UNITED STATES of America, Appellant, v. Pietro POLOUIZZI, also known as Peter Polouicci, also known as Peter Pietro-Polouicci, also known as Peter Polizzi, Defendant-Appellee, 393 F. App'x 784

SUMMARY ORDER The government appeals from the district court’s order vacating the judgment of conviction entered against defendant-appellee Pietro Polouizzi on the possession counts under 18 U.S.C. § 2252(a)(4)(B), and ordering new trial on both the possession counts and the receipt counts.

In the prior appeal, we ruled that possession of multiple images of child pornography at the same time and place may not properly be charged as multiple counts — as opposed to a single count of illegal possession — and similarly that receipt of multiple images of child pornography in a single transaction may not be charged as multiple violations of 18 U.S.C. § 2252(a)(2). United States v. Polouizzi, 564 F.3d 142 (2d Cir.2009).

The government contends that it was not within the lawful exercise of the district court’s discretion to vacate the jury’s findings of guilt and order new trial solely because of our ruling that the original charge was multiplicitous and could not justify multiple convictions. We agree, especially in view of the fact that the evidence on the retrial anticipated by the district court would have been “essentially the same” as the evidence in the previous trial. United States v. Polouizzi, 687 F.Supp.2d 133, 159 (E.D.N.Y.2010).

There is no reasonable basis in these circumstances to conclude that the presentation of the same evidence in the context of the more numerous counts adversely affected the jury’s appraisal of the defense of insanity. Courts must exercise their authority under Rule 33 to set aside a jury verdict and grant a new trial “sparingly and in the most extraordinary circumstances.” United States v. Cote, 544 F.3d 88, 101 (2d Cir. 2008) (internal quotation marks omitted). United States v. Ketchum, 320 F.2d 3 (2d Cir.1963), is not to the contrary.

The-question considered in that case was whether an election among multiplicitous counts might be required in an appropriate case “either before or after the close of the evidence.” Id. at 8. The opinion made no suggestion that multiplicity, raised by the defendant for the first time on appeal after conviction, might justify a grant of a new trial. The order of retrial is reversed.

We remand for reinstatement of the jury’s verdict on no more than four counts of receipt in violation of 18 U.S.C. § 2252(a)(2) — one for each date on which the defendant received images — and on one count of possession in violation of 18 U.S.C. § 2252(a)(4)(B), all in accordance with our prior ruling, and for imposition of sentence. The government’s application for a writ of mandamus prohibiting the district court from instructing the jury concerning the mandatory minimum sentence for violations of 18 U.S.C. § 2252(a)(2) is moot in light of the fact that there will be no retrial.

In the event of a subsequent appeal, the matter will be assigned to this panel. VACATED AND REMANDED.