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United States v. Murtaugh

June 19, 2009

UNITED STATES OF AMERICA
v.
RICHARD R. MURTAUGH, JEWELL (KIDDER) GILBERT, AND KAYE MASON, DEFENDANTS.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Currently before the Court are Defendants Gilbert's and Mason's motions for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure and Defendants Murtaugh's, Gilbert's and Mason's motions for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure.

II. BACKGROUND

The Court conducted an eight-day jury trial in this matter from January 29, 2009, to February 10, 2009. At the conclusion of the parties' proof, the jury found Defendant Murtaugh guilty of six counts of filing false federal income tax returns, 26 U.S.C. § 7206(1), and tax evasion, 26 U.S.C. § 7201, with respect to his individual and Subchapter S corporation income tax returns for the years 2003 (Counts Six, Seven, and Eight) and 2004 (Counts Nine, Ten, and Eleven). The jury acquitted Defendant Murtaugh of six counts of filing false federal income tax returns, 26 U.S.C. § 7206(1), and tax evasion, 26 U.S.C. § 7201, with respect to his individual and Subchapter S corporation income tax returns for the years 2001 (Counts One, Two, and Three) and 2002 (Counts Four, Five, and Six). The jury also found Defendant Gilbert guilty of giving false testimony before the grand jury under oath knowing that her testimony was false as to a material matter (Count 13) and found Defendant Mason guilty of giving false testimony before the grand jury under oath knowing that her testimony was false as to a material matter (Count 14).

III. DISCUSSION

A. Standards of Review

1. Judgment of Acquittal

Rule 29 of the Federal Rules of Criminal Procedure provides that "the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a). In deciding a defendant's motion for a judgment of acquittal, the court must determine "'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" United States v. Espaillet, 380 F.3d 713, 718 (2d Cir. 2004) (quotation omitted). This requires the court to consider the evidence in its entirety, not piecemeal. See United States v. Cassese, 428 F.3d 92, 98-99 (2d Cir. 2005) (citation omitted).

2. New Trial

Rule 33 of the Federal Rules of Criminal Procedure provides that "the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). Only in exceptional circumstances may a court set aside a jury verdict; for instance, where testimony is "patently incredible or defies physical realities...." United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992) (citations omitted). "Generally, the trial court has broader discretion to grant a new trial under Rule 33 than to grant a motion for acquittal under Rule 29, but it nonetheless must exercise the Rule 33 authority 'sparingly' and in 'the most extraordinary circumstances.'" United States v. Sacco, No. 08-CR-77, 2008 WL 2915430, *1 (N.D.N.Y. July 24, 2008) (quoting Sanchez, 969 F.2d at 1414). Finally, in exercising its discretion, "the court may weigh the evidence and credibility of witnesses.... [However,] the court may not wholly usurp the jury's role: 'It is only where exceptional circumstances can be demonstrated that the trial judge may intrude upon the jury function of credibility assessment.'" United States v. Cote, 544 F.3d 88, 101 (2d Cir. 2008) (internal citation and quotation omitted).

B. Motions for Judgment of Acquittal

To prove the perjury charges against Defendant Gilbert and Defendant Mason, the Government had to establish each of the following elements beyond a reasonable doubt: (1) that they gave their testimony before the grand jury while they were under oath; (2) that their testimony, as set forth in the Indictment, was false; (3) that the matters about which they allegedly gave false testimony were material to the issues under inquiry by the grand jury; and (4) that they gave such false testimony knowingly.

"'A perjury conviction must rest on the utterance by the accused of a false statement; it may not stand on a particular interpretation that a questioner places upon an answer.'" United States v. Fish, No. 05-CR-228A, 2006 WL 3746691, *6 (W.D.N.Y. May 2, 2006) (quoting United States v. Lighte, 782 F.2d 367, 375 (2d Cir. 1986)). Therefore, "'an individual cannot be convicted of perjury for an answer given under oath that is literally true, even if it is unresponsive and intended to mislead.'" Id. (quoting United States v. Carey, 152 F. Supp. 2d 415, 423-24 (S.D.N.Y. 2001)). Furthermore, "'[w]hether an answer is literally true raises a factual question to be resolved by a jury.'" Id. at *7 (quoting Lighte, 782 F.2d at 373). However, in limited circumstances, "the court may make this determination... where 'there can be no doubt that [the defendant's] answers were literally true under any conceivable interpretation of the questions.'" United States v. Carey, 152 F. Supp. 2d 415, 424 (S.D.N.Y. 2001) (quotation omitted).

