Michael S. Taggart
Assistant Federal Defender
FEDERAL PUBLIC DEFENDER
DISTRICT OF ALASKA
550 W. 7th Avenue, Suite 1600
Anchorage, Alaska 99501
(907) 271-2277
Attorney for Defendant
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) NO.
)
Plaintiff, ) DEFENDANT'S SENTENCING
) MEMORANDUM
vs. )
)
xxxxxxxxxxxxxxx, )
)
Defendant. )
____________________________________)
COMES NOW THE DEFENDANT, xxxxxxxxxxxxx, by and through counsel Michael S. Taggart, Assistant Federal Defender, and submits this sentencing memorandum to aid the court in the imposition of sentence, currently calendared for September 18, 1997. D.Ak.LR 3.4(F).
Ms. xxxxxxx does not dispute the harsh sentencing calculations contained in the pre-sentence report. It appears that she is in a Criminal History Category V with a final offense level of 26, which results in a guideline sentence of 110 to 137 months. It also appears that the multiple convictions under 18 U.S.C. § 924(c) result in consecutive sentences of 5, 20, and 20 years.
Ms. xxxxxxx does not, however, agree that the harsh sentence which would be imposed under a strict application of the guidelines is an appropriate sentence in this case. Ms. xxxxxxx will request that the court downward depart from that range.
Ms. xxxxxxx Does Not Have The Requisite Crime of Violence To Warrant An Increased Offense Level Under U.S.S.G. § 2K2.1
To qualify for an offense level increase under U.S.S.G. § 2K2.1(a)(4), the defendant must have a prior felony conviction for a "crime of violence."
The term "crime of violence" means any offense under federal or state law punishable by imprisonment for a term exceeding one year that --
(I) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(ii) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
U.S.S.G. 4B1.2 (emphasis added). This definition does not include the unlawful possession of a firearm by a felon. U.S.S.G. 4B1.2 comment(n.2).
The government has objected to the probation officer's determination that Ms. xxxxxxx does not have a prior conviction sufficient to qualify her for an increase under § 2K2.1. The government believes that Ms. xxxxxxx's conviction for second degree burglary in California in 1987 is a "crime of violence." A review of the relevant documents indicates that Ms. xxxxxxx's conviction for second degree burglary for shoplifting cosmetics from a retail establishment does not qualify for an increased sentence.
In determining whether a past offense is a "crime of violence" which qualifies the defendant for an increase in sentence under the guidelines, the court must take a two step approach. First, under the categorical approach adopted by the Supreme Court in xxxxx v. United States, 495 U.S. 575 (1990), the court should look to the statutory elements of the crime charged to determine whether the elements describe a crime of violence. If that approach does not indicate whether the underlying offense is a crime of violence, the court may analyze the nature of the conduct charged. United States v. Williams, 47 F.3d 993, 994 (9th Cir.), cert. denied, 116 S.Ct. 144 (1995).
Ms xxxxxxx's conviction for Second Degree Burglary would appear to be covered by §4B1.2. However, in order for that provision to apply, the burglary must have been of a dwelling, §4B1.2(ii), and an examination of either the statute of conviction, or the offense specifically charged, indicates that Ms. xxxxxxx's burglary was not of a dwelling.
The first step in determining whether an underlying offense is a crime of violence is an analysis of the statute of conviction. Barbara xxxxxxx was convicted of Second Degree Burglary under Cal. Penal Code § 459. The language of that statute is extremely broad and encompasses activity well outside the narrow range of the "burglary of a dwelling" specifically mentioned in the Career Offender provisions. For example, Cal. Penal Code §459 covers not only the burglary of a house, room, apartment , or tenement, all of which would presumably be classified as "dwellings", to entry of inter alia, warehouses, barns, stables, mines, and even locked vehicles and outhouses.
In addition, the language of that penal statute does not even meet the common-law definition of burglary, as the statute does not specify that the entry of the building or structure must be non-consensual or unprivileged. Therefore, even shoplifting, where the defendant formed the requisite criminal intent to steal before his consensual entry into the retail store, would be covered under the broad provisions of Cal. Penal Code § 459. See United States v. Chatman, 869 F.2d 525, 529 n.2 (9th Cir. 1989), abrogated on other grounds by xxxxx v. United States, 495 U.S. 575 (1990). Ms. xxxxxxx's burglary of the California department store was just that -- a shoplifting offense.
