United States v. Pietro Polouizzi

08-1830-cr
United States v. Pietro Polouizzi

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

_______________

August Term, 2008

(Argued: January 9, 2009 Decided: April 24, 2009)

Docket Nos. 08-1830-cr(L), 08-1887-cr(XAP)

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UNITED STATES OF AMERICA,

Appellee-Cross Appellant,

—v.—

PIETRO POLOUIZZI, also known as Peter Polouizzi,
also known as Peter Pietro-Polouicci, also known as Peter Polizzi,

Defendant-Appellant-Cross Appellee.
_______________

Before:

LEVAL, KATZMANN , and RAGGI, Circuit Judges.

_______________

Appeal from a judgment entered April 9, 2008, in the United States District Court for the

Eastern District of New York (Weinstein, J.), convicting defendant of eleven counts of

possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). Cross-appeal from

an order and judgment entered April 9, 2008, granting defendant’s motion pursuant to Federal

Rule of Criminal Procedure 33 for a new trial on twelve counts charging receipt of child

pornography, in violation of 18 U.S.C. § 2252(a)(2). Because the defendant’s possession as

charged in the indictment constituted a single unit of prosecution and because the district court
erred by granting defendant’s motion for a new trial on the counts charging receipt of child

pornography, we vacate the April 9, 2008 order of the district court granting defendant’s motion

for a new trial and remand this case to the district court to vacate all but one of the possession

convictions and for further proceedings consistent with this opinion.

_______________

DAVID M. SHAPIRO , American Civil Liberties Union Foundation,
Washington, DC (Jeffrey L. Fisher, Davis Wright Tremaine LLP,
Seattle, WA and Mitchell J. Dinnerstein, on the brief), for
Defendant-Appellant Cross-Appellee.

ALLEN L. BODE, Assistant United States Attorney (Peter A.
Norling and Andrea Goldbarg, Assistant United States Attorneys,
on the brief), for Benton J. Campbell, United States Attorney for
the Eastern District of New York, Brooklyn, NY, for Appellee
Cross-Appellant.

A. Stephen Hut, Wilmer Cutler Pickering Hale & Dorr, LLP,
Washington, DC, Adam J. Hornstine, Wilmer Cutler Pickering
Hale & Dorr, LLP, Washington, DC, Richard D. Willstatter,
Green & Willstatter, White Plains, NY, and Peter Goldberger,
Families Against Mandatory Minimums Foundation, Ardmore, PA,
for Amici Curiae the National Association of Criminal Defense
Lawyers and Families Against Mandatory Minimums Foundation,
in support of Defendant-Appellant-Cross-Appellee.

Colleen P. Cassidy, Federal Defenders of New York, Inc., New
York, NY, for Amicus Curiae Federal Defenders of New York, Inc.

_______________

KATZMANN , Circuit Judge:

This case calls upon us to decide whether a collection of child pornography is a single

unit of prosecution under 18 U.S.C. § 2252(a)(4)(B) such that the possession of a collection

cannot support multiple counts of conviction. Moreover, we are called upon to address whether

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the district court’s self-described failure to exercise its discretion to inform the jury of an

applicable mandatory minimum sentence constitutes a manifest injustice requiring a new trial.

Defendant-appellant and cross-appellee Peter Polizzi1 was tried before a jury in the

United States District Court for the Eastern District of New York (Weinstein, J.), on twelve

counts of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2), and eleven counts

of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). Polizzi sought,

but the court refused, to have the jury informed of the five-year mandatory minimum sentence

applicable to a conviction of receipt under § 2252(a)(2). At trial, Polizzi put forth an insanity

defense, predicated largely on his assertion of repeated and severe sexual abuse as a child. The

jury rejected this defense and found him guilty of all counts. After the jury returned its verdict,

the district court informed the jurors of the five-year mandatory minimum sentence applicable to

the twelve receipt convictions; on inquiry from the court, some jurors expressed dissatisfaction

with this punishment, and some suggested that they might have voted differently had they been

aware that the verdict carried a mandatory minimum period of incarceration. Thereafter, the

district court granted Polizzi’s motion, pursuant to Federal Rule of Criminal Procedure 33, for a

new trial on the twelve receipt counts, concluding that it had erred in refusing to advise the jury

of the applicable mandatory minimum sentence, and entered a judgment of conviction on the

eleven possession counts sentencing Polizzi to eleven concurrent terms of one year and a day’s

imprisonment, ten years of supervised release, a $50,000 fine, and $1100 in special assessments.

Polizzi appeals from the judgment entered April 9, 2008, convicting him of eleven counts

of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), arguing that (1)

1
The defendant has requested that he be referred to as Peter Polizzi.

3
the district court abused its discretion by admitting into evidence certain images of child

pornography, (2) the jury instruction on the insanity defense constituted plain error, and (3) his

multiple convictions for possession violate the Double Jeopardy Clause. Under 18 U.S.C.

§ 3731, the government cross-appeals from the district court’s April 9, 2008 order granting

Polizzi’s motion pursuant to Federal Rule of Criminal Procedure 33 for a new trial on twelve

counts charging receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2). Because

we find that the district court erred by entering multiple convictions for possession and by

granting a new trial on the receipt counts, we vacate the April 9, 2008 order granting defendant’s

motion for a new trial and remand this case to the district court to vacate all but one of the

possession convictions and for further proceedings consistent with this opinion.

BACKGROUND

A. The Investigation and Indictment

In early 2005, FBI agents and Suffolk County Police Department Officers conducted an

investigation into an online “private child porn club” called “Hardcore” that, for a fee, gave

members access to images of child pornography. An access log for the “Hardcore” website

recorded 900,000 Internet Protocol (“IP”) addresses, representing approximately 1900 unique

visitors, during a ten-day period in March 2005. One of the IP addresses included in the log was

traced to Polizzi; the log indicated that Polizzi’s IP address downloaded a number of images

from the Hardcore website on March 28, 2005. Based on this information, the FBI obtained a

search warrant for Polizzi’s home seeking computer equipment and evidence related to the

possession of child pornography.

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 On November 16, 2005, the FBI and local law enforcement agents arrived at Polizzi’s

home to execute the warrant. Polizzi cooperated with the agents, leading them to computers in

two rooms on the second floor of the detached garage, which were secured with multiple locks to

which Polizzi alone had the keys. As he led the agents up the stairs, Polizzi told the officers:

“[I]t’s me, I looked at the pictures of the children. The pictures of the children are upstairs.”

Then, he asked the officers, “What are we going to do about it?”

Polizzi then unlocked the rooms and showed the agents the computers. In the first room,

described as the “balloon room,” the officers found two external hard drives, referred to at trial

and herein as “External 1” and “External 2.” In the second room, described as the “music room,”

the officers found a third external hard drive, referred to at trial and herein as “External 3.” A

total of 5000 digital images and several videos of child pornography were found on the three

external hard drives.

