Opinion

United States v. Polouizzi

687 F. Supp. 2d 133
2010 WL 318265

Court: District Court, E.D. New York
Filed: Feb 11, 2010
Status: Published
Author: Weinstein
On the bench: Jack B. Weinstein
Cited by: 8 cases
Authority: More cited than 57.8%

Vacated by United States v. Polouizzi, 393 F. App'x 784 (2010)

dismissing unjust enrichment claim, pleaded in the alternative, noting that “[the plaintiffs] failure to allege that the contracts at issue [were] invalid or unenforceable preclude[d] it ... from seeking quasi-contractual recovery for events arising out of the same subject matter.”

How later courts described this case

dismissing unjust enrichment claim, pleaded in the alternative, noting that “[the plaintiffs] failure to allege that the contracts at issue [were] invalid or unenforceable preclude[d] it ... from seeking quasi-contractual recovery for events arising out of the same subject matter.”
noting that the first of "[t]wo major Supreme Court Justices' opinions in the nineteenth century ... restricting the Sixth Amendment's jury" right to decide the law is "Justice Story's in ... United States v. Battiste..."
“Justice Story’s statement was made in the context of preventing a conviction unfounded under the statute as he construed it, not to prevent the jury from refusing to convict a person technically guilty ”
finding of trial court

Written by the judges who cited it.

The opinion

MEMORANDUM AND ORDER GRANTING NEW TRIAL

CPOLOUIZZI

JACK B. WEINSTEIN, Senior District Judge:

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Table of Contents

I. Introduction...............................................................137

II. Facts and Procedural History ...............................................138

A. Defendant and the Crime...............................................138

1. Childhood Sexual Abuse in Sicily....................... 138

2. Resulting Psychological Trauma.....................................140

B. Arrest and Indictment .................................................140

1. Execution of Warrant ..............................................140

2. Twenty-Three Count Indictment.....................................142

C. Trial Proceedings......................................................142

1. Images...........................................................142

2. Testimony ........................................................143

a) Polizzi’s Testimony..............................................143

b) Dr. Lisa Cohen.................................................145

c) Dr. Eric Goldsmith..............................................146

d) Dr. Naftali Garcia Berrill........................................148

3. Jury Charge ......................................................150

a) Written Charge Sheet...........................................150

b) Insanity Defense................................................152

c) Mandatory Minimum Sentence ...................................152

D. Jury Verdict and Colloquy..............................................152

1. Jury Verdict ......................................................152

2. Jurors Opposed To Incarceration ....................................152

E. Post-Trial Proceedings.................................................155

1. First Grant of New Trial Based on Trial Court’s Perception of Error.....155

2. Sentencing on Counts Fourteen through Twenty-Four..................155

F. Appeal...............................................................155

G. Proceedings on Remand................................................156

III. Second Grant of New Trial..................................................157

A. Standard.............................................................157 .

B. Preliminary Issue .....................................................158

C. Overindictment........................................................159

1. No Prejudice From Evidence Admitted...............................159

2. Prejudice From Overbreadth of Charges Tried ........................160

D. Timeliness............................................................164

1. “Seven-Day” Rule .................................................164

2. Excusable Neglect.................................................165

3. Supplemental Order................................................167

IV. Informing New Jury of Mandatory Minimum Sentence .........................167

A. The Sixth Amendment — History and Context.............................167

1. American Practice

Circa

1791 .......................................172

2. British Practice

Circa

1791..........................................176

a) Ryder Papers..................................................176

b) Old Bailey Session Papers .......................................180

B. Caselaw..............................................................183

1. Jury’s Historic Sentencing Role......................................184

2. Keeping Jury in the Dark Incompatible with Historic Jury Role..........186

3. Jury’s Power to Moderate Harsh Effects of Law.......................188

C. Attempts to Restrict Sixth Amendment Jury Discretion....................190

1. Eighteenth and Nineteenth Century..................................190

2. Contemporary.....................................................195

D. Second Circuit Court of Appeals: Jury Knowledge.........................197

Thomas

and

Pabon^-Cruz

Premises...................................197

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Thomas

.......................................................197

b) Pabon-Cruz....................................................199

Post-Booker, Pabon-Cruz, Thomas

and

Shannon

Require Reinterpretation..............................................201

Pabon-Cruz

Applied to Polizzi....................................202

Gilliam’s

Language Represents Current General Role of Informed Jury as Representative of Community Mores........................202

3. In Instant Case, Informing the Jury of the Applicable Penalty Was Necessary Because of the Defendant’s Unusual Background and the Unknown Punishment.........................................204

E. Variability of Results Depending Upon Informed & Non-Informed Jurors .............................................................204

F. Summary: Informing Jury in Present Case...............................207

G. Special Circumstances..................................................208

V. Conclusion................................................................209

I. Introduction

The defendant — a successful, middle-aged business and family man with no criminal record — was tried and convicted of twelve counts of receiving and eleven counts of possessing child pornography in the privacy of his locked garage.

See

18 U.S.C. §§ 2252 (a)(2) (receipt); 2252(a)(4)(B) (possession).

See also United States v. Polizzi (Polouizzi I),

549 F.Supp.2d 308, 319 (E.D.N.Y.2008). The only defense proffered was insanity, predicated largely on repeated rapes by a relative, a friend of the family, the police, and other sexual abuse Polizzi suffered as a preteen boy in rural Sicily.

See

18 U.S.C. § 17 . The jury found him guilty on all counts.

A new trial was granted by the trial court on the receipt counts, on the ground that the judge had erred in failing to recognize, and to exercise, his discretion to inform the jury of the mandatory five-year minimum sentence required by the receipt counts,

see

18 U.S.C. § 2252 (b)(1), depriving the defendant of his Sixth Amendment right, when some jurors believed that medical treatment rather than long incarceration was required, and that it would be permitted on a finding of guilt.

