What are the implications of a federal court's order to vacate a judgment of conviction and order a new trial on child pornography charges?

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

Page 3