Filed: Apr. 16, 2009
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 4-16-2009 USA v. Olhovsky Precedential or Non-Precedential: Precedential Docket No. 07-1642 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "USA v. Olhovsky" (2009). 2009 Decisions. Paper 1441. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1441 This decision is brought to you for free and open access by the Opinions of the United Stat
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 4-16-2009 USA v. Olhovsky Precedential or Non-Precedential: Precedential Docket No. 07-1642 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "USA v. Olhovsky" (2009). 2009 Decisions. Paper 1441. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1441 This decision is brought to you for free and open access by the Opinions of the United State..
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Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-16-2009
USA v. Olhovsky
Precedential or Non-Precedential: Precedential
Docket No. 07-1642
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"USA v. Olhovsky" (2009). 2009 Decisions. Paper 1441.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1441
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 07-1642
_____________
UNITED STATES OF AMERICA
v.
NICOLAU OLHOVSKY,
Appellant
_____________
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)
Argued March 26, 2008
1
Before: McKEE, RENDELL and TASHIMA,* Circuit Judges
(Filed: April 16, 2009)
Andrea D. Bergman, Esq. (Argued)
Office of Federal Public Defender
22 South Clinton Avenue
Station Plaza #4, 4 th Floor
Trenton, NJ 08609
Attorney for Defendant-Appellant
Eric H. Jaso, Esq.
Boies, Schiller & Flexner
150 John F. Kennedy Parkway
4 th Floor
Short Hills, NJ 07078
George S. Leone, Esq. (Argued)
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Attorneys for Plaintiff-Appellee
*
Honorable A. Wallace Tashima, Senior Judge of the
United States Court of Appeals for the Ninth Circuit, sitting
by designation.
2
OPINION OF THE COURT
McKEE, Circuit Judge.
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.
I. Background 1
1
Given Olhovsky’s unique circumstances and their
relevance to his challenge to the reasonableness of his
sentence, we will set forth his personal characteristics in
3
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
detail.
4
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
5
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).
Prior to sentencing, Olhovsky participated in mental
health counseling arranged by Probation and Pretrial Services.
6
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.
7
Silverman stated:2
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
2
Because this letter is central to the issues raised on
appeal, we take the liberty of quoting it at length.
8
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
9
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
10
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,
h i s a s s e r t i v e n e s s h a s in c r e a s e d , h i s
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
11
(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
12
sentencing.3 Although it is not entirely clear what happened
3
In a “letter brief” submitted to the district court,
defense counsel represented that he advised Dr. Silverman,
that: “if the records were mitigating for Mr. Olhovsky, we
would revisit the issue of Dr. Silverman’s testifying at
sentencing. Dr. Silverman was amen[]able to this
suggestion.” (App. 16.) On appeal, Olhovsky has also
submitted a letter from defense counsel to Dr. Silverman
dated November 20, 2006, in which counsel reports the
following:
I also discussed with you the possibility of
testifying for Mr. Olhovsky. Based on your
expressed concern about the prospect of Mr.
Olhovsky’s long incarceration, I remember
telling you that I thought your testimony could
be beneficial in Mr. Olhovsky’s case. I advised
you that I would review the records at your
office first and then evaluate the need for your
testimony. My distinct recollection is that you
readily agreed to be available for Mr.
Olhovsky’s sentencing, but explained that the . .
. sentencing . . . was not a good date for you
because you had to go to a conference on the
treatment of sex offenders that week. I advised
you that I would try to move the sentencing date
to accommodate your schedule. You certainly
never advised me that you did not wish to
testify, that testifying would be a breach of your
13
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.4 It is clear that
contract with Pretrial Services, or that you
would only testify with a subpoena.
(Supp. App. 1-2.) It is not clear if this letter was part of the
record below.
4
The contract between Silverman’s agency and the
Pretrial Services Office contains a section entitled “Vendor
Testimony” which reads as follows:
The vendor shall:
(1) Appear or testify in legal proceedings
convened by the federal court or Parole
Commission only
(a) Upon request of the federal court, United
States Probation and Pretrial Services Offices,
United States Attorney’s Offices, or United
States Parole Commission, or
(b) In response to a subpoena.
(2) Provide testimony including but not limited
14
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
to a defendant’s/offender’s: attendance record;
drug test results; general adjustment to program
rules; type and dosage of medication; response
to treatment; test results; and treatment
programs.
(3) Receive reimbursement for subpoenaed
testimony through the Department of Justice
based on its witness fee and expense schedule.
(4) Receive necessary consent/release forms
required under federal, state or local law form
the Government.
(5) Not act as an advocate for the
defendant/offender in any legal or
administrative proceedings (e.g. if an attorney
requests a report or opinion on the treatment of
a client) unless such action is approved in
writing by the Chief US Probation Officer or
Chief US Pretrial Services Officer.
(App. 76.)
15
matter.” (App. 16.) 5 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
5
This explanation of Pretrial Services’ position is
contained in Olhovsky’s letter brief to the district court. The
record contains no written statement from Pretrial Services.
16
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
17
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
certainly am not going to be authorizing issuing
a subpoena to compel Dr. Silverman.
18
(App. at 92-95.)
Defense counsel indicated at this point that Dr. Silverman
had already stated his own willingness to testify, and the
subpoena was only requested because of the opposition from
Pretrial Services. The court responded: “[g]iven this unique
situation which is sui generis, if he personally wishes to testify,
he can testify, and Pretrial Services and I will work it out
between us. (App. at 95.)
Dr. Silverman did not appear at the sentencing as it
appears that nothing could be “worked out” regarding his
testimony. Moreover, it is not at all clear what the court
intended to do, or what it expected defense counsel to do to
“work out” an arrangement whereby Dr. Silverman would
appear at sentencing. Defense counsel did send one last letter
to Dr. Silverman after her request for a subpoena was denied.
In that letter, she explained that the court had refused a
19
subpoena and she made the following final plea for Dr.
Silverman’s assistance:
Notwithstanding the contract between Discovery
House and Pretrial Services, I am writing to ask
you to voluntarily testify for Mr. Olhovsky. I am
sure that you are in a difficult position vis-a-vis
Pretrial Services, and I understand that voluntarily
testifying on Mr. Olhovsky’s behalf may
jeopardize the contract between Discovery House
and Pretrial and/or Probation. Quite candidly, [a
representative of the Pretrial Services Office] has
indicated to me that she cannot guarantee that
your choice to testify would not jeopardize your
contract with either Probation or Pretrial Services.
(Supp. App. 2.) This letter went unanswered.
