United States District Court, Southern District of New York
February 6, 2003
UNITED STATES OF AMERICA,
CARLOS ALBERTO TANASI, DEFENDANT
The opinion of the court was delivered by: Robert W. Sweet, United States District Judge
Defendant Stephen Tanasi ("Tanasi") pleaded guilty on May 14, 2002 to receiving and distributing computer files that contained child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B). For the reasons set forth below, Tanasi's sentence will consist of 9 months in federal custody, to be followed by a three-year term of supervised release, subject to the sentencing hearing now set for February 11, 2003 before this Court. A special assessment fee of $100 is mandatory and will be due immediately.
Tanasi was born on January 26, 1970, in Bristol, CT. Tanasi's family describe him as "hard working and responsible" and "a loving and loyal son." His employer at Quality Coils, Inc., stated that Tanasi has been a loyal employee for more than 12 years and is well regarded by his peers. Tanasi holds the position of tool maker and earns $21.50 hourly. He dropped out of Bristol Central High School during the twelfth grade to seek employment. He later obtained his general equivalency diploma. Tanasi lived at home until he was twenty five years of age.
Tanasi has never married and has no children. For the past year and a half, Tanasi has been involved with Sharon Alff, who moved into Tanasi's residence in November 2001. Ms. Alff, 34, is presently going through a divorce and has two children, ages 13 and 11, who reside at Tanasi's residence with their mother. Tasani and Ms. Alff have discussed the possibility of getting married. They have participated in video conferencing with other adults in which they transmitted and shared images of themselves having sex.
Because the offense involved sexual deviancy, Tanasi was referred for a psychosexual evaluation in order to assess his psychologic functioning and to determine from a clinical perspective whether or not he poses a risk to the community.
Tanasi was seen by William F. Hobson, M.S., a clinical member of the Connecticut Association for Treatment of Sexual Offenders. Mr. Hobson found that there "was no evidence that Mr. Tanasi has engaged in overt, `hands on' sexual contact with minors. He has been involved in at least two relationships with women who have children, and verbalizes a sensitivity to their possible concerns . . ." However, it was beyond the scope of the clinical evaluation to determine Tasani's sexual interest or his intent with respect to engaging in a specific behavior. Mr. Hobson suggested that the administration of an Abel Screen test would assist in determining Tanasi's sexual interest in children.
Tanasi was also evaluated by Dr. Leslie Lothstein, Ph.D. ABPP in January 2002, at the request of his attorney. Intelligence tests described by Dr. Lothstein indicate that Tanasi is functioning in the average range of intelligence. The Abel and Becker Cognition Scale, a psychosexual assessment tool, were within normal limits. Tanasi did not ascribe to any items suggesting he has an interest in actually engaging in adult-child sex.
It was Dr. Lothstein's determination that Tanasi was "collecting thousands of images of adult pornography or anything he could receive because he has a compulsive and sexual addiction to pornography and is easily sexually aroused by anything." Dr. Lothstein found that Tanasi "is a very naive, socially awkward, immature individual with a non-paraphilic sexual disorder: a compulsive addiction to pornography and involvement in nonparaphilic but addictive behavior with his partner." (Paraphilic disorders are a complex of sexual disorders, one of the most common of which is pedophilia). Dr. Lothstein opined that although there was no way to fully determine if Tanasi "is telling the truth about his lack of interest in having sex with children" it was reasonable to conclude that "there is no evidence that Mr. Tanasi is a sexual predator or that he has ever been involved with children sexually or in anything but consensual sex with age appropriate adults." Dr. Lothstein wrote that "it would appear that his general sexual curiosity, hyperarousal to anything sexual and sexual addiction was beyond his control."
On July 18, 2001, while in an Internet chatroom named Preteenrapesex Tanasi sent 13 images of child pornography to an undercover officer of the Rockland County Sheriff's Office posing as "nycgirle." Tanasi, using the name "Steve 70" initiated the private chat dialogue with nycgirle and asked if she wanted to trade some pictures. Tanasi sent numerous files to nycgirle that contained images of pre-adolescent individuals engaging in the sexual activity, including fellatio. After Tanasi sent the pictures, nycgirle self-identified as a thirteen year old girl and Tanasi identified as a 31 year old individual.
United States Secret Service agents reviewed the computer images sent to the undercover officer, as did the National Center for Missing and Exploited Children (NCMEC). The thirteen computer images sent by Tanasi appear to be of minors engaged in simulated and actual sexual acts.
When confronted by agents Tanasi admitted that he had sent the images from his computer during a chat session, and that he had many other similar images stored in his computer. In a written statement, Tanasi related that "in the past 8 months I have traded hundreds of pictures of underage girls, under 16 years that are pornographic." Tanasi was arrested on August 28, 2001.
The 2001 edition of the United States Sentencing Guidelines (the "Guidelines") has been used in this case per § 1B1.11(b)(1). The base offense level for the a violation of 18 U.S.C. § 2252A(a)(2) is found in § 2G2.2 is 17. As the images involved a minor under the age of twelve years of age, two levels are added pursuant to § 2G2.2 (b)(1). Because Tanasi distributed the images, two levels are added pursuant to § 2G2.2 (b)(2)(E). As a computer was used for the transmission of the material, two levels are added pursuant to § 2G2.2 (b)(2)(5). Based on Tanasi's acceptance of responsibility, three levels are subtracted, resulting in an adjusted and total offense level of 20.
Tanasi has no known criminal convictions and therefore has a Criminal History Category of I. The Guidelines provide a sentencing range of 33-41 months, which is overly punitive for a transmission of pornography over the Internet.
