U.S. v. McBroom

• Decision Date: 28 August 1997
• Docket Number: No. 96-5719,96-5719
• Citation: 124 F.3d 533
• Parties: UNITED STATES of America, v. Kenneth McBROOM, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 533

124 F.3d 533

UNITED STATES of America, v. Kenneth McBROOM, Appellant.

No. 96-5719.

United States Court of Appeals, Third Circuit.

Argued June 12, 1997.

Decided Aug. 28, 1997.

Faith S. Hochberg, Kevin McNulty, Barry S. Pollack, Esquire (Argued), Office of the United States Attorney, Newark, NJ, for Appellee.

Lawrence S. Lustberg (Argued), Mark A. Berman, Crummy, Del Deo, Dolan, Griffinger & Vecchione, Newark, NJ. Of Counsel: Matthew P. Boylan, Lowenstein, Sandler, Kohl, Fisher & Boylan, Roseland, NJ, for Appellant.

Before: MANSMANN, NYGAARD and ROSENN, Circuit Judges.

MANSMANN, Circuit Judge.

OPINION OF THE COURT

Kenneth McBroom pled guilty to and was convicted of one count of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4). McBroom moved the district court for a downward departure pursuant to U.S. Sentencing Guideline § 5K2.13 (policy statement) on the ground that he suffered from a significantly reduced mental capacity. Finding that McBroom was able, at the time of the offense, to absorb information in the usual way and to exercise the power of reason, the district court concluded that McBroom was ineligible for a downward departure.

We believe that the district court could have considered the possibility that McBroom suffered from a volitional impairment which prevented him from controlling his behavior or conforming it to the law. We will, therefore, vacate McBroom's sentence and remand for resentencing so that the district court may consider this possibility in the first instance.

I.

As a child, McBroom suffered years of sexual abuse at the hands of his father. As an adult, McBroom abused alcohol and drugs, and he viewed vast amounts of pornography. McBroom contends that the abuse he endured as a child caused him to suffer from a significantly reduced mental capacity such that he felt compelled to possess child pornography he downloaded from the Internet--despite his ability to process information, to reason, and to understand the difference between right and wrong.

McBroom detailed his abusive childhood in an uncontradicted affidavit submitted to the district court:

All outward appearances of my family were positive but deceiving....

I do not know when the sexual abuse began. I have vague recollections of being a young boy and having him bathe me, and sensing his spending what seemed to be an inordinate amount of time washing my penis. I suppose I was four or five at the time.

I have clear memories of the abuse from about the age of ten onward.... Two or three times a week, after we had gone to bed, my father ... would come to my bed, sit on the edge, and begin rubbing my back or chest. He would soon find his way to my penis. He would pull my pajamas off, fondle me for a while, and then start performing oral sex. On occasion he would take my hand and put it on his penis and tell me to rub it....

The sexual abuse did not occur exclusively in the evenings. It also took place on occasions when my father and I happened to be alone in the house during the day. It also occurred on a regular basis when my father would take me on one of his frequent business trips....

There were also a few instances in which my father took Polaroid pictures of me naked....

This routine continued for about five years, until I was 15 years old.

McBroom Aff., pp 3-9.

While attending college in New Orleans, McBroom began to "develop an interest in pornography," and he would "go to peep shows and pornography shops in downtown New Orleans." Id. at p 15. McBroom also began to drink excessively. After graduation, McBroom attended law school and was married. While in law school, McBroom drank every day, and he "developed an affinity for cocaine." He also continued to "visit" peep shows and pornography shops. Id. at p 18.

During McBroom's first year in law school, he was asked to testify at his father's trial on charges that his father sexually molested a neighbor's son. Because he remembered seeing his father with the boy on many occasions, McBroom firmly believed that his father was guilty. Nonetheless, McBroom testified that he had a healthy relationship with his father, and he did not reveal the sexual abuse he had endured. McBroom's father was acquitted. McBroom's experience on the witness stand filled him with "shame and disgust," and he continues to express concern and remorse for the alleged victim of his father's abuse. Id. at pp 19-20.

After he graduated from law school, McBroom and his wife moved to New Jersey, where they had a son. McBroom clerked for a judge for one year and began working as an associate at a law firm in Roseland, New Jersey. At least once per week, McBroom stopped at peep shows in Newark on his way home from work. McBroom developed an afterwork routine whereby he would purchase and consume a six-pack of beer and go to the peep shows before returning home. Id. at pp 21-23.

