2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-9-2012

USA v. Julius Murray

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-2823

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

Nos. 10-2791, 10-2809, 10-2823 and 10-2835

____________

UNITED STATES OF AMERICA

v.

SOLOMON MANAMELA,

 Appellant No. 10-2791

____________

UNITED STATES OF AMERICA

v.

MARIAM COULIBALY,

 Appellant No. 10-2809

____________

UNITED STATES OF AMERICA

v.

JULIUS JUMA MURRAY,

 Appellant No. 10-2823

____________

UNITED STATES OF AMERICA,

v.

MICKAL KAMUVAKA,

a/k/a DR. K
2

Mickal Kamuvaka,

 Appellant No. 10-2835

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Nos. 2-09-cr-00294-002, 2-09-cr-00294-006,

2-09-cr-00294-005 and 2-09-cr-00294-001)

District Judge: Honorable Stewart Dalzell

____________

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 23, 2012

Before: FISHER and GREENAWAY, JR., Circuit Judges, and JONES,* District Judge.

(Filed: February 9, 2012)

____________

OPINION OF THE COURT

____________

FISHER, Circuit Judge.

Solomon Manamela, Mariam Coulibaly, Julius Murray, and Mickal Kamuvaka 

(collectively, “Appellants”) were convicted of wire fraud, in violation of 18 U.S.C. 

§ 1343, health care fraud, in violation of 18 U.S.C. § 1347, and conspiracy, in violation 

of 18 U.S.C. § 371. Coulibaly was also convicted of making false statements to federal 

agents, in violation of 18 U.S.C. § 1001. Appellants appeal the District Court‟s 

judgments of conviction and sentence. For the reasons discussed below, we will affirm.

 

*

The Honorable John E. Jones, III, District Judge for the United States District 

Court for the Middle District of Pennsylvania, sitting by designation.
3

I.

We write principally for the parties, who are familiar with the factual context and 

legal history of this case. Therefore, we will set forth only those facts necessary to our 

analysis.

On April 30, 2009, a grand jury in the Eastern District of Pennsylvania returned a 

21-count indictment against nine employees of MultiEthnic Behavioral Health, Inc. 

(“MEBH”). The indictment stemmed from a government investigation regarding a 

contract between the City of Philadelphia (“the City”) and MEBH, pursuant to which 

MEBH was to provide in-home services to at-risk children under the Services to Children 

in their Own Homes program (“SCOH”). The Government alleged that MEBH 

defrauded the City by failing to provide such services, but nevertheless submitting false 

documentation indicating that it had done so. Eight of the nine defendants, including 

Appellants, were charged with twelve counts of wire fraud, in violation of 18 U.S.C. 

§ 1343, six counts of health care fraud, in violation of 18 U.S.C. § 1347, and one count of 

conspiracy to obstruct a matter within the jurisdiction of a federal agency, in violation of 

18 U.S.C. § 371.1 Coulibaly was also charged with making false statements to federal 

agents, in violation of 18 U.S.C. § 1001.

 

1

The Commonwealth of Pennsylvania received block grants from the federal 

government each year as part of the Temporary Assistance to Needy Families program. 

Some of this money went to Philadelphia‟s Department of Human Services, which

administered the SCOH program.
4

Under the SCOH program, MEBH was required to monitor the safety of children 

designated as “at-risk” during face-to-face visits, and to further monitor their medical 

care, behavioral health and academic performances. The City also required MEBH to 

make periodic reports to the City‟s Department of Human Services (“DHS”) about the 

children and their families. In turn, the City made monthly payments to MEBH, based on 

the number of children to whom MEBH provided services. From July 2000 through 

December 2006, the City made payments to MEBH totaling $3,650,145 for services 

allegedly provided to over 500 families.

From October 2005 to September 2006, MEBH was assigned to provide SCOH 

services to the Kelly/Washington family, including a fourteen-year-old female, D.K. On 

August 4, 2006, D.K. was found dead in her home. Her death led to an investigation by 

the City and a subsequent federal investigation by the United States Department of 

Health and Human Services.

