United States v. Patel
| Decision Date | 18 February 2022 |
| Docket Number | Crim. 20-613 (RMB),Dkt. 21 |
| Parties | UNITED STATES OF AMERICA, v. AMITKUMAR KANUBHAI PATEL |
| Court | U.S. District Court — District of New Jersey |
There is a five-year old boy across the ocean, in Gujarat, India asking his grandparents with whom he now lives why the United States took his father away from him over one and a half years ago. This Court has the same question.
The following facts are taken from the parties' submissions. On May 2, 2017, the Superior Court of the State of New Jersey, Chancery Division, Family Part (“State Court”) entered an Order granting the boy's father the defendant Amitkumar Kanubhai Patel (“Defendant”), “sole legal custody” (referred to herein as the “May 2017 Order”) (Ex. B, Dkt. No. 21-2 at 11-14).[1] The May 2017 Order, signed and agreed to by both parents, allowed the mother, Poonamben Ambalal Patel (“Poonamben”), who was not married to Defendant, “to file for joint legal custody if she so chooses in the future” and provided for “parenting time as agreed by the parties.” (Ex. B, Dkt. No. 21-2 at 11-14). The May 2017 Order did not establish any specific terms for Poonamben's parenting time (i.e., did not set forth any specific date(s) or time(s) on which Poonamben would be allowed to spend time with her child).
(Ex. A, Dkt. No. 21-2 at 5, ¶¶ 3, 6.)
In July 2017, Defendant moved to India with his son.[2] (Defendant's Mem. Of Law in Supp. of Pre-Trial Motions (“Def's Mem.”), Dkt. No. 21-1 at 4-5.) Defendant contends that Poonamben never wanted to be involved in their child's upbringing, but instead that it would be a burden on her and impair her ability to find a husband. (Def's Mem., Dkt. No. 21-1 at 4.) Poonamben therefore agreed to let Defendant move with the child to India, to be raised by Defendant with assistance from his parents in a stable family environment. (Id. at 4.) Defendant further contends that Poonamben knew he was moving permanently to India with her permission because: a) she moved into Defendant's vacated apartment; b) she retained access to his furniture in storage; c) she had a transfer title form to Defendant's car that he had left for her; and d) she knew that when the lease expired, she would move in with her aunt. Finally, he claims that Poonamben helped him obtain a passport and visa and purchase one way airline tickets for their child. (Id.)
Defendant and his son remained with his family in India for more than a year, without hearing from Poonamben or any member of her family, including her parents who lived about 30 kilometers away from Defendant's village in India, according to Defendant. (Id. at 5.) The maternal family did not attempt to visit, make phone calls or send birthday cards or gifts at any time. (Id.) In those fourteen months, their son was cared for by Defendant and his parents, and he was enrolled in daycare and various sports and other activities. (Id. at 5.) In addition to not contacting Defendant to arrange for a visit with the child, for fourteen months Poonamben made no attempts to modify the May 2017 Order.
Defendant ascribes an ulterior motive on the part of Poonamben. He claims that she wants to stay in the United States and obtain citizenship. For this reason, Defendant asserts that the bogus kidnapping charges filed against him all are part of Poonamben's calculated scheme to obtain a U-Visa and stay in the United States. (Id. at 5.)[3] Poonamben tells a different story. She contends that Defendant wanted to take the child to India to see his parents and to obtain DNA testing, which was necessary for their child to claim property owned by Defendant's family in India. (Mem. of the United States in Opp. to Defendant's Pretrial Motions and in Supp. of its Motion for Reciprocal Discovery (“Government's Mem.”) Dkt. No. 34 at 4-5.) Poonamben contends Defendant told her that he needed sole legal custody of the child to obtain a Visa for him, and they would need to go to court and assert it was their mutual agreement for Defendant to have sole legal custody. (Id. at 5.)
According to Poonamben, Defendant told her to tell the Family Court in 2017 that she did not have a work permit, was unemployed, and could not care for their son. (Id.) Poonamben claims several things: she was unrepresented at the Family Court hearing on May 1, 2017; the majority of the hearing was conducted in English without a translator; her English was very limited; and she answered the Court's questions in the manner Defendant had instructed her. (Id.) Poonamben maintains that Defendant told her the trip to India was only for two weeks. (Id.)
