April 16, 2009; as amended April 24, 2009 and May 5, 2009
On Appeal from Judgments of Conviction and Sentence in the United States District Court for the District of New Jersey District Judge: Hon. Stanley R. Chesler. (Crim. No. 06-cr-00263).
The opinion of the court was delivered by: McKEE, Circuit Judge
Before: McKEE, RENDELL and TASHIMA,*fn1 Circuit Judges
Nicolau Olhovsky appeals the sentence of six years imprisonment that was imposed after he pled guilty to possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). He argues both that the sentence is unreasonable and that the sentencing court erred as a matter of law in refusing to allow his treating psychologist to testify at the sentencing hearing. For the reasons that follow, we agree. Accordingly, we will remand for resentencing.
Nicolau Olhovsky was born with several birth defects, including a concave chest (pectus excavatum). When he was eight months old, he underwent heart surgery in an attempt to correct defects in his heart and aorta, and he underwent a second operation at age 14 to correct his concave chest.
Olhovsky's parents divorced when he was seven years old. Following the divorce, he and his sister lived with their mother until his arrest in this case. His mother has been permanently disabled as a result of an automobile accident in 1997.
It is uncontested that Olhovsky was awkward and isolated as a child. He was bullied and teased at school because of his slight build and physical limitations. As a result, he spent much of his time alone in his room with a computer. It is also uncontested that he was so depressed and suicidal at times that he was admitted to a psychiatric facility in 2004, and that he cut himself with a knife at one point.
The events underlying his prosecution for child pornography began in August of 2004 when an undercover law enforcement officer who was investigating internet child pornography logged onto an Internet Relay Chat ("IRC") channel labeled: "#100%PRETEENGIRLSEXPICS." While monitoring that web site, agents learned that Olhovsky was among those using it to trade child pornography. In December of 2004, shortly after Olhovsky turned eighteen, agents searched the home that Olhovsky shared with his mother and sister. During the course of that search, the agents seized Olhovsky's computer and hard drive. Subsequent examination of that hard drive disclosed over 600 images of child pornography, including photographs of prepubescent girls engaging in sexual activity with adult men.
Olhovsky admitted that the hard drive was his and that he collected and traded child pornography through the IRC. He also told the agents that he began viewing and collecting child pornography when he was about fifteen. Olhovsky further admitted setting up a file server and posting an advertisement offering to trade pornographic materials.
Olhovsky was subsequently arrested pursuant to a criminal complaint charging possession of child pornography based on the results of the aforementioned search and statements Olhovsky had made during the course of the search. Thereafter, Olhovsky waived his right to indictment, and pled guilty to possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).
A. Pretrial Counseling and Dr. Silvermans Letter
Prior to sentencing, Olhovsky participated in mental health counseling arranged by Probation and Pretrial Services.
During the almost two years that passed while Olhovsky was awaiting sentencing, he continued in counseling and therapy, including regular meetings with Dr. Howard Silverman, a psychologist specializing in the treatment of sex offenders. Dr. Silverman's psychological services were provided pursuant to his vendor contract with Pretrial Services.
In August 2006, after he had been treating Olhovsky for over a year, and well before Olhovsky was to be sentenced, Dr. Silverman learned that Olhovsky faced up to ten years in prison pursuant to his guilty plea. That prompted Dr. Silverman to write a letter to Pretrial Services expressing his concerns about Olhovsky's potential incarceration. He sent copies of the letter to defense counsel, the prosecutor and the court. In his letter, Dr. Silverman explained: "despite . . . having worked with many Federal Pre-Trial clients in the past, this is the first letter of its kind that I have ever composed." (App. 25.) In that letter, Dr. Silverman stated:*fn3
When Mr. Olhovsky first consulted with me, he was eighteen years of age. He will only be twenty years of age this coming September 14. However, despite his chronological age as an adult, I have always worked with him with the view of his being a notably immature adolescent who is, perhaps, a juvenile sexual offender but should not be viewed as an adult offender. It is important to make note of the fact that there are significant differences between adult and juvenile sexual abusers. Patterns of sexual interest and arousal are developing and not yet fixed in adolescents. Situational and opportunity factors appear more typical in juvenile sexual offenses, rather than the fixed internal cognitive factors often found in adult offenders. Adolescents have less developed sexual knowledge. Protective factors are especially important when dealing with youngsters. In addition, recidivism rates are notably lower with adolescents.
