Appeal from a judgment entered April 9, 2008, in the United States District Court for the Eastern District of New York (Weinstein, J.), convicting defendant of eleven counts of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). Cross-appeal from an order and judgment entered April 9, 2008, granting defendant's motion pursuant to Federal Rule of Criminal Procedure 33 for a new trial on twelve counts charging receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2). Because the defendant's possession as charged in the indictment constituted a single unit of prosecution and because the district court erred by granting defendant's motion for a new trial on the counts charging receipt of child pornography, we vacate the April 9, 2008 order of the district court granting defendant's motion for a new trial and remand this case to the district court to vacate all but one of the possession convictions and for further proceedings consistent with this opinion.
The opinion of the court was delivered by: Katzmann, Circuit Judge
Before LEVAL, KATZMANN, and RAGGI, Circuit Judges.
This case calls upon us to decide whether a collection of child pornography is a single unit of prosecution under 18 U.S.C. § 2252(a)(4)(B) such that the possession of a collection cannot support multiple counts of conviction. Moreover, we are called upon to address whether the district court's self-described failure to exercise its discretion to inform the jury of an applicable mandatory minimum sentence constitutes a manifest injustice requiring a new trial.*fn1
Defendant-appellant and cross-appellee Peter Polizzi was tried before a jury in the United States District Court for the Eastern District of New York (Weinstein, J.), on twelve counts of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2), and eleven counts of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). Polizzi sought, but the court refused, to have the jury informed of the five-year mandatory minimum sentence applicable to a conviction of receipt under § 2252(a)(2). At trial, Polizzi put forth an insanity defense, predicated largely on his assertion of repeated and severe sexual abuse as a child. The jury rejected this defense and found him guilty of all counts. After the jury returned its verdict, the district court informed the jurors of the five-year mandatory minimum sentence applicable to the twelve receipt convictions; on inquiry from the court, some jurors expressed dissatisfaction with this punishment, and some suggested that they might have voted differently had they been aware that the verdict carried a mandatory minimum period of incarceration. Thereafter, the district court granted Polizzi's motion, pursuant to Federal Rule of Criminal Procedure 33, for a new trial on the twelve receipt counts, concluding that it had erred in refusing to advise the jury of the applicable mandatory minimum sentence, and entered a judgment of conviction on the eleven possession counts sentencing Polizzi to eleven concurrent terms of one year and a day's imprisonment, ten years of supervised release, a $50,000 fine, and $1100 in special assessments.
Polizzi appeals from the judgment entered April 9, 2008, convicting him of eleven counts of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), arguing that (1) the district court abused its discretion by admitting into evidence certain images of child pornography, (2) the jury instruction on the insanity defense constituted plain error, and (3) his multiple convictions for possession violate the Double Jeopardy Clause. Under 18 U.S.C. § 3731, the government cross-appeals from the district court's April 9, 2008 order granting Polizzi's motion pursuant to Federal Rule of Criminal Procedure 33 for a new trial on twelve counts charging receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2). Because we find that the district court erred by entering multiple convictions for possession and by granting a new trial on the receipt counts, we vacate the April 9, 2008 order granting defendant's motion for a new trial and remand this case to the district court to vacate all but one of the possession convictions and for further proceedings consistent with this opinion.
A. The Investigation and Indictment
In early 2005, FBI agents and Suffolk County Police Department Officers conducted an investigation into an online "private child porn club" called "Hardcore" that, for a fee, gave members access to images of child pornography. An access log for the "Hardcore" website recorded 900,000 Internet Protocol ("IP") addresses, representing approximately 1900 unique visitors, during a ten-day period in March 2005. One of the IP addresses included in the log was traced to Polizzi; the log indicated that Polizzi's IP address downloaded a number of images from the Hardcore website on March 28, 2005. Based on this information, the FBI obtained a search warrant for Polizzi's home seeking computer equipment and evidence related to the possession of child pornography.
On November 16, 2005, the FBI and local law enforcement agents arrived at Polizzi's home to execute the warrant. Polizzi cooperated with the agents, leading them to computers in two rooms on the second floor of the detached garage, which were secured with multiple locks to which Polizzi alone had the keys. As he led the agents up the stairs, Polizzi told the officers: "[I]t's me, I looked at the pictures of the children. The pictures of the children are upstairs." Then, he asked the officers, "What are we going to do about it?"
Polizzi then unlocked the rooms and showed the agents the computers. In the first room, described as the "balloon room," the officers found two external hard drives, referred to at trial and herein as "External 1" and "External 2." In the second room, described as the "music room," the officers found a third external hard drive, referred to at trial and herein as "External 3." A total of 5000 digital images and several videos of child pornography were found on the three external hard drives.