The courts have long recognized that the breadth of Cal. Penal Code § 459's sweep encompasses much greater activity than either burglary or burglary of a dwelling. Indeed, the Supreme Court in xxxxx noted that "in contrast" to other states, "California defines `burglary' so broadly as to include shoplifting and theft of goods from a 'locked' but unoccupied vehicle." xxxxx, 495 U.S. at 591. The Ninth Circuit has likewise recognized the breadth of § 459. See, e.g., United States v. Williams, 47 F.3d 993, 994 (9th Cir. 1995). Other circuits have also so noted. United States v. Smith, 10 F.3d 724, 733 (10th Cir. 1993).
The Ninth Circuit permits an "alternative" approach to determining whether the underlying offense is a " crime of violence."
While a consideration of only the statutory definition of a crime may be sufficient in some cases to show the crime is one of violence, in others the actual conduct with which the defendant was charged may need to be examined. . . .
To dispel any lingering confusion, we hold explicitly what is implicit in our cases: In determining whether an offense "involves conduct that presents a serious potential risk of physical injury to another" U.S.S.G. §4B1.2(1)(ii), courts may consider the statutory definition of the crime and may also consider the conduct "expressly charged[] in the count of which the defendant was convicted." U.S.S.G. §4B1.2, comment. (n.2). If a prior conviction is determined to be a crime of violence under either prong of this inquiry, then it is to be counted under U.S.S.G. §4B1.1, regardless of the outcome of the other prong.
United States v. Young, 990 F.2d 469, 472 (9th Cir.), cert. denied, 114 S.Ct. 276 (1993).
The information to which the court may turn in assessing the conduct underlying the conviction is extremely limited: the court may look no further than the conduct expressly charged in the indictment or information:
The latter inquiry, however, must be limited to the conduct charged in the indictment or information; a sentencing court is not free to make a wideranging inquiry into the specific circumstances surrounding a conviction. The sentencing court must confine its factual inquiry to those facts charged in the count of the indictment for which the defendant was convicted.
United States v. Young, 990 F.2d 469, 472 (9th Cir. 1993) (emphasis added). See, also, United States v. Innie, 7 F.3d 840, 849 (9th Cir. 1993), cert. denied, 114 S.Ct. 1567 (1994). The government is apparently relying solely on the fact that Ms. xxxxxxx's sentence for second degree burglary was enhanced because of her possession of a firearm during the commission of that offense. However, the charging document does not indicate that Ms. xxxxxxx actually used the weapon during the offense. (1) She apparently merely committed what in effect was a shoplifting offense while having a gun in her pocket. She was not charged with nor did she plead to an armed robbery or an assault with a weapon, both of which would concededly be "crimes of violence."
The government apparently believes that any crime becomes a crime of violence merely because the defendant has a weapon in her pocket. Given the broad reach of California Penal Code 459, the government's argument would mean that if Ms. xxxxxxx had entered an unoccupied outhouse or vehicle while in possession of a firearm, it would be a crime of violence. The government has provided no cases which support this broad proposition that any crime becomes a crime of violence if the defendant is in possession of a firearm.
The government's reliance on United States v. Williams, 47 F.3d 993 (9th Cir. 1995) is puzzling. The defendant in that case was also convicted of second degree burglary under California Penal Code § 459. However, the charging document indicated that the defendant had unlawfully entered an occupied residence. Not surprisingly, the Ninth Circuit determined that this was a crime of violence, as burglary of a dwelling is specifically mentioned as a crime of violence under § 4B1.2(1)(ii). Williams, 47 F.3d 995. Ms. xxxxxxx did not burglarize an occupied residence. Instead she committed "burglary" under the broad auspices of Cal. Penal Code 459 by shoplifting cosmetics from a store. Williams conclusion that burglary of an occupied residence is a crime of violence is inapposite to the facts of this case.
Ms. xxxxxxx's Criminal Record
The government sums up Ms. xxxxxxx's criminal history in its sentencing memorandum simply as a "30 year, non-stop history of continuous criminal violations." Ms. xxxxxxx cannot of course argue that she does not have an extensive criminal history, as she clearly does. However, to characterize Ms. xxxxxxx's criminal history as 30 years of non-stop activity is not only wrong, but overlooks both the chronology and nature of her criminal activity.
