UNITED STATES OF AMERICA v. ALPHONSO PAYNE
19-CR-170-A
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
September 19, 2025
Case 1:19-cr-00170-RJA-MJR Document 1052 Filed 09/19/25 Page 1 of 49
On June 20, 2025, after about five weeks of trial, a jury returned a verdict of guilty (Dkt. No. 997) on all ten counts of the redacted indictment (Dkt. No. 977), finding Defendant Alphonso Payne guilty of conspiracy to possess with intent to distribute, and to distribute, various controlled substances, in violation of
After the Government rested at trial, Defendant moved for a judgment of acquittal notwithstanding the jury‘s verdict under Federal Rule of Criminal Procedure 29, which the Court denied from the bench, except for striking marijuana from Count 1 such that the only objects of the charged drug conspiracy as submitted to the jury were cocaine, cocaine base, and heroin. On August 11, 2025, Defendant filed post-trial motions (Dkt. No. 1035),1 renewing his Rule 29 motion and alternatively moving
The defense complains that Defendant‘s post-trial motions—comprising almost 50 pages of argument and unaccompanied by any request to file an oversized brief as required by the WDNY‘s local rules, see
The defense further takes issue with the Court‘s order requiring the filing of post-trial motions “within just 13 business days” of the Court‘s July 23, 2025, Decision and Order, that is, by no later than August 11, 2025, rather than affording the defense a 90-day turnaround after the entire trial transcript had been ordered and filed as the defense requested on the date of the jury verdict. “Generally, the Federal Rules of Criminal Procedure require a defendant to file either a Rule 29 or a Rule 33 motion within 14 days after the verdict or finding of guilty where, as here, the motion is not based on newly discovered evidence.” United States v. Knighton, 12-CR-56S, 2015 U.S. Dist. LEXIS 155049, *1 (W.D.N.Y. Nov. 6, 2015), citing
BACKGROUND
The extensive procedural history and the facts in this case have been discussed in this Court‘s prior decisions. Familiarity with those decisions, as well as the evidence presented at trial, is presumed. With respect to Defendant‘s Rule 29 motion, the following is a summary of the evidence,2 viewed “in the light most
On September 26, 2018, Jalovick entered into a confidential informant agreement with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF“), by which he agreed to provide information concerning Gregory Hay, a suspected firearms trafficker and controlled substances distributor, to ATF Special Agent Paul Brostko and Buffalo Police Department (“BPD“) Detective and ATF Task Force Officer Michael Acquino. After meeting with investigators, Jalovick provided in camera testimony to an Erie County Judge, supplying information to secure multiple search warrants, including for Hay‘s residence at 9 Dignity Lane in Buffalo, New York. On May 6, 2019, Jalovick contacted Hay and confirmed Hay was out-of-town in Olean, New York, as the BPD and ATF were preparing to execute the search warrants the next day.
On May 7, 2019, a search warrant was executed at Hay‘s residence and ammunition and weapons, including two Glock handguns and an AR-15 short-barreled rifle, were seized. Hay was arrested later that day in Olean and charged with New York State felonies. Agent Brostko investigated potential federal charges against Hay, including felon in possession of firearms and possession of a short-barreled rifle, and Officer Acquino told Hay during Hay‘s post-arrest interview at BPD headquarters that Hay‘s case could “go federal” because he was a convicted felon, meaning he could be facing greater penalties. A second search warrant was also executed on May 7, 2019, at 44 Sidney Street in Buffalo, a residence associated
Both Hay and Woodard testified at Defendant‘s trial. Hay, a co-defendant who was also charged in the multi-drug conspiracy and with shooting and killing Jalovick, testified pursuant to a cooperation agreement. Hay and Woodard explained they were angry that they were facing charges based on the search warrants that were executed at their houses. Only a few people could have provided information that led to the search of Hay‘s residence because not many individuals knew where he lived. After narrowing down who could have informed on them, between May 7, 2019, and July 1, 2019, Woodard and Hay, together with Defendant, who was close with Hay and sold drugs with Hay, had multiple discussions about killing Jalovick, who they had determined was likely working for law enforcement, calling him a “rat.” While Defendant was not present for all such conversations, he was around for some of them. They made two unsuccessful attempts to kill Jalovick in that timeframe, prior to the events of July 1, 2019.
Hay also testified that he stored firearms, including the eventual murder weapons, at Defendant‘s house after the search on May 7, 2019. Additionally, Defendant purchased .45-caliber, hollow-point ammunition, which he and Hay used on July 1, 2019, to kill Jalovick in the backyard of 87 Freund Street, Buffalo, New York. Firearms examiner Jennifer Coombs testified that five of the bullets she examined from the crime scene at the CPS laboratory were from the .45-caliber class of bullets, with similar rifling characteristics to semi-automatic Glock pistols. The five bullets had red polymer tips, which are used to create a larger hole in the
In the early morning of July 1, 2019, Hay searched “shooting a judge pistol” on YouTube and watched several videos demonstrating how to shoot a Taurus Judge.3 About one hour prior to Jalovick‘s murder, according to Hay‘s testimony, Hay and Defendant went to Defendant‘s residence on Langfield in Buffalo, where Defendant lived with relatives, to retrieve the murder weapons. Defendant grabbed a .45 Glock semi-automatic pistol, and Hay grabbed a Taurus Judge revolver, before the two got into Hay‘s black Impala and drove to 87 Freund Street.
