Preventing and hampering departure from the U.S.

Federal District Court Opinions

U.S. v. KPOMASSIE, (W.D.Tenn. 2004) 323 F. Supp.2d 894
UNITED STATES OF AMERICA, Plaintiff, v. KOAMI KPOMASSIE,
Defendant. Criminal No. 03-20219. United States District
Court, W.D. Tennessee, Western Division. June 29, 2004
West Page 895

PDA, J. Patten Brown, III, Randolph W. Alden, Federal
PUblic Defender, Memphis, TN, for Defendant.

Linda N. Harris, Memphis, TN, for Plaintiff.

ORDER DENYING GOVERNMENT’S MOTION TO PROHIBIT USE OF
NECESSITY DEFENSE AND ORDER ON GOVERNMENT’S MOTION FOR
CLARIFICATION

BERNICE DONALD, District Judge

Before the Court are 1) the Government’s motion to
prohibit Koami Kpomassie’s (“Defendant”) use of a necessity
defense at trial and 2) the Government’s motion for
clarification of the Court’s Order of February 4, 2004.
Defendant is charged with one count of violating 8 U.S.C.
§ 1227(a), by allegedly preventing and hampering his
departure from the United States on June 6, 2003, pursuant
to a final order of removal. The Court holds that a
necessity defense is available to Defendant in this
criminal proceeding and that Defendant has made a prima
facie showing of evidence to support such a defense.
Therefore, the Court denies the Government’s motion to
prohibit use of the necessity defense. The Court also
clarifies its prior order below, pursuant to the
Government’s request.

I. Factual Background[fn1]

Defendant is a citizen of the Togolese Republic (“Togo”),
Africa. Togo is a former French colony that has been
controlled since 1967 by a dictator named General
Gnassingbe Eyadema. Togo Page 2 is allegedly the site of
serious human rights abuses, and it has been plagued by
political unrest for many years.

Defendant entered the United States on July 5, 1995, with
a visa issued by the United States Embassy in Lome, Togo.
The visa authorized him to remain in the United States
until January 4, 1996. Defendant came to the United States
allegedly to escape death or persecution at the hands of
government forces in Togo due to his involvement in a
political organization seeking to establish democratic
elections and respect for human rights in Togo.

On October 20, 1997, Defendant filed an application for
Asylum and Withholding of Deportation with the Immigration
and Naturalization Service (“INS” or “DHS”). On April 9,
1998, he had a removal proceeding before an Immigration
Judge (“IJ”). Defendant claimed that he was a “refugee”
within the meaning of the Immigration and Naturalization
Act based on past persecution and a well-grounded fear of
persecution upon his return to Togo on account of his
political affiliation. After receiving evidence and hearing
testimony from Defendant, the IJ ordered Defendant removed
from the United States. The IJ, in an oral decision, found
Defendant’s version of the facts to be not credible.

Defendant appealed the IJ’s decision to the Board of
Immigration Appeals (“BIA”). On June 11, 2002, the BIA
entered an order affirming the IJ’s holding and agreeing
with the IJ’s decision that Defendant was not credible and
that he was unable to establish that he suffered past
persecution and had a well-grounded fear of future
persecution in Togo. On February 23, 2003, Defendant filed
a motion to reopen and stay his deportation, which the BIA
denied.

On February 23, 2003, DHS officials escorted Defendant to
an airplane in Memphis, Tennessee for deportation to Togo.
Defendant allegedly began to yell and scream for someone
to Page 3 call the FBI because “they were going to kill
him.” Defendant was removed from the airplane and was given
a copy of Form I-229 — Warning for Failure to
Depart. This incident is not the basis of the charge
against Defendant in this action, but it is the West Page
897 subject of the Court’s February 4, 2004, Order.

On June 6, 2003, Defendant was placed on another airplane
that was to transport him from Memphis to Lome, Togo, with
stops on the way in Atlanta, Georgia and Paris, France.
Defendant is accused of initiating a physical confrontation
with DHS law enforcement officers, before take-off of this
flight from Memphis, in order to prevent and hamper his
departure from the United States. Defendant was subdued and
removed from the airplane before its departure.