Five of the nine defendants entered guilty pleas prior to trial. Appellants all 

proceeded to trial. Before trial, Appellants moved to exclude evidence of D.K.‟s death,

pursuant to Federal Rules of Evidence 403 and 404(b). The District Court denied the 

motion as to certain death scene and autopsy photographs. At trial, the Government 

called numerous witnesses, including the co-defendants who pled guilty. The codefendants testified that MEBH workers did not visit many of the families to which they 

were assigned, but that MEBH nevertheless represented to the City that such visits had 
5

been made. They also described “gap-filling” sessions, in which documents were 

falsified at the direction of MEBH supervisors. Family members of children who were 

supposed to receive SCOH services from MEBH also testified to MEBH‟s failure to 

conduct required visits. Special Agent William McDonald testified that although 

Coulibaly initially denied having known about any falsification of documents at MEBH, 

she later admitted to participating in the creation of false records. However, McDonald 

testified that when he met with Coulibaly again, she recanted her statement and denied 

involvement in any falsification efforts.

On March 3, 2010, a jury found Kamuvaka and Manamela guilty on all nineteen 

counts and found Coulibaly and Murray guilty on all counts except for three of the six 

counts of health care fraud. Kamuvaka was sentenced to 210 months of imprisonment; 

Manamela was sentenced to 168 months; Murray was sentenced to 132 months; and 

Coulibaly was sentenced to 135 months. Appellants filed timely notices of appeal.

II.

The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. 

We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

III.

A.

Manamela, Coulibaly, and Murray argue that the District Court erred in admitting 

evidence of the death of D.K. under Federal Rule of Evidence 403 because the probative 
6

value of such evidence, which included photographs of the death scene and autopsy 

photographs, was substantially outweighed by its unfairly prejudicial effect. We 

disagree. We review the admissibility of evidence under an abuse of discretion standard.

United States v. Christie, 624 F.3d 558, 567 (3d Cir. 2010). “A district court has broad 

discretion to determine the admissibility of relevant evidence in response to an objection 

under Rule 403.” United States v. Balter, 91 F.3d 427, 442 (3d Cir. 1996) (citation 

omitted). We must uphold the District Court‟s decision unless its ruling was “arbitrary or 

irrational.” United States v. Universal Rehab. Servs. (PA), Inc., 205 F.3d 657, 665 (3d 

Cir. 2000) (citation omitted).

We agree with the District Court that evidence of D.K.‟s death, including the death 

scene and autopsy photographs, was “highly and uniquely probative” of the fraud and 

obstruction charges. Under the SCOH program, MEBH was required to monitor the 

safety of at-risk children through face-to-face visits. At the time D.K. died, she weighed 

just forty-two pounds and had large bedsores. Thus, evidence of her physical condition at 

the time she died was highly probative of MEBH‟s failure to conduct the required visits. 

Accordingly, we cannot conclude that it was “arbitrary or irrational” for the District 
7

Court to admit testimony and photographs relating to D.K.‟s death.2 See Universal 

Rehab. Servs., 205 F.3d at 665.

B.

Coulibaly further contends that the District Court erred in admitting (1) summary 

charts, (2) her statements to investigators, and (3) statements of her co-conspirators. 

Because Coulibaly did not raise these issues at trial, we review for plain error. United 

States v. Williams, 464 F.3d 443, 445 (3d Cir. 2006).

First, Coulibaly argues that the District Court erred in admitting as an exhibit a 

chart prepared by Agent McDonald summarizing an MEBH file because the District 

Court did not also admit the file itself. This argument is meritless. Federal Rule of 

Evidence 1006 provides that a party may use a summary or chart to prove the content of 

“voluminous writings.” Under Rule 1006, summary evidence is admissible “only if the 

underlying materials upon which the summary is based are admissible.” United States v. 

Pelullo, 964 F.2d 193, 204 (3d Cir. 1992) (citations omitted). However, Rule 1006 does 

not require that the underlying materials actually be admitted into evidence. Here, the 

underlying files were admissible, so we reject Coulibaly‟s argument.

 

2 Manamela also challenges the admission of this evidence under Federal Rule of 

Evidence 404(b). However, we agree with the District Court that Rule 404(b) is not 

applicable because the evidence was “intrinsic” to the charged offense. See United States 

v. Green, 617 F.3d 233, 248 (3d Cir. 2010) (explaining that “evidence is intrinsic if it 

„directly proves‟ the charged offense”). Evidence of D.K.‟s death directly proved the 

charged offenses because the services which MEBH was required to provide included

face-to-face visits to check on the well-being of the children.
8

Second, Coulibaly argues that the District Court‟s admission of statements she 

made to a federal agent violated the corpus delicti rule. Under the corpus delicti rule, 

before the government can introduce a defendant‟s confession, it must introduce 

“substantial independent evidence which would tend to establish the trustworthiness of 

the statement.” Opper v. United States, 348 U.S. 84, 93 (1954). Corroborative evidence 

will be sufficient if it “supports the essential facts admitted sufficiently to justify a jury 

inference of their truth.” Id. Here, the Government introduced Coulibaly‟s statements 

through the testimony of Agent McDonald. Prior to Agent McDonald‟s testimony, 

several witnesses, including Coulibaly‟s co-conspirators and family members of children 

who were supposed to receive services from MEBH, testified regarding the fraudulent 

activity at MEBH. Coulibaly was identified as having been present for “gap-filling” 

sessions, in which MEBH workers created false reports in anticipation of DHS audits. 

