Archive | Rule 29

Monday, June 12th, 2017

Multiple Conspiracies, Reasonable Foreseeability, and Government Misconduct in Closing, Oh My… A Clean Sweep for the Defendant as Judge Oetken Grants Rule 29 and Rule 33 Motions in a Noteworthy Opinion

John Pauling contested two counts at trial in an eight-count indictment relating to various drug and gun charges. First, he challenged a 924c charge (possessing a gun in furtherance of a drug conspiracy) and was acquitted by the jury.  Second, he challenged the weight of the drugs in the drug conspiracy count that would have triggered a five-year mandatory minimum.  The jury convicted him on that count.  Judge Oetken now vacates that conviction, leaving Pauling with no mandatory minimum.  A copy of the opinion is attached here.

In an opinion worth reading for its explanation of the distinction between a single conspiracy and multiple conspiracies, Judge Oetken in referencing the common wheel analogy, found that the government failed to show there was “a ‘rim’ around the ‘spokes,’ such that the spokes became coconspiractors.” At trial, the Court gave a multiple conspiracies instruction over the government’s objection, finding the government’s …

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Categories: conspiracy, Rule 29, Rule 33

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Friday, August 24th, 2012

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 …

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Categories: credibility, Rule 29, Rule 33, Uncategorized

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Sunday, September 28th, 2008

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.


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 …

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Categories: Rule 29, Rule 33, Uncategorized

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