Thereafter, Polizzi was read Miranda warnings and signed two forms stating that he

waived his rights and was willing to talk without an attorney present. Polizzi then gave a

statement, recorded by the agents and signed by Polizzi, stating in part:

Some time in February or March, 2005, I received an e-mail in my
AOL e-mail account, [] inviting me to join a website called ‘Hard Lovers.’
It was $79 or $89 to join and I had to use my credit card to join. I used my
Master Card from Citibank; it’s in my name. . . .
After I joined, I would visit ever[y] couple of days. After I joined,
I knew it was a child pornography website. I downloaded pictures and
videos from this website. I keep the pictures on my external hard drive . . .
that I bought new about six months ago. I have another external hard drive
that I used and transferred everything over from an older external drive
that I also bought new.
The computer I used to go to, the . . . hard lovers website I had
custom made at a computer store . . . about two years ago. It was the black
tower where I pointed to the Detective Forrestal at my desk. I’m not sure
how [many] child pornography pictures I have but I have a lot. I know I’m

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 a member of the site now and I downloaded this morning. . . . I know I
have of a lot. I know I’m a member of the site now and I have Red [sic]
something, I don’t remember exactly, it’s in my favorites. I used the same
credit card number, the Citi Master Card to join. I don’t send them out,
it’s only private. The different passwords of the websites are in my AOL
e-mail that I have so I know what they are.
I’m the only person that uses my computer. I keep it in a locked
room upstairs that I only have access to. I have read the above . . . and I
swear that . . . it is all true.

Polizzi was arrested and charged with twelve counts of receipt and twelve counts of

possession of seventeen different photos and videos downloaded from the Hardcore website.

The receipt counts (Counts 1 through 12) charged Polizzi with receiving illicit images on

four different dates. Specifically, Polizzi was charged with receiving: two illicit images on

February 20, 2005; two illicit images on March 5, 2005; four illicit images on March 16, 2005;

and four illicit images on March 20, 2005. All of the images that he was alleged to have received

were stored on External 3.

The possession counts (Counts 13 through 24) charged Polizzi with possessing on

November 16, 2005, twelve illicit images on three different external hard drives. One of the

twelve counts of possession – Count 13 – was dismissed on the government’s motion prior to

trial. The image charged in Count 14 was stored External 1; the images charged in Counts 15–17

were stored on External 2; and the images charged in Counts 18–24 were stored on External 3.

None of the image file or video files charged in Counts 14–17 were the subject of a receipt count;

each image charged in Counts 18–24 also was the subject of a receipt count. Specifically, Counts

18 and 3 were based on the same image, as were Counts 19 and 4, Counts 20 and 1, Counts 21

and 11, Counts 22 and 12, Counts 23 and 7, and Counts 24 and 8.

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B. Pre-Trial Proceedings

The parties submitted proposed jury charges prior to trial. Regarding the insanity

defense, both parties sought to have the court instruct the jury, in substance, that it was the

defendant’s burden to show, by clear and convincing evidence, that at the time Polizzi committed

the acts constituting the crimes charged he was not able to appreciate the nature and quality or

wrongfulness of those acts, as a result of a severe mental disease or defect. The government

proposed to define wrongfulness as “contrary to public morality, as well as contrary to law.”

Polizzi, in contrast, sought to leave the term undefined. After hearing arguments and receiving

memoranda on the competing proposals, the court distributed to the parties its proposed

instruction on the insanity defense. It provided, in relevant part, that “‘[w]rongfulness’ means in

this context ‘unlawfulness.’” The court asked the parties if either had an objection to the

proposed charge. Polizzi’s counsel responded: “Your Honor, I do not have any objection at this

time.” The government responded similarly. At the subsequent charging conference, Polizzi’s

counsel again did not object to the court’s proposed definition of wrongfulness. Ultimately, the

charge given to the jury conformed materially to the instruction distributed by the court prior to

trail.

After receiving the parties’ requests to charge, the district court issued an order on

September 6, 2007, inquiring: “Does the defendant wish the jury to be informed of the statutory

mandatory minimum (five years) and maximum (twenty years) sentence? If so, is it appropriate

to inform the jury, and at what stage?” The government argued that an unpublished, non-

precedential summary order issued by this court in United States v. Pabon-Cruz, 391 F.3d 86 (2d

Cir. 2004), controlled the question posed by the court’s September 6, 2007 order and moved in

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limine for an order prohibiting counsel from mentioning “any applicable mandatory minimum or

maximum which applies or the consequences of a verdict of not guilty by reason of insanity.”

Polizzi requested that the court inform the jury of the statutory minimum and maximum

sentences at a time that the court deemed appropriate. After receiving these applications, the

court announced that it would not inform the jury of the mandatory minimum or maximum.

At a pretrial conference on September 10, 2007, the government indicated that it would

seek to introduce at trial: (1) the images and videos containing child pornography that Polizzi

was charged with receiving, possessing, or both, and (2) three to four website pages with

thumbnail-sized images of child pornography. The government explained its intention to present

the images by means of a PowerPoint presentation that would show each image for no more than

a few seconds. Polizzi’s counsel sought to stipulate that the images charged in the indictment

were child pornography and to exclude the images under Federal Rule of Evidence 403. The

district court permitted the government to introduce the images despite Polizzi’s offer to stipulate

to their nature.

C. Trial

For our purposes, a brief summary of the trial testimony and evidence is sufficient.

Further details of the trial are recounted in the district court’s thorough opinion. See United

States v. Polizzi, 549 F. Supp. 2d 308, 331–39 (E.D.N.Y. 2008).

The government’s direct case consisted primarily of the testimony of Detective Rory

Forrestal of the Suffolk County Police Department and of the files found on Polizzi’s external

hard drives. Detective Forrestal had been involved in the investigation of the Hardcore website

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and the search of Polizzi’s home and had reviewed Polizzi’s computers and external hard drives.

He testified regarding (1) the many steps required to subscribe to the Hardcore website and the

communications he received as an undercover subscriber to the website; (2) the evidence

obtained from the internet service provider that hosted the Hardcore website, including access

logs and the website’s content; (3) the execution of the search warrant at Polizzi’s house,

including Polizzi’s statements and conduct during the search; and (4) the evidence seized at

Polizzi’s house, including files found on his computers and external hard drives.

Each image or video of child pornography identified specifically in the indictment was

introduced via Detective Forrestal’s testimony. For each, the image would be shown to the jury

for a few seconds, after which Detective Forrestal would describe (1) the date the image was

downloaded or possessed; (2) the IP address from which the image was downloaded; (3) the file

path for the drive on which the image file was found; (4) the identity and circumstances of the

child depicted; and (5) the date Polizzi last accessed the file. Short segments of the three videos

charged in the indictment were played for the jury, and Forrestal testified that the un-played

portion of each video was similar to the segment played.

As described by the district court, “the only contested issue [at trial] was Polizzi’s

affirmative defense of legal insanity.” Polizzi, 549 F. Supp. 2d at 330. In support of this

affirmative defense, the defense called, among other witnesses, Polizzi, his son Jack, Dr. Lisa

Cohen, a clinical psychologist, and Dr. Eric Goldsmith, a forensic psychiatrist.