Ms. xxxxxxx was convicted of her first offense as a juvenile when she went joyriding in 1961. As an adult, she was first convicted in 1969 for using a stolen credit card. Between 1969 and 1987, Ms. xxxxxxx was convicted no less than 13 times and was repeatedly incarcerated. Perhaps what is most amazing about this period is that Ms. xxxxxxx managed to fit so many offenses in the short periods between so many periods of incarceration.
But then something happened. In 1987 the revolving door completely stopped. Although she apparently could not pass a day without contemplating or committing a criminal act, Ms. xxxxxxx was not convicted for another crime in the 9 year period from November 8, 1987 until her conviction in this court in April 1997. Far from having an unbroken record, as the government maintains, this is a lengthy and significant break in what had previously had been an incessant record.
In addition to the complete absence of any convictions for almost a ten year period, Ms. xxxxxxx apparently had only two problems with the law during that period. That fact again is in stark contrast to the dozens of arrests which did not lead to convictions occurring between 1969 and 1987. The first was a California parole violation in 1992. This violation was premised, however, not on the commission of any new criminal offenses, but on the fact that Ms. xxxxxxx had departed California to begin her new life in Alaska without alerting the California parole authorities. Ms. xxxxxxx spent five days in California jail for that violation and successfully completed her parole in 1994. The second incident involved Ms. xxxxxxx's arrest in 1994 for shooting Jerry xxxxx. These charges were ultimately dismissed. This allegation differs substantially from the types of economic offenses Ms. xxxxxxx had committed between 1969 and 1987 and is better understood as a component of the domestic violence and battering Ms. xxxxxxx was enduring, and which is discussed extensively below, than a reversion to her old criminal conduct.
The nature of Ms. xxxxxxx's extensive record also cannot be ignored. With one exception, all of her offenses are essentially petty economic crimes. These crimes are largely composed of shoplifting offenses, credit card fraud, shortchanging cashiers, and petty burglary of retail establishments. The only "violent crime" committed by Ms. xxxxxxx was a misdemeanor battery approximately twenty years ago. Ms. xxxxxxx has never been arrested or convicted of a violent offense like armed robbery. In fact, she has never used a firearm or weapon to commit a crime. The lone appearance of any weapon in her record was the presence of a weapon in her pocket when she committed a shoplifting offense, her last offense, in California in 1987.
Criminal statistics generally indicate that,
as a defendant matures, both the level of criminal activity and the commission of violent
offenses diminish. While Barbara xxxxxxx certainly fit the pattern of the youthful
commission of crimes, she did not exhibit any violent tendencies during that period, when
they are most likely to appear. The question remains as to why Ms. xxxxxxx suddenly
committed a series of violent acts for the first time when she had reached the criminally
advanced age of 45, after almost a ten year absence of criminal conduct. Thus Ms.
xxxxxxx's commission of the three robberies in November and December 1996 is not merely
another installment in her lifelong commission of criminal offenses. It is in a sense an
aberration, both chronologically and by its nature. The question remains as to why a woman
who had turned her life around and had remained essentially offense free for almost ten
years suddenly embarked on a frenzy of armed robberies in late 1996.
The Answer
The answer to this question can be given in two words: Jerry xxxxx. Mr. xxxxx is Ms. xxxxxxx's husband, who is presently incarcerated pending sentencing for his convictions for a series of assaults on Ms. xxxxxxx and the Anchorage Police.
After the commission of her last offense in 1987 and her release from California prison in 1989, Ms. xxxxxxx completely turned her life around. She decided to move to Alaska and begin a new life. After a series of odd jobs, she obtained employment at Providence Hospital, initially as a laundry worker. She met and soon married an older and stable man, Lue Henry Walton. She occupied that position for more than two years before she was advanced to a more professional position in patient accounts. She ultimately became a patient account representative. She worked at Providence Hospital from 1990 until her arrest in January 1997, eventually earning a respectable income of more than $25,000 a year. This was a remarkable achievement for a woman who had never maintained steady or legitimate employment. Her desire to get ahead caused her to supplement her income with an evening job at Walmart.
