Full opinion text
MEMORANDUM, ORDER & JUDGMENT JACK B. WEINSTEIN, Senior District Judge: TABLE OF CONTENTS I.Introduction............................................................. 319 A. Constitutionality of Statute............................................. 320 B. Unconstitutional Denial of Jury’s Broad Power to Refuse Conviction......... 322 II. Facts................................................................... 323 A. Defendant and the Crime.............................................. 323 1. Childhood Sexual Abuse in Sicily..................................... 324 2. Resulting Psychological Trauma...................................... 325 B. Procedure............................................................ 326 1. Investigation ...................................................... 326 2. Arrest............................................................ 327 3. Indictment........................................................ 329 4. Motion to Dismiss Indictment........................................ 329 5. Jury Charge....................................................... 330 a. Affirmative Defense of Insanity.................................... 330 b. Mandatory Minimum Sentence.................................... 330 6. Trial.............................................................. 331 a. Polizzi’s Testimony............................................... 332 b. Dr. Lisa Cohen.................................................. 333 c. Dr. Eric Goldsmith .............................................. 334 d. Dr. N.G. Berrill ................................................. 337 7. Jury Verdict....................................................... 339 8. Post-Verdict Proceedings............................................ 339 III. Constitutional Objections to the Statute ..................................... 341 A. Fundamental Problem with Passive Receiving and Possessing Without Evil Intent as Charged Under Statute..................................... 341 1. Generally ......................................................... 341 2. Definitions ........................................................ 343 3. Operative Elements of the Receipt and Possession Statutes.............. 345 4. X-Citement Video.................................................. 349 5. X-Citement Video Does Not Control.................................. 351 6. Overbreadth....................................................... 353 7. Precedent......................................................... 354 a. Defining “Receipt” and “Possession”............................... 355 b. Inferring Intent from Non-Operative Facts......................... 357 8. Remedy........................................................... 358 B. Cruel and Unusual Punishment......................................... 358 1. Is the Punishment Cruel? ........................................... 359 2. Is the Punishment Unusual?......................................... 360 C. Disproportionate Penalty .............................................. 361 1. Proportionality Analysis............................................. 361 2. Is Five Years Constitutionally Disproportional? ........................ 364 a. The Nature of Polizzi’s Crimes and the Contemplated Penalty......... 364 i. Severity of Offenses ......................................... 364 ii. Harm Caused by the Offenses................................. 365 iii. Severity of Punishment ...................................... 366 iv. Polizzi’s Culpability.......................................... 368 b. Punishment for Other Offenses in This Jurisdiction .................. 369 c. Punishment for Similar Offenses in Other Jurisdictions............... 370 D. Irrationality.......................................................... 372 1. Generally .................................... 372 2. Federal Laws Criminalizing Receiving or Possessing Child Pornography Are Not so Irrational so as to Violate the Constitution................. 374 E. Lenity............................................................... 377 F. Free Speech.......................................................... 378 1. History of Pornography............................................. 378 2. First Amendment Exceptions........................................ 380 a. Obscenity....................................................... 380 b. Sexually Oriented Expression..................................... 383 c. Child Pornography............................................... 384 G. Search and Seizure.................................................... 386 1. Summary of Relevant Facts ......................................... 386 2. Fourth Amendment ................................................ 387 3. Reasonable Expectation of Privacy................................... 388 4. Third-Party and Envelope-Content Doctrine........................... 390 5. Electronic Communication Privacy Act................................ 392 6. Probable Cause for Search of Home .................................. 394 7. Policy Considerations............................................... 396 H. Separation of Powers.................................................. 397 1. Mandatory Mínimums Historically and Today.......................... 398 2. The Judiciary’s Power Under Article III .............................. 399 3. Congress Has the Power to Enact Mandatory Mínimums................ 400 4. Analysis of the Statute.............................................. 401 I. Jury Finding of Predicate Facts ........................................ 402 IV. Unconstitutional Refusal to Inform Jury of Mandatory Minimum Incarceration ... 404 A. History and Context of Sixth Amendment................................ 405 1. Goebel............................................................ 408 2. Ryder Papers...................................................... 413 3. Old Bailey Session Papers........................................... 417 B. Nineteenth- and Twentieth-Century Judicial Attempts to Restrict Sixth Amendment Jury Discretion.......................................... 420 C. Some Modern Attempts to Eliminate Jury Power Violate the Constitution____ 424 D. Recent Supreme Court Caselaw Rejects Attempts to Limit Jury’s Power..... 426 1. Supreme Court Places a High Value on the Jury’s Historic Sentencing Role 427 2. Supreme Court Invalidation of Laws and Practice Incompatible with Historic Jury Role................................................ 428 3. Sentencing Cases Suggest that the Supreme Court Recognizes the Jury’s Power to Moderate the Law’s Harsh Effects......................... 431 E. Requirement of Jury Knowledge in View of the Unusual Situation, Statute and Punishment of Which the Jury Was Not Aware......................... 433 1. Thomas and Pabon-Cruz Are Premised upon a Now Inappropriate Attempt to Curtail Jury Powers.................................... 433 a. Thomas........................................................ 433 b. Pabon-Cruz..................................................... 435 i. Procedural History.......................................... 435 ii. Post-Booker, Pabon-Cruz, Thomas and Shannon Require Reinterpretation .......................................... 437 2. Gilliam Language Represents the Current General Role of the Informed Jury as Representative of Community Mores ........................ 