Polizzi testified about his childhood in Italy, including incidents of sexual abuse by his

uncle, a family friend, and two police officers, stating he was too ashamed and afraid to tell

anyone about these incidents until after he had begun psychological treatment following his arrest

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in this case. Polizzi testified further that he was horrified and shocked by the images of child

pornography he viewed on the internet and that seeing the images reminded him of his own abuse

as a child. He explained that (1) he looked at the images because he believed he might be able

to find a photograph of his own abuse, and (2) he downloaded the pictures to stop the abuse of

other children and was collecting the images to turn over to the police. Polizzi testified that

although he understood that the abuse portrayed in the photographs was wrong, he believed the

images were legal because they were available on the internet. Despite his avowed intention to

help law enforcement by collecting these images, Polizzi never voluntarily informed law

enforcement or anyone else about his collection. He explained that he did not report his

collection because he could not trust police officers, given his experiences with the police in

Italy, and because he was ashamed to reveal his own abuse.

Dr. Cohen testified that she concluded that Polizzi had significant cognitive impairment

and obsessive compulsive disorder characterized by severe hoarding. Dr. Goldsmith testified

that Polizzi had a severe obsessive compulsive pathology and post-traumatic stress disorder, the

latter drawing him to seek out child pornography in hopes that he might find a picture of himself.

In rebuttal, the government offered the testimony of Dr. Naftali Berrill, the forensic psychologist

assigned to evaluate Polizzi for pretrial services treatment. Dr. Berrill testified that he met with

Polizzi on numerous occasions, but that Polizzi never told him of his abuse as a child. He further

testified that although he had diagnosed Polizzi as having an anxiety disorder, he did not believe

Polizzi suffered from this at the time he received and possessed the child pornography. Even if

he had been suffering from an anxiety disorder at that time, it was Dr. Berrill’s opinion that such

a disorder would not render Polizzi unable to appreciate the wrongfulness of his acts. Dr. Berrill

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testified that he disagreed with Dr. Goldsmith’s diagnosis that Polizzi suffered from post-

traumatic stress disorder, noting that the criminal behavior here – seeking out reminders of the

original trauma and receiving and possessing images over a number of years – was not typical

criminal behavior for individuals with that disorder.

D. Jury Verdict

The district court described that “[d]uring jury deliberations, it was evident . . . that [the

jury] rather quickly decided the issue of guilt,” but it took the jury several days to “[d]etermin[e]

whether Polizzi had carried his burden of proving legal insanity . . . .” Polizzi, 549 F. Supp. 2d at

339. Ultimately, the jury rejected that defense and, on October 5, 2007, returned a verdict

finding him guilty on all twelve counts of receipt and all eleven counts of possession.

After the verdict was announced, the district court addressed the jury further:

THE COURT: You [the jury] are discharged. However, stay there for a
moment, please.

I know this has been a difficult case for you, and some of you are
nodding, and you don't have to answer the questions I'm going to put to
you, but it might be helpful. Just answer, if you want to answer as to
yourself, not as to what anybody else said, because everybody is entitled to
privacy.

Now, the Supreme Court of the United States has suggested that
for constitutional reasons the juries participate much more heavily in the
sentencing, although the sentencing does not suggest in any way how you
should decide. As I told you, in considering your verdict, you should not
consider that. I will do the sentencing, not you. You all recall that?

However, because these are somewhat difficult cases, and they do
involve to some extent the morality and the views of the community, it
might be helpful, if you wish, to indicate what you think under these
circumstances that you have heard here, the penalty for a person like this
defendant might be, in terms of incarceration or other punitive aspects.

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 Do you have any view, juror one?

Juror One answered “No,” as did Jurors Two through Eight. Juror Nine’s response, if any, was

not recorded. Juror Ten answered “Yes, I do.” This colloquy followed:

THE COURT: What’s your view?

JUROR NO. 10: My view is that if it is at all possible - and I don’t know
if it is - I see no useful purpose to have Mr. Polizzi confined. I believe that
there should be an alternative, if possible, other than confinement.

THE COURT: What would that alternative be?

JUROR NO. 10: Treatment.

THE COURT: Compulsory treatment?

JUROR NO. 10: Oh, absolutely.

THE COURT: Juror eleven?

JUROR NO. 11: I agree with [Juror Ten].

Juror Twelve declined to answer the court’s question. The court went on to explain the concept

of jury nullification and asked:

THE COURT: . . . Had you known that the penalty was five to 20 years, a
minimum of five, maximum of 20, probably concurrent, not times 20, but
for the total, would that have affected the verdict of any of you, raise your
hands?

MR. BODE [for the government]: I object, your Honor.

JUROR NO. 9: Yes, I also feel that incarceration would not serve in this
case. I think the gentleman should receive treatment, compulsory, but he
should definitely receive treatment. I don’t think justice is served for
incarceration.

THE COURT: Would your verdict have been affected if you knew that
there was a minimum of five years imprisonment[?]

JUROR NO. 9: Yes.

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 THE COURT: How would it have been affected?

JUROR NO. 9: Under all the circumstances, I would have probably gone
not guilty by reason of insanity.

THE COURT: Anyone else?

JUROR NO. 2: I would have done the same.

THE COURT: You would have found him not guilty, if you knew what
the total punishment was.

Anyone else wish to speak? Juror eleven?

JUROR NO. 11: I would not. I would have found him [not] guilty by
reason of insanity.

THE COURT: You would have nullified, if you knew what the
punishment was.

...

JUROR NO. 7: I also believe that Mr. Polizzi should not be incarcerated.
I believe that mental health treatment should be the proper verdict for Mr.
Polizzi.

The defendant was remanded to await sentencing.

E. New Trial Motion

On February 5, 2008, Polizzi moved for a new trial pursuant to Rule 33 of the Federal

Rules of Criminal Procedure and for dismissal pursuant to Rule 29. In relevant part, he argued

that a new trial was required because the district court refused to inform the jury of the applicable

mandatory minimum sentence, despite having discretion to do so.

On April 1, 2008, the district court granted Polizzi’s Rule 33 motion for a new trial on the

receipt counts on the ground that it had erred in refusing to advise the jury of the mandatory

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minimum sentence for those counts. The district court’s opinion implies that error was

committed in the trial in two ways.

First, the district court explained that the refusal to instruct the jury on the mandatory

sentence was an error because it denied Polizzi of his Sixth Amendment jury right. Polizzi, 549

F. Supp. 2d at 443. While noting that Supreme Court and Circuit precedent suggests that the

Sixth Amendment does not encompass a right to have the jury instructed on mandatory

minimums, id. at 445–46, the district court concluded that Polizzi had a Sixth Amendment right

to be tried by a jury informed of the mandatory sentence because a jury at the time of the

founding would have been aware of such information. Conducting a lengthy historical review,

id. at 405–20, the district court concluded that

the petit juries of 1791 would have been aware of any harsh sentence
imposed mandatorily upon a finding of guilt of a particular crime. It is
equally apparent that a jury so apprised would have been expected to
deliver a verdict of not guilty or of guilty of a lesser crime had it believed
the punishment excessive for the crime actually charged and proved.

