U.S. v. Pabon-Cruz, Docket No. 03-1457.

Decision Date03 December 2004
Docket NumberDocket No. 03-1457.
Citation391 F.3d 86
PartiesUNITED STATES of America, Appellee, v. Jorge L. PABON-CRUZ, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

Colleen P. Cassidy, The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York, NY, for Defendant-Appellant.

Alexander H. Southwell, Assistant United States Attorney (Celeste L. Koeleveld, Assistant United States Attorney, of counsel; David N. Kelley, United States Attorney, on the brief), United States Attorney's Office for the Southern District of New York, New York, NY, for Appellee.

Before: MESKILL, LEVAL, and CABRANES, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge.

This case, before our Court for the second time, involves an eighteen-year-old man who has been sentenced to ten years in prison following conviction on a charge of advertising to distribute or receive images of child pornography, and a charge of receiving or distributing child pornography. Previously, in the midst of trial, the Government filed a petition for a writ of mandamus asking us to prohibit the United States District Court for the Southern District of New York (Gerard E. Lynch, Judge) from informing the jury about the mandatory ten-year sentence that would be imposed on defendant if he were convicted of the advertising offense; the statute prohibiting distribution required no such minimum sentence. Two days later, after staying proceedings in the District Court, a panel of this Court issued the writ of mandamus requested by the Government in a brief summary order. After the writ was issued, and the District Court delivered its instructions, the jury convicted defendant of the advertising offense and of distributing child pornography by computer.

On appeal from the final judgment of conviction, defendant challenges (1) our Court's prior decision to prevent the District Court from informing the jury of the mandatory minimum sentence attached to the advertising count; (2) the District Court's instructions to the jury regarding the elements of the advertising offense; and (3) the constitutionality under the Eighth Amendment of the statute requiring the imposition of a mandatory minimum sentence.1 Though the issue was not raised by counsel, nor addressed by the District Court, we consider nostra sponte whether the statutory penalty provision of 18 U.S.C. § 2251(d) mandates a minimum ten-year term of imprisonment. For the reasons stated below, we affirm the finding of guilt, but vacate the sentence and remand for resentencing.

BACKGROUND

Jorge L. Pabon-Cruz, who had just turned 18 at the time of the conduct at issue, was charged with and convicted of both advertising and distributing child pornography over the Internet. Pabon-Cruz is a first-time offender. He had been living with his mentally disabled mother and studying computer science as a scholarship student at the University of Puerto Rico, and the District Court found that he had not been involved in the creation of any child pornography. Count One of the indictment charged Pabon-Cruz with violating 18 U.S.C. § 2251(c)(1)(A), which applies to any person who "knowingly makes, prints, or publishes, or causes to be made, printed, or published, any notice or advertisement seeking or offering... to receive, exchange, buy, produce, display, distribute, or reproduce, any visual depiction, if the production 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. § 2251(c)(1)(A) (2000).2 At the time of Pabon-Cruz's conduct, that advertising offense was understood to carry a ten-year mandatory minimum prison sentence. Id. § 2251(d).3

Count Two of the indictment charged Pabon-Cruz with violating 18 U.S.C. § 2252A(a)(2)(B), which applies to any person who "knowingly receives or distributes ... any material that contains child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer." 18 U.S.C. § 2252A(a)(2)(B) (2000). That offense, unlike the advertising offense, carried no mandatory minimum sentence when Pabon-Cruz engaged in the conduct at issue.4 See id. § 2252A(b).

Before trial, the Government moved to preclude any mention of the ten-year mandatory minimum sentence that applied to the advertising offense and asked the District Court to instruct the jurors that sentencing was not their concern.5 Defense counsel, in turn, asked the Court to inform the jury that the advertising count was the more serious of the two counts charged in the indictment and that it carried a ten-year mandatory minimum. Defense counsel expressed concern that, in the absence of a clarifying instruction, the jury would (erroneously) consider distributing child pornography to be a more serious offense than advertising to distribute it.

The Government also asked for the District Court's permission to submit to the jury the images advertised and distributed by defendant. In response, defendant offered to stipulate that those images constituted child pornography and moved to preclude the Government from introducing the photographs at trial on the ground that they were inflammatory.

Judge Lynch ruled before trial that the Government could prepare for the jury a binder containing 15 pornographic images. Judge Lynch also said that he was inclined to inform the jury of the penalty that Pabon-Cruz would face if he were convicted on the advertising count. Judge Lynch explained that, in his view, the Government's request to introduce images of child pornography and defendant's request to instruct the jury about the mandatory minimum were related:

I must say, I find both sides a little bit inconsistent in that respect. The defense seems to want the jury to make some kind of a judgment about whether the penalty is appropriate for the conduct without letting the jury see what the conduct consists of. On the other hand, the government, which had the opportunity to have a fact finder who would be bound to apply the law and the evidence, chose a fact finder, I assume, because it wanted a judgment of the community, and yet it doesn't want the community to know what it is actually judging about or what the consequences of its judgment are.

Accordingly, Judge Lynch indicated that because he had decided to grant the Government's request to introduce images of child pornography into evidence, he would also grant defendant's request to instruct the jury about the mandatory minimum.

In response to the Government's assertion that any decision to inform the jury about sentencing "goes directly against controlling Second Circuit authority" requiring courts to forestall nullification arguments to the jury, Judge Lynch insisted that he did not "intend to allow the defense to argue nullification." He elaborated:

I have carefully considered the cases that you cite. I don't intend to allow the defense to argue nullification. I don't intend to allow the defense to argue that [the jury] should acquit because the sentence is too high. I will instruct the jury, in the usual way, that if they find that the government has met its burden of proving all the elements of both or either offense beyond a reasonable doubt, then they must convict the defendant of those charges.

But I think there is a difference between saying that the court does not and cannot approve of nullification, and ignoring the fact that juries have historically played this role. I think they are only appropriately able to play that role when they do it against a backdrop of stern admonitions that they are not supposed to do it. I think it is an act of civil disobedience if they do it. And they should not be given any encouragement or any condonation or any instruction that suggests to them that it is legally permissible for them to violate their oath as jurors. On the other hand, historically jurors have sometimes done that, and the judgment of history is sometimes that when they do that, they are in effect lawless and evil, and at other times the judgment of history is that they've done the right thing.

Thus, although Judge Lynch proposed to admonish the jury that nullification is not permissible, he also proposed to tell the jury about the sentencing consequences of its verdict so that the jury could make an informed decision as to whether to nullify the law.

As a separate reason to inform the jury about the mandatory minimum, Judge Lynch offered the possibility of juror confusion about the relationship between the two counts in the indictment. According to Judge Lynch, it is counterintuitive that advertising to distribute pornographic images carries a more severe sentence than actually distributing such images, and, therefore, jurors might convict on the advertising count alone as part of a compromise verdict. Although he acknowledged that juries are instructed not to compromise between separate counts, he said that "[i]f there is any incentive or any situation arises in which the jury will be tempted to ... compromise, it would be absolutely perverse to let them decide to compromise on what is in effect the more serious charge."

At the charge conference, Judge Lynch announced his final decision to inform the jury of the ten-year minimum sentence applicable to the advertising count. In doing so, he noted that although "civil disobedience is not encouraged and is indeed prohibited by the law, it is sometimes celebrated as an aspect of our system." He continued:

I would not expect the average juror to be very tempted to civil disobedience in light of the seriousness of the conduct shown here and the strength of the evidence against the defendant.

But in the unlikely event that members of the jury were so troubled that they decided to acquit in the face of the court's instruction, in violation of their oaths, and on the face of the evidence in the case, that, it seems to me,...

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