Court filing
Defense Sentencing Memorandum — United States v. Amos Mundendi
No. 1:21-cr-00247-PAE · Doc. 234 · Docket on CourtListener
Full text
Case 1:21-cr-00247-PAE Document 234 Filed 02/02/23 Page 1 of 13
February 2, 2023
VIA ECF and Email
Honorable Paul A. Engelmayer
United States District Judge
Southern District of New York
40 Foley Square
New York, NY 10007
Re: United States v. Amos Mundendi
21 Cr. 247 (PAE)
Dear Judge Engelmayer,
Amos Mundendi was five years old the first time his parents forced him to
sleep outside with no food and water for a week. Labeled as a sorcerer responsible
for his family’s misfortune, young Amos was berated and beaten. And as his
personal trauma intensified, the country around him – the Democratic Republic of
Congo – descended into civil war. Mr. Mundendi and his family found their way to
the United States as political asylees, but the violence he had witnessed and the
trauma he endured shaped his outlook on life. Unable to fully process his
experiences, Mr. Mundendi did not graduate college and could not find fulfilling
employment. He faced tremendous financial pressure and a growing sense of
failure. The offense conduct here was born of that untreated trauma.
Mr. Mundendi has now confronted his decisions and has accepted
responsibility for the harm that he caused. He is looking to the future, focused on
the considerable rehabilitation that lies ahead.
Given all of the factors to be considered in determining a just sentence, I ask
the Court to sentence Mr. Mundendi to a term of five years’ probation with one
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year of home detention. This sentence acknowledges the seriousness of the
offense, reflects the unique circumstances of Mr. Mundendi’s life, and sufficiently
punishes. A sentence of probation and home detention is wholly sufficient to achieve
the statutory goals of sentencing.
Procedural History
On April 4, 2022, Mr. Mundendi entered a guilty plea to one count of
conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349. In a plea
agreement, the government and Mr. Mundendi calculated a Sentencing Guidelines
range of 57 – 71 months’ imprisonment. The Probation Office, based upon new
information regarding Mr. Mundendi’s criminal history, calculated a Guidelines
range of 63 – 78 months’ imprisonment.
Mr. Mundendi was arrested on April 21, 2021 and detained until July 28,
2021. Mr. Mundendi’s bond was revoked and he was remanded on October 14, 2022.
He has been in custody at the Metropolitan Detention Center (“MDC”) since that
date. By the date of his sentencing, Mr. Mundendi will have served approximately
seven months in custody.
A Sentence of Probation and Home Confinement is Warranted 1
A. Amos Mundendi’s Tragic Childhood 2
Amos Mundendi was born in Kinshasa, the Democratic Republic of Congo
1 A letter from Mr. Mundendi is attached to this submission as Exhibit B. Letters of support from
Mr. Mundendi’s family are attached as Exhibits C and D. Supplemental information in this
submission is drawn from the Pre-Sentence Report (“PSR”) and conversations with Mr. Mundendi
and his family.
2 To assist with Mr. Mundendi’s sentencing, our office retained Dr. Adeyinka Akinsulure-Smith,
Ph.D., a clinical psychologist, senior staff psychologist at the Bellevue Program for Survivors of
Torture, and professor at New York University’s School of Medicine as well as the City College of the
City University of New York. Dr. Akinsulure-Smith’s teaching and research focuses on severe
psychopathology, trauma, and refugee/immigrant mental health. Dr. Akinsulure-Smith met with Mr.
Mundendi nine times, reviewed records, and spoke with Mr. Mundendi’s fiancée, Charisma Iwu. Dr.
Akinsulure-Smith conducted a psychological evaluation of Mr. Mundendi, which included obtaining
significant background information and administering a series of psychological tests. Dr. Akinsulure-
Smith’s report is attached to this submission as Exhibit A.
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(“DRC”) in 1989 to a close-knit household. Mr. Mundendi’s first few years were
unremarkable; his father worked as a teacher while his mother raised the six
children. This stability ended abruptly when Mr. Mundendi’s father lost his job and
the family found themselves living in poverty. Almost overnight the family had no
home and not enough food.
