                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 02-4294
THOMAS A. CURTIS,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
     for the Northern District of West Virginia, at Wheeling.
              Frederick P. Stamp, Jr., District Judge.
                            (CR-01-1)

                      Argued: February 28, 2003

                        Decided: May 7, 2003

      Before WIDENER and LUTTIG, Circuit Judges, and
          C. Arlen BEAM, Senior Circuit Judge of the
      United States Court of Appeals for the Eighth Circuit,
                     sitting by designation.



Affirmed by published opinion. Judge Widener wrote the opinion, in
which Judge Luttig and Senior Judge Beam concurred.


                             COUNSEL

ARGUED: Elgine Heceta McArdle, MCARDLE LAW OFFICES,
Wheeling, West Virginia, for Appellant. Robert H. McWilliams, Jr.,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee. ON BRIEF: Thomas E. Johnston, United States Attorney,
2                      UNITED STATES v. CURTIS
David J. Perri, Assistant United States Attorney, Wheeling, West Vir-
ginia, for Appellee.


                              OPINION

WIDENER, Circuit Judge:

                                   I.

   The defendant, Thomas Curtis, challenged the government’s intro-
duction of psychiatric testimony at his trial. Curtis argues that the
government’s introduction of such testimony was prohibited under
Federal Rule of Criminal Procedure 12.2(c) and violated his Fifth
Amendment right against compelled self-incrimination. We are of
opinion that Fed. R. Crim. P. 12.2(c) did not prohibit the government
from introducing psychiatric testimony to rebut Curtis’s defense that
he was more susceptible to entrapment than the average person due
to a head injury which he had suffered in 1997. We also are of opin-
ion that Curtis’s constitutional rights were not violated because Curtis
essentially waived his Fifth Amendment right against self-
incrimination by raising a mental status defense and offering psychi-
atric testimony in support of that defense.

                                  II.

   On January 8, 2001, a federal grand jury in the Northern District
of West Virginia returned a six count indictment. The indictment
charged a drug-related conspiracy from 1996 until 2001 under 21
U.S.C. § 846; three counts of distribution of the illegal drugs hydroco-
done, oxycodone and cocaine; one count of the unlawful use of a tele-
phone in the distribution of oxycodone; and one count requesting the
forfeiture of two automobiles. Curtis was convicted of all except
Count 3, the telephone count, and forfeiture was ordered for one auto-
mobile.

   On February 8, 2001, Curtis filed a notice that he intended to intro-
duce expert testimony relating to a mental disease, defect, or condi-
tion bearing upon his guilt pursuant to Federal Rule of Criminal
                       UNITED STATES v. CURTIS                        3
Procedure 12.2(b). Curtis concedes that he intended to introduce
expert testimony in support of his defense that he suffered from a
"cognitive dysfunction" which made him "more susceptible to entrap-
ment by government agents" and that this condition was caused by an
explosion resulting in a head injury he received while working in a
steel mill in 1997. In response, the government filed a motion request-
ing the court to order a psychological or psychiatric examination of
the defendant pursuant to 18 U.S.C. § 4242(a). On February 16, 2001,
the district court granted the government’s motion and ordered Curtis
transported to a facility for the purpose of conducting a psychiatric
and psychological examination to determine whether Curtis "was, at
the time of the alleged offenses, insane or if he had a mental condition
bearing upon the issue of guilt." On March 2, 2001, the court vacated
its February 16, 2001 order committing Curtis because the court dis-
covered that Curtis had been released on bond and was not in custody
when it had entered the order.

   On March 19, 2001, the court held an evidentiary hearing and
determined that the government may have the defendant examined by
a psychiatrist or a psychologist of its choice and stated that it might
reconsider the government’s request to have Curtis committed to
determine competency to stand trial at a later date.

