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Sunday, May 3rd, 2009

Porn At Home

United States v. Polouizzi, No. 08-1830-cr (2d Cir. April 24, 2009)(Leval, Katzmann, Raggi, CJJ)

Defendant – referred to in the opinion as Peter Polizzi – was convicted by a jury of eleven counts of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), and twelve counts of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2), after the jury rejected his insanity defense. Post-trial, he made a Rule 33 motion, arguing that the district court erred by refusing to inform the jury that the receipt counts carried a five-year mandatory minimum. Based in part on a post-verdict colloquy with the jurors that revealed that at least some of them would have accepted the insanity defense had they known of the mandatory minimum, the court granted the motion on the receipt counts only. Both sides appealed.

The Defendant’s Appeal

A. Double Jeopardy

1. Multiple Counts of Possession…

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Categories: child pornography, double counting, mandatory minimum, Rule 33, Uncategorized, waiver

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Categories: child pornography, double counting, mandatory minimum, Rule 33, Uncategorized, waiver

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Friday, February 6th, 2009

Child-Like

United States v. Irving, No. 07-1312-cr (2d Cir. January 28, 2009)(Kearse, Sack, Raggi, CJJ)

Stefan Irving is a former physician who was convicted, after a jury trial, of child pornography offenses, and several other counts relating to his travel to Mexico and Honduras to engage in sexual acts with children. The district court sentenced him to 262 months’ imprisonment, the top of the Guideline range. A 2005 Second Circuit decision disposed of his trial-related claims. This opinion, which arose in the context of the district court’s decision to adhere to the original sentence after a Crosby remand, disposes of his sentencing claims.

Irving’s Guidelines claims are not particularly interesting. First, he unsuccessfully challenged the district court’s choice of Chapter 2 offense conduct guidelines, but the court’s choices were clearly correct under the relevant instructions in the Guidelines manual.

He also challenged the “vulnerable victim” enhancement, claiming that his victims’ vulnerability …

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Categories: child pornography, double jeopardy, Uncategorized, vulnerable victim

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Categories: child pornography, double jeopardy, Uncategorized, vulnerable victim

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Sunday, October 26th, 2008

Sexually Charged

United States v. Rivera, No. 06-4946-cr (2d Cir. October 15, 2008) (Jacobs, Kearse, Katzmann, CJJ)

Carlos Rivera was convicted of various offenses relating to the sexual exploitation of children. One count involved the production of child pornography for which Rivera, a recidivist, received a mandatory life sentence. His primary argument on appeal was that the district court incorrectly charged the jury on the definition of “lascivious” with respect to that count. Finding no error, the court of appeals affirmed.

At issue were six photographs that Rivera took of a sixteen-year old boy lying naked on a hotel bed, in various suggestive poses. The statute, 18 U.S.C. § 2251(a), prohibits coercing or enticing a minor to engage in “sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” “Sexually explicit conduct” is defined to include the “lascivious exhibition of the genitals or pubic area of any person.”…

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Categories: child pornography, jury charge, Uncategorized

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Categories: child pornography, jury charge, Uncategorized

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