UNITED STATES оf America, Appellant, v. Jeffrey E. TRUMAN, Sr., Defendant-Appellee.
Docket No. 11-784-cr.
United States Court of Appeals, Second Circuit.
Decided: July 25, 2012.
688 F.3d 129
Argued: March 12, 2012.
The majority holds that once a party initiates an action to compel arbitration, he may never unilaterally dismiss it.
This holding is contrary to the clear language of
A plaintiff may have various reasons for wishing to unilaterally dismiss his action. He may realize he filed suit in an improper forum. He may wish to marshal new evidence to support a claim. He may be financially unable or unwilling to continue the litigation. Or he may wish to cut his losses after learning that his adversary is judgment-proof. See generally 8-41 Moore‘s Federal Practice-Civil § 41.11. A § 4 petitioner may have similar reasons to resort to
The right to unilateral dismissal of course may be exercised regardless of whether the reasons for doing so are adjudged “legitimate.” See Thorp, 599 F.2d at 1177 n. 10. But the mere fact that there are “legitimate” reasons for invoking that right counsels against the categorical rule the majority adopts here.
VI. Conclusion.
For the reasons stated above, I would hold that the District Court erred by vacating ISC‘s properly filed notice of dismissal. I thus dissent from Part II of the majority opinion.
Because I conclude that the District Court did not abuse its discretion in denying ISC‘s recusal motion, I concur with Part I of the majority opinion.
equivalent of a motion for summary judgment. See Thorp, 599 F.2d at 1173. Cf. Hamilton v. Shearson-Lehman Am. Express, Inc., 813 F.2d 1532, 1535 (9th Cir.1987) (“A motion to compel arbitration ... is not the equivalent of an answer or a motion for summary judgment.“).
...
In any event, the majority doubts that
Edward Z. Menkin, Syracuse, NY, for Defendant-Appellee.
Before: LIVINGSTON, LOHIER, Circuit Judges, and RAKOFF, District Judge.*
LOHIER, Circuit Judge:
The Government appeals from a judgment issued by the United States District Court for the Northеrn District of New York (Hurd, J.) granting Defendant-Appellee Jeffrey E. Truman, Sr.‘s (“Truman“) motion for a judgment of acquittal under
Contrary to the District Court‘s analysis, we conclude that Truman, Jr.‘s refusal to answer certain questions at trial did not render his testimony for the Government “incredible as a matter of lаw,” and that Truman, Jr.‘s prior testimony against Truman in a separate state court trial was properly admitted as nonhearsay under
BACKGROUND
According to the evidence introduced at trial, in November 2005 Truman, along with two partners in JMM Properties, LLC (“JMM“), purchased a vacant сommercial building and the property on which it was located on Liberty Street in Oneida, New York (“Liberty Street building” or “the 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. Moreover, as Truman later learned from JMM‘s real estate broker, the property without the building “was worth as much or more than it was worth with the building on it.”
In January 2006 a small fire started accidentally at the Liberty Street 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 аgain, 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. Unable to find tenants or buyers for the property, it faced mounting unpaid financial obligations totaling several thousand dollars, including a significant interest payment on one mortgage loan, due November 17, 2006—the same day that the insurance policy was set to expire—and a payment of $14,500 in broker fees associated with a second mortgage that Truman had personally guaranteed. After Truman negotiated three extensions of the deadline for the $14,500 paymеnt, JMM‘s mortgage broker told Truman the week before the fire that the second loan would be canceled if the payment was not made by November 14. Truman himself experienced significant financial difficulties relating to JMM and unrelated businesses, including a restaurant and a skating rink. He lost $97,000 in other real estate investments in 2005 and in September 2006 was forced to withdraw $135,000 from his retirement savings to pay credit card debts and JMM‘s bills. By early November 2006, Truman had less than $5,000 in his personal bank accounts. Nevertheless, the premium payments for the insurance poli-
The building burned down the evening of November 12, 2006. Investigators soon determined that thе fire was the result of arson. The following month, police arrested twenty-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 in February 2007. Truman was arrested by state law enforcement officials in March 2007, and both he and Truman, Jr. were indicted by a grand jury in Madison County, New York. 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.
