Following a seven-day trial, a jury convicted defendant-appellant Fazal Rahe-man, M.D., of international parental kidnapping and illegal interception of wire communications. See 18 U.S.C. §§ 1204 (“International Parental Kidnapping Crime Act” or “IPECA”) and 2511(l)(a). This lengthy appeal requires us to decide, inter alia, (1) whether a parent can be prosecuted under IPKCA for conduct that would not be criminal under state law; and (2) whether the district court had sentencing authority to impose upon Raheman an order requiring his immediate cooperation in the return of the children. We hold that (1) such a prosecution is consistent with the language and intent of the statute; and (2) the district court did not have authority to impose such an order.
I.
We set forth the facts in the light most favorable to the verdict.
See United States v. Diaz,
After marrying Saihba Ali in India in May 1990, Raheman and his wife returned to Massachusetts, where he had been employed for the past year. In 1992, the couple becаme permanent residents. Later that year, their child, a daughter, was born in Massachusetts, making her an American citizen by birth. A son was born in India in 1996; he became a naturalized American citizen two years later.
By 1996, Ali’s and Raheman’s marriage was suffering. Raheman had become concerned that Ali had become too independent, and he had repeatedly threatened to send the children to India to live with his mother if her behavior persisted. On September 17, 1997, Ali moved herself and the children from the family home in Burlington, Massachusetts, to an apartment in Cambridge, Massachusetts.
Displeased by his wife’s action, Rahe-man again threatened to move the children to India. He also told Ali that, if she went to the police or the courts regarding their separation or his threats, he “would become a lethal weapon.” In early October 1997, Ali informed Raheman that, because of his threats, she would have to go to the police or courts for help. Raheman then changed his tactics and told her that he would not remove the children to India. He requested, however, that she not take him “in front of a judge.” At this juncture, Raheman and Ali began to discuss legal separation, but Raheman insisted that the separation take place without resort to the American legal system.
Meanwhile, Raheman was covertly monitoring his wife’s activities. He had a miniature video camera surreptitiously installed in her bedroom, hired a private investigator to follow and videotape her, and asked his nephew to move into Ali’s apartment building to spy. In addition, from November 1, 1997, through November 11, 1997, Raheman tapped Ali’s apartment telephone. During this period, he surreptitiously recorded “more than 100 hours” of her private conversations.
On November 14, 1997, Raheman traveled to his former home in Nagpur, India. There, he enrolled his daughter in school аnd filed a petition for custody of the children in the Nagpur Family Court, alleging that his wife was engaged in an adulterous relationship and that, as a result, he should be awarded custody. He returned to the United States on November 18,1997.
On November 25, 1997, Raheman arranged to visit his children the next day. Raheman informed Ali that he planned to take the children to a museum and would return them later in the evening. He told Ali nothing of his recent trip to India. Later that same day, he purchased airline *43 tickets for himself and the children to fly from New York to India on November 26th. The children’s tickets were one way.
After picking up the children early in the afternoon on November 26th, Rahe-man drove to New York but missed the flight. They flew to India the next day. At the time Raheman left the United States, he and Ali were still married and there existed no court order or agreement between them affecting custody of the children.
' At Raheman’s request, one of his cousins telephoned Ali with the news that Raheman and the children were on a flight to India.' After receiving this call, Ali called the police to report that her children had been kidnapped. Two days later, Ali obtained from a Massachusetts Probate Court an emergency custody order, which a Cambridge police officer subsequently read to Raheman over the telephone. Soon thereafter, on December 2, 1997, Raheman obtained his own custody order from the Nagpur Family Court.
Between November 1997 and August 1998, Ali sought the assistance of several federal agencies in an unsuccessful attempt to obtain lawful physical custody of her children. In addition, she obtained United States citizenship for herself and her son and hired a lawyer in India.
In late August 1998, Ali traveled to India to attempt to obtain custody of her children from the Indian courts. Rahe-man fought her efforts and filed several criminal complaints against her. Before Indian authorities could apprehend her, Ali fled to the United States. In September 2000, while Ali was in thé United States, Raheman obtained from the Indian court a second custody order based primarily on a provision of Islamic law that grants a father full custody if the mother lives a significant distance from the father.
