United States v. Miller

08-1152-cr
USA v. Miller
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term 2008

Argued: March 30, 2009 Decided: November 23, 2010

Docket No. 08-1152-cr

_____________________________________

UNITED STATES OF AMERICA,

Appellee,

-v.-

MICHELLE MILLER, also known as MICHELLE FAVREAU,
also known as MICHELLE BRODEAU,
Defendant-Appellant.
_____________________________________

Before: STRAUB, PARKER, and LIVINGSTON, Circuit Judges.*

Appeal from a judgment of the United States District Court for the District of Vermont

(Sessions, J.). Defendant-Appellant argues principally that the district court erred in excluding as

irrelevant evidence of ongoing custody litigation in her trial for international parental kidnapping.

We conclude that the district court did not so err and therefore affirm.

Judge Straub dissents in a separate opinion.

*
The Honorable Sonia Sotomayor, originally a member of this panel, was elevated to the
Supreme Court on August 8, 2009. The Clerk has designated, by random selection, the
Honorable Barrington D. Parker to replace her. See Second Circuit Internal Operating Procedure
E(b) (formerly § 0.14(b) of the Local Rules).
 MICHAEL L. DESAUTELS, Office of the Federal Public
Defender, Burlington, VT, for Defendant-Appellant.

NANCY J. CRESWELL, Assistant United States Attorney
(Gregory L. Waples, Assistant United States Attorney, on the
brief), for Thomas D. Anderson, United States Attorney for
the District of Vermont, Burlington, VT, for Appellee.

DEBRA ANN LIVINGSTON , Circuit Judge:

Defendant-Appellant Michelle Favreau1 (“Favreau”) appeals from a judgment of the United

States District Court for the District of Vermont (Sessions, J.) entered February 29, 2008, following

a jury trial, convicting her of one count of international parental kidnapping in violation of 18 U.S.C.

§ 1204. On appeal, Favreau argues that the district court erred in excluding evidence of her appeal

in child custody litigation pending before the Vermont Supreme Court and in refusing to grant a

continuance of the criminal trial to await the outcome of this appeal. She also contends that the

evidence was insufficient to support her conviction. Because we conclude that the district court did

not abuse its discretion in excluding the evidence of Favreau’s pending appeal and that Favreau’s

other arguments are also without merit, we affirm the judgment of conviction.2

BACKGROUND

Michelle Favreau and Keith Miller (“Miller”) met in high school in Bennington, Vermont,

and, several years later, entered a relationship. On March 3, 1994, Favreau gave birth to the couple’s

1
Favreau was known during her marriage as Michelle Miller, the name under which she
was indicted. She has since reverted to her maiden name, Favreau, and, accordingly, we will
refer to her as such throughout this opinion.
2
On appeal, Favreau also initially challenged four special conditions of her term of
supervised release. However, because that term of supervised release has since ended, she has
withdrawn those challenges and we therefore do not consider them further.

2
only child, Robert Keith Miller (“Robbie”), and the two were subsequently married. In March 1999,

however, the couple divorced and, pursuant to a divorce decree entered by the Vermont Family Court

with the consent of all parties, Favreau was awarded legal custody of Robbie. Miller was awarded

visitation rights.

Relations between Favreau and Miller degenerated, however, and on April 25, 2000, Favreau

obtained an ex parte temporary abuse prevention order from the Probate and Family Court

Department of the Massachusetts Trial Court in Pittsfield, Massachusetts (“Massachusetts Family

Court”) where she had moved with Robbie following the divorce. That order gave Favreau full

custody of Robbie on a temporary basis, pending an adversarial hearing. On June 2, following a

hearing attended by both parties, the court extended the order for a year, thereby barring Miller from

seeing Robbie during that period. Miller moved for reconsideration, however, and, on June 15,

2000, the court modified its order to permit Miller two hours of supervised visitation per week. The

court further provided that it would review the matter further after six visits had been successfully

completed. The parties also agreed that jurisdiction over any further custody proceedings should be

in Massachusetts and the Massachusetts Family Court issued an order to that effect; the Vermont

Family Court relinquished jurisdiction accordingly.

