United States v. Mensah
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Opinion
23-6662-cr United States v. Mensah
Jn the United States Court of Appeals For the Second Circuit
August Term, 2023 No. 23-6662-cr
UNITED STATES OF AMERICA, Appellee,
v.
ENOCK MENSAH, Defendant-Appellant.
On Appeal from a Judgment of the United States District Court for the Eastern District of New York.
ARGUED: MAY 24, 2024 DECIDED: AUGUST 2, 2024
Before: LIVINGSTON, Chief Judge, NARDINI, AND ROBINSON, Circuit Judges.
Defendant-Appellant Enock Mensah was a social worker who billed publicly funded agencies for over 1,600 treatment sessions that never took place. He was convicted, following a jury trial, of theft of public funds, in violation of 18 U.S.C. § 666(a)(1)(A), and health care fraud, in violation of 18 U.S.C. § 1347(a). The United States District Court for the Eastern District of New York sentenced Mensah to forty- two months of imprisonment, to be followed by one year of supervised release. The court also ordered Mensah to pay $177,345 in restitution. Mensah now appeals, arguing that the district court erred in (1) failing to excuse or conduct further examination of a juror who knew a government witness; (2) denying Mensah’s post-trial motion for a new trial based on the prosecutor’s objection, during the cross- examination of a trial witness, that suggested Mensah had the ability to testify; and (3) applying a ten-level enhancement based on the loss amount in its calculation of the United States Sentencing Guidelines advisory range. We disagree. First, the district court did not abuse its discretion by failing to excuse a juror whose sister’s friend’s husband was a government witness. That connection was too attenuated to give rise to any presumption of bias. Nor did it err in its voir dire of that juror: After the acquaintanceship was disclosed, the district court adequately screened for any actual bias arising from the juror’s knowledge of the government’s witness. Second, the district court did not err in denying Mensah’s motion for a new trial based on the prosecutor’s comment before the jury that implicated Mensah’s Fifth Amendment right not to testify. Any prejudice from the prosecutor’s comment was rendered moot when the defendant elected to testify. And the record does not suggest that the comment somehow compelled or coerced Mensah to testify. Finally, we discern no clear error in the district court’s finding at sentencing that Mensah’s fraud resulted in a loss of $177,345, which was based on a careful reconstruction of Mensah’s whereabouts— using video surveillance, license-plate reading technology, and his
2 cellphone records, among other things—when he claimed to have performed treatment sessions. Accordingly, we AFFIRM the district court’s judgment.
ANTHONY BAGNUOLA (David C. James, on the brief), Assistant United States Attorneys, for Breon Peace, United States Attorney for the Eastern District of New York, Central Islip, NY, for Appellee.
RICHARD WASHINGTON, New York, NY, for Defendant-Appellant.
WILLIAM J. NARDINI, Circuit Judge:
Defendant-Appellant Enock Mensah was a social worker who
participated in a state-run program that provided remedial services
to developmentally delayed children and their families. Mensah
billed publicly funded agencies for over 1,600 sessions that never took
place, and he pocketed those payments. Mensah was convicted,
following a jury trial, of theft of public funds, in violation of 18 U.S.C.
§ 666(a)(1)(A), and health care fraud, in violation of 18 U.S.C.
§ 1347(a). The United States District Court for the Eastern District of
New York sentenced Mensah to forty-two months of imprisonment,
3 to be followed by one year of supervised release. The district court
also ordered Mensah to pay $177,345 in restitution.
Mensah now appeals, arguing that the district court erred by
(1) failing to excuse or conduct further examination of a juror who
knew a government witness; (2) denying Mensah’s post-trial motion
for a new trial based on the prosecutor’s objection, during the cross-
examination of a trial witness, that suggested Mensah had the ability
to testify; and (3) applying a ten-level enhancement for the loss
stemming from Mensah’s fraud in its calculation of the advisory
range under the United States Sentencing Guidelines. We disagree.
First, the district court did not abuse its discretion by failing to
excuse a juror whose “sister’s friend’s husband,” App’x at 345, was a
government witness. That connection was too attenuated to give rise
to any presumption of bias. Nor did the district court plainly err in
its voir dire of that juror. After the acquaintanceship was disclosed,
4 the district court adequately screened for any actual bias arising from
the juror’s knowledge of the government’s witness.
Second, the district court did not err in denying Mensah’s post-
trial motion for a new trial based on the prosecutor’s comment before
the jury that implicated Mensah’s Fifth Amendment right not to
testify. Any prejudice from the prosecutor’s comment was rendered
moot when the defendant elected to testify. And the record does not
suggest that the comment somehow compelled or coerced Mensah to
testify.
Finally, we discern no clear error in the district court’s finding
at sentencing that the loss stemming from Mensah’s fraud was
$177,345, which was based on a careful reconstruction of Mensah’s
whereabouts—using video surveillance, license-plate reading
technology, and his cellphone records, among other things—when he
claimed to have performed treatment sessions.
Accordingly, we AFFIRM the district court’s judgment.
5 I. Background
The New York State Early Intervention Program (“EIP”)
provides to developmentally delayed children under the age of three
years old a broad range of remedial services, such as physical therapy,
occupational therapy, speech therapy, and social work. In order to
provide these services, the New York State Department of Health
(“NYS DOH”), which administers the EIP, contracts with various
agencies, non-profits, and private companies.
Mensah was employed as a social worker by two agencies—the
City Pro Group and All About Kids—contracted by NYS DOH to
provide EIP services. Social workers providing EIP services are
tasked with addressing challenges affecting the children’s caregivers
or environment, which may involve the social worker assisting
families with securing benefits, or counseling caregivers on how to
provide for children with disabilities, among other responsibilities.
6 Agencies contracted by the NYS DOH pay providers for their
EIP services. Those agencies, in turn, are reimbursed by NYS DOH
with funds from Medicaid, the New York City Department of Health
and Mental Hygiene (“NYC DOHMH”), or private insurance. Most
of the reimbursements come from Medicaid or NYS DOHMH.
A. The Charges
On February 4, 2019, a grand jury returned an indictment
charging Mensah with theft of public funds, in violation of 18 U.S.C.
§ 666(a)(1)(A), and health care fraud, in violation of 18 U.S.C.
§ 1347(a). The indictment alleged that between August 2013 and
August 2017, Mensah reported that he provided more than 1,200
therapy sessions for EIP when he, in fact, had not. As a result of those
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23-6662-cr United States v. Mensah
Jn the United States Court of Appeals For the Second Circuit
August Term, 2023 No. 23-6662-cr
UNITED STATES OF AMERICA, Appellee,
v.
ENOCK MENSAH, Defendant-Appellant.
On Appeal from a Judgment of the United States District Court for the Eastern District of New York.
ARGUED: MAY 24, 2024 DECIDED: AUGUST 2, 2024
Before: LIVINGSTON, Chief Judge, NARDINI, AND ROBINSON, Circuit Judges.
