United States v. Kifwa

United States Court of Appeals
For the First Circuit

No. 16-1766

UNITED STATES OF AMERICA,

Appellee,

v.

MUKONKOLE HUGE KIFWA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Torruella, Selya and Kayatta,
Circuit Judges.

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.

August 22, 2017
 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

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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

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"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

1The government did not learn of the existence of these calls
by happenstance. Seemingly unbeknownst to the appellant, Eddy
Mintela (an associate whom the appellant frequently called from
jail) had begun working with the prosecution as a cooperating
witness.

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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

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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

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favorable to the accused violates due process. See Brady v.

Maryland, 373 U.S. 83, 87 (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

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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, 137 S. Ct. 1832 (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

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delay in securing transcription, the government's disclosure

obligation ordinarily does not mature until a particular

transcript comes into existence. See Chaudhry, 850 F.2d at 859;

see also United States v. Amaya-Manzanares, 377 F.3d 39, 42-43

(1st Cir. 2004) (explaining that government's disclosure

obligation did not extend to document that did not yet exist).

Here, the prosecutor provided the recordings (and, later, the

translations) to defense counsel as soon as she received them.

Nor does the record disclose the slightest inkling of bad faith.

The opposite is true: the record strongly suggests diligent and

open communication between counsel. Cf. Chaudhry, 850 F.2d at 859

(discussing issue of good faith and noting absence of evidence

that prosecution "was fatally unassiduous in preparing the

document, or that it squirrelled the new transcript away for a

period of time"). So, too, the record reveals a wholly innocuous

explanation for the government's delay in obtaining translations:

the relevance of the telephone calls only became apparent late in

the game, a large number of calls had to be appraised, and Lingala

translators proved to be hen's-teeth rare.

Over and above the absence of any showing of bad faith,

the appellant has failed to explain convincingly how the admission

of the transcripts prejudiced him. After all, the appellant was

a party to all of the telephone conversations and, thus, must have

been aware of their contents. What is more, the conversations

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were not retrieved from the distant past; the calls had been placed

by the appellant while awaiting trial. It is fair to presume that

the appellant remembered the contents of the calls (at least, in

general terms).

In the same vein, the government shared the recordings

of the telephone calls with the defense when they were first

obtained. Thus, the appellant had the opportunity to listen to

them weeks prior to trial. Although defense counsel did not speak

Lingala, the appellant indisputably did. His lengthy trial

testimony in English (albeit with occasional assistance from a

French translator) convinces us that he would have been able, at

the very least, to summarize the contents of the recordings for

his attorney's benefit.2

We also think it noteworthy that the appellant has

neither identified any specific inaccuracies in the government's

translations nor pointed to any specific piece of information as

a source of unfair surprise. This lack of specificity has special

significance because whether or not the appellant had adequate

time to review the translations before trial, he surely had

adequate time to review them when preparing his brief on appeal.

2 While this kind of bare bones notice is not ideal, it is
one factor, among many, that pushes back against the appellant's
conclusory claim of unfair prejudice. Cf. Flecha-Maldonado, 373
F.3d at 178 (discerning no prejudice when defense counsel was "not
completely ignorant" of contents of recordings because he
independently obtained informal translations before trial).

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 We add, moreover, that this case does not exhibit any of

the familiar telltales of prejudice. For example, one way of

evaluating potential prejudice from delayed disclosure is to

"evaluate how well defense counsel was able to use the information

despite the delay." United States v. Osorio, 929 F.2d 753, 758

(1st Cir. 1991). Here, the appellant made a valiant (though

unconvincing) attempt to refute the government's interpretation of

the recordings at trial. In the most coherent discussion of

potential translation error, the prosecutor asked the appellant

about a transcript excerpt:

[APPELLANT]: I need one paper (document)
because they haves all papers. One letter
written by the Foreigner Affairs Department,
testifying that I work there, as you poses my
labor serial number.
MINTELA: Okay, no problem.
[APPELLANT]: If you can do it for me, that
paper is always sign by our General Secretary.
You need to steal the seal and use it.
MINTELA: Ummm.
[APPELLANT]: Is just one confirmation letter
predating it two days ago.
MINTELA: Yes, yes I understand.
[APPELLANT]: Add the Foreign affairs
Ministry's address.
. . .
[APPELLANT]: Thank you very much . . . . Is
just to confirm that I'm one of their agent.
I'm an agent at the Bureau of Etudes, Foreign
Affairs Ministry.

(Errors in original). When asked what he meant by "steal the

seal," the appellant said that he was merely asking Mintela to go

to the DRC embassy to obtain information about the appellant's

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identity and blamed the negative connotations attached to the word

"steal" on translation error. Even so, he did not explain the

other suspicious parts of the excerpt, such as specifying that the

letter should be predated — and he offers no explanation now.

There are, of course, other ways in which prejudice may

be shown. Of particular pertinence for present purposes, prejudice

sometimes may be demonstrated by indicating "plausible strategic

option[s] which the delay[ed disclosure] foreclosed." Devin, 918

F.2d at 290. The appellant tries to reach this safe harbor,

arguing that he either would have elected not to testify or would

have pursued a plea bargain had he received the translations

earlier. When faced with what purported to be his own words, he

says that he "had no choice" but to attempt to explain himself

(and, thus, to testify).