438 3. In Polizzi’s Case, Informing the Jury of the Applicable Penalty Was Necessary Because of the Defendant’s Unusual Background and the Unknown Punishment............................................. 440 F. Variability of Results Depending Upon Informed & Non-Informed Jurors____ 440 G. Conclusion........................................................... 443 V. Defendant’s Motion to Inform the Jury of Mandatory Minimum Should Have Been Granted............................................................... 443 A. Defendant’s Rule 33 Motion Should Be Granted........................... 446 B. Error Was Prejudicial................................................. 448 C. Sentence............................................................. 448 VI. Conclusion............................................................... 449 A. Constitutionality of Statute............................................. 449 B. New Trial as to Counts One Through Twelve............................. 449 C. Sentence on Counts Fourteen Through Twenty-Four...................... 450 D. Stay................................................................. 450 Appendices.................................................................... 450 A. Selected Bibliography on Historic Powers of Jurors When Sixth Amendment Was Adopted....................................................... 450 B. State Statutory Mínimums and Child Pornography Statutes................ 454 C. Federal Statutory Mínimums........................................... 487 I. Introduction Defendant, Peter Polizzi, was charged with — and convicted after a jury trial of— twelve counts of receiving and eleven counts of possessing child pornographic images under 18 U.S.C. §§ 2252(a)(2) and 2252(a)(4)(B). The pictures were so sick-enly loathsome as to lead inexorably to jury denouncement. See Superseding Indictment, Mar. 8, 2007, Docket Entry No. 35; Govt.’s Letter to Dismiss Count Thirteen, Aug. 27, 2007, Docket Entry No. 62. He has been in federal custody since October 5, 2007, when the jury delivered its verdict. A conviction for receiving child pornography under 18 U.S.C. § 2252(a)(2) requires a mandatory minimum sentence of five years’ imprisonment; the maximum is twenty years. 18 U.S.C. § 2252(b)(1). Ten years is the maximum for conviction for possession under 18 U.S.C. § 2252(a)(4)(B); there is no minimum. 18 U.S.C. § 2252(b)(2). Whether a charge based on the receipt and possession of the same picture is duplicative — because upon receipt via computer, possession necessarily begins — need not be addressed since the multiplicity of counts does not affect the sentence being imposed. See Parts V.C, VI.C, infra. Before it rendered its verdict of guilty, the jury was not informed of the five-year mandatory minimum sentence a conviction on the receipt counts entailed despite the defendant’s request for such an instruction. Told of the minimum after the verdict was received, a number of jurors expressed distress, indicating they would not have voted to convict had they known of the required prison term. They had assumed that the defendant would receive treatment, not long incarceration. See Part II.B.8, infra. The jury rejected Polizzi’s alleged affirmative defense of not guilty by reason of insanity. See Insanity Defense Reform Act of 1984 (“IDRA”), Pub.L. No. 98-473, 98 Stat.2057 (codified at 18 U.S.C. § 17). The defense was largely predicated on Pol-izzi’s himself having been repeatedly and severely sexually abused as a child. See Part II.A, infra. Defendant’s background was positive. See id. He was brought to this country when he was a young teenager after a childhood in Sicilian poverty; had little formal education, yet, after teaching himself to play an instrument, led a popular local band; worked extremely long hours at menial labor as a boy, and then bought and built-up a successful restaurant; had a loving wife and five supportive lawfully engaged sons; lived in a fine home; was well respected in the community by the police, clergy and others; had no criminal record; viewed the charged pornography downloaded from the Internet alone in a double-locked room above his garage; and, upon his arrest, cooperated fully with the police, suggesting to them that whoever participated in producing these dreadful pornographic images should be prosecuted. See Parts II.A, II.B.1-2, infra. Defendant now moves for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure and for dismissal pursuant to Rule 29. Def.’s Mot. to Vacate J., Docket Entry No. 123. Two main issues are presented: First, are the statute and mandatory minimum sentence constitutional facially and as applied? See Part III, infra. Second, should the jury have been informed of the mandatory minimum before it began its deliberations? See Part IV, infra. A. Constitutionality of Statute Although the constitutional arguments against enforcement of the statute facially and on the facts charged are powerful, each is rejected on the basis of precedent. Serious questions about constitutionality suggest that the appellate courts and Congress need to revisit these issues. A fundamental problem is presented by the statute and charge. Passively “receiving” and passively “possessing” images sent over the Internet may lack the constitutionally required scienter. See Part III.A, infra. There is a limit to what life the courts can breathe into a statutory provision otherwise dead under the Constitution by incorporating judicially created scienter and mens rea qualifications. In view of appellate assumptions that the charged child pornography statute is valid, dismissal on the basis of unconstitutionality is denied. These assumptions need to be reconsidered on appeal. There is merit to defendant’s argument that the punishment violates the Eighth Amendment, but it cannot be said that the statute is unconstitutional because it is not both cruel and unusual. See Part III.B, infra. Neither can it be said that the punishment is unconstitutionally disproportionate to the crime charged. See Part III.C, infra. Congress has found that receipt and possession of child pornography is demeaning to the children depicted and increases the threat of sexual abuse of children. Utilization of the criminal law and the threat of heavy penalties to minimize the risk of sexual abuse of children are appropriate and can be considered proportionate. There is merit to defendant’s argument that the heavy penalty is irrational in view of the specific charges, but it cannot be said that it is unconstitutionally so. See Part III.D, infra. It can be justified on a congressional view that criminalization of all aspects of the distribution chain will discourage people from downloading such images, deterring purveyors and those sexually abusing children. This argument of rationality is less persuasive than it would be were the purchase by a down-loader an element of the offense charged— which it is not here — since the definition would then strike directly at the profit motive, a chief driving force of the current Internet traffic in child pornography images. There is merit to defendant’s contention that the rule of lenity requires interpretation of the applicable statute to exclude mere passive receipt and possession as charged. It is not appropriate, however, to declare invalid the receiving and possessing provisions charged since appellate courts have assumed they are valid despite their defects. See Part III.E, infra. The