Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-15-2009

In Re: Neyembo Mikan
Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1516




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Recommended Citation
"In Re: Neyembo Mikan " (2009). 2009 Decisions. Paper 1539.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1539


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HLD-79 (March 2009)                                       NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                        No. 09-1516
                                        ___________

                             IN RE: NEYEMBO MIKANDA,
                                                Petitioner

                       ____________________________________

                      On a Petition for Writ of Mandamus from the
                United States District Court for the District of New Jersey
                         (Related to Crim. No. 08-cr-00130-001)
                      ____________________________________

                    Submitted Pursuant to Rule 21, Fed. R. App. P.
                                  March 31, 2009
           Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges

                               Opinion Filed: April 15, 2009
                                    ______________

                                         OPINION
                                      ______________

PER CURIAM.

              On July 16, 2008 a federal jury convicted Neyembo Mikanda of several

counts of wire fraud, mail fraud, aiding and assisting in the filing of false claims against

the United States and aiding or assisting in the filing of false statements. The district

court scheduled his sentencing for April 22, 2009. On February 26, 2009, Mikanda filed

a petition for writ of mandamus asking this Court to compel the district court to: 1)

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dispose of his pending petition for “writ of prohibition”; 2) perfect the record for appeal;

3) dispose of motions which implicate rights that would otherwise be lost if he has to

await final judgment; and 4) to vacate an order of detention the district court entered after

the jury’s verdict.

               Mandamus is a drastic remedy available only in the most extraordinary of

situations in response to an act amounting to a judicial usurpation of power. In re

Nwanze, 

, 524 (3d Cir. 2001). “In particular, the use of mandamus in

criminal cases is both extraordinary and exceptional.” United States v. Farnsworth, 

, 401 (3d Cir. 2006) (citation and quotation marks omitted). To justify such a

remedy, a petitioner must show that he has (I) no other adequate means of obtaining the

desired relief and (ii) a clear and indisputable right to issuance of the writ. 

.

               Here, Mikanda has demonstrated neither requirement for issuance of the

writ of mandamus. First, Mikanda argues that the district court improperly treated his

“writ of prohibition” as a renewed motion for return of his property instead of a separate

petition pursuant to 28 U.S.C. § 1651. The district court did not err in this regard

inasmuch as the “writ of prohibition” raises arguments related to petitioner’s seized

property, speedy-trial claims, and the sufficiency of the grand jury’s indictment. Such

arguments are not appropriate for a writ of prohibition. See Ex parte Republic of Peru,

, 583 (1943) (“The historic use of writs of prohibition and mandamus



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directed by an appellate to an inferior court has been to exert the revisory appellate power

of the inferior court.”). Nor would these arguments be proper for a writ of prohibition

filed in this Court. See United States v. Santtini, 

, 590 (3d Cir. 1992) (“It is

well established that a writ of prohibition may not be used as a substitute for review by

appeal.”) Similarly, to the extent that Mikanda raises arguments in his writ of mandamus

regarding the validity of the indictment, violation of his Fifth Amendment right to a grand

jury and a Sixth Amendment right to a public trial, these claims may be properly raised on

appeal following entry of judgment of sentence. Therefore, petitioner is not entitled to a

writ of mandamus. See In re Kensington Int’l Ltd., 

, 219 (3d Cir. 2003)

(Mandamus may not be used as a substitute for an appeal). Finally, to the extent that

Mikanda is attempting to challenge his pre-trial detention, such a challenge is properly

raised under 28 U.S.C. § 2241 and not through a petition for writ of mandamus.

              For the foregoing reasons, we will deny the petition for a writ of

mandamus.




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