Poonamben further contends that she tried to contact Defendant using the phone app “WhatsApp” to learn if Defendant and the child had arrived in India safely but with no response. (Id.) Eventually, a friend of Poonamben's was able to contact Defendant, and he called Poonamben and said they were not returning to the United States. (Id. at 6.)
Fourteen months after Defendant moved to India with his son, on September 17, 2018, Poonamben petitioned the New Jersey Superior Court to “change custody to joint custody.” (Ex. K, Dkt. No. 26-1 at 4, ¶ 3.) In her certification in support of her petition, she stated that she had agreed to allow Defendant to take their son to India for one month to meet the rest of his family and that Defendant needed sole custody to get their son a Visa for travel. (Ex. L, Dkt. No. 26-2 at 5, ¶¶ 13, 15.) In describing the May 2, 2017 Family Court hearing, Poonamben said, in relevant part:
[A court authorized staff member by the name of Brindasreevatsava] asked me if I understand that I am giving up all my rights once I give [Defendant] sole custody. I answered “yes I do.” [] The Court member asked me when I was going to see my son[, ] would it be every week or every month. The Plaintiff and I answered we have a mutual understanding.
(Ex. L, Dkt. No. 26-2 at 6, ¶¶ 17, 18.)
According to Defendant, from the time he left the United States, the first communication he received from Poonamben was in September 2018 in India. (Def's Mem., Dkt. No. 21-1 at 6.) Defendant received “some sort of documentation” scheduling a family court hearing in New Jersey. (Id.) It is unclear what documents were actually received by Defendant - all that he remembers is that he received some sort of summons and immediately contacted the Family Court in New Jersey on two occasions - September 19, 2018, and September 24, 2018. (Def's Mem., Dkt. No. 21-1 at 6.)
In those conversations (recorded by the Family Court, see transcripts at Exhibits D and E, Dkt. No. 21-3 at 1-18), Defendant asked the purpose of the hearing and what date it would be held. Defendant related to the Family Court representative that he and his son reside in India, that he had a Custody Agreement granting him sole legal custody, and there was a New Jersey Family Court Order dated May 2, 2017, also granting him sole custody. The Family Court representative told him they would go through the file and get back in contact with him. Defendant provided his current email address, physical mailing address and telephone number in India. He also explained his position regarding custody and his intention to continue residing in India with his son.
According to Defendant, he did not hear from the Family Court again. (Def's Mem., Dkt. No. 21-1 at 6-7.) Concerned, he alleges, he filed an application for sole custody and in his local court in Sinor, India, in November 2018. (Id. at 7.) He wrote a detailed letter enclosing a copy of the petition on February 25, 2019, and the documents were mailed to the New Jersey Family Court, as well as Poonamben. (Id.) Counsel provided copies of these documents that bear the stamp “Received” by the New Jersey Family Court on March 7, 2019. (Exhibit F, Dkt. No. 21-3 at 21-34.)
Meantime, on October 16, 2018, the New Jersey State Court entered an Order that directed Defendant “to return the child to the United States immediately” (the “Return Order”) but, importantly, the Return Order did not grant Poonamben's September 17 petition for visitation and custody. (Exhibit G, Dkt. No. 21-4 at 4.) According to the United States, Poonamben's counsel e-mailed the Return Order to Defendant on October 19, 2018. (Government's Mem., Dkt. No. 34 at 6.) Defendant appears to dispute that he ever received the Return Order.
Over one year later, on September 27, 2019, the United States Attorney's Office for the District of New Jersey presented a Criminal Complaint against Defendant charging him with one count of a violation of 18 U.S.C. § 1204, commonly known as the International Parental Kidnapping Crime Act or “IPKCA”, for his failure to comply with the Return Order when he allegedly received notice of it on October 19, 2018. (Government's Mem., Dkt. No. 34 at 7.) The Complaint was sworn out by an agent of the Federal Bureau of Investigation. (Dkt. No. 1.) The Court, the Honorable Ann Marie Donio, United States Magistrate Judge, issued a sealed warrant for the Defendant's arrest. (Dkt. No. 2.)
On July 22, 2020, a grand jury...
To continue reading
Request your trial