U.S. v. Miller

• Decision Date: 23 November 2010
• Docket Number: Docket No. 08-1152-cr
• Parties: UNITED STATES of America, Appellee, v. Michelle MILLER, also known as Michelle Favreau, also known as Michelle Brodeau, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

626 F.3d 682 UNITED STATES of America, Appellee, v. Michelle MILLER, also known as Michelle Favreau, also known as Michelle Brodeau, Defendant-Appellant. Docket No. 08-1152-cr. United States Court of Appeals, Second Circuit. Argued: March 30, 2009. Decided: Nov. 23, 2010.

Michael L. Desautels, Office of the Federal Public Defender, Burlington, VT, for Defendant-Appellant.

Nancy J. Creswell, Assistant United States Attorney (Gregory L. Waples, Assistant United States Attorney, on the brief), for Thomas D. Anderson, United States Attorney for the District of Vermont, Burlington, VT, for Appellee.

Before: STRAUB, B.D. PARKER, and LIVINGSTON, Circuit Judges. ^*

Judge STRAUB dissents in a separate opinion.

DEBRA ANN LIVINGSTON, Circuit Judge:

Defendant-Appellant Michelle Favreau ¹ ("Favreau") appeals from a judgment of the United States District Court for the District of Vermont (Sessions, J.) entered February 29, 2008, following a jury trial, convicting her of one count of international parental kidnapping in violation of 18 U.S.C. § 1204. On appeal, Favreau argues that the district court erred in excluding evidence of her appeal in child custody litigation pending before the Vermont Supreme Court and in refusing to grant a continuance of the criminal trial to await the outcome of this appeal. She also contends that the evidence was insufficient to support her conviction. Because we conclude that the district court did not abuse its discretion in excluding the evidence of Favreau's pending appeal and that Favreau's other arguments are also without merit, we affirm the judgment of conviction.²

BACKGROUND

Michelle Favreau and Keith Miller ("Miller") met in high school in Bennington, Vermont, and, several years later, entered a relationship. On March 3, 1994, Favreau gave birth to the couple's only child, Robert Keith Miller ("Robbie"), and the two were subsequently married. In March 1999, however, the couple divorced and, pursuant to a divorce decree entered by the Vermont Family Court with the consent of all parties, Favreau was awarded legal custody of Robbie. Miller was awarded visitation rights.

Relations between Favreau and Miller degenerated, however, and on April 25, 2000, Favreau obtained an ex parte temporary abuse prevention order from the Probate and Family Court Department of the Massachusetts Trial Court in Pittsfield, Massachusetts ("Massachusetts Family Court") where she had moved with Robbie following the divorce. That order gave Favreau full custody of Robbie on a temporary basis, pending an adversarial hearing. On June 2, following a hearing attended by both parties, the court extended the order for a year, thereby barring Miller from seeing Robbie during that period. Miller moved for reconsideration, however, and, on June 15, 2000, the court modifiedits order to permit Miller two hours of supervised visitation per week. The court further provided that it would review the matter further after six visits had been successfully completed. The parties also agreed that jurisdiction over any further custody proceedings should be in Massachusetts, and the Massachusetts Family Court issued an order to that effect; the Vermont Family Court relinquished jurisdiction accordingly.

The first visit was held according to the terms of the Massachusetts order. Shortly after the first visit, however, Favreau began moving Robbie around the state and country in an effort to stay away from Miller, whom she did not inform of her whereabouts. On May 23, 2001, without notifying Miller, Favreau took Robbie across the Vermont border into Canada. Favreau conceded, at her criminal trial, that she knew at the time she took Robbie across the border that Miller was entitled to at least five additional supervised visits pursuant to the June 15, 2000 order.

Once in Canada, Favreau applied to become a permanent resident, and, after obtaining that status, on September 11, 2002, applied for custody of Robbie in the Superior Court of Quebec, seeking to cancel all of Miller's visitation rights and to obtain child support. Miller, who was served by mail with papers in the Canadian proceeding, moved to dismiss that action for lack of jurisdiction. The Canadian Superior Court denied that motion, finding that its exercise of jurisdiction was in the best interests of the child and granted Favreau custody pending resolution of the case. Proceedings in that court thus continued, and, on February 3, 2005, the Quebec court awarded Favreau custody. Miller appealed that decision, but the Canadian appellate court affirmed it that October.

