Friday, November 26, 2010

Blame Canada

United States v. Miller, No. 08-1152-cr (2d Cir. November 23, 2010) (Straub, Parker, Livingston, CJJ)

In 1994, Michelle Miller had a son, Robbie, with her former high school boyfriend; they later married. Shortly thereafter, the marriage dissolved. A Vermont family court awarded Miller legal custody of Robbie, and gave the father visitation rights. The following year, Miller, then living in Massachusetts, obtained an ex parte temporary abuse prevention order, which also gave her, temporary full custody of Robbie pending a hearing. Eventually, the Massachusetts court gave the father limited visitation rights in the form of six supervised visits. After the first visit, however, Miller began moving Robbie around to keep him away from the father. In 2001, she took Robbie to Canada knowing that under the Massachusetts court order the father was entitled to at least five more supervised visits.

Miller obtained permanent residency in Canada and, in a Quebec court, sought custody of Robbie. The Canadian courts eventually gave her permanent custody. In the meantime, however, the father had begun parallel proceedings in the United States to try to regain custody of Robbie. In 2002, a Vermont court awarded full custody to the father.

In December of 2002, the United States Attorney’s Office for the District of Vermont charged Miller with international parental kidnapping, in violation of 18 U.S.C. § 1204(a). Miller returned to Vermont in 2006 and was arrested. While in custody, she moved in a Vermont state court for recognition of the Canadian custody order in her favor. The court denied that request, and Miller appealed to the Vermont Supreme Court. While that appeal was pending, the criminal case went to trial. Miller moved to introduce evidence of the pendency of her appeal, but the district court concluded that the evidence was irrelevant, and denied the application.

Miller’s trial took place in July of 2007, and focused on two court orders that were in effect during the period covered by the indictment - the Massachusetts Family Court order awarding limited visitation rights to the father and the later Vermont order granting him full custody. The jury convicted her but, more than one year later, the Vermont Supreme Court held that, while the family court had jurisdiction when it granted the father full custody, it should have deferred instead to the Canadian courts.

Miller pursued this same claim on appeal, but a divided panel affirmed.

The majority, applying the extremely deferential standard of review of evidentiary rulings - abuse of discretion and “manifest error” - held the district court did not err. Miller’s appeal of the Vermont family court order giving the father full custody of Robbie “was not relevant because it was not of consequence to the determination of any material fact or issue in dispute at trial.”

The fact at issue was Miller’s intent. The government had to prove that she took Robbie from the United States with the intent to obstruct the lawful exercise of Miller’s parental rights. Miller argued that evidence of the pending appeal would have allowed her to raise a doubt as to whether the father even possessed lawful parental rights at the time she took Robbie to Canada. But the majority disagreed.

First, when Miller went to Canada the order that was the subject of the pending appeal did not even exist, thus the appeal “would not possibly be probative” of the father’s rights at the time she went to Canada. Nor was it probative of the father’s rights during the time period charged in the indictment. At that time, those rights stemmed in part from the Massachusetts Family Court order granting him supervised visits. The appeal of the Vermont order in the father’s favor had no affect at all on the rights created by the Massachusetts order.

The appeal only affected the order that the father obtained in Vermont granting him full custody. But even as to that order the pending appeal was irrelevant. The rights that order granted the father came into existence when the order was issued. The mother never sought a stay of that order, thus once it was issued the mother was required to surrender the child to the father, which sh did not do. And that Miller was appealing the order was not, and could not be, evidence to the contrary since the “pendency of the appeal could not itself negate the existence of [the father’s] parental rights while the order was still in effect, which it was during the period of the indictment.”

Evidence of the pending appeal showed, at most, Miller’s disagreement with the father’s rights, but this was “neither relevant to their existence during the period of the indictment nor a legal defense to the crime charged.

Finally, any error here would have been harmless. There was “no serious claim that the district court’s evidentiary ruling had any likelihood of affecting the outcome of the case.” The evidence against Miller was “overwhelming,” and the prosecution was able to “conclusively establish” Miller’s guilt solely based on the Massachusetts order that was not affected by the Vermont appeal.

Judge Straub dissented. In his view, the evidence “tended to show that [Miller] lacked the specific intent required by the” statute and thus it was error to preclude it. Relevancy is determined under a “very low standard” - evidence is admissible if it has any tendency to make any fact in issue more or less probable than it would be without the evidence, regardless of the length of the chain of inferences necessary to get there.

Unlike the majority, which focused on whether the father had valid parental rights, the dissent focused on the mother’s intent. “Evidence of the pending Vermont appeal was relevant to [her] defense because it tend[ed] to show that [she] took Robbie to Canada with intent of vindicating her own parental rights, rather than with intent of obstructing” the father’s.

Here is the chain of inferences cited by the dissent: First, the appeal was from a Vermont lower court order denying the mother’s motion for recognition of the Canadian order that gave her custody. The existence of the appeal of this order suggests that Miller attempted to use the Canadian proceedings to vindicate her own parental rights in Vermont. That attempt, along with the evidence of the Canadian court proceedings made it more likely that she originally brought Robbie to Canada and kept him there with the intent of obtaining custody in Canada and the using the Canadian proceedings to vindicate her own parental rights in the United States. These facts made it less likely that she took the child to Canada with the intent of obstructing the father’s parental rights. Thus, the Vermont appeal had some tendency to make a fact in issue less probable.

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2 Comments:

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