United States District Court, D. Hawaii
ORDER GRANTING GOVERNMENT'S MOTION IN LIMINE NO.
3 (ECF NO. 169)
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE
United States of America moves in limine to prohibit
Defendant Peter Christopher (“Defendant” or
“Christopher”) from raising a necessity defense
at trial. ECF No. 169. The government brings this motion
pursuant to Federal Rule of Criminal Procedure 47 and Federal
Rule of Evidence 104(a). Id.
7, 2018, Christopher was charged by the grand jury in the
First Superseding Indictment with one count of Wrongful
Furnishing of Another's Passport under 18 U.S.C. §
1544 and one count of False Statement in a Passport
Application under 18 U.S.C. § 1542. ECF No. 30 at 2. The
First Superseding Indictment alleged that Christopher
knowingly furnished his daughter R.M.C.'s passport for
the use of his other daughter G.G.C.S., knowing that G.G.C.S.
was not the person for whom the R.M.C. passport was issued.
Id. The First Superseding Indictment also alleged
that Christopher knowingly made false statements in a 2016
application for a passport for G.G.C.S. Id. at 2-3.
The parties do not appear to dispute that Christopher took
his daughter, G.G.C.S. (a dual-citizen of Costa Rica and the
United States), from her mother in Nicaragua, traveled with
G.G.C.S. to Costa Rica, and then flew with G.G.C.S. to the
United States filed “Government's Motion in
Limine Number 3 (prohibiting the defendant from raising
a ‘necessity defense' at trial)” on September
12, 2018 (“the Motion”). Although the defense
opposed the Motion at the November 5, 2018 hearing, no
written Opposition was filed. For the following reasons, the
Motion is GRANTED.
defense of necessity is available when a person commits a
particular offense to prevent an imminent harm which no
available options could similarly prevent.” United
States v. Arellano-Rivera, 244 F.3d 1119, 1125-26 (9th
Cir. 2001) (citing United States v. Dorrell, 758
F.2d 427, 430-31 (9th Cir. 1985)).
The defendant must establish that a reasonable jury could
conclude that (1) he was faced with a choice of evils and
reasonably chose the lesser evil; (2) he reasonably acted to
prevent imminent harm; (3) he reasonably anticipated a causal
relation between his conduct and the harm to be avoided; and
(4) he reasonably believed there were no other legal
alternatives to violating the law.
United States v. Perdomo-Espana, 522 F.3d 983, 988
(9th Cir. 2008) (citations omitted). “If the
‘defendant's offer of proof is deficient with
regard to any of the four elements, the district judge must
grant the motion to preclude evidence of
necessity.'” Arellano-Rivera, 244 F.3d at
1126 (quoting United States v. Aguilar, 883 F.2d
662, 693 (9th Cir. 1989)); see also Perdomo-Espana,
522 F.3d at 989 (“Our case law is clear that a trial
judge may decline to allow evidence of a necessity defense
where the defendant fails to present a prima facie
case.”) overruled on other grounds by Melendez-Diaz
v. Massachusetts, 557 U.S. 305 (2009).
Christopher did not file a written Opposition, the Court is
left with his offer of proof made at the November 5, 2018
hearing. Christopher's offer of proof was not supported
by any evidence. But even accepting Christopher's
November 5 representations as true, Christopher fails to
establish that “he reasonably believed there were no
other legal alternatives to violating the law.”
Perdomo-Espana, 522 F.3d at 988.
argues that the evidence will show that G.G.C.S.'s mother
was neglecting her, Nicaragua was suffering from political
unrest, and Christopher took G.G.C.S. back to the United
States for her welfare and safety. Christopher also argues
that the evidence will show that, when he went to the State
Department to ask for help in taking G.G.C.S. from Nicaragua
to the United States, the State Department told him that it
could do nothing. Further, Christopher argues that the
evidence will show that he could not have gone to the U.S.
Embassy in Nicaragua for help because of the political
unrest. For all of these reasons, Christopher argues that he
had no legal alternative to violating the law.
Christopher did, in fact, have several legal alternatives. In
his declaration, Supervisory Customs and Border Protection
Officer (“CPBO”) Scott Kikkawa (“Officer
Kikkawa”) attested that Christopher “had at least
three legal alternatives to violating the law by misusing
R.M.C.'s passport.” Kikkawa Decl. ¶ 21, ECF
No. 169-18. First, Officer Kikkawa stated that if Christopher
had shown the CBPO documents establishing G.G.C.S.'s
United States citizenship, such as a copy of her United
States passport or a copy of her Consular Report of Birth
Abroad, the CBPO may have allowed G.G.C.S. entry into the
United States. Id. ¶ 22. Second, if that
alternative had failed, Officer Kikkawa stated that G.G.C.S.
would have been treated as an alien (rather than as the
citizen that she was). As an alien, the CBPO could have then
taken actions that would have allowed G.G.C.S. entry to the
United States as a “parole for deferred
inspection” in order for Christopher to try to provide
more documentation at a later date. Id. ¶¶
25-26. Third, Officer Kikkawa stated that if G.G.C.S. was not
allowed entry, she would have been returned to Costa Rica,
not Nicaragua, because Christopher had flown with G.G.C.S. to
the United States from Costa Rica. Id. ¶ 27.
Thus, Christopher had several reasonable legal alternatives
to violating 18 U.S.C. § 1544 that could have achieved
the result of removing G.G.C.S. from Nicaragua and her
offering anything to contradict Officer Kikkawa, Christopher
nonetheless argues that the legal alternatives presented by
the Officer are too speculative. But the Ninth Circuit has
found that even a speculative legal alternative prevents a
defendant from meeting his prima facie burden.
Arellano-Rivera, 244 F.3d at 1126. In
Arellano-Rivera, the Ninth Circuit rejected the
defendant's argument that he had no legal alternatives
other than to re-enter the United States illegally after a
prior deportation. Id. The defendant proffered that
he suffered from an advanced case of AIDS and had to enter
the United States to obtain treatment unavailable in Mexico.
Id. at 1122. According to the defendant, his illegal
re-entry was literally a matter of life or death. The Ninth
Circuit reasoned that, notwithstanding the defendant's
previous deportation from the United States, the defendant
could still have petitioned the Attorney General for reentry
based on his advanced medical condition. Id. at
1126. Notably, the Ninth Circuit also stated that, even if
the success of the legal alternative was unlikely (because
the defendant was a previously deported felon), the
likelihood of success did not negate the viability of the
legal alternative for purposes of the necessity defense.
here, Christopher had at least one additional legal
alternative. Before attempting to gain entry to the United
States, it is undisputed that Christopher and G.G.C.S. were
in Costa Rica, and that G.G.C.S. was a Costa Rican
dual-citizen. See Kikkawa Decl. ¶ 27. In other
words, she was already out of the harm's way - in the
form of the alleged mistreatment by her mother and
Nicaragua's political unrest - postulated by Christopher.
Christopher does not even attempt to explain why simply
staying put in Costa Rica and attempting to obtain the relief
he sought for G.G.C.S. could not have been accomplished from
that position of safety. See e.g. United States v.
Ibarra, 2013 WL 12139102, at *3 (N.D. Cal. Jan. 29,
2013) (recognizing defendant's option to seek legal
immigration to another country (besides the United States) as
a legal alternative, when the defendant illegally entered the
United States to escape a drug trafficking organization);
United States v. Bonilla-Siciliano, ...