United States v. Daniel Kusi ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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Nos. 20-1095 & 20-1138
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UNITED STATES OF AMERICA
v.
DANIEL KUSI,
Appellant in 20-1095
GERMAINE KING, also known as Germaine Howard,
Appellant in 20-1138
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-18-cr-00379-002 and 001)
District Judge: The Honorable John M. Vazquez
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
November 9, 2021
Before: HARDIMAN, MATEY, and SCIRICA, Circuit Judges.
(Filed: November 24, 2021)
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OPINION
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
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, does not
constitute binding precedent.
MATEY, Circuit Judge.
A jury found Germaine King and Daniel Kusi guilty of bank and mail fraud. King
challenges the sentence that followed, while Kusi appeals some of his convictions. Seeing
no merit in their arguments, we will affirm the District Court.
I. BACKGROUND
We recount only the basic facts in this complicated tale of fraud that begins with
King and his wife, Melissa Reynolds, devising a plan to use money orders to eliminate
their debts. Kusi supplemented his work at a New Jersey state agency with a rental car
business. The luxury kind. Kusi leased several exquisite vehicles including a Rolls Royce,
a Bentley, and two Mercedes-Benzes. The monthly payments on this fleet were
unsurprisingly expensive, and when Kusi could not pay the bills, he turned to King for
help. King and Reynolds obliged, explaining they could pay off his loans with their “private
bank.” (App. at 1504.) Using fake checks from King and Reynolds, Kusi sent payoff
information to his creditors. Most figured out the scam quickly, but Bentley did not catch
on as fast and, thinking payment in hand, they mailed Kusi title to the car. Kusi quickly
sold the Bentley for $82,000, giving King $25,000. But the scheme mostly failed so Kusi
filed a bankruptcy petition.1 He left out a few things including, for example, his ownership
of several guns, his sale of the Bentley, and his $25,000 payment to King. He also falsely
claimed he was not married and failed to report his wife’s employment. Federal charges
followed for bank, mail, and bankruptcy fraud.
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The bankruptcy court eventually dismissed the petition.
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After a jury found King and Kusi guilty on all counts, King was sentenced to 70
months imprisonment and Kusi 57 months, both within the advisory Guideline range. King
now appeals his sentence as substantively unreasonable. Kusi challenges nine of the
thirteen counts of conviction, asserting a lack of evidence and improper expert witness
testimony.2 Finding no error, we will affirm the District Court’s Judgments.
II. DISCUSSION
We review King’s sentence for an abuse of discretion. United States v. Seibert, 971
F.3d 396, 399 (3d Cir. 2020). We exercise plenary review over Kusi’s sufficiency-of-the-
evidence claims and will uphold the jury’s verdict if there is substantial evidence, viewed
in the light most favorable to the United States, from which a reasonable factfinder could
find guilt beyond a reasonable doubt. United States v. Caraballo-Rodriguez, 726 F.3d 418,
430 (3d Cir. 2013) (en banc). Finally, we review Kusi’s claim of improper expert testimony
for abuse of discretion. UGI Sunbury LLC v. A Permanent Easement for 1.7575 Acres, 949
F.3d 825, 831 (3d Cir. 2020).
A. King’s Sentence
When a sentence is “within the applicable Guidelines range, we may presume that
the sentence is reasonable.” United States v. Handerhan, 739 F.3d 114, 119—20 (3d Cir.
2014) (citing Rita v. United States, 551 U.S. 338, 350–51 (2007)). We will not reverse a
sentence as substantively unreasonable “unless no reasonable sentencing court would have
imposed the same sentence on that particular defendant for the reasons the district court
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The District Court had jurisdiction under 18 U.S.C. § 3231, and we have
jurisdiction under 28 U.S.C. § 1291.
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provided.” United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc).
King fails to meet this high bar. The sentencing Judge reasonably weighed the facts
and circumstances, King’s crimes, and the factors listed in 18 U.S.C. § 3553(a) before
imposing a sentence within the applicable Guidelines range. Such sentences are not
uncommon, see e.g., U.S. v. Manuel, 732 F.3d 283, 285 (3d Cir. 2013) (71-month sentence
for mail fraud offenses), and there is nothing substantively unreasonable about the District
Court’s decision. Accordingly, we will affirm.
