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Third Circuit Issues Notable Coda to Judge Weinstein's Decision in Polizzi

As discussed here in our last entry, Judge Weinstein issued a powerful and erudite indictment of cruel mandatory minimum sentences in United States v. Polizzi, 2008 WL 1882006 (E.D.N.Y. April 1, 2008), and thus, temporarily at least, saved the defendant in that case from what any compassionate being could see is a useless and undeserved five years in prison.  But If none of the issues highlighted in Judge Weinstein's decision gain traction at the appellate level, the Third Circuit has just offered Polizzi another path to freedom.  

Reaching in United States v. Miller, 2008 WL 2230032 (3rd Cir. June 2, 2008) a conclusion of first impression, the Court ruled that possessing child pornography is a lesser included offense of receiving the same images, and thus, that 18 U.S.C. §§ 2252A(a)(2) and 2252A(a)(5)(B) punish the same offense in violation of the Double Jeopardy Clause.  (Polizzi was convicted under statutes that are functionally the same, 18 U.S.C. §§ 2252(a)(2) and 2252(a)(4)(B).)  This error of entering separate convictions for counts of receipt and possession of child pornography ?is, indeed, plain? (important for Polizzi, since there is no indication in Judge Weinstein's decision that the defense had raised this issue).  The error also affects substantial rights, because it ?saddles the defendant with separate $100 special assessments and threatens him with 'the potential adverse collateral consequences' of two convictions on child pornography charges.?  In Polizzi's case, who was indicted of these charges after the mandatory minimum sentences came into play, it additionally affected substantial rights because one count carried a mandatory minimum five years in jail.

The Court's remedy in Miller is also a remedy Polizzi would no doubt embrace: "Where we conclude that a defendant was erroneously convicted for the same offense under two separate counts, but find the evidence sufficient to support either conviction, 'the only remedy consistent with the congressional intent is for the District Court, where the sentencing responsibility resides, to exercise its discretion to vacate one of the underlying convictions.'  [quoting Ball v. United States, 470 U.S. 856, 864 (1985)]  Accordingly, we will remand this case to the District Court for further appropriate proceedings."

Full post as published by New York Federal Criminal Practice on June 03, 2008 (boomark / email).