FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE Hon. D. Brock Hornby, U.S. District Judge.
Shaughnessy on brief for appellant.
Richard W. Murphy, Acting United States Attorney, and
Renée M. Bunker, Assistant United States Attorney, on
brief for appellee.
Torruella, Selya and Kayatta, Circuit Judges.
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.
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.
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).
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.
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. 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.
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.
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
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.
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.
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