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United States v. Polizzi

April 1, 2008

UNITED STATES OF AMERICA,
v.
PETER POLIZZI, DEFENDANT.



The opinion of the court was delivered by: Jack B. Weinstein, Senior District Judge

MEMORANDUM, ORDER & JUDGMENT

I. Introduction

Defendant, Peter Polizzi, was charged with-and convicted after a jury trial of-twelve counts of receiving and eleven counts of possessing child pornographic images under 18 U.S.C. §§ 2252(a)(2) and 2252(a)(4)(B). The pictures were so sickenly loathsome as to lead inexorably to jury denouncement. See Superseding Indictment, Mar. 8, 2007, Docket Entry No. 35; Govt.'s Letter to Dismiss Count Thirteen, Aug. 27, 2007, Docket Entry No. 62. He has been in federal custody since October 5, 2007, when the jury delivered its verdict.

A conviction for receiving child pornography under 18 U.S.C. § 2252(a)(2) requires a mandatory minimum sentence of five years' imprisonment; the maximum is twenty years. 18 U.S.C. § 2252(b)(1). Ten years is the maximum for conviction for possession under 18 U.S.C. § 2252(a)(4)(B); there is no minimum. 18 U.S.C. § 2252(b)(2). Whether a charge based on the receipt and possession of the same picture is duplicative-because upon receipt via computer, possession necessarily begins-need not be addressed since the multiplicity of counts does not affect the sentence being imposed. See Parts V.C, VI.C, infra.

Before it rendered its verdict of guilty, the jury was not informed of the five-year mandatory minimum sentence a conviction on the receipt counts entailed despite the defendant's request for such an instruction. Told of the minimum after the verdict was received, a number of jurors expressed distress, indicating they would not have voted to convict had they known of the required prison term. They had assumed that the defendant would receive treatment, not long incarceration. See Part II.B.8, infra.

The jury rejected Polizzi's alleged affirmative defense of not guilty by reason of insanity. See Insanity Defense Reform Act of 1984 ("IDRA"), Pub.L. No. 98-473, 98 Stat.2057 (codified at 18 U.S.C. § 17). The defense was largely predicated on Polizzi's himself having been repeatedly and severely sexually abused as a child. See Part II.A, infra.

Defendant's background was positive. See id. He was brought to this country when he was a young teenager after a childhood in Sicilian poverty; had little formal education, yet, after teaching himself to play an instrument, led a popular local band; worked extremely long hours at menial labor as a boy, and then bought and built-up a successful restaurant; had a loving wife and five supportive lawfully engaged sons; lived in a fine home; was well respected in the community by the police, clergy and others; had no criminal record; viewed the charged pornography downloaded from the Internet alone in a double- locked room above his garage; and, upon his arrest, cooperated fully with the police, suggesting to them that whoever participated in producing these dreadful pornographic images should be prosecuted. See Parts II.A, II.B.1-2, infra.

Defendant now moves for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure and for dismissal pursuant to Rule 29. Def.'s Mot. to Vacate J., Docket Entry No. 123. Two main issues are presented: First, are the statute and mandatory minimum sentence constitutional facially and as applied? See Part III, infra. Second, should the jury have been informed of the mandatory minimum before it began its deliberations? See Part IV, infra.

A. Constitutionality of Statute

Although the constitutional arguments against enforcement of the statute facially and on the facts charged are powerful, each is rejected on the basis of precedent. Serious questions about constitutionality suggest that the appellate courts and Congress need to revisit these issues.

A fundamental problem is presented by the statute and charge. Passively "receiving" and passively "possessing" images sent over the Internet may lack the constitutionally required scienter. See Part III.A, infra. There is a limit to what life the courts can breathe into a statutory provision otherwise dead under the Constitution by incorporating judicially created scienter and mens rea qualifications. In view of appellate assumptions that the charged child pornography statute is valid, dismissal on the basis of unconstitutionality is denied. These assumptions need to be reconsidered on appeal.

There is merit to defendant's argument that the punishment violates the Eighth Amendment, but it cannot be said that the statute is unconstitutional because it is not both cruel and unusual. See Part III.B, infra. Neither can it be said that the punishment is unconstitutionally disproportionate to the crime charged. See Part III.C, infra. Congress has found that receipt and possession of child pornography is demeaning to the children depicted and increases the threat of sexual abuse of children. Utilization of the criminal law and the threat of heavy penalties to minimize the risk of sexual abuse of children are appropriate and can be considered proportionate.

There is merit to defendant's argument that the heavy penalty is irrational in view of the specific charges, but it cannot be said that it is unconstitutionally so. See Part III.D, infra. It can be justified on a congressional view that criminalization of all aspects of the distribution chain will discourage people from downloading such images, deterring purveyors and those sexually abusing children. This argument of rationality is less persuasive than it would be were the purchase by a downloader an element of the offense charged-which it is not here- since the definition would then strike directly at the profit motive, a chief driving force of the current Internet traffic in child pornography images.

There is merit to defendant's contention that the rule of lenity requires interpretation of the applicable statute to exclude mere passive receipt and possession as charged. It is not appropriate, however, to declare invalid the receiving and possessing provisions charged since appellate courts have assumed they are valid despite their defects. See Part III.E, infra. The statutory provision requiring parsimony in punishment yields to specific sentencing provisions requiring a mandatory minimum. Id.

There is merit to defendant's assertion that the statute charged violates the First Amendment free speech protections of persons in their own homes viewing, reading, or hearing what they wish, but it cannot be said the statute is unconstitutional on this ground. See Part III.F, infra. Free speech may be limited by Congress should investigation demonstrate that it leads fairly directly to sexual abuse of children. Child pornography enjoys no prima facie First Amendment protection.

There is merit to defendant's argument that the investigation leading to his arrest was a violation of his Fourth Amendment right against unreasonable searches and seizures, but no motion to suppress was made, and it cannot be said it was unconstitutional given current statutes and precedent. See Part III.G, infra. Using computer forensics to secretly find out what a person is viewing in the privacy of his own home arguably violates constitutional protections, but it may be justified, as precedents suggest, by the lack of any expectation of privacy in the computer "address" of a receiver of images transmitted through the Internet.

There is merit in defendant's contention that mandatory minimums violate separation of powers by shifting part of the judicial discretional sentencing power from the courts to Congress and to the executive through its charging ability, but the statute cannot be held to be unconstitutional on that ground. See Part III.H, infra. Appellate courts repeatedly have recognized that sentencing is a shared power among the three branches and that the legislature may limit sentencing discretion through mandatory minimums and otherwise.

There is merit in defendant's argument that forcing the jury into a general verdict without informing it of the verdict's punitive implications violates the jury's constitutional role in finding predicate sentencing facts to provide a basis for sentencing enhancement as outlined in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and related cases, but there cannot be said to be unconstitutionality on that ground. See Part III.I, infra. The jury's general verdict of guilty, under the statute's operative elements, is the statutory basis for the minimum sentence.

B. Unconstitutional Denial of Jury's Broad Power to Refuse Conviction

The American petit jury is not a mere factfinder. From the time the right to trial by jury was embedded in the Constitution as a guarantee to criminal defendants through the Sixth Amendment in 1791, it has been expected to bring to court much of the wisdom and consensus of the local community. See Part IV, infra. It has, when jurors deemed it necessary, stood as a guardian of the individual against the sometime cruel overreaching of government and its menials. Much of our modern procedural "reforms" have been designed to limit the jury's reach and power, increasingly shifting control to judges; these efforts have attempted unconstitutionally to transform the jury into a simple factfinder from its grander historical position under the Constitution as representative of the people in the courts.

Recent Supreme Court developments stress "originalism"-that is to say, the meaning at the time the relevant constitutional language was adopted. The approach has been applied to sentencing in a series of Supreme Court cases reviving the original meaning of the Sixth Amendment guarantee of trial by jury in criminal cases and the right of a defendant to be confronted with opposing witnesses. See Part IV.D, infra. The development is based upon what is believed to be colonial practice immediately preceding adoption of the Sixth Amendment, and the reception of then current British practice. See Part IV.A, infra.

Extrapolation of the recently emphasized constitutional principle requiring a jury finding of the facts needed to enhance a sentence requires courts to recognize that colonial and British juries in the late eighteenth century had power to control the finding of guilt in order to affect the sentence. In exercising its extensive discretion, the jury was expected to be aware of, and understand, the sentence that would follow from its decision. That jury power to know and act may not be eviscerated, as was done in this case by this court's error in failing to advise the jury of the five-year mandatory minimum sentence required on conviction of receipt of child pornography.

Although much of modern civil and criminal procedural rule-making has been devoted to controlling juries, see Part IV.C, infra, the emphasis on originalism by the Supreme Court in sentencing and confrontation requires enforcement of a basic element of the Sixth Amendment as originally understood: the jury of the vicinage, being aware of the sentencing implications of a finding of guilt, had the frequently exercised power to refuse to follow the law as construed by the court, and could acquit or downgrade the crime in order to avoid a sentence it deemed excessive.

The complexity of modern United States criminal law and the general public's lack of detailed knowledge of federal statutory provisions require that, in the few cases where necessary, the jury be informed of such matters as the required minimum term of incarceration that will follow from its verdict so that it can exercise its constitutionally mandated historic role. Cases which have rejected this view, on the ground that it permits a form of impermissible "nullification," have not followed the Sixth Amendment as it must be interpreted after recent Supreme Court originalist holdings. See Part IV.E, infra.

Consideration of jury power contemporaneous with the Sixth Amendment's adoption leads to the conclusion that this court committed constitutional error when it denied defendant's request to inform the jury of the statutory mandatory five-year minimum applicable to the receiving counts. A new trial on those counts, granted pursuant to defendant's Rule 33 motion, will be required to correct that prejudicial error. See Part V, infra. The requested instruction might well have led to a hung jury or a verdict of not guilty or not guilty by reason of insanity.

