This case calls upon us to decide whether a collection of child pornography is a single unit of prosecution under 18 U.S.C. § 2252(a)(4)(B) such that the possession of a collection cannot support multiple counts of conviction. Moreover, we are called upon to address whether the district court’s self-described failure to exercise its discretion to inform the jury of an applicable mandatory minimum sentence constitutes a manifest injustice requiring a new trial.
*146 Defendant-appellant and cross-appellee Peter Polizzi 1 was tried before a jury in the United States District Court for the Eastern District of New York (Weinstein, /.), on twelve counts of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2), and eleven counts of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). Polizzi sought, but the court refused, to have the jury informed of the five-year mandatory minimum sentence applicable to a conviction of receipt under § 2252(a)(2). At trial, Polizzi put forth an insanity defense, predicated largely on his assertion of repeated and severe sexual abuse as a child. The jury rejected this defense and found him guilty of аll counts. After the jury returned its verdict, the district court informed the jurors of the five-year mandatory minimum sentence applicable to the twelve receipt convictions; on inquiry from the court, some jurors expressed dissatisfaction with this punishment, and some suggested that they might have voted differently had they been aware that the verdict carried a mandatory minimum period of incarceration. Thereafter, the district court granted Polizzi’s motion, pursuant to Federal Rule of Criminal Procedure 33, for a new trial on the twelve receipt counts, concluding that it had erred in refusing to advise the jury of the applicable mandatory minimum sentence, and entered a judgment of conviction on the eleven possession counts sentencing Polizzi to eleven concurrent terms of one year and a day’s imprisonment, ten years of supervised release, a $50,000 fine, and $1100 in special assessments.
Polizzi appeals from the judgment entered April 9, 2008, convicting him of eleven counts of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), arguing that (1) the district court abused its discretion by admitting into evidence certain images of child pornography, (2) the jury instruction on the insanity defense constituted plain error, and (3) his multiple convictions for possession violate the Double Jeopardy Clause. Under 18 U.S.C. § 3731, the government cross-appeals from the district court’s April 9, 2008 order granting Polizzi’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 we find that the district court erred by entering multiple convictions for possession and by granting a new trial on the receipt counts, we vacate the April 9, 2008 order 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.
Background
A. The Investigation and Indictment
In early 2005, FBI agents and Suffolk County Police Department Officers conducted an investigation into an online “private child porn club” called “Hardcore” that, for a fee, gave members access to images of child pornography. An aсcess log for the “Hardcore” website recorded 900,000 Internet Protocol (“IP”) addresses, representing approximately 1900 unique visitors, during a ten-day period in March 2005. One of the IP addresses included in the log was traced to Polizzi; the log indicated that Polizzi’s IP address downloaded a number of images from the Hardcore website on March 28, 2005. Based on this information, the FBI obtained a search warrant for Polizzi’s home seeking computer equipment and evidence related to the possession of child pornography.
*147 On November 16, 2005, the FBI and local law enforcement agents arrived at Polizzi’s home to execute the warrant. Polizzi cooperated with the agents, leading them to computers in two rooms on the second floor of the detached garage, which were secured with multiple locks to which Polizzi alone had the keys. As he led the agents up the stairs, Polizzi told the officers: Ws me, I looked at the pictures of the children. The pictures of the children are upstairs.” Then, he asked the officers, “What are we going to do about it?”
Polizzi then unlocked the rooms and showed the agents the computers. In the first room, described as the “balloon room,” the officers found two external hard drives, referred to at trial and herein as “External 1” and “External 2.” In the second room, described as the “music room,” the officers found a third external hard drive, referred to at trial and herein as “External 3.” A total of 5000 digital images and several videos of child pornography were found on the three external hard drives.
Thereafter, Polizzi was read Miranda warnings and signed two forms stating that he waived his rights and was willing to talk without an attorney present. Polizzi then gave a statement, recorded by the agents and signed by Polizzi, stating in part:
Some time in February or March, 2005, I received an e-mail in my AOL email account, [] 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 Master Card from Citibank; it’s in my name....