B. Materials Submitted to the Court Prior to Sentencing
Prior to sentencing, Pretrial Services prepared a
Presentence Report (“PSR”), pursuant to Fed. R. Crim. P. 32(d).
That PSR includes the following reference to a letter from
Olhovsky discussing his understanding of his own behavior:
20
When I was a teenager, I usually spent a lot of
time on my computer, and I got a lot of emails
from people on line. I got an email from someone
that had a picture of a child in a sexual pose. I
was in high school and I was around 15 or 16
years old. At first, I did not really think about it,
but I just kept receiving more and more pictures.
I got interested in the pictures out of curiosity. I
wasn’t really thinking about how children were
being abused. I was very lonely and did not spend
a lot of time with friends. At school, I was pretty
much an outcast, with people making fun of me
all the time for no reason. I spent all my time at
home and on the computer. I just gradually got
more and more curious about the pictures. I
downloaded some software to make an IRC or
“internet relay chat” that let other people upload
and download pictures, too.
I wasn’t thinking about a child being abused when
I was swapping pictures. I guess I wasn’t
thinking of it as that “real.” I felt sort of detached
from the whole thing. Since I was arrested, I have
made a turn around - I totally “get it” that it was
wrong and I am really sorry about what I did. Dr.
Silverman has helped me see why it was so wrong
and I feel really bad about the little kids in those
pictures. I am embarrassed about what I did.
Before this whole thing happened, I wasn’t very
good at putting myself in other people’s shoes.
But I can understand that what I do effects other
21
people much better now. I am very, very, sorry.
(PSR ¶ 22.)
Defense counsel also submitted a letter brief in advance
of sentencing and attached several supportive letters from family
and friends, as well as a copy of Dr. Silverman’s letter to
Pretrial Services and expert reports from two other mental health
professionals. Defense counsel emphasized that psychologists
who had seen Olhovsky agreed that he was an “immature,
adolescent” at the time of his offenses.6 The letter brief also
emphasized the progress Olhovsky had made since being in
treatment: he had a job, was attending classes at community
college, and was spending more time socializing with his peers.
The first of the expert reports defense counsel submitted
6
In fact, the majority of Olhovsky’s offense behavior
(downloading and trading pictures) occurred while he was
under the age of 18. He was arrested only a few months after
his 18th birthday.
22
was an eleven-page “Forensic Evaluation,” authored by Kirk
Heilbrun, Ph.D., head of the Department of Psychology at
Drexel University. Dr. Heilbrun interviewed Olhovsky at length
and administered various tests. Dr. Heilbrun also interviewed
Olhovsky’s mother, and reviewed the criminal complaint as well
as the images seized from Olhovsky’s computer.
Dr. Heilbrun’s conclusions were very similar to those of
Dr. Silverman. In his Forensic Report, Dr. Heilbrun stated:
It is possible that Mr. Olhovsky’s extreme social
anxiety put him at risk for obtaining pornography
through the internet in several ways. First, given
that Mr. Olhovsky feels considerable anxiety
during personal interactions with others, he may
feel more comfortable with images and
relationships that involve some degree of distance
and detachment. Second, Mr. Olhovsky’s
discomfort in social situations may have inclined
him to spend more time alone; social isolation
may function as a risk factor for him with respect
to this kind of pornography. Third, his discomfort
with comparably aged peers and own sense of his
social inadequacy incline him toward social and
sexual interest in younger individuals.
23
(App. 151.)
Dr. Heilbrun reiterated that Olhovsky “presents as a
socially anxious and awkward adolescent who appears
considerably less mature, socially and sexually, than most
individuals his age.” (App. 155.) The doctor then explained:
“[h]is social and sexual interest in younger adolescent peers and
in prepubescent children can be understood somewhat in this
context; rather than viewing these attractions as fixed, they may
be considered partly a function of adolescent sexual
experimentation, being ‘drawn’ to images of subjects with
whom he feels less awkward - both because they are younger,
and because they are images on a computer rather than people
presenting in person.” (Id.)
Dr. Heilbrun concluded that Olhovsky:
1. did not experience symptoms that clearly and
significantly impaired his capacity to absorb
information in the usual way or to exercise the
24
power of reason or impaired his knowledge of the
wrongfulness of these criminal acts, although his
naiveté and social isolation may have limited even
his basic awareness of the illegality of these acts,
and
2. did experience immaturity, social
awkwardness, and depression that decreased his
capacity to conform his conduct to requirements
of the law.
(App. at 155-56.)
The defense also submitted a report from Philip H. Witt,
Ph.D., who interviewed both Olhovsky and his mother, spoke
with Dr. Silverman, and reviewed Dr. Silverman’s treatment
records, Dr. Heilbrun’s evaluation, the PSR and other records.
Dr. Witt’s examination focused on “[the] risk [Olhovsky]
presents for child molestation.” (App. 157.)
Dr. Witt’s report included the following summary of his
telephone consultation with Dr. Silverman:
. . . Dr. Silverman indicated that Mr. Olhovsky
has made substantial progress in treatment. It is
25
Dr. Silverman’s opinion that Mr. Olhovsky’s
serious physical problems, including surgeries and
hospitalizations, as a child and adolescent have
impaired his social development and level of
maturity. As a result, Mr. Olhovsky developed
social anxiety and isolated himself from others,
having been the brunt of teasing and taunting
though his adolescence. Dr. Silverman reported
that Mr. Olhovsky has done well in
psychotherapy. Dr. Silverman believes that Mr.
Olhovsky has made significant steps in a positive
direction. Mr. Olhovsky now holds a job, and in
fact (at Dr. Silverman’s insistence) a job in which
Mr. Olhovsky interacts considerably with people,
as a cashier at Shop Rite. In addition, again with
Dr. Silverman’s encouragement, Mr. Olhovsky
has an age-appropriate girlfriend. . . . Overall, Dr.
Silverman is quite satisfied with Mr. Olhovsky’s
progress and continues to see him as clinically
manageable as an outpatient.
(App. 161-62.)
While acknowledging that most clinical assessment tools
have been designed for actual child molesters rather than passive
viewers of pornography, Dr. Witt nevertheless attempted to
assess Olhovsky’s risk for future sex offenses:
26
To at least obtain an estimate of his current and
recent functioning, I am scoring Mr. Olhovsky on
the SONAR, which focuses entirely on this area.
