564 F.3d 142 (2nd Cir. 2009), 08-1830, United States v. Polouizzi

Docket Nº:Docket 08-1830-cr(L), 08-1887-cr(XAP).
Citation:564 F.3d 142
Party Name: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.
Case Date:April 24, 2009
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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564 F.3d 142 (2nd Cir. 2009)

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.

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

United States Court of Appeals, Second Circuit.

April 24, 2009

Argued: Jan. 9, 2009.

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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.

Before: LEVAL, KATZMANN, and RAGGI, Circuit Judges.

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 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.

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Defendant-appellant and cross-appellee Peter Polizzi 1 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) 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 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.

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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...

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