UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Wanjiku Thiongo

v. Civil No. 04-CV-387-PB

United States of America

O R D E R

Wanjiku Thiongo made three arguments at the May 19, 2005

hearing in support of her petition to vacate her conviction. 

Thiongo first argued that she was entitled to a new trial because

the prosecutor failed to disclose promises she had made to

several government witnesses that they would not be prosecuted if

they testified at trial. I rejected this argument because I

determined that the prosecutor had properly disclosed her

promises not to prosecute the witnesses. Thiongo next argued

that she was entitled to a new trial because the prosecutor

failed to turn over certain allegedly exculpatory documents prior

to trial. I rejected this argument because I determined that the

government never had possession of the allegedly exculpatory 

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documents. Thiongo’s third claim was that her conviction should

be vacated because the prosecutor improperly permitted two of its

witnesses to falsely claim at trial that the government had not

promised them anything in exchange for their testimony. I

address Thiongo’s third argument in this order. 

I. BACKGROUND

The prosecutor elicited the following testimony from Nancy

Mwaniki during Thiongo’s trial: 

Q. Finally, Ms. Mwaniki, you’ve spoken to me

before, correct? 

A. Yes.

Q. And you’ve spoken to Special Agent Phil

Bleezarde before, correct? 

A. Yes.

Q. Did I promise you anything in return for your

testimony? 

A. Nothing.

Q. Did I tell you that you wouldn’t be deported? 

A. Yes.

Q. I told you you would not be deported? 

A. You told me I would be deported, yeah.

Q. I told you you would be deported? 

A. Yeah.

Trial Transcript, Day 4, morning session at 71-72. 

She elicited similar information from Winston Githinji, who

testified: 

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Q. Sir, have I promised you anything in return

for your testimony today?

A. No.

Q. Has Special Agent Bleezarde promised you

anything in return for your testimony? 

A. No.

Q. Have we promised that you wouldn’t be

deported?

A. No.

Trial Transcript, Day 4, afternoon session at 91. 

The parties agree that the prosecutor had promised both

Mwaniki and Githinji that they would not be prosecuted for visa

fraud or conspiracy to commit visa fraud if they testified at

Thiongo’s trial. Thus, the testimony of both witnesses on this

subject was false. Although Thiongo claimed that the prosecutor

knowingly elicited the false testimony, I concluded at the May

19, 2005 hearing that the prosecutor had intended to question

both witnesses only about the fact that she had made them no

promises about whether they would be deported. Thus, she did not

realize that their answers to her broadly worded questions were

false. 

II. ANALYSIS

The First Circuit has held that a prosecutor’s knowing use

of perjured testimony requires a new trial “if there is any

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 Thiongo’s false testimony claim is arguably subject to a 1

different standard of review because the prosecutor did not

intend to elicit false testimony from either witness, see e.g.,

United States v. Gonzalez-Gonzalez, 258 F.3d 16, 22 (1st Cir.

2001)(noting that the Supreme Court has yet to identify the legal

standard that should govern a negligent or reckless use of false

testimony claim). I need not determine whether a more forgiving

standard is warranted when, as in this case, a prosecutor

negligently or recklessly elicits false testimony because Thiongo

cannot prevail even under the standard that governs claims that a

prosecutor has knowingly used false testimony.

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reasonable likelihood that the false testimony could have

affected the judgment of the jury.” Mastracchio v. Vose, 274 1

F.3d 590, 601 (1st Cir. 2001)(quoting Gilday v. Callahan, 59 F.3d

257, 267 (1st Cir. 1995)) (emphasis in original). I decline to

order a new trial under the Mastracchio test because the

untainted evidence of Thiongo’s guilt was so powerful that there

is no reasonable likelihood that Mwaniki’s and Githinji’s false

testimony could have affected the jury’s verdicts. Mwaniki and

Githinji were only two of fifteen Kenyan nationals who testified

about Thiongo’s central role in the conspiracy that led to her

convictions. More importantly, other witnesses who had no

apparent motive to testify falsely also explained how Thiongo had

fraudulently obtained letters from them suggesting that she would

be bringing Kenyan nationals to the United States to attend

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cultural or educational programs. These witnesses further

explained that Thiongo failed to participate in the programs 

after she obtained the letters. In short, evidence of Thiongo’s

guilt was so convincing that the jury’s verdicts could not

possibly have been affected by Mwaniki’s and Githinji’s false

testimony.

Thiongo’s motion to vacate her conviction (doc. no. 1) is 

therefore denied.

SO ORDERED.

________________________

Paul Barbadoro

United States District Judge

June 24, 2005

cc: Janis F. Lint, Esq.

John J.E. Markham, II, Esq

Terry Ollila, Esq.

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