On July 25, 2001, Raheman was indicted by a federal grand jury on one count of international parental kidnapping.' See 18 U.S.C. § 1204. Later in 2001, upon returning to the United States to participate in a civil lawsuit, Raheman was arrested on the federal charge. On January 16, 2002, a grand jury returned a superseding indictment which added one count of unlawful wiretapping. See 18 U.S.C. § 2511(l)(a). On March 6, 2002, Raheman was convicted on both counts. He was sentenced to three years of imprisonment, to be followed by three years of supervised release. Additionally, he was ordered to cooperate immediately in the return of the children to Ali’s custody.
This appeal followed. 1
II.
We are presented with six issues on appeal: (1) whether Raheman’s conduct falls within the criminal prohibitions of IPECA, and, if so, whether the statute is unconstitutional as applied to him; (2) whether the district court erred in instructing the jury that, as a matter of law, both Ali and Raheman had parental rights to physical custody of the children at the time Raheman took them to India; (3) whether the district court abused its discretion in admitting evidence of threats allegedly made by Raheman against Ali; (4) whether the jury instructions on the wiretapping charge were constitutionally insufficient in light of
Apprendi v. New Jersey,
A. The International Parental Kidnapping Crime Act
Raheman’s principal argument on appeal is that his IPKCA conviction should be reversed for two separate reasons: (1) “the evidence adduced at trial ... fails to state a crime [under IPKCA]” because the charged conduct has not been criminalized by state law; and (2) the statute “is unconstitutional as appliеd to [him].” Our standard of review is
de novo. See United States v. Robinson,
We note at the outset an undisputed fact:
under Massachusetts law,
Raheman did nothing criminal. In
Commonwealth v. Beals,
(1) Statutory Analysis
In 1993, by virtue of its commerce power,
see United States v. Cummings,
There is an international civil mechanism relating to these cases, the Hague Convention on International Parental Child Kidnapping, for which Congress passed implementing legislation in 1988. As a result of this convention, the signatories will recognize the custody decrees of other signatories, thereby facilitating the return of abducted children. However, most countries (including India) are not signatories to the Convention, thus leaving individual countries to take whatever legal unilateral action they can to obtain the return of abducted children.
Creating a federal felony offense responds to these problems....
Id. at 3 (1993), reprinted in 1993 U.S.C.C.A.N. at 2421 (parenthetical and emphases added).
*45 With these goals in mind, the statute provides, in pertinent part, as follows:
(a) Whoever removes a child from the United States, or attempts to do so, or retains a child (who has been in the United States) outside thе United States with intent to obstruct the lawful exercise of parental rights shall be fined under this title or imprisoned not more than 3 years, or both.
(b) As used in this section — ... (2) the term “parental rights”, with respect to a child, means the right of physical custody of the child — (A) whether joint or sole (and includes visiting rights); and (B) whether arising by operation of law, court order, or legally binding agreement of the parties.
18 U.S.C. § 1204.
Raheman was convicted under § 1204(a) for “removing] a child from the United States ... or retaining] a child ... outside the United States with intent to obstruct the lawful exercise of parental rights” — conduct that, as indicated above, is not criminal under Massachusetts law.
See Beals,
We are thus presented with the question of whether a parent can be convicted under IPKCA for engaging in conduct that would not itself be criminal under state law. It is a question of first impression in this circuit and one we answer in the affirmative.
That IPKCA looks to state
family
law for purposes of defining “parental rights,”
see
18 U.S.C. § 1204(b)(2);
see also
H.R. Rep. at 4 (1993),
reprinted in
1993 U.S.C.C.A.N. at 2422 (‘“Parental rights’ are to be determined by reference to state law .... ”), does not in any way suggest that the statute depends upon state
criminal
law to delineate the realm of circumstances through which such rights are transgressed. By prohibiting those situations in which a parent “removes a child from the United States ... with intent to obstruct the lawful exercise of parental rights,” 18 U.S.C. § 1204(a), Congress went further than Massachusetts, which does not criminalize such conduct absent a prior court proceeding.
