mania and U.S.S.G § 5K2.13

​Motion for Downward Departure Due to Diminished Capacity

Defendant, by and through his counsel, moves for a downward departure pursuant to U.S.S.G. § 5K2.13 due to diminished capacity

U.S.S.G. § 5K2.13 provides that “a downward departure may be warranted if (1) the defendant committed the offense while suffering from significantly reduced mental capacity; and (2) the reduced mental capacity contributed substantially to the commission of the offense”. If such a departure is warranted, the extent of the downward departure should mirror the extent to which the reduced capacity contributed to the commission of the offense.
Per § 5K2.13, on the basis of diminished capacity, a downward departure is not allowed if (1) the significantly reduced mental capacity was caused by voluntary use of drugs; (2) the facts and circumstances of the defendant's offense indicate a need to protect the public because the offense involved actual violence or serious threats of violence; or (3) the criminal history indicates a need to incarcerate to protect the public.
Defendant's significantly reduced mental capacity due to a manic episode that did not involve actual violence or threats of violence could qualify for a reduction. In United States v. Nowicki, 252 F.Supp.2d 1242, 1252 (2003) held that a defendant could receive a diminished capacity departure despite because Defendant's criminal history does not indicate the need to incarcerate in order to protect the public as a false statement on a 4473 is not a violent crime.

§ 5K2.13 defines “significantly reduced mental capacity” as a significantly impaired ability to 1) understand the wrongfulness of the behavior or 2) to exercise the power of reason; or impaired ability to control behavior that defendant knows is wrong.

A doctor diagnoses a defendant as suffering from bipolar disorder 1 with psychotic features. After noting that defendant was predisposed to developing manic symptoms because of his family history of Manic-Depressive illness/Bipolar 1, the forensic doctor provided his opinion that the addition of the antidepressant triggered a manic episode the manic ie precipitated a Manic Switch resulting in inappropriate behaviors seen with normal full blown mania including engaging in behaviours with high risk for painful consequences, impulsive behaviours, increased agitation and argumentativeness, decreased need for sleep, feelings of invincibility, abnormal energy and goal driven behaviour. 

The doctor opined that defendant's bipolar condition contributed substantially to his commission of these offenses. He diagnosed defendant with bipolar disorder 1, among other conditions. He concluded that he was severely psychiatrically ill at the time of the offenses, and his behavior was substantially influenced by the mental illness which then directly led to the illegal conduct. As the defendant's medical history reflects, the manic episode lead him to engage in increasingly argumentative, inappropriate and impulsive behaviors, which progressed to psychotic symptoms and illegal activities like ________. The illegal activities began with shoplifting and petty theft as a means of obtaining a rush or thrill, but ultimately progressed to inappropriately engaging in more serious crimes of ________.
The DMS-V notes that manic individuals frequently do not recognize that they are in an acute episode or are ill; a term professionally known as anosognosia and often will resist efforts to be treated. They frequently stop and start medication leading to a sub clinical level of serum medication levels. The DSM-V goes on to state they may engage in activities of a disorganized or bizarre quality, gambling and anti-social behaviors may accompany the manic episode. Ethical concerns may be disregarded even by those who are typically very conscientious. Additionally, “adverse consequences of a manic episode often result from poor judgment and hyperactivity.” In a manic episode “expansiveness, unwarranted optimism, grandiosity and poor judgment often lead to an imprudent involvement in pleasurable activities such as buying sprees, reckless driving, foolish business investments and sexual behavior unusual for the person even though these activities are likely to have painful consequences. The individual may ??
It is my opinion that at the time of the alleged embezzlement, Mr. Stewart was suffering from a mental illness namely bipolar disorder mania with psychotic features. The mania with psychotic features was in my opinion triggered by the use of the antidepressants, and it is unfortunate that the treating physician failed to recognize the problem and intervene appropriately. It is my opinion that while in the manic episode, Defendant was unable to appreciate the wrongfulness of his conduct, and his judgment and reasoning was substantially affected. It is my opinion that the manic symptoms are directly responsible for his behavior, and but for the antidepressant induced manic symptoms, the illegal behavior would not have occurred.

Defendant has been prescribed varying doses of Lithium from a couple of years ago to the present to treat his bipolar disorder, as shown by treatment records. 



To qualify for a downward departure for diminished capacity under § 5K2.13, defendant's reduced mental capacity must be a contributing cause of the offense, but does not need not be the sole cause. United States v. McBroom, 124 F.3d 533, 549 n. 14 (3d Cir. 1997). A departure under § 5K2.13 does not require a finding that the defendant's impairment is somehow an extraordinary circumstance, unique, or outside of the heartland [sic] per Guidelines. Rather, the standard focuses only on the facts of the case, unlike the departures under Chapter 5H, which relies on comparisons with other defendants' fact patterns.. United States v. Shore, 143 Supp.2d 74, 80 (D.Mass. 2001).

Courts recognized that bipolar disorder is a serious mental illness that impairs a defendant's ability to reason and to control behavior known to be wrongful. Accordingly, courts have frequently granted downward departures for diminished capacity under § 5K2.13 to defendants suffering from bipolar disorder. § 5K2.13 indicates, diminished capacity departure is not limited to a defendant who is unable to reason, or process information normally as the section covers those who cannot control their conduct, even if their cognitive abilities are unimpaired. United States v. Cantu, 12 F.3d 1506, 1512 (9th Cir. 1993) opined that reduced mental capacity refers not only to a lack of full capacity of functioning, but also emotional regulation conditions. For that reason, evidence from lay witnesses that a manic defendant who did not look or act strangely in the public eye does not foreclose a downward departure under § 5K2.13. 
The district court is entitled to rely on uncontested expert psychiatric testimony and its findings based on that evidence will not be overturned on appeal on the grounds of clearly erroneous or abuse of discretion. Downward departures for a diminished capacity under § 5K2.13 serve a public interest purpose by identifying defendants who are less culpable because their actions were rooted in their psychiatric problems. United States v. Shore, 143 F.Supp.2d 74, 83 (D.Mass. 2001).