United States v. Zodhiates, 14-CR-175-A

CourtUnited States District Courts. 2nd Circuit. United States District Court of Western District of New York
Citation166 F.Supp.3d 328
Parties United States of America v. Philip Zodhiates, Defendant.
Docket Number14-CR-175-A
Decision Date20 January 2016

166 F.Supp.3d 328

United States of America
Philip Zodhiates, Defendant.


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

Signed January 20, 2016

166 F.Supp.3d 330

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



Philip Zodhiates has been charged in a two-count superseding indictment with (1) conspiring to violate the International Parental Kidnapping Crime Act (IPKCA) and (2) aiding and abetting a violation of the IPKCA. The Government alleges that Zodhiates and his co-defendants removed a child from the United States and that they did so with the intent to obstruct the lawful exercise of the parental rights of one of the child's parents.

The Court referred this case to Magistrate Judge McCarthy for all pre-trial matters. Zodhiates then filed motions to:

166 F.Supp.3d 331
(1) suppress location information found in cell phone billing records, which the Government obtained via grand jury subpoena;

(2) suppress evidence acquired by a federal grand jury in the District of Vermont, which investigated a case that relates to this one;

(3) suppress evidence obtained by the Government from a civil lawsuit, brought by a private party, that parallels this one;

(4) dismiss Count II of the superseding indictment and part of Count I of the superseding indictment;

(5) dismiss the superseding indictment based on the Government's alleged cumulative misconduct; and

(6) confirm the scope of “previous court orders.”

Magistrate Judge McCarthy filed a report and recommendation that recommended denying motions one, three, four and five. Magistrate Judge McCarthy also recommended denying, without prejudice, Zodhiates' motion to suppress the Vermont grand jury evidence.1 Finally, Magistrate Judge McCarthy recommended denying Zodhiates' last motion without prejudice to renewal before this Court.

For the reasons discussed below, the Court adopts the report and recommendation and denies each of Zodhiates' motions, other than his motion to “confirm the scope of previous court orders.” That motion is effectively a request that the Court rule on a jury instruction and, therefore, is premature. Zodhiates may, however, renew the motion closer to trial.


This case has its roots in a series of family law disputes in the Vermont and Virginia state courts that resulted in a criminal prosecution in the U.S. District Court for the District of Vermont. Those proceedings form the backdrop of this case. They are also relevant to several of the issues raised in Zodhiates' motions. Accordingly, the Court briefly discusses them below.2

After living together in Virginia for several years, Lisa Miller and Janet Jenkins entered into a civil union in Vermont in 2000.3 Miller–Jenkins v. Miller–Jenkins, 180 Vt. 441,912 A.2d 951, 956 (2006). In 2002, Lisa gave birth to a daughter, IMJ,4 who was conceived via artificial insemination. Id. The couple and their daughter lived in Virginia for several more months before moving to Vermont in August 2002. Just over one year later, Lisa and Janet

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separated, and Lisa returned to Virginia with IMJ.

In November 2003, Lisa petitioned a Vermont family court to dissolve her and Janet's civil union. That court issued a temporary restraining order awarding Lisa temporary legal and physical responsibility for IMJ and assigning Janet the right to visit IMJ and speak with her on a daily basis. Id. Shortly thereafter, Lisa began denying Janet the visitation and contact rights ordered by the Vermont family court. Lisa then filed a petition in Virginia state court asking that court to establish IMJ's parentage. Id.

The result was “an interstate parental-rights contest,” as both Vermont and Virginia state courts asserted jurisdiction to determine parental rights over IMJ. Id. at 956–57. Ultimately, the Virginia Court of Appeals held that the state courts of Vermont, and not those of Virginia, had jurisdiction over the matter and ordered Virginia courts to “grant full faith and credit to the custody and visitation orders of the Vermont court.” Miller–Jenkins v. Miller–Jenkins, 49 Va.App. 88, 637 S.E.2d 330, 332 (2006).

