U.S. v. Lester

• Decision Date: 20 June 2003
• Docket Number: No. CRIM.A.03-0033.,CRIM.A.03-0033.
• Citation: 268 F.Supp.2d 514
• Parties: UNITED STATES of America v. Robert J. LESTER, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

268 F.Supp.2d 514

UNITED STATES of America v. Robert J. LESTER, Defendant.

No. CRIM.A.03-0033.

United States District Court, E.D. Pennsylvania.

June 20, 2003.

Michael L. Levy, U.S. Attorney's Office, Philadelphia, PA, for Plaintiffs.

J. Scott O'Keefe, Philadelphia, PA, for Defendants.

MEMORANDUM & ORDER

KATZ, Senior District Judge.

On March 3, 2003, Robert J. Lesterpleaded guilty to two counts of transporting child pornography in interstate commerce, in violation of 18 U.S.C. § 2252(a)(1). The Indictment also charged Mr. Lester with Attempting to Entice a Minor to Engage in Sexual Activity, in violation of 18 U.S.C. § 2422(b).¹ Although he did not plead guilty to this count, the plea agreement provides that it will be used to calculate his U.S. Sentencing Guidelines ("USSG") range. The defendant and the government agree that for sentencing purposes the offense level is 24, which provides a sentencing range of 51 to 63 months' imprisonment as the defendant has no criminal history.² Before the court is Mr. Lester's Motion for a downward departure under Section 5K2.0 of the Guidelines. Upon consideration of the parties' submissions, and after a hearing, the court denies the defendant's request for a downward departure.

I. Background

Mr. Lester is a first-time offender whose offense conduct consists of sending two images of child pornography over the internet to an undercover FBI agent posing as a twelve-year-old girl. Mr. Lester was a subscriber to America Online and came under investigation for frequenting chat rooms that advertised sexually explicit talk between men and younger girls. The offense conduct occurred between November 26, 2002 and December 18, 2002, while the defendant was employed as a teacher at Upper Merion High School. By all accounts, Mr. Lester never came in physical contact with a minor in a sexual manner and never had inappropriate contact or conversations with any of his students. This last fact, not surprisingly, was irrelevant to Mr. Lester's suspension from his teaching position immediately following his arrest and his own recognition that he will never again work in this field.

When confronted by the government, Mr. Lester admitted to the charges and entered into a plea agreement. Mr. Lester has been in federal custody since December 19, 2002. Mr. Lester now seeks a downward departure from the Sentencing Guidelines on grounds of diminished capacity in that he suffers from an Obsessive-Compulsive Personality Disorder and a sexual addiction that significantly impaired his ability to control his behavior and contributed to his commission of these offenses.

II. Discussion

The Sentencing Commission has described the appropriate grounds for departure from the Sentencing Guidelines in a policy statement, which provides in part:

Under 18 U.S.C. § 3553(b), the sentencing court may impose a sentence outside the range established by the applicable guidelines, if it finds "that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." Circumstances .., cannot, by their vary nature, be comprehensively listed and analyzed in advance. The decision as to whether and to what extent departure is warranted rests with the sentencing court on a case-specific basis. Nonetheless, this subpart seeks to aid the court by identifying some of the factors that the Commission has not been able to take into account fully in formulating the guidelines.

USSG § 5K2.0.

Each factor discussed in subpart 5K2 is a so-called "encouraged factor" and the court may depart if the applicable guideline does not already take it into account. See Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). The Sentencing Commission identifies a defendant's diminished capacity as one of these factors:

A sentence below the applicable guideline range may be warranted if the defendant committed the offense while suffering from a significantly reduced mental capacity. However, the court may not depart below the applicable guideline range 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. If a departure is warranted, the extent of the departure should reflect the extent to which the reduced mental capacity contributed to the commission of the offense.

USSG § 5K2.13.³

The 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." USSG § 5K2.13, comment (n.1).

