*1 triаls, Taylor’s argument against final remand including Kraus’s two the record- took place is that the record what ings of the closed-circuit testimony of Hale trial is not material to consideration of Riley. To the extent the district court disagree. petitions. Kraus’s We All of finds that other trial records or a written Kraus’s claims are fact-intensive and re transcript parts those of the trial that quire actually of what close examination implicate do not Kraus’s Confrontation transpired particular, the vid trial. helpful, may Clause claims would be testimony eo recordings of the Hale and exercise its discretion in directing their Riley gave during each trial are critical to production. his Confrontation claims. Clause Without videos, the district court could not
meaningfully Kraus’s Craig evaluate Craig,
claims. See 497 U.S. at (noting
S.Ct. 3157 that witness “compe-
ten[cy],” opportunity contempo a “full cross-examination,”
raneous ability participants
of trial to observe “the de (and America, body) meanor UNITED STATES of the witness as he or Plaintiff-Appellee, important she testifies” are “safeguards of reliability” when witness testifies via television). closed-circuit Evaluation of Stephen GRAHAM-WRIGHT,
Kraus’s ineffective assistance of counsel Defendant-Appellant. claim would also be foreclosed without a full surrounding record of the events No. 12-1660. plea first-degrеe PFO enhancement subsequent sentencing. And as we United States Court of Appeals, Jeffries, held in a sufficiency of the evi Sixth Circuit. claim arising
dence
like the one
7,May
Kraus’s second trial requires “a careful
review of
transcript.”
the entire trial
Jef-
fries,
Kraus seeks are not material to his they are vital.
claims —
IV. reasons,
For these judg- we vacate the
ments the district court entered in these
cases and remand both cases for further
proceedings consistent opinion. with this expand district court should the rec-
ords in both cases and reconsider the sub-
stantive constitutional claims identified COAs, including the Confrontation
Clause claim arising from the second trial
we have added to the opinion. COA this include, expanded record should at the least,
very the complete recordings video
I. 2010, Stephen In October. Wright repeatedly girlfriend’s directed his *3 six-year-old pose photo- sister nude graphs and videos. He also touched girl’s genitalia multiple occa- young girl’s parents sions. became When suspicious, they police. alerted the confessed, ham-Wright police and the sexually explicit pictures found and videos girl phone computer. of the on his cell and police After arrested Graham- lawyer Wright, his filed a motion under 18 government-paid 4241 for a “in- U.S.C. custody regarding competen- examination cy cognitive function.” R. 14. Gra- ham-Wright asked that the results of that provided qnly to him. Sec- request tion 4241 allows either party competency hearing, requires but results of “be filed with copies provided the court with to the coun- Graham, BRIEF: ON Scott Scott Gra- person sel for the examined and to the PLLC, Portage, Michigan, Appel- ham for attorney the Government.” Id. Lewis, lant. M. Sean United States Attor- 4247(c). 4241(b), §§ The district court Office, ney’s Rapids, Michigan, Grand granted Graham-Wright’s motion for an Appellee. examination, but it denied his only the defendant receive the results. BOGGS, MOORE, Before: SUTTON, Judges. Circuit A psychiatric examination was scheduled at Metropolitan Correctional Center in SUTTON, J., opinion delivered the examination, Chicago. Before in- staff which, BOGGS, J., joined. the court in Graham-Wright formed the results MOORE, 605-09), (pp. J. delivered a would “not confidential” [be] and would be seрarate dissenting opinion. provided prosecution and the court. R. 25 at 1. with conferred OPINION lawyer discussing any before of the SUTTON, details of the offenses and went forward Judge. Circuit psychiatrist with the examination. The Stephen Graham-Wright challenges the him competent found to stand trial but procedural and substantive reasonableness diagnosed pedophilia. him with sentence, complaining particular of his Wright pled guilty to one count of sexual about the district court’s consideration of exploitation of a child violation of 18 psychiatrist statements he made to a dur- 2251(a) (e). ing pretrial competеncy examination and psychiatrist’s of the diagnosis sentencing, that he was Before ob- jected a pedophile. We must affirm. to the inclusion of information from pre-sen- examination in his sentencing hearings. Williams v. New report. tence In particular, York, the pre-sen- 241, 251, tence pedophilia included the diag- (1949); L.Ed. 1337 see also United States nosis and the fact that he Silverman, fantasized about v. (6th 976 F.2d 1509-14 having sex Cir.1992) (en with children. guidelines banc). That why the Con- generated range of 360 months to life. frontation Clause does not apply sen- Because 360 months was statutory tencing. United States v. Katzopoulos, maximum, that figure top became the and 437 F.3d Cir.2006); see also bottom guidelines range. The dis- Hamad, United States v. 495 F.3d *4 trict court months, sentenced him (6th to Cir.2007). 360 246-47 And, import of rejecting for a here, downward vari- that why is Miranda generally does ance. not apply at sentencing. A sentencing may
court
consider “statements obtained
II.
