                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                 File Name: 13a0128p.06

               UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT
                               _________________


                                               X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                -
                                                -
                                                -
                                                    No. 12-1660
          v.
                                                ,
                                                 >
                                                -
                       Defendant-Appellant. -
 STEPHEN GRAHAM-WRIGHT,
                                               N
                  Appeal from the United States District Court
             for the Western District of Michigan at Grand Rapids.
             No. 1:11-cr-00071-1—Robert J. Jonker, District Judge.
                          Decided and Filed: May 7, 2013
               Before: BOGGS, MOORE, and SUTTON, Circuit Judges.

                                 _________________

                                     COUNSEL
ON BRIEF: Scott Graham, SCOTT GRAHAM PLLC, Portage, Michigan, for
Appellant. Sean M. Lewis, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids,
Michigan, for Appellee.
    SUTTON, J., delivered the opinion of the court in which, BOGGS, J., joined.
MOORE, J. (pp. 10–17), delivered a separate dissenting opinion.
                                 _________________

                                      OPINION
                                 _________________

       SUTTON, Circuit Judge. Stephen Graham-Wright challenges the procedural and
substantive reasonableness of his sentence, complaining in particular about the district
court’s consideration of statements he made to a psychiatrist during a pretrial
competency examination and of the psychiatrist’s diagnosis that he was a pedophile. We
must affirm.




                                           1
No. 12-1660        United States v. Graham-Wright                                 Page 2


                                           I.

       In October 2010, Stephen Graham-Wright repeatedly directed his girlfriend’s
six-year-old sister to pose nude in photographs and videos. He also touched the young
girl’s genitalia on multiple occasions. When the girl’s parents became suspicious, they
alerted the police. Graham-Wright confessed, and the police found sexually explicit
pictures and videos of the girl on his cell phone and computer.

       After the police arrested Graham-Wright, his lawyer filed a motion under
18 U.S.C. § 4241 for a government-paid “in-custody examination regarding competency
and cognitive function.”     R. 14.   Graham-Wright asked that the results of that
examination be provided only to him. Section 4241 allows either party to request a
competency hearing, but it requires the results of any examination to “be filed with the
court with copies provided to the counsel for the person examined and to the attorney
for the Government.”       Id. §§ 4241(b), 4247(c).        The district court granted
Graham-Wright’s motion for an examination, but it denied his request that only the
defendant receive the results.

       A psychiatric examination was scheduled at the Metropolitan Correctional Center
in Chicago. Before the examination, staff informed Graham-Wright that the results
would “not [be] confidential” and would be provided to the prosecution and the court.
R. 25 at 1. Graham-Wright conferred with his lawyer before discussing any of the
details of the offenses and went forward with the examination. The psychiatrist found
him competent to stand trial but diagnosed him with pedophilia. Graham-Wright pled
guilty to one count of sexual exploitation of a child in violation of 18 U.S.C. § 2251(a)
and (e).

       Before sentencing, Graham-Wright objected to the inclusion of information from
the psychiatric examination in his pre-sentence report. In particular, the pre-sentence
report included the pedophilia diagnosis and the fact that he fantasized about having sex
with children. The guidelines generated a range of 360 months to life. Because
360 months was the statutory maximum, that figure became the top and bottom of the
No. 12-1660        United States v. Graham-Wright                                  Page 3


guidelines range. The district court sentenced him to 360 months, rejecting his request
for a downward variance.

                                           II.

                                           A.

       In attacking the procedural reasonableness of his sentence, Graham-Wright
claims that the district court should not have considered information from the psychiatric
examination in sentencing him because the court obtained that information in violation
of his Fifth Amendment right against self-incrimination. The examination, as an initial
matter, had nothing to do with the starting point for sentencing Graham-Wright: the
guidelines range. Even in the absence of an examination, Graham-Wright warranted a
360-month guidelines “range” for this offense, and he does not argue to the contrary.