The murder occurred at 6:04 p.m. in the backyard of 87 Freund Street. Hay and Defendant showed off their weapons after they arrived. At approximately 5:30 p.m., Hay lured Jalovick into the backyard by calling him on a “burner phone,” and when Jalovick arrived driving a red Chevy Cruze, Hay provided him $100 to purchase a bottle of D‘usse liquor to drink during the dice game that was taking place in the backyard. Jalovick and his girlfriend then went to Ideal Wine & Liquor on East Delevan Avenue, not far from 87 Freund Street, and purchased the D‘usse.4
The Government called several witnesses who were present in the backyard at the time Jalovick was murdered, including Raejah Blackwell, Daeshawn Stevenson, and Eric Brooks. Blackwell was close enough to Jalovick when he was shot for blood to splatter the back of her t-shirt and blue jeans. While there were some differences between the eyewitnesses’ testimony concerning details of Jalovick‘s murder, all three testified at trial that Defendant shot Jalovick.
Following the shooting, Hay and Defendant fled the scene in Hay‘s Impala, and Hay could tell that Defendant “shot the whole clip.” They first hurried back to
Dr. Alexandra Hart, the Medical Examiner, who performed a full autopsy of Jalovick‘s body on July 2, 2019, testified that the cause of death was multiple gunshot wounds and the manner of death was homicide. She also testified that it was one of the most complex autopsies she had done in her career, as there were a couple-dozen gunshot wounds to analyze. About 18 projectiles injured Jalovick, although some projectiles were associated with both entrance and exit wounds.7
In mid-August of 2019, ATF Special Agent Adam Zeithammel, who was assigned to ATF‘s Pensacola field office in Florida, was contacted by Agent Brostko to assist him in locating Defendant, who had an active warrant out of Buffalo for a drug-related offense. They ultimately obtained Defendant‘s mother‘s address in Pensacola, and arrested Defendant at that address on August 20, 2019. Defendant
During Defendant‘s video- and audio-recorded custodial interview, he first denied being at 87 Freund Street at any point on July 1, 2019. He claimed that he was instead at his cousin‘s house at 366 Langfield. Shortly after a break in questioning, Defendant admitted to law enforcement that he had lied about his location and instead stated he was in the backyard minutes before Jalovick was murdered. Defendant claimed that he received a phone call from his child‘s mother before the shooting and walked to the front of 87 Freund Street, where Hay‘s car was parked, to speak with her privately over the phone. While sitting in the car, Defendant heard gunshots and observed everyone running. According to Defendant, Hay then arrived at the car and the two of them drove off. Defendant asked Hay what had happened. Hay told him to “shut up,” and dropped Defendant off at 366 Langfield. Defendant‘s mother called him later about the killing and that is when he went onto Facebook to learn what had occurred.
In addition to Defendant‘s conflicting explanations to law enforcement about where he was at the time of the murder, the Government called as a trial witness Keshone Powers, who first met Defendant at the Santa Rosa County Jail (a federal detention center) when they were housed there together for about 30 days in August of 2019.
Specifically, Powers testified that Defendant confided in him about a confidential informant who had sold Defendant a gram of cocaine. The confidential informant was Jalovick, although Defendant never informed Powers of the
Powers also testified that Defendant came up with an alibi, as he was aware from his post-arrest interview that others were already saying he was in the backyard. Defendant asked Powers to contact from jail the mother of Defendant‘s child, La‘Trise Williams, and to convey to her the substance of a handwritten note that Defendant gave to Powers. That note, which was entered into evidence at trial,8 indicated, inter alia, “tell my Bm [baby mama] to Make sure she say [sic] we talked on July 1st and. [sic]“). Powers did not actually end up contacting Williams, but he held onto the note and spoke with his attorney about it.
In addition to the foregoing evidence concerning the murder, there was further corroborating evidence at trial in the form of physical evidence from the crime scene; phone records for Hay, Defendant, and Jalovick; excerpts from Facebook records for Hay, Defendant, and Jalovick; Google records associated with Defendant‘s, Hay‘s, and Jalovick‘s girlfriend‘s accounts; license-plate reader information for Hay‘s Chevy Impala; surveillance footage from Buffalo City cameras; historical cell site and location data information and analysis; and excerpts from a Cellebrite report for Defendant‘s iPhone. The Government also presented evidence to support the drug conspiracy and firearms possession charges, which the Court need not outline here as those convictions are uncontested in the instant motion.
Defendant argues the Government did not prove Counts 2 and 3, and 5 through 8, by legally sufficient evidence, and the guilty verdict was manifestly unjust.
