Truman/False Man

United States v. Truman, Sr., No. 11-784-cr (2d Cir. 2012) (Livingston, Lohier, CJJ, Rakoff, DJ)

Jeffrey Truman, Sr., recruited his son, Jeffrey Truman, Jr., to burn down a building that Truman Sr. owned in Oneida, New York.  The was in dire financial straits and the property had a very large insurance policy.

Truman Sr.’s odyssey through the legal system began in state court, where he was tried on arson and fraud charges. That case was dismissed because the state court could not corroborate Jr.’s testimony, as required under state law.

The feds then took up the case, which went to trial after Jr. signed a cooperation agreement. At trial, however, Jr. balked. While he described his own role in setting the fire, he steadfastly refused to implicate his father.  This prompted the government to introduce, over objection, portions of Jr.’s testimony from Sr.’s state court trial, in which Jr. confirmed that his father had asked him to start the fire.

Other evidence against Sr. included evidence that suggested that Sr. had tried to cover up the crime in various ways, and evidence of his financial problems and the degree to which the property was insured.

The defense case included some evidence that Jr. had recanted his testimony against Sr., including an assertion by a lawyer involved in a civil case between Sr. and the insurance company that Jr. had told him that his previous statements “blaming his father” were untrue. 

Sr. testified in his own defense and denied any role in the arson or the insurance fraud. For some reason, the AUSA’s approach to cross-examination was to repeatedly ask him whether other witnesses’ statements at the trial, including those by a police officer, were true or untrue.

Sr. was convicted, but persuaded the district judge to grant his Rule 29 motion, and a conditional new trial under Rule 33(a). The court concluded that Jr.’s testimony was incredible as a matter of law and that the remaining circumstantial evidence was insufficient.  The conditional new trial was based on the court’s conclusions that: (1) that Jr.’s “patently incredible” testimony was an exceptional circumstances that warranted a new trial; (2) it had erred in introducing Jr.’s state court testimony and; (3) the government engaged in prosecutorial misconduct.

On this, the government’s appeal, the circuit reversed. The factors identified by the district court in discrediting Jr. “surely impaired” his credibility but did not render his testimony incredible as a matter of law for the purposes of Rule 29. Morever, the remaining evidence, even absent Jr.’s testimony, was itself legally sufficient.

Nor was there a basis for a new trial. For the same reasons identified above, Jr.’s suspect credibility did not warrant a new trial. In addition, there was no error in admitting Jr.’s state court testimony, which was clearly covered by Fed.R.Evid. 801(d)(1)(A), under which a reluctant trial witness can be impeached with a prior inconsistent statement. Finally, the prosecutorial misconduct -did not warrant a new trial. While it was improper for the government to cross-examine Sr. about whether other witnesses were “liars,” this not prejudicial. The questions were irrelevant to the central issue of Sr.’s own credibility and to the “other compelling evidence of guilt admitted at trial.”

Body of Evidence

United States v. Perisco, No. 08-5266-cr (2d Cir. May 3, 2011) (Jacobs, Kearase, Leval, CJJ)

Defendants Perisco and DeRoss, former high-ranking members of the Colombo crime family, were convicted of murder-in-aid-of racketeering and related offenses in connection with the murder of one William Cutolo, in connection with an intra-family power struggle. In this long opinion, which deals with several not-very-interesting evidentiary and sufficiency claims, the circuit affirms.

The opinion addresses only one noteworthy issue. At the time of the defendant's trial, Cutolo's body had not been located. And the theory of the government, based on other evidence, was that the body had been dumped at sea. Post-trial, the body was found buried on Long Island, which prompted the defendants to move for a new trial under Fed. R. Crim. P. 33.

The circuit affirmed the denial of that motion. It agreed with the district court that the discovery of the body was not "material" and was not "likely to result in an acquittal." While the discovery was "relevant," it did not impeach the credibility of any of the government's key witnesses, even if it did contradict the "theory advanced in summations as to how Cutolo's dead body had been concealed." Moreover, nothing about the discovery undercut the government's contention that the murder was brought about by Perisco and DeRoss.

Deal Or No Deal?

United States v. Marks, No. 08-1207-cr (2d Cir. October 19, 2010) (Leval, Hall, Livingston, CJJ)

Defendant Chad Marks was convicted after a jury trial of drug trafficking offenses and two § 924(c) counts, and was sentenced to the resulting 40-year mandatory minimum. The trial came after months of plea negotiations, including an offer by the government to resolve the case with a 20-year sentence.

Before trial, Marks had filed a motion with the district court seeking to compel the government to follow up on a different plea offer that, apparently, was in the nature of a cooperation agreement. The court denied the motion and the case proceeded to trial.