       What Graham-Wright protests is the court’s consideration of information from
the examination in denying his request for a downward variance to 180 months. But
evidentiary inclusiveness is the order of the day at sentencing, a frame of reference as
likely to facilitate leniency as to impede it. The key question is reliability. Sentencing
hearings may include evidence otherwise inadmissible at trial so long as the evidence
is reliable. Roberts v. United States, 445 U.S. 552, 556 (1980). That is why the Rules
of Evidence do not apply at sentencing hearings. Williams v. New York, 337 U.S. 241,
251 (1949); see also United States v. Silverman, 976 F.2d 1502, 1509–14 (6th Cir. 1992)
(en banc). That is why the Confrontation Clause does not apply at sentencing. United
States v. Katzopoulos, 437 F.3d 569, 576 (6th Cir. 2006); see also United States v.
Hamad, 495 F.3d 241, 246–47 (6th Cir. 2007). And, of import here, that is why
Miranda generally does not apply at sentencing. A sentencing court may consider
“statements obtained in violation of Miranda, if they are otherwise voluntary” and
reliable. United States v. Nichols, 438 F.3d 437, 442 (4th Cir. 2006); accord Del
Vecchio v. Ill. Dep’t of Corr., 31 F.3d 1363, 1388 (7th Cir. 1994) (en banc); see also
Oregon v. Elstad, 470 U.S. 298, 307 (1985) (“[T]he Miranda presumption, though
irrebuttable for purposes of the prosecution’s case in chief, does not require that the
statements and their fruits be discarded as inherently tainted.”); cf. United States v.
No. 12-1660        United States v. Graham-Wright                                 Page 4


Jenkins, 4 F.3d 1338, 1345 (6th Cir. 1993) (permitting the use of illegally seized
evidence at sentencing). In the absence of coercion, excluding otherwise reliable
information from sentencing hearings would require probation officers to give Miranda
warnings before conducting presentencing interviews—a possibility rejected long ago.
See United States v. Davis, 919 F.2d 1181, 1186–87 (6th Cir. 1990). When all is said
and done, a sentencing judge’s inquiry is “broad in scope,” and it is “largely unlimited
either as to the kind of information he may consider, or the source from which it may
come.” United States v. Tucker, 404 U.S. 443, 446 (1972).

        Gauged by these modest limitations, Graham-Wright’s sentence was neither
procedurally unreasonable nor a violation of the Fifth Amendment privilege against self-
incrimination.   It was Graham-Wright, not the district court, who requested the
examination. Graham-Wright consulted with counsel just before discussing the details
of his offense and after being warned that the court would have access to the results of
the examination. Everything in the record suggests he voluntarily submitted to the
examination and spoke voluntarily during it. And nothing shows that the court
compelled him in either respect. Through it all, Graham-Wright and his counsel had
ample reason to undertake an examination (the results might have shown he was
incompetent to stand trial), and the district court had ample reason to know the results
of the test (ditto). This evidence was reliable, and the district court had discretion to
consider it.

        In arguing to the contrary, Graham-Wright invokes Estelle v. Smith, 451 U.S.
454, 468–69 (1981), which held that a state court violated a capital defendant’s right
against self-incrimination by relying on the results of an involuntary examination to
prove an aggravating factor. The italicized words confirm the limits of Estelle’s
domain.

        First, Estelle applies to capital sentencing proceedings, not all sentencing
proceedings. As the Supreme Court has subsequently explained, the holding of Estelle
was limited to “the ‘distinct circumstances’ of that case.” Buchanan v. Kentucky,
483 U.S. 402, 422 (1987) (quoting Estelle, 451 U.S. at 466). The Court has “never
No. 12-1660         United States v. Graham-Wright                                    Page 5


extended Estelle’s Fifth Amendment holding beyond its particular facts.” Penry v.
Johnson, 532 U.S. 782, 795 (2001). What was “distinct” and “particular” about Estelle?
It was a capital case in which “the ultimate penalty of death was a potential consequence
of what [Smith] told the examining psychiatrist,” 451 U.S. at 462, as the examination
results proved an aggravating factor that justified the death penalty and “on which the
State had the burden of proof beyond a reasonable doubt,” id. at 466.

