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United States v. D.M.

United States District Court, E.D. New York

May 3, 2013

UNITED STATES OF AMERICA,
v.
D.M., Defendant

Decided May 1, 2013.

For the Government: Hilary L. Jager, Esq., Assistant United States Attorney, Loretta E. Lynch, Esq., United States Attorney, Eastern District of New York.

For the Defendant: David M. Chidekel, Esq., New York, New York.

OPINION

Page 328

SENTENCING MEMORANDUM, HEARING AND ORDER

Jack B. Weinstein, Senior United States District Judge.

Table of Contents

I. Introduction

II. Facts and Procedural History

A. Offense

B. Pre-Arrest Conduct

C. Indictment and Post-Arrest Conduct

D. Guilty Plea

E. Victim Impact

F. Sentencing Hearing

III. Testimony of Treating Therapists and Experts

A. Expert Testimony at Sentencing Necessary

B. Unanimous Recommendations of Treating Therapists and Experts for Non-

Incarceration

1. Treating Therapists

a) Dr. Richard Krueger

b) Dr. Meg S. Kaplan

c) Dr. Douglas Martinez

2. Non-Treating Experts

a) Dr. Cheryl Paridis

b) Dr. N.G. Berrill and Dr. Jennifer A. McCarthy

IV. Sentencing Law

V. Application of Law to Facts

A. Guidelines Calculation

B. Section 3553(a) Factors

1. Sufficient But Not Greater Than Necessary

2. Nature and Circumstances of the Offense; History and Characteristics of

the Defendant

3. Reflect the Purposes of Sentencing

4. Kinds of Sentences Available and Sentencing Range Established

5. Guidelines, Policy, and Other Criteria of the Sentencing Commission

6. Avoid Unwarranted Sentence Disparities

7. Provide Restitution

C. Public Policy

D. Sentence Imposed

VI. Conclusion

VII. Appendix

A. Professional Background of Experts

1. Richard B. Krueger, M.D.

2. Meg S. Kaplan, Ph.D.

3. Douglas Martinez, Ph.D.

4. Cheryl Paradis, Psy. D.

5. N.G. Berrill, Ph.D.

6. Jennifer A. McCarthy, Ph.D.

B. Transcript of Conference of Expert Discussion with the Court

Page 329

I. Introduction

This case illustrates the sensible cooperation of prosecutor, defense, experts and the court to save rather than destroy an adolescent found to have used his computer to view child pornography.

This defendant, D.M., was originally charged with receiving and possessing child pornography, requiring a minimum prison sentence of five years. Following a guilty plea, at a hearing on March 22, 2013, defendant, now age 22, was sentenced for one count of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Imposed was a non-Guidelines sentence of five years' probation with substantial continuing controls and treatment. See Part V.D, infra (outlining specifics of sentence). The reasons for the sentence were orally explained in open court. They are elaborated upon in this memorandum.

Defendant admits to having possessed several hundred still images and video files of children engaging in sexually explicit conduct. When he was an adolescent, he obtained them from the Internet on his home computers. His treating therapists and the parties' experts are in agreement with the court that he suffers from a treatable pornography obsession that began in his early teenage years. There was no evidence that the defendant produced any such materials.

Apart from using a computer, defendant has never acted out against a child or anyone else. Demonstrated by convincing evidence is that he poses no current or future risk to any child or adult. Since his collection of child pornography was discovered by the government, defendant has undergone nearly two years of successful therapeutic treatment. Expert witnesses presented by both the government and defendant recommend that this treatment continue in a non-incarceratory environment and that a term of imprisonment is not required to avoid any danger to the public. Defendant is found by the experts to be fully capable of utilizing therapeutic treatment under probation while under strict control of the court's Probation Department. See Part III.B., infra .

The crime is serious. Punishment is required. Defendant's guilty plea will result in the stain of a federal felony conviction for a sex-related crime. Extensive restrictions affecting where he can live and work, and how he will be controlled, will follow him for many years.

Having been convicted of a crime of possession--and not production, receipt or distribution--of child pornography, no statutory mandatory term of imprisonment is required. Outside the ambit of a mandatory-minimum sentence, a trial court is required to account for a variety of factors

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and considerations when meting out a sentence. See 18 U.S.C. § 3553(a); Part IV, infra . See also Ewing v. California, 538 U.S. 11, 34-35, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (Stevens, J., dissenting) (" [B]efore guideline sentencing became so prevalent[,]. . . . sentencing judges wisely employed a proportionality principle that took into account all of the justifications for punishment--namely, deterrence, incapacitation, retribution, and rehabilitation." ).

The Guidelines developed by United States Sentencing Commission are to be used as a starting point only. Gall v. United States, 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Recommended by the Guidelines is a prison term of seventy-eight to ninety-seven months. See Part V.A, infra .