I would also like to comment upon the motivational aspects that I believe impacted upon Mr. Olhovsky. Some of these motivators include, in his case, loneliness (as an inappropriate and ineffective means of connecting and engaging with others), naïve experimentation (in which [Olhovsky] is likely to not have been fully aware of the antisocial nature of his actions but was motivated primarily to learn about sex and sex-related matters), to gratify sexual needs (which he believed he was incapable of doing with age-appropriate peers) and as one way in which he could establish social competence or mastery due to the interpersonal difficulties he had experienced throughout much of his life.
Upon presenting to me initially, [Olhovsky] indicated an, overall, unhappy childhood marked by not having enough friends, school problems, and a history of being severely bullied and teased. He was extremely fearful of experiencing further teasing, humiliation, and social rejection. Most of his time was spent alone in which he could escape the very sad reality of his life by going into a world of fantasy available to him on the Internet. Mr. Olhovsky acknowledged a number of behavioral problems in which he included "odd behavior" because he did not see himself as mature as a typical eighteen year old. He also indicated phobic avoidance of people due to the negative experiences he had had.
Emotionally, Mr. Olhovsky indicated not one positive emotion but a long list of negative ones including feeling depressed, anxious, guilty, regretful, hopeless, helpless, lonely and tense. His main fears included "being alone my whole life" and "not being able to support myself."
Mr. Olhovsky described himself as a useless, unattractive, ugly, stupid and lazy individual who also was unable to make decisions, had memory problems and concentration difficulties. Interpersonally, he reported having few, if any, friends and not being able to maintain relationships. [Olhovsky] reported no significant emotional/romantic relationships and he had no sexual relationships with others. The primary focus of his sexuality had been via the computer. He maintained, however, that his primary sexual fantasies were of age-appropriate females where mutuality was a part of the experience.
I am also very concerned about Mr. Olhovsky's being able to deal with incarceration due to the physical limitations he has. Not only is he very slightly built (and, quite frankly, incapable of physically protecting himself), but he has a history of open-heart surgery and has physical limitations. Not being a medical doctor, I will not, however, comment further about his medical condition.
I would also like to comment upon my view of the progress that Mr. Olhovsky has made since being in treatment. While he seems to have little, if any, guidance from his mother (who reportedly is quite physically ill herself with a number of emotional problems), or his father (divorced from his mother and with whom he has limited contact), or any substantial support from any other family member he has, with the assistance of Federal Pre-Trial officers and myself, shown signs of growth both inter- and intra-personally. However, Mr. Olhovsky is at the beginning stages of that growth. Rather than being a nineteen (soon to be twenty) year old, he, actually, more impresses me as being a fourteen or fifteen year old who is stumbling toward adulthood. However, he is moving in the right direction. His self-image is improving, his interactional skills are improving, his assertiveness has increased, his communication skills are improving, he has taken risks regarding being with others which has included going down the Jersey Shore and going to concerts, and he continuously expresses the desire for further social contact with age-appropriate peers.
Mr. Olhovsky still makes certain mistakes such as those which resulted in his being currently unemployed. However, these are mistakes not of maliciousness but, rather, immaturity.
While I cannot represent to you that Mr. Olhovsky will never behave inappropriately in the future (none of us can predict the future with certainty), I do hope that Mr. Olhovsky can be viewed much more as a juvenile rather than adult sexual offender. I do not view him as being a fixated pedophile or incapable or lacking desire in being with age-appropriate consenting females. He has made progress both interpersonally and intrapersonally. If incarcerated, however, whatever progress that he has made will likely be for naught and, if anything, he will just regress terribly. Additionally, as I noted earlier, I do fear for his physical safety.
