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COURT: SIXTH AMENDMENT GIVES DEFENDANT THE RIGHT TO HAVE JURY INFORMED OF MANDATORY MINIMUM SENTENCE

The case, United States v. Polizzi, involved a child pornography prosecution.

The Defendant in the case immigrated to the United States from Sicily when he was a young adult. He thereafter married and had five successful sons. Additionally, he was able to purchase a restaurant, which he turned into a successful establishment as a result of working eighteen hours per day, seven days per week.

When the Defendant was a child in Sicily, he was raped by his uncle, a family friend as well as two Italian police officers. The Defendant also witnessed the murder of one of his friends, as well as the kidnapping of another by Italian police, potentially relating to child sexual abuse. There was extensive testimony regarding psychological harm the Defendant has suffered as a result of these incidents, including post traumatic stress disorder and obsessive compulsive disorders. The Defendant never sought any psychological help.

Approximately five years before this case arose; the Defendant began accessing child pornography on the Internet. Eventually, he amassed approximately 5,000 images of child pornography, mostly young girls. The Defendant never attempted to contact any minors in on-line chat rooms, and possession of child pornography was apparently the Defendant’s only brush with the law.

The circumstances that led to the Defendant’s arrest apparently started with the receipt, by an unrelated person, of a “spam” e-mail advertising a child pornography club. This unrelated person turned the e-mail over to local police, and the police and FBI worked to reach the source of the e-mail. Once that source was caught, records were examined, and the Defendant’s information was discovered. Apparently, the Defendant had joined the “club” and paid a fee to access images of child pornography. The Defendant was arrested and prosecuted in the United States District Court for the Eastern District of New York on twelve counts of receiving child pornography and twelve counts of possession of child pornography.

Before, during, and after trial, Defendant’s counsel repeatedly moved to have the Court instruct the jury that the offense carried a mandatory minimum of five years in federal prison, and the Court refused to grant the request. At the end of the trial, the jury returned verdicts of guilty. After the verdicts were received, the Court inquired of the jury as to whether, had they known of the five year mandatory minimum, they would have returned the same verdicts. Many jurors stated that they did not wish to state their feelings on the question, however, all of the jurors who did express an opinion felt that the Defendant deserved mandatory treatment and close supervision, and not a lengthy prison sentence. Defendant’s sex crime defense lawyers indicated as well that they spoke to the jury after it had been discharged and the jurors indicated that there was an almost universal feeling among the jurors that the Defendant should not be sent to prison.

Defendant made a post trial motion for a new trial, citing, among other things, the failure of the trial court to instruct the jury on the mandatory prison sentence. The trial judge ruled that the Defendant should be granted a new trial. Initially, the judge went through a lengthy and scholarly discussion of the history of a defendant’s right to a jury trial in a criminal case, as guaranteed by the Sixth Amendment to the United States Constitution. The judge noted that recent authority from the United States Supreme Court has stressed the importance of the jury in criminal jurisprudence. Specifically, the judge ruled that “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 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.”

The judge went on to state that “[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 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 found Polizzi not guilty by reason of insanity. The error was prejudicial.”

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