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UNITED STATES v. M.B.

January 4, 1993

UNITED STATES OF AMERICA, Plaintiff,
v.
M.B.,1 Defendant.



The opinion of the court was delivered by: SAROKIN

 Sarokin, District Judge

 Before the court is defendant's motion for a downward departure from the prescribed sentencing range. Her motion is granted for the reasons hereinafter set forth.

 Introduction

 In this matter, the court must determine the appropriate sentence to impose upon a defendant whose criminal activity was driven by fear. A victim of incest from childhood lasting even into her early twenties at the hands of her father, and physical abuse from her husband she embezzled monies and risked public retribution in order to avoid private punishment. She feared the consequences of advising her husband that her employer bank would not grant a loan to them. Rather than face the potential abuse, she chose to steal the money.

 She does not seek to justify or excuse her conduct, and indeed, has admitted her guilt. Rather, she asks that her sentence reflect her motives, her lifelong victimization, and the realities of an abused woman.

 Although she does not seek to avail herself of the traditional defense of coercion sufficient to expunge her guilt, her history of relentless abuse and fear certainly merit consideration in the imposition and mitigation of her sentence. A life of incest and physical abuse may not serve to condone or excuse her act of embezzlement, but it should and must be considered and understood in determining what further punishment is appropriate.

 Background

 The court adopts the recommended findings of fact of the Probation Office as set forth in the defendant's presentence report, since the parties have not objected to the portions cited.

 A. Family Ties, Family Responsibilities, and Community Ties

 The defendant, now 37, was born in Hoboken, New Jersey as the youngest of three children. Defendant reports that her family life was very troubled. Both parents engaged in infidelities and alcohol abuse. Defendant's father physically abused her mother. Her mother obtained psychiatric counselling.

 Defendant asserts that she was the victim of incest at the hands of her father from age three until her early twenties. Defendant indicates that no one was aware of the abuse while it was occurring. The incestuous relationship was revealed when defendant was in her twenties. Defendant's family did not believe her and she was further alienated from them. Defendant indicates that she presently has little contact with her family and that it is mostly negative.

 Defendant became involved in a long-term non-marital relationship in her late teens and gave birth to two children, now 20 and 18. Defendant describes this relationship as physically abusive. In April of 1979, defendant married her present husband. He legally adopted defendant's daughters in 1980 and is presently employed as a police officer. Defendant reports that her husband has intermittently physically abused her since 1982. Over the past ten years, defendant has left her husband several times and sought help from various women's shelters.

 B. Mental and Emotional Health

 Defendant appears to have a history of mental health problems. She has experienced repeated forms of physical and emotional abuse beginning at a very young age as set forth above. As a result, the defendant has been ...


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