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.

“Eleven Angry People” doesn’t have a very poetic ring, but (some will be surprised to learn) it’s enough to convict someone of a crime in federal court.  In fact, Hasan Simmons has first-hand experience of this scenario, and the loss of one of his jurors because her child was ill is one of the issues in United States v. Simmons, 2009 WL 674154 (2d Cir. March 17, 2009).  Before this juror was excused, the jury was clearly divided – sending out two requests for the reasonable doubt instruction, and a deadlock note.  Thirty minutes after she was excused, the newly constituted jury of eleven returned a verdict of guilty. 

Fed.R.Crim.P. 23(b)(3) permits a jury of 11 jurors to return a verdict “if the court finds good cause to excuse a juror.”  Here, the district judge permitted a jury of eleven to return a verdict after one juror called in to say that she had to remain at home to take care of sick child.  The defense challenged the decision on the grounds that the court had failed to ascertain how long the juror would be unavailable for service.  Reluctantly affirming the conviction, the Court acknowledged this was a “close” case:

The district court here was not required to conduct a further inquiry after determining that a one-day absence supported dismissal. But this is only because the court also found that waiting an additional day before continuing deliberations risked the absence of another juror, who had alerted the court that extended jury service would cause financial hardship, and who would miss additional work days if deliberations were delayed. Without basing its decision on this additional factor, we have serious doubts as to whether the district court’s decision would have been a permissible exercise of discretion, as the decision lies at the margins of that discretion.

The defense also argued that the juror had been excused “on a pretext to remove an obstacle to reaching a unanimous verdict,” because “the jury was split and could not reach a unanimous decision.”  Rejecting this argument on factual grounds, the Court nonetheless noted that “[t]he course of deliberations prior to a juror’s absence is relevant to the determination of whether to excuse a juror, and a district court might consider evidence of a divided jury to counsel restraint before excusing a juror.” 

Although not adopting a per se rule that a court should always inquire into the expected length of a deliberating juror’s absence, Simmons is still a useful precedent to support such a principle.  After all, the Court notes, conducting an inquiry is “certainly a better practice than foregoing such inquiry.” 

Lawyers: Sabrina Houlton, Joseph Martini, Wiggin and Dana LLP, (defendant); AUSAs John Zach, Katherine Polk Failla

A frequent occurrence at trial is the presentation of the "officer expert" – a police officer or agent who testifies about aspects of a criminal scheme that are outside the experience of a typical juror, such as organizational hierarchies or jargon used by the participants.  The problem with this kind of testimony, as the Second Circuit noted yesterday in United States v. Mejia, 05-2856-cr, 2008 WL 4459289 (2d Cir. October 6, 2008), is that "[w]hen case agents testify as experts, they gain 'unmerited credibility when testifying about factual matters from first-hand knowledge.'"  In Mejia, the Court has given eloquent expression to the defense's objection to such evidence:

[The use of officer-expert evidence] must be limited to those issues where sociological knowledge is appropriate. An increasingly thinning line separates the legitimate use of an officer expert to translate esoteric terminology or to explicate an organization's hierarchical structure from the illegitimate and impermissible substitution of expert opinion for factual evidence. If the officer expert strays beyond the bounds of appropriately "expert" matters, that officer becomes, rather than a sociologist describing the inner workings of a closed community, a chronicler of the recent past whose pronouncements on elements of the charged offense serve as shortcuts to proving guilt . . .

The Government cannot satisfy its burden of proof by taking the easy route of calling an "expert" whose expertise happens to be the defendant.

Facts

Mejia and his co-defendants were charged with various violent acts that supported the notorious MS-13 gang.  At trial, the government presented the testimony of Hector Alicea, a police officer, as an expert witness on MS-13's background, "its history, its presence on Long Island, and its national and international presence; about the gang's colors, hand signs, graffiti use, naming practices, and tattoos; and about its local subunit structure, leadership structure, division of responsibilities, and membership rules."  In addition, Alicea testified to more specific details about MS-13's operations: how they traveled to other states, their attendance at organizational meetings and how they spent money on guns and narcotics.  He also summarized specifics of the investigation, including firarms and ammunition seizures, arrest for narcotics trafficking, and the numbers of murders MS-13 had allegedly committed on Long Island between June 2000 and the trial.  The defendants were convicted on all counts.

