New York Federal Criminal Practice Blog

Recently in the Sex Crimes category:


The shift from a mandatory sentencing guideline regime to an advisory one has increased the importance of – and the district courts’ reliance on – expert evaluations of the defendant for sentencing purposes.  This is especially true in cases where the defendant may pose a threat to the community upon release.  In United States v. DeSilva, 2010 WL 2925863 (2d Cir., July 28, 2010), the Court reversed a 132-month sentence in a child pornography distribution case because the district court had erroneously relied on a psychologist’s report addressing the defendant’s potential dangerousness in the context of a bail application.  In the process, the Court made some important observations about the use of a psychological report at sentencing, including acknowledging it may provide relevant mitigating evidence, and that a district court should explain its reasons in the event it rejects its conclusions.  


The defendant, an admitted child molester, pled guilty to distributing child pornography.  He faced a guideline range of 235-240 months.  In sentencing him to 132 months, the district court relied in part on a psychological report of the defendant that concluded he was not a danger to the community.  The report had been prepared for use at a pretrial bail hearing, and premised its dangerousness findings on the fact that any pretrial release would be into the defendant’s parents’ custody.  The government appealed.


The Second Circuit agreed with the government that the district court had committed procedural error when it relied on the report “in so far as it entirely removed [the psychologist’s] opinion from the context in which it was rendered.”  In particular, the Court noted that the report at issue “was conditioned on the premise that DeSilva would be released to his parents,’ and therefore was only of “minimal relevance” on the issue of his potential to molest children following his release from his term of imprisonment, when parental monitoring would not be on the cards.

Notably, the Court had this to say about psychological reports in general:
Although a psychologist’s report may provide mitigating evidence for the court’s consideration during sentencing, the court must still conduct an independent evaluation of the defendant in light of the factors set forth in 18 U.S.C. § 3553(a).  If the psychologist’s report cannot be squared with the court’s own judgment of the defendant’s culpability and the danger he poses to society, the court is free, in its discretion, to decline to rely on the psychologist’s findings, so long as the court explains its basis for doing so.

In appropriate cases, psychological reports of the defendant can have a significant mitigating effect at sentencing – humanizing him in a way that the presentence report does not, elucidating his offense behavior in the context of his unique emotional and psychological deficits, and giving the sentencing judge security (and cover) in rejecting the applicable advisory guideline range.   DeSilva reaffirms all of the above, with the simple and elementary caveat that if a psychological report is to be used at sentencing, it should not be recycled from another source, but should be tailored directly to the sentencing factors under 18 U.S.C. § 3553.

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.

As the world awaits the decision on the government’s bail revocation motion in the Madoff case [update: 12:16 p.m. it is just being reported that he will remain free], another SDNY magistrate issued a notable bail decision recently in a case that involves a similar collision between public opinion and the Bail Reform Act’s principles favoring the least restrictive form of pretrial release.  In United States v. Arzberger, 08 cr. 894 (AKH/JCF), 2008 WL 5453739 (S.D.N.Y. December 31, 2008), the defendant, who faced charges of receipt and possession of child pornography, opposed the government’s motion to modify the terms of his bail by adding certain non-discretionary conditions set forth in the Adam Walsh Amendments to the Bail Reform Act, including a curfew, electronic monitoring, a direction to avoid contact with any potential witnesses and prohibition from possession of any dangerous weapon.  Arzberger challenged the provisions as unconstitutional under the Fifth and Eighth Amendments, both facially and as applied, and that they violated the Separation of Powers Doctrine.

In a lengthy decision, Magistrate Judge Francis first reviewed the sparse precedents on the issue (three of the four of which had found the Amendments unconstitutional), and then analyzed each proposed condition separately under the Due Process clause.  He concludes: “The Adam Walsh Amendments are unconstitutional on their face to the extent that they would impose conditions that infringe protected liberty interests without providing the accused with an individualized assessment of the need for such conditions.”  The court rejected the defendant’s facial challenge under the Eighth Amendment, held the as-applied challenge under the Eighth Amendment was premature, and also held that the Adam Walsh Amendments do not violate the Separation of Powers Doctrine.

