California Criminal Lawyer Blog

Pre-Booker, the Court of Appeals for the Second Circuit had "categorically reject[ed] the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent." Thomas, 116 F.3d at 614. Both before and after Booker, courts are, we assume for the purposes of the instant case, under no obligation to tell the jury that it can nullify. See United States v. Carr, 424 F.3d 213, 219-20 (2d Cir. 2005) ("Our case law makes clear, as Carr concedes, that a trial court is not required to inform a jury of its power to nullify."); see also Thomas, 116 F.3d at 616 n.9 ("[C]riminal defendants have no right to a jury instruction alerting jurors to this power to act in contravention of their duty." (citing United States v. Edwards, 101 F.3d 17, 19 (2d Cir. 1996))); Edwards, 101 F.3d at 19 ("While [*370] juries have the power to ignore the law in their verdicts, courts have no obligation to tell them they may do so. It appears that every circuit that has considered this issue agrees."); cf. Essay, Considering Jury "Nullification": When May and Should a Jury Reject the Law to Do Justice, 30 Am. Crim. L. Rev. 239, 250 (1993) (noting that nullification instructions should probably not be given routinely because such an "instruction is like telling children not to put beans in their noses. Most of them would not have thought of it had it not been suggested."). Courts may still affirmatively tell the jury "it has a duty to follow the law, even though it may in fact have the power not to." Carr, 424 F.3d at 219-20 (disagreeing, post-Booker, with appellant that the district court's suggestion to the jury that nullification was not an option was prohibited). But this rule does not prevent telling the jury about minimum sentences where it is appropriate so that it can exercise well-informed judgment and mercy dispensing powers.

The instant decision, requiring notice to the jury of the applicable minimum sentence, does not contravene precedents of the Court of Appeals for the Second Circuit against [*371] nullification suggestions to the jury by court and counsel. An instruction informing jurors of the five-year mandatory minimum sentence if the defendant is found guilty is not the same as a pro-nullification instruction. "This is an argument for the right of the jury to have that information necessary to decide whether a sentencing law should be nullified. This is not an argument for the right to have the jury instructed on jury nullification." United States v. Datcher, 830 F. Supp. 411, 412-13 (M.D. Tenn. 1993), criticized by United States v. Chesney, 86 F.3d 564, 574 (6th Cir. 1996). Informing the jury of the mandatory minimum in this case arguably would open the jury to the possibility of mercy, but not nearly to the degree of an actual jury pro-nullification instruction. But cf. United States v. Johnson, 62 F.3d 849, 850-51 (6th Cir. 1995) ("[T]he only possible purpose that would be served by informing jurors of the mandatory sentence would be to invite jury nullification of the law.").

The right of jurors to be told of the high stakes of their decisions under a mandatory sentencing scheme so that they can decide to find a defendant guilty or innocent or guilty of a lesser crime [*372] "is a point independent of the right to nullify." Milton Heumann & Lance Cassak, Not-So-Blissful Ignorance: Informing Jurors About Punishment in Mandatory Sentencing Cases, 20 Am. Crim. L. Rev. 343, 388 (1983).

The Supreme Court has suggested in dicta that a defendant is not entitled to an instruction about mandatory minimums. See Shannon v. United States, 512 U.S. 573, 586 (1994) ("[A]s a general matter, jurors are not informed of mandatory minimum or maximum sentences"). This was pre-Booker. Aside from Pabon-Cruz's summary order, the Second Circuit has not yet definitively addressed the issue post-Booker of whether a defendant is now entitled to an instruction about a mandatory sentence or whether the trial court has discretion to give one. See Part IV.E, supra; see also United States v. Harrison, 179 F.App'x 411, 412-13 (9th Cir. 2006) ("[A]ppellant argues that the district court erred when it refused to instruct the jury that he faced a mandatory sentence of fifteen years to life if convicted. We have repeatedly held, however, that district judges should not instruct juries on the sentencing consequences of a verdict when the juries have no role in fixing punishment."); Johnson, 62 F.3d at 850-51 [*373] ("[E]very circuit to address this issue has held that a defendant is not entitled to an instruction about a mandatory sentence."); United States v. Parrish, 925 F.2d 1293, 1299 (10th Cir. 1991) ("We hold a jury instruction about mandatory minimum sentences was properly omitted because the offenses do not specifically require jury participation in sentencing."), abrogated on other grounds by United States v. Wacker, 72 F.3d 1453 (10th Cir. 1995); United States v. Broxton, 926 F.2d 1180, 1183 (D.C. Cir. 1991) ("[T]he district court committed no error in refusing to inform the jury about the mandatory minimum sentence."); United States v. Thomas, 895 F.2d 1198, 1200 (8th Cir. 1990) ("The court need not instruct the jury that the defendant will receive a mandatory sentence if he or she is found guilty."); United States v. McCracken, 488 F.2d 406, 425 (5th Cir. 1974) ("It is error to tell the jury about the consequences of a certain verdict even if they are mandatory."); United States v. Del Toro, 426 F.2d 181, 184 (5th Cir. 1970).

