USA v. Andre Decker

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
v.
ANDRE DECKER,
Defendant.
1:24-cr-00361 (AMN)
APPEARANCES: 	OF COUNSEL:
United States Attorney for the 	ASHLYN JESSICA MIRANDA, ESQ.
Northern District of New York 	MIKAYLA ESPINOSA, ESQ.
445 Broadway – Room 218 	Assistant United States Attorneys
Albany, New York 12207
Counsel for the Government
Frost, Kavanaugh Law Firm 	ARTHUR R. FROST, ESQ.
287 North Greenbush Road
Troy, New York 12180
Counsel for Defendant
Hon. Anne M. Nardacci, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I. 	INTRODUCTION
On June 13, 2025, following a four-day trial, a unanimous jury convicted defendant Andre
Decker (“Defendant”) of one count of possession of firearms by a prohibited person in violation
of 18 U.S.C. § 922(g)(1). Dkt. Nos. 1, 97, 103. Presently before the Court is Defendant’s renewed
motion for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure
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(“Rule 29”).1 Dkt. Nos. 107, 137 (the “Motion”); see also Dkt. No. 138. 2 For the reasons set forth
below, Defendant’s Motion is denied.
II. 	SUMMMARY OF THE EVIDENCE AT TRIAL
The following summary reflects only some of the evidence adduced at trial, as necessary
to address the Motion, and presents that evidence in the light most favorable to the Government.
United States v. Atilla, 966 F.3d 118, 128 (2d Cir. 2020).
In the summer of 2023, Defendant completed a federal prison sentence and began a term
of supervised release in the Southern District of New York. 3 	Dkt. No. 124 at 206:6-208:17.
Defendant’s probation officer tried to meet with him for several months, without success. Id. at
214:8-215:8. In November 2023, the probation officer requested and received an arrest warrant
from the United States District Court for the Southern District of New York. Id. at 215:9-216:10.
The United States Marshals Service (“USMS”) was tasked with apprehending Defendant.
Dkt. No. 125 at 8:6-11:6. 	After using various investigative methods—including in-person
surveillance, analysis of location data from Defendant’s cell phone, and analysis of numerous
transactions from Defendant’s public benefits card—a USMS task force came to believe that
Defendant was staying in the Northern District of New York, at his girlfriend’s apartment in
Albany. Id. at 11:7-27:22. The task force obtained a warrant to search the premises for Defendant.
1 Defendant previously moved for a judgment of acquittal at the end of the Government’s case and
at the close of all proof; the Court denied both motions. Dkt. No. 126 at 63:19-65:19; id. at 70:6-
71:2. 	Citations to docket entries utilize the pagination generated by CM/ECF, the Court’s
electronic filing system, and not the documents’ internal pagination.
2 Defendant declined to submit a reply in further support. See generally Docket Sheet.
3 This sentence was the result of Defendant’s prior conviction for violating 18 U.S.C. § 922(g)(1).
Dkt. No. 28-1. The Court sustained Defendant’s objection to admitting certain evidence regarding
this conviction, Dkt. No. 90 at 2-5, and the parties stipulated that, prior to November 2023,
Defendant had been convicted of a felony, knew he had been convicted of a felony, and had served
more than one year in prison as a result, Dkt. No. 99.
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Id. at 27:23-28:10.
The task force executed the warrant at approximately 6:00 a.m. on November 27, 2023.
Id. at 28:11-34:25. After Ms. McKenzie answered the door, members of the task force entered the
apartment and noticed an open second story window at the back of the apartment. 	Id. at 35:1-
48:11. 	Defendant was eventually spotted hiding in a neighboring property, in only his boxers,
despite the cold weather. 	Id. at 48:12-51:23; id. at 65:24-66:22; id. at 148:8-150:21. 	After
continued pursuit, the task force was able to arrest Defendant and observed injuries to his bare
feet. Id. at 150:22-155:24; Government Exhibit 10.
Cell phone data indicated that Defendant’s phone had been regularly present during
nighttime hours at the apartment for weeks prior to his arrest. See, e.g., id. at 132:24-133:17. Cell
phone data further indicated that Defendant’s phone was present in the apartment on November
26, 2023, including shortly before midnight, and that the phone was still there at approximately
7:00 a.m. the next morning. Id. at 142:14-144:5. At that time, the task force observed Defendant’s
phone charging on a stand in a bedroom, called the phone, and seized the phone after it rang. Id.
at 60:2-17; Government Exhibit 11-J. 	The task force also recovered from the bedroom
Defendant’s public benefits card, Bureau of Prisons identification card,4 and mail addressed to
him. Dkt. No. 125 at 55:4-57:5. Directly in front of the bedroom, the task force found a “go bag”
packed with, inter alia, sets of men’s clothes. Id. at 58:3-59:8. The task force concluded that the
bedroom was shared by Defendant and Ms. McKenzie. See, e.g., id. at 45:13-17.