On the SONAR, Mr. Olhovsky received a score of
-1 point, placing him in this instrument’s low risk
range (three points or less). On the stable
dynamic risk factors, he receives no points. He is
in a sexually and emotionally intimate romantic
relationship [with an 18-year-old]; he does not
associate with negative social influences; he does
not presently espouse attitudes that support or
condone sex offending; during the past six
months, both his general and his sexual self-
regulation have been good. On the acute dynamic
risk factors, he has one point subtracted for no
longer accessing or downloading child
pornography on the Internet.
Overall, a score in this instrument’s low risk
range is found roughly nine times as frequently
among nonrecidivists as among recidivists in the
standardization sample upon which this
instrument was developed.
(App. at 163-64.)
Finally, Dr. Witt opined that (1) Olhovsky’s offense was
not “a reflection of a broadly antisocial personality and
lifestyle”; (2) “the weight of the evidence [shows] that at the
27
present time, [Olhovsky] does not have a pedophilic sexual
interest pattern”; and (3) that Olhovsky, “whatever his initial
motivations were for viewing such a vast quantity of child
pornography (and at the time, those motivations might well have
been a sexual interest pattern focused on minors), appears to
presently have a sexual interest pattern focused on adults.”
(App. 164-65.) Dr. Witt agreed that “social anxiety may have
led to Mr. Olhovsky’s use of child pornography.” (App. 165.)
Dr. Witt concluded that “clinically, taking all factors into
account, Mr. Olhovsky presents as within the limits of risk
appropriate for outpatient management.” (Id.)
In response, the government submitted a three-page
expert report prepared by John S. O’Brien II, M.D., J.D, in
which Dr. O’Brien offered his “opinion regarding Mr.
Olhovsky’s diagnosis and potential dangerousness as a sex
offender in the future.” (App. 188.) Dr. O’Brien reviewed “a
28
printout regarding the items found on Mr. Olhovsky’s computer,
including his posting in the internet relay chat room pertaining
to child pornography; report of psychological evaluation of
Nic[]olau Olhovsky, completed by Philip H. Witt, PhD on
January 19, 2007; and report of forensic evaluation of Nic[]olau
Olhovsky, completed by Kirk Heilbrun, PhD on January 6,
2006.” (Id.) However, it appears that Dr. O’Brien never spoke
to Olhovsky’s treating psychologist, Dr. Silverman, or reviewed
his treatment notes, nor did he ever meet or interview Olhovsky
or his mother.
Dr. O’Brien noted his “serious concerns regarding Mr.
Olhovsky’s prediliction for child pornography and propensity
for future involvement in either procuring, distributing, and/or
collecting child pornographic materials.” (Id.) The report
concludes:
Based upon my review of the records I remain
29
unconvinced that Mr. Olhovsky no longer has a
pedophilic sexual excitation pattern, or even a
pedophilic sexual excitation preference. It is my
opinion that he warrants a more intensive degree
of psychosexual disorder evaluation and a longer
period of observation as a condition of his
sentence in order to more effectively,
appropriately, and thoroughly evaluate his
potential psychosexual disorder, determine
whether his alleged “gradual transition in his
sexual excitation pattern” is more than just a
fleeting byproduct of the serious circumstances
which currently confront him and the extent to
which he does, in fact, pose a future risk to the
community as a predatory sexual offender.
(App. 189-90.)
C. The Sentencing Hearing
At the sentencing hearing, the district court heard
testimony from both Dr. Heilbrun and Dr. Witt. Dr. Silverman
did not appear, nor did he submit any additional materials to the
court. The district court calculated Olhovsky’s total offense
level pursuant to the advisory United States Sentencing
30
Commission Guidelines as 33.7 That offense level, combined
with his lack of any criminal history, resulted in a Guideline
range of 135 to 168 months imprisonment. However, Olhovsky
was subject to a statutory maximum sentence of 10 years
pursuant to 18 U.S.C. § 2252A(a)(5)(B).8 Accordingly, the
Guideline recommendation was 120 months. Nevertheless, the
court imposed a sentence of six years imprisonment and offered
7
We need not discuss the Guideline calculations in
detail because Olhovsky does not challenge the offense level
or criminal history category as calculated by the district court.
8
18 U.S.C. § 2252A(a)(5)(B), establishes a maximum
sentence of 10 years imprisonment for any person who:
“knowingly possesses, or . . . accesses with intent to view, any
. . . computer disk, or any other material that contains an
image of child pornography that has been . . . transported
using any . . . facility of interstate or foreign commerce . . .
any means, including by computer, . . . ” unless the person has
a prior conviction for such conduct, in which case a sentence
of imprisonment of “not less than 10 nor more than 20 years”
is mandated. 18 U.S.C. § 2252A(b)(2).
31
the following explanation:
The guidelines [] have been issued [] for a
reason. Sex child pornography has become more
and more recognized as a serious threat to society.
It’s compounded by the anonymity in which
individuals can access child pornography on the
Internet and feel insulated. Every one of those
downloads represents sexual abuse. The pictures
which were handed up to the Court essentially
represent in some manner or other the rape of
little children, and every individual who seeks to
access this material on the Internet has aided and
abetted in that activity.
***
Every one of these postings [on the
Internet] can only be regarded as a request by Mr.
Olhovsky for someone to produce material or
obtain material for him that met this description.
. . . This is not a victimless crime. . . .
So, I’m presented quite frankly with a
situation in which Mr. Olhovsky, as the
government has indicated, engaged in just
extraordinarily extensive conduct in this area. Is
he young? He’s young. He’s young and as the
psychologists have admitted, they don’t know
what he’s going to do. He certainly has indicated
pedophile proclivities in the past and they can’t
32
tell me whether or not he will be a pedophile in
the future.
[A]t a minimum this Court has an
obligation to make sure that it imposes a sentence
which indeed conforms with the provisions of
Section 3553 and that includes the need of the
sentence imposed to reflect the seriousness of the
offense, to promote the law and to provide just
punishment and to afford adequate deterrence to
criminal conduct, and the problem is this is an
incredibly difficult offense to catch and people
have to understand that if you are caught, simply
because you think you’re doing this in the privacy
of your own home and that somehow this is not
affecting victims, you’re wrong. You are
affecting victims. You are hurting little children.
[]
There is only, as far as I’m concerned, one
significant mitigating factor in Mr. Olhovsky’s
favor, his youth. He might stand some chance
but, you know something, he also could turn
around and become again a predator – a pedophile
monster, and this Court is not prepared to impose
any sentence which, one, denigrates the
significance of the conduct which Mr. Olhovsky
has done, suggest that this does not warrant
substantial, indeed, potentially draconian
punishment and, three, make sure that if he gets
treatment, that it’s in an environment where
33
indeed it can be ensured that treatment is under
close custody, so [] the Court rejects [the defense]
arguments for probation. The Court rejects your
argument that being treated in a custodial
psychiatric facility in the prison system will not
help Mr. Olhovsky.