As of 2006, apparently only one federal court published decision approves allowing a defendant to inform the jury of mandatory sentences attendant to conviction. [*374] Datcher, 830 F. Supp. 411, criticized by Chesney, 86 F.3d 564, 574; see Chris Kemmitt, Function over Form: Reviving the Criminal Jury's Historical Role as a Sentencing Body, 40 U. Mich. J.L. Reform 93 (2006). In Datcher, the defendant moved to argue the issue of punishment to the jury. Datcher, 830 F. Supp. at 412. The district court granted the motion "[a]fter considering the historical role of the jury in our criminal justice system and the constitutional constraints on sentencing." Id. Datcher faced charges of conspiracy to distribute and attempted distribution of a controlled substance as well as the use of a firearm in connection with this attempted distribution. He faced a minimum of ten years, and, if convicted on all counts, a minimum of twenty-five years. Id. at nn.2-3.

As established in Part IV, supra, the Supreme Court's new emphasis on colonial and British history contemporaneous with adoption of the Sixth Amendment now requires, in the narrow special group of cases illustrated by the current one, that the jury know of the mandatory minimum. A well-informed jury responsive to the needs of both society and the defendant might well consider, given the special circumstances [*375] of the present case, that intensive psychiatric treatment and control outside of prison is the desirable end to this criminal litigation. Such an approach might, in these unusual circumstances, do more to protect society than a long prison term with the rudimentary psychiatric help likely to be available behind prison walls. It would recognize that ultimately prisoners must be released and that the return of unrehabilitated prisoners to society presents a serious danger. See Prisoner Reentry, 20 Fed. Sent'g Rep. (Dec. 2007).

A verdict of not guilty by reason of insanity, which might well have resulted from a proper charge, would not have meant release. Rather, it would have led to a suitable institution for treatment--the sensible result suggested by jurors in the instant case. See 18 U.S.C. § 4243.

A. Defendant's Rule 33 Motion Should Be Granted

Pursuant to Polizzi's Rule 33 motion, see Def.'s Mot. to Vacate J., Docket Entry No. 123, the verdict on Counts One to Twelve is set aside and defendant is granted a new trial on those counts because he was denied his Sixth Amendment right to trial by an informed jury. See Fed. R. Crim. P. 33(a) ("Upon the defendant's motion, the court may [*376] vacate any judgment and grant a new trial if the interest of justice so requires."). Federal Rule of Criminal Procedure 33 "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, 969 F.2d 1409, 1413 (2d Cir. 1992). "Any error of sufficient magnitude to require reversal on appeal is an adequate ground for granting a new trial." Charles A. Wright et al., Federal Practice and Procedure: Criminal 3d §§ 530, 556 (2004).

Although a Rule 33 motion normally must be filed within seven days of the jury verdict, see Fed. R. Crim. P. 33(b)(2) ("Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 7 days after the verdict or finding of guilty."), the seven-day rule may be flexibly applied. See Fed. R. Crim. P. 45(b)(1)(B) ("When 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.").