McBroom began using cocaine, and he was soon spending in excess of $300 per week on drugs. Without his wife's knowledge, McBroom acquired several credit cards to fund his cocaine and alcohol purchases. McBroom was unable to repay the balances of these credit cards, however, and three banks have obtained judgments against him. Id. at p 24.

McBroom and his wife had a second son. In 1983, McBroom's wife discovered cocaine and receipts from credit card cash advances in McBroom's briefcase. The McBrooms began seeing a therapist. In 1984, McBroom disclosed to the therapist that his father had sexually abused him. This was the first time McBroom disclosed the abuse he had suffered. That day, McBroom told his wife about the abuse. McBroom did not reveal his "fascination" with peep shows and pornography, however, and he continued to go to peep shows, view pornography, and abuse alcohol and cocaine throughout his therapy. Id. at pp 29-31.

Although the Roseland law firm was "very pleased" with the quality of McBroom's work, McBroom left the firm and began working for a firm in Jersey City. During this time, McBroom's wife asked him to leave, and the McBrooms separated. McBroom subsequently moved in with another woman. He then left the Jersey City law firm and entered an inpatient alcohol and drug treatment program. Id. at pp 32-33.

McBroom remained sober for five months, but he began drinking again, and soon he "was back to where [he] had been." McBroom's wife divorced him. During this time, McBroom was able to work on a per diem basis for other attorneys. McBroom "never received any complaints from any of the attorneys for whom [he] did this work, and in fact was being asked to handle an increasingly large volume and variety of matters including closings, motions, depositions, brief-writing and actual trial work." Id. at p 34.

In 1989, McBroom began working for a law firm in Englewood Cliffs, New Jersey. Soon thereafter, McBroom admitted himself into a rehabilitation program. That program was unsuccessful, however, and McBroom began to use cocaine and alcohol once again. Throughout this period, McBroom continued to visit peep shows and pornography stores in Newark; he also began to visit similar facilities in New York City. Id. at p 35.

McBroom's father died in 1990. Prior to his death, McBroom's father apologized to McBroom "for what he had done." McBroom's father then revealed to McBroom's mother what had occurred, and he disclosed that he had also been sexually abused as a child. Id. at p 36.

In early 1991, McBroom moved into his own apartment. McBroom began to consume "massive amounts of alcohol and cocaine." In addition to continued visits to the peep shows, McBroom began purchasing "all sorts of pornography magazines." He also "developed an interest in phone sex," and his telephone bill for one two-month period exceeded $650, a bill McBroom paid with money he borrowed from his mother. Id. at p 38.

McBroom entered his third rehabilitation program in 1991. Although McBroom began drinking alcohol shortly after leaving this program, he has not used cocaine since that time. McBroom remained with the Englewood Cliffs law firm for three years. McBroom "handled a case load of approximately 65 active litigation files [and] had approximately seven or eight completed jury trials during this period." Id. at 39-42.

McBroom left the Englewood Cliffs firm in 1992, "determined to make it on [his] own" as a sole practitioner. Unfortunately, with no one to account to either at home or at work, McBroom "drank [him]self into oblivion." McBroom also began to engage in self-mutilation. He would often place lit cigarettes on the back of his hand, and on one occasion he cut through the skin and muscle of his left forearm and right hand with a razor blade. In addition, McBroom was hospitalized on six separate occasions with acute alcohol-induced pancreatitis. Id. at 43-46.

McBroom entered his fourth rehabilitation program in 1993. McBroom got drunk on the day after his release from that program. On December 28, 1993, a female acquaintance took McBroom to a meeting of Alcoholics Anonymous. McBroom has been sober since that first meeting; McBroom attends at least one Alcoholics Anonymous meeting every day, and he also attends many "Lawyers Concerned for Lawyers" meetings. Id. at pp 47-49.

McBroom began a romantic relationship with the woman who brought McBroom to the Alcoholics Anonymous meeting. In 1994, McBroom gave up his apartment and moved in with the woman. At the time of his move, McBroom threw away all of the pornography magazines which he had accumulated. McBroom "no longer had the imperious urge to visit peep shows or to stare for hours at pornography magazines." Id. at p 50.

In late 1994, McBroom purchased a personal computer for the apartment to be used in his work as a sole practitioner. McBroom "soon discovered the Internet," and in a short time he "discovered the wealth of pornography available on the Internet." "Amaze[d] at the volume of available material," McBroom discovered ...