was at her parents' grocery store, where she worked intermittently beginning at age eight.
F. The Offense Conduct
In January of 1992, F.B.I. agents began an investigation into the defendant's involvement in embezzling funds from the subject bank. Through investigation it was discovered that from about February of 1991 until about January of 1992, she removed $ 87,484.90 from the accounts of two depositors.
On January 22, 1992, the defendant gave a full statement to F.B.I. agents as to her involvement in this offense. She indicated that in February of 1991 her husband asked her to obtain an automobile loan from the bank. She then applied for the loan in her name because her husband had filed for bankruptcy in 1985, making it difficult for him to obtain the loan. When the loan was denied, she decided to take the money from a customer's account and tell her husband the loan had been approved. She claims she was afraid to tell her husband the loan was denied because he would have physically abused her. Using the money from the customer's account, defendant made out a Treasurer's Check for $ 22,634.49 to pay for a vehicle her husband wanted.
Her husband then requested that she obtain a personal loan and mortgage from the bank. She again was afraid to tell her husband that they would not qualify for the loans, so she took money from two depositors' accounts. She told her husband that they had been approved for a $ 7,000 personal loan and a $ 50,000 mortgage loan.
The defendant stated that her husband did not know that she was stealing the money from the bank. She asserts that he was under the impression that they were getting legitimate loans from the bank and, in fact, he was giving her checks each month to make the payments on the loans.
G. Charge and Conviction
On June 22, 1992, the defendant appeared before this court and entered a plea of guilty to a single count information charging her with embezzlement.
Since the offense took place after November 1, 1987, the Sentencing Reform Act of 1984 is applicable.
Based upon a total offense level of 12 and a criminal history category of I, the prescribed imprisonment range for the defendant according to the Federal Sentencing Guideline is 10 to 16 months.
Defendant moves in this case for a downward departure from the recommended sentencing range and requests the court to impose only a term of probation. Defendant seeks a downward departure based on her mental and emotional background. Section 5H1.3 of the U.S. Sentencing Guidelines states that mental and emotional conditions "are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range, except as provided in Chapter Five, Part K, Subpart 2 (Other Grounds for Departure)." Section 5K2.0 states that under 18 U.S.C. § 3553(b), the sentencing court may impose a sentence outside the range established by the applicable guideline, if the court 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." Courts considering the issue of whether a defendant's mental and emotional state warrants a downward departure have ruled that the mental and emotional conditions must be extraordinary or "atypical" in order for the court to depart front the applicable guideline range. See, e.g., United States v. Studley, 907 F.2d 254, 258 (1st Cir. 1990).
In this case, the court finds that defendant's mental and emotional condition is exceptional. Defendant has submitted a report drafted by Dr. Nathaniel J. Pallone, Professor of Psychology and Criminal Justice at Rutgers State University, who examined the defendant in August of this year. Dr. Pallone's report indicates that the defendant is suffering from at least three chronic mental disorders: post-traumatic stress disorder, organic personality disorder, and dysthymia (depressive neurosis).
According to Dr. Pallone, the post-traumatic stress disorder most likely resulted from defendant's repeated victimization as the object of incestuous child abuse. This disorder has manifested itself in the defendant through self-defeating behavior, suicidal actions, a hostile attitude toward the world, and feelings of helplessness and alienation. Pallone Report at 10-11.
Dr. Pallone indicates that the defendant's organic personality disorder is related to the fact that she has suffered cerebral concussions on two occasions. As a youth, defendant received a blow to the head with a coal shovel, resulting in a comatose state for several days. More recently, defendant's husband broke her jaw and she suffered a concussion.
Dr. Pallone reports that the defendant's organic personality disorder is probably of the "pseudopsychopathic" variety, which is characterized by emotional lability, impulsivity, socially inappropriate behavior, and hostility. Significantly, Dr. Pallone's report indicates that persons affected with the organic personality disorder are "prone to the taking of risks" and the "expression of needs and impulses without consideration of consequences or social convention (the patient may engage in dissocial acts, such as stealing [or] inappropriate sexual advances)." Pallone Report at 11-12.
In his conclusion, Dr. Pallone observed that "the interaction [in defendant] between childhood sexual victimization and organic personality disorder cannot be construed as less than devastating." Pallone Report at 14. Although Dr. Pallone found that defendant's mental disorders were not exculpatory of her criminal behavior, he found that her mental condition was a "contributory cause" of her conduct. Pallone Report at 2. More specifically, Dr. Pallone indicated that defendant's illnesses bred in her "a sense of grandiosity and a propensity for sociopathy" which in turn led her to engage in the offense conduct. Pallone Report at 14.
Because of the relationship among the abuse suffered by the defendant, her unstable mental condition, and her criminal conduct, the court finds that defendant's mental condition is both exceptional and relevant. The court recognizes that abuse and neglect are often present in the lives of criminals, but finds that the defendant's emotional and mental disabilities are sufficiently "atypical" to warrant granting a downward departure. Defendant's conditions are of a kind or of a degree not adequately taken into consideration by the Sentencing Commission in formulating the guidelines. Accordingly, the court will exercise its power under Section 5K2.0 to depart from the guidelines. The court finds that a term of imprisonment is inappropriate in this case, and instead shall at sentencing impose a term of probation which shall include a period of home confinement, mental health counselling for the defendant (hopefully with her husband), drug counselling or treatment, if necessary, and restitution to the victim bank.
For the foregoing reasons, the defendant's motion for a downward departure is granted. The date of sentencing shall be scheduled forthwith.
H. LEE SAROKIN
U.S. DISTRICT COURT
Date: Jan 4, 1993