See Polouizzi I,

549 F.Supp.2d at 443-50 .

The Court of Appeals for the Second Circuit reversed.

United States v. Polouizzi (Polouizzi II),

564 F.3d 142 (2d Cir. 2009). It sharply reduced the number of crimes that could be charged in the indictment, from twenty-three to five, and remanded the case for further action by the trial court in accordance with the appellate opinion.

Id.

at 153-59 .

Defendant moved for a new trial. The government opposed.

To expedite an appeal, this court promptly issued two preliminary memoranda, indicating that this more extensive memorandum,

Polouzzi V,

would follow.

See United States v. Polizzi (Polouizzi III),

257 F.R.D. 33 (E.D.N.Y.2009) (Mem. on Post-Appellate Proceedings);

United States v. Polizzi (Polouizzi IV),

262 F.R.D. 160 (E.D.N.Y.2009) (Abbreviated Mem. & Order Granting New Trial). In view of the decision of the Court of Appeals for the Second Circuit in

Polouizzi II,

sharply reducing the scope of the indictment, the trial court in

Polouizzi III

declared that a new trial would be required. 257 F.R.D. at 36-38 . In

Polouizzi TV,

the trial court noted that it would exercise its discretion on retrial to inform the jury of the five-year mandatory minimum sentence of incarceration required by a conviction for receipt of child pornogra

*138

phy through the Internet.

Polouizzi IV,

262 F.R.D. at 161-62 .

The reduction in charges by

Polouizzi II

has substantially changed the dynamics of a jury’s approach to the defendant’s insanity defense. “[L]etting the guilty verdict stand would be a manifest injustice.”

United States v. Ferguson,

246 F.3d 129, 134 (2d Cir.2001).

II. Facts and Procedural History

A. Defendant and the Crime

The defendant’s background is detailed in the district court’s prior order.

See Polouizzi I,

549 F.Supp.2d at 320, 323-26 . For the convenience of the reader, much of the material in

Polouizzi I, II, III,

and

is incorporated in the present comprehensive document,

Polouizzi V.

The defendant, Peter Polizzi, is fifty-six years old. He was brought to this country when he was a young teenager after suffering serious sexual abuse as a child in rural Sicily. Without funds, and with only a few years of schooling, he worked assiduously at a pizzeria in Queens, ultimately buying it and turning it into what he and his family now operate as a valuable and well-known restaurant. Trial Tr. 169. He taught himself to play the guitar, became leader of a band, met and married his present wife, with whom he had five successful and lawfully engaged sons, who are close to him.

Id.

at 165, 169, 1018, 1366. He bought and lives in a fine home. A religious man, he attends church regularly and is much respected in his religious and secular communities.

Id.

at 907. He had never before been charged with a crime. So far as is known, he has never molested a person, sexually or otherwise.

The defendant had a double-locked room in the attic of his detached garage. There he collected and viewed child pornography through the Internet. Eventually he possessed over 5,000 pictures, the majority of which were of young girls.

Id.

at 355, 859. Polizzi never sent photos to anyone, nor did he enter teenage chat rooms or attempt online solicitation.

Id.

at 534-38, 1366;

see id.

at 1058. Beyond his present conviction for receipt and possession of child pornography, no allegations of improper conduct have ever been made.

See id.

at 165.

Polizzi claimed he came across child pornography accidentally through a “pop-up” advertisement while looking for adult pornography, and was “shocked” by what he saw.

Id.

at 1046. He thought such “filthy” photos should be outlawed, but did not realize they were illegal; if they were forbidden, he asked himself, why were they freely available on the Internet?

Id.

at 1047, 1105 (“Now, I know it’s wrong, but back then I didn’t — I didn’t know it was wrong. You say it was illegal, to me something that is there you see is not illegal, because if it’s illegal what to stop, what is there is illegal [sic]?”).

He testified that his goal was to turn his collection over to law enforcement.

Id.

at 1047, 1070;

see id.

at 782. The images, he said, reminded him of his of being sexually abused multiple times as a child in Sicily, and he said he wanted to help those children he now saw suffering the same fate.

Id.

at 1046;

see

Part II.C.2.a,

infra.

With what he testified was fear of law enforcement based upon the sexual abuse he suffered at the hands of Italian police officers, and hesitant to reveal his own sexual abuse of which his family knew nothing, he never notified any authorities. Trial Tr. 1047, 1048, 1071 (“Always, when I see the police I get anxiety attack, even now.”).

1. Childhood Sexual Abuse in Sicily

Before arriving in the United States from Sicily with his family, Polizzi lived in rural Sicily, where he suffered serious sexual abuse. As a preteenager, he was re

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peatedly molested and raped by his uncle, sodomized at knife-point by a family friend, and raped by Italian police officers — one of whom sodomized him with a gun.

In Sicily, Polizzi and his family lived in a small rural village, working as sharecroppers. Trial Tr. 941. Dr. Jane Schneider, a cultural anthropologist specializing in 1950s and 1960s Western Sicily, testified as to the general poverty, living arrangements, and economic structure of the region, lending general background support to Polizzi’s account.

Id.

at 166, 721-37. She confirmed that Burgetto, Polizzi’s village, was then a “very poor,” “socially stratified” “rural town” of about 6,500 people, a peasant society with a feudal-like history of large estates and sharecroppers,

id.

at 728:

The majority of the population had very little land or no land and they worked for or were sharecroppers of large landowners.... If they were fortunate they had a mule or maybe a donkey, they commuted to their fields sometimes on mule back.... The mules lived in the household with the family. A typical ... poor peasant’s house was maybe one room or two rooms with perhaps alcoves for children to sleep in ... and adjacent to that would be the stall with the family’s mule.

