Archive | Rule 33

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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Monday, March 28th, 2016

Summary Order Affirming Denial of Motion for New Trial

The Second Circuit today issued a summary order affirming the denial of a motion for a new trial.  Unites States v. Jiau, 15-366.  On a motion for a new trial based on newly discovered evidence, the defendant bears the burden of establishing “(1) the evidence is genuinely ‘new,’ i.e., it was discovered after trial; (2) the evidence could not, with the exercise of due diligence, have been discovered before or during trial; and (3) the evidence is ‘so material and noncumulative that its admission “would probably lead to an acquittal.”‘”  Jiau, at 2.  The Court affirmed Judge Rakoff’s denial of a motion for a new trial because the documents submitted in support of the motion were not “evidence” under Rule 33 and, in any case, were not “newly discovered.”  Id. at 3. has coverage of the case here.…

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Categories: newly discovered, 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, May 15th, 2011

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 …

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Categories: Rule 33, Uncategorized

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Saturday, October 30th, 2010

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 …

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Categories: ineffective assistance of counsel, Rule 33, Uncategorized

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Sunday, May 3rd, 2009

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…

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Categories: child pornography, double counting, mandatory minimum, Rule 33, Uncategorized, waiver

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Saturday, March 14th, 2009

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 …

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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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Tuesday, September 25th, 2007


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 …

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Categories: newly available, newly discovered, Rule 33, severance, Uncategorized

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