In search of solace, Mr. Mundendi’s mother joined a new church. There she
met a woman who explained that the family’s struggles were the result of young
Amos and his brothers engaging in witchcraft. The children would require a
spiritual cleansing as the only way to rescue the family from their plight. At five
years old, Amos Mundendi was expelled from his home. He was forced to sleep
outside and denied food and water. His clothes were taken from him and he was
made to wear his mother’s old clothes. His parents and siblings tormented him with
ridicule and beatings. When Amos refused to confess to his sorcery, his parents
withdrew him from elementary school.
This abuse persisted for six years. Instead of learning to read and playing
with friends, Amos spent his days looking for food and becoming increasingly
withdrawn. As Mr. Mundendi explained to Dr. Akinsulure-Smith, he spent six years
crying and would close his eyes and try to think of something beautiful. Ex. A at 5.
This practice of disengaging from the world around him is one that Mr. Mundendi
still engages in to this day.
As young Amos was experiencing the trauma inflicted on him by his family,
the country around him was descending into war. 3 Years of genocide, internal
displacement, and dictatorship culminated in a civil war that ultimately caused
over six million deaths. 4 Mr. Mundendi quickly became accustomed to witnessing
the atrocities of war.
In 1999, Mr. Mundendi’s parents, outspoken critics of the dictatorship, were
forced to flee the country. As Elie Mundendi, Amos’ father, explains, “…the political
police came after me. They started searching for me…I escaped the country.”
3 Human Rights Watch Report, DR Congo: Chronology (August 21, 2009) at
https://www.hrw.org/news/2009/08/21/dr-congo-chronology#_War.
4 See Caritas Report, Six Million Dead in Congo’s War (February 24, 2010), at
https://www.caritas.org/2010/02/six-million-dead-in-congos-war/.
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Exhibit D. Amos and his siblings were left behind in Kinshasa under the care of
their oldest sister Lydie. The physical abuse and denial of food continued. Outside
the home, the conditions of the war worsened. The children decided to leave their
home and traveled alone until they reached a refugee camp in neighboring
Cameroon. After several months in the camp the children were able to join their
parents in Texas. On May 18, 2005, Amos Mundendi entered the United States as a
political asylee.
In evaluating Mr. Mundendi, Dr. Akinsulure-Smith administered a series of
psychological tests focused on adverse childhood experiences and adversities. Ex. A
at 11. The results were consistent with Mr. Mundendi’s reported experiences: he
scored highly on tests indicating (1) childhood exposure to emotional, physical, and
sexual abuse, (2) exposure to violence, and (3) persistent trauma during his
developmental years. Id at 12.
B. Amos Mundendi’s Adjustment to Life in the United States
“When I came to the United States, I couldn’t speak a word of English.
Throughout most of my childhood, I didn’t talk because I was so scared
of being thrown out of the house. I was pretty much silent. But at least I
understood the language. When I came to Texas I couldn’t even
understand what people were saying. Learning English was probably
the hardest thing I have ever had to do.”
Letter from Mr. Mundendi, attached as Exhibit B.
Life in Texas brought its own set of challenges. Initially, Mr. Mundendi’s
parents were steadfast in their belief that Amos was a sorcerer. Though he was
allowed to sleep in the home, the emotional and verbal abuse continued. Amos was
enrolled in school but could not speak any English. He was viciously teased by his
classmates and c make friends. Unable to acclimate, he stopped speaking entirely.
Mr. Mundendi credits basketball with enabling him to endure: “Early on, I
was introduced to the game of basketball. Basketball, in many ways, changed my
life. It gave me a reason to live and exist in a world where I had so often been told
that I was different and unworthy. It took a lot of mental and physical focus, but I
was good at it.” Exhibit B. Basketball provided Mr. Mundendi with a sense of self-
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C. Amos Mundendi’s Mental Health Obstacles
“I never really healed from the scars of that trauma. My childhood was
robbed from me by my parents and their religious beliefs. To this day, I
wake up in the middle of the night sweating as a result of nightmares
related to my past.”
Letter from Mr. Mundendi, attached as Exhibit B.