As far as the Court is concerned, it is the
best hope that this society has for Mr. Olhovsky
given how it appears that prior efforts have
largely failed. I understand [the defense is]
presenting arguments that the past few years have
been successful in some manner or other but,
quite frankly, the Court is unpersuaded that that is
an overwhelming predictor of success; that at a
minimum, both incarceration and custodial
treatment are required.
(App. 228-231 (emphasis added).)
It is not at all clear what (if any) basis the court had for
making the italicized statement. We have discussed the only
evidence of treatment that appears on this record, and nothing
suggests that “prior efforts have largely failed.” In fact, the
entire record is to the contrary. The only mental health
professionals who actually interviewed, tested or treated
34
Olhovsky concluded that he was quite responsive to treatment.
Indeed, not even the government’s expert concludes that
Olhovsky’s treatment has “failed.” Rather, Dr. O’Brien
concluded that additional observation and therapy was required
to determine if Olhovsky’s positive response to treatment “is
more than just a fleeting byproduct of the serious circumstances
which currently confront him and the extent to which he does,
in fact, pose a future risk to the community as a predatory sexual
offender.”
We are similarly troubled by the court’s perplexing
characterization of defense counsel as arguing that “the past few
years have been successful in some manner or other . . . .” That
characterization of the evidence before the court is both
inaccurate and unfair. It suggests vagaries and generalites (i.e.
“successful in some manner or other”), and ignores the very
specific evidence of Olhovsky’s positive response to treatment.
35
That response includes: his newfound ability to have an age-
appropriate intimate relationship, his employment history and
college attendance and the growth in social interaction it both
reflects and requires, and his expressions of remorse and the
concomitant realization of the harmful nature of his conduct.
Although the latter could certainly be feigned in hopes of a more
lenient sentence, no one who examined Olhovsky (including the
government’s own expert) suggested that his positive progress
while in treatment, the specific steps he has taken were anything
other than an honest reflection of who he was becoming or his
introspection and remorse.9
At the conclusion of the hearing, the district court
sentenced Olhovsky to six years incarceration followed by three
9
As noted, Dr. Silverman described him as a
developmental “fourteen or fifteen year old who is stumbling
toward adulthood”; but nothing suggests he has done anything
but respond positively to treatment.
36
years of supervised release, with various special conditions.
This appeal followed.
II. Refusal to Subpoena Dr. Silverman.10
Olhovsky first argues that the district court erred in
refusing to subpoena Dr. Silverman to testify at the sentencing
hearing. Olhovsky claims that the district court fundamentally
misunderstood its own powers when it concluded that experts
could not be subpoenaed to testify. He also argues that Dr.
Silverman’s absence resulted in significant prejudice. However,
it is not clear whether Olhovsky is arguing that the prejudicial
error amounts to a violation of due process, an abuse of
discretion, or both.
A district court’s decision to admit or exclude evidence
10
The district court had subject matter jurisdiction
pursuant to 18 U.S.C. § 3231. We have jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a).
37
at sentencing is reviewed for abuse of discretion. United States
v. Cooper, 437 F.3d 324, 330 n.9 (3d Cir. 2006). However, we
review legal conclusions de novo. United States v. Cepero,
224
F.3d 256, 258 (3d Cir. 2000). Cf. Citizens Financial Group, Inc.
v. Citizens Nat. Bank of Evans City,
383 F.3d 110, 132-33 (3d
Cir. 2004) (“To the extent the district court’s admission of
evidence was based on an interpretation of the Federal Rules of
Evidence, our standard of review is plenary.”) (quoting United
States v. Pelullo,
964 F.2d 193, 199 (3d Cir.1992)).
To its credit, the government does not attempt to defend
the district court’s conclusion that expert witnesses are not
subject to the court’s subpoena power. Rather, the government
argues that any error was harmless because Dr. Silverman’s
letter was introduced at sentencing and available to the court.
The government also points out that the district court expressly
invited defense counsel to have Dr. Silverman appear
38
voluntarily and/or submit supplemental written materials and he
did not do so.11 The government further notes that Olhovsky did
submit two reports from other experts who generally agreed
with Dr. Silverman’s assessments and argues that any further
submissions or testimony from Dr. Silverman would merely
have been cumulative. Finally, the government emphasizes the
sentencing judge’s historic discretion in determining what (if
any) live testimony to allow at sentencing, and then invites us to
assume that even absent any error, the district court would have
exercised that discretion and refused to subpoena Dr. Silverman.
However, it is clear that the district court committed legal
error in concluding that it could not subpoena Dr. Silverman to
testify at Olhovsky’s sentencing hearing. As noted earlier, in
11
This argument is a bit puzzling because it was made
clear to the district court that Dr. Silverman did not believe he
could appear absent a subpoena because of the purported
limitations of his contract with Pretrial Services.
39
explaining its refusal to subpoena Dr. Silverman for the
sentencing, the court stated “[t]here 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.” (App. 93.) As a threshold matter, we do not think
that Silverman would have been testifying as an “expert
witness.” Rather, he would have testified primarily as a fact
witness and informed the court of Olhovsky’s attitude and
progress in treatment. To the extent that Silverman may have
been required to offer an opinion as an expert, we see nothing
that precluded him from doing so.
Further, the court’s legal basis for that statement is not
clear, nor have we been able to independently determine the
basis for that “one basic rule.” Rule 17 of the Federal Rules of
Criminal Procedure governs the issuance of subpoenas in
40
criminal cases. That rule does not place any limit or
qualification on witnesses who may be subpoenaed. Not
surprisingly, the government has been unable to direct us to any
case that would support the district court’s very broad ruling. At
oral argument, while not conceding that the district court made
an error of law, the government did suggest that perhaps the
district court was referring to Fed. R. Civ. P. 45. However, that
Rule is not relevant to a criminal proceeding and it would not
support the court’s ruling even if it did apply.12
Moreover, any suggestion that the court’s subpoena
power is limited in this manner would be inconsistent with the
12
Fed. R. Civ. P. 45 provides that, in a civil case, a
court may modify or quash a subpoena “if it requires . . .
disclosing an unretained expert’s opinion or information that
does not describe specific occurrences in dispute and results
from the expert’s study that was not requested by a party,” or
the court may order that the expert be compensated. Fed. R.
Civ. P. 45 (c)(3)(B)(ii); Fed. R. Civ. P. 45 (c)(3)(C)(ii).