Id.

at 729.

Dr. Schneider also described the corrupt carbina, the Italian national police force, and its officers, the carabinieri:

[T]he police in a rural town in those days would have been members of the car[b]ina and this is a quasi militarized national policing institution in Italy.... [T]he carabinieri would not have local ties ..., you would be assigned to some community in Italy where you didn’t have any local connection, so the carabinieri was for the most part outsiders to the communities in which they were policing.... [T]he police and carabinieri in Sicily, especially western Sicily, which got this history of large estates and the Mafia and so on, were very — had a very bad reputation, a reputation for corruption, reputation for not prosecuting organized crime, criminal offenses ....

Id.

at 732-33. A poor peasant family, Polizzi, his parents, and his six younger brothers and sisters shared their hovel with a mule.

Id.

at 942.

Polizzi was often forced to share a bed with his teenage uncle, who sexually molested him beginning when he was four years old.

Id.

at 952. At age seven, Polizzi was beaten and raped by this uncle, who threatened to kill him if he ever told anyone.

Id.

at 959-62. Despite the warning, he did tell his mother, only to be struck by her and accused of lying.

Id.

at 963.

A year later, Polizzi was raped again. Sent into the fields on an errand, a family friend — his brother’s godfather- — -beat and sodomized him at knifepoint, threatening to kill him if he said anything.

Id.

at 970-71. Polizzi later revealed the abuse to the village priest, whose only comment was “don’t do that again, because God [is] going to punish you.”

Id.

at 990;

see id.

at 1247.

Additional incidents of sexual abuse took place when he was nine. Walking home from school, Polizzi was seized by two Italian carabinieri, who raped him in a stable. After they finished, one of the officers took his service revolver, inserted it in Polizzi’s anus and then his mouth, telling him that he and his family would be killed if he ever told.

Id.

at 975-79. Polizzi never went back to school, instead obtaining work in a bakery.

Id.

at 980.

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Polizzi had two friends in the village, boys his age who had also been raped by the police.

Id.

at 983-84. Playing hide and seek on the outskirts of town one summer night, they suddenly heard “screaming, running.”

Id.

at 987. Polizzi froze under a bush, but his two friends decided to run, only to be caught by carabinieri. The police officers beat one of his friends, punching and kicking him to the ground, where he hit his head on a rock. “[A]s soon as [his friend] fell he didn’t move no more.”

Id.

at 988. In testimony made more credible by the sociologist’s testimony about carabinieri practice in rural Sicily at the time, the defendant swore that the carabinieri fled, taking one boy with them and leaving the other dead. Polizzi never again saw the boy the police had taken away.

Id.

at 987-88. A year or two later, Polizzi left for the United States with his family.

2. Resulting Psychological Trauma

Although he achieved the American dream in many ways, Polizzi retained, according to his own testimony and that of experts, psychological scars from his childhood abuse. His wife and children did not know these secrets from his past. After he left Sicily, the next person Polizzi told about these rapes, some forty years later, was a counselor assigned after his arrest.

Id.

at 990, 1240, 1302. Polizzi’s adult life was marked by post-traumatic stress and obsessive-compulsive disorders; prior to trial, he never sought any mental health treatment.

Id.

at 791,1209. Lacking self-awareness, he considered his behavior normal.

See

Trial Tr. 873. It was only during supervised release associated with the sentence for his possession counts that he obtained treatment, to which he responded successfully.

See

Part II.E.2,

infra.

Concussive head injuries were suffered by the defendant from several car accidents in the early 1990s.

See

Trial Tr. 1139-40. Because the only medical record introduced was a recent MRI scan that by itself did not reveal anything of significance, it is impossible to say how, if at all, head trauma affected him.

See id.

at 1262-64,1320.

The opposing experts at trial disagreed on the extent of his mental functioning and health.

See

Parts II.C.2.b-d,

infra.

Upon a retrial, the physical and psychological history of the defendant will be examined in greater depth.

B. Arrest and Indictment

Polizzi’s arrest followed an extensive investigation of Hardcore, a “private child porn club,” advertised in a spam email message that ultimately was forwarded to the Suffolk County Police Department by a Long Island householder. Trial Tr. 182, 199. Computers and information seized from companies hosting Hardcore’s website included an “access log” of visitors. The log recorded 900,000 internationally traded Internet Protocol addresses during a ten-day period in March 2005, representing some 1,900 unique “customers.” Trial Tr. 261, 263, 273. One of the addresses included in the log was traced to Polizzi.

Id.

at 270. Entries showed repeated access by defendant on March 28, 2005, indicating downloading of a number of images from Hardcore’s “archive girls” area.

Id.

at 273.

1. Execution of Warrant

On November 16, 2005, FBI and local law enforcement agents arrived at defendant’s home to execute a federal court-ordered search warrant seeking computer equipment and evidence related to the possession of child pornography.

Id.

at 150, 208, 279. Arriving at 6:00 p.m. at the single-family residence, the agents waited almost two hours for Polizzi and his wife to arrive home from work in their restaurant. Trial Tr. 280. While pulling into their

*141

driveway, the couple was approached by the agents who identified themselves and explained that they were there to search the house for child pornography pursuant to a warrant.

Id.

at 283. Polizzi said nothing, but nodded, opened the driveway gate for the agents, and drove inside.