See Beals,
Nowhere in the text of the statute or the legislative history does Congress limit the criminal prohibition in 18 U.S.C. § 1204(a) to only those acts that are criminal under state law.
Compare
18 U.S.C. § 1204(a)
(“Whoever
removes a child from the United States, or attempts to do so .... ”)
with
Mass. Gen. L. ch. 265, § 26A
(“Whoever
...,
without lawful authority,
holds or intends to hold such a child permanently or for a protracted period ....”) (emphases added). Congress could have provided for the imprisonment of any person who,
in violation of State law,
removes a child from the United States. It did not do so, and this court will not infer such a limitation where the statutory language does not support it.
See Campanale & Sons, Inc. v. Evans,
Although none of our sister circuits has addressed the issue here presented, some have had the opportunity to apply IPKCA.
See United States v. Amer,
Having determined that a parent can be prosecuted under IPKCA without necessarily having violated state criminal law, we must next consider whether Raheman is such a parent. In short, we agree with the government that Raheman’s conduct was a “textbook case of international parental kidnapping, falling squarely within the ambit of the federal statute.”
On the day Raheman removed the children from Massachusetts to India, Ali had a “right of physical custody” of the children under Massachusetts law.
See
18 U.S.C. § 1204(b);
see also Beals,
(2) Constitutional Considerations
Raheman next argues that, because he had no notice that he was committing a crime, IPKCA deprives him of his constitutional rights to due process. See U.S. Const., Amend. V. Specifically, he contends that
[njowhere in the IPKCA text, the case law, or the legislative history does it state that a parent will be prosecuted under IPKCA when exercising their own rights under state law. Nowhere is •there an expressed or even implied intent to alter, expand, subvert or ignore state custody law/rights.... As in this case, if a defendant is not violating a court order, a legally binding agreement or the operation of his own state law *47 ..., he has not been given notiсe of a crime [that] he is committing outside of these parameters.
We are unpersuaded. Both IPKCA’s language and its application to Raheman’s situation are straightforward: so long as Ali had “parental rights” — a term encompassing even mere visitation rights — Rahe-man was not permitted to take the children outside the United States with the intent to obstruct those rights.
See
18 U.S.C. § 1204(a). We therefore conclude that Raheman had fair warning under the statute; in other words, as here applied, IPKCA’s prohibitions were “sufficiently definite to apprise a person of ordinary intelligence that his anticipated behavior will transgress the law.”
United States v. Arcadipane,
B. Jury Instructions as to Mi’s Parental Rights
Raheman next complains that the district court erred in instructing the jury that, as a matter of law, Ali had “parental rights” under Massachusetts law. 4 He argues that, because such a question is “a mixed question of law and fact for the jury,” these instructions violated his constitutional right to a jury trial. Raheman concedes that he did not offer a contemporaneous objection to the instruction. Nevertheless, he contends that the court’s failure to instruct the jury on the “parental rights” element of the offense was a structural error which requires “automatic reversal.”
Raheman’s “automatic reversal” argument is wrong because the alleged error is not “structural.”
5
The Supreme Court has limited the definition of a structural
*48
error to those errors that “infect the entire trial process.”
See Brecht v. Abrahamson,
In both
Mitchell
and
Neder,
the Supreme Court distinguished its decision in
Sullivan v. Louisiana,
Having concluded that Raheman’s underlying argument, if correct, does not mandate automatic reversal, we apply our traditional plain error analysis to review his claim.
See
Fed.R.Crim.P. 52(b). To establish plain error, Raheman must demonstrate (1) an error, (2) that is plain, (3) that affects substantial rights
(i.e.,
the error was not harmless), and (4) that seriously undermines the fairness, integrity, or public reputation of judicial proceеdings.
See Ramirez-Burgos v. United States,
Under IPKCA, parental rights
(e.g.,
the right to physical custody of the
*49
child whether joint or sole) can be defined by operation of law, court order, or legally binding agreement. The district court began its instructions by telling the jury that, under Massachusetts law, both parents, absent a court order or legally binding agreement, maintain equal rights to the physical custody of their children. “In criminal cases ... the judge must be permitted to instruct the jury on the law and to insist that the jury follow [her] instructions.”
