United States Court of Appeals
For the First Circuit
No. 02-2215
UNITED STATES OF AMERICA,
Appellee,
v.
FAZAL-UR-RAHEMAN-FAZAL
a/k/a Fazal Raheman,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Selya, Circuit Judge,
Stapleton,* Senior Circuit Judge, and
Howard, Circuit Judge.
Robert Osuna, with whom Law Office of Robert Osuna, P.C. was
on brief, for appellant.
John T. McNeil, Assistant United States Attorney with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
January 21, 2004
* Of the Third Circuit, sitting by designation.
HOWARD, Circuit Judge. Following a seven-day trial, a
jury convicted defendant-appellant Fazal Raheman, M.D., of
international parental kidnapping and illegal interception of wire
communications. See 18 U.S.C. §§ 1204 ("International Parental
Kidnapping Crime Act" or "IPKCA") and 2511(1)(a). This lengthy
appeal requires us to decide, inter alia, (1) whether a parent can
be prosecuted under IPKCA for conduct that would not be criminal
under state law; and (2) whether the district court had sentencing
authority to impose upon Raheman an order requiring his immediate
cooperation in the return of the children. We hold that (1) such
a prosecution is consistent with the language and intent of the
statute; and (2) the district court did not have authority to
impose such an order.
I.
We set forth the facts in the light most favorable to the
verdict. See United States v. Diaz, 300 F.3d 66, 69 (1st Cir.
2002).
After marrying Saihba Ali in India in May 1990, Raheman
and his wife returned to Massachusetts, where he had been employed
for the past year. In 1992, the couple became permanent residents.
Later that year, their child, a daughter, was born in
Massachusetts, making her an American citizen by birth. A son was
born in India in 1996; he became a naturalized American citizen two
years later.
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By 1996, Ali's and Raheman's marriage was suffering.
Raheman had become concerned that Ali had become too independent,
and he had repeatedly threatened to send the children to India to
live with his mother if her behavior persisted. On September 17,
1997, Ali moved herself and the children from the family home in
Burlington, Massachusetts, to an apartment in Cambridge,
Massachusetts.
Displeased by his wife's action, Raheman again threatened
to move the children to India. He also told Ali that, if she went
to the police or the courts regarding their separation or his
threats, he "would become a lethal weapon." In early October
1997, Ali informed Raheman that, because of his threats, she would
have to go to the police or courts for help. Raheman then changed
his tactics and told her that he would not remove the children to
India. He requested, however, that she not take him "in front of
a judge." At this juncture, Raheman and Ali began to discuss legal
separation, but Raheman insisted that the separation take place
without resort to the American legal system.
Meanwhile, Raheman was covertly monitoring his wife's
activities. He had a miniature video camera surreptitiously
installed in her bedroom, hired a private investigator to follow
and videotape her, and asked his nephew to move into Ali's
apartment building to spy. In addition, from November 1, 1997,
through November 11, 1997, Raheman tapped Ali's apartment
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telephone. During this period, he surreptitiously recorded "more
than 100 hours" of her private conversations.
On November 14, 1997, Raheman traveled to his former home
in Nagpur, India. There, he enrolled his daughter in school and
filed a petition for custody of the children in the Nagpur Family
Court, alleging that his wife was engaged in an adulterous
relationship and that, as a result, he should be awarded custody.
He returned to the United States on November 18, 1997.
On November 25, 1997, Raheman arranged to visit his
children the next day. Raheman informed Ali that he planned to
take the children to a museum and would return them later in the
evening. He told Ali nothing of his recent trip to India. Later
that same day, he purchased airline tickets for himself and the
children to fly from New York to India on November 26th. The
children's tickets were one way.
After picking up the children early in the afternoon on
November 26th, Raheman drove to New York but missed the flight.
They flew to India the next day. At the time Raheman left the
United States, he and Ali were still married and there existed no
court order or agreement between them affecting custody of the
children.
At Raheman's request, one of his cousins telephoned Ali
with the news that Raheman and the children were on a flight to
India. After receiving this call, Ali called the police to report
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that her children had been kidnapped. Two days later, Ali
obtained from a Massachusetts Probate Court an emergency custody
order, which a Cambridge police officer subsequently read to
Raheman over the telephone. Soon thereafter, on December 2, 1997,
Raheman obtained his own custody order from the Nagpur Family
Court.
Between November 1997 and August 1998, Ali sought the
assistance of several federal agencies in an unsuccessful attempt
to obtain lawful physical custody of her children. In addition,
she obtained United States citizenship for herself and her son and
hired a lawyer in India.
In late August 1998, Ali traveled to India to attempt to
obtain custody of her children from the India courts. Raheman
fought her efforts and filed several criminal complaints against
her. Before Indian authorities could apprehend her, Ali fled to
the United States. In September 2000, while Ali was in the United
States, Raheman obtained from the Indian court a second custody
order based primarily on a provision of Islamic law that grants a
father full custody if the mother lives a significant distance from
the father.
On July 25, 2001, Raheman was indicted by a federal grand
jury on one count of international parental kidnapping. See 18
U.S.C. § 1204. Later in 2001, upon returning to the United States
to participate in a civil lawsuit, Raheman was arrested on the
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federal charge. On January 16, 2002, a grand jury returned a
superseding indictment which added one count of unlawful
wiretapping. See 18 U.S.C. § 2511(1)(a). On March 6, 2002,
Raheman was convicted on both counts. He was sentenced to three
years of imprisonment, to be followed by three years of supervised
release. Additionally, he was ordered to cooperate immediately in
the return of the children to Ali's custody.
This appeal followed.1
II.