Before the 2005 amendments, the Federal Rules did not permit such extensions [*377] of time. See, e.g., Carlisle v. United States, 517 U.S. 416 (1996). "By reason of changes to Rules 29, 33, and 45, which took effect December 1, 2005, the court now has greater latitude to extend the time for such motions." United States v. Robinson, 430 F.3d 537, 542 n.3 (2d Cir. 2005) (citing Report of the Advisory Committee on Criminal Rules, May 18, 2004, App. B, at 2, 4, 8); see also Mark M. Baker, Federal Post-Verdict Motions--An Update, N.Y.L.J., Feb. 13, 2006, at 4 ("[N]otwithstanding the government's objection, a district court now has the power to grant an extension to file a post-verdict motion at any time prior to sentence."). Neither is the seven-day time limit jurisdictional. See Eberhart v. United States, 546 U.S. 12, 19 (2005) (per curiam) (denominating it a "claim processing rule[]"). Because the interests of justice require a new trial, Polizzi's Rule 33 motion--filed approximately five months after the trial's end, but before sentencing--is arguably timely under Rule 45(b).

Since Polizzi has moved to vacate his guilty verdict under Rule 33, he has waived any possible double jeopardy objections to a retrial. Ordering a new trial without a defense motion could amount [*378] to double jeopardy in violation of the Fifth Amendment. See United States v. Smith, 331 U.S. 469, 474-75 (1974) ("It is not necessary for us now to decide whether his retrial on the court's own motion would amount to double jeopardy. That a serious constitutional issue would be presented by such a procedure is enough to suggest that we avoid a construction that will raise such an issue." (footnote omitted)). Since there is a defense motion in this case, no such constitutional issues are raised.

Had defendant not moved under Rule 33 for a new trial, this court probably could not have set aside the verdict. Courts of Appeal are more or less in agreement that a trial court does not have the power to sua sponte grant a new trial under Rule 33. See United States v. Vanterpool, 377 F.2d 32 (2d Cir. 1967) (noting that the 1966 amendments to Rule 33 "make it clear that a judge has no power to order a new trial on his own motion, that he can act only in response to a motion timely made by a defendant" because of the potential for double jeopardy (quoting the Note of the Advisory Committee on Rules)); accord United States v. Navarro Viayra, 365 F.3d 790, 793, 795 (9th Cir. 2004) (holding that [*379] a district court may not sua sponte convert a Rule 29 motion for acquittal into a Rule 33 motion for a new trial, despite the fact that "the rules do not explicitly preclude it from doing so," because "Rule 29 prohibits sua sponte conversion of a motion to acquit into a motion for a new trial. Rule 33 precludes a district court from granting a new trial on its own motion. Taken together, the rules permit a judge to order a new trial only in response to a defendant's motion."); United States v. Wright, 363 F.3d 237, 248 (3d Cir. 2004) (trial judge has "no power to order a new trial on his own motion" (citation omitted)); United States v. Brown, 587 F.2d 187, 189 (5th Cir. 1979) ("A district court . . . is powerless to order a new trial except on the motion of the defendant."). But see United States v. Taylor, 176 F.3d 331, 335 (6th Cir. 1999) (holding that the district court's decision to convert defendant's motion for acquittal into a motion for a new trial and grant the motion was not an abuse of discretion).

Courts may "suggest[] to defense counsel that a motion for a new trial might be appropriate." Wright et al., supra, § 551, at 460-61 (citing Vanterpool, 377 F.2d 32); see also [*380] United States v. Saban-Gutierrez, 783 F. Supp. 1538, 1541 (D.P.R. 1991), aff'd, 961 F.2d 1565 (1st Cir. 1992) (per curiam) ("[I]n order to avoid any potential double jeopardy problems, the rationale given for limiting a district court's power under Rule 33, we ORDER defendant, if he seeks a new trial, to file a motion for a new trial ....") (emphasis in original). "There may well be cases in which a new trial should be granted in the interests of justice, but the reason may not be readily apparent to defense counsel or he may be reluctant to raise it, as in the case of ineffective assistance of counsel." Wright et al., supra, § 551, at 461 (quoting Daniel A. Rezneck, The New Federal Rules of Criminal Procedure, 54 Geo. L.J. 1276, 1316 (1966)). Such a suggestion may avoid a subsequent habeas corpus petition based on inadequacy of counsel. In Polizzi's case, this discussion is academic: defendant moved under Rule 33 for a new trial and his motion is timely.

B. Error Was Prejudicial

A new trial is required in the interests of justice because the error was not harmless. Not instructing the jury on the statutory minimum sentence prejudiced the defendant. "The propriety of jury instructions [*381] is a question of law ... [T]he question is whether the challenged instruction misled the jury as to the correct legal standard or did not adequately inform the jury on the law." United States v. Goldstein, 442 F.3d 777, 781 (2d Cir. 2006). Here, the actual charge delivered did not adequately inform the jury of the legally required sentencing consequences of a conviction. Moreover, the court wrongly believed that it had no discretion to give the requested charge.

