Porn At Home

United States v. Polouizzi, No. 08-1830-cr (2d Cir. April 24, 2009)(Leval, Katzmann, Raggi, CJJ)

Defendant - referred to in the opinion as Peter Polizzi - was convicted by a jury of eleven counts of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), and twelve counts of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2), after the jury rejected his insanity defense. Post-trial, he made a Rule 33 motion, arguing that the district court erred by refusing to inform the jury that the receipt counts carried a five-year mandatory minimum. Based in part on a post-verdict colloquy with the jurors that revealed that at least some of them would have accepted the insanity defense had they known of the mandatory minimum, the court granted the motion on the receipt counts only. Both sides appealed.

The Defendant’s Appeal

A. Double Jeopardy

1. Multiple Counts of Possession

Polizzi argued that all but one of his possession counts should be vacated because possessing a single collection of child pornography on a single date could constitute only a single violation of § 2252(a)(4)(B). The circuit agreed, and found plain error, as well.

The statute makes it a crime to possess “1 or more” matters that contain “any visual depiction” of an image containing child pornography. It also contains an affirmative defense if the defendant “possessed less than three [such] matters.” The court rejected the government’s claim that each “matter which contains” a prohibited image is a separate unit of prosecution under this section.

Under the “clear language” of the statute, a person “who simultaneously possesses multiple ... matter[s] containing a visual depiction of child pornography” is subject to “only one conviction under 18 U.S.C. § 2252(a)(4)(B).” The language “1 or more” indicates that a person commits only one violation of the statute by possessing more than one matter containing child pornography. Unlike the word “any,” which may be ambiguous in setting the applicable unit of prosecution, the phrase “1 or more” clearly “specifies the plural.” This reading of the statute is bolstered by the existence of the affirmative defense, which “necessarily contemplates that a person who possessed two matters containing prohibited images would face a single charge of violating” this section.

2. Multiple Counts of Receipt

The court considered a similar argument with respect to the receipt counts under § 2252(a)(2), which criminalizes the receipt of “any” prohibited images. The court found the term “any” ambiguous as to setting the applicable unit of prosecution; under the rule of lenity, absent evidence of a contrary congressional intent, “a person who receives multiple prohibited images in a single transaction can only be charged with a single violation of § 2252(a)(2).” Here, the trial evidence showed that Polizzi received prohibited images on four distinct dates, with no evidence of multiple and distinct transfers on each of those dates. Thus, Polizzi could only be convicted of four receipt counts - “one for each date on which he received images - but not multiple receipt counts per day.”

3. Simultaneous Convictions of Possession and Receipt

Finally, Polizzi argued that he could not be convicted of both possession and receipt, because possession is a lesser included offense of receipt. The court noted that both the Third and Ninth Circuits have so held, and found those cases “persuasive,” but did not actually rule on the issue. Polizzi “was charged with possessing certain images of child pornography the receipt of which did not form the basis for a separate receipt count.” Thus, for those four counts, his possession was not incident to an act of receiving for which he has already been punished.

B. Other Claims

At trial, Polizzi tried to get the district court to force the government into an Old Chief-type stipulation that the images were child pornography, so as to prevent them from being introduced into evidence. The district court would not do it, and the circuit affirmed. Here, in light of Polizzi’s insanity defense, the “specific nature and content of the images were relevant” and the “risk of unfair prejudice was minimized by the mode of presentation.”

He also challenged the court's charge on the insanity defense, but the court refused to consider the claim, finding that it was “waived” by his affirmative acceptance of the instruction, and not merely “forfeited” by a lack of objection, which would have left open the possibility of plain error review.

The Cross-Appeal

Although although the court rejected Polizzi’s claim that the Sixth Amendment required the jury to be informed of the mandatory minimum, the court did not agree with the government that district courts can never inform a jury of a mandatory minimum. Nevertheless, it reversed the grant of the Rule 33 motion.

After reviewing the cases, the court held that district courts have discretion to instruct the jury on the applicable mandatory minimum in some circumstances: “Without attempting to define the boundaries of a district court’s discretion in this regard, we recognize the possibility ... that circumstances may exist in which instructing the jury on the consequences of its verdict will better ensure that the jury bases that verdict solely on the evidence and will better discourage nullification.”

Here, the court did not reach the question whether the district court would have had the discretion to inform the jury of the mandatory minimum at Polizzi’s trial. Even if, arguendo, it had, it was “certainly within the trial court’s discretion to decline to,” which it did, and thus the standard for grating a new trial under Rule 33 - “a compelling reason involving substantial unfairness” - was not met.

Speed Bump

United States v. Abad, No. 06-0338-cr (2d Cir. January 30, 2008) (Jacobs, Parker, Wesley, CJJ) (per curiam)

Here, the court holds that a failure to make a claim under the Speedy Trial Act in the district court results in a waiver of the issue on appeal. Thus, an unpreserved statutory speedy trial claim cannot be reviewed at all, even for plain error.