United States v. Gaudin,
The only possible error in the district court’s instruction was that it did not permit the jury to apply the relevant facts to the legal definition of parental rights to decide whether this element of the crime had been satisfied.
6
See Gaudin,
The answers to these questions were never in dispute. There was no evidence whatsoever that Ali did not possess parental rights under Massachusetts law. Ali’s maternity status was undisputed, and there was no evidence of a court order or binding agreement between the parties that altered the custody status of the children prior to their removal. Thus, even if the instruction erroneously took the issue from the jury, the error did not affect Raheman’s “substantial rights” because no reasonable jury could have harbored a reasonable doubt that Ali possessed parental rights over the children under Massachusetts law. Accordingly, there was no plain error in the district court’s instruction.
C. Evidentiary Ruling
Raheman next argues that the district court erred in admitting “overly prejudicial [Fed.R.Evid.] 404(b) evidence” of alleged domestic violence. Our review is for abuse of discretion.
See Larch v. Mansfield Mun. Elec. Dept.,
In the fall of 1997, following the marital separation, Raheman allegedly made two threats against Ali. At trial, Ali provided the following testimony regarding these two incidents:
ALI: Initially, he seemed mystified that I had ... moved out of the house, and he wanted to know ... why that happened. And then, the next day, he was extremely angry and upset and he came over to the house and he told me that he was going to take my daughter, Nida, to India and he came looking for her passport. ... And then, he said, ‘I’m going to *50 come back here tomorrow and drag you by the hair and I’m going to take you home.’
DEFENSE COUNSEL: Objection. COURT: Overruled.
ALI: [Then,] [h]e told me that if I went to the police or the court for a separation or anything like that, he would become a lethal weapon.... 7
Prior to trial, the district court had determined that the evidence of these threats was outside the purview of Fed.R.Evid. 404(b):
And anything that happened in September, October, November [1997] are part of the buildup.... Issues of adultery, issues of domestic abuse — their relationship in that critical time period is essential to both of their states of mind.... I don’t think they’re 404(b)’s. I think that’s just part of understanding your intent and your state of mind.
Fed. R. Evid 404(b) provides that “[evidence of other crimes, wrongs, or acts is not admissiblе to prove the
character of the person in order to show action in conformity therewith”
(emphasis added). Here, the district court supportably concluded that Ali’s testimony was not being introduced as evidence of Raheman’s character for violence or criminal propensity; rather, it was being introduced as part of Ali’s necessary description of the events leading up to the crimes and as intrinsic evidence of an element of the charged offense — Raheman’s intent to obstruct the lawful exercise of Ali’s parental rights.
See, e.g., United States v. Shea,
Rule 401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Here, the district court supportably treated the evidence of Raheman’s threats as relevant because, as stated above, it tends to show that Raheman intended to deprive Ali of her parental rights. Specifically, Ali’s testimony as to the nature of the marriage and the manner in which it dissolved (including the threats) provided a glimpse into Raheman’s otherwise internalized state of mind, thereby assisting the jury in understanding the motivating factors behind Raheman’s decision to kidnap the *51 children. From this evidence, the jury easily could have inferred that Raheman held a great deal of animus towards Ali, that (should she take any action) he intended to punish her, and that, by kidnapping the children, he accomplished his goal.
So too did the district court act within its discretion in not barring the evidence under Rule 403, which permits the exclusion of relevant evidence “if its probative value is substantially outweighеd by the danger of unfair prejudice.... ” Raheman contends that the “evidence was used for nothing more than to prejudice the jury by demonstrating criminal propensity and for stirring up in the jury, anti-Muslim fervor.”
8
But there is no indication that this evidence did — or could have — caused such a stir. Nor is there any indication that the government attempted to draw upon any anti-Muslim prejudices that might have existed. Indeed, given the fact that both the mother and the children were themselves Muslim, Raheman’s assertion is a bit difficult to comprehend. Accordingly, we cannot conclude that admitting the challenged evidence was an abuse of discretion.