In addition to consulting the Guidelines, an " individualized assessment" of the situation at-hand " based on the facts presented" is required. Gall, 552 U.S. at 50. That analysis is guided by " [r]easonableness" and an " individualized application of the statutory sentencing factors." United States v. Dorvee, 616 F.3d 174, 184 (2d Cir. 2010) (citing Gall, 552 U.S. at 46-47) (emphasis added). Those factors militate in favor of a non-Guidelines--and non-incarceratory--sentence. See Part V.B, infra .

Cases supporting long terms of imprisonment for non-acting-out adolescents such as this defendant have been strongly attacked as unsound and as fundamentally deviating from the Guidelines' overarching policy and expertise. See, e.g., Dorvee, 616 F.3d at 188. The Court of Appeals for the Second Circuit has expressly " recognize[d] the district courts' post-Booker authority to 'vary from the Guidelines range based solely on a policy disagreement with the Guidelines, and encourages courts to take seriously that discretion in 'fashioning sentences under § 2G2.2' [of the Guidelines] for child pornography defendants." United States v. Chow, 441 Fed. App'x 44, 45 (2d Cir. 2011) (citing Dorvee, 616 F.3d at 188); accord United States v. Tutty, 612 F.3d 128, 131 (2d Cir. 2010) (" [A] district court may depart from the Guidelines based solely on a policy disagreement." ) (emphasis in original).

United States v. C.R., 792 F.Supp.2d 343, 490-518 (E.D.N.Y. 2011), appeal pending, 11-2826 (2d Cir.), discussed the cruel and unusual nature of applying a statutory five year mandatory-minimum sentence to an adolescent who views child pornography. Much of the reasoning in that opinion supports the conclusion in the instant case that the Guidelines applicable to this defendant, D.M., are not appropriate. See id. at 494-95 (describing excessive child pornography incarceration terms); id. at 507 (child pornography mandatory-minimum sentence does not reflect the " range of culpability for child pornography offenses" ). Often, the child pornography Guidelines are untethered to the " Commission's exercise of its characteristic institutional role." Kimbrough v. United States, 552 U.S. 85, 109, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). If applied in the instant case, the extremely high calculated Guidelines range would " generate unreasonable results." Dorvee, 616 F.3d at 188.

An incarceratory Guidelines sentence will impede or cause regression in the substantial progress that defendant has made through individual and group therapy while on bail. Justice for the victims of this crime--and for society's future interest in seeing to it that defendant engages in no further criminal activity--is best served through treatment and supervision outside of prison.

II. Facts and Procedural History

A. Offense

In October 2010, an Internet protocol address associated with defendant's household

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was identified by an agent from the United States Department of Homeland Security who was investigating computers within the New York area that were, or had been, sharing images and videos depicting child pornography. Presentence Report (" PSR" ) ¶ 3 (Oct. 26, 2012).

Following execution of a search warrant on April 29, 2011, a laptop computer and desktop computer allegedly belonging to defendant were seized. Id. ¶ ¶ 3-5. They contained videos and images depicting child pornography. Id. ¶ ¶ 4-5. A subsequent forensic analysis of the computers revealed at least 356 images and 231 videos depicting child pornography. Id. ¶ 8. The victims depicted ranged from age 3 to 17. Id.

At the time of the search, defendant admitted to ownership of the computers and to having downloaded child pornography onto them using peer-to-peer file-sharing systems. Id. ¶ 6. He further admitted that he had started looking at child pornography in high school and that his viewing had " gotten out of control." Id.

B. Pre-Arrest Conduct

In May 2011, just days after his home was searched, defendant voluntarily sought assistance at the Krueger-Kaplan Behavioral Medicine Program in New York City (" Krueger-Kaplan Program" ). Addendum to PSR 1 (Nov. 6, 2012); Def.'s Sentencing Mem., Feb. 4, 2013, ECF No. 30 (" Def. Mem." ), at 14, Def. Mem., Ex. C (brochure of Krueger-Kaplan Program); Def. Mem., Ex F (Expert Report of Dr. Robert Krueger, May 3, 2012 (" Krueger May Rep." )), at 1. After a screening interview, on May 12, 2011, defendant began individual therapy with Dr. Meg Kaplan. See Def. Mem., Ex. H (Expert Report of Dr. Meg S. Kaplan, Oct. 30, 2012 (" Kaplan Rep." )) at 1; see Appendix A, infra (Dr. Kaplan's qualifications). She describes defendant as having " made excellent progress in therapy." Id.

