U.S. v. Amer, 298

Citation110 F.3d 873
Decision Date26 March 1997
Docket NumberNo. 298,D,298
PartiesUNITED STATES of America, Appellee, v. Ahmed AMER, Defendant-Appellant. ocket 96-1181.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Henry H. Rossbacher, Los Angeles, CA (Tracy W. Young, Rossbacher & Associates, Los Angeles, CA; Harry C. Batchelder, Jr., New York City, on the brief), for defendant-appellant.

Timothy Macht, Asst. U.S. Atty., Brooklyn, N.Y. (Zachary W. Carter, U.S. Atty., Peter A. Norling, Asst. U.S. Atty., Brooklyn, N.Y., on the brief), for appellee.

Before: NEWMAN, Chief Judge, CARDAMONE and McLAUGHLIN, Circuit Judges.

JON O. NEWMAN, Chief Judge:

This appeal concerns several issues arising from a conviction for violation of the International Parental Kidnapping Crime Act ("IPKCA" or "the Act"), 18 U.S.C. § 1204. The IPKCA bars a parent from removing a child from the United States or retaining outside the United States a child who has been in the United States, with the intent to obstruct the other parent's right to physical custody. We have not previously considered this statute. The specific questions raised are (i) whether the IPKCA is unconstitutionally vague, (ii) whether it is overbroad in intruding upon the free exercise of religion, (iii) whether it incorporates the affirmative defenses found in the Hague Convention on the Civil Aspects of International Parental Child Abduction ("Hague Convention"), (iv) whether the sentencing court properly imposed, as a condition of the convicted defendant's term of supervised release, a requirement that the defendant return the still-retained children to the United States, and (v) whether the sentencing court properly applied a three-level enhancement for substantial interference with the administration of justice.

These issues of first impression arise on an appeal by Ahmed Amer from the March 14, 1996, judgment of the District Court for the Eastern District of New York (Carol Bagley Amon, Judge), convicting him, after a jury trial, of one count of international parental kidnapping in violation of the IPKCA and sentencing him to twenty-four months' imprisonment and a one-year term of supervised release with the special condition that he effect the return of the abducted children to the United States. We affirm.

Background

Ahmed Amer ("Ahmed") and Mona Amer ("Mona"), Egyptian citizens and adherents of the Islamic faith, were married in Egypt in 1980. Four years later, while still in Egypt, Mona gave birth to the couple's first child, a boy named Amachmud. In 1985, Ahmed, seeking employment, left his wife and newborn son in Egypt and moved to the United States. Ahmed eventually settled in Queens, New York.

In 1987, Mona and Amachmud joined Ahmed in Queens. Mona stayed home to take care of the child while Ahmed worked as a cook in various diners in the city. In 1989, the couple had another child, a girl named Maha. In 1991, the couple's third child, a son named Omar, was born.

The two children born in the United States, Maha and Omar, became American citizens upon their birth. In 1991, Ahmed became a naturalized United States citizen, though he continued to retain his Egyptian citizenship. Mona obtained permanent resident alien status in this country the following year. Also in 1992, the entire Amer family returned to Egypt for a one-month visit, which was the only time that anyone in the family returned to Egypt prior to the episode on which the indictment is based.

During the early 1990s, the Amers' marriage began to deteriorate. Ahmed and Mona quarreled frequently over Ahmed's bigamous marriage to another woman, Mona's decision to work outside the home, and her decision to apply for welfare. Ahmed regularly abused Mona both verbally and physically. In April 1994, Mona asked Ahmed to leave the family apartment. He obliged and moved into a friend's apartment. The couple did not, however, divorce or become legally separated. The three children remained with Mona at the Queens home. No formal custody arrangement was made. Ahmed visited the children whenever he wished, usually once each week. During this period, Mona supported herself with public assistance and loans from friends.

Although he was no longer living in the family home, Ahmed continued to abuse Mona when he saw her. He also began to try to persuade her to move back to Egypt with him, suggesting that the children would receive a better education there and that the family would benefit from living among close relatives. Although Mona at one point appeared to agree, she eventually told Ahmed that neither she nor the children would return to Egypt. Ahmed threatened to kill Mona for her refusal, but she would not agree to leave the United States or to allow him to take the children from this country.