B. Kusi’s Claims
Kusi brings a host of challenges to his conviction, and we consider each in turn.
1. Witness Testimony
Kusi claims the Government improperly offered FBI forensic accountant Omar
Martinez as an expert witness. But Martinez never testified as an expert, a point
emphasized when Kusi’s counsel called Martinez an “expert,” prompting the Judge to
remind him that “[h]e hasn’t been qualified as an expert.”3 (App. at 892.) And for that
reason, Kusi’s challenge cannot prevail.
2. Conspiracy to Commit Mail Fraud
Next, Kusi challenges his conviction for conspiracy to commit mail fraud, arguing
he did not know King and Reynolds were using fake checks to pay off his debts. As the
District Court explained, a conspiracy may be proven by direct or circumstantial evidence,
and a jury may infer the existence of a conspiracy based on the totality of the evidence.
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At another point, the Judge asked, “So what more do you want from a witness who
doesn’t even pretend to be an expert?” (App. at 1388.)
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United States v. Brodie, 403 F.3d 123, 134 (3d Cir. 2005). Finding substantial evidence in
the record, we will affirm Kusi’s conviction.
King and Kusi both testified that at their initial meeting, Kusi explained his debt,
and King agreed to provide Kusi with checks. King and Reynolds also informed Kusi that
they would create the checks on a computer, and that Reynolds would use her “private
estate” to manage the payoffs. And Kusi was familiar with money, using several business
accounts to operate his car rental company. The jury had sufficient evidence to conclude
Kusi understood the nature of these transactions and intended to join King in a conspiracy.
So we will affirm.
3. Mail Fraud and Bankruptcy Fraud
Finally, Kusi challenges his convictions for six counts of mail fraud related to his
payments to Mercedes-Benz, as well as two counts of bankruptcy fraud. The Government
argues Kusi waived these challenges, and though his arguments are sparse, they are
sufficient. But Kusi’s arguments fail on the merits.
To prove mail fraud, the “evidence must establish beyond a reasonable doubt (1)
the defendant’s knowing and willful participation in a scheme or artifice to defraud, (2)
with the specific intent to defraud, and (3) the use of the mails . . . in furtherance of the
scheme.” United States v. Antico, 275 F.3d 245, 261 (3d Cir. 2001). As for elements one
and two, much of the same evidence from which the jury could find Kusi guilty of
conspiracy applies with equal force here. For example, when Bentley confronted Kusi with
the bounced checks, Kusi claimed he would pay off the car within one week. But Kusi had
sold the Bentley to a used car dealership for $82,000 and sent $25,000 of the proceeds to
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King. Mercedes-Benz caught Kusi before he could repeat the sale, but it was reasonable
for the jury to infer Kusi intended to defraud the company in the same manner.
Kusi argues he was not “even aware that the mail would be used.” (Kusi Br. at 26.)
That is of no moment, as the Government may prove a defendant “does an act with
knowledge that the use of the mails will follow in the ordinary course of business, or where
such use can reasonably be foreseen, even though not actually intended.” Pereira v. United
States, 347 U.S. 1, 8–9 (1954) (emphasis added). In any event, the Government exceeded
that bar by introducing evidence Kusi knew paying off debts meant King and Reynolds
would send physical checks to multiple locations in and out of state.
Kusi’s bankruptcy fraud appeal meets the same fate. To convict Kusi under section
1519, the Government must prove Kusi “knowingly…falsifie[d]” bankruptcy records
“with the intent to impede, obstruct, or influence” a bankruptcy proceeding. 18 U.S.C. §
1519. And to convict Kusi under section 152(2), the Government must prove Kusi
“knowingly and fraudulently ma[de] a false oath or account in or in relation to” a
bankruptcy proceeding. 18 U.S.C. § 152(2). To overturn the convictions, we must find
substantial evidence lacking.
But there is plenty of evidence. The Government introduced testimony from a task
force officer, a bankruptcy expert, an IRS employee, and the bankruptcy trustee who
interviewed Kusi under oath to show that Kusi’s petition contained many false statements.
Kusi claims that because the false statements are his lawyer’s fault, he did not possess the
required intent under section 1519. But he asserted that defense at trial, and the jury
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exercised its discretion in giving it little weight. As substantial evidence supports these
convictions, we will affirm.
III. CONCLUSION
For these reasons, we will affirm the District Court.
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