United States v. Wenjing Liu

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4381

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

WENJING LIU, a/k/a Linda Liu,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:14-cr-00372-CMH-1)

Argued: May 11, 2016 Decided: June 21, 2016

Before TRAXLER, Chief Judge, and NIEMEYER and KEENAN, Circuit
Judges.

Affirmed by unpublished opinion. Judge Keenan wrote the
opinion, in which Chief Judge Traxler and Judge Niemeyer joined.

ARGUED: Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant. Christopher John
Catizone, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Acting
Federal Public Defender, Frances H. Pratt, Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Dana J. Boente, United
States Attorney, Rebeca H. Bellows, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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BARBARA MILANO KEENAN, Circuit Judge:

Wenjing “Linda” Liu was convicted by a jury of attempted

international parental kidnapping in violation of the

International Parental Kidnapping Crime Act (IPKCA), 18 U.S.C.

§ 1204. On appeal, Liu contends that the district court erred:

(1) in excluding certain witnesses’ testimony concerning Liu’s

statements about her travel plans; and (2) by denying two

requested jury instructions.

Upon our review, we are unable to consider the merits of

the court’s exclusion of Liu’s statements to the various

witnesses, because Liu failed to proffer the content of the

excluded testimony. Additionally, we hold that Liu’s mother’s

statements regarding her travel plans were inadmissible hearsay,

and that the district court’s jury instructions substantially

covered the content of the rejected instructions. Therefore, we

affirm the district court’s judgment.

I.

The relevant facts are largely undisputed. Liu was born in

Tianjin, China, and she moved to the United States around 2000.

In 2007, Liu married William Jerome Ruifrok III, a United States

citizen, in Loudoun County, Virginia. Ruifrok and Liu have a

son, WLR, who was born in 2010 in Tianjin, China. WLR traveled

between China and the United States several times between 2010

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and 2014, and occasionally remained in China for months at a

time under the care of Liu’s mother.

When the marriage between Liu and Ruifrok deteriorated, the

couple separated in November 2013. After several months of

negotiation about custody arrangements for WLR, Liu and Ruifrok

reached an agreement, which was memorialized in a “Final Custody

Order” entered in May 2014 by the Juvenile and Domestic

Relations District Court of Loudoun County, Virginia. The Final

Custody Order granted Liu primary physical custody and granted

Ruifrok visitation rights every weekend. The Final Custody

Order also required that either parent traveling with WLR

outside the United States obtain “the express written and

notarized consent of the other party, provided in advance [of]

the trip.”

Soon after the Final Custody Order was entered in May 2014,

Liu and Ruifrok had various disagreements regarding Ruifrok’s

visitation with WLR. Ultimately, Liu stopped responding to

Ruifrok’s requests in July 2014, and Ruifrok was unable to

exercise his visitation rights in July or August 2014.

On August 28, 2014, Liu purchased tickets from United

Airlines (United) for Liu, Liu’s mother, and WLR to travel from

Washington Dulles International Airport (Dulles) to Beijing,

China. They were scheduled to depart one week later, on

September 4, 2014 at 12:20 p.m. Liu purchased a “round-trip”

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ticket for herself and “one-way” tickets for WLR and Liu’s

mother.

Liu did not notify Ruifrok about her travel plans with WLR

until after arriving at Dulles on the morning of the scheduled

flight. At 11:00 a.m. on September 4, 2014, Liu informed

Ruifrok by email that she had learned “last midnight” that her

grandmother was dying and, therefore, she and WLR needed to

travel to China as soon as possible. Two minutes later, Ruifrok

responded via email, “[WLR] is not going, u cant take him to

school[.] I will pick him up.” An hour after Ruifrok

responded, and 20 minutes before the plane departed, Liu

replied:

I already booked the tickets for him. We have to
leave today. It’s too urgent! I’ll notice you when I
know when we can be back. Because I have to replace
his birth certificate too.