We are presented with six issues on appeal: (1) whether
Raheman's conduct falls within the criminal prohibitions of IPKCA,
and, if so, whether the statute is unconstitutional as applied to
him; (2) whether the district court erred in instructing the jury
that, as a matter of law, both Ali and Raheman had parental rights
to physical custody of the children at the time Raheman took them
to India; (3) whether the district court abused its discretion in
admitting evidence of threats allegedly made by Raheman against
Ali; (4) whether the jury instructions on the wiretapping charge
were constitutionally insufficient in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000); (5) whether the district court imposed
1
On December 23, 2002, subsequent to filing his notice of
appeal, Raheman filed a motion to set aside his conviction pursuant
to 28 U.S.C. § 2255. That motion is pending in the district court.
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an improper "forthwith" order; and (6) whether trial counsel was
ineffective.2
A. The International Parental Kidnapping Crime Act
Raheman's principal argument on appeal is that his IPKCA
conviction should be reversed for two separate reasons: (1) "the
evidence adduced at trial . . . fails to state a crime [under
IPKCA]" because the charged conduct has not been criminalized by
state law; and (2) the statute "is unconstitutional as applied to
[him]." Our standard of review is de novo. See United States v.
Robinson, 137 F.3d 652, 653 (1st Cir. 1998) ("We review de novo
constitutional challenges to federal statutes."); United States v.
Jones, 10 F.3d 901, 904 (1st Cir. 1993) ("Statutory interpretation
is a question of law and, therefore, is subject to de novo
review.").
We note at the outset an undisputed fact: under
Massachusetts law, Raheman did nothing criminal. In Commonwealth
v. Beals, 541 N.E.2d 1011, 1015 (Mass. 1989), the Supreme Judicial
Court made clear that "[a] parent who has taken his or her children
from the other parent before there was any court proceeding cannot
be convicted of parental kidnapping under [Mass. Gen. L. ch.] 265,
2
Raheman has also raised several pro se arguments, each of
which we have considered. Because these arguments are without
merit, we summarily reject them.
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§ 26A." (emphasis added).3 Since Raheman removed his children –-
residents of Massachusetts -- prior to such a proceeding, he could
not have been convicted of kidnapping under state law. Of course,
that a particular State fails to prohibit certain conduct does not
obligate Congress to do the same.
(1) Statutory Analysis
In 1993, by virtue of its commerce power, see United
States v. Cummings, 281 F.3d 1046, 1051 (9th Cir.), cert. denied,
537 U.S. 895 (2002), and to "deter the removal of children from the
United States to foreign countries in order to obstruct parental
rights," Congress passed the International Parental Kidnapping
Crime Act, which creates a "[f]ederal felony offense of
international parental kidnapping." H.R. Rep. No. 103-390, at 1
(1993), reprinted in 1993 U.S.C.C.A.N. 2419, 2419 (emphasis added).
The legislative history explains that IPKCA was enacted as a
domestic response to issues left unaddressed by international law:
There is an international civil mechanism
relating to these cases, the Hague Convention
on International Parental Child Kidnapping,
3
Mass. Gen. L. ch. 265, § 26A provides as follows:
Whoever, being a relative of a child less than eighteen
years old, without lawful authority, holds or intends to
hold such a child permanently or for a protracted period,
or takes or entices a child from his lawful
custodian . . . shall be punished by imprisonment . . . .
(emphasis added).
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for which Congress passed implementing
legislation in 1988. As a result of this
convention, the signatories will recognize the
custody decrees of other signatories, thereby
facilitating the return of abducted children.
However, most countries (including India) are
not signatories to the Convention, thus
leaving individual countries to take whatever
legal unilateral action they can to obtain the
return of abducted children.
Creating a federal felony offense responds to
these problems . . . .
Id. at 3 (parenthetical and emphases added).
With these goals in mind, the statute provides, in
pertinent part, as follows:
(a) Whoever removes a child from the United
States, or attempts to do so, or retains a
child (who has been in the United States)
outside the United States with intent to
obstruct the lawful exercise of parental
rights shall be fined under this title or
imprisoned not more than 3 years, or both.
(b) As used in this section –- . . . (2) the
term "parental rights", with respect to a
child, means the right of 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.
Raheman was convicted under § 1204(a) for "remov[ing] a
child from the United States . . . or retain[ing] a child . . .
outside the United States with intent to obstruct the lawful
exercise of parental rights" -- conduct that, as indicated above,
is not criminal under Massachusetts law. See Beals, 541 N.E.2d at
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1015. He now argues that the government "has made a federal
offender out of a person [acting] in the lawful exercise of his own
parental rights granted under his own state law [thereby] . . .
creat[ing] an impermissible expansion of the use of IPKCA beyond
that which was intended by Congress." More specifically, he
contends that, "absent a custody order, a person may not be
properly charged with either removal or retention" of his own
child.
We are thus presented with the question of whether a
parent can be convicted under IPKCA for engaging in conduct that
would not itself be criminal under state law. It is a question of
first impression in this circuit and one we answer in the
affirmative.
That IPKCA looks to state family law for purposes of
defining "parental rights," see 18 U.S.C. § 1204(b)(2); see also
H.R. Rep. at 4 ("'Parental rights' are to be determined by
reference to state law . . . ."), does not in any way suggest that
the statute depends upon state criminal law to delineate the realm
of circumstances through which such rights are transgressed. By
prohibiting those situations in which a parent "removes a child
from the United States . . . with intent to obstruct the lawful
exercise of parental rights," 18 U.S.C. § 1204(a), Congress went
further than Massachusetts, which does not criminalize such conduct
absent a prior court proceeding. See Beals, 541 N.E.2d at 1015;
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cf. Cummings, 281 F.3d at 1051 ("[W]hile we recognize that issues
of family law are usually matters for the States, IPKCA deals first
and foremost with international parental kidnapping, which is an
area not traditionally reserved to the States. We therefore reject
[defendant's] argument that § 1204(a) trammels the States'
authority.").