Id. at 405.

Second, the district court explained that it erred because, believing erroneously that it had

no discretion to instruct the jury about the mandatory minimum sentence, it failed to exercise its

discretion to give such an instruction. Id. at 448.

Based on its post-verdict colloquy with the jurors, the district court concluded that “it is

apparent that a properly informed and rational jury would likely have deadlocked on the

receiving counts or found Polizzi not guilty by reason of insanity.” Id. The district court

concluded, therefore, that the error prejudiced Polizzi and that the interests of justice required a

new trial on the receipt counts. Id.

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 DISCUSSION

Polizzi makes three arguments on appeal. First, he argues that the district court abused its

discretion by admitting into evidence images of child pornography. Second, he argues that the

jury instruction on the insanity defense, defining wrongfulness as unlawfulness, was plain error.

And third, he argues that all but one of his possession convictions must be vacated because his

conviction on eleven counts of possession violates the Double Jeopardy Clause. The

government, on cross-appeal, argues that the district court abused its discretion by granting

Polizzi’s motion for a new trial on the twelve counts of receipt because the decision was

premised on an erroneous belief that it had discretion to instruct the jury of the applicable

mandatory minimum.

A. Admission of Images of Child Pornography

Polizzi argues that the district court abused its discretion by admitting images and videos

of child pornography because the probative value of such evidence was substantially outweighed

by the risk of unfair prejudice to Polizzi. See Fed. R. Evid. 403. Specifically, he contends that

the images were not probative of a disputed fact because he did not contest that he had received

or possessed child pornography. Further, he argues that the risk of unfair prejudice caused by the

images was particularly high because he was pursuing an insanity defense.

We review a district court’s balancing under Rule 403 for abuse of discretion. The

“decision to admit or exclude evidence will not be overturned unless we conclude that the court

acted arbitrarily or irrationally.” United States v. Thai, 29 F.3d 785, 813 (2d Cir. 1994). “In

limited circumstances, the Government can be required to accept a stipulation by the defendant to

15
a particular fact, rather than present evidence proving the stipulated fact.” United States v.

Velazquez, 246 F.3d 204, 211 (2d Cir. 2001); see also Old Chief v. United States, 519 U.S. 172,

190–92 (1997). We do not believe that such circumstances existed in this case.

Although Polizzi did not contest that the images he received and possessed constituted

child pornography, the stipulation was not an adequate substitute for the evidence offered. The

specific nature and content of the images were relevant to the jury’s evaluation of Polizzi’s claim

that he did not understand the wrongfulness of receiving and possessing those images. Indeed,

the Supreme Court has noted specifically that the government generally has a right to present

evidence, rather than accept a stipulation, to establish the “human significance” of the fact and

“to implicate the law’s moral underpinnings.” Old Chief, 519 U.S. at 187–88. Moreover, the

risk of unfair prejudice was minimized by the mode of presentation. In these circumstances, we

find no abuse of discretion in the district court’s decision to admit these images.2

B. Insanity Defense Instruction

As discussed above, the parties disagreed over how to define “wrongfulness” in the jury

instructions regarding Polizzi’s insanity defense. Prior to trial, the district court proposed to the

parties that it would define wrongfulness as “unlawfulness.” Neither party objected to this

definition when proposed prior to trial, during the charging conference, or when the jury was

charged. Nonetheless, Polizzi argues on appeal that the district court erred by defining

wrongfulness as unlawfulness.

We decline to consider the merits of this argument because Polizzi waived his right to

2
We have no occasion to consider and thus express no views as to whether the district
court would have erred had it accepted the defendant’s stipulation and excluded the images.

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appeal this issue. See United States v. Olano, 507 U.S. 725, 733 (1993) (distinguishing

“forfeiture” of a claim, which results from a failure to assert the claim in a timely fashion, and

which does not prevent an appellate court from reviewing the claim for plain error, from

“waiver,” which is the “intentional relinquishment or abandonment of a known right,” and which

permanently extinguishes the right to raise the claim). Faced with the parties’ incompatible

positions regarding the proposed definition of unlawfulness, the district court proposed a third

option. Presented with this option, Polizzi indicated that the instruction was satisfactory. In

these circumstances, by agreeing that the instruction was satisfactory, Polizzi waived the right to

challenge the instruction on appeal.

C. Double Jeopardy Claims

Polizzi argues that ten of his convictions for possession must be vacated because all but

one of his possession convictions violate the Double Jeopardy Clause. He contends that the

conduct charged in the indictment – possessing a single collection of child pornography on

November 16, 2005 – constitutes only a single violation of 18 U.S.C. § 2252(a)(4)(B). And in

the event that we vacate the new trial order on the receipt counts, Polizzi argues that we must

instruct the district court on remand to enter judgment on a single count of receipt or on a single

count of possession.

1. Convictions on Multiple Counts of Possession Violate Double Jeopardy Clause

Polizzi argues for the first time on appeal that his multiple convictions for possession

constitute a Double Jeopardy violation. Nonetheless, “[a] plain error that affects substantial

17
rights may be considered even though it was not brought to the [district] court’s attention.” Fed.

R. Crim. P. 52(b); see United States v. Irving, 554 F.3d 64, 78 (2d Cir. 2009) (reviewing for plain

error a double jeopardy challenge not raised before the district court); United States v. Savarese,

404 F.3d 651, 656 (2d Cir. 2005) (same); United States v. Handakas, 286 F.3d 92, 97 (2d Cir.

2002) (same), overruled on other grounds by United States v. Rybicki, 354 F.3d 124 (2d Cir.

2003) (en banc); United States v. Gore, 154 F.3d 34, 41–43 (2d Cir. 1998) (same).

To demonstrate plain error, Polizzi must show: “(1) ‘error,’ (2) that is ‘plain,’ and (3) that

‘affect[s] substantial rights.’” Johnson v. United States, 520 U.S. 461, 467 (1997) (quoting

Olano, 507 U.S. at 732). “If all three conditions are met, an appellate court may then exercise its

discretion to notice a forfeited error, but only if (4) the error ‘seriously affects the fairness,

integrity, or public reputation of judicial proceedings.’” Id. at 467 (quoting Olano, 507 U.S. at

732) (brackets and other internal quotation marks omitted).

The Double Jeopardy Clause of the Fifth Amendment, inter alia, “protects against

multiple punishments for the same offense.” Schiro v. Farley, 510 U.S. 222, 229 (1994) (internal

quotation marks omitted). “When, as here, the same statutory violation is charged twice, the

question is whether the facts underlying each count were intended by Congress to constitute

separate ‘units’ of prosecution.” United States v. Ansaldi, 372 F.3d 118, 124 (2d Cir. 2004)

(citing Bell v. United States, 349 U.S. 81, 83–84 (1955)); see also United States v. Kerley, 544

F.3d 172, 178 (2d Cir. 2008).

As charged in the indictment, each of the eleven possession convictions was for, “[o]n or

about November 16, 2005, within the Eastern District of New York and elsewhere, . . .

knowingly and intentionally possess[ing]” one computer file containing a visual depiction of

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minors engaged in sexually explicit conduct, the production of which involved such conduct.

