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November 9, 1999


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.

The Offense Conduct

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 that:

  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?

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