United States v. Mobley

• Decision Date: 21 August 2020
• Docket Number: No. 19-3122,19-3122
• Citation: 971 F.3d 1187
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Bogdana Alexandrovna MOBLEY, a/k/a Bogdana Alexandrovna Osipova, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

971 F.3d 1187

UNITED STATES of America, Plaintiff - Appellee,

v.Bogdana Alexandrovna MOBLEY, a/k/a Bogdana Alexandrovna Osipova, Defendant - Appellant.

No. 19-3122

United States Court of Appeals, Tenth Circuit.

FILED August 21, 2020

Katryna Lyn Spearman (Joshua Sabert Lowther with her on the briefs), of Lowther Walker LLC, Atlanta, Georgia, for Defendant-Appellant.

Jason W. Hart, Assistant United States Attorney (Stephen R. McAllister, United States Attorney, with him on the briefs), Wichita, Kansas, for Plaintiff-Appellee.

Before HOLMES, SEYMOUR, and PHILLIPS, Circuit Judges.

PHILLIPS, Circuit Judge.

In April 2014, a pregnant Bogdana Alexandrovna Osipova¹ took her young son and daughter to Russia, leaving behind ongoing divorce proceedings in Kansas. By doing so, Osipova deprived Brian Mobley, her soon-to-be ex-husband and the father of her daughter and unborn child, of his joint-custody rights under the Kansas court's temporary custodial order. In Russia, Osipova soon gave birth to a girl and instituted her own divorce proceedings. The Russian court ordered Mobley to pay monthly child support. But by then the Kansas court had already awarded Mobley full custody of their two daughters, and he steadfastly refused Osipova's requests that he pay the Russian court-ordered child support. Eventually, in September 2017, Osipova returned alone to the United States on an ill-fated quest to modify the Kansas order. The FBI promptly arrested Osipova, and she has been incarcerated since.

The government prosecuted Osipova for international parental kidnapping, 18 U.S.C. § 1204, and extortionate interstate communications, 18 U.S.C. § 875(b). A jury convicted Osipova, and the district court sentenced her to three years on her parental-kidnapping conviction (the statutory maximum) and to seven years on each of her extortionate-communications convictions, all to run concurrently.

On appeal, Osipova argues that the federal district judge should have dismissed the indictment and recused himself from her sentencing. We reject these arguments. But Osipova also argues that insufficient evidence supports her § 875(b) convictions and that the court erred by awarding Mobley restitution for attorney's fees he incurred attempting to obtain physical custody of their two daughters. On these arguments, Osipova succeeds. Exercising jurisdiction under 18 U.S.C. § 3742(a)(1) and 28 U.S.C. § 1291, we affirm in part and reverse in part. We vacate Osipova's § 875(b) convictions and the restitution order, and remand for resentencing.

BACKGROUND

Osipova was born in Russia. In 2003, as an adult, she immigrated to New York where she married. This first marriage ended in a divorce in 2008 but produced a son over whom Osipova has full custody. In June 2011, Osipova briefly joined the Air Force Reserve where she met Mobley, her recruiter, and they struck up a romantic relationship. When the Air Force transferred Mobley to Wichita, Kansas, Osipova followed, and they married there in January 2013. That same month, they had a daughter, S.M. But fourteen months later Mobley filed for divorce. The Kansas state court entered a temporary order awarding the parents joint custody over S.M. Under this order, Osipova retained the marital residence at Mobley's expense and Mobley had to pay child support.

But Osipova, then about six months pregnant with their second child, did not want a divorce. According to Mobley, she threatened to return to Russia with S.M. if he did not drop the divorce. Though Mobley was concerned that Osipova would take S.M., he proceeded with the divorce. Then, "[o]n or about April 2, 2014," Osipova, about seven months pregnant, flew to Russia with S.M. and her son. Appellant's App. at 17. About two months later, Osipova gave birth to a girl.

Meanwhile, the Kansas divorce proceedings continued. Two weeks after Osipova left for Russia (so before she gave birth), the Kansas court held a hearing, at which Osipova's counsel was present. The court awarded Mobley full custody of S.M. And in December 2014, after Osipova gave birth, the court granted the divorce, awarded Mobley primary physical and sole legal custody of both girls, and ordered Osipova to return the girls to Mobley's custody. Osipova did not heed this order. By then, a Russian court had already granted her a divorce. And, in the spring of 2015, the Russian court awarded Osipova child support and residential custody of the girls.

