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.”