Thereafter, Polizzi was read Miranda warnings and signed two forms stating that he waived his rights and was willing to talk without an attorney present. Polizzi then gave a statement, recorded by the agents and signed by Polizzi, stating in part:
Some time in February or March, 2005, I received an e-mail in my AOL e-mail account,  inviting me to join a website called 'Hard Lovers.' It was $79 or $89 to join and I had to use my credit card to join. I used my Master Card from Citibank; it's in my name. . . .
After I joined, I would visit ever[y] couple of days. After I joined, I knew it was a child pornography website. I downloaded pictures and videos from this website. I keep the pictures on my external hard drive . . . that I bought new about six months ago. I have another external hard drive that I used and transferred everything over from an older external drive that I also bought new.
The computer I used to go to, the . . . hard lovers website I had custom made at a computer store . . . about two years ago. It was the black tower where I pointed to the Detective Forrestal at my desk. I'm not sure how [many] child pornography pictures I have but I have a lot. I know I'm a member of the site now and I downloaded this morning. . . . I know I have of a lot. I know I'm a member of the site now and I have Red [sic] something, I don't remember exactly, it's in my favorites. I used the same credit card number, the Citi Master Card to join. I don't send them out, it's only private. The different passwords of the websites are in my AOL e-mail that I have so I know what they are.
I'm the only person that uses my computer. I keep it in a locked room upstairs that I only have access to. I have read the above . . . and I swear that . . . it is all true.
Polizzi was arrested and charged with twelve counts of receipt and twelve counts of possession of seventeen different photos and videos downloaded from the Hardcore website.
The receipt counts (Counts 1 through 12) charged Polizzi with receiving illicit images on four different dates. Specifically, Polizzi was charged with receiving: two illicit images on February 20, 2005; two illicit images on March 5, 2005; four illicit images on March 16, 2005; and four illicit images on March 20, 2005. All of the images that he was alleged to have received were stored on External 3.
The possession counts (Counts 13 through 24) charged Polizzi with possessing on November 16, 2005, twelve illicit images on three different external hard drives. One of the twelve counts of possession -- Count 13 -- was dismissed on the government's motion prior to trial. The image charged in Count 14 was stored External 1; the images charged in Counts 15--17 were stored on External 2; and the images charged in Counts 18--24 were stored on External 3. None of the image file or video files charged in Counts 14--17 were the subject of a receipt count; each image charged in Counts 18--24 also was the subject of a receipt count. Specifically, Counts 18 and 3 were based on the same image, as were Counts 19 and 4, Counts 20 and 1, Counts 21 and 11, Counts 22 and 12, Counts 23 and 7, and Counts 24 and 8.
The parties submitted proposed jury charges prior to trial. Regarding the insanity defense, both parties sought to have the court instruct the jury, in substance, that it was the defendant's burden to show, by clear and convincing evidence, that at the time Polizzi committed the acts constituting the crimes charged he was not able to appreciate the nature and quality or wrongfulness of those acts, as a result of a severe mental disease or defect. The government proposed to define wrongfulness as "contrary to public morality, as well as contrary to law." Polizzi, in contrast, sought to leave the term undefined. After hearing arguments and receiving memoranda on the competing proposals, the court distributed to the parties its proposed instruction on the insanity defense. It provided, in relevant part, that "'[w]rongfulness' means in this context 'unlawfulness.'" The court asked the parties if either had an objection to the proposed charge. Polizzi's counsel responded: "Your Honor, I do not have any objection at this time." The government responded similarly. At the subsequent charging conference, Polizzi's counsel again did not object to the court's proposed definition of wrongfulness. Ultimately, the charge given to the jury conformed materially to the instruction distributed by the court prior to trail.
After receiving the parties' requests to charge, the district court issued an order on September 6, 2007, inquiring: "Does the defendant wish the jury to be informed of the statutory mandatory minimum (five years) and maximum (twenty years) sentence? If so, is it appropriate to inform the jury, and at what stage?" The government argued that an unpublished, nonprecedential summary order issued by this court in United States v. Pabon-Cruz, 391 F.3d 86 (2d Cir. 2004), controlled the question posed by the court's September 6, 2007 order and moved in limine for an order prohibiting counsel from mentioning "any applicable mandatory minimum or maximum which applies or the consequences of a verdict of not guilty by reason of insanity." Polizzi requested that the court inform the jury of the statutory minimum and maximum sentences at a time that the court deemed appropriate. After receiving these applications, the court announced that it would not inform the jury of the mandatory minimum or maximum.
At a pretrial conference on September 10, 2007, the government indicated that it would seek to introduce at trial: (1) the images and videos containing child pornography that Polizzi was charged with receiving, possessing, or both, and (2) three to four website pages with thumbnail-sized images of child pornography. The government explained its intention to present the images by means of a PowerPoint presentation that would show each image for no more than a few seconds. Polizzi's counsel sought to stipulate that the images charged in the indictment were child pornography and to exclude the images under Federal Rule of Evidence 403. The district court permitted the government to introduce the images despite Polizzi's offer to stipulate to their nature.
For our purposes, a brief summary of the trial testimony and evidence is sufficient.
