IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

CASE NO. xxxxxxxxxxxxx

UNITED STATES OF AMERICA,

Plaintiff,

V.

Defendant.

MOTION FOR DOWNWARD DEPARTURE

Comes now by and through his attorney, xxxxxxxxxx, and moves this Court for a downward departure of 4 offense level points, to offense level 10, Zone B. This motion is made pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. §5K2.0. Section 5K2.0 authorizes downward departure if the Court finds mitigating circumstances "of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." Section 5K2.0 is an "encouraged basis" for departure, and would be reviewable only for an abuse of discretion. Koon v. United States, U.S. 116 S.Ct. 39,132 L.Ed.2d 920,64 USLW 3199 (1996). In short, suffers from Major Depression and Dysthymia. He also meets the criteria for Voyeurism, as defined by the Diagnostic and Statistical Manual, Vol. IV (Copyright, American Psychiatric Association, 1994). These disorders can most likely be traced to a family history of depression, combined with an abusive upbringing, and are causually related to the conduct which forms the basis of this prosecution.

In support of this motion, the following documents are attached:

I . Visual diagram of the defendant's conduct. Attachment A.

2. Psychiatric Evaluation (and Addendum letter) of by Dr.Rebecca Barkhom. Attachment B.

3. Curriculum Vitae of Dr. Rebecca Barkhom. Attachment C.

4. Psychological Evaluation ( and Addendum) by Dr. Jane Wells, Attachment D.

5. Curriculum Vitae of Dr. Jane Wells. Attachment E.

6. Letter to the Court, written by sister.

7. Letter to the Court, written by paternal Aunt. Attachment G.

8. Letter to the Court, written by mother. Attachment H.

9. Letter to the Court, written by father. Attachment I.

10. Letter to the Court, written by friend. Attachment J.

Dr Wells' and Dr. Barkhom's evaluations were provided to the Probation Officer at the time of the probation interview . The probation report briefly mentions Dr. Barkhom's evaluation, and says nothing of Dr. Wells' evaluation. Neither evaluation was attached to the Presentence Investigation Report. The addendums were prepared by each doctor in response to concerns raised by the Probation Officer at the time of the probation interview.

The Government was provided copies of the evaluations several months ago. Both the Government and the Probation Department were invited to call the doctors with any questions.

INTRODUCTION

While using free Internet service offered to him through the mail, discovered graphics files on the Prodigy Internet service which he found were encoded, thereby preventing him from viewing the files without additional software. In order to view the files, downloaded (copied) them from the Prodigy service into his own computer. Using another Internet service (GNN), uploaded (copied) the same graphics files on GNN's bulletin board, then downloaded them again to his own computer. Because GNN provided a necessary decoding mechanism, the act of uploading the files and downloading them from GNN allowed to view the contents of the files. After downloading the first few files, became aware that some contained child pornography, but nevertheless continued this process of posting to GNN in order to download more decoded files. See Attachment A.

This case involved no effort to sell or otherwise profit from the posting of the photos to the Internet. There is no reason to suspect that posted the files for any other purpose than to gain access to GNN's decoder and for the sole purpose of viewing the contents of the file. He has no criminal record.

was initially referred to Dr. Barkhom because he presented himself as a profoundly depressed person. During his interview with Customs agents, he revealed a seemingly odd fascination with a fantasy world, which ranged from themes of death such as "dungeons and dragons," to pornography themes involving children. During a search of his apartment, agents found sketches of children involved in sex with adults, and his computer files contained what appeared to be an attempt to "cut and paste" a photo of a child into a new photo of the child having sex with an adult.

FN The graphics files were found in newsgroups on the Internet bulletin board. The titles of the files suggested that they contained pornography.

This information, his depressed presentation, and the criminal conduct itself, all suggested that psychiatric and behavioral issues existed. These issues needed to be examined for three reasons:

(1) To determine whether a psychiatric condition is causally related to the conduct which formed the basis of the prosecution, and,

(2) To determine whether needs mental health support, and,

(3) To confront head-on, rather than speculate about, any possibility that interest in child pornography indicated that he might now or someday be a physical threat. The latter question could result in quite a leap of judgement without any historical (such as a criminal record) or psychiatric data (such as a psychiatric evaluation of the Defendant) to back it up.

