     09-4594-cr
     United States v. Polouizzi
 1                                UNITED STATES COURT OF APPEALS
 2                                    FOR THE SECOND CIRCUIT
 3
 4                                        SUMMARY ORDER
 5
 6   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
 7   A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
 8   GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
 9   LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
10   THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
11   ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
12   A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
13   COUNSEL.
14
15          At a stated term of the United States Court of Appeals for the Second Circuit, held at the
16   Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 22nd day
17   of September, two thousand ten.
18
19   Present:
20              ROGER J. MINER,
21              PIERRE N. LEVAL,
22              RICHARD C. WESLEY,
23                          Circuit Judges.
24
25   ________________________________________________
26
27   UNITED STATES OF AMERICA,
28
29              Appellant,
30
31
32              v.                                                  09-4594-cr
33
34   PIETRO POLOUIZZI, also known as PETER POLOUICCI,
35   also known as PETER PIETRO-POLOUICCI, also known
36   as PETER POLIZZI,
37
38              Defendant-Appellee.
39
40   ________________________________________________
41
42   For Appellant:                   PETER A. NORLING, Assistant United States Attorney (Allen
 1                                      L. Bode, Assistant United States Attorney, on the brief), for
 2                                      Loretta E. Lynch, United States Attorney for the Eastern
 3                                      District of New York, Brooklyn, New York
 4
 5   For Defendant-Appellee:    PETER GOLDBERGER (Pamela A. Wilk, on the brief)
 6                              Ardmore, Pennsylvania. Mitchell J. Dinnerstein, of counsel,
 7                              New York, New York.
 8   ________________________________________________
 9
10         Appeal from the United States District Court for the Eastern District of New York
11   (Weinstein, J.).
12
13          UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and

14   DECREED that the order of the district court granting a new trial be VACATED and the matter

15   REMANDED to the district court for further proceedings consistent with this order.

16          The government appeals from the district court’s order vacating the judgment of

17   conviction entered against defendant-appellee Pietro Polouizzi on the possession counts under 18

18   U.S.C. § 2252(a)(4)(B), and ordering new trial on both the possession counts and the receipt

19   counts. In the prior appeal, we ruled that possession of multiple images of child pornography at

20   the same time and place may not properly be charged as multiple counts – as opposed to a single

21   count of illegal possession – and similarly that receipt of multiple images of child pornography in

22   a single transaction may not be charged as multiple violations of 18 U.S.C. § 2252(a)(2). United

23   States v. Polouizzi, 564 F.3d 142 (2d Cir. 2009). The government contends that it was not within

24   the lawful exercise of the district court’s discretion to vacate the jury’s findings of guilt and order

25   new trial solely because of our ruling that the original charge was multiplicitous and could not

26   justify multiple convictions. We agree, especially in view of the fact that the evidence on the

27   retrial anticipated by the district court would have been “essentially the same” as the evidence in


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 1   the previous trial. United States v. Polouizzi, 687 F. Supp.2d 133, 159 (E.D.N.Y. 2010). There

 2   is no reasonable basis in these circumstances to conclude that the presentation of the same

 3   evidence in the context of the more numerous counts adversely affected the jury’s appraisal of

 4   the defense of insanity. Courts must exercise their authority under Rule 33 to set aside a jury

 5   verdict and grant a new trial “sparingly and in the most extraordinary circumstances.” United

 6   States v. Cote, 544 F.3d 88, 101 (2d Cir. 2008) (internal quotation marks omitted).

 7          United States v. Ketchum, 320 F.2d 3 (2d Cir. 1963), is not to the contrary. The question

 8   considered in that case was whether an election among multiplicitous counts might be required in

 9   an appropriate case “either before or after the close of the evidence.” Id. at 8. The opinion made

10   no suggestion that multiplicity, raised by the defendant for the first time on appeal after

11   conviction, might justify a grant of a new trial.

12          The order of retrial is reversed. We remand for reinstatement of the jury’s verdict on no

13   more than four counts of receipt in violation of 18 U.S.C. § 2252(a)(2) – one for each date on

14   which the defendant received images – and on one count of possession in violation of 18 U.S.C.

15   § 2252(a)(4)(B), all in accordance with our prior ruling, and for imposition of sentence. The

16   government’s application for a writ of mandamus prohibiting the district court from instructing

17   the jury concerning the mandatory minimum sentence for violations of 18 U.S.C. § 2252(a)(2)

18   is moot in light of the fact that there will be no retrial. In the event of a subsequent appeal, the

19   matter will be assigned to this panel.

20          VACATED AND REMANDED.

21


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1    FOR THE COURT:
2    CATHERINE O’HAGAN WOLFE, CLERK
3
4




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