1 15-2593-cr United States v. McDade UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NO T REPRESENTED BY COUNSEL. At a stated term of the United States Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 28 th day of September, two thousand sixteen. PRESENT: JON O. NEWMAN, GUIDO CALABRESI, REENA RAGGI, Circuit Judges

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---------------------------- ---------------------------- -------------- UNITED STATES OF AMERICA, Appellee , v. No. 15-2593-cr TYSHAWN MCDADE, Defendant-Appellant , MELKUAN SCOTT, AKA Mel, AKA Young God, AKA Young, AKA YG, ARTHUR STANLEY, AKA Wigs, AKA P, AKA Peno, JEFF AN TOINE, AKA Little Homie, RASHAWN DUBOSE, AKA Chubbs, AKA Trev, GREGORY THOMAS, AKA Qu anny, AKA Jim Jim, AKEEM MANOO, AKA Keem e, RICARDO HOWE, AKA Dino, AKA Tyson, NE HELIAH BARNETT, AKA Nelly, AKA Ney, AKA Neagmiah, AKA Nehemiah, RAYMOND RIVERA, AKA White Boy, KYRIN-ROBERT JACKSON, AKA KY, TAFARIE GREEN, AKA Farie, IRIS PEREZ, AFESHA MANOO, AKA Fesha, AKA Fee, HORACE STARKS, JR., AKA Head, AKA Little Head, JA MIE COLEMAN, AKA City, ARNOLD THOMPSON, AKA B, JERROD HALL, AKA2 Slime, RAQUIM SMITH, AKA Bud, AKA Butter, AKA Rakim, JAMAL HOWELL, AKA Squizzy, RASHAWN HILL, JASON WATSON, A KA Noggin, SHAQILLE BROWN, AKA Shaq, MICHAEL MORRISON, AKA Nazzie, Defendants

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---------------------------- ---------------------------- -------------- APPEARING FOR APPELLANT: VITO A. CASTIGNOLI, Esq., Milford, Connecticut. APPEARING FOR APPELLEE: JOHN H. DURHAM, Assistant United States Attorney (Marc H. Silv erman, Assistant United States Attorney, on the brief ), for Deirdre M. Daly, United States Attorn ey for the District of Connecticut, New Haven, Connecticut.

* The clerk of court is directed to amend the caption as set forth above. Appeal from a judgment of the United States District Court for the District of Connecticut (Jeffrey A. Meyer, Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgment entere d on August 14, 2015, is AFFIRMED. Defendant Tyshawn McDade stands convicte d after a jury trial on substantive and conspiratorial counts of distri bution of and possession with in tent to distribute cocaine base. See 21 U.S.C. §§ 841 (a)(1), (b)(1)(A), (b)(1)(C), 846; 18 U.S.C. § 2. The jury specifically attributed 100 grams or more of cocaine base to McDade, and the district

court sentenced him to concu rrent 132-month prison terms, above his 120-to-125-month Guidelines range. On this appeal, McDade challenges the sufficien cy of the evidence supporting his conspiracy conviction, as well as certain evidentiary rulings. We assume the parties’ familiarity with the facts and re cord of prior proceedings, which we reference only as necessary to explain our decision to affirm.3 1. Sufficiency of the Evidence A defendant challenging the sufficiency of the evidence supporting his conviction bears a “heavy burden” because, although our standard of re view is de novo, we must affirm a conviction “if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Brock, 789 F.3d 60, 63 (2d Cir. 2015) (internal quotation marks omitted). To prove a drug trafficking conspiracy, the government must demonstrate (1) the existence of the charged conspiracy and (2) defendant’s knowing participation therein. See United States v. Story, 891 F.2d 988, 992 (2d Cir. 1989). McDade’s sufficiency challenge is directed only to the second elem ent and rests on the buyer-seller defense. See, e.g., United States v. Brock, 789 F.3d at 63–64 (describing buyer-seller defense). This challenge fails on the merits because th e record evidence, view ed most favorably to the verdict, allowed a reasonable jury to find that McDade and conspiracy leader Scott had more than a buyer-seller rela tionship; rather, they shared “a conspiratorial purpose to