41
government’s concomitant attempt to rely on the sentencing
court’s broad discretion to hear witnesses during the sentencing
phase. Accordingly, we conclude that the court’s determination
that it could not allow Dr. Silverman to be subpoenaed for the
sentencing hearing was erroneous. The more difficult part of
our inquiry is whether Olhovsky was prejudiced by that error
since he was able to introduce Dr. Silverman’s letter as well as
the reports of other behavioral experts. Nevertheless, despite his
ability to present that evidence, given the justifiable and
stringent concerns of the district court about public safety, the
possibility of recidivism, and whether Olhovsky could be a “a
pedophile monster,” we can not conclude that this error of law
was harmless.
According to our traditional harmless error
standard, a non-constitutional error is harmless
when “it is highly probable that the error did not
prejudice” the defendant. “ ‘High probability’
requires that the court possess a ‘sure conviction
42
that the error did not prejudice’ the defendant.”
United States v. Langford, 516 F.3d 205, 215 (3d Cir. 2008)
(citations omitted); see also United States v. Duckro,
466 F.3d
438, 446 (6th Cir. 2006) (“[W]here a district court makes a
mistake in calculating a guidelines range for purposes of
determining a sentence under section 3553(a), we are required
to remand for resentencing unless we are certain that any such
error was harmless-i.e. any such error did not affect the district
court's selection of the sentence imposed.”) (citations and
internal quotation marks omitted). After reviewing the
sentencing transcript we are unable to conclude that it is highly
probable that the district court would have imposed the same
sentence given an opportunity to discuss its concerns with Dr.
Silverman, Olhovsky’s treating psychologist. This is
particularly true given the extraordinarily favorable nature of
other reports by behavioral experts who examined or evaluated
43
Olhovsky.
Dr. Silverman had treated and observed Olhovsky for
approximately two years immediately preceding the sentencing.
Insofar as can be determined on this record, it appears that Dr.
Silverman was responsible for the only behavioral therapy
Olhovsky has ever had. As noted above, both the court and the
government’s expert expressed concerns about Olhovsky’s
potential for recidivism. As also noted above, the court went so
far as to opine that Olhovsky “could turn around and become
again a predator – a pedophile monster.” Given the severity of
that concern and its obvious implication for the safety of society
that is part of the inquiry under 18 U.S.C. § 3553(a), we can not
conclude that the court would have imposed the same sentence
if it had a chance to speak directly with Olhovsky’s treating
psychologist, pose those concerns and evaluate Dr. Silverman’s
responses.
44
Moreover, given the very positive response to treatment
that the court either overlooked or ignored, it is difficult for us
to see how the court could have continued to view Olhovsky as
some kind of “pedophile monster” after addressing those
concerns to Dr. Silverman. Such an interaction would have
provided an additional basis for the district court to evaluate the
favorable and optimistic reports of Drs. Witt and Heilbrun,
neither of whom was Olhovsky’s treating psychologist.
The district court expressed persistent doubts about
Olhovsky’s psycho-social prognosis. The court noted: “He’s
young and as the psychologists have admitted, they don’t know
what he’s going to do. He certainly has indicated pedophile
proclivities in the past and they can’t tell me whether or not he
will be a pedophile in the future.” (App. 230.) Obviously, no
health care professional can ever give a prognosis with absolute
certainty. Everyone’s behavior is subject to far too many
45
nuanced subtleties, complexities and uncertainties to allow for
any such predictions. Given the concerns that the court
expressed at sentencing, and its concerns about this category of
offender, we will not ignore the potential force of a conversation
with a treating psychologist specializing in the treatment of sex
offenders who had been treating Olhovsky for almost two years.
Given our discussion, it should be clear that we are not
persuaded that the legal error was cured by the district court’s
invitation to defense counsel to have Dr. Silverman testify
voluntarily. As mentioned above, we are also not convinced that
the prejudicial error was mitigated by the court’s statement that
if Dr. Silverman wished to testify the court would “work it out”
with Pretrial Services. (App. 95.) Pretrial Services had taken
the position that Dr. Silverman would breach his contract by
testifying, and it certainly appears that he could only try to
“work things out” if he were willing to risk future employment.
46
In holding that the district court committed prejudicial
legal error in refusing to subpoena Dr. Silverman we are mindful
of the wide discretion historically afforded sentencing courts.
We note however, that although the district court refused to
subpoena Dr. Silverman, the court stated: “if he personally
wishes to testify, he can testify, . . .”.13 Accordingly, the court
did not rule that it would not allow Dr. Silverman to personally
address the court. On the contrary, the court stated that it would
allow such testimony, but then refused to issue a subpoena
which, as we have explained, was the only way the court could
13
As we noted earlier, the Assistant United States
Attorney objected to subpoenaing Dr. Silverman by arguing
that his testimony would be cumulative given the other expert
reports available to the court. However, that is not why the
court refused to issue the subpoena. Moreover, it is difficult
for us to conceive of how the testimony of the very person
most familiar with Olhovsky, and best qualified to answer the
court’s questions would necessarily be “cumulative.”
47
have had the benefit of that testimony. Whatever Dr.
Silverman’s personal preferences might have been, the court
would not have the benefit of his testimony absent a subpoena
because of the resistance of Pretrial Services.
This entire situation is even more perplexing because we
can find nothing in Dr. Silverman’s contract with Pretrial
Services that prohibits someone in Dr. Silverman's position from
appearing at sentencing when volunteering to do so and when
the defendant does not object. In fact, the contract at issue
seems to anticipate this very situation by stating: “[t]he vendor
shall . . . [a]ppear or testify in legal proceedings convened by the
federal court or Parole Commission only (a) [u]pon request of
the federal court, United States Probation and Pretrial Services
Offices, United States Attorney's Offices, or United States
Parole Commission, or (b) [i]n response to a subpoena.” (App.
76).
48
We conclude therefore, that the district court’s erroneous
denial of defense counsel’s request for a subpoena to
Olhovsky’s treating psychologist was not harmless.14
III. The Reasonableness of the Sentence.
We review the sentence that was imposed to determine if
it was reasonable. See Cooper, 437 F.3d at 329-30. In doing so,
we are guided by the requirement that sentencing courts give
“meaningful consideration” to all of the sentencing factors in 18
U.S.C. § 3553(a).
Id. at 329. Moreover, “the record must show
a true, considered exercise of discretion on the part of a district
court, including a recognition of, and response to, the parties’
14
We do not suggest that it would be appropriate to
issue a subpoena to any mental health professional who works
with a criminal defendant. Our holding is confined to the
specific facts of this case. The psychologist volunteered to
appear and testify, but required a subpoena pursuant to the
terms of his contract with a government office, and defense
counsel did not object.
