23-6770 (L) United States v. Wagner

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.

At a stated term of The United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 9th day of December, two thousand twenty-five.

PRESENT: BETH ROBINSON, SARAH A. L. MERRIAM, MARIA ARAÚJO KAHN, Circuit Judges. _________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. Nos. 23-6770 (L) 23-7228(Con) MYRON WAGNER, AKA MY DOGG,

Defendant-Appellant. _________________________________________

FOR APPELLEE: SHIVA H. LOGARAJAH, Assistant United States Attorney (Nicholas S. Bradley, Stephanie Simon, Assistant United States Attorneys, Of Counsel, on the brief) for Matthew Podolsky, Acting United States Attorney for the Southern District of New York, New York, NY.

FOR DEFENDANT-APPELLANT: LAWRENCE D. GERZOG, The Fast Law Firm, P.C., New York, NY.

Appeal from a judgment of the United States District Court for the Southern

District of New York (Román, Judge).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgments entered on July 7, 2023, and

September 21, 2023, are AFFIRMED.

A jury convicted Defendant-Appellant Myron Wagner of being a felon in

possession of a firearm,

(g)(1), after he discharged a firearm at his

ex-girlfriend’s car. As a result of his conviction, the district court also found that

Wagner had violated a condition of his supervised release in another matter,

United States v. Wagner, No. 7:20-cr-408 (S.D.N.Y.). That mandatory condition

required him not to “commit another Federal, State, or local crime.”

(d). The district court thus revoked his supervised release in that matter and

sentenced him to additional imprisonment.

2 On appeal, Wagner challenges the sufficiency of the evidence both to

convict him and to support a finding that he violated his prior supervised release.

We assume the parties’ familiarity with the underlying facts, procedural history,

and arguments on appeal, to which we refer only as necessary to explain our

decision. For the reasons below, we affirm both judgments.

Wagner contends that the evidence was insufficient to show that he

possessed the specific firearm identified in the indictment, a “loaded Rohm RG-10,

.22 caliber pistol.” Wagner Br. at 21.

We review the district court’s determination as to the sufficiency of the

evidence to convict without deference to the district court. United States v. Laurent,

(2d Cir. 2022). And “we view the evidence in the light most

favorable to the government” and will uphold the conviction “if any rational trier

of fact could have found the essential elements of the crime beyond a reasonable

doubt.”

1 We review a district court’s finding of a violation of a condition of

supervised release for abuse of discretion. United States v. Peguero,

(2d Cir. 2022).

1In quotations from caselaw and the parties’ briefing, this summary order omits all internal quotation marks, footnotes, and citations, and accepts all alterations, unless otherwise noted.

3 To convict, the government must prove a defendant’s guilt beyond a

reasonable doubt. United States v. Shamsideen,

(2d Cir. 2008). To

prove a violation of a condition of supervised release, the government must prove

the violation “by a preponderance of the evidence.”

(e)(3).

Under even the higher reasonable-doubt standard, there was sufficient

evidence at trial that Wagner possessed the firearm specified in the indictment.

Ashley Johnston, Wagner’s ex-girlfriend, testified that Wagner shot a small, silver

gun at her car; the description of that gun matches that of the Rohm revolver that

was recovered shortly after the shots were fired. Two neighbors who lived

adjacent to the location of the shooting and called 911 provided corroborating

testimony that a man matching Wagner’s description had shot a gun at a car.

Officer Muscente and Officer Rivera, two officers on duty the day of the shooting

who responded to the 911 call, provided testimony that established the timeline of

events: Wagner left the police station after making a complaint about Johnston

around 2:42 pm, the 911 call reporting the shooting came in around 2:47 pm,

Wagner was seen on video cameras and by Officer Rivera walking towards a

barbershop with his hands in his pants, Wagner was arrested at the barbershop

4 around 2:51 pm, and shortly thereafter the gun was recovered by police from a

drawer in the barbershop.

Juan Gabriel Veloz, a barber at the shop who was acquainted with Wagner,

provided testimony that, when taken in the light most favorable to the

prosecution, establishes that Wagner had a gun, ran into the barbershop, entered

the bathroom and reemerged, and threw the gun at Veloz, who either tossed it

back and Wagner placed it in the drawer or Veloz placed it in the drawer himself.

There was a short period of time between when Wagner’s gun was placed in the

drawer and when that gun was then recovered by Officer Rivera. Consistent with

the indictment, the gun recovered was a Rohm .22 short caliber revolver, which

contained one live round and one spent round.

This evidence is sufficient to establish beyond a reasonable doubt that

Wagner had possession of the specific firearm described in the indictment.

Although both Johnston and the neighbors testified that they heard multiple shots

and only one spent casing was recovered from the revolver, Detective Holzman, a

firearms expert, testified that Wagner would have needed less than a minute to

remove the spent casings from the revolver. A jury could reasonably infer based

on the timeline presented that Wagner removed the additional casings either in

5 the time between the shooting and when he entered the barbershop, or while he

was in the barbershop bathroom. United States v. Raniere,

(2d Cir.

2022) (explaining that courts must “credit every inference that the jury might have

drawn in favor of the government, because the task of choosing among competing,

permissible inferences is for the jury, not for the reviewing court”). Finally,

Wagner had burned gunpowder residue on his clothes, consistent with having

fired a gun.

Wagner’s challenges to the credibility of Johnston, the neighbors, and Veloz

are unavailing, given that the Court must “defer to the jury’s assessment of witness

credibility and its assessment of the weight of the evidence.” United States v. Lewis,

(2d Cir. 2023). Here, all four witnesses provided sufficiently

reliable, corroborated testimony that a rational jury could have found them

credible.

Wagner also challenges the lack of forensic evidence tying him to the

recovered revolver, but the expert testimony provided reasonable explanations for

the lack of fingerprints and DNA. And a government expert testified that

Wagner’s suggestion that the gunpowder residue was transferred from Officer

6 Muscente’s hands during the arrest was unlikely. In any event, “the Government’s

proof need not exclude every possible hypothesis of innocence.”

.

* * *

For the above reasons, the district court’s judgments are AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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