United States v. Zodhiates

• Decision Date: 14 February 2017
• Docket Number: 14–CR–175–RJA
• Parties: UNITED STATES of America, v. Philip ZODHIATES, Defendant.
• Court: U.S. District Court — Western District of New York

235 F.Supp.3d 439

UNITED STATES of America,

v.Philip ZODHIATES, Defendant.

14–CR–175–RJA

United States District Court, W.D. New York.

Signed February 14, 2017

Kathleen Ann Lynch, United States Attorney's Office, Buffalo, NY, for United States of America.

DECISION AND ORDER

HONORABLE RICHARD J. ARCARA, UNITED STATES DISTRICT JUDGE

This case is before the Court on Defendant Philip Zodhiates's renewed motion for a judgment of acquittal, pursuant to Federal Rule of Criminal Procedure 29, as well as his motion for a new trial, pursuant to Rule 33. See Docket No. 127 (Zodhiates Br.) For the reasons stated below, both motions are denied.

BACKGROUND

A. The evidence introduced at trial

After a seven-day jury trial, Zodhiates was convicted of conspiracy, in violation of 18 U.S.C. § 371 ; and international parental kidnapping, in violation of 18 U.S.C. §§ 1204 and 2. The Court assumes familiarity with the evidence introduced at trial and therefore recites only the facts necessary to provide background for Zodhiates's post-trial motions. Further, because the jury found Zodhiates guilty of both counts in the superseding indictment, the Court recites the facts "in the light most favorable to the government and draw [s] all reasonable inferences in its favor." United States v. Guadagna , 183 F.3d 122, 125 (2d Cir. 1999).

Stated very generally, the evidence introduced at trial showed that, in 2009, Lisa Miller and Janet Jenkins were in the midst of a bitter and lengthy custody dispute over their daughter, Isabella Miller-Jenkins.¹ From the time the custody litigation began, Miller had custody of Isabella, while Jenkins had visitation rights.²

Beginning in 2008 (see Def. Ex. 4) and continuing throughout 2009, Zodhiates became aware of Miller and Jenkins's custody dispute. Specifically, in the months leading up to September 2009, Zodhiates received a number of emails from both Miller's supporters (some of which were sent on Miller's behalf) and Liberty Counsel, a public interest law firm representing Miller in the custody litigation. The Court describes many of those emails below, but in general, they provided relatively detailed updates on the status of the custody litigation. Many emails, for instance, discussed Jenkins's scheduled visits with Isabella, as well as Jenkins's efforts to obtain custody of Isabella.

As September 2009 approached, it appeared increasingly likely to those following the litigation that Judge William Cohen, the Vermont Family Court Judge presiding over Isabella's custody dispute, would transfer custody of Isabella from Miller to Jenkins. Zodhiates learned this fact by way an August 27, 2009 email. See Gov't Ex. 34. Less than two weeks later, however, Judge Cohen deferred ruling on Jenkins's motion to transfer custody; instead, he ordered a visit between Jenkins and Isabella for the end of September. Zodhiates learned this fact, again, by way of email. See Gov't Ex. 35.

On September 21, 2009—just days before Jenkins was to have her court-ordered visit with Isabella—Zodhiates drove Miller and Isabella from their home in Virginia to Buffalo, New York. Once in Buffalo, Miller and Isabella (who were now dressed in Mennonite garb) took a taxi to Niagara Falls, Ontario. From Niagara Falls, Miller and Isabella were driven to Toronto. And from Toronto, Miller and Isabella took the first in a series of flights that ultimately brought them to Managua, Nicaragua.

The evidence also showed that, following Isabella's removal, Zodhiates helped Miller and Isabella settle in Nicaragua. For instance, shortly after Isabella's removal, Zodhiates coordinated with others to remove a number of Miller's and Isabella's personal items from their apartment. See Gov't Exs. 41, 44, 47a. And in November 2009, Zodhiates arranged for an acquaintance who was traveling to Nicaragua to bring with him two suitcases of supplies that were to be delivered to Miller. See Gov't Ex. 49a.

B. The charges in the superseding indictment

Zodhiates went to trial on a two-count superseding indictment. Count 1 charged that Zodhiates and others conspired to violate the International Parental Kidnapping Crime Act (IPKCA), 18 U.S.C. § 1204, by removing Isabella from the United States and/or retaining her outside the United States. Count 2 charged Zodhiates with substantively violating, or aiding and abetting a violation of, the IPKCA.