Holding

Vacating the convictions, the Court agreed with the defendants' objections to Alicea’s testimony.  The Court found the testimony problematic on three levels (and non-harmless error):

• Alicea testified about facts that were "well within the grasp of the average juror" – such as statistics from the investigation of this case about actual firearms seizures, arrests for narcotics trafficking, and commission of murders.  "No expertise is required to understand any of these facts."  In effect acting as a "case-agent," " [t]hose parts of [Alicea's] testimony that involved purely factual matters, as well as those in which [he] simply summarized the results of the Task Force investigation, fell far beyond the proper bounds of expert testimony."

• Some of Alicea's testimony involved "merely repeating information he had read or heard – information he learned from witnesses through custodial interrogations, newspaper articles, police reports, and tape recordings:"  While experts may rely on hearsay evidence and "analyze" or "synthesize" this evidence, "[t]he expert may not, however, simply transmit that hearsay to the jury."

• Alicea’s testimony improperly communicated out-of-court testimonial statements of cooperating witnesses and confidential informants under the guise of expert testimony, in violation of the Confrontation Clause and the Supreme Court's holding in Crawford v. Washington, 541 U.S. 36 (2004).  Significantly, the Court went on to point out that since Alicea clearly communicated one fact to the jury that he had learned from a co-conspirator's proffer statements (a very specific fact regarding MS-13’s tax policies), "[t]his impugn[ed] the legitimacy of all of his testimony and strongly suggests that Alicea was 'simply summarizing an investigation by others that was not part of the record,' and presenting it 'in the guise of an expert opinion.'"

Comment

This case highlights how cavalier the government has become in presenting officer-expert testimony, to the extent that it, in this case, the government back-doored a co-conspirator's proffer statements through the so-called "expert."  The case is an important reminder of the importance of exploring the basis for this testimony (as the defense lawyers did so impressively here) and objecting to it, while simultaneously providing terrific ammunition in ensuring that that objection is heard.  Practitioners should be especially wary of prosecutors' efforts to end-run the holding in this case, by getting their "expert-officer" to present all his/her improper facts via some bogus "synthesizing" questions.

A prospective juror who says he’s a political science professor, albeit also a lawyer who has not practiced for the last six years, sounds like a good defense gamble.  After all, liberal professors outnumber conservatives in the social sciences by 11 to 1.  On the other hand, if you throw in that that same individual “received a bachelor’s degree from Yale University, a master’s degree from Harvard University, a law degree from Harvard, taught at the University of Michigan law School, was a litigator at two New York City law firms, and served for seven years as general counsel to two New York City agencies and as acting commissioner of homeless services,” one might think again about having such a smart, worldly person on the jury, since people with these kinds of credentials can wield disproportionate influence in the jury room.  It’s great if that influence operates in your favor, but can erase the possibility of a hung verdict if it does not.

Facts
 
In United States v. Bangiyev, 07-cr-331 (NG), 2008 WL 4240005 (E.D.N.Y. September 12, 2008), the presence of such a juror in a counterfeiting trial spawned a Rule 33 motion for a new trial on the grounds that the juror’s failure to reveal his legal work history was materially dishonest.  Had it known the truth, the defense contended it would have struck the juror for cause, or exercised a peremptory challenge.  A peculiar wrinkle in the case involved a post-verdict encounter between the judge and two jurors, who asked to speak to her about an aspect of their decision.  Judge Gershon declined to speak to them.  The defense – creatively – suggested that this was evidence that the jury had been “coerced and improperly influenced” by the deceptive professor/litigator.
 
Holding
 
Judge Gershon denied the motion for a new trial, holding first that the juror had not been dishonest – she had only asked the jurors in voir dire about employment with a law enforcement agency, which she found did not encompass the juror’s employment in the New York City Law Department.  Moreover, even if the juror had misled the court, there was no evidence that he had harbored any bias against the defendant to sustain a cause challenge, and the defense had forfeited its right to make an informed peremptory challenge by failing to ask additional questions about his employment history. 
 