In the meantime, the Vermont family court found Lisa in contempt, found that both Lisa and Janet had parental interests in IMJ, and set the case for a final hearing. Miller–Jenkins, 912 A.2d at 957. After a trial, the Vermont family court, in a decision later affirmed by the Vermont Supreme Court, “ordered sole physical and legal custody of IMJ go to Lisa, subject to Janet's visitation rights.” Miller–Jenkins v. Miller–Jenkins, 189 Vt. 518, 12 A.3d 768, 772 (2010). The Vermont family court also “warned Lisa that continued interference with the relationship between IMJ and Janet could lead to a change in circumstances warranting a modification of custody.” Id.

Following that order, the Vermont family court found Lisa in contempt seven times for violating parent-child contact orders. Id. In January 2009, the Vermont family court “again explicitly warned Lisa that continued failure to comply with court-ordered visits could lead to a transfer of custody to Janet.” Id.

Janet then filed two motions to transfer custody of IMJ to herself. The first was motion denied. A hearing on the second, which Lisa did not attend, was held in August 2009. Id. In November 2009, the Vermont family court “concluded that Lisa's willful interference with Janet's visitation rights amounted to a real, substantial, and unanticipated change in circumstances.” Id. The court accordingly awarded Janet sole physical and legal custody of IMJ. Id.

Those proceedings set the stage for the Government's allegations in this case. The Government alleges that on or about September 21, 2009—after the hearing on Janet's second motion to transfer custody, but before the Vermont family court awarded Janet sole physical and legal custody—Lisa, IMJ, and Zodhiates travelled from Virginia to Buffalo. Docket 41 (Superseding Indictment) at 2. The Government alleges that while he was in Buffalo, Zodhiates spoke by phone with Kenneth Miller, as well as “an individual in Canada who had agreed to help transport” Lisa into Canada. Id.

The next day, the Government alleges, Lisa and IMJ crossed the Rainbow Bridge from Niagara Falls, New York into Canada. That same day, the Government alleges Zodhiates again had telephone contact with both Kenneth and the individual in Canada who had helped Lisa and IMJ cross the border. Id.

Slightly more than two years after Lisa left the country with IMJ, Kenneth was indicted in the District of Vermont on a one-count indictment charging him with aiding and abetting Lisa's alleged violation

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of the International Parental Kidnapping Crime Act (IPKCA). After a jury trial, Kenneth was found guilty of aiding and abetting Lisa's removal of IMJ from the United States. The Second Circuit has since affirmed Kenneth's conviction over his challenge to the Government's decision to lay venue against him in the District of Vermont. See United States v. Miller, 808 F.3d 607 (2d Cir.2015).

This case followed Kenneth's. Zodhiates, Lisa Miller, and Timothy Miller are each charged in a two-count superseding indictment with (1) conspiring to violate the IPKCA, and (2) violating, or aiding and abetting a violation of, the IPKCA.5 The relevant provision of the IPKCA makes it a crime to “remove[ ] a child from the United States, or attempt[ ] to do so, or retain[ ] a child (who has been in the United States) outside the United States with intent to obstruct the lawful exercise of parental rights.” 18 U.S.C. § 1204(a).


As noted, Zodhiates has moved to suppress various types of evidence, has moved to dismiss parts of the superseding indictment, and has moved for several other forms of relief. The Court addresses each motion in turn.

1. Motion to suppress location information obtained by grand jury subpoena

Zodhiates first moves to suppress location information found in the billing records for several cell phones used by Zodhiates and his family.6 During the Government's investigation of Kenneth Miller in the District of Vermont, two grand jury subpoenas were issued to nTelos Wireless. See Docket 18–2. The subpoenas requested a variety of information for two different cell phone numbers over a period of approximately 28 months. Id. Specifically, the subpoenas requested, among other things:

• “All subscriber information,” such as “account number,” “subscriber name,” and “other identifying information”;

• “Means and source of payments”;

• “[L]ength of service”;

• “Detail records of phone calls made and received (including local and incoming call records if a cellular account) and name of long distance carrier if not [nTelos]”;

• “Numeric (non-content) detail records of text messages (including SMS), multimedia (including MMS), and other data transmissions made and received (including any IP address assigned for each session or connection).”

See, e.g., Docket 18–2 at 5. The...

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