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UNITED STATES v. MCBROOM

January 13, 1998

UNITED STATES OF AMERICA, Plaintiff,
v.
KENNETH McBROOM, Defendant.



The opinion of the court was delivered by: BASSLER

 BASSLER, DISTRICT JUDGE:

 Defendant Kenneth McBroom ("McBroom") pled guilty to one count of possession of child pornography. 18 U.S.C. § 2252 (a) (4) (B). The Court sentenced McBroom to 15 months' imprisonment on October 7, 1996. In the original sentencing proceeding, the Court denied McBroom's request for a downward departure based on his diminished capacity. The Court held that McBroom had not established his inability to absorb information in the usual way or to exercise the power of reason, and was therefore not entitled to a departure based on diminished capacity under U.S.S.G. § 5K2.13. United States v. McBroom, Crim. No. 95-502, slip op. at 10 (D.N.J. Oct. 7, 1996).

 McBroom appealed the Court's ruling. The Third Circuit vacated the original sentence and remanded the case for resentencing consistent with the standards for diminished capacity set out in its opinion. United States v. McBroom, 124 F.3d 533 (3d Cir. 1997).

 The Court originally determined that McBroom's total offense level was 13 and his criminal history category was II. Under the Guidelines, this results in a sentencing range of 15-21 months. At this resentencing, McBroom seeks downward departures based on his diminished mental capacity and his post-offense rehabilitation efforts. For the reasons set forth below, the Court grants McBroom's downward departure requests.

 I. BACKGROUND

 McBroom has presented evidence of his diminished capacity and his rehabilitation efforts through his own affidavit and letters from treating professionals. *fn1" McBroom's uncontroverted affidavit recounts a traumatic life history, starting with years of childhood sexual abuse by his father, and eventually degenerating into alcohol and cocaine addiction and an obsession with pornography. A12-A30. *fn2" McBroom kept the sexual abuse secret until he finally confessed it to a therapist in approximately 1984. Although McBroom managed to obtain a law degree and work as a lawyer, he continually abused alcohol and cocaine. McBroom also frequented "peep shows," called "900" sex lines, and viewed pornographic pictures. Due to his addictions, his marriage ended in divorce after seven years. A19 (McBroom Cert., P 34). He went through at least four stays in drug and alcohol rehabilitation. The final stay ended in late 1993; McBroom has not had a drink or taken drugs since then. A23 (McBroom Cert., P 49)

 Although McBroom managed to stop drinking and taking drugs, he soon discovered the vast array of pornography, including child pornography, available on the Internet. He states that his "attraction to pornography on the computer was borne of sheer amazement at the volume of available material. ... The amazement turned to fascination, and ultimately to obsession." A24 (McBroom Cert., PP 52, 53). McBroom kept his obsession secret from his girlfriend, but continued to view the pornography even after he knew that the Federal Bureau of Investigation was investigating him: "It would have been so easy (and wise) for me to simply delete all of this material from my computer's hard drive once I learned that the FBI had been to my building, but I couldn't do it. I had to keep looking at it, knowing what was coming." A25 (McBroom Cert., P 58).

 McBroom was treated by a therapist, Edward R. Crowley, who specializes in the treatment of male survivors of sexual abuse, for several years. A26 (McBroom Cert., P 59). He is now in weekly therapy with Richard B. Gartner, Ph.D., Director of the Sexual Abuse Program at the William Alanson White Institute for Psychiatry, Psychoanalysis, and Psychology. Defendant's Mem., Exh. A.; A26 (McBroom Cert., P 60). Dr. Gartner stated in a report that McBroom has exhibited "a wide spectrum of obsessive and compulsive behaviors, including severe alcoholism and drug abuse, sexual compulsivity (particularly related to pornography) combined with sexual dysfunction, overeating, and extreme problems with managing money and debt." A38 (Report of Richard B. Gartner, Ph.D.). Dr. Gartner concluded that McBroom's compulsivity extended to viewing pornography and that this "compulsivity led to a significantly reduced mental state which contributed in a large degree to Mr. McBroom's commission of the offense for which he has been convicted." A98 (Supp. Rept. of Richard B. Gartner, Ph.D.).

 McBroom has also been receiving regular medical treatment from a psychiatrist, Dr. Ronald M. Winchel, for cyclothymia, a form of bipolar disorder, and for an impulse control disorder. A26 (McBroom Cert., P 61). Dr. Winchel stated in a supplemental letter that "the core nature of Impulse Control Disorders is the inability to resist the urge to act in accord with the impulse. ... An important point about Impulse Control Disorders [is that] the urge to act is overpowering and is not fueled by logic or pursuit of pleasure. (The only apparent 'reward' is the surcease of overwhelming anxiety and agitation which accompanies the completion of the impulsive act)." Letter (12/1/97) of Ronald M. Winchel, M.D.

 Although McBroom voluntarily surrendered his license to practice law as a result of his guilty plea, McBroom has been employed full-time at a legal staffing firm in Fort Lee, New Jersey for the past 10 months. He also makes regular support payments to his ex-wife and visits regularly with his sons.

 II. DISCUSSION

 At his original sentencing, McBroom sought downward departures for an overstated criminal history and extraordinary family ties, as well as diminished capacity. The Court denied all departure requests. McBroom did not appeal the denial of the criminal history and family ties departures; therefore the Third Circuit's mandate to this Court on resentencing does not involve those issues. To the extent that those departures could be raised ...


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