II. Motion to Prohibit Use of Necessity Defense

Defendant claims that he will be subject to persecution on
his return to Togo. He informed the Government that he
intends to present a necessity defense to the charged crime
based on his fear of persecution.

On February 18, 2004, the Government filed a motion to
prohibit Defendant’s use of a necessity defense at trial.
The Government argues that 8 U.S.C. § 1252 precludes
use of a necessity defense in this proceeding because the
statute does not allow the Court to disturb the findings of
the Attorney General without finding that they were
manifestly contrary to law and an abuse of discretion, and
the Court cannot make such a finding on this record. The
Government also argues that, even if the Court permits a
necessity defense, Defendant has not made a prima facie
showing of the elements of the defense sufficient to allow
its presentation to the jury.

Defendant responded on June 18, 2004. Defendant argues that
he is not challenging the validity of the deportation order
and therefore that the standards set forth in § 1252
do not apply. Page 4 Defendant also argues that the
findings of the IJ do not have preclusive effect on this
Court in the criminal proceeding, and therefore that the
Court is not barred from making findings contrary to that
of the IJ. Defendant finally claims that he has presented
sufficient facts to make a prima facie showing of
necessity.

The Court heard arguments of the parties in open court on
June 25, 2004.

A. Availability of Necessity Defense

In his application for asylum, Defendant claimed that he
was a refugee. Resolution of an application for asylum
requires a two-step inquiry: first, whether the petitioner
is a “refugee” within the meaning of the statute, and
second, whether the petitioner merits a favorable exercise
of discretion by the Attorney General. Perkovic v.
Immigration and Naturalization Serv., 33 F.3d 615, 620 (6th
Cir. 1994). The statute defines a “refugee” as

any person who is outside any country of such person’s
nationality or, in the case of a person having no
nationality, is outside any country in which such person
last habitually resided, and who is unable or unwilling to
return to, and is unable or unwilling to avail himself or
herself of the protection of, that country because of
persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a
particular social group, or political opinion . . .

8 U.S.C. § 1101(42)(A) (2004). An applicant has a
well-founded fear of persecution if he can show that
persecution is a reasonable possibility upon return to his
country of origin. Perkovic, 33 F.3d at 620. A well-founded
fear of persecution has both an objective and a subjective
component: “an alien must actually fear that he will be
persecuted upon return to his country, and he must present
evidence establishing an `objective situation’ under which
his fear can be deemed reasonable.” Id. at 620-21. Page 5

In the deportation hearing, the IJ specifically found that
Defendant’s story, West Page 898 in which he claimed that
he suffered past persecution in Togo and had a well-founded
fear of persecution upon return there, was not credible.
The IJ therefore denied his claim for refugee status. (Mot.
in Limine & Mot. to Prohibit Def.’s Use of a Necessity
Defense at Trial in Light of 8 U.S.C. § 1252 (“Mot.
in Limine”), Ex. C at 11-12.) The BIA affirmed, stating,
“[w]e agree with the decision of Immigration Judge finding
that the respondent was not credible and unable to
establish that he suffered past persecution and has a
well-founded fear of future persecution in Togo based upon
his political opinion or other protect[ed] ground.” (Id. at
Ex. F.)

The Government claims that a successful use of the
necessity defense in this criminal prosecution requires
Defendant to show that he had a right to resist the DHS
officers, which in turn requires Defendant to establish
that the deportation order was invalid, thus allowing the
Court or the jury to contradict the findings of the IJ and
the BIA. The Government argues that a deportation order may
not be overturned on judicial review without the Court
finding that the Attorney General’s findings and judgment,
made through the IJ and the BIA, were manifestly contrary
to the law and an abuse of discretion.

The Court acknowledges that judicial review of deportation
orders requires that high standard of review. The statute
states that “the Attorney General’s discretionary judgment
whether to grant relief under section 1158(a) of this title
shall be conclusive unless manifestly contrary to the law
and an abuse of discretion.” 12 U.S.C. §
1252(b)(4)(D) (2004).

