United States v. Miller, No. 13–822–cr.

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: SUSAN L. CARNEY, Circuit Judge
• Citation: 808 F.3d 607
• Parties: UNITED STATES of America, Appellee, v. Kenneth L. MILLER, Defendant–Appellant.
• Docket Number: No. 13–822–cr.
• Decision Date: 16 December 2015

808 F.3d 607

UNITED STATES of America, Appellee,
v.
Kenneth L. MILLER, Defendant–Appellant.

No. 13–822–cr.

United States Court of Appeals, Second Circuit.

Argued: Jan. 27, 2014.
Decided: Dec. 16, 2015.

808 F.3d 609

David J. Williams (Brooks G. McArthur, on the brief), Jarvis, McArthur & Williams, LLC, Burlington, VT, for Defendant–Appellant Kenneth Miller.

Eugenia A.P. Cowles, Assistant United States Attorney (Paul Van De Graaf and Gregory L. Waples, Assistant United States Attorneys, on the brief), for Tristam J. Coffin, United States Attorney for the District of Vermont, Burlington, VT, for Appellee the United States of America.

Before: CABRANES, CARNEY, and DRONEY, Circuit Judges.

SUSAN L. CARNEY, Circuit Judge:

In this appeal, we consider whether venue for a criminal prosecution may lie pursuant

808 F.3d 610

to 18 U.S.C. § 3238, the "high seas" venue statute, when certain essential offense conduct is committed outside of the jurisdiction of the United States, but other offense conduct is committed within. We answer that it may.

BACKGROUND

Defendant–Appellant Kenneth Miller ("Kenneth"),¹ an Amish Mennonite minister and resident of Virginia, was convicted by a jury sitting in the United States District Court for the District of Vermont (William K. Sessions III, Judge ) of one count of aiding and abetting the removal of a child from the United States with the intent to obstruct the lawful exercise of parental rights, in violation of the International Parental Kidnapping Crime Act (the "Act"), see 18 U.S.C. §§ 1204, 2. The child in question was the daughter of one of Kenneth's acquaintances, Lisa Miller ("Lisa"), and Janet Jenkins ("Janet"), Lisa's former civil union partner under Vermont law. The statement of facts set forth below is drawn principally from the evidence presented at Kenneth's criminal trial in August 2012. The material facts are not disputed.

A. Lisa and Janet's Civil Union, Separation, and Custody Dispute

In 2000, while residing in Virginia, Lisa and Janet entered into a civil union in Vermont. In April 2002, while both were still residing in Virginia, Lisa gave birth in Virginia to a daughter, "IMJ." Under Vermont law, both Lisa and Janet are IMJ's lawful parents. A few months after IMJ's birth, in the summer of 2002, Lisa, Janet, and IMJ moved from Virginia to Fair Haven, Vermont.

In the fall of 2003, Lisa and Janet separated. Lisa left Vermont and returned to Virginia, taking IMJ with her. Janet remained in Vermont.

In November 2003, Lisa filed a petition for divorce in Family Court in Rutland, Vermont, seeking formal dissolution of her civil union with Janet and custodial rights over IMJ. In June 2004, that court granted Lisa temporary physical and legal rights, subject to certain visitation rights in Janet.

In July 2004, Lisa petitioned the Circuit Court of Frederick County, Virginia, seeking a decree that she was "the sole parent of" and had "sole parental rights over" IMJ and that any parental rights claimed by Janet were "nugatory, void, illegal and/or unenforceable." See Miller–Jenkins v. Miller–Jenkins, 49 Va.App. 88, 637 S.E.2d 330, 332 (2006) (internal quotation marks omitted). In 2008, after protracted litigation in the Virginia courts, the Supreme Court of Virginia affirmed that Vermont's courtsand not Virginia's had jurisdiction over Lisa and Janet's custody dispute. See Miller–Jenkins v. Miller–Jenkins, 276 Va. 19, 661 S.E.2d 822, 825, 827 (2008).

Meanwhile, in September 2004, after Janet reported to the Vermont Family Court that Lisa had failed to allow Janet her scheduled contact with IMJ, that court held Lisa in contempt. Two years later, in December 2006, the court again held Lisa in contempt for failing to comply with its visitation orders.

