Fоllowing a bench trial, the court convicted Ronald Sehwensow of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and sentenced him to 262 months’ imprisonment. Sehwensow appeals his conviction and sentence, arguing that the district court erred in denying his pro se motion for a continuance of trial; admitting into evidence statements he made to volunteer workers at an Alcoholics Anonymous office; finding that law enforcement officials did not violate his Fourth Amendment right to be secure in his person, house, and effects or his Fifth Amendment right to remain silent; and refusing to depart downward from the sentencing guideline range on account of his age, poor health, and criminal history. We affirm.
I. BACKGROUND
By November 28,1995, Ronald Sehwensow had been drinking alcohol steadily for five weeks. Fearing fоr his health and suffering the effects of alcohol withdrawal, Sehwensow called a counselor at a mental health complex in Milwaukee, Wisconsin to discuss entering an alcohol detoxification program. The following night, November 29, 1995, he went in search of the detoxification center the counselor had suggested to him on the telephone. He could neither remember the address of the detoxification center nor the telephone number of the counselor, however, so he went to a local library in West Allis, Wisconsin to see if he could find this information, but he was only able to obtain the address of a nearby Alcoholics Anonymous office.
The Alcoholics Anonymous office in West Allis operates a telephone hotline manned by volunteers; it also sells books, pamphlets and tapes. The office does not provide counseling services to alcoholics. The hotline volunteers have no formal counseling or therapy-related training, and their primary responsibility is to provide information about Alcoholics Anonymous meetings located in the Milwaukee county area. Volunteer phone operators Nancy Curran and Blake Sehicker were on duty answering telephone calls on the hotline on the night of November 29, 1995 when Sehwensow knocked on the office door and asked for permission to use the telephone to call the detoxification center. Because Sehwensow appeared ill, Sehicker allowed him to enter the office. Once inside, Sehickеr assisted Sehwensow in calling the mental health complex, which in turn suggested that Sehwensow go to a public detoxification center. Sehwensow accepted Schicker’s offer to drive him to the facility, but added the condition that he first needed to drop off his duffle bag at his, or a friend’s, apartment. Reluctant to give him the opportunity to change his mind and be side-tracked from immediately entering detoxification, Curran and Sehicker offered to store the bag at the Alcoholics Anonymous office until Sehwensow was released from the detoxification program. Sehwensow agreed.
*653 After conveying Schwensow to the detoxification center and returning to the Alcoholics Anonymous office, Schieker and Curran opened Schwensow’s bag, fearing that it might contain contraband. Inside they found a .380 semi-automatic pistol, a 12 gauge “sawed-off’ shotgun, burglary tools, a police scanner, and a mask. Schieker and Curran immediately called police officers, who responded and took possession of the bag. A background check on Schwensow revealed an open warrant for his arrest. The police arrested Schwensow at the detoxification center that same night and transported him to the West Allis Police Department. The detective on duty at the jail, Detective McIntosh, read Schwensow his Miranda rights and attempted to ask him a few questions about the bag and its contents. Schwensow verbally waived his right to remain silent and to have an attorney present and denied ownership of the weapons found in the bаg. Detective McIntosh then asked for permission to search Sehwensow’s apartment, but Schwensow refused. When Detective McIntosh advised him that his case was serious, Schwensow responded “I am dying of a progressive liver disease.” At this point, Detective McIntosh considered the interview to be over. The next morning, on November 30, 1995, Schwensow was transported to a medical facility for treatment. He returned to the municipal jail the same day.
Detective Benish of the West Allis Police Department arrived at the municipal jail in the morning of December 1, 1995 and found Schwensow asleep in his cell. Detective Benish awakened him, led him to an interview room, and advised him of his Miranda rights. Schwensow responded that he was familiar with his rights and that he would like to waive them. He then told Detеctive Benish that the items in the duffle bag were his and that he had intended to sell them. Schwen-sow also granted Detective Benish permission to search his apartment, provided he could be present during the search. Detective Benish agreed to this condition and read Schwensow a consent to search form. Schwensow signed the form after stating that he understood it.