After I joined, I would visit ever[y] 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 I bought new about six months ago. I have another external hard drive that I usеd and transferred everything over from an older 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 ... about two years ago. It was the black tower where I pointed to the Detective Forrestal at my desk. . I’m not sure how [many] 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 remember exactly, it’s in my favorites. I used the same credit card number, the Citi Master Card to join. I don’t send them out, it’s only private. The different passwords of the websites are in my AOL e-mail that I have so I know what they are.
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 ... and I swear that ... it is all true.
Polizzi was arrested and charged with twelve counts of receipt and twelve counts of possession of seventeen different photos and videos downloaded from the Hardcore website.
The reсeipt counts (Counts 1 through 12) charged Polizzi with receiving illicit images on four different dates. Specifically, Polizzi was charged with receiving: two illicit images on February 20, 2005; two illicit images on March 5, 2005; four illicit images on March 16, 2005; and four illicit images on March 20, 2005. All of the images that he was alleged to have received were stored on External 3.
*148 The possession counts (Counts 13 through 24) charged Polizzi with possessing on November 16, 2005, twelve illicit images on three different external hard drives. One of the twelve counts of possession — Count 13 — was dismissed on the government’s motion prior to trial. The image charged in Count 14 was stored External 1; the images charged in Counts 15-17 were stored on External 2; and the images charged in Counts 18-24 were stored on External 3. None of the image file or video files charged in Counts 14-17 were the subject of a receipt count; each image charged in Counts 18-24 also was the subject of a receipt count. Specifically, Counts 18 and 3 were based on the same image, as were Counts 19 and 4, Counts 20 and 1, Counts 21 and 11, Counts 22 and 12, Counts 23 and 7, and Counts 24 and 8.
B. Pre-Trial Proceedings
The parties submitted proposed jury charges prior to trial. Regarding the insanity defense, both parties sought to have the court instruct the jury, in substance, that it was the defendant’s burden to show, by clear and convincing evidence, that at the time Polizzi committed the acts constituting the crimes charged he was not able to appreciate the nature and quality or wrongfulness of those acts, as a result of a severe mental disease or defect. The government proposed to define wrongfulness as “contrary to public morality, as well as contrary to law.” Polizzi, in contrast, sought to leave the term undefined. After hearing arguments and receiving memoranda on the competing proposals, the court distributed to the parties its proposed instruction on the insanity defense. It provided, in relevant part, that “‘[w]rongfulness’ means in this context ‘unlawfulness.’ ” The court asked the parties if either had an objection to the proposed charge. Polizzi’s counsel responded: “Your Honor, I do not have any objection at this time.” The government responded similarly. At the subsequent charging conference, Polizzi’s counsel аgain did not object to the court’s proposed definition of wrongfulness. Ultimately, the charge given to the jury conformed materially to the instruction distributed by the court prior to trail.
After receiving the parties’ requests to charge, the district court issued an order on September 6, 2007, inquiring: “Does the defendant wish the jury to be informed of the statutory mandatory minimum (five years) and maximum (twenty years) sentence? If so, is it appropriate to inform the jury, and at what stage?” The government argued that an unpublished, nonprecedential summary order issued by this court in
United States v. Pabon-Cruz,
At a pretrial conference on September 10, 2007, the government indicated that it would seek to introduce at trial: (1) the images and videos containing child pornography that Polizzi was charged with receiving, possessing, or both, and (2) three to four website pages with thumbnail-sized images of child pornography. The government explained its intention to present the images by means of a PowerPoint presentation that would show each image for no more than a few seconds. Polizzi’s counsel *149 sought to stipulate that the images charged in the indictment were child pornography and to exclude the images under Federal Rule of Evidence 403. The district court permitted the government to introduce the images despite Polizzi’s offer to stipulate to their nature.
C. Trial
For our purposes, a brief summary of the trial testimony and evidence is sufficient. Further details of the trial are recounted in the district court’s thorough opinion.
See United States v. Polizzi,
The government’s direct case consisted primarily of the testimony of Detective Rory Forrestal of the Suffolk County Police Department and of the files found on Polizzi’s external hard drives. Detective Forrestal had been involved in the investigation of the Hardcore website and the search of Polizzi’s home and had reviewed Polizzi’s computers and external hard drives. He testified regarding (1) the many steps required to subscribe to the Hardcore website and the communications he received as an undercover subscriber to the website; (2) the evidence obtained from the internet service provider that hosted the Hardcore website, including access logs and the website’s content; (3) the execution of the search warrant at Polizzi’s house, including Polizzi’s statements and conduct during the search; and (4) the evidence seized at Polizzi’s house, including files found on his computers and external hard drives.
