2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-3-2011

USA v. Neyembo Mikanda

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4213

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 08-4213 & 09-2813

_____________

UNITED STATES OF AMERICA

v.

NEYEMBO MIKANDA,

 Appellant

_____________

On Appeal from the United States District Court

for the District of New Jersey

(Crim. No. 1-08-cr-00130-001)

District Judge: Hon. Noel L. Hillman

Submitted Pursuant to Third Circuit LAR 34.1(a)

Friday, January 28, 2011

Before: McKEE, Chief Judge, SMITH, Circuit Judge, 

and STEARNS,* District Judge

(Opinion filed: March 3, 2011)

__________

OPINION

 _________

McKEE, Chief Judge.

 

* Honorable Richard G. Stearns, District Court Judge, District of Massachusetts, sitting by 

designation.
2

Neyembo Mikanda appeals the district court‟s judgment of conviction and 

sentence. For the reasons set forth below, we will affirm in part, vacate in part, and 

remand for resentencing.

I.

Because we write primarily for the parties, it is not necessary to recite at length the 

facts of this case. Before jury deliberations began in Mikanda‟s trial, the district court 

dismissed Counts 25 and 26 of the superseding indictment sua sponte, and with the 

government‟s consent, because they were barred by the statute of limitations. In 

response, the government filed a redacted superseding indictment, in which Counts 27 

and 28 were renumbered as Counts 25 and 26. Mikanda was convicted of all counts in 

that indictment and sentenced to eighty-four months imprisonment, a three-year term of 

supervised release, and restitution of $216,983.35. This pro se appeal followed.

II.

Mikanda appears to argue the following: (1) the district court lacked subject matter 

jurisdiction and we lack appellate jurisdiction; (2) the superseding indictment was barred 

by the Speedy Trial Act; (3) all twenty-six counts of the indictment were barred by the 

statute of limitations; (4) the magistrate judge was unauthorized to preside over the preindictment phases of the prosecution; and (5) the district court judge was biased.

1

 

1 Additionally, Mikanda appears to raise the following claims: (1) his case presents a 

non-justiciable political question; (2) the Clerk‟s Office impermissibly re-numbered 

certain docket entries; (3) the Clerk‟s Office impermissibly merged Magistrate Docket 

Number 07-1083 with Docket Number 08-130; (4) the district court improperly admitted 

evidence; and (5) the court conducted a non-public trial. These claims are without legal 

or factual foundation and are frivolous. We reject them without discussion.
3

Mikanda was indicted for various federal crimes. Accordingly, the district court 

had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction over the appeal 

pursuant to 28 U.S.C. § 1291 because the judgment of conviction and sentence 

constitutes a final order. See United States v. Siegel, 477 F.3d 87, 89 (3d Cir. 2007) 

(finding appellate jurisdiction pursuant to 28 U.S.C. § 1291 over appeal from a judgment 

of conviction and sentence).

In the alternative, Mikanda claims that even if the courts have jurisdiction, the 

superseding indictment was barred by the Speedy Trial Act. That Act provides in part: 

“Any information or indictment charging an individual with the commission of an 

offense shall be filed within thirty days from the date on which such individual was 

arrested or served with a summons in connection with such charges.” 18 U.S.C. § 

3161(b). However, delays resulting from any of the following are excluded from the time 

requirements of the Act: 

a continuance granted by any judge on his own motion or at the request of 

the defendant or his counsel or at the request of the attorney for the 

Government, if the judge granted such continuance on the basis of his 

findings that the ends of justice served by taking such action outweigh the 

best interest of the public and the defendant in a speedy trial. 