A. Eligibility under 5K2.13(1)-(3)

Before reaching the merits of the defendant's Motion, the court must determine whether he is precluded from seeking a departure under 5K2.13(1)-(3). The first condition is that drug use or other intoxicants did not cause the defendant's reduced capacity. In an examination by psychologist Gerald Cooke, Ph.D., Mr. Lester admitted that he had used drugs. See Report of Dr. Cooke, Exhibit A to Defendant's Motion for Downward Departure (hereinafter "Cooke") at 5. Mr. Lester specified that he used marijuana heavily during high school and on a less frequent basis until the summer of 2002; that he occasionally used cocaine and amphetamines until 1999; and that he drinks moderately during the summer. Id. There is no evidence that substance abuse caused Mr. Lester's sexual addiction or Obsessive-Compulsive Disorder and nothing indicates that alcohol or drug use contributed to the offense conduct that occurred in November and December, 2002.

The second condition, that the offenses did not involve actual violence or the serious threat of violence, is also met. Mr. Lester's offenses, two counts of transmitting child pornography in violation of 18 U.S.C. § 2252(a)(1),⁴ did not involve actual violence or the serious threat thereof. In United States v. McBroom, 124 F.3d 533 (3d Cir.1997), the Third Circuit determined that the possession of child pornography is a non-violent offense. Although the McBroom court analyzed this offense under the former version of Section 5K2.13, its conclusion that "[t]he mere possession of child pornography does not have as an element the use, attempted use, or threatened use of physical force against the person of another" remains relevant to the instant case. Id. at 542. The court finds that Mr. Lester's transmission of child pornography did not involve actual violence or the serious threat of violence.⁵

The final consideration in Mr. Lester's eligibility to seek a departure is whether his criminal history indicates that a sentence below the applicable Guidelines range would endanger the public. As a preliminary matter, the court notes that Mr. Lester has no criminal history apart from the offense conduct. Mr. Lester's possession of child pornography alone does not indicate that he is a grave threat to public safety, but the fact that he sent these images to a female he believed to be twelve years old raises more serious concerns. Viewing such material could cause a young girl serious emotional distress and the situation is fraught with the risk that an adult could use the exchange to lure the recipient into a dangerous situation. Mr. Lester claims that he sent the pornographic images to the "girl" in order to maintain their internet conversation so that he could eventually ask for her number and they could have phone sex. See Report of Dr. Sadoff, exhibit to Government's Response to Defendant's Motion (hereinafter "Sadoff) at 8. Even accepting the expert reports that Mr. Lester never seriously contemplated any physical meeting, his interest in sexually explicit phone conversations with underage girls threatens their well-being. The court finds that some period of incarceration is needed to protect the public, however, Mr. Lester does not present so severe a threat that any sentence below the Guidelines would endanger the public. Therefore, the defendant is eligible to seek a departure under 5K2.13.

B. Merits of the Defendant's Motion for a Downward Departure

To warrant a departure, the defendant must show that he is unable to (1) understand the wrongfulness of the offense conduct; (2) exercise the power of reason; or (3) control behavior that he knows is wrongful. The first two criteria do not apply. Mr. Lester's education and career attest to his mental capacity to understand why his behavior was wrong and to exercise reason. Therefore, Mr. Lester must prove that he has a "significantly impaired ability to ... control behavior that [he] knows is wrongful." See USSG, Appendix C amendment 583 (1998), comment (n.1); (amending section 5K2.13 in part to adopt holding of United States v. McBroom, 124 F.3d 533 (3d Cir.1997) that diminished capacity includes both cognitive and volitional impairments).

In support of his Motion, the defendant has offered the report of Gerald Cooke, Ph.D., a licensed psychologist who interviewed the defendant and administered several diagnostic tests. Dr. Cooke's interview and the Probation Department's Presentence Investigation Report reveal that Mr. Lester, now 44 years old, was raised by both parents in a relatively secure and nurturing environment, Cooke at 2-3. Mr. Lester was educated in Catholic school through the twelfth grade and went on to earn Bachelor of Arts and Masters Degrees. Mr. Lester married about seven years ago, has no children, and enjoys travel, cooking, sports, and music. He struggles with his weight and blood...