Each image or video of child pornography identified specifically in the indictment was introduced via Detective Forrestal’s testimony. For each, the image would be shown to the jury for a few seconds, after which Detective Forrestal would describe (1) the date the image was downloaded or possessed; (2) the IP address from which the image was downloaded; (3) the file path for the drive on which the image file was found; (4) the identity and circumstances of the child depicted; and (5) the date Polizzi last accessed the file. Short segments of the three videos charged in the indictment were played for the jury, and Forrestal testified that the un-played portion of each video was similar to the segment played.
As described by the district court, “the only contested issue [at trial] was Polizzi’s affirmative defense of legal insanity.”
Polizzi,
Polizzi testified about his childhood in Italy, including incidents of sexual abuse by his uncle, a family friend, and two police officers, stating he was too ashamed and afraid to tell anyone about these incidents until after he had begun psychological treatment following his arrest in this case. Polizzi testified further that he was horrified and shocked by the images of child pornography he viewed on the internet and that seeing the images reminded him of his own abuse аs a child. He explained that (1) he looked at the images because he believed he might be able to find a photograph of his own abuse, and (2) he downloaded the pictures to stop the abuse of other children and was collecting the images to turn over to the police. Polizzi testified that although he understood that the abuse portrayed in the photographs was wrong, he believed the images were legal because they were available on the internet. Despite his avowed intention to help law enforcement by collecting these images, Polizzi never voluntarily informed law enforcement or anyone else about his collection. He ex *150 plained that he did not report his collection because he could not trust police officers, given his experiences with the police in Italy, and because he was ashamed to reveal his own abuse.
Dr. Cohen testified that she concluded that Polizzi had significant cognitive impairment and obsessive compulsive disorder characterized by severe hoarding. Dr. Goldsmith testified that Pоlizzi had a severe obsessive compulsive pathology and post-traumatic stress disorder, the latter drawing him to seek out child pornography in hopes that he might find a picture of himself. In rebuttal, the government offered the testimony of Dr. Naftali Berrill, the forensic psychologist assigned to evaluate Polizzi for pretrial services treatment. Dr. Berrill testified that he met with Polizzi on numerous occasions, but that Polizzi never told him of his abuse as a child. He further testified that although he had diagnosed Polizzi as having an anxiety disorder, he did not believe Polizzi suffered from this at the time he received and possessed the child pornography. Even if he had been suffering from an anxiety disorder at that time, it was Dr. Berrill’s opinion that such a disorder would not render Polizzi unable to appreciate the wrongfulness of his acts. Dr. Berrill testified that he disagreed with Dr. Goldsmith’s diagnosis that Polizzi suffered from post-traumatic stress disorder, noting that the criminal behavior here — seeking out reminders of the original trauma and receiving and possessing images over a number of years — was not typical criminal behavior for individuals with that disorder.
D. Jury Verdict
The district court described that “[d]uring jury deliberations, it was evident ... that [the jury] rather quickly decided the issue of guilt,” but it took the jury several days to “[d]etermin[e] whether Polizzi had carried his burden of proving legal insanity....”
Polizzi,
After the verdict was announced, the district court addressed the jury further:
THE COURT: You [the jury] are discharged. However, stay there for a moment, please.
I know this has been a difficult case for you, and some of you are nodding, and you don’t have to answer the questions I’m going to put to you, but it might be helpful. Just answer, if you want to answer as to yourself, not as to what anybody else said, because everybody is entitled to privacy.
Now, the Supreme Court of the United States has suggested that for constitutional reasons the juries participate much more heavily in the sentencing, although the sentencing does not suggest in any way how you should decide. As I told you, in considering your verdict, you should not consider that. I will do the sentencing, not you. You all recall that?
However, because these are somewhat difficult cases, and they do involve to some extent the morality and the views of the community, it might be helpful, if you wish, to indicate what you think under these circumstances that you have heard here, the penalty for a person like this defendant might be, in terms of incarceration or other punitive aspects.
Do you have any view, juror one?