Ms. xxxxxxx wanted to own her own home and purchased a double-wide mobile home. In 1992 she brought her aging and disabled mother, Alice xxxxxxx, from California so Barbara could support and care for her in Alaska. Alice xxxxxxx lived with Barbara until her arrest and the eventual sale of the home to pay Barbara's legal fees in this case. Things were going well.
Barbara xxxxxxx then made the worst mistake of her life: she met Jerry xxxxx. She subsequently divorced Lue Walton in June 1993 and began a 3 year relationship with Jerry. Unfortunately, the dominant feature of this relationship was an extended pattern of domestic violence, abuse, and vicious assaults. Jerry xxxxx fought to control every aspect of Barbara's life, even to the point of confiscating her car keys, money and credit cards so that she would be a prisoner at home and at work. Jerry xxxxx became increasingly abusive and the violence began to escalate. Rexxxxxxxing orders and police visits to their home became commonplace.
On August 10, 1994, Ms. xxxxxxx was arrested and charged with attempted murder for allegedly shooting Jerry when he was attacking her. Those charges were eventually dismissed. On February 26, 1995, Jerry was arrested and charged with holding a gun to Barbara's head during a domestic dispute. Those charges were dismissed after Barbara refused to testify. This storybook courtship ended one month later when Jerry xxxxx and Barbara xxxxxxx were married.
The pattern of violence and abuse reached its zenith in a series of well-documented and highly publicized incidents which occurred in the summer of 1996, two months before the aberrational string of armed robberies began. [The facts supporting these incidents are taken from police reports and state court documents, which have been provided to the court as Exhibits B-H].
Walmart Assault June 30, 1996
On June 30, 1996, Ms. xxxxxxx was working at her evening job at Walmart. She left work and was picked up by Jerry xxxxx, who was controlling her use of vehicles. During the ride home, Mr. xxxxx became increasingly abusive. He drove to a secluded location, pulled out a handgun and threatened Barbara with the weapon, placing the gun to her head several times and then began beating her with the pistol, threatening to kill her. She was struck repeatedly in the back of the head and her left eye. After they reached their home and Jerry had passed out, Barbara contacted the police to report the incident. That evening she obtained a rexxxxxxxing order against Jerry xxxxx on the recommendation of the Anchorage Police. A felony warrant was also issued for Jerry xxxxx's arrest. The police officer documented the injury to Ms. xxxxxxx's eye.
The charges against Mr. xxxxx for this assault were ultimately dismissed when Barbara xxxxxxx refused to testify against her attacker.
Providence Hospital Incident July 1, 1996
The day after this assault, Ms. xxxxxxx returned to her day job at Providence Hospital. A rexxxxxxxing order was in effect, ostensibly to prevent contact or harassment by Jerry xxxxx. As so frequently happens in stalking and battered women cases, the batterer ignored the rexxxxxxxing order. Jerry xxxxx, enraged by both the rexxxxxxxing order and the charges Barbara had initiated against him, appeared at Providence Hospital to confront her. The previous evening, after he had learned of the rexxxxxxxing order and charges, Jerry xxxxx had telephoned Barbara to inform her that he would "Shoot her on sight, anywhere and at anytime."
Providence Hospital security was alerted about the problems by xxxxxxx, and was on the lookout for Mr. xxxxx, observing him in several locations in the hospital on the morning of July 1, 1996. He confronted Ms. xxxxxxx in the hospital and she fled for her life and locked herself in a hospital bathroom. When Mr. xxxxx could not convince her to come out, he also fled the area. Hospital security determined that Barbara xxxxxxx should be escorted off the premises and taken to a safe location. Security officers finally confronted Mr. xxxxx and advised him of the rexxxxxxxing order and that Barbara was no longer present at the hospital. Hospital security began escorting Mr. xxxxx from the hospital grounds when an Anchorage Police vehicle pulled up, apparently to arrest Mr. xxxxx on the outstanding felony assault warrant. Mr. xxxxx then fled. During the pursuit, Jerry xxxxx pulled a weapon and pointed it at the police officer and hospital security. He escaped apprehension and became the target of a highly publicized manhunt. He was finally captured two days later on July 3, 1996 and was detained pending trial.
Jerry xxxxx was convicted in state court on July 2, 1996 for assaulting Anchorage Police Officer O'Brien. Mr. xxxxx's assault on Barbara was dismissed after Ms. xxxxxxx refused to testify against him.
