U.S. v. Fazal-Ur-Raheman-Fazal

• Decision Date: 21 January 2004
• Docket Number: No. 02-2215.,02-2215.
• Citation: 355 F.3d 40
• Parties: UNITED STATES of America, Appellee, v. FAZAL-UR-RAHEMAN-FAZAL a/k/a Fazal Raheman, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 40

355 F.3d 40

UNITED STATES of America, Appellee, v. FAZAL-UR-RAHEMAN-FAZAL a/k/a Fazal Raheman, Defendant, Appellant.

No. 02-2215.

United States Court of Appeals, First Circuit.

Heard July 28, 2003.

Decided January 21, 2004.

Appeal from the United States District Court for the District of Massachusetts, Patti B. Saris, J Robert Osuna, with whom Law Office of Robert Osuna, P.C. was on brief, for appellant.

John T. McNeil, Assistant United States Attorney with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before SELYA, Circuit Judge, STAPLETON,^* Senior Circuit Judge, and HOWARD, Circuit Judge.

HOWARD, Circuit Judge.

Following a seven-day trial, a jury convicted defendant-appellant Fazal Raheman, M.D., of international parental kidnapping and illegal interception of wire communications. See 18 U.S.C. §§ 1204 ("International Parental Kidnapping Crime Act" or "IPKCA") and 2511(1)(a). This lengthy appeal requires us to decide, inter alia, (1) whether a parent can be prosecuted under IPKCA for conduct that would not be criminal under state law; and (2) whether the district court had sentencing authority to impose upon Raheman an order requiring his immediate cooperation in the return of the children. We hold that (1) such a prosecution is consistent with the language and intent of the statute; and (2) the district court did not have authority to impose such an order.

I.

We set forth the facts in the light most favorable to the verdict. See United States v. Diaz, 300 F.3d 66, 69 (1st Cir.2002).

After marrying Saihba Ali in India in May 1990, Raheman and his wife returned to Massachusetts, where he had been employed for the past year. In 1992, the couple became permanent residents. Later that year, their child, a daughter, was born in Massachusetts, making her an American citizen by birth. A son was born in India in 1996; he became a naturalized American citizen two years later.

By 1996, Ali's and Raheman's marriage was suffering. Raheman had become concerned that Ali had become too independent, and he had repeatedly threatened to send the children to India to live with his mother if her behavior persisted. On September 17, 1997, Ali moved herself and the children from the family home in Burlington, Massachusetts, to an apartment in Cambridge, Massachusetts.

Displeased by his wife's action, Raheman again threatened to move the children to India. He also told Ali that, if she went to the police or the courts regarding their separation or his threats, he "would become a lethal weapon." In early October 1997, Ali informed Raheman that, because of his threats, she would have to go to the police or courts for help. Raheman then changed his tactics and told her that he would not remove the children to India. He requested, however, that she not take him "in front of a judge." At this juncture, Raheman and Ali began to discuss legal separation, but Raheman insisted that the separation take place without resort to the American legal system.

Meanwhile, Raheman was covertly monitoring his wife's activities. He had a miniature video camera surreptitiously installed in her bedroom, hired a private investigator to follow and videotape her, and asked his nephew to move into Ali's apartment building to spy. In addition, from November 1, 1997, through November 11, 1997, Raheman tapped Ali's apartment telephone. During this period, he surreptitiously recorded "more than 100 hours" of her private conversations.

On November 14, 1997, Raheman traveled to his former home in Nagpur, India. There, he enrolled his daughter in school and filed a petition for custody of the children in the Nagpur Family Court, alleging that his wife was engaged in an adulterous relationship and that, as a result, he should be awarded custody. He returned to the United States on November 18, 1997.

On November 25, 1997, Raheman arranged to visit his children the next day. Raheman informed Ali that he planned to take the children to a museum and would return them later in the evening. He told Ali nothing of his recent trip to India. Later that same day, he purchased airline tickets for himself and the children to fly from New York to India on November 26th. The children's tickets were one way.

After picking up the children early in the afternoon on November 26th, Raheman drove to New York but missed the flight. They flew to India the next day. At the time Raheman left the United States, he and Ali were still married and there existed no court order or agreement between them affecting custody of the children.

