901 F.3d 137 (2nd Cir. 2018), 17-839-cr, United States v. Zodhiates

Docket Nº:17-839-cr
Citation:901 F.3d 137
Opinion Judge:Barrington D. Parker, Circuit Judge
Party Name:UNITED STATES of America, Appellee, v. Philip ZODHIATES, Defendant-Appellant.
Attorney:Paul J. Van De Graaf, Special Assistant United States Attorney (Michael DiGiacomo, Assistant United States Attorney, on the brief ), for James P. Kennedy, United States Attorney for the Western District of New York, Buffalo, New York, for Appellee United States of America. Robert B. Hemley (David...
Judge Panel:Before: Parker, Raggi, Circuit Judges, and Furman, District Judge.
Case Date:August 21, 2018
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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901 F.3d 137 (2nd Cir. 2018)

UNITED STATES of America, Appellee,

v.

Philip ZODHIATES, Defendant-Appellant.

Nos. 17-839-cr

United States Court of Appeals, Second Circuit

August 21, 2018

Argued: April 9, 2018

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Western District of New York. No. 1:14-cr-00175-2 (RJA), Richard J. Arcara, District Judge .

Paul J. Van De Graaf, Special Assistant United States Attorney (Michael DiGiacomo, Assistant United States Attorney, on the brief ), for James P. Kennedy, United States Attorney for the Western District of New York, Buffalo, New York, for Appellee United States of America.

Robert B. Hemley (David A. Boyd, Esq., Gravel & Shea PC, Burlington, Vermont; James W. Grable, Jr., Connors, LLP, Buffalo, New York, on the brief ), Gravel & Shea PC, Burlington, Vermont, for Defendant-Appellant Philip Zodhiates.

William J. Olson, William J. Olson PC, Vienna, Virginia, for Amici Curiae in Support of Appellant: Downsize DC Foundation, DownsizeDC.org, Gun Owners of America, Inc., and Gun Owners Foundation.

Before: Parker, Raggi, Circuit Judges, and Furman, District Judge.[*]

OPINION

Barrington D. Parker, Circuit Judge

Defendant-Appellant Philip Zodhiates appeals from a judgment of conviction in the United States District Court for the Western District of New York (Arcara, J .).

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He was convicted of conspiring with and aiding and abetting parent Lisa Miller to remove her seven-year-old child from the United States to Nicaragua in order to obstruct the lawful exercise of parental rights by Miller’s civil union partner, Janet Jenkins, in violation of the International Parental Kidnapping Crime Act ("IPKCA"). See 18 U.S.C. § § 371, 1204, and 2.

Zodhiates contends that the District Court erred in declining to suppress inculpatory location information garnered from his cell phone records. The records should have been suppressed, he argues, because, in violation of the Fourth Amendment, the government had obtained them through a subpoena issued pursuant to the Stored Communications Act ("SCA"), see id. § 2703(c)(2), rather than a court-approved warrant. He also contends that portions of the District Court’s charge to the jury and statements by the prosecutor in his summation had the effect of denying him a fair trial. We conclude that these contentions are without merit and, accordingly, we affirm the judgment.

BACKGROUND

The facts construed in the light most favorable to the government are as follows. Lisa Miller and Janet Jenkins entered into a civil union in Vermont in 2000. In 2002, Miller gave birth to a daughter, "IMJ." About a year later, Miller and Jenkins separated, and Miller took IMJ to Virginia while Jenkins remained in Vermont. In 2003, Miller petitioned a Vermont family court to dissolve the civil union and the court awarded custody to Miller and visitation rights to Jenkins. After Miller repeatedly refused to respect Jenkins’ visitation rights, Jenkins sought to enforce them in Virginia and, ultimately, the Virginia Court of Appeals held that Vermont, not Virginia, had jurisdiction over the dispute and ordered its courts to "grant full faith and credit to the custody and visitation orders of the Vermont court." Miller-Jenkins v. Miller-Jenkins, 49 Va.App. 88, 637 S.E.2d 330, 332 (2006).

In 2007, the Vermont court warned Miller that "[c]ontinued interference with the relationship between IMJ and [Jenkins] could lead to a change of circumstances and outweigh the disruption that would occur if a change of custody were ordered." A. 189. Miller refused to comply with the order and, following several contempt citations of Miller, Jenkins returned to court in Vermont. In November 2009, the Vermont family court awarded sole custody of IMJ to Jenkins and visitation rights to Miller.

In September 2009, while the Vermont litigation was pending, Philip Zodhiates, a businessman with strong ties to the Mennonite community, along with Kenneth Miller, a Mennonite pastor living in Virginia, and Timothy Miller, a Mennonite pastor living in Nicaragua, helped Miller to kidnap IMJ and flee to Nicaragua.1 As confirmed by Zodhiates’ cell phone and email records, which were introduced at trial, Zodhiates drove Miller and IMJ from Virginia to Buffalo, and then Miller and IMJ crossed into Ontario. From Ontario, Miller and IMJ traveled to Nicaragua where Miller remains a fugitive and IMJ resides. Email records also show that, following the kidnapping, Zodhiates helped Miller and her daughter settle in Nicaragua. Zodhiates coordinated with others to remove a number of personal items from Miller’s Virginia apartment, and, in November 2009, Zodhiates arranged for an acquaintance who was traveling to Nicaragua to bring various personal possessions to Miller. At the time of the kidnapping, Virginia law made same-sex marriages entered

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into outside of Virginia void there in all respects and such marriages could not be used to establish familial or step-parent rights in Virginia. See Va. Const. Art. I, § 15-A.2

The Government’s investigation commenced in 2010 in Vermont, soon after it became apparent that Miller had disappeared. During the course of the investigation, the Government issued subpoenas, which are subjects of this appeal, to nTelos Wireless, a Virginia cell phone company. The subpoenas sought billing records spanning 28 months and other information3 pertaining to two cell phones that had frequent contact with Kenneth Miller in September 2009. These phones were listed in the customer name "Response Unlimited, Inc.," a direct mail marketing company owned by Zodhiates. The subpoenas did not request the contents of phone calls or text messages, nor did they specifically request information concerning the locations from which phone calls were made or received.

In response to the subpoenas, nTelos produced billing records that showed detailed call information, including the date and time of phone calls made from various cell phones, together with the "service location" from which each call was made or received. Information presented in the "service location" field showed the general vicinity of the cell phone when the call was made or received, such as a county name, but did not contain details about precisely where in the general area the phone was located. These records, which were later featured prominently at Zodhiates’ trial, linked Zodhiates to Miller in Virginia and Buffalo, and established telephone contact among the conspirators.

The matter was...

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