Final Assault at Days Inn August 15, 1996
Barbara xxxxxxx had filed a rexxxxxxxing order against Jerry xxxxx on June 30 because of a vicious assault. Barbara xxxxxxx had fled for her life when Jerry xxxxx ignored both a felony arrest warrant and a rexxxxxxxing order in an armed confrontation at Providence Hospital. Inexplicably, on July 29, 1996 this same Barbara xxxxxxx who had feared desperately for her life took $3700 of her money and bailed Jerry xxxxx out of jail, where he was awaiting trial for his assaults on her and an Anchorage Police Officer. On August 14, 1996, Barbara and Jerry obtained a room in the Days Inn in downtown Anchorage to celebrate. The evening would end tragically.
During the early morning hours of August 15, 1996, hotel security was alerted to the sounds of a confrontation in Barbara's room. It was clear that a woman was being beaten, and security heard Barbara pleading for Jerry to stop hitting her. Two Anchorage Police Officers responded. Jerry xxxxx opened the door to the hotel room and attempted to inform the officers that everything was under control. His story was cast more than slightly into doubt, however, by the officers observation of the bloody interior of the hotel room. Ms. xxxxxxx, who was standing nearby, had blood on her face and chest and clearly had been assaulted. There was broken glass in the hallway, the hotel room sink, trash can, and on the hotel room floor. The bed was covered with bloody sheets. There were several blood soaked towels on the bathroom sink.
The police officers thwarted Mr. xxxxx's attempt to close the hotel room door and a struggle ensued. Mr. xxxxx grabbed Barbara xxxxxxx and pushed a broken piece of glass against her neck. Ms. xxxxxxx began yelling and attempted to break away from Mr. xxxxx, who was trying to drag her away from the door and the protection of the officers. The police officers, who believed that Mr. xxxxx was going to kill his wife, tried to convince Jerry xxxxx to release her. Ms. xxxxxxx finally managed to break away and was pulled from the room by the police officers. Jerry xxxxx attacked the officers with the broken piece of glass and jumped on Barbara xxxxxxx in an attempt to pull her back into the room.
Mr. xxxxx was eventually subdued and arrested. Mr. xxxxx has remained incarcerated since this incident. Fortunately his bail was set at $300,000, preventing Ms. xxxxxxx from yielding once again to the inexplicable need to bail out her attacker. Jerry xxxxx was convicted in state court on July 2, 1997 for assaulting Barbara xxxxxxx, Anchorage Police Officer Michael Brock and Motel Security Officer James Vaneck.
As a result of her celebratory evening with Jerry xxxxx, Ms. xxxxxxx was bleeding from the wounds to her neck. Her left eye was black and she had bruises on her elbow and arm. All in all it was not $3700 wisely spent, although luckily Ms. xxxxxxx paid only with her cash and not ultimately with her life.
The Downward Spiral
Ms. xxxxxxx's feelings of helplessness and embarrassment concerning her relationship with Jerry xxxxx was exacerbated by the extensive media coverage of these events. Ms. xxxxxxx has appended a partial summary of the television news coverage of this saga. [Exhibit I] Between July 1, 1996, when the Providence manhunt began, until November 15, 1996, a few days before the first bank robbery was committed, the three major television networks covered this story approximately 40 times. Ms. xxxxxxx felt she could not turn on the television set without witnessing her abuse and domestic problems on the screen. She felt an overwhelming sense of embarrassment and felt she could not face her co-workers and friends.
Ms. xxxxxxx began to miss work. Prior to that time, Ms. xxxxxxx had been a dependable worker and valued employee of Providence Hospital. As the attached document indicates, during her Employee Performance Evaluation in July 1995, Ms. xxxxxxx's work and attendance were praised. For example, her dependability was described as "Very reliable, show responsibility towards regular attendance." [Exhibit J]. Her excellent was work was recognized with a promotion on August 6, 1996. [Exhibit J] This was no longer the case in the fall of 1996 after the Days Inn incident. On October 21, 1996, Ms. xxxxxxx was counseled and reprimanded concerning her below average job performance. [Exhibit J] On November 11, 1996, one week before the Credit One robbery, Ms. xxxxxxx received a reprimand and suspension from work due to 8 unexcused absences. [Exhibit J]. Her long-held job was now in jeopardy.
