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United States v. Kifwa

United States Court of Appeals, First Circuit

August 22, 2017

MUKONKOLE HUGE KIFWA, Defendant, Appellant.


          David Shaughnessy on brief for appellant.

          Richard W. Murphy, Acting United States Attorney, and Renée M. Bunker, Assistant United States Attorney, on brief for appellee.

          Before Torruella, Selya and Kayatta, Circuit Judges.

          SELYA, Circuit Judge.

         It takes a certain degree of effrontery for an accused person held in pretrial detention to continue to conduct his criminal enterprise over a prison telephone, knowing that prisoner calls are customarily recorded. But defendant-appellant Mukonkole Huge Kifwa did just that, relying on the masking effect of his use of a language (Lingala) seldom heard in the United States. That reliance was misplaced, and even though the appellant moved unsuccessfully to exclude the government's introduction of the translations of four of the recorded conversations at trial, he declined the district court's invitation to ask for a continuance. The jury found him guilty as charged, and the court sentenced him to serve forty-six months in prison.

         The appellant now exhorts us to vacate his conviction and sentence. Discerning no merit in the appellant's exhortations, we affirm the judgment below. We do, however, dismiss without prejudice one of his claims of error.

         I. BACKGROUND

         We briefly rehearse the relevant facts and travel of the case. The appellant is a citizen of the Democratic Republic of the Congo (DRC) who entered the United States in February of 2014 on a non-immigrant diplomatic visa (purporting to be an employee of the DRC government). This fiction began to unravel when - in March of 2015 - federal authorities commenced an investigation into the appellant's financial machinations, sparked by complaints about bad checks. The probe led to the appellant's arrest in July and his indictment (by a federal grand jury sitting in the District of Maine) on a number of bank-fraud charges. The government's investigation continued, and - in November of 2015 - the grand jury handed up a superseding indictment, charging the appellant with visa fraud, see 18 U.S.C. § 1546(a); possession of firearms by a non-immigrant alien, see id. §§ 922(g)(5)(A), 924(a)(2); bank fraud, see id. § 1344; and making materially false statements to a government agency, see id. § 1001(a)(2).

         About a month before the anticipated trial date, the district court held a hearing to determine the appellant's translation needs. The appellant explained that he speaks Lingala, French, and English (though he is more comfortable in French than English). The appellant confirmed that he did not need Lingala translation but instead requested and secured French translation for trial.

         Toward the end of the hearing, the prosecutor stated that she and defense counsel had just begun discussing the possibility that the government might use at trial the substance of certain telephone calls that the appellant had made from jail while in pretrial detention. She explained that the appellant had "made an extraordinarily large number of calls" from jail.[1] Each call was fifteen minutes or less in duration, and at least two-thirds of the approximately 1200 calls were in Lingala. Like all personal calls made by prisoners from the jail, the appellant's calls had been recorded. The prosecutor told the court that the government was still in the process of identifying the relevant conversations and requesting the recordings.

         Following this hearing, the government requested that the jail turn over recordings of roughly 285 to 300 calls. Promptly upon receiving these recordings, the government gave defense counsel a computer disc containing the audio files. Approximately two weeks later, the government (with Mintela's assistance) winnowed out fifteen calls as prime candidates for translation. The government contemporaneously notified defense counsel and singled out the relevant calls (all previously produced) by their identification numbers.

         At that point, the government's efforts hit a snag: it experienced great difficulty in locating a Lingala translator. Eventually, though, the government was able to hire a Lingala translator in Boston who worked "around the clock" to translate and transcribe the fifteen calls. The government turned over the English-language transcripts on a rolling basis as it received them from the translator. The translator finished the final transcript around midnight on the evening before the trial was set to start, and the government gave it to the defense the next morning.

         The appellant objected to the government's proposed use of the translations at trial, but he did not ask for a continuance despite the district court's apparent willingness to grant one. The court proceeded to deny the motion to exclude, but it ordered the government to show defense counsel the particular transcripts that it planned to use before calling any witness whom it intended to query about matters involving the transcribed conversations. The trial began as scheduled.

         During the trial, the government entered four of the transcripts (totaling five pages of text) into evidence. In the government's view, the four transcripts showed the appellant asking Mintela to forge DRC name-change documents and create a story to bolster a bogus asylum claim. The government also presented testimony from Mintela himself as well as testimony from various immigration officials (who described several discrepancies and inaccuracies in the appellant's visa documentation). In addition, representatives of various banks described the appellant's penchant for passing bad checks and attempting to cash counterfeit checks.

         Following four days of trial, the jury found the appellant guilty on all counts. The district court imposed a forty-six-month sentence for each count, to run concurrently. This timely appeal ensued.

         II. ...

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