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
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' 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,
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
violence; [or] (3) the defendant's criminal history indicates a
need to incarcerate the defendant to protect the public."*fn3
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
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.
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
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
but instead suffered from bipolar type II disorder, a biochemical
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.
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.