As an agent points out in United States v. Graziano, 07-cr-508 (JFB), 2008 WL 789886 (E.D.N.Y. March 20, 2008), computers can be repositories of one’s most private, even subconscious, thoughts.  Asked why he examined Internet history files when searching a defendant’s computer for gambling records, he explained they “help[ ] to give you what the user was thinking about . . . at this particular time.”  As a result, the agent uncovered and tagged an AOL search entitled “Arson RICO laws,” ostensibly for use in the gambling investigation, because RICO is “a federal statute that is used to prosecute illegal gambling offenses.”  In the end, however, it became key evidence in a parallel investigation that led to an indictment charging the defendant with arson of a competitor’s business.

The Computer Search

The defendant moved to suppress the search of the AOL search records as beyond the scope of the search warrant, which authorized a search for gambling records.  In denying the motion, the district judge reached two notable conclusions:

(a)     Overbreadth

First, the Court rejected the defendant’s challenge that the search warrant was overbroad because it failed to include a “search protocol,” delineating the particular computer files to be searched and the search terms that could be utilized.  Noting that “courts are ill-suited to micromanage in advance how the computer will be searched,” the court emphasized, however, that in seeking the warrant, “law enforcement must establish the basis for searching the computer and particularize the evidence being sought during such search.”

But computers can contain warehouse loads of documents, including the equivalent of boxes of photographs, personal e-mails and Internet search histories.  It is hard to see how any of this information could yield the specific documents sought in this search warrant: “records of bets, accounts and transactions, including betting slips, made in the course of illegal bookmaking activity.”  Thus, where is the prejudice from precluding law enforcement in advance from searching those files (and denying the agents an opportunity to turn the computer search into a general fishing expedition)? 
 
(b)        Reasonableness

The court also rejected the defendant’s argument that the manner of the search here was unreasonable, because the search involved a cursory review of every file, including Internet search files, and was not confined solely to obvious gambling files and documents.  Citing Supreme Court precedent that a brief review of apparently innocuous documents is permissible in searches for papers, the district court held that “it was entirely reasonable for the [forensic examiner] to engage in a cursory review of files and documents, by opening them, to determine whether they contained evidence of illegal gambling that was within the scope of the warrant.”

The court found that the bookmarking of the “arson RICO laws” search, once it had been uncovered, was reasonable given the agent’s credible testimony that he saved the evidence because gambling is prosecuted under the federal RICO statute (though, perhaps more plausibly, the evidence comes under the “plain view” exception to the warrant requirement).

The more critical issue is whether it was reasonable for the agent to search records containing Internet search histories at all (such files are listed with the designation “htm” or “html,” and are thus readily identifiable to the examiner in advance as Internet search history files).  The district court credited the agent’s “reasonable belief that evidence related to an illegal gambling operation might be contained in AOL search records.”  That may be true (searches for sports scores, etc.), but, as noted above, the search warrant here did not authorize a search for all documents related to an illegal gambling operation.  Rather, it specified particular gambling-related records that may be searched for and seized, documents that would not be contained in files with Internet search histories. 

The court does not address how Internet search records could reasonably be related to or produce the specific gambling records at issue.  (The case also does not address another interesting issue – raised by Judge Weinstein in United States v. Polizzi, 2008 WL 1886006 (E.D.N.Y. April 1, 2008) – that is, whether the searched files could have been independently obtained from AOL itself, as some courts have held that an Internet user can have no expectation of privacy in their Internet search histories).

Defendant’s Offer to Take a Polygraph

In the same decision, the court ruled on an issue of first impression in the Second Circuit - whether the defendant’s offer during an interview with the prosecutor to take a polygraph should be admitted at trial as consciousness of innocence.  Granting the government’s motion in limine to preclude the evidence, the found the offer had no probative value because it was not made in the context of an agreement that the results of the polygraph, whatever they were, would be admissible.  “Given the lack of adverse consequences from such an offer, there is no way to distinguish between the offer being made by an innocent defendant and the offer being made by a guilty defendant for purely strategic reasons.”

