The opinion of the court was delivered by: Rakoff, District Judge.
On May 19, 1998, Robert Carucci, formerly a floor broker at the
New York Stock Exchange, pleaded guilty to knowingly engaging in
unlawful securities trading in violation of the rules of the
Exchange (and of the Securities and Exchange Commission) over a
period of more than four years between 1993 and early 1998. Prior
to sentencing, Carucci moved for a downward departure under
Section 5K2 .13 of the Sentencing Guidelines, a "policy
statement" (see 28 U.S.C. § 994(a)(2)) that provides in
pertinent part that "A sentence below the applicable guideline
range may be warranted if the defendant committed the offense
while suffering from a significantly reduced mental capacity."
Specifically, Carucci claims he committed his crimes while
suffering from a significantly diminished mental capacity
attributable to a compulsive gambling disorder.
After receipt of the parties' written submissions, the Court
convened a two-day evidentiary hearing, followed by still further
briefing. Having now reviewed the entire record, the Court denies
defendant's motion, for the following reasons.
Compulsive gambling is a real and significant psychological
disorder (and social problem), from which Mr. Carucci undoubtedly
suffered.*fn1 In the years preceding his entry into criminal
activity, Mr. Carucci gambled immodestly and inordinately, lost
$1 million or more in the process, and, in consequence, lost his
spouse, his financial security, and his self-respect. Thus, if
Carucci were charged with, say, engaging in unlawful gambling,
his claim for a diminished capacity departure would be colorable,
for there is substantial evidence that, when it came to gambling,
his ability to exercise either reason or control was
significantly impaired. See U.S. Sentencing Guidelines Manual §
5K2.13, Application Note (1998) ("For purposes of this policy
statement — `Significantly reduced mental capacity' means the
defendant, although convicted, has a significantly impaired
(A) understand the wrongfulness of the behavior comprising the
offense or to exercise the power of reason; or (B) control
behavior that the defendant knows is wrongful."). See also
United States v. McBroom, 124 F.3d 533 (3d Cir. 1997).
But a compulsive gambler is not, a fortiori, a compulsive
illegal trader. While defendant's large gambling losses may have
sufficiently exceeded his otherwise substantial income as to
create an incentive to engage in lucrative unlawful trading,
economic pressure hardly equates with diminished mental capacity.
Accordingly, defendant, although alleging that compulsive
gambling provided an economic incentive for his crime, goes
further and asserts that what finally pushed him over the edge
were the same psychotic demons that led to his compulsive
gambling and that here found expression in the allure of illegal
trading with its high stakes and high risks — a form of
"substitute gambling" he could neither resist nor renounce.
The Court finds, however, that this hypothesized psychological
state is insufficiently supported by the evidence here
adduced.*fn2 When invited by his colleagues to participate in
this illegal trading, defendant, though recognizing the
wrongfulness of such conduct, yielded to temptation without
anything like a Dostoevskian struggle. He knew, the Court finds,
that it was easy money (roughly $10,000 or more a month), that he
was unlikely to be caught, and that his activity, even if
detected, might be "explained" away (as defendant attempted to do
when, as now admitted, he purposely tried to mislead the
Government agents who questioned him in November 1997).
For more than four years, while his gambling activity waxed and
waned and his economic and personal vicissitudes came and went,
Mr. Carucci continued with his calculated, sophisticated criminal
activity, free of any outward sign of diminished mental capacity.
Although the psychological construct proffered by the defense is
sufficiently flexible to accommodate even such calculated
misconduct,*fn3 the much simpler explanation is that defendant,
having both the motive and opportunity to cheat and steal, freely
chose to do so. The Court is not persuaded to the contrary.
Accordingly, defendant's departure motion is denied.