But after trial, Marks’ counsel renewed that motion and, this time, the government’s opposition indicated that the government had extended a 20-year offer before trial. Before sentencing, Marks filed a pro se habeas corpus petition under 18 U.S.C. § 2241 claiming that (1) his counsel had never told him about the 20-year offer and (2) that Marks would have accepted the offer had he known about it. His specific allegation was that counsel had been ineffective.

The district court refused to hear the petition before sentencing, concluding that the argument should instead be raised in a § 2255 motion afterwards. Marks filed an interlocutory appeal, which the circuit dismissed without prejudice to any direct appeal or subsequent 2255. The district court then imposed sentence.

On this, Marks’ direct appeal, the circuit held that it was error for the district court to consider sentencing as a prerequisite to reviewing Marks’ claim of ineffectiveness. Here, there was no reason to wait, since the district court was “in a position to take evidence, if required, and to decide the issue pre-judgment.” Thus, the court held, “when a claim of ineffective assistance of counsel is first raised in the district court prior to the judgment of conviction, the district court may, and at times should, consider the claim at that point in the proceeding.”

The factors for a district court to consider in deciding whether to adjudicate such a claim include the potential disruption to the proceedings and whether a new attorney would need to be appointed. But here, the district court “should have considered” the claim prior to sentencing. It had already relieved the attorney alleged to be ineffective and thus had “no good reason to postpone inquiry” into the merits of Marks’ claim. Moreover, the claim was “facial[ly] plausibl[e].” The AUSA confirmed that he had extended the 20-year offer before trial; when asked, defense counsel “equivocated” as to whether he had communicated the offer to Marks; there was a “significant ... disparity” between the sentence to which Marks was exposed and that contemplated by the offer; and Marks had consistently indicated that he would have accepted the offer had he known about it and was “persistent in his efforts” to secure a plea deal before trial.

On these facts, the district court erred in concluding that it was required to defer consideration of Marks’ claim to a post-judgment § 2255 motion and remanded the case for further proceedings on the issue.

The court also discussed the remedy. If the district court were to find that Marks’ counsel did not extend the 20-year offer and that Marks would have accepted it, the district court “would be required to place [him] in the position he would occupy had counsel been effective,” which means giving him “the opportunity to accept the never-communicated plea offer.”

Finally, in a footnote, the circuit agreed with the district court that a § 2241 petition is the incorrect vehicle for raising a pre-judgment ineffectiveness claim. The proper procedural avenue is a motion for a new trial under Fed.R.Cr.P. 33. But, since Marks was acting pro se, the court “should have denominated Marks’ § 2241 petition a Rule 33 motion, and it should have, at least in these circumstances, proceeded to reach the substance of the claim.”

Porn At Home

United States v. Polouizzi, No. 08-1830-cr (2d Cir. April 24, 2009)(Leval, Katzmann, Raggi, CJJ)

Defendant - referred to in the opinion as Peter Polizzi - was convicted by a jury of eleven counts of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), and twelve counts of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2), after the jury rejected his insanity defense. Post-trial, he made a Rule 33 motion, arguing that the district court erred by refusing to inform the jury that the receipt counts carried a five-year mandatory minimum. Based in part on a post-verdict colloquy with the jurors that revealed that at least some of them would have accepted the insanity defense had they known of the mandatory minimum, the court granted the motion on the receipt counts only. Both sides appealed.

The Defendant’s Appeal

A. Double Jeopardy

1. Multiple Counts of Possession

Polizzi argued that all but one of his possession counts should be vacated because possessing a single collection of child pornography on a single date could constitute only a single violation of § 2252(a)(4)(B). The circuit agreed, and found plain error, as well.

The statute makes it a crime to possess “1 or more” matters that contain “any visual depiction” of an image containing child pornography. It also contains an affirmative defense if the defendant “possessed less than three [such] matters.” The court rejected the government’s claim that each “matter which contains” a prohibited image is a separate unit of prosecution under this section.

Under the “clear language” of the statute, a person “who simultaneously possesses multiple ... matter[s] containing a visual depiction of child pornography” is subject to “only one conviction under 18 U.S.C. § 2252(a)(4)(B).” The language “1 or more” indicates that a person commits only one violation of the statute by possessing more than one matter containing child pornography. Unlike the word “any,” which may be ambiguous in setting the applicable unit of prosecution, the phrase “1 or more” clearly “specifies the plural.” This reading of the statute is bolstered by the existence of the affirmative defense, which “necessarily contemplates that a person who possessed two matters containing prohibited images would face a single charge of violating” this section.