Miranda,
in violation of
if they are other
wise voluntary” and reliable. United
A.
Nichols,
States v.
437,
(4th
438 F.3d
442
Cir.2006);
In attacking
procedural
the
rea
accord Del Vecchio v. Ill. Dep’t
sentence,
sonableness
of Corr.,
1363,
(7th
of his
Cir.1994)
Graham-
31 F.3d
1388
(en
Wright
banc);
claims that
Elstad,
see
Oregon
district
also
v.
should
298, 307,
not have
considered information U.S.
84 L.Ed.2d
(1985) (“[T]he
from
in
examinаtion
sen
Miranda presumption,
tencing him because
though
the court obtained
for purposes
irrebuttable
that
prosecution’s
in
chief,
information
violation
in
of his Fifth
case
not
does
re-
quire
against
that
self-incrimina
the statements and their fruits
examination,
tion. The
as an
initial
discarded as inherently tainted.”);
mat
cf.
ter, had nothing
Jenkins,
to do with
United States v.
starting
4 F.3d
(6th
point
Cir.1993)
for sentencing Graham-Wright:
(permitting the use of
guidelines
illegally
Even in
range.
seized
absence of
evidence at sentencing).
examination,
an
coercion,
the absence
of
warrant
excluding other-
ed a
guidelines
360-month
“range” for
wise reliable
information from sentencing
offense, and
hearings
he does not
require
to
argue
probation
officers
contrary.
give
Miranda warnings
conduct-
before
ing presentencing interviews —a possibility
What Graham-Wright protests is
rejected long ago. See United States v.
the court’s consideration of information
Davis,
919 F.2d
1186-87
Cir.
from the examination in denying his re
done,
When all is said and
a sen-
quest for a downward variance to 180
tencing judge’s inquiry is “broad in scope,”
months. But evidentiary inclusiveness is
and it
“largely
is
unlimited either as to the
day
order of the
at sentencing, a frame
kind of
may consider,
information he
likely
reference as
leniency
fаcilitate
the source
which
it may come.”
as to impede
key
it. The
question is relia
Tucker,
States v.
443, 446,
United
404 U.S.
bility. Sentencing hearings may include
(1972).