Juror One answered “No,” as did Jurors Two through Eight. Juror Nine’s response, if any, was not recorded. Juror Ten answered “Yes, I do.” This colloquy followed:
THE COURT: What’s your view?
*151 JUROR NO. 10: My view is that if it is at all possible-and I don’t know if it is-I see no useful purpose to have Mr. Polizzi confined. I believe that there should be an alternative, if possible, other than confinement.
THE COURT: What would that alternative be?
JUROR NO. 10: Treatment.
THE COURT: Compulsory treatment? JUROR NO. 10: Oh, absolutely.
THE COURT: Juror eleven?
JUROR NO. 11: I agree with [Juror Ten],
Juror Twelve declined to answer the court’s question. The court went on to explain the concept of jury nullification and asked:
THE COURT: ... Had you known that the penalty was five to 20 years, a minimum of five, maximum of 20, probably concurrent, not times 20, but for the total, would that have affected the verdict of any of you, raise your hands? MR. BODE [for the government]: I object, your Honor.
JUROR NO. 9: Yes, I also feel that incarceration would not serve in this case. I think the gentleman should receive treatment, compulsory, but he should definitely receive treatment. I don’t think justice is served for incarceration.
THE COURT: Would your verdict have been affected if you knew that there was a minimum of five years imprisonment[?]
JUROR NO. 9: Yes.
THE COURT: How would it have been affected?
JUROR NO. 9: Under all the circumstances, I would have probably gone not guilty by reason of insanity.
THE COURT: Anyone else?
JUROR NO. 2: I would have done the same.
THE COURT: You would have found him not guilty, if you knew what the total punishment was.
Anyone else wish to speak? Juror eleven?
JUROR NO. 11: I would not. I would have found him [not] guilty by reason of insanity.
THE COURT: You would have nullified, if you knew what the punishment was.
JUROR NO. 7: I also believe that Mr. Polizzi should not be incarcerated. I believe that mental health treatment should be the proper verdict for Mr. Polizzi.
The defendant was remanded to await sentencing.
E. New Trial Motion
On February 5, 2008, Polizzi moved for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure and for dismissal pursuant to Rule 29. In relevant part, he argued that a new trial was required because the district court refused to inform the jury of the applicable mandatory minimum sentence, despite having discretion to do so.
On April 1, 2008, the district court granted Polizzi’s Rule 33 motion for a new trial on the receipt сounts on the ground that it had erred in refusing to advise the jury of the mandatory minimum sentence for those counts. The district court’s opinion implies that error was committed in the trial in two ways.
First, the district court explained that the refusal to instruct the jury on the mandatory sentence was an error because it denied Polizzi of his Sixth Amendment jury right.
Polizzi,
the petit juries of 1791 would have been aware of any harsh sentence imposed mandatorily upon a finding of guilt of a particular crime. It is equally apparent that a jury so apprised 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.
Id. at 405.
Second, the district court explained that it erred because, believing erroneously that it had no discretion to instruct the jury about the mandatory minimum sentence, it failed to exercise its discretion to give such an instruction. Id. at 448.
Based on its post-verdict colloquy with the jurors, the district court concluded that “it is apparent that a properly informed and rational jury would likely have deadlocked on the receiving counts or found Polizzi not guilty by reason of insanity.” Id. The district court concluded, therefore, that the error prejudiced Polizzi and that the interests of justice required a new trial on the receipt counts. Id.
Discussion
Polizzi makes three arguments on appeal. First, he argues that the district court abused its discretion by admitting into evidence images of child pornography. Second, he argues that the jury instruction on the insanity defense, defining wrongfulness as unlawfulness, was plain error. And third, he argues that all but one of his possession convictions must be vacated because his conviction on eleven counts of possession violates the Double Jeopardy Clause. The government, on cross-appeal, argues that the district court abused its discretion by granting Polizzi’s motion for a new trial on the twelve counts of receipt because the decision was premised on an erroneous belief that it had discretion to instruct the jury of the applicable mandatory minimum.