Defendant-Appellant Enock Mensah was a social worker who billed publicly funded agencies for over 1,600 treatment sessions that never took place. He was convicted, following a jury trial, of theft of public funds, in violation of 18 U.S.C. § 666(a)(1)(A), and health care fraud, in violation of 18 U.S.C. § 1347(a). The United States District Court for the Eastern District of New York sentenced Mensah to forty- two months of imprisonment, to be followed by one year of supervised release. The court also ordered Mensah to pay $177,345 in restitution. Mensah now appeals, arguing that the district court erred in (1) failing to excuse or conduct further examination of a juror who knew a government witness; (2) denying Mensah’s post-trial motion for a new trial based on the prosecutor’s objection, during the cross- examination of a trial witness, that suggested Mensah had the ability to testify; and (3) applying a ten-level enhancement based on the loss amount in its calculation of the United States Sentencing Guidelines advisory range. We disagree. First, the district court did not abuse its discretion by failing to excuse a juror whose sister’s friend’s husband was a government witness. That connection was too attenuated to give rise to any presumption of bias. Nor did it err in its voir dire of that juror: After the acquaintanceship was disclosed, the district court adequately screened for any actual bias arising from the juror’s knowledge of the government’s witness. Second, the district court did not err in denying Mensah’s motion for a new trial based on the prosecutor’s comment before the jury that implicated Mensah’s Fifth Amendment right not to testify. Any prejudice from the prosecutor’s comment was rendered moot when the defendant elected to testify. And the record does not suggest that the comment somehow compelled or coerced Mensah to testify. Finally, we discern no clear error in the district court’s finding at sentencing that Mensah’s fraud resulted in a loss of $177,345, which was based on a careful reconstruction of Mensah’s whereabouts— using video surveillance, license-plate reading technology, and his
2 cellphone records, among other things—when he claimed to have performed treatment sessions. Accordingly, we AFFIRM the district court’s judgment.
ANTHONY BAGNUOLA (David C. James, on the brief), Assistant United States Attorneys, for Breon Peace, United States Attorney for the Eastern District of New York, Central Islip, NY, for Appellee.
RICHARD WASHINGTON, New York, NY, for Defendant-Appellant.
WILLIAM J. NARDINI, Circuit Judge:
Defendant-Appellant Enock Mensah was a social worker who
participated in a state-run program that provided remedial services
to developmentally delayed children and their families. Mensah
billed publicly funded agencies for over 1,600 sessions that never took
place, and he pocketed those payments. Mensah was convicted,
following a jury trial, of theft of public funds, in violation of 18 U.S.C.
§ 666(a)(1)(A), and health care fraud, in violation of 18 U.S.C.
§ 1347(a). The United States District Court for the Eastern District of
New York sentenced Mensah to forty-two months of imprisonment,
3 to be followed by one year of supervised release. The district court
also ordered Mensah to pay $177,345 in restitution.
Mensah now appeals, arguing that the district court erred by
(1) failing to excuse or conduct further examination of a juror who
knew a government witness; (2) denying Mensah’s post-trial motion
for a new trial based on the prosecutor’s objection, during the cross-
examination of a trial witness, that suggested Mensah had the ability
to testify; and (3) applying a ten-level enhancement for the loss
stemming from Mensah’s fraud in its calculation of the advisory
range under the United States Sentencing Guidelines. We disagree.
First, the district court did not abuse its discretion by failing to
excuse a juror whose “sister’s friend’s husband,” App’x at 345, was a
government witness. That connection was too attenuated to give rise
to any presumption of bias. Nor did the district court plainly err in
its voir dire of that juror. After the acquaintanceship was disclosed,
4 the district court adequately screened for any actual bias arising from
the juror’s knowledge of the government’s witness.
Second, the district court did not err in denying Mensah’s post-
trial motion for a new trial based on the prosecutor’s comment before
the jury that implicated Mensah’s Fifth Amendment right not to
testify. Any prejudice from the prosecutor’s comment was rendered
moot when the defendant elected to testify. And the record does not
suggest that the comment somehow compelled or coerced Mensah to
testify.
Finally, we discern no clear error in the district court’s finding
at sentencing that the loss stemming from Mensah’s fraud was
$177,345, which was based on a careful reconstruction of Mensah’s
whereabouts—using video surveillance, license-plate reading
technology, and his cellphone records, among other things—when he
claimed to have performed treatment sessions.
Accordingly, we AFFIRM the district court’s judgment.
5 I. Background
The New York State Early Intervention Program (“EIP”)
provides to developmentally delayed children under the age of three
years old a broad range of remedial services, such as physical therapy,
occupational therapy, speech therapy, and social work. In order to
provide these services, the New York State Department of Health
(“NYS DOH”), which administers the EIP, contracts with various
agencies, non-profits, and private companies.
Mensah was employed as a social worker by two agencies—the
City Pro Group and All About Kids—contracted by NYS DOH to
provide EIP services. Social workers providing EIP services are
tasked with addressing challenges affecting the children’s caregivers
or environment, which may involve the social worker assisting
families with securing benefits, or counseling caregivers on how to
provide for children with disabilities, among other responsibilities.
6 Agencies contracted by the NYS DOH pay providers for their
EIP services. Those agencies, in turn, are reimbursed by NYS DOH
with funds from Medicaid, the New York City Department of Health
and Mental Hygiene (“NYC DOHMH”), or private insurance. Most
of the reimbursements come from Medicaid or NYS DOHMH.
A. The Charges
On February 4, 2019, a grand jury returned an indictment
charging Mensah with theft of public funds, in violation of 18 U.S.C.
§ 666(a)(1)(A), and health care fraud, in violation of 18 U.S.C.
§ 1347(a). The indictment alleged that between August 2013 and
August 2017, Mensah reported that he provided more than 1,200
therapy sessions for EIP when he, in fact, had not. As a result of those
fraudulently reported sessions, the indictment alleged that Mensah
received more than $105,000 in Medicaid funds and more than
$20,000 in NYC DOHMH funds.
7 On August 30, 2019, a grand jury returned a superseding
indictment with the same charges but that expanded the relevant
timeframe of Mensah’s fraud to October 2018 and additionally
alleged that he fraudulently reported more than 1,500 non-existent
EIP sessions, resulting in payments of more than $130,000 from
Medicaid funds and more than $25,000 from NYC DOHMH funds.
B. Trial
The United States District Court for the Eastern District of New
York (Sterling Johnson, Jr., District Judge) held a jury trial from
December 2 to December 10, 2019.
i. Jury Selection
Before jury selection commenced, the government submitted a
list of names and places that would likely be mentioned during trial,
which included Michael Cecilio, a Special Investigator for the New
York City Department of Investigation (“NYC DOI”). Cecilio later
testified as a government witness. During jury selection, the
8 presiding magistrate judge (James Orenstein, Magistrate Judge)
distributed the list to prospective jurors and asked them to indicate
whether they knew any of the names. None of the prospective jurors
reported any familiarity with Cecilio.
ii. The Government’s Case
At trial, the government presented the following evidence of
the EIP’s requirements and procedures, Mensah’s scheme, and the
loss stemming from Mensah’s scheme.
a. The EIP’s Requirements and Procedures
A NYC DOHMH employee testified about the requirements
that providers must follow when administering services for the EIP,
including that they must administer services in person (and are
prohibited from doing so over the phone). Furthermore, during a
session, an EIP provider must contemporaneously document his
services, as well as the location, date, and time of service, in a session
note. At the end of the session, the EIP provider and the child’s
9 caregiver must sign the session note. EIP providers must then submit
the session notes to the appropriate agencies to obtain payment for
their services. EIP providers are not permitted to complete a session
note before a session occurs, have a caregiver sign a blank session
note, or forge a caregiver’s signature. Many of these requirements
related to the sessions notes are codified in state regulations. See, e.g.,
10 CRR-NY 69-4.26(c). And Mensah agreed contractually to abide by
such regulations when he joined City Pro Group and All About Kids.
A City Pro Group employee testified about the mechanics of
the agency’s payment process for providers. Providers must submit
their session notes to the agency for processing. After the notes are
processed, the agency reviews notes selected at random to ensure that
providers have completed the required components. The agency
does not independently verify whether the sessions occurred but
instead views the session notes as proof that such sessions took place
10 Once the agency completes this process, the providers are paid for
their services.
b. Mensah’s Scheme
The government introduced the following evidence to support
the allegations that Mensah billed agencies for sessions that never
occurred.
1. Victims’ Testimony
Seven parents of children receiving EIP services testified about
their experiences with Mensah. Mensah was assigned to provide
social work services to those parents to support and counsel them on
their children’s disabilities. For example, Mensah was tasked with
assisting one parent with applying for benefits for her son with
autism spectrum disorder and with obtaining furniture that her son
required. For another parent, Mensah was assigned to provide her
with counseling to address her feelings of being “overwhelmed” by
her son’s needs. App’x at 506.