Detective Benish, Schwensow, and an additional police officer went to Schwensow’s apartment building shortly thereafter. The building manager informed them that because Schwensow had failed to pay his rent, his belongings had been removed from apartment 306 and placed in apartment 200, which the building manager used as a storage area. The group proceeded first to apartment 306, which was devоid of Schwensow’s possessions except for a bag containing lockpicking and locksmithing equipment, gloves, a mask, and a flashlight that the police recovered only after Schwensow told them of its concealed location. They then proceeded to apartment 200, where they found more locksmithing items, wigs, and ammunition for a .380 pistol and a shotgun. Schwensow neither voiced an objection to the search of either apartment nor denied ownership of the items recovered.
In the late afternoon of the same day, Detective Benish re-interviewed Schwensow. Detective Benish read Schwensow his Miranda rights once more, and Schwensow responded that he again would waive his rights. Schwensow again acknowledged that the duf-fle bag and the guns left аt the Alcoholics Anonymous office were his.
The government charged Schwensow with two counts of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). Prior to trial, defense counsel filed a motion to suppress the statements made to Detective Benish on December 1, 1995 and the evidence seized from Schwensow’s apartment building that same day. Schwensow claimed that the statements were made after he had invoked his right to silence and that both the statements and the consent to search were given involuntarily because he was suffering at the time from delirium tremens, blackouts, hallucinations, and the effects of an anti-anxiety medication called Ativan. The district court conducted a hearing and heard testimony from both Detective Benish and Schwensow. Dеtective Benish testified that Schwensow did not appear to be suffering from hallucinations or to be under the influence of drugs; rather, he was cordial, articulate, and alert. Schwensow testified to the contrary, contending that he constantly thought that the walls were closing in on him *654 and that the police were going to kill him. The district court denied the motion, finding that Detective Benish was more credible than Schwensow and that there existed no evidence of involuntariness, coercion, or a failure by the police to scrupulously honor Schwensow’s Fifth Amendment rights.
The district court also denied Schwensow’s motion to preclude the government from offering at trial any evidence obtained as a result of his communications with the Alcoholics Anonymous telephone hotlinе volunteers Curran and Schicker on the ground that they were not counselors qualified to hear confidential communications. Schwen-sow argued that he believed Curran and Schicker were professional counselors and that the advice they gave him constituted “the early stages of treatment.” The district court subsequently reexamined its ruling in light of the Supreme Court’s decision in Jaffee v. Redmond,
Schwensow went to trial and the court found him guilty on both counts of the indictment. The judge subsequently sentenced him to 262 months’ imprisonment.
II. ISSUES
Schwensow advances five, arguments for our consideration. Initially, he contends that the district court violated his rights under the Speedy Trial Act when it commenced trial less than thirty days after he decided to proceed pro se and, alternatively, abused its discretion when it refused to grant him a continuance. Second, he asserts that the court erred in refusing to suppress the statements he made to the Alcoholics Anonymous workers the night of his arrest. Third, he maintains that the .trial judge erroneously admitted into evidence the statements he made to Detective Benish on December 1, 1995. Fourth, he claims that the district court erroneously admitted .into evidence items seized from his apartment building on December 1, 1995. Fifth, he contends that the court erroneously failed, to depart downward from the United States Sentencing Guidelines because of his advanced age, poor physical condition, and the extreme age of his criminal history (his prior convictions were in 1973 and 1986).,
III. DISCUSSION
A The Denial of Schwensow’s Request for a Continuance
Initially, Schwensow contends that the district court violated the Speedy Trial Act, 18 U.S.C. § 3161(c)(2), by commencing trial less than thirty days after he decided to proceed
pro se,'
and abused its discretion when it refused to grant his last-minute request for a continuance. Schwensow’s failure to raise these issues before the district court renders our review limited to plain error.