statutory provision requiring parsimony in punishment yields to specific sentencing provisions requiring a mandatory minimum. Id. There is merit to defendant’s assertion that the statute charged violates the First Amendment free speech protections of persons in their own homes viewing, reading, or hearing what they wish, but it cannot be said the statute is unconstitutional on this ground. See Part III.F, infra. Free speech may be limited by Congress should investigation demonstrate that it leads fairly directly to sexual abuse of children. Child pornography enjoys no prima facie First Amendment protection. There is merit to defendant’s argument that the investigation leading to his arrest was a violation of his Fourth Amendment right against unreasonable searches and seizures, but no motion to suppress was made, and it cannot be said it was unconstitutional given current statutes and precedent. See Part III.G, infra. Using computer forensics to secretly find out what a person is viewing in the privacy of his own home arguably violates constitutional protections, but it may be justified, as precedents suggest, by the lack of any expectation of privacy in the computer “address” of a receiver of images transmitted through the Internet. There is merit in defendant’s contention that mandatory mínimums violate separation of powers by shifting part of the judicial discretional sentencing power from the courts to Congress and to the executive through its charging ability, but the statute cannot be held to be unconstitutional on that ground. See Part III.H, infra. Appellate courts repeatedly have recognized that sentencing is a shared power among the three branches and that the legislature may limit sentencing discretion through mandatory mínimums and otherwise. There is merit in defendant’s argument that forcing the jury into a general verdict without informing it of the verdict’s punitive implications violates the jury’s constitutional role in finding predicate sentencing facts to provide a basis for sentencing enhancement as outlined in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and related eases, but there cannot be said to be unconstitutionally on that ground. See Part III.I, infra. The jury’s general verdict of guilty, under the statute’s operative elements, is the statutory basis for the minimum sentence. B. Unconstitutional Denial of Jury’s Broad Power to Refuse Conviction The American petit jury is not a mere factfinder. From the time the right to trial by jury was embedded in the Constitution as a guarantee to criminal defendants through the Sixth Amendment in 1791, it has been expected to bring to court much of the wisdom and consensus of the local community. See Part IV, infra. It has, when jurors deemed it necessary, stood as a guardian of the individual against the sometime cruel overreaching of government and its menials. Much of our modern procedural “reforms” have been designed to limit the jury’s reach and power, increasingly shifting control to judges; these efforts have attempted unconstitutionally to transform the jury into a simple factfinder from its grander historical position under the Constitution as representative of the people in the courts. Recent Supreme Court developments stress “originalism” — that is to say, the meaning at the time the relevant constitutional language was adopted. The approach has been applied to sentencing in a series of Supreme Court eases reviving the original meaning of the Sixth Amendment guarantee of trial by jury in criminal cases and the right of a defendant to be confronted with opposing witnesses. See Part IV.D, infra. The development is based upon what is believed to be colonial practice immediately preceding adoption of the Sixth Amendment, and the reception of then current British practice. See Part IV.A, infra. Extrapolation of the recently emphasized constitutional principle requiring a jury finding of the facts needed to enhance a sentence requires courts to recognize that colonial and British juries in the late eighteenth century had power to control the finding of guilt in order to affect the sentence. In exercising its extensive discretion, the jury was expected to be aware of, and understand, the sentence that would follow from its decision. That jury power to know and act may not be eviscerated, as was done in this ease by this court’s error in failing to advise the jury of the five-year mandatory minimum sentence required on conviction of receipt of child pornography. Although much of modern civil and criminal procedural rule-making has been devoted to controlling juries, see Part IV.C, infra, the emphasis on originalism by the Supreme Court in sentencing and confrontation requires enforcement of a basic element of the Sixth Amendment as originally understood: the jury of the vicinage, being aware of the sentencing implications of a finding of guilt, had the frequently exercised power to refuse to follow the law as construed by the court, and could acquit or downgrade the crime in order to avoid a sentence it deemed excessive. The complexity of modern United States criminal law and the general public’s lack of detailed knowledge of federal statutory provisions require that, in the few cases where necessary, the jury be informed of such matters as the required minimum term of incarceration that will follow from its verdict so that it can exercise its constitutionally mandated historic role. Cases which have rejected this view, on the ground that it permits a form of impermissible “nullification,” have not followed the Sixth Amendment as it must be interpreted after recent Supreme Court originalist holdings. See Part IV.E, infra. Consideration of jury power contemporaneous with the Sixth Amendment’s adoption leads to the conclusion that this court committed constitutional error when it denied defendant’s request to inform the jury of the statutory mandatory five-year minimum applicable to the receiving counts. A new trial on those counts, granted pursuant to defendant’s Rule 33 motion, will be required to correct that prejudicial error. See Part V, infra. The requested instruction might well have led to a hung jury or a verdict of not guilty or not guilty by reason of insanity. This ruling on what the jury is entitled to know about sentencing is limited to that small group of cases where the jury would not be expected to know of the applicable harsh mandatory minimum. It would not, for example, appear to be applicable to robbery, terrorism or personal assaults with weapons where juries expect long prison terms to be imposed. It would also not apply where the defendant asked that the jury not be informed because of potential prejudice. An acquittal on the receiving counts would not mean the defendant would go unwhipped of justice. Because they do not require a minimum sentence, the possession counts stand; they provide ample ground for serious non-mandatory penalties, including a substantial prison term, a heavy fíne and a long period of supervised release. See Parts V.C, VI, infra. The instant trial and the attendant evidence and publicity have revealed a man who entertains himself by buying, downloading and viewing the most vile child pornography; the cost of his defense was considerable; and the loss of self-respect and the esteem of community and family constituted a devastating punishment. The criminal process and the trial are the modern