See Freeman v. Package Machinery Co.,
D. Apprendi Allegation
Turning to the wiretapping conviction, Raheman contends that “[t]he district court created a structural defect in not instructing the jury on the separate offenses included in 18 U.S.C. § 2511.” Specifically, he claims that the Supreme Court’s decision in
Apprendi v. New Jersey,
We begin with the relevant terms of 18 U.S.C. § 2511. 10 That statute makes it unlawful, inter alia, to intentionally intercept any wire, oral or electronic communi *52 cation. 11 For punishment, the statute refers to 18 U.S.C. § 2511(4), which provides that a person in violation of 18 U.S.C. § 2511(l)(a) “shall be fined ... or imprisoned [for] not more than five years, or both” and then defines limited circumstances under which a defendant is eligible for a shorter maximum sentence. If the offense is, inter alia, (1) a first offense, (2) that was not committed for a tortious or illegal purpose or for a commercial advantage or gain, (3) and the intercepted communication is not scrambled or encrypted, the defendant may receive a reduced maximum penalty. 12
Raheman claims that Apprendi mandates that the jury consider these additional factors as elements of the offense because they determine the applicable maximum sentence. He is wrong.
In
Apprendi,
the Supreme Court held that “[o]ther than the fact of a priоr conviction, any fact that
increases
the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
The Second, Fourth, and Sixth Circuits, in applying
Apprendi
have established a useful methodology for distinguishing between aggravating and mitigating factors.
See United States v. Hamlin,
319 F.3d
*53
666, 670-71 (4th Cir.2003);
United States v. Campbell,
Applying this methodology to 18 U.S.C. § 2511(4) demonstrates that the statute establishes one crime with several possible mitigating factors. The baseline crime provides that any individual who “intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral or electronic communication ... shall be fined ... or imprisoned not more than five years, or both.” 18 U.S.C. § 2511(l)(a) & (4)(a). The statute then states that if “the [baseline] offense” was committed under certain factual circumstances, lower maximum sentences apply. 18 U.S.C. § 2511(4)(b). Thus, the additional facts stated in 18 U.S.C. § 2511(4)(b), if found, would have served only to decrease the maximum sentence which Raheman faced for violating the baseline offense stated in 18 U.S.C. § 2511(l)(a). Therefore, there was no Apprendi error in the district court deciding for itself whether Raheman met these mitigating factors.
E. The “Forthwith” Order
Raheman next contends that “the [district] court erred in imposing as a condition of supervised release that [he] shall ‘forthwith’ take all reasonable measures to return the children to the United States.”
See
U.S.S.G. § 5D1.3(b) (authorizing the court to impose, in addition to the mandatory conditions of supervised release, “other conditions of supervised release” to the extent that such conditions comply with various statutory requirements). Because the imposition of the challenged order hinges upon the sentencing court’s conclusions of law, our review is plenary.
See United States v. Matos,
In its imposition of judgment, under the heading “Conditions of Supervised Release,” the district court imposed upon Raheman the standard conditions — with a single addition:
The Defendant shall forthwith take all reasonable measures within his control to return the children to the United States so that the Middlesex Probate Court (or other appropriate court) may determine child custody issues, and shall cooperate with all authorities in the United States, India, and elsewhere, to effectuate their return.
(emphasis added).
Due to its “forthwith” language, this order generated significant confusion. On three separate occasions, the court elaborated the provision’s meaning: in an order dated November 18, 2002, the court noted that “the order went into effect immediately pursuant to 18 U.S.C. § 3664(f)(4) and 28 U.S.C. § 1651 [because] [s]taying the order until supervised release would frustrate the rights of the victims (the mother and the two children) and [would] be unenforceable becаuse defendant will be deported”; in an order dated February 11, 2003, the court again emphasized that “[t]he order was made effective immediately upon entry of judgment because postponement of the effective date of the *54 order until the start of supervised release would not provide an adequate remedy for the victims of the crime ...” (emphasis retained); and, at a hearing in March 2003, the court explained that, “if it hasn’t been crystal clear, which I think it has been, let me just reiterate, it was forthwith — it was not a condition of supervised release, because by the time I hit supervised release, the children are of an age where either it’s just a moot point or under Muslim law, I’m told, it makes a difference ....” 13 At the March 2003 hearing, the court denied the government’s request for a contempt hearing, stating: “I have denied it, because I want to see what the First Circuit is going to do first.... [U]sually all orders are conditions of supervisеd release. This is different. This was immediate, forthwith, as you all know, because otherwise you basically removed the relief.”
