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United States v. Ameyapoh

United States District Court, E.D. Virginia, Alexandria Division

February 25, 2018

UNITED STATES OF AMERICA,
v.
KOFFI B. AMEYAPOH, Defendant.

          MEMORANDUM OPINION

          T. S. Ellis, III United States District Judge.

         Defendant was tried and convicted on the following two counts: (i) count I - preventing or hampering defendant's departure and removal from the United States, in violation of 8 U.S.C. § 1253(a)(1)(C); and (ii) count II - forcibly resisting, opposing, impeding or interfering with an Immigration and Customs Enforcement (“ICE”) Officer, in violation of 18 U.S.C. § 111(a). At issue post-trial is defendant's motion for judgment of acquittal, which presents the question whether the evidence presented at trial and the jury instructions constructively amended count II of the indictment, in violation of defendant's Fifth Amendment right to a Grand Jury indictment.

         The matter has been fully briefed, and is now ripe for disposition.

         I.

         Defendant, Koffi Ameyapoh, a citizen of Togo, entered the United States through New York, New York as a non-immigrant F-1 student visitor on August 29, 1994. On November 12, 2000, defendant adjusted his status to a conditional permanent resident after marrying a United States citizen.

         Several years later, on July 14, 2006, defendant was convicted in the Circuit Court for Montgomery County, Maryland of one count of Sexual Abuse of a Minor, two counts of Rape in the Second Degree, and four counts of Sexual Offense in the Third Degree. Following his conviction, on February 17, 2010, defendant was ordered removed from the United States based on his conviction of crimes constituting aggravated felonies. However, prior to defendant's removal, on August 27, 2013, defendant's Maryland convictions were vacated and his removal proceedings were reopened and remanded to the immigration judge for further proceedings.

         State prosecutors elected to retry defendant and on July 16, 2014 a jury convicted defendant on the same charges. On August 1, 2016, the immigration judge again found defendant removable based on his convictions for several aggravated felonies. Defendant filed a request for deferral of removal under the Convention against Torture. The immigration judge denied defendant's request and defendant appealed to the Board of Immigration Appeals (“BIA”). On May 22, 2017, the BIA denied defendant's appeal and ordered his removal. On June 15, 2017, defendant filed an appeal of the BIA decision with the Fourth Circuit Court of Appeals.[1]

         On August 7, 2017, defendant was scheduled to be deported from Dulles International Airport (“Dulles Airport”) by boarding a commercial airliner to travel back to Togo. Defendant, who was in ICE custody, was taken by two ICE officers, Officer Lewis and Officer Ricketts, to Dulles Airport. Both officers testified at trial concerning defendant's behavior and demeanor on the trip to Dulles Airport, and defendant's acts of resistance against the ICE officers in the parking garage at Dulles. The officers testified that during the ride to Dulles, defendant commented that he would rather die than go back to Togo. When the ICE officers and defendant arrived at Dulles, defendant resisted leaving the car. After the ICE officers coaxed defendant from the vehicle, defendant began to walk away from the officers and toward the edge of the roof of the parking garage. Defendant did not comply with the ICE officers' orders to stand in front of the car, and the officers became concerned that defendant might attempt to throw himself over the edge of the parking deck. Accordingly, after defendant lunged toward the edge of the garage, Officer Ricketts restrained defendant and took him to the ground. Officer Lewis moved to assist Officer Ricketts in restraining defendant and together the two officers returned defendant to the car.

         After returning defendant to the car, the ICE officers were concerned that they would not be able to effectuate defendant's removal without assistance. Accordingly, the ICE officers called Customs and Border Protection (“CBP”) officers at Dulles Airport and requested assistance in moving defendant through the airport so that he could board the commercial airliner to travel back to Togo. After CBP officers agreed to assist with defendant's removal, Officers Lewis and Ricketts drove to the entrance of the airport where CBP officers physically removed defendant from the car and began escorting defendant to the departure terminal. After CBP officers removed defendant from the car, the CBP officers, not ICE officers, maintained custody of defendant throughout the airport.

         At trial, CBP officers Eric Caride and Juan Ulloa testified that they attempted to escort defendant to the departure area, but defendant physically and vocally resisted these efforts. Specifically, defendant dragged his feet and kept repeating that he would not leave. At this point, two additional CBP officers arrived to assist in transporting defendant, but as they began carrying defendant to the departure area, defendant began thrashing and attempted to break free from the CBP officers. Defendant's thrashing about and other efforts to resist took several CBP officers to the ground, causing significant injury to one of the officers. In the end, the CBP officers were able to subdue defendant and place him in a holding cell. The government also presented video evidence at trial that corroborated the CBP officers' testimony. After defendant's physical acts of resistance, CBP and ICE decided that defendant could not be placed on a commercial airliner and removed, and defendant was returned to the custody of ICE.

         Following the August 7, 2017 incident, defendant was charged in a two count indictment with (i) count I - preventing or hampering his departure from the United States in violation of 8 U.S.C. § 1253(a)(1)(C); and (ii) count II - forcibly resisting, opposing, impeding or interfering with an Immigration and Customs Enforcement Officer in violation of 18 U.S.C. § 111(a)

         Specifically, count II of the indictment charged that:

On or about August 7, 2017, at Dulles International Airport in the Eastern District of Virginia, and elsewhere, the defendant, KOFFI B. AMEYAPOH, did willfully and forcibly resist, oppose, impede and interfere with persons designated in section 1114 of Title 18, officers or employees of United States Immigration and Customs Enforcement, Department of Homeland Security, while such officers or employees were engaged in the performance of official ...

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