1 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.

At a stated term of the United States Court of Appeals for the Second 1

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 2

Square, in the City of New York, on the 31 st day of May, two thousand sixteen. 3

4

PRESENT: JOSÉ A. CABRANES, 5

CHESTER J. STRAUB, 6

RAYMOND J. LOHIER, JR., 7

Circuit Judges. 8

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐ 9

UNITED STATES OF AMERICA, 10

11

Appellee

, 12

13

v. No. 13

‐ 2331 (L) 14

15

ANTHONY MAYES, JR., 16

ANTOINE MAYES, 17

18

Defendants

‐ Appellants. * 19

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐ 20

21

* The Clerk of Court is directed to amend the case caption as set forth above.2 FOR APPELLEE: A LICYN L. C OOLEY (Susan Corkery, 1

Berit W. Berger, Richard M. Tucker, 2

on the brief ), Assistant United States 3

Attorneys, for Robert L. Capers, 4

United States Attorney for the 5

Eastern District of New York, 6

Brooklyn, NY. 7

8

FOR DEFENDANT

‐ APPELLANT 9

ANTOINE MAYES: L AWRENCE D. G ERZOG (Jeremy 10

Gutman, on the brief ), New York, NY. 11

12

FOR DEFENDANT

‐ APPELLANT 13

ANTHONY MAYES, JR: Anthony Mayes, Jr., pro se, 14

Jonesville, VA. 15

16

Appeal from judgments of the United States District Court for the Eastern 17

District of New York (Ross, Judge ). 18

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

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

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

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

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

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

violation of 21 U.S.C. § 841(a)(1), and (2) a January 14, 2015 judgment convicting 25

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

inter alia, 18 U.S.C. § 1962(c). Anthony Mayes, Jr. appeals (1) a December 24, 2

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

prior felony conviction, in violation of 18 U.S.C. § 922(g)(1), and (2) another 4

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

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

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

to explain our decision to affirm. 8

1. Antoine Mayes 9

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

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

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

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

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

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

United States v. Eppolito, 543 F.3d 25, 49 (2d Cir. 2008). Second, he asserts that 16

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

furtherance of a racketeering enterprise. Again, our review of the trial record 184 confirms that a reasonable jury could find that Antoine Mayes possessed a 1

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

§ 924(c)(1)(B)(ii). [GA17] 3

2. Anthony Mayes, Jr. 4

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

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

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

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

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

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

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

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

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

14

15

16

17

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

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

of the District Court are AFFIRMED. 3

FOR THE COURT: 4

Catherine O = Hagan Wolfe, Clerk of Court 5