Mr. Mundendi’s clinical sessions with Dr. Akinsulure-Smith identified “a
history of psychological injuries that have created a sense of heightened
vulnerability.” Ex. A at 15. Dr. Akinsulure-Smith determined that Mr. Mundendi
exhibits the following diagnoses:
Id. at 18. These diagnoses are consistent with the chronic childhood adversity that
Mr. Mundendi faced. As Dr. Akinsulure-Smith explains:
Throughout his formative years, Mr. Mundendi’s experiences and
background contributed to undermining his sense of safety and stability.
As a child who grew up in constant survival mode in a home where the
loved ones who were supposed to protect were the ones who harmed him;
Mr. Mundendi struggled to survive…without any protective factors to
mitigate the extensive toxic stress that he encountered on a daily
basis…Mr. Mundendi faced severe, frequent, sustained physical,
psychological, and verbal abuse. For this individual, all of these factors
left him with chronic instability, social isolation, stress and an
overwhelming sense of powerlessness in his life.
Id. at 16.
This arrest has compelled Mr. Mundendi to discuss the trauma of his
childhood with my office, the Probation Office, Dr. Akinsulure-Smith, and his
family. These conversations have led to significant insight into his functioning and
decision-making. Mr. Mundendi had, for the most part, managed to cope despite his
challenges. For the majority of his time under the supervision of Pretrial Services
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Mr. Mundendi was in full compliance. PSR ¶ 17. The stressors of this case, in the
absence of appropriate supportive services, led to a rapid deterioration of his
behavioral functioning. As Ms. Iwu explains in her letter to the Court:
[Last fall] Amos experienced a sort of mental breakdown. His sentencing
was initially set for September 9th, and as this day approached, he
became more and more in denial. He started acting differently. It was
then that I really began to understand the extent of his mental illness.
I always knew he struggled with a lot, but it was kind of easy to ignore
when he was doing well. I think the sentencing triggered some sort of
mental break for him. The upcoming sentencing led him to a very manic,
volatile state… I’ve known Amos for three years, but the last six months
showed me a side of Amos I had never seen before.
Ex. C.
D. Untreated Trauma and the Offense Conduct
Raised in poverty, Amos Mundendi has always felt the pressures of economic
insecurity. After dropping out of college to support his family, Mr. Mundendi
maintained some form of employment. But lacking a college degree, Mr. Mundendi
found himself unable to secure long-term stability. After his dreams of playing
basketball failed, he started to flounder. He could not free himself of the trauma of
his childhood, but was not equipped to address it. He slowly accumulated a number
of contacts with the criminal legal system.
When the pandemic struck, financial pressure mounted for Mr. Mundendi. As
businesses across the state closed he suddenly found himself without work. He
worried about how he would continue to support his parents and young son. Against
this backdrop of financial insecurity his friend Mackenzy Toussaint asked him if he
wanted to help him with a new loan application business. As Mr. Mundendi
explains, “[h]e told me that it was completely alright, and I foolishly believed him.”
Ex. B. Mr. Mundendi was told to act as a broker – connecting individuals and
businesses with Mr. Toussaint in order to submit Paycheck Protection Program
(“PPP”) loan applications. As Mr. Mundendi candidly stated to the Court during his
plea allocution, he was not aware of all of the details of the scheme, but understood
that false information was being submitted as part of the applications. PSR ¶ 45.
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Mr. Mundendi is deeply remorseful for his actions. In trying to make sense of
his conduct, he states that:
For me, it really comes down to the fact that ever since I was a young
child I have wanted to fit in. I was wronged so many times by my family
that I always just wanted friends. As an adult, I still try very hard to fit
in. I want people to like me and so I don’t question at all when they tell
me something. When [Mr. Toussaint] told me about the loan application,
and said that everyone was doing it, I immediately agreed.
Ex. B. Mr. Mundendi was so eager to be a part of a community that he ignored his
better judgment. Dr. Akinsulure-Smith determined that Mr. Mundendi’s poor
decision-making skills were in part due to a desperate effort to develop social
connections with others. Ex. A at 17.
Mr. Mundendi’s conduct was serious, but it is uncontested that he was not
the originator or ringleader of this scheme. He did not understand the breadth of its
reach or the details of its illegality. Mr. Mundendi received approximately $78,000
as proceeds of the fraud. United States v. Apocalypse Bella, 21 Cr. 247, ECF # 182 at
4 (S.D.N.Y. October 22, 2022). This is a fraction of the actual loss amount and a sum
consistent with a broker’s fee. Mr. Mundendi initially gave this money to his
parents and then used approximately $25,000 to pay legal fees to Bret Martin (Mr.