Polizzi’s wife became “hysterical” as the officers questioned the couple and their youngest son, then sixteen, in the kitchen.

Id.

at 286, 296, 592-98, 742. She suggested that whatever happened might have been caused by a friend of one of her sons.

Id.

at 286.

Polizzi fully cooperated with the agents.

Id.

at 174. He informed them that there was a family computer in the basement; it was seized.

Id.

at 285. This computer had no forbidden images on it.

Id.

at 518.

After fifteen to twenty minutes of trying to calm his “extraordinarily upset” wife, Polizzi told the agents there were additional computers in the detached garage.

Id.

at 276, 746;

see id.

at 1049.

But see id.

at 294. Two agents escorted him there,

id.

at 291-96; the two others remained behind with Polizzi’s family to “make sure [his wife] was okay.”

Id.

at 296.

On the staircase leading up to the rooms on the second floor of the garage, Polizzi informed the officers that “[t]his is where are [sic] I look at the children.”

Id.

at 687. It was, he said, himself and not his sons who had downloaded the images.

Id.

at 313. Polizzi then asked them what could be done to stop the child abuse depicted: “What are we going to do about this?”

Id.

at 1367, 1379. Inside the two upstairs rooms — one with two door locks and the other with three, to which he alone ' had keys — he showed the agents the computers they sought.

Id.

at 145-47, 300, 686.

Polizzi was then questioned by the agents. Upon being read Miranda warnings,

id.

at 306, he signed forms waiving his rights and stated he was willing to talk without an attorney present.

Id.

at 309, 312. Polizzi then signed the following statement at 8:40 p.m.,

id.

at 156, 305-19:

I, Peter Polizzi, Senior, being duly sworn and deposed says I am 52 years old, having been born on ... [19]53. I live with my family at ..., Glendale, New York, with my family.

I am here giving this statement to Detective Forrestal and Special Agent Danielle Massineo having been made no threats or promises to do so. Some time in February or March, 2005, I received an email in my AOL email account, ppoli ... @aol.eom inviting me to join a website called “Hard Lovers.” It was $79 or $89 to join and I had to use my credit card to join. I used my MasterCard from Citibank; it’s in my name. The number is....

After I joined, I would visit ever [sic] couple of days. After I joined, I knew it was a child pornography website. I downloaded pictures and videos from this website. I keep the pictures on my external hard drive that’s a Maxtor 300 gig that I bought new about six months ago. I have another external hard drive that I used and transferred everything over from an external drive that I also bought new.

The computer I used to go to, the ... hard lovers website I had custom made at a computer store on Cypress and Weirfield. I had bought it new about two years ago. It was the black tower where I pointed to the Detective Forrestal at my desk. I’m not sure how may [sic] child pornography pictures I have but I have a lot. I know I’m a member of the site now and I downloaded this morning. I know I have of a lot. I know I’m a member of the site now and I have Red [sic] something, I don’t re

*142

member exactly, it’s in my favorites. I used the same credit card number, the Citi MasterCard to join. I don’t send them out, it’s only private. The different passwords of the websites are in my AOL email that I have so I know what they are.

I do have anti-virus software, it’s in my computer, and I’m the only person that uses my computer. I keep it in a locked room upstairs that I only have access to. I have read the above two page handwritten statement and I swear that it is all true.

Id.

at 317-18.

Over 5,000 digital still images and some motion videos of child pornography (in addition to adult pornography) were found stored on the garage computers and three external hard drives. The images and videos had been downloaded over a period of at least four years,

id.

at 145-46, 349-50; the agents found a list of child pornography search terms dated June 9, 2001. Also in his garage were huge collections of music, baseball cards, comic books, stamps, and other materials.

Id.

at 765, 860, 862, 888.

See

Part II.C.2.b,

infra.

Twenty-Three Count Indictment

Polizzi was arrested and charged with twelve counts of receipt and twelve counts of possession of seventeen different photos and videos he had downloaded from the Hardcore website.

See

18 U.S.C §§ 2252(a)(2) (receipt) and 2252(a)(4)(B) (possession).

See

Arrest Warrant, Jan. 12, 2006, Docket Entry (“D.E.”) No. 4. The receipt counts (Counts One through Twelve) charged him with receiving two illicit images on February 20, 2005, two on March 5, 2005, four on March 16, 2005, and four on March 20, 2005. The possession counts (Counts Thirteen through Twenty Four) charged him with possessing, on November 16, 2005, the day his home was searched, twelve prohibited images or videos, stored on three different external hard drives.

He was charged with both receipt and possession of several of the images: Counts One and Twenty were based on the same depiction, as were Counts Three and Eighteen, Four and Nineteen, Seven and Twenty-Three, Eight and Twenty-Four, Eleven and Twenty-One, and Twelve and Twenty-Two.

See

Superseding Indictment, D.E. No. 35. One of the possession counts (Count Thirteen) was dismissed on the government’s motion before trial. Govt’s Letter to Dismiss Count Thirteen, Aug. 27, 2007, D.E. No. 62. Defendant’s motion to dismiss the indictment on constitutional grounds was denied.

Polouizzi I,

549 F.Supp.2d at 329-30 .

C. Trial Proceedings

At trial, defendant’s knowing receipt and possession of pornographic images and the fact that they depicted minors engaging in sexually explicit conduct were not disputed. Polizzi admitted collecting child pornography and described at length how and why he began to do so.

See Polouizzi I,

549 F.Supp.2d at 330 . The only contested issue at trial was his defense of insanity.

See

18 U.S.C. § 17 .

Polizzi contended that obsessive-compulsive and hording behavior, combined with the trauma he re-experienced upon seeing images of abused children, caused him reflexively to collect child pornography in an attempt to “help the children.”