At Raheman's request, one of his cousins telephoned Ali with the news that Raheman and the children were on a flight to India. After receiving this call, Ali called the police to report that her children had been kidnapped. Two days later, Ali obtained from a Massachusetts Probate Court an emergency custody order, which a Cambridge police officer subsequently read to Raheman over the telephone. Soon thereafter, on December 2, 1997, Raheman obtained his own custody order from the Nagpur Family Court.

Between November 1997 and August 1998, Ali sought the assistance of several federal agencies in an unsuccessful attempt to obtain lawful physical custody of her children. In addition, she obtained United States citizenship for herself and her son and hired a lawyer in India.

In late August 1998, Ali traveled to India to attempt to obtain custody of her children from the Indian courts. Raheman fought her efforts and filed several criminal complaints against her. Before Indian authorities could apprehend her, Ali fled to the United States. In September 2000, while Ali was in the United States, Raheman obtained from the Indian court a second custody order based primarily on a provision of Islamic law that grants a father full custody if the mother lives a significant distance from the father.

On July 25, 2001, Raheman was indicted by a federal grand jury on one count of international parental kidnapping. See 18 U.S.C. § 1204. Later in 2001, upon returning to the United States to participate in a civil lawsuit, Raheman was arrested on the federal charge. On January 16, 2002, a grand jury returned a superseding indictment which added one count of unlawful wiretapping. See 18 U.S.C. § 2511(1)(a). On March 6, 2002, Raheman was convicted on both counts. He was sentenced to three years of imprisonment, to be followed by three years of supervised release. Additionally, he was ordered to cooperate immediately in the return of the children to Ali's custody.

This appeal followed.¹

II.

We are presented with six issues on appeal: (1) whether Raheman's conduct falls within the criminal prohibitions of IPKCA, and, if so, whether the statute is unconstitutional as applied to him; (2) whether the district court erred in instructing the jury that, as a matter of law, both Ali and Raheman had parental rights to physical custody of the children at the time Raheman took them to India; (3) whether the district court abused its discretion in admitting evidence of threats allegedly made by Raheman against Ali; (4) whether the jury instructions on the wiretapping charge were constitutionally insufficient in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); (5) whether the district court imposed an improper "forthwith" order; and (6) whether trial counsel was ineffective.²

A. The International Parental Kidnapping Crime Act

Raheman's principal argument on appeal is that his IPKCA conviction should be reversed for two separate reasons: (1) "the evidence adduced at trial ... fails to state a crime [under IPKCA]" because the charged conduct has not been criminalized by state law; and (2) the statute "is unconstitutional as applied to [him]." Our standard of review is de novo. See United States v. Robinson, 137 F.3d 652, 653 (1st Cir.1998) ("We review de novo constitutional challenges to federal statutes."); United States v. Jones, 10 F.3d 901, 904 (1st Cir.1993) ("Statutory interpretation is a question of law and, therefore, is subject to de novo review.").

We note at the outset an undisputed fact: under Massachusetts law, Raheman did nothing criminal. In Commonwealth v. Beals, 405 Mass. 550, 541 N.E.2d 1011, 1015 (1989), the Supreme Judicial Court made clear that "[a] parent who has taken his or her children from the other parent before there was any court proceeding cannot be convicted of parental kidnapping under [Mass. Gen. L. ch.] 265, § 26A." (emphasis added).³ Since Raheman removed his children — residents of Massachusetts — prior to such a proceeding, he could not have been convicted of kidnapping under state law. Of course, that a particular State fails to prohibit certain conduct does not obligate Congress to do the same.

(1) Statutory Analysis

In 1993, by virtue of its commerce power, see United States v. Cummings, 281 F.3d 1046, 1051 (9th Cir.), cert. denied, 537 U.S. 895, 123 S.Ct. 179, 154 L.Ed.2d 162 (2002), and to "deter the removal of children from the United States to foreign countries in order to obstruct parental rights," Congress passed the International Parental Kidnapping Crime Act, which creates a "[f]ederal felony offense of international parental kidnapping." H.R.Rep. No. 103-390, at 1 (1993), reprinted in 1993 U.S.C.C.A.N. 2419, 2419 (emphasis added). The legislative history explains that IPKCA was enacted as a domestic response to issues left unaddressed by international law:

There is an international civil mechanism relating to these cases, the Hague Convention on International Parental Child Kidnapping, for which Congress passed implementing legislation in 1988. As a result of this convention, the signatories will recognize the custody decrees of other signatories, thereby facilitating the return of abducted children. However, most countries (including India) are not signatories to the Convention, thus leaving individual countries to take whatever legal...