Collectively, therefore, the eleven counts were for possession of eleven computer files.

Title 18, section 2252(a) of the United States Code, in relevant part, makes it a crime to

knowingly possess[] . . . 1 or more books, magazines, periodicals, films,
video tapes, or other matter which contain any visual depiction . . . if – (i)
the producing of such visual depiction involves the use of a minor
engaging in sexually explicit conduct; and (ii) such visual depiction is of
such conduct.

18 U.S.C. § 2252(a)(4)(B).3 The statute provides also for an affirmative defense to a charge of

possession under that section if, inter alia, the defendant “possessed less than three matters

containing [prohibited images].” Id. § 2252(c). Prior to an amendment in 1998, § 2252(a) made

it a crime to “‘knowingly possess[] 3 or more books, magazines, periodicals, films, video tapes,

or other matter’” containing child pornography and did not provide an affirmative defense.

United States v. Dauray, 215 F.3d 257, 259-60, 263 (2d Cir. 2000) (emphasis omitted) (quoting

18 U.S.C. § 2252(a)(4)(B) (1994)).

The government maintains that each “matter which contain[s]” a prohibited image is a

separate unit of prosecution such that the possession of each such “matter” is a separate violation

of § 2252(a)(4)(B).4 We disagree. Based on the clear language of the statute, we conclude that

3
Title 18, section 2252A of the United States Code also criminalizes knowingly
possessing child pornography. Specifically, that section, in relevant part, makes it a crime to
“knowingly possess[] . . . any book, magazine, periodical, film, videotape, computer disk, or any
other material that contains an image of child pornography . . . .” 18 U.S.C. § 2252A(a)(5)(B)
(emphasis added).
4
Polizzi was charged with possession on a file-by-file basis – one count for each
computer file containing a prohibited image – on the apparent assumption that each such file
constitutes a separate “matter” under § 2252(a)(4)(B). On appeal, Polizzi contends that each
external hard drive constitutes a single “matter” under the statute, regardless of the number of
prohibited images stored on each drive. See United States v. Lacy, 119 F.3d 742, 748 (9th Cir.
1997) (“Although both the disks and the GIF files could be viewed as ‘containing’ the visual

19
Congress intended to subject a person who simultaneously possesses multiple books, magazines,

periodicals, films, video tapes, or other matter containing a visual depiction of child pornography

to only one conviction under 18 U.S.C. § 2252(a)(4)(B).5

The language “1 or more,” 18 U.S.C. § 2252(a)(4)(B), indicates that a person commits

one violation of the statute by possessing more than one matter containing a visual depiction of

child pornography. Thus, unlike the word “any,” which “has ‘typically been found ambiguous in

connection with the allowable unit of prosecution,’ for it contemplates the plural, rather than

specifying the singular,” United States v. Coiro, 922 F.2d 1008, 1014 (2d Cir. 1991) (quoting

United States v. Kinsley, 518 F.2d 665, 668 (8th Cir. 1975)), the phrase “1 or more” specifies the

plural. Thus, the plain language of the statute provides that a person who possesses “1 or more”

matters containing a prohibited image has violated the statute only once. See United States v.

Kimbrough, 69 F.3d 723, 730 (5th Cir. 1995) (considering the prior version of § 2252(a)(4)(B)

and holding that “the plain language of the statute’s requirement that a defendant possess ‘three

depiction, we conclude the ‘matter’ is the physical medium that contains the visual depiction – in
this case, the hard drive of Lacy’s computer and the disks found in his apartment.”); see also
Dauray, 215 F.3d at 261 (noting that courts have reached varying conclusions on this issue). We
need not resolve this question here, however, as our interpretation of § 2252(a)(4)(B) would not
permit a defendant in Polizzi’s position to be convicted on multiple possession counts under
either interpretation.
5
We note that Polizzi was charged with possessing, on a single date, eleven computer
files stored on three hard drives housed in two adjacent rooms in a single premises, his detached
garage. Moreover, the government has not maintained, either below or on appeal, that Polizzi’s
multiple possession convictions under § 2252(a)(4)(B) could be sustained because Polizzi
“acquired possession of the [prohibited matters] on different occasions, or that he stored them at
different sites.” United States v. Olmeda, 461 F.3d 271, 280 (2d Cir. 2006) (construing 18
U.S.C. § 922(g)). Thus, we need not decide whether § 2252(a)(4)(B) could be construed to
support multiple possession convictions if such a theory were pleaded and proved. See Chiarella
v. United States, 445 U.S. 222, 236-37 (1980) (noting that “we cannot affirm a criminal
conviction on the basis of a theory not presented to the jury”); United States v. Mittelstaedt, 31
F.3d 1208, 1220 (same).

20
or more’ items indicates that the legislature did not intend for this statute to be used to charge

multiple offenses.”).

Further, the statute provides an affirmative defense to “a charge of violating

[§ 2254(a)(4)]” if the defendant, inter alia, “possessed less than three matters containing

[prohibited images].” 18 U.S.C. § 2252(c)(1) (emphasis added). Such a defense necessarily

contemplates that a person who possessed two matters containing prohibited images would face a

single charge of violating § 2252(a)(4)(B).

Finally, the government has pointed to no legislative history suggesting a different view

of congressional intent. Without engaging the legislative history directly, the government relies

on two unpublished district court decisions from outside this Circuit for the assertion that “‘in

light of the plain language and legislative history regarding the 1998 amendment, it appears that

Congress intended to punish “any” possession of child pornography and that there was no intent

to limit any and all possession of child pornography to a maximum of one count under

§ 2252(a)(4)(B).’” Gov’t Br. at 58–59 (quoting United States v. Flyer, No. CR 05-1049, 2006

WL 2590459, at *5, 2006 U.S. Dist. LEXIS 64453, at *16 (D. Ariz. Sept. 7, 2006), and citing

United States v. Hamilton, Civ. No. 07-50054, 2007 WL 2903018, 2007 U.S. Dist. LEXIS 73384

(W.D. Ark. Oct. 1, 2007)). We respectfully do not think that Flyer and Hamilton are persuasive.

That Congress, by its 1998 amendment, intended to prohibit “possession of even one item or

image containing child pornography,” 144 Cong. Rec. 25239 (1998) (statement of Sen. Hatch),

does not indicate that Congress intended to permit separate prosecution and punishment for each

such item or image possessed. See Heflin v. United States, 358 U.S. 415, 419–20 (1959) (“But in

view of the legislative history of [18 U.S.C. § 2113](c) we think Congress was trying to reach a

21
new group of wrongdoers, not to multiply the offense of the bank robbers themselves.”); Prince

v. United States, 352 U.S. 322, 327 (1957) (providing similar analysis).

Having concluded that it was error to enter multiple convictions under § 2252(a)(4)(B),

we must assess whether the error is plain and affects substantial rights, and whether we should

notice the forfeited error. We find these elements to be met and, therefore, will remedy the error.

