Full opinion text
MEMORANDUM AND ORDER GRANTING NEW TRIAL CPOLOUIZZI V) JACK B. WEINSTEIN, Senior District Judge: Table of Contents I. Introduction...............................................................137 II. Facts and Procedural History ...............................................138 A. Defendant and the Crime...............................................138 1. Childhood Sexual Abuse in Sicily....................... 138 2. Resulting Psychological Trauma.....................................140 B. Arrest and Indictment .................................................140 1. Execution of Warrant ..............................................140 2. Twenty-Three Count Indictment.....................................142 C. Trial Proceedings......................................................142 1. Images...........................................................142 2. Testimony ........................................................143 a) Polizzi’s Testimony..............................................143 b) Dr. Lisa Cohen.................................................145 c) Dr. Eric Goldsmith..............................................146 d) Dr. Naftali Garcia Berrill........................................148 3. Jury Charge ......................................................150 a) Written Charge Sheet...........................................150 b) Insanity Defense................................................152 c) Mandatory Minimum Sentence ...................................152 D. Jury Verdict and Colloquy..............................................152 1. Jury Verdict ......................................................152 2. Jurors Opposed To Incarceration ....................................152 E. Post-Trial Proceedings.................................................155 1. First Grant of New Trial Based on Trial Court’s Perception of Error.....155 2. Sentencing on Counts Fourteen through Twenty-Four..................155 F. Appeal...............................................................155 G. Proceedings on Remand................................................156 III. Second Grant of New Trial..................................................157 A. Standard.............................................................157 . B. Preliminary Issue .....................................................158 C. Overindictment........................................................159 1. No Prejudice From Evidence Admitted...............................159 2. Prejudice From Overbreadth of Charges Tried ........................160 D. Timeliness............................................................164 1. “Seven-Day” Rule .................................................164 2. Excusable Neglect.................................................165 3. Supplemental Order................................................167 IV. Informing New Jury of Mandatory Minimum Sentence .........................167 A. The Sixth Amendment — History and Context.............................167 1. American Practice Circa 1791 .......................................172 2. British Practice Circa 1791..........................................176 a) Ryder Papers..................................................176 b) Old Bailey Session Papers .......................................180 B. Caselaw..............................................................183 1. Jury’s Historic Sentencing Role......................................184 2. Keeping Jury in the Dark Incompatible with Historic Jury Role..........186 3. Jury’s Power to Moderate Harsh Effects of Law.......................188 C. Attempts to Restrict Sixth Amendment Jury Discretion....................190 1. Eighteenth and Nineteenth Century..................................190 2. Contemporary.....................................................195 D. Second Circuit Court of Appeals: Jury Knowledge.........................197 1. Thomas and Pabon^-Cruz Premises...................................197 a) Thomas .......................................................197 b) Pabon-Cruz....................................................199 c) Post-Booker, Pabon-Cruz, Thomas and Shannon Require Reinterpretation..............................................201 d) Pabon-Cruz Applied to Polizzi....................................202 2. Gilliam’s Language Represents Current General Role of Informed Jury as Representative of Community Mores........................202 3. In Instant Case, Informing the Jury of the Applicable Penalty Was Necessary Because of the Defendant’s Unusual Background and the Unknown Punishment.........................................204 E. Variability of Results Depending Upon Informed & Non-Informed Jurors .............................................................204 F. Summary: Informing Jury in Present Case...............................207 G. Special Circumstances..................................................208 V. Conclusion................................................................209 I. Introduction The defendant — a successful, middle-aged business and family man with no criminal record — was tried and convicted of twelve counts of receiving and eleven counts of possessing child pornography in the privacy of his locked garage. See 18 U.S.C. §§ 2252(a)(2) (receipt); 2252(a)(4)(B) (possession). See also United States v. Polizzi (Polouizzi I), 549 F.Supp.2d 308, 319 (E.D.N.Y.2008). The only defense proffered was insanity, predicated largely on repeated rapes by a relative, a friend of the family, the police, and other sexual abuse Polizzi suffered as a preteen