Moreover, "[p]erjury requires that a witness believe that the testimony [s]he gives is false. Thus, whether the witness believes that an answer is true or false generally turns on the declarant's understanding of the question. A jury is best equipped to determine the meaning that a defendant assigns to a specific question." United States v. Lighte, 782 F.2d 367, 372 (2d Cir. 1986) (citations omitted). "How a defendant interprets a question obviously is not viewed subjectively, as that would compel the jury to accept as conclusive the meaning a defendant alleges [s]he gave to the stated question, and no perjury prosecutions would ever result in convictions." Id. (citation omitted). Rather, the test is objective -- "[t]he jury should determine whether the question -- as the declarant must have understood it, giving it a reasonable reading -- was falsely answered." Id. As the Lighte court explained, "[i]f the jury has been properly charged that it cannot convict the declarant if [s]he made a false statement by mistake or inadvertence, and that an answer is knowingly false 'only if it was untrue when made and known to be untrue by the individual making it,' then a reviewing court will not disturb the jury's determination." Id. at 372-73 (quotation omitted). Furthermore, when deciding what meaning a declarant gave to a question, "the jury need not examine isolated segments of the question and answer exchange, but may view it within the context of the entire line of questioning.... The jury may also consider extrinsic evidence that demonstrates how a declarant interpreted a question...." Id. at 373 (internal citations omitted).

Finally, "'[w]hen a line of questioning is so vague as to be fundamentally ambiguous, the answers associated with the questions posed may be insufficient as a matter of law to support the perjury conviction.'" Fish, 2006 WL 3746691, at *7 (quoting Lighte, 782 F.2d at 375). "'A question is fundamentally ambiguous when it is not a phrase with a meaning about which [people] of ordinary intellect could agree, nor one which could be used with mutual understanding by a questioner and answerer unless it were defined at the time it were sought and offered as testimony.'" Id. (quotation omitted). However, "[a]mbiguity in questioning may not be established by isolating a statement from context to give it a meaning entirely different from that which it has when the testimony is considered as a whole.... In other words, the fact that the words used in the questions have different meanings in different situations does not make them fundamentally ambiguous...." Id. (internal citations omitted).

1. Defendant Gilbert's Motion

As noted, Defendant Gilbert was charged and convicted of willfully giving false testimony before the grand jury under oath knowing that her testimony was false as to a material matter. The Indictment alleged that, at the time that Defendant Gilbert testified before the grand jury, the grand jury was investigating whether Defendant Murtaugh had committed tax evasion and tax fraud. Furthermore, the Indictment alleged that "[i]t was material to that investigation whether, in 2001 through 2004 [D]efendant Murtaugh had personally deposited rental checks from Renaissance Minerals and Great Lakes Cheese of New York, Inc. -- both of which were tenants of Murtaugh Recycling on property in Pierrepont Manor, New York -- into his personal money market bank account at a bank in Cicero, New York" and that Defendant Gilbert knowingly made materially false statements regarding this issue.

Before the grand jury, Defendant Gilbert testified, in relevant part, as follows:

Q: Was there a company called Renaissance Minerals who paid rent to the business back in 2001 to 2004?

A: Yes.

Q: Was there a company called Great Lakes Cheese?

A: Yes.

Q: Did both of those businesses rent property at Pierrepont Manor and pay rent checks to the Murtaugh Recycling Business?

A: Yes.

Q: What sort of things did you do in connection with these businesses? Could you describe them for us?

A: They would send the checks, and I would ...


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