C. Indictment and Post-Arrest Conduct

A criminal complaint was filed on February 3, 2012. See Sealed Compl., Feb. 3, 2012, ECF No. 1. It alleges that defendant knowingly possessed and received images and videos depicting child pornography in violation of 18 U.S.C. § § 2252(a)(2) and 2252(b)(1). Id. An arrest warrant was issued on the same day. See Arrest Warrant, Feb. 3, 2012, ECF No. 2. Without incident, he was arrested the next week. PSR ¶ 7. Additional computers and an iPod seized from him during the arrest contained no child pornography. See Gov't Sentencing Mem., Feb. 14, 2013, ECF No. 33 (" Gov't Mem." ) 2.

On March 6, 2012, defendant was indicted on four counts. See Indictment, Mar. 6, 2012, ECF No. 7. Counts One through Three charged him with knowingly and intentionally receiving one or more pornographic visual depictions in violation of 18 U.S.C. § 2252(a)(2). Id. A conviction on any of the crimes charged in Counts One through Three would have resulted in a mandatory-minimum sentence of five years. See 18 U.S.C. § 2252(b)(1) (" Whoever violates, or attempts to violate [the prohibition of knowingly receiving images or videos of child pornography] shall be . . . imprisoned not less than 5 years. . . ." ). Count Four charged him with possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). See Indictment, Mar. 6, 2012, ECF No. 7. No mandatory-minimum sentence applies for a conviction of possession of child pornography. See 18 U.S.C. § 2252(b)(2) ( " Whoever violates, or attempts or conspires to violate [the prohibition on possession of image or videos of child pornography] shall

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be . . . imprisoned not more than 10 years. . . ." ).

Based upon the automatic file-sharing system he used, persons in defendant's position have been charged with distributing these materials pursuant to 18 U.S.C. 2252(a)(2), carrying a five year minimum prison sentence. See United States v. Caparotta, 890 F.Supp.2d 200, 209 (E.D.N.Y. 2012) (holding that " defendant who places files containing child pornography in a shared folder accessible to others via a P2P program on the internet can be charged with 'distribution' under Section 2252(a)(2)" ). But see C.R., 792 F.Supp.2d at 355 (requiring both " active intention to give or transfer" child pornography and " active participation in the actual delivery" to charge a defendant with " distribution" under § 2252(a)(2)).

Shortly after he was indicted, defendant voluntarily submitted to two polygraph examinations. The first was administered on March 29, 2012 by a service retained by the defense. See Def. Mem., Ex. A (polygraph report of Mar. 29, 2012). The examiner of this first test concluded that no deception was manifested when D.M. answered " No" to questions related to whether he had engaged in any sexual relations with a child in the previous four years. Id. On May 22, 2012, the government administered a second polygraph examination. See Def. Mem., Ex. B (polygraph report of May 22, 2012). It found no deception when defendant answered " No" to the following questions: " Have you let a minor touch your penis since becoming an adult?" and " Have you touched the sexual organs of a minor since your 18th birthday?" Id.

About the time defendant was arrested, at Dr. Meg Kaplan's recommendation, he commenced group sex offender therapy under the treatment of Dr. Douglas Martinez. See Appendix A, infra (Dr. Kaplan's and Dr. Martinez's credentials). Defendant was " not originally forthcoming [at group therapy], apparently due to anxiety, [but] did warm up and he became more verbal and participatory after several sessions." Def. Mem., Ex. D (Expert Report of Douglas Martinez, Ph.D., Oct. 29, 2012 (" Martinez Rep." )) 2.

In May 2012, a psychiatric and risk assessment evaluation was performed by Dr. Richard Krueger, a well-recognized expert in the field of sex offender treatment. PSR ¶ 41. See Appendix A, infra (Dr. Krueger's credentials). Buttressing the conclusions of the polygraph examinations, Dr. Krueger found " no indication that [the defendant] has ever attempted to abuse or actually abused a minor." Id.

D. Guilty Plea

Following the polygraphs, therapy and psychiatric and risk assessments, a plea negotiated between defense counsel and the United States Attorney for the Eastern District of New York was entered into before the assigned magistrate judge on July 9, 2012. See Minute Entry, July 9, 2012, ECF No. 18. Pursuant to an agreement with the government, defendant pled guilty to Count Four of the indictment, but not to Counts One through Three. Id. By doing so, the mandatory-minimum sentence of five years for receiving images and videos of child pornography was avoided, as was the possibility of an amendment to the charge for distribution of child pornography carrying with it an additional mandatory-minimum sentence of five years.

The United States Attorney made a responsible decision to avoid an unnecessarily harsh and counterproductive punishment by allowing a plea to a possession count. See Troy Stabenow, A Method of Careful Study: A Proposal for Reforming Child Pornography Guidelines, 24 Fed.