The first visit was held according to the terms of the Massachusetts order. Shortly after the

first visit, however, Favreau began moving Robbie around the state and country in an effort to stay

away from Miller, whom she did not inform of her whereabouts. On May 23, 2001, without

notifying Miller, Favreau took Robbie across the Vermont border into Canada. Favreau conceded,

at her criminal trial, that she knew at the time she took Robbie across the border that Miller was

3
entitled to at least five additional supervised visits pursuant to the June 15, 2000 order.

Once in Canada, Favreau applied to become a permanent resident, and, after obtaining that

status, on September 11, 2002, applied for custody of Robbie in the Superior Court of Quebec,

seeking to cancel all of Miller’s visitation rights and to obtain child support. Miller, who was served

by mail with papers in the Canadian proceeding, moved to dismiss that action for lack of jurisdiction.

The Canadian Superior Court denied that motion, finding that its exercise of jurisdiction was in the

best interests of the child, and granted Favreau custody pending resolution of the case. Proceedings

in that court thus continued, and, on February 3, 2005, the Quebec court awarded Favreau custody.

Miller appealed that decision, but the Canadian appellate court affirmed it that October.

In Favreau’s absence, however, Miller had begun parallel court proceedings in the United

States to try to regain custody of Robbie. First, in early 2002, Miller requested that the

Massachusetts family court transfer jurisdiction over custody matters back to Vermont, which it did

on the ground that Favreau’s whereabouts were unknown. Miller then moved in Vermont Family

Court to modify custodial rights and to enforce his existing parental rights. Miller also sought to

have Favreau held in contempt for violating the court orders already in place. On September 13,

2002 the Vermont court issued a written order granting full custody of Robbie to Miller pending a

further evidentiary hearing and holding Favreau in contempt of court. It also issued a bench warrant

for Favreau’s arrest.

The U.S. Attorney’s Office for the District of Vermont then began to pursue a federal

criminal prosecution, and on December 2, 2002, Favreau was indicted in the United States District

Court for the District of Vermont on one count of international parental kidnapping in violation of

4
18 U.S.C. § 1204(a). The indictment covered the period from June 2002 through the date of

indictment, December 2, 2002.

In January 2006, Favreau returned to Vermont, leaving Robbie in Canada, and was arrested

by federal marshals. She was then transferred to state custody based on the Vermont contempt

charge, where she proceeded to move to dismiss that charge on the ground that the Vermont Family

Court lacked subject matter jurisdiction over the case when it issued its September 2002 order. The

state court denied this motion. Favreau then moved in the Vermont court for relief from the

judgment of contempt and for recognition of the Canadian custody order, but that court denied those

requests as well. Favreau then appealed to the Vermont Supreme Court.

While that appeal was pending, Favreau was transferred to federal custody so that her federal

criminal case could proceed to trial. In light of the pending appeal in state court, Favreau moved to

stay her federal case or, in the alternative, to be allowed to introduce evidence of the pending appeal

to the jury. The district court denied both requests. With respect to the continuance, the court

expressed concern that staying the criminal proceeding pending outcome of the state court appeal

would be greatly detrimental to Favreau insofar as she would have to remain incarcerated for an

unknown but potentially lengthy period while awaiting her federal criminal trial. With respect to the

evidentiary motion, the district court concluded that the pendency of the appeal was of no relevance

to the criminal trial and thus that the fact that it was pending was inadmissible.

Favreau’s federal trial took place on July 11 and 12, 2007. At trial, the government relied

on at least two court orders effective during the period of the indictment to establish Miller’s parental

rights—the June 2000 Massachusetts Family Court order providing for six supervised visits, and the

5
September 2002 Bennington Family Court order, issued in Favreau’s absence, granting Miller full

custody. It further adduced testimony establishing that Favreau left the country and remained out

of the country with the intent to frustrate those rights. Favreau, who testified on her own behalf,

attempted to establish two statutory affirmative defenses: first, that she acted “within the provisions

of a valid court order granting [her] custody . . . at the time of the offense,” and, second, that she was

“fleeing an incident of domestic violence.” 18 U.S.C. § 1204(c)(1), (2). The jury rejected those

defenses and found Favreau guilty of international parental kidnapping. She was sentenced on

February 28, 2008, to time served—having remained incarcerated since her return to the United

States—and to one year of supervised release.