BASIS FOR DEPARTURE

A more complete view of personal history can be gleaned from reading both Dr. Barkhom and Wells' evaluations, along with the attached letters from his older sister and his mother. was born 30 years ago in Minneapolis, Minnesota. He was the second of three children and the oldest son. The marriage between was very strained (they have since divorced). is described by his oldest daughter as being "immature [and] irrational, [with] a very bad temper." writes that seemed to be singled out for abuse since he was a toddler. She recalls that when was only two, his father "slapped him on the back of the head with great enough force to send him flying over the coffee table", and then made him stand in the comer. This abuse occurred because could not identify the number of shoes on a page of the Sunday paper without counting them first. suffered from chronic and severe asthma and was hospitalized on several occasions. His mother recalls that doctors suggested that the asthma might have been caused by stress.

In her letter to the Court, describes numerous episodes of physical abuse, including an occasion when was seven and his father repeatedly smashed his head into the garage wall. His father made it a regular practice of calling him names, punished him when he lied and punished him when he told the truth. Sometimes his father expressed regret for his abuse. On other occasions, he acted as though he couldn't remember. Even now, the attached letter from suggests that he is recalling ome other family in some other life.Perhaps this passage from letter is the most telling:FN At the time of the probation interview, requested that only his sister be contacted by the Probation Officer, as he did not want the rest of his family to know of his legal problems. Since then, his entire family has learned of the case and for the most part, has been very supportive. The attached letters were sent to undersigned counsel and were not available to the Probation Officer at the time the Presentence Report was prepared.

couldn't cry without being accused of acting like a little girl or of being weak, and was told he had to be tough. He couldn't display anger without being considered disrespectful. He couldn't express a desire without being called a dreamer. Couldn't complain without being reminded of how good he had it, and how unappreciative he was. He couldn't express a contrary opinion without being called argumentative. He was told repeatedly that growing up was no fun and how tough he'd find out it really is.

was eight when he first wished out loud that he had never been born. He grew up hiding in his room, and became emotionally entrenched in what his sister describes as an "all consuming endless blackness." He confided in no one. His first memory of being in a warrn, snug environment is when he was under a canopy of blankets on his bed, alone.

As a teenager and young adult, he made several unsuccessful suicide attempts. The most memorable to both him and his family were the occasions when he and his brother would lie on railroadtracks awaiting a train.While his brother apparently alwaysjumped offt het racks in plenty of times waited dangerously until the last minute. Later, he jumped off of a bridge into the Mississippi River, only to wake up hours later on the riverbank, still alive. His mother admits that the suicide attempts were not properly addressed by her or her husband. Curiously, makes no mention of the suicide attempts in his letter.

spent several hours being interviewed by Dr. Barkhom, and again for clinical testing by Dr. Wells. Dr. Barkhom's psychiatric assessment was that he suffers from Major Depression and Dysthymia. Both doctors agree thats the criteria for being voyeuristic. Major Depression causes a person to have episodes of a severely depressed mood, for days at a time. There is a markedly diminished interest in activities, accompanied by feelings of worthlessness or inappropriate guilt. People suffering from Major Depression often experience sleep problems either they can't sleep at all or they can't get out of bed. Major Depression is almost always plagued with thoughts of suicide. See, Diagnostic and Statistical Manual of Mental Disorders, (ed. 4, copyright American Psychiatric Association).

Dysthymia is also a form of Depression. It is accompanied by all of the same characteristics of Major Depression. The difference between Dysthymia and Major Depression is that Major Depression is episodic in nature, while Dysthymia is characterized by being chronic. Symptoms of Major Depression are also more severe than those which characterize Dysthymia. Both Major Depression and Dysthymia are considered genetically based, but are also affected by biological and psychosocial factors. Synol2sis of Psychiatry, Behavioral Sciences Clinical Psychiatry, (Kaplan, Sadock and Grebb, Seventh Edition, Williams and Wilkins, 1994). In other words, one's environment plays upon one's genetic predisposition to develop depressive disorders. Ironically, the sister also suffers from Major Depression. See, Attachment F. Dr. Barkhom which notes that as had at least two episodes of Major Depression, with unabated symptoms of Dysthymia. She also notes that he is also Schizotypal, meaning that he suffers from "interpersonal deficits, a diminished ability for intimacy and perceptual and cognitive distortions orbehavioral eccentricities." See, "Forensic Evaluation, Attachment B, p 8.Voyeurism is a disorder of sexual arousal. It involves the "recurrent preoccupation with