Advising Jury of Potential Penalties

Finally, in an interesting counterpoint to Judge Weinstein’s decision in Polizzi, the court ruled that the defendant could not cross-examine the cooperating witnesses as to the mandatory minimum sentences they had faced prior to their plea agreements, because “such reference would advise the jury as to the punishment the defendant is facing.”

There is a curious irony to Judge Weinstein's decision in United States v. Polizzi, 06 CR 22 (JBW), 2008 WL 1886006 (E.D.N.Y. April 1, 2008).  Although for many it is a quintessential example of liberal judicial activism, the decision is rooted squarely in conservatives' favorite theory, originalism, i.e. interpreting the constitution minus over two hundred years of history.  And, incidentally, it is hardly a philosophy that Judge Weinstein has been known to embrace.

Of course, the bigger irony in the decision is that we must reach back in history to more barbaric times to find compassionate practices that mitigate the barbarism of today's mandatory minimum sentences.  Holding, contrary to decades of precedent, that he had erred in failing to advise a jury of certain mandatory minimum sentences applicable in a child pornography possession case, Judge Weinstein points out that a jury in 1791 would most certainly have known the consequences of their decision (such jury, it should be noted, made up of white, male property owners), and would thus have been empowered to show mercy by manipulating its verdict.  Polizzi puts pay to the idea that any judicial philosophy is less malleable than another or more likely to restrain judicial law-making. 

Facts
 
At the heart of this decision is the tragic story of Peter Polizzi, an Italian immigrant who on the surface had achieved the American dream – successful businessman, father of five, self-taught guitarist.  Psychologically scarred, however, by childhood sexual abuse, he secretly repaired to a double-locked room above his garage over a five-year period, where he viewed and downloaded images of child pornography.   There was no evidence that he had ever forwarded the images to another, or engaged in any improper conduct with a child. 

A subscriber to a website targeted in an FBI investigation, Polizzi was arrested and prosecuted for possession and receipt of child pornography.  At trial, jury rejected his insanity defense and found him guilty on all counts.  He faced a mandatory minimum prison sentence of five years on the receiving counts. 

When informed after their verdict of the mandatory minimum sentence, three jurors indicated that they would have voted not guilty by reason of insanity had they known of the applicable mandatory minimum, and two other jurors indicated that they believed Polizzi should be treated not incarcerated. 

Failure to Advise Jury of Mandatory Minimums

Building on these jurors’ amended thoughts, Judge Weinstein crafts a compelling opinion that the defendant had a right to have his jury informed in advance of the mandatory sentence riding on their decision.  Reviewing legal and historical scholarship regarding criminal practices in the Thirteen Colonies, the court concludes that trial juries during that period would not only have known of the harsh sentences to be imposed on a finding of guilt, but also "would have been expected to deliver a verdict of not guilty or of guilty of a lesser crime had it believed the punishment excessive for the crime actually charged and proved."

Why should such practices apply today?  “With the advent of mandatory minimum sentences . . . federal juries today again face-albeit often unknowingly –‘either-or’ choices similar to those facing the British and colonial juries of 1791 [i.e. death/transportation/whipping or conviction of a lesser crime]. To fully exercise their historical function, juries today must understand the two eithers; they cannot rely on the court to mitigate because it is bound by the statutory minimum term of imprisonment.”  If juries are not just fact-finders, if they are truly the bulwark that curbs judicial, executive and legislative power - "the conscience of the community and guardian against government oppression ... [and] a 'safety valve' for exceptional cases" - then, Judge Weinstein reasons, juries must be entrusted with complete information regarding the consequences of their actions, including information about their power to dispense mercy through nullification.

Putting aside concerns that hearkening back to the days of the Eighteenth Century would not always be a giant step forward, or that knowledge of mandatory minimums may harden rather than melt jurors' hearts, the Polizzi holding is a persuasive and creative approach to mitigating the severity of mandatory minimum sentences. 

Few expect this decision to survive Second Circuit scrutiny. But Judge Weinstein has his eye on higher courts - the court of public opinion for one, and, of course, the Supreme Court, which given its current ideological make-up, may be more than a little receptive to his call for a return to 1791 and a limited reintroduction of the jury’s power to nullify.   The Supremes may also revisit the issue addressed at the beginning of the Polizzi decision: that the statute at issue is void for vagueness and overbreadth, because it has the potential to criminalize innocent behavior. 