Nowhere in the text of the statute or the legislative
history does Congress limit the criminal prohibition in 18 U.S.C.
§ 1204(a) to only those acts that are criminal under state law.
Compare 18 U.S.C. § 1204(a) ("Whoever removes a child from the
United States, or attempts to do so . . . .") with Mass. Gen. L.
ch. 265, § 26A ("Whoever . . ., without lawful authority, holds or
intends to hold such a child permanently or for a protracted
period . . . .") (emphases added). Congress could have provided
for the imprisonment of any person who, in violation of State law,
removes a child from the United States. It did not do so, and this
court will not infer such a limitation where the statutory language
does not support it. See Campanale & Sons, Inc. v. Evans, 311 F.3d
109, 117 (1st Cir. 2002) ("Our general rules of statutory
interpretation dictate a narrow course for us on review: unless the
statutory language is ambiguous, we generally are limited by its
plain meaning." (citation omitted)).
Although none of our sister circuits has addressed the
issue here presented, some have had the opportunity to apply IPKCA.
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See United States v. Amer, 110 F.3d 873, 878-79 (2d Cir. 1997)
(affirming defendant's conviction under IPKCA without referring to
New York's criminal law); United States v. Alahmad, 211 F.3d 538,
541 (10th Cir. 2000) (affirming defendant's conviction under IPKCA
-- without reference to Colorado's criminal law -- upon concluding
that a grandparent had a "parental right" by virtue of a state
court order); United States v. Cummings, 281 F.3d 1046 (9th Cir.
2002) (affirming conviction without an examination of the State of
Washington's criminal law). Raheman argues that the holdings in
these cases support his view of the statute. They do not, for
neither the Second Circuit in Amer, nor the Tenth Circuit in
Alahmad, nor the Ninth Circuit in Cummings held -– or otherwise
hinted -- that the respective convictions under IPKCA hinged on the
criminal law of the respective State.
Having determined that a parent can be prosecuted under
IPKCA without necessarily having violated state criminal law, we
must next consider whether Raheman is such a parent. In short, we
agree with the government that Raheman's conduct was a "textbook
case of international parental kidnapping, falling squarely within
the ambit of the federal statute."
On the day Raheman removed the children from
Massachusetts to India, Ali had a "right of physical custody" of
the children under Massachusetts law. See 18 U.S.C. § 1204(b); see
also Beals, 541 N.E.2d at 1014 ("[T]he law of Massachusetts
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recognizes both parents' equal rights to custody of their
children." (citations omitted)). In Beals, the Supreme Judicial
Court expressly recognized "the principle that, prior to a court
order, both parents have lawful custody of their children . . . ."
Id. (emphasis added). That Raheman and Ali shared custody of their
children is of no import under the federal statute. See 18 U.S.C.
§ 1204(b)(2) ("[T]he term 'parental rights,' with respect to a
child, means the right of 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." (emphases added)). Accordingly,
for IPKCA purposes, Ali had "parental rights" that were federally
enforceable and incapable of being extinguished by Raheman's
ability under state law to take exclusive possession of the
children without repercussion. See Art. VI, cl. 2, U.S. Const.
The jury having found that Raheman removed his children from the
United States with the "intent to obstruct the lawful exercise" of
these rights, 18 U.S.C. § 1204(a), we conclude that Raheman was
properly convicted of a federal offense under IPKCA.
(2) Constitutional Considerations
Raheman next argues that, because he had no notice that
he was committing a crime, IPKCA deprives him of his constitutional
rights to due process. See U.S. Const., Amend. V. Specifically,
he contends that
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[n]owhere in the IPKCA text, the case law, or
the legislative history does it state that a
parent will be prosecuted under IPKCA when
exercising their own rights under state law.
Nowhere is there an expressed or even implied
intent to alter, expand, subvert or ignore
state custody law/rights. . . . As in this
case, if a defendant is not violating a court
order, a legally binding agreement or the
operation of his own state law . . ., he has
not been given notice of a crime [that] he is
committing outside of these parameters.
We are unpersuaded. Both IPKCA's language and its
application to Raheman's situation are straightforward: so long as
Ali had "parental rights" –- a term encompassing even mere
visitation rights –- Raheman was not permitted to take the children
outside the United States with the intent to obstruct those rights.
See 18 U.S.C. § 1204(a). We therefore conclude that Raheman had
fair warning under the statute; in other words, as here applied,
IPKCA's prohibitions were "sufficiently definite to apprise a
person of ordinary intelligence that his anticipated behavior will
transgress the law." United States v. Arcadipane, 41 F.3d 1, 5
(1st Cir. 1994) (citation omitted). That Raheman might have been
ignorant of IPKCA or confused about Congress's authority to
prohibit conduct not proscribed by state law is insufficient to
prove a deprivation of due process. See United States v. Denis,
297 F.3d 25, 28 (1st Cir. 2002) ("It is a fundamental maxim of our
legal system that 'ignorance of the law or a mistake of law is no
defense to criminal prosecution.'") (quoting Cheek v. United
States, 498 U.S. 192, 199 (1991)).
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B. Jury Instructions as to Ali's Parental Rights
Raheman next complains that the district court erred in
instructing the jury that, as a matter of law, Ali had "parental
rights" under Massachusetts law.4 He argues that, because such a
question is "a mixed question of law and fact for the jury," these
instructions violated his constitutional right to a jury trial.