This evidence was more than sufficient to satisfy Opper‟s corroboration rule.

Finally, Coulibaly contends that the District Court erred in admitting statements 

made by her coconspirators, without first requiring the Government to prove that she 

participated in the conspiracy.3 We disagree. A statement “made by [a] party‟s 

coconspirator during and in furtherance of [a] conspiracy” is admissible under Federal 

 

3 Coulibaly also argues that her inability to cross-examine her alleged 

coconspirators violated her rights under the Confrontation Clause. However, in

Crawford v. Washington, 541 U.S. 36, 56 (2004), the Supreme Court expressly stated that 

statements made in furtherance of a conspiracy are not testimonial and thus not subject to 

the Confrontation Clause. Therefore, Coulibaly‟s argument has no merit.
9

Rule of Evidence 801(d)(2)(E). Generally, before a district court can admit the statement 

of an alleged co-conspirator, it must find, by a preponderance of the evidence, that a 

conspiracy actually existed and that the declarant and the defendant were members of the 

conspiracy. Bourjaily v. United States, 483 U.S. 171, 175 (1987). Here, it was not until 

the end of the Government‟s case that the District Court made a specific finding that a 

conspiracy involving the declarants and Coulibaly existed. Although we have 

acknowledged the “danger of prejudice . . . inherent in the practice of admitting 

coconspirator declarations . . . subject to later proof of the requisite conspiracy,” United 

States v. Cont’l Grp., Inc., 603 F.2d 444, 457 (3d Cir. 1979), we have also recognized the 

order-of-proof problem facing a trial judge in complex cases “where the government is 

attempting to prove the participation of multiple defendants in a continuing conspiracy,” 

United States v. Gambino, 926 F.2d 1355, 1360 (3d Cir. 1991) (citations omitted). 

Where, as here, “the conspiracy [may become] clearly defined only after the testimony of 

several witnesses,” we will uphold the district court‟s decision to admit co-conspirator 

statements subject to a later connection. See Gambino, 926 F.2d at 1360-61.

C.

Coulibaly also challenges the sufficiency of the evidence on all but one of the 

counts for which she was convicted.4 “We apply a particularly deferential standard of 

review when deciding whether a jury verdict rests on legally sufficient evidence.” United 

 

4

She does not raise a sufficiency of the evidence challenge to her conviction for 

making false statements to federal agents, in violation of 18 U.S.C. § 1001 (Count 20).
10

States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998) (citation omitted). We must “view the 

evidence in the light most favorable to the Government” and will “sustain the verdict if 

any rational juror could have found the elements of the crime beyond a reasonable 

doubt.” United States v. Reyeros, 537 F.3d 270, 277 (3d Cir. 2008) (citation omitted). 

We will not weigh the evidence or make determinations regarding witness credibility. 

Dent, 149 F.3d at 187.

Coulibaly first argues that the evidence was insufficient to support her convictions 

for wire fraud (Counts 1 through 12). We disagree. To prove wire fraud, the 

Government must establish beyond a reasonable doubt that (1) the defendant knowingly 

and willfully participated in a scheme or artifice to defraud, (2) with the specific intent to 

defraud, and (3) that interstate wire communications were used in furtherance of the 

scheme. United States v. Antico, 275 F.3d 245, 261 (3d Cir. 2001), abrogated on other 

grounds by United States v. Riley, 621 F.3d 312 (3d Cir. 2010). The Government 

presented evidence that Coulibaly admitted to falsifying paperwork to “fill[] in the gaps” 

in MEBH records and having families sign undated stacks of visitation verification 

forms. Although Coulibaly later recanted these admissions, the jury was entitled to 

afford greater credibility to her earlier statements. Additional testimony from coconspirators and the families of children to whom MEBH was supposed to provide 

services further demonstrated that Coulibaly knowingly participated in the fraudulent 

scheme with the specific intent to defraud. As to the final element – use of wire 
11

communications – the evidence was sufficient to demonstrate that it was reasonably 

foreseeable that false billing documents would be submitted to the City. See United 

States v. Tiller, 302 F.3d 98, 103 (3d Cir. 2002) (“[W]here a person is working for a 

monitoring service . . . it is obvious that the mailing of payment . . . for [such] service is 

reasonably foreseeable[.]”).