A. Admission of Images of Child Pornography
Polizzi argues that the district court abused its discretion by admitting images and videos of child pornography because the probative value of such evidence was substantially outweighed by the risk of unfair prejudice to Polizzi. See Fed.R.Evid. 403. Specifically, he contends that the images were not probative of a disputed fact because he did not contest that he had received or possessed child pornography. Further, he argues that the risk of unfair prejudice caused by the images was particularly high because he was pursuing an insanity defense.
We review a district court’s balancing under Rule 403 for abuse of discretion. The “decision to admit or exclude evidence will not be overturned unless we conclude that the court acted arbitrarily or irrationally.”
United States v. Thai,
Although Polizzi did not contest that the images he received and possessed constituted child pornography, the stipulation was not an adequate substitute for the evidence offered. The specific nature and content of the images were relevant to the jury’s evaluation of Polizzi’s claim that he did not understand the wrongfulness of receiving and possessing those images. Indeed, the Supreme Court has noted specifically that the government generally has a right to present evidence, rather than accept a stipulation, to establish the “human significance” of the fact and “to implicate the law’s moral underpinnings.”
Old Chief,
B. Insanity Defense Instruction
As discussed above, the parties disagreed over how to define “wrongfulness” in the jury instruсtions regarding Polizzi’s insanity defense. Prior to trial, the district court proposed to the parties that it would define wrongfulness as “unlawfulness.” Neither party objected to this definition when proposed prior to trial, during the charging conference, or when the jury was charged. Nonetheless, Polizzi argues on appeal that the district court erred by defining wrongfulness as unlawfulness.
We decline to consider the merits of this argument because Polizzi waived his right to appeal this issue.
See United States v. Olano,
C. Double Jeopardy Claims
Polizzi argues that ten of his convictions for possession must be vacated because all but one of his possession convictions violate the Double Jeopardy Clause. He contends that the conduct charged in the indictment — possessing a single collection of child pornography on November 16, 2005 — constitutes only a single violation of 18 U.S.C. § 2252(a)(4)(B). And in the event that we vacate the new trial order on the receipt counts, Polizzi argues that we must instruct the district court on remand to enter judgment on a single count of receipt or on a single count of possession.
1. Convictions on Multiple Counts of Possession Violate Double Jeopardy Clause
Polizzi argues for the first time on appeal that his multiple convictions for possession constitute a Double Jeopardy violation. Nonetheless, “[a] plain error that affects substantial rights may be consid
*154
ered even though it was not brought to the [district] court’s attention.” Fed. R. Crim.P. 52(b);
see United States v. Irving,
To demonstrate plain error, Polizzi must show: “(1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’ ”
Johnson v. United States,
The Double Jeopardy Clause of the Fifth Amendment,
inter alia,
“protects against multiple punishments for the same offense.”
Schiro v. Farley,
As charged in the indictment, each of the eleven possession convictions was for, “[o]n or about November 16, 2005, within the Eastern District of New York and elsewhere, ... knowingly and intentionally possessing]” one computer file containing a visual depiction of minors engaged in sexually explicit conduct, the production of which involved such conduct. Collectively, therefore, the eleven counts were for possession of eleven computer files.
Title 18, section 2252(a) of the United States Code, in relevant part, makes it a crime to
knowingly possess[ ] ... 1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction ... if — (i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (ii) such visual depiction is of such conduct.
18 U.S.C. § 2252(a)(4)(B).
3
The statute provides also for an affirmative defense to a charge of possession under that section if,
inter alia,
the defendant “possessed less than three matters containing [prohibited images].”
Id.
§ 2252(c). Prior to an amendment in 1998, § 2252(a) made it a crime to “ ‘knowingly possess! ] 3 or more books, magazines, periodicals, films, video tapes, or other matter’ ” containing child pornography and did not provide an affirmative defense.
United States v. Dauray,
*155 The government maintains that each “matter which contain[s]” a prohibited image is a separate unit of prosecution such that the possession of each such “matter” is a separate violation of § 2252(a)(4)(B). 4 We disagree. Based on the clear language оf 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). 5
The language “1 or more,” 18 U.S.C. § 2252(a)(4)(B), indicates that a person commits one violation of the statute by possessing more than one matter containing a visual depiction of child pornography. Thus, unlike the word “any,” which “has ‘typically been found ambiguous in connection with the allowable unit of prosecution,’ for it contemplates the plural, rather than specifying the singular,”
United States v. Coiro,
Further, the statute provides an affirmative defense to “a charge of violating [§ 2254(a)(4) ]” if the defendant, inter alia, “possessed less than three matters containing [prohibited images].” 18 U.S.C. § 2252(c)(1) (emphasis added). Such a defense necessarily contemplates that a person who possessed two matters containing prohibited images would face a single charge of violating § 2252(a)(4)(B).