49
non-frivolous arguments.” United States v. Jackson, 467 F.3d
834, 841 (3d Cir. 2006).
District courts must engage in the following three step
process when determining an appropriate sentence:
(1) Courts must continue to calculate a
defendant’s Guidelines sentence precisely as
they would have before Booker.15
(2) In doing so, they must formally rule on the
motions of both parties and state on the record
whether they are granting a departure . . . .
(3) Finally, they are to exercise their discretion
by considering the relevant § 3553(a) 16 factors
15
United States v. Booker, 543 U.S. 220 (2005)
16
The factors set forth in 18 U.S.C. § 3553(a) are:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) the need for the sentence imposed--(A) to reflect the seriousness
of the offense, to promote respect for the law, and to provide just
punishment for the offense; (B) to afford adequate deterrence to criminal
conduct; (C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
50
in setting the sentence they impose regardless
whether it varies from the sentence calculated
under the Guidelines.
United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006)
(citations omitted). Olhovsky claims that the district court erred
at the third step of this process by failing adequately to consider
all of the § 3553(a) factors and instead unduly emphasized the
need to punish, deter and protect society.
We have explained that sentencing courts must give
“meaningful consideration” to all of the statutory factors in 18
(4) the kinds of sentence and the sentencing range established
for--(A) the applicable category of offense committed by the applicable
category of defendant as set forth in the guidelines . . .;
(5) any pertinent policy statement . . . issued by the Sentencing
Commission . . . [that] is in effect on the date the defendant is sentenced.
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar
conduct; and
(7) the need to provide restitution to any victims of the offense.
51
U.S.C. § 3553(a). Cooper, 437 F.3d at 329. It is not enough for
a sentencing court to “recit[e] the § 3553(a) factors, say[] that
counsel’s arguments have been considered, and then declar[e]
a sentence.”
Jackson, 467 F.3d at 842. Such a “rote statement”
will “not suffice if at sentencing either the defendant or the
prosecution properly raises ‘a ground of recognized legal merit
(provided it has a factual basis)’ and the court fails to address
it.”
Cooper, 437 F.3d at 329 (citation omitted).
Here, it is not at all apparent that the court actually
considered the lengthy, very specific and highly positive reports
of any of the three defense experts. Rather, the court focused on
incapacitation, deterrence and punishment to the exclusion of
other sentencing factors. The court’s suggestion that Olhovsky
“could turn around and become again a predator – a pedophile
monster,” and its statement that a sentence must not “denigrate,
the significance of the conduct . . . [or suggest that Olhovsky ]
52
does not warrant substantial, indeed, potentially draconian
punishment. . . ” can not be interpreted in any other way.
While sentencing courts need not discuss each of the §
3553(a) factors “if the record makes clear the court took the
factors into account in sentencing,” Cooper, 437 F.3d at 329,
where, as here, the record strongly suggests that some of the
statutorily prescribed sentencing factors were ignored, we can
not conclude that the resulting sentence was reasonable. Section
3553(a) clearly states that a court must impose a sentence that is
“sufficient but not greater than necessary, to comply with the
purposes of [sentencing]” (emphasis added). This requirement
is often referred to as “the parsimony provision,” and the
Supreme Court has referred to it as the “overarching instruction”
of 18 U.S.C. § 3553(a). See Kimbrough v. United States,
128
S. Ct. 558, 563 (2007). It has particular relevance to our inquiry
here.
53
The court imposed a custodial sentence that was less than
suggested by the Guidelines but still sufficiently lengthy to
satisfy the court’s conclusion that a “substantial, indeed,
potentially draconian” punishment was required. The result is
a sentence that appears inconsistent with all of the psychological
testimony with the possible exception of the expert who testified
for the government, Dr. O’Brien. However, Dr. O’Brien’s
testimony does not negate our conclusion that the district court
failed to adequately consider a less retributive or incapacitative
sentence for several reasons.
As noted above, Dr. O’Brien’s letter expressed his
opinion that more evaluation and observation was required in
order to determine whether Olhovsky’s behavior “is more than
just a fleeting byproduct of the serious circumstances and the
extent to which he does, in fact, pose a future risk to the
community as a predatory sexual offender.” Thus, not even Dr.
54
O’Brien’s letter supports a conclusion that a “pedophile
monster” lurks inside of Olhovsky. However, even if we
assume that the concerns expressed in Dr. O’Brien’s letter
support a sentence of six years imprisonment, we could still not
conclude that the court gave adequate consideration to all of the
sentencing factors.
As we explained above, Dr. O’Brien’s three-page report
was based primarily on the nature of the images on computer
rather than any interaction with Olhovsky. O’Brien did not
interview Olhovsky or speak to his mother. He did not even
bother to speak to the behavioral therapist who had been treating
Olhovsky for nearly two years or review that therapist’s
treatment notes. On the other hand, Dr. Heilbrun and Dr. Witt
interviewed Olhovsky as well as his mother before authoring
their reports, and Dr. Witt administered psychological tests
specifically designed to assess recidivism risks.
55
Moreover, even if the court could somehow conclude that
Dr. O’Brien’s cautions outweighed the more therapeutically
focused recommendations of Drs. Silverman, Heilbrun and Witt,
the court never explained why it rejected Dr. Silverman’s
assessment of the likelihood of recidivism.17 In fact, as noted
earlier, in the face of very specific positive reports of
Olhovsky’s response to therapy, the court stated that Olhovsky
had not been responsive to therapy. The only thing on this
record that even tangentially supports that statement is Dr.
O’Brien’s report. We have already explained why that is simply
not adequate to ignore the demand of parsimony that is the
17
Dr. Silverman’s letter stated that “recidivism rates are
notably lower in adolescents” and that “[s]ituational and
opportunity factors” play a larger role in adolescent offenses as
opposed to “fixed internal cognitive factors” that motivate adult
offenders. The applicability of these generalized observations to
Olhovsky is supported by the results of testing administered by Dr.
Witt, which placed Olhovsky in the “low risk” category for repeat
offenses.
56
“overarching instruction” of the congressionally mandated
sentencing factors. However, there is even more reason to doubt
the reasonableness of sentencing Olhovsky to six years in
prison.
In the area of disabilities law, we recognize “[t]he
treating physician doctrine - a doctrine long accepted by this
court.” Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir. 1993).