United States v. Wilson,
Even though Schwensow’s original trial date was set for February 20, 1996, he discharged his court-appointed attorney two weeks before trial and filed a motion requesting the appointment of new counsel. The court granted the motion, agreed to appoint another attorney, and postponed trial until the appointment had been made. On March 19, 1996, Schwensow’s new attorney filed a motion for adjournment of trial. The trial court granted the motion and reset the trial for April 15, 1996. On April 9, 1996, defense counsel filed a second motion for adjournment of trial. The court granted the motion and again postponed the trial until May 20, 1996. On May 9, 1996, defense counsel filed a third motion for adjournment of trial. Again, the court granted the motion and rescheduled the trial for August 5, 1996. On June 27, 1996, the court conducted the final pretrial conference. At the conference, defense counsel explained that he had been unable to retain a medical expert. The court granted the defendant additional time to re *655 tain a qualified expert and also agreed to reschedule the trial for October 7, 1996. On September 27, 1996, Schwensow filed 'a motion to be relieved of his second court-appointed counsel and for permission to proceed pro se. The district court granted the motion on October 4, 1996, also accepting Schwensow’s waiver of a trial by jury at that time. On the day of trial, Schwensow requested a continuance, explaining that he had not had adequate time to prepare his ease, The court denied the request, сiting its crowded court calendar and the age of the case as the reasons for its denial. Schwen-sow represented himself during the morning-session of the first day of trial and then permitted his former court-appointed attorney, who had been acting as stand-by counsel pursuant to the court’s direction, to conduct the remainder of trial.
Section 3161(e)(2) of the Speedy Trial Act prohibits a trial from taking place before the defendant has had an opportunity to prepare his defense. Specifically, it provides that “[ujnless the defendant consents in writing to the contrary, the trial shall not commence less than thirty days from the date on which the defendant first appears through counsel or expressly waives counsel and elects to proceed pro se.” 18 U.S.C. § 3161(c)(2) (emphasis added). Focusing on the italicized language of the statutе, Schwensow asserts that the relevant date for purposes of starting the 30-day countdown to trial is October 4, 1996 — the date the district court granted his request to proceed pro se. Under his reading of the Act, it was error for the district court to commence trial only three days later.
Sehwensow’s argument fails. We rejected this very argument in
United States v. Moya-Gomez,
Alternatively, Schwensow contends that the district court abused its discretion when it declined to continue the trial.
2
The
*656
district court denied Schwensow’s motion, made on the actual day of trial, duе to its crowded docket and the fact that the case had been on the trial calendar for over seven months. We will reverse the trial court’s denial of a continuance only for an abuse of discretion and a showing of actual prejudice.
United States v. Depoister,
The district court was in the best position to evaluate and assess the circumstances presented by Schwensow’s request for a continuance, and we find nothing in the record to. support-the contention that the court’s decision to deny the request was an abuse of discretion: Relevant factors to this determination include “the quantum of time available for preparation, the likelihood of prejudice from denial, the accused’s role in shortening the effective preparation time, the dеgree of complexity of the case, [and] the availability of discovery from the prosecution.”
United States v. Studley,
Schwensow álso' accuses the trial court of being largely responsible for shortening his preparation time by waiting to rule on his motion to proceed
pro se
until three days before trial. We are forced to disagree with Schwensow’s lament that he only had three days to prepare for triаl because nothing prevented Schwensow from preparing for trial while awaiting the district court’s decision regarding his motion. This is certainly one of the many dangers of proceeding
pro se
in a criminal trial, particularly just two weeks before trial. The end résult was brought on exclusively by the actions of the defendant, especially his inclination to alter the status of his legal representation.
See United States v. Studley,
B. The Admission of Schwensow’s Statements to the Alcoholics Anonymous Workers
Next, Schwensow maintains that the district court committed revеrsible error when it ruled that his statements to the Alcoholics Anonymous volunteer telephone operators Curran and Schieker were not protected from compelled disclosure as confidential statements under Rule 501 of the Federal Rules of Evidence.
3
We review the district court’s determination on this issue for an abuse of discretion.
Patterson v. Caterpillar, Inc.,
Sixth months before Schwensow’s arrest in November of 1995, this circuit joined the
*657
Second and Sixth Circuits in recognizing a psychotherapist-patient privilege in both criminal and civil cases.