Page 333

Sent'g Rptr. 108, 111-12 (2011) (" From an evidentiary standpoint, the forensic evidence necessary to prove possession nearly always provides the basis for at least adding a receipt charge [carrying a mandatory-minimum sentence] as well." ), Cf. C.R., 792 F.Supp.2d at 349 (indicating that mandatory-minimum sentences for child pornography offenses " will cause serious and unnecessary harm to adolescent defendants by applying a mechanical and unnecessarily harsh sentencing scheme to address the broad range of culpability and circumstances involved in child pornography" ); United States v. Dossie, 851 F.Supp.2d 478, 485-89 (E.D.N.Y. 2012) (Gleeson, J.) (discussing United States Attorney's authority to mitigate harshness of drug-offense mandatory-minimum sentences through exercise of prosecutorial discretion); United States v. Bennett, Crim. Action No. 2:11cr191-MHT, 2012 WL 5512280, at *3 (M.D. Ala. Nov. 14, 2012) (Thompson, J.) (" At the end of the day, the fate of many drug-trafficking defendants lies mostly with the government's prosecutors and only slightly with the court." ).

E. Victim Impact

Submitted by the government are several statements by the victims of the child pornography shown on defendant's computers. See Gov't Mem., Ex. B. (victims statements); Tr. of Sentencing Hr'g, Mar. 22, 2013 (" Tr." ), at 7. The statements describe the substantial adverse effects suffered by individuals whose abuse is filmed and viewed by individuals like defendant. Reported by the victims of child pornography are feelings of ongoing psychological abuse. As one victim reported, " To think there are pictures being sent all over the country of me is devastating. . . . In a strange way, the distribution of pictures makes this a crime that never stops." Id. This and other statements underscore the United States Supreme Court's recognition that child " pornography may haunt [the child] in future years, long after the original misdeed took place." New York v. Ferber, 458 U.S. 747, 759 n.10, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (internal quotation marks and citation omitted; alteration added).

F. Sentencing Hearing

Pursuant to the plea agreement, D.M. was sentenced on March 22, 2013 on only Count Four of the Indictment. Minute Entry, Mar. 22, 2013, ECF No. 40. Counts One through Three were dismissed. Id.

In advance of the hearing, the parties were directed to " arrange for experts to examine the defendant and relevant materials in this case" to aid the court in fashioning an appropriate sentence for defendant. See Order, Nov. 6, 2012, ECF No. 22. Among other issues, the court requested that the experts address:

1. What treatment is defendant now receiving?
2. What treatment is available in and out of prison and what is recommended?
3. Does defendant pose any danger of acting out?

Id. Expert reports were filed by the parties with other submissions at sentencing.

At the sentencing hearing, along with the parties' written submission, testimony was taken from the defendant, his mother, his treating clinicians and the other experts. Oral argument was heard. On the court's suggestion, with the consent of the parties, the treating clinicians and experts were empanelled as a group and engaged in a colloquy among themselves and with the court on the appropriate treatment and sentence for defendant. See Part III. A, infra ; Appendix B, infra (transcript of

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relevant discussion). Adversarial questioning of the treating clinicians and experts was not necessary. They were in agreement on the treatment and sentence needed; defendant does not pose, and is unlikely to pose in the future, a danger of causing harm to a child or anyone else. See Part III. B., infra .

The sentencing proceeding was videotaped in order to develop an accurate record of the courtroom atmosphere and the factors and considerations that a district court must evaluate in imposing a sentence under 18 U.S.C. § 3553(a). See In re Sentencing, 219 F.R.D. 262, 264-65 (E.D.N.Y. 2004) (possible utility on appeal).

III. Testimony of Treating Therapists and Experts

A. Expert Testimony at Sentencing Necessary

Congress and the Sentencing Commission have recognized that a district court must consider a wide breadth of information at sentencing. See Pepper v. United States, 131 S.Ct. 1229, 1240, 179 L.Ed.2d 196 (2011). Section 3661 of Title 18 of the United States Code states that " [n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." 18 U.S.C § 3661 (emphasis added). Pursuant to Section 1B1.4 of the Guidelines, sentencing courts " may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law." United States Sentencing Commission, Guidelines Manual (" USSG" ) § 1B1.4 (Nov. 2012) (emphasis added). These policies embody longstanding practices " under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law." Williams v. New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) (emphasis added).

