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April 24, 2009

Notable (and major?) child porn ruling from the Second Circuit

Regular readers may recall US District Judge Jack Weinstein's fascinating Polizzi decision last year, in which he ruled that he should have informed the jury of which counts in a child pornography case carry mandatory minimum sentences (basics here, early commentary here, amicus briefing here).  Today the Second Circuit reversed Judge Weinstein's ruling, but seems to do so in a way that could have a much bigger impact than if they had just affirmed.  Here is the Second Circuit's summary of its ruling in US v. Polouizzi, No. 08-1830 (2d Cir. April 24, 2009) (available here):

Appeal from a judgment entered April 9, 2008, in the United States District Court for the Eastern District of New York (Weinstein, J.), convicting defendant of eleven counts of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B).  Cross-appeal from an order and judgment entered April 9, 2008, granting defendant’s motion pursuant to Federal Rule of Criminal Procedure 33 for a new trial on twelve counts charging receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2).  Because the defendant’s possession as charged in the indictment constituted a single unit of prosecution and because the district court erred by granting defendant’s motion for a new trial on the counts charging receipt of child pornography, we vacate the April 9, 2008 order of the district court granting defendant’s motion for a new trial and remand this case to the district court to vacate all but one of the possession convictions and for further proceedings consistent with this opinion.

Here is the key language of what strikes me as a very important holding (and a footnote with caveats) in this decision:

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 conviction under 18 U.S.C. § 2252(a)(4)(B). [FN5]

[FN5]We note that Polizzi was charged with possessing, on a single date, eleven computer files stored on three hard drives housed in two adjacent rooms in a single premises, his detached garage. Moreover, the government has not maintained, either below or on appeal, that Polizzi’s multiple possession convictions under § 2252(a)(4)(B) could be sustained because Polizzi “acquired possession of the [prohibited matters] on different occasions, or that he stored them at different sites.” United States v. Olmeda, 461 F.3d 271, 280 (2d Cir. 2006) (construing 18 U.S.C. § 922(g)). Thus, we need not decide whether § 2252(a)(4)(B) could be construed to support multiple possession convictions if such a theory were pleaded and proved. See Chiarella v. United States, 445 U.S. 222, 236-37 (1980) (noting that “we cannot affirm a criminal conviction on the basis of a theory not presented to the jury”); United States v. Mittelstaedt, 31 F.3d 1208, 1220 (same).

Because I haveto take advantage of the first perfect spring day in Columbus to go to the driving range, I likely will not have sufficient time this afternoon to completely consume and comment on this notable Second Circuit ruling.  But I am hopeful that others will use the comments to help me figure out if the decision is a big deal or really just a big dodge from the Second Circuit.

Related posts on Polizzi and the challenges of child porn downloading cases:

UPDATE:  The Second Circuit decision also includes an interesting discussion of whether and when it might be appropriate to advise a jury of the mandatory minimum sentencing terms associated with certain charges.  This post at New York Federal Criminal Practice effectively discusses this issue.

April 24, 2009 at 11:43 AM | Permalink

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Comments

Doesn't this just encourage the gov't to charge everyone with receiving rather than possessing, since that statute both allows individual prosecution for separate incidents and invokes the 5-year mandatory min?

Posted by: Jay | Apr 24, 2009 12:06:26 PM

Not to be cute but I think it's both a big deal and a big dodge. It's clearly obvious that they are dodging the major question but it's a big deal because I think most people would have assumed there wasn't even a question to dodge.

As to Jay above. It's actually much harder to prove reception than possession. There is a real factual basis for the distinction between the two counts. It's legally possible for one to have possession of something that they never, legally speaking, received.

Posted by: Daniel | Apr 24, 2009 9:26:54 PM

On second thought, I'm also not sure what the impact would be on sentencing realities. Even though many perps are charged with a zillion counts of possession, with few exceptions these are almost always (a) plea bargained down to a single count or (b) given concurrent sentences. Yes, it true that some people do get hit with a thousand year jail sentence as happened in Arizona but those are the outliers.

In other words, I think that the reduction of multiple counts to just one count might have an impact around the margin as it would reduce the theoretical exposure of the perp. That might impact his desire to plea bargain at all, for example. But I'd be a bit surprised if it had a huge impact on the actual amount of time people actually served in prison.

Take, for example, this sentence from the opinion "remand this case to the district court to vacate all but one of the possession convictions." The really important question is whether or not this fact will change the sentence the guy gets. If it doesn't, then it's just a paper victory for him anyway.

Posted by: Daniel | Apr 24, 2009 9:43:08 PM

Good point. The Arizona case was in state court anyway, right?

Posted by: Jay | Apr 25, 2009 6:30:37 PM

Hi Daniel. I'm just curious -- How can you possess something without having ever received it? If you manufactured something yourself, I suppose you possess it without ever having "received" it. Are there other ways?

Posted by: defender | Apr 27, 2009 4:06:06 PM

great idea.. thanks..

Posted by: home made | Aug 2, 2009 11:31:53 AM

thanks

Posted by: erotic video | Aug 2, 2009 11:32:45 AM

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