United States of America v. Nyame Amoah Mensah, a/k/a FOSTER Nyame Amoah Mensah

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-3751
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UNITED STATES OF AMERICA
v.
NYAME AMOAH MENSAH,
a/k/a FOSTER
Nyame Amoah Mensah,
Appellant
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On Appeal from the United States District Court
For the Western District of Pennsylvania
(D.C. Criminal Action No. 2-08-cr-00168-015)
District Judge: Honorable Gustave Diamond
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Submitted Under Third Circuit LAR 34.1(a)
June 23, 2011
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Before: HARDIMAN and GREENBERG, Circuit Judges, and POLLAK, District Judge*
(Opinion filed: June 28, 2011)
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OPINION
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* Honorable Louis H. Pollak, Senior Judge of the United States District Court for the
Eastern District of Pennsylvania, sitting by designation.

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POLLAK, District Judge
In August 2009, a jury found Nyame Amoah Mensah guilty of conspiracy to
distribute in excess of one kilo of heroin. After the trial, Mensah learned that the
government’s principal witness against him, one of his co-conspirators, stated to two
prison inmates that Mensah was not part of the conspiracy. Mensah then moved for a
new trial under Fed. R. Crim. P. 33. The District Court denied his request and he now
appeals to this court. We will affirm the District Court’s order denying the motion for a
new trial for substantially the reasons given by the District Court.
I.
Because we write primarily for the parties, who are of course familiar with this
case, we address only the facts and procedural history relevant to resolution of the issues
raised in this appeal.
Nyame Amoah Mensah was charged with one count of conspiracy to distribute in
excess of one kilo of heroin in violation of 21 U.S.C. § 846. Notably, the government
alleged that, in early 2008, Mensah “body carried” heroin into the United States from
Ghana on behalf of an international heroin trafficking ring.1
1 As the government explains, the heroin trafficking ring recruited people known as
“body carriers” to ingest hard capsule-like “slugs,” each of which contained
approximately 10 grams of heroin. Body carriers would ingest approximately 40 to 80 of
these slugs in Ghana and then fly to the United States. Once in the United States, the
carriers would defecate and clean the slugs and then pass them along to members of the
ring.
On August 11, 2009, a jury
trial commenced for Mensah and four other alleged co-conspirators. At trial, the
government presented transcripts of wiretapped phone conversations between Mensah

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and one of the leaders of the conspiracy, Emmanuel Kofi Adusei (“Adusei”). Although
Adusei initially maintained to the FBI that Mensah was not involved in the conspiracy, he
later changed his account after learning that the government had wiretapped his phones.
Adusei pled guilty and agreed to testify against Mensah. During the trial, defense
counsel extensively cross-examined Adusei about his prior inconsistent statements to the
FBI and about his motives for cooperating. The trial concluded on August 21, 2009, with
the jury finding Mensah guilty and acquitting the other four defendants.
While Mensah was awaiting sentencing at the Northeast Ohio Correctional Center,
he learned from two other inmates, Alvin Thomas and Cornelius Newbern, that Adusei,
the government’s sole witness against him, had stated on two separate occasions in 2008
that Mensah was not involved with the conspiracy. Adusei made these statements around
the same time that he was also telling the FBI that Mensah was not part of the conspiracy,
and before he was confronted with the government’s wiretap evidence.
On November 10, 2009, Mensah filed a timely motion for a new trial pursuant to
Rule 33 of the Federal Rules of Criminal Procedure on the basis of the newly-discovered
evidence of Adusei’s statements to the two inmates. On January 10, 2010, the District
Court conducted an evidentiary hearing, during which it heard testimony from the two
inmates, FBI Special Agent Sandra Maier, and James Brink (Adusei’s trial counsel). On
August 30, 2010, the District Court issued an order and opinion denying Mensah’s
motion for a new trial. Mensah now appeals the Court’s order.
II.