Particularly useful at sentencing in cases such as the instant one is expert testimony. The evaluation of experts in the fields of psychology, well-trained on unique issues relevant to sex offenders, can be highly relevant in helping the court determine the effectiveness of a particular sentence. Judges commonly examine offenders' rehabilitation efforts in determining the likelihood of recidivism and in crafting appropriate sentences. See, e.g., United States v. Grober, 595 F.Supp.2d 382, 409-12 (D.N.J. 2008) (hearing testimony from mental health experts to aid in sentencing defendant convicted on guilty plea of possession, receipt and distribution of child pornography), aff'd, 624 F.3d 592 (3d Cir. 2010); Brenda L. Tofte, Booker at Seven: Looking Behind Sentencing Decisions: What Is Motivating Judges?, 65 Ark. L. Rev. 529, 572-73 (2012) (" [W]hen it comes to sentencing, judges look at what offenders have done to rehabilitate themselves when deciding what kinds of sentences to assign. Accordingly, in the data set . . . sentencing judges were swayed by offenders' rehabilitation efforts almost as much as they were swayed by offenders' family obligations and family support." ). Evidence of a defendant's efforts at rehabilitation is persuasive. It is indicative of the likelihood that a defendant will not reoffend and will not cause harm to the public.

Courts should use their " inherent power" to require expert testimony at sentencing. See Fed.R.Evid. 706 Advisory Committee's Note. The practice of a trial court sua sponte seeking expert opinion dates back to common law.

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See generally, Hart v. Cmty. Sch. Bd. of Brooklyn, New York Sch. Dist. No. 21, 383 F.Supp. 699, 762-63 (E.D.N.Y. 1974) (" As early as 1345 a court beckoned surgeons from London to determine if a wound was fresh; cases in 1494 and 1555 reveal courts calling 'masters in grammer' to decipher Latin pleadings." ); Learned Hand, Historical and Practical Considerations Regarding Expert Testimony, 15 Harv. L. Rev. 40, 42-43 (1901); George C. Harris, Testimony for Sale: The Law and Ethics of Snitches and Experts, 28 Pepp. L. Rev. 1, 34-35 (2000) (" The use of expert witnesses had its origin in two ancient practices. The first was the use of the 'special jury,' which was composed of people summoned by the court because they were especially qualified by background and knowledge to decide the matter at issue. . . . Special jurors in the English system provided facts and opinions as well as determining the matter. . . . From early times, the court also had the power to summon experts to advise the court on factual matters." ).

Rule 706 of the Federal Rules of Evidence explicitly endorses the use of court-appointed experts " on [the court's] own motion or on the motion of any party." Fed. R. of Evid. 706. The Rule's adoption followed sustained criticism of the predominantly adversarial system for expert witnesses. See Harris, supra, at 42 (stating that Wigmore, Hand and other critics " saw the need to unhinge expert testimony from partisan commitment to an adverse party" ). As the Advisory Committee's Note to the Rule explains, " The practice of shopping for experts, the venality of some experts, and the reluctance of many reputable experts to involve themselves in litigation, have been matters of deep concern." Fed.R.Evid. 706 Advisory Committee's Note.

The concerns of Hand, Wigmore, drafters of the Federal Rules of Evidence and others regarding the partisanship of adversary-hired experts remain. See Commentary, Improving Expert Testimony, 20 U. Rich. L. Rev. 473, 482 (1986) (" An expert can be found to testify to the truth of almost any factual theory, no matter how frivolous, thus validating the case sufficiently to avoid summary judgment and force the matter to trial. At the trial itself an expert's testimony can be used to obfuscate what would otherwise be a simple case. The most tenuous factual bases are sufficient to produce firm opinions to a high degree of 'medical (or other expert) probability' or even of 'certainty.' Juries and judges can be, and sometimes are, misled by the expert for-hire." ). These dangers of adversary-hired experts are made plain by comparison to other court systems. See generally Marijke Malsch & Ian Freckelton, Expert Bias and Partisanship: A Comparison Between Australia and the Netherlands, 11 Psychol. Pub. Pol'y & L. 42, 57 (2005).

The authority to appoint expert witnesses is underutilized in contemporary litigation. See Joe S. Cecil & Thomas E. Willging, Accepting Daubert's Invitation: Defining A Role for Court-Appointed Experts in Assessing Scientific Validity, 43 Emory L.J. 995, 1003 (1994) (finding that, in a study of over 400 active federal judges, only 20% had appointed an expert on one or more occasions.). Yet, court-appointed experts are associated by judges with positive outcomes:

The judges who appointed experts were almost unanimous in expressing their satisfaction with the expert: all but two of the sixty-five judges indicated that they were pleased with the services provided. . . . Few judges fail to see any value in appointment of experts by the court. Eighty-seven percent of the judges responding to the question indicated that court-appointed experts are

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likely to be helpful in at least some circumstances. This openness to appointment of experts extended to judges who had never appointed an expert, 67% of whom indicated that such an appointment might be helpful.

Id. at 1008-09.

