U.S. v. Ventre

• Decision Date: 11 August 2003
• Docket Number: No. 01-50616.,01-50616.
• Citation: 338 F.3d 1047
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carlo Alberto VENTRE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1047

338 F.3d 1047

UNITED STATES of America, Plaintiff-Appellee, v. Carlo Alberto VENTRE, Defendant-Appellant.

No. 01-50616.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 12, 2003 — Pasadena, California.

Filed August 11, 2003.

Jerry Sies of Los Angeles, California, for the defendant-appellant.

Miriam A. Krinsky and Elaine Lu of Los Angeles, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Stephen V. Wilson, District Judge, Presiding. D.C. No. CR-00-00015-SVW-01.

Before Betty B. Fletcher, Michael Daly Hawkins, Circuit Judges, and David C. Bury, District Judge.^*

OPINION

BETTY B. FLETCHER, Circuit Judge:

This action arises out of a custody dispute between Toni Dykstra ("Dykstra"), a United States citizen, and Carlo Ventre ("Ventre"), an Italian citizen, over their daughter after their relationship ended. When Ventre took the child to Italy in contravention of a stipulated custody order, Dykstra successfully petitioned for the child's return to the United States under the Convention on the Civil Aspects of International Child Abduction, adopted Oct. 25, 1980, T.I.A.S. No. 11670 ("Hague Convention"). After the child and Ventre returned to the United States, a federal grand jury indicted him on one count of kidnapping in violation of the International Parental Kidnapping Crime Act of 1993, 18 U.S.C. § 1204, ("IPKCA"). Ventre pled guilty to the charge pursuant to a plea agreement that contained a limited waiver of appeal. Ventre appeals contending that the district court lacked jurisdiction to accept the plea under the IPKCA. We have jurisdiction pursuant to 28 U.S.C. § 1291 to decide whether the return of the child pursuant to civil proceedings under the Hague Convention forecloses criminal prosecution under the IPKCA. We agree with the district court and hold that prosecuting an individual under the IPKCA after a child is returned to the United States pursuant to Hague Convention proceedings "does not detract from the Hague Convention."

BACKGROUND

I. Factual Summary

In November 1995, Dykstra and Ventre had a daughter together. Approximately nine months later, Dykstra and Ventre separated. Shortly thereafter, a custody battle ensued. A California Superior Court judge entered a stipulated custody order granting joint legal custody of the child to both parents, but physical and primary custody to Ventre. Pursuant to the custody order, Ventre could not take the child out of Los Angeles County except for emergency and vacation purposes, and he was required to provide Dykstra with written notification at least three days prior to departure. Moreover, the custody order specifically prohibited the change of the child's residence to Italy.

On January 16, 1998, Ventre took the child to Italy without the consent of Dykstra. Ventre knowingly retained the child in Italy for the purpose of obstructing Dykstra's lawful exercise of her parental rights. Ventre did not provide Dykstra with an address or residential telephone number in Italy.

Dykstra filed an Order to Show Cause in California Superior Court in an attempt to regain custody of the child and to secure an order for the child's return. When Ventre failed to appear for the Order to Show Cause hearing, on March 27, 1998, a California Superior Court judge granted sole legal and physical custody of the child to Dykstra. Upon receiving sole custody of the child, Dykstra filed an application for assistance under the Hague Convention, to which both the United States and Italy are signatories.

Since Ventre put a former address on his Italian national identity card and used a non-existent address when he registered for cellular telephone service in Italy, the Italian police were not able to locate him until July of 1998. The Italian police finally located Ventre when he was involved in a public, unrelated verbal altercation with another individual.

Shortly thereafter, the Court of Minors in Rome convened to determine whether the child had been brought to Italy in violation of the Hague Convention. In July 1998, the Court of Minors of Rome found that the child "was brought to Italy by the father without the consent of the mother and without communicating the new address." Applying the Hague Convention, the Court of Minors ordered that the child be returned immediately to California.

Upon receiving a favorable decision from the Court of Minors, Dykstra, who had come to Italy, planned to depart immediately with the child. However, when Italian authorities attempted to procure the child from Ventre's residence, they discovered that she was ill and required hospitalization. Therefore, Dykstra's and the child's departure from Italy was delayed. On July 28, 1998, one day prior to their scheduled departure from Rome, Dykstra was found dead at the home of Ventre.¹ Upon the death of her mother, the child was placed in foster care in Italy, where she remained for approximately fifteen months.

