15-2593-cr
United States v. McDade

                           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 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 28th 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 ANTOINE, AKA Little Homie,
RASHAWN DUBOSE, AKA Chubbs, AKA Trev,
GREGORY THOMAS, AKA Quanny, AKA Jim Jim,
AKEEM MANOO, AKA Keeme, RICARDO HOWE,
AKA Dino, AKA Tyson, NEHELIAH 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, JAMIE COLEMAN, AKA City,
ARNOLD THOMPSON, AKA B, JERROD HALL, AKA


                                                     1
Slime, RAQUIM SMITH, AKA Bud, AKA Butter, AKA
Rakim, JAMAL HOWELL, AKA Squizzy, RASHAWN
HILL, JASON WATSON, AKA 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. Silverman, Assistant United
                                            States Attorney, on the brief), for Deirdre M.
                                            Daly, United States Attorney for the District of
                                            Connecticut, New Haven, Connecticut.

        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 ORDERED, ADJUDGED,

AND DECREED that the judgment entered on August 14, 2015, is AFFIRMED.

        Defendant Tyshawn McDade stands convicted after a jury trial on substantive and

conspiratorial counts of distribution of and possession with intent 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 concurrent 132-month prison terms, above his 120-to-125-month

Guidelines range. On this appeal, McDade challenges the sufficiency of the evidence

supporting his conspiracy conviction, as well as certain evidentiary rulings. We assume

the parties’ familiarity with the facts and record of prior proceedings, which we reference

only as necessary to explain our decision to affirm.

*
    The clerk of court is directed to amend the caption as set forth above.

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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 review 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 element 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 the record evidence, viewed most favorably to

the verdict, allowed a reasonable jury to find that McDade and conspiracy leader Scott

had more than a buyer-seller relationship; 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 confidential 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 Scott and McDade subsequently returned to

McDade’s home; that McDade went inside for five minutes, whereupon the two men

traveled to an arranged meeting place; and, there, McDade removed a one-ounce sample

of crack from his pocket, handed it to the source, and received $800 in return, which he

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conveyed to Scott. This evidence would allow a rational jury to conclude that McDade

was not simply buying drugs from Scott but helping Scott supply drugs to others.

Indeed, that conclusion was reinforced by recorded conversations indicating that McDade

had fronted Scott the crack needed to complete 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 could have concluded from the totality of this evidence that

McDade personally assisted Scott in transferring drugs to others, and that there existed

“prolonged cooperation between the parties, a level of mutual trust, standardized

dealings, [and] sales on credit” between Scott and McDade, all of which demonstrated

McDade’s joinder in Scott’s conspiracy to distribute drugs. United States v. Brock, 789

F.3d at 64 (internal quotation marks omitted).

      Insofar as McDade points to other evidence that he contends is inconsistent with

his participation in the drug conspiracy, he fails to show that such a conclusion is

compelled as a matter of law. Accordingly, we must assume the jury resolved all

evidentiary conflicts and drew all reasonable inferences in favor of the government. See

United States v. Salameh, 152 F.3d 88, 151 (2d Cir. 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 district 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.

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2.    Evidentiary Rulings

      a.     Co-Conspirator Statements

      McDade faults the district court’s admission 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 membership in the scheme. See United States v. Mandell,

752 F.3d 544, 552 (2d Cir. 2014) (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 furtherance 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 court concluded that “the contents of

[McDade’s] multiple wiretap conversations 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. McDade, 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. Further, as already discussed, witness testimony

demonstrated that McDade actively assisted Scott in crack sales to others.

      b.     Other Evidence

      McDade cursorily challenges the district court’s admission of certain physical

evidence collected during searches of properties associated with co-conspirators, as well

as evidence of undercover buys in which he was not involved. While McDade does not

identify a basis for these challenges, because he argues that there is no evidence that he

“knew about” or “own[ed] or ever possess[ed]” the challenged items of evidence,

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Appellant’s Br. 18–19, we assume he relies on Fed. R. Evid. 403 (allowing introduction

of evidence that is more probative 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 court properly concluded that the challenged evidence was

“relevant to show the existence of and scope of the alleged 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. Story, 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 have 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 ensuring 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 WOLFE, Clerk of Court




2
  McDade mentions in passing other decisions by the district court that he had previously
contended were error, but offers no arguments on appeal. Accordingly, any challenges
to these decisions are deemed waived. See Norton v. Sam’s Club, 145 F.3d 114, 117
(2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered waived and
normally will not be addressed on appeal.”); accord United States 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.

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