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U.S. v. TANASI

United States District Court, S.D. New York


March 3, 2004.

UNITED STATES OF AMERICA, -against- STEPHEN TANASI, Defendant

The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge

OPINION

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.

 Prior Proceedings

  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 Page 2 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.

 Psychological Evaluations

  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 Page 3 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 control."

  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 — paraphilic but Page 4 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' for pornography does not seem to have extended to images of children."

 Downward Departure Standard for Diminished Capacity

  U.S.S.G. § 5K2.13 provides for downward departure in cases of diminished capacity. In United States v. Silleq, 311 F.3d 557, 563 (2d Cir. 2002), the Second Circuit held that "the diminished capacity of a defendant in a child pornography case may form the basis for a downward departure where the requirements of section 5K2.13 are satisfied." See also United States v. McBroom, Page 5 124 F.3d 533 (3d Cir. 1997); United States v. Goossens, 84 F.3d 697, 700-02 (4th Cir. 1996).

  Under U.S.S.G. § 5K2.13, downward departure for diminished capacity is appropriate where "significantly reduced mental capacity" "contributed substantially to the commission of the offense." Thus, "to establish diminished capacity a defendant must establish both `reduced mental capacity and a causal link between that reduced capacity and the commission of the charged offense.'" Silleg, 311 F.3d at 564 (quoting United States v. Prescott, 920 F.2d 139, 146 (2d Cir. 1990)). The mental defect need not be the "but for" cause of the criminal conduct, but the causal link cannot be assumed. United States v. Leandre, 132 F.3d 796, 803 (D.C. Cir. 1998).

  The Sentencing Commission defines "significantly reduced mental capacity" as "a significantly 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." Application Note l, § 5K2.13.

  However, the court may not depart "if (1) the significantly 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 Page 6 violence; [or] (3) the defendant's criminal history indicates a need to incarcerate the defendant to protect the public."*fn3

 Discussion

  As previously held, Tanasi suffered from diminished capacity, or an impaired ability to recognize the wrongfulness of his behavior and to control it. He exhibited obsessive and compulsive behavior: spending up to 3 days a week for hours online looking at pornography, collecting and transmitting thousands of pornographic images, transmitting live images of himself having sex through video conferencing, making obscene phone calls, and spending much of his daily life "thinking, fantasizing, and daydreaming about sexual encounters." (Dr. Lothstein Report.) Dr. Lothstein diagnosed Tanasi's "compulsive addiction to anything sexually exciting" and his "hyperarousal to anything sexual." Dr. Hobson recommended that Tanasi "be prohibited from the use of pornography of any type." Page 7

  In its objection to Tanasi's sentencing, the government relies on Dr. Siegel's report.*fn4 Dr. Siegel conceded that "Mr. Tanasi had some compulsion to obtain sexual materials over the internet" and does not dispute that he may have had "some obsession or compulsion involving adult pornography." Dr. Siegel, however, points out that Tanasi indicated he had "nearly complete control" over his behavior related to pornography and argues that "any possible difficulty in his self control" did not relate to child pornography.

  Tanasi's indication of control on a questionnaire must be seen in the context of his behavior. As Dr. Lothstein explains, many addicts have problems with control, but adopt an attitude of denial and carry the delusion that they are in control. Dr. Siegel himself noted that Tanasi scored high on the Social Desirability Scale, indicating that he was trying to present himself in a socially desirable light. Page 8

  The government and Tanasi agree that Tanasi's interest in pornography is focused on adult pornography, and his trading' of child pornography over the internet was "incidental" to that interest in adult pornography. Tanasi referred to child pornography as "disgusting" and denied any sexual interest in children. (Hobson Report.) Tanasi further explained that he initially traded only adult pornography over the internet and deleted images of child pornography that people sent to him. He eventually began saving the pictures of child pornography in order to trade them for adult pornography when the people with whom he was trading asked for it.

  None of the experts found that Tanasi had a sexual interest in children. Hobson explained that he had "no prior history" to suggest anything to the contrary. Dr. Lothstein concluded that Tanasi's responses to the Abel and Becker Cognition Scale, procedures used to assess sexual interest, were "within normal limits" and that there "is no evidence that Mr. Tanasi is a sexual predator or that he has ever been involved with children sexually." Similarly, Siegel found that Tanasi's sexual interests, as measured by the Abel Screen, "were primarily adolescent and adult females . . . within the normal range for adult males."

  However, this focus on adult pornography does not break the causal link between Tanasi's reduced mental capacity and involvement in child pornography. In fact, Doctors Hobson and Page 9 Lothstein both highlighted the connection between Tanasi's participation in pornography in general and his involvement* in child pornography. Dr. Hobson thus recommended that Tanasi "should 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 material." Dr. Lothstein concluded that Tanasi collected pornographic images of "anything he could receive because he has a compulsive and sexual addiction to pornography and is easily aroused by anything" and that Tanasi's Internet addiction "led him to download all sorts of pornographic images." Dr. Lothstein even went so far as to question Tanasi's claim that he downloaded child pornography only in order to trade for adult images, arguing that this made "no sense" and pointing out that Tanasi's "judgment and insight are impaired around these issues." Tanasi himself admitted to becoming "desensitized" to child pornography over time. (Hobson Report.)

  Thus, Tanasi collected pictures of children as part of his general pornographic obsession, and it is impossible to separate the two. Tanasi's reduced mental capacity need not relate specifically to a sexual interest in children in order for it to contribute to his involvement in child pornography. E.g., Silleg, 311 F.3d at 559 (holding that downward departure for diminished capacity may be warranted in a child pornography case where the defendant "did not meet the criteria for pedophilia or paraphilia Page 10 but instead suffered from bipolar type II disorder, a biochemical imbalance").

  The government characterizes Tanasi's collection of child pornography as "only a currency that he knowingly used to obtain the type of pornography in which he was interested." (Gov't's Mem. at 6.) However, Tanasi's involvement in child pornography was not a product of controlled, rational calculation, but rather stemmed from a pornographic obsession in constant need of fueling. This obsession escalated to the point where he spent hours collecting and transmitting thousands of pornographic images indiscriminately, becoming hyper — aroused by almost anything and desensitized to child pornography.

  Finally, since Tanasi's diminished capacity was not the result of drugs, the offense did not involve violence or a serious threat of violence, and Tanasi has no prior criminal history, there is no bar to downward departure in this case. Page 11

 Conclusion

  The government's opposition is thus denied, and downward departure will take place in this case in accordance with Tanasi I.

  It is so ordered.


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