Khalifa v. State

• Decision Date: 03 August 2004
• Docket Number: No. 133,133
• Citation: 382 Md. 400,855 A.2d 1175
• Parties: Afaf N. KHALIFA v. STATE of Maryland.
• Court: Maryland Court of Appeals

855 A.2d 1175

382 Md. 400

Afaf N. KHALIFA v. STATE of Maryland.

No. 133, Sept. Term, 2003.

Court of Appeals of Maryland.

August 3, 2004.

William C. Brennan, Jr. (Brenna, Trainor, Billman & Bennett, LLP, Upper Marlboro, on brief), for petitioner.

Gary E. Bair, Solicitor General (J. Joseph Curran, Jr., Atty. Gen., on brief), for respondent. Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

BATTAGLIA, J.

We granted Afaf N. Khalifa's petition for a writ of certiorari to review her multiple convictions and sentences of incarceration for violating former Maryland Code, Section 9-305 of the Family Law Article (1984, 1999 Repl.Vol.)¹ as well as the current, amended version of that statute, Section 9-305 of the Family Law Article (1984, 1999 Repl.Vol., 2002 Supp.).² The convictions arose from Khalifa's role in the abduction and detention of her grandson, Adam Shannon, who was born in the United States and now resides in Egypt, thousands of miles away from his father and lawful custodian, Michael Shannon. Khalifa challenges her convictions and sentences on three grounds: (1) courts in the State of Maryland lacked territorial jurisdiction to hear the prosecution of certain counts against her; (2) her convictions and sentences violate the Ex Post Facto Clauses of the United States Constitution and Maryland Declaration of Rights; and (3) her multiple sentences are "constitutionally defective" because the indictment charged the same offense in multiple counts.

I. Background

Khalifa (hereinafter "Petitioner") and her adult daughter, Nermeen Khalifa Shannon (hereinafter "Nermeen"), are citizens of Egypt, where Nermeen was raised and educated. In 1989, upon reaching the age of 21, Nermeen moved to the United States and settled in Maryland. In July of 1995, while living in Maryland, Nermeen met Michael Shannon, and, on March 3, 1996, the two were married and took up residence in Millersville in Anne Arundel County.

On February 9, 1997, Nermeen gave birth to their first son, Adam Shannon. Nermeen and Michael separated in January of 2000, and Nermeen moved to an apartment in Baltimore County. As a result of attempts to reconcile several months later, their second child, Jason Shannon, was born on January 10, 2001. Nermeen and Michael's reconciliation attempts ended in February of 2001.

On February 27, 2001, the Circuit Court for Anne Arundel County issued a "Consent Order" granting to Michael "legal and primary physical care and custody" of Adam. Under the order, Nermeen was afforded visitation with Adam, including up to three non-consecutive weeks of unsupervised visitation during the months of June, July, and August. The order also granted to Nermeen "legal and primary physical care and custody" of Jason, with whom Michael had "reasonable rights of visitation."

On August 18, 2001, Petitioner arrived in the United States from Egypt and stayed at Nermeen's Baltimore County apartment. Petitioner, who allegedly had a copy of the custody order, asked Michael if Nermeen's week of unsupervised visitation with Adam could correspond with Petitioner's visit to the United States. Petitioner explained to Michael that she wanted to take Nermeen, Adam, and Jason to New York to visit a relative, Waeil El Bayar, whose wife had recently given birth. Michael agreed, with the specific condition that Adam and Jason return to Maryland on Sunday, August 26. According to Michael, Petitioner promised to return the children to Nermeen's apartment by 6:00 p.m., Sunday, August 26.

Nermeen's neighbor and babysitter, Christa Mayo, stated that she last babysat Nermeen's children on Thursday, August 23, 2001. Nermeen had told Christa that she no longer needed babysitting services because she was moving to Egypt with the financial and logistical support of Petitioner. Nermeen explained to Christa that the move was a secret because "[t]hey had an upcoming court case regarding custody [and] that she wanted to leave before that and no one was to know that they were going." About a month earlier, at Nermeen's request, Christa had taken Adam to have his passport photograph taken.

On August 23 and for a short time on August 24, Christa saw a moving truck outside of Nermeen's apartment, and she observed Petitioner "directing the movers" as they walked in and out of the apartment. According to Christa, Petitioner seemed "very dominant" and "in control," and, when she was with her daughter, Petitioner appeared "in charge." Another of Nermeen's neighbors, Lynda Leight, who observed Petitioner on August 24, noted that Petitioner "seemed to be very forceful" and "dominant" in the way she interacted with Nermeen. The property manager, Michael Nabors, observed the moving truck outside of Nermeen's apartment on August 24 and had a similar impression of Petitioner, recalling that she "was telling the [movers] what they should and shouldn't be doing in the truck."