I hope the above information is of value to you in having a better understanding of my work with Mr. Olhovsky. . . . (App. 25-27.)
In the course of preparing for sentencing, Olhovsky's counsel spoke with Dr. Silverman after obtaining a court order authorizing limited disclosure of Olhovsky's treatment records. (App. 15.) Defense counsel claimed that Dr. Silverman was initially "amenable" to appearing as a witness at Olhovsky's sentencing.*fn4 Although it is not entirely clear what happened next, upon learning of Dr. Silverman's intent to testify, it appears that Pretrial Services took the position that Dr. Silverman's vendor contract precluded him from appearing voluntarily on behalf of Olhovsky at sentencing.*fn5 It is clear that Pretrial Services "asserted that Dr. Silverman's testimony in this case, because it is expected to be favorable to Mr. Olhovsky, would make him a partisan, and that it is improper to have a 'contract court employee' be turned into a partisan in the matter." (App. 16.)*fn6 Accordingly, Pretrial Services contacted the district court and expressed its opposition to having Dr. Silverman testify at sentencing. (Id.)
Upon learning of Pretrial Services' position, defense counsel moved to subpoena Dr. Silverman to testify at Olhovsky's sentencing. The court offered the following explanation for denying the motion:
I have concluded, based upon two factors, that I am not going to permit Dr. Silverman to testify in this matter. One is because it would appear to me that there's an effort, indeed, to have him testify in some manner as an expert, in short, to give a prognosis and opinion about Mr. Olhovsky's future potential risk and so on.
That is quintessential expert testimony. There is one basic rule, which is generally applied to expert witnesses in both the civil and criminal context, which is one cannot be subpoenaed to give expert testimony, one can only be subpoenaed to give fact testimony. A treating physician can be subpoenaed to give evidence concerning what he or she did, and, indeed, what a diagnosis was, but prognosis is quintessential expert testimony, predicting what's going to happen in the future.
However, quite frankly, my concerns go also to an entirely different issue, which is, I'm not in the least bit satisfied that it would be beneficial to this Court to have live witness testimony. Quite frankly . . . the Court has had dozens upon dozens of sentencings over the years where psychiatric issues have been raised by way of mitigation, and they have been more than adequately presented to the Court through the submission of reports . . . .
I have no objection to Dr. Silverman submitting anything further relating to his opinions about the defendant in a report or otherwise to the Court if he wishes to supplement what he's already given.
To put it bluntly, without setting any precedent for the future, at a minimum, the cat would appear to be out of the bag in this particular case, and nobody would be particularly well served by preventing Dr. Silverman from giving whatever views, at least in a written form, that he chooses to do so.
But, in the exercise of my discretion, at this point I am not inclined to hear live testimony; and number two, I am extremely dubious about whether or not Dr. Silverman could properly be subject to a subpoena to give expert testimony in a case in which he was not retained as an expert.
I will direct all the treatment notes and so on be provided to you. Dr. Silverman can give me anything which he believes is appropriate to supplement his letter, if he wishes to, after you contact him. You can, and, indeed, have been authorized to retain an expert to give further reports which can be based upon, of course, the interviews along with a review of Dr. Silverman's notes, and so on.
If you were to advise me that Dr. Silverman voluntarily wished to testify in this matter, and so indicated, I would make my own determination about whether or not I thought such testimony would be useful and beneficial to the Court after seeing in full what I had received in written submissions from the parties.
In short, as [the prosecutor] indicated, I have discretion in determining how I'm going to accept and consider mitigating evidence, and at this point, until I see what further information is presented, I cannot make a definitive decision about whether or not I would permit Dr. Silverman to testify if he chose to do so, but I ...