This ruling on what the jury is entitled to know about sentencing is limited to that small group of cases where the jury would not be expected to know of the applicable harsh mandatory minimum. It would not, for example, appear to be applicable to robbery, terrorism or personal assaults with weapons where juries expect long prison terms to be imposed. It would also not apply where the defendant asked that the jury not be informed because of potential prejudice.

An acquittal on the receiving counts would not mean the defendant would go unwhipped of justice. Because they do not require a minimum sentence, the possession counts stand; they provide ample ground for serious non-mandatory penalties, including a substantial prison term, a heavy fine and a long period of supervised release. See Parts V.C, VI, infra. The instant trial and the attendant evidence and publicity have revealed a man who entertains himself by buying, downloading and viewing the most vile child pornography; the cost of his defense was considerable; and the loss of self-respect and the esteem of community and family constituted a devastating punishment. The criminal process and the trial are the modern equivalents of eighteenth-century branding, being put in stocks, or being carted about the community in shame. Defendant, whatever the ultimate outcome of the prosecution, is now publicly marked as morally culpable.

II. Facts

A. Defendant and the Crime

As described more fully below, Peter Polizzi, now fifty-four, immigrated here with his family from an impoverished area in Sicily when he was in his early teens, speaking only Italian. Trial Tr. 164. With just a few years of schooling, as a young man he bought a restaurant in Queens, and over the next thirty-five years turned it into a valuable business. Along the way, he met and married the girl next door, id. at 169, had five successful sons who are all in college or college graduates, id. at 165, 1366, and bought a fine home.

Polizzi taught himself to play the guitar. He performed in a band at Italian weddings, id. at 169, 1018, until one of his band members was shot and killed in front of him during a robbery. Id. at 1022. A religious man, he attended church regularly. Id. at 907. In his free time, he organized his extensive collections of music, baseball cards, movies, comic books, and other "collectibles;" see Part II.B.6.b, infra; he placed great importance on being "nice and neat." Trial Tr. 748, 869.

His success was, in large part, the result of hard physical work, a strict, formalized routine with very long hours, and the help of his wife and children. Id. at 864, 1018 (noting that he regularly worked up to eighteen hours per day, seven days a week).

For some five years before his arrest in 2005, Polizzi regularly repaired to a double-locked room over his detached garage to view child pornography on his computer; eventually he possessed over 5,000 pictures, the vast majority of which were of young girls. Id. at 355, 859. Polizzi claimed he came across child pornography accidentally while looking for adult pornography, and was "shocked" by what he saw. Id. at 1046. He thought such "filthy" photos should be outlawed, but did not realize they were illegal; if they were forbidden, he asked himself, why were they freely available on the Internet? Id. at 1047, 1105 ("Now, I know it's wrong, but back then I didn't-I didn't know it was wrong. You say it was illegal, to me something that is there you see is not illegal, because if it's illegal what to stop, what is there is illegal [sic]?").

With what he testified as the goal of eventually turning his collection over to law enforcement, Polizzi downloaded all the photos he could find. Id. at 1047, 1070; see id. at 782. The images reminded him of being sexually abused multiple times as a child in Sicily, and he said he wanted to help those children he now saw suffering the same fate. Id. at 1046; see Part II.B.6.a, infra. Yet, with what he testified was fear of law enforcement (based upon his own abuse by Italian police officers), and hesitant to reveal his own sexually abused past of which his family knew nothing, he never notified any authorities. Trial Tr. 1048, 1071 ("Always, when I see the police I get anxiety attack, even now.").

There is no evidence that the defendant ever committed another crime. See id. at 165. Polizzi never sent any photos to anyone nor did he enter teenage chat rooms or attempt online solicitation. Id. at 534-38, 1366; see id. at 1058. Beyond his present convictions for receipt and possession of child pornography, no allegations of production or distribution of such images nor of any other improper conduct by the defendant have been made.

1. Childhood Sexual Abuse in Sicily

As a child, Polizzi was raped by his uncle, a family friend, and two Italian police officers. He also witnessed the murder of one playmate and the kidnapping of another by other police officers, possibly in connection with sexual abuse. Until he was arrested for the instant offense, Polizzi had not told anyone for over forty years of having been sexually abused. Based on defendant's testimony and out-of-court psychological examinations, it was assumed that defendant's described sexual abuse when he was a child took place. See Def.'s Letter 2 n. 3, Dec. 5, 2007, Docket Entry No. 114 (reporting that it was generally accepted by most of the jurors that the incidents in Sicily did happen). Thus, expert evidence was not offered on the issue of his credibility regarding this fact. Cf. generally Christopher Slobogin, Experts, Mental States, and Acts, 38 Seton Hall L.Rev. 1009 (2008); Edward J. Imwinkelreid, The Case Against Abandoning the Search for Substantive Accuracy, 38 Seton Hall L.Rev. 1031 (2008).

Prior to leaving Italy at about age twelve, Polizzi and his family lived in a small rural village in Sicily, working as sharecroppers. Trial Tr. 941. At trial, Dr. Jane Schneider, a cultural anthropologist specializing in 1950s and 1960s Western Sicily, testified as to the general poverty, living arrangements, and economic structure of the region, lending general background support to Polizzi's account. Id. at 166, 721-37. She confirmed that Burgetto, Polizzi's village, was then a "very poor," "socially stratified" "rural town" of about 6,500 people, a peasant society with a feudal-like history of large estates and sharecroppers, id. at 728:

The majority of the population had very little land or no land and they worked for or were sharecroppers of large landowners.... If they were fortunate they had a mule or maybe a donkey, they commuted to their fields sometimes on mule back.... The mules lived in the household with the family. A typical ... poor peasant's house was maybe one room or two rooms with perhaps alcoves for children to sleep in ... and adjacent to that would be the stall with the family's mule.

Id. at 729.

Dr. Schneider also described the corrupt carbina, the Italian national police force, and its officers, the carabinieri:

[T]he police in a rural town in those days would have been members of the car[b]ina and this is a quasi militarized national policing institution in Italy.... [T]he carabinieri would not have local ties ..., you would be assigned to some community in Italy where you didn't have any local connection, so the carabinieri was for the most part outsiders to the communities in which they were policing.... [T]he police and carabinieri in Sicily, especially western Sicily, which got this history of large estates and the Mafia and so on, were very-had a very bad reputation, a reputation for corruption, reputation for not prosecuting organized crime, criminal offenses....

Id. at 732-33. A poor peasant family, Polizzi and his six younger brothers and sisters shared what was little more than a hovel with the family's mule. Id. at 942.

Polizzi's nearby grandparents often cared for him. When staying at their house, he shared a bed with his teenage uncle, who repeatedly sexually molested him beginning when he was four years old. Id. at 952. At age seven, Polizzi was beaten and raped by his uncle, who threatened to kill him if he ever told anybody. Id. at 959-62. Despite the warning, he did tell his mother, only to be hit by her and accused of lying. Id. at 963.

A year later, Polizzi was raped again. Sent into the fields on an errand, a family friend-his brother's godfather-beat and sodomized him at knifepoint, similarly threatening to kill him if he said anything. Id. at 970-71. Polizzi later revealed the abuse to the village priest, whose only comment was "don't do that again, because God [is] going to punish you." Id. at 990; see id. at 1247.

The third and fourth incidents took place when he was nine. Walking home from school, he was grabbed by two Italian carabinieri, who raped him in a stable. After they finished, one of the officers took his service revolver, inserted it in Polizzi's anus and then his mouth, telling him that he and his family would be killed if he ever told. Id. at 975-79. Polizzi never went back to school, obtaining work in a bakery instead. Id. at 980.

Polizzi had two friends in the village, boys his age who had also been raped. Id. at 983-84. Playing hide and seek on the outskirts of town one summer night, they suddenly heard "screaming, running." Id. at 987. Polizzi froze under a bush, but his two friends decided to run, only to be caught by carabinieri. The police officers beat one of his friends, punching and kicking him to the ground, where he hit his head on a rock. "[A]s soon as [his friend] fell he didn't move no more." Id. at 988. The carabinieri fled, taking one boy with them and leaving the other dead. Polizzi never again saw the boy the police had taken away. Id. at 987-88. A year or two later, Polizzi left for the United States with his family.

2. Resulting Psychological Trauma

Although he achieved the American dream in many ways, Polizzi retained, according to his own testimony and that of experts, psychological scars from his childhood abuse. His wife and children did not know these secrets from his past. After the Sicilian priest, the next person Polizzi told about these rapes, some forty years later, was a counselor assigned after his arrest. Id. at 990, 1240, 1302. Polizzi's adult life was marked by post-traumatic stress and obsessive-compulsive disorders, though he never sought any mental health treatment. Id. at 791, 1209; see Part II.B.6.a, infra. Lacking self-awareness, he considered his behavior normal. See Trial Tr. 873; Part II.B.4.b, infra.

Polizzi also suffered head injuries from several car accidents in the early to mid-1990s where he lost consciousness. See Trial Tr. 1139-40. Because the only medical record introduced was a recent MRI scan that by itself did not reveal anything of significance, it is impossible to say how, if at all, the head trauma affected him. See id. at 1262-64, 1320.

The opposing experts at trial disagreed on the extent of his mental functioning and health. See Parts II.B.6.b-d, infra. Upon a retrial, the physical and psychological history of the defendant should be examined in greater depth.

B. Procedure

1. Investigation

The investigation leading to Polizzi's arrest and convictions began with an unsolicited spam email advertising a "private child porn club" received by a Long Island householder. Trial Tr. 182, 199. He forwarded it on February 21, 2005 to the Suffolk County Police Department, which promptly began a joint investigation with the Federal Bureau of Investigation ("FBI").

The email advertisement included a website address for those interested in joining the "club." Following this lead, the investigators were directed to a "join page." Entitled "Pedo Lovers 2004-2005," the join page contained thumbnail sized photographs of child pornography. Id. at 203. Using an undercover email account, the officers joined the "club," called "Hardcore." Id. at 201-55. It charged eighty-nine dollars for a thirty-day membership. Id. at 209.

