United States v. Faustino Ngay

Case: 17-30206 Document: 00514295752 Page: 1 Date Filed: 01/05/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-30206 FILED
Summary Calendar January 5, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FAUSTINO NGAY,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:16-CR-27-1
Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM: *
Faustino Ngay, a citizen of Angola, appeals his jury conviction for two
counts of conniving, conspiring, or taking any other action designed to prevent
or hamper, or with the purpose of preventing or 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). Although Ngay has been removed to
Angola, his appeal nonetheless presents a live case or controversy in light of
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-30206
the potential adverse consequences of the instant conviction should Ngay apply
for reentry into the United States. See Spencer v. Kemna, 523 U.S. 1, 7 (1998);
Sibron v. New York, 392 U.S. 40, 55 (1968).
Ngay preserved his challenge to the sufficiency of the evidence, and we
therefore review de novo. United States v. Ferguson, 211 F.3d 878, 882 (5th
Cir. 2002). “We review the jury’s verdict with great deference, and view all of
the evidence in the light most favorable to the verdict to determine whether
any rational trier of fact could find guilt beyond a reasonable doubt.” United
States v. Churchwell, 807 F.3d 107, 114 (5th Cir. 2015). “[T]he jury is free to
choose among reasonable constructions of the evidence.” United States v.
Lankford, 196 F.3d 563, 575 (5th Cir. 1999) (internal quotation marks and
citation omitted).
To show a violation of § 1253(a)(1)(C), the Government had to prove
beyond a reasonable doubt that there was a final order of removal pending
against Ngay; that Ngay was a “deportable alien” as defined by 8 U.S.C. § 1227;
and that he connived, conspired, or took any other action designed to prevent
or hamper, or with the purpose of preventing or hampering, his departure.
§ 1253(a)(1). Ngay does not dispute that he is a removable alien subject to a
final order of removal to Angola. Although the Government arguably also must
prove a culpable mens rea, Ngay does not dispute that his actions were
knowing. See § 1253(a)(1).
According to Ngay, his behavior did not hamper his removal but, rather,
the commercial airline personnel refused to permit him to board the airplane
for the flight to Angola and so were responsible for his non-removal. The trial
evidence showed Ngay unequivocally declared to the deportation officer both
times that they tried to escort him onto a flight to Angola that he would not go.
On both occasions as well, Ngay physically resisted the deportation officers’
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efforts to get him through the Transportation Safety Administration (TSA)
security area by stiffening his legs to avoid moving forward, jerking his arms
and thrashing about to escape the officers’ hold, hitting his head on a wall
locker in the screening area, and trying to drop his pants. Moreover, Ngay
screamed continually on both occasions that he would not return to Angola,
and the deportation officer testified that, if an alien has boarded a plane and
is screaming, the airline will demand he exit the plane. Although deportation
officers brought Ngay for inspection to a less public screening area, he was so
disruptive each time that TSA officers could not screen him and airline
representatives refused to allow him to board. In addition, the evidence
showed that Immigration and Customs Enforcement notified Ngay after each
failed removal attempt that his conduct constituted a violation of § 1253(a)(1).
In light of these facts, the jury’s conclusion that Ngay twice acted “with
the purpose of preventing or hampering” his removal to Angola, was a
reasonable interpretation of the evidence. § 1253(a)(1)(C); see Lankford, 196
F.3d at 575. We will not disturb those findings on appeal. Id.
AFFIRMED.
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