2. Multiple Counts of Receipt

The court considered a similar argument with respect to the receipt counts under § 2252(a)(2), which criminalizes the receipt of “any” prohibited images. The court found the term “any” ambiguous as to setting the applicable unit of prosecution; under the rule of lenity, absent evidence of a contrary congressional intent, “a person who receives multiple prohibited images in a single transaction can only be charged with a single violation of § 2252(a)(2).” Here, the trial evidence showed that Polizzi received prohibited images on four distinct dates, with no evidence of multiple and distinct transfers on each of those dates. Thus, Polizzi could only be convicted of four receipt counts - “one for each date on which he received images - but not multiple receipt counts per day.”

3. Simultaneous Convictions of Possession and Receipt

Finally, Polizzi argued that he could not be convicted of both possession and receipt, because possession is a lesser included offense of receipt. The court noted that both the Third and Ninth Circuits have so held, and found those cases “persuasive,” but did not actually rule on the issue. Polizzi “was charged with possessing certain images of child pornography the receipt of which did not form the basis for a separate receipt count.” Thus, for those four counts, his possession was not incident to an act of receiving for which he has already been punished.

B. Other Claims

At trial, Polizzi tried to get the district court to force the government into an Old Chief-type stipulation that the images were child pornography, so as to prevent them from being introduced into evidence. The district court would not do it, and the circuit affirmed. Here, in light of Polizzi’s insanity defense, the “specific nature and content of the images were relevant” and the “risk of unfair prejudice was minimized by the mode of presentation.”

He also challenged the court's charge on the insanity defense, but the court refused to consider the claim, finding that it was “waived” by his affirmative acceptance of the instruction, and not merely “forfeited” by a lack of objection, which would have left open the possibility of plain error review.

The Cross-Appeal

Although although the court rejected Polizzi’s claim that the Sixth Amendment required the jury to be informed of the mandatory minimum, the court did not agree with the government that district courts can never inform a jury of a mandatory minimum. Nevertheless, it reversed the grant of the Rule 33 motion.

After reviewing the cases, the court held that district courts have discretion to instruct the jury on the applicable mandatory minimum in some circumstances: “Without attempting to define the boundaries of a district court’s discretion in this regard, we recognize the possibility ... that circumstances may exist in which instructing the jury on the consequences of its verdict will better ensure that the jury bases that verdict solely on the evidence and will better discourage nullification.”

Here, the court did not reach the question whether the district court would have had the discretion to inform the jury of the mandatory minimum at Polizzi’s trial. Even if, arguendo, it had, it was “certainly within the trial court’s discretion to decline to,” which it did, and thus the standard for grating a new trial under Rule 33 - “a compelling reason involving substantial unfairness” - was not met.

Rehearing Loss

United States v. Owen, No. 07-4966-cr (2d Cir. March 9, 2009) (Feinberg, Cabranes, Hall, CJJ)

Defendant Owen has had a Rule 33 motion pending in the district court for quite some time. This is circuit’s third opinion in the case. In the first, Owen I, it held that the district court erred in granting the motion based on newly discovered evidence, but remanded for consideration of an ineffectiveness claim. See “33 Skidoo” posted September 25, 2007. In the second, Owen II, the court held that a “protective” notice of appeal, filed after the remand, was not effective, and agreed to hold the appeal in abeyance pending the district court’s resolution of the Rule 33 motion. See “On Hold,” posted January 19, 2009. Here, the court disposes of the government’s motion for panel rehearing of Owen II, in which the government claimed, for the first time, that the Rule 33 motion was untimely because the handwritten, pro se motion was filed 279 days after the verdict, while Rule 33 has a seven-day filing deadline for motions grounded on claims other than newly discovered evidence.

The court declined to resolve the question, and denied the government’s motion. The time period prescribed in Rule 33 is not “jurisdictional” - that is, created by statute - thus a district court can consider an untimely Rule 33 motion if the untimeliness was the result of excusable neglect. Here, while there is no evidence that Owen received an extension of time from the district court, it nevertheless appears that the court intended to decide the motion before counsel filed the protective notice of appeal.

Under these circumstances, since the Rule 33 motion is still pending, the district court is in the best position to decide, “in the exercise of its informed discretion,” whether the motion was timely.

Jailhouse Rock

United States v. Cote, No. 07-1852 (2d. Cir. September 24, 2008) (Pooler, Sotomayor, CJJ, Restani, JCIT)

Paul Cote was a prison guard at the Westchester County jail. On October 10, 2000, during an altercation, Cote repeatedly punched and stomped on an inmate’s head while the inmate lay on the floor. The inmate never regained consciousness and died about fourteen months later, in December of 2001.

Background

Cote was originally tried in state court, before the inmate died; he was acquitted of first-degree assault, and convicted of a lesser offense, second-degree assault. Hewas sentenced to three months’ imprisonment.

