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United States v. Zodhiates

United States District Court, W.D. New York

February 14, 2017




         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.


         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).


         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, 637 S.E.2d 330, 337 (Va. Ct. App. 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, 912 A.2d 951, 957 (Vt. 2006).

         But even given the confusing state of the custody litigation, the Government introduced evidence from which a reasonable jury could have inferred that Zodhiates knew, prior to Isabella's removal, that Jenkins had both visitation rights and a strong chance of winning custody of Isabella. The Government's most direct evidence of Zodhiates's state of mind was a January 2009 email in which Zodhiates suggested he had both knowledge of, and intent to obstruct, Jenkins's parental rights. In the email, Zodhiates sent William Sidebottom (who, at the time, was an employee of Miller's counsel, Liberty Counsel) an article reporting that a Virginia family court judge had recently “ordered Miller to allow Jenkins a three-day unsupervised visit with Isabella.” Gov't Ex. 26 at 2. Zodhiates's email asked Sidebottom:

Is there no legal recourse now for Lisa Miller? (see the attached article from WND)
If not, I'd like to suggest to her some personal options, which LC probably should not or would not want to know about.
In other words, if there is nothing else LC can do for her, I'd like her contact information.

Id. The Government also introduced a number of other emails from which a reasonable jury could have inferred that Zodhiates knew of Jenkins's actual and anticipated parental rights. In particular, the Government introduced emails sent to Zodhiates that referenced Judge Cohen having ordered visitation for five weeks in July and August 2009 (Gov't Ex. 32); Judge Cohen declining to transfer custody of Isabella to Jenkins, but “ma[king] a new order for unsupervised visitation for the end of September” (Gov't Ex. 35); and Judge Cohen “ma[king] it very clear that he would most likely rule in favor of” Jenkins's motion to transfer custody at a status conference in early September. Gov't Ex. 34. See also Gov't Ex. 29/Def. Ex. 18 (email discussing Judge Cohen's decision to allow visits in May 2009 and noting that “[a]t the next hearing . . . more fact finding information will be taken to decide if a transfer of custody will take place”).

         In light of the Government's evidence, Zodhiates has not met his “heavy burden, ” United States v. Si Lu Tian, 339 F.3d 143, 150 (2d Cir. 2003) (quotation marks omitted), to show that the evidence is insufficient to sustain his convictions. The evidence introduced at trial-viewed, as it must be, “in its totality, in a light most favorable to the government, ” and with “all inferences [drawn] in favor of the prosecution, ” United States v. Irving, 452 F.3d 110, 117 (2d Cir. 2006)-provided a more-than-sufficient basis for the jury to convict on both counts. In particular, the emails described above provided the jury with evidence from which it could have reasonably inferred 1) that Zodhiates knew Jenkins had the right to visit Isabella; and 2) that by September 2009, Zodhiates also knew that Judge Cohen would likely transfer custody of Isabella from Miller to Jenkins. To be sure, the jury also heard evidence suggesting that a layman might have had a difficult time understanding the custody litigation. But resolving any conflict between that evidence and the Government's evidence is one of the jury's fundamental duties. See United States v. Guadagna, 183 F.3d 122, 129 (2d Cir. 1999) (“Rule 29(c) does not provide the trial court with an opportunity to substitute its own determination of the weight of the evidence and the reasonable inferences to be drawn for that of the jury.”) (quotation marks and ellipsis omitted). Put differently, the Court may not set aside the jury's verdict simply because the jury was presented with evidence supporting both parties. Rather, if there is evidence from which “any rational trier of fact could have found” Zodhiates's intent beyond a reasonable doubt, Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original), Rule 29 does not allow the Court to interfere with the way in which the jury resolved the competing inferences that could be drawn from that evidence. This is particularly true when, as in this case, one of the central disputes at trial concerns a defendant's knowledge “because knowledge can be-and usually must be-proved by reasonable inferences drawn from circumstantial evidence.” United States v. Fagan, ___ F. App'x ___, 2017 WL 219081, at *1, (2d Cir. Jan. 19, 2017) (citing McFadden v. United States, 135 S.Ct. 2298, 2306 n.3 (2015)).