Finally, the government has pointed to no legislative history suggesting a differ
*156
ent view of congressional intent. Without engaging the legislative history directly, the government relies on two unpublished district court decisions from outside this Circuit for the assertion that “ ‘in light of the plain language and legislative history regarding the 1998 amendment, it appears that Congress intended to punish “any” possession of child pornography and that there was no intent to limit any and all possession of child pornography to a maximum of one count under § 2252(a)(4)(B).’ ” Gov’t Br. at 58-59 (quoting
United States v. Flyer,
No. CR 05-1049,
Having concluded that it was error to enter multiple convictions under § 2252(a)(4)(B), we must assess whether the error is plain and affects substantial rights, and whether we should notice the forfeited error. We find these elements to be met and, therefore, will remedy the error.
“An error is ‘plain’ if the ruling was contrary to law that was clearly established by the time of the appeal.”
Irving,
The multiple convictions for possession affect Polizzi’s substantial rights because “[t]he separate
convictionjs],
apart from the concurrent sentence, ha[ve] potential adverse collateral consequences that may not be ignored,”
Ball,
Finally, the government has identified no interest of the prosecution or the public, and we can think of none, that would be served by subjecting Polizzi to eleven convictions for possession rather than the single count of conviction authorized by law. Moreover, as discussed below, we are remanding the case on other grounds, which will require resentencing. In these circumstances, we conclude that maintaining these convictions would seriously affect the fairness, integrity, or public reputation of judicial proceedings.
Having concluded that Congress did not intend Polizzi’s possession on November 25, 2005, to be punishable with multiple convictions under § 2252(a)(4)(B), we remand this case to the district court to vacate all but one of the § 2252(a)(4)(B) convictions. The district court shall exercise its discretion when determining which conviction should remain.
See Ball,
2. The Receipt Counts
In the event that we vacate the new trial order on the receipt counts, Polizzi urges us to instruct the district court “to enter judgment on a single conviction for receipt or a single conviction for possession.” This argument has two components: (1) that the conduсt charged in the indictment — receiving images on February 20 and March 5, 16, and 20, 2005 — -constitutes only a single violation of 18 U.S.C. § 2252(a)(2), so that only one conviction under that section may be entered; and (2) that his § 2252(a)(4)(B) violation is a lesser-included offense of his § 2252(a)(2) violation because receipt necessarily entails possession.
No convictions have been entered under § 2252(a)(2); therefore, the Double Jeopardy Clause’s guarantee against multiple punishments for the same offense has not yet been triggered.
See Ball,
Nonetheless, in view of the fact that the district court is likely to be faced with these issues on remand, we offer the following observations.
Polizzi’s argument that only one receipt conviction may be entered is analyzed in the same way as his argument that only one possession conviction may stand. Thus, with regard to the multiple receipt counts, “the question is whether the facts underlying each count were intended by Congress to constitute separate ‘units’ of prosecution.”
Ansaldi,
Title 18, section 2252(a)(2) of the United States Code, in relevant part, makes it a crime to “knowingly receive[ ] ... any visual depiction ... if ... the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and ... such visual depiction is of such conduct.” 18 U.S.C. § 2252(a)(2). 6
*158
In contrast to the language of § 2252(a)(4)(B), which criminalizes the possession of “1 or more” matters containing prohibited images, the language of § 2252(a)(2), which criminalizes the receipt of “any” prohibited images, is ambiguous as to the intended unit of prosecution.
See Coiro,
In this case, the indictment alleged, the evidence at trial established, and the jury found that Polizzi received prohibited images on four distinct occasions, that is, on February 20 and March 5, 16, and 20, 2005. But the evidence did not show, and the jury was not asked to determine whether Polizzi’s receipt of multiple images on any one of these dates reflected a single simultaneous transfer or discrete and distinct transfers. Such a record would appear to support Polizzi’s conviction on four receipt counts — one for each date on which he received images — but not multiple receipt counts per day.