11 Broadly speaking, the parents testified that Mensah had them
sign blank session notes, that session notes submitted by Mensah
contained forged signatures of their names, that Mensah did not
provide services as frequently as he was scheduled, and/or that it was
impossible for Mensah to have provided services on dates specified
on certain session notes submitted for payment. Additionally, one
parent testified that Mensah drove to the sessions, and another
testified that she met Mensah at his car for sessions.
The parents’ testimony that Mensah did not provide services
on dates indicated in the session notes was often corroborated by
other evidence. For instance, Mensah submitted two session notes for
payment for sessions purportedly conducted during the time that a
parent and her son were out of the country. On December 15, 2017,
another parent texted Mensah to inquire when he would next provide
services to her son, noting that he had not done so for five weeks.
However, during the five weeks preceding the text message, Mensah
12 submitted several session notes for the son, some of which contain the
parent’s forged signature. Furthermore, yet another parent texted
Mensah that Mensah “forgot to come” on April 16, 2018, id. at 590, but
he nevertheless submitted a session note for a session that allegedly
took place that day.
During the cross-examination of another parent, defense
counsel pressed her on the extent of the assistance that Mensah
provided her. Defense counsel’s questioning led the government to
raise an objection implicating Mensah’s right to remain silent:
Q: All right. Now, at the time you indicated that you lived in a fifth floor walkup?
A: Yes, I did.
Q: And Mr. Mensah was supposed to help you get relocated to another apartment?
A: Yes.
Q: And he told you about the New York City Housing Authority?
A: He did.
13 Q: And you said that that took too long, right?
A: And I applied.
Q: But you told him – you told him that it took too long?
A: I told him it takes long, but I also applied like he asked me to.
Q: And he told you that if it was not the New York City Housing Authority, every program had guidelines, right?
Q: And he told you the only emergency –
[Prosecutor]: Objection, your honor.
The court: What’s the objection?
[Prosecutor]: Objection, your honor. If he wants the defendant to testify –
The court: No, no, no, no, no. Overruled.
Id. at 712–13. Defense counsel resumed his questioning of the parent
after this exchange. After the jury was dismissed, the district court
admonished the prosecutor for his objection, noting that it was
14 inappropriate. Later, at the charge conference, defense counsel did
not request a curative instruction to address the government’s
objection. Instead, defense counsel stated that the proposed jury
instructions “look[ed] fine” and that the defense had “no complaints.”
Id. at 721. The jury instructions advised, among other things, that
“[t]he defendant in a criminal case never has any duty to testify or
come forward with any evidence.” Id. at 912. After the district court
read those instructions to the jury, it held a sidebar during which it
asked the parties if there was “[a]nything” further, to which the
parties responded, “[n]o.” Id. at 940.
2. The ExxonMobil Gas Station
The government introduced evidence that Mensah frequently
spent considerable time at an ExxonMobil gas station in Englewood,
New Jersey. A cashier at the gas station, testified that Mensah was a
regular customer of the gas station and visited it “[a]lmost every day”
for an hour or more. Id. at 424. Video surveillance captured Mensah
15 “hanging out” at the gas station on August 24, 2018, during the same
time that he allegedly conducted several sessions and billed for them.
Id. at 431. The cashier testified that he never saw Mensah “conduct
business” at the gas station. Id. at 425.
3. Mensah’s Arrest
On October 4, 2018, law enforcement agents—including
Cecilio—arrested Mensah at his apartment. Agents discovered blank
session notes that had been signed and pre-filled session notes
reflecting future appointments that had not yet occurred.
c. Loss Amount
The government introduced the following evidence regarding
the loss amount, meaning the amount of public funds paid to Mensah
for services that he did not render. The government’s primary
witness on this point, Natalie Lin, estimated the loss amount based,
in part, on license plate recognition (“LPR”) data, which tracked the
movements of Mensah’s car. Because the LPR data relied on the
16 identity of Mensah’s car, the government also produced evidence of
the car that Mensah drove.
1. Mensah’s Car
The government introduced evidence that Mensah owned and
operated a silver 2002 Lexus ES 300 registered in New Jersey with
license plate number D72ETE (the “Silver Lexus”). Records from the
New Jersey Motor Vehicle Commission (“NJMVC”), parking tickets
from the New York City Department of Finance, and moving
violation tickets from the New York Department of Motor Vehicles,
all indicate that Mensah owned and drove the Silver Lexus. A
NJMVC employee testified that the Silver Lexus was registered to
Mensah between January 1, 2015, and October 3, 2018, and that no
other cars were registered to Mensah during that time.
Other witnesses corroborated that Mensah drove the Silver
Lexus. Mensah’s ex-wife testified that she drove the Silver Lexus until
September 2014, after which she sold the car to Mensah and never
17 drove the car again. She was not aware of any time that her son—her
only child who drives—used the Silver Lexus. The ExxonMobil
cashier testified that he saw Mensah driving the Silver Lexus “many
times.” Id. at 430. Moreover, Cecilio testified that he surveilled
Mensah driving the Silver Lexus at Mensah’s apartment building, and
that he photographed Mensah entering the Silver Lexus and driving
away.
2. Lin’s Analysis
Lin, a data analyst at the New York City Department of
Investigation, testified that, based on her analysis, Mensah submitted
session notes for payment for 1,725 sessions that never happened. Of
those sessions, 1,689 resulted in payment from public funds, totaling
$177,345. Medicaid paid for $148,155 of that total, while NYC
DOHMH paid for $29,190.
She examined six types of evidence to reach that conclusion.
First, she reviewed approximately 3,000 session notes submitted by
18 Mensah for payment to determine the date and time of the alleged
service as well as the child receiving the service.
Second, she reviewed a spreadsheet of data maintained by
NYC DOHMH containing the addresses of the children receiving EIP
services, which were presumably the locations of Mensah’s purported
sessions. All of the children listed on the spreadsheet resided within
the five boroughs of New York City. The spreadsheet also identifies
the payor of Mensah’s sessions and the amounts, if any, that were
paid for those sessions.
Third, she reviewed Mensah’s cellphone records, which totaled
more than 780 pages and indicated the date, time, and duration of
calls involving Mensah’s cellphone. Those records did not indicate
who was using the cellphone. Fourth, she reviewed surveillance
footage of the ExxonMobil gas station in Englewood, New Jersey from
August 24, 2018.
19 Fifth, she reviewed the LPR data generated by New York City
municipal cameras that captured the Silver Lexus’s license plate. That
data came in two forms: directional and static. Directional LPR
reflected instances when cameras captured the license plate crossing
a bridge or a tunnel, indicating whether the car was traveling inbound
to or outbound from New York City—say, on the George Washington
Bridge. Static LPR captured the car at various moments, providing
the latitude and longitude of where the license plate was
photographed, as well as the date and time that the license plate
appeared at that location. Cecilio testified that he reviewed the LPR
data to confirm that each image returned from the cameras matched
the Silver Lexus’s license plate number. The LPR data did not
establish who was driving the Silver Lexus, because the photos did
not show who was in the driver’s seat.
20 Sixth, Lin reviewed Mensah’s personnel records maintained by
City Pro Group and All About Kids to determine that at all relevant
times, Mensah lived in New Jersey.
Lin summarized her findings in a spreadsheet, admitted into
evidence, that used the data from these various sources to identify
instances when evidence of Mensah’s location and activities
conflicted with the services that Mensah purportedly administered.
