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United States v. Saliba

February 24, 2010

UNITED STATES OF AMERICA,
v.
PIERRE SALIBA, DEFENDANT.



The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge

MEMORANDUM AND ORDER

Defendant Pierre Fouad Saliba is charged with international parental kidnapping, in violation of 18 U.S.C. §§ 1204 and 3551 et seq. Defendant moves to dismiss the indictment pursuant to Fed. R. Crim. P. 12(b)(3)(A)--(B) and Fed. R. Crim. P. 48(b). In the alternative, defendant moves for an order compelling numerous governmental disclosures in anticipation of the trial scheduled for March 29, 2010.*fn1 For the reasons set forth below, the motion to dismiss the indictment is denied, and the motion to compel disclosure is also denied in its entirety.

I. Background

Defendant is a naturalized U.S. citizen who came to this country from his native Lebanon in October 1997. On June 28, 1998, while living in Brooklyn, New York, he and his then-wife (the "mother") had a child. In October 1998, the mother moved with the child to Canada, returning to the United States approximately one year later. On or about February 20, 2000, defendant took the child, then twenty months old, to Lebanon.

On March 9, 2000, a warrant for defendant's arrest was issued by the Honorable Roanne L. Mann, United States Magistrate Judge of this district. (See Docket Entry No. 1.) On April 26, 2000, the mother was granted sole custody of the child by the Family Court of the State of New York. Defendant disputes the Family Court's ruling on the ground that he was never "served with any papers within the Court's jurisdiction," and further claims that the mother made misrepresentations to the Family Court. (Aff. in Supp. of Mot. to Dismiss ("Aff.") 5.) Over the course of the next eight years, the defendant lived in Lebanon with the child; sometime during this period, the mother obtained an ex parte divorce from defendant in Canada.

On October 26, 2008, defendant was arrested pursuant to the 2000 warrant at John F. Kennedy International Airport in Queens, New York. Defendant was indicted by a grand jury on November 7, 2008 on one count of international parental kidnapping. The indictment charges, in relevant part, that, between February 2000 and his arrest, defendant "knowingly and intentionally remove[d] a child . . . from the United States and retained said child, who had been in the United States, outside the United States with intent to obstruct the lawful exercise of the parental rights of said child's mother." (Indictment.)

On December 4, 2009, defendant filed the instant motion, requesting dismissal of the indictment on several grounds. First, he contends that the International Parental Kidnapping Crime Act ("IPKCA"), 18 U.S.C. § 1204, is unconstitutionally vague. (Aff. 6--9.) Second, defendant argues that this court lacks subject matter jurisdiction. (Id. at 9.) Finally, he contends that the timing of the indictment violates the Speedy Trial Act, 18 U.S.C. § 3161(b), as well as the applicable statute of limitations. (See Mot. to Dismiss 1; Def.'s Reply 4--5.)

In the alternative, defendant moves to compel a number of governmental disclosures. First, he requests "all exculpatory evidence and impeachment material as it becomes available, pursuant to Brady v. Maryland, 373 U.S. 73 (1963), Giglio v. United States, 405 U.S. 150 (1972), and their progeny." (Mot. to Dismiss 1.) Second, defendant requests disclosure of the grand jury minutes, pursuant to Fed. R. Crim. P. 6(e)(3). (Id.) Finally, defendant requests an order compelling twenty-two specific disclosures by the government, pursuant to Fed. R. Crim. P. 12(b)(3)(E) and Fed. R. Crim. P. 16. (Id. at 1--3.)

II. Discussion

A. Dismissal of the Indictment

1. Legal Standard

"A motion to dismiss an indictment must satisfy a high standard." U.S. v. Brooks, 2009 WL 3644122, at *2 (E.D.N.Y. Oct. 27, 2009) (citations and internal quotation marks omitted). This is because "[a]n indictment . . . need not be perfect, and common sense and reason are more important than technicalities." United States v. De Le Pava, 268 F.3d 157, 162 (2d Cir. 2001) (citation omitted). A court must "accept[] the facts alleged in the indictment as true and determine[] only whether the indictment is 'valid on its face.'" Id. (quoting Costello v. United States, 350 U.S. 359, 363 (1956)).

The United States Supreme Court has held that "an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 117--18 (1974). "It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as [they] . . . fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished." Id. (citations and internal quotations omitted). "Essentially, the indictment must . . . be a plain, concise, and definite written statement of the essential facts constituting the offense charged." Brooks, 2009 WL 3644122, at *2 (citing FED. R. CRIM. P. 7(c)(1)).

2. Vagueness

In order to survive a vagueness challenge, a penal statute must "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983). Defendant challenges the indictment on the ground that the statute he is charged with violating, 18 U.S.C. § 1204, does not meet this requirement. Specifically, he argues that the phrase "child who has been in the United States" is insufficiently defined. (Aff. 7.)

In United States v. Amer, the Second Circuit Court of Appeals upheld the IPKCA against just such a challenge. See 110 F.3d 873, 877--79 (2d Cir. 1997). Nevertheless, defendant contends that a narrow exception-possibly carved out by dicta in Amer-is applicable here. See id. at 878 ("[T]here might be room for argument as to whether foreign children who were merely visiting the United States on a week-long vacation would be protected by the Act . . . .") (emphasis added). This contention is easily rejected. First, it is undisputed that the child is a natural-born U.S. citizen. The fact that she may also hold Canadian citizenship certainly does not make her a "foreign child" in the context of the Second Circuit's hypothetical scenario. See Perkins v. Elg, 307 U.S. 325, 329 (1939) ("[A]t birth she became a citizen of the United States . . . citizenship must be deemed to continue unless she has been deprived of it through the operation of a treaty or congressional enactment or by her voluntary action . . . ."). Furthermore, "accepting the facts alleged in the indictment as true," the child was living in Brooklyn, New York at the time of her kidnapping. See De Le Pava, 268 F.3d at 162. That she and her mother might also have had a Canadian residence does not place her within the narrow exception possibly created by the Second Circuit for the children of parents "merely visiting" the United States. See Amer, 110 F.3d at 878.

In sum, the Second Circuit has already upheld the IPKCA against a vagueness challenge, and this court sees no room to distinguish the case at bar. Because the indictment "contains the elements of the offense charged and fairly informs [] defendant of the charge against which he must defend, and . . . enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense," it is sufficient to survive the instant motion.*fn2

3. Speedy Trial

Federal Rule of Criminal Procedure 48 empowers a court to dismiss an indictment for "unnecessary delay" in the presenting of a charge to a grand jury, the filing an information against a defendant, or the bringing a defendant to trial. Furthermore, the Speedy Trial Act "mandates the dismissal of charges against a defendant who is not indicted, arraigned, or brought to trial within periods of time set forth in the statute." United States v. Oberoi, 547 F.3d 436, 443 (2d Cir. 2008) (citations and internal quotation marks omitted). Specifically, "[n]o more than 30 days can pass between arrest and indictment . . . ." Id. (citing 18 U.S.C. § 3161(b)).

Here, it is uncontested that defendant was arrested on October 26, 2008 and indicted on November 7, 2008, twelve days later. Thus, there has been no violation of § 3161(b). Defendant nevertheless argues that his indictment was untimely on the ground that "the Complaint was filed on March 9, 2000, and the Indictment was not filed until . . . nearly nine years later." (Aff. 10 (emphasis added).) Given the statute's clear language, however, this argument is unavailing. See 18 U.S.C.A. § 3161(b) (West 2008) ("indictment . ...


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