        Nothing of the sort happened here. The examination did not go to an element of
the offense or to an aggravating factor at sentencing, much less to a justification for a
capital sentence. If “death is different,” Ford v. Wainwright, 477 U.S. 399, 411 (1986),
it follows that the difference runs in two directions—that it must be accounted for in
non-capital cases, that not all capital-sentencing requirements apply to all sentences.
This is one such requirement. Graham-Wright has not pointed to any federal appellate
decisions excluding the results of a psychiatrist’s examination from a non-capital
sentencing, whether based on Estelle or any other case. And a half-dozen courts of
appeals have rejected similar extensions. See Halley v. Thaler, 448 F. App’x 518, 522
(5th Cir. 2011) (“Plainly, [the defendant’s] case differs from Estelle in that it does not
involve a capital offense in which the jury must make a special finding regarding future
dangerousness.”); United States v. Jackson, 886 F.2d 838, 841 n.4 (7th Cir. 1989)
(“seriously question[ing] the rationale” of excluding evidence based on a Miranda
violation in a non-capital sentencing); Baumann v. United States, 692 F.2d 565, 576 (9th
Cir. 1982) (Estelle “is limited to the distinct circumstances of the bifurcated capital
proceedings presented in that case”); Lee v. Crouse, 451 F.3d 598, 606 (10th Cir. 2006)
(“Estelle is distinguishable because it was a capital case”); United States v. Delgado, 56
F.3d 1357, 1371 (11th Cir. 1995) (Estelle “applies specifically to capital sentencings”);
United States v. Byers, 740 F.2d 1104, 1112 (D.C. Cir. 1984) (en banc) (plurality
opinion) (Scalia, J.) (Estelle held the Fifth Amendment applied “[b]ecause the possible
consequence” of the defendant’s statements “was imposition of the death penalty”).

        Our own research reveals just one appellate decision applying Estelle in this
setting, United States v. Chitty, 760 F.2d 425 (2d Cir. 1985), and it is at least three steps
No. 12-1660        United States v. Graham-Wright                                   Page 6


removed from today’s case. In the course of a court-ordered psychiatric examination,
the defendant threatened the life of the Assistant United States Attorney.            The
government relied on the threats at sentencing as a ground for incarcerating Chitty “for
a very long time,” and the court of appeals ordered the statements suppressed. Id. at 430.
While we cannot deny that Chitty applied Estelle to a non-capital sentencing proceeding,
at least three features of the case marginalize its relevance here. First, Graham-Wright’s
key objection is to the district court’s use of his diagnosis, not to statements (let alone
threats) he made during the examination. Second, since Chitty, the Second Circuit has
made it clear that presentencing interviews do not always require Miranda warnings.
See United States v. Cortes, 922 F.2d 123, 127 (2d Cir. 1990). And third, the Chitty and
Estelle examinations were done involuntarily, which was not the case here and which
leads to our next point.

       Second, even if Estelle extended to non-capital sentencing proceedings, it
applies only to an involuntary psychiatric examination. Estelle, 451 U.S. at 468. Yet
Graham-Wright “initiate[d]” the idea of an evaluation. Id. He asked for a psychiatric
evaluation under 18 U.S.C. § 4241, a statute that does not provide for a defense-only
report. It is true that, at the hearing on the motion, Graham-Wright’s attorney indicated
that he wanted what § 4241 does not permit—for a government-paid psychiatrist to
perform the examination and to give the report only to the defense. The court denied
Graham-Wright’s request and ordered a report that would be distributed to both parties
and filed with the court.

       By contrast, it is worth noting, 18 U.S.C. § 3006A allows for government-paid,
defense-only reports if the defendant qualifies for in forma pauperis status. Perhaps
Graham-Wright’s counsel would have been wise to invoke § 3006A and perhaps the
court would have granted the request. Who can say? But none of this indicates that the
court initiated the evaluation or that it was somehow involuntary.

