United States v. Lossiah ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4575
CHARLIE LOSSIAH, a/k/a Bowser,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Bryson City.
Lacy H. Thornburg, District Judge.
(CR-97-276)
Submitted: October 20, 1999
Decided: November 10, 1999
Before MICHAEL, MOTZ, and KING, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Roy H. Patton, Jr., KILLIAN, KERSTEN, PATTON & ELLIS, P.A.,
Waynesville, North Carolina, for Appellant. Deborah A. Ausburn,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North
Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Charlie Lossiah appeals his conviction on two counts of engaging
in a sexual act with a person under age twelve within Indian country,
18 U.S.C.A. § 2241(c) (West Supp. 1999). Because none of the three
issues raised on appeal has merit, we affirm.
I
Lossiah's niece informed a school counselor that her uncle had
engaged in inappropriate behavior with her. Ultimately, because the
acts allegedly occurred on the Cherokee Indian reservation, the matter
was referred to the FBI for investigation. Special Agent Russell went
to Lossiah's home, where Lossiah confessed to having sexual contact
with his niece. Lossiah moved to suppress the confession. Following
a hearing at which Russell, Lossiah, and a psychologist who evaluated
Lossiah at FCI Petersburg testified, the district court made certain
findings of fact. On the basis of those facts, the district court con-
cluded that Lossiah's confession was voluntary and denied the motion
to suppress.
Lossiah contends that his confession was involuntary and that its
admission at trial violated his Fifth Amendment right not to be a wit-
ness against himself. We review de novo whether a confession was
voluntary, "accepting ``the district court's findings of fact on the cir-
cumstances surrounding the confession . . . unless[those findings are]
clearly erroneous.'" United States v. Braxton , 112 F.3d 777, 781 (4th
Cir. 1997) (quoting United States v. Pelton, 835 F.2d 1067, 1072 (4th
Cir. 1987)), cert. denied, ___ U.S. ___, 66 U.S.L.W. 3260 (U.S. Oct.
6, 1999) (No. 97-5073). In making our ultimate determination of vol-
untariness, we look to the totality of the circumstances surrounding
the confession. The critical issue is "whether[the] defendant's will
has been overborne or his capacity for self-determination critically
impaired." Braxton, 112 F.3d at 781.
The district court's factual findings were fully supported by testi-
mony at the suppression hearing and were not clearly erroneous. Rus-
2
sell testified that he went to Lossiah's home in an unmarked car. He
was wearing civilian clothes and, although he was armed, his weapon
was not visible. Russell showed Lossiah his badge and credentials and
informed him that he was investigating a report of child sexual abuse.
Russell was aware that Lossiah, who was nineteen, had a low intel-
lect. He therefore asked Lossiah direct, simple questions. Only once
during the interview that followed did Lossiah appear confused, but
when Russell explained what he was asking, the confusion vanished.
Russell asked Lossiah whether he would talk to him. When Lossiah
agreed, Russell asked whether they could talk at that time. Lossiah
said yes, and suggested that they hold their conversation seated in
lawn chairs outdoors. At no time did Russell tell Lossiah that he was
under arrest or not free to leave. Lossiah never asked Russell to leave
or seemed uncomfortable, except when he admitted that he had
touched his niece inappropriately. Russell testified that he had no
doubt that Lossiah understood the questions that were asked. The
interview lasted between an hour and an hour and a half. Although
Lossiah initially denied having any sexual contact with the victim, he
ultimately confessed and wrote a brief statement apologizing to his
niece for what he had done.
Marcus Forbes, the psychologist who headed the team that evalu-
ated Lossiah at FCI Petersburg, testified at the hearing that Lossiah
had an IQ of sixty-four, which meant that he was mildly mentally
retarded. Lossiah has the reading ability of a second or third grade
student, and a math ability of a fifth grade student. Forbes stated that
Lossiah would have understood that he could have stopped his con-
versation with Russell. Although Lossiah is more susceptible than a
person of normal intellect would be to suggestion, he could have
made his own determination as to what to say to Russell. Forbes con-
cluded that the conversation would not have overpowered Lossiah.
These facts demonstrate that Lossiah's confession was voluntary.
Lossiah concedes in his brief that there is no evidence of oppressive
police conduct. The focus instead is on Lossiah's limited mental fac-
ulties. However, a defendant's individual characteristics alone are
insufficient by themselves to render a confession involuntary absent
circumstances that demonstrate some form of official coercion. See
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Watson v. Detella, 122 F.3d 450, 453 (7th Cir. 1997). Here, there sim-
ply was no coercion on SA Russell's part.
Lossiah also observes that Forbes initially wondered whether Los-
siah was competent to stand trial and suggests that this casts doubt on
the voluntariness of the confession. We note simply that Forbes never
concluded that Lossiah was incompetent to stand trial. More impor-
tantly, Forbes expressed no doubt at the suppression hearing that Los-
siah was rational and logical during the interview with Russell, that
he could make his own decisions as to what to say, and that the con-
fession was not the result of a law enforcement officer's overpower-
ing a person who was more susceptible than the normal individual to
suggestion.
II
The district court denied Lossiah's motion for appointment of a pri-
vate psychologist to assist him in determining both whether his con-
fession was voluntary and whether he was competent to stand trial.
If a defendant's sanity at the time of the offense is at issue, the defen-
dant is entitled to a psychiatric examination at government expense.
See Ake v. Oklahoma, 470 U.S. 68, 83 (1985). It is unclear that the
rule of Ake extends to give an accused the right to an expert to deter-
mine competency to stand trial. See Bell v. Evatt, 72 F.3d 421, 431
(4th Cir. 1995). In any event, "Ake reflects primarily a concern with
ensuring a defendant access to a psychiatrist or psychologist, not with
guaranteeing a particular substantive result." Wilson v. Greene, 155
F.3d 396, 401 (4th Cir.), cert. denied, ___ U.S. ___, 67 U.S.L.W.
3361 (U.S. Nov. 16, 1998) (No. 98-6796).
Here, Lossiah had access to a psychologist: he was evaluated by a
team at FCI Petersburg led by Dr. Forbes; he questioned Dr. Forbes
at the suppression hearing; and he called Dr. Forbes as a defense wit-
ness at trial. He was not entitled to another expert evaluation at gov-
ernment expense. The district court did not abuse its discretion in
denying his motion.
III
Finally, Lossiah argues that the district court erred when it denied
his motion for a continuance, in which he claimed that the one month
4
between his competency hearing and his trial was not sufficient time
for defense counsel to prepare. Lossiah fails to demonstrate how his
case was prejudiced by the district court's ruling. Therefore, he can-
not establish that the district court abused its discretion in denying the
motion. See United States v. Hoyte, 51 F.3d 1239, 1245 (4th Cir.
1995).
IV
We accordingly affirm the conviction. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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