It is heartening to see reason prevail in an area of the criminal law that one Sixth Circuit judge wrote in a dissenting opinion is approaching the hysteria of the Salem Witch trials.  In United States v. Paull, No.07-3482 (6th Cir. January 9, 2009), as highlighted on Professor’s Berman’s website here, Judge Merritt filed an opinion that dissents from the court’s decision to affirm a 17.5 year sentence in a child pornography possession case.  Judge Merritt begins:

As a recent October 23, 2008, Wall Street Journal article by Amir Efrati points out, our federal legal system has lost its bearings on the subject of computer-based child pornography.  Our “social revulsion” against these “misfits” downloading these images is perhaps somewhat more rational than the thousands of witchcraft trials and burnings conducted in Europe and here from the Thirteenth to the Eighteenth Centuries, but it borders on the same thing.  In 2008 alone the Department of Justice has brought 2,200 cases like this one in the federal courts. 
How many people haven't clicked with their therapists and moved on to another?  Imagine being sentenced to therapy and not clicking with the assigned therapist, but not having the option of switching?  That's a predicament in which more than a few defendants have found themselves.  If so, United States v. Porter, 03-cr-0129 (CPS), 2008 WL 5377946 (E.D.N.Y. December 23, 2008), is required reading.  Advise your client to grit their teeth and comply, or (while still gritting their teeth) respectfully request the court for the right to enroll in an alternative program because the approved one is not optimal.  Just don't do what Porter did: make snide and sarcastic comments, disrupt group therapy sessions with legal discussions, fail to do assignments on the grounds they were unimportant, and then stop showing up and enroll in another program that is not approved by the Probation Department.  While EDNY Judge Sifton recognizes that Porter and his therapist may not have been a good "fit," he points out that "there is no evidence that Mr. Porter ever complained about [her]."  Moreover, he points out that that Porter "deliberately refrained from participating in sex offender treatment in a meaningful manner," and, citing three cases from the Sixth and Eighth Circuits, he holds that "[m]ere attendace is not 'participation.'"  Accordingly, Porter was held to have violated the conditions of his supervised release and awaits sentencing.

The ambiguous and often tragic world of alleged and actual sex offenders – running the gamut from harmless experimentation and role-playing to sinister preying on defenseless victims – is brought into sharp relief in the Second Circuit’s decision in United States v. Joseph, 06-5911-cr, 2008 WL 4137900, (2d Cir. September 9, 2008), in which the defendant had been convicted at trial of soliciting sex with a minor over the Internet.  The Court reversed because of an erroneous jury charge, but most interesting in the decision are the Court’s comments on the trial court’s preclusion of the defense’s expert witness – a social scientist with a specialty in Internet sexual communication.

Jury Instruction

The Court reversed the conviction because of an improper jury instruction – the district judge erroneously instructed the trial jury that it could convict if it found that the defendant tried either to entice a minor to have sex with him or “made the possibility of a sexual act with him more appealing.”  Since the latter alternative amounted merely to cyber-sex, which is not in fact a crime, and because there was a substantial risk that the jury had convicted based on that invalid alternate ground, a reversal for a new trial was mandated.  The defendant’s efforts to make sex with him “more appealing” can be evidence of enticement but is not, on its own, a basis of conviction. 

Admission of Defense Social Science Expert

What is remarkable about the case are the Court’s comments on an evidentiary ruling made at the trial.  The defense at trial was that the defendant had no interest in having sex with a minor.  He had merely engaged in harmless role-playing and genuinely believed that the target of his conversations was an adult posing as a child – a belief that was in fact accurate, since his correspondents were initially a 55-year-old woman (who surfs the web seeking sexual predators and then reports her findings to the F.B.I.) and later an F.B.I. agent.  The defendant claimed that if in fact, upon meeting his correspondent, she turned out to be an actual minor, he would have given her lunch and explained to her that “he was way too old to be involved with her.” 

To support this defense, defense counsel sought to introduce the testimony of a social scientist from the Institute of Advanced Human Sexuality in San Francisco, who had written his Ph.D. thesis on sexual communication on the Internet, and would testify “about a distinct culture of the Internet in which one can become a ‘fantasy character’” and would also explain “the realities and motivations of online role-playing via chatrooms and email,” including a phenomenon known as “de-masking” other chat-room participants.  The trial court rejected the proffered testimony primarily on relevance grounds.