boy in rural Sicily. See 18 U.S.C. § 17. The jury found him guilty on all counts. A new trial was granted by the trial court on the receipt counts, on the ground that the judge had erred in failing to recognize, and to exercise, his discretion to inform the jury of the mandatory five-year minimum sentence required by the receipt counts, see 18 U.S.C. § 2252(b)(1), depriving the defendant of his Sixth Amendment right, when some jurors believed that medical treatment rather than long incarceration was required, and that it would be permitted on a finding of guilt. See Polouizzi I, 549 F.Supp.2d at 443-50. The Court of Appeals for the Second Circuit reversed. United States v. Polouizzi (Polouizzi II), 564 F.3d 142 (2d Cir. 2009). It sharply reduced the number of crimes that could be charged in the indictment, from twenty-three to five, and remanded the case for further action by the trial court in accordance with the appellate opinion. Id. at 153-59. Defendant moved for a new trial. The government opposed. To expedite an appeal, this court promptly issued two preliminary memoranda, indicating that this more extensive memorandum, Polouzzi V, would follow. See United States v. Polizzi (Polouizzi III), 257 F.R.D. 33 (E.D.N.Y.2009) (Mem. on Post-Appellate Proceedings); United States v. Polizzi (Polouizzi IV), 262 F.R.D. 160 (E.D.N.Y.2009) (Abbreviated Mem. & Order Granting New Trial). In view of the decision of the Court of Appeals for the Second Circuit in Polouizzi II, sharply reducing the scope of the indictment, the trial court in Polouizzi III declared that a new trial would be required. 257 F.R.D. at 36-38. In Polouizzi TV, the trial court noted that it would exercise its discretion on retrial to inform the jury of the five-year mandatory minimum sentence of incarceration required by a conviction for receipt of child pornography through the Internet. Polouizzi IV, 262 F.R.D. at 161-62. The reduction in charges by Polouizzi II has substantially changed the dynamics of a jury’s approach to the defendant’s insanity defense. “[L]etting the guilty verdict stand would be a manifest injustice.” United States v. Ferguson, 246 F.3d 129, 134 (2d Cir.2001). II. Facts and Procedural History A. Defendant and the Crime The defendant’s background is detailed in the district court’s prior order. See Polouizzi I, 549 F.Supp.2d at 320, 323-26. For the convenience of the reader, much of the material in Polouizzi I, II, III, and IV is incorporated in the present comprehensive document, Polouizzi V. The defendant, Peter Polizzi, is fifty-six years old. He was brought to this country when he was a young teenager after suffering serious sexual abuse as a child in rural Sicily. Without funds, and with only a few years of schooling, he worked assiduously at a pizzeria in Queens, ultimately buying it and turning it into what he and his family now operate as a valuable and well-known restaurant. Trial Tr. 169. He taught himself to play the guitar, became leader of a band, met and married his present wife, with whom he had five successful and lawfully engaged sons, who are close to him. Id. at 165, 169, 1018, 1366. He bought and lives in a fine home. A religious man, he attends church regularly and is much respected in his religious and secular communities. Id. at 907. He had never before been charged with a crime. So far as is known, he has never molested a person, sexually or otherwise. The defendant had a double-locked room in the attic of his detached garage. There he collected and viewed child pornography through the Internet. Eventually he possessed over 5,000 pictures, the majority of which were of young girls. Id. at 355, 859. Polizzi never sent 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 conviction for receipt and possession of child pornography, no allegations of improper conduct have ever been made. See id. at 165. Polizzi claimed he came across child pornography accidentally through a “pop-up” advertisement 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]?”). He testified that his goal was to turn his collection over to law enforcement. Id. at 1047, 1070; see id. at 782. The images, he said, reminded him of his 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.C.2.a, infra. With what he testified was fear of law enforcement based upon the sexual abuse he suffered at the hands of Italian police officers, and hesitant to reveal his own sexual abuse of which his family knew nothing, he never notified any authorities. Trial Tr. 1047, 1048, 1071 (“Always, when I see the police I get anxiety attack, even now.”). 1. Childhood Sexual Abuse in Sicily Before arriving in the United States from Sicily with his family, Polizzi lived in rural Sicily, where he suffered serious sexual abuse. As a preteenager, he was repeatedly molested and raped by his uncle, sodomized at knife-point by a family friend, and raped by Italian police officers — one of whom sodomized him with a gun. In Sicily, Polizzi and his family lived in a small rural village, working as sharecroppers. Trial Tr. 941. 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 carabinieri 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, his parents, and his six younger brothers and sisters shared their hovel with a mule. Id. at 942. Polizzi was often forced to share a bed with his teenage uncle, who sexually molested him beginning when he was four years old. Id. at 952. At age seven, Polizzi was beaten and raped by this uncle, who threatened to kill him if he ever told anyone. Id. at 959-62. Despite the warning, he did tell his mother, only to be struck 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, 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. Additional incidents of sexual abuse took place when he was nine. Walking home from school, Polizzi was seized 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, instead obtaining work in a bakery. Id. at 980. Polizzi had two friends in the village, boys his age who had also been raped by the police. 