“An error is ‘plain’ if the ruling was contrary to law that was clearly established by the

time of the appeal.” Irving, 554 F.3d at 78 (citing Johnson, 520 U.S. at 468). Although our

Circuit has not previously held, as we now do, that simultaneous possession of multiple matters

containing images of child pornography constitutes a single violation of 18 U.S.C.

§ 2252(a)(4)(B), that conclusion is demanded by the plain language of the statute and is entirely

consistent with Supreme Court and Circuit precedent addressing similar statutes. Therefore, the

error in this case is plain. Indeed, we have often found multiple convictions for a single statutory

violation to constitute plain error although we had not previously addressed specifically whether

the conduct at issue was intended by Congress to be a single statutory violation. See, e.g.,

Handakas, 286 F.3d at 99 (“Because we find no precedential or statutory support for the multiple

structuring charges, conviction on two separate counts constituted an ‘error’ that is ‘plain.’”);

Gore, 154 F.3d at 43; Coiro, 922 F.2d at 1014–15; see also United States v. Miller, 527 F.3d 54,

73 (3rd Cir. 2008) (“Though we reach this conclusion as a matter of first impression, we do so on

the basis of the Supreme Court’s holding in Ball[ v. United States, 470 U.S. 856 (1985)], which

is well entrenched in our law and clear in its implications with respect to the double jeopardy

question in this case.”).

The multiple convictions for possession affect Polizzi’s substantial rights because “[t]he

22
separate conviction[s], apart from the concurrent sentence, ha[ve] potential adverse collateral

consequences that may not be ignored,” Ball, 470 U.S. at 865, and each conviction carried with it

a special assessment that would not have been imposed absent the erroneously entered

convictions. Rutledge v. United States, 517 U.S. 292, 301–03 (1996).

Finally, the government has identified no interest of the prosecution or the public, and we

can think of none, that would be served by subjecting Polizzi to eleven convictions for

possession rather than the single count of conviction authorized by law. Moreover, as discussed

below, we are remanding the case on other grounds, which will require resentencing. In these

circumstances, we conclude that maintaining these convictions would seriously affect the

fairness, integrity, or public reputation of judicial proceedings.

Having concluded that Congress did not intend Polizzi’s possession on November 25,

2005, to be punishable with multiple convictions under § 2252(a)(4)(B), we remand this case to

the district court to vacate all but one of the § 2252(a)(4)(B) convictions. The district court shall

exercise its discretion when determining which conviction should remain. See Ball, 470 U.S. at

864.

2. The Receipt Counts

In the event that we vacate the new trial order on the receipt counts, Polizzi urges us to

instruct the district court “to enter judgment on a single conviction for receipt or a single

conviction for possession.” This argument has two components: (1) that the conduct charged in

the indictment – receiving images on February 20 and March 5, 16, and 20, 2005 – constitutes

only a single violation of 18 U.S.C. § 2252(a)(2), so that only one conviction under that section

23
may be entered; and (2) that his § 2252(a)(4)(B) violation is a lesser-included offense of his

§ 2252(a)(2) violation because receipt necessarily entails possession.

No convictions have been entered under § 2252(a)(2); therefore, the Double Jeopardy

Clause’s guarantee against multiple punishments for the same offense has not yet been triggered.

See Ball, 470 U.S. at 859–60, 865 (noting that “the Government may seek a multiple-count

indictment . . . for violations of §§ 922(h) and 1202(a) involving the same weapon where a single

act establishes the receipt and possession,” but “[s]hould the jury return guilty verdicts for each

count, . . . the district judge should enter judgment on only one of the statutory offenses”); United

States v. Josephberg, 459 F.3d 350, 355 (2d Cir. 2006) (per curiam).

Nonetheless, in view of the fact that the district court is likely to be faced with these

issues on remand, we offer the following observations.

Polizzi’s argument that only one receipt conviction may be entered is analyzed in the

same way as his argument that only one possession conviction may stand. Thus, with regard to

the multiple receipt counts, “the question is whether the facts underlying each count were

intended by Congress to constitute separate ‘units’ of prosecution.” Ansaldi, 372 F.3d at 124

(citing Bell, 349 U.S. at 83–84).

Title 18, section 2252(a)(2) of the United States Code, in relevant part, makes it a crime

to “knowingly receive[] . . . any visual depiction . . . if . . . the producing of such visual depiction

involves the use of a minor engaging in sexually explicit conduct; and . . . such visual depiction

is of such conduct.” 18 U.S.C. § 2252(a)(2).6

6
Title 18, section § 2252A of the United States Code also criminalizes knowingly
receiving child pornography. Specifically, that section, in relevant part, makes it a crime to
“knowingly receive[] . . . any child pornography . . . [or] any material that contains child
pornography.” 18 U.S.C. § 2252A(a)(2).

24
 In contrast to the language of § 2252(a)(4)(B), which criminalizes the possession of “1 or

more” matters containing prohibited images, the language of § 2252(a)(2), which criminalizes

the receipt of “any” prohibited images, is ambiguous as to the intended unit of prosecution. See

Coiro, 922 F.2d at 1014 (“[T]he word ‘any’ has ‘typically been found ambiguous in connection

with the allowable unit of prosecution.’” (quoting Kinsley, 518 F.2d at 668)). “Where ambiguity

or doubt exists about Congressional intent regarding the unit of prosecution, we apply the rule of

lenity, which dictates that ‘if Congress does not fix the punishment for a federal offense clearly

and without ambiguity, doubt will be resolved against turning a single transaction into multiple

offenses.’” United States v. Wallace, 447 F.3d 184, 188 (2d Cir. 2006) (quoting United States v.

Finley, 245 F.3d 199, 207 (2d Cir. 2001)). Thus, absent evidence of a contrary congressional

intent, or an indication that the statutory structure precluded such a result, the rule of lenity

requires the conclusion that a person who receives multiple prohibited images in a single

transaction can only be charged with a single violation of § 2252(a)(2).

In this case, the indictment alleged, the evidence at trial established, and the jury found

that Polizzi received prohibited images on four distinct occasions, that is, on February 20 and

March 5, 16, and 20, 2005. But the evidence did not show, and the jury was not asked to

determine whether Polizzi’s receipt of multiple images on any one of these dates reflected a

single simultaneous transfer or discrete and distinct transfers. Such a record would appear to

support Polizzi’s conviction on four receipt counts – one for each date on which he received

images – but not multiple receipt counts per day.

Polizzi’s argument that he may not be convicted both for receipt and possession of child

pornography requires a slightly different analysis than that employed to assess whether multiple

25
convictions under the same statute may be sustained, although both analyses turn on

congressional intent. Where, as here, a defendant has violated two separate criminal statutes,

whether the defendant may be punished for both violations turns on “whether the legislature

intended to authorize separate punishments for the offensive conduct under separate statutes.”