       Third, not only did Graham-Wright freely submit to the examination but his
statements to the psychiatrist were themselves voluntary, a far cry from the kind of
compelled testimony prohibited by the Fifth Amendment. No evidence shows the court
No. 12-1660          United States v. Graham-Wright                               Page 7


or anyone else coerced, intimidated or threatened him to speak during the examination.
Just the other way: Graham-Wright conferred with his attorney before he agreed to
discuss any of the details of his offense, and he was warned that his statements would
be given to the court. Cf. also Roberts, 445 U.S. at 560–61 (explaining that Miranda
“protect[s] persons who, exposed to [coercive] interrogation without the assistance of
counsel, otherwise might be unable to make a free and informed choice to remain
silent”). Those factors distinguish this case from Estelle, where it was not clear the
defendant’s lawyer was informed of, let alone participated in, the psychiatric exam, 451
U.S. at 471 & n.15, and from both Estelle and Chitty, where the defendants were not told
how the exams might be used, id. at 468; Chitty, 760 F.2d at 430–31.

       All of these limitations on the application of Estelle to this case also respect
United States v. Kennedy, 499 F.3d 547, 552 (6th Cir. 2007). It held that a sentencing
court did not violate a defendant’s privilege against self-incrimination when it drew an
adverse inference regarding the defendant’s future dangerousness from the defendant’s
refusal to undergo a psychiatric exam. Kennedy reasoned that, although Mitchell v.
United States, 526 U.S. 314, 324 (1999), prohibits sentencing courts from drawing an
adverse inference against a defendant’s silence when determining the facts of an offense,
Mitchell “does not limit the district court’s ability to consider a wide variety of
‘information concerning the background, character, and conduct’ of the defendant
in determining an appropriate sentence.”        Kennedy, 499 F.3d at 552 (quoting
18 U.S.C. § 3661).

       Today’s case is easier than Kennedy. The district court relied on real information
from a real psychiatrist after a voluntary examination. How strange to allow a
sentencing court to draw an adverse inference from the silence that results from refusing
to undertake a court-ordered examination yet to forbid any inferences from expert
testimony after a voluntary examination. No such oddity is required. The district court
permissibly considered the results from the examination in refusing to grant Graham-
Wright’s request for a downward variance.
No. 12-1660         United States v. Graham-Wright                                    Page 8


                                             B.

        Even if, for the sake of argument, the district court was incorrect, any error did
not prejudice Graham-Wright. As with other constitutional errors, self-incrimination
violations may be harmless. See Arizona v. Fulminante, 499 U.S. 279, 310 (1991)
(controlling opinion of Rehnquist, C.J.). At sentencing, we need not remand if, based
“on the record as a whole . . . the error did not affect the district court’s selection of the
sentence imposed.” Williams v. United States, 503 U.S. 193, 203 (1992).

        Just so here. The alleged constitutional violation had nothing to do with Graham-
Wright’s guidelines range. With or without a psychiatric examination, it would have
been 360 months. And he received a within-guidelines sentence of 360 months—not a
surprising outcome when the nature of the offense is taken into account. In denying
Graham-Wright’s request for a downward variance, the court relied on several factors,
most of which had nothing to do with the psychiatric examination. Most notably,
Graham-Wright had a history of sexually inappropriate behavior around children, which
was consistent, not at odds, with the examination. And the severe emotional trauma
Graham-Wright imposed on the victim and her family would have given any judge pause
before granting a downward variance. On this record, we can fairly assume that, even
without the psychiatric report, the district court would have imposed this within-
guidelines sentence.

                                             C.

        In challenging the substantive reasonableness of his sentence, Graham-Wright
claims the district court was obligated to grant his request for a downward variance.
No abuse of discretion occurred. See Gall v. United States, 552 U.S. 38, 51 (2007).
A 360-month sentence is lengthy, to be sure. But the sentence falls within the guidelines
range, making it presumptively reasonable. Rita v. United States, 551 U.S. 338, 347
(2007). Graham-Wright has not overcome that presumption. The district court
expressly considered all of the § 3553(a) factors and reasonably concluded that a
guidelines sentence was appropriate.
                                III.