This separate criminal proceeding, however, is simply not
a challenge to the validity of the deportation order, and
so the Government’s argument fails. The result of this
criminal case, and any findings on a necessity defense,
will not affect the prior deportation order. That order
remains part Page 6 of a separate administrative
proceeding, and any challenges that Defendant wishes to
make to his deportation will have to be taken up in that
other context, as Defendant is now doing. Therefore, even
assuming that the Government is correct that a successful
necessity defense involves making findings contradictory to
those of the IJ and the BIA, any such contradictory
findings will have no effect in the immigration
proceedings, because the deportation order is not up for
review before this Court. The Court therefore declines to
prohibit Defendant from attempting to make out a necessity
defense based on the Government’s argument as to 12 U.S.C.
§ 1252.

The court in United States v. Dagnachew, 808 F. Supp. 1517
(Colo. 1992), was confronted with an analogous situation.
In Dagnachew, the defendant was ordered expelled from the
United States and was placed in a holding facility for
deportable individuals and others under INS control. Id. at
1519. Defendant escaped from the facility, was arrested,
and was brought up on criminal charges for violating 18
U.S.C. § 751(a), which makes it a criminal offense
to escape while being held for exclusion or expulsion under
the immigration laws. Id. at 1519-20. Defendant raised the
defense of duress and necessity, arguing that “he faced a
choice of evils.” Defendant claimed that he could either
stay in the facility, be deported, and face persecution and
possible execution upon his return to Ethiopia, or he could
escape, face a possible criminal charge, and possibly
remain at liberty for some period of time. Id. at 1520.

The district court addressed the issue of whether duress
and necessity may be raised as a defense to the charge of
escape from the Attorney General’s custody, when such
custody is for exclusion or expulsion under appropriate
immigration laws. Id. at 1521. The court differentiated
the West Page 899 situation from general escape, when the
alleged duress is the conditions of confinement; in this
context, “the ultimate act of deportation raises the
alleged duress.” Id. Following the direction of Page 7 the
United States Supreme Court that “`the precise contours of
the defenses of duress and necessity’ must be reviewed as
they arise,” id. (citing United States v. Bailey, 444 U.S.
394 (1980)), the court held that the duress and necessity
defense was available to the defendant.

This Court holds that the defense of duress and necessity
may be raised by a defendant to an escape charge where the
harm is deportation. Further, there must be a showing of
persecution or personal harm that awaits the defendant if
he or she is deported. There must also be a showing that
no reasonable legal alternative exists to the escape.

Id.

The court made it clear that any findings in the criminal
prosecution would not affect the defendant’s deportation
order:

The present or future status of Defendant in regards to
INS is not before this Court, only whether he should be
found guilty of the charge of escape and whether he has
raised a valid and sufficient defense of duress or
necessity. Indeed, nothing this Court does will affect his
deportability. That decision remains with INS.

Id. at 1522. With that differentiation, the court held that
the defendant had raised a well-founded fear of
persecution, as that term is used in asylum cases. The
court’s holding was contrary to the findings of the IJ, who
denied the defendant’s application for asylum. Id. at 1519,
1522. The court also explicitly found the defense witnesses
to be believable, even though the administrative law judge
in the deportation hearing chose not to believe Defendant’s
own testimony. Id. at 1522. The court went on to hold that
the defendant had made a sufficient showing of the elements
of a necessity defense. Id. at 1523.

This Court views the situation in Dagnachew to be
instructive as to the situation here. Defendant is charged
in a criminal proceeding separate from his deportation
proceedings. Any Page 8 findings or holdings made here
will not affect his deportability, which is currently
final, although Defendant is attempting to challenge it.
The Court may thus make findings contrary to those of the
IJ and the BIA without meeting the high standard of §
1252 for judicial review of orders of deportation. Thus,
assuming that successful use of a necessity defense
involves the Court or the jury making findings contrary to
those of the IJ and the BIA, the immigration statutes do
not bar such action. Accordingly, the Court refuses to
prohibit Defendant from attempting to make out a necessity
defense in this criminal case.[fn2] West Page 900