equivalents of eighteenth-century branding, being put in stocks, or being carted about the community in shame. Defendant, whatever the ultimate outcome of the prosecution, is now publicly marked as morally culpable. II. Facts A. Defendant and the Crime As described more fully below, Peter Polizzi, now fifty-four, immigrated here with his family from an impoverished area in Sicily when he was in his early teens, speaking only Italian. Trial Tr. 164. With just a few years of schooling, as a young man he bought a restaurant in Queens, and over the next thirty-five years turned it into a valuable business. Along the way, he met and married the girl next door, id. at 169, had five successful sons who are all in college or college graduates, id. at 165, 1366, and bought a fine home. Polizzi taught himself to play the guitar. He performed in a band at Italian weddings, id. at 169, 1018, until one of his band members was shot and killed in front of him during a robbery. Id. at 1022. A religious man, he attended church regularly. Id. at 907. In his free time, he organized his extensive collections of music, baseball cards, movies, comic books, and other “collectibles;” see Part II.B.6.b, infra; he placed great importance on being “nice and neat.” Trial Tr. 748, 869. His success was, in large part, the result of hard physical work, a strict, formalized routine with very long hours, and the help of his wife and children. Id. at 864, 1018 (noting that he regularly worked up to eighteen hours per day, seven days a week). For some five years before his arrest in 2005, Polizzi regularly repaired to a double-locked room over his detached garage to view child pornography on his computer; eventually he possessed over 5,000 pictures, the vast majority of which were of young girls. Id. at 355, 859. Polizzi claimed he came across child pornography accidentally while looking for adult pornography, and was “shocked” by what he saw. Id. at 1046. He thought such “filthy” photos should be outlawed, but did not realize they were illegal; if they were forbidden, he asked himself, why were they freely available on the Internet? Id. at 1047,1105 (“Now, I know it’s wrong, but back then I didn’t — I didn’t know it was wrong. You say it was illegal, to me something that is there you see is not illegal, because if it’s illegal what to stop, what is there is illegal [sic]?”). With what he testified as the goal of eventually turning his collection over to law enforcement, Polizzi downloaded all the photos he could find. Id. at 1047, 1070; see id. at 782. The images reminded him of being sexually abused multiple times as a child in Sicily, and he said he wanted to help those children he now saw suffering the same fate. Id. at 1046; see Part II.B.6.a, infra. Yet, with what he testified was fear of law enforcement (based upon his own abuse by Italian police officers), and hesitant to reveal his own sexually abused past of which his family knew nothing, he never notified any authorities. Trial Tr. 1048, 1071 (“Always, when I see the police I get anxiety attack, even now.”). There is no evidence that the defendant ever committed another crime. See id. at 165. Polizzi never sent any photos to anyone nor did he enter teenage chat rooms or attempt online solicitation. Id. at 534-38, 1366; see id. at 1058. Beyond his present convictions for receipt and possession of child pornography, no allegations of production or distribution of such images nor of any other improper conduct by the defendant have been made. 1. Childhood Sexual Abuse in Sicily As a child, Polizzi was raped by his uncle, a family friend, and two Italian police officers. He also witnessed the murder of one playmate and the kidnapping of another by other police officers, possibly in connection with sexual abuse. Until he was arrested for the instant offense, Poliz-zi had not told anyone for over forty years of having been sexually abused. Based on defendant’s testimony and out-of-court psychological examinations, it was assumed that defendant’s described sexual abuse when he was a child took place. See Def.’s Letter 2 n. 3, Dec. 5, 2007, Docket Entry No. 114 (reporting that it was generally accepted by most of the jurors that the incidents in Sicily did happen). Thus, expert evidence was not offered on the issue of his credibility regarding this fact. Cf. generally Christopher Slobogin, Experts, Mental States, and Acts, 38 Seton Hall L.Rev. 1009 (2008); Edward J. Im-winkelreid, The Case Against Abandoning the Search for Substantive Accuracy, 38 Seton Hall L.Rev. 1031 (2008). Prior to leaving Italy at about age twelve, Polizzi and his family lived in a small rural village in Sicily, working as sharecroppers. Trial Tr. 941. At trial, Dr. Jane Schneider, a cultural anthropologist specializing in 1950s and 1960s Western Sicily, testified as to the general poverty, living arrangements, and economic structure of the region, lending general background support to Polizzi’s account. Id. at 166, 721-37. She confirmed that Burgetto, Polizzi’s village, was then a “very poor,” “socially stratified” “rural town” of about 6,500 people, a peasant society with a feudal-like history of large estates and sharecroppers, id. at 728: The majority of the population had very little land or no land and they worked for or were sharecroppers of large landowners .... If they were fortunate they had a mule or maybe a donkey, they commuted to their fields sometimes on mule back.... The mules lived in the household with the family. A typical ... poor peasant’s house was maybe one room or two rooms with perhaps alcoves for children to sleep in ... and adjacent to that would be the stall with the family’s mule. Id. at 729. Dr. Schneider also described the corrupt carbina, the Italian national police force, and its officers, the carabinieri: [T]he police in a rural town in those days would have been members of the car[b]ina and this is a quasi militarized national policing institution in Italy.... [T]he carabinieri would not have local ties ..., you would be assigned to some community in Italy where you didn’t have any local connection, so the carabi-nieri was for the most part outsiders to the communities in which they were policing. ... [T]he police and carabinieri in Sicily, especially western Sicily, which got this history of large estates and the Mafia and so on, were very — had a very bad reputation, a reputation for corruption, reputation for not prosecuting organized crime, criminal offenses.... Id. at 732-33. A poor peasant family, Polizzi and his six younger brothers and sisters shared what was little more than a hovel with the family’s mule. Id. at 942. Polizzi’s nearby grandparents often cared for him. When staying at their house, he shared a bed with his teenage uncle, who repeatedly sexually molested him beginning when he was four years old. Id. at 952. At age seven, Polizzi was beaten and raped by his uncle, who threatened to kill him if he ever told anybody. Id. at 959-62. Despite the warning, he did tell his mother, only to be hit by her and accused of lying. Id. at 963. A year later, Polizzi was raped again. Sent into the fields on an errand, a family friend — his brother’s godfather — beat and sodomized him at knifepoint, similarly threatening to kill him if he said anything. Id. at 970-71. Polizzi later revealed the abuse to the village priest, whose only comment was “don’t do that again, because God [is] going