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. In testimony made more credible by the sociologist’s testimony about carabinieri practice in rural Sicily at the time, the defendant swore that 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 he left Sicily, 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; prior to trial, he never sought any mental health treatment. Id. at 791,1209. Lacking self-awareness, he considered his behavior normal. See Trial Tr. 873. It was only during supervised release associated with the sentence for his possession counts that he obtained treatment, to which he responded successfully. See Part II.E.2, infra. Concussive head injuries were suffered by the defendant from several car accidents in the early 1990s. 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, 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.C.2.b-d, infra. Upon a retrial, the physical and psychological history of the defendant will be examined in greater depth. B. Arrest and Indictment Polizzi’s arrest followed an extensive investigation of Hardcore, a “private child porn club,” advertised in a spam email message that ultimately was forwarded to the Suffolk County Police Department by a Long Island householder. Trial Tr. 182, 199. Computers and information seized from companies hosting Hardcore’s website included an “access log” of visitors. The log recorded 900,000 internationally traded Internet Protocol addresses during a ten-day period in March 2005, representing some 1,900 unique “customers.” Trial Tr. 261, 263, 273. One of the addresses included in the log was traced to Polizzi. Id. at 270. Entries showed repeated access by defendant on March 28, 2005, indicating downloading of a number of images from Hardcore’s “archive girls” area. Id. at 273. 1. Execution of Warrant 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 waited almost two hours for Polizzi and his wife to arrive home from work in their 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. Polizzi’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 suggested that 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. He informed 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 door locks 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 forms waiving his rights and stated he was willing to talk without an attorney present. Id. at 309, 312. Polizzi then signed the following statement 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.eom 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 MasterCard 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 Forrestal 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 MasterCard 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 still 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. The images and videos 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. Also in his garage were huge collections of music, baseball cards, comic books, stamps, and other materials. Id. at 765, 860, 862, 888. See Part II.C.2.b, infra. 2. Twenty-Three Count Indictment Polizzi was arrested and charged with twelve counts of receipt and twelve counts of possession of seventeen different photos and videos he had downloaded from the Hardcore website. See 18 U.S.C §§ 2252(a)(2) (receipt) and 2252(a)(4)(B) (possession). See Arrest Warrant, Jan. 12, 2006, Docket Entry (“D.E.”) No. 4. The receipt counts (Counts One through Twelve) 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 (Counts Thirteen through Twenty Four) charged him with possessing, on November 16, 2005, the day his home was searched, twelve prohibited images or videos, stored on three different external hard drives. He was charged with 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, D.E. No. 35. One of the possession counts (Count Thirteen) was dismissed on the government’s motion before trial. Govt’s Letter to Dismiss Count Thirteen, Aug. 27, 2007, D.E. No. 62. Defendant’s motion to dismiss the indictment on constitutional grounds was denied. Polouizzi I, 549 F.Supp.2d at 329-30. C. Trial Proceedings At trial, defendant’s knowing receipt and possession of pornographic images and the fact that they depicted minors engaging in sexually explicit conduct were not disputed. Polizzi admitted collecting child pornography and described at length how and why he began to do so. See Polouizzi I, 549 F.Supp.2d at 330. The only contested issue at trial was his defense of insanity. See 18 U.S.C. § 17. Polizzi contended that obsessive-compulsive and hording behavior, combined with the trauma he re-experienced upon seeing images of abused children, caused him reflexively to collect child pornography in an attempt to “help the children.” See Part II.C.2.b, infra. The jury’s deliberations on this issue were critical, with some jurors expressing the view, after the verdict, that Polizzi needed mental treatment, not imprisonment. See Part II.D.2, infra. 