For these reasons, we affirm.
No. 12-1660           United States v. Graham-Wright                                          Page 10


                                      __________________

                                           DISSENT
                                      __________________

         KAREN NELSON MOORE, Circuit Judge, dissenting. I respectfully dissent
because I believe that the district court relied on the examination report in violation of
Graham-Wright’s Fifth Amendment right against self-incrimination. Because my view
rests on an alternative understanding of what occurred at the district court, a full
recitation of the facts is necessary.

                                                   I.

         Prior to pleading guilty to sexual exploitation of a child, Graham-Wright filed
an unopposed motion for the district court “to order an appropriate examination of
competency and sanity” under 18 U.S.C. § 4241(a) to be performed by a private mental-
health professional. R. 14 (Mot. for Exam. at 1) (Page ID #20). At the motion hearing,
Graham-Wright’s attorney requested that any reports prepared pursuant to the motion
be provided to the defense only.1 R. 60 (Mot. Hr’g at 7) (Page ID #280). In essence,
Graham-Wright’s attorney argued that he had no basis without an examination either to
assert that Graham-Wright was incompetent to stand trial or to raise an insanity defense.
Concerned that his client might incriminate himself in an evaluation, Graham-Wright’s
attorney asked that any report from the examination be given solely to the defense to
determine if there were a basis to assert incompetency or insanity. If there were a basis
for either, Graham-Wright would then proffer the corresponding report to the
government and the court. If there were no basis, the report would remain with Graham-
Wright’s counsel alone. Graham-Wright’s attorney analogized that a defense-only report
would be “the same type of report that he would get if he had the money in which to hire
the expert.” R. 60 (Mot. Hr’g at 7) (Page ID #280).




         1
          In his brief in support of the motion, Graham-Wright requested that the examination be
conducted by a doctor of his choice wherever he was housed by the United States Marshals Service at that
time. R. 14-1 (Br. in Support at 2) (Page ID #23).
No. 12-1660        United States v. Graham-Wright                                      Page 11


       The district court asked Graham-Wright’s attorney if he was seeking a defense-
only report under 18 U.S.C. § 4241 or under 18 U.S.C. § 3006A. Id. Graham-Wright’s
attorney responded:

       [W]hether . . . it’s paid for by 3006 monies or not, . . . I believe . . . [it’s]
       appropriate under . . . the statute. I don’t know that the statute expressly
       provides that a defendant has a right to a separate defense report, but
       clearly the statute provides that the Court is authorized to order a report.
       And I think the discretion is given to the Court to determine the form of
       the report. And it is my interpretation of the statute that best practice
       would be to allow the defendant to have a report to work with himself.
       So I can’t point—I’ve looked through the statute as best I can from
       beginning to end, but I believe that’s—it’s the Court’s discretion.

Id. at 7–8 (Page ID #280–81). Although the government encouraged the district court
to adopt Graham-Wright’s proposed procedure for the handling of any report, the district
court expressed concern with permitting a defense-only report under 18 U.S.C. §§ 4241
and 4242. Nonetheless, the district court gave Graham-Wright one week to file a
memorandum in support of the proposed procedure.

       In his memorandum on the defense-only evaluation, Graham-Wright clarified
that the “‘sanity’ evaluation might be more properly referenced under 18 U.S.C. § 4242,”
even though Graham-Wright had “not provided notice pursuant to Federal Rule of
Criminal Procedure 12.2.” R. 18 (Supplement to Mot. for Exam. at 1) (Page ID #28).
Graham-Wright asserted that the basis for the district court’s discretion to authorize a
defense-only report was 18 U.S.C. §§ 4241(b) and 4242(a); yet, he acknowledged that
neither statute discusses whether a report can be provided to the defense alone. Graham-
Wright pressed that he was “entitled to such evaluation because his discussions during
the examination will impact his Fifth Amendment right against self-incrimination.” Id.
at 2 (Page ID #29).