to punish you.” Id. at 990; see id. at 1247. The third and fourth incidents took place when he was nine. Walking home from school, he was grabbed by two Italian carabinieri, who raped him in a stable. After they finished, one of the officers took his service revolver, inserted it in Polizzi’s anus and then his mouth, telling him that he and his family would be killed if he ever told. Id. at 975-79. Polizzi never went back to school, obtaining work in a bakery instead. Id. at 980. Polizzi had two friends in the village, boys his age who had also been raped. Id. at 983-84. Playing hide and seek on the outskirts of town one summer night, they suddenly heard “screaming, running.” Id. at 987. Polizzi froze under a bush, but his two friends decided to run, only to be caught by carabinieri. The police officers beat one of his friends, punching and kicking him to the ground, where he hit his head on a rock. “[A]s soon as [his friend] fell he didn’t move no more.” Id. at 988. The carabinieri fled, taking one boy with them and leaving the other dead. Polizzi never again saw the boy the police had taken away. Id. at 987-88. A year or two later, Polizzi left for the United States with his family. 2. Resulting Psychological Trauma Although he achieved the American dream in many ways, Polizzi retained, according to his own testimony and that of experts, psychological scars from his childhood abuse. His wife and children did not know these secrets from his past. After the Sicilian priest, the next person Polizzi told about these rapes, some forty years later, was a counselor assigned after his arrest. Id. at 990, 1240, 1302. Polizzi’s adult life was marked by post-traumatic stress and obsessive-compulsive disorders, though he never sought any mental health treatment. Id. at 791, 1209; see Part II. B.6.a, infra. Lacking self-awareness, he considered his behavior normal. See Trial Tr. 873; Part II.B.4.b, infra. Polizzi also suffered head injuries from several car accidents in the early to mid-1990s where he lost consciousness. See Trial Tr. 1139-40. Because the only medical record introduced was a recent MRI scan that by itself did not reveal anything of significance, it is impossible to say how, if at all, the head trauma affected him. See id. at 1262-64,1320. The opposing experts at trial disagreed on the extent of his mental functioning and health. See Parts II.B.6.b-d, infra. Upon a retrial, the physical and psychological history of the defendant should be examined in greater depth. B. Procedure 1. Investigation The investigation leading to Polizzi’s arrest and convictions began with an unsolicited spam email advertising a “private child porn club” received by a Long Island householder. Trial Tr. 182, 199. He forwarded it on February 21, 2005 to the Suffolk County Police Department, which promptly began a joint investigation with the Federal Bureau of Investigation (“FBI”). The email advertisement included a website address for those interested in joining the “club.” Following this lead, the investigators were directed to a “join page.” Entitled “Pedo Lovers 2004-2005,” the join page contained thumbnail sized photographs of child pornography. Id. at 203. Using an undercover email account, the officers joined the “club,” called “Hardcore.” Id. at 201-55. It charged eighty-nine dollars for a thirty-day membership. Id. at 209. Becoming a member of “Hardcore” was not a one-step process; multiple pieces of identity-confirming information, including name, address, credit card number, and a valid email address were required in order to receive a log-in ID number and password by subsequent email. Before receiving the club’s actual website address, the agents had to find out from their credit card company the exact amount charged to the card and re-enter that information. Id. at 219-20. Hardcore’s membership conditions included the admonition not to talk about the “members area” with any authorities. Id. at 234. Access to the club’s website was only possible with the correct web address, log in and password. Id. at 244. Polizzi testified that at the time he joined the club, he did not have to go through any of these steps beyond entering his name and credit card number. He admitted that he had paid eighty-nine dollars for three thirty-day memberships to “Hardcore.” Id. at 148, 155, 208, 215. Tracking down the producers and subscribers of the site involved a complicated forensic process stretching across the world. The join page was found to be located in Asia, probably Hong Kong, but the subsequent money trail was traced back to New Jersey. Id. at 207. By looking up the registrant of the website, the agents discovered that the website contents were moving alternately between web host companies in Scranton, Pennsylvania and Fremont, California. Id. at 242, 247, 266. The companies had been paid with a valid Russian credit card. Id. at 267, 546. On March 10, 2005, the FBI sent a “preservation letter” to the Scranton web host, ordering that the contents of the site be preserved as of that date. Id. at 251. On April 20, 2005, law enforcement officers executed a federal judicial search warrant on the host company for the Hardcore website’s hard drives. See Govt.’s Letter 1, Mar. 19, 2008, Docket Entry No. 136; Part III.G, infra (discussing subpoenas and search warrants in Internet investigations). The hard drives seized contained the preserved data from March 10, 2005, as well as data from, and a copy of, the website as of the day of the search. Trial Tr. 256. Hard drives from the California web host were also seized through the use of federal judicial search warrants and the site temporarily shut down. See Govt.’s Letter 1 n. 1, Mai’. 19, 2008. Soon after-wards, Hardcore began operating from another web host on Christmas Island in the Philippines. The trail for the website’s producers reached a dead end overseas in Russia. Trial Tr. 249, 269. Executed as well was a federal judicial search warrant on the New Jersey company handling the website’s credit card and other financial information. See Govt’s Letter 1 n. 1, Mar. 19, 2008. Information from the hard drive seized there allowed law enforcement to track the money trail, but only as far as Belize. Trial Tr. 265. Law enforcement used forensic software to make exact copies of the confiscated hard drives and preserve the data. Id. at 259. Because technicians noticed and avoided an encryption trap on the March copy, that data was intact. Id. at 261. On the April copy, however, much of the data — but not the “access log” — had been partially encrypted. Id. at 262. An access log records visitors to a website; Hardcore’s log on the April copy had captured 900,000 Internet Protocol (“IP”) addresses, some duplicative, for a ten-day period in March 2005. Id. at 263, 273. By using a computer program, the agents were able to organize the data by IP address, date, and time, revealing that the 900,000 IP addresses represented some 1,900 unique “customers.” Id. at 264. Relatively simple technology — a “who is” search — revealed which Internet Service Providers (“ISPs”) owned and leased these IP addresses. To obtain the identities of Hardcore’s customers, the ISPs were administratively subpoenaed by the FBI for the subscriber information of the users of the logged IP addresses. Id. at 264. (Two rounds of administrative subpoenas were required because the first set returned incorrect information; it turned