United States v. Zodhiates
901 F.3d 137
2d Cir.2018Background
- Lisa Miller (mother) and Janet Jenkins (civil union partner) litigated custody in Vermont; Vermont ultimately awarded Jenkins sole custody and visitation to Miller; Virginia courts gave full faith and credit to Vermont's orders.
- In Sept. 2009 Miller abducted her daughter IMJ and fled to Nicaragua with assistance from Philip Zodhiates and others; Miller remains a fugitive in Nicaragua.
- The Government investigated and, in 2011, subpoenaed nTelos for 28 months of billing records for phones linked to Zodhiates' company; records included call detail and a "service location" field indicating general vicinity of calls.
- Zodhiates was indicted under the International Parental Kidnapping Crime Act (IPKCA) for conspiring to and aiding the removal to obstruct Jenkins' parental rights; at trial the phone records were central evidence tying Zodhiates to the trip and coordination.
- Zodhiates moved to suppress the cell-site/location-containing billing records, arguing a Fourth Amendment violation because the Government used an SCA subpoena rather than a warrant; the District Court denied suppression and convicted him; he also challenged jury instructions and prosecutor remarks.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of cell-site/billing records obtained by SCA subpoena (Fourth Amendment) | Gov: records lawfully obtained under then-controlling third-party doctrine; admissible | Zodhiates: had reasonable expectation of privacy in location data; warrant required under Fourth Amendment | Denied suppression; good-faith exception applies because, in 2011, binding precedent allowed subpoenas for such records (Carpenter decided later) |
| Applicability of Jones/Carpenter to pre-2011 subpoenas | Gov: pre-Carpenter/ Jones precedent (Miller/Smith) controlled; warrant not required then | Zodhiates: Jones and later Carpenter show prolonged location tracking is a search; should suppress nonetheless | Jones and Carpenter postdate the subpoena; do not negate good-faith reliance on prior precedent |
| Jury instruction on which state law defined "parental rights" for intent under IPKCA | Zodhiates: jury should be instructed to consider Virginia law (child resided in Virginia pre-removal) | Gov: Vermont court orders governed parental rights; Virginia courts had recognized Vermont's authority | Court instructed that Vermont law defined parental rights because Virginia had recognized Vermont orders; no prejudice shown |
| Prosecutor remarks in rebuttal about relevance of Virginia litigation | Zodhiates: prosecutor improperly told jury Virginia law was irrelevant; requested curative instruction | Gov: remarks were reasonable factual interpretation and inferences for the jury | Remarks were permissible argument; district court adequately instructed jury on legal standard; no reversible error |
Key Cases Cited
- United States v. Miller, 425 U.S. 435 (Sup. Ct.) (third-party doctrine; no reasonable expectation of privacy in business/bank records)
- Smith v. Maryland, 442 U.S. 735 (Sup. Ct.) (no reasonable expectation of privacy in numbers dialed conveyed to telephone company)
- Davis v. United States, 564 U.S. 229 (Sup. Ct.) (good-faith exception to exclusionary rule)
- United States v. Jones, 565 U.S. 400 (Sup. Ct.) (installation of GPS and prolonged tracking can constitute a search)
- Carpenter v. United States, 138 S. Ct. 2206 (Sup. Ct.) (individuals have legitimate expectation of privacy in historical cell-site location information; warrant generally required)
- United States v. Ulbricht, 858 F.3d 71 (2d Cir.) (court treated pre-Carpenter third-party doctrine as binding unless overruled)
- United States v. Amer, 110 F.3d 873 (2d Cir.) (interpreting how parental rights may be defined under IPKCA in absence of court order)