   In August 2001, Dr. Jonathon M. Himmelhoch, M.D., interviewed
Curtis at the defense’s request and reported that Curtis was "suffi-
ciently brain damaged that he [could] [ ]not conform his behavior to
the requirements of law; moreover, he possesse[d] that character
structure which combined with cognitive injury, almost invariably
produces a man (or woman) who will do whatever he/she is asked."
He also stated that Curtis’s post-injury IQ dropped to around 60 from
a high school IQ of 110 and that such a drop indicates that Curtis suf-
fers from significant dementia. After receiving Dr. Himmelhoch’s let-
ter, the government filed a motion to require Curtis to submit to a
psychiatric and psychological examination to determine his compe-
tency to stand trial and insanity at the time of the offenses. The
defense objected arguing that it never indicated an intent to rely upon
an insanity defense and never indicated that Curtis was not competent
to stand trial.

  On October 16, 2001, the district court held a competency hearing
and found that Curtis was competent to stand trial. The defense filed
4                      UNITED STATES v. CURTIS
a motion in limine requesting that the government be prevented from
using incriminating statements made by Curtis to the government’s
mental health professionals during the competency evaluation. The
court found that the government could not "introduce the defendant’s
statements that are included in the competency report unless the
defendant uses the competency report as a defense."

   On December 17, 2001, a five-day jury trial commenced. During
the trial, the defense called a psychiatrist and a psychologist who both
testified that Curtis was more susceptible to persuasion or suggestion
than the average person due to the injury he suffered in 1997. Prior
to rebuttal, the government notified the court that it intended to call
the psychiatrist and the psychologist who had examined Curtis on its
behalf for his competency to stand trial and whose reports also
included opinions as to the validity of his claimed mental condition.
The defense argued that the introduction of these experts’ testimony
violated Curtis’s Fifth Amendment rights if the experts’ testimony
was based on incriminating statements made by Curtis. The district
court determined that any incriminating statements contained in the
experts’ reports could not be introduced at trial. However, the court
allowed the government experts to testify as to whether they believed,
based upon his history and the testing that had been done, that Curtis
possessed a mental condition making him more susceptible to entrap-
ment than the average person.

   Both the government-retained psychologist and psychiatrist testi-
fied that Curtis was pretending to have the mental condition. Dr.
Thomas R. Adamski, the government-retained psychiatrist, testified
that Curtis was "feigning being seriously ill, including having medical
problems." He further stated that Curtis was "faking bad" in terms of
his psychiatric symptoms and his I.Q. and that the MRI of Curtis’s
brain showed changes in the blood vessels caused from high blood
pressure not from blunt force trauma. Dr. Fred Jay Kreig, the
government-retained psychologist, testified that Curtis was "malinger-
ing, that he was faking mental problems."

  On December 21, 2001, the jury found Curtis guilty of all counts,
except the use of a telephone to commit a drug felony. The jury also
ordered forfeiture of one of the vehicles listed in the forfeiture count.
The district court sentenced Curtis to 63 months imprisonment on
                        UNITED STATES v. CURTIS                         5
each count, to run concurrently, which was to be followed by three
years of supervised release.

                                   III.

   The sole issue raised in this appeal is whether the government vio-
lated Curtis’s constitutional rights when it introduced psychiatric tes-
timony based on interviews conducted with Curtis pursuant to the
government’s motion for a competency evaluation. The government
argues a plain error standard should apply.1 See United States v.
Olano, 507 U.S. 725 (1993).

   Curtis argues that his conviction should be reversed because the
government violated his Fifth Amendment right against self-
incrimination when it used psychiatric testimony which was based in
part on statements Curtis made during his competency examination.
Curtis claims that the government’s use of the psychiatric testimony
was prohibited by Fed. R. Crim. P. 12.2(c) because Curtis did not
raise an insanity defense nor did he use the competency report as a
defense, as provided for in the district court’s order. In response, the
government contends that the government never introduced any
incriminating statements made by Curtis to the government-retained
mental health professionals. Instead, the government argues, it called
its own experts only to rebut Curtis’s diminished capacity defense,
which is not prohibited under Federal Rule of Criminal Procedure
12.2(c). We agree with the government.

