The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
The government has moved to oppose downward departure on the basis of
diminished capacity in the case of defendant Stephen Tanasi ("Tanasi").
For the reasons set forth below, the government's motion is denied.
Tanasi pled guilty on May 14, 2002 to receiving and distributing
computer files that contained child pornography, in violation of
18 U.S.C. § 2252 (a)(2)(B). Under his plea agreement, Tanasi's adjusted
offense level was set to 20 and the Sentencing Guidelines range to 33 to
41 months' imprisonment. The parties also agreed to pursue neither upward
nor downward departure.
Tanasi's sentencing opinion was issued on February 11, 2003.
United States v. Tanasi, No. 02 Cr. 96, 2003 WL 328303
(S.D.N.Y. Feb. 11, 2003) (Tanasi I),*fn1 The opinion indicated
that Tanasi would be sentenced to 9 months' imprisonment, followed by a
three year term of supervisory release. Id. at *1.
Downward departure was based on Tanasi' a psychological
evaluations by William F. Hobson ("Dr. Hobson"), M.S., a clinical member
of the Connecticut Association for the Treatment of Sexual Offenders, and
Dr. Leslie Lothstein ("Dr. Lothstein"), PhD., a member of the
American Board of Professional Psychology. Dr. Hobson's evaluation of
Tanasi was court ordered, while Dr. Lothstein evaluated Tanasi at
the request of his attorney. Dr. Hobson prepared a report on Tanasi on
December 5, 2001, and Dr. Lothstein prepared a report on April 11, 2002.
Tanasi's sentencing was adjourned to give the government an
opportunity to review Dr. Hobson's and Dr. Lothstein's reports and to
determine whether to oppose departure. The government retained Dr.
Lawrence M. Siegel ("Dr. Siegel"), M.D., who performed an evaluation of
Tanasi on May 12, 2003. Dr. Siegel submitted his report on October 17,
2003, and Tanasi submitted a response to Siegel's report on November 25,
2003 ("Tanasi Resp.").
On February 1, 2004, the government submitted its opposition to
downward departure for Tanasi, and it was received on February 3, 2004.
Sentencing is currently scheduled for March 19, 2004.
Dr. Hobson found that there "is 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 . . ." He recommended that Tanasi "be prohibited from the use of
pornography of any type; even though adult pornography is not technically
illegal, I would be concerned about it serving as a trigger for him to
become involved with other types of sexually explicit materials."
Dr. Lothstein determined 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."
"Mr. Tanasi's response to the Abel and Becker Cognition Scale were
within normal limits," and "[h]e did not ascribe to any items suggesting
that he has an interest in actually engaging in adult child sex."
Rather, "it would appear that [Tanasi's] general sexual curiosity,
hyperarousal to anything sexual and sexual addiction was beyond his
According to Dr. Lothstein, 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." He diagnosed Tanasi as "a very naive, socially
awkward, immature individual with a non paraphilic sexual
disorder: a compulsive addiction to pornography and involvement in non
addictive behavior with his partner.*fn2 His daily life has been
spent thinking, fantasizing, and daydreaming about sexual encounters."
Dr. Lothstein stressed that Tanasi's "judgment and insight" are "impaired
and poor," and that he "did not fully appreciate the wrongfulness of his
behavior until he was arrested," and expressed the belief that treatment
"could lead to the cessation of his addiction."
Dr. Siegel reported that Tanasi's sexual interests "were primarily
adolescent and adult females . . . within the normal range for adult
males." He thus concluded that "[e]ven if one assumes [Tanasi] had some
obsession or compulsion involving adult pornography, his `need' ...