Wright, the death justified that factor aggravating the examination. quested had the the State and “оn which penalty discuss- just before counsel with consulted reasonable beyond proof burden after offense of his the details ing 466,101 doubt,” id. at S.Ct. have the court would being warned the examination. here. happened the results the sort Nothing access vol- suggests he record an element go in the Everything did examination factor an aggravating or to untarily submitted offense nothing justification And during it. less to voluntarily sentencing, much spoke different,” him If “death compelled capital sentence. shows 399, 411, 106 all, Wainwright, Through Ford v. respect. either (1986), it fol reason 91 L.Ed.2d ample had counsel and his Wright di runs two (the difference results lows to undertake accounted it must be incompetent rections —that he was might have shown *5 capital-sen cases, not all non-capital had trial), stand to all sen apply tencing requirements- of results to know the reason ample requirement. is one such This reliable, tences. (ditto). was evidence This test pointed Graham-Wright has not discretion court had district and the excluding appellate decisions federal it. consider from of a psychiatrist’s results contrary, Graham- to the arguing based sentencing, whether non-capital a Smith, 451 U.S. v. Estelle invokes Wright a half- And case. any other Estelle or 1866, L.Ed.2d 359 68 454, 468-69, 101 S.Ct. rejected simi- have appeals of courts dozen court violat that a (1981), held state which Thaler, 448 Halley v. See extensions. lar self- right against capital ed a defendant’s Cir.2011) (“Plain- (5th 518, 522 Fed.Appx. of the results relying on incrimination Es- differs from defendant’s] case ly, [the an prove involuntary capital a involve it does not in that telle italicized words The aggravating factor. a jury must make in offense which domain. of Estelle’s the limits confirm danger- regarding future finding special capital sentenc First, applies to Estelle Jackson, 886 ousness.”); v. States United pro sentencing all not ing proceedings, (7th (“seriously 838, n.4 F.2d 841 Cir. sub Supreme Court has As ceedings. excluding of the rationale” questioning] holding of Estelle explained, in a sequently violation aon Miranda based evidence circumstances’ ‘distinct v. to “the sentencing); limited Baumann was non-capital (9th Kentucky, 483 565, States, Buchanan v. Cir. 576 case.” 692 F.2d United 2906, 422, 1982) (Estelle 97 L.Ed.2d distinct 402, 107 “is limited Estelle, capital (1987) 451 U.S. the bifurcated (quoting 336 circumstances case”); Lee “nev in that presented Court has proceedings (10th Cir. Crouse, Amendment 451 F.3d Fifth Estelle’s v. er extended 2006) (“Estelle distinguishable because facts.” Pen beyond particular its holding Del case”); v. States Johnson, capital United ny v. Cir.1995) (2001). 56 F.3d gado, What L.Ed.2d sen- (Estelle capital specifically “applies Estelle? about “partiсular” “distinct” Byers, States teneings”); United “the ultimate case which capital It awas banc) (en (D.C.Cir.1984) 1104, 1112 F.2d conse potential was a penalty death J.) (Estelle (Scalia, held opinion) examining (plurality [Smith] what told quence of Fifth applied “[b]ecause the examination give and to the report possible consequence” of only the defen- to the defense. The court denied dant’s statements imposition “was request and ordered a death penalty”). that would be distributed to both parties and filed with the court.
Our own
just
research reveals
one ap
pellate
applying
decision
Estelle
contrast,
By
it is worth noting, 18
setting, United States v. Chitty, 760 F.2d
3006A allows for government-
(2d Cir.1985),
and it is at least three
paid, defense-only reports if the defendant
steps removed
today’s
ease.
In the
qualifies
forma pauperis
status.
'
course of a
court-ordered
ex Perhaps Graham-Wright’s counsel would
amination, the defendant
threatened the
have been wise to
invoke
3006A and
life of the Assistant United States Attor
perhaps the court
granted
have
ney.
government
relied on the
request.
say?
Who can
But none of this
threats at sentencing as a ground for in
indicates that the court initiated the evalu
Chitty
carcerating
very
time,”
“for
long
ation
that it was
involuntary.
somehow
and the
of appeals
ordered the state
Third,
only
did Graham-Wright
ments suppressed.
at 430.
Id.
we
While
freely submit to the examination
but
deny
cannot
that Chitty applied Estelle to
psychiatrist
statements to the
were them
non-capital
sentencing proceeding, at
voluntary,
selves
cry
a far
from the
kind
least three features of the case marginalize
compelled testimony prohibited by the
its
First,
relevance here.
Graham- Fifth Amendment. No evidence shows the
*6
Wright’s key objection is to the district
court or anyone
coerced,
else
intimidated
court’s use of his diagnosis, not to state
or threatened him-tо speak during the
(let
threats)
ments
alone
he
during
made
examination.
Just
the other way: Gra
Second,
the examination.
since Chitty, the
ham-Wright conferred with
attorney
his
Second Circuit has made it
pre-
clear that
agreed
before he
any
discuss
of the
sentencing interviews do not always re
offense,
details
and he was warned
quire Miranda warnings.
See United
that his statements
given
would be
Cortes,
States v.