I. Defendant‘s Rule 29 Motion
“Rule 29[, or a motion for a judgment of acquittal,] permits a trial court to set aside a jury‘s guilty verdict if it determines the evidence was ‘insufficient to sustain a conviction.‘” United States v. Greene, 858 F. App‘x 16, 17 (2d Cir. 2021) (summary order), quoting
While Defendant moves for a judgment of acquittal with respect to multiple counts of conviction, he does not specifically challenge the jury‘s guilty verdict on
A. Counts 2 and 3: Mere Presence
Defendant argues that the Government failed to present legally sufficient evidence to convict him on substantive Counts 2 and 3, as the Government‘s proof only established his mere presence at the scene of two controlled buys from Jalovick, which took place on April 23 and April 29, 2019, respectively.
Counts 2 and 3 each required the Government to prove that Defendant “distribute[d]...or possess[ed] with intent to...distribute...a controlled substance,” that is, cocaine, on the dates in question.
The two buys of small amounts of cocaine from Jalovick, who in April of 2019 was working as a confidential informant, were orchestrated by law enforcement to uncover the address of Hay, their target. Hay testified at trial that he believed he was the individual who conducted both sales of cocaine with Jalovick: he alone communicated with Jalovick about the sales, set the terms of their agreement, and handled the cocaine and handed it to Jalovick. Jalovick, however, made statements on May 2, 2019, which were admitted at trial,10 to the effect that Defendant was
Regardless of Hay‘s testimony concerning the two charged transactions, however, Hay testified extensively about his drug dealing activities with Defendant, and Hay‘s testimony about their drug trafficking activities together was corroborated by text messages, which confirmed the same. Furthermore, testimony from other coconspirators established Defendant‘s involvement in such conspiracy. Indeed, the Court gave the jury a Pinkerton charge on Counts 2 and 3, only, from which the jury could find Defendant guilty on a Pinkerton theory of liability. Pinkerton provides that “a defendant who does not directly commit a substantive offense may nevertheless be liable if the commission of the offense by a co-conspirator in furtherance of the conspiracy was reasonably foreseeable to the defendant as a consequence of their criminal agreement.” United States v. Parkes, 497 F.3d 220, 232 (2d Cir. 2007) (internal citations omitted). “Under the Pinkerton doctrine, ‘a jury [may] find a
The jury convicted Defendant of the multidrug conspiracy charged in Count 1, which included cocaine and spanned in or before early 2016 and continued to on or about August 28, 2019. The Court concludes the jury could have readily found under Pinkerton that Defendant was responsible for the drug sales charged in Counts 2 and 3, because they were committed during the course of, and in furtherance of, Hay‘s and Defendant‘s drug conspiracy—and evidence presented of that conspiracy was strong. See, e.g., United States v. Howard, Nos. 98-1430, 98-1472, 98-1534, 98-1618, 2000 U.S. App. LEXIS 13984, *17-18 (2d Cir. June 15, 2000) (summary order) (“[F]or some of the substantive offenses, there was in fact no evidence that the accused had directly committed the offense, apart from an aiding and abetting theory. For example, there was no evidence that [one defendant] actually executed the sales at issue in [counts charging possession and distribution of crack cocaine]...Under these circumstances, the Pinkerton charge was appropriate.“); United States v. Mohamed, 18-CR-00603 (ARR), 2020 U.S. Dist. LEXIS 153331, *26 (E.D.N.Y. Aug. 24, 2020) (internal citations omitted) (“A Pinkerton instruction is appropriate...particularly when there is less than overwhelming evidence that the defendant personally committed the substantive
B. Counts 5 through 8: Premeditation Element
Defendant next challenges the jury‘s finding that he acted with premeditation when he killed Jalovick, which subjects him to sentencing enhancements on Counts 5 through 8.12 See
“[T]he salient distinction between first- and second-degree murder is the requisite mens rea.” United States v. Cespedes, 11-CR-1032 (PAE), 2015 U.S. Dist. LEXIS 99796, *3 (S.D.N.Y. July 30, 2015) (internal quotation marks and citation omitted). First-degree murder under
The Court instructed the jury on the element of premeditation, with respect to Counts 5 through 8, and 10, as follows:
An act is done with premeditation if it is done upon planning or deliberation. In order to satisfy this element, the government must prove that the defendant killed [Joshua Jalovick] only after thinking the matter over, deliberating whether to act before committing the crime. There is no requirement that the government prove the
defendant deliberated for any particular period of time in order to show premeditation. The amount of time needed for premeditation of a killing depends on the person and the circumstances. It is sufficient to satisfy this element if you find that before he acted, the defendant had a period of time to become fully aware of what he intended to do and to think it over before he acted.