Raheman concedes that he did not offer a contemporaneous objection
to the instruction. Nevertheless, he contends that the court's
failure to instruct the jury on the "parental rights" element of
4
Regarding the parental kidnapping charge, the district court
instructed the jury, in pertinent part, as follows:
Now, what are these "parental rights" that we've been
talking about? I'm about to instruct you on that.
The term "parental rights," with respect to a child,
means the right to physical custody of the child, whether
joint or sole, and includes visitation rights.
The right to physical custody or visitation can arise in
three ways: by operation of law, by court order, or by a
legally binding agreement. The right to physical custody
is the right to actual possession and control of a child.
In Massachusetts, both parents have joint custody of a
minor child prior to the intervention of a court. 'The
law of Massachusetts recognizes both parents' equal
rights to custody of their children. . . . Prior to a
court order, both parents have lawful custody of their
children.' Both parents' right to physical custody
continues unless and until it is terminated by specific
legal proceedings. Because there was no court order from
any court and no legally binding agreement between the
parties, on November 26, 1997, both Dr. Raheman and Ms.
Ali had the right to physical custody of their children.
(emphasis added).
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the offense was a structural error which requires "automatic
reversal."
Raheman's "automatic reversal" argument is wrong because
the alleged error is not "structural."5 The Supreme Court has
limited the definition of a structural error to those errors that
"infect the entire trial process." See Brecht v. Abrahamson, 507
U.S. 619, 630 (1993). The Court has classified an error as
structural in only "a very limited class of cases." Johnson, 520
U.S. at 468. Examples include complete denial of counsel,
see Gideon v. Wainwright, 372 U.S. 335 (1963), presence of a biased
trial judge, see Tumey v. Ohio, 273 U.S. 510 (1927), racial
discrimination in the selection of a grand jury, see Vasquez v.
Hillery, 474 U.S. 254 (1986), denial of self-representation at
trial, see McKaskle v. Wiggins, 465 U.S. 168 (1984), denial of a
public trial, see Waller v. Georgia, 467 U.S. 39 (1984), and
offering a defective reasonable doubt instruction, see Sullivan v.
Louisiana, 508 U.S. 275 (1993). Moreover, the Court has expressly
held that the error Raheman alleges -- that the instructions
omitted an element of the offense from the jury's consideration --
5
Even if this were a structural error, Raheman would still not
be entitled to "automatic reversal" because he failed to preserve
his objection. In Johnson v. United States, 520 U.S. 461, 466
(1997), the Supreme Court assumed that an error was "structural"
but nevertheless held that, because the defendant had failed to
preserve his objection, "plain error" appellate review applied.
See also United States v. Randazzo, 80 F.3d 623, 631-32 (1st Cir.
1996) (predicting Supreme Court ruling that unpreserved structural
errors would be subject to plain error review).
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does not constitute structural error. See Neder v. United States,
527 U.S. 1, 7-11 (1999). Just this term, the Supreme Court
unanimously reiterated that "the trial court's failure to instruct
a jury on all of the statutory elements of an offense is subject to
harmless-error analysis" and therefore is not a structural error.
Mitchell v. Esparza, 124 S.Ct. 7, 11 (2004) (per curiam) (citing
cases).
In both Mitchell and Neder, the Supreme Court
distinguished its decision in Sullivan v. Louisiana, 508 U.S. 275
(1993) -- the primary case on which Raheman relies to argue that he
is entitled to "automatic reversal." In Sullivan, the Court held
that the trial court committed a structural error by failing to
instruct the jury that the government must prove the elements of an
offense beyond a reasonable doubt because failing to provide a
correct reasonable doubt instruction "vitiates all the jury's
findings." Id. at 281 (emphasis in original). Mitchell and Neder
distinguished Sullivan because, while the erroneous reasonable doubt
instruction in Sullivan affected all of the jury's findings, the
failure to instruct the jury on a single element of an offense does
not have the same impact on the jury's other conclusions. See 124
S.Ct. at 11; 527 U.S. at 11. Accordingly, the Court determined that
an appellate court should examine the evidence introduced at trial
to decide if the trial court's failure to instruct on a single
element of the offense was harmless. Id. Because Raheman's
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argument resembles Neder and Mitchell, in that he alleges that the
district court prevented the jury from considering one element of
the offense (i.e., the existence of parental rights), Sullivan's
automatic reversal rule does not apply.
Having concluded that Raheman's underlying argument, if
correct, does not mandate automatic reversal, we apply our
traditional plain error analysis to review his claim. See Fed. R.
Crim. P. 52(b). To establish plain error, Raheman must demonstrate
(1) an error, (2) that is plain, (3) that affects substantial rights
(i.e., the error was not harmless), and (4) that seriously
undermines the fairness, integrity, or public reputation of judicial
proceedings. See Ramirez-Burgos v. United States, 313 F.3d 23, 29
(1st Cir. 2002). Because we conclude that any error did not affect
Raheman's "substantial rights," we proceed directly to the third
prong of the plain error analysis.
Under IPKCA, parental rights (e.g., the right to physical
custody of the child whether joint or sole) can be defined by
operation of law, court order, or legally binding agreement. The
district court began its instructions by telling the jury that,
under Massachusetts law, both parents, absent a court order or
legally binding agreement, maintain equal rights to the physical
custody of their children. "In criminal cases . . . the judge must
be permitted to instruct the jury on the law and to insist that the
jury follow [her] instructions." United States v. Gaudin, 515 U.S.
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506, 513 (1995). Thus, where a federal prosecution hinges on an
interpretation or application of state law, it is the district
court's function to explain the relevant state law to the jury.
See United States v. Clements, 588 F.2d 1030, 1037 (5th Cir. 1979).
Accordingly, the district court acted properly by explaining to the
jury the Massachusetts definition of parental rights.