B. Prima Facie Showing of Necessity Defense

Necessity is an affirmative defense, and the defendant
must first make a prima facie showing to the Court that
facts exist to support the defense. Whether there is
sufficient evidence to submit the defense to the jury is a
question of law. See United States v. Jankowski, 194 F.3d
878, 882 (8th Page 9 Cir. 1999); United States v.
Posada-Rojas, 158 F.3d 832, 873 (5th Cir. 1998); United
States v. Sarno, 24 F.3d 618, 621 (4th Cir. 1994) (“Whether
an affirmative defense is established is a factual issue
that is usually a function of the jury, and the trial court
rarely rules on a defense as a matter of law. However,
where there is insufficient evidence, as a matter of law,
to support an element of the affirmative defense, the
defendant can be precluded from presenting any evidence of
duress to the jury or, if some evidence is already
presented at trial, the court can refuse to instruct the
jury on the duress defense.”); see also Mathews v. United
States, 486 U.S. 58, 63 (1988) (“As a general proposition a
defendant is entitled to an instruction as to any
recognized defense for which there exists evidence
sufficient for a reasonable jury to find in his favor.”).

To establish a necessity defense in the Sixth Circuit, a
defendant must show that 1) he was under an unlawful and
present, imminent, and impending threat, which induced a
well-grounded apprehension of death or serious bodily
injury; 2) he did not recklessly or negligently place
himself in a situation in which it was probable that he
would be forced to choose criminal conduct; 3) he had no
reasonable legal alternative to violating the law or
opportunities to refuse to do the criminal act and avoid
the threatened harm; and 4) a direct causal relationship is
reasonably anticipated between the crime and the avoidance
of the threatened harm. United States v. Milligan, 17 F.3d
177, 181 (6th Cir. 1994).

On the first prong, the Court finds the evidence sufficient
to make a prima facie showing that Defendant was under an
unlawful and imminent threat. A mere generalized fear of
persecution is insufficient to meet the imminence or
immediacy standard. See United States v. Campbell, 675 F.2d
815, 821 (6th Cir. 1982) (holding defendants unable to meet
immediacy requirement based on threats of future harm from
gang members); United States v. Sixty Acres, 930 F.2d 857,
860-61 (11th Cir. Page 10 1991) (generalized fear of harm
is insufficient to meet immediacy requirement). The
Government argues that Defendant cannot show that he was
under any immediate or non-generalized threat, because his
flight to Togo had stops in Atlanta and Paris, and because
no Togolese government officials were present during
Defendant’s alleged commission of the crime. These arguments
are unavailing. Defendant offers evidence, in an affidavit
from Professor Benjamin N. Lawrance, tending to show the
dangers of the political climate in Togo and the potential
harm to Defendant on his return. Furthermore, Defendant
alleges that he suffered West Page 901 persecution in the
past at the hands of government officials in Togo. The fact
that Defendant had stops on his flight between Memphis and
Togo or that Togolese officials were not physically on the
airplane simply does not make those threats, or Defendant’s
fear of those threats, on the completion of his flight any
less present. Truly, were Defendant to have begun his
flight, in the custody of DHS officers, a ball would have
been set in motion that would have ended inexorably in his
return to Togo. That any persecution of or danger to
Defendant was not physically present at the precise moment
when he allegedly caused the disturbance leading to his
removal from the airplane does not preclude a prima facie
showing on this prong. Cf. Dagnachew, 808 F. Supp. at 1521
(holding that successful presentation of the necessity
defense required the defendant to show persecution or
personal harm awaiting the defendant upon deportation,
thereby effectively replacing the imminence prong of the
defense). Whether the evidence is sufficient to prove
imminence is a question for the jury, as the Court cannot
say as a matter of law that the unlawful threat to
Defendant was not immediate.