On August 22, 2008—more than a year after Favreau’s trial—the Vermont Supreme Court

determined that, although the Vermont Family Court had jurisdiction over Robbie’s custody

proceedings in September 2002 when it granted full custody to Miller and held Favreau in contempt,

it should have declined to exercise that jurisdiction and deferred instead to the Canadian courts. See

Miller v. Miller, 965 A.2d 524, 531-35 (Vt. 2008). The Vermont Supreme Court therefore reversed

the portion of the family court’s order denying Favreau’s request for recognition of the Canadian

judgment. Id. at 537.

DISCUSSION

I.

Before this Court, Favreau contends, first, that the district court erred in excluding evidence

of her appeal of the Vermont Family Court’s September 2002 order to the Vermont Supreme Court,

6
which was pending at the time of her trial.3 Because we afford district courts “wide latitude . . . in

determining whether evidence is admissible,” SR Int’l Bus. Ins. Co. v. World Trade Ctr. Props., LLC,

467 F.3d 107, 119 (2d Cir. 2006) (internal quotation marks omitted), we review its evidentiary

rulings for abuse of discretion, reversing only if we find “‘manifest error,’” Cameron v. City of New

York, 598 F.3d 50, 61 (2d Cir. 2010) (quoting Manley v. AmBase Corp., 337 F.3d 237, 247 (2d Cir.

2003)); see also United States v. Jackson, 335 F.3d 170, 176 (2d Cir. 2003).4 Indeed, our law makes

clear that even where we conclude that an evidentiary ruling was “manifestly erroneous,” we will

nonetheless affirm if the error was “harmless”—that is, if we can conclude that the error did “not

affect substantial rights.” Fed. R. Crim. P. 52(a); SR Int’l Bus. Ins. Co., 467 F.3d at 119.

We find no such abuse of discretion—let alone “manifest error”—on these facts. Under the

Federal Rules, evidence is relevant if it has “any tendency to make the existence of any fact that is

of consequence to the determination of the action more probable or less probable than it would be

without the evidence.” Fed. R. Evid. 401. “Evidence which is not relevant is not admissible.” Fed.

R. Evid. 402. The district court concluded, and the government urges on appeal, that the pending

3
While we take judicial notice of the decisions handed down by the other courts in this
case, particularly the Vermont Supreme Court’s decision of August 22, 2008, Miller v. Miller,
965 A.2d 524 (Vt. 2008), see Fed. R. Evid. 201(b) (permitting judicial notice of facts “not
subject to reasonable dispute”), we do not pass on the merits of any of these decisions. See
Global Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006).
4
Favreau contends that the district court’s decision prevented her from asserting an
affirmative defense and, as such, should be reviewed de novo. The argument is without merit.
While a district court’s determination of whether a proffered affirmative defense is legally
sufficient raises a question of law to be reviewed de novo, its decision as to the admissibility of
any particular item of evidence with respect to such a defense is reviewed for abuse of discretion.
See United States v. Gole, 158 F.3d 166, 168 (2d Cir. 1998).

7
appeal of the Vermont family court order of September 2, 2002, which gave Miller 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. We agree.

To establish its case, the government was required to prove: (1) that Robbie had previously

been in the United States; (2) that Favreau took Robbie from the United States to another country

(or kept Robbie from returning to the United States from another country); and (3) that Favreau acted

with the intent to obstruct the lawful exercise of Miller’s parental rights. See 18 U.S.C. § 1204(a);

2 L. Sand et al., Modern Federal Jury Instructions, § 42-17. Favreau argues that evidence of her

appeal of the Vermont Family Court’s September 2002 order was relevant to the third element.

Specifically, she contends that such evidence would have allowed her to call into question “whether

Keith Miller possessed ‘lawful parental rights’ at the time that [Favreau] went to Canada with her

son.” Appellant’s Br. at 20.