The only possible error in the district court's
instruction was that it did not permit the jury to apply the
relevant facts to the legal definition of parental rights to decide
whether this element of the crime had been satisfied.6 See Gaudin,
515 U.S. at 513 (noting that the jury must decide "guilt or
innocence on every issue, which includes application of the law to
the facts"). Deciding whether Ali had parental rights under
Massachusetts law required the determination of three factual
issues: (1) whether Ali was the mother of the children; (2) whether
there existed a court order altering the custody rights as
established by operation of law; and (3) whether there existed an
agreement between her and Raheman altering the custody rights.
The answers to these questions were never in dispute.
There was no evidence whatsoever that Ali did not possess parental
rights under Massachusetts law. Ali's maternity status was
undisputed, and there was no evidence of a court order or binding
6
After providing the definition of parental rights, the court
instructed that Ali had parental rights over the children as a
matter of law.
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agreement between the parties that altered the custody status of the
children prior to their removal. Thus, even if the instruction
erroneously took the issue from the jury, the error did not affect
Raheman's "substantial rights" because no reasonable jury could have
harbored a reasonable doubt that Ali possessed parental rights over
the children under Massachusetts law. Accordingly, there was no
plain error in the district court's instruction.
C. Evidentiary Ruling
Raheman next argues that the district court erred in
admitting "overly prejudicial [Fed. R. Evid.] 404(b) evidence" of
alleged domestic violence. Our review is for abuse of discretion.
See Larch v. Mansfield Mun. Elec. Dept., 272 F.3d 63, 72 (1st Cir.
2001); see also Udemba v. Nicoli, 237 F.3d 8, 14 (1st Cir. 2001)
("[A] trial court enjoys considerable discretion in connection with
the admission or exclusion of evidence. . . .").
In the fall of 1997, following the marital separation,
Raheman allegedly made two threats against Ali. At trial, Ali
provided the following testimony regarding these two incidents:
ALI: Initially, he seemed mystified that I
had . . . moved out of the house, and he wanted
to know . . . why that happened. And then, the
next day, he was extremely angry and upset and
he came over to the house and he told me that
he was going to take my daughter, Nida, to
India and he came looking for her
passport. . . . And then, he said, 'I'm going
to come back here tomorrow and drag you by the
hair and I'm going to take you home.'
DEFENSE COUNSEL: Objection.
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COURT: Overruled.
. . .
ALI: [Then,] [h]e told me that if I went to the
police or the court for a separation or
anything like that, he would become a lethal
weapon . . . .7
Prior to trial, the district court had determined that the
evidence of these threats was outside the purview of Fed. R. Evid.
404(b):
And anything that happened in September,
October, November [1997] are part of the
buildup . . . . Issues of adultery, issues of
domestic abuse -- their relationship in that
critical time period is essential to both of
7
Following this testimony, Ali was asked whether Raheman had
made any comments about restraining orders. Raheman objected, the
district court overruled his objection, and Ali responded:
He said to me that, if you thought that you could go to
the police and get a restraining order against me, that's
not going to help you because a restraining order comes
into effect only when it's violated and then it could be
too late.
Raheman thereafter objected and moved for a mistrial. At a
sidebar conference, the judge expressed some concern about the
graphic nature of both the restraining-order evidence and the
threat evidence already admitted, stating at one point that she
might have excluded the evidence under Rule 403 had she known its
nature in advance. The court thereafter denied Raheman's mistrial
motion but struck the restraining-order testimony, instructing the
jury that such evidence had "nothing to do with this particular
proceeding." The court did not, however, strike the threat
evidence that had earlier been admitted.
Thus, our task is to decide whether the admission of the
remaining threat evidence was within the court's discretion. For
the reasons set forth in the text, we conclude that it was. We
also reject Raheman's contention that the district court erred in
denying his motion for a mistrial.
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their states of mind. . . . I don't think
they're 404(b)'s. I think that's just part of
understanding your intent and your state of
mind.
Fed. R. Evid 404(b) provides that "[e]vidence of other
crimes, wrongs, or acts is not admissible to prove the character of
the person in order to show action in conformity therewith"
(emphasis added). Here, the district court supportably concluded
that Ali's testimony was not being introduced as evidence of
Raheman's character for violence or criminal propensity; rather, it
was being introduced as part of Ali's necessary description of the
events leading up to the crimes and as intrinsic evidence of an
element of the charged offense –- Raheman's intent to obstruct the
lawful exercise of Ali's parental rights. See, e.g., United States
v. Shea, 159 F.3d 37, 39 (1st Cir. 1998). Accordingly, the court
acted within its discretion both in declining to treat the testimony
as "404(b) evidence" and in determining its admissibility under
Rules 401 and 403.
Rule 401 defines "relevant evidence" as "evidence having
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." Here, the district
court supportably treated the evidence of Raheman's threats as
relevant because, as stated above, it tends to show that Raheman
intended to deprive Ali of her parental rights. Specifically, Ali's
testimony as to the nature of the marriage and the manner in which
-22-
it dissolved (including the threats) provided a glimpse into
Raheman's otherwise internalized state of mind, thereby assisting
the jury in understanding the motivating factors behind Raheman's
decision to kidnap the children. From this evidence, the jury
easily could have inferred that Raheman held a great deal of animus
towards Ali, that (should she take any action) he intended to punish
her, and that, by kidnapping the children, he accomplished his goal.
So too did the district court act within its discretion
in not barring the evidence under Rule 403, which permits the
exclusion of relevant evidence "if its probative value is
substantially outweighed by the danger of unfair prejudice . . . ."
Raheman contends that the "evidence was used for nothing more than
to prejudice the jury by demonstrating criminal propensity and for
stirring up in the jury, anti-Muslim fervor."8 But there is no
indication that this evidence did –- or could have -- caused such
a stir. Nor is there any indication that the government attempted
to draw upon any anti-Muslim prejudices that might have existed.
