United States v. Mobley, 971 F.3d 1187

Background

In April 2014 Bogdana Osipova flew to Russia with her young daughter S.M. (and her son) while pregnant and left pending Kansas divorce/custody proceedings. Kansas courts later awarded Mobley primary custody and ordered Osipova to return the children.
Osipova gave birth in Russia, obtained a Russian divorce and Russian court orders awarding her custody and child support; Mobley refused to pay until the children were returned to the U.S.
Osipova conditioned telephone/Skype contact on Mobley’s payment of Russian-ordered child support and denied direct contact from late 2016 until her arrest after she returned to Kansas in Sept. 2017.
Federal charges: initial complaint/indictment for international parental kidnapping (18 U.S.C. §1204), later superseded to add four counts of extortionate interstate communications (18 U.S.C. §875(b)) for alleged threats to (continue to) retain S.M. in Russia to extort value.
At trial Osipova conceded the §1204 kidnapping count but contested that her communications contained a threat to kidnap or any intent to extort; jury convicted on the kidnapping count and two §875(b) counts. District court sentenced her to 3 years on §1204 and 7 years on §875(b) (concurrent) and ordered $18,100 restitution for Mobley’s attorney’s fees.
On appeal Osipova challenged (1) indictment sufficiency, (2) sufficiency of evidence for §875(b) (definition of “threat to kidnap”), (3) judge recusal based on an email to Osipova’s mother, and (4) restitution for attorney’s fees.

Issues

Issue	Plaintiff's Argument (Osipova)	Defendant's Argument (Government/Mobley)	Held
1. Indictment sufficiency	Indictment lacked essential factual specificity (child’s name, means, locations).	Indictment tracked statutory language, alleged dates/places/nature; no prejudice shown.	Affirmed — indictment sufficient; statute-language + basic particulars met notice and double-jeopardy purposes.
2. §875(b) convictions — “threat to kidnap” element	Messages did not threaten to kidnap; district court improperly defined “kidnap” to include continued retention under §1204.	“Kidnap” in §875(b) can encompass international parental retention as charged; jury instruction was proper.	Vacated §875(b) convictions (counts 2 & 3). Court held §875(b)’s “kidnap” should not be read to incorporate §1204 parental-retention; district court used an invalid definition, so evidence could not sustain convictions.
3. Judge recusal for ex parte email	Judge’s email to Osipova’s mother (saying sentence would depend on whether children were returned) was an ex parte communication and showed bias; required recusal.	Any error invited by defense communications; email did not show pre-judgment of sentence or prejudice; judge had duty to sit.	Affirmed — no recusal. Email was ill-advised but, viewed objectively, did not create reasonable doubt about impartiality.
4. Restitution for Mobley’s attorney’s fees under 18 U.S.C. §3663	Restitution award was unauthorized: fees were not expenses "related to participation in the investigation or prosecution" and were incurred to retrieve children, not to assist prosecution.	Fees were directly related to defendant’s criminal conduct and obstruction; restitution appropriate.	Vacated restitution ($18,100). Fees did not qualify under §3663(b)(4); they were not incurred during or as part of the government’s investigation/prosecution.

Key Cases Cited

Moskal v. United States, 498 U.S. 103 (1990) (where statute uses common-law term, courts generally ascribe the term its common-law meaning)
Morissette v. United States, 342 U.S. 246 (1952) (courts give established common-law terms their settled meaning absent contrary congressional instruction)
Ron Pair Enters. v. United States, 489 U.S. 235 (1989) (plain meaning of statutory text is controlling except in rare cases where literal application conflicts with congressional intent)
Chatwin v. United States, 326 U.S. 455 (1946) (discussing Lindbergh Act origins and Congress's response to interstate kidnapping)
United States v. Gillis, 938 F.3d 1181 (11th Cir. 2019) (interpreting §1201’s enumerated means as factual means of accomplishing kidnapping)
United States v. Cummings, 281 F.3d 1046 (9th Cir. 2002) (permitting restitution for attorney’s fees in an international-parental-kidnapping context — cited by government but distinguished)
Lagos v. United States, 138 S. Ct. 1684 (2018) (interpretation of restitution statutes requires expenses to be tied to government investigation/prosecution)
Hughey v. United States, 495 U.S. 411 (1990) (restitution must be caused by specific conduct underlying the offense of conviction)