The feds just can’t hold on to this guy.
Brooklyn prosecutors used the wrong statute to charge a violent immigrant who humiliated three ICE agents by escaping custody at Kennedy Airport — and now the ex-con may not have to spend a day in jail for his criminal exploits, The Post has learned.
Ex-con Mohamadou Mbacke was being deported back to his native Senegal on March 27 when he infamously gave his ICE handlers the slip at JFK.
Surveillance video caught the uncuffed criminal scampering past shops and around different floors before ducking out of employee-only doors to a yellow cab and freedom.
Mbacke, who is in his early 30s, remained on the lam for three days before he was nabbed in a Starbucks in Chicago — after futilely trying to pass himself off as an immigrant from Ecuador named “Antonio.”
He was brought back to New York City and charged with a misdemeanor, convicted and faced spending up to a year behind bars before being deported.
But the statute under which he was charged only applies to escapees involved in deportation proceedings before mid-1997 — and Mbacke’s expulsion case began 16 years later, in 2015, Judge Sanket Bulsara wrote.
There’s a statute to fit Mbacke’s crime — and it’s actually a stiffer felony, carrying an up to 10-year sentence. But “the Government did not charge Mbacke under that law. Instead, it charged Mbacke under a statute that does not apply to him,” the judge pointed out.
Bulsara said he was sympathetic to the feds’ intent, particularly given how embarrassing Mbacke’s run for freedom was.
“The Government’s decision to charge Mbacke with a crime was understandable: Mbacke was captured on video running through and out of JFK away from ICE officers,’’ the judge wrote.
But he said he had no choice but to acquit the man.
The court “vacates the jury verdict and enters a judgment of acquittal,’’ Bulsara wrote, adding, “The Court reaches this decision grudgingly, knowing that it results in overturning a jury verdict in a criminal case, something done only in the most exceptional circumstances.”
Mbacke’s lawyers had challenged his conviction based on the legal flub.
The feds told The Post on Monday that they will re-try Mbacke on the appropriate felony charge.
Meanwhile, Mbacke remains in lock-up in Brooklyn.