In May 1999, a warrant was issued by the Los Angeles Superior Court for Ventre's arrest on charges of international parental kidnapping. The Los Angeles Superior Court granted temporary legal and physical custody of the child to her maternal grandfather, Milton Dykstra. In August 1999, the Superior Court ordered that Milton Dykstra be substituted as the petitioner in the Hague Convention order for presentation to the court in Italy. In November 1999, the Court of Minors in Rome ordered that the child be returned to California with her grandfather, and shortly thereafter, she returned to California to live with her maternal grandparents. Subsequently, a California court granted joint custody to Ventre's brother and Milton Dykstra.

II. Procedural Summary

In January 2000, a federal grand jury indicted Ventre on one count of kidnapping under subsection (a) of the IPKCA, 18 U.S.C. § 1204(a). Ventre moved to dismiss the indictment for lack of jurisdiction claiming that section (d) of the IPKCA prohibits application of subsection (a) in this case. The district court denied the motion. The court found that invoking and successfully using the Hague Convention to regain the child did not deprive it of jurisdiction to convict Ventre of kidnapping under the IPKCA. Pursuant to a plea agreement, Ventre withdrew his plea of not guilty to the single count charged in the indictment in exchange for a prison term of 364 days. Ventre appeals his conviction for lack of jurisdiction.

Ventre was sentenced to 364 days of imprisonment and one year of supervised release. Ventre completed his sentence on April 8, 2002. Ventre's supervision should have ended in April 2003. At present, Ventre is in INS custody pursuant to a detainer.²

DISCUSSION

I.

Although Ventre's supervised release should have ended, he claims that a conviction under the IPKCA will have collateral consequences on his immigration status, as well as his ability to regain custody of his daughter. The case or controversy provision in Article III, Section 2 of the United States Constitution requires that throughout a litigation, Ventre "must have suffered, or be threatened with, an actual injury traceable to the [United States] and [that injury is] likely to be redressed by a favorable judicial decision." Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). The Supreme Court has held that an appeal is not necessarily moot once a petitioner is released from custody because he may suffer other collateral consequences. See Spencer v. Kemna, 523 U.S. 1, 7-8, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). As the Supreme Court found in Fiswick v. United States, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196 (1946), Ventre's conviction may have immigration consequences. Id. at 222, 67 S.Ct. 224. In Sibron, the Supreme Court noted that "most criminal convictions do in fact entail adverse legal consequences," id. at 55, 88 S.Ct. 1889, and held that "a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction," id. at 57, 88 S.Ct. 1889. Ventre challenges his underlying conviction, and it has not been shown that no consequences will be imposed as a result of his conviction. Therefore, Ventre has a live case or controversy that is likely to be redressed by a favorable judicial decision.

II.

We have jurisdiction to determine whether we have jurisdiction. Aragon-Ayon v. INS, 206 F.3d 847, 849 (9th Cir.2000). The right to appeal is statutory and a waiver of this right is enforceable if made knowingly and voluntarily. United States v. Bolinger, 940 F.2d 478, 480 (9th Cir.1991). Whether a defendant has waived his statutory right to appeal by entering into a plea agreement and the waiver's validity are reviewed de novo. United States v. Nguyen, 235 F.3d 1179, 1182 (9th Cir.2000); United States v. Littlejohn, 224 F.3d 960, 964 (9th Cir.2000).

Despite the plea, if the district court lacked jurisdiction to convict, "the indictment would fail to state an offense against the United States and the district court would be deprived of jurisdiction." United States v. Ruelas, 106 F.3d 1416, 1418 (9th Cir.1996) (quoting United States v. Mitchell, 867 F.2d 1232, 1233 n. 2 (9th Cir.1989)). A claim is jurisdictional and therefore appealable if "the claim can be resolved by examining the face of the indictment or the record at the time of the plea without requiring further proceedings." United States v. Caperell, 938 F.2d 975, 977 (9th Cir.1991); United States v. Montilla, 870 F.2d 549, 552 (9th Cir.1989), amended at 907 F.2d 115 (9th Cir.1990). Ventre's claim may be resolved by examining the indictment and the relevant statute. Caperell, 938 F.2d at 978. Accordingly, appellate review is proper to determine whether the district court had jurisdiction. Id.

Although...