18 U.S.C. § 3161(h)(7)(A). 

Mikanda was arrested on September 27, 2007. Accordingly, the Government had 

until October 26, 2007 to file an indictment or information. On October 19, 2007, 

defense counsel consented to a continuance that resulted in excluding the period from 

October 19, 2007 to December 18, 2007. Thus, only twenty-three days had run under the 

Speedy Trial Act as of December 18, 2007. On December 20, 2007, defense counsel 
4

consented to a second continuance, by which time two more days had elapsed out of the 

thirty-day Speedy Trial Act period. The December 20, 2007 continuance extended to 

February 18, 2008 and five days remained under the Speedy Trial Act. The government 

filed the first indictment on February 13, 2008, within the time-period of the second 

continuance. Thus, no Speedy Trial Act violation occurred between Mikanda‟s arrest and 

the filing of the initial indictment because only twenty-five non-excludable days elapsed.

A Speedy Trial Act violation will also occur if a trial does not begin within 

seventy days of non-excludable time following the indictment. 18 U.S.C. § 3161(c)(1). 

However, “delay resulting from any pretrial motion, from the filing of the motion 

through the conclusion of the hearing on, or other prompt disposition of, such motion” is 

excludable from the Speedy Trial Act calculation. 18 U.S.C. § 3161(h)(1)(D). 

Mikanda‟s pre-trial motions were pending until June 30, 2008, the day the trial began. 

Thus, no Speedy Trial Act violation occurred.

Mikanda‟s attempt to rely on the applicable statutes of limitation also fails as to all 

counts, with the exception of Count 25 of the redacted superseding indictment.

2

 Counts 1 

through 15 of the superseding indictment each charged violations of 26 U.S.C. § 7206(2). 

“The statute of limitations for violations of 26 U.S.C. § 7206(2) is six years, as set out in 

26 U.S.C. § 6531(3).” United States v. Kelley, 864 F.2d 569, 574 (7th Cir. 1989); see

 

2

For purposes of determining the start of the statute of limitations period, we look to the 

date the superseding indictment was filed, not to the filing date of the initial indictment 

because the superseding indictment “materially broadened” the charges. See United 

States v. Oliva, 46 F.3d 320, 324 (3d Cir. 1995) (“Where . . . the government has filed a 

superseding indictment, the day on which the original indictment was filed controls for 

statute of limitation purposes, provided that . . . the superseding indictment does not 

materially broaden or substantially amend the charges in the first.”).
5

also 26 U.S.C. § 6531(3). The superseding indictment was filed on May 7, 2008; 

therefore, it could include any violation of § 7206(2) that was completed on or after May 

7, 2002. Each of the false and fraudulent tax returns charged in Counts 1 through 15 

were filed no earlier than September 13, 2002. Accordingly, none of these counts were 

time-barred.

Counts 16 through 18 of the superseding indictment charged violations of 18 

U.S.C. § 287. The statute of limitations for violations of 18 U.S.C. § 287 is five years, 

as set forth in 18 U.S.C. § 3282. United States v. Burdix-Dana, 149 F.3d 741, 742 (7th 

Cir. 1998); see also 18 U.S.C. § 3282(a). The superseding indictment could therefore 

reach violations of § 287 occurring on or after May 7, 2003. All three false claims for the 

federal fuel tax credit were filed in March 2004. Accordingly, none of these counts were 

time-barred.

Counts 19 through 28 charged mail and wire fraud in violation of 18 U.S.C. §§ 2, 

1341, 1343 which has a limitations period of five years, as set forth in 18 U.S.C. § 3282. 

See United States v. Hoffecker, 530 F.3d 137, 157 (3d Cir. 2008); see also 18 U.S.C. § 

3282(a). “The statute begins to run for mail fraud when a defendant „places, deposits, 

causes to be deposited, takes, or receives mail, or knowingly causes mail to be delivered, 

as part of the execution of a scheme to defraud . . . .‟” Id. (quoting United States v. 

Pharis, 289 F.3d 228, 234 n.3 (3d Cir. 2002)). The limitations period for wire fraud 

begins to run when the wire communication is transmitted. See United States v. 