When Christa encountered Nermeen outside of her apartment on August 24, Nermeen gave Christa her apartment keys to return to the rental office after Christa had taken whatever she wanted of the items left behind in Nermeen's apartment. Petitioner, Nermeen, Adam, and Jason arrived at El Bayar's house in New York on Friday, August 24. According to El Bayar, after spending one night at his house, his visitors, on August 25, traveled to the airport in a rented car and, using airline tickets that El Bayar had purchased for them at Nermeen's request several days earlier, flew to Egypt.

Before leaving Maryland, Nermeen provided Michael with three telephone numbers to reach her and the children while they were in New York. On August 24, Michael called New York and spoke with Petitioner, Nermeen, and Adam. Michael called New York again on August 25 and spoke with Nermeen and Adam. On August 26, however, the day Michael expected the children to return to Maryland, Michael was unable to reach Nermeen and the children at any of the telephone numbers he was provided.

At around 4:00 p.m. that day, Michael drove to Nermeen's apartment and found that it "had been cleaned out." He noticed that the "major furniture," the boys' clothes, the entertainment center, and the television were missing. Michael immediately called the police, who described him as "extremely distraught" and "nearly hysterical."

On Tuesday, August 28, Michael called Petitioner's residence in Cairo, Egypt, and Petitioner answered the phone. Petitioner informed Michael that Adam and Jason were with her and that Nermeen was elsewhere in Egypt under a doctor's care. Petitioner initially did not allow Michael to speak with Adam. When Michael specifically requested the return of the children, Petitioner refused and stated that they would be back in a couple of weeks. Petitioner, according to Michael, explained that she had not told Michael of the children's travel to Egypt because, had he known, he would have stopped them or had them arrested. Later that day, Michael again called Petitioner's number in Egypt and was able to speak to Adam. Although Michael has spoken with Adam by phone consistently, Michael has not seen his oldest son since Adam left the United States.

While Adam and Jason have lived in Egypt, officials from the United States Embassy there have conducted three "welfare and whereabouts" visits of the boys at Petitioner's residence in Cairo. During the first visit on October 2, 2001, Petitioner, her husband, Nermeen, Adam, and Jason were present. On February 27, 2002, when the embassy officials conducted the second visit, the children were accompanied by Nermeen and her sister. On the third visit, which took place on August 7, 2002, Nermeen was with her children and, this time, joined by her sister and niece. During all of the visits, the children appeared to the embassy officials to be living at Petitioner's home in Cairo.

In the evening of August 28, 2001, the District Court of Maryland sitting in Anne Arundel County issued a warrant for the arrest of Petitioner and charged her with child abduction and accessory to child abduction of Adam in violation of Section 9-305 of the Family Law Article (1984, 1999 Repl.Vol.). The Circuit Court for Anne Arundel County, on August 29, 2001, ordered Nermeen to "immediately return" Adam "to the care and custody of Michael Shannon." On September 11, 2001, the circuit court granted the "sole legal and physical care and custody" of Jason to Michael and ordered Nermeen to "immediately return" him to his father.

Petitioner was arrested in May of 2002, when she returned to the United States with her husband to visit their property in San Diego, California. In August of 2002, the State of Maryland issued a revised criminal indictment, charging Petitioner with fifteen counts—ten counts of violating Maryland Code, Section 9-305 of the Family Law Article and five counts of conspiracy to violate that statute. All of the counts related to Petitioner's role in the alleged abduction, detention, and harboring of Adam. Because amendments to Section 9-305 and the related penalty provisions of Section 9-307 became effective on October 1, 2001, the State charged Petitioner in separate counts for conduct occurring before and after that date. In particular, of the ten Counts alleging violations of Section 9-305, Counts 1 through 6 charged Petitioner for conduct occurring between August and September of 2001. Counts 11 through 13, alleging conspiracy, also charged Petitioner for conduct that took place between August and September of 2001. The balance of the charges (Counts 7 though 10 and Counts 14 through 15) alleged that Petitioner committed offenses after October 2001.³

After waiving her right to jury trial, Petitioner was tried in the Circuit Court for Anne Arundel County before the Honorable Nancy Davis-Loomis. Judge Davis-Loomis presided over the four-day trial and, on January 21, 2003, found Petitioner guilty on ten counts and rendered the following verdicts:

Count

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