Lack of Scienter

In a nutshell, the Polizzi court finds the statute problematic because it penalizes “knowing” possession and receipt of child pornography, but does not require on its face that the individual "intend" to possess such material. While equating knowledge with criminal intent may work with traditional crimes like possession of stolen goods or drugs, the court points out, this construct fails to account for the myriad ways in which one can inadvertently receive and possess materials via the Internet - "where email may be automatically received, files can instantaneously download themselves, web pages shown for only a fraction of a second are automatically stored, and knowledge can first be acquired after the fact of receipt.”  As one FBI agent put it, the court quotes, "[o]ne click, you're guilty."  In fact, the court claims (perhaps a bit hysterically), that one of its interns refused to conduct certain Internet research on the case for fear of committing a crime. 

It is this significant potential for the statute to penalize accidental and benign conduct that renders it void for vagueness and overbreadth - problems, the court concludes, that cannot be rescued by the stingy safe harbor provision in the statute, or suspect judicial efforts to imply an intent element.  Constrained by precedent to reject the challenge, Judge Weinstein clearly believes this is an area ripe for revisitation by the appellate courts.

Other Challenges

The Polizzi opinion also addresses a number of interesting challenges that, for one reason or another, were inappropriate in this particular case or are foreclosed by current precedent.  They may however prove more fruitful under a different set of facts or in the future as society's perception of these issues evolve:

• Eighth Amendment: Five years for "psychologically stunted man who . . . suffered vicious sexual abuse as a child" and who needs "treatment not a destructive long prison sentence," is undoubtedly cruel, the court concludes, but unfortunately, is not unusual, where "cruelty in punishment is adopted by Congress as policy."  Moreover, although some may find the punishment in Polizzi's case to be "shockingly disparate" - particularly in light of the passive nature of his crime, his psychological disabilities, his low risk of recidivism, and the public "scourging" or registration as a sex offender that awaits him after prison - it is not unconstitutionally "grossly disproportionate" to the crime committed under applicable case-law.  In this context, the court does an interesting analysis of the median sentences meted out by states for similar conduct (producing some very useful material for those seeking to challenge draconian sentencing guideline ranges in child pornography case), and also importantly queries the tendency to lump all sex offenders together when addressing their future dangerousness.  Such conclusions "fail to take into account differences between pederasts and voyeurs."

• Irrationality: Similarly, the five-year mandatory minimum for receipt of child pornography, while a severe penalty for Polizzi's crime, is not irrational, as that term is defined, despite the fact that the possession count does not carry any mandatory minimum.  Congress is not held to "a precise calculus of harm and risk."  Importantly, in this section, the court notes that the evidence regarding whether child pornography actually encourages viewers to commit physical sexual offenses (often presented as a given) is in fact inconclusive.

• Multiplicity:  Conflation of possession and receipt raises a problem of multiplicity (indictment improperly charges a single offense multiple times in separate counts, when only one crime has been committed).  The court did not need to address this issue since it was setting aside the verdict on the receiving counts. 

• Rule of Lenity: This doctrine of statutory construction requires a court to resolve any ambiguity in favor of a defendant.  Unfortunately, the mandatory minimum Polizzi was subject to is totally unambiguous, and does not (but surely should) "contain an implicit reasonableness limitation." 

• First Amendment: The court notes the tension created between First Amendment rights (such as the right to view adult pornography in privacy) and the expansive regulatory and enforcement efforts to curb exploitation of children, and cites several decisions that have struck down child pornography legislation as unconstitutionally overbroad.  One of these decisions, however, was recently overruled by the Supreme Court in United States v. Williams, 2008 WL 2078503 (May 19, 2008) ("pandering" provision of PROTECT Act neither overbroad nor vague).

• Fourth Amendment: The court highlights the tension between legal constructs of what is a "reasonable" expectation of privacy in the online context, and the actual expectations of online users.  In particular, he questions the validity of denying Fourth Amendment protections to non-substantive communications (such as email subject headings and Internet search queries) when the line between content and non-content may be impossible to draw, and thus lead to unduly invasive searches by law enforcement.

