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Kifwa v. United States

United States District Court, D. Maine

April 10, 2018




         In this action, Petitioner Mukonkole Huge Kifwa moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence.[1] (Motion, ECF No. 150.) In 2016, following a jury trial, Petitioner was convicted of visa fraud, bank fraud, a false statement to a government agency, and possession of firearms by a non-immigrant alien; the Court sentenced Petitioner to 46 months in prison. (Judgment, ECF No. 118 at 1-3; Jury Verdict, ECF No. 93.) The First Circuit affirmed the conviction and sentence. United States v. Kifwa, 868 F.3d 55 (1st Cir. 2017).

         Petitioner alleges ineffective assistance of counsel at trial and sentencing. (Motion at 4-5.) Petitioner's claim of ineffective assistance at trial is based on the First Circuit's decision to dismiss without prejudice claims of ineffective assistance raised on direct appeal. (Id. at 4.) Petitioner's brief on appeal reflects he argued counsel was ineffective because counsel failed to request a continuance to review translation transcripts of Petitioner's recorded telephone conversations; because counsel did not argue that the delayed disclosure of the translation transcripts constituted prosecutorial misconduct; and because counsel failed to investigate the accuracy of the translation work.[2] In Petitioner's section 2255 motion, he also alleges that at sentencing, counsel advised him to answer “yes” to all of the Court's questions. (Motion at 5.) His reply contains additional claims not alleged in the section 2255 petition. (Reply, ECF No. 158.)

         The Government has requested summary dismissal of Petitioner's section 2255 motion. (Response, ECF No. 157 at 1.)

         Following a review of Petitioner's motion and the Government's request for dismissal, I recommend the Court grant the Government's request, and dismiss Petitioner's motion.

         I. Factual Background and Procedural History

         Petitioner is a citizen of the Democratic Republic of Congo (DRC). Kifwa, 868 F.3d at 58. As described by the First Circuit, Petitioner “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 [Petitioner's] financial machinations, sparked by complaints about bad checks.” Id.

         Petitioner was arrested in July 2015, and in November 2015, he was charged in an eight-count superseding indictment with visa fraud, 18 U.S.C. § 1546(a) (Count 1); possession of a firearm by a non-immigrant alien, 18 U.S.C. §§ 922(g)(5), 924(a)(2) (Counts 2 and 3); bank fraud, 18 U.S.C. § 1344 (Counts 4-7); and a false statement, 18 U.S.C. § 1001(a)(2) (Count 8). (Superseding Indictment, ECF No. 43.) The indictment alleged the following regarding the false statement:

[D]uring a post-Miranda interview, the defendant reported to special agents from [the Department of State, Diplomatic Security Services] and [the Department of Homeland Security, Homeland Security Investigations] that he had never been to Canada. In fact, he previously lived in Canada for many years and was deported from Canada multiple times.

(Id. at 8.)

         Petitioner's section 2255 claims relate in part to counsel's decisions regarding the Government's translations from Lingala to English of Petitioner's recorded telephone calls with a cooperating witness, Eddy Mintela, while Petitioner was in pretrial detention.[3] Motion at 4.) The First Circuit explained the relevant pretrial and trial proceedings regarding the translations as follows:

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. 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.

Kifwa, 868 F.3d at 58-59 (footnote omitted).

         Following a four-day jury trial in January 2016, Petitioner was convicted on all counts; the Court sentenced Petitioner to prison terms of 46 months on each of the counts, to be served concurrently. Kifwa, 868 F.3d at 59-60. (Judgment at 1-3.)

         On appeal, Petitioner argued the Court should have granted his motion to exclude the transcripts, and the Court's failure to do so prejudiced him. Kifwa, 868 F.3d at 60. The First Circuit affirmed the conviction and sentence. Id. at 63 (concluding “that the appellant has not carried his burden of showing that the delayed disclosure caused him any unfair prejudice, ” and “the district court did not abuse its discretion in denying the appellant's motion to exclude the four translations”). The Court dismissed without prejudice Petitioner's ineffective assistance claim. Id. at 63-64 & n.5 (discussing United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993), and noting the record was clear that counsel told the Court Petitioner resisted any delay).

         Petitioner asserts that he signed and placed his section 2255 motion in the prison mailing system on September 12, 2017. (Motion at 12.) The Government does not contest the timeliness of Petitioner's motion.[4]

         II. Discussion

         A. ...

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