Pursuant to that doctrine, “a court considering a claim for
disability benefits must give greater weight to the findings of a
treating physician than to the findings of a physician who has
examined the claimant only once or not at all.” Id.; see also
Morales v. Apfel,
225 F.3d 310, 317 (3d Cir. 2000) (“Where . .
. the opinion of a treating physician conflicts with that of a
non-treating, non-examining physician, the ALJ may choose
whom to credit but cannot reject evidence for no reason or for
the wrong reason.”) (citation omitted). No less consideration
57
should govern when one’s liberty is at stake than when disability
benefits hang in the balance.
We have similar concerns over the court’s approach to 18
U.S.C. § 3553(a)(2)(D). That provision requires that the court
consider the need for any sentence to “provide the defendant
with needed educational or vocational training, medical care, or
other correctional treatment in the most effective manner.”
Although the district court did mention the obvious need for
continued treatment, the court noted only that “if he gets
treatment” it should be “in an environment where . . . it can be
ensured that [] treatment is under close custody.” There is no
indication that the district court considered Dr. Silverman's
opinion that “[i]f incarcerated . . . he will just regress terribly.”
Yet, Dr. Silverman’s fears about the effect of a lengthy term of
imprisonment were sufficient to motivate him to write a letter to
the sentencing court; something he had never done before. The
58
court certainly did not have to accept Dr. Silverman’s concerns
and refrain from incarcerating Olhovsky, but the record must
reflect the reason for believing that treatment in prison would
“provide . . .correctional treatment in the most effective manner”
despite Dr. Silverman’s opinion to the contrary.
Moreover, it is exceedingly difficult to review this
sentencing transcript without becoming convinced that the
district court was so appalled by the offense that it lost sight of
the offender. The fact that the record does not reflect the
required consideration of “the history and characteristics of the
defendant,” 18 U.S.C. § 3553(a)(1), is particularly troubling
given the professional opinions of the psychologists who treated
or interviewed him. Our concern that the court lost sight of the
offender is only slightly mitigated by the below Guideline
sentence that the court imposed.
We do not suggest that the court acted unreasonably
59
merely because it rejected defense counsel’s request for
probation or that the court’s concern about this category of
offense is misplaced. Offenses involving the sexual exploitation
of children foster a market that destroys lives. Therefore, the
court was correct in refusing to view Olhovsky’s “passive”
behavior as a victimless crime. Nevertheless, 18 U.S.C. §
3553(a) applies to all offenders, and Congress requires that
courts sentence the individual offender. Although the offender’s
conduct is part of the sentencing equation, it is not the totality of
it, and this record does not establish the reasonableness of
focusing on the offense at the expense of the individual
offender.
As we mentioned earlier, this sentence was below the
advisory Guideline range and that range had been lowered to
comply with the statutory maximum sentence. However, that
does not obviate the necessity of our inquiry into the
60
reasonableness of this sentence. “Regardless of whether the
sentence imposed is inside or outside the Guidelines range, [we]
must review the sentence under an abuse-of-discretion standard.
[We] must first ensure that the district court committed no
significant procedural error, such as . . . failing to consider [each
of] the § 3553(a) factors . . .” Gall v. United States, 128 S. Ct.
586, 597 (2007). For reasons we have already explained, we
conclude that the district court did commit a procedural error in
imposing this sentence. However, we also conclude that,
notwithstanding the Guideline range, the sentence was not
substantively reasonable.18
We are, of course, acutely aware of the limitations placed
on an appellate court reviewing the district court’s sentence.
18
See Gall v. United States, 128 S. Ct. 586, 597 (2007)
(appellate review for procedural error such as “failing to
consider the 3553(a) factors” should precede review for
substantive reasonableness).
61
The issue is not whether we would have imposed the same
sentence, or even a similar sentence. Rather, the issue is
whether the sentence is reasonable in light of this record and the
sentencing factors. The suggested Guideline range does not
define the parameters of that inquiry. See Cooper, 437 F.3d at
332.
Here, the district court imposed a substantial prison term
while explaining that it could not predict the future (i.e.
Olhovsky’s likelihood of recidivism) with any certainty and that
prior treatment efforts had failed. We have already explained
how the latter statement is simply incorrect. The former
explanation is of little assistance because no court can ever be
absolutely certain that a defendant will not reoffend. Moreover,
that rationale would justify an incapacitative sentence for any
defendant regardless of criminal history or the success of any
therapy because the possibility of recidivism can never be
62
reduced to zero.19
Moreover, these expressions by the sentencing court
reinforce our concern that the court was so offended by the
nature of Olhovsky’s conduct that it sentenced the offense at the
expense of determining an appropriate sentence for the offender:
It has been uniform and constant in the federal
judicial tradition for the sentencing judge to
consider every convicted person as an individual
and every case as a unique study in the human
failings that sometimes mitigate, sometimes
magnify, the crime and the punishment to ensue.
Gall, 128 S. Ct. at 597. Our concern is reinformed by the
court’s omission of any consideration for Olhovsky’s subnormal
social development. Drs. Silverman, Witt and Heilbrun all
referred to Olhovsky’s developmental problems. Indeed, Dr.
Silverman stressed that Olhovsky had been quite slow to mature
19
Regrettably, the probability of anyone committing a crime
can never be reduced to zero.
63
and that he was therefore immature even given his chronological
age. Yet, it does not appear that the court considered that
testimony in sentencing Olhovsky to six years in prison, nor did
the court explain why it was rejecting concerns about the impact
of a lengthy prison sentence on Olhovsky’s chances for
continuing healthy social adjustment. In Gall, the Court noted
the significance of considering immaturity at sentencing. 128 S.
Ct. at 601. The Court specifically mentioned that the district
court there had stressed Gall’s relative immaturity at the time of
the offense and had referenced the Court’s opinion in Roper v.
Simmons, 543 US. 551, 569 (2005). In Roper, the Court had
quoted a study that concluded “lack of maturity and an
underdeveloped sense of responsibility are qualities that often
result in impetuous and ill-considered actions.” Id. (internal
quotation marks omitted). Gall quoted the reasoning of the
district court that:
64
Immaturity at the time of the offense conduct is
not an inconsequential consideration. . . [T]he
recent [National Institute of Health] report
confirms that there is no bold line demarcating at
what age a person reaches full maturity. While
age does not excuse behavior, a sentencing court
should account for age when inquiring into the
conduct of a defendant.
Id. Given Dr. Silverman’s letter and concerns that Olhovsky’s
lack of emotional maturity directly contributed to this offense,
the sentencing court should have either explained the extent to
which, if any, Olhovsky’s immaturity factored into its sentence
of six years imprisonment, or explained why it was irrelevant.