Using the directional LPR data, Lin recorded a conflict when
Mensah billed for services in New York City either before a camera
photographed the Silver Lexus’s license plate entering New York for
the day, or after the license plate returned to New Jersey for the
evening. Using the static LPR data, Lin recorded a conflict when the
Silver Lexus’s license plate was photographed at a location where
Mensah would have had to drive at a constant speed of more than
forty miles per hour within New York City to provide the services
reflected in a session note. Lin determined the distance between the
21 locations “as the crows flies,” id. at 679, meaning she did not consider
the traffic, configuration of the roadways, or traffic lights, among
other things. Relying on the cellphone records, Lin recorded a conflict
when Mensah’s cellphone was in use for at least fifteen minutes
during a purported session and when another source of evidence
independently corroborated that Mensah was likely not providing
services. Finally, using the surveillance footage from the gas station,
Lin recorded a conflict when Mensah was depicted on that footage at
the same time that he purportedly provided a session.
Lin provided several examples of conflicts that she identified
suggesting that Mensah did not provide certain sessions reflected in
his submitted session notes. These conflicts were corroborated by
other evidence, such as contemporaneous text messages sent from
Mensah’s cellphone.
For example, Mensah submitted session notes for six purported
sessions on July 6, 2015. Lin testified, however, that there were no
22 LPR entries on July 6, 2015, which suggested that the Silver Lexus
never traveled into New York City, where all of the children Mensah
served resided, on that specific day. A text message sent from
Mensah’s cellphone on the same day stated, “I did not come to New
York today.” Id. at 685.
Similarly, Mensah submitted session notes for four purported
sessions on November 26, 2015, which was Thanksgiving Day. Lin
testified again that the lack of LPR entries for that day indicated that
the Silver Lexus did not travel into New York City. This conclusion
is corroborated by a text message sent from Mensah’s cellphone the
day before Thanksgiving Day, which stated: “I’ll be going to
Pittsburgh tomorrow and will be back tomorrow or Friday.” Id. at
694.
In addition, Mensah submitted session notes for four purported
sessions on January 10, 2016. Several of those sessions allegedly took
place between 3:00 p.m. and 8:55 p.m. Like the previous examples,
23 Lin testified there were no LPR entries for that day, so she concluded
that the Silver Lexus did not travel into New York City that day. A
text message sent from Mensah’s cellphone on the same day
suggested that Mensah entertained company at his home between the
hours of 3:00 p.m. and 7:30 p.m.
Furthermore, Mensah submitted session notes for two alleged
sessions on September 13, 2016, and Lin testified that the LPR data
indicated that the Silver Lexus never traveled into New York City that
day. This conclusion is corroborated by a text message sent from
Mensah’s cellphone the same day, which stated, “I am in
Pennsylvania.” Id. at 689.
Mensah also submitted session notes for purported sessions on
August 24, 2018. Lin testified that the three sessions occurred before
the Silver Lexus traveled into New York City that day and during
times when Mensah was captured on the surveillance footage from
the gas station. Similarly, Mensah submitted session notes for two
24 purported sessions on September 13, 2018, between 9:30 a.m. and
11:30 a.m. Lin found that both of those sessions happened before the
Silver Lexus traveled into New York City that day. This conclusion is
supported by a text message sent from Mensah’s cellphone at 10:00
a.m. that day, stating, “I am in the gym. Will go to work in a few.”
Id. at 692.
d. Issue with Juror #6
Before Cecilio testified, the government informed the district
court that Cecilio recognized Juror #6. The district court asked Cecilio
if he had a relationship with Juror #6. Cecilio responded that he “went
to college with [Juror #6’s] older sister” and that his “wife and [Juror
#6’s] sister were roommates after college.” Id. at 342–43. Cecilio
stated that Juror #6 would know him but clarified that they had “[n]o
relationship.” Id. at 343. Defense counsel stated that “if there’s a
friendly relationship,” he was not sure whether that relationship
25 “would impact the juror’s ability to properly evaluate this witness’
testimony,” id., and proposed asking Juror #6 if he recognizes Cecilio.
The district court brought Juror #6 to the courtroom where
Cecilio was sitting at a table and asked Juror #6 if he recognized
anybody seated at the tables. Juror #6 responded that he recognized
Cecilio, identifying Cecilio as his “sister’s friend’s husband.” Id. at
345. Juror #6 stated that he did not “have a relationship with him”
but that he “know[s] him . . . through seeing him.” Id. The district
court asked if Juror #6 could still be fair and impartial even though he
recognizes Cecilio, to which Juror #6 replied, “Hundred percent.” Id.
The district court confirmed again that Juror #6 could still be fair and
impartial.
Defense counsel noted on the record that Juror #6 appeared to
be “very happy” to see Cecilio in court, id. at 345–46, so defense
counsel was not sure if Juror #6 could actually be fair and impartial as
to Cecilio’s testimony. The district court disagreed with defense
26 counsel’s account of the events, stating that Juror #6 smiled at the
judge, not at the witness. Juror #6 continued serving on the jury.
iii. The Defense’s Case
Mensah testified in his own defense. He stated that he
commuted to work by driving or through public transit, such as a
shuttle from his apartment, a bus, or the subway. He also said that he
drove the Silver Lexus given to him by his ex-wife and that he used
to drive his ex-girlfriend’s car, a Chrysler 300. He denied ever forging
anyone’s signature and testified that in practice, providers have
parents sign blank session notes.
Mensah also attempted to explain the discrepancy regarding
August 24, 2018, the day he was featured on surveillance footage from
the gas station and submitted session notes for sessions that
purportedly occurred during that time. He testified that he “pre-
fill[ed]” the session notes for that day with the scheduled times of the
sessions, which he does “most of the time.” Id. at 776. He further
27 testified that parents rescheduled the visits for that day, and that he
had inadvertently failed to change the time on the pre-filled session
notes to the rescheduled times during which he actually provided
services.
On cross-examination, the government questioned Mensah on
various aspects of his testimony. For example, addressing Mensah’s
testimony that he works on Thanksgiving Day, the government
produced correspondence dated November 25, 2015, suggesting that
Mensah did not work on Thanksgiving Day in 2015, which was on
November 26, 2015. In that correspondence, someone asked Mensah,
“what are you doing tomorrow?”, to which Mensah responded, “I
will be going to Pittsburgh tomorrow and be back on Friday or
Saturday[.]” Id. at 798. Mensah testified that the person involved in
the correspondence “is a model friend of [his] ex-girlfriend” who had
been “bugging [him] . . . [to] help her out to establish [an] LLC.” Id.
at 799. Mensah denied traveling to Pittsburgh on November 26.
28 Resisting the government’s characterization of his
correspondence as dishonest or false, Mensah testified that he was
trying “to distract [his] friend” because he did not “want to see her.”
Id. at 801. He explained that he “[did not] know anybody in
Pennsylvania.” Id. at 799. The government then asked Mensah if his
son attended Carnegie Mellon University, which is located in
Pittsburgh, Pennsylvania. Mensah responded that his son did. And
when asked if his previous statement that he had no connection to
Pennsylvania was therefore a mistake, Mensah testified that his son
did not live there but merely went to school there. Mensah could not
recall whether his son attended Carnegie Mellon in 2015.
iv. The Jury’s Verdict
The jury found Mensah guilty of both Count One (theft of
funds) and Count Two (health care fraud).
29 C. Post-Trial Motions
On January 30, 2020, Mensah moved for a judgment of acquittal
under Federal Rule of Criminal Procedure 29 or, in the alternative, for
a new trial under Federal Rule of Criminal Procedure 33. He argued
that relief was warranted because (1) the testimony of the
government’s witnesses was incredible and inconsistent; (2) he acted
in good faith, which is a complete defense to the fraud count; and (3)
the prosecutor improperly commented on his right to remain silent,
which prejudiced him.
