737 F.3d 789 (1st Cir. 2013), 12-1066, United States v. Mensah

Docket Nº:12-1066.
Citation:737 F.3d 789
Opinion Judge:LIPEZ, Circuit Judge.
Party Name:UNITED STATES, Appellee, v. David K. MENSAH, a/k/a Willberforce Appiah, Defendant, Appellant.
Attorney:Judith H. Mizner, with whom Rheba Rutkowski, Assistant Federal Public Defender, and Miriam Conrad, Federal Public Defender, were on brief, for appellant. Kelly Begg Lawrence, Assistant U.S. Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
Judge Panel:Before TORRUELLA, SELYA, and LIPEZ, Circuit Judges.
Case Date:December 16, 2013
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 789

737 F.3d 789 (1st Cir. 2013)

UNITED STATES, Appellee,

v.

David K. MENSAH, a/k/a Willberforce Appiah, Defendant, Appellant.

No. 12-1066.

United States Court of Appeals, First Circuit.

December 16, 2013

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Judith H. Mizner, with whom Rheba Rutkowski, Assistant Federal Public Defender, and Miriam Conrad, Federal Public Defender, were on brief, for appellant.

Kelly Begg Lawrence, Assistant U.S. Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before TORRUELLA, SELYA, and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

Appellant David Mensah successfully negotiated the complexities of United States immigration law twice: first, to become

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a naturalized citizen under his own name and, second, to obtain a diversity visa under the false name Willberforce Appiah. His success, however, was short-lived. The government detected Mensah's double dipping, and he was subsequently found guilty by a jury on a charge of unlawful procurement of naturalization, in violation of 18 U.S.C. § 1425(a), based on his concealment of his Appiah identity. On appeal, Mensah raises a host of errors, ranging from constitutional claims to the allegedly improper admission of propensity evidence. His most substantial claim is that the selection of his jury involved purposeful discrimination. See Batson v. Kentucky, 476 U.S. 79, 86, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Although the issue is close, we conclude that the district court did not clearly err in allowing the prosecutor's peremptory challenges to two Asian-American potential jurors. Hence, we affirm.

I.

The facts, as supported by the record, are as follows. Appellant Mensah entered the United States from Ghana in the early 1990s and received permanent legal resident status in 1995 pursuant to a diversity visa.1 Mensah obtained a Massachusetts driver's license two years later. In October 2000, he applied for a diversity visa in the name of Willberforce Appiah,2 and a few months later, in February 2001, he applied for citizenship under his own name. In the naturalization application, Mensah responded " N/A" to a request for " [o]ther names used since you first became a permanent resident." The application also asked whether Mensah had ever " knowingly committed any crime for which [he had] not been arrested." Mensah checked the box labeled " No." He also signed an affirmation on the form stating that " this application, and the evidence submitted with it, is all true and correct."

In June 2001, Mensah followed up on the Appiah visa application by submitting a form titled " Supplemental Registration for the Diversity Visa Program." He listed the same address in Ghana that he had used in the original Appiah application, again noting that mail should be sent there " c/o D.K. Mensah." In December 2001, Mensah filed his final Appiah application for a diversity visa, along with an affidavit in his own name sponsoring Appiah for the visa. The government issued a diversity visa to Appiah in August 2002, and Mensah used it when he returned to the United States a few weeks later after a trip to Ghana. 3 Shortly thereafter, he obtained a Massachusetts state identification card in Appiah's name and, in May 2003, a driver's license.

Meanwhile, in August 2001, Mensah was interviewed by the Immigration and Naturalization Service (" INS" ) in connection with his naturalization application. After

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placing Mensah under oath, the examiner, Alton Saucier, asked him a series of questions, including whether Mensah had ever knowingly committed a crime for which he had not been arrested. Mensah responded that he had " never" done so. At the end of the interview, Mensah signed the application, swearing that it was " true to the best of my knowledge and belief." Saucier recommended approval of Mensah's naturalization application, and he became a citizen in September 2001— in the midst of his activities to create a second identity as Willberforce Appiah.