Ruifrok notified the Dulles airport police that Liu was

violating a court order by leaving the country with WLR. The

airport police contacted the Federal Bureau of Investigation

(FBI) and the Loudoun County prosecutor, obtained a copy of the

Final Custody Order, and confirmed that Liu and WLR were on the

flight that had departed to Beijing.

After being notified of the situation, United personnel

ordered the airplane’s pilot to redirect the plane, which at

that time was over Canadian airspace, back to Dulles. About

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5:15 p.m., the flight landed at Dulles, where Liu, WLR, and

Liu’s mother were escorted off the aircraft. The FBI arrested

Liu as she disembarked. At the time of her arrest, Liu’s

luggage contained a copy of the Final Custody Order, as well as

WLR’s passport that bore a Chinese visa issued on August 27,

2014.

A federal grand jury in the Eastern District of Virginia

indicted Liu on one count of attempted international parental

kidnapping, in violation of 18 U.S.C. § 1204. The IPKCA

prohibits, in relevant part, any attempt to “remove[] a child

from the United States . . . with intent to obstruct the lawful

exercise of parental rights.” 18 U.S.C. § 1204(a).

At trial, the government argued that Liu intentionally

violated the Final Custody Order with the purpose of obstructing

Ruifrok’s parental rights. Liu presented evidence that she

intended the trip to China to be a temporary visit, that the

purpose of the trip was unrelated to Ruifrok’s parental rights,

and that she did not understand her obligations under the Final

Custody Order.

Liu also attempted to elicit testimony from friends and

associates about the reasons she gave them for making the trip.

When Liu’s counsel asked Janet Outtrim, Liu’s housemate, about

Liu’s travel plans, the government objected on the ground that

the statements were inadmissible hearsay. Liu’s counsel

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responded that these statements were admissible under the “state

of mind” exception to the hearsay rule, but failed to proffer

the substance of the testimony sought to be admitted. The

district court ruled that Outtrim could testify about Liu’s

actions but “not the reasoning behind [them].” In response,

Liu’s counsel pursued a different line of questioning that

permitted Outtrim to testify that Liu had not made any effort to

keep her travel plans a secret, and that she had left most of

her personal property and WLR’s clothes at Outtrim’s home.

Liu’s counsel also asked Danica Hu, Liu’s real estate

agent, about Liu’s expressed intent to buy a home and to enroll

WLR in a school in northern Virginia. After the government

objected to this question, Liu’s counsel rephrased the inquiry,

eliciting testimony that Hu continued to assist Liu through

September 4, 2014, to help Liu find a home near “a good school

for the child.” However, Liu’s counsel did not proffer to the

court the substance of the testimony excluded by the court’s

ruling.

Ying Zhao, Liu’s work colleague, also testified. After the

district court sustained the government’s objection to any

statements Liu made to Zhao about her travel plans, Zhao

testified that Liu had purchased a ticket to a business seminar

to be held in Virginia on September 27, 2014, and that Liu’s job

functions could not be performed from China. Again, Liu’s

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counsel did not proffer for the record the content of the

excluded testimony.

Liu also attempted to elicit testimony from FBI Special

Agent Tonya Sturgill, who spoke to Liu’s mother after the

airplane returned to Dulles. At that time, Liu’s mother

purportedly stated that she had intended to return to the United

States with WLR within a few months. The district court ruled

that this statement was inadmissible hearsay.

In her proposed jury instructions submitted before trial,

Liu asked the court to clarify for the jury that the government

was required to prove that she “intended to obstruct Ruifrok’s

lawful exercise of his visitation rights with WLR, not merely

that [she] intended to travel internationally with WLR without

William Ruifrok’s consent.” At the close of evidence, Liu

accordingly requested an instruction stating that the government

must prove that Liu’s “specific purpose” or a “significant”

motivation for Liu’s actions was an intent to obstruct Ruifrok’s

“exercise of physical custody.” In response, the government

agreed that more than a de minimis showing of intent was

required, but argued that inserting a “significant purpose”

element of proof would overstate the statutory requirement.

