United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2255
C. NIVISON U.S. MAGISTRATE JUDGE.
action, Petitioner Mukonkole Huge Kifwa moves, pursuant to 28
U.S.C. § 2255, to vacate, set aside or correct his
sentence. (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).
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. 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.)
Government has requested summary dismissal of
Petitioner's section 2255 motion. (Response, ECF No. 157
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
Factual Background and Procedural History
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.
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
[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.)
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. 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
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).
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
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).
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