In the closet of the bedroom, the task force found two bags, each with a firearm. 	Id. at
4 Based on testimony from Defendant’s probation officer that Defendant had acquired neither
employment nor state-issued identification while on supervised release, Dkt. No. 124 at 211:8-
212:4, the Government argued in closing that these items constituted Defendant’s only known
source of income and identification, Dkt. No. 126 at 112:6-18.
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158:9-23. 	Subsequent forensic analysis determined that multiple locations on each firearm
contained Defendant’s DNA. See, e.g., id. at 222:7-19; id. at 223:3-17; see also Dkt. No. 138 at 4
(detailing DNA evidence).
Ms. McKenzie testified, inter alia, that Defendant began staying with her in or about
September 2023; that he stayed with her several times a week; that he only slept in their shared
bedroom; that he kept his belongings in that bedroom, including his cell phone and “[s]urvival bag
type stuff[;]” and that Defendant spent time in Ms. McKenzie’s apartment when she was not there.
Dkt. No. 126 at 11:17-13:19. Ms. McKenzie further testified that she was aware that the firearms
were in the apartment; that Defendant had brought the firearms into her apartment; that the firearms
were his; and that she had seen Defendant leave and return to the apartment with the firearms.5 Id.
at 23:12-24:18.
Defendant exercised his constitutional right not to testify at trial. Id. at 65:20-67:18.
III. 	STANDARD OF REVIEW
Rule 29 of the Federal Rules of Criminal Procedure permits a defendant to move for “a
judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.”
Fed. R. Crim. P. 29(a). However, a defendant who challenges the sufficiency of evidence “bears
a heavy burden” “[b]ecause of the strong deference to which jury verdicts are entitled in our justice
system.” 	United States v. Osuba, 67 F.4th 56, 61 (2d Cir. 2023) (first quoting United States v.
Jackson, 335 F.3d 170, 180 (2d Cir. 2003); and then citing United States v. Willis, 14 F.4th 170,
181 (2d Cir. 2021)).
Given this “exceedingly deferential” standard of review, United States v. Gahagen, 44
5 Shortly before her testimony at trial, Ms. McKenzie entered into an immunity agreement with
the federal government and provided the testimony noted above; she was questioned about the
immunity agreement on both direct and cross examination. Id. at 9:21-10:1; id. at 25:2-26:24.
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F.4th 99, 108 (2d Cir. 2022) (citation omitted), a court evaluating the sufficiency of evidence is
“required to draw all permissible inferences in favor of the [G]overnment and resolve all issues of
credibility in favor of the jury’s verdict,” Willis, 14 F.4th at 181 (citation omitted). A court must
also consider the evidence “in its totality, ‘as each fact may gain color from others.’” United States
v. Landesman, 17 F.4th 298, 319 (2d Cir. 2021) (citation omitted). Importantly, “[t]hese principles
apply whether the evidence being reviewed is direct or circumstantial.” United States v. Chow,
993 F.3d 125, 135 (2d Cir. 2021) (citation omitted). Ultimately, “[a] jury verdict must be upheld
if, ‘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.’” Gahagen,
44 F.4th at 108 (second alteration in original) (citations omitted).
IV. 	DISCUSSION
The Motion challenges the sufficiency of the evidence offered at trial by the Government
to prove one of the four elements of Defendant’s crime of conviction: knowing possession. Dkt.
No. 107 at 2; Dkt. No. 137-1 at 3.
Defendant’s challenge fails. Defendant first argues that the Government offered no direct
evidence that he knowingly possessed the firearms and could not prove his actual possession of
any firearm. Dkt. No. 107 at 2; Dkt. No. 137-1 at 3, 6. However, neither direct evidence nor actual
possession is required. See, e.g., Willis, 14 F.4th at 181 (“At trial, the government pursued theories
of constructive possession. 	‘Constructive possession exists when a person has the power and
intention to exercise dominion and control’ over the contraband in question and may be shown by
direct or circumstantial evidence.”) (citation omitted) (affirming, inter alia, 18 U.S.C. § 922(g)(1)
convictions following district court’s denial of Rule 29 motions); United States v. Payton, 159
F.3d 49, 56 (2d Cir. 1998) (“The government need not prove that [defendant] physically possessed
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the firearm to establish a 922(g) violation; proof of constructive possession is sufficient. . . . and
may be shown by direct or circumstantial evidence.”) (citations omitted) (affirming 18 U.S.C.
§ 922(g)(1) conviction following district court’s denial of Rule 29 motion); see also Henderson v.