In Favreau's absence, however, Miller had begun parallel court proceedings in the United States to try to regain custody of Robbie. First, in early 2002, Miller requested that the Massachusetts family court transfer jurisdiction over custody matters back to Vermont, which it did on the ground that Favreau's whereabouts were unknown. Miller then moved in Vermont Family Court to modify custodial rights and to enforce his existing parental rights. Miller also sought to have Favreau held in contempt for violating the court orders already in place. On September 13, 2002 the Vermont court issued a written order granting full custody of Robbie to Miller pending a further evidentiary hearing and holding Favreau in contempt of court. It also issued a bench warrant for Favreau's arrest.

The U.S. Attorney's Office for the District of Vermont then began to pursue a federal criminal prosecution, and, on December 2, 2002, Favreau was indicted in the United States District Court for the District of Vermont on one count of international parental kidnapping in violation of 18 U.S.C. § 1204(a). The indictment covered the period from June 2002 through the date of indictment, December 2, 2002.

In January 2006, Favreau returned to Vermont, leaving Robbie in Canada, and was arrested by federal marshals. She was then transferred to state custody based on the Vermont contempt charge, where she proceeded to move to dismiss that charge on the ground that the Vermont Family Court lacked subject matter jurisdiction over the case when it issued its September 2002 order. The state court denied this motion. Favreau then moved in the Vermont court for relief from the judgment of contempt and for recognition of the Canadian custody order, but that court denied those requests as well. Favreau then appealed to the Vermont Supreme Court.

While that appeal was pending, Favreau was transferred to federal custody so that her federal criminal case could proceed to trial. In light of the pending appeal in state court, Favreau moved to stay her federal case or, in the alternative, to be allowed to introduce evidence of the pending appeal to the jury. The district court denied both requests. With respect to the continuance, the court expressed concern that staying the criminal proceeding pending outcome of the state court appeal would be greatly detrimental to Favreau insofar as she would have to remain incarcerated for an unknown but potentially lengthy period while awaiting her federal criminal trial. With respect to the evidentiary motion, the district court concluded that the pendency of the appeal was of no relevance to the criminal trial and thus that the fact that it was pending was inadmissible.

Favreau's federal trial took place on July 11 and 12, 2007. At trial, the government relied on at least two court orders effective during the period of the indictment to establish Miller's parental rights—the June 2000 Massachusetts Family Court order providing for six supervised visits, and the September 2002 Bennington Family Court order, issued in Favreau's absence, granting Miller full custody. It further adduced testimony establishing that Favreau left the country and remained out of the country with the intent to frustrate those rights. Favreau, who testified on her own behalf, attempted to establish two statutory affirmative defenses: first, that she acted "within the provisions of a valid court order granting [her] custody ... at the time of the offense," and, second, that she was "fleeing an incident of domestic violence." 18 U.S.C. § 1204(c)(1), (2). The jury rejected those defenses and found Favreau guilty of international parental kidnapping. She was sentenced on February 28, 2008, to time served—having remained incarcerated since her return to the United States—and to one year of supervised release.

On August 22, 2008—more than a year after Favreau's trial—the Vermont Supreme Court determined that, although the Vermont Family Court had jurisdiction over Robbie's custody proceedings in September 2002 when it granted full custody to Miller and held Favreau in contempt, it should have declined to exercise that jurisdiction and deferred instead to the Canadian courts. See Miller v. Miller, 184 Vt. 464, 965 A.2d 524, 531-35 (2008). The Vermont Supreme Court therefore reversed the portion of the family court's order denying Favreau's request for recognition of the Canadian judgment. Id. at 537.

DISCUSSION

I.

Before this Court, Favreau contends, first, that the district court erred in excluding evidence of her appeal of the Vermont Family Court's September 2002 order to the Vermont Supreme Court, which was pending at the time of her trial.³ Because we afford district courts "wide latitude ... in determining whether evidence is admissible," SR Int'l Bus. Ins. Co. v. World Trade Ctr. Props., LLC, 467 F.3d 107, 119 (2d Cir.2006)(internal quotationmarks omitted), we review its evidentiary rulings for abuse of discretion, reversing only if we find " 'manifest error,' " Cameron v. City of New York, 598 F.3d 50, 61 (2d Cir.2010) (quoting Manley v. AmBase Corp., 337 F.3d 237, 247 (2d Cir.2003)); see also United States v. Jackson, 335 F.3d 170, 176 (2d Cir.2003).⁴ Indeed, our law makes clear that even where we conclude that an evidentiary ruling was "manifestly erroneous," we will nonetheless affirm if the error was "harmless"—that is, if we can conclude...