United States v. Kifwa, 16–1766

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: SELYA, Circuit Judge.
• Citation: United States v. Kifwa, 868 F.3d 55 (1st Cir. 2017)
• Decision Date: 22 August 2017
• Docket Number: No. 16–1766,16–1766
• Parties: UNITED STATES of America, Appellee, v. Mukonkole Huge KIFWA, Defendant, Appellant.

868 F.3d 55

UNITED STATES of America, Appellee,

v.Mukonkole Huge KIFWA, Defendant, Appellant.

No. 16–1766

United States Court of Appeals, First Circuit.

August 22, 2017

David Shaughnessy, Boston, MA, 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. ANALYSIS

Before us, the appellant—who is represented by new counsel on appeal—argues that the district court should have granted his motion to exclude the transcripts, that their introduction unfairly prejudiced him, and that his trial counsel was ineffective. We discuss the first two of these claims together and then turn to the ineffective assistance of counsel claim.

We start with the transcripts, which involved a quartet of recorded calls. Because the appellant seasonably moved to exclude them below, his first two claims of error are preserved. See United States v. Lemmerer , 277 F.3d 579, 586 n.2 (1st Cir. 2002). Consequently, we review the district court's rulings concerning the transcripts for abuse of discretion. See United States v. Perez–Ruiz , 353 F.3d 1, 10 (1st Cir. 2003).

In criminal cases, the government has broad disclosure obligations. See United States v. Huddleston , 194 F.3d 214, 222 (1st Cir. 1999) ; see also Fed. R. Crim. P. 16(a). Those obligations have teeth: the government's suppression of evidence favorable to the accused violates due process. See Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Furthermore, the government's disclosures must be made in a timely manner. See United States v. Chaudhry , 850 F.2d 851, 858 (1st Cir. 1988). Typically, litigants offer recordings as evidence and use transcripts as interpretive aids for the jurors' benefit. See United States v. Cintolo , 818 F.2d 980, 1004 n.15 (1st Cir. 1987). The recordings control in the event that they differ from the proffered transcripts. See id. Foreign-language recordings, however, are treated differently. For commonsense reasons, "play[ing] foreign language tapes endlessly to an uncomprehending jury" is not required. Chaudhry , 850 F.2d at 856.

As a result, the parties may agree to forgo having jurors listen to foreign-language recordings that they do not understand. See United States v. Rengifo , 789 F.2d 975, 983 (1st Cir. 1986). In such circumstances, transcripts containing translations of such recordings may be admitted into evidence as long as they are reliable and properly authenticated. See United States v. Morales-Madera , 352 F.3d 1, 8–9 (1st Cir. 2003) ; Rengifo , 789 F.2d at 983. When dealing with translations of foreign-language recordings, the transcripts ordinarily must be divulged to defense counsel sufficiently in advance of trial to allow him to assess their accuracy, raise objections, and craft an informed defense strategy. See United States v. Flecha–Maldonado , 373 F.3d 170, 177 (1st Cir. 2004) ; Morales–Madera , 352 F.3d at 8.

If disclosure is delayed without any suggestion of bad faith on the government's part, "the critical inquiry is ... whether the tardiness prevented defense counsel from employing the material to good effect." United States v. Devin , 918 F.2d 280, 290 (1st Cir. 1990) ; see Chaudhry , 850 F.2d at 858–59. In conducting this inquiry, "a court's principal concern must be whether learning the information altered the subsequent defense strategy, and whether, given timeous disclosure, a more effective strategy would likely have resulted." Devin , 918 F.2d at 290.

To vacate a conviction on grounds related to a disclosure delayed without bad faith, we must be convinced of "a reasonable probability" that the result of the proceeding would have been different had the defendant received the discovery in a timely manner.

Perez-Ruiz , 353 F.3d at 8-9. In other words, a defendant must demonstrate prejudice before we can overturn his conviction. See United States v. Montoya , 844 F.3d 63, 71 (1st Cir. 2016), cert. denied , ––– U.S. ––––, 137 S.Ct. 1832, 197 L.Ed.2d 773 (2017) ; United States v. Sepulveda , 15 F.3d 1161, 1178-79 (1st Cir. 1993). The burden is on the defendant to prove prejudice. See Devin , 918 F.2d at 290.

Against this backdrop, we turn to the case at hand. To begin, we have doubts that the lag in disclosure actually constituted a discovery violation. In the absence of any undue delay in securing transcription, the government's disclosure...