The district court denied Mensah’s motion. The district court
found that the prosecutor’s comment was improper, but nevertheless
concluded that vacatur of the conviction or a new trial was not
necessary because the court could not identify any prejudice to
Mensah as a result of that comment. The court reasoned that (1) the
prosecutor did not finish the sentence before the district court
interrupted him; (2) the district court advised the jury at the
30 beginning and end of the trial that Mensah had no obligation to
testify; and (3) Mensah testified, “render[ing] moot” “any negative
inference the jury may have drawn from a decision to remain silent,”
and “Mensah does not argue that his decision to testify was in any
way motivated by the prosecutor’s comment or that his testimony
ultimately harmed his case,” id. at 1371.
D. Sentencing
The Presentence Investigation Report (“PSR”) stated that
Mensah received payment for 1,689 sessions that never happened,
totaling $148,155 in Medicaid funds and $29,190 in NYC DOHMH
funds, which is consistent with Lin’s trial testimony. The PSR
additionally reported that restitution was statutorily required—
$20,000 to NYC DOHMH and $105,000 to Medicaid.
The PSR, which was amended after receiving objections from
the government, calculated a total offense level of 24, which, coupled
with Mensah’s criminal history category of I, resulted in an advisory
31 Guidelines range of 51 to 63 months of imprisonment. In calculating
the total offense level, the Probation Office applied enhancements
based on Mensah’s abuse of his position of public trust in committing
the offenses, his obstruction of justice as a result of his false testimony
during trial, and the fact that his crimes involved vulnerable victims.
The U.S. Probation Office also found that the estimated total loss
stemming from Mensah’s scheme was $177,345, which is more than
$150,000 but less than $250,000, resulting in a ten-level enhancement
under U.S.S.G § 2B1.1(b)(1)(F).
In Mensah’s sentencing memorandum, he raised numerous
“objections” to the PSR, including that the table in the Guidelines for
calculating the enhancement for loss amount “overstates the
seriousness of the offense” and therefore “the impact of the loss table
should be limited.” Id. at 1386–87. Although he generally objected to
the impact of the loss table, he did not object to the application of the
loss enhancement. He did object to the application of the obstruction
32 of justice enhancement, as well as the restitution, arguing that the
government had failed to prove the loss amount by a preponderance
of the evidence.
On June 8, 2023, the district court (Ann M. Donnelly, District
Judge) 1 sentenced Mensah principally to a below-Guidelines sentence
of forty-two months of imprisonment, to be followed by one year of
supervised release. The district court also imposed a special
assessment of $200 and ordered restitution in the amount of $177,345.
The district court adopted the PSR in its entirety, including the
Guidelines calculation.
The district court entered judgment on June 13, 2023, which
listed the restitution amount as $177,745. On June 20, 2023, Mensah
filed a notice of appeal. On June 28, 2023, the government requested
an amended judgment because the restitution amount listed in the
written judgment did not match the restitution amount orally
1After the trial and post-trial ruling, the case was reassigned to Judge Donnelly on September 13, 2022. Judge Johnson passed away on October 10, 2022.
33 imposed by the district court at sentencing. On July 11, 2023, the
district court entered an amended judgment that updated the total
restitution amount to $177,345. Finally, on July 18, 2023, the district
court entered a separate order of restitution again providing that the
total restitution amount is $177,345.
II. Discussion
On appeal, Mensah contends that the district court erred in:
(1) failing to excuse or conduct further examination of Juror #6 for
bias; (2) denying Mensah’s request for post-trial relief based on the
prosecutor’s comment implicating Mensah’s right to testify; and
(3) applying the ten-level enhancement for the loss amount. For the
reasons below, we affirm the district court’s judgment.
A. Juror #6
Mensah argues that Juror #6 “was partial to the prosecution . . .
based on his prior acquaintance with Mr. Cecilio,” Appellant’s Br. at
14, and accordingly, the district court should have excused Juror #6
or conducted additional inquiry into the duration of Juror #6’s
34 relationship with Cecilio and why Juror #6 did not disclose that he
knew Cecilio during jury selection to ensure that Juror #6 held no bias.
“We review for abuse of discretion a district court’s handling
of juror dismissal,” United States v. Walker, 974 F.3d 193, 209 (2d Cir.
2020), “revers[ing] only if there is ‘clear abuse’ of the district court’s
discretion,” Cruz v. Jordan, 357 F.3d 269, 270 (2d Cir. 2004) (quoting
United States v. Nelson, 277 F.3d 164, 202 (2d Cir. 2002)). “[A]
reviewing court will only find abuse of that discretion where there is
bias or prejudice to the defendant.” United States v. Breen, 243 F.3d
591, 597 (2d Cir. 2001) (internal quotation marks and citation omitted).
Because Mensah did not object to the district court’s
questioning of Juror #6, we review his challenge to the court’s failure
to further question the juror for plain error. See Fed. R. Crim. P. 52(b);
United States v. Parse, 789 F.3d 83, 119 (2d Cir. 2015) (applying plain-
error review when the defendant failed to object to alleged juror
misconduct before the district court). Under that standard, the
35 defendant must show that “(1) there is an error; (2) the error is clear
or obvious, rather than subject to reasonable dispute; (3) the error
affected the appellant’s substantial rights; and (4) the error seriously
affects the fairness, integrity or public reputation of judicial
proceedings.” United States v. Chaires, 88 F.4th 172, 177 (2d Cir. 2023)
(quoting United States v. Miller, 954 F.3d 551, 557–58 (2d Cir. 2020)).
We start by reviewing the longstanding principles regarding
juror bias. Under the Sixth Amendment, “[a] criminal defendant is
guaranteed a trial ‘by an impartial jury.’” United States v. Torres, 128
F.3d 38, 42 (2d Cir. 1997) (quoting U.S. Const. amend. VI). An
impartial jury is one “capable and willing to decide the case solely on
the evidence before it.” Id. (quoting McDonough Power Equip., Inc. v.
Greenwood, 464 U.S. 548, 554 (1984)).
“[I]t is uncontroversial that ‘part of the guarantee of a
defendant’s right to an impartial jury is an adequate voir dire to
identify unqualified jurors.’” United States v. Nieves, 58 F.4th 623, 631
36 (2d Cir. 2023) (quoting Morgan v. Illinois, 504 U.S. 719, 729 (1992)). A
trial court is afforded broad discretion in the way it conducts voir dire,
id., and specifically, in “deciding what questions to ask prospective
jurors,” United States v. Tsarnaev, 595 U.S. 302, 313 (2022). Indeed, for
determining whether a juror is impartial, “the Constitution lays down
no particular tests and procedure is not chained to any ancient and
artificial formula.” Torres, 128 F.3d at 43 (quoting United States v.
Wood, 299 U.S. 123, 145–46 (1936)).
The broad discretion afforded to a trial court in this realm is for
good reason because “the trial court . . . is best positioned to ‘reach
conclusions as to impartiality and credibility by relying on [its] own
evaluations of demeanor evidence and of responses to questions.’”
Nieves, 58 F.4th at 631 (quoting Rosales-Lopez v. United States, 451 U.S.
182, 188 (1981)). It is for that very same reason that “the adequacy of
voir dire is not easily subject to appellate review.” Id. (quoting Rosales-
Lopez, 451 U.S. at 188); see also United States v. Greer, 285 F.3d 158, 171
37 (2d Cir. 2002) (“The district court, which observ[es] the jury on a day
to day basis . . . is in the best position to sense the atmosphere of the
courtroom as no appellate court can on a printed record.” (internal
quotation marks and citation omitted)).
The trial court’s discretion, of course, is not limitless: it “must
be exercised consistent with ‘the essential demands of fairness.’”
Nieves, 58 F.4th at 632 (quoting United States v. Barnes, 604 F.2d 121,
137–38 (2d Cir. 1979)). And fairness demands that the defense be
provided “a full and fair opportunity to expose bias or prejudice on
the part of veniremen.” Id. (quoting United States v. Colombo, 869 F.2d
149, 151 (2d Cir. 1989)). “Where the court finds that such bias or
prejudice exists, a juror is subject to dismissal for cause.” Id.