out that the access log had a built in forty-two minute delay, so a second round of subpoenas was necessary. Id. at 273-74.) Nine hundred of the website’s customers were located in the United States. Id. at 553-54, 560. One of the IP addresses listed on Hardcore’s access log, 24.90.31.98, was eventually traced to Polizzi. Id. at 270. The access log for that IP address was eight pages long; some entries showed repeated access on March 28, 2005 at 2:21 p.m., using the “GET” command. Id. at 273. The “GET” command tells a computer to take a certain action. In this case, the computer using Polizzi’s IP address was “getting” (downloading) a number of images in Hardcore’s “archives girls” area. Id. The “who is” search revealed that Time Warner Cable owned IP address 24.90.31.98. Id. at 273-75. In response to the administrative subpoenas, Time Warner identified Peter Polizzi of Queens as the user of that IP address on that date and time. Id. at 276. The agents then obtained a federal judicial search warrant for his home. Id. at 279; Govt/s Letter 1-2, Mar. 19, 2008. A total of 168 judicial search warrant packets were ultimately issued based on the Hardcore investigation, leading to about seventy indictments, including Polizzi’s. Trial Tr. 561. 2. Arrest On November 16, 2005, FBI and local law enforcement agents arrived at defendant’s home to execute a federal court ordered search warrant seeking computer equipment and evidence related to the possession of child pornography. Id. at 150, 208, 279. Arriving at 6:00 p.m. at the single-family residence, the agents had to wait almost two hours for Polizzi and his wife to arrive home from work at the restaurant. Trial Tr. 280. While pulling into their driveway, the couple was approached by the agents who identified themselves and explained that they were there to search the house for child pornography pursuant to a warrant. Id. at 283. Polizzi said nothing, but nodded, opened the driveway gate for the agents, and drove inside. The officers found nothing unexpected during their initial “safety search.” Poliz-zi’s wife became “hysterical” as the officers questioned the couple and their youngest son, then sixteen, in the kitchen, id. at 286, 296, 592-98, 742; she wondered whether whatever happened might have been caused by a friend of one of her sons. Id. at 286. Polizzi fully cooperated with the agents, id. at 174, informing them that there was a family computer in the basement; it was seized. Id. at 285. This computer had no forbidden images on it. Id. at 518. After fifteen to twenty minutes of trying to calm his “extraordinarily upset” wife, Polizzi told the agents there were additional computers in the detached garage. Id. at 276, 746; see id. at 1049. But see id. at 294. Two agents escorted him there, id. at 291-96; the two others remained behind with Polizzi’s family to “make sure [his wife] was okay.” Id. at 296. On the staircase leading up to the rooms on the second floor of the garage, Polizzi informed the officers that “[t]his is where are [sic] I look at the children.” Id. at 687. It was, he said, himself and not his sons who had downloaded the images. Id. at 313. Polizzi then asked them what could be done to stop the child abuse depicted: “ ‘What are we going to do about this?’ ” Id. at 1367, 1379. Inside the two upstairs rooms — one with two doorlocks and the other with three, to which he alone had keys — he showed the agents the computers they sought. Id. at 145-47, 300, 686. Polizzi was then questioned by the agents. Upon being read Miranda warnings, id. at 306, he signed two forms stating that he was waiving his rights and was willing to talk without an attorney present. Id. at 309, 312. Polizzi then gave the following statement, which the agents wrote down and he signed at 8:40 p.m. Id. at 156, 305-19. I, Peter Polizzi, Senior, being duly sworn and deposed says I am 52 years old, having been born on ... [19]53. I live with my family at ..., Glendale, New York, with my family. I am here giving this statement to Detective Forrestal and Special Agent Danielle Massineo having been made no threats or promises to do so. Some time in February or March, 2005, I received an email in my AOL email account, ppoli.. .@aol.com inviting me to join a website called “Hard Lovers.” It was $79 or $89 to join and I had to use my credit card to join. I used my Master Card from Citibank; it’s in my name. The number is.... After I joined, I would visit ever [sic] couple of days. After I joined, I knew it was a child pornography website. I downloaded pictures and videos from this website. I keep the pictures on my external hard drive that’s a Maxtor 300 gig that I bought new about six months ago. I have another external hard drive that I used and transferred everything over from an external drive that I also bought new. The computer I used to go to, the ... hard lovers website I had custom made at a computer store on Cypress and Weirfield. I had bought it new about two years ago. It was the black tower where I pointed to the Detective Forres-tal at my desk. I’m not sure how may [sic] child pornography pictures I have but I have a lot. I know I’m a member of the site now and I downloaded this morning. I know I have of a lot. I know I’m a member of the site now and I have Red [sic] something, I don’t remember exactly, it’s in my favorites. I used the same credit card number, the Citi Master Card to join. I don’t send them out, it’s only private. The different passwords of the websites are in my AOL email that I have so I know what they are. I do have anti-virus software, it’s in my computer, and I’m the only person that uses my computer. I keep it in a locked room upstairs that I only have access to. I have read the above two page handwritten statement and I swear that it is all true. Id. at 317-18. Over 5,000 digital images and some motion videos of child pornography (in addition to adult pornography) were found stored on the garage computers and three external hard drives. They had been downloaded over a period of at least four years, id. at 145-46, 349-50; the agents found a list of child pornography search terms dated June 9, 2001. 3. Indictment Polizzi was later arrested and charged with twelve counts of receipt and twelve counts of possession of sixteen different photos and videos he had downloaded from the Hardcore website. See Arrest Warrant, Jan. 12, 2006, Docket Entry No. 4. The receipt counts charged him with receiving two illicit images on February 20, 2005, two on March 5, 2005, four on March 16, 2005, and four on March 20, 2005. The possession counts charged him with possessing on November 16, 2005, the day his home was searched, twelve prohibited images or videos. He was charged for both receipt and possession of several of the images: Counts One and Twenty were based on the same depiction, as were Counts Three and Eighteen, Four and Nineteen, Seven and Twenty-Three, Eight and Twenty-Four, Eleven and Twenty-One, and Twelve and Twenty-Two. See Superseding Indictment, Docket Entry No. 35. Upon motion by the government, Count Thirteen was later dismissed. See Govt.’s Letter to Dismiss Count Thirteen, Docket Entry No. 62. Jh Motion to Dismiss Indictment Defense counsel filed a Motion to Dismiss the Indictment, arguing that child pornography statutes were required to have an element of scienter — whether present in the language of the statute or implied by the