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United States v. Truman - 688 F.3d 129 (2d Cir. 2012)


When considering a motion for a new trial under Fed. R. Crim. P. 33, a district court has discretion to weigh the evidence and in so doing evaluate for itself the credibility of the witnesses. Even in cases involving a witness's perjured testimony, however, a new trial is warranted only if the jury probably would have acquitted in the absence of the false testimony.


Truman, along with two partners in JMM Properties, LLC ("JMM"), purchased a vacant commercial building for $175,000. An insurance policy for the property, set to expire November 17, 2006, covered up to $4,250,000 in fire-related losses. In January 2006 a small fire started accidentally at the property, causing only minor damage. The day after the fire, the real estate broker reminded Truman that the building was insured for several million dollars, and Truman told an employee responsible for cleaning the building, "[I]f it ever caught on fire again, just get out. It is worth more to me down than it is standing." Similarly, when Truman's father-in-law said that leasing the building would be profitable, Truman responded that "it would probably make more money if it burnt." By the fall of 2006, JMM was financially strapped. Truman himself experienced significant financial difficulties relating to JMM and unrelated businesses. The building burned down the evening of November 12, 2006. Investigators soon determined that the fire was the result of arson. The following month, police arrested 20-year-old Truman, Jr., who confessed that he had burned the building at his father's direction. Apparently unaware of his son's confession, Truman and his business partners filed an insurance claim for the building. Truman was arrested and both he and Truman, Jr. were indicted by a grand jury. Truman, Jr. pleaded guilty to third-degree arson pursuant to a cooperation agreement with the district attorney of Madison County and served a two-year term of imprisonment. The District Court granted the Rule 29(a) motion after concluding that Truman, Jr.'s federal and state court trial testimony was "incredible as a matter of law." The District Court also conditionally granted Truman's motion for a new trial. The Government appealed.


Did the district court err in its judgment of acquittal and its conditional grant of a new trial?




The court of appeals held that Truman, Jr.'s refusal to answer certain questions at trial did not render his testimony for the government incredible as a matter of law. His failure to testify fully, as required under the cooperation agreement, his troubled background, any inconsistencies in his testimony, and the inferences to be drawn from the evidence, were factors relevant to the weight the jury should accord to the evidence, and did not on the record justify the grant of a judgment of acquittal. The remaining circumstantial and direct evidence of defendant's guilt in the government's case-in-chief, viewed in the light most favorable to the government, was sufficient to support the jury's verdict. The district court exceeded its discretion when it granted a new trial on the basis that the son's state court testimony was incredible as a matter of law. The son's state court testimony was not admissible as nonhearsay under Fed. R. Evid. 801(d)(1)(A). The government's misconduct in cross-examining defendant did not deprive him of a fair trial.

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