Indeed, given the fact that both the mother and the children were
themselves Muslim, Raheman's assertion is a bit difficult to
comprehend. Accordingly, we cannot conclude that admitting the
challenged evidence was an abuse of discretion. See Freeman v.
Package Machinery Co., 865 F.2d 1331, 1340 (1st Cir. 1988) ("Only
8
For support, Raheman notes that "[t]he trial occurred in
Boston less than one year after the terror attacks of September 11,
2001."
-23-
rarely –- and in extraordinarily compelling circumstances –- will
we, from the vista of a cold appellate record, reverse a district
court's on-the-spot judgment concerning the relative weighing of
probative value and unfair effect."); see also United States v.
Currier, 821 F.2d 52, 55 (1st Cir. 1987) ("[W]e will interpose our
judgment only if a complaining party can demonstrate that the
district court's ruling did not fall within the ambit of reasonable
debate.").
D. Apprendi Allegation
Turning to the wiretapping conviction, Raheman contends
that "[t]he district court created a structural defect in not
instructing the jury on the separate offenses included in 18 U.S.C.
§ 2511." Specifically, he claims that the Supreme Court's decision
in Apprendi v. New Jersey, 530 U.S. 466 (2000), required the
district court to instruct the jury on the "three separate offenses"
that comprise 18 U.S.C. § 2511(4) because each "offense" has a
different maximum penalty provision. In considering this argument,
we again apply plain-error review because of Raheman's failure to
object at trial.9 See supra at 18 (listing elements of plain-error
review). This time, because there was no error, Raheman's argument
9
Raheman argues again that this error was "structural" and
therefore we should not apply plain error review. As we explained
above, plain error applies even if the alleged error is properly
classified as structural. See supra at 16 n.5; see also United
States v. Pérez-Ruiz, 353 F.3d 1 (1st Cir. 2003) (holding that
Aprrendi error is not structural). In any event, as explained
below, there was no error at all.
-24-
falters at the first step of the plain-error analysis. 18 U.S.C.
§ 2511(4) does not define three separate offenses; it defines one
offense with several possible mitigating factors. As we will
explain, these mitigating factors do not need to be submitted to the
jury under Apprendi.
We begin with the relevant terms of 18 U.S.C. § 2511.10
That statute makes it unlawful, inter alia, to intentionally
intercept any wire, oral or electronic communication.11 For
punishment, the statute refers to 18 U.S.C. § 2511(4), which
provides that a person in violation of 18 U.S.C. § 2511(1)(a) "shall
be fined . . . or imprisoned [for] not more than five years, or
both" and then defines limited circumstances under which a defendant
is eligible for a shorter maximum sentence. If the offense is,
inter alia, (1) a first offense, (2) that was not committed for a
tortious or illegal purpose or for a commercial advantage or gain,
10
This statute was recently amended, but Raheman's trial
occurred before the amendments took effect. We refer throughout to
the pre-amendment version of the statute.
11
18 U.S.C. §2511(1)(a) states, in pertinent part:
Except as otherwise specifically provided in this chapter
any person who intentionally intercepts, endeavors to
intercept, or procures any other person to intercept or
endeavor to intercept, any wire, oral, or electronic
communication . . . shall be punished as provided in
subsection (4).
-25-
(3) and the intercepted communication is not scrambled or encrypted,
the defendant may receive a reduced maximum penalty.12
Raheman claims that Apprendi mandates that the jury
consider these additional factors as elements of the offense because
they determine the applicable maximum sentence. He is wrong.
12
18 U.S.C. § 2511(4) provides, in pertinent part:
(a) [W]hoever violates subsection (1) of this section
shall be fined under this title or imprisoned not more
than five years, or both.
(b) If the offense is a first offense under paragraph (a)
of this subsection and is not for a tortious or illegal
purpose or for purposes of direct or indirect commercial
advantage or private commercial gain, and the wire or
electronic communication with respect to which the
offense under paragraph (a) is a radio communication that
is not scrambled, encrypted, or transmitted using
modulation techniques the essential parameters of which
have been withheld from the public with the intention of
preserving the privacy of such communication, then--
(i) if the communication is not the radio portion
of a cellular telephone communication, a cordless
telephone communication that is transmitted between
the cordless telephone handset and the base unit, a
public land mobile radio service communication or a
paging service communication, and the conduct is
not that described in subsection (5), the offender
shall be fined under this title or imprisoned not
more than one year, or both; and
(ii) if the communication is the radio portion of a
cellular telephone communication, a cordless
telephone communication that is transmitted between
the cordless telephone handset and the base unit, a
public land mobile radio service communication or a
paging service communication, the offender shall be
fined under this title.
-26-
In Apprendi, the Supreme Court held that "[o]ther than the
fact of a prior conviction, any fact that increases the penalty for
a crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490
(emphasis added). The Court stressed that its decision applied "to
facts in aggravation of punishment" but not to "facts in
mitigation." Id. at 490 n.16. It explained that, where a judge
finds a fact that allows a defendant to "escape the statutory
maximum," the judge is "neither expos[ing] the defendant to a
deprivation of liberty greater than that authorized by the verdict
according to statute, nor . . . imposing upon the defendant a
greater stigma than that accompanying the jury verdict alone." Id.
Therefore, facts that, if found, would only decrease the otherwise-
applicable maximum sentence (i.e., mitigating factors) may,
consistent with Apprendi, be decided by the court. Id.
The Second, Fourth, and Sixth Circuits, in applying
Apprendi, have established a useful methodology for distinguishing
between aggravating and mitigating factors. See United States v.
