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U.S. v. KIM

April 6, 2004.


The opinion of the court was delivered by: VICTOR MARRERO, District Judge


Defendant Grace Kim ("Kim"), who pled guilty to bank fraud, moves for a downward departure from the otherwise applicable sentencing guidelines range of 30 to 37 months on the following grounds: (1) diminished capacity; (2) extraordinary mental and emotional circumstances; (3) extraordinary acceptance of responsibility; (4) post-offense rehabilitation; and (5) the combination of these factors. For the following reasons, the motion is denied.


  Over a period of about three and one-half years, Kim, a part-time bookkeeper, forged 54 of her employer's checks, totaling over $400,000, and used those checks to pay her credit card bills. Kim was employed part-time at the offices of a Manhattan orthopedic surgeon, where she had worked since 1989, when she was still in college. She began forging the office's checks in late 1998, and in April 2002, an office manager discovered two missing checks, eventually leading to Kim's arrest and guilty plea. Kim has paid back the money she stole, except for about $40,000 in legal fees owed to her former employer. During the time she was forging checks, Kim was also employed full-time as a marketing manager at Dolce & Gabbana at an annual salary of $85,000.

  By all accounts, Kim is a psychologically troubled woman who has suffered from emotional trauma. Her family and psychological history form the core of her motion for downward departure. Kim reports that both her father and uncle raped her at a young age, and that her father physically abused her mother. She also reports that her parents would often abandon Kim and her siblings, sometimes for days at a time. Kim first attempted suicide in high school. She began psychotherapy in 1991 at age 24. Kim was taken to a hospital in 1999 because she was contemplating suicide again, and she has since been taking anti-depressants.

  In November 2002, after her crimes, Kim began seeing psychotherapist Kate Scharff ("Scharff") who diagnosed Kim with Post-Traumatic Stress Disorder ("PTSD"). In a letter submitted to the Court, Scharff states, "In 20 years of practice, I have rarely treated a patient who suffered more early trauma, in more life areas, than this patient." (Letter from Joseph A. Bondy, dated Feb. 19, 2004, Ex. A, at 1.) The letter connects Kim's mental problems to her crimes in the following manner: It is impossible to overestimate the way in which Grace was programmed by her parents to link financial success with acceptability. From the time that she was a small child, they repeatedly told her that they only cared about her to the extent that she achieve material success. Ms. Kim began the criminal behavior that led to her arrest after the dissolution of an abusive marriage. Suicidal and heavily in debt, panicked that she would lose the love and support of her family, and in a dissociated state, she made the only choice that she felt able to make to avoid terrifying feelings of loss and abandonment. It is important, I think, to note that with the stolen money Ms. Kim mainly bought gifts for her boyfriend and family; the people whose affections she felt that she had to buy.

 Id. Scharff also states that Kim's crimes were "directly related" to Kim's past trauma and recommends that Kim not be incarcerated. Id. Finally, Scharff notes that Kim's prognosis for recovery is excellent, if Kim is able to avoid prison. Kim has also been under the care of a psychiatrist, Dr. Nancy Bakalar ("Bakalar"), who diagnosed Kim with severe depression. Bakalar agrees with Scharff that, if Kim were to be permitted to remain under treatment and out of prison, her prognosis for recovery would be excellent.

  Kim now lives with her sister and brother-in-law in Maryland. She volunteers at her brother-in-law's medical clinic, and at an elementary school in Washington, D.C.


  Kim first seeks a downward departure on the ground that her depression and PTSD caused her to have a "significantly reduced mental capacity" at the time of the offense. See U.S. Sentencing Guidelines Manual § 5K2.13 (2001) ("U.S.S.G.").*fn1 Diminished capacity is an "encouraged" basis for departure because it is a factor the Sentencing Commission generally was "not . . . able to take into account fully in formulating the guidelines." Id. § 5K2.0; see also Koon v. United States, 518 U.S. 81, 96 (1996). In relevant part, a defendant has "significantly reduced mental capacity" when the defendant "has a significantly impaired ability to . . . control behavior that the defendant knows is wrongful." U.S.S.G. § 5K2.13 cmt. n.1. The Court may depart on this basis as long as Kim demonstrates, by a preponderance of the evidence, that (1) she suffered from a diminished capacity and (2) there is "a causal link between that reduced capacity and the commission of the charged offense." United States v. Prescott, 920 F.2d 139, 145 (2d Cir. 1990).

