United States Court of Appeals
Fifth Circuit
F I L E D
In the December 28, 2005
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
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m 04-11530
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DAVID LEE CLENNEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
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Before GARWOOD, SMITH, and DEMOSS, 18 U.S.C. § 1204. Clenney resided in the
Circuit Judges. Southern District of Texas, Carmichael in the
Northern District of Texas. The government
PER CURIAM: contended that venue was proper in the North-
ern District because Carmichael’s parental
David Clenney took his son Jacob from the rights were affected there.
United States to Belize to avoid handing cus-
tody over to the child’s mother, Heather Car- Clenney filed a motion to dismiss the indict-
michael, on a scheduled date. Clenney was ment for improper venue, arguing that none of
arrested, extradited to the United States, and the acts complained of in the indictment
indicted in the Northern District of Texas for implicated jurisdiction in the Northern District.
international parental kidnaping in violation of The district court denied the motion, accepting
the government’s theory that venue was prop- (a) Whoever removes a child from the
er in the district in which Carmichael exer- United States, or attempts to do so,
cised her parental rights. Clenney entered a or retains a child (who has been in the
guilty plea, conditioned on his right to appeal United States) outside the United States
the denial of his motion to dismiss. The dis- with intent to obstruct the lawful exercise
trict court accepted the conditional plea and of parental rights shall be fined under this
sentenced Clenney. title or imprisoned not more than 3 years,
or both.
Venue issues are generally reviewed for
abuse of discretion. We effectively review this 18 U.S.C. § 1204.1
judgment de novo, however, because “a dis-
trict court by definition abuses its discretion The government argues that venue exists
when it makes an error of law.” United States under the terms of the statute because “the in-
v. Delgado-Nunez, 295 F.3d 494, 496 (5th tent to obstruct the lawful exercise of parental
Cir. 2002) (quoting Koon v. United States, rights” is an element of the offense, and Car-
518 U.S. 81, 100 (1996)). michael’s parental rights were violated in the
Northern District. We disagree, because this
The statute of conviction does not have an element merely speaks to the offender’s mens
express venue provision. The parties agree rea as he commits the conduct essential to the
that because Clenney was charged with a sin- crime; it is plainly not an “essential conduct
gle, continuing offense committed in multiple element” as required by Rodriguez-Moreno.2
districts, venue is appropriate, under 18 U.S.C. Moreover, even if the intent to obstruct paren-
§ 3237(a), in any district in which the offense tal rights were an essential conduct element of
was begun, continued or completed. On this crime, that intent was formed and existed
appeal, the government asserts two alternative solely in the mind of Clenney, who never set
ways it can establish venue in the Northern foot in the Northern District; the intent ele-
District of Texas: (1) that Carmichael’s paren- ment is a mental state that cannot have been
tal rights were affected there, because she was
a resident of that district; and (2) that Jacob’s
primary residence was in the Northern District 1
Title 18 U.S.C. § 3238 governs the venue of
and the criminal conduct unlawfully restrained offenses “committed . . . out of the jurisdiction of
him from being there. any particular State or district.” There is, how-
ever, no evidence or claim in this case that suggests
Under United States v. Rodriguez- Moreno, that the Northern District of Texas would be an
526 U.S. 275, 279 (1999), to determine appropriate venue even if that section were applica-
whether venue is appropriate, we perform a ble.
two-step inquiry: “[A] court must initially
2
identify the conduct constituting the offense “[W]e have never before held, and decline to
(the nature of the crime) and then discern the do so here, that verbs are the sole consideration in
location of the commission of the criminal identifying the conduct that constitutes an offense
. . . . In our view, the Third Circuit overlooked an
acts.” To identify the conduct constituting the
essential conduct element of the . . . offense . . . .
offense, we scrutinize the statute of convic-
[W]e interpret [the relevant statute] to contain two
tion, which provides in relevant part: distinct conduct elements . . . .”). Rodriguez-Mor-
eno, 526 U.S. at 280 (emphasis added).
2
“committed” anywhere but where he was phy-
sically present.
Finally, the government’s assertion that
venue was proper in the Northern District be-
cause Jacob was a resident of that district and
was retained outside that district is without
merit. For the statute to be violated, there is
no essential conduct element that requires a
person to remove or retain a child outside of
the area of his primary residence.
Because venue was inappropriate in the
Northern District of Texas, the judgment of
conviction is REVERSED, and this matter is
REMANDED so that Clenney may withdraw
his guilty plea pursuant to the terms of his plea
agreement, and for further proceedings as
appropriate.
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