Coulibaly‟s argument that the evidence was insufficient to establish liability for 

health care fraud (Counts 13 through 15) fails for the same reasons discussed above. The 

Government established that she engaged in a scheme to create false documentation 

indicating that MEBH was fulfilling its contractual obligations to provide health care 

benefits, with the intent to ensure that DHS continued to pay MEBH. See 18 U.S.C. 

§ 1347.

Finally, Coulibaly maintains that the evidence was insufficient to support her 

conviction under 18 U.S.C. § 371 for conspiracy to obstruct a matter within the 

jurisdiction of a federal agency (Count 19). Again, we disagree. There was substantial 

evidence that she engaged in a collective effort to falsify documents, often immediately 

before DHS audits. Agent McDonald testified that Coulibaly admitted to discussing the 

fraudulent practices with co-workers at MEBH. This evidence was more than sufficient 

to allow a reasonable jury to conclude that Coulibaly conspired to obstruct the 

administration of the SCOH program.
12

D.

Appellants raise various objections to the sentences imposed by the District 

Court.5 We review the District Court‟s interpretation of the Sentencing Guidelines de 

novo, its findings of fact for clear error, and its application of the Guidelines to those 

facts for abuse of discretion. United States v. Blackmon, 557 F.3d 113, 118 (3d Cir. 

2009).

1.

Manamela, Coulibaly, and Kamuvaka contend that the District Court erred in 

applying the vulnerable victim enhancement under U.S.S.G. § 3A1.1(b). The 

enhancement may be applied where: (1) the victim was particularly susceptible to 

criminal conduct; (2) the defendant knew or should have known about this susceptibility; 

and (3) this susceptibility facilitated the defendant‟s commission of the crime (i.e., there 

is a “nexus between the victim‟s vulnerability and the crime‟s ultimate success”). United 

States v. Zats, 298 F.3d 182, 186 (3d Cir. 2002) (citations omitted).

Manamela and Coulibaly argue that the vulnerable victim enhancement was 

inapplicable here because the City – not the children to whom services were provided 

under the SCOH program – was the real victim of the fraud. However, the enhancement 

is not limited to situations where the vulnerable individual was the direct victim of the 

 

5 We note that Manamela challenges the District Court‟s application of a two-point 

enhancement under U.S.S.G. § 3B1.3 for abuse of a position of trust. However, the 

District Court denied the Government‟s motion to apply that enhancement.
13

defendant‟s crime. See United States v. Dullum, 560 F.3d 133, 139 (3d Cir. 2009). 

Rather, a district court “may look to all the conduct underlying an offense, using 

[U.S.S.G.] § 1B1.3 as a guide.” United States v. Monostra, 125 F.3d 183, 189 (3d Cir. 

1997). In this case, the District Court did not clearly err in concluding that the children 

whom MEBH was obligated to monitor were victims of Appellants‟ crimes. Central to 

the fraudulent scheme was the fabrication of visitation records; MEBH workers did not 

visit the at-risk children, as required. D.K.‟s death serves as a glaring example of the 

effect of MEBH‟s failure to monitor the well-being of these children.6

Kamuvaka also challenges the District Court‟s application of the vulnerable victim 

enhancement on the basis that there is no nexus between the victims‟ vulnerability and 

the crime‟s ultimate success. We wholeheartedly disagree. The SCOH program was 

created specifically for the purpose of providing services to children who were not being 

properly cared for, or who were being abused, at home. The same parents or guardians 

who were neglecting their children prior to MEBH‟s involvement agreed to sign undated 

visitation forms, regardless of whether the visits had actually occurred. Appellants took 

advantage of the fact that no one would follow-up to ensure that the visits had, in fact, 

 

6 Coulibaly also challenges the District Court‟s application of a two-level

enhancement for conduct involving a “conscious or reckless risk of death or serious 

bodily injury” under U.S.S.G. § 2B1.1(b)(14). This argument is meritless. Coulibaly‟s 

own testimony at trial demonstrated that she was aware that children in the SCOH 

program were “at-risk” and that many suffered from serious health problems. Failure to 

ensure that such children were being properly cared for clearly involved a “conscious or 

reckless risk of death or serious bodily injury.” See id.
14

happened. Thus, for many of the same reasons that the children were deemed at-risk in 

the first place, they were especially susceptible to criminal conduct.