Mobley's position in the military prevented him from traveling to Russia, so he tried to establish and maintain a relationship with his daughters via telephone and video calls. In January 2015, he went to Poland to meet Osipova and the girls at the Poland–Russia border, but Osipova showed up alone. After this, Mobley continued to use technology to try to communicate with his daughters—then, a toddler and an infant—and Osipova conditioned the requested communications on his paying the Russian court-ordered child support. But Mobley refused to financially support his daughters unless Osipova returned them to the United States. From November 2016 until her arrest, Osipova denied Mobley direct communication with their daughters.

In September 2017, Osipova left her children in Russia and traveled to Kansas to petition the court for sole legal custody of her daughters. The FBI quickly arrested her on a federal criminal complaint that charged international parental kidnapping, 18 U.S.C. § 1204, for allegedly removing S.M. to and retaining her in Russia. About two weeks later, a federal grand jury issued an indictment charging a single count, international parental kidnapping. Nine months later, the government filed a five-count superseding indictment (the "indictment") that added four counts of extortionate interstate communications, 18 U.S.C. § 875(b), based on Osipova's allegedly threatening to kidnap S.M. (by continuing to retain her in Russia) while intending both to obstruct Mobley's parental rights and to extort money or things of value.

On the eve of her trial, Osipova moved to dismiss the indictment "because of its lack of specificity." Appellant's App. at 21. The Kansas federal district court denied Osipova's motion, concluding that the indictment met the applicable legal requirements and that Osipova faced no prejudice. So Osipova went to trial, conceding her guilt on the international-parental-kidnapping count but adamantly denying any intent to extort money or things of value in exchange for placing S.M. in Mobley's physical custody in the United States. Osipova also maintained that her communications lacked any "threat to kidnap," an element of the charged extortionate-communication crime. See 18 U.S.C. § 875(b). The jury returned guilty verdicts on the international-parental-kidnapping count and on two of the four extortionate-communication counts. Osipova timely moved the court to acquit her of the extortionate-communication convictions or, alternatively, to grant a new trial on those counts (2 and 3), again arguing that her communications lacked any threat to kidnap and implicitly denying any intent to extort. The relevant communications are provided here:

Count 2 (Skype messages from August 27, 29, and 30, 2015)

Mobley (August 27 ): "Can I please Skype with the kids?"

Osipova: "Can you please pay for the girls’ Montessori class?"

Mobley: "So you are saying that I cannot see my children unless I give you money?"

Osipova: "So I am saying that we live in Russia. I am 100 percent in compliance with Russian court orders, in which I have full custody and you have visitation rights. You are also ordered to pay one-third of your total income to me as child support for [redacted] and [redacted] every month until they reach their 18th birthday. You are supposed to start making payments in November of 2014. Now is August 2015 and I didn't receive not one payment from you. You missed 10 child support payments by now. And it's no[t] going to go away. It'll just going to built up! You can and should see your children, Brian! You also should start to make child support payments ASAP.

Mobley (August 29 ): "Can I Skype with the kids?"

Osipova: "Yes, you can. You can also transfer the child support to my PayPal."

Mobley: "When can I talk to them?"

Osipova: "As soon as you'll start making child support payments."

Mobley: "And I told you that I am not sending you a dime until you bring them back to the U.S. I am done sending you money."

Osipova: "And that's the answer to your question then."

Osipova (August 30 ): "If you want us back in the U.S. next year, you'll have to provide housing, car, and return all of my furniture, unless you'll decide to buy us a new one, then you can keep mine."²

Count 3 (Skype message from November 21, 2015 ):

Osipova: "We are not going to play your games, Brian. I didn't hide kids from you. You know where we live and you can have relationship with them. However, we have only few options that we are going to go. Since your children reside in Russia and Russian family court appointed for the children certain child support, which you are not paying for the whole year now, you can go ahead and start honoring the court order and support our children. The second route is that you can figure out and offer your amount of money as a child support for your two daughters that I raise on my very own without a penny from their father (you) the amount that you will be paying every month to raise our daughters. And I don't care if you save anything and put it in their account for when they grow up. I am talking about child support that you should pay now every month until they reach 18 years old. If we come to an agreement or if you decide to go ahead and honor the Russian child support order we can establish schedule that will be convenient for our daughters and you to Skype on regular basis, maybe meet in Poland every half a year or so, et cetera. And, of course, there is one more route, which is if you decide to neglect our daughters and not be financially involved in

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