The district court rejected Liu’s proposed jury

instructions. As relevant to this appeal, the court instructed

the jury that the government was required to prove: (1) that Liu

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knowingly attempted to remove her child from the United States;

and (2) that she did so “with the intent to obstruct the lawful

exercise of parental rights.” With respect to the first

element, the district court explained that the term “knowingly”

meant that Liu was “aware of her actions, realized what she was

doing, and did not act because of ignorance, mistake, or

accident.” Regarding the second element, the district court

instructed that “parental rights” were rights to physical

custody of the child, which “includes visitation rights.”

Finally, the district court instructed the jury that the

government was required to prove “that the defendant acted with

the intent to obstruct the lawful exercise of parental rights,”

and that she “acted deliberately with the purpose of interfering

with parental rights of the other parent.”

During its deliberations, the jury submitted a question to

the court, asking whether the government was required to prove

that the defendant “knowingly . . . broke the law.” The

district court responded by reading again the language of the

statute and the court’s previous definition of the term

“knowingly,” and added that Liu did not have to know that “her

actions may be in violation of a criminal law or that she

intended to violate a criminal law.” After ten minutes of

additional deliberation, the jury returned a verdict of guilty.

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 The district court sentenced Liu to serve a term of six

months’ imprisonment and a one-year term of supervised release.

Liu filed a motion for a new trial, which the court denied. Liu

later filed this timely appeal.

II.

A.

Liu first contends that the district court abused its

discretion in excluding testimony from the various witnesses

concerning statements she made about her travel plans. Liu

argues that her statements to these witnesses were admissible

under the state of mind hearsay exception in Rule 803(3) of the

Federal Rules of Evidence. Similarly, Liu argues that her

mother’s statements to FBI agents after disembarking from the

plane at Dulles were admissible under the same hearsay exception

as probative evidence of the mother’s intent.

We review a district court’s evidentiary rulings for abuse

of discretion. United States v. McLean, 715 F.3d 129, 143 (4th

Cir. 2013). Generally, the rule against admission of hearsay

prohibits a witness from testifying about statements made by

another when those statements are offered to prove the truth of

the matter asserted. Fed. R. Evid. 801(c), 802. An exception

to this general rule permits admission of a statement of a

declarant’s then-existing state of mind for such purposes as

showing her motive, intent, or plan. Fed. R. Evid. 803(3); see

10
also Mut. Life Ins. Co. of N.Y. v. Hillmon, 145 U.S. 285, 296

(1892).

The determination whether a statement qualifies for

admission under the state of mind exception involves a fact-

sensitive inquiry. United States v. Rivera-Hernandez, 497 F.3d

71, 81 (1st Cir. 2007). Forward-looking statements of intent

are admissible, but backward-looking statements of memory are

not. Fed. R. Evid. 803(3); Shepard v. United States, 290 U.S.

96, 105–06 (1933). For this reason, statements describing a

declarant’s then-existing state of mind are admissible, but

statements about the declarant’s reasons for having that state

of mind are inadmissible. 1 4 Stephen A. Saltzburg et al.,

Federal Rules of Evidence Manual § 803.02[4][b] (11th ed. 2015).

The state of mind described also must be shown to have been

contemporaneous with the statement. See United States v. Hayat,

710 F.3d 875, 895–96 (9th Cir. 2013) (describing circumstances

1
In addition, statements admissible for one purpose, but
not for another, must be scrutinized for probative value and
risk of prejudice under Rule 403 of the Federal Rules of
Evidence. Consistent with this requirement, some courts
analyzing a statement under Rule 803(3) have inquired whether
the declarant had the motivation or opportunity to misrepresent
the relevant state of mind, such as when a criminal defendant,
knowing that he is under investigation, gives a non-spontaneous,
self-serving statement about his own state of mind. See Wagner
v. County of Maricopa, 747 F.3d 1048, 1052–53 (9th Cir. 2013);
United States v. LeMaster, 54 F.3d 1224, 1231 (6th Cir. 1995);
United States v. Neely, 980 F.2d 1074, 1083 (7th Cir. 1992).