advance other transfers.” United States v. Parker, 554 F.3d 230, 235 (2d Cir. 2009); accord United States v. Brock, 789 F.3d at 63. Testimony by surveillance officers and a c onfidential source established that on March 3, 2014, McDade accompanied Scott to a location where Scott arranged a sale of 500 grams of crack to the source; that Sc ott and McDade subsequently returned to McDade’s home; that McDade went inside for five minutes, whereupon the two men traveled to an arranged meeti ng place; and, there, McDade removed a one-ounce sample of crack from his pocket, handed it to the s ource, and received $800 in return, which he4 conveyed to Scott. This evidence would allow a rationa l jury to conclude that McDade was not simply buying drugs from Scott but helping Scott supply drugs to others. Indeed, that conclusion was re inforced by recorded conversations indicating that McDade had fronted Scott the crack needed to comple te a sale to another buyer on December 16, 2013. Further, on at least one occasion in the summer of 2013, Scott fronted crack to McDade. A rational jury coul d have conc luded from the totality of this evidence that McDade personally assisted Scott in transfe rring drugs to others, and that there existed “prolonged cooperation betwee n the parties, a level of mu tual trust, standardized dealings, [and] sales on credit” between Sco tt and McDade, all of which demonstrated McDade’s joinder in Scott’s conspiracy to di stribute drugs. United States v. Brock, 789 F.3d at 64 (internal quotation marks omitted). Insofar as McDade points to other evidence that he cont ends is inconsistent with his participation in the drug conspiracy, he fails to show that su ch a conclusion is compelled as a matter of law. Accordingly, we must as sume the jury resolved all evidentiary conflicts and drew all reasonable in ferences in favor of the government. See United States v. Salameh, 152 F.3d 88, 151 (2d Ci r. 1998). When we do that here, we

conclude that the evidence was sufficient to allow the jury to find that McDade knowingly joined the charged conspiracy. 1

1 Insofar as McDade also challenges the distri ct court’s denial of his post-trial motions for a judgment of acquittal, see Fed. R. Crim. P. 29, and a new trial, see Fed. R. Crim. P. 33, because these rested on the same sufficiency and evidentiary challenges that we identify as meritless, we need not review these rulings separately here.5 2. Evidentiary Rulings a. Co-Conspirator Statements McDade faults the district court’s admiss ion into evidence of various recorded conversations under Fed. R. Evid. 801(d )(2)(E) (permitting introduction of hearsay statements in furtherance of conspiracy) on the ground that a preponderance of the evidence failed to show his me mbership in the scheme. See United States v. Mandell, 752 F.3d 544, 552 (2d Cir. 20 14) (holding that Rule 801(d )(2)(E) requires preponderance showing of (1) conspiracy, (2) declarant’s and defendant’s membership in scheme, and (3) statement being made during and in furt herance of conspiracy). We review Rule 801(d)(2)(E) admissions “only for clear error,” which is not evident here. Id. (internal quotation marks omitted). The district c ourt concluded that “the contents of [McDade’s] multiple wiretap conv ersations with [] Scott are not reasonably susceptible to any interpretation other than that they were for an illicit purpose of furthering a conspiracy’s cocaine transactions.” United States v. Mc Dade, No. 3:14-CR-00081 (JAM), 2015 WL 5157201, at *3 (D. Conn. Aug. 31, 2015). We identify no error, let alone plain error, in that conclusion. Furt her, as already discussed, witness testimony demonstrated that McDade actively assi sted Scott in crack sales to others. b. Other Evidence McDade cursorily challenges the distri ct court’s admission of certain physical evidence collected during searches of propertie s associated with co-conspirators, as well as evidence of undercover buy s in which he was not involv ed. While McDade does not identify a basis for these challe nges, because he argues that there is no evidence that he “knew about” or “own[ed] or ever possess[ ed]” the challenged items of evidence,6 Appellant’s Br. 18–19, we assume he relies on Fed. R. Evid. 403 (allowing introduction of evidence that is more pr obative than prejudicial). We review a Rule 403 ruling for abuse of discretion, see United States v. Miller, 626 F.3d 682, 688–89 (2d Cir. 2010), and find none here. The trial c ourt properly concluded that the challenged evidence was “relevant to show the existence of and scope of the a lleged crack cocaine conspiracy,” United States v. McDade, 2015 WL 5157201, at *3, an element distinct from McDade’s joinder in the scheme, see United States v. St ory, 891 F.2d at 992. While some of the evidence seized—specifically, guns—suggested violence, the district court carefully instructed the jury that McDade himself was not alleged to ha ve engaged in any violence. This allowed the government to offer evidence probative of the scheme, see, e.g., United States v. Vegas, 27 F.3d 773, 778–79 (2d Cir. 1994), while en suring against undue prejudice to McDade. 3. Conclusion We have considered McDade ’s remaining arguments and conclude that they are waived and, in any event, without merit. 2 Accordingly, the judgment of the district court is AFFIRMED. FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court

2 McDade mentions in passing ot her decisions by the district court that he had previously contended were error, but o ffers no arguments on appeal. Accordingly, any challenges to these decisions are deemed waived. See Norton v. Sa m’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are c onsidered waived and normally will not be addressed on appeal.”); accord United St ates v. Brown, --- F.3d ----, 2016 WL 3254735, at *10 (2d Cir. 2016). Even if McDade could clear this procedural hurdle, his challenges would fail on the merits.