Urging the district court to “give a more thorough consideration” to the defendant’s motion to present this testimony at a retrial, the Court held that the witness’s “field of study and experience qualified him to offer relevant testimony.”  In particular, the Court noted with approval the expert’s research techniques, which included “a large number of interviews” as well as study of chat-room conversations.  The Court went on, citing several other circuits:

Social science “research, theories and opinions cannot have the exactness of hard science methodologies,” and “expert testimony need not be based on statistical analysis in order to be probative.” “[P]eer review, publication, potential error rate, etc .... are not applicable to this kind of testimony, whose reliability depends heavily on the knowledge and experience of the expert, rather than the methodology of theory behind it.” In such cases, the place to “quibble with [an expert’s] academic training” is “on cross-examination” and goes to his “testimony’s weight ... not its admissibility.”  (citations omitted.)

The Court explicitly rejected a challenge to the expert’s testimony on the grounds that it relied on hearsay, noting that “[s]ocial science experts commonly base their opinions on interviews.”


Social scientists do some of the most fascinating, cutting edge research on human behavior.  Their findings confirm, confound and challenge our most strongly-held beliefs about feelings, motivations and actions.  The Court’s imprimatur in Joseph of the expertise of social scientists and the validity of their research methods has significant implications not just for sex offense prosecutions – which involve aspects of human behavior that many view as alien and abhorrent – but all kinds of prosecutions where the defendant’s behavior may be viewed as aberrant but is not necessarily the product of a criminal mind.  

As noted by this blog previously, see here, the Adam Walsh Act of 2006 prohibits the reproduction of child pornography during legal proceedings, and in particular, permits the government to refuse to supply copies of child pornography to the defense in a child pornography prosecution as long as the material is made “reasonably available” to the defendant.  The “reasonably available” concept (the so-called “safety valve” of the Act) is defined in the statute as “ample opportunity for inspection . . . at a Government facility.”  The Second Circuit has not yet defined what constitutes “ample opportunity,” but several district courts have required it to be “due-process-level” access to the original material, or the defense team gets a copy of the hard-drive in question.

In United States v. Patt, 06-cr-6016, 2008 WL 2915433 (W.D.N.Y. July 24, 2008), the court further refined the meaning of “ample opportunity,” concluding that there was no due process violation where the defense expert may have found it time-consuming and inefficient to do his job at the government facility, but was nonetheless able to “conduct a complete and independent analysis of the hard-drives” at issue.  In the absence of any claim that the results were “incomplete or compromised . . Patt was provided ample opportunity to inspect and analyze the computer drives that were seized and are alleged to contain child pornography.” 

Inspired by the Supreme Court’s holding in Kimbrough v. United States, 128 S. Ct. 558, 570 (2007), that a district judge may disregard a provision of the Sentencing Guidelines that is not the product of “empirical data and national experience,” the National Federal Defender Sentencing Resource Counsel has started a project called “Deconstructing the Guidelines,” which will publish papers critically examining individual guidelines to determine if they fail to reflect the exercise of the Sentencing Commission’s “characteristic institutional role.”  That role, as the Federal Defenders point out, includes two components: (1) reliance on empirical evidence of pre-guidelines sentencing practice, and (2) review and revision in light of judicial decisions, sentencing data, and comments from participants and experts in the field.

Two papers in the project were published this month, one analyzing the child pornography guidelines (Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines (June 10, 2008) by Troy Stabenow) and one on the career offender guideline (Deconstructing the Career Offender Guideline (June 16, 2008), by Amy Baron-Evans, Jennifer Coffin, & Sara Noonan).  Already, as Professor Berman notes in his Sentencing Law and Policy website, a district judge in Wisconsin has cited the paper on the child porn guidelines to support a substantial below-guidelines sentence in a child porn possession case (in fact a sentence of 72 months, instead of one within the applicable guideline range of 210-262).  Explaining his variance in United States v. Hanson, No. 07-CR-330 (E.D. Wisc. June 20, 2008), Judge Lynn Adelman states:

As Stabenow explains, much like the crack guideline criticized by the Supreme Court in Kimbrough, guideline 2G2.2 [the child pornography guideline] is not representative of the Commission’s typical role or of empirical study.  The guideline has been steadily increased despite evidence and recommendations by the Commission to the contrary.  Congress has repeatedly amended it directly, ostensibly to target mass producers of child pornography and/or repeat abusers of children, a class of offenders that make up less than 5% of those affected by the changes. . . . To the extent that the advisory guidelines deserve continued respect from courts, that respect will be greatest where the Commission has satisfied its institutional role of relying on evidence and study to develop sound sentencing practices.  This guideline simply does not represent that role, as the Commission itself has acknowledged.

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