Polizzi’s argument that he may not be convicted both for receipt and possession of child pornography rеquires a slightly different analysis than that employed to assess whether multiple convictions under the same statute may be sustained, although both analyses turn on congressional intent. Where, as here, a defendant has violated two separate criminal statutes, whether the defendant may be punished for both violations turns on “whether the legislature intended to authorize separate punishments for the offensive conduct under separate statutes.”
Aparicio v. Artuz,
Recently, the Ninth and Third Circuits have applied this analysis and concluded that § 2252A(a)(5)(B) (possession of child pornography) is a lesser-included offense of § 2252A(a)(2) (receipt of child pornography), because receiving an item necessitates taking possession of it.
See United States v. Davenport,
D. New Trial Motion
The government cross-appeals the district court’s order granting Polizzi’s Rule 33 motion for a new trial on the receipt counts.
Rule 33(a) of the Federal Rules of Criminal Procedure provides that “[u]pon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” This rule “confers broad discretion upon a trial court to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice.”
United States v. Sanchez,
The government argues that the district court abused its discretion by granting a new trial because (1) Polizzi had no Sixth Amendment right to have the jury instructed on the applicable mandatory minimum sentence, and (2) the district court was precluded from instructing the jury on the applicable mandatory minimum sentence.
As described more fully below, we conclude that the district court erred to the extent it concluded that Polizzi “ha[d] a Sixth Amendment right to a jury informed of the five-year minimum” that was denied.
United States v. Polizzi,
1. Polizzi Had no Sixth Amendment Right to an Instruction on the Applicable Mandatory Minimum Sentence
Our precedent forecloses the conclusion that Polizzi had a Sixth Amendment right to trial by a jury that had been instructed on the applicable mandatory minimum sentence.
See United States v. Pabon-Cruz,
Courts in this Circuit are bound to apply
Pabon-Cruz
“unless and until its rationale is overruled, implicitly or expressly, by the Supreme Court or this court.”
Consol. Edison Co. v. UGI Utils., Inc.,
First,
Shannon
continues to be controlling precedent. The district court’s conclusion that
Shannon
has been effectively rejected is “less an application of existing precedent than a prediction of what the Supreme Court will hold when it chooses to address this issue in the future.”
United States v. Greer,
Second,
Pabon-Cruz
continues to control because no
intervening
Supreme Court decision undermines the rationale relied on by the panel in that case. The district court concluded that principles drawn from cases like
Booker, Apprendi,
and
Crawford
undermine
Pabonr-Cruz.
But, of all the cases relied on by the district court, only
Booker
was decided after
Pabon-Cruz; Apprendi
and
Crawford
were decided
prior
to
Pabonr-Cruz.
Thus, the panel that decided
Pabon-Cruz
had before it the same principles that we are now urged to find undermine
PabonCruz.
This panel cannot accept an argument that
Pabon-Cruz
was wrongly decided given the Supreme Court’s decisions in those cases. Accordingly, applying controlling circuit law, it is clear that Polizzi had no Sixth Amendment right to a jury instruction on the applicable mandatory minimum sentence.
See Pabon-Cruz,
2. The District Court Has Discretion to Instruct the Jury on Applicable Mandatory Minimum Sentence in Some Circumstances
The government concedes that neither the Supreme Court nor this Court has “expressly held that a court has no authority to inform the jury of the applicable sentence,” but it argues that the principles motivating various Supreme Court and Second Circuit decisions demand the conclusion that a district court may not inform the jury of a mandatory minimum sentence. Specifically, the government draws two principles from court rulings: (1) the Supreme Court’s teaching in
Shannon
that the “jury is to base its verdict on the evidence before it, without regard to the possible consequences of the verdict,”
First, the government’s position contradicts the Supreme Court’s explicit statements in
Shannon.
Although the
Shannon
Court concluded that “an instruction [on the consequences of a not-guilty-by-reason-of-insanity verdict] is not to be given as a matter of general practice” it also specifically “reeognize[d] that an instruction of some form may be necessary under certain limited circumstances.”