Hamlin, 319 F.3d 667, 670-71 (4th Cir. 2003); United States v.
Campbell, 317 F.3d 597, 603 (6th Cir. 2003); United States v. Outen,
286 F.3d 622, 636-39 (2d Cir. 2002). Under this methodology, the
court first ascertains the "baseline" or "default" statutory
provision (i.e., the provision which states a complete crime upon
the fewest facts). The court then examines the additional
-27-
sentencing provisions to determine their effect on the maximum
punishment described in the baseline. If a fact increases the
maximum penalty, it is an aggravating factor that must be submitted
to the jury under Apprendi. If a fact decreases the maximum
penalty, it is a mitigating factor that may be decided by the court.
See Outen, 286 F.3d at 639.
Applying this methodology to 18 U.S.C. § 2511(4)
demonstrates that the statute establishes one crime with several
possible mitigating factors. The baseline crime provides that any
individual who "intentionally intercepts, endeavors to intercept,
or procures any other person to intercept or endeavor to intercept,
any wire, oral or electronic communication . . . shall be
fined . . . or imprisoned not more than five years, or both." 18
U.S.C. § 2511(1)(a) & (4)(a). The statute then states that if "the
[baseline] offense" was committed under certain factual
circumstances, lower maximum sentences apply. 18 U.S.C. §
2511(4)(b). Thus, the additional facts stated in 18 U.S.C. §
2511(4)(b), if found, would have served only to decrease the maximum
sentence which Raheman faced for violating the baseline offense
stated in 18 U.S.C. § 2511(1)(a). Therefore, there was no Apprendi
error in the district court deciding for itself whether Raheman met
these mitigating factors.
-28-
E. The "Forthwith" Order
Raheman next contends that "the [district] court erred in
imposing as a condition of supervised release that [he] shall
'forthwith' take all reasonable measures to return the children to
the United States." See U.S.S.G. § 5D1.3(b) (authorizing the court
to impose, in addition to the mandatory conditions of supervised
release, "other conditions of supervised release" to the extent that
such conditions comply with various statutory requirements).
Because the imposition of the challenged order hinges upon the
sentencing court's conclusions of law, our review is plenary. See
United States v. Matos, 328 F.3d 34, 38 (1st Cir. 2003).
In its imposition of judgment, under the heading
"Conditions of Supervised Release," the district court imposed upon
Raheman the standard conditions -- with a single addition:
The Defendant shall forthwith take all
reasonable measures within his control to
return the children to the United States so
that the Middlesex Probate Court (or other
appropriate court) may determine child custody
issues, and shall cooperate with all
authorities in the United States, India, and
elsewhere, to effectuate their return.
(emphasis added).
Due to its "forthwith" language, this order generated
significant confusion. On three separate occasions, the court
elaborated the provision's meaning: in an order dated November 18,
2002, the court noted that "the order went into effect immediately
pursuant to 18 U.S.C. § 3664(f)(4) and 28 U.S.C. § 1651 [because]
-29-
[s]taying the order until supervised release would frustrate the
rights of the victims (the mother and the two children) and [would]
be unenforceable because defendant will be deported"; in an order
dated February 11, 2003, the court again emphasized that "[t]he
order was made effective immediately upon entry of judgment because
postponement of the effective date of the order until the start of
supervised release would not provide an adequate remedy for the
victims of the crime . . ." (emphasis retained); and, at a hearing
in March 2003, the court explained that, "if it hasn't been crystal
clear, which I think it has been, let me just reiterate, it was
forthwith –- it was not a condition of supervised release, because
by the time I hit supervised release, the children are of an age
where either it's just a moot point or under Muslim law, I'm told,
it makes a difference . . . ."13 At the March 2003 hearing, the
court denied the government's request for a contempt hearing,
stating: "I have denied it, because I want to see what the First
Circuit is going to do first . . . . [U]sually all orders are
conditions of supervised release. This is different. This was
immediate, forthwith, as you all know, because otherwise you
basically removed the relief."
Clearly, then, despite its placement under the heading
"Conditions of Supervised Release," the challenged order was not a
13
The district court was presented with information that, under
Islamic law, a mother has a right of physical custody only until
daughters reach puberty and sons reach the age of seven.
-30-
condition of supervised release; rather, it was an order designed
to take effect immediately (i.e., while Raheman was serving his
prison term). So understood, the authority to pass such an order
could not derive from U.S.S.G. § 5D1.3 because the provisions of
that guideline only involve "conditions of supervised release." See
also 18 U.S.C. § 3624(e) ("The term of supervised release commences
on the day the person is released from imprisonment . . . .").
Accordingly, we must decide whether, as the government argues, there
exists an alternate source of authority under either (1) the
restitution statutes; or (2) the All Writs Act.
(1) Restitution Statutes
A sentencing court has authority to impose restitution.
See 18 U.S.C. § 3663(a) (authorizing statute); see also id. §
3553(a) ("The court, in determining the particular sentence to be
imposed, shall consider –- . . . the need to provide restitution to
any victims of the offense."). Specifically, 18 U.S.C. § 3664(f)
provides that:
(3)(A) A restitution order may direct the
defendant to make a single, lump-sum payment,
partial payments at specified intervals, in-
kind payments, or a combination of payments at
specified intervals and in-kind payments.
. . .
(4) An in-kind payment described in
paragraph (3) may be in the form of –- (A)
return of property; (B) replacement of
property; or (C) if the victim agrees, services
rendered to the victim or a person or
organization other than the victim.
-31-
(emphasis added).