  Federal Rule of Criminal Procedure 12.2(c)2 provides:
  1
    The government takes the position that the defendant must depend on
the plain error standard for his objection to any psychiatric testimony
offered by the government. While an extremely fine parsing of all the
papers, hearings, and rulings made during the case might lead to this con-
clusion, we think it is unnecessary and do not hold the defendant to the
requirements of plain error. The question of the psychiatric testimony
was discussed in detail from time to time throughout the trial, and we
have not been shown that the district court committed error at all in
admitting such testimony, much less plain error.
  2
    Federal Rule of Criminal Procedure 12.2(c) has been amended since
the parties’ reliance upon it. The corresponding 2003 provision is Fed.
6                       UNITED STATES v. CURTIS
     In an appropriate case the court, may upon motion of the
     attorney for the government, order the defendant to submit
     to an examination pursuant to 18 U.S.C. § 4241 or 4242. No
     statement made by the defendant in the course of any exami-
     nation provided for by this rule, whether the examination be
     with or without the consent of the defendant, no testimony
     by the expert based upon such statement, and no other fruits
     of the statement shall be admitted in evidence against the
     defendant in any criminal proceeding except on an issue
     respecting mental condition on which the defendant has
     introduced testimony.

Fed. R. Crim. P. 12.2(c) (2002) (emphasis added). We have reviewed
the government-retained experts’ testimony, in accord with the ruling
of the district court, and neither expert introduced incriminating state-
ments made by Curtis relating to his alleged drug dealing activity.
Instead, both experts’ testimony related solely to the validity of Cur-
tis’s alleged mental condition as to which he introduced psychiatric
testimony. Hence, the government complied with Fed. R. Crim. P.
12.2(c) and with the district court’s order not to introduce statements
made by Curtis which were contained in the competency report,
unless the defense introduced the competency report as a defense.

   Curtis argues that the government-retained experts should not have
been allowed to testify at all during the guilt phase of his trial. We
find no error in the introduction of the government-retained experts’
testimony. Curtis introduced testimony from his own psychiatrist and
psychologist to support his mental status defense. The government
then introduced psychiatric testimony in rebuttal. We have addressed
this issue and found that

     [w]hen a defendant asserts a mental status defense and intro-
     duces psychiatric testimony in support of that defense, he
     may face rebuttal evidence from the prosecution taken from

R. Crim. P. 12.2(c)(4)(A). We will consider the pre-amendment version
in rendering this decision because the parties relied upon it in the lower
court and in their briefing in this court and district court relied upon it
in allowing the experts to testify.
                       UNITED STATES v. CURTIS                       7
    his own examination or he may be required to submit to an
    evaluation conducted by the prosecution’s own expert. That
    defendant has no Fifth Amendment protection against the
    introduction of mental health evidence in rebuttal. In
    essence, the defendant waives his right to remain silent . . .
    by indicating that he intends to introduce psychiatric testi-
    mony.

Savino v. Murray, 82 F.3d 593, 604 (4th Cir. 1996) (citations omitted)
(emphasis added); see also Buchanan v. Kentucky, 483 U.S. 402, 422-
24 (1987) (noting that if defendant presents psychiatric evidence, the
government may introduce psychiatric evidence in rebuttal). Further-
more, Fed. R. Crim. P. 12.2(c) clearly provides that the government
may introduce expert testimony if the defendant has raised the issue
of his mental condition. Thus, under Fed. R. Crim. P. 12.2(c) and the
principles set forth by this court in Savino, the introduction of the
government-retained experts’ testimony in rebuttal did not constitute
error because the defense initially raised the issue of Curtis’s mental
status and introduced evidence which tended to support the issue.

  Accordingly, the judgment of the district court is

                                                         AFFIRMED.