1. Images During jury selection, potential jurors were informed that the case would involve “offensive” and “distasteful” depictions of “individuals engaged in sexually explicit conduct.” See Juror Questionnaire 11. At trial, a few illicit images from Polizzi’s computer were introduced through the testimony of an officer with the Suffolk County Police Department who had viewed the images on Polizzi’s computer in connection with the underlying investigation. See Polouizzi I, 549 F.Supp.2d at 326-29 (describing underlying investigation). To prevent unnecessary prejudice, the images were shown to the jury in brief flashes. Short segments of the videos were played, followed by testimony that each segment was representative of the video from which it was excerpted. See id. at 331 (discussing presentation of images to jury); Polouizzi II, 564 F.3d at 148-50 (same). 2. Testimony Testimony was elicited from a number of witnesses regarding Polizzi’s insanity. 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, in that: 1) he 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, the defense emphasized lasting psychological effects as manifested in defendant’s post-traumatic stress and obsessive-compulsive disorders. Defendant contended that when he first accidentally came across 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 about Polizzi’s mental condition. Dr. Naftali Garcia Berrill provided expert evidence in rebuttal for the government. The experts were permitted to opine on whether Polizzi “did or did not have the defect or disease relied upon as a defense.” Jury Charge 19. Their opinions on whether Polizzi was “legally insane,” were not permitted, since that was a question for the jury. 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.”). a) Polizzi’s Testimony Polizzi testified 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 voluntarily removed himself from the courtroom while the sixteen images of child pornography were shown to the jury. Id. at 405. The defendant 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.”). Curiously, he said he thought 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 whoever 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. He 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 carabinieri, which in this country mean the uniform of the police. Second, oh, boy, I been — I was at gun point by police....” Id. Polizzi recognized 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 Polizzi did not immediately disclose his childhood experience to the police or anyone else. Not until six months into post-arrest counseling ordered by Pretrial Services did he speak with a therapist about the matter, 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 Polizzi 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 the 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 overall IQ score was considered “borderline range of average intelligence.” Id. at 1280-83. Dr. Cohen also evaluated Polizzi using the Yale-Brown Obsessive Compulsive Scale (“YBOCS”), “the standard measure of obsessive compulsive disorder.” Id. at 778. Dr. Cohen’s final diagnoses were “significant cognitive impairment,” id. at 783, and “obsessive compulsive disorder characterized by severe hoarding” with “limited insight” as defined in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (“DSMIV”). Id. at 882, 885. She did not evaluate Polizzi for post-traumatic stress disorder. Id. at 782, 882. The “severe hoarding” Dr. Cohen identified referred to Polizzi’s extensive and varied collections besides child pornography. In his rooms over the garage, Polizzi had collected and organized tens of thousands of baseball, soccer, hockey, frisbee, and football cards, movies, musical recordings, comic books, stamps, and coins; he had never sold any. Id. at 765, 860, 862; see id. at 900. Polizzi estimated he had 4,500 videos, 10,000 comic books, 10,000 baseball cards, 4,000 CDs, 4,500 coins, 3,000 stamps, 150 boxing cards, and 500 soccer cards. Id. at 888. According to Dr. Cohen, Polizzi, like other hoarders, did not see his collecting as a problem. See id. at 889. He rationalized that his collections were “a good investment for his children,” id. at 861, and talked with his sons of “one day” opening a comic book store, id. at 749, 863, or a video store. Id. at 890. It was obvious, the expert declared, that such talk was only a dream; “people who hoard always think that they have a future use for the items that they’re hoarding.” Id. at 889. Unlike most people with obsessive compulsive disorder (“OCD”) who understand that their actions are not normal, Dr. Cohen found that “Polizzi had no insight into his obsessive compulsive disorder. He seemed to feel that it was all appropriate and reasonable behavior....” Id. at 873. [N]o matter how many times I tried to explain the concept of obsessions and compulsions it was difficult for him to grasp. And the point of an obsession is that it should not make sense, it should be excessive and inappropriate. So he had a hard time differentiating from what was an appropriate concern and what was an excessive, inappropriate concern. Id. at 856. In the face of the government’s repeated insistence that Polizzi’s low cognitive test results were due to his “malingering,” Dr. Cohen declared that she did not find that Polizzi was exaggerating his symptoms. See id. at 789 (defining malingering as “the intentional and conscious flaring of mental symptoms in order to gain what they call secondary gains or primary gains to gain something else.”). Although she did not administer any specific validity tests, id. at 897, 1260, her testing included internal validity components. Id. at 830. Based on her interviews with Polizzi and one son, Dr. Cohen concluded that “if anything, he seemed to be minimizing his problems and that was not in his interest. It would be in his interest to maximize his problems. So, in my mind, he was not trying to manipulate