The argument is without merit. As a preliminary matter, at the time Favreau went to Canada,

the Vermont order at issue did not exist. Her appeal of that order, thus, could not possibly be

probative of Miller’s rights “at the time that [Favreau] went to Canada with her son.” Nor, however,

could it be probative as to Miller’s parental rights during the period of the indictment—i.e., from

June to December 2002. Those rights, as noted above, stemmed from at least two different court

orders—the June 2000 Massachusetts Family Court order granting Miller at least six supervised

visits, and the September 2002 Vermont Family Court order granting Miller full custody. There is

no contention that the pending appeal of the latter, Vermont order was of any relevance to

consideration of the rights created by the Massachusetts order. Instead, Favreau argues that the

8
pending appeal was relevant to consideration of rights created by the second court order—i.e., the

order she was appealing. Even with respect to this order, we disagree.

Favreau’s argument ignores the basic principle that any “lawful parental rights” created by

the second order came into existence when the order was issued. Indeed, it is a well-established

“basic proposition that all orders and judgments of courts must be complied with promptly” and that

while a party has a right to appeal the order, “absent a stay, he must comply promptly with the order

pending appeal.” Maness v. Meyers, 419 U.S. 449, 458 (1975); McDonald v. Head Crim. Ct.

Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988) (“An order issued by a court must be obeyed,

even if it is later shown to be erroneous.”). Here, no stay of the order was ever requested or issued.

Accordingly, as of September 13, 2002, Favreau was required to comply with the Vermont court

order which gave Miller lawful parental rights to full custody, rights Favreau frustrated by keeping

Robbie outside the United States.

The fact that Favreau was appealing that order was not evidence to the contrary. Indeed, it

could not be evidence to the contrary, because the pendency of the appeal could not itself negate the

existence of Miller’s parental rights while the order was still in effect, which it was during the

period of the indictment. Instead, the pending appeal could, at most, express Favreau’s disagreement

with those rights. Cf. United States v. Kraeger, 711 F.2d 6, 7 (2d Cir. 1983) (per curiam) (“[A]

good-faith misunderstanding of the law may negate willfulness but a good-faith disagreement with

the law does not.” (internal quotation marks omitted)). Because her disagreement with those

rights—as expressed by the appeal—was neither relevant to their existence during the period of the

indictment nor a legal defense to the crime charged, the district court correctly concluded that the

9
pending appeal was not relevant and was thus inadmissible.

More important, however, even were we to disagree with the district court’s assessment of

the relevance of that evidence, we would be unable to conclude that its ruling amounted to “manifest

error.” Cameron, 598 F.3d at 61 (internal quotation marks omitted). As a general matter, we find

“manifest error” only where we are “persuaded that the trial judge ruled in an arbitrary and irrational

fashion.” United States v. Dhinsa, 243 F.3d 635, 649 (2d Cir. 2001) (quoting United States v.

Pipola, 83 F.3d 556, 566 (2d Cir. 1996)). We see no basis on this record for determining that the

district court’s evidentiary ruling—which came after it heard lengthy argument on the motion and

considered the proffered evidence in the context of the trial as a whole—was reached in an “arbitrary

and irrational fashion.”

As discussed above, Favreau moved in limine prior to trial to introduce two pieces of

evidence: first, evidence of her pending appeal of the Vermont family court order, and, second,

evidence of the Canadian court order granting Favreau full custody of Robbie. After a hearing, the

district court denied the motion with respect to the pending appeal, rejecting Favreau’s theory that

it was relevant as a challenge to the validity of that order. With respect to the Canadian custody

order, the court permitted Favreau to introduce evidence of her application for custody in the

Canadian court because of its potential relevance to Favreau’s defense that she lacked the requisite

criminal intent under the statute. However, it precluded any mention of the order itself, finding that

such evidence would be irrelevant and confusing. See Fed. R. Evid. 403; United States v. Beech-Nut

Nutrition Corp., 871 F.2d 1181, 1193 (2d Cir. 1989) (Rule 403 grants courts “broad discretion to

exclude even relevant evidence if its probative value is substantially outweighed by the danger of

10
confusion of the issues or if it would be needlessly cumulative.”) Recognizing as we frequently

have, that the abuse-of-discretion standard for evidentiary rulings allows for a “range of permissible

decisions,” Manley, 337 F.3d at 245 (quoting Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir.