I. State Proceedings
Truman was first tried in state court on arson, fraud, and related charges, with Truman, Jr. as the main witness against him. The charges were dismissed, however, when the State prosecutors proved unable to corroborate Truman, Jr.‘s testimony, as required under New York law when an accomplice testifies for the prosecution. See
II. Federal Proceedings and Evidence at Trial
After the state charges against Truman were dismissed, the United States began its own investigation. In January 2010 Truman, Jr. entered into a cooperation agreement with the United States Attorney‘s Office pursuant to which he agreed to give “complete, truthful, and accurate information during ... statements [to the Government] and subsequent testimony before a federal grand jury and during subsequent proceedings,” and acknowledged that a “failure or a refusal to continue to cooperаte or to testify [would] constitute a breach of [the] agreement.” Truman, Jr. testified before a federal grand jury, and soon thereafter Truman was indicted and charged with (1) aiding and abetting arson, in violation of
A. Truman, Jr.‘s Testimony and Statement to the Police
At Truman‘s federal trial, the Government called Truman, Jr. as a witness. He first testified about his criminal history, including the state arson conviction and various convictions for driving while intoxicated (“DWI“).1 He then testified that he burned down the Liberty Street building. While acknowledging that he had discussed the building with his father the day before the arson, Truman, Jr. declined to disclose what his father had told him. He testified that he started the fire at a time when Truman would be at the skating rink that he owned so that Truman would have an alibi. The day of the fire, Truman drove Truman, Jr. to the skating rink. There, Truman, Jr. met a friend, Nick Fleming, who drove Truman, Jr. to the Liberty Street building. Inside the building, Truman, Jr. located containers of gas-
When the Government asked Truman, Jr. why he set the fire and about the content of his conversations with his father, he refused to answer. The District Court confirmed that Truman, Jr. would not answer and warned him that his refusal would constitute a breach of the cooperation agreement with the Government. He still refused, saying, “I can‘t,” and, “I can‘t do this.” In response, and over Truman‘s objection, the Government read portions of Truman, Jr.‘s testimony from Truman‘s state court trial, in which Truman, Jr. confirmed that his father had asked him to start the fire:
[Question:] Jeffrey, did you have any information about the gasoline and kerosene before going over to the [building] that morning?
Answer: Yes.
Question: And from whom did you receive that information?
Answer: My father.
Question: And when did you receive that information?
Answer: The night before.
...
Question: And what did your dad tell you about the gasoline and kerosene?
Answer: Told me what room they were in and where in the room.
Question: What room were they to be in?
Answer: It was the room that had a previous fire in it.
...
Question: And did he tell you anything with regards for the purpоse for those being there?
Answer: For burning the building down.
...
Question: And you said a week before [the fire] you had a discussion with your dad as well. What did he say to you at that time?
Answer: He asked me if I would do it.
After the testimony was read, Truman, Jr. confirmed that he had so testified during the state court trial.
On cross-examination, Truman‘s counsel asked Truman, Jr. about his deposition testimony in a related civil lawsuit that JMM had filed against the insurance company that denied JMM‘s insurance claim. Truman, Jr. acknowledged that he had refused to answer several questions and had invoked his Fifth Amendment right not to incriminate himself during the deposition, but he then proceeded to answer defense counsel‘s questions about peripheral matters relating to his state court testimony, and hе maintained that his state court testimony had been truthful.
B. Additional Government Evidence
Several Government witnesses corroborated Truman, Jr.‘s testimony regarding his father‘s involvement in the arson. Three days after the fire, Fleming heard Truman yell at Truman, Jr. to “keep your ... mouth shut.” In December 2006, in a series of recorded telephone calls that were admitted into evidence, Fleming told Truman that the police had found tracks from Fleming‘s car tires at the scene of the fire, that the police were looking for him and his car, and that he was concerned that they might find traces of gasoline and kerosene in the car‘s upholstery. Truman responded by offering to pay Fleming for the cost of replacing the tires. Shortly thereafter, Truman spoke with a police detective about the fire but concealed his conversation with Fleming. Ashley Shaughnessy, a friend of Truman, Jr., testified that after the arson Truman said “[t]hat they were going to take [Truman, Jr.‘s] clothes and put them in the dumpster.” Telephone and toll records further corroborated Truman, Jr.‘s account of traveling to Syracuse with his father to dispose of evidence. In addition, the Government presented evidence, set forth above, rеlating to Truman‘s purchase of the building, the insurance policy, his conversations with JMM‘s real estate broker, and his inculpatory statements to a building employee and to his father-in-law.