me to present him as sicker than he was.” Id. at 905; see id. at 898. c) Dr. Eric Goldsmith Dr. Eric Goldsmith, Polizzi’s expert forensic psychiatrist, testified that he had diagnosed Polizzi with post-traumatic stress disorder (“PTSD”) resulting from the sexual abuse defendant had suffered as a child. Id. at 1130 ff. Of the three experts, Dr. Goldsmith had spent the most time evaluating Polizzi. He had interviewed separately four of defendant’s sons as well as his wife. Id. at 1131; see id. at 1176. Dr. Goldsmith had also prescribed medication for Polizzi’s acute anxiety and PTSD symptoms. Id. at 1174. Medication was necessary, defendant testified, [S]ince I have this nightmares, a lot of nightmares actually, when you have those nightmares when you have, when you see ... photos so, you know, you smell certain smells, the events come back and I told this nightmare that I have and told me if I slept well, when the time comes, when I go to sleep, I go to sleep very exhausted, because the crime that is involved, you know, the fear, it makes you, it takes everything out of you, which left you with very sadness and no kind of strength. Id. at 1060. Dr. Goldsmith corroborated Dr. Cohen’s diagnosis of obsessive compulsive personality disorder as defined in the DSM-IV. Id. at 1134 ff., 1186. He also found that Polizzi “has no awareness it is a problem for him.” Id. at 1143. Polizzi was “very very difficult” to interview “because of his obsessive pathology[:] he ... gets stuck on a detail or particular issue and needs to retell the story over and over and over again....” Id. at 1136-37. It required “hours and hours” for Dr. Goldsmith to obtain a medical history. It is reflective of some significant obsession compulsive pathology. It explains his behavior of just downloading hundreds and hundreds of images. It explains his behavior of collecting thousands and thousands of baseball cards. It explains his routinized behavior, the styling of how he communicates and how it is just obsessive and obsessive and repetitive and repetitive. Id. at 1139; see also id. at 779 (Dr. Cohen noting the difficulty of interviewing Polizzi). The jury had the opportunity to witness defendant’s repetitive oral behavior firsthand on multiple occasions when Polizzi was on the stand. Dr. Goldsmith also found that, [h]e has memory problems. He has difficulty in providing really specific information about times and dates. There has been a real problem throughout the course of the interviews with him. He has misinterpretations of statements. Sometimes you would ask him a question, he really doesn’t understand what you are asking him and you have to re-ask it in a different way. Id. at 1184. During his first sessions with Dr. Goldsmith, Polizzi did not disclose what had happened to him in Sicily. This was not surprising to the doctor, given “the type of trauma that [Polizzi] experienced,” because of the issues of “humiliation and shame and fear [that] pervade the adult mind” in such a victim of “severe child sexual abuse.” Id. at 1136-37. When informed of the abuse, Dr. Goldsmith found Polizzi credible: And it is not only what he says, that he was abused, and how he says it, and how he gives it such rich detail, reflective of just a true autobiographical experience that’s so convincing, but what is really convincing about why this is not a malingered post-traumatic condition is all of the clinical factors there follow the trauma ■ and abuse that he could just not make up. It’s the re-experiencing phenomena, the description of the flashbacks. It is not just saying I have flashbacks, but describing what he goes through in showing it to me in the office, when I interview him about this, and how literally his mind and body kind of separate and he begins to just follow like he’s back in the experience that he shows all of this emotion that is just reflective of true experience. Id. at 1153. After Polizzi revealed his childhood sexual abuse, Dr. Goldsmith added a PTSD diagnosis, id. at 1157, which is considered a “major mental illness,” based on the DSM-IV definition. Id. at 1257. In Dr. Goldsmith’s opinion, Polizzi “when viewing-child pornography on the Internet had a retraumatizing experience. In a regressed and obsessive state he downloaded and searched child pornographic images for evidence of victimization, something he had experienced as a child.” Dr. Goldsmith’s Addendum: Psych. Rep. 1, Jan. 2, 2007. His ... level of sophistication, the way that his mind operates is again very concrete, extremely unsophisticated, old world ... when he first downloaded all of the information over the internet, he had this very unsophisticated idea, by taking it all down off the internet, it could be off the internet and nobody else could see it. Really just not sensible.... [T]he images overwhelms [sic] him emotionally and overwhelms any kind of rational thought that he had of what he was doing. Trial Tr. 1162-63. His PTSD, the expert believed, had caused Polizzi to develop OCD: “[T]he obsessive pathology that he experiences, that he has in adult life, is really a way to control everything in his environment so that it doesn’t hurt him.” Id. at 1160. No trace of sexual deviance in Polizzi was found by Dr. Goldsmith. His first report, written before he learned of Polizzi’s child abuse, did hypothesize that Polizzi had “possible low level deviant sexual arousal,” but concluded he “[did] not confer high risk for future dangerous[ness],” and did not meet the DSM-IV criteria for pedophilia. Id. at 1150. At trial, Dr. Goldsmith explained why he had initially noted “low level sexual deviancy”: because he had had