2 L. Sand, et al., Modern Federal Jury Instructions—Criminal, P 41.01, Instr. 41-5 (2025); see United States v. Morgan, 22-2798, 2024 U.S. App. LEXIS 4181, *7 (2d Cir. Feb. 23, 2024) (summary order) (“Premeditation does not require the lapse of days or hours, or even minutes...Instead, it merely requires that a person with a cool mind reflect for at least a short period of time before his act of killing.“) (internal quotation marks and citations omitted); United States v. Gavalo, 24-CR-80 (MKB), 2025 U.S. Dist. LEXIS 62366, *5 (E.D.N.Y. Apr. 1, 2025) (“What is important is not the amount of time that elapsed, but only that the defendant deliberates before committing the final act.“) (collecting cases). In addition, “[p]remeditation may be proved by circumstantial evidence including, but not limited to, the defendant‘s prior relationship to the victim, the defendant‘s carrying of the murder weapon to the scene, and the manner of the killing.” United States v. Corbett, 3:10-cr-28 (CFD), 2011 U.S. Dist. LEXIS 57679, *21 (D. Conn. May 31, 2011) (internal quotation marks and citations omitted).
As to malice, if the Government proved Defendant “acted consciously, with the intent to kill [Jalovick], [this would] satisf[y] the malice aforethought element.” Corbett, 2011 U.S. Dist. LEXIS 57679, at *21. The standard for malice “is usually expressed in terms that convey some heightened degree of disregard for human life... Judge Sand‘s model instruction recommends informing a jury that to
Defendant contends that the proof at trial evinced only that he “act[ed] out of emotion, and not from planning,” and that he was provoked to shoot “suddenly” by a dispute or altercation that occurred in the backyard, separate and apart from any plan with others. Thus, he reasons, the jury could not find that his shooting of Jalovick constituted first-degree murder.13
To the contrary, drawing all reasonable inferences in favor of the Government, the evidence at trial showed that Defendant acted with premeditation,
Malice is apparent from the viciousness of the killing—in Defendant‘s shooting at Jalovick approximately eleven times, and at close range. While no specific measurements were made of the backyard in which the killing occurred, Hay testified the backyard was small, and the jury could infer that Defendant was near Jalovick when Defendant shot at him. The shooting was also brutal in the sense that it was conducted in daylight hours and in a yard full of people, and intent can be gleaned from the extensive damage to Jalovick‘s body. Additionally, the trial evidence would allow the jury easily to conclude beyond a reasonable doubt that Defendant killed Jalovick with premeditation. Hay testified at length about their planning and deliberate acts leading up to the murder. The type of ammunition used by Defendant, as well as the prior attempts to kill Jalovick, also lend to the conclusion that Defendant mulled over killing Jalovick before he did so.
Defendant argues that Hay, Blackwell, Brooks, and Stevenson “all testified that the shooting was sudden and unexpected” and they all claimed to be “shocked” by it. The defense also asserts these eyewitnesses “described [Defendant] acting out of emotion and not from planning.” There was some vague testimony that Defendant and Jalovick had gotten into an argument on July 1, 2019, perhaps earlier that day or at some point in the backyard, and Blackwell testified that Defendant was pacing in the yard and appeared mad about something before the shooting. Regardless, there was plenty of other evidence for a rational jury to
C. Counts 5 through 8: Knowledge of Federal Involvement, and Nexus Requirement
Defendant argues the evidence at trial is insufficient to support his convictions on Counts 5 and 6, the obstruction-of-justice counts in the form of witness tampering, and Counts 7 and 8, the obstruction counts in the form of retaliation.14 He argues there was no evidence at trial from which the jury could infer that Defendant killed Jalovick to prevent him from testifying in an “official proceeding” or to prevent him from communicating with a federal law enforcement officer, or that Defendant killed Jalovick to retaliate against him for providing information to a federal law enforcement officer.
For the purposes of Title 18, United States Code, Sections 1512 and 1513, an “official proceeding” includes “a proceeding before a judge or court of the United States...or a Federal grand jury,”
The defense misstates the law in arguing there is the following “requirement” for a defendant to violate
Rather, pursuant to
Likewise, the Second Circuit in Escalera held, “to convict under § 1513(b)(1) the Government is not required to prove that the defendant knew of the federal nature of the proceeding.” United States v. Escalera, 957 F.3d 122, 129 (2d Cir. 2020). In other words, Escalera held that the Government need not prove defendant’s knowledge of this “purely jurisdictional element” of § 1513; defendant’s mens rea is “irrelevant” in this respect. Id. at 134, 136. In analyzing the text of the statute and its legislative history, the Circuit reasoned, “[t]hat the statute is limited to acts of retaliation for testimony at federal proceedings...does not necessarily require that the defendant know that the proceeding in question was federal.” Id. (emphasis in original).