See Jaffee v. Redmond,
Our first task is to determine whether or not the district court erred in concluding that Curran and Schicker failed to qualify as psychotherapists, social workers, or another kind of counselor entitled to receive privileged communications. Having reviewed the record, we are convinced that the trial court did not commit error in deciding this issue. It is undisputed that neither Curran nor Schicker possessed credentials that might qualify them as licensed to receive privileged communications. Nor did they act or hold themselves out to be acting in the capaсity of counselors, much less licensed counselors. They did not identify themselves as therapists or counselors, nor did they confer with Schwensow in a fashion that resembled a psychotherapy session. Further, the Alcoholics Anonymous office did not contain any indicia of being an office that provided counseling services. Moreover, Schicker testified at trial that he has a bachelor’s degree in marketing and has never received any training in psychotherapy, social work, or any other kind of counseling. Similarly, Curran testified that she has an associate’s degree in hotel/restaurant management and has never had any kind of mental health training. 4
We agree with the trial judge’s ruling that Schwensow did not speak with Curran and Schicker for purposes of diagnosis or treatmеnt and thus did not engage in “confidential communications.” Accordingly, we find no abuse of discretion. Schwensow approached the Alcoholics Anonymous office because the local library was unable to provide an address for a detoxification center, not because he wanted help coping with his alcoholism. In fact, he testified at trial that he had made up his mind to enter detoxification even before venturing in search of the *658 Alcoholics Anonymous office. Once at the office, the defendant simply asked to use the telephone. With Schicker’s aid, he learned the address of a detoxification center. These 'interactions did not relate to diagnosis, treatment, or counseling of Schwensow for purposes of attempting, to treat his alcoholism; rather, they involved a request to use the telephone, encouragement to stick to an already formulated plan to enter detoxification, a discussion about what to do with a bag, and an offer of a ride. Under no circumstances can these communications be interpreted as “confidential communications” entitled to protection from disclosure under Rule 501.
C. The Admissibility of Schwensow’s Statements to Detective Benish
Next, Schwensow challenges the district court’s' denial of his motion
to
suppress the statements he made to Detective Benish on December 1, 1995. Schwensow argues that he invoked his right to cut off questioning and to remain silent the night of his arrest, such that Detective Benish’s two interviews on December 1,1995 constituted a failure to “scrupulously honor” his Fifth Amendment rights under
Miranda v. Arizona,
Even though Schwensow may have invoked his right to silence, the police were entitled to resume questioning later. In
Michigan v. Mosley,
The trial court ruled that Detective Benish’s interviews were proper under Mosley because the police immediately ceased questioning Schwensow upon his invocation of the right to remain silent and did not resume questioning until a significant amount of time (36 hours) had lapsed and a fresh set of *659 Miranda warnings had been provided. Although the crime discussed during the period of the second and third interrogations covered the same sphere of inquiry at issue in the first interrogation, the court felt that this factor did not render the latter interviews unconstitutional. Schwensow does not contest the district court’s conclusion that the police immediately ceased interrogation upon his alleged possible invocation of silence or that the police provided fresh warnings prior to commencing the second and third interrogations. What Schwensow takes issue with is the fact that the subsequent interviews concerned the same subject matter that was discussed at the first interview. This variance, Schwensow maintains, is at odds with Mosley and renders the subsequent statements unconstitutional.
This circuit has not yet ruled on the issue of whether
Mosley
is satisfied when a suspect invokes his right to silence and the police later resume questioning regarding the same crime. However, many of our sister circuits have addressed this very quеstion and concluded that a second interview is not rendered unconstitutional simply because it involved the same crime as previously discussed.
United States v. Andrade,
We join these circuits in holding that the constitutionality of a subsequent police interview depends not on its subject matter but rather on whether the police, in conducting the interview, sought to undermine the suspect’s resolve to remain silent. This approach naturally follows from
Mosley,
which neither elevates any one factor as predominant or dispositive nor suggests that the enumerated factors are exhaustive, but instead directs courts to focus on whether the confession “was obtained in a manner compatible with the requirements of the Constitution.”
Miller v. Fenton,
In the alternative, Schwensow contends that the statements he made to Detective Benish on December 1,1995 should be suppressed because his alcohol and drug-impaired mental state at the time of Detective Benish’s interviews precluded a valid waivеr of his
Miranda
rights. We review
de novo
a district court’s determination of whether a
Miranda
waiver was knowing and voluntary.