Toussaint’s attorney in this matter) for representation on pending state matters.
In determining a sufficient sentence, the Court should consider the specific
circumstances of Mr. Mundendi’s conduct – shaped by a history of trauma and
rejection – as well as his lesser role in this scheme.
E. Amos Mundendi’s Suffering in Jail
Mr. Mundendi has endured two separate and brutal periods of confinement in
federal custody. On April 4, 2021, Mr. Mundendi was detained in the Northern
District of Texas (Dallas) following his arrest on this matter. He was then
transported across the country over a period of several months until he arrived, and
was released, in our district. The Marshals’ process for transferring prisoners across
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the country, always arduous, was exacerbated by the pandemic. Mr. Mundendi
traveled through several different states, spent time in both local and federal
facilities, and was typically isolated from others due to lock-down conditions. He
arrived in New York bewildered by that experience.
Mr. Mundendi was then detained last October after his bond was revoked by
this Court. Mr. Mundendi has been housed at the MDC, where conditions remain as
grim as they were during the height of the pandemic. Mr. Mundendi is in Unit 51, a
pod in the jail that is openly controlled by gang members. Violence is pervasive and
inmates are reluctant to report anything for fear of retribution by other inmates or
placement in the SHU by the guards. Prison staff, already operating at low
numbers, often refuse to work in Unit 51 due to the heightened violence and lack of
order. This is particularly true on the weekends. Mr. Mundendi reports that the
unit is typically unstaffed from Friday night through Tuesday morning. When
guards fail to report for work, the unit is placed on lock-down. During almost every
one of my visits and phone calls to Mr. Mundendi he has reported that his unit has
been on lock-down. This means that Mr. Mundendi (and the other men in his unit)
remain confined to a single cell without access to showers, telephones, legal
documents, or any form of rehabilitation. Although the new warden at the MDC has
announced that lock-downs are a thing of the past, this is simply not true.
This period of incarceration has been traumatic for Mr. Mundendi.
Unaffiliated with a gang, he has been threatened, physically assaulted, and
repeatedly robbed of his few belongings. He also lacks any opportunity to engage in
productive activities: Mr. Mundendi has not had access to any educational,
vocational, or therapeutic services. It is clear that the Bureau of Prisons is unable to
provide Mr. Mundendi with the psychological and rehabilitative services that Dr.
Akinsulure-Smith has determined he needs.
Mr. Mundendi’s time in prison has served as both a sufficient punishment
and an effective deterrent. Accordingly, I ask the Court to take these conditions into
account when determining a just sentence.
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F. The Fraud Guideline Places Undue Weight on the Loss Amount
To a substantial extent, the fraud Guideline range in this case is driven by
the loss amount – both intended and actual. The Guideline’s emphasis on loss has
been criticized for lacking empirical or historical basis concerning deterrent efficacy
or any other variable relevant to the purposes of sentencing. See United States v.
Corsey, 723 F.3d 366, 379 (2d. Cir. 2013) (Underhill, J., concurring) (“The loss
guideline…was not developed by the Sentencing Commission using an empirical
approach based on data about past sentencing practices. As such, district judges
can and should exercise their discretion when deciding whether or not to follow
the sentencing advice that guideline provides.”).
In imposing a below-guidelines sentence, Judge Rakoff noted in United
States v. Adelson, 441 F.Supp.2d 506, 509 (S.D.N.Y. 2006), aff’d, 301 Fed. Appx.
93 (2d Cir. 2008), that the loss Guideline in fraud cases (as well as the drug
Guideline), in an effort to appear “objective,” places great weight on putatively
measurable quantities without explaining why it is appropriate to accord such
weight to such factors. As further noted in United States v. Gupta, 904 F. Supp.
2d 349, 361 (S.D.N.Y. 2012), aff’d 747 F.3d 111 (2d Cir. 2014), the Guideline’s
focus on the amount of monetary loss effectively ignores the many other factors
contained in § 3553(a), resulting in Guidelines-recommended sentences that are
“irrational on their face.”