FN The probation report incorrectly states that "the depression stems from poor self-esteem." Poor self-esteem does not cause depressive disorders. Rather, depressive disorders manifest themselves in poor self-esteem.

fantasies and acts that involve observing people who are naked or are engaged in grooming or in sexual activity," for the purpose of sexual arousal. Synopsis of Psychiatry, supra. See also, Diagnostic and Statistical Manual of Mental Disorders. According to Dr. Barkhom, research shows that Voyeurism is likened to other disorders brought about by anxiety or depression. Here, his Voyeurism fits quite naturally into his clinical picture, and both doctors found it clinically significant that he has retreated to fantasy since childhood.Dr. Wells observed that:Looking seems to be an important organizing function forIt is a comfortable way for him to relate to people. Rather than intimate interaction, he looks at them from afar. Looking also provides protection for him against other people in that it enables him to be hyper vigilant. People who are paranoid or distrustful about the motives of others are often watchful and hyper alert. As a clinical inference, it may also be that looking at others (particularly at children) provides him with a means (although inappropriately) of satisfying his curiosity and clearing up his confusion about his own gender identity.

"Confidential Psychological Evaluation Report", Attachment D, p. 12.

During the Presentence interview, the Probation Officer suggested that drawings could contain a psychological message that he might someday harm a child. In response to this expression of concern, both doctors were asked to review the drawings and all of the particularly offensive pictures taken from his computer, including the "cut and paste" photo. Both doctors agreed the drawings and efforts to create a "cut and paste" picture of a child engaged in sex with an adult is consistent with their diagnoses of Voyeurism and Schizotypy. According to Dr. Wells, his fascination with photos of children in sexual relationships with adults speaks more of his "internal conflicts with his own masculinity, gender identity and sexual competence." His drawings, some of which depicted a large, muscular man (unlike the defendant) with no visible eyes, only confirm his overall need to keep distance between himself and others, just as a child, found comfort and security under a blanket, alone and hidden from view. Moreover, there is no evidence to suggest that is driven by a generic need to get physically close to a child or any other human. To the contrary, his entire life has been dominated by a theme of putting distance between himself and others. Simply because one has a need to view, does not mean he has a need to act. Simply because a man may watch a rape scene in a movie with fascination or even pleasure doesn't mean he is going to become a rapist himself. Both doctors strongly state that there is nothing in their analysis of Mo suggest that he is going to act on his fantasies.

This defendant is a person who was born most likely genetically predisposed to developing some form of depression. He suffered the misfortune of being raised by an out-of-control, dysfunctional father. His mother found herself unable, for whatever reason, to intervene. That his father's abuse affected his development was borne out by his frequent asthma attacks. Even 30 years ago, the doctors saw enough evidence that the asthma might be stress-related. There being no human whom perceived capable of providing comfort, he retreated to his own imaginary world. It is no wonder that, having had his own innocent childhood poisoned by his father, that he came to view children as symbols of purity and innocence. It is no wonder that, having the sacred trust between parent and child completely manipulated, he grew up unable to develop a relationship with another adult based upon trust. It is no wonder that his most cherished human relationships are with his sister's children, and no surprise at all that he legitimately earns their love and respect.

It can also be no surprise that the world of computers became such a critical part of life. Computers are the perfect substitute for real, human relationships. The Internet, which offers the ultimate opportunity to view and fantasize while remaining completely alone, is no different to the true voyeur than whiskey to an alcoholic. It would never occur to talk about his personal issues with another human. He had never done this without suffering great shame and abuse.

No crime occurs in an historical vacuum. Sometimes the facts which fill up the picture only paint a more sinister and threatening portrait of the defendant. That is not the case here. The clinical portrait of reveals that he is a product of circumstances over which he had no control. While he fully acknowledges and accepts responsibility for his crime, his decision to post the pornographic files to the Internet was plainly driven by his Voyeurism. His Voyeurism has provided the only relief from his depressive disorders and his otherwise depressed existence. His depressed existence is all he has ever known.

The foregoing information plainly constitutes the kind of mitigating circumstances anticipated in U.S.S.G. §5K2.0. does not deserve to be sent to prison. A felonyconviction and a sentence to probation with electronic monitoring as a substitute for confinement (§5CI.I(c)(2))will serve the need to punish and will adequately protect the public.' Moreover, can and will benefit from both pharmacological and therapeutic treatment as a condition respectfully requests that the motion for downward departure be granted.

Respectfully submitted,

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