New York Federal Criminal Practice Blog
April 25, 2009

Second Circuit Issues Notable Decision on Instructing Jurors About Mandatory Minimum Sentences

The tragic tale of Peter Polizzi has now generated another notable decision on the power of a district court to instruct a jury about mandatory minimum sentences.  The Second Circuit has just issued its decision on the appeal and cross-appeal from Judge Weinstein’s huge decision, previously blogged about here.  In United States v. Polouizzi, 2009 WL 1098796 (2d Cir. April 24, 2009), the Court rejected Judge Weinstein’s holding that Polizzi had a Sixth Amendment right to have the jury instructed on the five-year mandatory minimum sentence applicable to the charge of receiving child pornography.  Importantly, however, the Court also held that a district court “has discretion to instruct the jury on applicable mandatory minimum sentence in some circumstances.”  In addition, the Court found several Double Jeopardy violations with regard to Polizzi’s multiple convictions for receipt and possession of multiple images of child pornography.  As a result, on remand, there may be a path that could rescue Mr. Polizzi from the five-year mandatory minimum sentence Judge Weinstein and several of the jurors found so abhorrent in his case.

Jury Instruction Regarding Mandatory Minimums

As readers of this blog will recall, Judge Weinstein vacated Polizzi’s twelve convictions for receipt of child pornography, concluding (in a case of judicial remorse) that he should have granted the defendant’s request to have the jury instructed about the five-year mandatory minimum sentence carried by these convictions.  (A conviction of possession of child pornography carries no mandatory minimum sentence.)  The Second Circuit held that Judge Weinstein had erred in holding that denying this request had violated Polizzi’s Sixth Amendment right to trial by an informed jury.  In a decision that is not surprising, the Court pointed out that Judge Weinstein’s holding was foreclosed by its own precedent.  Whether the Supreme Court in Booker effectively changes that precedent “is a decision we must leave to the Supreme Court.”

What is surprising is the Court’s rejection of the government’s position that a district court may never instruct a jury regarding a mandatory minimum sentence.  Rather, the Court held, “the law does not support such an absolute prohibition.”  It goes on:

Without attempting to define the boundaries of a district court’s discretion in this regard, we recognize the possibility, as the [Supreme] Court in Shannon did, that circumstances may exist in which instructing the jury on the consequences of its verdict will better ensure that the jury bases that verdict solely on the evidence and will better discourage nullification.

Moreover, the court also reaffirmed that “jurors have the capacity to nullify,” although it’s not something judges should encourage. 

Finally, the Court left open the possibility that in a case like Polizzi’s (a non-violent offender who had been abused as a child, and who in middle-age, engaged in passive consumption of child pornography), an instruction about the mandatory minimums may have been appropriate: “[i]n this case, it is not necessary to decide whether it would have been within the district court’s discretion to inform the jury of the applicable mandatory minimum sentence.”  The Court pointed out that Judge Weinstein had exercised his discretion not to give this instruction, and “[a] trial court’s failure to take discretionary steps that might have induced jurors to nullify does not furnish an adequate justification for a finding under Rule 33 that ‘the interest of justice ... requires’ a new trial.” 

Needless to say, this is going to inspire some very interesting litigation on the issue of advising juries of applicable mandatory minimum sentences, especially in cases involving mandatory minimums that yield startlingly unjust results, like in Polizzi’s case, or cases that produce an effective life sentence (e.g., Ballard). 

Double Jeopardy Issues

The Court’s rulings on the Double Jeopardy issues are also notable, and could lead to some tangible results for many defendants, including possibly Polizzi.

First, the Court ruled that multiple possession convictions relating to a collection of pornography possessed on one date violated the Double Jeopardy Clause.  “Based on the clear language of the statute, we conclude that Congress intended to subject a person who simultaneously possesses multiple books, magazines, periodicals, films, video tapes, or other matter containing a visual depiction of child pornography to only one [child pornography possession] conviction.”  Accordingly, it directed the district court on remand to vacate all but one of the possession convictions.  (This conclusion has no practical effect vis a vis mandatory minimums, since possession of child pornography does not carry a mandatory minimum sentence; but it does affect the ability of those rare judges who want to stack consecutive sentences in these cases.)

Second, the Court ruled that multiple receipt convictions arising out of one instance of downloading violated the Double Jeopardy Clause: “the rule of lenity requires the conclusion that a person who receives multiple prohibited images in a single transaction can only be charged with a single [receipt] violation.”  Here, the record did not establish “whether Polizzi’s receipt of multiple images on any one of these dates reflected a single simultaneous transfer or discrete and distinct transfers” and as such,  the “record would appear to support Polizzi’s conviction on [only] four receipt counts – one for each date on which he received images – but not multiple receipt counts per day.”
Third, the Court highlighted without deciding the issue of whether the crime of possession of child pornography is a lesser included offense of the crime of receipt of child pornography.  Both the Third and Ninth Circuits have ruled that it is “because receiving an item necessitates taking possession of it.”  (Notably, in United States v. Miller, 527 F.3d 54, 73 (3rd Cir.2008), the Third Circuit held that on remand, the district court was free to decide which of the convictions – possession or receipt – to vacate.)  The Second Circuit noted it found the reasoning in these cases “persuasive” but declined to decide the issue here, because it viewed Polizzi’s case factually distinguishable due to the fact that he had been convicted of possession counts that did not have a receipt counterpart.  (I believe, however, that the dispositive issue may be whether Polizzi was convicted of receipt counts that have no possession counterpart.)

Polizzi’s Fate

On remand, it would appear that Judge Weinstein must go through several steps to comply with the Court’s ruling and eliminate the Double Jeopardy problems in this case.

First, assuming he accepts the Second Circuit’s analysis that the record does not support more than four receipt convictions, he must reinstate only four of the twelve receipt convictions - one for each date upon which images were downloaded.  Supreme Court precedent gives Judge Weinstein discretion which ones to reinstate. 

Second, he must decide as a matter of first impression in this Circuit the issue of whether possession is a lesser included offense of receipt, since the Circuit declined to do so here.

Third, assuming he answers that question affirmatively, he must discount either a possession or a receipt conviction, where two such convictions relate to one downloaded image.  Hopefully, that analysis permits him to discount all of the receipt counts. 

Finally, he must discount all but one of the possession counts remaining. 

If Judge Weinstein conducts his analysis in the order I have set forth here, Polizzi may have a shot of ending up with only one conviction for possession of child pornography and avoiding any mandatory minimum sentence – a resolution that would be eminently just and appropriate in this case.

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