Inherent in a district court's power to appoint expert witnesses is the related authority to organize the presentation of expert testimony. See Gates v. United States, 707 F.2d 1141, 1144 (10th Cir. 1983) (per curiam) (finding no abuse of discretion in trial court's appointment of a panel of experts to assess causation in a case alleging injury due to a flu vaccination); cf. Hart, 383 F.Supp. at 764 (construing Federal Rule of Civil Procedure 53, which allows for appointment of a special master, as " broad enough to allow appointment of expert advisors" ). A particularly useful tool for receiving expert testimony is through interactive discussion among the experts and the court, similar to how experts might interact when empaneled for discussion at a conference. This practice has been employed with some measure of success in complex mass tort litigation. See, e.g., In re: Silicone Gel Breast Implant Prod. Liab. Litig., No. CV 92-P100000-S, 1996 WL 34401764, at *1 (Aug. 23, 1996) (Pointer, J.) (appointing national committee of experts pursuant to Rule 706); Debra L. Worthington, et al., Hindsight Bias, Daubert, and the Silicone Breast Implant Litigation, 8 Psychol. Pub. Pol'y & L. 154, 172 (2002) (" The use of [court-appointed expert] panels has been supported by the scientific, medical and legal community." ).

Receiving expert testimony through a panel format promotes reasoned discussion of the relevant issues, allowing the experts to comment on each other's testimony. There is no reason panel discussions by experts should not be utilized in the sentencing context. See United States v. Shonubi, 895 F.Supp. 460, 500-11 (E.D.N.Y. 1995) (employing a panel of experts to evaluate statistical evidence relating to drug quantity in a narcotics importation case), rev'd on other grounds, 103 F.3d 1085 (2d Cir. 1997). Through such a technique, areas of consensus or disagreement on technical subject matters are sharply drawn.

The use of court-appointed experts has been subject to some criticism, primarily with respect to fears that such a practice lends experts an " aura of scientific infallibility" in the minds of jurors. See M. Neil Browne & Ronda R. Harrison-Spoerl, Putting Expert Testimony in Its Epistemological Place: What Predictions of Dangerousness in Court Can Teach Us, 91 Marq. L. Rev. 1119, 1132-37 (2008). However significant this danger may be in some jury cases, it is not present at a non-jury proceeding where the court is imposing a sentence.

Adjudication involves interpreting, applying, modifying and executing the law. Carrying out such tasks without the aid of available and helpful experts could lead to absurd, cruel and dangerous results. The court should not deny itself a tool essential to understanding and organizing a modern society. The work of a district judge is to apply abstract legal principles to real life situations. Specialized knowledge is often essential to this endeavor and should be utilized when needed.

B. Unanimous Recommendations of Treating Therapists and Experts for Non-Incarceration

The reports and testimony of defendant's treating therapists and of all of the other experts strongly support their unanimous conclusion that both society and defendant will be best served by a probationary sentence permitting him to continue

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the intensive outpatient treatment and monitoring that he currently receives. A strong consensus exists among the professionals that defendant is neither a pedophile nor criminal risk to society, and that a sentence of five years' probation, with stringent conditions, is appropriate.

1. Treating Therapists

Almost immediately after a search warrant was executed upon defendant's computers, he began, on his own volition and before being arrested, sex offender treatment under the Krueger-Kaplan Program. " The program assesses [and provides treatment to] individuals seeking help for a wide range of sexual behaviors, including . . . involvement with child pornography." Def. Mem., Ex. C at 1.

He received treatment from Dr. Krueger, Dr. Meg S. Kaplan and Dr. Douglas Martinez--well-recognized experts--each of whom submitted reports to aid the court in sentencing and testified at the sentencing hearing.

a) Dr. Richard Krueger

Defendant came to the Krueger-Kaplan Program on May 3, 2011, just four days after his computers were searched by agents from the Department of Homeland Security. Krueger May Rep. 1. Dr. Krueger, the director of the Krueger-Kaplan Program, conducted an intake interview. As described by Dr. Krueger, defendant told him: " I'm here because Homeland Security visited my house on Friday morning and they took my computer. They were looking for child pornography. I have had a problem with pornography and need help ." Id. 1 (emphasis added). Defendant was then accepted into the Krueger-Kaplan program for treatment which he continues to receive today.

Dr. Krueger administered several psychological tests designed to measure defendant's " [d]eviant and [n]on-[d]eviant [s]exual [b]ehavior." Krueger May Rep. 4-7. The results of this testing support a conclusion that defendant " makes criteria for a sexual disorder not otherwise specified, or hypersexual disorder, characterized by pornography dependence, and also makes criteria for a paraphilia not otherwise specified, or ephebophilia, which is a dysfunctional sexual interest in teenagers." Id. at 10. Dr. Krueger cautions that " this diagnosis has been the subject of considerable controversy, inasmuch as 'normal' adults have significant interest in teenagers and many feel that this does not make criteria for a paraphilic disorder." Id.