2001)), we have little difficulty concluding that the district court’s ruling here was safely within that

range.

Finally, even were we to find “manifest error,” we would deem that error harmless. As

noted, even manifestly erroneous evidentiary rulings are insufficient to warrant reversal if they do

not “affect substantial rights.” Fed. R. Crim. P. 52. “Whether an evidentiary error implicates a

substantial right depends on the likelihood that the error affected the outcome of the case.” Tesser

v. Bd. of Educ., 370 F.3d 314, 319 (2d Cir. 2004) (internal quotation marks omitted). Here, there

can be no serious claim that the district court’s evidentiary ruling had any likelihood of affecting the

outcome of the case. The government’s evidence of guilt was overwhelming. As discussed further

below, it was able to conclusively establish the elements of the crime based solely on the June 2000

Massachusetts Family Court order—i.e., without consideration of the Vermont order on appeal.

Accordingly, even if knowledge of the pending appeal of the Vermont Family Court order might

have led a reasonable juror to question the existence of the parental rights created by that order, the

government’s evidence was still more than sufficient to allow a reasonable juror to find Favreau

guilty. Thus, we are confident that any “error” made by the district court did not affect the outcome

of the proceedings below.

We therefore affirm the district court’s decision to exclude as irrelevant evidence of the

pending Vermont Supreme Court appeal.

11
 II.

Favreau argues, next, that the district court should have granted a continuance until the

Vermont decision was handed down. We will overturn a district court’s decision to deny a

continuance “only for an abuse of discretion.” Farias v. Instructional Sys., Inc., 259 F.3d 91, 100

(2d Cir. 2001). A defendant must thus show both arbitrariness and prejudice in order to obtain

reversal of the denial of a continuance. Id.

For substantially the reasons set forth above, we find that Favreau has failed to establish

either. Specifically, we conclude that Favreau has not establish prejudice because neither the appeal

nor its ultimate outcome were relevant to the existence of Miller’s rights during the period of the

indictment while the Vermont order was still in effect and Favreau was accordingly bound by it.

Favreau thus cannot establish that awaiting the Vermont Supreme Court decision would either have

given Favreau grounds to move to dismiss the indictment or strengthened her case at trial. Nor does

Favreau identify any basis for concluding that the district court’s decision—which, like its

evidentiary ruling, came after extensive oral argument—was in any way “arbitrary.”

We therefore conclude that the district court did not abuse its discretion in denying the

continuance.

III.

Finally, Favreau claims that there was insufficient evidence presented as to her intent. While

we review such a claim de novo, a defendant challenging the sufficiency of the evidence to support

her conviction “bears a heavy burden,” United States v. Mercado, 573 F.3d 138, 140 (2d Cir. 2008)

(internal quotations omitted), because we affirm where viewed “in the light most favorable to the

12
prosecution, any rational trier of fact could have found the essential elements,” United States v. Ionia

Mgmt. S.A., 555 F.3d 303, 309 (2d Cir. 2009) (per curiam) (internal quotation marks omitted); see

generally Jackson v. Virginia, 443 U.S. 307 (1979). In reviewing such a challenge, “we must credit

every inference that could have been drawn in the government’s favor” and “defer to the jury’s

determination of the weight of the evidence and the credibility of witnesses, and to the jury’s choice

of the competing inferences that can be drawn from the evidence.” United States v. Reifler, 446 F.3d

65, 94 (2d Cir. 2006)(internal quotation marks and citation omitted).

Viewing the evidence in the light most favorable to the government, Favreau does not meet

her burden. The government’s evidence of Favreau’s intent was based on, among other things, her

knowledge of Miller’s parental rights as recognized in the initial divorce decree of March 1999 and

the June 15, 2000 Massachusetts Family Court order. As noted, Favreau’s testimony indicated that,

when she crossed into Canada with Robbie in May 2001, she knew about the June 15 Massachusetts

Family Court order granting visitation rights to Miller. Moreover, she testified that, at the Canadian

border, Favreau presented the June 2 abuse prevention order, even though she knew it had been

superseded by the June 15 order. Accordingly, there was sufficient evidence for a jury to find that,

during the indictment period, Favreau remained in Canada with Robbie despite knowledge of

Miller’s parental rights. On that record, a rational jury could have inferred Favreau’s intent to

obstruct Miller’s parental rights.