Ms. xxxxxxx began to use drugs, and quickly
lost control of her addiction. Heroin became her drug of choice. She befriended drug
abusers, one of whom became her co-defendant in this court. When she was arrested,
urinalysis revealed that her system was loaded with multiple controlled substances,
including marijuana, cocaine, and morphine. Her ten-year old new life had completely
disintegrated.
The Devastating Psychological Effects of Ms. xxxxxxx's Abusive Relationship Constitute Circumstances Not Considered By The Guidelines And Warrant A Downward Departure
The Sentencing Reform Act of 1984, 18 U.S.C. § 3551 et seq, 28 U.S.C. §§ 991-998, restricted the sentencing discretion formerly accorded to the district courts. Koon v. United States, 116 S.Ct. 2035, 2043 (1996). Notwithstanding that limited discretion, the Koon Court recognized that
it has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and punishment to ensue. [The Court] did not understand it to have been congressional purpose to withdraw all sentencing discretion from the United States District Judge.
Id. at 2053.
In keeping with that tradition, Congress empowered this court to depart from the guideline range 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.
18 U.S.C. § 3553(b). See also, U.S.S.G. § 5K2.0; 28 U.S.C. § 991(b)(1)(B).
The Ninth Circuit has recognized that § 3553(b) and the Supreme Court's recent decision in United States v. Koon give the district court discretionary authority to downward depart on any basis which is not expressly proscribed by either the guidelines or statute. The bases which have been categorically proscribed are extremely limited in number,
Those factors expressly prohibited by the Guidelines are few; they include race, sex, national origin, creed, religion, socio-economic status, § 5H1.10; lack of guidance as a youth, § 5H1.12; drug or alcohol dependence, § 5H1.4; and economic hardship, § 5K2.12. If the Commission has not categorically proscribed the factor, departure is authorized if "the factor, as occurring in the particular circumstances, takes the case outside the heartland of the applicable Guideline."
United States v. Mendoza, No. 96-50137, 1997 WL 438487 at *2-3 (9th Cir. Aug. 6, 1997) (quoting Koon, 116 S.Ct. at 2051). The Ninth Circuit concluded: "We are not at liberty, after Koon, to create additional categories of factors we deem inappropriate as grounds for departure in every circumstance." Id. at *3.
Clearly, then, this court has the authority
to depart downward from the guideline range if the court determines that the extreme
physical abuse Ms. xxxxxxx suffered prior to the commission of these offenses is a factor
which takes this case out of the heartland of the applicable guidelines.
Battered Woman Syndrome
What has come to be termed "Battered Woman Syndrome," a subset of post-traumatic stress disorder, has long been recognized by both federal and state courts. Although Ms. xxxxxxx will present the court with expert analysis concerning this syndrome, briefly it has been described by the Ninth Circuit in concise laymen and judicial terms:
Battered woman syndrome is a set of psychological and behavioral reactions exhibited by victims of sever, long-term, domestic physical and emotional abuse. Battered woman syndrome is a post-traumatic stress disorder. Its psychological effects are often similar to the effects of imprisonment on kidnap victims and prisoners of war. Once battered women believe themselves to be helpless victims of abusive men, they behave like hostages and link themselves to their captors out of fear that it is the only way to survive. Battered women are unable to respond effectively to violence because they are psychologically trapped in the violent relationship.
Repeated beatings diminish the battered women's motivation to respond and instill in her a negative belief about the effectiveness of her actions. This "learned helplessness" keeps the battered woman from leaving her batterer. One of the primary survival skills of battered women is hyperalertness. The battered woman learns to be sensitive to her environment to prevent further violence to herself.
United States v. Johnson, 956 F.2d 894, 899 (9th Cir. 1992). See, e.g., Arcoren v, United States, 929 F.2d 1235, 1238-1240 (8th Cir. 1991); State v. Riker, 869 P.2d 43 (Wash. 1994).
The "Battered Woman Defense" has traditionally been utilized as a defense in state or federal court in one of two ways. First, such a defense has been used to support a theory of self-defense when the female defendant stands accused of harming or killing her batterer. Second, evidence of this syndrome has been used to support a claim of duress, where the battered woman was coerced into committing crimes for the benefit or at the behest of her abuser.
