1 12-2392-cr United States v. Mensah

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



## SUMMARY ORDER

Rulings by summary order do not have precedenti al 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 summ ary 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 ci ting a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 25 th day of March, two thousand and thirteen.

PRESENT:

J OSÉ A. C ABRANES , D EBRA A NN L IVINGSTON , Circuit Judges

, J ESSE M. F URMAN , District Judge

. *

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x U NITED S TATES OF A MERICA , Appellee

,

-v.- No. 12-2392-cr

C HARLES M ENSAH , Defendant-Appellant,

J OSEPH A BBEY , B RIANNE A GUINAGA , V IVIAN J AMES , also known as Dep. Supt. James, D ERICK A DJEI , D EBORAH A GUINAGA , D AVID B LACKWELL , J AMES T. D AVIS , also known as Mike, also known as Dale, P AULA D EFAZIO , J IMMIE L. F ORD , also known as Kiki, E XPUNGED D EFENDANT , also known as Expunged Defendant, F ELIX L AWSON , also known as Kobe, D ARRYL R OBINSON , also known as Keith, J ODI T IRADO , J ULIAN R USSELL , T AMARA WARD , P AUL G. W ARNER ,

* The Honorable Jesse M. Furman, of the United States Distri ct Court for the Southern District of New York, sitting by designation.2 R

OBERT W ESLEY , also known as Wes, S HAMIKA T. W ILLIAMS , also known as Mika, D OUGLAS H UNT , also known as Rome,

Defendants. †

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FOR DEFENDANT-APPELLANT: Patrick J. Brown , LoTempio & Brown, P.C., Buffalo, NY.

FOR APPELLEE: Monica J. Richards, Assistant United States Attorney, for William J. Hochul, Jr., United States Attorney, United States Attorney’s Office for the Western District of New York, Buffalo, NY.

Appeal from the judgment of conviction signed June 11, 2012, and filed June 13, 2012, by the United States District Court for the Western District of New York (William M. Skretny, Chief Judge ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the June 11, 2012 judgment of the District Court be AFFIRMED

.

On February 27, 2012, a jury found Defendant Charles Mensah guilty of (1) conspiracy to possess with intent to distribute, and to distribute , fifty grams or more of a mixture and substance containing methamphetamine, MDMA, and BZP (“ecstasy”) , in violation of 21 U.S.C. § 846; and (2) use of a communication facility in committing, causing, and facilitating commission of acts constituting controlled substance felonies, in violation of 21 U.S.C. § 843(b). The District Court subsequently denied Mensah’s motion to set aside the jury verdict and grant a new trial, pursuant to Federal Rule of Criminal Procedure 33, and to vacate the jury verdi ct, pursuant to Federal Rule of Criminal Procedure 29, and entered a judgment of conviction. Mensah no w appeals, arguing that the District Court erred in denying his Rule 29 motion. We assume familiarity with the underlying facts and procedural history of
this case.

Mensah contends that the District Court erred in denying his Rule 29 motion because, in his view, the evidence put on by the government was in sufficient to sustain his conviction. In substance, Mensah argues that the government failed to prove the existence of its charged conspiracy. According to Mensah, he did purchase ecstasy from one Joseph Abbey for the purpose of distribution, but he had no part in a separate conspiracy to sell ecstasy betw een Abbey and several other cooperating witnesses. In other words, Mensah claims that where the government saw one large conspiracy, there in fact existed two separate conspiracies with a common lead er. For this reason, Mensah argues that (1) the government failed to prove its conspiracy count an d (2) the District Court improperly admitted against him certain evidence relating to Abbey’s transactions with people whom Mensah did not know.

† The Clerk of Court is directed to amend the official caption in this case to conform to the listing of the parties above.3 We review de novo the grant or denial of a judgment of acquittal under Rule 29, viewing the evidence in the light most favorable to the government. United States v. Persico , 645 F.3d 85, 104 (2d Cir. 2011). To prevail on an insufficiency of the evidence claim under Rule 29, a defendant bears the “heavy burden” of showing that “no rational trier of fact could have found all of the elements of the crime beyond a reasonable doubt.” United States v. Caracappa , 614 F.3d 30, 43 (2d Cir. 2010). We review a
District Court’s decision to admit or exclude evidence for abuse of discretion. See, e.g.

, United States v. Kozeny , 667 F.3d 122, 137 (2d Cir. 2011).

“In order to convict a defendant of the crime of conspiracy, the government must show that two or more persons entered into a joint enterprise for an unlawful purpose, with awareness of its general nature and extent.” United States v. Torres , 604 F.3d 58, 65 (2d Cir. 2010). Critically, “[t]he government need not show that the defendant knew a ll of the details of the conspiracy . . . [n]or must the government prove that the defendant knew the identities of all of the other conspirators.” United States v. Huezo , 546 F.3d 174, 180 (2d Cir. 2008). Indeed, “[i]n the context of narcotics operations, . . . we have held that even where there are multiple grou ps within an alleged conspiracy, a single conspiracy exists where the groups share a common goal and depend upon and assist each other, and we can reasonably infer that each actor was aware of his pa rt in a larger organization where others performed
similar roles.” United States v. Chavez , 549 F.3d 119, 126 (2d Ci r. 2008) (citation omitted).

Construed in the light most favorable to the government, the evidence against Mensah was sufficient to sustain his conviction. During the th ree-day trial, the government submitted evidence, most notably in the form of recorded tele phone conversations between Mensah and Abbey, demonstrating Mensah’s involvement in the conspiracy. As the District Court observed, a rational jurorcould conclude from this evidence that Mensah was aware that he was engaged in a large-scale, multicity operation for the distribution of drugs and th at Abbey’s supply of ecstasy was divided among several resellers, of whom Mensah was one. Mens ah may not have known the other members of the conspiracy, but this fact does not defeat the govern ment’s case, given its proof of Mensah’s awareness of the general nature and extent of the conspiracy. Torres , 604 F.3d at 65; Huezo , 546 F.3d at 180. In sum, Mensah has not carried his “heavy burden” of showing that “ no rational trier of fact could have found all of the elements of the crime beyond a reasonable doubt.” Caracappa , 614 F.3d at 43. For the same reasons, Mensah’s argument that the Distri ct Court erred in admitting evidence of Abbey’s transactions with other conspirators is also without merit.4 CONCLUSION

We have reviewed the record and the parties’ arguments on appeal. For the reasons set out above, we AFFIRM the June 11, 2012 judgment of the District Court.

FOR THE COURT, Catherine O’Hagan Wolfe, Clerk of Court