CONCLUSION

For all of the foregoing reasons, the judgment of the district court is AFFIRMED.

13
STRAUB, Circuit Judge, dissenting:

The majority today finds that the District Court properly excluded evidence

of Michelle Favreau’s pending appeal to the Vermont Supreme Court as irrelevant to Favreau’s

defense to charges of international parental kidnapping. Because I believe the excluded evidence

tends to show that Favreau lacked the specific intent required by the international parental

kidnapping statute, I would find that the evidence was relevant and that the District Court erred in

excluding it. Therefore, I respectfully dissent.

Under the “very low standard” set by the Federal Rules of Evidence, United States v. Al-

Moayad, 545 F.3d 139, 176 (2d Cir. 2008), evidence is relevant and therefore admissible if it has

“any tendency” to make “any fact” in issue more or less probable than it would be without the

evidence, Fed. R. Evid. 401; see Fed. R. Evid. 402 (“All relevant evidence is admissible . . . .”).

The length of the chain of inferences required to show the probative value of any evidence is not

determinative of whether the evidence is relevant. See United States v. Quattrone, 441 F.3d 153,

188 (2d Cir. 2006) (“[S]o long as a chain of inferences leads the trier of fact to conclude that the

proffered submission affects the mix of material information, the evidence cannot be excluded at

the threshold relevance inquiry.”); United States v. Ravich, 421 F.2d 1196, 1204 n.10 (2d Cir.)

(Friendly, J.) (“The length of the chain of inferences necessary to connect the evidence with the

ultimate fact to be proved . . . does not render the evidence irrelevant.”), cert. denied, 400 U.S.

834 (1970). Likewise, the mere fact that proffered evidence came into existence after the events

that the evidence is proffered to prove does not render the evidence irrelevant. See United States

v. Kelley, 551 F.3d 171, 175-76 (2d Cir.) (per curiam) (finding that fraudulent account statements

sent by defendant two to four years after alleged securities violations were relevant to defendant’s

-1-
intent at the time of the alleged violations), cert. denied, 129 S. Ct. 2756 (2009); see also United

States v. Mangual-Santiago, 562 F.3d 411, 428-29 (1st Cir.) (finding that evidence of bank

account activity after a conspiracy had ended was relevant to defendant’s intent to conceal funds),

cert. denied, 130 S. Ct. 293 (2009); United States v. Alahmad, 211 F.3d 538, 542 (10th Cir. 2000)

(finding, in international parental kidnapping case, that evidence of a court order issued after the

charged period was relevant because the later order found that defendant had violated a prior court

order), cert. denied, 531 U.S. 1080 (2001).1

An essential element of the international parental kidnapping charge against Favreau is

that Favreau removed Robbie from the United States, or retained him outside of the United States,

“with intent to obstruct the lawful exercise of [Keith Miller’s] parental rights.” 18 U.S.C.

§ 1204(a). The majority correctly notes that evidence of the pending Vermont appeal, which did

not exist during the indictment period, could not have been used to argue that Miller did not have

valid parental rights during the indictment period. Maj. Op. at [8-10]. But the majority ignores

another relevant use of the evidence. Evidence of the pending Vermont appeal was relevant to

Favreau’s defense because it tends to show that Favreau took Robbie to Canada with intent of

vindicating her own parental rights, rather than with intent of obstructing Miller’s rights.

That there are several steps to demonstrating the relevance of the Vermont appeal does not

mean that the evidence is irrelevant under Rule 401. See Quattrone, 441 F.3d at 188; Ravich, 421

F.2d at 1204 n.10. The appeal at issue was from a Vermont lower court order denying Favreau’s

1
It should be noted that the District Court’s exclusion of the evidence in this case was
based solely on its determination that the evidence was irrelevant under Rule 401. The District
Court did not go on to consider whether the evidence, even if relevant, would be excludable
under Rule 403, and thus that issue is not before us.