United States, 575 U.S. 622, 626 (2015) (“Section 922(g) proscribes possession alone, but covers
possession in every form. . . . encompassing what the criminal law recognizes as ‘actual’ and
‘constructive’ possession alike. . . . Section 922(g) thus prevents a felon not only from holding his
firearms himself but also from maintaining control over those guns in the hands of others.”)
(citations omitted). 	And knowledge can be proven through circumstantial evidence. 	See, e.g.,
United States v. MacPherson, 424 F.3d 183, 189-90 (2d Cir. 2005) (“[T]he mens rea elements of
knowledge and intent can often be proved through circumstantial evidence and the reasonable
inferences drawn therefrom. . . . Indeed, the law draws no distinction between direct and
circumstantial evidence in requiring the [G]overnment to carry its burden of proof.”) (citations
omitted).
The core of Defendant’s remaining arguments is that if the jury had drawn his preferred
inferences from certain evidence, the jury could also have concluded that he did not constructively
possess the firearms for which he was convicted. 	See generally Dkt. No. 107; Dkt. No. 137-1.
While this may be true, it is immaterial to the Court’s analysis under Rule 29. 	See, e.g.,
MacPherson, 424 F.3d at 190 (“The possibility that inferences consistent with innocence as well
as with guilt might be drawn from circumstantial evidence is of no matter to sufficiency analysis
because ‘it is the task of the jury, not the court, to choose among competing inferences.’”) (citation
omitted). In contrast, the evidence adduced at trial was sufficient for the jury to find that Defendant
knowingly possessed the firearms. See, e.g., Willis, 14 F.4th at 182 (“[T]he government was not
required to prove that the contraband was not subject to the control of others, because possession
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need not be exclusive, and the jury was not required to accept [defendant]’s alternative explanation
of innocence. . . . In other words, the fact that others may have also possessed the keys, drugs, and
weapons does not preclude a finding that [defendant] did so as well.”) (citations omitted); Payton,
159 F.3d at 56 (“The government need not disprove that the weapon was subject to the dominion
and control of others.”) (citation omitted); see also Landesman, 17 F.4th at 319 (“[T]he
Government need not negate every theory of innocence.”) (citation omitted).
As detailed above, see supra Section II, that evidence showed that at approximately 7:00
a.m. in late November 2023, task force officers located Defendant wearing only his boxers and
with injuries to his bare feet, just outside a second-story apartment—with an open window—where
Defendant regularly stayed overnight. 	Numerous of Defendant’s possessions were still in a
bedroom of that apartment, including his mail and only known cell phone, identification, and
source of funds. 	United States v. Facen, 812 F.3d 280, 288 (2d Cir. 2016) (“The jury was not
required to accept [defendant]’s version of his connection with the location, and there was
sufficient evidence to permit the jury to adopt the competing interpretation—that he had a
substantial, long-term connection to the house as evidenced by the presence there of his mail and
important personal documents.”) (affirming 18 U.S.C. § 922(g)(1) conviction following district
court’s denial of Rule 29 challenge to that conviction). 	Additionally, Defendant’s DNA was
retrieved from multiple locations on both of the firearms kept in the bedroom closet and there was
testimony that, inter alia, the firearms were Defendant’s and that Defendant transported the
firearms into and out of the apartment. Facen, 812 F.3d at 287 (“‘[M]ere presence at the location
of contraband does not establish possession.’ . . . However, ‘presence under a particular set of
circumstances’ from which a reasonable jury could conclude that the defendant constructively
possessed contraband located there can support a conviction.”) (first quoting United States v. Rios,
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856 F.2d 493, 496 (2d Cir.1988); and then quoting United States v. Soto, 959 F.2d 1181, 1185 (2d
Cir. 1992)).
In short, “[t]his evidence could easily convince a rational jury, beyond a reasonable doubt,
that [Defendant] had ‘the power and intention to exercise dominion and control over’ the gun[s]”
seized from the bedroom where he stayed. 	United States v. Greer, 631 F.3d 608, 614 (2d Cir.
2011) (quoting United States v. Gaines, 295 F.3d 293, 300 (2d Cir. 2002)) (affirming 18 U.S.C.
§ 922(g)(1) conviction following district court’s denial of Rule 29 motion). As a result, the Court
denies Defendant’s Motion. Gahagen, 44 F.4th at 108; Willis, 14 F.4th at 181.
V. 	CONCLUSION
Accordingly, the Court hereby
ORDERS that Defendant’s Motion, Dkt. Nos. 107, 137, is DENIED; and the Court further
ORDERS that the Clerk serve a copy of this Order on the parties in accordance with the
Local Rules.
IT IS SO ORDERED.
Dated: February 5, 2026
Albany, New York
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