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UNITED STATES v. HERBERT

October 30, 1995

UNITED STATES OF AMERICA
v.
MARY ANN HERBERT



The opinion of the court was delivered by: WILLIAMS

 On October 12, 1994, defendant Mary Ann Herbert pled guilty to a two count information charging her with embezzlement and tax fraud in violation of 18 U.S.C. § 664 and 26 U.S.C. § 7203 respectively. This matter is before the court on defendant's motion for a downward departure. For the reasons stated below, the court grants defendant's motion.

 Background

 Herbert owned and operated Berz Ambulance Service ("Berz") and James Medi-Car, Inc. ("Medi-Car"). In 1988, Medi-Car began experiencing financial difficulties. "In order to salvage her failing company," defendant started gambling. (PSI at 1.) However, the winnings did not cover the businesses debts.

 In February of 1991, Herbert withdrew from the Medi-Car pension fund two certificates of deposit, valued at $ 70,000. She proceeded to cash the CD's, deposit the funds into the Berz account, transfer $ 65,000 from the Berz account to her personal account, and transfer $ 60,000 from the Berz account to the Medi-Car account. Afterwards, she used the Medi-Car account to pay personal debts. Herbert did not file a tax return for 1991, so her actions went undetected until some time last year.

 In 1994, government agents contacted Herbert regarding the funds. She immediately agreed to cooperate, and eventually pled guilty. The probation officer calculated defendant's guideline range at 12-18 months based on a criminal history category of I and a total offense level of 13. *fn1"

 Analysis

 Defendant has moved for a downward departure. Departure from the guideline range is permitted 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 guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0. The policy statement set forth in U.S.S.G. § 5K2.13 states that:

 
"if the defendant committed a non-violent offense while suffering from significantly reduced mental capacity not resulting from voluntary use of drugs or other intoxicants, a lower sentence may be warranted to reflect the extent to which reduced mental capacity contributed to the commission of the offense, provided that the defendant's criminal history does not indicate a need for incarceration to protect the public.

 Previously, this court noted that Herbert's initial psychiatric examination indicated that she suffered from longstanding mental and emotional problems. Specifically, a psychiatrist who examined Herbert concluded that she suffers "an ongoing psychiatric illness . . . [and] displays a number of features which are often seen in individuals with mixed personality states that include narcissistic, histrionic and borderline features." (Isaac Ray Rep. dated May 3, 1995 at 6.) The psychiatrist explained that the illness causes a depressed state prompting Herbert to question her own worth, make poor decisions, and then offer excuses to compensate for her shortcomings. (Id.)

 This court ordered a second psychiatric evaluation to determine whether Herbert's psychological difficulties contributed to her criminal actions. By agreement of the parties, Herbert was seen by the same psychiatrist that had conducted the earlier analysis. The psychiatrist concluded that the defendant had, in fact, been impaired at the time of the offense. Specifically, she stated:

 
In my opinion, Ms. Herbert suffered cognitive difficulties (poor concept formation and poor ability to understand or judge situations) and emotionally driven decision making. Her behaviors and thought patterns were influenced by her impaired mental condition which include a severe depressive disorder compounded by a pathological gambling disorder and alcohol dependence. The consequences of her personality disorder which included her feelings of inadequacy (which impacted upon her ability to lead or administer a corporation) resulted in extremely poor decision-making which consequently led to the charge against her. Her inability to cope with the sequence of events resulted in her suicide attempt.
 
Ms. Herbert's mental state at the time of the offense was extremely impaired. As a direct result of an active depressive illness compounded by her mix personality state, her perception of her faults and weaknesses, in addition to her limited coping capacity and poor judgement subsequently resulted in a reduced mental ...

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