-2-
motion for recognition of a Canadian order that granted Favreau custody of Robbie. The

existence of Favreau’s appeal of the Vermont lower court order suggests that Favreau attempted

to use the Canadian proceedings to vindicate her own parental rights in Vermont. The fact that

Favreau attempted to vindicate her own rights in the Vermont courts, together with the admitted

evidence of the Canadian court proceedings, makes it more likely that she originally brought

Robbie to Canada and retained him there with the intent of obtaining custody of Robbie in Canada

and of then using the Canadian proceedings to vindicate her own parental rights in the United

States. In turn, the fact that Favreau originally took Robbie to Canada and retained him there with

the intent of vindicating her own rights both in Canada and in the United States makes it less

likely that she took this step with the intent of obstructing Miller’s parental rights. Therefore, the

Vermont appeal has some tendency to make a fact in issue less probable and, as a result, is

relevant evidence under Rule 401.

Though they are related, Favreau’s intent to vindicate her own rights and her possible

intent to obstruct Miller’s rights are not one and the same. For example, imagine that Favreau

took Robbie to Canada with the intent of obtaining full custody of Robbie, but also knew that

Miller lived in Canada, or visited daily, and would easily be able to exercise his own parental

rights. In that case, it would be clear that evidence of Favreau’s alternative motive would be

relevant additional evidence to show that Favreau did not travel to Canada with the specific intent

of obstructing Miller’s existing parental rights. In this case, of course, the facts are different and

evidence of Favreau’s alternative motive may be less influential. The weight to give evidence,

however, is a question for the jury and has no bearing on the threshold relevance determination

under Rule 401. See Sir Speedy, Inc. v. L & P Graphics, Inc., 957 F.2d 1033, 1038 (2d Cir. 1992)

-3-
(“Any question as to the weight to be accorded a relevant document is a matter for the jury.”); see

also United States v. Josephberg, 562 F.3d 478, 487-88 (2d Cir.), cert. denied, 130 S. Ct. 397

(2009).

Furthermore, the facts of this case do not preclude Favreau from arguing that she did not

have the intent required by the statute. Contrary to the majority’s suggestion, Maj. Op. at [11], the

mere facts that (1) Miller had existing parental rights, (2) Favreau knew of those rights, and (3)

Favreau took Robbie to Canada do not conclusively prove that Favreau took Robbie to Canada

with the specific intent of obstructing Miller’s parental rights. While, as the majority suggests,

Maj. Op. at [13], a jury could infer from those facts that Favreau intended to obstruct Miller’s

rights, the inference a jury might reasonably draw from Favreau’s knowledge has no bearing in

determining the relevance of the excluded evidence. The question is simply whether admitting

evidence of the Vermont appeal “affects the mix of material information” available to the jury on

the question of Favreau’s intent. Quattrone, 441 F.3d at 188. Again, what relative weight to give

to the excluded evidence is the jury’s role, not ours. See Sir Speedy, 957 F.2d at 1038; see also

Josephberg, 562 F.3d at 487-88.

Likewise, the fact that evidence of the pending Vermont appeal came into existence after

the indictment period does not mean that it is irrelevant.2 Cf. Mangual-Santiago, 562 F.3d at

428-29; Kelley, 551 F.3d at 175-76; Alahmad, 211 F.3d at 542. The relevance of subsequent

evidence of an alternative motive is clearly demonstrated if we imagine that Robbie had a rare

2
The majority may not disagree with this assertion. The majority only points out that the
Vermont appeal “did not exist” at the time Favreau went to Canada in the context of its argument
that the appeal was not relevant to the existence of Miller’s parental rights during the indictment
period. Maj. Op. at [8-9].

-4-
medical condition that could only be treated in Canada. Imagine that, knowing of Miller’s

parental rights and knowing that they would be obstructed, Favreau nevertheless took Robbie to

Canada intending that Robbie receive the medical treatment he needed. Assume further that a

medical report was issued years after Favreau brought Robbie to Canada that confirmed that

Robbie did in fact have the rare medical condition. The report would certainly be probative of

Favreau’s intent in transporting Robbie to Canada, even though the report, like the pending

Vermont appeal, came into existence after the charged period. Such a report would make it more

likely that Favreau transported Robbie to Canada with the intent of obtaining medical treatment

and not with the alternative intent of obstructing Miller’s parental rights. Of course, continuing

the analogy, admitting the medical report into evidence would not entitle Favreau to an acquittal.