Further details of the trial are recounted in the district court's thorough opinion. See United States v. Polizzi, 549 F. Supp. 2d 308, 331--39 (E.D.N.Y. 2008).
The government's direct case consisted primarily of the testimony of Detective Rory Forrestal of the Suffolk County Police Department and of the files found on Polizzi's external hard drives. Detective Forrestal had been involved in the investigation of the Hardcore website and the search of Polizzi's home and had reviewed Polizzi's computers and external hard drives. He testified regarding (1) the many steps required to subscribe to the Hardcore website and the communications he received as an undercover subscriber to the website; (2) the evidence obtained from the internet service provider that hosted the Hardcore website, including access logs and the website's content; (3) the execution of the search warrant at Polizzi's house, including Polizzi's statements and conduct during the search; and (4) the evidence seized at Polizzi's house, including files found on his computers and external hard drives.
Each image or video of child pornography identified specifically in the indictment was introduced via Detective Forrestal's testimony. For each, the image would be shown to the jury for a few seconds, after which Detective Forrestal would describe (1) the date the image was downloaded or possessed; (2) the IP address from which the image was downloaded; (3) the file path for the drive on which the image file was found; (4) the identity and circumstances of the child depicted; and (5) the date Polizzi last accessed the file. Short segments of the three videos charged in the indictment were played for the jury, and Forrestal testified that the un-played portion of each video was similar to the segment played.
As described by the district court, "the only contested issue [at trial] was Polizzi's affirmative defense of legal insanity." Polizzi, 549 F. Supp. 2d at 330. In support of this affirmative defense, the defense called, among other witnesses, Polizzi, his son Jack, Dr. Lisa Cohen, a clinical psychologist, and Dr. Eric Goldsmith, a forensic psychiatrist.
Polizzi testified about his childhood in Italy, including incidents of sexual abuse by his uncle, a family friend, and two police officers, stating he was too ashamed and afraid to tell anyone about these incidents until after he had begun psychological treatment following his arrest in this case. Polizzi testified further that he was horrified and shocked by the images of child pornography he viewed on the internet and that seeing the images reminded him of his own abuse as a child. He explained that (1) he looked at the images because he believed he might be able to find a photograph of his own abuse, and (2) he downloaded the pictures to stop the abuse of other children and was collecting the images to turn over to the police. Polizzi testified that although he understood that the abuse portrayed in the photographs was wrong, he believed the images were legal because they were available on the internet. Despite his avowed intention to help law enforcement by collecting these images, Polizzi never voluntarily informed law enforcement or anyone else about his collection. He explained that he did not report his collection because he could not trust police officers, given his experiences with the police in Italy, and because he was ashamed to reveal his own abuse.
Dr. Cohen testified that she concluded that Polizzi had significant cognitive impairment and obsessive compulsive disorder characterized by severe hoarding. Dr. Goldsmith testified that Polizzi had a severe obsessive compulsive pathology and post-traumatic stress disorder, the latter drawing him to seek out child pornography in hopes that he might find a picture of himself. In rebuttal, the government offered the testimony of Dr. Naftali Berrill, the forensic psychologist assigned to evaluate Polizzi for pretrial services treatment. Dr. Berrill testified that he met with Polizzi on numerous occasions, but that Polizzi never told him of his abuse as a child. He further testified that although he had diagnosed Polizzi as having an anxiety disorder, he did not believe Polizzi suffered from this at the time he received and possessed the child pornography. Even if he had been suffering from an anxiety disorder at that time, it was Dr. Berrill's opinion that such a disorder would not render Polizzi unable to appreciate the wrongfulness of his acts. Dr. Berrill testified that he disagreed with Dr. Goldsmith's diagnosis that Polizzi suffered from post-traumatic stress disorder, noting that the criminal behavior here -- seeking out reminders of the original trauma and receiving and possessing images over a number of years -- was not typical criminal behavior for individuals with that disorder.
The district court described that "[d]uring jury deliberations, it was evident . . . that [the jury] rather quickly decided the issue of guilt," but it took the jury several days to "[d]etermin[e] whether Polizzi had carried his burden of proving legal insanity . . . ." Polizzi, 549 F. Supp. 2d at 339. Ultimately, the jury rejected that defense and, on October 5, 2007, returned a verdict finding him guilty on all twelve counts of receipt and all eleven counts of possession.
After the verdict was announced, the district court addressed the jury further:
THE COURT: You [the jury] are discharged. However, stay there for a moment, please.
I know this has been a difficult case for you, and some of you are nodding, and you don't have to answer the questions I'm going to put to you, but it might be helpful. Just answer, if you want to answer as to yourself, not as to what anybody else said, because everybody is entitled to privacy.
Now, the Supreme Court of the United States has suggested that for constitutional reasons the juries participate much more heavily in the sentencing, although the sentencing does not suggest in any way how you should decide. As I told you, in considering your verdict, you should ...