       The district court denied Graham-Wright’s request for a defense-only evaluation
by a doctor of Graham-Wright’s choosing but granted the motion “to the extent of
ordering a psychiatric examination of Defendant under 18 U.S.C. § 4241 and § 4242.”
R. 20 (D. Ct. Order at 1) (Page ID #42). The district court explained that “[o]nce the
No. 12-1660         United States v. Graham-Wright                                 Page 12


question of competence to proceed is even potentially at issue, as it now is in this case,
the Court has its own independent interest in a professional evaluation of Defendant.”
Id. at 2 (Page ID #43). The district court recognized with regard to the issue of sanity
that although “the formal trigger for a § 4242 criminal responsibility examination has
not yet occurred because the defense has not filed formal notice of an intent to assert an
insanity defense[,] . . . the issue is under consideration.” Id. It went on to note that its
order was “without prejudice to any request by [Graham-Wright] under 18 U.S.C.
§ 3006A for a psychiatric expert and assistance in evaluating and responding to the
reports made under 18 U.S.C. §§ 4241-4242, if necessary.” Id. The court explained
further that such an evaluation “may be done locally, with the ensuing report sent only
to defense counsel, just as any other § 3006A expert.” Id. Thereafter, the district court
ordered “that a psychiatric or psychological examination of defendant be conducted
pursuant to 18 U.S.C. § 4241(b) and an examination on the question of sanity pursuant
to 18 U.S.C. § 4242(a) and that a psychiatric report be filed in accordance with 18
U.S.C. § 4247(c).” R. 21 (D. Ct. Order of Commitment at 1) (Page ID #44).

        Graham-Wright was taken to the Metropolitan Correctional Center (“MCC”) in
Chicago for an evaluation. At MCC,

        [Graham-Wright] was informed the usual doctor/patient relationship
        would not exist. He was told the information obtained from the
        evaluation was not confidential and would be summarized in a written
        report to the Court, with copies provided to both prosecuting and defense
        attorneys. He was also informed that staff from MCC Chicago could be
        subpoenaed at a later date to testify regarding his mental status.
        [Graham-Wright] acknowledged and appeared to understand this
        information.

R. 25 (Sealed Forensic Report at 1). When asked about his case during the evaluation,
Graham-Wright requested to speak with his attorney before proceeding. MCC arranged
for Graham-Wright to call his attorney. After speaking with his attorney, Graham-
Wright agreed to discuss details of the alleged offense. Id. at 12. MCC prepared reports
on Graham-Wright’s competency and sanity (collectively “the report”), which were
forwarded to Graham-Wright, the government, and the district court.
No. 12-1660        United States v. Graham-Wright                                Page 13


       Several months after the MCC evaluation, Graham-Wright pleaded guilty,
pursuant to a plea agreement, to one count of sexual exploitation of a child in violation
of 18 U.S.C. § 2251(a) and (e). R. 41 (Plea Agreement) (Page ID #93–99). Based on
an offense level of forty-two and a criminal history category of I, the Presentence
Investigation Report (“PSR”) calculated Graham-Wright’s Guidelines range to be
360 months to life imprisonment. However, the recommended sentence under the
Guidelines became 360 months of imprisonment because the offense carried a statutory
maximum term of thirty years. See 18 U.S.C. § 2251(e).

       Graham-Wright did not object to the Guidelines calculation but did object to the
PSR’s inclusion of portions of the report prepared by MCC. R. 48 (Objection to PSR
at 1) (Page ID #124) (“Defendant objects to Paragraphs 69 and 70 in their entirety. The
inclusion of statements made by Defendant during the examination procedure violates
Defendant’s Fifth Amendment right against self-incrimination. United States v. Nguyen,
962 F.Supp. 1221 (N.D. Cal. 1997). The inclusion of opinions based on the statements
creates the same problem. Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866 (1981).”).
Graham-Wright later moved for a variance based on 18 U.S.C. § 3553(a) and elaborated
further on his objection to the inclusion of portions of the report in the PSR (also
clarifying that the objection was to paragraphs 69–71). R. 52 (Mot. for Variance) (Page
ID #162). Graham-Wright requested that the entire report be attached as an appendix
to the PSR if the district court overruled his objection to the inclusion of paragraphs
69–71. R. 52-1 (Mem. in Support of Variance at 3) (Page ID #165).

