United States District Court, District of New Jersey
December 7, 2001
UNITED STATES OF AMERICA,
LETICIA A. CHECOURA, DEFENDANT.
The opinion of the court was delivered by: Stephen M. Orlofsky, United States District Judge.
This matter having come before the Court on the Motion of Defendant,
Leticia A. Checoura, for a Downward Departure, pursuant to U.S.S.G.
§ 5K2.13, Richard Coughlin, Esq., Federal Public Defender, Lori M.
Koch, Esq., Assistant Federal Public Defender, appearing on behalf of
Defendant, Leticia A. Checoura, and Robert J. Cleary, Esq., United States
Attorney, Howard Wiener, Esq., Assistant United States Attorney,
appearing on behalf of the United States of America; and,
The Court having considered the papers submitted by counsel for
Defendant in support of the motion and the papers submitted by counsel
for the United States of America in opposition, as well as the
Presentence Report and the evidence presented at the sentencing hearing;
For the reasons stated in the Opinion filed concurrently with this
Order, IT IS, on this 7th day of December, 2001, hereby ORDERED that:
1. The Motion of Defendant, Leticia A. Checoura, for a Downward
Departure, pursuant to U.S.S.G. § 5K2.13 is GRANTED; and,
2. The Court shall depart downward two levels, to a Total Offense
Level of 18.
This case requires me to explore new territory created by a 1998
amendment to the United States Sentencing Guidelines encouraging downward
departures for significant impairment of a defendant's "volitional"
capacities — that is, his or her power to resist the temptation to
do wrong. On March 2, 2001, the Defendant, Leticia A. Checoura
("Checoura"), pled guilty to an information charging her with interstate
transportation of stolen property, in violation of 18 U.S.C. § 2314.
Checoura has now moved for a downward departure from the applicable
sentencing guideline range based on her diminished mental capacity.
Because I find that Checoura's compulsive gambling disorder significantly
impaired her ability to control her wrongful behavior, I will grant her
motion for a downward departure two levels and depart downward from a
Total Offense Level of 20 to 18. Thus, with a Criminal History Category
of I, I find the Sentencing Guideline range to be 27-33 months.
FACTS AND PROCEDURAL HISTORY
A. The Guidelines Calcuation
The Government's Information alleges, and Checoura agrees, that from
1993 through 1998, Checoura utilized her position as a bookkeeper for her
employer, S&S X-Ray Products, to divert over $4 million dollars from the
firm to her own personal use. The parties agree that the base offense
level is 4, and that, as the amount of loss is between $2.5 and $5
million, there is an upward adjustment of 15 levels. U.S.S.G. §
2B1.1(b)(1)(P). The parties also agree that two levels should be added
for more than minimal planning, pursuant to U.S.S.G. §
2B1.1(b)(4)(A). The Probation Office additionally recommended, and the
parties did not object to, another two-level adjustment for abuse of a
position of trust, pursuant to U.S.S.G. § 3B1.3. I agree that the
record at sentencing supports these recommendations. Checoura is also
entitled to a three-level downward adjustment for acceptance of
responsibility. See U.S.S.G. § 3E1.1(a), (b). Thus, the Total
Offense Level is 20. Thus, absent a downward departure, with a criminal
history category of I, Checoura's Sentencing Guideline range is 33-41
B. The Motion for A Downward Departure
In her plea agreement, Checoura preserved her right to argue to this
Court that her wrongdoing was at least in part the result of a diminished
mental capacity, such that she is eligible for a downward departure,
pursuant to U.S.S.G. § 5K2.13.*fn1
In support of her argument,
Checoura presented a written patient evaluation from Dr. Valerie C.
Lorenz, ("Lorenz" or "Dr. Lorenz"), the Executive Director of the
Compulsive Gambling Center and a Certified Clinical Mental Health
The Government opposed Checoura's motion.
On September 23, 2001, Checoura appeared for her sentencing hearing.
At the hearing, Lorenz testified on behalf of Checoura, and was also
cross-examined by the Government. At the conclusion of the hearing, I
took the Motion for a Downward Departure under advisement, directing
Checoura and the Government to provide supplemental briefing on the
question whether, in light of Dr. Lorenz's testimony, Checoura should be
granted a downward departure.