Unless the error is harmless, the convictions must be vacated. "An erroneous instruction is harmless if it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." Id. To evaluate harmlessness, the court must "appraise the significance of an error ... by comparing the instructions actually given with those that should have been given." United States v. Salameh, 152 F.3d 88, 142 (2d Cir. 1998) (quoting United States v. Dove, 916 F.2d 41, 45 (2d Cir. 1990)). In view of the jurors' post-trial comments after being informed of the mandatory minimum sentence, it is apparent that a properly informed and rational jury would likely have deadlocked on the receiving counts or [*382] found Polizzi not guilty by reason of insanity. The error was prejudicial.

A new trial must be granted on the receiving counts in the interests of justice as a result of the court's failure to charge the jury on the mandatory minimum. That the evidence was legally sufficient to support the verdict is irrelevant when a court commits prejudicial error in its jury charge. See United States v. Casciano, 927 F. Supp. 54, 58 (N.D.N.Y. 1996).

No new trial need be granted on the possession counts. There was no spillover effect since the evidence would have been essentially the same if only possession had been charged.

C. Sentence

After Booker, the sentencing guidelines are no longer mandatory. United States v. Booker, 543 U.S. 220 (2005). See the memorandum on sentence of Polizzi, explaining applicable guidelines and analysis of sentence under 18 U.S.C. § 3553(a). Section 3553(b)(2) of Title 18, which mandates the imposition of a guidelines sentence on persons convicted of child sex crimes except in very narrow circumstances, is also no longer applicable. United States v. Selioutsky, 409 F.3d 114, 117 (2d Cir. 2005) ("We conclude that the Booker rationale requires us to consider subsection 3553(b)(2) [*383] to be excised."). The issue of sentencing is the subject of an extensive sentencing hearing recorded by transcript, on video, and in a sentencing memorandum.

On the possession counts, a concurrent prison term of one year and a day is a sufficient period of incarceration. In light of the specific sentencing factors outlined in 18 U.S.C. § 3553(a), specifically: "(1) the nature and circumstances of the offense and the history and characteristics of the defendant; [and] "(2) the need for the sentence imposed," a year and a day in prison appropriately reflects the seriousness of the offense, provides just punishment, and satisfies specific and general deterrence. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(A)-(D). Specific deterrence is satisfied by this term of imprisonment, a large fine, a long period of supervised release, the intense shame created by the felony convictions, and the cost of defense. General deterrence is sufficiently achieved by the serious penalties. Based on Polizzi's lack of criminal history, a higher sentence required by mechanical application of the Sentencing Guidelines, would be excessive. His past as a law-abiding businessman and loving father, and the mental scars he [*384] suffers from childhood sexual abuse are given weight by the court in arriving at a reasonable sentence. See § 3553(a).

The defendant needs psychiatric treatment while in prison and during a succeeding ten-year period of supervised release. As members of the jury believed, the community will be better served if Polizzi improves with psychiatric care rather than be destroyed by prison. Supervised release is not insignificant. It is a substantial restriction on freedom. See Gall v. United States, 128 S. Ct. 586, 595 (2007) ("Offenders on probation are ... subject to several standard conditions that substantially restrict their liberty." (citation omitted)). Ten years ensures that Polizzi will receive the supervision and medical care he needs. Should there be a relapse under supervised release, the supervised release term can be extended or other action taken to ensure safety of the public. The evidence supports the conclusion that the defendant will not act out by physically interacting sexually with a minor.

Registration as a sex offender and its serious effects provides powerful general deterrence as well as long-term protection of the public; it eliminates some of the need for incapacitation [*385] through prison. Forfeiture of defendant's equipment and pornographic pictures also contributes to specific and general deterrence.

This sentence is imposed pursuant to 18 U.S.C. § 3553. The Guidelines computation by Probation, conceded to be correct by the government, permits a much longer sentence. The court adopts the presentence report computation as correct and does not depart from the Guidelines. See §§ 3553(a), (4)(A), and (5). Rather, it applies all elements of section 3553(a) and 3553(b) after full consideration of each element of those provisions. See transcript and videotape of hearing and oral rulings on sentence.

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