United States District Court, W.D. New York
DECISION AND ORDER
RICHARD J. ARCARA, UNITED STATES DISTRICT JUDGE
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.
evidence introduced at trial
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).
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. From the time the custody litigation
began, Miller had custody of Isabella, while Jenkins had
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.
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.
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,
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.
charges in the superseding indictment
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.
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).
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).
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.
29 motion for a judgment of acquittal
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).
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. 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.
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.In contrast, a handful of the emails
Zodhiates introduced clearly stated or suggested that Vermont
courts had granted Jenkins some form of parental
rights. 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).
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”).
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)).
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
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.
because Zodhiates has not met Rule 29's heavy burden, his
renewed motion for a judgment of acquittal is denied.
33 motion for a new trial
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.
makes four arguments for a new trial. The Court addresses
each in turn.
Location information obtained by grand jury subpoena
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. Zodhiates's Rule 33 motion on this
ground is therefore denied.
Exclusion of character evidence
next moves for a new trial because the Court excluded
evidence of specific acts of Zodhiates's ...