Ms. xxxxxxx has been evaluated by Dr. Bruce Smith, an Anchorage psychologist, who has provided a report of his analysis and diagnosis. This report is filed with the court under seal at Exhibit A. In summary, Dr. Smith has concluded that Ms. xxxxxxx exhibits symptoms of post-traumatic stress disorder, which he believes eventually caused her to revert to drug use and was a precipitating factor in the commission of the federal offenses:
The first is the presence of symptoms of a post-traumatic stress disorder. Her experience of domestic violence and a threat on her life, combined with the sense that she could not get away, constitutes the traumatic event. Her reaction to this was that of fear and helplessness. She showed evidence of a avoidance of provocative stimuli and increased arousal in her report of symptoms. Thus, one choice was to return to using heroin. Another choice was to return to her prior criminal background. The difference is reflected in her lifestyle as well as in her personality organization with its antisocial features. The difference in the instant offenses appears to be the commission of crimes at gunpoint, with the use of force and the use of this abusive male persona. In this regard, it appears that Ms. xxxxxxx deviated from her prior MO and appeared to be acting in a manner that reflected a great deal more use of force and aggression than any of the prior criminal activities she had engaged in. In this regard, the domestic violence is seen as a trigger event, in which there was a significant level of fear for her life and distress that led her to attempt to obtain money necessary to flee the situation and avoid further contact with Jerry. However, in the commission of the robberies, it appears that she actually took on the persona of her abusers.
* * * *
The fatal flaw in her plan for self-reform was meeting and establishing a relationship with a man who was dealing cocaine, and who objectified her and treated her as a possession, and engaged in battery within the relationship. Ms. xxxxxxx showed all the elements of a battered woman in her attempt to appease her husband in her return to him after their separation and in her sense of helplessness in the relationship. Thus, it appears that fear was her prime motivator during the course of the summer and fall of 1996. The level of emotional distress she was experiencing removed her capacity to seek reason logically. Her prior addiction began to return and she turned again to a criminal lifestyle. The manner in which she did it, appears to have been influenced by the level of domestic violence she experienced in the marriage (using a gun, being verbally assaultive, and presenting herself as a male convict).
[Report of Dr. Bruce Smith, Exhibit A at 17-18]
It seems clear that the answer to the question concerning the precipitating factor which caused Ms. xxxxxxx to commit a series of out-of-character aggressive robberies after a virtual ten-year criminal hiatus lies in the domestic abuse and battering she suffered at the hands of Jerry xxxxx. This battering and the devastating psychological effect it had on Ms. xxxxxxx should be considered by this court as a mitigating factor in determining the appropriate sentence in this case. This factor is sufficient to remove this case from the "heartland" of guideline cases and warrant a downward departure from a strict application of the guidelines.
Ms. xxxxxxx is not claiming that she was coerced into committing these robberies by her abuser, Jerry xxxxx. However, the lasting psychological effects of Battered Woman Syndrome and Post Traumatic Stress Disorder, particularly from the traumatic and dramatic events of the summer of 1996, contributed significantly to Ms. xxxxxxx's commission of these robberies and thus represent mitigating factors sufficient to warrant a downward departure at sentencing. It would make little sense for the courts to recognize that the devastating psychological effects of Battered Woman Syndrome and Post Traumatic Stress Disorder can constitute a complete defense to criminal activity at trial, but should for some reason be ignored at sentencing.
The courts have recognized that battered woman syndrome can be a mitigating factor which can warrant a downward departure at sentencing. See, e.g., United States v. Whitetail, 956 F.2d 857, 863 (8th Cir. 1992); United States v. Gaviria, 804 F. Supp. 476 (E.D.N.Y. 1992). The Ninth Circuit has permitted downward departures based on other mitigating psychological factors. See, e.g., United States v. Roe, 976 F.2d 1216, 1218 (9th Cir. 1992) (downward departure authorized for psychological effects of extreme childhood abuse); United States v. Garza-Juarez, 992 F.2d 896, 913 (9th Cir. 1993) (downward departure for defendant's mental condition of panic disorder with agoraphobia). However, even if such a departure were not specifically authorized by case law, it is clear that this court has the authority to consider such information and depart downward under the broad Supreme Court and Ninth Circuit mandate in Koon and Mendoza. Consideration of battered woman syndrome at sentencing is clearly not proscribed by the guidelines and can be considered by this court.