After the Government‘s case-in-chief, Truman moved for a judgment of acquittal under
C. The Defense Case
The defense introduced some evidence that Truman, Jr. had recanted his state court testimony inculpating his father. In particular, Anthony LaFache, Truman, Jr.‘s lawyer in the civil lawsuit between JMM and the insurance company, testified that Truman, Jr. invoked his Fifth Amendment right not to answer questions during the civil deposition becаuse he was concerned that his responses might conflict with his prior state court testimony. According to LaFache, Truman, Jr. confided “that his previous sworn testimony and previous sworn statements, blaming his father ... were untrue.”
Testifying in his defense, Truman denied any role in the arson or the related fraud. On cross-examination, an Assistant United States Attorney (“AUSA“) repeatedly asked Truman whether statements made by other witnesses that contradicted Truman‘s testimony were “true,” “accurate,” or “mistaken,” and whether certain witnesses were “lying” during their testimony. The AUSA also confronted Truman about his conversation with Fleming and, after noting that Truman had failed to mention it to police, asked: “[I]sn‘t it true that you would not tell [the detective] about this conversation you had with Fleming because he was a police officer and police officers, in your view, are the biggest liars on the planet[?]” After Truman answered no, the Government introduced deposition testimony from the JMM civil suit in which Truman stated, “Police are the biggest liars on the planet. Who knows what he is going to write down on a piece of paper[?] They all lie. They lied at my [state criminal] trial, and they lie all the time.”
D. The Government‘s Rebuttal
On the Government‘s rebuttal case, Carrie Dailey testified that the summer before
E. Jury Summations
During summation, an AUSA stated that Truman, Jr. had violated his plea agreement by refusing to testify directly against his father. The AUSA then dramatically tore a copy of the agreement in half, describing it as “breached,” “over,” and “void.” The AUSA also addressed contradictions between Truman‘s testimony and, echoing the Government‘s cross-examination, asserted that Truman‘s main argument was that key Government witnesses were “mistaken or lying.”
In its summation, the defense emphasized that the Government had not asked Dailey to identify Truman in the courtroom, noting that “[t]hese two [AUSAs] didn‘t just graduate from law school,” and arguing that “[i]f she could have [identified Truman], she would have. She couldn‘t, and she didn‘t.” In the Government‘s rebuttal summation, one of the AUSAs addressed his failure to ask Carrie Dailey to identify Truman in the courtroom: “Try as we can to be perfect and to remember everything, we can‘t. And I should have asked some witnesses some questions, and I didn‘t. And with Carrie Dailey, I didn‘t. ... I should have, and I didn‘t. I apologize to you for that. But nobody is perfect.” The Government also repeated its argument that, in оrder to believe Truman‘s testimony, the jury would have to believe that several of its witnesses had lied. The Government further described it as “telling” that Truman believed most police officers to be liars. Truman did not object to any of the Government‘s statements during summation.
F. Verdict and Post-Trial Proceedings
The jury deliberated for less than a day before convicting Truman on all four of the remaining counts. Truman renewed his motion for a judgment of acquittal under
The District Court also conditionally granted Truman‘s motion for a new trial under
The Government appealed.
I. Rule 29 Judgment of Acquittal
A. Standard of Review
We have explained that on a motion for a judgment of acquittal, a district court must determine the sufficienсy of the evidence supporting the guilty verdict,
B. Double Jeopardy
As an initial matter, Truman argues that the Double Jeopardy Clause deprives us of jurisdiction to review the District Court‘s judgment of acquittal because Truman mоved for the judgment before the jury‘s verdict. But the Double Jeopardy Clause does not bar our review of the District Court‘s judgment of acquittal because the District Court granted the motion after the jury‘s verdict. United States v. Autuori, 212 F.3d 105, 114 (2d Cir.2000) (“The Double Jeopardy Clause presents no bar to the review of an acquittal based upon the insufficiency of the evidence and granted following a jury verdict of guilty.“); see United States v. Hundley, 858 F.2d 58, 66 n. 7 (2d Cir.1988).2
C. Truman, Jr.‘s Credibility
The District Court determined that Truman, Jr.‘s testimony in both the federal and state court trials was incredible as a matter of law based on a number of factors. It cited his role as an accomplice testifying under a cooperation agreement, his breach of that agreement and the Government‘s “effective[ ] repudiat[ion]” of his testimony, his criminal record and history of alcohol and drug abuse, his аttorney‘s assertion that he had perjured himself in
Although these factors surely impaired Truman, Jr.‘s credibility, none of them rendered his testimony incredible as a matter of law. Assessing his credibility was the province of a jury properly instructed, as was the case here, on those aspects of his testimony that might bear on the question. See United States v. O‘Connor, 650 F.3d 839, 855 (2d Cir.2011) (“It is the province of the jury and not of the court to determine whether a witness who may have been inaccurate, contradictory and even untruthful in somе respects was nonetheless entirely credible in the essentials of his testimony.” (quotation marks omitted)); United States v. Santana, 503 F.2d 710, 716 (2d Cir.1974). 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, are factors relevant to the weight the jury should accord to the evidence, and do not on this record justify the grant of a judgment of acquittal.” Coté, 544 F.3d at 100.