There are generally three forms of bias that may give rise to a
for-cause challenge for dismissal: (1) actual bias, (2) implied bias, and
(3) inferred bias. Id. “[A]ll three forms of bias must be ‘grounded in
facts developed at voir dire.’” Id. (quoting Torres, 128 F.3d at 47).
38 Mensah argues that Juror #6’s connection with Cecilio gave rise
to implied or inferable bias. Implied bias “is ‘presumed as a matter
of law’ where a typical person in the juror’s position would be biased,
irrespective of whether actual bias exists.” Nieves, 58 F.4th at 632
(quoting Greer, 285 F.3d at 171). The test for implied bias “is whether
an average person in the position of the juror in controversy would
be prejudiced.” Torres, 128 F.3d at 45. For this inquiry, a juror’s
statements regarding his ability to be impartial hold no weight. Id. A
finding of implied bias “is reserved for exceptional situations,” id. at
46 (internal quotation marks and citation omitted), such as when
“jurors . . . are related to the parties or . . . were victims of the alleged
crime,” id. at 45. And when such exceptional situations are present,
disqualification of the juror “is mandatory.” Id.
“[I]nferable bias . . . arises ‘when a juror discloses a fact that
bespeaks a risk of partiality sufficiently significant to warrant
granting the trial judge discretion to excuse the juror for cause, but
39 not so great as to make mandatory a presumption of bias.’” Nieves,
58 F.4th at 632 (quoting Greer, 285 F.3d at 171). In this inquiry, a juror’s
statements about his ability to be impartial are irrelevant “once facts
are elicited that permit a finding of inferable bias.” Torres, 128 F.3d at
47. But, “particularly when considering whether some marginal
types of disclosed facts are enough to show inferable bias,” a judge
may “ask about a juror’s impartiality and might be persuaded by the
force of the juror’s assurance.” Id. at 47 n.12.
Applying those principles here, we conclude that the district
court did not abuse its discretion by permitting Juror #6 to remain on
the jury. The connection between Juror #6 and Cecilio is not one of
the “exceptional situations,” id. at 46 (internal quotation marks and
citation omitted), that give rise to implied bias and therefore warrants
mandatory dismissal. The evidence in the record shows that Cecilio
went to college with Juror #6’s sister and that Cecilio’s wife and Juror
#6’s sister were roommates after college. Although Cecilio and Juror
40 #6 knew each other, both unequivocally confirmed that they had “[n]o
relationship.” App’x at 343; id. at 345. Such a non-relationship—more
precisely, a mere acquaintanceship—was too attenuated to compel a
presumption of bias. 2 See United States v. Ferri, 778 F.2d 985, 991–94
(3d Cir. 1985) (finding no implied bias where the juror’s husband
knew a government witness); United States v. Shaoul, 41 F.3d 811, 816–
17 (2d Cir. 1994) (finding no implied bias where a juror was the uncle-
in-law of a prosecutor in the same district, but the prosecutor was not
involved in the case at hand). The attenuated nature of the association
between Cecilio and Juror #6 is also, without more, fatal to Mensah’s
claim of inferred bias. See Torres, 128 F.3d at 47 (“[A]lthough not
rising to a per se implied bias category, relatives of the prosecutor
might, in a particular case, be excludable.”). In sum, the district court
2 That defense counsel thought that Juror #6 smiled at Cecilio, suggesting a higher level of familiarity, does not alter our conclusion. The district judge’s view of the events differed from defense counsel’s: he concluded that Juror #6 smiled at the judge rather than at the witness. As with demeanor findings generally, we defer to the district judge’s first-hand assessment of the facts on this point. See Greer, 285 F.3d at 172 (“[A] district court’s evaluation of the juror’s impartiality is accorded deference.”).
41 did not abuse its discretion in concluding that the acquaintanceship
between Juror #6 and Cecilio gave rise to implied or inferred bias.
Furthermore, we conclude that the district court did not plainly
err by failing to ask Juror #6 additional questions. After Cecilio
disclosed that he knew Juror #6, the district court brought Juror #6 to
the courtroom and asked him if he recognized anyone. Juror #6
replied that he knew Cecilio, prompting the district court to ask
several questions regarding the nature of Juror #6’s connection with
Cecilio. Specifically, the court asked Juror #6 how he recognized
Cecilio and if he had a relationship with Cecilio. The district court
finished by asking Juror #6 twice if he could be impartial, to which
Juror #6 answered affirmatively and unequivocally. This colloquy
was sufficient to afford “a full and fair opportunity to expose bias or
prejudice on the part of [Juror #6],” Nieves, 58 F.4th at 632 (internal
quotation marks and citation omitted), especially since defense
counsel did not request any further questioning.
42 Although Mensah admits that the district court asked “seven
substantive questions” during its voir dire, Appellant’s Reply Br. at 1,
he insists that the court’s inquiry “should have been more in-depth,”
Appellant’s Br. at 18. But the district court’s failure to ask additional
questions newly proposed by Mensah on appeal does not constitute
error. See United States v. Lawes, 292 F.3d 123, 128 (2d Cir. 2002)
(“[F]ederal trial judges are not required to ask every question that
counsel—even all counsel—believes is appropriate.”). As we have
previously explained, “the district court must provide some
opportunity for prospective jurors to be meaningfully screened for
biases relevant to a particular defendant.” Nieves, 58 F.4th at 638. But
a district court’s refusal to ask particular questions “will not be
grounds for reversal, provided the voir dire ‘cover[s] the subject[s]’
that may arise in the case to ensure that jurors will be impartial.”
United States v. Rahman, 189 F.3d 88, 121 (2d Cir. 1999) (quoting
Aldridge v. United States, 283 U.S. 308, 311 (1931)). “Deciding precisely
43 how to [screen for bias] remains within the district court’s expansive
voir dire discretion.” Nieves, 58 F.4th at 638; see also United States v.
Treacy, 639 F.3d 32, 46 (2d Cir. 2011) (“[W]e ‘appear[ ] never to have
reversed a conviction for the failure to ask a particular question on the
voir dire of prospective jurors.’” (quoting Lawes, 292 F.3d at 129).
Here, the district court’s questioning was sufficient to apprise
the defense of the connection between Cecilio and Juror #6 and to
flush out any possible bias stemming from that association. That ends
our inquiry. It is not for us to second-guess the precise manner in
which the district court conducted its voir dire.
Mensah nonetheless contends that his case is like Nieves, where
we concluded that a district court’s failure to ask a certain category of
questions aimed at discovering juror bias was an abuse of discretion.
In that case, the defendant was charged with multiple counts
stemming from his conduct as a gang member. See Nieves, 58 F.4th at
627. Because of the nature of the charges, the defense and government
44 proposed gang-related voir dire questions, see id. at 628, which the
district court declined to ask during jury selection, id. at 629. We held
that the district court abused its discretion based on its failure to
adequately screen for any biases against gangs. Id. at 637. Notably,
we did not fault the district court for failing to ask the specific
questions proposed by the parties. See id. at 638–39. The district
court’s mistake, rather, was its failure to ask any questions that would
permit the defendant to “ferret” out directly or indirectly any gang-
related biases, which both parties viewed as central to the case, id. at
638–40 (internal quotation marks and citation omitted), and which we
identified as a sufficiently “pervasive” potential bias in light of an
unusual and “frenetically-publicized reported spike in violent crime
that local and federal law enforcement had broadly attributed to gang
violence, including in large part to violence committed by members
of traditionally Latin-American gangs” like the one involved in the
charged case, id. at 633–34.