The essence of Dr. Lorenz's testimony was that Checoura is afflicted
with a serious pathological gambling disorder which, when active, drives
her to do anything possible to obtain money to indulge her gambling
habit. The disorder, Dr. Lorenz testified, is probably a product of
Checoura's severe depression and post-traumatic stress disorder, an
attempt by her mind to block out a troubled past that includes multiple
major illnesses, sexual molestation, and emotional and physical abuse by
a spouse whose beatings nearly killed or paralyzed her. Tr. 24-29. At
the peak of her gambling activities, Checoura was wagering more than
$100,000 per month. PSR ¶ 19. In Dr. Lorenz's opinion, it was the
need to subsidize her vast betting losses that "directly and
substantially" led Checora to begin stealing money from her employers.
Tr. Exh. D-2 at 1.
A. This Court Has the Power to Depart Downward Pursuant to Section
Departures for diminished mental capacity are encouraged by the
Sentencing Guidelines. There is no serious doubt that failures of will,
as well as of understanding, are embraced by § 5K2.13. See U.S.S.G.
§ 5K2.13, comment. (n. 1) (2000); United States v. McBroom,
124 F.3d 533, 546 (3d Cir. 1997). I must at least pause, however, to
consider whether my authority to depart downward based on diminished
capacity requires a "direct" causal connection between the disorder and
the criminal conduct at issue. In other words, can a defendant who is
accused, not of unlawful gambling, but of theft, claim that an
irresistable compulsion to gamble caused him or her to commit the theft?
I agree with those courts that have held that an indirect causal
relation between the disorder and the crime is sufficient to bring the
defendant within the purview of § 5K2.13. See United States v.
Sadolsky, 234 F.3d 938, 942-43 (6th Cir. 2000); United States v. Roach,
No. 00 CR 411, 2001 WL 664438, at *3 (N.D.Ill. June 4, 2001). Even if I
were not persuaded by the textual and policy arguments offered by the
Sixth Circuit, I believe that the matter is not an open question in the
Third Circuit. The McBroom court, in determining that "mental capacity"
as it was used in § 5K2.13 included a volitional component, expressly
relied on its earlier opinions construing the scope of the insanity
defense prior to the passage of the Insanity Defense Reform Act of 1984,
Pub.L. No. 98-473, Title II, § 402(a), 98 Stat. 2057, § 20,
recodified at 18 U.S.C. § 17. See McBroom, 124 F.3d at 544-46. Under
the old regime, it was irrelevant whether the defendant's compulsion was
to commit the acts constituting the crime or to undertake
some other activity to which the crime was a necessary incident. See
United States v. Currens, 290 F.2d 751, 774-75 (3d Cir. 1961); see also
Bethea v. United States, 365 A.2d 64, 81 n. 37 (D.C. 1976) (explaining
Currens standard as requiring only "a demonstrable relationship between
the mental disease or defect and the condemned behavior"), cert. denied,
433 U.S. 911 (1977); cf. United States v. Austin, 533 F.2d 879, 888-89
(3d Cir. 1976) (Adams, J., dissenting) (arguing that erroneous
instruction was not harmless when it could have permitted jury to
conclude that defendant was not legally insane, even though his decision
to rob bank was motivated by paranoid delusions), cert. denied,
429 U.S. 1043 (1977). But cf. United States v. Torniero, 735 F.2d 725,
730-35 (2d Cir. 1984) (rejecting gambling addiction as basis for insanity
defense because there was no "volitional nexus between gambling and
stealing"), cert. denied, 469 U.S. 1110 (1985). Since the Currens
"rationale . . . . remains viable . . . in the sentencing phase" under
§ 5K2.13, McBroom, 124 F.3d at 546, and the Third Circuit has
previously deemed that rationale to demand consideration of any incapacity
causally related to the criminal acts of which the defendant stands
accused, I am not free to limit § 5K2.13 only to incidents "directly"
caused by a mental incapacity, whatever "direct" may mean.
