United States v. Seyba Diallo ( 2014 )

Case: 13-30886 Document: 00512641959 Page: 1 Date Filed: 05/27/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-30886 FILED
Summary Calendar May 27, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SEYBA DIALLO,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:12-CR-189-1
Before JOLLY, DeMOSS, and ELROD, Circuit Judges.
PER CURIAM: *
Seyba Diallo appeals his jury convictions for two counts of knowingly
preventing and hampering his departure from the United States pursuant to
an outstanding final order of removal in violation of 8 U.S.C. § 1253(a)(1)(C).
He contends that that the evidence at trial was insufficient to sustain his
convictions. Because Diallo moved for a judgment of acquittal at the close of
the Government’s case and renewed the motion at the close of all of the
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 13-30886
evidence, he has properly preserved his sufficiency claim for appellate review.
See United States v. Mendoza, 226 F.3d 340, 343 (5th Cir. 2000).
Section 1253(a)(1)(C) provides, in relevant part, that “[a]ny alien against
whom a final order of removal is outstanding by reason of being a member of
any of the classes described in [8 U.S.C. § 1227(a)], who . . . connives or
conspires, or takes any other action, designed to prevent or hamper or with the
purpose of preventing or hampering the alien’s departure pursuant to such . . .
shall be fined . . . or imprisoned not more than four years.” § 1253(a)(1)(C).
Diallo does not dispute that he was subject to a final order of removal to the
Central African Republic, that he was a deportable alien as defined by
§ 1227(a), or that he refused to be removed to the Central African Republic.
Instead, he contends that the evidence was insufficient to support a finding
that he knowingly prevented or hampered his removal because, based on the
Bureau of Immigration and Customs Enforcement’s (ICE) actions, he
reasonably believed that he would be removed to Mali instead of the Central
African Republic.
Viewing the evidence in the light most favorable to the verdict, the
evidence was sufficient to support a finding that Diallo knowingly connived or
took other actions designed to prevent or hamper or with the purpose of
preventing or hampering his removal. Diallo does not dispute that he was
subject to a valid and final order of removal to the Central African Republic or
that the Central African Republic had issued two sets of travel documents
allowing for his removal to that country. Unlike the immigration officials’
representations in Heikkinen v. United States, 355 U.S. 273, 279-80 (1958), the
fact that ICE had memorialized Diallo’s claim that he was a citizen of Mali and
had requested travel documents from the Malian Embassy did not reasonably
suggest that ICE had abandoned its efforts to remove him to the Central
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No. 13-30886
African Republic or justify his failure to cooperate with the valid removal order.
As the deportation officer explained, a person can request travel documents
from any country he chooses and some countries issue travel documents to non-
natives if the person has other ties to that country. Diallo maintained that he
was a native and citizen of the Central African Republic throughout his
immigration proceedings, and it was not until June 23, 2011, six years after
the issuance of the Notice to Appear and nearly two years after the removal
order became final, that he claimed to be a native and citizen of Mali. Further,
more than one year after ICE’s request, the Malian government had not issued
any travel documents. The jury was free to reject Diallo’s proffered defense
and instead infer that his claim of Malian citizenship was nothing more than
another attempt to delay or prevent his removal to the Central African
Republic.
Diallo was repeatedly warned that his failure to cooperate with his
removal to the Central African Republic could result in criminal prosecution.
Despite these warnings, Diallo continued to prevent and hamper his removal
by becoming disruptive and physically resisting the immigration enforcement
agents when they attempted to escort him onto commercial flights bound for
the Central African Republic on November 14, 2011, and March 13, 2012. As
a result of Diallo’s actions, ICE was forced to abandon their efforts to remove
him from the United States. In light of the foregoing, the evidence at trial was
sufficient to sustain Diallo’s convictions, and the district court’s judgment is
AFFIRMED.
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