123,
(2d
922 F.2d
127
Roberts,
court.
also
facts denying Graham- account. into ability to consider the district court’s variance, request for a Wright’s downward concerning thе of ‘information variety wide factors, most of relied several character, and conduct’ background, psychiat nothing to with which had do appropriate determining an defendant notably, Graham- Most ric examination. at 552 Kennedy, 499 F.3d sentence.” sexually inappro history Wright had a (quoting 18 U.S.C. children, which was around priate behavior Kennedy. than easier Today’s case is consistent, odds, the examina not at with informa- on real relied district court emotional trauma And the severe tion. a volun- after psychiatrist a real tion from imposed on the victim and strange allow a tary examination. How given judge family her would have infer- an adverse sentencing court to draw vari granting a downward before pause that results ence from the silence record, fairly can as we ance. On a court-ordered ex- refusing to undertake that, even sume without any inferences yet to forbid amination *7 would have im report, the district court voluntary testimony after a expert within-guidelines sentence. posed oddity required. is such examination. No permissibly considered The district court C. in refus- from the examination the results request ing grant the substantive challenging In a downward variance. sentence, Graham- of his reasonableness court obli Wright claims the district B. for a downward grant gated to occurred. of No abuse discretion if, argu of variance. for the sake Even 38, 51, States, 552 U.S. incorrect, any See v. United ment, Gall court was district (2007). A 169 L.Ed.2d Graham-Wright. prejudice did not error to be' errors, lengthy, is sure. 360-month sentence self- other constitutional As with guidelines falls But sentence within may harmless. be incrimination violations reason presumptively Fulminante, range, making 499 U.S. Arizona See States, (1991) Rita v. United able. 310, 113 L.Ed.2d C.J.). L.Ed.2d Rehnquist, (controlling opinion not overcome if, (2007). Graham-Wright has sentencing, need not remand At we district ex ... presumption. “on the as a whole based record 3553(a) § fac- all рressly considered court’s not affect the district error did tors and reasonably concluded that a Wright would proffer then the correspond- guidelines appropriate. sentence was ing report government and the
court. If basis, there were no the report III. would remain with Graham-Wright’s coun- sel alone. Graham-Wright’s attorney reasons, For these we affirm. analogized that a defense-only report would be “the type same report that he MOORE, KAREN NELSON Circuit get if he had the money in which to Judge, dissenting. (Mot. hire expert.” 7) R. 60 Hr’g at I respectfully dissent I because believe 280). (Page ID # that the district court relied the exami- The district asked Graham- nation in violation of Graham- Wright’s attorney if he seeking a de- Wright’s Fifth Amendment right against fense-only report under 18 U.S.C. self-incrimination. my Because view rests under 18 U.S.C. 3006A. Id. Graham- on an alternative understanding of what Wright’s attorney responded: court, occurred at the district a full recita- tion of the facts is necessary. [WJhether ... paid it’s for by 3006 mo- not,
nies or ... I ... believe ap- [it’s] I. propriate ... under the statute. I don’t know that the statute expressly provides Prior pleading guilty to exploi- sexual that a defendant has a to a sepa- child, tation of a Graham-Wright filed an rate defense report, but clearly stat- unopрosed for the motion district court “to provides ute that the Court is authorized order an appropriate com- to order a report. And I think the petency sanity” under 18 U.S.C. discretion given to the Court to deter- 4241(a) performed to be by a private mine the report. form the And it is (Mot. professional. mental-health R. 14 my interpretation of the statute that Exam, 1) (Page ID # At the practice best would be to allow the de- motion hearing, Graham-Wright’s attorney fendant to have a to work with requested any reports prepared pur- himself. So I can’t point looked —I’ve suant to the motion provided through the statute as I best can from (Mot. only.1 defense R. 60 Hr’g at beginning end, but I believe that’s— #280). (Page ID essence, it’s the discretion. Court’s Wright’s attorney argued he had no *8 basis without an examination either to 280-81). as- Id. at (Page 7-8 ID # Although sert that Graham-Wright was incompetent government encouraged the district to stand trial or to raise an insanity de- court to adopt Graham-Wright’s proposed fense. Concerned that his client might procedure for handling any report, of incriminate evaluation, himself an Gra- the district expressed court concern with ham-Wright’s attorney asked that re- permitting a defense-only report under 18 port from the given examination be solely §§ U.S.C. Nonetheless, and 4242. to the to defense determine if there were a gave Graham-Wright one basis to assert incompetency or insanity. to week file a memorandum in support of If there either, were a basis for Graham- proposed procedure. motion,