In June 2007, the Family Court entered a final order dissolving Lisa and Janet's civil union, in resolution of Lisa's 2003 petition. In conjunction with the dissolution order, and calling the matter a "close case" in light of the "continued interference with the relationship between IMJ

808 F.3d 611

and Janet," the court assigned Lisa sole physical and legal custody of IMJ, subject to limited visitation rights in Janet. Transcript of Criminal Trial, United States v. Miller (Aug. 8, 2012) at 65–66, 68; see Miller–Jenkins v. Miller–Jenkins, 189 Vt. 518, 12 A.3d 768, 772 (2010). After their civil union was dissolved, Lisa continued to disregard the court's visitation orders: As the Vermont Supreme Court later noted, the Family Court held Lisa in contempt on a total of seven occasions between 2007 and 2010 for violating the court's parent-child contact orders. Id. at 773.

Citing the repeated contempt rulings entered by then, in August 2009 Janet returned to Vermont Family Court seeking transfer from Lisa to herself of primary parental rights and responsibilities for IMJ. Janet's motion was pending in Vermont when, in the fall of 2009, and without warning to Janet, Lisa absconded from the United States with IMJ.

B. Lisa's Removal of IMJ from the United States

On September 21, 2009, accompanied by a person identified only as "Philip," Lisa and IMJ traveled by car from their home in Lynchburg, Virginia, through Maryland and Pennsylvania, to Buffalo, New York. On September 22, Lisa and IMJ crossed the international border from Buffalo into Canada by taxi. Later that day, Ervin Horst, a Mennonite pastor from Ontario, Canada, drove Lisa and IMJ to the Toronto airport. From there, Lisa and IMJ flew to Mexico City, proceeding next by air from Mexico through El Salvador, and then to Managua, Nicaragua. The record before us does not reflect any subsequent re-entry by them into the United States.

C. Proceedings in the District Court

On November 18, 2011, a little over two years after Lisa and IMJ quit the United States, the government filed a criminal complaint in the District of Vermont, charging Kenneth with aiding and abetting Lisa's alleged violation of the Act.² The government's theory was that Kenneth organized Lisa's departure from the United States with IMJ by arranging for their travel from Lynchburg, Virginia, to Nicaragua; engaging the individuals who accompanied and assisted them in their travels; and planning for their reception in Nicaragua.

When he was charged, Kenneth had been serving as a missionary in Ireland since the summer of 2010. Kenneth voluntarily returned from Ireland to Vermont to face the charges filed there. He was arrested in Vermont on December 6, 2011.

On December 15, 2011, a federal grand jury sitting in Burlington, Vermont, returned a one-count indictment against him. The Grand Jury charged as follows:

From on or about September 21, 2009 to on or about September 23, 2009, in the District of Vermont and elsewhere, defendant KENNETH L. MILLER aided and abetted Lisa Miller in the removal of a child from the United States with the intent to obstruct the lawful exercise of parental rights.

(18 U.S.C. §§ 1204 and 2)

J.A. 23. Kenneth entered a plea of not guilty.

Kenneth then moved to dismiss the indictment for, inter alia, improper venue. As to venue, he contended principally that venue in Vermont was improper because he personally was not alleged to have committed any criminal act there. The government

808 F.3d 612

opposed the motion, maintaining that venue was proper by reference either to where he acted or to where Lisa acted, and that the evidence at trial would establish that venue in Vermont was proper under either of two venue statutes: § 3237 or § 3238 of title 18.

Section 3237, "Offenses begun in one district and completed in another," allows venue to be set "in any district in which such offense was begun, continued, or completed." 18 U.S.C. § 3237(a). The government submitted that § 3237 could support venue in Vermont because the act that it cast as the "most significant" of the international kidnapping that Kenneth was alleged to have aided and abetted—Lisa's removal of IMJ from the jurisdiction of the Vermont Family Court, in obstruction of Janet's parental rights as established by that court—took place in Vermont. J.A. 90.

The government also asserted that venue in Vermont would lie under 18 U.S.C. § 3238. Section 3238, "Offenses not committed in any district" (and sometimes referred to as the "high seas" statute, see, e.g., United States v. Pace, 314 F.3d 344, 349 (9th Cir.2002) ), lays venue for "trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, ... in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought." As to § 3238, the government argued that, because the crux of the underlying offense conduct—that is, Lisa's removal of IMJ from the United States and into Canada—occurred outside of the jurisdiction of any particular State or district, venue lay in Vermont, where Kenneth was arrested.

The District Court denied Kenneth's motion to dismiss, concluding preliminarily that...