But the report would at least be relevant evidence of her actual motivation in traveling to Canada.

So, too, is evidence of the pending Vermont appeal in this case.

For all of the reasons explained above, I would find that the pending Vermont appeal was

relevant. Furthermore, because the District Court ruled that this evidence, which was relevant to

an essential element of the crime of international parental kidnapping, was irrelevant, I would find

that the District Court committed “manifest error” and exceeded its allowable discretion.3 The

majority notes that the abuse-of-discretion standard for evidentiary rulings allows for a “range of

permissible decisions,” Manley v. AmBase Corp., 337 F.3d 237, 245 (2d Cir. 2003) (quoting

Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir. 2001)), by the District Court. However,

3
While there is some support for the proposition that “[r]elevance is a question of law,”
United States v. Torniero, 735 F.2d 725, 730 (2d Cir. 1984), cert. denied, 469 U.S. 1110 (1985),
to be reviewed de novo instead of under an abuse-of-discretion standard, I need not decide that
question because I find error in the District Court’s decision even under the more lenient abuse-
of-discretion standard.

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as discussed above, evidence of the Vermont appeal tended to make a fact in issue—namely,

Favreau’s criminal intent—less likely. The evidence was therefore admissible on the face of

Rules 401 and 402. A finding that relevant evidence is inadmissible as irrelevant is not a

permissible decision under the Federal Rules of Evidence. Furthermore, the evidence was

relevant not just to any issue, but rather to the central issue in the case—Favreau’s intent. See

Weiss v. Chrysler Motors Corp., 515 F.2d 449, 459 (2d Cir. 1975) (“Since we have found that the

exclusion of [the evidence] was critical because of its relevance to the central issue of the case, its

exclusion is manifest error.”). For all of these reasons, the District Court’s exclusion of the

evidence was manifest error.

Likewise, with regard to whether the District Court’s error was harmless, an error

committed at trial is less likely to be harmless if it speaks directly to a critical element of the

prosecution’s case. See Wray v. Johnson, 202 F.3d 515, 526 (2d Cir. 2000) (noting that a

prominent factor in harmless error analysis is whether the trial error “bore ‘on an issue that [was]

plainly critical to the jury’s decision’” (quoting Hynes v. Coughlin, 79 F.3d 285, 291 (2d Cir.

1996))). In this case, the improperly excluded evidence went to the most critical element of the

crime charged—Favreau’s intent—and, therefore, I would find that the District Court’s error was

not harmless.

The majority’s reasoning in finding that any potential error was harmless is not persuasive.

The majority finds that the government “was able to conclusively establish the elements of the

crime based solely on the June 2000 Massachusetts Family Court order,” Maj. Op. at [11], and

therefore concludes that any error in excluding the Vermont appeal was harmless. Of course,

neither the Massachusetts order nor the Vermont order conclusively establishes the elements of

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the crime of international parental kidnapping. As explained above, the fact that Favreau brought

Robbie to Canada while she knew of the court orders does not conclusively show that Favreau had

the requisite criminal intent in bringing Robbie to Canada. As a result, Favreau should be

permitted to introduce evidence tending to show that she did not intend to obstruct Miller’s

parental rights—namely, evidence of the Vermont appeal. While it is possible that the jury could

infer Favreau’s specific intent based only on her mere knowledge of the orders, and that it could

do so even if evidence of the Vermont appeal were admitted, I decline to speculate that evidence

of the Vermont appeal would have no impact on the jury’s decision in this case.

In sum, I find that the District Court exceeded its allowable discretion by excluding

evidence of the Vermont appeal, and, as a result, I would vacate Favreau’s conviction and remand

the case for further proceedings as appropriate, including a new trial. Because I would vacate the

conviction on those grounds, I need not reach Favreau’s other arguments on appeal.

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