45 Mensah’s attempt to liken his case to Nieves is inapt. Nieves
represents an extreme case where our Court concluded that the
district court had failed to conduct any inquiry at all that might have
enabled the parties to explore (even indirectly) a possible bias against
a specific type of gang that was identified by both parties, highly
publicized at the time in the community from which the jury pool was
drawn, and closely related to issues that were almost certain to arise
during trial. Putting aside any differences between the types of
potential bias at issue here and in Nieves, the district court in the
present case did inquire into the potential bias—and it did so directly.
The district court asked several questions to ascertain the nature of
Juror #6’s connection with Cecilio, permitting Mensah to discover any
biases that might have arisen as a result.
Accordingly, the district court did not abuse its discretion in
failing to dismiss Juror #6 or plainly err in its voir dire of Juror #6.
46 B. Prosecutor’s Comment
Mensah next argues that the prosecutor’s objection during
Hamilton’s cross-examination violated his Fifth Amendment right to
remain silent, depriving him of a fair trial, and that the district court
abused its discretion by denying his post-trial motion for a new trial
based on this comment.
Rule 33 provides that a district court “may vacate any judgment
and grant a new trial if the interest of justice so requires.” Fed. R.
Crim. P. 33(a). The district court “has broad discretion to decide Rule
33 motions based upon its evaluation of the proof produced.” United
States v. McPartland, 81 F.4th 101, 123 (2d Cir. 2023) (quoting United
States v. Gambino, 59 F.3d 353, 364 (2d Cir. 1995)). The crucial inquiry
“is whether letting a guilty verdict stand would be a manifest
injustice.” Id. (quoting United States v. Ferguson, 246 F.3d 129, 134 (2d
Cir. 2001)).
47 “We review the district court’s denial of a motion under Rule
33 for abuse of discretion.” Id. “A district court abuses its discretion
in denying a Rule 33 motion when (1) its decision rests on an error of
law or a clearly erroneous factual finding, or (2) its decision—though
not necessarily the product of a legal error or a clearly erroneous
factual finding—cannot be located within the range of permissible
decisions.” Id. (internal quotation marks and citation omitted).
“It is settled that prosecutors may not comment adversely on a
defendant’s invocation of his Fifth Amendment privilege not to
testify.” United States v. Whitten, 610 F.3d 168, 198 (2d Cir. 2010). To
determine “whether a prosecutor’s statements amount to an
improper comment on the accused’s silence in violation of the Fifth
Amendment,” we must “look[] at the statements in context and
examine[] whether they naturally and necessarily would be
interpreted by the jury as a comment on the defendant’s failure to
48 testify.” United States v. Knoll, 16 F.3d 1313, 1323 (2d Cir. 1994)
(internal quotation marks and citation omitted).
The district court correctly interrupted the prosecutor’s
objection before it could be completed. During Hamilton’s cross-
examination, defense counsel asked her twice to confirm what
Mensah had said to her. See, e.g., App’x at 712 (“And [Mensah] told
you that if it was not the New York City Housing Authority, every
program had guidelines, right?”). The prosecutor then objected,
asserting, “If he wants the defendant to testify –.” Id. at 713. Before
the prosecutor could finish, the district court hastily intervened and
stated, “No, no, no, no, no. Overruled.” Id. It appears that the
prosecutor’s interjection was the beginning of an inartfully phrased
hearsay objection. Nevertheless, the prosecutor’s incomplete
objection could have been interpreted by the jury as a comment on
Mensah’s failure to testify at that point in the trial. See Fox v. Mann,
71 F.3d 66, 72 (2d Cir. 1995) (stating that the prosecutor’s remark that
49 “if the defendant wants to speak, he can take the stand” was
“certainly improper”).
A finding that a prosecutor’s remark was improper is not
enough to warrant a new trial. We will grant one only when “the
misconduct alleged [is] so severe and significant as to result in the
denial of [the defendant’s] right to a fair trial.” United States v. Coplan,
703 F.3d 46, 86 (2d Cir. 2012) (internal quotation marks and citation
omitted); see also Whitten, 610 F.3d at 202 (“We will reverse on the
ground of prosecutorial misconduct only if that misconduct caused
substantial prejudice by so infecting the trial with unfairness as to
make the resulting conviction a denial of due process.” (internal
quotation marks and citation omitted)). And when assessing whether
a prosecutor’s remark “rise[s] to the level of prejudicial error, we
examine the severity of the misconduct, the measures adopted to cure
the misconduct, and the certainty of conviction absent the
50 misconduct.” Coplan, 703 F.3d at 86 (internal quotation marks and
citation omitted).
We conclude that the prosecutor’s remark did not cause
prejudice so substantial that it deprived Mensah of a fair trial. After
the prosecutor’s objection, Mensah took the stand to testify in his own
defense. We have not yet addressed the impact of a defendant’s
testimony on the analysis for prejudice stemming from a prosecutor’s
comment on a defendant’s right to testify. The Tenth Circuit,
however, resolved this question in United States v. Carleo, 576 F.2d 846
(10th Cir. 1978). In that case, the court assumed the prosecutor’s
remark violated the defendant’s rights under the Fifth Amendment
and held that the issue was “mooted by defendant’s election to testify
in his own defense.” Id. at 850. The court reasoned that “[t]he danger
that a jury might infer guilt from an accused’s failure to testify simply
is not present when he actually does take the stand and testify.” Id.
And “[w]hen comments relating to an accused’s opportunity to testify
51 are followed by his actual testimony,” the court stated that “the
relevant inquiry [becomes] whether his testimony in effect was
coerced or compelled by the prior comments.” Id. We are persuaded
by and adopt our sister circuit’s reasoning.
Applied here, any possible prejudice from the prosecutor’s
statement dissipated when Mensah testified. As explained above, the
core issue with a prosecutor commenting on a defendant’s silence is
that a jury might infer guilt from that silence. See Griffin v. California,
380 U.S. 609, 614–15 (1965) (“[T]he Fifth Amendment . . . forbids either
comment by the prosecution on the accused’s silence or instructions
by the court that such silence is evidence of guilt.”). A jury might be
particularly tempted to make such an inference when a defendant
“fail[s] to testify as to facts peculiarly within [his] knowledge.” Id. at
614. Ultimately, it is this inference of guilt drawn from such a
comment that can undermine a defendant’s Fifth Amendment right
to remain silent. See id. at 614–15. But a jury cannot infer guilt from
52 silence if a defendant does not remain silent. Accordingly, there is no
danger of an improper inference where (as here) a defendant elects to
The question then becomes whether Mensah was compelled to
testify by virtue of the prosecutor’s comment. Mensah argues for the
first time on appeal that he was “forced” to take the stand and waive
his Fifth Amendment right to remain silent because of the
prosecutor’s remark. Appellant’s Br. at 26. Mensah did not raise this
argument at any time before the district court. See App’x at 1371
(district court noting in its ruling on the post-trial motion that
“Mensah [did] not argue that his decision to testify was in any way
motivated by the prosecutor’s comment or that his testimony
ultimately harmed his case”). We thus review Mensah’s claim of
compulsion for plain error. See Fed. R. Crim. P. 52(b).
We find no error, let alone plain error, on the issue of
compulsion. The prosecutor’s remark occurred on a Friday, and
53 Mensah testified the following Monday, so there is no suggestion that
Mensah was pressured to decide whether to testify without adequate
time to consider his options. Indeed, the record is devoid of any
indications whatsoever that Mensah was somehow coerced to testify.
At oral argument, Mensah conceded that the sole evidence of
compulsion was the prosecutor’s improper comment. See Oral Arg.