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The District Court had jurisdiction under 18 U.S.C. § 3231, and this court has
jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.
We review a district court’s determination of whether to grant a new trial for an
abuse of discretion. United States v. Brown, 595 F.3d 498, 511 (3d Cir. 2010). As we
have explained, “a district court abuses its discretion if its decision rests upon a clearly
erroneous finding of fact, an errant conclusion of law or an improper application of law to
fact.” Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002).
Under Federal Rule of Criminal Procedure 33(a), the trial court may, upon
defendant’s motion, “vacate any judgment and grant a new trial if the interest of justice
so requires.” Motions under Rule 33 are “not favored and should be granted sparingly
and only in exceptional cases.” United States v. Silveus, 542 F.3d 993, 1005 (3d Cir.
2008) (citations omitted). This court has articulated five criteria that a defendant must
meet before he may be granted a new trial on the basis of newly-discovered evidence: (1)
the evidence must be newly discovered, i.e., discovered since the trial; (2) facts must be
alleged from which the court may infer diligence on the part of the movant; (3) the
evidence must not be merely cumulative or impeaching; (4) the evidence must be
material to the issues involved; and (5) the evidence must be such, and of such nature, as
that, on a new trial, it would probably produce an acquittal. United States v. Kelly, 539
F.3d 172, 181–182 (3d Cir. 2008). The movant has a “heavy burden” of proving each of
these requirements. United States v. Cimera, 459 F.3d 452, 458 (3d Cir. 2006). If just
one of the requirements is not satisfied, a defendant’s Rule 33 motion must fail. United
States v. Jasin, 280 F.3d 355, 365 (3d Cir. 2002).

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The District Court found that Mensah satisfied three of the five criteria: the
evidence was newly discovered; Mensah was diligent in pursuing the evidence; and the
evidence was material. However, the Court determined that Mensah had failed to satisfy
the other two requirements, because the inmates’ statements were merely impeaching and
cumulative and because a jury would probably not acquit Mensah even if it knew of the
inmates’ statements. In this appeal, Mensah challenges both of these determinations. We
will address each of them in turn.
First, as a general rule, a new trial will not be granted under Rule 33 where the
new evidence is merely cumulative or impeaching. United States v. Saada, 212 F.3d 210,
216 (3d Cir. 2000). Evidence that is impeaching lacks an “exculpatory connection” to the
defendant’s conduct. Id. Cumulative evidence is that which merely reiterates or
reinforces testimony or evidence that the jury has already heard. Id.
Mensah argues that in exceptional circumstances, a court may grant a new trial on
the basis of impeachment evidence alone and that the impeachment evidence is so
overwhelming that it undermines the government’s entire case. While this court has
ruled that in exceptional circumstances a new trial may be granted on the basis of
impeachment evidence alone, it has stressed that there must be either (1) a strong
exculpatory connection between the new evidence and the charge against defendant, or
(2) the new evidence must seriously undermine evidence presented at trial. United States
v. Quiles, 618 F.3d 383, 392 (3d Cir. 2010). The connection between the new evidence
and the verdict must be so strong that it suggests the defendant was wrongly convicted.
Id. at 393. To illustrate this exacting standard, the court in Quiles pointed to a series of

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cases in which, after trial, some event transpired which seriously undermined the
credibility of a critical witness or piece of evidence that was previously thought to be
reliable. Id. at 392-93 (citing United States v. Davis, 960 F.2d 820, 825 (9th Cir. 1992)
(new evidence showed that primary witness was a “crooked cop” who had tampered with
evidence); United States v. Taglia, 922 F.2d 413, 415 (7th Cir. 1991) (new evidence
showed that a key witness routinely committed perjury when testifying as an informant);
United States v. Lipowski, 423 F. Supp. 864, 867–68 (D.N.J. 1976) (new evidence
strongly suggested the conviction was based upon fabricated evidence)).
This case is readily distinguishable because Adusei’s credibility was already
repeatedly undermined during trial. Mensah’s counsel extensively questioned Adusei
about his prior inconsistent statements regarding Mensah to the FBI. His counsel also
pointed to other evidence suggesting that Adusei was untrustworthy, including his illegal
entry into the United States and his use of a forged passport. The new evidence merely
reinforces an argument that was already strongly presented at trial: that Adusei was not a
credible witness. Further, as the government points out, Adusei’s statements to the
inmates were made at approximately the same time as his similar statements to the FBI.
Mensah has pointed to no evidence suggesting that Adusei has ever made such statements
after the government confronted him with the transcripts of his wiretapped conversations,
which prompted him to implicate Mensah in the conspiracy. As a result, the new
evidence does not “strongly demonstrate that critical evidence at the trial against the
defendant was very likely to have been false.” Id. at 393. Therefore, Mensah has failed

