The opinion of the court was delivered by: Weinstein, Senior District Judge.
Coming from Amsterdam via Paris, Johanna DeRoover was apprehended at
John F. Kennedy Airport with slightly less than a kilogram of heroin
concealed in her clothing. Almost immediately she agreed to assist in a
controlled delivery; it was unsuccessful, leading to a denial of a 5K1
letter by the government for cooperation that would have authorized a
virtually unreviewable downs ward departure.
The Guideline offense level has been properly computed as 21, requiring
a custodial sentence of 37 to 46 months. Any downward departure is
opposed by the government. For the reasons indicated below a departure
downward to level 9, with a sentence of five months in prison is
Ms. DeRoover is a thirty five year old citizen of the Netherlands. She
had a particularly difficult childhood, involving frequent beatings by
her own father; at times so severe that she could not attend gym class
because of extensive bruises.
The father of Ms DeRoover's first child died in a train wreck. Her
second child's father beat Ms. DeRoover, at one point breaking her nose;
he has disappeared. The father of her last three children committed
suicide during a bout of despondency after his sister and her child died
in an airplane crash.
All Ms. DeRoover's five children — ages 16; 11, 8, 7, and 6
— live with her. The family has been supported by her wages as a
waitress or as a machine operator in a pharmaceutical factory, as well as
by a pension received by two of her children because of the death of
their father, and by some public assistance. Her last employer has
indicated that he would like to rehire her as a waitress upon her return
Ms. DeRoover graduated from high school in Amsterdam. She appears to be
intelligent, though, understandably, highly stressed. She has never used
A family therapist in Amsterdam was visited regularly by Ms. DeRoover
and her older children. Following a sexual assault on one of the children
a mental health counselor was consulted by the child and Ms. DeRoover. In
prison Ms. DeRoover has had some preliminary symptoms signaling the
possible onset of ovarian cancer. She has been informed that there is a
strong hereditary trait
for this disease in her family. Her two sisters have cancer.
One child suffers from "separation anxiety" as a result of the absence
of his mother. He has been under psychiatric observation after adverse
contacts with the police.
The elderly mother of Ms. DeRoover is now caring for the children. It
seems doubtful that she could continue to carry this burden were
defendant incarcerated for a substantial period in the United States. She
herself has diabetes.
The prosecution of Ms. DeRoover has come to the attention of the
probation institution in the Netherlands. See Report of Dutch Probation,
Foreign Department, 8 December, 1998. Dutch Probation reports that "[i]n
order to prevent further damage to the children we think it is of the
utmost importance that the continuation of this situation [separating the
children from Ms. DeRoover] has to be confined to a minimum." Id. at p.
3. In conclusion it states, "We declare ourselves prepared to take care
of appropriate psychological assistance." Ibid.
The Netherlands probation system has had a great deal of experience
treating people who use or who traffic in drugs. See e.g., Lisa M.
Branculli, The War, on Drugs: Fact, Fiction and controversy, 21 Seton
Hall Legis. J. 169, 188-189 (1999). The institutions of the Netherlands,
the court judicially notices, can be trusted to carry out their
commitment to supervise and to assist Ms. DeRoover and her family.
There has been no suggestion that Ms. DeRoover has ever committed
another crime. It can be reasonably predicted that, with adequate
supervision and help, non-recidivism, the equivalent of rehabilitation,
is assured. It is highly unlikely that Ms. DeRoover will ever commit
another crime. Rehabilitation of Ms. DeRoover is extraordinary.
Availability of a job will also assist her in avoiding future criminal
conduct and in supporting her family. Extraordinary rehabilitation is an
appropriate basis for downward departure under the Guidelines. See e.g.,
United States v. Bryson, 163 F.3d 742, 749 (2nd Cir. 1998) (downward
departure is warranted if district court finds extraordinary
The special need to promptly unite Ms. DeRoover with her family is
obvious. The unique dependence of children on a defendant is a basis for
a downward departure. See e.g., United States v. Galante, 111 F.3d 1029
(2nd Cir.), reh'g en bane denied, 128 F.3d 788 (2d Cir. 1997)(approving a
district court's thirteen-level downward departure for a defendant with
two young children, ages eight and nine, who was a caregiver and the
primary earned for family); United States v. Johnson, 964 F.2d 124 (2nd
Cir. 1992)(approving a 13-level ...