United States District Court, E.D. Virginia, Alexandria Division
Liam O'Grady Judge
matter comes before the Court on Defendant's Motion in
Limine to Present the Affirmative Defense of Justification at
Trial and Motion to Dismiss the Superseding Indictment Due to
the Government's Failure to Preserve Evidence. The
motions were fully briefed, and the Court held an evidentiary
hearing on April 15, 2019. The Court denied the motions from
the bench and in a subsequent Order issued the same day. This
memorandum opinion follows to more fully explain the
Charlotte Gham is a Cameroonian anglophone who lived in a
region of Cameroon where violence against anglophones,
including by the francophone government, is common.
Defendant's sister lives in the United States and
frequently criticizes the Cameroonian government on social
media and radio shows. In May 2018, heavily armed Cameroonian
officials approached Defendant, summoned her to the police
station, and ordered her to make her sister refrain from
further anti-government commentary. Defendant pled with her
sister to stop out of fear that she would otherwise face
violence from the government, but her sister did not listen
to Defendant's pleas. The same Cameroonian officials
again interrogated Defendant three weeks later.
about June 13, 2018, Defendant was warned by her neighbor
that Cameroonian officials had come to her house searching
for her. Fearing for her safety, Defendant fled to a nearby
city the next day. A few days later, her new residence was
ransacked. Defendant also began receiving anonymous phone
calls, which she believed indicated that she was being
tracked by the Cameroonian police. Defendant then fled to
Ghana to meet her sister, hoping to find safety from the
Cameroonian police in another country.
in Ghana, Defendant continued to receive anonymous phone
calls and continued to fear for her safety. She therefore
decided to flee to the United States. She called her aunt in
the United Kingdom to buy her a plane ticket and stole her
sister's United States passport and driver's license
before going to the airport. Defendant no longer had her own
Cameroonian identification documents and chose not to apply
for a United States visa because she had previously been
denied a visa after a long waiting process.
Defendant arrived at the Washington Dulles International
Airport, Defendant gave her sister's travel documents and
a customs declaration listing her sister's information as
her own to the customs officer in the line for United States
citizens. The customs officer suspected that Defendant was
not the person on her sister's passport and sent
Defendant to a secondary inspection station. At the secondary
inspection station, Defendant again gave an immigration
officer her sister's passport as if it were her own and
was unable to answer many of the follow-up questions she was
asked. The immigration officer accused Defendant of
pretending to be someone she was not, and Defendant then
admitted that she had knowingly and willingly used her
sister's passport to enter the United States. Defendant
explained that she came to the United States for protection
because she was running from the war and wanted a better
life, but never mentioned being presently afraid.
Defendant's answers during the secondary inspection
station interview, including her confession to knowingly
using her sister's passport to enter the United States,
were recorded in a "Record of Sworn Statement in
Administrative Proceedings," which Defendant signed as a
true and correct record of her answers during the interview.
the interview, Defendant was arrested and was subsequently
charged and indicted for Misuse of a Passport.
has filed a motion in limine to present the affirmative
defense of justification at trial. Defendant has also moved
to dismiss the superseding indictment due to the
government's failure to preserve evidence. The Court held
an evidentiary hearing on both motions on April 15, 2019, and
denied both motions for the reasons stated from the bench,
the reasons stated below, and for good cause shown.
Defendant's Motion in Limine to Present the
Affirmative Defense of Justification at Trial.
present the justification defense at trial, a defendant must
make a prima facie showing in an in limine
hearing that: (1) the defendant was under unlawful and
present threat of death or serious bodily injury, (2) the
defendant did not recklessly place herself in a situation
where she would be forced to engage in criminal conduct, (3)
the defendant had no reasonable legal alternative, and (4)
there was a direct causal relationship between the criminal
act and the avoidance of the threatened harm. United
States v. Crittendon, 883 F.2d 326, 330 (4th Cir. 1989).
Even accepting Defendant's testimony at the evidentiary
hearing as true, Defendant failed to establish the first,
third, and fourth prongs of the justification defense.
failed to establish the first prong - the existence of a
present and imminent threat - because even if Defendant
remained in imminent threat while she was in Ghana, that
threat was no longer present at the time she handed her
sister's passport to the customs agent at the United
States airport. United States v. Simo, 68 F.Supp.2d
706, 710-11 (E.D. Va. 1999) (Ellis, J.) ("Although
defendant here may be able to show a reasonable fear for her
physical safety were she to return to Cameroon, this threat
was not imminent at the time of the offense; instead it was,
at most, a threat of harm in the future[T]he political
situation in Cameroon and Germany posed no threat to
defendant as she handed the false passport to a United States
failed to establish the third prong - lack of a reasonable
legal alternative -because Defendant could have (a) gone to
another country besides the United States or the countries in
close proximity to Cameroon, where she claims the threat
would have remained present, or (b) asked the custom agent
for asylum rather than handing him her sister's passport
as her own. Id. at 711; see also United States
v. Lebreault-Feliz, 807 F.3d 1, 5 (1st Cir. 2015)
("[T]he lack-of-reasonable-alternatives requirement
generally cannot be satisfied once the 'defendant has
reached a position where he can safely turn himself in to [or
call on] the authorities.'" (quoting United
States v. Contento-Pachon, 723 F.2d 691, 695 (9th Cir.
1984)) (alteration in original)); United States v.
Fashola, 1995 U.S. App. LEXIS 32582, at *5 (4th Cir.
Nov. 20, 1995) (finding that the defendant failed to
establish lack of a reasonable legal alternative because
"he has not presented any evidence, other than that his
brother provided him with a United States visa and that he
had former ties to this country, as to why he could not have
fled to another country").
Defendant failed to establish the fourth prong - a causal
relationship between the threat and the criminal action -
because she failed to establish that she "was in
immediate danger of death unless [s]he entered the United
States" as she "could have avoided the
imminent threat of death by entering another ...