Second, while
Shannon
and
Pabonr-Cruz
emphasize that a jury should base its verdict on the evidence, without regard to
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that verdict’s consequences, and
Thomas
stresses the general inappropriateness of jury nullification, these principles do not lead inexorably to the conclusion that a court may
never
instruct the jury on the consequences of its verdict. Without attempting to define the boundaries of a district court’s discretion in this regard, we recognize the possibility, as the 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.
Shannon
provided an example of one situation in which an instruction on the consequences of a vеrdict might be appropriate: “If ... a witness or prosecutor states in the presence of the jury that a particular defendant would ‘go free’ if found [not guilty by reason of insanity], it may be necessary for the district court to intervene with an instruction to counter such a misstatement.”
Shannon,
In 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. Even assuming
arguendo
that the district court had discretion to give such an instruction, it was certainly within the trial court’s discretion to decline to instruct the jury on the mandatory minimum sentence. Once the jury rendered a verdict upon an error-free trial, only a compelling reason involving substantial unfairness could justify undoing the jury’s verdict and ordering a new trial.
8
See United States v. Coté,
Whether circumstances could be imagined in which a trial judge’s decision to take some step within its permitted discretion might result in unfair, unforeseen prejudice so as to justify an order for a new trial, in this case, no such justifications were identified. There was no suggestion that the evidence failed to prove Polizzi’s guilt, that witnesses against him lied or were mistaken, or that the fairness of his trail was impaired by some error or some untoward prejudicial event. The only justification cited by the district court for the retrial order was that some jurors might have voted for acquittal so as to nullify the application of the harsh sentencing law had they been aware of the mandatory minimum sentence. Based on its post-verdict colloquy with the jurors, the court stated that Polizzi was prejudiced because “it [wa]s apparent that a ... rational jury [if informed of the applicable mandatory sentence] would likely have deadlocked on the receiving counts or found Polizzi not guilty by reason of insanity.”
Polizzi,
Although jurors have the capacity to nullify, it is not the proper role of courts
*163
to encourage nullification.
See Thomas,
In short, given that the jury rendered its verdict after a trial conducted without error and without any occurrence that risked to prejudice the defendant in the eyes of the jury, the mere fact that jurors advised of the harsh sentencing law might have voted to acquit in an effort to nullify its application did not furnish adequate justification for vacating the jury’s verdict and ordering a new trial.
Conclusion
For the foregoing reasons, we VACATE the April 9, 2008 order granting defendant’s motion for a new trial and REMAND this case with instructions to the district court to vacate all but one of the § 2252(a)(4)(B) convictions and for further proceedings consistent with this opinion.
Notes
. The defendant has requested that he be referred to as Peter Polizzi.
. We have no occasion to consider and thus express no views as to whether the district court would have erred had it accepted the defendant’s stipulation and excluded the images.
. Title 18, section 2252A of the United States Code also criminalizes knowingly possessing child pornography. Specifically, that section, in relevant part, makes it a crime to "knowingly possess!] ... any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography....” 18 U.S.C. § 2252A(a)(5)(B) (emphasis added).
. Polizzi was charged with possession on a file-by-file basis — one count for each computer file containing a prohibited image — on the apparent assumption that each such file constitutes a separate “matter” under § 2252(a)(4)(B). On appeal, Polizzi contends that each external hard drive constitutes a single "matter” under the statute, regardless of the number of prohibited images stored on each drive.
See United States v. Lacy,
. 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,
. Title 18, section § 2252A of the United States Code also criminalizes knowingly receiving child pornography. Specifically, that section, in relevant part, makes it a crime to "knowingly receive[] ... any child pornography ... [or] any material that contains child pornography.” 18 U.S.C. § 2252A(a)(2).
. Because Shannon did not purport to define exhaustively the circumstances in which an instruction on the sentencing consequences of a verdict might be required, it could be argued that Shannon does not control directly the question of whether the circumstances of this case required such an instruction. As described below, even if Shannon does not control this case directly, Pabon-Cruz continues to control.
. The circumstance is somewhat different when the order of retrial is occasioned by an error of law which occurred during the trial. Courts of appeals regularly vacate jury verdicts and order retrial by reason of errors of law committed at trial unless they find that the error was harmless. A district court, if it becomes aware of its own error, may well be justified in ordering a new trial without requiring the parties to prosecute an appeal.