• Separation of Powers: The court notes the concern that statutory mandatory minimums have shifted too much power from the judiciary to the executive, but concludes that "on the basis of current precedent," applying the functional approach of analyzing statutes under the separation of powers doctrine, the mandatory minimum prescribed for receipt of child pornography passes muster.  The kicker here is "current precedent," which the court obviously believes needs revisiting. 

This huge decision (not just literally in length, but also in heart and compassion) is a must-read for anyone defending someone charged with possession of child pornography. 

Limiting instructions are the opium of judges, but of little solace to a defendant, like Douglas Brandon, charged with securities fraud in an indictment that also charged an entirely separate securities fraud scheme against some of his co-defendants.  A substantial portion of the trial, therefore, involved evidence of wrongdoing that had nothing to do with him, leading to the possibility of substantial spillover prejudice and dilution of an important exculpatory statement from a cooperating witness that Brandon was not a knowing participant in the fraud scheme charged against him.

At issue in his appeal and that of one of his co-defendants was the district court’s denial of their misjoinder/severance motions under Rules 8(b) and 14.  Affirming in United States v. Rittweger, 05-3600-cr, 2008 WL 1808260 (2d Cir. April 23, 2008), the Court found that the indictment satisfied Rule 8(b)’s joinder requirements – either a “common plan or scheme” or a “substantial identity of facts and participants” – where it charged that both fraud schemes involved efforts to induce customers of a certain investment entity to invest in a particular investment program, and involved an overlap of two other defendants.

Significantly, the Court rejected the defendants’ argument that they should only have been joined in the same trial where their separate and distinct conspiracies could have been charged as a single conspiracy.  “Provided that the defendants are ‘alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses,’ Fed.R.Crim.P. 8(b), members of two or more conspiracies may be joined as defendants even where the members have not been charged as participating in one overarching conspiracy.” 

In addition, the Court rejected the defendants’ efforts to broaden appellate review of the Rule 8 joinder question to encompass an analysis of the evidence adduced at trial.  “Under the plain language of Rule 8(b), the decision to join parties turns on what is ‘alleged’ in the ‘indictment.’ Fed.R.Crim.P. 8(b).  Events that transpire at trial are thus not relevant to the Rule 8(b) inquiry.” And in a footnote, the Court observes, without deciding, that “the plain language of Rule 8(b) does not appear to allow for consideration of pre-trial representations not contained in the indictment, just as the language of the Rule does not allow for the consideration of evidence at trial.” 

The defendants were then left with arguing the uphill battle that the court should have exercised its discretion to sever under Rule 14, a burden that requires a showing of “prejudice so severe that [their] conviction[s] constituted a miscarriage of justice.”  The Court dispatched this claim quickly, finding that the evidence was “straightforward” as to each defendant, and – you guessed it – the Court gave limiting instructions throughout the trial.

This is a very unfortunate ruling, since it effectively insulates the government’s joinder decision from appellate review – and indeed, in light of the Court’s footnote, greatly stymies the district court’s analysis of the issue – as long as the government manages to make sufficient, however tenuous, allegations in the indictment to satisfy Rule 8(b).  At  least, the court recognized itself the carte blanche it is granting prosecutors with this decision, since it “question[s] the government’s decision to try the two conspiracies together,” given the lack of connection between the two conspiracies and the two defendant-appellants, the improbability that evidence of one conspiracy would have been admissible as background in the trial of the other had the defendants been tried separately, and the dangers of “lumping together” minor participants with discrete roles with the more prominent members of overlapping conspiracies.  The Court goes on, in language worth quoting in all severance motions: “Rule 8(b) does not provide the government with limitless discretion to join defendants and does not absolve the government from an independent obligation to consider the unfairness that may result from joinder.”

