United States v. Peter Ashu , 447 F. App'x 71 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-12496
NOVEMBER 16, 2011
Non-Argument Calendar
JOHN LEY
________________________ CLERK
D.C. Docket No. 1:10-cr-00174-WSD-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
PETER ASHU,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(November 16, 2011)
Before BARKETT, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
Peter Ashu appeals his misdemeanor conviction for forcibly resisting
federal Immigration and Customs Enforcement agents engaged in their official
duties in violation of 18 U.S.C. § 111(a). At his trial before a magistrate judge,
Ashu, a citizen of Cameroon, offered necessity as an affirmative defense. The
magistrate, assuming the availability of the defense, concluded Ashu could not
prove the elements of necessity and found him guilty. Ashu appealed to the
district court, which upheld the conviction. In this appeal, Ashu argues the district
court erred in finding he did not establish the elements of the necessity defense.
After review, we affirm.1
To prevail on a necessity defense, a defendant must establish by a
preponderance of the evidence (1) he was under a present, imminent, and
impending threat of death or serious bodily injury, (2) he did not recklessly or
negligently place himself in a situation where he would be forced to engage in
criminal conduct, (3) he had no reasonable, legal alternative to violating the law,
and (4) his criminal conduct bore a direct causal relationship to avoiding the
threatened harm. United States v. Deleveaux, 205 F.3d 1292, 1297 (11th Cir.
1
We review de novo a district court's determination whether a defendant has proffered
sufficient evidence to permit the defense of necessity. See United States v. Dicks, 338 F.3d 1256,
1257 (11th Cir. 2003).
2
2000). Proving imminent danger “requires nothing less than an immediate
emergency.” United States v. Rice, 214 F.3d 1295, 1297 (11th Cir. 2000).
Assuming, without deciding, necessity was a defense available for this
offense, Ashu did not present sufficient evidence to prevail. He did not offer
adequate evidence showing he would be in imminent danger on the day of removal
or immediately upon his arrival in Cameroon. See Deleveaux, 205 F.3d at 1297.
In fact, Ashu testified he would feel safe in certain parts of Cameroon. Ashu
further claimed his eye injury would worsen considerably because of lack of
health care in Cameroon, but he failed to establish his injury presented an
immediate emergency. See Rice, 214 F.3d at 1297. In addition, Ashu had legal
alternatives available to him—he could have petitioned this Court for review of
any of the adverse decisions in his immigration proceedings rather than forcibly
resist his removal. See Deleveaux, 205 F.3d at 1297.
AFFIRMED.
3