Becoming a member of "Hardcore" was not a one-step process; multiple pieces of identity-confirming information, including name, address, credit card number, and a valid email address were required in order to receive a log-in ID number and password by subsequent email. Before receiving the club's actual website address, the agents had to find out from their credit card company the exact amount charged to the card and re-enter that information. Id. at 219-20. Hardcore's membership conditions included the admonition not to talk about the "members area" with any authorities. Id. at 234. Access to the club's website was only possible with the correct web address, log in and password. Id. at 244.

Polizzi testified that at the time he joined the club, he did not have to go through any of these steps beyond entering his name and credit card number. He admitted that he had paid eighty-nine dollars for three thirty-day memberships to "Hardcore." Id. at 148, 155, 208, 215.

Tracking down the producers and subscribers of the site involved a complicated forensic process stretching across the world. The join page was found to be located in Asia, probably Hong Kong, but the subsequent money trail was traced back to New Jersey. Id. at 207. By looking up the registrant of the website, the agents discovered that the website contents were moving alternately between web host companies in Scranton, Pennsylvania and Fremont, California. Id. at 242, 247, 266. The companies had been paid with a valid Russian credit card. Id. at 267, 546.

On March 10, 2005, the FBI sent a "preservation letter" to the Scranton web host, ordering that the contents of the site be preserved as of that date. Id. at 251. On April 20, 2005, law enforcement officers executed a federal judicial search warrant on the host company for the Hardcore website's hard drives. See Govt.'s Letter 1, Mar. 19, 2008, Docket Entry No. 136; Part III.G, infra (discussing subpoenas and search warrants in Internet investigations). The hard drives seized contained the preserved data from March 10, 2005, as well as data from, and a copy of, the website as of the day of the search. Trial Tr. 256. Hard drives from the California web host were also seized through the use of federal judicial search warrants and the site temporarily shut down. See Govt.'s Letter 1 n. 1, Mar. 19, 2008. Soon afterwards, Hardcore began operating from another web host on Christmas Island in the Philippines. The trail for the website's producers reached a dead end overseas in Russia. Trial Tr. 249, 269.

Executed as well was a federal judicial search warrant on the New Jersey company handling the website's credit card and other financial information. See Govt.'s Letter 1 n. 1, Mar. 19, 2008. Information from the hard drive seized there allowed law enforcement to track the money trail, but only as far as Belize. Trial Tr. 265.

Law enforcement used forensic software to make exact copies of the confiscated hard drives and preserve the data. Id. at 259. Because technicians noticed and avoided an encryption trap on the March copy, that data was intact. Id. at 261. On the April copy, however, much of the data-but not the "access log"-had been partially encrypted. Id. at 262. An access log records visitors to a website; Hardcore's log on the April copy had captured 900,000 Internet Protocol ("IP") addresses, some duplicative, for a ten-day period in March 2005. Id. at 263, 273. By using a computer program, the agents were able to organize the data by IP address, date, and time, revealing that the 900,000 IP addresses represented some 1,900 unique "customers." Id. at 264.

Relatively simple technology-a "who is" search-revealed which Internet Service Providers ("ISPs") owned and leased these IP addresses. To obtain the identities of Hardcore's customers, the ISPs were administratively subpoenaed by the FBI for the subscriber information of the users of the logged IP addresses. Id. at 264. (Two rounds of administrative subpoenas were required because the first set returned incorrect information; it turned out that the access log had a built in forty-two minute delay, so a second round of subpoenas was necessary. Id. at 273-74.) Nine hundred of the website's customers were located in the United States. Id. at 553-54, 560.

One of the IP addresses listed on Hardcore's access log, 24.90.31.98, was eventually traced to Polizzi. Id. at 270. The access log for that IP address was eight pages long; some entries showed repeated access on March 28, 2005 at 2:21 p.m., using the "GET" command. Id. at 273. The "GET" command tells a computer to take a certain action. In this case, the computer using Polizzi's IP address was "getting" (downloading) a number of images in Hardcore's "archives girls" area. Id.

The "who is" search revealed that Time Warner Cable owned IP address 24.90.31.98. Id. at 273-75. In response to the administrative subpoenas, Time Warner identified Peter Polizzi of Queens as the user of that IP address on that date and time. Id. at 276. The agents then obtained a federal judicial search warrant for his home. Id. at 279; Govt.'s Letter 1-2, Mar. 19, 2008. A total of 168 judicial search warrant packets were ultimately issued based on the Hardcore investigation, leading to about seventy indictments, including Polizzi's. Trial Tr. 561.

2. Arrest

On November 16, 2005, FBI and local law enforcement agents arrived at defendant's home to execute a federal court ordered search warrant seeking computer equipment and evidence related to the possession of child pornography. Id. at 150, 208, 279. Arriving at 6:00 p.m. at the single-family residence, the agents had to wait almost two hours for Polizzi and his wife to arrive home from work at the restaurant. Trial Tr. 280. While pulling into their driveway, the couple was approached by the agents who identified themselves and explained that they were there to search the house for child pornography pursuant to a warrant. Id. at 283. Polizzi said nothing, but nodded, opened the driveway gate for the agents, and drove inside.

The officers found nothing unexpected during their initial "safety search." Polizzi's wife became "hysterical" as the officers questioned the couple and their youngest son, then sixteen, in the kitchen, id. at 286, 296, 592-98, 742; she wondered whether whatever happened might have been caused by a friend of one of her sons. Id. at 286.

Polizzi fully cooperated with the agents, id. at 174, informing them that there was a family computer in the basement; it was seized. Id. at 285. This computer had no forbidden images on it. Id. at 518.

After fifteen to twenty minutes of trying to calm his "extraordinarily upset" wife, Polizzi told the agents there were additional computers in the detached garage. Id. at 276, 746; see id. at 1049. But see id. at 294. Two agents escorted him there, id. at 291-96; the two others remained behind with Polizzi's family to "make sure [his wife] was okay." Id. at 296.

On the staircase leading up to the rooms on the second floor of the garage, Polizzi informed the officers that "[t]his is where are [sic] I look at the children." Id. at 687. It was, he said, himself and not his sons who had downloaded the images. Id. at 313. Polizzi then asked them what could be done to stop the child abuse depicted: " `What are we going to do about this?' " Id. at 1367, 1379. Inside the two upstairs rooms-one with two doorlocks and the other with three, to which he alone had keys-he showed the agents the computers they sought. Id. at 145-47, 300, 686.

Polizzi was then questioned by the agents. Upon being read Miranda warnings, id. at 306, he signed two forms stating that he was waiving his rights and was willing to talk without an attorney present. Id. at 309, 312. Polizzi then gave the following statement, which the agents wrote down and he signed at 8:40 p.m. Id. at 156, 305-19.

I, Peter Polizzi, Senior, being duly sworn and deposed says I am 52 years old, having been born on ... [19]53. I live with my family at ..., Glendale, New York, with my family.
I am here giving this statement to Detective Forrestal and Special Agent Danielle Massineo having been made no threats or promises to do so. Some time in February or March, 2005, I received an email in my AOL email account, ppoli...@ aol. com 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. The number is....
After I joined, I would visit ever [sic] 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's a Maxtor 300 gig that I bought new about six months ago. I have another external hard drive that I used and transferred everything over from an 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 on Cypress and Weirfield. I had bought it new about two years ago. It was the black tower where I pointed to the Detective Forrestal at my desk. I'm not sure how may [sic] 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 email that I have so I know what they are.
I do have anti-virus software, it's in my computer, and 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 two page handwritten statement and I swear that it is all true.

Id. at 317-18.

Over 5,000 digital images and some motion videos of child pornography (in addition to adult pornography) were found stored on the garage computers and three external hard drives. They had been downloaded over a period of at least four years, id. at 145-46, 349-50; the agents found a list of child pornography search terms dated June 9, 2001.

3. Indictment

Polizzi was later arrested and charged with twelve counts of receipt and twelve counts of possession of sixteen different photos and videos he had downloaded from the Hardcore website. See Arrest Warrant, Jan. 12, 2006, Docket Entry No. 4. The receipt counts charged him with receiving two illicit images on February 20, 2005, two on March 5, 2005, four on March 16, 2005, and four on March 20, 2005. The possession counts charged him with possessing on November 16, 2005, the day his home was searched, twelve prohibited images or videos. He was charged for both receipt and possession of several of the images: Counts One and Twenty were based on the same depiction, as were Counts Three and Eighteen, Four and Nineteen, Seven and Twenty-Three, Eight and Twenty- Four, Eleven and Twenty-One, and Twelve and Twenty-Two. See Superseding Indictment, Docket Entry No. 35. Upon motion by the government, Count Thirteen was later dismissed. See Govt.'s Letter to Dismiss Count Thirteen, Docket Entry No. 62.

4. Motion to Dismiss Indictment

Defense counsel filed a Motion to Dismiss the Indictment, arguing that child pornography statutes were required to have an element of scienter-whether present in the language of the statute or implied by the courts, see, e.g., United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994)-to prevent the prosecution of the morally innocent. See Def.'s Mot. to Dismiss Indictment 1, Apr. 5, 2007 ("[T]he instant prosecution violates the United States Constitution because it seeks to prosecute defendant without the necessity of a culpable mental state or scienter requirement"); see also Def.'s Letter Br. 2, Mar. 14, 2008, Docket Entry No. 135 ("[T]he possibility that a defendant who had not actively sought prohibited visual depictions might still be convicted of knowingly receiving child pornography under § 2252(a)(2) ... presents a potential pitfall to the statute's constitutionality."). Because Polizzi's history of child abuse and psychiatric conditions had caused him to passively hoard images without any "evil intent," the defense argued, his lack of moral culpability rendered the statute unconstitutional. Id. at 8-10. The government opposed, citing X-Citement Video, 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372, for the proposition that under "settled caselaw ... the term `knowingly' as used in 18 U.S.C. § 2252 does impose a scienter requirement mandating that a defendant have knowledge that the material at issue contains sexually explicit matter and that underage performers are depicted." See Govt.'s Reply, Apr. 19, 2007, Docket Entry No. 48. The motion was orally denied. Hr'g Tr. 8, Apr. 27, 2007.

