Rule 206 ELECTRONIC CITATION: 2000 FED App. 0173P (6th Cir.) File Name: 00a0173p.06… v. Olakunle A. Osoba

*The Honorable Richard D. Cudahy, Circuit Judge of the United
States Court of Appeals for the Seventh Circuit, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0173P (6th Cir.)
File Name: 00a0173p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
OLAKUNLE A. OSOBA ,
Defendant-Appellant.
;>

1
No. 99-3064
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 97-00040—John D. Holschuh, District Judge.
Argued: May 4, 2000
Decided and Filed: May 25, 2000
Before: MERRITT, CLAY, and CUDAHY*, Circuit
Judges.
_________________
COUNSEL
ARGUED: Kenneth R. Spiert, Columbus, Ohio, for
Appellant. Terry Lehmann, ASSISTANT UNITED STATES
ATTORNEY, Cincinnati, Ohio, for Appellee. ON BRIEF:

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2 United States v. Osoba No. 99-3064
Kenneth R. Spiert, Columbus, Ohio, for Appellant. Gary L.
Spartis, ASSISTANT UNITED STATES ATTORNEY,
Columbus, Ohio, for Appellee.
_________________
OPINION
_________________
MERRITT, Circuit Judge. Defendant Osoba requested
funds for the purpose of obtaining expert psychological
services for use during sentencing. Defendant Osoba now
appeals the district court’s decision to deny his motion for
funds. Primarily, defendant argues that the district court’s
conclusion that the language of 18 U.S.C. § 3006A(e)(1) did
not give the court authority to grant the motion for funds was
error as a matter of law. Defendant further argues that the
denial of the motion for funds was a violation of his Sixth
Amendment right to the effective assistance of counsel, his
Fourteenth Amendment right to due process, and his
Fourteenth Amendment right to equal protection. We agree
with defendant's argument that section 3006A(e)(1) was the
controlling statute, but we affirm the denial of funds on
separate grounds.
Osoba entered a guilty plea to the charge of distribution of
heroin. Prior to sentencing, Osoba submitted an ex parte
motion under 18 U.S.C. § 3006A(e)(1) for the approval of
funds for the purpose of obtaining the services of a clinical
psychologist. The opinion of the psychologist was to serve as
the basis for a downward departure from the Sentencing
Guidelines due to diminished mental capacity. The district
court concluded that 18 U.S.C. § 3006A(e)(1) applied only to
requests for psychological assistance prior to trial, and was
therefore inapplicable in a situation where the request was
made after a guilty plea and prior to sentencing. Instead, the
district court concluded that 18 U.S.C. § 4244(a) was the
appropriate controlling statute. The court determined that
section 4244 authorized the granting of funds for
psychological services prior to sentencing, but only if the
motion for funds was supported by evidence indicating that
No. 99-3064 United States v. Osoba 7
psychiatric evidence of future dangerousness. See
Kordenbrock v. Scroggy, 919 F.2d 1091, 1120 (6th Cir. 1990)
(en banc). Due process does not mandate that Osoba be given
psychological assistance in this case because his sanity is not
primarily at issue and he has not been convicted of a capital
offense.
Finally, the defendant argues that he was denied the equal
protection of the law. The Supreme Court has stated that
indigent defendants have a right to the “basic tools of an
adequate defense or appeal, when those tools are available for
a price to other prisoners.” Britt v. North Carolina, 404 U.S.
226, 227 (1971). While it is clear that, for example, a
transcript of a prior proceeding is necessary for the proper
pursuit of an appeal, it is not so clear that an indigent
defendant is entitled to psychological assistance in order to
develop his case for a downward departure at sentencing just
because such services are available to paying defendants.
Indigence is not considered a suspect classification, and thus
the government argues that this Court need find only that the
denial of funds had a rational relationship to a legitimate state
interest. See Mason v. Arizona, 504 F.2d 1345, 1354 (9th Cir.
1974) (holding that rational basis analysis applies to an
indigent defendant seeking the assistance of an investigator
for trial). The government’s argument that the denial of funds
was based on its interests in both reducing the complexity of
the sentencing process and in preventing states from having
to fund psychologists for every requested downward departure
based on family circumstances seems inherently reasonable.
For the foregoing reasons, we AFFIRM the decision of the
district court.