Notwithstanding defendant's sexual disorders, it is Dr. Krueger's opinion that:

There is no indication that [defendant] has ever attempted to abuse or actually abused a minor. His risk of another sexual crime is low according to four actuarial instruments and in our opinion is reduced to remote by virtue of his participation in a treatment . This risk is certainly such that in our opinion he could resume college and his job. In fact, stable employment (or attendance at school) is one of the major factors associated with reduction of recidivism in the community, and a resumption of work and return to college are some of the major goals of therapy.

Id. at 11 (emphasis added). See also Def. Mem., Ex. I (Updated Report of Dr. Richard Krueger, Nov. 20, 2012 (" Krueger Nov. Rep." ), at 2 (" His contention that he has not abused any minors is supported not only by the absence of any evidence that he has attempted to meet minors, but also by two polygraph examinations, one by a private polygrapher and the other by Homeland Security." ). But see C.R., 792 F.Supp.2d at 430-31 (casting doubt on whether certain risk assessment tools pass muster under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharms.,

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509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)).

Acknowledged by Dr. Krueger at the sentencing hearing was that he is not an " expert" on the types of treatment defendant would receive in a federal prison. Anecdotally, however, Dr. Krueger noted both in his written submission and at the hearing that " it has been [his program's] experience that 3 individuals who passed through our treatment program, who were convicted of charges involving child pornography and sentenced to a minimum of 5 years' incarceration, and who were all highly motivated and requested sexual offender therapy in prison, received absolutely no sex offender therapy during their stay in prison." Krueger Nov. Rep. 4; see also Tr. 20 (stating that many of Dr. Krueger's patients who " have gone into [the] federal system . . . have received no treatment, according to them" ). Cf. C.R., 792 F.Supp.2d at 509 (citing expert testimony that " [a] lengthy prison sentence for [a sex offender] risks a number of . . . deleterious effects, including normalization of criminal behavior and validation of inappropriate feelings towards children" ). A period of incarceration, in Dr. Krueger's view, " would disrupt [defendant] from the current treatment program that he's in" and which is " the best situation for his treatment." Tr. 20.

Dr. Krueger testified that defendant has been " extremely compliant, hasn't missed sessions[, and] has been motivated[,] and has made progress." Tr. 19. He views defendant's current treatment plan as critical to his ability to " present[] a remote risk to the public." Krueger Rep. 9. See also Tr. 23 (" Dr. Krueger: . . . I think that his risk of [a] contact offense in the nature of a public setting is exceedingly, exceedingly rare." ); Krueger Nov. 2012 Rep. (stating that low risk to public is " supported by [defendant's] behavior over the past year and one half, during which he has complied with therapy, resumed his education in college, and has not viewed pornography or child pornography" ). Dr. Krueger's professional judgment is that defendant's " risk of recidivism is remote and will be reduced further by virtue of his treatment and can be even reduced further than that by virtue of usual conditions of federal probation which would include ankle monitoring, certain restrictions in his movement[, and] monitoring of his computer at home." Tr. 20. He recommended " perhaps five years" of probation as a sentence because it " would assure some capability of continuing to monitor him to look for any relapses in viewing child pornography." Tr. 21.

b) Dr. Meg S. Kaplan

Dr. Kaplan, with whom defendant began individual therapy in May 2011, regards him as " at most a remote risk to the community of either viewing child pornography or of abusing a child." Kaplan Rep. 1 (emphasis added). It is her judgment that incarceration would result in the loss of his beneficial relationship with therapy. Id. She emphasized at the sentencing hearing " how well [defendant] has done in treatment and [that] it would be really important to continue--to be able to continue this treatment as an outpatient. . . . [B]eing in school, socializing with peers . . . is really important for him." Tr. 24.

She notes in her report that:

[S]tudies have clearly demonstrated that one of the most important factors in reducing the risk of relapse is stable employment, and [defendant], who has developed direction in his life and is again going to college to further his education in graphic design (he is a very talented artist), is on the path to this. Incarceration would very negatively influence his career aspirations .

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Kaplan Rep. 1 (emphasis added). According to Dr. Kaplan, a period of incarceration would harm the " excellent progress" defendant has made in therapy and " very negatively influence his career aspirations," thereby contributing to the chance of recidivism. Id. At the sentencing hearing, she recommended a sentence of five years' probation, agreeing with Dr. Krueger that such a " length of treatment would be sufficient." Tr. 24.

c) Dr. Douglas Martinez

Defendant began weekly group therapy sessions under the supervision of Dr. Martinez in early 2012. Martinez Rep. 1. Dr. Martinez is a clinical psychologist, with experience treating and assessing the risk of sexual offenders since 1985. See Appendix A, infra (Dr. Martinez's credentials).