Aparicio v. Artuz, 269 F.3d 78, 96–97 (2d Cir. 2001); see also United States v. Chacko, 169 F.3d

140, 146 (2d Cir. 1999). Thus, “[t]o determine ‘whether convictions under separate sections of

the federal criminal law arising from the defendant’s involvement in a single event or a common

series of events violate double jeopardy principles,’ we analyze the following three factors: ‘the

language of the statutes, how those statutes fare under the Blockburger test, and express

congressional intent, if any, on the issue of multiple punishments.’” Gore, 154 F.3d at 44

(quoting United States v. Muhammad, 824 F.2d 214, 218 (2d Cir. 1987)). Under the Blockburger

test, “we determine ‘whether there are two offenses or only one [by] whether each provision

requires proof of a fact which the other does not.’” Id. (quoting Blockburger v. United States,

284 U.S. 299, 304 (1932)).

Recently, the Ninth and Third Circuits have applied this analysis and concluded that

§ 2252A(a)(5)(B) (possession of child pornography) is a lesser-included offense of

§ 2252A(a)(2) (receipt of child pornography), because receiving an item necessitates taking

possession of it. See United States v. Davenport, 519 F.3d 940, 943–44 (9th Cir. 2008); Miller,

527 F.3d at 71–72; see also United States v. Kamen, 491 F. Supp. 2d 142, 150 (D. Mass. 2007)

(discussing § 2252(a)). Each circuit court concluded, therefore, that the defendant could not be

convicted both of receipt and possession under § 2252A. See Davenport, 519 F.3d at 943–48;

Miller, 527 F.3d at 70–74. Our Circuit has not decided this question. See Irving, 554 F.3d at 78

26
(assuming without deciding that possession is a lesser-included offense of receiving such

pornography under § 2252A). And we need not decide this question with regard to § 2252(a) in

this case because although we find the reasoning of Davenport and Miller persuasive, that

reasoning does not apply perfectly to the circumstances of this case. Here, Polizzi was charged

with possessing certain images of child pornography the receipt of which do not form the basis

for a separate receipt count. Specifically, he was charged in Count Fourteen with possession of

one image file (C:\MY Site\Little Sites\MIXEDLOLITAS_files\07.jpg) and in Counts Fifteen,

Sixteen, and Seventeen with possession of three video files, but he was not charged with

receiving those files. Because Polizzi was not charged with the receipt of these four files, his

possession of those files is not merely incident to an act of receiving for which he already has

been punished. See id. at 77–79 (concluding that no double jeopardy violation would exist so

long as the possession conviction was based on an image the receipt of which did not form the

basis of the receipt conviction). In such circumstances, it would appear that Congress intended to

allow separate convictions.

D. New Trial Motion

The government cross-appeals the district court’s order granting Polizzi’s Rule 33 motion

for a new trial on the receipt counts.

Rule 33(a) of the Federal Rules of Criminal Procedure provides that “[u]pon the

defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of

justice so requires.” This rule “confers broad discretion upon a trial court to set aside a jury

verdict and order a new trial to avert a perceived miscarriage of justice.” United States v.

27
Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992). “We review the decision of the district court to

grant a new trial for abuse of discretion.” United States v. Ferguson, 246 F.3d 129, 133 (2d Cir.

2001).

The government argues that the district court abused its discretion by granting a new trial

because (1) Polizzi had no Sixth Amendment right to have the jury instructed on the applicable

mandatory minimum sentence, and (2) the district court was precluded from instructing the jury

on the applicable mandatory minimum sentence.

As described more fully below, we conclude that the district court erred to the extent it

concluded that Polizzi “ha[d] a Sixth Amendment right to a jury informed of the five-year

minimum” that was denied. United States v. Polizzi, 549 F. Supp. 2d 308, 438 (E.D.N.Y. 2008);

see also id. at 446 (“[Polizzi] was denied his Sixth Amendment right to trial by an informed

jury.”). But we do not conclude, as the government urges, that a district court may never instruct

the jury on an applicable mandatory minimum sentence. Rather, without deciding whether it

would have been within the district court’s discretion to instruct the jury on the applicable

mandatory minimum sentence in this case, we find that the district court acted beyond its proper

discretion when it ordered a new trial at which the jury would be instructed on the applicable

mandatory minimum. The court submitted the case to the jury without instructing the jury on the

mandatory minimum sentence, a course that was certainly within its discretion and the jury

rendered a verdict upon the error-free trial. Absent a strong justification for redoing a properly

conducted trial, the interests of finality, as well as respect for the jury’s verdict, counsel against

requiring retrial.

28
 1. Polizzi Had no Sixth Amendment Right to an Instruction on the Applicable Mandatory
Minimum Sentence

Our precedent forecloses the conclusion that Polizzi had a Sixth Amendment right to trial

by a jury that had been instructed on the applicable mandatory minimum sentence. See United

States v. Pabon-Cruz, 391 F.3d 86, 94–95 (2d Cir. 2004). In Pabon-Cruz, we faced

circumstances similar to those presented in this case and concluded that the “defendant had no

legal right to a charge informing the jury of the sentencing consequences of its decisions.” Id. at

94. The decision was controlled by Shannon v. United States, in which the Supreme Court

rejected the argument that an instruction on the sentencing consequences of the jury’s verdict was

“required as a matter of general federal criminal practice.” 512 U.S. 573, 584 (1994). Although

the Shannon Court “left open the possibility that it might be ‘necessary under certain limited

circumstances’ to instruct a jury regarding the sentencing consequences of its verdict,” we

concluded that the circumstances in Pabon-Cruz were not among the “limited circumstances” in

which such an instruction might be required. See Pabon-Cruz, 391 F.3d at 95 (quoting Shannon,

512 U.S. at 587).

Courts in this Circuit are bound to apply Pabon-Cruz “unless and until its rationale is

overruled, implicitly or expressly, by the Supreme Court or this court.” Consol. Edison Co. v.

UGI Utils., Inc., 423 F.3d 90, 101 n.12 (2d Cir. 2005). The district court below concluded that

the principles embodied in United States v. Booker, 543 U.S. 220 (2005), Apprendi v. New

Jersey, 530 U.S. 466 (2000), Crawford v. Washington, 541 U.S. 36 (2004), and similar cases

“effectively rejected” Shannon and Pabon-Cruz. Polizzi, 549 F. Supp. 2d at 426–33, 438. We

cannot agree with the district court for two reasons.

First, Shannon continues to be controlling precedent. The district court’s conclusion that

29
Shannon has been effectively rejected is “less an application of existing precedent than a

prediction of what the Supreme Court will hold when it chooses to address this issue in the

future.” United States v. Greer, 440 F.3d 1267, 1275 (11th Cir. 2006). If, as the district court

believed, the general principles of Booker, Apprendi, and Crawford will lead the Supreme Court

to conclude that the circumstances in which a jury must be informed of an applicable mandatory

minimum are not as limited as Shannon articulated, that is a decision we must leave to the

Supreme Court.7 See Hohn v. United States, 524 U.S. 236, 252–53 (1998) (“Our decisions

remain binding precedent until we see fit to reconsider them, regardless of whether subsequent

cases have raised doubts about their continuing vitality.”); Agostini v. Felton, 521 U.S. 203, 237

(1997) (“We do not acknowledge, and we do not hold, that other courts should conclude our

more recent cases have, by implication, overruled an earlier precedent.”); Rodriguez de Quijas v.

Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of this Court has direct

application in a case, yet appears to rest on reasons rejected in some other line of decisions, the

Court of Appeals should follow the case which directly controls, leaving to this Court the

prerogative of overruling its own decisions.”).

Second, Pabon-Cruz continues to control because no intervening Supreme Court decision

undermines the rationale relied on by the panel in that case. The district court concluded that

principles drawn from cases like Booker, Apprendi, and Crawford undermine Pabon-Cruz. But,

of all the cases relied on by the district court, only Booker was decided after Pabon-Cruz;

7
Because Shannon did not purport to define exhaustively the circumstances in which an
instruction on the sentencing consequences of a verdict might be required, it could be argued that
Shannon does not control directly the question of whether the circumstances of this case required
such an instruction. As described below, even if Shannon does not control this case directly,
Pabon-Cruz continues to control.

30
Apprendi and Crawford were decided prior to Pabon-Cruz. Thus, the panel that decided Pabon-

Cruz had before it the same principles that we are now urged to find undermine Pabon-Cruz.

This panel cannot accept an argument that Pabon-Cruz was wrongly decided given the Supreme

Court’s decisions in those cases. Accordingly, applying controlling circuit law, it is clear that

Polizzi had no Sixth Amendment right to a jury instruction on the applicable mandatory

minimum sentence. See Pabon-Cruz, 391 F.3d at 94.

2. The District Court Has Discretion to Instruct the Jury on Applicable Mandatory
Minimum Sentence in Some Circumstances

The government concedes that neither the Supreme Court nor this Court has “expressly

held that a court has no authority to inform the jury of the applicable sentence,” but it argues that

the principles motivating various Supreme Court and Second Circuit decisions demand the

conclusion that a district court may not inform the jury of a mandatory minimum sentence.

Specifically, the government draws two principles from court rulings: (1) the Supreme Court’s

teaching in Shannon that the “jury is to base its verdict on the evidence before it, without regard

to the possible consequences of the verdict,” 512 U.S. at 576, and (2) our disapproval, expressed

in United States v. Thomas, 116 F.3d 606, 616 (2d Cir. 1997), of any encouragement of jury

nullification. The government argues that these two principles are inconsistent with any

recognition of district court discretion to instruct the jury as to the consequences of a verdict. In

fact, the law does not support such an absolute prohibition.

First, the government’s position contradicts the Supreme Court’s explicit statements in

Shannon. Although the Shannon Court concluded that “an instruction [on the consequences of a

not-guilty-by-reason-of-insanity verdict] is not to be given as a matter of general practice” it also

31
specifically “recognize[d] that an instruction of some form may be necessary under certain

limited circumstances.” 512 U.S. at 587–88. And elsewhere in Shannon, the Court observed:

“[A]s a general matter, jurors are not informed of mandatory minimum or maximum sentences.”

Id. at 586 (emphasis added). Far from prohibiting all instructions to the jury regarding the

consequences of its verdict, these statements make clear that in some, albeit limited,

circumstances it may be appropriate to instruct the jury regarding those consequences.

Second, while Shannon and Pabon-Cruz emphasize that a jury should base its verdict on

the evidence, without regard to that verdict’s consequences, and Thomas stresses the general

inappropriateness of jury nullification, these principles do not lead inexorably to the conclusion

that a court may never instruct the jury on the consequences of its verdict. Without attempting to

define the boundaries of a district court’s discretion in this regard, we recognize the possibility,

as the Court in Shannon did, 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. Shannon provided an example of one situation

in which an instruction on the consequences of a verdict might be appropriate: “If . . . a witness

or prosecutor states in the presence of the jury that a particular defendant would ‘go free’ if found

[not guilty by reason of insanity], it may be necessary for the district court to intervene with an

instruction to counter such a misstatement.” Shannon, 512 U.S. at 587. The Shannon Court’s

reasoning suggests that an instruction might be appropriate in such circumstances because the

jury’s attention already has been drawn in an unfair and misleading way “toward the very thing –

the possible consequences of its verdict – it should ignore.” Id. at 586.

In this case, it is not necessary to decide whether it would have been within the district

32
court’s discretion to inform the jury of the applicable mandatory minimum sentence. Even

assuming arguendo that the district court had discretion to give such an instruction, it was

certainly within the trial court’s discretion to decline to instruct the jury on the mandatory

minimum sentence. Once the jury rendered a verdict upon an error-free trial, only a compelling

reason involving substantial unfairness could justify undoing the jury’s verdict and ordering a

new trial.8 See United States v. Coté, 544 F.3d 88, 101 (2d Cir. 2008) (“[C]ourts must . . .

exercise Rule 33 authority sparingly and in the most extraordinary circumstances[,] . . . [such as

where] a district court is convinced that the jury has reached a seriously erroneous result or that

the verdict is a miscarriage of justice. . . . [T]he court may not wholly usurp the jury’s role.”

(internal quotation marks omitted)).

Whether circumstances could be imagined in which a trial judge’s decision to take some

step within its permitted discretion might result in unfair, unforeseen prejudice so as to justify an

order for a new trial, in this case, no such justifications were identified. There was no suggestion

that the evidence failed to prove Polizzi’s guilt, that witnesses against him lied or were mistaken,

or that the fairness of his trail was impaired by some error or some untoward prejudicial event.

The only justification cited by the district court for the retrial order was that some jurors might

have voted for acquittal so as to nullify the application of the harsh sentencing law had they been

aware of the mandatory minimum sentence. Based on its post-verdict colloquy with the jurors,

the court stated that Polizzi was prejudiced because “it [wa]s apparent that a . . . rational jury [if

8
The circumstance is somewhat different when the order of retrial is occasioned by an
error of law which occurred during the trial. Courts of appeals regularly vacate jury verdicts and
order retrial by reason of errors of law committed at trial unless they find that the error was
harmless. A district court, if it becomes aware of its own error, may well be justified in ordering
a new trial without requiring the parties to prosecute an appeal.

33
informed of the applicable mandatory sentence] would likely have deadlocked on the receiving

counts or found Polizzi not guilty by reason of insanity.” Polizzi, 549 F. Supp. 2d at 448.

Although jurors have the capacity to nullify, it is not the proper role of courts to

encourage nullification. See Thomas, 116 F.3d at 615. A trial court’s failure to take

discretionary steps that might have induced jurors to nullify does not furnish an adequate

justification for a finding under Rule 33 that “the interest of justice . . . requires” a new trial.

In short, given that the jury rendered its verdict after a trial conducted without error and

without any occurrence that risked to prejudice the defendant in the eyes of the jury, the mere fact

that jurors advised of the harsh sentencing law might have voted to acquit in an effort to nullify

its application did not furnish adequate justification for vacating the jury’s verdict and ordering a

new trial.

CONCLUSION

For the foregoing reasons, we VACATE the April 9, 2008 order granting defendant’s

motion for a new trial and REMAND this case with instructions to the district court to vacate all

but one of the § 2252(a)(4)(B) convictions and for further proceedings consistent with this

opinion.

34