W.D.N.Y.: Trial cross-exam was properly limited into SW affidavit statements what would have led to minitrials

On defendant’s motion for new trial, the court properly limited cross-examination over statements in a search warrant affidavit that would have led to mini-trials and misled the jury. United States v. Payne, 2025 U.S. Dist. LEXIS 184595 (W.D.N.Y. Sep. 19, 2025):

In addition, the defense was improperly relying on Rule 613(b) in pursuing this series of questions. Rule 613(b) permits the admission of extrinsic evidence of a witness’s prior inconsistent statement for purposes of impeachment, “if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it.” Fed. R. Evid. 613(b). Critically, “Rule 613(b) applies to [ ] witnesses’ prior inconsistent statements—not testimony [or statements] by an entirely different witness that conflicts with the witnesses’ version of events.” United States v. Wilson, 1:19-CR-00155 EAW, 2022 U.S. Dist. LEXIS 210637, *23 (W.D.N.Y. Nov. 21, 2022), aff’d, No. 23-6307-cr, 2025 U.S. App. LEXIS 14890 (2d Cir. June 17, 2025). In Adeniyi, for example, the defendant argued that the questions the Court cut him off from asking were designed to simply attack a case agent’s credibility “by demonstrating that his prior Grand jury testimony was inconsistent with the testimony of other witnesses at trial who he had interviewed during the course of the investigation.” Adeniyi, 2004 U.S. Dist. LEXIS 8490, at *10. The Court held that the cited principle of impeaching the credibility of a witness by his prior inconsistent statements was “inapposite,” though, because such principle “relates only to prior statements made by a witness that are inconsistent with statements made by the same witness during trial.” Id.

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 Fed. R. Evid. 805. As the Government noted, the relevant information in the search warrant affidavits derived from an interview in which Agent Brostko did not participate. Indeed, Agent Brostko explained on cross-examination that statements made in the search warrant affidavits were based upon statements made by Hall to Detective Schultz, not to Agent Brostko.

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 Federal Rule of Evidence 403, evidence of any inconsistency between Agent Brostko’s ROI and the two affidavits had minimal probative value, particularly considering the information in the affidavits was not derived from the information in the ROI. See United States v. Rivera, 273 F. App’x 55, 58 (2d Cir. 2008) (“A witness may be impeached by extrinsic proof of a prior inconsistent statement only as to matters which are not collateral…”) (internal quotation marks omitted).

In sum, nothing about the scope or mode of these witnesses’ cross-examinations affords grounds for a new trial.