It may be that the substance of the calls had some modest

influence in the appellant's election to testify. We fail to see,

though, how the timing of the receipt of the transcripts could

have affected this decision. As noted above, the appellant had

access to the recordings weeks before trial. To cinch matters,

the translations themselves were in his hands before he took the

stand (indeed, before the start of trial). Knowing of the contents

of the recordings at least in general terms, he and his counsel

had sufficient information on which to base the appellant's

decision about whether to testify.

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 The appellant's suggestion that he might have chosen to

enter a guilty plea if he had the translations beforehand stands

on no firmer footing. Even assuming that forgoing the opportunity

to enter into a plea agreement is a cognizable form of prejudice

in a delayed disclosure case, see Flecha-Maldonado, 373 F.3d at

178, the government presented a wide range of witnesses and

documentary evidence — known in advance to the appellant — to focus

the jury's attention on the suspicious discrepancies in the

appellant's visa paperwork, his erroneous statements to

immigration officers, and his pattern of illegitimate financial

dealings. The translations of the four recorded conversations

added little to the mix: they were but the cherry on the sundae.

The sockdolager, of course, is that the appellant never

asked for a continuance when the disclosure was made. Although

this omission does not wholly pretermit his claim of error, see

Lemmerer, 277 F.3d at 586 n.2, it renders the likelihood of

prejudice extremely doubtful. As we have said, "[a]s a general

rule, a defendant who does not request a continuance will not be

heard to complain on appeal that he suffered prejudice as a result

of late-arriving discovery." Sepulveda, 15 F.3d at 1178.

This failure is particularly striking for two reasons.

First, the turnover of the four transcripts occurred before trial

had started, so a continuance would almost certainly have been a

complete panacea. Second, the district court asked the appellant

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if he wanted a continuance and the government said it had no

objection to one. Yet, the appellant turned a deaf ear to this

suggestion. Where, as here, a defendant spurns a continuance that

would have cured the adverse effects of a delayed disclosure, a

claim of prejudice will not lie. See United States v. Candelaria-

Silva, 162 F.3d 698, 703 (1st Cir. 1998).

To sum up, we conclude — after canvassing the record and

weighing all the appellant's arguments — that the appellant has

not carried his burden of showing that the delayed disclosure

caused him any unfair prejudice. Here, there is simply no reason

to believe that "learning the information altered the subsequent

defense strategy," or that "given timeous disclosure, a more

effective strategy would likely have resulted." Devin, 918 F.2d

at 290. It follows that the district court did not abuse its

discretion in denying the appellant's motion to exclude the four

translations.

The appellant has a fallback argument: he faults the

district court for not making explicit findings anent prejudice

and bad faith. However, a failure to make subsidiary findings in

connection with an evidentiary ruling, without more, is ordinarily

not a basis for remand. Everything depends on context. Here,

this panoply of factors weighs heavily against a finding of abuse

of discretion. The record, viewed in context, makes manifest that

the district court reasonably concluded both that the government

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was operating in good faith3 and that the appellant was not

blindsided by the transcripts. And because the basis for the

district court's conclusions is evident, more detailed findings

were not required.

Finally, the appellant asserts that his trial counsel

was ineffective. In his view, his trial counsel represented him

poorly because, among other things, the lawyer failed to request

a continuance when the translations surfaced.

This claim of error is raised for the first time on

appeal, and the record is largely undeveloped as to the basis for

trial counsel's strategic decision.4 We have held, with a

regularity bordering on the metronomic, that, with few exceptions,

claims of ineffective assistance of counsel, not seasonably raised

in the trial court, are not ripe for review on direct appeal of a

criminal conviction.5 See United States v. Mala, 7 F.3d 1058, 1063

3
Indeed, defense counsel arguably conceded that the
prosecutor had acted in good faith by telling the district court
that she (the prosecutor) was "doing the best she [could]" under
the circumstances and later adding that the delayed disclosure was
"not [the prosecutor's] fault."

4
One thing is clear, though: trial counsel told the district
court that his client (the appellant) "resisted any efforts to
delay."

5
The exceptions, which generally involve cases where the
record is already fully developed in all material respects, see,
e.g., United States v. Ortiz, 146 F.3d 25, 27 (1st Cir. 1998);
United States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991), are
few and far between. The case at hand does not begin to meet those
requirements.

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(1st Cir. 1993) (collecting cases). Rather, such claims must be

brought in collateral post-conviction proceedings. See United

States v. Jones, 778 F.3d 375, 389 (1st Cir. 2015). Accordingly,

we dismiss this aspect of the appeal without prejudice.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

the appellant's conviction and sentence are affirmed. The appeal

is dismissed as to the claim of ineffective assistance of trial

counsel; without prejudice, however, to the appellant's right, if

he so chooses, to raise this claim by a petition for post-

conviction relief pursuant to 28 U.S.C. § 2255.

So Ordered.

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