Recently obtained evidence demonstrates the following details about how the Mukendi Affidavit(s) was obtained.  (See Transcript of Testimony of Melchias Mukendi before the Department of Health State Board For Professional Medical Conduct) (Please note that only relevant portions of the transcript have been included because of its massive length; the whole transcript is available upon request)  The transcript indicates that although Mukendi could speak and understand English there were some issues.  (See P. 453, Lines 12-16 – “My client has an accent and I’m kind of tired of Mr. Guenzburgur stepping on his words”) 

            On Page 520 of his transcript Mukendi states that an investigator – whom he later refers to in the plural as “them”) – came to his medical office to ask him questions.  On Page 521 Mukendi testifies that “those investigators went to report whatever I said” to their insurance companies.  He later articulated that the investigators came from “State Farms.” 

            Pages 521 through 522 detail how State Farm’s attorneys called Mukendi to arrange for Mukendi to meet with them.  According to Mukendi he was “very, very scared.”  According to Mukendi, who was not represented (P. 526), he was confronted by a group of lawyers.  Before the interview began the “first thing they told me that, Doctor, you know you stole our money and we can put you in prison.” (P. 455) “[t]hey said, you know, you stole our money and we might bring you to court.”  (P. 522)

            Mukendi protested but was informed that “These type of interview we do to all the time.  They show me, they show me an affidavit of another medical doctor and affidavit.  I didn’t read it.  They just show me, and they show me also Bronstein’s Affidavit also, the chiropractic you were asking about.”  (P. 523-524)

            Throughout the testimony the attorney described doing the main questioning was one Jay Shapiro. (P.454) Shapiro had until recently led the Office of the Kings County District Attorney’s Rackets Bureau insurance fraud efforts leaving sometime in late 2002.  With 20 years of prosecution background according to Katten Muchin’s website he must be an experienced interrogator. In fact in a General Meeting sponsored by NYACT Shaprio gave a presentation that “addresses the tightrope that investigators may have to walk when they conduct investigations for insurance companies in his presentation entitled, When the Civil and Criminal Rules Intersect: Search and Seizure Implications on SIU Investigators.”  Shapiro also acted as counsel to the NICB and purportedly participated in the ill fated BORIS. 

            According to Mukendi Shapiro was “rough” with him and then sometimes Shapiro was not so rough.  (P.527-529) And sometimes Shapiro was “very not professional.” (P. 452) Mukendi met with these Shapiro attorneys some 3 or 4 times over a period of a few months.  (P. 454, 525-526)

            According to Mukendi he was never informed that he should retain an attorney.  (P.555)              

            At some point he was given a version of an Affidavit to review that was based upon the contents of his interviews.  He was given the opportunity to make a number of corrections. Sometime thereafter he was given a new Affidavit to sign that was to incorporate the corrections.  (P. 456-458) (This point of when a final corrected version was signed is in contention – indeed the whole Affidavit is in contention; see infra) In fact according to Mukendi there were many inaccuracies in the original Affidavit that Mukendi was given to sign: “There was a lot of corrections which really outstanding correction, outstanding inaccuracy.”  (P. 530) 

            Mukendi stated that he relented to fear and pressure and signed the new Affidavit with the many of the inaccuracies intact. (P. 531-533)   Mukendi goes through a list of inaccuracies. (i.e. 533-544 – he even told Shapiro about these inaccuracies P. 544; 544-547)  According to Mukendi he signed the Affidavit anyway due to fear and pressure.  [i.e. P. 527, 556-557]

I had been interviewed for maybe six months before by the investigator of the – the investigator from, State Farm before I get to Shapiro group, and I was really conditioned.  I could not think right.  And when I get this done, I say my God!  I have to get rid of this and sign this thing, whatever they want me to do so I can be off of the hook. (P. 816-817)

            On cross examination the attorney tried to force Mukendi to state that he was never directly told “sign this Affidavit or you will be sued.”  Mukendi repeatedly attempted to explain that these were not the exact words but similar words were used evidencing said intent.  (P. 550-551) 

            What is clear is that there is more than one Affidavit floating around.  In the Mukendi Transcript the Affidavit before the Department of Health State Board for Professional Medical Conduct the Notary’s name is one Frances Poppy.  (P. 554, L 19-22).  According to the Transcript and the Decision said Affidavit was signed in September of 2005. Although Mukendi does not agree with the September signing (P.554)  

            The Affidavit that we have is purportedly signed on July 13, 2005.  Moreover said Affidavit has a Ms. Diane Piraino da Cunha as the Notary Public. 

            What is troublesome about the Affidavit submitted by McDonnell & Adels is that the last page only contains the line: “I declare under penalty of perjury that the foregoing true …” Mukendi’s signature follows with the Notary.  This is unprofessional.  The professional manner to prepare an Affidavit is to have at least part of the substantive portion of the Affidavit on the signature page which is sworn.  As the Affidavit is configured now Mukendi swearing “that the foregoing is true” could be affixed to anything.

            Given the above discrepancies and circumstances – including Mukendi’s swearing that the Affidavit was false – there are some questions regarding the obtaining of the Affidavit and the veracity of the Affidavit that must be addressed. What is clear is that Mukendi may have been guilty of fraudulent acts.  The undersigned does not know.  In any event as a result of what occurred above and the resultant Affidavit Mukendi lost his license to practice medicine.  

            Mukendi was certainly entitled to due process.

            A recent decision that is annexed demonstrates that Courts are not digging the Mukendi Affidavit.