Audio Recording at 09:38–09:42. However, the prosecutor’s remark
alone does not constitute adequate evidence of compulsion. Offering
his own testimony was not the only available way for Mensah to
redress the prosecutor’s comment. For example, Mensah could have
requested a curative jury instruction. See Fox, 71 F.3d at 72–73
(finding that a district court’s remedial instruction to the jury—
directly addressing the prosecutor’s improper remark and given the
morning after the remark was made—was sufficient “to overcome
whatever limited adverse effect the prosecutor’s [remark] may have
had on the jury”); see also United States v. Bubar, 567 F.2d 192, 200 (2d
54 Cir. 1977) (holding that “any conceivable misunderstanding on the
part of the jury [of the prosecutor’s comments] was nipped in the bud
by Judge Newman’s emphatic curative instructions”). Mensah could
have also offered the testimony of additional witnesses to discredit
the government’s case. See United States v. Jones, 299 F.3d 103, 110 (2d
Cir. 2002) (finding defendant was not compelled to testify where he
could have “chosen to attack the government’s case by offering the
testimony of other individuals”). He did neither. Given that other
options for redress were available, Mensah cannot convincingly argue
that he was forced to testify as a result of the prosecutor’s comment.
Furthermore, there are a variety of reasons, often related to trial
strategy, that can motivate a defendant’s decision to testify. But the
“cho[ice] between asserting his right to silence and pursuing what he
believed to be the most effective defense” does not mean Mensah
“faced the kind and intensity of coercion that would deprive him of
[his] right.” Id. at 111. Thus, without more than the prosecutor’s
55 statement, we cannot conclude that the district court erred by failing
to find compulsion based on the record before us.
In sum, we discern no abuse of discretion or plain error in the
district court’s denial of Mensah’s motion for a new trial.
C. Loss Amount Enhancement
Finally, Mensah challenges his sentence as procedurally
unreasonable because, he argues, the district court erred by applying
the ten-level enhancement under U.S.S.G. § 2B1.1 based on a loss
amount that is not a reasonable estimate.
“Under U.S.S.G. § 2B1.1, the sentencing court increases the
defendant’s offense level based on the ‘loss’ to victims caused by his
acts.” United States v. Moseley, 980 F.3d 9, 28 (2d Cir. 2020) (quoting
U.S.S.G. § 2B1.1(b)(1)). Here, the district court adopted the loss
amount from the PSR, which assessed the loss associated with
Mensah’s scheme to be $177,345. Because the loss was more than
$150,000 but less than $250,000, the district court applied a ten-level
56 enhancement to Mensah’s total offense level under U.S.S.G §
2B1.1(b)(1)(F). The district court therefore calculated Mensah’s total
offense level to be 24 and Mensah’s criminal history category to be I,
resulting in an advisory Guidelines range of 51 to 63 months of
imprisonment. The district court sentenced Mensah to a below-
Guidelines sentence of forty-two months of imprisonment, to be
followed by one year of supervised release.
The parties dispute the appropriate standard of review. We
generally apply a “particularly deferential form of abuse-of-
discretion review . . . to the procedures used to arrive at the sentence”
or, in other words, the procedural reasonableness of a sentence.
United States v. Davis, 82 F.4th 190, 195–96 (2d Cir. 2023) (internal
quotation marks and citation omitted). Procedural error occurs when
a district court “fails to properly calculate the Guidelines range or
rests its sentence on a clearly erroneous finding of fact,” among other
things. United States v. Osuba, 67 F.4th 56, 65 (2d Cir. 2023). “The
57 district court must find facts relevant to a sentencing enhancement by
a preponderance of the evidence.” Id. Where a defendant fails to raise
a particular challenge to the sentence before the district court,
however, we review that challenge for plain error. Id.
Mensah argues that he objected to the calculation of the loss
amount before the district court, albeit in the restitution context.
Thus, in his view, the abuse-of-discretion standard applies (with
subsidiary factual findings reviewed for clear error). In contrast, the
government argues that the more rigorous plain-error standard
applies because Mensah did not specifically object to the loss amount
enhancement. We need not decide which party’s view is correct,
because even under the standard advocated by Mensah, his argument
fails.
The district court did not clearly err as a factual matter when it
found the loss amount to be $177,345, which was consistent with Lin’s
trial testimony. As a preliminary matter, evidence at trial showed that
58 during all relevant times, Mensah lived in New Jersey, and that all the
children he served lived in New York City. Since the EIP required
providers to administer services in person, Mensah would have had
to travel into New York City to provide services.
During trial, Lin comprehensively testified about her analysis
underpinning the loss amount. She testified that she reviewed data
indicative of Mensah’s activities and locations, including the LPR data
for the license plate associated with the Silver Lexus and Mensah’s
cellphone records. Cross-referencing those records with the
purported sessions reflected in Mensah’s session notes, Lin identified
conflicts and catalogued each one in a spreadsheet.
Lin’s conflicts indicated that it was highly unlikely that Mensah
was providing services at the time and place he reported he was in
his session notes. She described specific examples of conflicts she
identified, which were corroborated by other evidence, such as text
messages from Mensah’s cellphone. The text messages often left no
59 room for imagination as to where Mensah was for the day. For
instance, Lin recorded conflicts for Mensah’s purported sessions on
July 6, 2015, based on her analysis that the Silver Lexus did not enter
New York City that day. A text message sent from Mensah’s
cellphone on the same day provided, “I did not come to New York
today.” App’x at 685.
Mensah attacks Lin’s analysis as speculative, arguing that the
LPR data did not show who was driving the Silver Lexus. But there
was ample other evidence in the record that Mensah owned and
drove the Silver Lexus. According to NJMVC records, the Silver
Lexus was the only car registered to Mensah during the relevant time.
Mensah’s ex-wife testified that she sold him the Silver Lexus, and that
she and her son do not use that car. A gas station attendant and
Cecilio both observed Mensah driving the Silver Lexus. And
although Mensah testified that he took other transportation to New
York City, he did not suggest that anyone else drove the Silver Lexus.
60 Furthermore, at least two of the parents who testified indicated that
Mensah drove to sessions. It was permissible for the court to infer
based on this cumulative evidence that Mensah drove his Silver Lexus
to New York City for his sessions.
Mensah makes a similar argument with respect to the cellphone
records, arguing that there is no direct evidence that he was the one
using his cellphone. But circumstantial evidence will do. See United
States v. Coppola, 671 F.3d 220, 250 (2d Cir. 2012) (finding no
procedural error in the trial court’s loss calculation where the
evidence “permit[ted] the district court to make a reasonable estimate
of the loss given the available information” (internal quotation marks
and citation omitted)). The court could permissibly infer that it was
likely the owner of the phone—Mensah—who was using the phone,
especially since Mensah does not point to anyone else who used his
cellphone. Mensah takes issue with the fact that Lin recorded
conflicts based on the use of the phone for more than fifteen minutes
61 when a purported session was ongoing. He argues that such
conversations might have been related to social work services. Lin,
however, did not rely solely on the duration of the phone usage to
record a conflict. She only recorded conflicts with respect to phone
usage when there was also independent evidence suggesting that
Mensah was not providing services.
Accordingly, the district court did not err by applying the ten-
level loss amount enhancement under U.S.S.G. § 2B1.1.
III. Conclusion
In sum, we hold as follows:
1. The district court did not abuse its discretion by permitting a juror whose sister’s friend’s husband was a government witness to remain on the jury. That connection was too attenuated to give rise to a presumption of bias. Nor did the district court plainly err in its voir dire of that juror, as it adequately screened for any actual bias arising from his acquaintance with the government’s witness.
2. The district court did not err in denying Mensah’s motion for a new trial based on the prosecutor’s remark before the jury, during cross-examination of a trial witness, that Mensah had the ability to testify. Any prejudice to Mensah’s
62 Fifth Amendment right not to testify was rendered moot when Mensah later elected to testify on his own behalf. And the record does not suggest that the comment somehow compelled or coerced Mensah to testify.
3. The district court did not clearly err in finding that Mensah billed $177,345 to the agencies for treatment sessions that he had not actually provided, and therefore did not err in applying the ten-level loss amount enhancement under U.S.S.G. § 2B1.1.
Related
Cite This Page — Counsel Stack
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