IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30206

Summary Calendar

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.

United States Court of Appeals

Fifth Circuit

FILED

January 5, 2018

Lyle W. Cayce

Clerk

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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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