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United States of America v. Huong Thi Kim Ly

July 22, 2011


The opinion of the court was delivered by: Johnson, Senior District Judge:


Defendant Huong Thi Kim Ly ("Defendant") was convicted by jury verdict of international parental kidnapping. Defendant moves for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(c) ("Rule 29") or, in the alternative, for a new trial pursuant to Federal Rule of Criminal Procedure 33 ("Rule 33"). For the following reasons, the Rule 29 motion is DENIED and the Rule 33 motion is GRANTED.


On May 24, 2008, Defendant was arrested pursuant to a complaint. On June 5, 2008, a grand jury returned an indictment charging her with international parental kidnapping in violation of 18 U.S.C. § 1204(a).*fn1 Trial began on December 9, 2010. At the close of the Government's case, Defendant moved for a Rule 29 judgment of acquittal; the Court denied the motion. (Trial Transcript ("Tr.") 292--93.) On December 16, 2010, the jury found Defendant guilty of the sole count of the indictment. After the verdict, the Defendant renewed her motion for acquittal. (Tr. 605.) The following is a summary of the evidence adduced at trial.

Tony Lam ("Lam"), a United States citizen living in New York City, met Defendant, a Vietnamese actress, in Ho Chi Minh City, Vietnam around August 2000. While in Vietnam, the two dated for a short time and became engaged within a few months. In January 2001, Defendant moved to the United States to live with Lam in New York. Shortly after her arrival to New York, Defendant became pregnant. On February 6, 2001, Defendant and Lam were married in Las Vegas, Nevada. In April 2001, Defendant applied for a visa based upon her marriage to a United States citizen. On October 17, 2001, Defendant gave birth to the couple'sdaughter, P.L. The family lived together in several different apartments in the Lower East Side neighborhood of Manhattan. In September 2005, Defendant received her permanent resident card.

In early November 2005, Lam traveled to Vietnam to sell a clothing store he and Defendant co-owned in Ho Chi Minh City. During this time, P.L. was enrolled at school in the neighborhood. When Lam departed for Vietnam, Defendant and P.L. stayed with Hoa Lam ("Hoa"), Lam's sister. Upon his arrival to Vietnam, Lam spoke to Defendant twice on the telephone. During these conversations, Defendant never mentioned her intention to travel to Vietnam.

On or about November 20, 2005, Lam learned from a driver for Defendant's family that Defendant was scheduled to arrive in Vietnam the following day. After learning this information, Lam confronted Defendant's mother, who confirmed that Defendant was arriving to Vietnam the next day. Lam also called Hoa, who was in New York. Hoa stated that Defendant had departed for Vietnam.

On November 22, 2005, Defendant and P.L. arrived in Ho Chi Minh City. Lam went to the airport to meet Defendant and P.L. Defendant's family was present and Lam was unable to speak with Defendant at the airport. Lam went with Defendant, P.L., and Defendant's family to the family home. While there, Defendant told Lam that she wanted to keep P.L. in Vietnam and she did not want to return to New York. Defendant also told Lam that he would not see P.L. again unless he paid her money. Lam gave Defendant's mother $2,000. Soon after her arrival, Defendant, along with her mother, agreed to meet Lam at a coffee shop. At this meeting, Defendant demanded another $2,000, which Lam gave to her.

From November 22, 2005 until the end of December 2005, Lam saw P.L. approximately three or four times in Vietnam. Lam returned to New York and called Defendant five or six times a day. Lam spoke with P.L. but Defendant's mother prevented him from speaking with Defendant.

In April 2006, Defendant's mother called Lam and asked him to return to Vietnam take Defendant and P.L. back to the United States. After his arrival in Ho Chi Minh City, Lam met with Defendant and her mother at a coffee shop. Lam agreed to sign a custody order awarding him custody of P.L. during the summers and Defendant custody during the school year in Vietnam. The order further provided that when P.L. reached age 12, she would return to the United States for college.