Eckhardt, 843 F.2d 989, 993 (7th Cir. 1988). The superseding indictment could therefore 

encompass transmittals or mailings that occurred on or after May 7, 2003. 
6

As noted earlier, the district court sua sponte dismissed Counts 25 and 26 of the 

superseding indictment, and the government now concedes that Count 27 (subsequently 

renumbered as Count 25 in the redacted superseding indictment), which charged Mikanda 

with a mail fraud violation for a mailing that occurred on March 24, 2003, was barred by 

the statute of limitations. However, all other mailings and transmittals occurred on or 

after January 16, 2004. Thus, no other counts are time-barred. 

Mikanda contends that the remaining twenty-five counts of conviction should be 

vacated because Magistrate Judge Donio did not have the authority to preside over his 

case before the indictment. Magistrate Judge Donio issued the arrest warrant, presided 

during Mikanda‟s initial court appearance, set the conditions of Mikanda‟s release, ruled 

on requests for continuances and Mikanda‟s motions to proceed pro se, and ruled on

Mikanda‟s “motion to withdraw document.” Although Mikanda alleges that Magistrate

Judge Donio‟s involvement violated the Federal Magistrates Act, 28 U.S.C. §§ 631-639, 

he points to no specific improper action, and it is clear that Magistrate Judge Donio acted 

well within the authority of the Federal Magistrates Act. We also reject Mikanda‟s 

argument that Magistrate Judge Donio could not preside over his case after she issued his 

arrest warrant. See Withrow v. Larkin, 421 U.S. 35, 56 (1975) (explaining that a judge‟s 

issuance of an arrest warrant or involvement in preliminary hearings does not “raise any 

constitutional barrier against the judge‟s presiding over the criminal trial and, if the trial 

is without a jury, against making the necessary determination of guilt or innocence”).

Lastly, Mikanda challenges the impartiality of the district court. When claims of 

judicial bias or prejudice are raised, 28 U.S.C. § 144 requires that any recusal motion 
7

“must be timely filed, contain a good faith certificate of counsel, and include an affidavit 

stating material facts with particularity which, if true, would lead a reasonable person to 

the conclusion that the district judge harbored a special bias or prejudice towards 

defendants.” United States v. Rosenberg, 806 F.2d 1169, 1173 (3d Cir. 1986). “A 

disqualification motion filed after trial and judgment is usually considered untimely 

unless good cause can be shown for the delay, for otherwise a party alleging bias would 

always await judgment in the hopes of a favorable decision.” Id. at 1173 n.3. Although 

Mikanda filed a motion to disqualify the district judge, it was not filed until after his 

conviction and then Mikanda failed to include the required affidavit. Thus, Mikanda 

failed to comply with the procedural requirements of § 144.3

To the extent that Mikanda contends that Judge Hillman should have sua sponte 

recused himself pursuant to 28 U.S.C. § 455, Mikanda has failed to provide us with any 

basis for reasonably questioning the district court‟s impartiality.4 

III.

 

3 There is “a rarely invoked exception to § 144‟s statutory procedure that requires 

disqualification when a judge displays „pervasive bias‟ towards defendants regardless of 

the source of the bias.” Rosenberg, 806 F.2d at 1174. However, this exception is clearly 

inapplicable here since Mikanda has been unable to establish any bias.

4

It would be cause for concern if Judge Hillman had said, as Mikanda alleges, that “his 

„only concern‟ was for so-called „victims.‟” Appellant‟s Am. Br. 31. However, our 

careful review of the record demonstrates that Judge Hillman never made this statement. 

Rather, Mikanda appears to have misconstrued the following innocuous statement made 

by Judge Hillman at Mikanda‟s sentencing hearing: “My only concern now is whether or 

not this declaration of victim loss for Mr. Hardy filed May 18th, was made part of the 

record here, or simply submitted to the Court.” Supp. App. 2630. Mikanda‟s attempt to 

rely on a distortion of that statement is disingenuous at best. 
8

Accordingly, we will vacate the judgment of conviction and sentence on Count 25

and remand for resentencing, and affirm the judgment of conviction and sentence on all 

other counts.