901 F.3d 918
7th Cir.2018Background
- Nixon and her ex-husband G.G. were litigating custody of their minor daughter S.; state court limited G.G.’s unsupervised visitation pending investigation of alleged sexual/physical abuse.
- Nixon took S. to Canada the evening before a state-court decision she feared would award G.G. full custody and remained after the court awarded G.G. sole custody.
- Nixon was indicted and convicted under 18 U.S.C. §1204 for international parental kidnapping; she asserted an affirmative defense that she fled an incident or pattern of "domestic violence."
- District court limited Nixon’s evidence to physical (including sexual) violence toward her or S., excluding emotional, psychological, or financial abuse theories and rejected other evidentiary and jury-instruction claims.
- Nixon also argued the indictment was duplicitous (charging removal and retention in one count) and that G.G. lacked parental rights at the border because visitation had been conditioned on a third party’s presence.
- The Seventh Circuit affirmed: (1) "domestic violence" under §1204 requires (at least) physical-type violence, not mere emotional/financial abuse; (2) removal and retention are alternative means of one offense (not duplicative separate crimes); (3) G.G. retained parental/visitation rights despite supervision conditions.
Issues
| Issue | Nixon's Argument | United States' Argument | Held |
|---|---|---|---|
| Scope of "domestic violence" defense under 18 U.S.C. §1204(c)(2) | Could include emotional, psychological, or financial abuse or reasonable belief of such abuse | "Domestic violence" requires physical-type violence; emotional/financial abuse not enough | Court: "violence" means physical (or at least analogous) violence; emotional/financial abuse insufficient |
| Duplicity of the indictment (removal vs retention charged in one count) | Count charged two offenses and required unanimous jury determination | Removal and retention are alternative means of one statutory offense | Forfeited challenge; on merits, removal/attempt/retention are alternative means of single §1204(a) offense |
| Jury unanimity instruction for alternative means | Wanted separate unanimity on which offense committed | Single offense with alternative means; no unanimity required on means | Instruction proper; any error harmless beyond a reasonable doubt |
| Existence of "parental rights" when crossing border | G.G. lacked parental rights because visitation was limited (required third party) | Parental rights include visiting rights; conditions on exercise do not eliminate rights | G.G. retained parental/visiting rights despite supervised/conditioned visits |
Key Cases Cited
- United States v. Castleman, 572 U.S. 157 (2014) (interpreting "domestic violence" to encompass certain nonserious physical force)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishing elements from means for statutory crimes)
- Richardson v. United States, 526 U.S. 813 (1999) (jury unanimity and duplicative charging principles)
- Hamer v. Neighborhood Housing Services, 138 S. Ct. 13 (2017) (forfeiture of procedural rules not jurisdictional)
- United States v. Miller, 626 F.3d 682 (2d Cir. 2010) (supervised visitation constitutes parental/visiting rights)