5. Jury Charge

a. Affirmative Defense of Insanity

At trial the only contested issue was Polizzi's affirmative defense of legal insanity. See 18 U.S.C. § 17. Polizzi admitted collecting child pornography and described at length how and why he began to do so. He contended that his obsessive-compulsive disorder and hoarding behavior, combined with the trauma he re-experienced upon seeing the images of abused children, caused him to reflexively collect child pornography in a misguided attempt to "help the children." See Part II.B.6.b, infra.

The definition of "legal insanity" thus assumed importance, and, in particular, it raised the question of defendant's ability to appreciate the wrongfulness of his acts. The parties' proposed jury instructions on the issue were sharply contrasting. The court issued its own charge, to which there were no objections. See United States v. Polizzi, 545 F.Supp.2d 270 (E.D.N.Y.2008).

b. Mandatory Minimum Sentence

Before, during, and after trial, defense counsel repeatedly sought to have the jury informed of the five-year mandatory minimum sentence applicable to the receiving counts and objected to the lack of such an instruction. See, e.g., Def.'s Letter, Sept. 7, 2007, Docket Entry No. 71 ("I do wish that the Court informs the jury of the statutory minimum and maximum sentences. I would leave it to the Court's discretion as to the most appropriate time to inform the jury."). The government opposed, arguing that a 2004 decision by the Court of Appeals for the Second Circuit, United States v. Pabon-Cruz, 391 F.3d 86 (2d Cir.2004), constituted binding authority preventing such an instruction. See Govt.'s Letter Br., Sept. 6, 2007, Docket Entry No. 70.

Given the proximity to trial and the parties' need to prepare sufficiently in advance, the court issued its decision from the bench denying Polizzi's motion. In light of Pabon-Cruz, 391 F.3d 86, the court ruled that it and the parties were prohibited from informing the jury of the sentence during the voir dire or trial. Hr'g Tr. 3, 19, Sept. 10, 2007. Had the court indicated that it would have informed the jury, the Court of Appeals for the Second Circuit almost certainly would have summarily granted a writ of mandamus filed by the government based upon Pabon-Cruz. See Part IV.E.1, infra. Because application for a writ would have delayed the case, the court declined to inform the jury of the applicable mandatory minimum and denied defendant's motion. See Hr'g Tr., Sept. 10, 2007.

Counsel for the defendant then requested an alternative instruction informing the jurors simply that a guilty verdict would necessarily result in imprisonment. It was also denied. Id. at 20 ("I would suggest, your Honor, that even instructing the jurors that there is a potential for prison or that there's a likelihood of imprisonment ...."); see also id. at 19 ("I would just say that ... I've read the [ Pabon-Cruz ] case and I understand the Court's feelings about it, is that I think it's very important for the Court to-for the jurors to understand the seriousness of the charges"). Granted instead was the government's in limine motion precluding any discussion by counsel of the mandatory minimum or maximum terms of imprisonment and the consequences of a verdict of legal insanity. Id. at 3.

At the close of the government's case, defendant's Rule 29 motion to set aside the verdict was denied. Trial Tr. 717; see Fed.R.Civ.P. 29. Rejected as well was defendant's motion at the close of the evidence to dismiss based on an insufficient prima facie case. Trial Tr. 1329.

The jury was not informed before rendering its verdict of the sentence a conviction on the receiving counts entailed. It was specifically instructed that it should not consider sentencing when deciding on a verdict. See Jury Charge 21 ("The question of possible punishment of the defendant is of no concern to you and should not enter into or influence your deliberations. The duty of imposing sentence rests with the court.").

After trial, defendant renewed his objection to the court's decision not to grant the "defense request to present the jurors with information regarding the statutory minimum sentence in light of the Second Circuit opinion in United States v. Pabon-Cruz, 391 F.3d 86 (2d Cir.2004)." Def.'s Letter Br., Oct. 10, 2007, Docket Entry No. 87. In his Rule 33 motion for a new trial, see Fed.R.Crim.P. 33, Polizzi again protested the court's failure to so inform the jury:

Since the advent of mandatory minimums, it can no longer be assumed that jurors are aware of the consequences of a guilty verdict.... The mandatory minimum can be communicated quickly and clearly in a brief sentence and it makes sense to protect the defendant from an undeserved draconian term.... To properly perform their role, jurors should be thus informed, when applicable, that a minimum sentence is mandated upon their finding of guilt.

Def.'s Mot. to Vacate J. 25-26, Docket Entry No. 123.

6. Trial

At trial, defendant's knowing receipt and possession of the pornographic images and the fact that the images depicted minors engaging in sexually explicit conduct were not disputed. The still photos and moving video were shown to the jury in brief flashes on a courtroom screen to avoid unnecessary prejudice.

To satisfy the federal Insanity Defense Reform Act ("IDRA"), Polizzi had to prove by clear and convincing evidence that he was legally insane when the offenses occurred: that he 1) had a severe mental disease or defect at the time he received and retained the images; and 2) as a result he had been "unable to appreciate the nature and quality or the wrongfulness of his acts." 18 U.S.C. § 17.

Focusing on Polizzi's childhood sexual abuse through his testimony, the defense emphasized the abuse's lasting psychological effects as manifested in his post-traumatic stress and obsessive-compulsive disorders. Defendant contended that when he first accidentally came across the child pornography, he had re-experienced his own abuse and obsessively began to collect as many photos as he could-to help the children. Trial Tr. 1069-70 ("I have been collecting, the material that I've been collecting, every time I was on the internet, collect anything I find that was not appropriate to see it [sic], in my opinion should not be there, I save all of them, all the materials I come across."). According to defense counsel,

Mr. Polizzi was doing what he believed to be right. He could not appreciate that downloading pictures of the children was wrong. What is wrong, what Mr. Polizzi knows is wrong ... is child abuse.... Mr. Polizzi, in a wrong way maybe, but in his way because of his psychological trauma, is trying to figure out a way to stop child abuse.

Id. at 1368; see id. at 782.

Two defense experts, Dr. Eric Goldsmith and Dr. Lisa Cohen, testified as to Polizzi's mental condition. Dr. Naftali Garcia Berrill provided expert evidence in rebuttal for the government. Their opinion on whether Polizzi was "legally insane" was not permitted. See id. at 1215-16; Fed.R.Evid. 704(b) ("No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone."). The experts, however, were permitted to opine on whether Polizzi "did or did not have the defect or disease relied upon as a defense." Jury Charge 19.

a. Polizzi's Testimony

Polizzi credibly testified without contradiction and in detail to the severe sexual abuse he had suffered in Sicily as a child. His distress in reliving the events was evident. A recess was required several times when he broke down while he was on the stand. Trial Tr. 1047; see id. at 959, 998. When the first charged photo was shown to the jury, Polizzi suffered an acute anxiety attack and was taken by ambulance to a hospital. Id. at 397-99. The trial continued the following day. To avoid another breakdown, Polizzi removed himself from the courtroom while the sixteen images of child pornography were shown to the jury. Id. at 405.

Polizzi testified that he had originally learned of Internet child pornography accidentally, in 2001 or before, through a "pop-up" while visiting an adult pornography website. Id. at 1046. " `Pop-up' windows are windows containing notifications or advertisements that appear on the screen, usually without any triggering action by the computer user." 1-800 Contacts, Inc. v. WhenU.com, 309 F.Supp.2d 467, 476 n. 18 (S.D.N.Y.2003). In his written statement to the police, he said he had later discovered the Hardcore website after receiving an email in his AOL account.

The images, he testified, shocked and horrified him. See Trial Tr. 1178, 1230. Seeing such graphic depictions reminded Polizzi of being raped and molested in Sicily. Id. at 1046 ("Oh, boy. I see my childhood, the event of the abuse happened over and over."). Strangely, he believed he might be able to find a photograph of himself: "Oh, my God. When I used to see this material I used to see myself in there, I look for my picture and my uncles [sic]." Id. at 1048.

He said he knew that child pornography was wrong, but he believed the online images were legal. Had they been illegal, he reasoned, such "garbage" would not be available on the Internet. Id. at 1105. Hence he had used his real name, email address, street address, and credit card number to pay the membership fee to join Hardcore. Id. at 152, 276, 317, 368. Despite the fact that many websites themselves cautioned that their material "was not legal in many countries," id. at 155, 253, he contended that he had not understood that his acts-the downloading of the pictures-were wrong. Id. at 1090. He said one reason for his downloading was to stop other children from being abused as he himself had been abused. Hence his first statement to the FBI agents was, " `[w]hat are we going to do about this?' " Id. at 1367, 1379. What he meant by that question, he later explained, was that

[W]hoever put this kind of material in there should be brought to justice because this is not right, because no one close to me should not have cause [sic] to others, because my life all the fear, all the nightmares, and everything else involved comes from this, and if it's nothing be done [sic] about this, a lot of innocent children will be raped because of this.

Id. at 1050.

Notwithstanding his desire to stop the depicted abuses, Polizzi never voluntarily informed law enforcement or anyone else of his collection. See id. at 858, 1138, 1180, 1309. Polizzi asserted that he did not trust the police on such matters after his experiences with the Italian carabinieri. Id. at 1048. He could not go to the police because of "[m]any reason [sic]. The reason that I was abused in [sic] this carabinieri, which in this country mean the uniform of the police. Second, oh, boy, I been-I was at gun point by police...." Id.