In October 2006, the Massachusetts State Police (" MSP" ) learned that Mensah had obtained driver's licenses under both names, in violation of state law barring the use of false information to procure a license. See Mass. Gen. Laws ch. 90, § 24B. Officers obtained a warrant charging him with violating section 24B and, a month later, arrested him in his car a few blocks from his home. During an inventory search of the vehicle, the officers found multiple documents bearing the false Appiah name. In January 2009, Mensah admitted in state court that sufficient facts existed to sustain a conviction under section 24B, and the case was continued without a finding. 4

A subsequent investigation by Immigration and Customs Enforcement (" ICE" ) led to Mensah's indictment in this case in March 2010 on one count of unlawful procurement of naturalization, in violation of 18 U.S.C. § 1425(a). 5 The government charged that Mensah had unlawfully obtained naturalization by making material false statements under oath during his naturalization proceedings, in violation of § 1015(a)— i.e., he allegedly procured naturalization, " contrary to law," by making unlawful false statements in his naturalization application and interview.6 A Bill of Particulars filed by the government at Mensah's request pointed to three false statements: (1) his response " N/A" on the naturalization application form, when asked if he had used other names since becoming a permanent resident, (2) his answer of " no" (by checking a box on the form), when asked if he had " ever knowingly committed any crime" for which he had not been arrested, and (3) his oral statement to INS Officer Saucier in August 2001 repeating that he had never knowingly committed such a crime.

Mensah moved to suppress the documents found in his car on the ground that the officers who arrested him unlawfully seized and searched the vehicle. The district court denied the motion. Characterizing the inspection of Mensah's car as a warrantless inventory search, the court held that it was permissible under the Fourth Amendment because the officers had acted pursuant to " standardized policies." See Section II infra. The district court also rejected Mensah's Batson challenge to the government's peremptory strikes of the only two Asian-Americans in the jury pool, crediting the prosecutor's

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race-neutral reasons for excluding them. See Section III infra.

At trial, the government's theory was that all three of the statements alleged to be false were untrue because, at the time they were made, Mensah had previously applied for the diversity visa using the fake Appiah name— a crime under 18 U.S.C. § 1001(a)(2).7 Thus, he knowingly lied in his naturalization application— in violation of 18 U.S.C. § 1015(a)— when he denied that he had used other names (by responding that the question was not applicable to him) and when he twice reported (once in the application and once in the interview) that he had never knowingly committed a crime for which he had not been arrested (the section 1001(a)(2) violation). The section 1015 violation then became the predicate for the section 1425(a) violation, i.e., he allegedly procured naturalization contrary to law by means of those unlawful false statements.8

Mensah did not dispute the facts underlying the unlawful procurement charge. He admitted that he had applied for a visa in the name of Willberforce Appiah and that he had answered the questions in the manner reported above while obtaining citizenship in his own name. His defense, instead, was that the government had failed to prove multiple elements of the crime beyond a reasonable doubt. Specifically, he argued that the government failed to show that (1) he knowingly committed a crime by submitting the Appiah diversity visa application, (2) the statements on the naturalization form were made under oath, (3) " N/A" as a response to the question about other identities was a false statement, and (4) he knew that he was statutorily ineligible for citizenship at the time that he applied for and obtained naturalization. The jury was not persuaded, finding Mensah guilty after two hours of deliberation.

On appeal, Mensah renews his Fourth Amendment challenge to the search and seizure of his vehicle and his Batson challenge to the prosecutor's peremptory strikes of " the only Asian members of the jury venire." He additionally claims that the evidence was insufficient to support the jury verdict, asserts error in certain jury instructions, and argues that the district court abused its discretion in allowing the government to introduce evidence concerning his driver's license arrest.

II.

Mensah claims that the district court erroneously denied his motion to suppress the documents bearing the name Willberforce Appiah that were seized from his car after his arrest in November 2006, as well as unspecified statements concerning those documents that he made to officers. The documents were found on the front passenger floor and in the unlocked glove compartment during a search of his car that took place after Mensah was handcuffed and placed in a police cruiser. Among the items found with the Appiah name were a checkbook, a credit union membership card, and an insurance bill and receipt relating to two vehicles. The district court held that the troopers' search of the car was permissible under the Fourth Amendment because the officers had followed

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standard MSP procedures for towing a vehicle and conducting an inventory search.

We review the district court's ultimate ruling on suppression de novo, accepting its underlying factual findings unless clearly erroneous. United States v. Wurie, 728 F.3d 1, 2-3 (1st Cir.2013). Because the court found a lawful inventory search, it did not address the government's argument that the officers' examination of the vehicle also was justified as a...

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