B. Evidence of Significantly Reduced Mental Capacity
Most of Checoura's evidence of her reduced mental capacity consists of
the testimony of Dr. Lorenz. Dr. Lorenz testified that, in her
professional view, Checoura is a compulsive, or pathological, gambler.*fn2
Tr. at 21. Pathological gambling is a recognized mental disorder. Id.
at 18. Lorenz based her diagnosis on two full days of diagnostic
examination, including extensive questioning and a battery of
psychological testing. Id. at 20-23. These tests are designed in part to
detect patients who may be malingering. Id. at 31. Lorenz also
explained a number of traumatic incidents in Checoura's life, id. at
24-27, 29, which, in Lorenz's opinion, were responsible for the
underlying depression, guilt, and posttraumatic stress disorder that
precipitated the gambling disorder. Id. at 24. As a result of
Checoura's disorder, Lorenz testified, Checoura was not able to control
her gambling activity or "anything related to the gambling." Id. at 29.
As with other pathological gamblers, Checoura may have had moments in
which she recognized that she "shouldn't be doing it," but to act
otherwise would have been "very torturous." Id. at 30. Checoura's
capacity to resist the urge to gamble, in Lorenz's opinion, was lower
than in the numerous other patients she had evaluated over the years at
her facility. Id. at 31.
Dr. Lorenz's testimony was more than sufficient to establish that
Checoura had significantly less capacity to resist her gambling-related
urges than the ordinary person, or, indeed, the ordinary pathological
gambler. I found Dr. Lorenz to be a credible and highly knowledgeable
expert witness. Accordingly, Checoura has met her burden to demonstrate
that she suffered from a significantly reduced mental capacity.
Therefore, I conclude that I have the authority to depart downwardly
pursuant to § 5K2.13.*fn3
C. A Downward Departure is Appropriate Under the Circumstances
The Government advances a pair of policy arguments in support of its
contention that, even if I have the power to grant Checoura's Motion for
a Downward Departure, I should decline to do so. However, both of the
arguments advanced by the Government are at least somewhat inconsistent
with the general purpose of § 5K2.13, and I find them unpersuasive in
The Government first contends that, as compulsive gambling is an
addictive behavior much like drug or alcohol abuse, it should not serve
as a basis for departure. Section 5K2.13 expressly excludes mental
incapacity that results from "voluntary use of drugs or other
intoxicants". A stronger version of this argument might add that it is
probably inconsistent with the Guidelines' goal of promoting equal
treatment of similar defendants to depart downward for gambling addicts
but not for drug or alcohol addicts. Both forms of the argument,
however, misconceive the purpose of the "drug or other intoxicant"
exception. As Judge Easterbrook has argued, § 5K2.13 allows a court
to depart when the power of specific deterrence has little hold over an
individual defendant. See United States v. Poff, 926 F.2d 588, 595-96
(7th Cir.) (Easterbrook, J., dissenting), cert. denied, 502 U.S. 827
(1991). However, when a person can choose, by voluntary conduct, to put
themselves in a state whereby they cannot later resist temptation, there
is obviously still a possibility for the law to change the person's
behavior. See id. Similarly, under the blameworthiness approach of the
Model Penal Code, defendants cannot claim that their intoxication
deprived them of the mental capacity to carry out "voluntary" acts; in
effect, the intent to become intoxicated is a complete substitute for the
intent to commit the later crime. See American Law Institute, Model Penal
Code § 2.08 (1985). Significantly, the Code allows an exception where
the defendant was unintentionally (or, as the Code describes it,
"pathologically") intoxicated — for instance, where he or she became
greatly intoxicated from a single sip of beer. See id. § 2.08(4),
(5)(c). Both approaches therefore suggest that the best explanation for
the "drug or other intoxicant" exception to § 5K2.13 is not to single
out addicts for more severe punishment but rather to assure that those
who are mentally incapacitated as a result of prior rational choices are
treated as penologically equivalent to those who in fact choose to commit
crime. Cf. Montana v. Egelhoff, 518 U.S. 37, 50 (1996) (plurality op.)
("[T]he rule [disallowing consideration of voluntary intoxication as an
affirmative defense] comports with and implements society's moral
perception that one who has voluntarily impaired his own faculties should
be responsible for the consequences.").