       The district court overruled Graham-Wright’s objection to the inclusion of
paragraphs 69–71 but decided that it would append the entire report to the PSR. R. 59
(Sent’g Hr’g Tr. at 9–15) (Page ID #232–38). The district court denied Graham-
Wright’s motion for a variance and imposed a sentence of 360 months of imprisonment.
Id. at 34–43 (Page ID #257–66). Relevant here, the district court noted that Graham-
Wright “poses the maximum danger for recidivism” because of information contained
in the report. Id. at 40 (Page ID #263). Graham-Wright timely appealed, contending
that the inclusion of the report in paragraphs 69–71 of the PSR violates his Fifth
No. 12-1660         United States v. Graham-Wright                                 Page 14


Amendment right against self-incrimination and that his sentence is substantively
unreasonable.

                                            II.

        In Estelle v. Smith, the Supreme Court explained:

                A criminal defendant, who neither initiates a psychiatric
        evaluation nor attempts to introduce any psychiatric evidence, may not
        be compelled to respond to a psychiatrist if his statements can be used
        against him at a capital sentencing proceeding. Because respondent did
        not voluntarily consent to the pretrial psychiatric examination after being
        informed of his right to remain silent and the possible use of his
        statements, the State could not rely on what he said to Dr. Grigson to
        establish his future dangerousness.

451 U.S. at 468. In Buchanan v. Kentucky, 483 U.S. 402 (1987), the Court made clear
that this statement from Estelle v. Smith

        logically leads to another proposition: if a defendant requests such an
        evaluation or presents psychiatric evidence, then, at the very least, the
        prosecution may rebut this presentation with evidence from the reports
        of the examination that the defendant requested. The defendant would
        have no Fifth Amendment privilege against the introduction of this
        psychiatric testimony by the prosecution.

Buchanan, 483 U.S. at 422–23. The Court went on to hold in Buchanan that “[t]he
introduction of [a psychiatric evaluation] report for this limited rebuttal purpose does not
constitute a Fifth Amendment violation.” Id. at 423–24.

        The observations from Estelle v. Smith and Buchanan v. Kentucky make clear
that, when a defendant neither initiates/requests an evaluation nor presents any
psychiatric evidence, the defendant retains the Fifth Amendment privilege against self-
incrimination. In the present case, it is undisputed that Graham-Wright did not present
any psychiatric evidence. Therefore, this case turns initially on whether the evaluation
was requested or initiated by Graham-Wright; if so, the prosecution may use the report
for a “limited rebuttal purpose.” Buchanan, 483 U.S. at 423–24. Although typically this
No. 12-1660          United States v. Graham-Wright                                       Page 15


determination should be straightforward, the confusion generated at the district court as
to whose evaluation was ultimately conducted complicates the review of the record.

        The facts before this court lead me to the conclusion that the report prepared
under 18 U.S.C. § 4241 was not initiated or requested by Graham-Wright. Graham-
Wright’s attorney requested a defense-only evaluation by a private mental-health
professional to determine whether there was a basis to assert that Graham-Wright was
incompetent to stand trial or to raise an insanity defense. Although Graham-Wright’s
attorney referenced 18 U.S.C. § 4241, the record makes clear that the function of
Graham-Wright’s request was to receive a defense-only report and that the district court
understood the request as such.2 R. 60 (Mot. Hr’g Tr. at 7) (Page ID #280) (“[I]t would
be a defense report that I’m asking for.”); R. 18 (Supplement to Mot. for Exam. at 1–4)
(Page ID #28–31); R. 20 (D. Ct. Order at 1–2) (Page ID #42–43) (“Defendant’s Motion
is DENIED to the extent it requests the examination be performed at the location of
Defendant’s current detention, by a psychiatrist of Defendant’s choosing, and with
disclosure of the reports to Defendant and his counsel only”). The district court denied
Graham-Wright’s request for a defense-only report and, instead, ordered an evaluation
under § 4241 because “[o]nce the question of competence to proceed is even potentially
at issue, as it now is in this case, the Court has its own independent interest in a
professional evaluation of [Graham-Wright].” R. 20 (D. Ct. Order at 2) (Page ID #43).
Thus, I believe that the evaluation was conducted pursuant to the district court’s own
interest in assuring that Graham-Wright was competent, which supplanted Graham-
Wright’s request for a defense-only report. See 18 U.S.C. § 4241.