no other explanation as to why Polizzi collected child pornography. Id. at 1151-52. [I]t seemed to me that the[re] credibly could be — could have been at that time some deviant interest, because individuals who are arrested for these crimes often have a large level of denial and don’t share and admit to their deviance .... At that time Mr. Polizzi was presenting consistent with that and it just didn’t make sense why he clicked on the images. Id. at 1185. Once he learned of an alternative reason' — Polizzi’s childhood trauma — Dr. Goldsmith concluded that Polizzi in fact had no deviant sexual arousal. In my previous report from June 9, 2006, I speculated that Mr. Polizzi’s past behavior of downloading and viewing child pornography was perhaps related to sexually deviant thinking. However, after further assessment it is my opinion, with a reasonable degree of psychiatric certainty, that Pietro Polizzi’s encounter with child pornography elicited a post-traumatic stress reaction. Pietro Polizzi credibly describes how the child pornography pictures triggered memories from the past. Consistent with his compulsive hoarding behavior he downloaded hundreds and hundreds of images. While viewing these images Pietro Polizzi describes it as if he was reliving his own childhood sexual abuse. He looked for signs of forced injuries on the victims and evidence for the perpetrators. In summary, his behavior of downloading and viewing child pornography is directly related to his history of childhood sexual abuse and obsessive compulsive behavior. The images triggered painful traumatic memories that had been repressed for many years. This behavior was not related to sexually deviant thinking or pedophilia____ Mr. Polizzi does not pose a risk of sexual predatory behavior against children. Dr. Goldsmith’s Addendum: Psych. Rep. 5, Jan. 2, 2007; Trial Tr. 1169 (“[It’s c]lear in my mind that he’s not a pedophile ... He has no paraphilia [sexual interest in children in general], he has no deviant sexual arousal or interests.”). Like Dr. Cohen, Dr. Goldsmith did not believe Polizzi was malingering. Even though the doctor was aware that PTSD was frequently faked, Trial Tr. 1195 (noting that PTSD is “the most important area where malingering needs to be considered”), he concluded that “[n]one of the examiners and none of the testing and none of the data from the clinical exam identified that [Polizzi] was malingering.” Id. at 1147. d) Dr. Naftali Garcia Berrill Dr. Naftali Garcia Berrill, a board-certified forensic psychologist, was the government’s expert. Id. at 1217-1329. Polizzi initially attended Dr. Berrill’s clinic for mandatory sex offender counseling as required by Pretrial Services. Id. at 1223. (Through a contract with the Department of Probation and Pretrial Services, Dr. Berrill’s private practice assesses many defendants accused of sex offenses. Id. at 1221.) Polizzi participated in group counseling while he awaited trial; Dr. Berrill did not treat him. Id. at 1240. Polizzi eventually requested that the court approve his transfer from the clinic to private counseling, citing the trauma he experienced during group therapy with-other child sex offenders. Approval was given. See Order, Jan. 1, 2007, D.E. No. 20. After Polizzi had filed a notice of intent to raise the insanity defense, Dr. Berrill evaluated Polizzi for an hour at the government’s request, and administered several standard tests. One of his associated counselors wrote a report. Trial Tr. 1225, 1277. During his first interview with Dr. Berrill, Polizzi had not disclosed his history of child abuse. Id. at 1229. Dr. Berrill later evaluated Polizzi again for an additional four hours during which Polizzi informed him of his past abuse; the doctor then wrote a second report himself, but never spoke with Polizzi’s wife or sons. Id. at 1315. Dr. Berrill initially diagnosed Polizzi as having an adjustment disorder with anxiety and possibly generalized anxiety disorder. Such conditions, in his opinion, “shouldn’t interfere with someone’s ability to think clearly.” Id. at 1233. After the second interview, id. at 1244, his diagnosis remained the same: Polizzi had “no severe mental disease or defect,” id. at 1243, 1246-48, only an “anxiety disorder.” See Dr. Berrill, Psycho-Legal Eval. 20, Aug. 3, 2007. On the witness stand, the doctor agreed that defendant had some obsessive-compulsive personality disorder “features,” but not OCD itself. Trial Tr. 1255. Having OCD, in any event, does not prevent a person, in Dr. Berrill’s opinion, “from being [able] to appreciate what they are doing or knowing .... [that it] is wrong.” Id. Dr. Berrill considered Polizzi’s history of child abuse irrelevant because “psychological testing ... did not reveal a post-traumatic stress disorder.” Id. at 1258, 1328. Had Polizzi suffered from PTSD, the doctor believed he would have avoided child pornography, not sought it out. The “criminal behavior” Dr. Berrill typically associated with PTSD, moreover, was an “explosive kind of behavior,” not a prolonged quest. Id. at 1265. His second report diagnosed Polizzi with “paraphilia” not otherwise specified (sexual interest in children in general), “hebophilia” (sexual interest in adolescents), and possible pedophilia (sexual interest in young children). Id. at 1233; see Dr. Berrill, Psycho-Legal Eval., Aug. 3, 2007. He gave no reasons for these conclusions in the report. Such diagnoses were appropriate, Dr. Berrill testified at trial, because Based on one of the tests that we had given and based [on] Mr. Polizzi acknowledging that he was looking at both young kids and adolescents in terms of