Federal Defenders of New York Second Circuit Blog

Rule 33

Circuit affirms denial of Rule 33 motion on Brady grounds, finding lack of prejudice, but expresses “skepticism” that DOJ’s Narcotic and Dangerous Drug Section was not “part of the prosecution team” in “unusual case”

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When multiple law enforcement agencies or subdivisions are involved in a case, who is “part of the prosecution team” for Brady purposes? In United States v. Hunter, Nos. 18-3074, 18-3489, & 19-790 (2d Cir. Apr. 20, 2022) (C.J.J. Cabranes, Raggi, and Korman (sitting by designation)), the Circuit affirmed the district court’s denial of Rule 33 motions … Read more

Did the Second Circuit Just Read Rule 33 Out of Existence?

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Federal Rule of Criminal Procedure 33(a) authorizes a judge to “grant a new trial if the interest of justice so requires.”  This rule has traditionally been understood to “confer[] broad discretion upon a trial court to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice.”  United States v. … Read more

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

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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 … Read more

Truman/False Man

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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 … Read more

Body of Evidence

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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, … Read more

Deal Or No Deal?

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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 … Read more

Porn At Home

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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 … Read more

Rehearing Loss

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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 … Read more

Jailhouse Rock

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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 … Read more