See

Part II.C.2.b,

infra.

The jury’s deliberations on this issue were critical, with some jurors expressing the view, after the verdict, that Polizzi needed mental treatment, not imprisonment.

See

Part II.D.2,

infra.

1. Images

During jury selection, potential jurors were informed that the case would involve “offensive” and “distasteful” depictions of

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“individuals engaged in sexually explicit conduct.”

See

Juror Questionnaire 11. At trial, a few illicit images from Polizzi’s computer were introduced through the testimony of an officer with the Suffolk County Police Department who had viewed the images on Polizzi’s computer in connection with the underlying investigation.

See Polouizzi I,

549 F.Supp.2d at 326-29 (describing underlying investigation).

To prevent unnecessary prejudice, the images were shown to the jury in brief flashes. Short segments of the videos were played, followed by testimony that each segment was representative of the video from which it was excerpted.

See id.

at 331 (discussing presentation of images to jury);

Polouizzi II,

564 F.3d at 148-50 (same).

2. Testimony

Testimony was elicited from a number of witnesses regarding Polizzi’s insanity. To satisfy the federal Insanity Defense Reform Act (“IDRA”), Polizzi had to prove by clear and convincing evidence that he was legally insane when the offenses occurred, in that: 1) he had a severe mental disease or defect at the time he received and retained the images; and 2) as a result he had been “unable to appreciate the nature and quality or the wrongfulness of his acts.” 18 U.S.C. § 17 .

Focusing on Polizzi’s childhood sexual abuse, the defense emphasized lasting psychological effects as manifested in defendant’s post-traumatic stress and obsessive-compulsive disorders. Defendant contended that when he first accidentally came across child pornography, he had re-experienced his own abuse and obsessively began to collect as many photos as he could to help the children. Trial Tr. 1069-70 (“I have been collecting, the material that I’ve been collecting, every time I was on the internet, collect anything I find that was not appropriate to see it [sic], in my opinion should not be there, I save all of them, all the materials I come across.”). According to defense counsel,

Mr. Polizzi was doing what he believed to be right. He could not appreciate that downloading pictures of the children was wrong. What is wrong, what Mr. Polizzi knows is wrong ... is child abuse.... Mr. Polizzi, in a wrong way maybe, but in his way because of his psychological trauma, is trying to figure out a way to stop child abuse.

Id.

at 1368 ;

see id.

at 782 .

Two defense experts, Dr. Eric Goldsmith and Dr. Lisa Cohen, testified about Polizzi’s mental condition. Dr. Naftali Garcia Berrill provided expert evidence in rebuttal for the government. The experts were permitted to opine on whether Polizzi “did or did not have the defect or disease relied upon as a defense.” Jury Charge 19. Their opinions on whether Polizzi was “legally insane,” were not permitted, since that was a question for the jury.

See id.

at 1215-16 ; Fed.R.Evid. 704(b) (“No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.”).

a) Polizzi’s Testimony

Polizzi testified in detail to the severe sexual abuse he had suffered in Sicily as a child. His distress in reliving the events was evident. A recess was required several times when he broke down while he was on the stand. Trial Tr. 1047;

see id.

at 959, 998 . When the first charged photo was shown to the jury, Polizzi suffered an acute anxiety attack and was taken by ambulance to a hospital.

Id.

at 397-99 .

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The trial continued the following day. To avoid another breakdown, Polizzi voluntarily removed himself from the courtroom while the sixteen images of child pornography were shown to the jury.

Id.

at 405 .

The defendant testified that he had originally learned of Internet child pornography accidentally, in 2001 or before, through a “pop-up” while visiting an adult pornography website.

Id.

at 1046 . “ ‘Pop-up’ windows are windows containing notifications or advertisements that appear on the screen, usually without any triggering action by the computer user.”

1-800 Contacts, Inc. v. WhenU.com,

309 F.Supp.2d 467 , 476 n. 18 (S.D.N.Y.2003). In his written statement to the police, he said he had later discovered the Hardcore website after receiving an email in his AOL account.

The images, he testified, shocked and horrified him.

See

Trial Tr. 1178, 1230. Seeing such graphic depictions reminded Polizzi of being raped and molested in Sicily.

Id.

at 1046 (“Oh, boy. I see my childhood, the event of the abuse happened over and over.”). Curiously, he said he thought he might be able to find a photograph of himself: “Oh, my God. When I used to see this material I used to see myself in there, I look for my picture and my uncles [sic].”

Id.

at 1048.

He said he knew that child pornography was wrong, but he believed the online images were legal. Had they been illegal, he reasoned, such “garbage” would not be available on the Internet.

Id.

at 1105. Hence he had used his real name, email address, street address, and credit card number to pay the membership fee to join Hardcore.

Id.

at 152, 276, 317, 368. Despite the fact that many websites themselves cautioned that their material “was not legal in many countries,”

id.

at 155, 253, he contended that he had not understood that his acts — the downloading of the pictures — were wrong.

Id.

at 1090. He said one reason for his downloading was to stop other children from being abused as he himself had been abused. Hence his first statement to the FBI agents was, “[w]hat are

going to do about this?”

Id.

at 1367, 1379. What he meant by that question, he later explained, was that

whoever put this kind of material in there should be brought to justice because this is not right, because no one close to me should not have cause [sic] to others, because my life all the fear, all the nightmares, and everything else involved comes from this, and if it’s nothing be done [sic] about this, a lot of innocent children will be raped because of this.

Id.

at 1050.

Notwithstanding his desire to stop the depicted abuses, Polizzi never voluntarily informed law enforcement or anyone else of his collection.