         The Government's documentary evidence also provided the jury with an evidentiary basis which, when combined with other evidence, allowed the jury to infer Zodhiates's intent. Specifically, the Government introduced evidence about the timing of, and the circumstances surrounding, Isabella's removal from the United States and her retention in Nicaragua. That evidence provided further circumstantial proof from which a reasonable jury could have inferred that Zodhiates intended to obstruct Jenkins's parental rights. See Guadagna, 183 F.3d at 130 (“[A] jury may bring to its analysis of intent on individual counts all the circumstantial evidence it has received on the scheme and the purpose of the scheme in which the defendant allegedly participated.”) In particular, the timing of Isabella's removal provided the jury with strong circumstantial evidence that Zodhiates's intent in aiding Isabella's removal was to frustrate Jenkins's ability to visit Isabella and to render meaningless Judge Cohen's anticipated order transferring custody. Further, efforts by Zodhiates and the other coconspirators to maintain secrecy, both before and after the removal, offered the jury circumstantial evidence from which it could have reasonably inferred that Zodhiates understood his conduct to be illegal. For instance, phone records and testimony introduced by the Government showed that, on September 20 (the day before the removal), Zodhiates and Miller did not speak directly; rather, they communicated using Miller's father as an intermediary. In addition, an email Zodhiates sent his daughter shortly after Isabella's removal contained an attachment requesting art supplies and snack foods “for her.” Gov't Ex. 47a. In the attachment, the names “Philip” and “Ken” (among others) had clearly been blacked out with marker. Id. Similarly, when he arranged for an acquaintance to transport suitcases full of supplies to Nicaragua, Zodhiates referred to Miller not by her name, but as “Sarah, ” “a lady that works with [Christian Aid Ministries] in Managua.” Gov't Ex. 48. See also Gov't Ex. 49b. Finally, in December 2009, one of Zodhiates's employees sent Zodhiates an email with an update on the custody litigation. The email noted that “Lisa and Isabella Miller are nowhere to be found, just days before the court-mandated transfer of custody.” Gov't Ex. 50a. Zodhiates responded by asking his employee: “Did you write this?” Id. One minute later, Zodhiates sent a second email: “If so, it is best to not publicly acknowledge that you've met them.” Gov't Ex. 50b. This evidence of secrecy, in addition to the documentary evidence described above, was sufficient to allow a reasonable jury to infer that Zodhiates's intent in aiding Isabella's removal was to frustrate Jenkins's parental rights.

         To be sure, Zodhiates offered evidence of innocent explanations for some of this conduct. He also offered character evidence that, he argued, showed his intent was to help Miller, and not to obstruct Jenkins's parental rights. But when the Government proves an element of a crime circumstantially-as it must almost always do when it proves a defendant's intent-the Government “need not ‘exclude every reasonable hypothesis other than that of guilt.'” Guadagna, 183 F.3d at 130 (quoting Holland v. United States, 348 U.S. 121, 139 (1954)). And when the Government offers circumstantial evidence of intent from which a reasonable jury could find the defendant guilty beyond a reasonable doubt-as the Government did in this case-Rule 29 does not permit the Court to set aside the jury's view of that evidence.

         Thus, because Zodhiates has not met Rule 29's heavy burden, his renewed motion for a judgment of acquittal is denied.

         B. Rule 33 motion for a new trial

         The standard for a new trial under Rule 33 is different than the standard for a judgment of acquittal under Rule 29. Rule 33 allows a court to “vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). “[B]y its terms, ” Rule 33 provides district courts with “broad discretion to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice.” United States v. Ferguson, 246 F.3d 129, 133 (2d Cir. 2001) (quotation marks and ellipsis omitted). The fundamental question underlying a Rule 33 motion is, then, straightforward, if not always easy to answer: whether “an injustice has been done.” United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992). Put differently, the Court must have “a real concern that an innocent person may have been convicted.” Id.

         Zodhiates makes four arguments for a new trial. The Court addresses each in turn.

         1. Location information obtained by grand jury subpoena

         Zodhiates first moves for a new trial because, he argues, the cell phone records introduced at trial were obtained in violation of the Fourth Amendment. Specifically, Zodhiates argues that the Government conducted an illegal Fourth Amendment “search” when it obtained those records with a grand jury subpoena, rather than a warrant. The Court rejected this argument in pretrial litigation, see United States v. Zodhiates, 166 F.Supp.3d 328, 333-40 (W.D.N.Y. 2016), and Zodhiates has not identified any intervening authority that would lead the Court to reconsider its earlier decision.[6] Zodhiates's Rule 33 motion on this ground is therefore denied.

         2. Exclusion of character evidence

         Zodhiates next moves for a new trial because the Court excluded evidence of specific acts of Zodhiates's ...

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