The government asserts that "the district court has the
authority to order Raheman to perform services [i.e., return the
children] directly to the victim . . ., so long as the victim
consents." In so doing, the government makes no attempt to equate
the mandates of the district court's forthwith order –- to
"forthwith take all reasonable measures within his control to return
the children to the United States" -- with the "in-kind payments"
contemplated by Congress in 18 U.S.C. § 3664(f)(3)(A), (4). Indeed,
at oral argument, the government conceded that it was unable to find
any case law wherein the imposition of a similar condition was
affirmed on the basis of the restitution statutes.
We, too, have found nothing in the case law or legislative
history that characterizes children either as traditional
restitution or as in-kind payments. In our view, this void is
neither astonishing nor deserving of extensive elaboration.
Children are not "property" nor is their transfer a "service," and
we decline the invitation to hold otherwise.
(2) All Writs Act
In a final attempt to salvage the order, the government
asserts that, "to the extent that this Court concludes that the
district court was not specifically authorized to issue a forthwith
order pursuant to 18 U.S.C. § 3664(f)(4), the district court
-32-
properly relied upon its general authority under the All Writs Act,
28 U.S.C. § 1651(a)." We disagree.
Under the All Writs Act, Congress authorized federal
courts to "issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and principles
of law." 28 U.S.C. § 1651(a) (emphasis added). The word "their,"
of course, refers to the federal courts –- and not, for example, to
state family courts. Here, the district court had criminal
jurisdiction over Raheman, see 18 U.S.C. § 3231, but did not have
jurisdiction over the custody of the children. So understood, we
conclude that the forthwith order went too far.
As the law now stands, the forthwith order "to return the
children to the United States" was not a necessary concomitant of
an appropriate penalty in this case;14 instead, it served, at least
in part, as a mechanism through which the Middlesex Probate Court
could effectuate its own jurisdiction over the custody of the
children. Indeed, the order itself expresses such a purpose.15 For
these reasons, then, the district court's order was neither
"necessary" nor "appropriate" to effectuate -– or otherwise aid in
14
Had Congress intended it to be one, it easily could have so
provided.
15
"The Defendant shall forthwith take all reasonable measures
within his control to return the children to the United States so
that the Middlesex Probate Court (or other appropriate court) may
determine child custody issues . . . ." (emphasis added).
-33-
-– its own jurisdiction, and there accordingly was no basis for the
invocation of the All Writs Act.
(3) Disposition
Having discerned no authority for the imposition of this
forthwith order, it must be vacated. We note, however, that if an
order to return the children were, as originally contemplated,
imposed as a condition of supervised release, it would appear to be
lawful and appropriate. See Amer, 110 F.3d at 882-83 ("The 'return'
condition [of supervised release] is obviously closely related to
the nature and circumstances of the offense of child abduction and
the history and characteristics of [the defendant]. Indeed, it is
difficult to imagine a condition more closely tailored to the crime
and the criminal in question than this one." (internal quotation
marks omitted and emphasis added)). We are mindful of the
government's concern that such a condition (as opposed to a parallel
forthwith order) might leave the mother –- and, perhaps, the
children -- without an adequate remedy. If this indeed is the case,
the government might do well to petition Congress for a solution
rather than inviting this court to invent one.
In view of the district court's obvious intent and the
uncertainty accompanying whether the "return-the-children" directive
should (or should not) be construed as a condition of supervised
release, we believe that the ends of justice require us to remand
-34-
for resentencing so that the court may, in light of this opinion,
reconsider the status and wording of this condition.
F. Ineffective Assistance of Counsel
Finally, Raheman argues that, because he had "important
testimony to give regarding the kidnapping charge and a strong need
to refrain from testifying on the wiretapping charge," trial counsel
was ineffective because he made no motion to sever the charges. On
this basis, Raheman invites us to "vacate the convictions and remand
the matter for two separate trials on each charge . . . ."
We decline the invitation. This circuit has held "with
a regularity bordering on the monotonous that fact-specific claims
of ineffective assistance cannot make their debut on direct appeal
of criminal convictions, but, rather, must originally be presented
to, and acted upon by, the trial court." United States v. Mala, 7
F.3d 1058, 1063 (1st Cir. 1993) (collecting cases). Absent the rare
occasion where, on direct appeal, the record is sufficiently clear
to allow reasoned consideration of the ineffective-assistance claim,
see, e.g., United States v. Natanel, 938 F.2d 302, 309 (1st Cir.
1991), "[t]he preferable vehicle for such [a] claim[] is a
collateral proceeding under 28 U.S.C. § 2255, in which the parties
and the district court can address factual matters relevant to the
issue." United States v. Genao, 281 F.3d 305, 313 (1st Cir. 2002)
(citation omitted).
-35-
Here, for reasons we need not elaborate upon, the record
is insufficiently developed to allow for meaningful review on direct
appeal. Accordingly, Raheman must pursue his claim in the
traditional fashion.16
III.
For the reasons stated above, we affirm the convictions,
vacate the forthwith order, and remand for resentencing for the
imposition of any conditions of supervised release that the district
court may deem appropriate in light of this opinion.
It is so ordered.
16
Indeed, Raheman has already filed a § 2255 motion in the
district court, alleging, inter alia, that trial counsel was
ineffective. In an order dated January 22, 2003, the district
court agreed to hear Raheman's collateral claims simultaneously
with this court's consideration of the direct appeal. (The
district court explained its ruling as follows: "[T]here are
extraordinary circumstances here because of the immediate concerns
about the custody of the children, which have not yet been resolved
by the courts in India. As long as the federal claims are not
fully resolved, proceedings in India may be delayed.").
Raheman's assertion to the contrary notwithstanding, it is of
no import that the § 2255 motion was filed pro se. See Ellis v.
United States, 313 F.3d 636, 652 (1st Cir. 2002) ("A convicted
criminal has no constitutional right to counsel with respect to
habeas proceedings.").
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