See id.

at 858, 1138, 1180, 1309. He asserted that he did not trust the police on such matters after his experiences with the Italian carabinieri.

Id.

at 1048. He could not go to the police because of “[m]any reason [sic]. The reason that I was abused in [sic] this carabinieri, which in this country mean the uniform of the police. Second, oh, boy, I been — I was at gun point by police....”

Id.

Polizzi recognized that if he “share[d] that information I would tell my even [sic] sickness, which I kept for 45 years and I could not.”

Id.

at 1047. In order to explain why he had collected the photos, he would have to reveal his childhood sexual abuse, something he felt was impossible.

45 years it’s inside of me, this has been like something unexchangeable [sic], only people that went through this, what this come from or what this causes and where you go from this. This is something that you keep inside because you cannot share with anybody because it’s

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very, very, very awful thing to share with anybody and I don’t wish my worse [sic] enemy what happened to me, why because is [sic] this is wrong.

Id.

at 1062. When the FBI showed up in his driveway, Polizzi said he was relieved.

[I]nside I had the feeling of joyness. Why? Because finally the stuff that I have turn it over or say to the police ... they will find it there. To me it was a kind of relief. I also said because now that they find out I have to tell my secret, which was very hard because now finally my wife know [sic] I had secret.

Id.

at 1048-49. Even after his arrest Polizzi did not immediately disclose his childhood experience to the police or anyone else. Not until six months into post-arrest counseling ordered by Pretrial Services did he speak with a therapist about the matter, after learning of a woman who had spoken to her family about similar abuses with positive results.

Id.

at 1054.

When that happen, you know, make me felt [sic] that I was not alone in this, someone else be in the situation that I was, and regarding the information that we share there, by sharing this kind of information it was a kind of relief for her and I thought releasing this kind of information will be the same for me.

Id.

b) Dr. Lisa Cohen

Dr. Lisa Cohen, a clinical psychologist at Beth Israel Hospital conducting research with individuals accused of child sex crimes, was the first expert to testify.

Id.

at 766-902. She had administered a battery of neuropsychological tests to Polizzi and interviewed him twice; she also interviewed one of his sons.

Id.

at 771, 875. Test results showed that Polizzi had significant “impairment of executive function,” the “collection of cognitive abilities that have to do with being able to use judgment to think in complex ways, to think in flexible ways, to monitor one’s own behavior, impulse control.”

Id.

at 774. In the four cognitive functioning tests, his scores were quite low — between the 0.1 and 10.8 percentile — which Dr. Cohen attributed to possible brain injuries from Polizzi’s car accidents; they also “showed memory problems.”

Id.

at 773-77, 870. His overall IQ score was considered “borderline range of average intelligence.”

Id.

at 1280-83. Dr. Cohen also evaluated Polizzi using the Yale-Brown Obsessive Compulsive Scale (“YBOCS”), “the standard measure of obsessive compulsive disorder.”

Id.

at 778.

Dr. Cohen’s final diagnoses were “significant cognitive impairment,”

id.

at 783, and “obsessive compulsive disorder characterized by severe hoarding” with “limited insight” as defined in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (“DSMIV”).

Id.

at 882, 885. She did not evaluate Polizzi for post-traumatic stress disorder.

Id.

at 782, 882.

The “severe hoarding” Dr. Cohen identified referred to Polizzi’s extensive and varied collections besides child pornography. In his rooms over the garage, Polizzi had collected and organized tens of thousands of baseball, soccer, hockey, frisbee, and football cards, movies, musical recordings, comic books, stamps, and coins; he had never sold any.

Id.

at 765, 860, 862;

see id.

at 900. Polizzi estimated he had 4,500 videos, 10,000 comic books, 10,000 baseball cards, 4,000 CDs, 4,500 coins, 3,000 stamps, 150 boxing cards, and 500 soccer cards.

Id.

at 888.

According to Dr. Cohen, Polizzi, like other hoarders, did not see his collecting as a problem.

See id.

at 889. He rationalized that his collections were “a good investment for his children,”

id.

at 861, and talked with his sons of “one day” opening a

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comic book store,

id.

at 749, 863, or a video store.

Id.

at 890. It was obvious, the expert declared, that such talk was only a dream; “people who hoard always think that they have a future use for the items that they’re hoarding.”

Id.

at 889.

Unlike most people with obsessive compulsive disorder (“OCD”) who understand that their actions are not normal, Dr. Cohen found that “Polizzi had no insight into his obsessive compulsive disorder. He seemed to feel that it was all appropriate and reasonable behavior....”

Id.

at 873.

[N]o matter how many times I tried to explain the concept of obsessions and compulsions it was difficult for him to grasp. And the point of an obsession is that it should not make sense, it should be excessive and inappropriate. So he had a hard time differentiating from what was an appropriate concern and what was an excessive, inappropriate concern.

Id.

at 856.

In the face of the government’s repeated insistence that Polizzi’s low cognitive test results were due to his “malingering,” Dr. Cohen declared that she did not find that Polizzi was exaggerating his symptoms.

See id.

at 789 (defining malingering as “the intentional and conscious flaring of mental symptoms in order to gain what they call secondary gains or primary gains to gain something else.”). Although she did not administer any specific validity tests,

id.

at 897, 1260, her testing included internal validity components.

Id.

at 830. Based on her interviews with Polizzi and one son, Dr. Cohen concluded that “if anything, he seemed to be minimizing his problems and that was not in his interest. It would be in his interest to maximize his problems. So, in my mind, he was not trying to manipulate me to present him as sicker than he was.”