Manamela and Kamuvaka further allege that by applying the vulnerable victim 

enhancement to Appellants, and not to the co-defendants who pled guilty before trial, the 

District Court penalized Appellants for exercising their constitutional right to a jury trial. 

We note as a threshold matter that the Government explained that its failure to pursue the 

enhancement in connection with the sentencing of the co-defendants was simply an 

oversight. Regardless, the District Court specifically identified grounds for 

distinguishing the pleading co-defendants from Manamela and Kamuvaka, and indicated 

that its ultimate sentence would have been the same without the enhancement. 

Accordingly, we reject their argument that the District Court penalized them for 

exercising their right to a jury trial.

2.

Coulibaly contends that the District Court‟s loss calculation in her case of 

$1,044,000 was incorrect. In determining the amount of loss attributable to a defendant‟s 

conduct, a district court “need only make a reasonable estimate of the loss” based on the 

preponderance of the evidence. U.S.S.G. § 2B1.1 cmt. n.3(C). During the relevant time 

period, the City paid MEBH roughly $3.65 million to provide services under the SCOH 

program. Based on the record, the District Court estimated that at least one-third of 

MEBH‟s required visits never occurred, and thus calculated the total loss amount as 
15

$1.216 million. We find that this was a reasonable estimate and therefore the District 

Court‟s determination that $1,044,000 of the loss was attributable to Coulibaly‟s conduct 

was not clearly erroneous.

3.

Kamuvaka and Murray also claim that their sentences were unreasonable. In 

determining whether a sentence is reasonable, we conduct a two-part inquiry. We must 

first ensure that the district court did not commit any “significant procedural error,” and 

assuming we are satisfied that no such error occurred, we then review the substantive 

reasonableness of the sentence. United States v. Wise, 515 F.3d 207, 217-18 (3d Cir. 

2008).

Kamuvaka argues that her sentence of 210 months‟ imprisonment was both 

procedurally and substantively unreasonable. She bases her procedural unreasonableness 

argument on the fact that the District Court did not specifically reference each 18 U.S.C. 

§ 3553(a) sentencing factor prior to imposing her sentence. However, where, as here, a 

district court imposes a within Guidelines sentence, a lengthy explanation is generally not 

required. See Rita v. United States, 551 U.S. 338, 356-57 (2007). It is clear from the 

record that the District Court was well aware of Kamuvaka‟s history and characteristics 

and took them into account. Accordingly, we reject her contention that her sentence was 

procedurally unreasonable. We similarly reject her argument that the sentence was 

substantively unreasonable. When the district court imposes a sentence within the 
16

Guidelines range, we may presume its reasonableness on appeal. Id. at 347. To 

overcome this presumption, Kamuvaka must demonstrate that “no reasonable sentencing 

court would have imposed the same sentence on [her] for the reasons the [D]istrict 

[C]ourt provided.” United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009). 

Kamuvaka has failed to meet this burden. She argues that mitigating factors such as her 

age, educational background, and lack of a prior criminal record require imposition of a 

lighter sentence. However, the record reflects that the District Court engaged in a 

meaningful consideration of the § 3553(a) factors and we find no abuse of discretion in 

its assessment of the weight to be afforded each factor.

Murray challenges his sentence solely on the basis that it was substantively 

unreasonable. He asserts that the District Court erred in granting the Government‟s 

motion for an upward variance, and increasing his sentence from 87 months, the high end 

of the Guidelines range, to 132 months. When departing from the Guidelines, a district 

court must “ensure that the justification is sufficiently compelling to support the degree 

of the variance.” Gall v. United States, 552 U.S. 38, 50 (2007). Here, we find that the 

District Court adequately explained that it granted the upward departure because the 

Guidelines provisions relating to fraud offenses did not capture the degree of harm that 

resulted from Murray‟s conduct. The District Court noted that Murray‟s Guidelines 

range was driven largely by the amount of loss, but that it was “almost obscene to treat 

the culpability based on the money involved” where Murray was “intimately involved in 
17

ending [D.K.‟s life].” Moreover, the Guidelines expressly contemplate an upward 

departure in cases such as this. Section 5K2.1 provides that a court “may increase the 

sentence above the authorized guideline range” where the offense resulted in death. 

Accordingly, we reject Murray‟s contention that an upward departure of forty-five 

months was unreasonable.

IV.

For the reasons set forth above, we will affirm the judgments of the District Court.