the child pornography that he collected, number one, the tests results suggested first and foremost he was likely interested in adolescent girls, that is referred to clinically as Hebephilia.... I wasn’t really sure whether he was interested in young children. I really couldn’t tell based on my interview with him. He denied or disavowed an interest in all of this but nonetheless, testing raised some issues about teenagers and the fact that he collected pictures of kids who were younger than 10 raises a distinct possibility that was an area of interest. Trial Tr. 1233-34. The doctor was concerned that Polizzi had “provided contradictory information during the evaluation,” id. at 1301, denying all sexual interest in children, yet admitting he had collected child pornography for years. Polizzi had received a low score on the Abel Assessment, a test designed “to ascertain whether or not somebody is sexually interested in kids.” Id. at 1297. He had “not endorse[d] items that reflect the types of rationalization or excuses frequently used by individuals sexually involved with kids,” id. at 1300, but his answers on Dr. Berrill’s Internet activity questionnaire were suspicious: he had checked several boxes indicating he had looked at child pornography “to avoid having sex with children” and “out of curiosity,” which had raised concern in the doctor’s mind. Id. at 1116-18. Dr. Berrill did not explain the questions to Polizzi nor did he ask him why he had marked the boxes. Id. at 1078, 1394. On the stand, Polizzi described what he had meant by his checkmarks — that he looked at the photos “to avoid [i.e., to stop child abusers from] having sex with kids” — and that he was “curious” to find out how the photos came to be on the Internet, i.e., to find out who was producing them. Id. at 1115-18 (testifying that he had “[c]uriosity what was up there, what was on that box. Why this was over there. Why this material. It is a lot of do you understand there’s a lot of material, understand where this comes from, whose [sic] behind this, the curiosity, you know, why are they doing this.”). Although Dr. Berrill never mentioned malingering specifically in either of his reports, at trial he testified at length about Polizzi’s possible exaggeration of his symptoms. Id. at 1248 ff., 1322 (“I am not sure I said he was malingering. I said one has to imagine that that is a possibility.”). The doctor pointed out that Polizzi’s second MMPI-2 diagnostic test included several true-false answers reporting paranoid or delusional symptoms, which Polizzi had not reported on his first test a year before. Id. at 1251, 1327, 1253 (“[I]t raises the specter of, you know, Mr. Polizzi trying to exaggerate some of the symptoms he’s having right now. He’s exaggerating the level of distress or exaggerating the kinds of problems he is encountering.”). Dr. Berrill did note that Polizzi had never complained of any delusions or hallucinations. Dr. Berrill, Psycho-Legal Eval. 18, Aug. 3, 2007. Because Dr. Cohen had not conducted any independent validity testing, Dr. Berrill considered her cognitive testing results “worthless.” Trial Tr. 1260. Dr. Goldsmith rejected the malingering-related concerns cited by Dr. Berrill. That Polizzi had answered a few multiple-choice questions in odd ways was irrelevant: “you can’t take one question from 567 questions and make anything of it.” Id. at 1211. Such multiple-choice tests “are not great at detecting PTSD,” Dr. Goldsmith warned, “but they have some symptomatology that ... can come out with PTSD.” Id. at 1205. Such tests were certainly not “substitute^] for psychotherapy or psychiatric evaluations.” Id. at 1211. To Dr. Goldsmith it “ma[de] perfect sense” that some of Polizzi’s answers had changed over the course of the year; his PTSD symptoms had recently worsened because “as he tells the story, as he exposes the trauma ... that is when all of the symptoms come up, and that’s when the nightmares come about.” Id. at 1204. Polizzi “was not experiencing the active symptoms of post-traumatic stress disorder in May of 2006, when he first took the MMPI-2. While taking the second MMPI-2 a year later, he was in the [midst] of a severe PTSD condition, talking about this with myself and other examiners, Dr. Berrill, bringing up all the active symptoms.” Id. at 1212. 3. Jury Charge a) Written Charge Sheet Following a charging conference, a written charge and a verdict form showing questions to be answered, were prepared for the jury. As is the general practice of the court, copies of the charge and verdict form were distributed to jurors so they could follow the text of the instructions as they were delivered orally by the court. Trial Tr. at 1407:2-17. These documents were taken into the jury room to assist in deliberations. See id. See generally United States v. Russo, 110 F.3d 948, 953 (2d Cir.1997) (stating that “submission of written instructions to a jury is often advisable” and “will usually enhance a jury’s understanding of ... crime[s] charged and the burdens of the prosecution”); United States v. Delano, 55 F.3d 720, 732 (2d Cir.1995) (recognizing discretion of trial court to provide written charge to jury); Leonard B. Sand & Steven Alan Reiss, A Report on Seven Experiments Conducted by District Court Judges in the Second Circuit, 60 N.Y.U. L.Rev. 423, 453-56 (1985) (discussing propriety of written charge). The charge repeatedly conveyed that the defendant was charged with a multiplicity of crimes: twenty-three crimes of child pornography. E.g. Trial. Tr. at 1413:4-11 (“[T]he indictment contains 23 counts ... Counts One through Twelve charge the defendant