Id.

at 905;

see id.

at 898.

c) Dr. Eric Goldsmith

Dr. Eric Goldsmith, Polizzi’s expert forensic psychiatrist, testified that he had diagnosed Polizzi with post-traumatic stress disorder (“PTSD”) resulting from the sexual abuse defendant had suffered as a child.

Id.

at 1130 ff. Of the three experts, Dr. Goldsmith had spent the most time evaluating Polizzi. He had interviewed separately four of defendant’s sons as well as his wife.

Id.

at 1131;

see id.

at 1176. Dr. Goldsmith had also prescribed medication for Polizzi’s acute anxiety and PTSD symptoms.

Id.

at 1174. Medication was necessary, defendant testified,

[S]ince I have this nightmares, a lot of nightmares actually, when you have those nightmares when you have, when you see ... photos so, you know, you smell certain smells, the events come back and I told this nightmare that I have and told me if I slept well, when the time comes, when I go to sleep, I go to sleep very exhausted, because the crime that is involved, you know, the fear, it makes you, it takes everything out of you, which left you with very sadness and no kind of strength.

Id.

at 1060.

Dr. Goldsmith corroborated Dr. Cohen’s diagnosis of obsessive compulsive personality disorder as defined in the DSM-IV.

Id.

at 1134 ff., 1186. He also found that Polizzi “has no awareness it is a problem for him.”

Id.

at 1143. Polizzi was “very very difficult” to interview “because of his obsessive pathology[:] he ... gets stuck on a detail or particular issue and needs to retell the story over and over and over again....”

Id.

at 1136-37. It required “hours and hours” for Dr. Goldsmith to obtain a medical history.

It is reflective of some significant obsession compulsive pathology. It explains his behavior of just downloading hundreds and hundreds of images. It ex

*147

plains his behavior of collecting thousands and thousands of baseball cards. It explains his routinized behavior, the styling of how he communicates and how it is just obsessive and obsessive and repetitive and repetitive.

Id.

at 1139;

See also

Parts IV.A-F,

infra.

2. Sentencing on Counts Fourteen through Twenty-Four

Polizzi was sentenced on Counts Fourteen through Twenty-Four (possession) to one year and one day in prison, a fine of $50,000, a special assessment of $1,000, and a supervised release term of ten years.

See Polouizzi I,

549 F.Supp.2d at 448-49 ;

United States v. Polizzi,

No. 6-CR22, 2008 WL 1820900 , *3 (E.D.N.Y. Apr. 1, 2008).

Pursuant to federal and New York state law, Polizzi was required to register as a sex offender upon his release from prison; he will be subject to severe restrictions and reporting requirements for ten to fifteen years under federal law and twenty years under state law.

See

42 U.S.C. §§ 16911 , 16915(a)(1) (fifteen years for lowest risk federal offenders); § 16915(b) (possibility of early termination for federal offenders after ten years); N.Y. Correct. Law § 168 -h(l) (twenty years for lowest risk offenders).

The defendant already has served his year-and-one-day sentence in connection with the possession counts. Since his release in August of 2008, he has been under strict supervised release, with house arrest and electronic monitoring.

See

Order setting Conditions of Release on Bond, Aug. 14, 2008, D.E. No. 173. According to defense counsel, the conditions of defendant’s release have impeded his ability to provide care and emotional support to his wife, who has been diagnosed with cervical cancer.

See

Def.’s Memo, of Law in Supp. of Def. Resentencing 4, D.E. No. 209; Discharge Summary Report, Wyckoff Heights Med. Ctr, Jan. 21, 2009, D.E. No. 209-4.

While on supervised release, Polizzi has received treatment for mental problems resulting in his becoming more forthcoming about the sexual abuse he suffered as a child.

See

Def.’s Memo, of Law in Supp. of Def. Resentencing 3, D.E. No. 209. At the request of his counselors, Polizzi has given lectures to other victims about the lifelong impact of such abuse.

Id.

Polizzi has reportedly fully complied with the conditions of his release.

F. Appeal

By its written opinion of April 24, 2009, the Court of Appeals reversed the trial court’s grant of a new trial. The appellate court concluded that the trial court’s deci

*156

sion

not

to inform the jury of the mandatory minimum punishment associated with the receipt counts was “certainly within its discretion.”

Polouizzi II,

564 F.3d at 160 .

Rejected on appeal was the government’s contention that the trial court’s grant of a new trial “was premised on an erroneous belief that it had discretion to instruct the jury of the applicable mandatory minimum.”

Id.

at 152 . Without reaching the question whether it would have been appropriate to so instruct the jury in the circumstances of this case, the Court of Appeals for the Second Circuit observed that

“The District Court Has Discretion to Instruct the Jury on [the] Applicable Mandatory Minimum Sentence in Some Circumstances.” Id.

at 161 (italics in original).

See also

5 Lester B. Orfield, Criminal Procedure Under the Federal Rules § 33:9 (1968) (noting in context of Rule 33 that “[j]ustice is not a sentimental concept which each person may have as to right or wrong with relation to a given cause, or any duty he may have in connection with it, but it is an impartial, fair and reasonable application of prescripts of law both vengeful and protective”) (internal quotation marks omitted).

“[A] motion for a new trial may be granted even if there is substantial evidence to support the jury’s verdict.”

Landau,

155 F.3d at 104 (citing

Bevevino v. Saydjari,

574 F.2d 676, 683 (2d Cir. 1978);

Song v. Ives Laboratories, Inc.,

957 F.2d 1041, 1047 (2d Cir.1992)). “The ‘ultimate test’ is ‘whether letting a guilty verdict stand would be a manifest injustice.’ ”

United States v. Canova,

412 F.3d 331, 349 (2d Cir.2005) (quoting

Ferguson,

246 F.3d at 133 )). The Court of Appeals for the Second Circuit has held that “there must be a real concern that an innocent person has been convicted.”