Viewed in this light, the "drugs or other intoxicants" exception has
little bearing on Checoura's downward departure motion. Checoura did not
choose to gamble compulsively, any more than other compulsives choose to
count every line in a cracked sidewalk, or to wash their hands after
touching every doorknob. At worst, Checoura is like the Model Penal
Code's "pathologically" intoxicated offender — she
chose to begin gambling without any intimation that she would be
susceptible to its influence to a "grossly excessive degree." Model
Penal Code § 2.08(5)(c). Thus, there is no inequity in treating
Checoura unlike those who have voluntarily used drugs, because she is not
similarly situated to such individuals in the most crucial respect. But
see United States v. Katzenstein, No. 90 CR 272 (KMW), 1991 WL 24386, at
*2 (S.D.N.Y. Feb. 20, 1991) (finding "no principled distinction" between
compulsive gambling and use of drugs or alcohol).
The Government next argues that, even if § 5K2.13 permits downward
departures where the offense conduct was indirectly caused by the
defendant's volitional incapacity, the fact that there is only an
indirect relation is a reason for this Court to withhold its discretion
to depart. At least one other sentencing court has seemingly followed
this approach. See United States v. Carucci, 33 F. Supp.2d 302, 302-03
(S.D.N.Y. 1999). After acknowledging his authority to depart on the
theory that Carucci, a compulsive gambler, possessed diminished capacity
to exercise self-control, Judge Rakoff refused to do so, noting that
"[w]hile defendant's large gambling losses may have sufficiently exceeded
his . . . income as to create an incentive to engage in lucrative
unlawful trading, economic pressure hardly equates with diminished mental
capacity." Id. at 303. I respectfully disagree.
The basis of my disagreement is essentially linguistic. Carucci's claim
that "compulsive gambling" included unlawful trading was rejected
because, in Judge Rakoff's view, "gambling" did not include the gathering
of funds for gambling. Yet "gambling" is an omnibus term embracing a
whole sequence of discrete physical and mental activities. In Judge
Rakoff's view, that sequence might begin with the brain's reception of
visual stimuli that it recognizes as a "slot machine" and end with the
response of his arm to the brain's command that it pull down the arm of
the machine. Yet to another mind, the same sequence might begin with the
various acts that make up the acquisition of the coins to be dropped into
the slot. Thus, the term "compulsive gambler" might describe a person
whose ordinary volition disappears only when their hand is actually
resting on the arm of the slot machine, or it might describe a person who
cannot resist swiping the odd unguarded quarter. Both, in my view, are
equally entitled to benefit from § 5K2.13 if the acts that fall
within their compulsion prove to be criminal. Cf. Sadolsky, 234 F.3d at
943 (noting that a hypothetical defendant with an eating disorder should
be entitled to benefit from § 5K2.13 regardless of whether he or she
steals bread or money to buy bread). I therefore cannot agree with the
Government that the fact that Checoura's theft stood at some causal
remove from her compulsion to gamble provides any reason to deny or
reduce the extent of a downward departure.
As § 5K2.13 is an encouraged departure, and I have concluded that
there is no reason not to depart downwardly, I shall grant Checoura's
D. The Extent of the Departure
The extent of a departure for diminished capacity "should reflect the
extent to which the reduced mental capacity contributed to the commission
of the offense." U.S.S.G. § 5K2.13. Although I have determined that
Checoura possessed significantly reduced mental capacity, that is not to
say that she is entirely blameless. Low willpower is not no willpower,
and the law demands compliance from the strong-willed and weak-willed
alike. Moreover, the evidence demonstrates that, with sufficient
treatment and guidance, Checoura is capable of resisting her impulses.
Had she sought help sooner, she might have averted some of the losses
suffered by the victim. To be sure, one of the hallmarks of addictive
behavior is denial. Yet Checoura presents no evidence to suggest she was
unaware of the wrongfulness of her behavior. Even if her continuing
refusal to enter treatment was not actually voluntary, the law could
fairly impute some measure of voluntariness by the time her spree had
reached its destructive heights. As a rough approximation of her
culpability, I would hold Checoura responsible for 10% of the total loss
through 1996, and responsible for 25% of the losses after 1997, when the
rate of theft nearly doubled. That produces a loss figure of about
$935,000, for an upward adjustment of 13, rather than the original 15.
See U.S.S.G. § 2B1.1(B)(1). Accordingly, I shall depart downward two
levels, to Offense Level 18.
For the reasons set forth above, I shall grant Checoura's Motion for a
Downward Departure. The Court will enter an appropriate form of Order.