           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 STATES OF AMERICA,
                                   
           Plaintiff-Appellee,
                                   
                                   
                                      No. 99-3064
           v.
                                   
                                    >
 OLAKUNLE A. OSOBA,                
         Defendant-Appellant. 
                                  1
      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:

    *
     The Honorable Richard D. Cudahy, Circuit Judge of the United
States Court of Appeals for the Seventh Circuit, sitting by designation.

                                   1
2    United States v. Osoba                     No. 99-3064      No. 99-3064                       United States v. Osoba       7

Kenneth R. Spiert, Columbus, Ohio, for Appellant. Gary L.        psychiatric evidence of future dangerousness.              See
Spartis, ASSISTANT UNITED STATES ATTORNEY,                       Kordenbrock v. Scroggy, 919 F.2d 1091, 1120 (6th Cir. 1990)
Columbus, Ohio, for Appellee.                                    (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.
                        OPINION
                    _________________                               Finally, the defendant argues that he was denied the equal
                                                                 protection of the law. The Supreme Court has stated that
  MERRITT, Circuit Judge. Defendant Osoba requested              indigent defendants have a right to the “basic tools of an
funds for the purpose of obtaining expert psychological          adequate defense or appeal, when those tools are available for
services for use during sentencing. Defendant Osoba now          a price to other prisoners.” Britt v. North Carolina, 404 U.S.
appeals the district court’s decision to deny his motion for     226, 227 (1971). While it is clear that, for example, a
funds. Primarily, defendant argues that the district court’s     transcript of a prior proceeding is necessary for the proper
conclusion that the language of 18 U.S.C. § 3006A(e)(1) did      pursuit of an appeal, it is not so clear that an indigent
not give the court authority to grant the motion for funds was   defendant is entitled to psychological assistance in order to
error as a matter of law. Defendant further argues that the      develop his case for a downward departure at sentencing just
denial of the motion for funds was a violation of his Sixth      because such services are available to paying defendants.
Amendment right to the effective assistance of counsel, his      Indigence is not considered a suspect classification, and thus
Fourteenth Amendment right to due process, and his               the government argues that this Court need find only that the
Fourteenth Amendment right to equal protection. We agree         denial of funds had a rational relationship to a legitimate state
with defendant's argument that section 3006A(e)(1) was the       interest. See Mason v. Arizona, 504 F.2d 1345, 1354 (9th Cir.
controlling statute, but we affirm the denial of funds on        1974) (holding that rational basis analysis applies to an
separate grounds.                                                indigent defendant seeking the assistance of an investigator
                                                                 for trial). The government’s argument that the denial of funds
  Osoba entered a guilty plea to the charge of distribution of   was based on its interests in both reducing the complexity of
heroin. Prior to sentencing, Osoba submitted an ex parte         the sentencing process and in preventing states from having
motion under 18 U.S.C. § 3006A(e)(1) for the approval of         to fund psychologists for every requested downward departure
funds for the purpose of obtaining the services of a clinical    based on family circumstances seems inherently reasonable.
psychologist. The opinion of the psychologist was to serve as
the basis for a downward departure from the Sentencing             For the foregoing reasons, we AFFIRM the decision of the
Guidelines due to diminished mental capacity. The district       district court.
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
6     United States v. Osoba                        No. 99-3064      No. 99-3064                      United States v. Osoba          3

Osoba's background. According to the defense, the fact that          the defendant presently suffered from a mental impairment.
Osoba was raised in Nigeria under the rule of an abusive             Because defendant’s motion did not allege that he suffered
father, in addition to the alleged psychological control being       from a present mental impairment, but only alleged a history
exerted on the defendant by the mother of his youngest child,        of adverse circumstances which would have contributed to his
and the need for funds to send back to family members in             mental state at the time of the offense, the district court held
Nigeria, all combined to reduce his ability to refuse to             that defendant did not qualify for funds for psychological
participate in the drug scheme when he was coerced into              assistance under 18 U.S.C. § 4244(a).
doing so as a prerequisite for obtaining a loan. These
circumstances do not indicate a significantly reduced mental            While legal errors are reviewed de novo, this court reviews
capacity according to the precedent in our Circuit. We have          a district court’s denial of funds for an expert under the
previously found that even suicidal tendencies do not justify        Criminal Justice Act for abuse of discretion. See Merrill
such a departure, and that defendants should not be allowed          Lynch, Pierce, Fenner & Smith, Inc. v. Jaros, 70 F.3d 418,
departures for hardships, misfortune, or defeat, which are           420 (6th Cir. 1995); United States v. Robinson, 95 F.3d 1153
“inescapable aspect[s] of human existence.” United States v.         (6th Cir. 1996). Defendant argues that the district court’s
Johnson, 979 F.2d 396, 401 (6th Cir. 1992). A downward               decision was erroneous as a matter of law, or in the
departure would have been inappropriate even if defendant            alternative was an abuse of discretion.
had been given the funds for a psychological expert who
could have testified according to defendant’s theory of his            The district court clearly erred as a matter of law in its
diminished mental capacity, and therefore the services of the        decision to apply section 4244(a) rather than section
psychological expert were clearly not necessary for adequate         3006A(e)(1) to Osoba's request for funds for an expert.
representation. See United States v. Barajas-Nunez, 91 F.3d          Section 4244(a) is not applicable to a situation where a
826 (6th Cir. 1996). We therefore AFFIRM the decision of             defendant requests funds for a psychologically-based defense
the district court on this ground.                                   during sentencing, such as a proposed downward departure
                                                                     under the Guidelines. Instead, the purpose of section 4244 is
  Next, defendant Osoba asserts that the denial of the funds         quite clearly to provide a hearing to determine if
caused him to suffer the ineffective assistance of counsel in        hospitalization of a defendant is necessary in lieu of
violation of the Sixth Amendment. This argument is                   incarceration, as is clear from the title “Hospitalization of a
meritless. Defendant alleges only that his counsel was denied        convicted person suffering from mental disease or defect.”
the opportunity to pursue the psychological defense due to the       The section provides:
court’s denial of funds, not that counsel was ineffective in its
own right.                                                             A defendant found guilty of an offense . . . may, within
                                                                       ten days after the defendant is found guilty, and prior to
  Third, defendant Osoba argues that the denial of funds               the time the defendant is sentenced, file a motion for a
constituted a violation of due process. Under this Circuit’s           hearing on the present mental condition of the defendant
precedent interpreting Ake v. Oklahoma, 470 U.S. 68 (1985),            if the motion is supported by substantial information
the constitution only requires the government to furnish an            indicating that the defendant may presently be suffering
indigent criminal defendant psychiatric or psychological               from a mental disease or defect for the treatment of
assistance during the sentencing phase of a trial if 1) the            which he is in need of custody for care or treatment in a
defendant’s sanity was a significant issue during the trial, or        suitable facility. The court shall grant the motion . . . if
2) defendant is on trial for his life and the state first presents     it is of the opinion that there is reasonable cause to
4      United States v. Osoba                      No. 99-3064      No. 99-3064                      United States v. Osoba      5