Polizzi also knew that if he "share[d] that information I would tell my even [sic] sickness, which I kept for 45 years and I could not." Id. at 1047. In order to explain why he had collected the photos, he would have to reveal his childhood sexual abuse, something he felt was impossible.

45 years it's inside of me, this has been like something unexchangeable [sic], only people that went through this, what this come from or what this causes and where you go from this. This is something that you keep inside because you cannot share with anybody because it's very, very, very awful thing to share with anybody and I don't wish my worse [sic] enemy what happened to me, why because is [sic] this is wrong.

Id. at 1062. When the FBI showed up in his driveway, Polizzi said he was relieved.

[I]nside I had the feeling of joyness. Why? Because finally the stuff that I have turn it over or say to the police ... they will find it there. To me it was a kind of relief. I also said because now that they find out I have to tell my secret, which was very hard because now finally my wife know [sic] I had secret.

Id. at 1048-49. Even after his arrest Polizzi did not immediately disclose his childhood sexual abuse to the police or anyone else. Not until six months into his post-arrest counseling ordered by Pretrial Services did he speak with a therapist about his childhood experiences, after learning of a woman who had spoken to her family about similar abuses with positive results. Id. at 1054.

When that happen, you know, make me felt [sic] that I was not alone in this, someone else be in the situation that I was, and regarding the information that we share there, by sharing this kind of information it was a kind of relief for her and I thought releasing this kind of information will be the same for me.

Id.

b. Dr. Lisa Cohen

Dr. Lisa Cohen, a clinical psychologist at Beth Israel Hospital conducting research with individuals accused of child sex crimes, was the first expert to testify. Id. at 766-902. She had administered a battery of neuropsychological tests to Polizzi and interviewed him twice; she also interviewed one of his sons. Id. at 771, 875. Test results showed that Polizzi had significant "impairment of executive function," the "collection of cognitive abilities that have to do with being able to use judgment to think in complex ways, to think in flexible ways, to monitor one's own behavior, impulse control." Id. at 774. In the four cognitive functioning tests, his scores were quite low- between 0.1 and 10.8 percentile-which Dr. Cohen attributed to possible brain injuries from Polizzi's car accidents; they also "showed memory problems." Id. at 773-77, 870. His overall IQ score was considered "borderline range of average intelligence." Id. at 1280-83. Dr. Cohen also evaluated Polizzi using the Yale-Brown Obsessive Compulsive Scale ("YBOCS"), "the standard measure of obsessive compulsive disorder." Id. at 778.

Dr. Cohen's final diagnoses were "significant cognitive impairment," id. at 783, and "obsessive compulsive disorder characterized by severe hoarding" with "limited insight" as defined in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition ("DSM-IV"). Id. at 882, 885. She did not evaluate Polizzi for post-traumatic stress disorder. Id. at 782, 882.

The "severe hoarding" Dr. Cohen identified referred to Polizzi's extensive and varied collections besides child pornography. In his rooms over the garage, Polizzi had collected and organized tens of thousands of baseball, soccer, hockey, frisbee, and football cards, movies, musical recordings, comic books, stamps, and coins; he had never sold any. Id. at 765, 860, 862; see id. at 900. Polizzi estimated he had 4,500 videos, 10,000 comic books, 10,000 baseball cards, 4,000 CDs, 4,500 coins, 3,000 stamps, 150 boxing cards, and 500 soccer cards. Id. at 888.

According to Dr. Cohen, Polizzi, like other hoarders, did not see his collecting as a problem. See id. at 889. He rationalized that his collections were "a good investment for his children," id. at 861, and talked with his sons of "one day" opening up a comic book store, id. at 749, 863, or a video store. Id. at 890. It was obvious, the expert declared, that such talk was only a dream; "people who hoard always think that they have a future use for the items that they're hoarding." Id. at 889.

Unlike most people with obsessive compulsive disorder ("OCD") who understand that their actions are not normal, Dr. Cohen found that "Polizzi had no insight into his obsessive compulsive disorder. He seemed to feel that it was all appropriate and reasonable behavior...." Id. at 873.

[N]o matter how many times I tried to explain the concept of obsessions and compulsions it was difficult for him to grasp. And the point of an obsession is that it should not make sense, it should be excessive and inappropriate. So he had a hard time differentiating from what was an appropriate concern and what was an excessive, inappropriate concern.

Id. at 856.

In the face of the government's repeated insistence that Polizzi's low cognitive test results were due to his "malingering," Dr. Cohen declared that she did not find that Polizzi was exaggerating his symptoms. See id. at 789 (defining malingering as "the intentional and conscious flaring of mental symptoms in order to gain what they call secondary gains or primary gains to gain something else."). Although she did not administer any specific validity tests, id. at 897, 1260, her testing included internal validity components. Id. at 830. Based on her interviews with Polizzi and one son, Dr. Cohen concluded that "if anything, he seemed to be minimizing his problems and that was not in his interest. It would be in his interest to maximize his problems. So, in my mind, he was not trying to manipulate me to present him as sicker than he was." Id. at 905; see id. at 898.

c. Dr. Eric Goldsmith

Dr. Eric Goldsmith, Polizzi's expert forensic psychiatrist, testified that he had diagnosed Polizzi with post-traumatic stress disorder ("PTSD") resulting from the sexual abuse defendant had suffered as a child. Id. at 1130 ff. Of the three experts, Dr. Goldsmith had spent the most time evaluating Polizzi. He had interviewed separately four of defendant's sons as well as his wife. Id. at 1131; see id. at 1176. Dr. Goldsmith had also prescribed medication for Polizzi's acute anxiety and PTSD symptoms. Id. at 1174. Medication was necessary, defendant testified,

[S]ince I have this nightmares, a lot of nightmares actually, when you have those nightmares when you have, when you see ... photos so, you know, you smell certain smells, the events come back and I told this nightmare that I have and told me if I slept well, when the time comes, when I go to sleep, I go to sleep very exhausted, because the crime that is involved, you know, the fear, it makes you, it takes everything out of you, which left you with very sadness and no kind of strength.

Id. at 1060.

Dr. Goldsmith corroborated Dr. Cohen's diagnosis of obsessive compulsive personality disorder as defined in the DSM-IV. Id. at 1134ff., 1186. He also found that Polizzi "has no awareness it is a problem for him." Id. at 1143. Polizzi was "very very difficult" to interview "because of his obsessive pathology[:] he ... gets stuck on a detail or particular issue and needs to retell the story over and over and over again...." Id. at 1136-37. It required "hours and hours" for Dr. Goldsmith to obtain a medical history.

It is reflective of some significant obsession compulsive pathology. It explains his behavior of just downloading hundreds and hundreds of images. It explains his behavior of collecting thousands and thousands of baseball cards. It explains his routinized behavior, the styling of how he communicates and how it is just obsessive and obsessive and repetitive and repetitive.

Id. at 1139; see also id. at 779 (Dr. Cohen noting the difficulty of interviewing Polizzi). The jury had the opportunity to witness defendant's repetitive oral behavior firsthand on multiple occasions when Polizzi was on the stand. Dr. Goldsmith also found that "[h]e has memory problems. He has difficulty in providing really specific information about times and dates. There has been a real problem throughout the course of the interviews with him. He has misinterpretations of statements. Sometimes you would ask him a question, he really doesn't understand what you are asking him and you have to re-ask it in a different way." Id. at 1184.

During his first sessions with Dr. Goldsmith, Polizzi did not disclose what had happened to him in Sicily. This was not surprising to the doctor, given "the type of trauma that [Polizzi] experienced," because of the issues of "humiliation and shame and fear [that] pervade the adult mind" in such a victim of "severe child sexual abuse." Id. at 1136-37. When informed of the abuse, Dr. Goldsmith found Polizzi credible:

And it is not only what he says, that he was abused, and how he says it, and how he gives it such rich detail, reflective of just a true autobiographical experience that's so convincing, but what is really convincing about why this is not a malingered post-traumatic condition is all of the clinical factors there follow the trauma and abuse that he could just not make up. It's the re-experiencing phenomena, the description of the flashbacks. It is not just saying I have flashbacks, but describing what he goes through in showing it to me in the office, when I interview him about this, and how literally his mind and body kind of separate and he begins to just follow like he's back in the experience that he shows all of this emotion that is just reflective of true experience.

Id. at 1153.

After Polizzi revealed his childhood sexual abuse, Dr. Goldsmith added a PTSD diagnosis, id. at 1157, which is considered a "major mental illness," based on the DSM-IV definition. Id. at 1257. In Dr. Goldsmith's opinion, Polizzi "when viewing child pornography on the Internet had a retraumatizing experience. In a regressed and obsessive state he downloaded and searched child pornographic images for evidence of victimization, something he had experienced as a child." Dr. Goldsmith's Addendum: Psych. Rep. 1, Jan. 2, 2007.

His ... level of sophistication, the way that his mind operates is again very concrete, extremely unsophisticated, old world ... when he first downloaded all of the information over the internet, he had this very unsophisticated idea, by taking it all down off the internet, it could be off the internet and nobody else could see it. Really just not sensible.... [T]he images overwhelms [sic] him emotionally and overwhelms any kind of rational thought that he had of what he was doing.

Trial Tr. 1162-63. His PTSD, the expert believed, had caused Polizzi to develop OCD: "[T]he obsessive pathology that he experiences, that he has in adult life, is really a way to control everything in his environment so that it doesn't hurt him." Id. at 1160.

Of sexual deviance in Polizzi Dr. Goldsmith found no trace. His first report, written before he learned of Polizzi's child abuse, did hypothesize that Polizzi had "possible low level deviant sexual arousal," but concluded he "[did] not confer high risk for future dangerous" and did not meet the DSM-IV criteria for pedophilia. Id. at 1150. At trial, Dr. Goldsmith explained why he had initially noted "low level sexual deviancy": because he had had no other explanation as to why Polizzi collected child porn. Id. at 1151-52.