As to the second prong, the “analysis turns on whether the
defendant had `no alternative — either before or
during the event — to avoid violating the law.’ The
defense of necessity is not applicable when one has a
choice of several courses of action, unless defendants show
they pursued Page 11 their alternatives or such
alternatives were foreclosed.” Milligan, 17 F.3d at 181
(citations omitted) (quoting United States v. Singleton,
902 F.2d 471, 473 (6th Cir. 1990)). The Government argues
that Defendant cannot meet this standard because he could
earlier have designated a country to go to other than Togo,
but failed to do so, and because he could have appealed the
BIA’s decision, but failed to do so. Defendant argues that
he had no alternative because he had been forced onto the
airplane by DHS officials. Although perhaps Defendant could
have avoided this whole situation by taking other action in
the past, the Court deems the two alternatives proposed by
the Government to be sufficiently far in the past that they
were not available alternatives to Defendant at the time
surrounding his alleged crime. In addition, Defendant
alleges that he never received notice that his appeal to
the BIA was denied in June 2002. (Mot. in Limine, Ex. G at
1.) This indicates that he did not know of the need for
further appeals at the time when they were available. He
did, however, file a motion to reopen and stay his
deportation in February 2003 (and has motions currently
pending with the immigration courts), thus indicating that
he pursued legal alternatives, even though he was
unsuccessful in the attempt. (Id., Ex. G, H, J.) In other
words, by the time of his deportation, these proposed
alternatives were “foreclosed.” Defendant was in a
situation in which he had been forced onto the airplane to
Togo by DHS officials. There has been at least a prima
facie showing that Defendant’s creation of the alleged
disturbance — his commission of the crime —
was his only reasonable legal alternative. Cf. Dagnachew,
808 F. Supp. at 1523 (“The prosecution raised at trial the
issue of other avenues of approach short of escape. Yet,
Defendant was in custody. His appeal to BIA had been
summarily dismissed. No notice was provided as to any right
of appeal to the United States Court of Appeals. Defendant
perceived that he had no legitimate legal remedy at the
time.”). Page 12

On the third prong, the Government makes the same arguments
as it did about Defendant’s possible alternative conduct,
and the Court again finds them unavailing. Defendant had
not recklessly or West Page 902 negligently put himself
in a situation on the airplane where commission of the
crime was probable. Rather, he was put on the airplane by
DHS officials following an order of deportation. The Court
cannot trace a course of conduct back from this event
through the entirety of Defendant’s experience with his
immigration proceedings.

Finally, on the fourth prong, the Court finds a prima
facie showing that a direct causal relationship was
reasonably anticipated between the crime and the avoidance
of the threatened harm. Causing a disturbance on an
airplane, particularly in this time of heightened security,
can be reasonably anticipated to result in the disturbing
person’s removal from the airplane, which, in Defendant’s
case, would result in his avoidance of a return to Togo.

Based on the foregoing, the Court finds that Defendant has
made a prima facie showing of necessity, such that the
Court will allow Defendant to present the defense to the
jury. The Court cannot say as a matter of law that the
evidence is insufficient. Whether the jury will find that
the evidence meets Defendant’s burden of proof on the
defense is a separate question that is not within the
province of this Court to decide.

The Court therefore denies the Government’s motion to
prohibit Defendant’s use of a necessity defense at trial.

III. Motion for Clarification

On February 4, 2004, this Court entered an Order granting
Defendant’s first motion in limine, which requested that
the Court prohibit the Government from presenting “any
evidence with respect to alleged prior instances of conduct
which resulted in his removal from a Northwest Airlines
flight.” Page 13 (Order, Docket # 36, at 1.) The Court
found that such evidence was relevant, as it would tend to
make the fact of Defendant’s efforts to avoid removal more
probable than not, by showing a pattern of conduct. The
Court also found, however, that the prejudicial effect of
admitting evidence concerning this prior act outweighed its
probative effect. (Id. at 1-2.)

On March 4, 2004, the Government filed a motion for
clarification of the Order. The Government attached as an
exhibit a copy of the Form I-229 — Warning for
Failure to Depart that Defendant received on February 24,
2003, following his aborted departure from the United
States on February 23, 2003. The Government requests
clarification as to whether the Order also bars admission
of this exhibit. The Government argues that the document is
not “evidence of other crimes, wrongs, or acts” within the
meaning of Federal Rule of Evidence 404(b), but that it is
instead background evidence that is necessary to complete
the story of the charged offense. The Government also
argues that, even if the document is subject to Rule
404(b), it is not more prejudicial than probative.
Defendant did not respond to this motion.

The Sixth Circuit recognizes that “background evidence,”
or “res gestae,” does not implicate Rule 404(b).[fn3]
United States v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000)
(holding that testimony as to alleged drug activity by
defendant before date of charged conspiracy was not proper
background evidence nor admissible under Rule 404(b)).
West Page 903

Proper background evidence has a causal, temporal or
spatial connection with the charged offense. Typically,
such evidence is a prelude to the charged offense, is
Page 14 directly probative of the charged offense, arises
from the same events as the charged offense, forms an
integral part of a witness’s testimony, or completes the
story of the charged offense.