D. Other Evidence of Guilt
Even aside from Truman, Jr.‘s testimony, the remaining circumstantial and direct evidence of Truman‘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. First, Truman, Jr.‘s signed confession to police direсtly implicated Truman.3 Second, several witnesses established Truman‘s financial motive to destroy the Liberty Street building. Third, the evidence showed that the timing of the fire on November 12, 2006, was in Truman‘s financial interest, given the looming payment deadlines and expiration of JMM‘s insurance policy. Fourth, Truman‘s conversation with Fleming and Ashley Shaughnessy‘s testimony strongly suggested that Truman had facilitated the arson and was attempting to conceal his participation.
The evidence adduced in the Government‘s case-in-chief of Truman‘s participation in the arson, which the District Court recognized was an “essential element” of the other charges against him, was sufficient to support the jury‘s guilty verdict on Counts One through Four, each of which rested upon a finding that Truman had aided and abetted arson. Because that evidence, without Truman, Jr.‘s testimony, was sufficient and, in any event, Truman, Jr.‘s testimony was not incredible
II. New Trial
The Government also appeals from the District Court‘s conditional grant of a new trial under
When considering a motion for a new trial under
The District Court conditionally granted a new trial based on its view that (1) Truman, Jr.‘s testimony was patently incredible, (2) Truman, Jr.‘s state court testimony was improperly admitted into evidence, and (3) the Government had engaged in prosecutorial misconduct during its cross-examination of Truman and in summation. We address each of these issues in turn.
A. Truman, Jr.‘s Credibility
Having already concluded that the District Court erred when it determined that Truman, Jr.‘s state court testimony was incredible as a matter of law, we also conclude that the District Court exceeded its discretion when it granted a new trial on that basis. See Gonzalez, 647 F.3d at 57. Even aside from Truman, Jr.‘s testimony, we cannot say that the jury probably would have acquitted Truman. In particular, we note Carrie Dailey‘s rebuttal testimony, which the District Court disregarded because Dailey failed immediately to notify the police about Truman and because she was not asked tо identify Truman at trial. Truman, 762 F.Supp.2d at 456-57.4 These facts do not, standing alone, demonstrate a lack of credibility, particularly in the absence of any apparent motive to lie or any indication that Dailey would have been unable to identify Truman if asked to do so. The jury was entitled to credit Dailey‘s testimony, and the District Court‘s decision to grant a new trial despite that strong evidence of guilt reflected a decision outside the
B. Admissibility
The District Court also concluded that a new trial was warranted because Truman, Jr.‘s state court testimony was inadmissible hearsay. Truman, 762 F.Supp.2d at 456. We disagree. A statement is nonhearsay if “[t]he declarant [(1)] testifies” at trial, “[ (2) ] is subject to cross-examination about a prior statemеnt, and [(3)] the statement is inconsistent with the declarant‘s testimony and [(4)] was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition.”
Truman, Jr. answered every question posed to him in cross-examination about his prior state court testimony, and therefore he was “subject to cross-examination” within the meaning of
Besides
C. Prosecutorial Misconduct
Finally, the District Court conditionally ordered a new trial based on its view that the Government engaged in prosecutorial misconduct in cross-examining Truman and in summation and that the misconduct was not harmless. Although we agree that the Government engaged in some misconduct (a point the Government wisely conceded on appeal), we conclude that the misconduct did not deprive Truman of a fair trial and that a new trial was unwarranted given the strong evidence of guilt.
We turn first to the Government‘s cross-examination of Truman, during which it asked him to opine on the credibility of lay and law enforcement witnesses. “As a matter of law, the credibility of witnesses is exclusively for the determination by the jury, and witnesses may not opine as to the credibility of the testimony of other witnesses at the trial.” United States v. Forrester, 60 F.3d 52, 63 (2d Cir.1995) (alteration and quotation marks omitted). We have accordingly held that a prosecutor‘s repeated requests that a witness opine on whether his fellow witnesses were “mistaken or lying” may require the grant of a new trial. United States v. Richter, 826 F.2d 206, 208-09 (2d Cir.1987).