United States v. Doe,
The question of whether Schwensow provided Detective Benish with a knowing and voluntary waiver of his
Miranda
rights is essentially one of fact.
United States v. Brooks,
D. The Admissibility of the Evidence Seized from Schwensow’s Apartment Building
Next, Schwensow argues that the district court violated his Fourth Amendment right to be secure in his person, house, and effects when it denied his motion to suppress the evidence seized from his apartment building on December 1, 1995, which included masks, wigs, lockpieldng equipment, and ammunition. He maintains that the search was invalid because it was conducted without a warrant and without a voluntary consent. Once again, Schwensow claims that the involuntariness of the consent to search stems from the deleterious effects of his alcohol withdrawal and Ativan medication. We review the district court’s . determination for clear error.
United States p. Mitchell,
The same analysis governs this issue as governed the question of whether Sehwen-sow’s December 1,1995 statements were voluntarily made.
See United States v. White,
Separate mention is warranted with respect tо the search of apartment 200, which is the apartment that housed Schwensow’s possessions after he fell behind in his rent. The district court concluded that Schwensow had no subjective or objective expectation of privacy in apartment 200 because he did not pay rent for the apartment, did not have a key to the apartment, and never used the apartment for any purpose. Schwensow argues that because he was unaware of, and did not consent to, the removal of his property, he retained a valid privacy interest as to apartment 200. We find no merit to Schwensow’s argument, and we part ways somewhat with the district court’s analysis. When Schwensow granted Detective Benish permission to search apartment 306, he believed his belongings аll resided within that apartment. Accordingly, he signed a consent form that permitted Detective Benish to search *661 through all of his possessions. Although Schwensow and Detective Benish later discovered that Schwensow’s possessions had been moved to a different apartment, we do not believe this action negated the consent, particularly in view of the fact that Schwen-sow did not voice any objection contemporaneous with the search of apartment 200. Accordingly, we conclude that the consent to search form Schwensow signed at the jail gave Detective Benish permission to search his possessions, regardless of their exact location.
E. The Refusal to Depart Doumward on Schwensow’s Sentence
Finally, Schwensow argues that the district court abused its discretion in failing to depart downward оn his sentence on account of his age (58), poor physical condition (liver disease), and the age of his prior criminal history (prior convictions in 1973 and 1986). This court is without jurisdiction to review this claim. We “do not possess jurisdiction to review [the] district court’s discretionary refusal to depart downward from the sentencing guidelines.”
United States v. Cureton,
The judgment entered by the district court is Affirmed.
Notes
. As in
Moya-Gomez,
we need not decide the exact meaning of the phrase “first appears through counsel.”
Cf. Moya-Gomez,
. Although Congress intended through § 3162(c)(2) of the Speedy Trial Act to guarantee a defendant a minimum period with which to prepare for trial, " 'the statute only partially addresses Congressional concern about the adequacy of preparation....”’
Moya-Gomez,
. Rule 501 provides that the privilege of a witness "shall be governed by the principles of the common law as they may he interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness ... shall be determined in accordance with State law.” Fed. R. Evid. 501.
. Other than licensed psychiatrists, psychologists and social workers, the Supreme Court in
Jaffee
did not define "psychotherapist.” The district сourt, citing language from
Jaffee
indicating that the new privilege should be handled on a case-by-case basis, decided to look to Wisconsin's own version of the psychotherapist-patient privilege for assistance in determining the scope of the psychotherapist-patient privilege.
See
Wise. Stat. Ann. § 905.04;
Jaffee,
. Schwensow never expressly invoked this right during his interview with Detective McIntosh. Rather, he denied ownership of the duffle bag and its contents, profanely refused to permit a search of his apartment, and responded to Detective McIntosh’s observation that his case was serious by saying: "I’m dying of a progressive liver disease.” Detective McIntosh took these collective responses as an indication that he did not want to talk about the case. Based on the testimony elicited during a hearing conducted to rule on Schwensow’s motion to suppress, the district court concluded that Schwensow invoked his right to silence. Because this was a factual determination based on the entire context within which Schwensow spoke to Detective McIntosh, we will not substitute our judgment for the district court’s decision.
United States v. Banks,