with receiving child pornography. Counts Fourteen through Twenty-Four charge the defendant with possessing child pornography.... [E]ach act charged is charged as a separate crime.”); id. 1413:13-14 (“Counts One through Twelve charge the defendant Peter Polizzi with receipt of child pornography.”); id. at 1421:9-10 (“Counts Fourteen through Twenty-Four charge the defendant with Possession of Child Pornography.”); Id. at 1413:22-1414:4 (noting that the defendant was charged with receiving child pornography on various dates: “[Count] One, on or about February 20, 2005; Two, February 20, 2005; Three, March 5, 2005.... Count Four, March 5, Count Five, March 16, Count Six, March 16, Count Seven, March 16, Count Eight, March 16, Count Nine, March 20, Count Ten, March 20, Count Eleven, March 20; and Count Twelve, March 20”); id. at 1421:16-22 (“You have a separate file name and path for each count .... one for Fourteen, Fifteen, Sixteen, Seventeen, Eighteen, Nineteen, Twenty, Twenty-One, Twenty-Two, Twenty-Three, and Twenty-Four. Each constitutes a separate crime charged.”) (emphasis added). The verdict form was eight pages long, listing the twenty-three crimes charged in the indictment. Beneath each listed crime was the name and file path of the illicit image associated with each count. Charge 23-30 (“COUNT ONE — RECEIPT OF CHILD PORNOGRAPHY Cr Child 2*Photo*Girls*l*4.6.BMP ... COUNT TWELVE RECEIPT OF CHILD PORNOGRAPHY CrChild 2*Mix*3*94.BMP ... COUNT FOURTEEN POSSESSION OF CHILD PORNOGRAPHY C:*MY Site*Little Sites*MIXEDLOLI-TAS_files*07.JPG .... COUNT TWENTY FOUR CrChild 2*Up Date Photo*3-13*26.BMP”). For each of the twenty-three counts, there was a question requiring jurors to indicate whether they found the defendant “guilty,” “not guilty only by reason of the legal definition of insanity,” or “not guilty”. Id. During its oral instructions, the court reiterated the number and nature of counts charged: Now turn over [the sheet] and you will see the way the verdict sheet is set up. For example, Count one, Receipt of Child Pornography, then it is C:*Child2*Photo*Girls*l*46*46.BMP.... .... [T]hen you will find again not guilty, not guilty only by reason of the legal definition of insanity, or guilty.... Then you will go through each count.... You go through each one of these counts; Count One, Count Two, Count Three, Count Four, Count Five, Count Six, Count Seven, Count Eight, Count Nine, Count Ten, Count Eleven, Count Twelve, those are Receipt of Child Pornography..... Then you have Count Fourteen, Count Fifteen, Count Sixteen, Count Seventeen, Count Eighteen, Count Nineteen, Count Twenty, Count Twenty-One, Count Twenty-Two, Count Twenty-Three, Count Twenty-Four, and those are the Possession Counts. Id. at 1432:13-1433:9. Jurors were instructed that the indictment “is not evidence of guilt and it’s entitled to no weight in your judgment of the facts.” Id. 1412:10-12. They were told that the list of twenty-three crimes on the verdict form should guide their deliberations. Id. at 1408:8-9 (“At the end of the charge, there will be a question list, and that will help you focus your discussion.”). Jurors were aware that multiple counts were at issue. See id. Trial Tr. at 1431:10-15 (“[The court:] Then each of you is going to be asked ‘is that your verdict’ ... [A Juror]: Excuse me your Honor, to each count would we be asked that? [The court]: Yes[.]”) (emphasis added); see also id. 1432:6-9 (“[A juror]: Your Honor, on each of the counts we have to all agree on the count; is that correct? [The court]: Each count has to have a unanimous agreement.”) (emphasis added). b) Insanity Defense After extensive briefing and argument on the definition of “legal insanity,” for which the parties submitted sharply contrasting language, the court issued its own charge on the insanity defense; there were no objections. United States v. Polizzi, 545 F.Supp.2d 270, 276-78 (E.D.N.Y.2008) (defining “wrongfulness” as “unlawfulness”); Polouizzi I, 549 F.Supp.2d at 330 (discussing legal insanity charge); Polouizzi II, 564 F.3d at 153 (finding objections to insanity charge waived). c) Mandatory Minimum Sentence Defense counsel repeatedly sought to have the jury informed of the five-year mandatory minimum sentence of imprisonment applicable to the receipt counts. See, e.g., Def.’s Letter, Sept. 7, 2007, D.E. No. 71. The government opposed. Govt.’s Letter Br., Sept. 6, 2007, D.E. No. 70. On the eve of trial, the court issued a decision from the bench denying Polizzi’s request that the jury be informed of the mandatory minimum. Hr’g Tr. 3,19, Sept. 10, 2007. Also denied was defendant’s request for an alternative instruction informing the jurors simply that a guilty verdict would necessarily result in imprisonment. See id. at 19-20. The jury was not informed before rendering its verdict of the long prison sentence a conviction on the receiving counts entailed. It was specifically instructed that it should not consider sentencing when deciding on a verdict. See Charge 21 (“The question of possible punishment of the defendant is no concern for you and should not enter into or influence your deliberations. The duty of imposing sentence rests with the court.”); accord Trial Tr. 1430:23-1431:1. D. Jury Verdict and Colloquy 1. Jury Verdict On October 5, 2007, after three days of deliberation, the jury found Polizzi guilty on all twenty-three counts charged. Trial Tr. 1445-47. 2. Jurors Opposed To Incarceration During jury deliberations, it was evident from the jury’s questions that it quickly decided all issues against the defendant except insanity. Determining whether Polizzi had carried his b