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in which a description of past intent could also be understood

as communicating present intent).

Given the “fact-sensitive” inquiry necessary for

application of the state of mind exception, Rivera-Hernandez,

497 F.3d at 81, it is paramount that the proponent inform the

court in an offer of proof the substance of the evidence sought

to be admitted, unless that substance is apparent from the

context of the request. Fed. R. Evid. 103(a)(2). The purpose

behind this requirement is twofold. First, an offer of proof

informs the trial court of the content of the evidence and of

its relevance to the case, which enables the court to make an

informed evidentiary ruling. See, e.g., Henry v. Wyeth Pharms.,

Inc., 616 F.3d 134, 151–52 (2d Cir. 2010); Perkins v. Silver

Mountain Sports Club & Spa, LLC, 557 F.3d 1141, 1147 (10th Cir.

2009); Polack v. Comm’r of Internal Revenue, 366 F.3d 608, 612

(8th Cir. 2004). Second, the offer of proof permits the

appellate court to evaluate whether the exclusion of evidence

affected the substantial rights of the party seeking its

admission. See, e.g., Perkins, 557 F.3d at 1147; Polack, 366

F.3d at 612.

In the present case, Liu failed to proffer the specific

statements that she sought to introduce into evidence, and the

context in which the statements arose did not render apparent

the substance of the excluded evidence. Without offers of proof

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concerning the excluded testimony, the record does not provide

sufficient detail to determine whether Liu’s statements to

Outtrim, Hu, and Zhao were admissible under the state of mind

exception. Liu did not proffer details about the substance of

the excluded statements, or about the times or contexts in which

the statements at issue were made. Therefore, we are unable to

determine whether the statements described Liu’s “then-existing”

state of mind. See Fed. R. Evid. 803(3). Nor are we able to

determine whether the statements were cumulative or unfairly

prejudicial, or whether an expressed intent to return WLR to the

United States at an indefinite time had probative value with

respect to the critical issue of Liu’s intent to obstruct

Ruifrok’s parental rights. See Fed. R. Evid. 403. Accordingly,

in the absence of the necessary proffers, we cannot determine

whether the district court abused its discretion in excluding

Liu’s statements regarding her intent and the purpose of her

international travel.

Next, we disagree with Liu’s contention that the district

court should have admitted her mother’s statements about their

travel plans. After Liu was arrested, FBI Special Agent Tonya

Sturgill questioned Liu’s mother, who explained that she

intended to return to the United States with WLR “in just a few

months.” Although proffered to the district court, the mother’s

statements were inadmissible because they were statements about

13
past intent or memories. Rule 803(3) explicitly excludes

hearsay statements about memories offered “to prove the fact

remembered.” Fed. R. Evid. 803(3); Shepard, 290 U.S. at 105–06.

Liu’s mother’s statements were made after the aircraft returned

to Dulles and after Liu was arrested. Any statements about

Liu’s mother’s travel plans would have described her state of

mind hours or days earlier, rather than a “then-existing” state

of mind. See Fed. R. Evid. 803(3). Accordingly, we conclude

that the district court did not abuse its discretion by

excluding from evidence Liu’s mother’s statements.

B.

Liu also challenges the district court’s decision refusing

two of her proposed jury instructions. We review the adequacy

of the court’s jury instructions for abuse of discretion.

United States v. Sonmez, 777 F.3d 684, 688 (4th Cir. 2015). In

order to establish that a district court abused its discretion

in rejecting proposed jury instructions, a defendant “must

demonstrate that her proposed instructions (1) were correct, (2)

were not substantially covered by the charge that the district

court actually gave to the jury, and (3) involved some point so

important that the failure to give the instructions seriously

impaired the defendant’s defense.” Id. (internal quotation

marks and brackets omitted).

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 According to Liu, the district court should have given the

jury a separate explanation that the “parental rights” Liu was

accused of obstructing included only physical custody rights,

and did not include Liu’s failure to obtain Ruifrok’s consent to

travel with WLR to China. Liu also argues that under the IPKCA,

the obstruction of parental rights must have been the

“principal, but-for, or driving reason” for her actions, and

that the district court should have instructed the jury to this

effect.