Subsequently, Cote’s counsel learned of a federal civil rights investigation into the incident. The feds moved quite slowly and, nearly five years after the event, notified counsel that an indictment was forthcoming. Counsel wanted time to persuade the government not to pursue the case; on counsel’s advice, Cote executed an agreement tolling the statute of limitations for ninety days. The government, on its part, agreed not to seek a “death resulted” indictment, which would have carried a maximum period of imprisonment of life, or even the death penalty. As the negotiations wore on, they signed a second tolling agreement for another two months. Ultimately, however, counsel failed to dissuade the government. Cote was charged with with violating the inmate’s civil rights under color of law, in violation of 18 U.S.C. § 242.

The Trial

At trial, the government called several eyewitnesses: another prison guard and three inmates. There was also medical evidence describing the extensive trauma that the inmate suffered to his face and head. He received multiple blows, at least some of which required the application of significant force.

The defense called two competing medical experts, who opined that all of the inmate's injuries had been caused by a different guard, who had pushed the inmate onto the concrete floor before Cote arrived.

Post-Verdict Rulings

The jury convicted Cote, but the district court granted his post-verdict Rule 29 and Rule 33 motions.

For the Rule 29 motion, the bulk of the district court’s ruling rested on its view that the testimony implicating Cote was incredible. The court felt that the inmate witnesses had exaggerated their accounts out of vindictiveness, and that the testimony of the other guard was suspect, perhaps as an effort to deflect suspicion from himself. Finally, the court held that there was insufficient evidence that Cote acted with the requisite intent. It noted that the state court “got it right” by finding that Cote acted recklessly, not intentionally.

Alternatively, the district court granted a new trial under Rule 33, for the same reasons. It also sua sponte concluded that the jury had not been properly charged on intent, and that the tolling agreement was involuntary.

The Appeal

On this, the government’s appeal, the circuit reversed. As to the Rule 29 motion, the court agreed with the government that the evidence was sufficient. None of the inconsistencies in the witnesses’ accounts rendered the testimony incredible as a matter of law. Indeed, “the jury was entitled to reject the extreme of the testimony and conclude that the truth law somewhere in between.”

Moreover, under Rule 29, the court must “give full play to the right of the jury to determine credibility, and must draw all possible inferences in favor of the government.” Thus, the court was “not entitled to reject the bulk of the government’s evidence as not credible for purposes of granting” the Rule 29 motion.

The circuit also found that the district court erred in finding insufficient evidence of specific intent. Here, the nature of the force itself, Cote’s efforts to falsify an incident report and induce others to do so, and the words Cote used as he beat the inmate - a warning not to disrespect corrections officers - all entitled the jury to find that Cote acted with the requisite intent.

The circuit likewise reversed the new trial grant under Rule 33, finding that the court abused its discretion. Here, the discrepancies in the testimony were fairly minor, and did not warrant a new trial. Nor was the district court correct that the jury was improperly instructed on intent, or that the tolling agreement was coerced.

33 SKIDOO

United States v. Owen, Docket No. 06-1078-cr (2d Cir. September 4, 2006 [sic]) (Parker, Raggi, Wesley, CJJ)

In case you were wondering, Rule 33 applies only to "newly discovered" evidence, and not "newly available" evidence.

Facts: Lance Owen and two co-defendants loaded five years worth of marijuana into a truck from a warehouse in the Bronx. Owen was pulled over while driving the truck, and explained, not very convincingly, that he was a mover, in the process of moving personal items to Florida for a client. When DEA agents found the marijuana in the truck, they arrested him.

Owen and the two others, Samuels and Baroody, went to trial. No defendant testified, but each, through counsel, pointed his finger at the others. All were convicted, and Judge Patterson sentenced Owen to five years’ imprisonment.

At Samuels’ sentencing, before sentence was imposed, Samuels exculpated Owen. He said that he had “hired him for a job” but that Owen “didn’t know anything about drugs.” Samuels also said that he told the government that Owen was innocent during a proffer. Owen then, pro se, moved for a new trial under Fed.R.Crim.P. 33, characterizing Samuels’ statements as newly discovered evidence, and Judge Patterson granted the motion.

The Court's Ruling: On the government’s appeal, the Circuit reversed. It characterized the evidence as “newly available,” and not “newly discovered,” rejecting Owen’s claim that he was unaware of Samuels’ ability to exculpate him until Samuels did so. If in fact Samuels never told Owen that there was marijuana in the boxes he was transporting, Owen “would have known prior to trial” that Samuels could testify to that fact. The court then declined to extend Rule 33 to newly available evidence, rejecting the First Circuit’s minority holding on this point.

Comment: Despite the bad outcome for Owen, this case nevertheless has a few helpful nuggets. First, it seems to endorse severance as the proper relief where “a codefendant’s assertion of privilege deprives the defendant of exculpatory testimony” at trial. Moreover, ths case does not completely shut the door to this type of Rule 33 motion, noting that there “may be” cases where a codefendant’s post trial testimony “does indeed constitute newly discovered evidence.”