A departure outside this Guideline range is permissible if the Court "finds that there exists an aggravation or mitigating circumstance of a kind not, or to a degree, not adequately taken into consideration by the Sentencing Commission [the `Commission'] . . ." 18 U.S.C. § 3553 (b); U.S.S.G. § 5K2.0. The Commission has listed some of the factors that it has not taken fully into account, 5K2.0, passim, which serve as encouraged basis for departure.
Section 5K2.13 provides that a downward departure may be warranted where there was diminished capacity, where the "defendant committed the offense while suffering from a significantly reduced mental capacity." The Commission, in an application note, has defined significantly reduced mental capacity as an impaired ability to "(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." § 5K2.13.1. The Second Circuit has confirmed that downward departure is permitted in child pornography cases. United States v. Silleg, 311 F.3d.557, 563 (2d Cir. 2002).
The Court may not depart, however, if (1) the reduced mental capacity "was caused by the voluntary use of drugs or other intoxicants"; (2) "the facts and circumstances of the defendant's offense indicate a need to protect the public because the offense involved actual violence or a serious threat of violence; or (3) the defendant's criminal history indicates a need to incarcerate the defendant to protect the public." § 5K2.13. Diminished capacity has been considered in the context of compulsion to possess child pornography. United States v. McBroom, 124 F.3d 533 (3d Cir. 1997) (defendant pointed to childhood abuse "merely to explain why his mental capacity was reduced to the point where [defendant] felt compelled to possess child pornography"); see also United States v. Thompson, 2002 WL 31730718 *5 (Dec. 6, 2002) (9th Cir. 2002). (Berzon, J., concurring).
Evidence in the record indicates that Tanasi suffered from a diminished capacity. His obsessive and compulsive behavior, the collection and transmitting of all types of pornography, transmitting live images of himself having sex, supports the conclusion advanced by Dr. Lothstein that Tanasi is addicted to pornography or at the least was unable to control his behavior and thereby suffered a significantly reduced mental capacity. The record suggests that Tanasi's addiction made him unable to control his behavior. This addiction or compulsion does not absolve Tanasi from liability, but it does warrant a downward departure at the sentencing stage of the proceedings. Tanasi's diminished capacity was not the result of drugs; the offense did not involve violence of or a serious threat of violence (see McBroom, 124 F.3d at 542); and since Tanasi has no criminal history there is no indication on that basis for a need to incarcerate the defendant.
Because of the downward departure, Tanasi will be sentenced to 9 months incarceration which takes into account the fact that Tanasi suffered from diminished mental capacity. It is Tanasi's first offense and any greater sentence in his case would be inappropriate. The period of incarceration will be followed by three years of supervised release. Tanasi is to report to the nearest Probation Office within 72 hours of his release from custody, and supervision shall be in the district of residence. As mandatory conditions of supervised release, Tanasi shall (1) not commit another federal, state, or local crime; (2) not illegally possess a controlled substance; and (3) not possess a firearm or destructive devise. The mandatory drug testing condition is suspended based on the Court's determination that Tanasi poses a low risk of future substance abuse. Tanasi shall cooperate in the collection of DNA as directed by the probation officer.
Tanasi shall also abide by the standard conditions of supervision (1-13). In addition, as special conditions Tanasi shall: if applicable, register and otherwise comply with the state sex offender registration agency in any state in which Tanasi resides, as directed by the probation department; undergo a sex-offense specific evaluation, risk assessment and/or psychological testing; submit to an initial polygraph examination and subsequent maintenance testing, at intervals to be determined by the probation officer, to assist in treatment, planning, and case monitoring, and will contribute to the costs of services rendered in an amount to be determined by the probation officer, based on ability to pay or availability to third-party payment; satisfactorily participate in a sex-offender treatment/and or mental health treatment program approved by the probation officer and contribute to the costs thereof; sign a waiver of confidentiality form allowing the disclosures of information about the defendant's conviction/adjudication criminal history, mental health treatment history, and participation in treatment to the probation office, treatment provider, the U.S. Attorney's Office, and the Court; not possess any sexually stimulating or sexually oriented material deemed inappropriate by the probation officer or treatment staff; not patronize any place where such material is or entertainment is available; not use any sex-related telephone numbers; not engage in sexual conduct or activity with anyone under 18 years of age; not have deliberate contact with any child under 18 years of age, unless an adult is present who is aware of defendant's history of sexual behavior and who has been approved as a safeguard by the probation officer; report all incidental contact with children who the probation officer and treatment provider; provide the probation officer with access to any requested financial records, including, but not limited to, telephone bills, cable and Internet service provider records, and credit card statements; permit a probation officer to conduct random searches, at a reasonable time and in a reasonable time and in a reasonable manner, of the defendant's person, place of residence, office, vehicle or other real property within the defendant's control; consent to the installation of systems that will enable the probation officer or designee to monitor or filter computer use, on a regular or random basis, on any computer owned or controlled by the defendant; and consent to and cooperate with unannounced examinations of any computer equipment owned or controlled by the defendant, which may result in retrieval and copying of all data from the computer(s) and any internal or external peripherals, and may involve removal of such equipment for the purpose of conducting a more thorough inspection.
No fine will be imposed due to Tanasi's lack of financial resources at this time. However, a special assessment fee of $100 will be due immediately.
The defendant will be permitted to surrender voluntarily as he is not viewed to be a flight risk or a danger to the community.
This sentence is subject to modification at the sentencing hearing now set for February 11, 2003.
It is so ordered.
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