[I]t seemed to me that the[re] credibly could be-could have been at that time some deviant interest, because individuals who are arrested for these crimes often have a large level of denial and don't share and admit to their deviance.... At that time Mr. Polizzi was presenting consistent with that and it just didn't make sense why he clicked on the images.

Id. at 1185. Once he learned of an alternative reason-Polizzi's childhood trauma-Dr. Goldsmith concluded that Polizzi in fact had no deviant sexual arousal.

In my previous report from June 9, 2006, I speculated that Mr. Polizzi's past behavior of downloading and viewing child pornography was perhaps related to sexually deviant thinking. However, after further assessment it is my opinion, with a reasonable degree of psychiatric certainty, that Pietro Polizzi's encounter with child pornography elicited a post-traumatic stress reaction. Pietro Polizzi credibly describes how the child pornography pictures triggered memories from the past. Consistent with his compulsive hoarding behavior he downloaded hundreds and hundreds of images. While viewing these images Pietro Polizzi describes it as if he was reliving his own childhood sexual abuse. He looked for signs of forced injuries on the victims and evidence for the perpetrators.
In summary, his behavior of downloading and viewing child pornography is directly related to his history of childhood sexual abuse and obsessive compulsive behavior. The images triggered painful traumatic memories that had been repressed for many years. This behavior was not related to sexually deviant thinking or pedophilia.... Mr. Polizzi does not pose a risk of sexual predatory behavior against children.

Dr. Goldsmith's Addendum: Psych. Rep. 5, Jan. 2, 2007; Trial Tr. 1169 ("[It's c]lear in my mind that he's not a pedophile ... He has no paraphilia [sexual interest in children in general], he has no deviant sexual arousal or interests.").

Like Dr. Cohen, Dr. Goldsmith did not believe Polizzi was malingering. Even though the doctor was aware that PTSD was frequently faked, Trial Tr. 1195 (noting that PTSD is "the most important area where malingering needs to be considered"), he concluded that "[n]one of the examiners and none of the testing and none of the data from the clinical exam identified that [Polizzi] was malingering." Id. at 1147.

d. Dr. N.G. Berrill

Dr. Naftali G. Berrill, a board-certified forensic psychologist, testified as the government's expert. Id. at 1217-1329. Polizzi initially attended Dr. Berrill's clinic for mandatory sex offender counseling as required by Pretrial Services. Id. at 1223. (Through a contract with the Department of Probation and Pretrial Services, Dr. Berrill's private practice assesses many defendants accused of sex offenses. Id. at 1221.) Polizzi participated in group counseling; Dr. Berrill did not treat him. Id. at 1240. Polizzi eventually requested that the court approve his transfer from the clinic to private counseling, citing the trauma he experienced during group therapy with other child sex offenders. It was approved. See Jan. 1, 2007 Order, Docket Entry No. 20.

After Polizzi had filed a notice of intent to raise the insanity defense, Dr. Berrill evaluated Polizzi for an hour at the government's request and administered several standard tests. One of his associated counselors wrote a report. Trial Tr. 1225, 1277. During his first interview with Dr. Berrill, Polizzi did not disclose his history of child abuse. Id. at 1229. Dr. Berrill later evaluated Polizzi again for an additional four hours during which Polizzi informed him of his past abuse; the doctor then wrote a second report himself, but never spoke with Polizzi's wife or sons. Id. at 1315.

Dr. Berrill initially diagnosed Polizzi as having an adjustment disorder with anxiety and possibly generalized anxiety disorder. Id. at 1232. Such conditions, in his opinion, "shouldn't interfere with someone's ability to think clearly." Id. at 1233. After the second interview, id. at 1244, his diagnosis remained the same: Polizzi had "no severe mental disease or defect," id. at 1243, 1246-48, only an "anxiety disorder." See Dr. Berrill, Psycho-Legal Eval. 20, Aug. 3, 2007.

On the witness stand, the doctor agreed that defendant had some obsessive-compulsive personality disorder "features," but not OCD itself. Trial Tr. 1255. Having OCD in any event does not prevent a person, in Dr. Berrill's opinion, "from being [able] to appreciate what they are doing or knowing ... is wrong." Id.

Dr. Berrill considered Polizzi's history of child abuse irrelevant because "psychological testing ... did not reveal a post-traumatic stress disorder." Id. at 1258, 1328. Had Polizzi suffered from PTSD, the doctor believed he would have avoided child pornography, not sought it out. The "criminal behavior" Dr. Berrill typically associated with PTSD, moreover, was an "explosive kind of behavior," not a prolonged quest. Id. at 1265.

His second report diagnosed Polizzi with "paraphilia" not otherwise specified (sexual interest in children in general), "hebophilia" (sexual interest in adolescents), and possible pedophilia (sexual interest in young children). Id. at 1233; see Dr. Berrill, Psycho-Legal Eval., Aug. 3, 2007. He gave no reasons for these conclusions in the report. Such diagnoses were appropriate, Dr. Berrill testified at trial, because

Based on one of the tests that we had given and based [on] Mr. Polizzi acknowledging that he was looking at both young kids and adolescents in terms of the child pornography that he collected, number one, the tests results suggested first and foremost he was likely interested in adolescent girls, that is referred to clinically as Hebephilia.... I wasn't really sure whether he was interested in young children. I really couldn't tell based on my interview with him. He denied or disavowed an interest in all of this but nonetheless, testing raised some issues about teenagers and the fact that he collected pictures of kids who were younger than 10 raises a distinct possibility that was an area of interest.

Trial Tr. 1233-34.

The doctor was concerned that Polizzi had "provided contradictory information during the evaluation," id. at 1301, denying all sexual interest in children, yet admitting he had collected child pornography for years. Polizzi had received a low score on the Abel Assessment, a test designed "to ascertain whether or not somebody is sexually interested in kids." Id. at 1297. He had "not endorse[d] items that reflect the types of rationalization or excuses frequently used by individuals sexually involved with kids," id. at 1300, but his answers on Dr. Berrill's Internet activity questionnaire were suspicious. There, Polizzi had checked several boxes indicating he had looked at child pornography "to avoid having sex with children" and "out of curiosity," which had raised concern in the doctor's mind. Id. at 1116-18. Dr. Berrill did not explain the questions to Polizzi nor did he ask him why he had marked the boxes. Id. at 1078, 1394.

On the stand, Polizzi described what he had meant by his checkmarks- that he looked at the photos "to avoid [stop] [child abusers from] having sex with kids"-and that he was "curious" to find out how the photos came to be on the Internet, i.e., to find out who was producing them. Id. at 1115-18 (testifying that he had "[c]uriosity what was up there, what was on that box. Why this was over there. Why this material. It is a lot of do you understand there's a lot of material, understand where this comes from, whose behind this, the curiosity, you know, why are they doing this.").

Although Dr. Berrill never mentioned malingering specifically in either of his reports, at trial he testified at length about Polizzi's possible exaggeration of his symptoms. Id. at 1248ff., 1322 ("I am not sure I said he was malingering. I said one has to imagine that that is a possibility."). The doctor pointed out that Polizzi's second MMPI-2 diagnostic test included several true-false answers reporting paranoid or delusional symptoms, which Polizzi had not reported on his first test a year before. Id. at 1251, 1327, 1253 ("[I]t raises the specter of, you know, Mr. Polizzi trying to exaggerate some of the symptoms he's having right now. He's exaggerating the level of distress or exaggerating the kinds of problems he is encountering."). Dr. Berrill did note that Polizzi had never complained of any delusions or hallucinations. Dr. Berrill, Psycho-Legal Eval. 18, Aug. 3, 2007. Because Dr. Cohen had not conducted any independent validity testing, Dr. Berrill considered her cognitive testing results "worthless." Trial Tr. 1260.

Dr. Goldsmith rejected those malingering-related concerns cited by Dr. Berrill. That Polizzi had answered a few multiple-choice questions in odd ways was irrelevant: "you can't take one question from 567 questions and make anything of it." Id. at 1211. Such multiple-choice tests "are not great at detecting PTSD," Dr. Goldsmith warned, "but they have some symptomatology that ... can come out with PTSD." Id. at 1205. Such tests were certainly not "substitute[s] for psychotherapy or psychiatric evaluations." Id. at 1211. To Dr. Goldsmith it "ma[de] perfect sense" that some of Polizzi's answers had changed over the course of the year; his PTSD symptoms had recently worsened because "as he tells the story, as he exposes the trauma ... that is when all of the symptoms come up, and that's when the nightmares come about." Id. at 1204. Polizzi "was not experiencing the active symptoms of post- traumatic stress disorder in May of 2006, when he first took the MMPI-2. While taking the second MMPI-2 a year later, he was in the [midst] of a severe PTSD condition, talking about this with myself and other examiners, Dr. Berrill, bringing up all the active symptoms." Id. at 1212.

7. Jury Verdict

The jury found Polizzi guilty on all counts. During jury deliberations, it was evident from the questions it sent through the marshal that the jury had rather quickly decided the issue of guilt. Determining whether Polizzi had carried his burden of proving legal insanity took the jury several days during which jurors reviewed the exhibits concerning Polizzi's mental condition. Id. at 1439.

The jury ultimately rejected Polizzi's defense of legal insanity. It was justified in doing so. Despite defendant's mental problems, a jury could find that he was able to appreciate the nature and quality and the wrongfulness of his acts (i.e., downloading and possessing images of child pornography). See 18 U.S.C. § 17. At the time he obtained and viewed the images, Polizzi testified, he believed he was not violating the law or morality. Once he was told his actions were illegal, he understood they were wrong. See Trial Tr. 1047, 1105 ("Now I know it's wrong, but back then I didn't-I didn't know it was wrong"); id. at 667 ("When we [the police] explained the circumstances to him of what possessing child pornography was, what it actually meant, he was remorseful. He understood that it isn't just possessing pictures, we spoke to him about that. It wasn't just having these images and looking at them that, it was damaging children and he became remorseful."). Because "[i]gnorance of the law is no excuse," Jury Charge 9, defendant's mental problems did not support a verdict of not guilty by reason of insanity.

