Opinion
03 Crim. 0249 (LAK)
December 22, 2003
ORDER
The defendant moves for a downward departure under USSG § 5K2.13 on the ground of diminished capacity. He contends that he suffered from significantly reduced mental capacity in that his compulsion to gamble significantly impaired his ability to control behavior (the offense behavior) that the defendant knew was wrongful. Id. App. Note 1. The application is supported by an affidavit of Stephen M. Block, a psychotherapist who has been a gambling treatment counselor, as well as an unsworn report. And the government concedes, as Mr. Block argues, that compulsive gambling led to the defendant's financial distress and that his impecuniousness was a cause, "even the but-for cause, for his criminal activity." It parts company with the defendant, however, on the issues whether a departure is permitted in such circumstances and, even if it is, whether a departure is appropriate in this case.
The record is devoid of any evidence concerning Mr. Block's education, training and licensure. There is no suggestion that he is a psychiatrist or a clinical psychologist. The Court notes that Mr. Block was described in United States v. Liu, 267 F. Supp.2d 371 (E.D.N.Y. 2003), having been certified by the State of New York as a gambling treatment supervisor. Search of the public web sites of the New York State Departments of Education and State reveals no such category. Mr. Block's report contains no claim of state certification.
The question whether defendant's compulsive gambling would afford a basis for a downward departure as a matter of law is significant. Section 5K2.13 is satisfied, insofar as is relevant here, only where the defendant's "ability to . . . control behavior that the defendant knows is wrongful" is "significantly impaired." While the defendant was a compulsive gambler, there is no basis for supposing that his ability to control the offense conduct — theft of mail and access device fraud, 18 U.S.C. § 1029(a)(3), 1709, 2, — was impaired, at least as long as he had money to support his gambling habit. As long as he had funds to support his gambling, he did not steal. When he ran out of money to support his gambling habit, he began to steal. In short, the compulsive gambling created the financial need that was the motive to steal. Indeed, Mr. Block's affidavit supports this analysis when it states that the defendant "turn[ed] to stealing [only] after . . . exhaust[ing] all of [his] financial resources." Block Aff. ¶ 12. While he then offers his opinion that the nexus between the gambling and the stealing "fit[s] the description of `significantly reduced mental capacity'" in Application Note 1, that is a legal question on which he is not qualified to opine and, in any case, one for the Court rather than for an expert witness.
There are differing views as to whether, as a matter of law, Section 5K2.13 permits a downward departure where the motive to commit the crime, as distinguished from the crime itself, is the product of behavior that the defendant has difficulty controlling.
Some courts have held that Section 5K2.13 permits a departure where a mental condition provides a motive for the crime as opposed to contributing directly to the commission of the offense. United States v. Cockett, 330 F.3d 706 (6th Cir. 2003); United States v. Sadosky, 234 F.3d 938, 943 (6th Cir. 2000) (direct causal link is not required where defendant's gambling disorder motivated the criminal behavior, given that he already had "maxed out" his credit line before resorting to fraud to pay gambling debts); United States v. Liu, 267 F. Supp.2d 371 (E.D.N. Y. 2003) (downward departure warranted based on significantly reduced mental capacity attributed to defendant's pathological gambling addiction); United States v. Checoura, 176 F. Supp.2d 310, 315 (D.N. J. 2001) (direct causal connection between defendant's pathological gambling disorder and the interstate transport of stolen property not necessary to justify downward departure as gambling can include the "gathering of funds for gambling"). The pre-1998 amendment case, United States v. Harris, SI 92 Cr. 455, 1994 U.S. Dist. LEXIS 17366, at *49 (S.D.N.Y. Dec. 6, 1994), held, without considering the question of causal link, that a defendant with a pathological gambling addiction could potentially be awarded a downward departure on the basis of diminished capacity.
Other courts have required a direct causal connection between a defendant's mental condition and the offense conduct to warrant the application of section 5K2.13. United States v. Ming, No. 00 CR 128-5, 2001 WL 1631874, at *7 (N.D. Ill. Dec. 18, 2001) (downward departure could be warranted where inability to control behavior provides motive but insufficient connection between the reduced mental capacity and the commission of the offense in this case); United States v. Carucci, 33 F. Supp.2d 302, 303 (S.D.N.Y. 1999) ("a compulsive gambler is not, a fortiori, a compulsive illegal trader"); see also United States v. Miller, 146 F.3d 1281, 1286 (11th Cir. 1998) (pre-1998 amendment case denying downward departure where defendant's diminished capacity, an impulse disorder, explained his interest in adult pornography but was not linked to the commission of the offense of trading child pornography, where such trading was purely a means of obtaining the adult pornography just as robbing someone in order to use the proceeds for such a purchase would be).
In an intermediate approach, the Seventh Circuit has required that, in addition to a connection between the impairment and the motive, the defendant show she had significantly impaired capacity to control her conduct at the time of the offense. United States v. Roach, 296 F.3d 565, 569, 573 (7th Cir. 2002) (overturning departure in context of a compulsive shopping disorder because the findings on defendant's motives did not "establish the critical issue of her mental capacity at the time of the offense.").
This Court is skeptical of whether the guideline should be construed in a manner to permit a downward departure in cases where reduced mental capacity merely results in conduct that creates the motive for the criminal behavior as distinguished from conduct constituting the criminal behavior. The implications of doing so 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. But it ultimately is unnecessary to decide that issue here for several reasons.
Even if Section 5K2.13 permits a downward departure where compulsive gambling creates the motive for the offense behavior, this Court would deny such a departure in this case as a matter of discretion. All crimes are committed out of motives. Many are committed out of motives created by behavior that might be described as addictive or compulsive. The Court is unpersuaded that this defendant's situation is outside the heartland occupied by those who commit like crimes.
The Court is mindful of the fact that the guideline precludes a downward departure if "the significantly reduced mental capacity was caused by the voluntary use of drugs or other intoxicants . . .," USSG § 5K2.13, thus eliminating cases in which an offense is motivated by a desire to obtain funds to purchase drugs for voluntary use.
Accordingly, the application for a downward departure is denied on the law and in the exercise of discretion.
SO ORDERED.