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U.S. v. Truman Appeal Decision

U.S. v. Truman Appeal Decision

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Published by Kurt W. Wanfried
The July 25, 2012 U.S. Court of Appeals decision reinstating Jeffrey E. Truman's Sr.'s federal arson conviction.
The July 25, 2012 U.S. Court of Appeals decision reinstating Jeffrey E. Truman's Sr.'s federal arson conviction.

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Published by: Kurt W. Wanfried on Jul 26, 2012
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07/26/2012

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11-784-crUnited States v. Truman
*
The Honorable Jed S. Rakoff of the United States District Court for the SouthernDistrict of New York, sitting by designation.1
UNITED STATES COURT OF APPEALS
1
FOR THE SECOND CIRCUIT
234August Term, 201156(Argued: March 12, 2012 Decided: July 25, 2012)789Docket No. 11-784-cr101112- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X1314UNITED STATES OF AMERICA,1516Appellant,1718v.1920JEFFREY E. TRUMAN, SR.,2122Defendant-Appellee.2324- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X2526Before: LIVINGSTON, LOHIER, Circuit Judges, and RAKOFF, District Judge.
*
2728The Government appeals from the District Court’s judgment of acquittal under Federal29Rule of Criminal Procedure 29(a) and its conditional grant of a new trial under Federal Rules of 30Criminal Procedure 29(d) and 33(a) after a jury trial in which Jeffrey E. Truman, Sr. was31convicted of arson, wire fraud, and use of fire in the commission of a felony. We conclude that32the District Court erred in granting the judgment of acquittal and conditionally granting a new33trial. We therefore vacate the District Court’s judgment of acquittal and its conditional grant of a34new trial, and we remand the case with instructions to reinstate the jury’s verdict and enter a35 judgment of conviction.
 
36
 
21S
TEVEN
D.
 
C
LYMER
,
 
Assistant United States2Attorney (Edward R. Broton, Gwendolyn E. Carroll,3Assistant United States Attorneys, on the brief), for4Richard S. Hartunian, United States Attorney,5Northern District of New York, for Appellant.67E
DWARD
Z.
 
M
ENKIN
, Syracuse, N.Y., for Defendant-8Appellee.910LOHIER, Circuit Judge:1112The Government appeals from a judgment issued by the United States District Court for13the Northern District of New York (Hurd, J.) granting Defendant-Appellee Jeffrey E. Truman,14Sr.’s (“Truman”) motion for a judgment of acquittal under Federal Rule of Criminal Procedure1529(a) and conditionally granting Truman’s motion for a new trial under Federal Rules of Criminal16Procedure 29(d) and 33(a) after a jury trial in which Truman was convicted of various arson-17related charges in connection with the destruction by fire of a vacant building that he jointly18owned. A principal witness against Truman at trial, his son, Jeffrey Truman, Jr. (“Truman, Jr.”),19had been convicted in New York state court of setting fire to the building and had thereafter20cooperated with the federal Government.21Contrary to the District Court’s analysis, we conclude that Truman, Jr.’s refusal to answer22certain questions at trial did not render his testimony for the Government “incredible as a matter23of law,” and that Truman, Jr.’s prior testimony against Truman in a separate state court trial was24properly admitted as nonhearsay under Federal Rule of Evidence 801(d)(1)(A). We also conclude25that Truman was not prejudiced by the Government’s improper cross-examination and arguments26in summation or by the Government’s reference in summation to a breach of Truman, Jr.’s27cooperation agreement. Accordingly, we vacate the District Court’s judgment of acquittal and its28
 
3order conditionally granting a new trial, and we remand for entry of a judgment consistent with1the jury’s guilty verdict and for sentencing.2
BACKGROUND
34According to the evidence introduced at trial, in November 2005 Truman, along with two5partners in JMM Properties, LLC (“JMM”), purchased a vacant commercial building and the6property on which it was located on Liberty Street in Oneida, New York (“Liberty Street7building” or “the building”) for $175,000.
 
An insurance policy for the property, set to expire8November 17, 2006, covered up to $4,250,000 in fire-related losses. Moreover, as Truman later9learned from JMM’s real estate broker, the property without the building “was worth as much or10more than it was worth with the building on it.”11In January 2006 a small fire started accidentally at the Liberty Street property, causing12only minor damage. The day after the fire, the real estate broker reminded Truman that the13building was insured for several million dollars,
 
and Truman told an employee responsible for14cleaning the building, “[I]f it ever caught on fire again, just get out. It is worth more to me down15than it is standing.” Similarly, when Truman’s father-in-law said that leasing the building would16be profitable, Truman responded that “it would probably make more money if it burnt.”17By the fall of 2006, JMM was financially strapped. Unable to find tenants or buyers for18the property, it faced mounting unpaid financial obligations totaling several thousand dollars,19including a significant interest payment on one mortgage loan, due November 17, 2006—the20same day that the insurance policy was set to expire—and a payment of $14,500 in broker fees21associated with a second mortgage that Truman had personally guaranteed. After Truman22negotiated three extensions of the deadline for the $14,500 payment, JMM’s mortgage broker told23Truman the week before the fire that the second loan would be canceled if the payment was not24

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