8. Post-Verdict Proceedings

After the jury was discharged, members of the jury-all of those jurors who spoke when invited to do so by the court-acknowledged the defendant's mental illness, recognized his need for mental health treatment, and felt that imprisonment was inappropriate in his case. See Trial Tr. 1454-59. Upon being informed by the court that Polizzi would mandatorily be subject to at least five years' imprisonment, see 18 U.S.C. § 2252(b)(1), the jurors who evinced an opinion declared they would have voted to find the defendant not guilty by reason of legal insanity-causing at least a mistrial-had they known of the mandatory minimum. They wanted treatment and close supervision to prevent a recurrence, not a long prison term.

THE COURT: You [the jury] are discharged. However, stay here 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 th[at] 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.

Do you have any view, juror one?

JUROR NO. 1: No.

THE COURT: Two?

JUROR NO. 2: No.

THE COURT: Three?

JUROR NO. 3: No.

THE COURT: Four?

JUROR NO. 4: No.

THE COURT: Five?

JUROR NO. 5: No.

THE COURT: Six?

JUROR NO. 6: No.

THE COURT: Seven?

JUROR NO. 7: No.

THE COURT: Eight?

JUROR NO. 8: No.

THE COURT: Nine?

JUROR NO. 9: [sic].

THE COURT: Ten?

JUROR NO. 10: Yes, I do.

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 him.

THE COURT: You agree with juror ten?

JUROR NO. 11: Yes.

THE COURT: Juror twelve?

JUROR NO. 12: No.

THE COURT: You prefer not to speak?

JUROR NO. 12: Yes.

THE COURT: Now, as we discussed during the earlier preparation for the case a problem that doesn't arise very frequently, and that's what's called jury nullification. The power of a jury, if it doesn't like a rule of law, to ignore the instructions and just acquit, or, conversely, to convict for a higher [sic] crime. That's called nullification, and the judge is not permitted and should not suggest to the jury nullification. In fact, I told you, you have to follow the law. You remember that?

THE JURORS: Yes.

THE COURT: But some jurors do under some circumstances we believe nullify.
Now, the question comes up in this way: 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: 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 that 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.

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.
Do any of you wish to say anything else about this case? I know it was very difficult and I do want to thank you. I know you gave it a great deal of attention.
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.

Trial Tr. 1454-59. Defense counsel reports that he spoke with two of the jurors, Jurors No. 9 and No. 11, by telephone after the verdict and that they indicated to him there was nearly universal support among the jurors for a non-jail disposition for Mr. Polizzi due to the unique circumstances of his case. Def.'s Mem. of Law Regarding the Sentencing of Peter Polizzi 3 n. 2, Feb. 18, 2008, Docket Entry No. 127; Def.'s Letter 2 n. 3, Dec. 5, 2007, Docket Entry No. 114.

Pursuant to 18 U.S.C. §§ 3143(a)(2), 3142(f)(1)(A), and 3156(a)(4)(C), which require remand to await sentencing, defendant has been incarcerated without bail since the jury verdict.

Post-verdict, further briefs and oral argument on the Rule 33 motion for a new trial were presented. See Def.'s Mot. to Vacate J., Docket Entry No. 123; Govt.'s Br., Mar. 14, 2008, Docket Entry No. 134. The scienter issues were also thoroughly explored by the parties. See Govt.'s Br. at 2-6; Def.'s Letter Br., Mar. 14, 2008, Docket Entry No. 135.

III. Constitutional Objections to the Statute

A. Fundamental Problem with Passive Receiving and Possessing Without Evil Intent as Charged Under Statute

1. Generally

The provisions Polizzi is charged with violating and found guilty of are 18 U.S.C. §§ 2252(a)(2) and 2252(a)(4)(B). Sections 2252 and 2252A of Title 18 are functionally the same; both criminalize "knowingly" receiving or possessing child pornography, among other child pornography crimes. Compare 18 U.S.C. § 2252(a)(4)(B) with § 2252A(a)(5)(B); compare 18 U.S.C. § 2252(a)(2) with § 2252A(a)(2). Section 2252 was originally enacted in 1978, Pub.L. No. 95-225, § 2(a), 92 Stat. 7 (1978), as part of the Protection of Children Against Sexual Exploitation Act of 1977, the first federal statute prohibiting the use of children in pornographic materials. Pub.L. No. 95-225, 92 Stat. 7 (1978) (codified as amended at 18 U.S.C. §§ 2251-52, 2256 (2006)). Section 2252A was added to Title 18 by Congress as part of the Child Pornography Prevention Act of 1996 and included expanded provisions concerning virtual child pornography, which were struck down as unconstitutional in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002); see also United States v. Williams, 444 F.3d 1286 (11th Cir.2006), cert. granted, 549 U.S. 1304, 127 S.Ct. 1874, 167 L.Ed.2d 363 (2007) (finding the pandering provisions of the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003, Pub.L. No. 108-21, § 501, 117 Stat. 676, 676-78 (hereinafter PROTECT Act), enacted in response to Free Speech Coalition, unconstitutionally overbroad and vague). Precedents concerning both provisions must be considered on all issues of constitutionality.

An analysis of the operational elements of sections 2252(a)(2) and (a)(4)(B) suggested constitutional issues serious enough to necessitate the additional briefing requested by the court. See Ct.'s Order for Additional Briefing, Feb. 12, 2008, Docket Entry No. 125 (requesting assistance in preparation for ruling on defendant's Rule 29 and Rule 33 motions); Govt.'s Br., Mar. 14, 2008, Docket Entry No. 134; Def.'s Br., Mar. 14, 2008, Docket Entry No. 135.

The provisions may be void for vagueness and overbreadth because they appear to potentially criminalize innocent conduct. By its terms, the statute requires only knowledge, not intent. "[T]he government [is] only required to prove that [defendant] knowingly-not willfully-received or possessed the images." United States v. Irving, 452 F.3d 110, 122 (2d Cir.2006). Yet knowledge of the nature of the images may be acquired deliberately, or inadvertently, before or after receipt and possession. The statute makes no distinction between advertence and inadvertence. The possible passivity of computer-based possession and receipt poses by its lack of scienter a potential due process violation. The statute itself recognizes that it may constitute a lurking trap for the innocent; it includes a limited "safe harbor" provision, but one that is insufficient to comport with due process requirements. See 18 U.S.C. § 2252(c).

The statute's potential to criminalize benign conduct arises in the Internet context for computer-based crimes of possession and receipt. For traditional crimes of receiving and possessing (such as of drugs or stolen goods), proving knowledge is normally sufficient to establish scienter; you know, before you accept a packet of cocaine or a box off the back of a hijacked truck, that you are committing a crime by lifting up your arms, receiving, and taking possession. In contrast, defining Internet-facilitated computer "possession" and "receipt" as all- encompassing boundaries of criminality becomes conceptually challenging since the forbidden objects are bits of data in electromagnetic form that can be transferred instantaneously and automatically by wire or wirelessly, and stored automatically in a multitude of places and in various electronic forms.

Knowledge of the illegal nature of the contents of the electronic data may be obtained simultaneously with receipt or be acquired at a later time. Once child pornography images are viewed, the computer user knows he or she has received the pictures and knows he or she now possesses them, even if they were never sought or wanted. The danger that the statute criminalizes innocent conduct-accidental or unintentional receipt and possession-is grave, and the penalties steep.

Polizzi objected to the statute's lack of scienter in his pretrial Motion to Dismiss the Indictment. See Def.'s Mot. to Dismiss Indictment 1, Apr. 5, 2007 ("[T]he instant prosecution violates the United States Constitution because it seeks to prosecute defendant without the necessity of a culpable mental state or scienter requirement"). His motion was based on the argument that his mental condition had caused there to be "no knowing or volitional action [his] part." Id. at 10. That ground is different from the one now being discussed.

More to the point, he now contends that the passivity of the statutory requirements presents a potential constitutional pitfall. See Def.'s Br. 2, Mar. 14, 2008. Citing United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994), the government argues in opposition that the required mens rea-knowing-as applied to the statute by X-Citement Video is sufficient; and the evidence showed that Polizzi actively sought out the images he possessed. See Govt.'s Br. 4-5, Mar. 14, 2008.

Appellate court precedent reading criminal intent or an equivalent into the statute as a basis for approval appears to preclude this court from ruling the statute unconstitutional as applied and facially. See, e.g., X-Citement Video, Inc., 513 U.S. at 78, 115 S.Ct. 464; United States v. Matthews, 209 F.3d 338, 351 (4th Cir.2000); cf. United States v. Coreas, 426 F.3d 615, 617 (2d Cir.2005) (per curiam) (denying petition for rehearing because the panel was forced by precedent to affirm defendant's conviction). Appellate courts should reconsider the constitutional issues of whether "knowledge" obtained when an image appears on the computer screen constitutes sufficient mens rea for section 2252 charges and, if not, whether an intent to acquire and possess child pornography requirement may be properly implied.

2. Definitions

As a preliminary matter, several technical words should be defined. Online child pornography (or any other electronic image) is typically received and viewed via email, downloading, or file sharing, or viewed on an Internet website. Unwanted or unsolicited emails, popularly termed "spam," are transmitted daily in the billions. See United States v. Kelley, 482 F.3d 1047, 1055-56 (9th Cir.2007) (Thomas, J., dissenting). Many carry commercial messages, are dubious or disguised in nature and origin, and contain pornographic images, including child pornography, or links to pornographic websites. Id. at 1056. In one study, "more than 40 percent of all pornographic spam either did not alert recipients to images contained in the message or contained false subject lines, thus `making it more likely that recipients would open the messages without knowing that pornographic images will appear.' " Id. (quoting United States Senate Committee on Commerce, Science, and Transportation, CAN- SPAM Act of 2003, S. Rep. No. 108-102, at 4 (2003), 2004 U.S.C.C.A.N. 2348, 2351).