1. support In his brief in by ever he was housed the United States Mar- ham-Wright requested that (Br. the examination shals at Service that time. R. 14-1 be conducted a 2) doctor of Support 23). his choice wher- (Page at ID # an evalu- that such explained further defense-only on the In his memorandum the ensu- locally, with “may be done that ation Graham-Wright clarified evaluation, “ counsel, defense only more to might be sent ing ‘sanity’ evaluation the^ Id. expert.” § under 18 U.S.C. any other 3006A just as referenced properly Graham-Wright had Thereafter, ordered “that the district court 4242,” though § even pursuant examination psychological notice provided “not Federal psychiatric a R. 18 12.2.” Procedure to 18 pursuant Rule of Criminal be conducted defendant Exam, 1) (Page at 4241(b) (Supplement Mot. and an U.S.C. #28). that Graham-Wright asserted pursuant ID sanity question court’s discretion district 4242(a) the basis for the psychiatric that a and U.S.C. defense-only report was 18 a to authorize with filed accordance report be 4241(b) 4242(a); ac- yet, he §§ U.S.C. 4247(c).” (D. R. 21 Ct. Order discusses neither statute knowledged that 44). 1) ID # (Page at Commitment to the provided can be whether to the Met- taken Graham-Wright was Graham-Wright pressed alone. defense (“MCC”) in Center Correctional ropolitan evaluation to such “entitled that he was MCC, At Chicago for evaluation. during exami- his discussions because the usu- Fifth Amendment informed [Graham-Wright] his was impact will nation at 2 relationship Id. doctor/patient self-incrimination.” al 29). # information (Page ID told the ob- He was exist. n not confi- from evaluation tained court denied district summarized in and would dential be defense-only evalua- for a Wright’s Court, copies with report to the written by a doctor tion prosecuting de- provided both “to the the motion granted choosing but also informed attorneys. fense He examina- ordering extent of Chicago could staff MCC § 4241 under 18 U.S.C. tion of Defendant testify date to at a subpoenaed later (D. at Ct. Order § 4242.” R. [Graham- status. regarding his mental #42). ex- district court ID (Page appeared to acknowledged and Wright] compe- question of plained “[o]nce this information. potentially even understand proceed tence case, issue, in this the Court it now is as 1). (Sealed Report Forensic R. 25 pro- in a interest independent has its own during case asked about his When Id. at Defendant.” evaluation of fessional evaluation, requested to rec- The district court (Page ID # proceeding. attorney his before speak with sanity issue of ognized regard with to call arranged for MCC for a trigger “the formal although at- with his attorney. After speaking responsibility criminal § 4242 to discuss Graham-Wright agreed torney, defense yet because the has not occurred Id. at alleged offense. details intent to of an formal notice has not filed *9 reports on Graham- prepared MCC defense[,] issue ... the insanity, assert (collec- sanity competency Wright’s on to Id. It wеnt consideration.” is under were forwarded tively report”), “the which was “without prejudice note that its order government, and Graham-Wright, the to [Graham-Wright] under by any request to court. expert a psychiatric § 18 U.S.C. 3006A the evalua- MCC months after Several respond- evaluating and and assistance in pur- guilty, tion, Graham-Wright pleaded under 18 U.S.C. reports made ing to the count of to one plea agreement, suant to 4241-4242, Id. The necessary.” §§ if exploitation 38). sexual aof child in violation of The district court denied Graham- 2251(a) (e). (Plea 18 U.S.C. R. 41 Wright’s motion for a and im- variance 93-99). Agreement) ID # (Page on posed Based a sentence of 360 mоnths of impris- an offense of forty-two level and a criminal onment. Id. at 257-66). 34-43 (Page ID # I, history category of the Presentence In- here, Relevant the district court noted that (“PSR”) vestigation Report calculated Gra- Graham-Wright “poses the maximum dan- ham-Wright’s range Guidelines to be 360 ger for recidivism” because of information to imprisonment. However, months life contained report. Id. at (Page the recommended sentence #263). under ID timely ap- Guidelines became 360 impris- months of pealed, contending that the inclusion onment because the carried a offense stat- in paragraphs 69-71 of the PSR utory maximum term of thirty yeаrs. See violates his Fifth right Amendment against 2251(e). 18 U.S.C. self-incrimination and that his sentence is substantively unreasonable. Graham-Wright did object not to the Guidelines calculation object but did to the II. PSR’s portions inclusion of of the report Smith, prepared by Estelle v. (Objection MCC. R. the Supreme Court 1) 124) (“Defendant explained: (Page PSR at ID #
objects
Paragraphs
69 and 70 in their
A
defendant,
criminal
who neither ini-
entirety.