Here, the Government improperly asked Truman whether lay witnesses for the Government were “mistaken or lying,” and twice asked him if his son was “lying.” Similarly, in summation, the Government referred to deposition testimony in which Truman said that all policе officers were “liars“—testimony that may have been properly admitted for impeachment purposes—to improperly suggest that Truman‘s personal views of the police rendered his testimony less credible. In this regard, we find troubling the Government‘s remark that it was “telling” that Truman said “cops are the biggest liars on the planet,” and its statement, coming on the heels of references to Truman‘s testimony that certain lay witnesses were “mistaken or lying,” that a police officer who contradicted Truman‘s testimony “must have been lying when he said expressly, clearly, nope, I asked him where he had been that night.” It is generally acceptable to argue to the jury that to believе one witness means to disbelieve other witnesses, United States v. Shareef, 190 F.3d 71, 79 (2d Cir.1999); see also United States v. Durrani, 835 F.2d 410, 424 (2d Cir.1987), provided that in doing so a party does not mischaracterize trial evidence or rely on a witness‘s evaluation of the credibility of another, see United States v. Scanio, 900 F.2d 485, 493 (2d Cir.1990), abrogated on other grounds by Ratzlaf v. United States, 510 U.S. 135, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994). Both of the Government‘s statements above, however, suggested, incorrectly, that Truman had accused law enforcement officers of lying in this case. See United States v. Universita, 298 F.2d 365, 367 (2d Cir.1962) (“The prosecution has a special duty not to mislead; the government should, of course, never make affirmative
The Government also misstepped when it asserted that Truman, Jr.‘s cooperation agreement had been voided because he refused to testify directly against his father. In effect, the cooperation agreement provided that only the Government could elect to void it, but there was no evidence that the Government had exercised its right to do so. Accordingly, it was improper for the Government to inform the jury of this fact in summation.
In determining whether the Government‘s misconduct so substantially prejudiced Truman as to deprive him of a fair trial, we consider “[ (1) ] the severity of the misconduct, [ (2) ] the measures adopted to cure the misconduct, and [ (3) ] the certainty of conviction absent the misconduct.” United States v. Elias, 285 F.3d 183, 190 (2d Cir.2002). Here, the most significant misconduct—the Government‘s suggestion that Truman had called a police officer a liar—was irrelevant to the central issue of Trumаn, Jr.‘s credibility and unrelated to the other compelling evidence of guilt admitted at trial. Given the strong likelihood of conviction based on the evidence adduced at trial, we conclude that the Government‘s misconduct did not “cause the defendant substantial prejudice by so infecting the trial with unfairness as to make the resulting conviction a denial of due process,” United States v. Parkes, 497 F.3d 220, 233 (2d Cir.2007) (quoting Elias, 285 F.3d at 190), and was, when viewed “in the context of the entire trial,” not “so severe and significant” as to deprive Truman of “a fair trial,” United States v. Farhane, 634 F.3d 127, 167 (2d Cir.2011) (quotation marks omitted). We therefore conclude that the District Court exceeded its discretion in granting a new trial on this basis.
The AUSA‘s comments regarding Truman, Jr.‘s breach of the cooperation agreement concerned a discretionary decision that could have been freely made by the Government. Because the Government‘s decision to void the agreement had little or no connection to Truman‘s guilt and, if anything, was favorable to Truman, its misleading statements on this subject, while improper, can hardly be said to have substantially prejudiced the defendant.
Lastly, Truman also contends that the AUSA in rebuttal improperly stated that he “should have asked” Dailey to identify Truman but neglected to do so, and that he was not “perfect.” The District Court concluded that these comments constituted “improper vouching” of Dailey‘s testimony. Truman, 762 F.Supp.2d at 463. Again, we disagree. In context, the remarks did not express the AUSA‘s “personal belief or opinion as to the truth or falsity” of Dailey‘s testimony. United States v. Carr, 424 F.3d 213, 227 (2d Cir.2005). Instead, they appropriately parried an attack by defense counsel on the Government‘s candor.
CONCLUSION
For the foregoing reasons, we VACATE the District Court‘s judgment of acquittal under