Ms. xxxxxxx respectfully requests that the court downward depart in this case and impose a sentence of fifteen years. Given the facts of this case and the mitigating factors Ms. xxxxxxx has presented to this court, a sentence of that length would serve the ends of justice. Ms. Smith's codefendant, Geri McKernan, who committed at least two of the three robberies with her, received a ten-year sentence for her involvement. Ms. xxxxxxx recognizes that Ms. McKernan has a lower criminal history score, cooperated with the government, and plead guilty; for those reasons a fifty percent increase in the sentence Ms. McKernan received would be appropriate for Ms. xxxxxxx.
A fifteen year sentence would mean that Ms.
xxxxxxx would be approximately 60 years of age when she was released. At that point, it is
extremely doubtful that she would pose any threat to society and would be unlikely to
return to criminal activity. Ms. xxxxxxx has proven that she is not incorrigible or beyond
rehabilitation. She was able to live as a functioning member of society from 1989 until
the fall of 1996. The tragic events of the summer of 1996 are unlikely to repeat
themselves and thus there would be no traumatic, triggering event which would cause Ms.
xxxxxxx to commit any further criminal acts. A fifteen year sentence is an appropriate
sentence in this case.
Ms. xxxxxxx Does Not Have The Ability To Pay A Fine
Ms. xxxxxxx agrees with the probation officer's assessment in the pre-sentence report that she does not have the ability to pay a fine. She has no assets and, given the extended sentence she is all but certain to receive in this case, she has no prospects of producing any income. Whatever minimal assets she possessed were exhausted in her defense of this case at trial. Ms. xxxxxxx will pay for this crime with the only remaining asset she possesses: the remainder of her life. Thus Ms. xxxxxxx respectfully requests that the court determine that he does not have the financial ability or prospects to pay a fine and that no fine be imposed. U.S.S.G. §5E1.2(a).
While the payment of restitution may also be a moot point from a practical perspective, Ms. xxxxxxx nonetheless does dispute the amount of restitution she will be required to pay. The pre-sentence report indicates in paragraph 169 that the total restitution in this case amounts to $26,015. Ms. xxxxxxx's co-defendant, Geri xxxxxx, plead guilty and has been sentenced for her role in these offenses. Ms. xxxxxxx should be liable for half of the restitution amount and respectfully requests that she be ordered to pay restitution in the amount of $13,008.
Witnesses
Ms. xxxxxxx anticipates calling at most two expert witnesses at sentencing. Dr. Bruce Smith, an Anchorage psychologist, will testify concerning his evaluation of Ms. xxxxxxx. It is also likely that Ms. xxxxxxx will call a second expert witness, Dr. Ellen Cole, psychologist and professor at Alaska Pacific University, to provide testimony concerning Battered Woman Syndrome.
DATED this ____ day of August, 2000.
Respectfully submitted,
FEDERAL PUBLIC DEFENDER
DISTRICT OF ALASKA
________________________________
Michael S. Taggart
Assistant Federal Defender
Michael S. Taggart
Assistant Federal Defender
FEDERAL PUBLIC DEFENDER
DISTRICT OF ALASKA
550 W. 7th Avenue, Suite 1600
Anchorage, Alaska 99501
(907) 271-2277
Attorney for Defendant
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) NO. xxxxxxxxxxxx
)
Plaintiff, )
)
vs. ) CERTIFICATE OF SERVICE
)
BARBARA ANN xxxxxxx, )
)
Defendant. )
____________________________________)
ROXANE M. MONTGOMERY, PLS, being first duly sworn upon oath, deposes and states as follows:
1. I am an employee of the Federal Public Defender, counsel for defendant BARBARA ANN xxxxxxx, in the above-captioned action. I am nineteen (19) years of age or older.
2. On August 2, 2000 I served a true and correct copy of DEFENDANT'S SENTENCING MEMORANDUM which was hand delivered to:
Karen Loeffler
Asst. U.S. Attorney
U.S. DEPT. OF JUSTICE
222 W. 7th Avenue, 9, Rm #253
Anchorage, Alaska 99513-7567
__________________________________
ROXANE M. MONTGOMERY, PLS
1. Ms. xxxxxxx has been provided only a copy of the complaint in this case. It is not clear to Ms. xxxxxxx why there is not an indictment charging her in this felony case.