The fraud Guideline has also shifted significantly from historical
sentencing practices and the stated original intent of the Commission. Since
1987, the Guidelines have strayed far from the initial goal of short but definite
prison terms for white collar defendants: recommended sentences have been
steadily increased, often with little justification. Looking at this case alone, if
Mr. Mundendi had been convicted of this same offense in 2000, the Guideline 5
range would have been almost half of the range in the current Guidelines.
(Guidelines for a loss of more than $10,000,000 earned a base-offense level of 6,
plus a 15-level loss-amount enhancement, yielding a Guideline Range of 33 to
41 months, whereas calculations under the current Guidelines call for a base
5 Available at: ussc.gov/guidelines/archive/2000-federal-sentencing-guidelines-manual.
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offense level of 7 with a 20-level loss-amount enhancement.) That the same
crime can supposedly warrant such different penalties over time undercuts any
claim that the Guidelines yield rational sentencing recommendations.
The harsh sentence recommended here under § 2B1.1, based primarily on an
overemphasis on loss amount, is not historically or empirically based, will yield a
sentence that is greater than necessary, and will impose significant costs on Mr.
Mundendi and the community. The Court should recognize this Guideline as
fundamentally flawed.
Looking Ahead: The Path Forward
“Growing up, I was thought to be a witch, and made to live in a crawl
space. Physically, but also emotionally, I didn’t see a way out. But now
I do. I see a way that I can take this terrible mistake and recover from it
in a productive way.”
Letter from Mr. Mundendi, attached as Exhibit B.
Amos Mundendi is not the same man he was almost two years ago when he
was arrested on this matter. He has made many mistakes in those two years, but he
has also gained tremendous insight into the decisions that led him to this point.
This most recent period of incarceration has challenged Mr. Mundendi’s sense of
self, and has forced him to focus on the necessary rehabilitation that lies ahead.
Mr. Mundendi’s reentry plan has been developed after meeting with Dr.
Akinsulure-Smith and social work staff at the Federal Defender’s office. I urge the
Court to consider imposing the services in this reentry plan as mandatory
conditions of a five-year term of probation.
Mental health treatment: In her report to the Court, Dr. Akinsulure-Smith
recommends the following for Mr. Mundendi:
1. Cognitive Behavioral Therapy (“CBT”);
2. Medication management;
3. Psychological therapeutic support; and
4. Community mentorship.
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See Ex. A at 19.
Education: Mr. Mundendi’s educational trajectory was cut short by the
pressure to contribute financially to his family. Mr. Mundendi regrets his
decision to leave school and is eager to graduate from college with a degree in
business administration. Mr. Mundendi hopes to attend Tarrant County College
in Fort Worth, Texas.
Employment: Mr. Mundendi will obtain and maintain regular employment. He
has already spoken with a social worker at the Federal Defender’s office about
reentry programs that provide vocational training programs that offer
certifications in technical skills.
Upon his release Mr. Mundendi will live with his parents in the suburbs of
Dallas, Texas. Mr. Mundendi will comply with the conditions of his supervision. He
will also spend time with his young son and work to repair his relationships with
his family. As Dr. Akinsulure-Smith notes, “…Mr. Mundendi would be most
amenable to treatment in the community rather than a correctional facility. Mr.
Mundendi is generally a prosocial individual and his psycho social functioning
would improve significantly” with access to appropriate services. Ex. A at 20.
Conclusion
Amos Mundendi committed a serious crime and he knows that a serious
punishment is warranted. A sentence of five years’ probation with one year of home
detention is such punishment and is sufficient to serve the purposes of sentencing.
This sentence punishes Mr. Mundendi for his role in this crime and serves as a
powerful deterrent. It also recognizes that, with the imposition of necessary
psychological services and continued supervision, Mr. Mundendi can overcome the
tragedy of his childhood. As his father states: “Amos wants to stand for the good in
life. He has promised me this, and I know I can count on him to follow through.” Ex.
D. Amos Mundendi has the potential for full rehabilitation and a successful reentry
into our community. The Court should afford him that opportunity.
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Respectfully submitted,
_______________________
Tamara L. Giwa
Counsel for Amos Mundendi
Federal Defenders of New York
(917) 890-9729
cc: AUSA Dina McLeod (via ECF)
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