Most interesting in the decision are the court’s comments on the defendant’s claim that the juror improperly used his experience and learning to influence the others.  Dismissing the claim as pure speculation, Judge Gershon added that, in any event, “personal experiences are permissible influences on jury deliberations.”  Rather, what is prohibited is the introduction of additional extra-record facts about the defendant.  She quoted Judge Friendly: “while the jury may leaven its deliberations with its wisdom and experience, in doing so it must not bring extra facts into the jury room. In every criminal case we must endeavor to see that jurors do not [consider] in the confines of the jury room ...specific facts about the specific defendant then on trial” (emphasis in the original).

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. 

As Judge Sack notes in his dissenting opinion in United States v. Elfgeeh, 06-744, 2008 WL 383046 (2d Cir. February 14, 2008), charting a course between protecting a defendant's Due Process rights and the public's right to learn about a trial through uninhibited press coverage is a difficult challenge.  Hence a series of procedures, established in the Second Circuit decision of United States v. Lord, 565 F.2d 831 (2d Cir. 1977), to deal with prejudicial trial publicity:  first ascertain whether the publicity contains potentially prejudicial material and whether the jurors might have been exposed to it; second, if the answer to that question is yes, do an initial inquiry of the jury to determine if any of its members have been exposed to it; and third, examine individual jurors exposed to the publicity, outside the presence of the others, to determine the extent of the exposure and effect on the juror's attitude to the trial. 

In Elfgeeh, the defendants, an uncle and nephew, were charged with operating an unlicensed money transmitting business that was used largely by members of Brooklyn's Yemeni-American community to transfer money abroad.  While the government harbored concerns that the business had been used to funnel money to support terrorist activity, no such charge was included in the indictment, and the court made clear that the government and its witnesses could not allude to terrorism throughout the trial.  The issue was, nonetheless, the elephant in the room at the trial, which commenced (how inappropriately) on September 12, 2004.  Moreover, days later, all the major New York tabloids carried stories on the trial, strongly suggesting a link between this trial and other terrorism prosecutions, and questioning the district court's ruling that the issue of terrorism be avoided.

On the day the articles appeared, the prosecutor brought the issue of the press reports to the attention of the judge, asking the court to admonish the jury to avoid press accounts of the trial, which the court duly did. Counsel for Aref Elfgeeh (the nephew) asked that the jury be polled as to whether any had read the particular articles discussing the trial.  Counsel for Abad Elfgeeh (the uncle, who, incidentally, had connections to an individual connected to Al Qaeda), however, indicated a preference for not polling the jury.  The court stood by the decision to issue merely a general admonishment.

The majority held that the court's decision not to follow the Lord procedures was not an abuse of discretion, finding that it was hardly clear that the jurors had seen the offending articles, and, in any event, it was within the district court's discretion to side with Abad, whose attorney had stated a preference against polling.  The court also, in a troubling statement, found that where the standard admonishment not to read or watch anything about the trial is given, "we may presume in the absence of any indication to the contrary, that the jurors have followed the court's instructions and have rendered their verdict solely on the basis of the evidence at trial."

In a compelling dissent, Judge Sack rejects the idea that a general admonishment was sufficient when the negative publicity was widespread, quoting Krulewitch v. United States, 336 U.S. 440, 453 (1949) (Jackson, J., concurring) (“The naive assumption that prejudicial effects can be overcome by instructions to the jury all practicing lawyers know to be unmitigated fiction.”).  He points out that the idea the jurors in a high profile trial may not have read articles in the three major New York tabloids as they commuted into court is preposterous.  Moreover, he took issue with the Court's conclusion that here, "in a situation where there was an extraordinary danger of actual prejudice," Abad's preference for not polling should be privileged over Aref's request for polling.
 
At the heart of the dissent is a legitimate concern that an innocent man may have been convicted.  As Judge Sack states:

This is not purely a theoretical matter. I fear that there is a substantial danger that Aref, at best a third-string player in the scheme for which he was indicted, was convicted because he was a member of the Yemeni community, and the jury suspected that the prosecution was, at bottom, about terrorism and Al Qaeda, supported by publicity to that effect. I do not see how, with respect to Aref, the error can be said to be harmless.

This decision joins another recent decision from the Second Circuit, discussed here, that shows a disturbing disregard for Due Process issues relating to Muslim-Americans.  Once again, I ask the question, who will reign in hysterical responses to terrorism other than independent federal judges, tenured for life?