The Escalera court suggested throughout its opinion that it would similarly conclude there is also no knowledge requirement regarding another provision of § 1513,15 prohibiting retaliation for information about a federal offense provided to federal officers, such that it would hold no knowledge is required as to the federal status of a “law enforcement officer.” See, e.g., Escalera, 957 F.3d at 129 n.8 (noting that “[n]o part” of a prior Second Circuit opinion held “that knowledge of federal involvement is a required element of an offense under
Aside from this misstatement of the law regarding the jurisdictional element of
The defense focuses on the proof that only Hay and Woodard were targeted by law enforcement, only Hay’s and Woodard’s houses were searched pursuant to search warrants obtained after Jalovick provided in camera testimony against them, and only Hay and Woodard were charged—by New York State—because of items seized during the searches. Thus, Defendant reasons, there was insufficient evidence to conclude Defendant believed he was or could be the target of a federal
What Defendant disregards, however—aside from the fact that he was Hay’s drug trafficking coconspirator—is the evidence from which a reasonable jury could conclude, beyond a reasonable doubt, that Defendant killed Jalovick in retaliation for providing information to a federal law enforcement officer about Hay’s federal drug trafficking and firearms offenses, or to prevent Jalovick from providing further information about Hay to a federal officer.
Hay testified that in 2019, Defendant was the individual he was closest to, and they saw each other about every other day. Furthermore, Hay explained that Defendant showed him a tattoo Defendant had that read, “MBK,” meaning “My Brother’s Keeper,” along with Hay’s nickname, “Gunner.” Powers also testified that Defendant referred to Hay as his “brother” and it was apparent Defendant held him in high esteem. In Defendant’s post-arrest interview, he told Agent Brostko that Hay was a “really close friend” of his and that he viewed Hay “like a big brother,” which further confirmed he looked up to Hay. This proof, along with the proof that Hay and Defendant planned to murder Jalovick after learning he had passed along
II. Defendant’s Rule 33 Motion
“Upon [a] defendant’s motion, [a] court may vacate any judgment and grant a new trial if the interest of justice so requires.”
Defendant argues that purportedly erroneous evidentiary rulings by the Court, the Court’s denial of a mistrial motion, and the Court’s denial of his mid-trial motion
A. Evidentiary Rulings
“Even if certain evidence is improperly admitted...reversal is warranted only if an error affects a ‘substantial right,’
Limitations on Cross-Examination and Method of Impeachment
Defendant argues he is entitled to a new trial because this Court improperly limited defense counsel’s cross-examination of certain prosecution witnesses. It is well-settled that “[a] district court is accorded broad discretion in controlling the scope and extent of cross-examination[.]” United States v. Wilkerson, 361 F.3d 717, 734 (2d Cir. 2004) (internal quotation marks and citations omitted); see
First, Defendant argues the Court abused its discretion in disallowing defense counsel from impeaching several witnesses with video recordings of interviews with law enforcement that were not transcribed. Defendant further argues that when the defense did obtain transcripts of these interviews, impeachment by transcript was “not as effective” or impactful as impeachment using the video recordings would have been.
Partway through trial, the Court ordered that moving forward any recording used for refreshing a witness’s recollection or for impeachment purposes would have to be accompanied by a prepared transcript (or transcripts, should the opposing party contest the accuracy of the prepared transcript). It did so partly because the audio quality on the recordings used up to that point was so poor. In addition, the defense method of playing portions of recorded interviews in front of the jury was wholly improper as the jury would inevitably hear inadmissible evidence,17 and the alternative method of sending the jury out of the Courtroom every time a witness was confronted with a recorded interview would waste time and cause significant delay. See
Additionally, many of the defense attempts to use recordings of interviews were without any evidentiary basis, and simply to support the defense theory at trial. The theory was that the prosecution’s cooperating witnesses who were present in the backyard at the time of the murder were all lying about Defendant killing Jalovick, and they were testifying only in accordance with the “narrative” or “theory” the Government conveyed to them during their custodial interviews. The defense sought to support this argument by playing recordings of Agent Brostko’s interviews with Blackwell and Brooks, for example, to show the alleged “misleading” and “improper” methods employed by officers in those interviews. In any event, Defendant’s attorneys “exhaustively attacked” the credibility of Blackwell, Brooks, and Stevenson “during cross-examination and on summation.” United States v. Gordils, 982 F.2d 64, 72 (2d Cir. 1992). Defendant’s counsel probed deeply into matters affecting these witnesses’ credibility and subjected them to vigorous cross-examination on their possible motives to testify falsely. They were asked about their criminal history, the differences between the witnesses’ trial testimony and their
Second, during the cross-examination of Agent Brostko, the Government’s case agent, the Government objected to questions posed by the defense regarding two search warrant affidavits signed by Agent Brostko in support of search warrant applications from 2019,18 which referenced an interview that Andre Hall, Stevenson’s uncle, had with BPD Lieutenant Lucia Esquilin (formerly BPD Detective Lucia Schultz) and “other law enforcement officers” on July 4, 2019. In that July 4, 2019, interview, Hall told law enforcement that Stevenson had revealed details of the murder to him, including that Stevenson was at 87 Freund Street at the time of the murder, “it didn’t go as planned,” and there were two shooters and “Franklin Gambino” (believed to be Hay) “finished him off.” The Government objected when the defense began to ask Agent Brostko whether information contained in these search warrant affidavits was consistent with information in Agent Brostko’s Report of Investigation (“ROI”) from a proffer interview with Hall on August 12, 2019,19 in which it was noted that Hall conveyed to Agent Brostko that (a) Stevenson told Hall there were two shooters; and (b) Stevenson told Hall the first shooter was a light-skinned black male, and Stevenson showed Hall a Facebook photograph of such person. The ROI also noted that when Agent Brostko showed Hall what he believed
The Court sustained the Government’s objection after first receiving written briefs from the parties (Dkt. Nos. 981, 986) and hearing oral argument on the issue. However, the Court ordered the Government to make Hall available as a defense witness and stated the Government should be able to do as Hall had taken a plea in this District pursuant to a plea agreement that had a cooperation provision. Hall was still under the terms of the cooperation provision at the time of Defendant’s trial, having completed the incarceration portion of his sentence but serving his term of supervised release under courtesy supervision by the U.S. Probation Office in the Northern District of Georgia. The Government did facilitate Hall’s presence at trial as a defense witness.
