## Facts

- Jeffrey E. Truman, Sr. co-owned a vacant commercial building in Oneida, New York, purchased in November 2005 for $175,000 through JMM Properties, LLC.
- The building was insured for up to $4.25 million in fire-related losses under a policy expiring in November 2006; Truman was told the land could be worth as much or more without the building.
- After a minor accidental fire in January 2006, Truman told an employee that if the building caught fire again the employee should leave because it was worth more to Truman “down” than standing.
- The building later burned in a fire investigators concluded was arson.
- Truman’s son (Truman Jr.) was convicted in state court of setting the fire and later cooperated with federal authorities.
- In a prior state-court proceeding involving Truman Sr., Truman Jr. testified under oath that his father asked him to set the fire; that state case was later dismissed.
- At the federal trial, Truman Jr. testified but refused to answer certain questions concerning his prior accusations, and the government offered his prior state-court testimony as substantive evidence.
- The district court admitted the prior testimony as nonhearsay under Federal Rule of Evidence 801(d)(1)(A); the jury convicted Truman on arson-related counts.
- Post-verdict, the district court granted Truman’s Rule 29 motion for judgment of acquittal and conditionally granted a new trial under Rules 29(d) and 33(a), finding Truman Jr. “incredible as a matter of law” and concluding the prior testimony was improperly admitted.
- The government appealed both the acquittal and the conditional new-trial order.

## Issues

1. Whether the evidence was insufficient because Truman Jr.’s testimony was “incredible as a matter of law,” requiring judgment of acquittal under Rule 29.
2. Whether Truman Jr.’s prior sworn state-court testimony was properly admitted as nonhearsay under Federal Rule of Evidence 801(d)(1)(A) when he testified at trial but refused to answer certain questions.
3. Whether improper government questioning and summation caused substantial prejudice requiring a new trial under Rule 33(a).

## Decision

- The Second Circuit vacated the judgment of acquittal and the conditional grant of a new trial.
- The court held Truman Jr.’s testimony was not “incredible as a matter of law”; credibility disputes and refusals to answer generally present jury questions.
- The court held the prior state-court testimony was properly admitted as substantive evidence under Rule 801(d)(1)(A) because the witness testified at the federal trial and was subject to cross-examination, the prior testimony was under oath, and the refusal to answer rendered the trial testimony “inconsistent.”
- The court held the government’s improper cross-examination and summation did not cause substantial prejudice warranting a new trial.
- The case was remanded for entry of judgment consistent with the jury’s guilty verdict and for sentencing.

## Legal Principles

- A Rule 29 sufficiency challenge is evaluated in the light most favorable to the prosecution; a verdict must stand if any rational juror could find the elements beyond a reasonable doubt.
- Testimony is “incredible as a matter of law” only in the rare circumstance where it is physically impossible or unbelievable on its face; ordinary inconsistencies, motives to lie, or selective refusals to answer are for the jury.
- Under Federal Rule of Evidence 801(d)(1)(A), a prior statement is admissible as nonhearsay substantive evidence when the declarant testifies at trial and is subject to cross-examination about the statement, the statement is inconsistent with trial testimony (including inconsistency shown by refusal to answer), and the statement was given under oath in a prior proceeding with an opportunity for cross-examination.
- Prosecutorial misconduct warrants a new trial only if it results in substantial prejudice that renders the trial fundamentally unfair, assessed in context and in light of the overall strength of the case and any curative instructions.

## Conclusion

The Second Circuit reinstated the jury’s guilty verdict, holding that the district court improperly displaced the jury’s credibility role, that the son’s prior sworn testimony was admissible under Rule 801(d)(1)(A) despite his refusals at trial, and that the government’s missteps at trial did not justify Rule 33 relief.


United States v. Truman, 688 F.3d 129 (2d Cir. 2012)