courts, see, e.g., United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994)— to prevent the prosecution of the morally innocent. See Def.’s Mot. to Dismiss Indictment 1, Apr. 5, 2007 (“[T]he instant prosecution violates the United States Constitution because it seeks to prosecute defendant without the necessity of a culpable mental state or scienter requirement”); see also• Def.’s Letter Br. 2, Mar. 14, 2008, Docket Entry No. 135 (“[T]he possibility that a defendant who had not actively sought prohibited visual depictions might still be convicted of knowingly receiving child pornography under ,§ 2252(a)(2) ... presents a potential pitfall to the statute’s constitutionality.”). .Because Polizzi’s history of child abuse and- psychiatric conditions had caused him to passively hoard images without any “evil intent,” the defense argued, his lack of moral culpability rendered the statute unconstitutional. Id. at 8-10. The government opposed, citing X-Citement Video, 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372, for the proposition that under “settled caselaw ... the term ‘knowingly’ as used in 18 U.S.C. § 2252 does impose a scienter requirement mandating that a defendant have knowledge that the material at issue contains sexually explicit matter and that underage performers are depicted.” See Govt.’s Reply, Apr. 19, 2007, Docket Entry No. 48. The motion was orally denied. Hr’g Tr. 8, Apr. 27, 2007. 5. Jury Charge a. Affirmative Defense of Insanity At trial the only contested issue was Polizzi’s affirmative defense of legal insanity. See 18 U.S.C. § 17. Polizzi admitted collecting child pornography and described at length how and why he began to do so. He contended that his obsessive-compulsive disorder and hoarding behavior, combined with the trauma he re-experienced upon seeing the images of abused children, caused him to reflexively collect child pornography in a misguided attempt to “help the children.” See Part II.B.6.b, infra. The definition of “legal insanity” thus assumed importance, and, in particular, it raised the question of defendant’s ability to appreciate the wrongfulness of his acts. The parties’ proposed jury instructions on the issue were sharply contrasting. The court issued its own charge, to which there were no objections. See United States v. Polizzi 545 F.Supp.2d 270 (E.D.N.Y.2008). b. Mandatory Minimum Sentence Before, during, and after trial, defense counsel repeatedly sought to have the jury informed of the five-year mandatory minimum sentence applicable to the receiving counts and objected to the lack of such an instruction. See, e.g., Def.’s Letter, Sept. 7, 2007, Docket Entry No. 71 (“I do wish that the Court informs the jury of the statutory minimum and maximum sentences. I would leave it to the Court’s discretion as to the most appropriate time to inform the jury.”). The government opposed, arguing that a 2004 decision by the Court of Appeals for the Second Circuit, United States v. Pabon-Cruz, 391 F.3d 86 (2d Cir.2004), constituted binding authority preventing such an instruction. See Govt.’s Letter Br., Sept. 6, 2007, Docket Entry No. 70. Given the proximity to trial and the parties’ need to prepare sufficiently in advance, the court issued its decision from the bench denying Polizzi’s motion. In light of Pabon-Cruz, 391 F.3d 86, the court ruled that it and the parties were prohibited from informing the jury of the sentence during the voir dire or trial. Hr’g Tr. 3, 19, Sept. 10, 2007. Had the court indicated that it would have informed the jury, the Court of Appeals for the Second Circuit almost certainly would have summarily granted a writ of mandamus filed by the government based upon Pa-bon-Cruz. See Part IV.E.l, infra. Because application for a writ would have delayed the ease, the court declined to inform the jury of the applicable mandatory minimum and denied defendant’s motion. See Hr’g Tr., Sept. 10, 2007. Counsel for the defendant then requested an alternative instruction informing the jurors simply that a guilty verdict would necessarily result in imprisonment. It was also denied. Id. at 20 (“I would suggest, your Honor, that even instructing the jurors that there is a potential for prison or that there’s a likelihood of imprisonment ....”); see also id. at 19 (“I would just say that ... I’ve read the [Pabom-Cruz ] case and I understand the Court’s feelings about it, is that I think it’s very important for the Court to — for the jurors to understand the seriousness of the charges”). Granted instead was the government’s in limine motion precluding any discussion by counsel of the mandatory minimum or maximum terms of imprisonment and the consequences of a verdict of legal insanity. Id. at 3. At the close of the government’s case, defendant’s Rule 29 motion to set aside the verdict was denied. Trial Tr. 717; see Fed.R.Civ.P. 29. Rejected as well was defendant’s motion at the close of the evidence to dismiss based on an insufficient prima facie case. Trial Tr. 1329. The jury was not informed before rendering its verdict of the sentence a conviction on the receiving counts entailed. It was specifically instructed that it should not consider sentencing when deciding on a verdict. See Jury Charge 21 (“The question of possible punishment of the defendant is of no concern to you and should not enter into or influence your deliberations. The duty of imposing sentence rests with the court.”). After trial, defendant renewed his objection to the court’s decision not to grant the “defense request to present the jurors with information regarding the statutory minimum sentence in light of the Second Circuit opinion in United States v. Pabon-Cruz, 391 F.3d 86 (2d Cir.2004).” Def.’s Letter Br., Oct. 10, 2007, Docket Entry No. 87. In his Rule 33 motion for a new trial, see Fed.R.Crim.P. 33, Polizzi again protested the court’s failure to so inform the jury: Since the advent of mandatory minimums, it can no longer be assumed that jurors are aware of the consequences of a guilty verdict.... The mandatory minimum can be communicated quickly and clearly in a brief sentence and it makes sense to protect the defendant from an undeserved draconian term.... To properly perform their role, jurors should be thus informed, when applicable, that a minimum sentence is mandated upon their finding of guilt. Def.’s Mot. to Vacate J. 25-26, Docket Entry No. 123. 