Id. The Court disagrees with the Government’s argument that
the document is background evidence to the charged offense.
The document has no connection to the charged offense in
any of the above-listed ways, because it concerns an
entirely separate act, the February 2003 failure to depart.
While the warning may assist the Government in proving its
case, the Government is quite able to “complete the story”
of Defendant’s ordered deportation and his failure to
depart as scheduled in June 2003 without using this
document. The crime charged here concerns the June 2003
incident, not the incident in February 2003. As such, the
proffered document is subject to the requirements of Rule
404(b).

As to the Government’s argument that no prejudicial effect
of the warning outweighs its probative value, and therefore
it is not barred by Rule 403,[fn4] the Court refers to its
prior Order. The Court already found that evidence of the
prior act of failure to depart was overly prejudicial. The
warning stands as direct evidence of the prior act, as it
was a consequence of Defendant’s failure to depart as
ordered in February 2003. Had Defendant not failed to
depart, he would not have received the warning. The Court
therefore confirms its prior finding of a prejudicial
effect and prohibits the admission of the Form I-229
— Warning for Failure to Depart. Page 15

IV. Conclusion

The Court holds that a necessity defense is available to
Defendant in this criminal proceeding, even without a
finding that the Attorney General’s findings are manifestly
contrary to the law and an abuse of discretion, because the
results of this case will not affect the validity of
Defendant’s deportation order. The Court also holds that
Defendant has made an adequate prima facie showing of the
elements of a necessity defense, such that the evidence may
be presented to the jury. The Court therefore DENIES the
Government’s motion to prohibit Defendant’s use of a
necessity defense at trial. On the Government’s motion for
clarification, the Court holds that the proffered exhibit
— a copy of Form I-229 — Warning for Failure
to Depart — is INADMISSIBLE as more prejudicial than
probative.

IT IS SO ORDERED

[fn1] The Court takes facts from the materials submitted on
the motion to prohibit the necessity defense.

[fn2] The Court notes several cases refusing to hold that
findings in immigration proceedings have a preclusive effect
in criminal cases. See United States v. Meza-Soria, 935
F.2d 166 (9th Cir. 1991) (refusing to collaterally estop
defendant from offering evidence in criminal proceeding on
alienage element of crime of unlawful reentry after
deportation, even though prior deportation proceedings
established defendant’s alienage); see also United States
v. Ortiz-Lopez, 24 F.3d 53 (9th Cir. 1994) (same). The
Ninth Circuit pointed to the differing standards of proof
in the two proceedings: the criminal case required the
Government to prove each element of the crime beyond a
reasonable doubt, while the civil immigration proceedings
required only clear, convincing, and unequivocal evidence.
Meza-Soria, 935 F.2d at 169. The Circuit Court stated, “the
difference in standards of proof must preclude the use of
civil proceeding findings to establish facts in a criminal
proceeding.” Id. The Court also distinguished criminal
cases in which the defendant attempted to attack the
validity of the deportation order directly. Id. at 170. Of
course, the standard that Defendant must meet to prove his
proposed defense here is not beyond a reasonable doubt, but
a preponderance of the evidence. See United States v.
Dicks, 338 F.3d 1256, 1257 (11th Cir. 2003) (“The defense
of necessity or justification is an affirmative defense to
some criminal statutes, and, if available, the defendant
bears the burden of proving it by a preponderance of the
evidence.”). The reasoning of the Ninth Circuit is
therefore not precisely on point. The Court, however, deems
helpful to its holding the Ninth Circuit’s differentiation
of criminal and civil immigration hearings and of criminal
cases in which a defendant does or does not attempt to
attack directly a deportation order.

[fn3] Rule 404(b) states, “Evidence of other crimes, wrongs,
or acts is not admissible to prove the character of a
person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident . .
.” Fed.R.Evid. 404(b).

[fn4] Rule 403 states, “Although relevant, evidence may be
excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of
cumulative evidence.” Fed.R.Evid. 403.