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to present the kind of exceptional impeachment evidence upon which a motion for a new
trial may be based.
For similar reasons, the new evidence is also cumulative. The testimony of the
two inmates impugns Adusei’s credibility, but defense counsel extensively questioned
Adusei as to his credibility and his inconsistent statements to the FBI. Moreover, as
noted above, Adusei’s statements to the two inmates that Mensah was not involved with
the conspiracy were contemporaneous with his statements to the FBI. Thus, the
additional testimony would serve only to reinforce what the jury had already heard.
Quiles, 618 F.3d at 392. Accordingly, the District Court did not abuse its discretion in
determining that the evidence was merely cumulative and impeaching and did not
warrant a new trial.
Even if the new evidence was not merely impeaching or cumulative, appellant’s
motion for a new trial would still fail because the new evidence would probably not
produce an acquittal during a new trial. See Quiles, 618 F.3d at 392; Kelly, 539 F.3d at
182. When evaluating whether the evidence is likely to produce an acquittal, the court
considers the new evidence in light of all of the evidence presented at trial. See Kelly,
539 F.3d at 189 (holding that a court analyzes “the evidence already weighed and
considered by the jury at trial”). Where a particular piece of evidence presented at trial is
challenged as tainted, we have denied motions for a new trial where there was sufficient
independent evidence to sustain a finding of guilt. Saada, 212 F.3d at 217 n.6.
In this case, there are two independent pieces of evidence that, when considered
together, are sufficient to support Mensah’s conviction. First, even if Adusei’s testimony

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that Mensah was involved in the conspiracy is disregarded, Adusei still testified at some
length regarding how his heroin trafficking ring smuggled heroin into the United States
using body carriers. Adusei’s use of such body carriers formed the basis for his guilty
plea. The new evidence from the inmates does not directly contradict his testimony that
he imported heroin via body carriers—indeed, it tends to confirm it. See App’x at 196
(affidavit by Alvin Thomas quoting Adusei as saying that Mensah “has nothing to do
with this, it is his brother”). The new evidence would thus be of little value in
impeaching Adusei’s testimony regarding his use of body carriers.
Second, the government presented transcripts of wiretapped phone conversations
between Adusei and Mensah that describe Mensah’s transportation of heroin into the
United States and the recruitment of Mensah’s brother to smuggle heroin. Mensah argues
that the transcripts—in which the conspirators are careful never to actually use the word
“heroin”—are meaningless without Adusei’s testimony that Mensah was part of the
conspiracy. However, viewed in light of Adusei’s testimony at trial regarding how the
smuggling ring used body carriers, we agree with the District Court that the wiretap
transcripts would “make absolutely no sense if . . . all [Mensah] brought back were legal
medications and a birth certificate.”2
2 For example, in the March 20, 2008 transcript, Mensah stated that he gave Adusei a
birth certificate and drugs, referring to the prenatal vitamins. Mensah then stated that he
also gave Adusei “37,” but that there were still three including “1 left that hasn’t come
yet.” He added that he was “making some fufu to eat to see if the thing . . .” before
Adusei cut him off. See App’x 227–29; see also Compact Oxford English Dictionary
584 (1984) (defining fufu as a food “composed of yam, plantain, or cassava; it is peeled,
boiled, pounded and made into balls”). In context, this conversation is clearly referring
to Mensah’s defecation of heroin slugs that he had body carried into the United States.

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III.
Because the new evidence is insufficient to merit a new trial under Fed. R. Crim.
P. 33 and because the District Court did not abuse its discretion in denying Mensah a new
trial, we will affirm.
Mensah has advanced no other plausible interpretation of it, or of the other incriminating
passages in the transcripts.

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