The opinion of the court was delivered by: Dalzell, District Judge.
On June 9, 1999, defendant Paul Motto pleaded guilty to distributing
visual depictions of minors engaged in sexually explicit conduct, and
receipt of visual depictions of minors engaged in such conduct in
violation of 18 U.S.C. § 2252 (a)(1) and (a)(2), respectively. At his
sentencing hearing which commenced on October 21, 1999 and concluded
today, Motto contended that we should depart downward from the 70-87
month sentencing range because America Online ("AOL") "enabled" the
offense and, pursuant. to U.S.S.G. § 5K2.13, he suffered a
"significantly reduced mental capacity" as our Court of Appeals has
construed that Guideline policy statement in United States c. McBroom,
124 F.3d 533 (3d Cir. 1997).
Motto's two contentions implicate important questions that go to the
core of criminal responsibility for sex offenders and in some respects
for all offenders. We therefore must analyze Motto's arguments at some
length. As this is a federal sentencing, these questions necessarily are
addressed in the framework of the Sentencing Guidelines. As will be
seen, a major issue this case raises within the Guidelines regime entails
examining whether it is possible for at least half of the offenders of a
particular offense to be outside the "heartland" of the guideline the
Sentencing Commission has adopted for that offense.
As detailed in the paragraphs of the presentence investigation
report*fn1 dealing with the offense conduct (see ¶ 10-18
thereof), Motto, using the cybername FOXFOX99, in the summer of 1997 sent
graphics files containing child pornography to the New York State Attorney
General's undercover e-mail address. Based on the information received
from the New York Attorney General's Office, the United States Postal
Inspector in Philadelphia, also acting undercover, contacted Motto
through AOL under the undercover cybername, BABYFACE54. Through an AOL
chatroom, Motto and the Postal Inspector arranged that Motto would send a
computer disk containing child pornography in exchange for a video
containing the same sexually explicit material. Motto directed that the
videotape be mailed to a post office box in Bensalem, Pennsylvania, to
the attention of one "Bill Tate", Motto's pseudonym.
In September of 1997, Motto sent another e-mail in which he confirmed
that he had sent a small package through the mails, that he could not
wait for the video, and that he had "tons more stuff" when he got his
materials (PSI ¶ 15). Motto on September 3, 1997 sent another e-mail
"to the undercover officer, and stated that he had sent a 3.5 disk, as
well as eight to twenty-nine files as a show of good faith. A later
review of the computer disk showed that it contained thirty graphics
files, twenty-six of which containing child pornography involving
children as young as six years old.
In late October of 1997, Motto arrived at the Bensalem Post Office and
picked up an express mail package allegedly containing the video he had
long sought. He was then followed to his residence in Bensalem, whereupon
a federal search warrant was executed on the residence. Motto's computer
system, computer disks and videos were seized.
Record on Motto's Reduced Mental Capacity
Just before his sentencing, Motto proffered the expert report of
Timothy P. Foley, Ph.D., and Dr. Foley began his testimony at the
sentencing hearing on October 21, 1999. At the request of the
Government, Dr. Foley's direct testimony concluded, and the sentencing
hearing was recessed in order to permit the Government to have Motto
examined by an expert of its choosing. Cross-examination of Dr. Foley
resumed on November 9, 1999. At that time, we also received the testimony
of Timothy J. Michals, M.D., the Government's psychiatrist, who examined
Motto on November 5, 1999 and submitted a report on November 8
(hereinafter "Michals Rep.").
In his written report, as well as in his testimony, Dr. Foley concluded
that AOL "enabled" Motto's offense because of the "anonymous availability
provided by the AOL chatrooms". Report of Timothy P. Foley, Ph.D. at 15
(hereinafter "Foley Rep."), attached as Ex. A to defendant's sentencing
memorandum. Specifically, Dr. Foley wrote and confirmed in his testimony
There are no indications of prior exposure to illegal
pornography until receiving it as part of his
[Motto's] AOL subscription. It is unlikely that Mr.
Motto would have risked detection or have tolerated
the anxiety of a face-to-face interaction to procure
pornography. AOL enabled and interacted with Mr.
Motto's psychopathology to produce the illegal
behaviors for which he is charged.
In his testimony on October 21, 1999, Dr. Foley disclosed that he had
evaluated twenty-three men who had been charged in either the state or
federal courts with child pornography offenses. He testified that all
were, like Motto, white middleclass males. See Notes of Testimony of
October 21, 1999 (hereinafter "Oct. 21 N.T.") at 74. He also acknowledged
that no mature, well-adjusted adult would seek the material Motto
received and distributed. Oct. 21 N.T. at 85-86. of the twenty-three men
Dr. Foley examined who had received child pornography, he estimated that
at least half suffered from a personality disorder*fn3 within the
meaning of DSM-IV. See Oct. 21 N.T. at 92.*fn4 In answer to our
question, Dr. Foley stated that the twenty-three men he saw constituted a
representative sample, albeit not a randomly chosen one, of child
pornography offenders like Motto. See Oct. 21 N.T. at 99-100.
Dr. Foley also confirmed, in response to our questions, that he
believes AOL is, to some extent, responsible for what Paul Motto did in
the summer of 1997. Dr. Foley is of the view that AOL, as well as other
Internet online service providers, makes it "easier for everybody who has
even the slightest curiosity" about such materials to get them because
"[y]ou don't have to risk a face-to-face. You don't have to risk being
observed." Oct. 21 N.T. at 84.
Dr. Michals, by contrast, concluded that Motto showed "no evidence of
any mental disorder, which would have significantly reduced his mental
capacity concerning the criminal charges that he is facing." Michals
Rep. at 6.
Can Half of a Class of Offenders Be Outside the Heartland of the
Guideline for Their Offense?