Dr. Martinez's report highlights the critical roles that age, and social and psychological development play in defendant's sexual disorder. It states that:

[Defendant] is a very immature person who, as a child, discovered pornography. This discovery was in the context of a dysfunctional family, and with a lack of supervision and direction. It was further fueled by the loneliness and frustration of not experiencing social success by being physically isolated. His search for girls on the Internet was consistent with his mental and emotional development. At some point, he realized this was wrong, but not illegal. He denied any interest in prepubescent children. It appears that [defendant] had every little opportunity for appropriate development of reality testing either at home or at school.
Regardless of [defendant's] age, this case is more appropriately seen as that of a non-delinquent, naï ve youthful offender . He is not a street-wise teen who flouts authority. He is not a danger to others or to the community. Conversely, he grew up as isolated and socially inept, and as desirous of finding emotional relief. That relief was in the form of video games and pornography viewing, both of which are isolated activities.
In the process of sex offender treatment, [defendant] has learned the suffering of children who are sexually abused and exploited. He has also expressed remorse for his behavior in any way that it contributed to this exploitation. He understands not only the illegality of these acts, but the moral wrongness . He has always taken full responsibility for his behavior.
. . . .
At the present time, [defendant] is still quite immature. . . . It is known that the human brain does not fully mature until the mid-twenties . This has been documented in articles published by both the American Bar Association and the American Psychological Associations.
. . . .
With regard to incarceration, I do not believe that it will serve the needs of society or [defendant] . First, I can state with a reasonable degree of clinical certainty that he does not present any risk to the community and does not present a risk of recidivism .
Given his naiveté and maturational immaturity, he is very likely to be exploited if incarcerated . He does not have the social skills to protect himself, and he is likely to be sufficiently socially inappropriate with others so as to draw negative attention to himself.
A final factor is that one reason why treatment of adolescents results in lower recidivism rates than treatment of adults is that adolescents are malleable. They can respond to treatment, and [defendant] has already evidenced this. . . .

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[H]e is more capable of change and rehabilitation. [Defendant] is in need of continued offender-specific treatment as well as psychotherapy to develop more mature and positive skills. He does not lack intelligence, and he has shown that he can benefit from outpatient intervention.

Id. 4-7 (emphasis added).

2. Non-Treating Experts

Three experts in the field of sexual disorders filed reports and appeared at the sentencing hearing. See Appendix A, infra (experts' credentials). Dr. Cheryl Paradis, a forensic psychologist who submitted a report and testified on behalf of defendant, has no treatment relationship with him. The government's report was authored by Dr. N.G. Berrill, Director of the New York Center for Neuropsychology and Forensic Behavioral Science, and Dr. Jennifer A. McCarthy, Coordinator of the Sex Offender Treatment Program at the same center. Both of the government's experts testified at the sentencing hearing.

All of the experts agreed that defendant is not a pedophile and not a danger to the community. They further agree on the desirability of continued sex offender treatment and a non-incarceratory sentence of five years' probation.

a) Dr. Cheryl Paridis

Dr. Paridis, defendant's well-recognized expert describes defendant " as an immature and lonely young man." Def. Mem., Ex. E (Report of Cheryl Paridis, Oct. 15, 2012 (" Paridis Oct. 2012 Rep." )). Although " [h]is ability for self reflection is limited," she reports that " this is an area he is addressing in his individual psychotherapy." Id. at 10. A silver lining of any " maladaptive personality traits" is that they " actually serve as a deterrent to reoffending." Id. at 11.

Concluded by Dr. Paridis is that " [defendant] has not demonstrated a propensity to act upon his fantasies" or to reoffend. Id. On this point, she states in her report that:

[Defendant] does not have some of the major weaknesses associated with greater risk of reoffense. He does not have symptoms of major mental illness, nor does he have any problems with substance abuse. Another important factor to support the conclusion that he is of low risk of reoffense is that he also has no prior criminal history.
Another positive factor to consider in determining [defendant's] risk of future offending is his strong sexual attraction to women. Testing by Dr. Krueger, and the defendant's own comments, indicate that he can be sexually fulfilled through relationships with women or through adult pornography.
Perhaps the strongest indication that [defendant] is at low risk of reoffending is that he is very motivated to change his behavior. He has attended sex offender treatment since his arrest on the instant offense. He told me that he finds psychotherapy very helpful and plans to continue in treatment. . . .
In addition to the positive factors described above, [defendant] has very supportive family and friends. He has career aspirations that are realistic and achievable. These factors will be of great weight in his future ability to ...

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