The inclusion of statements
tiates a
evaluation nor at-
made
Defendant during the examina-
tempts
any psychiatric
introduce
evi-
procedure
tion
violates
dence,
Defendant’s Fifth
may not
compelled
respond
right
self-incrimina-
a psychiatrist if his statements can be
tion. United States v. Nguyen, 962
used against him
capital
at a
sentencing
(N.D.Cal.1997).
F.Supp. 1221
The inclu-
proceeding.
respondent
Because
did
opinions
sion of
based
on
statements
not voluntarily consent to the pretrial
creates the
problem.
same
Estelle v.
psychiatric examination
being
after
in-
Smith,
formed of
his
to remain silent and
(1981).”).
L.Ed.2d 359
Graham-Wright la-
the possible
statements,
use of his
ter moved for a variance based on 18
could
rely
State
on what he said to
3553(a)
and elaborated
further
Dr. Grigson to establish his future dan-
objection
portions
inclusion of
gerousness.
(also
in thе PSR
clarifying that
451 U.S. at
In Bu
objection
69-71).
was to paragraphs
chanan v. Kentucky,
(Mot. Variance)
162).
R. 52
(Page ID #
(1987),
The district court overruled Graham- presentation rebut with evidence Wright’s objection to the inclusion of para- from the reports the examination graphs 69-71 but decided it would the defendant requested. The defen- *10 append the report entire to the PSR. R. 59 dant have no Fifth Amendment would 9-15) (Sent’g Hr’g Tr. at (Page ID # privilege 232- against the introduction of this 7) (Mot. at Hr’g Tr. R. 60 such.2 quest as prosecu- the testimony by
psychiatric 280) (“[I]t a defense be ID # (Page tion. (Sup- for.”); R. 18 asking that I’m report 422-23, 107 S.Ct. Buchanan, at Exam, 1^) (Page at to Mot. plement Bu hold in to went on The Court 2906. 1-2) (D. at 28-31); Ct. Order R. ID # psy of [a introduction “[t]he that chanan 42-43) (“Defendant’s is Motion ID # (Page limited this report evaluation] chiatric the requests extent a constitute DENIED does purposе rebuttal 423-24, the location at performed at Id. be violation.” Amendment Fifth detention, by psy- a current 2906. of Defendant’s and with choosing, Defendant’s chiatrist v. from Estelle Smith observations The and Defendant reports to clear disclosure make Kentucky v. Buchanan de- court The district only”). counsel neither that, initiates/re- a defendant when a de- request for psy- Graham-Wright’s presents nor nied an evaluation quests and, instead, the an retains ordered evidence, fense-only the defendant chiatric self- privilege “[o]nce 4241 because Amendment under Fifth evaluation case, it is present the proceed In to cоmpetence incrimination. question the did not undisputed issue, that it now is as at potentially even There- evidence. any psychiatric present indepen- its own case, Court has the this initially on whether turns fore, case this evaluation professional ain dent interest or initiated requested was evaluation the (D. at R. 20 Ct. Order [Graham-Wright].” so, prosecution the if Graham-Wright; by 43). Thus, I that believe # (Page ID for a “limited rebuttal may use the to pursuant was conducted evaluation the 423-24, Buchanan, U.S. purpose.” assuring own interest district court’s the this typically Although 2906. competent, was that straightforward, should determination Graham-Wright’s re- supplanted which generated confusion the See 18 defense-only report. for a quest ' ' ultimate- evaluation was whose court as to § 4241. U.S.C. review complicates ly conducted above-quoted behind rationale The record. Bu- Smith Estelle v. passages from to me lead facts before The my conclu- buttresses Kentucky v. chanan report prepared the conclusion permitted not be a defendant should sion: § 4241 initiated was 18 