Comment: This one’s kind of a no-brainer, since the statute expressly so provides. 18 U.S.C. § 3162(a)(2). The only complication is United States v. Sorrentino, 72 F.3d 294, 297 (2d Cir. 1995), in which the court actually reviewed an unpreserved Speedy Trial Act claim for plain error, even though no motion had been made below. The Abad panel devised a double-barreled solution to the conundrum: first, it blamed the lawyers, noting that no party mentioned § 3162(a)(2) in its briefing in Sorrentino, and then, just to make sure, it overruled Sorrentino.

Permanent Waive

United States v. Quinones, No. 04-5554 (2d Cir. December 28, 2007) (Winter, Cabranes, Raggi, CJJ)

This case has lengthy discussions of two important issues. It turns out that the one that has received the less press is actually the more interesting of the two, so we’ll begin with that.

1. Sentencing Error Waived

Facts: In this capital case, the defendants initially faced three counts that exposed them to the death penalty. Two related to murder in aid of racketeering under 18 U.S.C. § 1959; for these, a life sentence was mandatory if death was not imposed. The defendants were acquitted of these counts.

They were convicted only of murder in relation to a continuing drug enterprise (“CCE”) under 21 U.S.C. § 848(e). At the time, that section provided for a mandatory minimum sentence of 20 years’ imprisonment and a maximum of life if death was not imposed. Nevertheless, the defendants repeatedly asserted, both before the jury and to the district court, that life without parole was the only legal option if they were acquitted of death. While this was true under the then-mandatory Guidelines, it was not true under the statute. On appeal, they asserted that they should be resentenced due to the district court’s mistaken belief that a life sentence was mandatory.

Holding: The circuit disagreed. Although it recognized that the district court erroneously believed that life sentences were mandated, and not just by the Guidelines, the court concluded that the judge had not “misread or misunderstood” the statute. Rather, it found that “a more likely explanation” was that “the defendants agreed to life imprisonment as the only possible non-capital sentence to strengthen their argument to the jury, at the penalty phase of this case, that justice did not demand their deaths.”

The circuit noted that, even after the defendants were acquitted of the racketeering counts for which life truly was mandatory, they continued to “insist” that the jury be charged that the only two sentencing possibilities on the CCE count were life imprisonment or death, and asked the court to emphasize this in its instructions, which it did. Moreover, the defendants then repeatedly argued this to the jury. Characterizing this as a “tactical” decision, the court held that the appellate claim that the district court erred in believing that a life sentence was required was waived - “truly” waived, such that not even plain error review would apply - and not merely forfeited. “A finding of true waiver applies with even more force when, as in this case, defendants not only failed to object to what they now describe as error, but they actively solicited it, in order to procure a perceived sentencing benefit.”

The court concluded that it was “no doubt that it was a tactical decision” by the defense attorneys to agree that a life sentence was the only alternative to death, and not a mistake, citing numerous treatises that have observed that capital juries are less likely to impose the death penalty if they believe that the defendants will not be released from prison. The court also noted that this tactical decision was a “reasonable” one, likening it to accepting a Rule 11(c)(1)(C) plea.

Comment: This is a tough case, because it really does seem that both the district court and the defense attorneys misread the CCE statute. It is, after all, a confusing provision that does mandate a life sentence in some circumstances, although, oddly enough, not in murder cases. The circuit is clearly off the mark in finding that the district judge did not misread the statute, since the judge repeatedly said that the section mandates a life sentence, and never said that it reached this conclusion based on the defendants’ offer to accept a life sentence. Nevertheless, the court is on firmer ground in finding that the defendants waived their appellate claim by inviting the error in the district court, since they clearly did so.

By the way, it is no accident that the court goes to such lengths to characterize the actions of defense counsel as “tactical” and “reasonable.” These findings, unnecessary to the disposition of this appeal, are an obvious effort to preempt any future claim that the defense attorneys were ineffective. Although the court never mentions Strickland, it is clearly the subtext of this portion of the decision.

2. Jury Selection

This case also has an interesting discussion of jury selection issues in capital cases. At trial, the district court dismissed a few jurors for cause based solely on their responses on written questionnaires that indicated, in essence, that they would never impose the death penalty in any case. The appellate court strongly urged district courts, particularly in capital cases, to question prospective jurors before dismissing them for cause, but refused to characterize this as a constitutional mandate. It also noted that any error here was rendered harmless by the jury’s refusal to impose the death penalty. The court rejected, at least on these facts, the notion that this type of error could produce a jury that was more likely to convict at the guilt phase. Here, the jury acquitted the defendants of two of the three capital counts.