The Court’s Brady analysis in this decision – although of little consolation to Brandon – is also worth quoting in future Brady motions.  A cooperating witness had corroborated Brandon’s defense – that he had been kept in the dark as to the fraudulent nature of the investment scheme.  The government waited until a week before trial to turn over the grand jury testimony of this cooperating witness, and moments before an agent testified before turning over the witness’s proffer notes – notes which included the witness’s statement that she had been instructed: “Don’t tell Brandon anything” because he was “there for marketing purposes.”  (Imagine what fabulous fodder for an opening statement that would have been . . .)  The court quite rightly rejected the government’s justification for the late disclosure, that it had concluded from other circumstantial evidence that Brandon had gleaned knowledge of the fraudulent nature of the scheme from other sources.  The Court pointed out: “[f]requently, the government comes into possession of evidence by witnesses who identify another perpetrator or who attempt to exculpate another defendant. The fact that the government may have some evidence that a particular defendant is guilty does not negate the exculpatory nature of the testimony of a witness with knowledge that a defendant did not commit the crime as charged.”

A trial is primarily a theatrical event, and theatre depends on drama, narrative, development of expectation, choreography and timing.   As psychological research of juries has established, jurors seek narratives about guilt and innocence as the trial unfolds.  Mid-trial, if they have already constructed that narrative, they may not be as motivated to deconstruct the pieces and put them back together again.  When key exculpatory evidence is withheld until mid-trial, the defendant’s theatrical capabilities – and thus, ability to influence the jurors’ conception of the narrative – are severely handicapped.  But an appellate court does not address ephemeral and intangible matters like theatricality and story-construction.  In this case, not surprisingly given the scope of its review, the Court found that there was no “reasonable probability” that the late disclosure resulted in a different outcome.  The Court notes dryly, “[f]irst and foremost, the district court admitted into evidence Allen’s grand jury testimony and Agent Lubman’s debriefing notes.”  Yes, eventually.  But trial lawyers know better.  Mid-trial disclosure is no-where near as useful to the defendant, since it denies effective use of the information throughout the trial, and in particular, in opening statements, when jurors have not yet constructed any particular narrative.
 
At least, in demands for cooperating witness’s grand jury testimony and proffer notes, defense practitioners should make sure to quote the Court’s conclusion that “the government should have acted in favor of disclosing the Brady material earlier, particularly when earlier discovery would not have had the potential to harm the witness. . . . After all, the government produced 200 boxes of materials in the fall of 2002 to defense counsel, but withheld until May 1, 2003 (the eve of trial) the evidence that the government counsel surely should have known defense counsel was most interested in.”

While jurors in criminal cases may like to see themselves on a quest for truth, their role is actually more circumscribed and technical - and perhaps less satisfying - than that of truthseeker, as the Second Circuit confirmed in an important decision today, United States v. Glover, 05-5047-cr, January 4, 2008.  The case has ramifications both for challenges to a trial court's jury instructions, and also challenges to prosecutors' summations.

In Glover, Glover's co-defendant, Shamsideen, had challenged a "truth" instruction to the jury, which included the following language: "the crucial, hard-core question that you must ask yourselves as you sift through the evidence is, where do you find the truth?  The only triumph in any case, whether it be civil or criminal, is whether or not the truth has triumphed."  The Court held that the challenged instruction would constitute error when viewed in isolation, because it was inadequate to ensure the jury's proper understanding of the presumption of innocence and the government's burden of proof.  The Court went on: "The question ['where do you find the truth?'] fails to make clear that, even if the jury strongly suspects that the government's version of events is true, it cannot vote to convict unless it finds that the government has proved each element of the charged crime beyond a reasonable doubt.  The question also fails to inform the jury that if the evidence is insufficient to permit it independently to 'find the truth,' its duty, in light of the presumption of innocence, is to acquit.  Further to the extent the challenged instruction in this case went on to reference the 'triumph of truth' as essential to justice 'in any case, whether it be civil or criminal,' such language, without more, fails to alert the jury that a higher standard of proof is demanded in criminal than in civil cases."

Moreover, the Court joined with several other appellate courts that have discouraged the use of truth instructions, concluding that "to the extent a trial court thinks it appropriate in a criminal case to identify for a jury a single 'crucial, hard-core question,' that question should be framed by reference not to a general search for truth but to the reasonable doubt standard that the law has long recognized as the best means to achieve the ultimate goals of truth and justice."

Finding error in isolation, the Court nonetheless found the charge adequate when viewed in the context of the entire charge. Under that analysis, the entire charge did not present a "reasonable likelihood that the jury thought it could return a guilty verdict on anything less than the required constitutional standard of proof."  The Court accordingly affirmed the conviction.