Id.

An “innocent person,” in this context, includes a person who, after a fair trial, is found not guilty only by reason of the legal definition of insanity.

See

18 U.S.C.A. § 17 (providing for affirmative defense of legal insanity);

cf. United States v. Bohle,

475 F.2d 872, 874-75 (2d Cir.1973) (characterizing the jury’s decision whether to credit insanity defense as “for the jury as part of guilt determination.”);

Britz v. Cowan,

192 F.3d 1101, 1103 (7th Cir.1999) (Posner, J.) (holding, in habeas context, that “when the accused ... has an affirmative defense of insanity ... [and is] acquitted on ground of insanity, he is actually innocent”).

But cf. Herrera v. Collins,

506 U.S. 390, 419-20 , 113 S.Ct. 853 , 122 L.Ed.2d 203 (1993) (O’Connor, J., concurring) (stating that petitioner who sought a new trial was not “innocent” in the eyes of the law when found guilty after a “fair trial.”).

The merits of defendant’s motion are considered in detail below. Although a new trial will not be granted on the ground that the trial court failed to recognize, and exercise, its discretion to inform the jury of the mandatory minimum sentence associated with a conviction on the receipt counts,

see

Part III.B,

infra,

a new trial is required in light of the sharp reduction in the child pornography counts charged against the defendant,

see

Part III.C.2,

infra.

Having considered the special and unique circumstances of this case, the trial court is “convinced that ... the [guilty] verdict is a miscarriage of justice.”

Cote,

544 F.3d, at 101 (internal quotation marks omitted). The overindictment would have affected the jury’s deliberations regarding the insanity defense. There is a substantial probability that, in the absence of the overindictment, the jury — even if it were unaware of the high minimum sentence— would have either acquitted or returned a verdict of not guilty by reason of insanity. A new trial is required to “avert this perceived miscarriage of justice.”

Polouizzi II,

564 F.3d at 159 (internal quotation marks omitted).

See also

Rita James Simon, The Jury and the Defense of Insanity 89 (1967) (conducting first systemic research on jury reactions to the insanity defense, observing that jurors were relatively hesitant to defer to psychiatric testimony when a defendant has committed a heinous crime).

See also

Advisory Committee Notes to 1998 Amendment to Rule 33 (“It is the intent of the Committee ... [to use] the trial court’s verdict or finding of guilty as the triggering event.”). Rule 33 must be read in conjunction with Rule 45, which governs how to compute time and extensions.

United States v. Owen,

559 F.3d 82, 84 (2d Cir.2009) (citing

U.S. v. Robinson,

430 F.3d 537, 541 (2d Cir.2005)).

Rule 33(b)(2) was amended, effective December 1, 2009, to change the time limitation for filing a new trial motion from seven to fourteen days after the verdict. Because Polizzi’s motion for a new trial was filed before the effective date of December 1, 2009, the pertinent time period remains seven days, subject to extension for excusable neglect. As explained in the Advisory Committee notes to the 2005 amendment to Rule 33:

The defendant may under Rule 45 seek an extension of time to file the underlying motion as long as the defendant does so

within the seven day period.

But the court itself is not required to act on that motion within any particular time.

Further, under Rule 45(b)(1)(B), if for some reason the defendant fails to file the underlying motion for a new trial within the specified time, the court may nonetheless consider that untimely underlying motion if the court determines that the failure to file it on time was the result of excusable neglect.

Id.

(emphasis added). Rule 45(b)(1)(B) states that “[w]hen an act must or may be done within a specified period, the court on its own may extend the time, or for good cause may do so on a party’s motion made ... after the time expires if the party failed to act because of excusable neglect.” Fed.R.Crim.P. 45(b)(1)(B).

A party need not seek or obtain leave to file a belated motion for a new trial pursuant to Rule 45.

See

Fed. R.Crim.P. 45(b)(1)(B) (“[T]he court

on its own

may extend the time ... if the party has failed to act because of excusable neglect.”) (emphasis added). Nor do the Rules limit the time in which a district court may properly decide on a new trial motion.

See

Advisory Committee Notes for 2005 Amendment to Rule 45 (“The rules ... do not force the court to rule on a motion to extend the time for filing ... within a particular period of time.... ”).

Rule 33 is not jurisdictional.

Eberhart v. United States,

546 U.S. 12, 13-15 , 126 S.Ct. 403 , 163 L.Ed.2d 14 (2005)

(per curiam

) (denominating Rule 33 a “claim processing rule[ ]”);

United States v. Owen,

559 F.3d 82, 83-84 (2009) (same);

United States v. Melenedez,

No. 04-CR-473, 2006 WL 1379624 , at *5 (S.D.N.Y. May 15, 2006) (same).

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As explained above, Part II.G,

supra,

defendant orally requested a new trial on April 30, 2009 — days after the Court of Appeals issued its opinion in this ease.

See

Hr’g Tr. 7:2-3, Apr. 30, 2009. Defendant’s letter motion was filed on July 31, 2009. Neither application was made within the seven-day window specified in Rule 33(b)(2), since it is the jury’s October 5, 2007 verdict, not the date of remand, that triggers the seven-day clock.

2. Excusable Neglect

Consideration of the merits is appropriate because defendant’s belated filing was excusable under Rule 45 — a finding inherent in prior action of this court following remand.

See Polouizzi III,

257 F.R.D. at 36-38 (suggesting that, upon remand, a new trial might be required).