The defense claims that they were impeaching Agent Brostko with his prior inconsistent statements under
In addition, the defense was improperly relying on
The statements at issue also contained multiple levels of hearsay. “Each hearsay statement within multiple hearsay statements must have a hearsay exception in order to be admissible.” United States v. Cruz, 894 F.2d 41, 44 (2d Cir. 1990), citing
Moreover, had the Court permitted Agent Brostko to be questioned in this fashion, that would have been misleading and invited confusion for the jury, and resulted in a mini-trial centered on whether Agent Brotsko intentionally misrepresented any fact in the search warrant affidavits or his ROI. Rather than focusing on the material issues at hand, the jury would have been led to examine each step of Agent Brostko’s investigation and place the Government on trial. Under
In sum, nothing about the scope or mode of these witnesses’ cross-examinations affords grounds for a new trial.
Limitation of Defendant’s Impeachment of Daeshawn Stevenson and Eric Brooks, through Defense Witnesses Andre Hall and Lenae Williams
Defendant called two witnesses at trial to impeach two eyewitnesses to Jalovick’s murder who had testified in the prosecution’s case, with what the defense asserted were prior inconsistent oral statements, admissible pursuant to
Prior inconsistent statements offered for impeachment are not hearsay because they are not offered for their truth, but instead to demonstrate the witness’s lack of credibility. See United States v. Mergen, 764 F.3d 199, 206 and n.3 (2d Cir. 2014). As stated above, “[a] witness’s prior statement may be offered to impeach that witness’s credibility if (1) the statement is inconsistent with the witness’s trial testimony, (2) the witness is afforded an opportunity to deny or explain the same, and (3) the opposing party is afforded the opportunity to cross-examine the witness thereon.” United States v. Strother, 49 F.3d 869, 874 (2d Cir. 1995), citing
The Court followed the above-referenced standards in its determination on what testimony it would permit Defendant to elicit from Hall and Williams. It also took note of the general principles set forth in United States v. Ghailani, 761 F. Supp. 2d 114, 117-119 (S.D.N.Y. 2010). The Court permitted Defendant to question the defense witnesses on statements the Government conceded Defendant could ask them about (see Dkt. No. 979, § II-C, D, & H [conceded, with a caveat]). As to the remaining statements (see Dkt. No. 979, § II-A, B, F, & G) Defendant sought to ask Hall and Williams about, the Court either did or did not permit questioning in those areas after examining if the statements were inconsistent with Stevenson’s and Brooks’s trial testimony; if Stevenson and Brooks were afforded an opportunity to deny or explain said statements,22 and if the Government had an opportunity to question them about this; if impeachment by the prior inconsistent statement related to a material rather than a collateral matter; and even assuming all the requirements
Additionally, because “prior inconsistent statements...can be used only for impeachment,” United States v. Briggs, 457 F.2d 908, 910 (2d Cir. 1972), the Court read a limiting instruction to the jury to this effect following the testimony of Williams and Hall and modified from the pattern instruction on impeachment by prior inconsistent statement. See 1 L. Sand, et al., Modern Federal Jury Instructions—Criminal, P 7.01, Instr. 7-19 (2025).
The Court also ruled that while certain statements made by Stevenson to Hall, and by Brooks to Williams, could be admitted for impeachment purposes, such statements were inadmissible for the truth of the matter asserted because the defense failed to lay a sufficient foundation for admissibility of the statements under any exception to the rule against hearsay.
Admission of Evidence from Defendant’s Cell Phone
Defendant argues the Court should have excluded admission of any evidence obtained or derived from the contents of his cell phone, because (1) the phone was seized and searched in violation of his Fourth Amendment rights, (2) the Government failed to sufficiently authenticate the extraction of data and information from the phone, and (3) the Government did not produce certain
During the pretrial phase of the case, a suppression hearing was held before Magistrate Judge Michael J. Roemer, who issued a Report, Recommendation and Order (“RR&O,” at Dkt. No. 345) recommending that this Court deny Defendant’s motion to suppress evidence from Defendant’s cell phone, a motion made on the
Defense counsel also repeatedly objected during trial to the admission of evidence from Defendant’s cell phone, maintaining the Government failed adequately to authenticate the evidence. This objection was raised for the first time weeks into the trial, on May 30, 2025, during the beginning of the Government’s direct examination of one of its experts, ATF Special Agent and Digital Forensics Examiner Justin Schaefer, who used Cellebrite to perform a forensic analysis of Defendant’s phone.
