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 _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

STEPHEN GRAHAM-WRIGHT,

 Defendant-Appellant.

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No. 12-1660

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 selfincrimination. 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 GrahamWright’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 GrahamWright’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 withinguidelines 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

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).

__________________

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 mentalhealth 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 GrahamWright’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).
No. 12-1660 United States v. Graham-Wright Page 11

The district court asked Graham-Wright’s attorney if he was seeking a defenseonly 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. GrahamWright 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, GrahamWright 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 GrahamWright’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 GrahamWright “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 selfincrimination. 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

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.

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. GrahamWright’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 GrahamWright’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
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 GrahamWright’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.