Opening files-whether received by email or available on a website-in order to view the images may be automatic or manual. Files deliberately downloaded from the Internet and intentionally saved by the user should be distinguished from files automatically stored by the web browser in temporary cache files. See generally Ty E. Howard, Don't Cache Out Your Case: Prosecuting Child Pornography Possession Laws Based On Images Located in Temporary Internet Files, 19 Berkeley Tech. L.J. 1227 (2004). "The term `downloading' generally refers to the act of manually storing a copy of an image on the hard drive for later retrieval." United States v. Romm, 455 F.3d 990, 993 n. 3 (9th Cir.2006), cert. denied, 549 U.S. 1150, 127 S.Ct. 1024, 166 L.Ed.2d 772 (2007). In contrast, "[t]he internet cache ... is an area [on the hard drive] to which the internet browser automatically stores data to speed up future visits to the same websites." Id.

While you surf the Internet, the computer's "web browsers keep copies of all the web pages that you view, up to a certain limit, so that the same images can be redisplayed quickly when you go back to them." Id. at 993 n. 1 (quoting Douglass Downing, et al., Dictionary of Computer and Internet Terms 149 (Barron's 8th ed.2003)). It is possible for sophisticated computer users to access and even "delete" the automatically stored internet cache files, but computer forensic experts are often able to discover any files so deleted. See Howard, supra, at 1228; Steve Silberman, The United States of America v. Adam Vaughn, Wired News, Issue 10.10, Oct. 2002, at 3 ("If your computer is searched, even files that have been dragged to the trash or cached by your browser software are counted as evidence. Some offenders have been sent to jail for `possessing' images that only a computer-forensics technician can see."). But cf. 18 U.S.C. § 2252(c) (providing for the limited affirmative defense discussed below).

For those concerned with protecting themselves or their families from inappropriate online material either from unsolicited emails or Internet websites, there is no effective way a computer user can block or screen all illicit images that are on, or can be sent through, the Internet. Fully protective technology does not exist. As Justice Stevens pointed out in 2003,

The unchallenged findings of fact ... reveal fundamental defects in the filtering software that is now available or that will be available in the foreseeable future. Because the software relies on key words or phrases to block undesirable sites, it does not have the capacity to exclude a precisely defined category of images. As the District Court explained:
[T]he search engines that software companies use for harvesting are able to search text only, not images. This is of critical importance, because [the challenged statute] covers only "visual depictions." Image recognition technology is immature, ineffective, and unlikely to improve substantially in the near future. None of the filtering software companies deposed in this case employs image recognition technology when harvesting or categorizing [web site addresses]. Due to the reliance on automated text analysis and the absence of image recognition technology, a Web page with sexually explicit images and no text cannot be harvested using a search engine. This problem is complicated by the fact that Web site publishers may use image files rather than text to represent words, i.e., they may use a file that computers understand to be a picture, like a photograph of a printed word, rather than regular text, making automated review of their textual content impossible. For example, if the Playboy Web site displays its name using a logo rather than regular text, a search engine would not see or recognize the Playboy name in that logo.
Given the quantity and ever-changing character of Web sites offering free sexually explicit material, it is inevitable that a substantial amount of such material will never be blocked. Because of this "underblocking," the [challenged] statute will provide [consumers] with a false sense of security without really solving the problem that motivated its enactment. Conversely, the software's reliance on words to identify undesirable sites necessarily results in the blocking of thousands of pages that "contain content that is completely innocuous for both adults and minors, and that no rational person could conclude matches the filtering companies' category definitions, such as `pornography' or `sex.' "

United States v. American Library Association, Inc., 539 U.S. 194, 221, 123 S.Ct. 2297, 156 L.Ed.2d 221 (2003) (Stevens, J., dissenting) (footnotes and citations omitted). To Justice Stevens, any law that would "mandate[ ] this vast amount of `overblocking' abridges the freedom of speech protected by the First Amendment" and constitute a "statutory blunderbuss." Id. Even though a plurality of the Court in American Library concluded that Congress could constitutionally require, as a condition for receipt of federal subsidies, public libraries to install Internet filtering software to block obscene images and child pornography, no one disputed filtering's substantial limitations.

A year later in Ashcroft v. American Civil Liberties Union, Justice Breyer repeated Justice Stevens' concerns:

Filtering software, as presently available, does not solve the "child protection" problem. It suffers from ... serious inadequacies that prompted Congress to pass [other] legislation instead of relying on its voluntary use. First, its filtering is faulty, allowing some pornography material to pass through without hindrance.... [T]he software alone cannot distinguish between the most obscene pictorial image and the Venus de Milo. No Member of this Court [has] disagreed [with this proposition].

....

[S]oftware blocking lacks precision, with the result that those who wish to use it to screen out pornography find that it blocks a great deal of material that is valuable.... The software "is simply incapable of discerning between constitutionally protected and unprotected speech." It "inappropriately blocks valuable, protected speech, and does not effectively block the sites [it is] intended to block."
Nothing in the District Court record suggests the contrary. No respondent has offered to produce evidence at trial to the contrary. No party has suggested, for example, that technology allowing filters to interpret and discern among images has suddenly become, or is about to become, widely available. Indeed, the Court concedes that "[f]iltering software, of course, is not a perfect solution to the problem."

Ashcroft v. ACLU, 542 U.S. 656, 684-86, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004) (citations omitted) (Breyer, J., concurring in the judgment).

Despite advances in technology, fully effective anti-child pornography software would probably have to eliminate all visual images, excluding content subject to First Amendment protection; otherwise, it would allow some forbidden material to get through. See extensive literature on screening to protect children using computers, e.g., Cheryl B. Preston, Zoning the Internet: A New Approach to Protecting Children Online, 2007 B.Y.U. L.Rev. 1417; Heidi Wachs, Note, Permissive Pornography: The Selective Censorship of the Internet Under CIPA, 11 Cardozo Women's L.J. 441 (2005); Jared Chrislip, Filtering the Internet like a Smokestack: How the Children's Internet Protection Act Suggests a New Internet Regulation Analogy, 5 J. High Tech. L. 261 (2005).

3. Operative Elements of the Receipt and Possession Statutes

It is only the operative words of the indictment and statute, the elements of the crime, and the operative facts constituting the criminal offense so defined that count in determining guilt, not what actually happened. Under what is sometimes called the " `categorical approach,' " a court "look[s] to the elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner's crime." Wala v. Mukasey, 511 F.3d 102, 107 (2d Cir.2008) (quoting Canada v. Gonzales, 448 F.3d 560, 565 (2d Cir.2006)); see James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007); Brooks v. Ricks, No. 02-CV-1671, 2003 WL 22956962 (E.D.N.Y. Oct. 20, 2003); People v. Olah, 300 N.Y. 96, 89 N.E.2d 329, 330 (1949). As the Supreme Court put the matter in James,

[We] employ the " `categorical approach' " that this Court has taken with respect to other offenses.... Under this approach, we " `look only to the fact of conviction and the statutory definition of the prior offense,' " and do not generally consider the "particular facts disclosed by the record of conviction." Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (quoting Taylor [ v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)] ). That is, we consider whether the elements of the offense are of the type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of this particular offender.

127 S.Ct. at 1593-94 (quotations omitted) (emphasis added).

The phrases "categorical approach," "operative facts," "elements of the offense," "fact that is of consequence to the determination of the action," and "essential elements of guilt" are used in describing a principle fundamental to American criminal law: the elements of a criminal statute cannot be expanded or narrowed by adding or subtracting from the operative elements of the offense. In Olah, the eminent expert on criminal practice, Judge Stanley H. Fuld, put the matter succinctly: "[T]he crime, i.e., the operative facts which constitute the criminal offense as defined by the statute, cannot be extended or enlarged by allegations in the indictment or by evidence at trial." 89 N.E.2d at 330. Each of "the essential elements of guilt," and only those essential elements, must be proven beyond a reasonable doubt. See also In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (reversing a New York Court of Appeals' application of a lesser standard of proof in juvenile delinquency proceedings and adopting the dissenting view of Chief Judge Fuld) (quotations and citations omitted).

Evidence which does not tend to prove or disprove an operative fact is not relevant. As Rule 401 of the Federal Rules of Evidence puts the matter:

Rule 401. Definition of "Relevant Evidence"

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Fed.R.Evid. 401. If evidence is not relevant, it is not admissible. See Fed.R.Evid. 402.

The crime must be clearly defined by the words of the statute since people are entitled to an essential protection of due process: notice of what are criminal acts. See, e.g., Chicago v. Morales, 527 U.S. 41, 58, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) ("[T]he purpose of the fair notice requirement is to enable the ordinary citizen to conform his or her conduct to the law. `No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.' " (quoting Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888 (1939))); Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (vague laws "may trap the innocent by not providing fair warning."); Markus D. Dubber & Mark G. Kelman, American Criminal Law: Cases, Statutes, and Comments 107-53 (2005) (The Principal of Legality ( Nulla poena sine lege )). If the offense is not defined "with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement," the statute may be void for vagueness. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); see also Grayned, 408 U.S. at 108, 92 S.Ct. 2294; cf. Brief of the National Coalition Against Censorship and the First Amendment Project as Amici Curiae, Supporting Respondent, United States v. Williams, 444 F.3d 1286 (11th Cir.2006), cert. granted, 549 U.S. 1304, 127 S.Ct. 1874, 167 L.Ed.2d 363 (2007) (No. 06-694) (concerning 18 U.S.C. § 2252A(3)(B)).

The operative elements of the charged statutes are discerned by reading the provisions. Section 2252(a)(4)(B) of Title 18 of the United States Code, prohibiting possessing, provides as follows:

(a) Any person who-

(4)(B) knowingly possesses 1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer, if-
(i) the producing of such visual depiction involves the use of a minor engaging in ...

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