On January 27, 1995, Ahmed came to the family apartment in Queens to have dinner with Mona and the children. After dinner, Mona left the house to do some shopping. When she returned two hours later, Ahmed and the children were gone. The next morning Mona learned that Ahmed had taken the children to Egypt. Mona has not seen her children since that time.

Records from Egypt Air showed that on the evening of January 27th, Ahmed and the three children boarded a flight from JFK Airport to Egypt. After arriving in Egypt, Ahmed took the children to his mother's home, which is about ten minutes from the home of Mona's parents. The children visited with Mona's parents a few days after their arrival in Egypt. Amachmud, Maha, and Omar continue to reside in Egypt with Ahmed's mother.

In February 1995, Mona filed a complaint in Queens Family Court seeking custody of the children. The court awarded her full legal custody of the three children and issued a warrant for Ahmed's arrest. At around the same time, Ahmed obtained an order from an Egyptian court compelling Mona to return to the "conjugal home" in Egypt. After Mona failed to return to Egypt within three months, the Egyptian court in May 1995 awarded Ahmed custody of the three children. Additionally, Mona no longer has custody rights to twelve-year-old Amachmud under Egyptian law, which provides that a mother loses all rights to her male child when he reaches the age of ten.

In June 1995 Ahmed left the children in his mother's care and returned to the United States. He was apprehended the following month in New Jersey. The eventual indictment, issued in the Eastern District of New York, charged that "[o]n or about and between January 27, 1995 and August 4, 1995, ... the defendant Ahmed Amer did knowingly and intentionally remove and retain children who had been in the United States, to wit [Amachmud] Amer, Maha Amer and Omar Amer, outside the United States with the intent to obstruct the lawful exercise of parental rights," in violation of the IPKCA. Ahmed was convicted by a jury on the sole count of the indictment. Judge Amon imposed a sentence of twenty-four months' imprisonment and a one-year term of supervised release, with the special condition that Ahmed effect the return of the three children to the United States. At the time of this appeal, the children remain in Egypt.

Discussion

The IPKCA was enacted in December 1993, but has apparently been sparingly used. We have found no published decision of a federal court construing this statute. The IPKCA provides, in relevant part:

(a) Whoever removes a child from the United States or retains a child (who has been in the United States) outside the United States with intent to obstruct the lawful exercise of parental rights shall be fined under this title or imprisoned not more than 3 years, or both.

(b) As used in this section--

(1) the term "child" means a person who has not attained the age of 16 years; and

(2) the term "parental rights", with respect to a child, means the right to physical custody of the child--

(A) whether joint or sole (and includes visiting rights); and

(B) whether arising by operation of law, court order, or legally binding agreement of the parties.

18 U.S.C. § 1204. Ahmed raises two constitutional challenges to the Act: that it is vague and also overbroad in its intrusion upon free exercise rights. He also contends that the District Court erred in not allowing him to present certain "affirmative defenses" found in the Hague Convention during the trial, in imposing a special condition of his term of supervised release, and in enhancing his offense level. We discuss each contention in turn.

I. Vagueness

Ahmed contends that three aspects of the Act render it void for vagueness by failing to give a "person of ordinary intelligence a reasonable opportunity to know what is prohibited" under the Act. See Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972). First, he asserts that the term "retains," 18 U.S.C. § 1204(a), is vague because the Act does not define the duration or length of time that a child must be "retain[ed]" outside the United States in order to constitute a violation of the IPCKA. Second, he contends that the parenthetical phrase "( [child] who has been in the United States)," id., is vague because the IPKCA does not specify the length of time that a child must have been in the United States before the IPKCA will be triggered by the child's removal or retention. Third, he argues that the phrase "lawful exercise of parental rights," id., is vague because the Act does not provide any guidance as to whether parental rights are to be defined by state law, federal law, Egyptian law, customary international law, or "positive law promulgated by the United Nations."

The "void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). To...

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