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6 United States v. Osoba No. 99-3064
Osoba's background. According to the defense, the fact that
Osoba was raised in Nigeria under the rule of an abusive
father, in addition to the alleged psychological control being
exerted on the defendant by the mother of his youngest child,
and the need for funds to send back to family members in
Nigeria, all combined to reduce his ability to refuse to
participate in the drug scheme when he was coerced into
doing so as a prerequisite for obtaining a loan. These
circumstances do not indicate a significantly reduced mental
capacity according to the precedent in our Circuit. We have
previously found that even suicidal tendencies do not justify
such a departure, and that defendants should not be allowed
departures for hardships, misfortune, or defeat, which are
“inescapable aspect[s] of human existence.” United States v.
Johnson, 979 F.2d 396, 401 (6th Cir. 1992). A downward
departure would have been inappropriate even if defendant
had been given the funds for a psychological expert who
could have testified according to defendant’s theory of his
diminished mental capacity, and therefore the services of the
psychological expert were clearly not necessary for adequate
representation. See United States v. Barajas-Nunez, 91 F.3d
826 (6th Cir. 1996). We therefore AFFIRM the decision of
the district court on this ground.
Next, defendant Osoba asserts that the denial of the funds
caused him to suffer the ineffective assistance of counsel in
violation of the Sixth Amendment. This argument is
meritless. Defendant alleges only that his counsel was denied
the opportunity to pursue the psychological defense due to the
court’s denial of funds, not that counsel was ineffective in its
own right.
Third, defendant Osoba argues that the denial of funds
constituted a violation of due process. Under this Circuit’s
precedent interpreting Ake v. Oklahoma, 470 U.S. 68 (1985),
the constitution only requires the government to furnish an
indigent criminal defendant psychiatric or psychological
assistance during the sentencing phase of a trial if 1) the
defendant’s sanity was a significant issue during the trial, or
2) defendant is on trial for his life and the state first presents
No. 99-3064 United States v. Osoba 3
the defendant presently suffered from a mental impairment.
Because defendant’s motion did not allege that he suffered
from a present mental impairment, but only alleged a history
of adverse circumstances which would have contributed to his
mental state at the time of the offense, the district court held
that defendant did not qualify for funds for psychological
assistance under 18 U.S.C. § 4244(a).
While legal errors are reviewed de novo, this court reviews
a district court’s denial of funds for an expert under the
Criminal Justice Act for abuse of discretion. See Merrill
Lynch, Pierce, Fenner & Smith, Inc. v. Jaros, 70 F.3d 418,
420 (6th Cir. 1995); United States v. Robinson, 95 F.3d 1153
(6th Cir. 1996). Defendant argues that the district court’s
decision was erroneous as a matter of law, or in the
alternative was an abuse of discretion.
The district court clearly erred as a matter of law in its
decision to apply section 4244(a) rather than section
3006A(e)(1) to Osoba's request for funds for an expert.
Section 4244(a) is not applicable to a situation where a
defendant requests funds for a psychologically-based defense
during sentencing, such as a proposed downward departure
under the Guidelines. Instead, the purpose of section 4244 is
quite clearly to provide a hearing to determine if
hospitalization of a defendant is necessary in lieu of
incarceration, as is clear from the title “Hospitalization of a
convicted person suffering from mental disease or defect.”
The section provides:
A defendant found guilty of an offense . . . may, within
ten days after the defendant is found guilty, and prior to
the time the defendant is sentenced, file a motion for a
hearing on the present mental condition of the defendant
if the motion is supported by substantial information
indicating that the defendant may presently be suffering
from a mental disease or defect for the treatment of
which he is in need of custody for care or treatment in a
suitable facility. The court shall grant the motion . . . if
it is of the opinion that there is reasonable cause to

