings against him or to assist properly in his defense." (Id. ) Dr. Williams and the Government therefore requested authorization to medicate Zarei involuntarily so he could stand trial. (Id.; Doc. 66 at 1.) Specifically, Dr. Williams proposed a regimen of "long acting injections" of antipsychotic medications, administered once every two to four weeks. (Doc. 48 at 9, 17.)

Dr. Williams' report details the potentially quite serious side effects those medications can cause. The report mentions three potential drugs, all of which "appear to have equal efficacy in the treatment of psychotic symptoms": haloperidol, fluphenazine, and risperidone. (Id. at 9.) The former two are "first generation, " or "conventional, " medications; the latter is a "second generation, " or "atypical, " drug. (Id. )

Approximately thirty percent of patients on first-generation medications experience "neurological side effects called extrapyramidal symptoms, " including parkinsonism ("stiffness, shuffling, tremor, akinesia, slow movements, stooped posture and difficulty walking"), akathisia ("an inner sense of restlessness and urge to move continually... reflected by rocking, constant motion of feet, and crossing and uncrossing of legs"), and dystonic symptoms ("sustained excessive contraction of muscle groups, " such as "rolling back of the eyes and arching of the neck" and "arching of the body in the neck, jaw, back, and tongue producing twisting abnormal postures"). (Id. at 10-11.) Each of these sets of symptoms can be treated to varying degrees with other medications, some of which in turn cause their own side effects. (Id. at 10-11.) In addition, long-term use of first-generation antipsychotic drugs can lead to "late-appearing, often irreversible" tardive syndromes. (Id. at 11.) For example, ten to twenty percent of patients display tardive dyskinesia, which "consists of rhythmic involuntary movements of the face (grimacing or frowning), lips (smacking, pursing, puckering), jaw (chewing and clenching), tongue (protruding or rolling), eyes (blinking or spasms)" and occasionally "the limbs (twitching or worm-like movements), the trunk (racking or twisting), and the diaphragm (gasping or forceful breathing)." (Id. ) One to two percent of users experience "sustained muscle contraction of the face, eyes, neck, limbs, back or trunk, " and eighteen to forty percent suffer "persistent symptoms of akathisia." (Id. ) In rare instances, first-generation antipsychotic medications can lead to sudden death or neuroleptic malignant syndrome. (Id. at 12.)

The same extrapyramidal and tardive side effects can result from second-generation medications, though at lower rates. (Id. at 13.) There can also be insomnia, agitation, anxiety, runny nose, and headache. (Id. ) Unlike users of first-generation drugs, patients who consume risperidone are at an "intermediate risk for the development of metabolic syndrome, " which "consists of abdominal obesity, insulin resistance, high blood pressure, and serum lipid abnormalities." (Id. at 13-14.) Physicians can manage metabolic syndrome with drug and non-drug interventions, but left untreated, "this syndrome can lead to significant medical complications such as the development of diabetes and medical illness associated with increased serum lipids, particularly cardiovascular disease." (Id. at 14.)

In his report, Dr. Williams also discusses the effectiveness of the three proposed drugs. A 2007 "retrospective chart review of patients who had undergone involuntary treatment, without randomization or a placebo control arm, " found that seventeen of those twenty-two defendants "had improved sufficiently to be considered restored to competency status." (Id. at 15.) Another study, published in 2012, examined all defendants who had been involuntarily medicated in federal criminal cases during a six-year period. (Id. at 16.) Out of 132 total defendants, seventy-nine percent were restored to competency. (Id. ) Finally, Dr. Williams opined that Zarei's "delusions and disorganized thinking prevents him from viewing himself as mentally ill, " with the result that psychotherapy alone is unlikely to restore him to competency. ( See id. at 16-17.) Dr. Williams testified consistent with his report at the May 29, 2015 evidentiary hearing.


The Supreme Court held in Sell v. United States, 539 U.S. 166 (2003), that "the Constitution permits the Government involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, " but only in "rare" circumstances. 539 U.S. at 179-80. To obtain an involuntary-medication order under Sell, the Government must show, by clear and convincing evidence, that (1) " important governmental interests are at stake, " (2) "involuntary medication will significantly further those concomitant state interests, " (3) "involuntary medication is necessary to further those interests, " and (4) "administration of the drugs is medically appropriate, i.e., in the patient's best medical interest in light of his medical condition." Id. at 180-81 (emphasis in original); United States v. Ruiz-Gaxiola, 623 F.3d 684, 692 (9th Cir. 2010) (adopting clear-and-convincing standard).

Here, there can be no doubt that the Government's interests are important. The Government provided an audio recording of five voicemails Zarei left on Special Agent Larsen's phone, all of which exhibit incoherent anger and profanity. At only one point does Zarei say anything that can be interpreted as a threat to kill Special Agent Larson. But the Government must take seriously any risks to its agents' safety, and it acted prudently in bringing charges against Zarei. Zarei stipulated at the May 29, 2015 Sell hearing that the Government had satisfied the first of Sell 's four prongs.

The "Government's interest in bringing to trial an individual accused of a serious crime is important." Sell, 539 U.S. at 180. In the Ninth Circuit, the "appropriate starting point for the analysis of a crime's seriousness" is "the likely guideline range." United States v. Hernandez-Vasquez, 513 F.3d 908, 919 (9th Cir. 2008). This analysis calls for consideration of both "the current charge against [a] Defendant" and "other relevant factors such as [a] Defendant's prior offenses, ...

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