1.

We first address Liu’s argument that the district court

abused its discretion by declining to give her preferred

instruction regarding the IPKCA’s definition of “parental

rights.” 2 See 18 U.S.C. § 1204(b)(2). The term “parental

rights” is defined in the statute as meaning “the right to

physical custody of the child,” including “visiting rights,” and

2We disagree with the government’s contention that Liu
failed to preserve this issue for appeal. Liu proposed a jury
instruction defining “parental rights,” which the parties
debated during the charge conference, explicitly referencing
Ruifrok’s rights to “visitation” and “physical custody.”
Moreover, after reading the instructions to the jury, the
district court asked the parties whether they had any objections
“[o]ther than the objections we’ve already dealt with.” When
Liu’s counsel raised the “intent” issue again, the district
court responded “[y]ou don’t have to do that,” indicating that
the district court would not revisit its earlier rulings. On
these facts, we conclude that Liu properly preserved this issue
for appeal.

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can be defined “by operation of law, court order, or legally

binding agreement.” 18 U.S.C. § 1204(b)(2)(A); see also United

States v. Fazal-Ur-Raheman-Fazal, 355 F.3d 40, 45 (1st Cir.

2004) (looking to Massachusetts law to define “parental rights”

in the absence of any court orders or binding agreements).

In this case, both parties agree that the “parental rights”

at issue included Ruifrok’s right, conferred by a court order

and a legally binding agreement executed by Liu and Ruifrok, to

visit WLR every weekend. Liu asked the district court to

emphasize that the term “parental rights” in the IPKCA refers to

only physical custody rights, and does not include non-custodial

rights such as the right to notification before travel or the

right to deny consent for international travel. The district

court denied Liu’s request to give this additional jury

instruction.

Instead, the district court instructed the jury that

“parental rights” means “the right to physical custody, whether

joint or sole, and includes visitation rights.” Thus, Liu’s

proposed description of “parental rights” was “substantially

covered” by the instructions given to the jury. Sonmez, 777

F.3d at 688. The district court’s jury instructions made clear

to the jury that the parental rights at issue were only physical

visitation rights. Accordingly, the district court did not

16
abuse its discretion in declining to instruct the jury using

Liu’s preferred definition. 3

2.

Liu also challenges the sufficiency of the district court’s

jury instructions on the element of “intent to obstruct.” Liu

argues that the government was required to prove that she acted

with a “significant purpose” of obstructing Ruifrok’s visitation

rights, and that the district court’s instructions did not

address this concept.

Rather than giving Liu’s proposed jury instruction, the

district court instructed the jury that the government must

prove beyond a reasonable doubt that “the defendant [acted] with

the intent to obstruct the lawful exercise of parental rights.”

The district court elaborated that “you must find that the

defendant acted deliberately with the purpose of interfering

with the parental rights of the other parent.” By instructing

the jury in this manner, the district court “substantially

covered” the content of Liu’s proposed instruction that the

government was required to prove that Liu intended by her

3We also observe that the government’s closing argument
emphasized that the only parental rights at issue were Ruifrok’s
physical visitation rights. The government explained that the
term “parental rights” referred to Ruifrok’s right “to see his
son every weekend” and on certain holidays. The government also
stated many times in its argument that Liu was accused of
obstructing Ruifrok’s right to weekend visitation.

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actions to interfere with Ruifrok’s parental rights. See

Sonmez, 777 F.3d at 688. Therefore, we hold that the district

court did not abuse its discretion in refusing Liu’s

“significant purpose” instruction.

III.

For these reasons, we do not reach the merits of the issue

whether the district court abused its discretion in excluding

testimony from the various witnesses about Liu’s stated travel

plans. Further, we hold that the district court did not abuse

its discretion in excluding Liu’s mother’s statements, or by

denying Liu’s proposed jury instructions. We therefore affirm

the district court’s judgment.

AFFIRMED

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