then proudly showed off the feces-stained broom handle.
(iv) Extreme Pressures and Diminished Capacity
Volpe attributes his conduct in part to the confusion and fear
resulting from the events at the nightclub, where he was yelled
at and punched to the ground. Volpe was also reportedly feeling
the stress of being a police officer in an inner city precinct.
But however frightened and angry he was, Volpe's response was
wildly out of proportion to the pressures upon him.
Volpe also says his overall psychological and emotional
condition added to these immediate pressures. At defense
counsel's request, Dr. N.G. Berrill, a psychologist, interviewed
Volpe and provided a psychological profile to the Probation
Department. Dr. Berrill found that Volpe was "vulnerable to
becoming overly influenced by [intense] emotions" and to poor
decision making "at times of significant external stress." He
concluded that the "principal catalyst" for Volpe's criminal
behavior was Volpe's "fear, anxiety, physical pain and momentary
disorientation [and] sense of powerlessness out on the street."
But Dr. Berrill also concluded that Volpe was a "basically
normal, 25-year old police officer" of average intelligence from
a stable and supportive family. Cf. United States v. DeRoover,
36 F. Supp.2d 531 (E.D.N.Y. 1999) (single mother's extensive history
of sexual abuse and family suicide and need to provide for five
children weigh in favor of aberrant behavior departure); United
States v. Fairless, 975 F.2d 664, 668 (9th Cir. 1992)
(defendant's manic depression supported finding of aberrant
The Court has carefully considered Dr. Berrill's report as well
as the exhaustive evidence adduced at trial, but finds no basis
to conclude that Volpe acted under the sort of "extreme pressure"
that warrants a departure for aberrant behavior.
In a footnote, Volpe claims his psychological condition also
justifies a departure under § 5H1.3, "Mental and Emotional
Condition," or § 5K2.13, "Diminished Capacity." But §
5H1.3 states that mental and emotional conditions are not
ordinarily grounds for a departure, "except as provided in
Chapter 5, Part K, subpart 2 of the Guidelines." Section 5K2.13
allows a departure where the defendant suffered from "a
significantly reduced mental capacity," defined in Application
Note 1 as "a significantly impaired ability" to understand the
wrongfulness of one's acts or control wrongful behavior. U.S.S.G.
§ 5K1.13 at comment. (n. 1). A Court may not depart under
§ 5K2.13 where "the facts and circumstances of the
defendant's offense indicate a need to protect the public because
the offense involved actual violence." U.S.S.G. § 5K2.13(2).
Even if Volpe was suffering from a reduced mental capacity, which
he was not, his offense disqualifies him from receiving this
Volpe makes no claim that his motivation should weigh on the
side of leniency. Indeed, his admitted intention to "humiliate"
and "intimidate" his victim significantly undermines his claim of
Volpe's claims regarding mitigation — that he has apologized to
Louima and has tried to see that his "real" accomplice is brought
to justice — merit little discussion. Far from cushioning the
impact of his offense, Volpe made things worse by threatening to
kill Louima and boasting to fellow officers about his acts. He
hid material evidence and made absolutely no effort to assist the
prosecution or the Court until well into the trial. Even then, as
discussed, his efforts at cooperation were useless if not
deliberately obstructive. Cf. United States v. Delvalle,
967 F. Supp. 781, 784 (E.D.N.Y. 1998) (defendant's extraordinary
assistance to the government
and the judicial system, despite the absence of 5K1.1 letter,
supported finding that offense conduct was aberrant).
Twenty months after the sexual assault, Volpe made statements
through his attorney and to the press intimating that Louima's
injuries were attributable to a homosexual encounter. His
expressions of remorse to the Probation Department in preparation
for sentencing do little to mitigate the effects of his earlier
behavior. Cf. United States v. Rosier, No. 98-1425, 1999 WL
197217, at **2 (2d Cir. 1999) (failure to mitigate partially
outweighs lack of criminal history); United States v. Russell,
870 F.2d 18 (1st Cir. 1989) (departure warranted where armored
truck driver kept bag containing $80,000 in cash that was handed
to him by mistake, but returned cash within a week and cooperated
with the criminal investigation).
In sum, the totality of circumstances do not indicate that
Volpe's offense conduct was sufficiently aberrant to warrant a
Volpe moves for a departure on the basis of the "victim's"
conduct. He says that Louima's verbal confrontation with Volpe
outside the nightclub contributed to his actions. He also seeks
to impute to Louima the punch thrown by Jay Nicholas, since Volpe
mistakenly believed it was Louima who hit him.
A Court may depart downward if a victim's conduct "contributed
significantly to provoking the offense behavior." U.S.S.G. §
5K2.10. In applying this guideline, the Court considers, among
other things, the comparative size and strength of the victim and
defendant; the persistence of the victim's conduct; and the
danger reasonably perceived by and actually presented to the
defendant. See id. § 5K2.10(a)-(e).
To rephrase Volpe's argument is to refute it. Volpe essentially
contends that Louima's brief verbal affront, together with
Volpe's mistaken belief that Louima had punched him, "provoked" a
series of physical assaults at different sites over the course of
at least thirty-five minutes culminating in a violent sexual
assault on a handcuffed, bloodied man that left his victim
hospitalized for two months.
In any event, "[v]ictim misconduct ordinarily would not be
sufficient to warrant application of this provision in the
context of the [criminal sexual abuse]." U.S.S.G. § 5K2.10.
Volpe says the "language limiting" this aspect of the guideline
leaves room to depart. The only such limitation is that the
guideline does not "ordinarily" allow departure from a sentence
for criminal sexual abuse. Id. (emphasis added). Volpe's sexual
assault is extraordinary only for its violence and its commission
by a uniformed police officer against a handcuffed prisoner. No
departure is warranted.
Except as noted above in this memorandum and order, the Court
adopts the Probation Department's findings as set forth in the
Presentence Report and the addendum thereto.
A. Offense Levels
Count IA and Count III: Conspiracy to Deprive and Deprivation of
Civil Rights by Aggravated Assault of Abner Louima
Base offense level
Deprivation of civil rights by aggravated
assault (§§ 2H1.1(a)(1), 2A2.2(a)) 15
Bodily injury to victim (§ 2A2.2(b)(3)) 2
Acts committed by public official or under
color of law (§ 2H1.1(b)(1)(B)) 6
Physical restraint of victim (§ 3A1.3) 2
Adjusted offense level: 25
Count IB and Count IV: Conspiracy to Deprive and Deprivation of
Civil Rights by Aggravated Sexual Abuse of Abner Louima