U.S.C. under not. evidence psychiatric rely in (cid:127) Graham-Wright. by requested being permitted prosecution without de- attorney requested a ham-Wright’s . has de- Court such evidence. rebut mental- private a fense-only evaluation “if a holding that as Buchanan scribed whether to determine professional health a examina- requests defendant that Graham- a assert was basis there de- mental-status prove in order tion trial or stand incompetent to Wright Fifth to raise fense, he waives Although insanity defense. to raise prosecution’s challenge to attorney referenced Graham-Wright’s through ex- obtained of evidence use makes clear record U.S.C. Powell to rebut defense.” amination the function of 680, 684, Texas, 492 report defense-only to receive (1989). the present L.Ed.2d re- court understood that the distriсt refer- without 3006A pert under 18 acknowledged by the practice, as better §to 4241. request an ex- ence have been majority, would *11 609 case, Graham-Wright’s attorney did not statements “would be summarized in a “request[ psychiatric a] or- written report to the Court.” R. 25 (Sealed prove defense”; der mental-status in- Forensic Report at Presum- stead, the examination necessary ably was Graham-Wright and his attorney un- determine whether there was derstood a basis for this to mean that the report asserting would be incompetency presenting given to the district court to use very mental-status purpose defense. Such a was not prompt does ordered and prepared: need for rebuttal to determine Gra- ham-Wright’s evidence under Buchanan. Simply put, competency sanity. and Thus, rely did not psychiatric on submission to the evidence, so voluntary there was was to the nothing rebut. extent that it was Our decision Mitchell, purpose White v. determining also his competency reflects sanity. and rebuttal-purpose These pur- rationale. poses are Cir.2005) (“Because the consequence/possible F.3d use for which Graham-Wright was White initiated warned. Be- evaluation cause the district and court’s actual because use of Sunbury’s Dr. rеport was report was not limited to determining used cross-examination for purposes of ham-Wright’s sanity and rebutting competency, Dr. its findings, Smith’s the Court’s use violates Graham-Wright’s ruling in Fifth Estelle [v. Smith] not violat- ed.”). right against self-incrimina- Because the examination was court- Therefore, tion. I dissent. ordered and Graham-Wright rely did not on the prove evaluation to incompetency or defense,
a mental-status no pur- rebuttal
pose was served including
Graham-Wright’s PSR.
Our inquiry under Estelle v. Smith also
GARDNER,
Lee
Dechants,
Peter
David
looks to whether
“volun-
Liner,
Meyers,
William
Junk,
Keith
tarily
to the pretrial psychiat-
consented]
and
Corporation,
Masco
Assignee
as
ric examination
being
after
informed
his
Timothy Wadhams,
Plaintiffs-Ap
right to remain
and
possible
silent
use
pellants,
of his
statements.”
U.S. at
S.Ct. 1866. The majority insists that
HEARTLAND INDUSTRIAL PART
“Graham-Wright freely
submitted]
NERS, LP, Heartland Industrial Asso
examination”
“his statements to
ciates, LLC, Timothy Leuliette, and
psychiatrist
voluntary.”
were
I do not
Tredwell,
Daniel
Defendants-Appel
true;
doubt that
however,
this was
lees.
evaluation was ordered to determine Gra-
No. 11-2327.
ham-Wright’s competency
sanity.
Es-
telle v. Smith
importance
underscores the
United States Court of Appeals,
of Miranda’s command that defendants be
Sixth Circuit.
given “an awareness of the Fifth Amend-
Argued:
3,Oct.
2012.
privilege
ment
and the consequences of
Decided and Filed: May
2013.
forgoing
it.”
Miranda but was told