        The rationale behind the above-quoted passages from Estelle v. Smith and
Buchanan v. Kentucky buttresses my conclusion: a defendant should not be permitted
to rely in court on psychiatric evidence without the prosecution being permitted to rebut
such evidence. The Court has described Buchanan as holding that “if a defendant
requests a psychiatric examination in order to prove a mental-status defense, he waives


        2
         The better practice, as acknowledged by the majority, would have been to request an expert
under 18 U.S.C. § 3006A without reference to § 4241.
No. 12-1660        United States v. Graham-Wright                                 Page 16


the right to raise a Fifth Amendment challenge to the prosecution’s use of evidence
obtained through that examination to rebut the defense.” Powell v. Texas, 492 U.S. 680,
684 (1989). In the present case, Graham-Wright’s attorney did not “request[] a
psychiatric examination in order to prove a mental-status defense”; instead, the
examination was necessary to determine whether there was a basis for asserting
incompetency or presenting a mental-status defense. Such a request does not prompt the
need for rebuttal evidence under Buchanan. Simply put, Graham-Wright did not rely on
psychiatric evidence, so there was nothing to rebut. Our decision in White v. Mitchell,
also reflects this rebuttal-purpose rationale. 431 F.3d 517, 537 (6th Cir. 2005) (“Because
White initiated the psychiatric evaluation and because Dr. Sunbury’s report was used on
cross-examination for purposes of rebutting Dr. Smith’s findings, the Court's ruling in
Estelle [v. Smith] was not violated.”). Because the examination was court-ordered and
Graham-Wright did not rely on the evaluation to prove incompetency or a mental-status
defense, no rebuttal purpose was served by including the report in Graham-Wright’s
PSR.

       Our inquiry under Estelle v. Smith also looks to whether Graham-Wright
“voluntarily consent[ed] to the pretrial psychiatric examination after being informed of
his right to remain silent and the possible use of his statements.” 451 U.S. at 468. The
majority insists that “Graham-Wright freely submit[ted] to the examination” and that
“his statements to the psychiatrist were voluntary.” I do not doubt that this was true;
however, the evaluation was ordered to determine Graham-Wright’s competency and
sanity. Estelle v. Smith underscores the importance of Miranda’s command that
defendants be given “an awareness of the Fifth Amendment privilege and the
consequences of forgoing it.” 451 U.S. at 467 (emphasis added); see Gibbs v. Frank,
387 F.3d 268, 275 (3d Cir. 2004). Here, Graham-Wright was not given a Miranda
warning but was told that his statements “would be summarized in a written report to the
Court.” R. 25 (Sealed Forensic Report at 1). Presumably Graham-Wright and his
attorney understood this to mean that the report would be given to the district court to
use for the very purpose that the report was ordered and prepared: to determine Graham-
Wright’s competency and sanity. Thus, Graham-Wright’s submission to the examination
No. 12-1660       United States v. Graham-Wright                             Page 17


was voluntary to the extent that it was for the purpose of determining his competency
and sanity. These purposes are the consequence/possible use for which Graham-Wright
was warned. Because the district court’s actual use of the report was not limited to
determining Graham-Wright’s sanity and competency, its use violates Graham-Wright’s
Fifth Amendment right against self-incrimination. Therefore, I dissent.