While the district court did mention Olhovsky’s “youth” as a
mitigating factor, it is clear that was a reference to Olhovsky’s
chronological age. Olhovsky was 18 when he was arrested and
20 when sentenced. As noted earlier, Dr. Silverman viewed
Olhovsky as a 14 or 15 year old juvenile.
We realize that it could be argued that the court did
65
consider Olhovsky’s immaturity and relied in part on that to
impose a sentence that was substantially below the Guideline
range. However, nothing on this record supports that claim, and
any such argument fails to explain why the sentencing court did
not address the therapist’s concern about the effect of a long
prison term on Olhovsky, or his developmental immaturity. Nor
is our concern for the substantive reasonableness of the sentence
mitigated by the argument that serious crimes like this must
necessarily be punished with substantial prison terms in order to
preserve respect for the law. In affirming the sentence that the
government appealed in Gall, the Supreme Court noted that the
district court had there observed that “a sentence of
imprisonment may work to promote not respect, but derision, of
the law if the law is viewed as merely a means to dispense harsh
punishment without taking into account the real conduct and
circumstances involved in sentencing.” 128 S. Ct. at 599.
66
That statement has particular significance here. As noted
above, the district court did not offer any explanation for
accepting the government’s three-page expert report and
ignoring the substantial evidence derived from the contrary
expert opinions of the psychologists who actually interviewed
Olhovsky and his mother, or the opinion of his treating
psychologist. Instead, the sentencing judge spoke extensively
about the insidious nature of child pornography, the difficulty of
catching offenders, and the need for “substantial, indeed,
potentially draconian punishment.” (App. 231.)
The hideous nature of an offender’s conduct must not
drive us to forget that it is not severe punishment that promotes
respect for the law, it is appropriate punishment. Although there
are clearly times when anything less than severe punishment
undermines respect for the law, it is just as certain that unduly
severe punishment can negatively affect the public’s attitude
67
toward the law and toward the criminal justice system. It is no
doubt partly for that reason that jurists have referred to the
responsibility of sentencing as “daunting.” See United States v.
Grober, --- F. Supp. 2d ---, 2008 WL 5395768, at *1 (D.N.J.
Dec. 22, 2008) (quoting then Chief Judge Becker in United
States v.Faulks,
201 F.3d 208, 209 (3d Cir. 2000)). The power
and responsibility of a sentencing court is indeed, nothing short
of “daunting.” It requires a careful balancing of societal and
individual needs, and an ability to determine a sentence based on
dispassionate analysis of those often competing concerns.
It has often been stated that possession and distribution
of child pornography are very serious crimes that have a terrible
impact on real victims. See United States v. Goff, 501 F.3d 250,
258 n.13 & 259 (3d Cir. 2007) (noting “evidence of Congress’s
intent that offenses involving child pornography be treated
severely” as well as the impact on children who are “exploited,
68
molested and raped” to support the demand of the industry). No
one could sincerely disagree with that statement, and the
seriousness of the crimes is reflected in the penalties that
Congress has prescribed as well as in the Guidelines that have
been promulgated by the Sentencing Commission. However,
revulsion over these crimes can not blind us as jurists to the
individual circumstances of the offenders who commit them. Id.
at 260 (“Child pornography is so odious, so obviously at odds
with common decency, that there is a real risk that offenders will
be subjected to indiscriminate punishment based solely on the
repugnance of the crime and in disregard of other
Congressionally mandated sentencing considerations.”).20
20
For an exceedingly thoughtful discussion of the
tension between sentencing policy and sentencing practice in
the area of child pornography see, Grober, supra. The
discussion there not only reflects the difficulty of imposing
reasonable sentences in this area, it also reflects the
painstakingly careful approach of that sentencing judge in
69
As we have emphasized, the “overarching principle” of
parsimony that Congress included in § 3553 directs the courts to
impose a sentence “sufficient, but not greater than necessary, to
comply with the purposes set forth in [this section].” 18 U.S.C.
§ 3553(a).
A district court has a duty, to evaluate the quality of mitigating
evidence presented to it. Yet, here, the district court concluded
that “draconian” punishment was warranted with only minimal
consideration of substantial evidence to the contrary. The
Supreme Court has recently stated:
The appropriateness of brevity or length,
conciseness or detail, when to write, what to say,
depends upon circumstances. . . . In the
[sentencing] context, a statement of reasons is
important. The sentencing judge should set forth
trying to tailor an appropriate sentence given the offender
before her, an applicable mandatory minimum sentence, and
the parameters contained in the Sentencing Guidelines and 18
U.S.C. § 3553(a).
70
enough to satisfy the appellate court that he has
considered the parties’ arguments and has a
reasoned basis for exercising his own legal
decisionmaking authority. . . . Where the
defendant or prosecutor presents nonfrivolous
reasons for imposing a different sentence,
however, the judge will normally go further and
explain why he has rejected those arguments.
Rita v. United States, 127 S. Ct. 2456, 2468 (2007). There was
clearly nothing frivolous about defense counsel’s argument that
Olhovsky was not a typical offender nor counsel’s suggestion
that his crime did not fall within the minerun of cases the
Guidelines are intended to address. The court responded by
stating: “[t]he guidelines [] have been issued [] for a reason. . .”,
and that strongly suggests that the court did not give adequate
consideration to the extent to which Olhovsky fit within the
“heartland” of offenders.21
21
Cf. United States v. Iannone, 184 F.3d 214, 226 (3d
Cir. 1999) (explaining that the Guidelines are designed for the
71
As we have explained, that is but one example of the
procedural errors committed by the district court. In United
States v. Levinson, 543 F.3d 190, 195 (3d Cir. 2008), we
explained that “procedural problems may lead to substantive
problems, so there are times when a discussion of procedural
error will necessarily raise questions about the substantive
reasonableness of a sentence.” This is clearly such a case.
Given the factual and procedural error here, it was substantively
unreasonable to sentence Olhovsky to six years imprisonment.
On remand, the district court will impose a reasonable sentence
based upon all of the § 3553(a) factors, including the
“overarching” principle of parsimony.
IV.
“heartland” of cases and that “[i]n the unusual case . . . the
court may consider a departure from the Guidelines
sentence”).
72
Because the district court erred in ruling that Dr.
Silverman could not be subpoenaed to testify as an expert, and
because the court’s failure to consider Olhovsky’s individual
circumstances pursuant to 18 U.S.C. § 3553(a) resulted in an
unreasonable sentence, we will vacate the sentence and remand
for further proceedings consistent with this opinion.
73