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4 United States v. Osoba No. 99-3064
believe that the defendant may presently be suffering
from a mental disease or defect for the treatment of
which he is in need of custody for care or treatment in a
suitable facility.
18 U.S.C. § 4244(a) (1999). Nowhere in section 4244 does
it appear that the statute was intended to be used to provide
funds to obtain an expert psychologist's opinion as to
mitigating factors which might justify a reduced period of
incarceration, as opposed to hospitalization, for a defendant.
In addition, other Circuits seem to implicitly assume, without
discussion, that section 3006A(e)(1) applies to the sentencing
phase of a trial as well as to the guilt phase. See United States
v. Smith, 987 F.2d 888, 891 (2nd Cir. 1993); United States v.
Roman, 121 F.3d 136, 143 (3rd Cir. 1997); Lawson v. Dixon,
3 F.3d 743, 750 (4th Cir. 1993); United States v. Blade, 811
F.2d 461, 466 (8th Cir. 1987). We find that the district
court’s determination that section 4244 was the applicable
section was erroneous as a matter of law. To the extent that
the government led the district court to this conclusion, it did
so with a lack of regard for the plain language of the statutes
in question.
Even if the proper statute had been utilized, however, the
district court would have been compelled to deny the request
for funds. Section 3006A(e)(1) provides that “[a] person who
is financially unable to obtain investigative, expert, or other
services necessary for adequate representation may request
them in an ex parte application. Upon finding, after
appropriate inquiry in an ex parte proceeding, that the services
are necessary . . . the court . . . shall authorize counsel to
obtain the services.” 18 U.S.C. § 3600A(e)(1) (1999)
(emphasis added). A district court may deny a motion under
this section if it finds that the requested services are not
necessary for adequate representation.
The determination of whether an expert’s assistance is
necessary for an adequate defense is generally left within the
discretion of the trial court. Some courts compel the indigent
criminal defendant to prove only that reasonably competent
No. 99-3064 United States v. Osoba 5
paid counsel would have retained the expert’s services and
that the defendant was clearly prejudiced by the lack of those
services. See United States v. Labansat, 94 F.3d 527, 530
(9th Cir. 1996). The Third Circuit has found that in
appropriate cases a court can order that funds be provided to
assist an indigent during sentencing, but that in order to find
that such funds were “necessary” the court must “‘satisfy
itself that a defendant may have a plausible defense.’” See
United States v. Roman, 121 F.3d 136, 143 (3rd Cir. 1997)
(quoting United States v. Alden, 767 F.2d 314, 318 (7th Cir.
1984)). Adopting a stricter approach, the Eight Circuit has
held that the decision to deny funds under section
3006A(e)(1) is left to the sound discretion of the judge, and
is not to be disturbed absent a showing of prejudice. See
United States v. Bercier, 848 F.2d 917 (8th Cir. 1988).
It appears that the motion for funds should have been
denied as unnecessary in this case under any of the above
approaches. While the Sentencing Guidelines explicitly
prohibit some avenues of downward departure (such as race,
socioeconomic status, lack of guidance as a youth, or abuse of
drugs and alcohol), a judge still has the discretion to depart
downward from the guidelines if that judge finds that a
defendant had a “significantly reduced mental capacity” at the
time of the offense. See United States v. Johnson, 979 F.2d
396 (6th Cir. 1992); see also U.S.S.G. § 5K2.13 p.s. We have
previously indicated that a defendant who has the ability “‘to
absorb information in the usual way and to exercise the power
of reason’” does not have a mental or emotional disorder
sufficient to trigger a downward departure for diminished
mental capacity. United States v. Johnson, 979 F.2d 396 (6th
Cir. 1992) (quoting United States v. Hamilton, 949 F.2d 190,
193 (6th Cir. 1991)).
In this case, the defendant’s theory behind the proposed
motion to depart downward does not indicate that the
defendant was unable to process information or to reason, or
even that he was unable to appreciate the wrongfulness of his
conduct. On the contrary, the defendant’s theory was based
upon cultural and psychological factors stemming from

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