  The Court is not persuaded that Kim has sufficiently demonstrated a causal link between her alleged impairment and the crimes charged. The only evidence connecting Kim's alleged diminished capacity to her crime is Scharff's letter, which opines that Kim's family pressures towards financial success compelled Kim to act as she did. Assuming that Kim actually suffers from a significant compulsion to appear financially successful to her family, the Court notes that the alleged compulsion would only relate to the motive for her bank fraud, not to the bank fraud itself i.e., Kim does not suggest that she suffers from a disorder causing her to forge checks. Courts are divided on how to address a motion for downward departure in instances, such as here, where the diminished capacity is "indirect," or "collateral" to the criminal conduct. See generally Note, Diminished Capacity Departures for Compulsive Gambling: Punishing the Pathological or Pardoning the Common Criminal?, 2003 B.Y.U. L. Rev. 385, 398-406 (2003).

  One approach would only permit departure in cases where the disorder pertains specifically to the criminal conduct at issue. A recent decision from this District suggests that this view is best because the implications of a broader view "would be vast":
Defendants charged with a wide array of crimes might seek downward departures because they were, for example, compulsive shoppers who turned to stealing, running a house of prostitution, or insider trading, among other crimes, only after spending all of their assets. If the Sentencing Commission really means to make downward departures available in cases like this one and those posited, it should say so.
United States v. Grillo, No. 03 Cr. 249, 2003 WL 22999219, at *2 (S.D.N.Y. Dec. 22, 2003); see also United States v. Miller, 146 F.3d 1281, 1286 (11th Cir. 1998) (denying downward departure for defendant convicted of trading in child pornography where defendant's only interest in trading in child pornography was as a means to obtain, and satisfy his impulsive desire for, adult pornography). The Sixth Circuit has taken the opposite view, noting that the guideline text itself "does not distinguish between [significantly reduced mental capacities] that explain the behavior that constituted the crime charged and [those] that explain the behavior that motivated the crime." United States v. Sadolsky, 234 F.3d 938, 943 (6th Cir. 2000) (upholding diminished capacity downward departure for defendant, a compulsive gambler, who defrauded his employer to pay off his gambling debts).

  The Court finds most persuasive a third, intermediate view, put forth in the Seventh Circuit's decision in United States v. Roach, 296 F.3d 565 (7th Cir. 2002). The Roach case involved facts very similar to the present case: the defendant "embezzled more than $240,000 from her employer over a three-year period . . . in order to repay significant debt incurred by her excessive purchases of jewelry and clothes, and to conceal that debt from her husband." Id. at 566. She sought a diminished capacity downward departure on the ground that she compulsively shopped to relieve her depression. Id. The Roach panel rejected any categorical rule about "collateral" or "indirect" disorders and instead framed the diminished capacity inquiry as whether and to what extent the defendant's mental capacity affected the defendant's conduct at the time of the offense. Id. at 571. That panel correctly pointed out that classifying the compulsion as "collateral," or "indirect," "does not tell us anything about the strength of that connection or indeed whether the impairment has any relevance in determining the appropriate sentence." Id. at 570. By focusing on the time of the offense conduct, the panel suggested that a defendant would be less likely to demonstrate a diminished capacity where the offense conduct is collateral to the impairment, but the panel appropriately stopped short of adopting a per se rule not found in the guidelines. Id. Under the Roach formulation, a diminished capacity, whether direct or indirect with respect to the offense conduct, may provide a basis for departure only if the evidence suggests that the compulsion "significantly impaired" the defendant's ability to control the offense conduct at the time of the offense. Id.

  On the facts of this case, the Court is not persuaded that Kim's alleged compulsion is sufficiently connected to the crimes to which she has pled guilty. Nothing in Kim's submissions persuasively explains how her alleged disorder amounted to a "significantly impaired ability" to control herself on the 54 occasions spanning nearly three and one-half years in which she forged her employer's checks. U.S.S.G. § 5K2.13 cmt. 1. Even assuming Kim's compulsion sufficiently accounts for her incurring substantial credit card debt in the first place, Kim's means of addressing that debt — committing bank fraud — constitutes a separate act which is at least one step removed from the allegedly compulsive purchasing. To be sure, the Court recognizes that Kim likely committed this crime in order to ...

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