UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4113

RICHARD HUGH WHITTLE,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Rebecca B. Smith, District Judge.

(CR-96-151)

Submitted: November 18, 1997

Decided: January 14, 1998

Before WILKINS and LUTTIG, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Howard M. Miller, MILLER & MARX, P.C., Norfolk, Virginia, for

Appellant. Helen F. Fahey, United States Attorney, Laura M. Everhart, Assistant United States Attorney, Norfolk, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Richard Hugh Whittle pled guilty to murder, in violation of 18

U.S.C.A. § 1111 (West Supp. 1997), and rape, in violation of 18

U.S.C.A. § 2031 (current version at 18 U.S.C.A. § 2241 (West Supp.

1997)). He was sentenced to consecutive life sentences. Whittle preserved two issues for appeal: (1) whether the statute of limitations

had run on the offenses; and (2) whether his confession should have

been suppressed. We have reviewed the issues, and we affirm.

I

On March 25, 1982, Pamela Ann Kimbrue was raped and murdered

at the Naval Air Station in Norfolk, Virginia. Her body was found

inside her car, in the waters off the Station. Whittle was soon identified as a suspect, but the case was not prosecuted.

In 1995, the case was revived and assigned to the Naval Criminal

Investigative Service (NCIS) "Cold Case Squad," which reviews

unsolved homicides using modern forensic techniques. A fingerprint

lifted from the car matched Whittle's, and seminal fluid from Kimbrue's body was consistent with Whittle's DNA.

On June 26, 1996, Whittle was interviewed in California by two

special agents of the NCIS. The agents, dressed in casual civilian

clothing, approached Whittle as the latter was going to work. They

stated that they wanted to talk to him about Kimbrue's death. Whittle

went into the building to check in with his boss, leaving the agents

outside. Whittle's supervisor approached the agents and asked them

to speak to the corporation's attorney over the phone. They did so,

then left while Whittle and his supervisor consulted with the attorney.

The agents emphasized the voluntary nature of the interview, and

Whittle agreed that he would talk to them.

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Whittle accompanied the agents to their hotel room. They informed

Whittle of his Miranda rights, and he initialed a form stating that he

understood them. The agents asked Whittle if he wanted an attorney,

and "he indicated he was willing to speak to us." All parties signed

the rights waiver. When questioned, Whittle soon admitted his

involvement in the crime. Over the course of the interview, Whittle

altered his story several times, finally admitting that he lay in wait for

Kimbrue, tied her up, struck her on the head, sexually assaulted her,

and, because she had seen his face, determined to"put her in the

water."

At a suppression hearing in the district court, Whittle alleged that

he requested an attorney at one point in the interview but was denied

one. According to the NCIS agent, Whittle mentioned an attorney

only in relation to getting a second opinion as to whether the statute

of limitations had run on the crime. The district court found that

Whittle's testimony that he asked for a lawyer was not credible, and

denied the motion to suppress.

II

Whittle alleges that the indictments should have been dismissed on

statute of limitations grounds. There is no limitations period for prosecuting a capital offense. 18 U.S.C.A. § 3281 (West Supp. 1997).

Under 18 U.S.C.A. § 3282 (West Supp. 1997),"no person shall be

prosecuted, tried, or punished for any offense, not capital, unless the

indictment is found . . . within five years after such offense shall have

been committed." The indictments in this case were issued fourteen

years after the offense. Therefore, unless they are capital offenses

Whittle cannot be tried and punished for them. A capital offense is

one punishable by death. 18 U.S.C. § 3281.

At the time of the offense, 18 U.S.C. § 2031 provided, "whoever,

within the special maritime and territorial jurisdiction of the United

States, commits rape shall suffer death, or imprisonment for any term

of years or for life." Section 1111, 18 U.S.C., provided in part, "whoever is guilty of murder in the first degree, shall suffer death unless

the jury qualifies its verdict . . . ." Whittle argues that because the

death penalty could not constitutionally be imposed in 1982 under

Furman v. Georgia, 408 U.S. 238 (1972), his crimes are not capital

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offenses. He also argues that, as Congress has eliminated the death

penalty for rape, it is not a capital crime.

Rather than eliminating the death penalty for rape, Congress has

revised the language of the relevant statutes. Under 18 U.S.C.A.

§ 2241 (West Supp. 1997) and 18 U.S.C.A. § 2245 (West Supp.

1997), Whittle's actions against Kimbrue would constitute aggravated

sexual abuse resulting in death. This crime is punishable by death or

imprisonment for a term of years or for life. 18 U.S.C. § 2245. Therefore, Whittle's crime was a capital offense in 1982, and it remains a

capital offense. The murder of Kimbrue is also a capital offense. The

fact that Furman made it questionable whether the death penalty

could constitutionally be imposed does not alter the fact that the

offenses were capital crimes, and it does not "repeal statutes . . .

which depend for their operation on the defendant being charged with

a `capital crime.'" United States v. Watson, 496 F.2d 1125, 1127 (4th

Cir. 1973); see United States v. Manning, 56 F.3d 1188, 1195-96 (9th

Cir. 1995). We review the district court's decision regarding the

applicability of a particular statute of limitations de novo, Manning,

56 F.3d at 1195, and we hold that the district court ruled correctly in

denying Whittle's motion to dismiss the indictments on statute of limitations grounds.

III

Whittle argues that his motion to suppress his confession should

have been granted because he asked to see an attorney. The district

court made factual findings that the NCIS agents did not intimidate

Whittle during the interview, and Whittle admitted his involvement in

the crime early in the session. In addition, the district court found that

Whittle understood and signed his rights waiver, knew that he could

stop the interview at any time and request a lawyer, and did not do

so. We review these factual findings under a clearly erroneous standard. United States v. Gordon, 895 F.2d 932, 939 (4th Cir. 1990).

Whittle does not dispute that he made an initial knowing and voluntary waiver of his right to counsel. A suspect must unambiguously

request an attorney to invoke his right to counsel in the course of an

interrogation. Davis v. United States, 512 U.S. 452, 459 (1994). Here,

Whittle had already admitted the acts that constituted the crime by the

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time he made any mention of a lawyer. The district court did not err

in holding that Whittle did not make an unequivocal request for an

attorney such that a reasonable officer in those circumstances "would

understand the statement to be a request for an attorney." Id. Therefore, the district court's denial of his motion to suppress is affirmed.

Accordingly, we affirm Whittle's conviction and sentence. We

grant his motion to file a supplemental, pro se brief. We have considered the issues raised in that brief and find them to be without merit.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

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