When Defendant’s cell phone was seized by ATF, it was broken and required repairs to make it operational. The repairs were performed by a third-party external vendor on October 24, 2019,23 prior to the completion of ATF’s “GreyKey” extraction of data from the phone and subsequent generation of a Cellebrite report to convert the extracted data into a readable format. The first page of the Cellebrite report,24 generated on September 29, 2023, included a table labeled “Device Information,”
Defendant now argues that the Government should have been required to lay a “full digital chain of custody foundation” (Dkt. No. 965, p. 1) for the offered contents of his cell phone, and that “serious” gaps in the chain of custody render the evidence inadmissible. In particular, he argues that, first, it is unclear whether the “forensic integrity” of his cell phone was maintained during the third-party external repair process (Dkt. No. 965, p. 3); and second, the notation of “Tethering” indicates his cell phone was connected to an external computer, network, Wi-Fi, or the Internet on April 4, 2020, during which the digital data on his cell phone “could have been altered, deleted, or tampered with” (Dkt. No. 1035-1, p. 29).
As the Court already determined upon its review of the parties’ briefing on this issue (see Dkt. Nos. 953, 965, 966), any weakness in the chain of custody and questions about the authenticity of this evidence went to its weight and not its admissibility.
Defendant argues that there “may” have been a “major compromise of the digital chain of custody and the forensic integrity of the GreyKey extraction” (Dkt. No. 1035-1, p. 29), because the data on the phone could have been tampered with before the completion of the GreyKey extraction, when it was repaired by a third-party vendor and/or when it was “[t]ethered” to another network. But Agent Schaefer testified that whenever repairs were performed by an outside vendor, ATF policy/procedure was to be present during the repair process. He also explained that the “Tethering” notation meant the phone was simply attempting to search for an external connection or input signal, but this did not mean the phone was, in fact, connected externally. Agent Schaefer had no concerns that there was corruption of data in this case, as it did not appear the phone actually connected to a network.
Moreover, the defense was permitted to ask questions on cross-examination of both Agent Schaefer and retired Program Manager at the Digital Forensics Branch of ATF, David Good, the latter who was called by the Government as a courtesy to the defense, “related to the alleged tampering and to argue to the jury that the [data on the cell phone] may have been incomplete [or altered].” United States v. Sovie, 122 F.3d 122, 127 (2d Cir. 1997).
The Government authenticated the cell phone evidence in a variety of ways (see Dkt. No. 953), including through matching the unique identifiers on the cell phone with those on the Cellebrite report; the testimony of witnesses who authenticated, for example, text message exchanges with Defendant located on such cell phone; and the unique characteristics of the phone’s contents, such as photographs of Defendant, photographs of Defendant and his young son, and emails directly linked to Defendant. The foregoing is the sort of proof the Second Circuit has held is sufficient to lay a foundation for the admission of cell phone evidence. See, e.g., Gonzalez, 144 F.4th at 406 (among other proof, an analyst “testified that the International Mobile Equipment Identity (IMEI) numbers, a unique numeric identifier found on cellphones, linked to the defendants’ cell phones and matched the IMEI numbers found on the extraction report”); United States v. Balouchzehi, No. 23-7609-cr, 2024 U.S. App. LEXIS 27255, *4-6 (2d Cir. Oct. 28, 2024) (summary order) (“This evidence was sufficient to show that the phone belonged to [defendant] and that the extraction report and accompanying exhibits were derived from the contents of [defendant]’s phone.”); see also Landji, 2022 U.S. Dist. LEXIS 113679, at *67 (“There was ample evidence that the cell phones belonged to the Defendants, and that the extraction reports reflect data that was stored on the Defendants’ cell phones.”).
The data and other evidence derived from Defendant’s cell phone was properly admitted, as there was sufficient proof to establish its authenticity.