On May 18, 2006, Defendant and Lam appeared in court in Vietnam to sign the agreement. The document was rejected by the Vietnamese court because it was not in conformity with Vietnamese law. Defendant then sought to have Lam sign a custody agreement granting her sole custody of P.L. Lam refused to sign the agreement and observed Defendant sign his signature on the document.*fn2 That agreement is dated December 6, 2005.

Lam returned to New York and filed an affidavit in New York State Family Court seeking custody of P.L. In the affidavit, Lam stated that P.L. was being abused by Defendant's family members in Vietnam and that P.L. needed urgent dental care. By an order dated June 19, 2006, a New York State Family Court granted Lam sole custody of P.L. and ordered Defendant to return P.L. to New York.

After obtaining the New York State Family Court order ("New York Family Court order"), Lam returned to Vietnam and contacted the U.S. Consulate in Ho Chi Minh City. During an arranged visit with P.L. at the U.S. Consulate, Lam provided Defendant with the New York Family Court order. Lam also provided Defendant a summons issued by the New York Family Court ordering her to appear on September 11, 2006. Defendant did not appear for the September 11, 2006 court date. Defendant consulted with an attorney in Vietnam who advised her to file a written reply to the summons. From September 2006 until August 2007, Defendant was served with three additional court orders issued by the New York Family Court. Defendant did not appear for any court appearance. From June 2006 until November 2007, Lam traveled eight times to Vietnam to see P.L. However, Lam saw P.L. only three times, averaging five to ten minutes per visit.

In June 2007, Lam met with FBI Special Agent Timothy Wittman ("Wittman") concerning his case. Soon after, Wittman sought an arrest warrant in the Eastern District of New York. Defendant returned to the United States in May 2008 to renew her permanent resident visa. Defendant was arrested, pursuant to warrant, when she arrived at Los Angeles International Airport. P.L. was not with her. While Defendant was in custody, she signed a consent form giving full custody to Lam. In June 2008, P.L. was returned to Lam at the U.S. Consulate in Ho Chi Minh City.


I. Rule 29 Motion for Judgment of Acquittal

Rule 29 provides that, on a defendant's motion, the court "must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." FED. R. CRIM. P. 29(a); United States v. Pizzonia, 577 F.3d 455, 462 (2d Cir. 2009).*fn3 Accordingly, a court must uphold a jury verdict so long as "'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt[.]'" United States v. Stewart, 590 F.3d 93, 109 (2d. Cir. 2009) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original)). The Court views the evidence in the light most favorable to the Government, assuming that the jury resolved all questions of witness credibility and competing inferences in favor of the prosecution. United States v. Abu-Jihaad, 630 F.3d 102, 134 (2d Cir. 2010). As a result, a defendant challenging the sufficiency of the evidence adduced at trial bears a "very heavy burden." United States v. Miller, 626 F.3d 682, 691 (2d Cir. 2010).

To sustain its burden at trial, the Government had to prove beyond a reasonable doubt that: (1) P.L. was previously in the United States; (2) Defendant took P.L. from the United States to Vietnam (or kept P.L. from returning to the United States from Vietnam); and (3) Defendant acted with the intent to obstruct the lawful exercise of parental rights of Lam, P.L.'s father. See 18 U.S.C. § 1204(a). Defendant argues that the trial evidence was insufficient to establish the third element, the requisite intent. (Def. Mem. 6.)

It is well-settled that "the mens rea elements of knowledge and intent can often be proved through circumstantial evidence and the reasonable inferences drawn therefrom." United States v. MacPherson, 424 F.3d 183, 189 (2d Cir. 2005); see also, e.g., Ratzlaf v. United States, 510 U.S. 135, 149 n.19 (1994) (noting that the "jury may, of course, find the requisite knowledge on defendant's part by drawing reasonable inferences from the evidence of defendant's conduct"). Here, the Government presented ample ...

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