United States v. Mensah

110 F.4th 510

UNITED STATES of America, Appellee, v. Enock MENSAH, Defendant-Appellant.

No. 23-6662-cr

August Term, 2023

United States Court of Appeals, Second Circuit

Argued: May 24, 2024

Decided: August 2, 2024

On Appeal from a Judgment of the United States District Court for the Eastern District of New York

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.

Before: Livingston, Chief Judge, Nardini, and Robinson, Circuit Judges.

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, 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, 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.

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.

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.

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 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 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 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.

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 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...