13‐2331 (L); 14‐2766 (Con), 14‐4756 (Con), 14‐4768 (Con), 15‐161 (Con) United States v. Mayes

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 31st day of May, two thousand sixteen. 4 5 PRESENT: JOSÉ A. CABRANES, 6 CHESTER J. STRAUB, 7 RAYMOND J. LOHIER, JR., 8 Circuit Judges. 9 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 10 UNITED STATES OF AMERICA, 11 12 Appellee, 13 14 v. No. 13‐2331 (L) 15 16 ANTHONY MAYES, JR., 17 ANTOINE MAYES, 18 19 Defendants‐Appellants.* 20 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 21

* The Clerk of Court is directed to amend the case caption as set forth above.

1 1 FOR APPELLEE: ALICYN L. COOLEY (Susan Corkery, 2 Berit W. Berger, Richard M. Tucker, 3 on the brief), Assistant United States 4 Attorneys, for Robert L. Capers, 5 United States Attorney for the 6 Eastern District of New York, 7 Brooklyn, NY. 8 9 FOR DEFENDANT‐APPELLANT 10 ANTOINE MAYES: LAWRENCE D. GERZOG (Jeremy 11 Gutman, on the brief), New York, NY. 12 13 FOR DEFENDANT‐APPELLANT 14 ANTHONY MAYES, JR: Anthony Mayes, Jr., pro se, 15 Jonesville, VA. 16 17 Appeal from judgments of the United States District Court for the Eastern

18 District of New York (Ross, Judge).

19 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

20 AND DECREED that the judgments of the District Court are AFFIRMED.

21 Defendants Antoine Mayes and Anthony Mayes, Jr. each appeal two

22 judgments of conviction.1 Antoine Mayes appeals (1) a May 31, 2013 judgment

23 of the District Court (Ross, J.) convicting him, after a guilty plea, of seven counts

24 of distributing and possessing with intent to distribute a controlled substance in

25 violation of

(a)(1), and (2) a January 14, 2015 judgment convicting

1 On May 9, 2016, Anthony Mayes moved to withdraw certain appeals. We denied his motion on May 13, 2016. See United States v. Mayes, No. 13‐2331‐cr (2d Cir.), ECF Docket No. 243.

2 1 him, after a jury trial, of several racketeering and drug charges in violation of,

2 inter alia,

(c). Anthony Mayes, Jr. appeals (1) a December 24,

3 2014 judgment convicting him, after a jury trial, of possessing a firearm after a

4 prior felony conviction, in violation of

(g)(1), and (2) another

5 December 24, 2014 judgment convicting him, after a subsequent jury trial, of

6 several racketeering and drug charges. We assume the parties’ familiarity with

7 the facts and record of the prior proceedings, to which we refer only as necessary

8 to explain our decision to affirm.

9 1. Antoine Mayes

10 We briefly address only two of Antoine Mayes’s several arguments in

11 support of reversing his convictions. First, he argues that the Government failed

12 to prove that the racketeering enterprise existed for the length of time charged in

13 the indictment. Based on the trial testimony, a reasonable jury could find that

14 the enterprise existed “in an essentially unchanged form during substantially the

15 entire period charged in the indictment.” 5.13.14 Trial Tr. 33; see generally

16 United States v. Eppolito,

(2d Cir. 2008). Second, he asserts that

17 the evidence was insufficient to convict him of possessing a machinegun in

18 furtherance of a racketeering enterprise. Again, our review of the trial record

3 1 confirms that a reasonable jury could find that Antoine Mayes possessed a

2 machinegun in furtherance of the racketeering enterprise, in violation of 18 U.S.C.

3 § 924(c)(1)(B)(ii). [GA17]

4 2. Anthony Mayes, Jr.

5 Anthony Mayes, Jr. argues that the District Court should have suppressed

6 wiretap evidence used against him in both trials, because (1) inconsistencies

7 between the trial testimony of the FBI Special Agent who prepared the affidavit

8 supporting the wiretap application and a later stipulation by the Government

9 suggested that the agent must have lied in the affidavit; and (2) the affidavit did

10 not establish the necessity of the wiretap. We reject the arguments because (1) a

11 confidential informant testified in a way that supported the agent’s affidavit, and

12 (2) the affidavit adequately detailed the Government’s prior traditional

13 investigative efforts, why they fell short, and why a wiretap was necessary.

14

15

16

17

18

4 1 We have considered all of the defendants’ remaining arguments and

2 conclude that they are without merit. For the foregoing reasons, the judgments

3 of the District Court are AFFIRMED.

4 FOR THE COURT: 5 Catherine O=Hagan Wolfe, Clerk of Court

5