The central dispute at trial was whether the Government proved Zodhiates's intent beyond a reasonable doubt. The IPKCA makes it a crime to remove a child from the United States, or to retain a child outside the United States, "with intent to obstruct the lawful exercise of parental rights." 18 U.S.C. § 1204(a). The IPKCA defines the term "parental rights" as "the right to physical custody of the child—(A) whether joint or sole (and includes visiting rights); and (B) whether arising by operation of law, court order, or legally binding agreement of the parties." 18 U.S.C. § 1204(b)(2).

Because Jenkins' parental rights changed in late 2009—when the most significant conduct in this case occurred—the Court issued two pretrial rulings that identified the particular parental rights at issue for each count in the superseding indictment. As to Count 1 (the conspiracy count), the Court held that "[t]he Government may argue to the jury that Zodhiates conspired to retain [Isabella] outside the United States with the intent of obstructing an anticipated, but not-yet-existing, custody order"—that is, Judge Cohen's November 20, 2009 order transferring custody of Isabella to Jenkins. United States v. Zodhiates , 2016 WL 4976216, at *3 (W.D.N.Y. Sept. 19, 2016). And as to Count 2 (the substantive count), the Court held that "the Government must prove that [Zodhiates] intended to obstruct a court order in effect at the time [he] removed [Isabella] from the United States.... Thus, ... the ‘parental rights' at issue in [Count 2] are the visitation rights Janet Jenkins had in September 2009—not the custody rights Jenkins received following the November 2009 Vermont family court order" transferring custody. United States v. Zodhiates , 2016 WL 4771007, at *3 (W.D.N.Y. Sept. 14, 2016).

DISCUSSION

Zodhiates first renews his motion for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. He also moves for a new trial pursuant to Rule 33. The Court addresses each motion in turn.

A. Rule 29 motion for a judgment of acquittal

Rule 29 imposes a heavy burden on a defendant challenging his conviction following a jury trial. A court may enter a judgment of acquittal "only if the evidence that the defendant committed the crime alleged is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt. In applying these principles, [the Court] review[s] all of the evidence presented at trial in the light most favorable to the government, crediting every inference that the jury might have drawn in favor of the government." United States v. Facen , 812 F.3d 280, 286 (2d Cir. 2016) (quotation marks and citations omitted). In other words, Rule 29 requires that the Court give great deference to a jury's findings as to "the weight of the evidence and the reasonable inferences to be drawn" from that evidence. Id. (quotation marks omitted). This means that a judgment of acquittal is not warranted simply because the Government's case did "not exclude every possible hypothesis of innocence." Id. (quotation marks omitted). Instead, "where either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, the court must let the jury decide the matter." Id. (quotation marks and brackets omitted).

Zodhiates argues that the Court should enter a judgment of acquittal because, in his view, no reasonable jury could have found beyond a reasonable doubt that he knew of Jenkins's parental rights, "understood what those rights were, and intended to obstruct those rights." Zodhiates Br. at 2.³ Zodhiates's argument is essentially that the custody litigation between Jenkins and Miller was so complex that no reasonable jury could have found that a non-attorney (such as Zodhiates) knew or understood what parental rights, if any, Jenkins had, much less intended to obstruct those rights.

This argument was central to Zodhiates's defense at trial. In support of his claim, Zodhiates introduced a number of emails he received in 2008 and 2009 updating him on the custody litigation. Some emails gave Zodhiates updates in minute detail; others provided more general reports. Nearly all of the emails, however, mentioned or described, in some manner, Miller and Jenkins's parental rights. But the emails' descriptions of Miller and Jenkins's parental rights were not always clear. Rather, many of the emails Zodhiates introduced were, from a layman's perspective, possibly equivocal or ambiguous on the question whether Jenkins had any valid parental rights.⁴ In contrast, a handful of the emails Zodhiates introduced clearly stated or suggested that Vermont courts had granted Jenkins some form of parental rights.⁵ In addition to these emails, Zodhiates introduced evidence—primarily through Isabella's guardian ad litem in the Vermont litigation—that the custody litigation in both Vermont and Virginia was complicated, contentious, and drawn out. In short, Zodhiates correctly observes that, viewed in its entirety, Isabella's custody litigation was far from simple: the evidence introduced at trial showed that the litigation had gone on for nearly six years by the time of Isabella's removal; it involved multiple proceedings and appeals; it raised complex legal questions on which different courts disagreed; and, at least until 2006 (see Miller-Jenkins v. Miller-Jenkins , 49 Va.App. 88, 637 S.E.2d 330, 337 (2006) ), it resulted in what the Vermont Supreme Court described as "an interstate parental-rights contest" between Vermont and Virginia courts. Miller-Jenkins v. Miller-Jenkins , 180 Vt. 441, 912 A.2d 951, 957 (2006).

But even given the confusing state...