Last, Defendant argues that the Government failed to comply with its disclosure obligations under
The Court agrees with the Government that there was no violation of Rule 16. As stated in Court, the Government did not plan to call Agent Good to testify. Indeed, in the Government’s witness list, Agent Good was listed as a potential “chain-of-custody” witness who, “[i]f necessary,” would be called to testify about Defendant’s cell phone.26 Unlike Agent Schaefer, Agent Good was not included in
Admission of Redacted Version of Defendant’s Post-Arrest Interview and Preclusion of Admission of Self-Serving Hearsay
At trial, the Government moved into evidence under
B. Mistrial Motion
In his Rule 33 motion, Defendant argues that the Court erred in denying his motion for a mistrial, thereby depriving him of a fair trial. The Court denied from the bench Defendant’s motion (Dkt. No. 939), which was predicated on alleged prosecutorial misconduct that occurred during the Government’s direct examination of Kurt “Anzo” Welch, when an AUSA, outside the presence of the jury but in the presence of the witness, accused Welch of lying. The defense argued this alleged misconduct would inevitably result in a violation of Defendant’s due process and confrontation rights to freely cross-examine Welch and mount a defense. For the reasons previously stated (Dkt. No. 948) and those that follow, the Court concludes it properly exercised its discretion in denying the motion and finding that Defendant
The Court explained in the Decision and Order at Docket Number 948, which was issued before Welch was recalled as a witness for completion of his direct examination and for the defense to cross-examine him:
Initially, Defendant has not shown that the AUSA’s encounter with Welch deprived Defendant of material and exculpatory evidence. In fact, both the text message evidence in the record and the testimony of Welch himself, presently before the jury, suggest that Welch did not return a gun to Defendant until after the murder30...Since cross-examination had not yet occurred at the time the defense made the instant mistrial motion, it remains to be seen whether and to what extent—if at all—the conduct of the prosecutor may inhibit Defendant’s ability to cross-examine or test the credibility of the witness.
Here, and although the Court is, at this point, forced to make such a determination prospectively, Defendant does not show that the single incident at issue, relatively early in the trial, has infected the entirety of the trial or caused an absence of fundamental fairness...both Welch’s testimony thus far as well as the text messages in evidence indicate—in apparent contradiction of Welch’s prior statement made to a federal agent—that he gave the gun back to Defendant after the murder charged in this case. As such, it cannot be said that he has been deprived of any material or exculpatory evidence...
...The Government’s witness list includes the names of numerous eyewitnesses, as well as cooperating codefendants who the Government expects will testify about Defendant’s involvement in the murder. In view of the breadth and scope of the anticipated evidence that will be introduced in this case, the isolated remark involving a witness who does not directly implicate Defendant in the shooting—from the prospective point of view from which this Court must exercise its discretion—mitigates any prejudice occasioned by the conduct of the prosecutor in this case. Should the proof in this case fall short of that which is anticipated by the Government, however, the Court will revisit this issue at the conclusion of the Government’s case.
Dkt. No. 948, pp. 8, 12-13 (emphases in original).
When Welch was recalled, he had been assigned and he had spoken with an attorney, and the Government had granted him informal immunity. On cross-examination, the defense elicited these facts, as well as the circumstances that led to Welch being assigned an attorney and conferred immunity, that is, the AUSA’s alleged misconduct. Welch explained that he had not been lying during direct examination; rather, he had been under pressure when testifying, and when he had spoken with law enforcement.
On cross-examination, then, the defense not only probed into the circumstances of the alleged prosecutorial misconduct, such that the jury was aware of those events, but Welch also adhered to what he had testified to on direct: that he did not return the gun he borrowed from Defendant until after the murder. Even assuming, arguendo, a showing of prosecutorial bad faith, which the Court did not find here, the defense surely failed to establish the other two prongs of the test for a due process violation. The testimony by Welch on cross-examination was unquestionably favorable to the defense and comported with a plain reading of the text message evidence.31 Welch’s testimony also aligned with Hay’s later testimony
C. Defendant’s Mental Health
Last, the defense argues the Court erred in denying counsel’s mid-trial motion (Dkt. No. 942) for a mental health assessment and treatment of Defendant, and for the Court to order further psychiatric evaluation before proceeding through the end of trial. The defense now moves the Court to revisit the question of Defendant’s competence to stand trial and, should the Court determine him to be competent, grant him a new trial. The Court incorporates by reference herein its decisions and orders (Dkt. Nos. 899, 944) on the two emergency motions regarding Defendant’s mental competency and treatment, as well as its Decision and Order (Dkt. No. 1018, pp. 4-7, 20-23, 34-35) on Defendant’s motion to dismiss on Sixth Amendment speedy trial grounds. The latter Decision and Order summarized the decisions and orders at Docket Numbers 899 and 944 and addressed Defendant’s behavior during trial but after the Court denied the second emergency motion on May 27, 2025. No further discussion on the Court’s denial of the mid-trial motion is necessary, and for
D. Right to a Fair Trial
The Court has given due consideration to each of Defendant’s arguments concerning evidentiary rulings and for a new trial. Considering each argument separately, and again in the aggregate, the Court finds the jury’s verdict was not manifestly unjust. Defendant’s motion for a new trial is therefore denied.
CONCLUSION
For the foregoing reasons, Defendant’s motion (Dkt. No. 1035) for a judgment of acquittal or, alternatively, motion for a new trial, are DENIED. Because of the delays in bringing this case to trial, and so that Defendant may pursue his appeal rights, the Court expects to impose sentence with as little further delay as possible. Defendant’s sentencing remains scheduled for October 27, 2025, at 11:30 a.m. The parties are directed to the Court’s accompanying Order for the submission of sentencing documents.
SO ORDERED.
s/Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: September 19, 2025
Buffalo, New York