    believe that the defendant may presently be suffering           paid counsel would have retained the expert’s services and
    from a mental disease or defect for the treatment of            that the defendant was clearly prejudiced by the lack of those
    which he is in need of custody for care or treatment in a       services. See United States v. Labansat, 94 F.3d 527, 530
    suitable facility.                                              (9th Cir. 1996). The Third Circuit has found that in
                                                                    appropriate cases a court can order that funds be provided to
18 U.S.C. § 4244(a) (1999). Nowhere in section 4244 does            assist an indigent during sentencing, but that in order to find
it appear that the statute was intended to be used to provide       that such funds were “necessary” the court must “‘satisfy
funds to obtain an expert psychologist's opinion as to              itself that a defendant may have a plausible defense.’” See
mitigating factors which might justify a reduced period of          United States v. Roman, 121 F.3d 136, 143 (3rd Cir. 1997)
incarceration, as opposed to hospitalization, for a defendant.      (quoting United States v. Alden, 767 F.2d 314, 318 (7th Cir.
In addition, other Circuits seem to implicitly assume, without      1984)). Adopting a stricter approach, the Eight Circuit has
discussion, that section 3006A(e)(1) applies to the sentencing      held that the decision to deny funds under section
phase of a trial as well as to the guilt phase. See United States   3006A(e)(1) is left to the sound discretion of the judge, and
v. Smith, 987 F.2d 888, 891 (2nd Cir. 1993); United States v.       is not to be disturbed absent a showing of prejudice. See
Roman, 121 F.3d 136, 143 (3rd Cir. 1997); Lawson v. Dixon,          United States v. Bercier, 848 F.2d 917 (8th Cir. 1988).
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              It appears that the motion for funds should have been
court’s determination that section 4244 was the applicable          denied as unnecessary in this case under any of the above
section was erroneous as a matter of law. To the extent that        approaches. While the Sentencing Guidelines explicitly
the government led the district court to this conclusion, it did    prohibit some avenues of downward departure (such as race,
so with a lack of regard for the plain language of the statutes     socioeconomic status, lack of guidance as a youth, or abuse of
in question.                                                        drugs and alcohol), a judge still has the discretion to depart
                                                                    downward from the guidelines if that judge finds that a
   Even if the proper statute had been utilized, however, the       defendant had a “significantly reduced mental capacity” at the
district court would have been compelled to deny the request        time of the offense. See United States v. Johnson, 979 F.2d
for funds. Section 3006A(e)(1) provides that “[a] person who        396 (6th Cir. 1992); see also U.S.S.G. § 5K2.13 p.s. We have
is financially unable to obtain investigative, expert, or other     previously indicated that a defendant who has the ability “‘to
services necessary for adequate representation may request          absorb information in the usual way and to exercise the power
them in an ex parte application. Upon finding, after                of reason’” does not have a mental or emotional disorder
appropriate inquiry in an ex parte proceeding, that the services    sufficient to trigger a downward departure for diminished
are necessary . . . the court . . . shall authorize counsel to      mental capacity. United States v. Johnson, 979 F.2d 396 (6th
obtain the services.” 18 U.S.C. § 3600A(e)(1) (1999)                Cir. 1992) (quoting United States v. Hamilton, 949 F.2d 190,
(emphasis added). A district court may deny a motion under          193 (6th Cir. 1991)).
this section if it finds that the requested services are not
necessary for adequate representation.                                In this case, the defendant’s theory behind the proposed
                                                                    motion to depart downward does not indicate that the
  The determination of whether an expert’s assistance is            defendant was unable to process information or to reason, or
necessary for an adequate defense is generally left within the      even that he was unable to appreciate the wrongfulness of his
discretion of the trial court. Some courts compel the indigent      conduct. On the contrary, the defendant’s theory was based
criminal defendant to prove only that reasonably competent          upon cultural and psychological factors stemming from