6. Trial At trial, defendant’s knowing receipt and possession of the pornographic images and the fact that the images depicted minors engaging in sexually explicit conduct were not disputed. The still photos and moving video were shown to the jury in brief flashes on a courtroom screen to avoid unnecessary prejudice. To satisfy the federal Insanity Defense Reform Act (“IDRA”), Polizzi had to prove by clear and convincing evidence that he was legally insane when the offenses occurred: that he 1) had a severe mental disease or defect at the time he received and retained the images; and 2) as a result he had been “unable to appreciate the nature and quality or the wrongfulness of his acts.” 18 U.S.C. § 17. Focusing on Polizzi’s childhood sexual abuse through his testimony, the defense emphasized the abuse’s lasting psychological effects as manifested in his post-traumatic stress and obsessive-compulsive disorders. Defendant contended that when he first accidentally came across the child pornography, he had re-experienced his own abuse and obsessively began to collect as many photos as he could — to help the children. Trial Tr. 1069-70 (“I have been collecting, the material that I’ve been collecting, every time I was on the internet, collect anything I find that was not appropriate to see it [sic], in my opinion should not be there, I save all of them, all the materials I come across.”). According to defense counsel, Mr. Polizzi was doing what he believed to be right. He could not appreciate that downloading pictures of the children was wrong. What is wrong, what Mr. Polizzi knows is wrong ... is child abuse.... Mr. Polizzi, in a wrong way maybe, but in his way because of his psychological trauma, is trying to figure out a way to stop child abuse. Id. at 1368; see id. at 782. Two defense experts, Dr. Eric Goldsmith and Dr. Lisa Cohen, testified as to Polizzi’s mental condition. Dr. Naftali Garcia Berrill provided expert evidence in rebuttal for the government. Their opinion on whether Polizzi was “legally insane” was not permitted. See id. at 1215-16; Fed.R.Evid. 704(b) (“No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.”). The experts, however, were permitted to opine on whether Polizzi “did or did not have the defect or disease relied upon as a defense.” Jury Charge 19. a. Polizzi’s Testimony Polizzi credibly testified without contradiction and in detail to the severe sexual abuse he had suffered in Sicily as a child. His distress in reliving the events was evident. A recess was required several times when he broke down while he was on the stand. Trial Tr. 1047; see id. at 959, 998. When the first charged photo was shown to the jury, Polizzi suffered an acute anxiety attack and was taken by ambulance to a hospital. Id. at 397-99. The trial continued the following day. To avoid another breakdown, Polizzi removed himself from the courtroom while the sixteen images of child pornography were shown to the jury. Id. at 405. Polizzi testified that he had originally learned of Internet child pornography accidentally, in 2001 or before, through a “pop-up” while visiting an adult pornography website. Id. at 1046. “ ‘Pop-up’ windows are windows containing notifications or advertisements that appear on the screen, usually without any triggering action by the computer user.” 1-800 Contacts, Inc. v. WhenU.com, 309 F.Supp.2d 467, 476 n. 18 (S.D.N.Y.2003). In his written statement to the police, he said he had later discovered the Hardcore website after receiving an email in his AOL account. The images, he testified, shocked and horrified him. See Trial Tr. 1178, 1230. Seeing such graphic depictions reminded Polizzi of being raped and molested in Sicily. Id. at 1046 (“Oh, boy. I see my childhood, the event of the abuse happened over and over.”). Strangely, he believed he might be able to find a photograph of himself: “Oh, my God. When I used to see this material I used to see myself in there, I look for my picture and my uncles [sic].” Id. at 1048. He said he knew that child pornography was wrong, but he believed the online images were legal. Had they been illegal, he reasoned, such “garbage” would not be available on the Internet. Id. at 1105. Hence he had used his real name, email address, street address, and credit card number to pay the membership fee to join Hardcore. Id. at 152, 276, 317, 368. Despite the fact that many websites themselves cautioned that their material “was not legal in many countries,” id. at 155, 253, he contended that he had not understood that his acts — the downloading of the pictures — were wrong. Id. at 1090. He said one reason for his downloading was to stop other children from being abused as he himself had been abused. Hence his first statement to the FBI agents was, ‘“[w]hat are we going to do about this?’ ” Id. at 1367, 1379. What he meant by that question, he later explained, was that [Wjhoever put this kind of material in there should be brought to justice because this is not right, because no one close to me should not have cause [sic] to others, because my life all the fear, all the nightmares, and everything else involved comes from this, and if it’s nothing be done [sic] about this, a lot of innocent children will be raped because of this. Id. at 1050. Notwithstanding his desire to stop the depicted abuses, Polizzi never voluntarily informed law enforcement or anyone else of his collection. See id. at 858, 1138, 1180, 1309. Polizzi asserted that he did not trust the police on such matters after his experiences with the Italian carabinieri. Id. at 1048. He could not go to the police because of “[m]any reason [sic]. The reason that I was abused in [sic] this carabini-eri, which in this country mean the uniform of the police. Second, oh, boy, I been — I was at gun point by police.... ” Id. Polizzi also knew that if he “share[d] that information I would tell my even [sic] sickness, which I kept for 45 years and I could not.” Id. at 1047. In order to explain why he had collected the photos, he would have to reveal his childhood sexual abuse, something he felt was impossible. 45 years it’s inside of me, this has been like something unexchangeable [sic], only people that went through this, what this come from or what this causes and where you go from this. This is something that you keep inside because you cannot share with anybody because it’s very, very, very awful thing to share with anybody and I don’t wish my worse [sic] enemy what happened to me, why because is [sic] this is wrong. Id. at 1062. When the FBI showed up in his driveway, Polizzi said he was relieved. [I]nside I had the feeling of joyness. Why? Because finally the stuff that I have turn it over or say to the police ... they will find it there. To me it was a kind of relief. I also said because now that they find out I have to tell my secret, which was very hard because now finally my wife know [sic] I had secret. Id. at 1048-49. Even after his arrest Pol-izzi did not immediately disclose his childhood sexual abuse to the police or anyone else. Not until six months into his post-arrest counseling ordered by Pretrial Services did he speak with a therapist about his childhood experiences, after learning of a woman who had spoken to her family about similar abuses with positive results. Id. at 1054. When that happen, you know, make me felt [sic] that I was not alone in this, someone else be in the situation that I was, and regarding the information that we share there, by sharing this kind of information it was a kind of relief for her and I thought releasing this kind of information will be the same for me. Id. b. Dr. Lisa Cohen Dr. Lisa Cohen, a clinical psychologist at Beth Israel Hospital conducting research with individuals accused of child sex crimes, was the first expert to testify. Id. at 766-902. She had administered a battery of neuropsychological tests to Pol-izzi and interviewed him twice; she also interviewed one of his sons. Id. at 771, 875. Test results showed that Polizzi had significant “impairment of executive function,” the “collection of cognitive abilities that have to do with being able to use judgment to think in complex ways, to think in flexible ways, to monitor one’s own behavior, impulse control.” Id. at 774. In the four cognitive functioning tests, his scores were quite low — between 0.1 and 10.8 percentile — which Dr. Cohen attributed to possible brain injuries from Polizzi’s car accidents; they also “showed memory problems.” Id. at 773-77, 870. His overal