Clearly, then, despite its placement under the heading “Conditions of Supervised Release,” the challenged order was not a condition of supervised release; rather, it was an order designed to take effect immediately (i.e., while Raheman was serving his prison term). So understood, the authority to pass such an order could not derive from U.S.S.G. § 5D1.3 because the provisions of that guideline only involve “conditions of supervised release.” See also 18 U.S.C. § 3624(e) (“The term of supervised release commences on the day the person is released from imprisonment. ...”). Accordingly, we must decide whether, as the government argues, there exists an alternate source of authority under either (1) the restitution statutes; or (2)the All Writs Act.
(1) Restitution Statutes
A sentencing court has authority to impose restitution. See 18 U.S.C. § 3663(a) (authorizing statute); see also id. § 3553(a) (“The court, in determining the particular sentence to be imposed, shall consider — ... the need to provide restitution to any victims of the offense.”). Specifically, 18 U.S.C. § 3664(f) provides that:
(3)(A) A restitution order may direct the defendant to make a single, lump-sum payment, partial payments at specified intervals, in-kind payments, or a combination of payments at specified intervals and in-kind payments.
(4) An in-kind payment described in paragraph (3) may be in the form of— (A) return of property; (B) replacement of property; or (C) if the victim agrees, services rendered to the victim or a person or organization other than the victim.
(emphasis added).
The government asserts that “the district court has the authority to order Raheman to perform services [ie., return the children] directly to the victim ..., so long as the victim consents.” In so doing, the government makes no attempt to equate the mandates of the district court’s forthwith order- — to “forthwith take all reasonable measures within his control to return the children to the United States” — with the “in-kind payments” contemplated by Congress in 18 U.S.C. § 3664(f)(3)(A), (4). Indeed, at oral argument, the government conceded that it was unable to find any case law wherein the imposition of a similar condition was affirmed on the basis of the restitution statutes.
*55 We, too, have found nothing in the case law or legislative history that characterizes children either as traditional restitution or as in-kind payments. In our view, this void is neither astonishing nor deserving of extensive elaboration. Children are not “property” nor is their transfer a “service,” and we decline the invitation to hold otherwise.
(2) All Writs Act
In a final attempt to salvage the order, the government asserts that, “to the extent that this Court concludes that the district court was not specifically authorized to issue a forthwith order pursuant to 18 U.S.C. § 3664(f)(4), the district court properly relied upon its general authority under the All Writs Act, 28 U.S.C. § 1651(a).” We disagree.
Under the All Writs Act, Congress authorized federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a) (emphasis added). The word “their,” of course, refers to the federal courts — and not, for example, to state family courts. Here, the district court had criminal jurisdiction over Raheman, see 18 U.S.C. § 3231, but did not have jurisdiction over the custody of the children. So understood, we conclude that the forthwith order went too far.
As the law now stands, the forthwith order “to return the children to the United States” was not a necessary concomitant of an appropriate penalty in this case; 14 instead, it served, at least in part, as a mechanism through which the Middlesex Probate Court could effectuate its own jurisdiction over the custody of the children. Indeed, the order itself expresses such a purpose. 15 For these reasons, then, the district court’s order was neither “necessary” nor “appropriate” to effectuate — or otherwise aid in — its own jurisdiction, and there accordingly wаs no basis for the invocation of the All Writs Act.
(3) Disposition
Having discerned no authority for the imposition of this forthwith order, it must be vacated. We note, however, that if an order to return the children were, as originally contemplated, imposed as a condition of supervised release, it would appear to be lawful and appropriate.
See Amer,
In view of the district court’s obvious intent and the uncertainty accompanying whether the “return-the-ehildren” directive should (or should not) be construed as a condition of supervised release, we believe that the ends of justice require us to re *56 mand for resentencing so that the court may, in light of this opinion, reconsider the status and wording of this condition.
F. Ineffective Assistance of Counsel
Finally, Raheman argues that, because he had “important testimony to give regarding the kidnapping charge and a strong need to refrain from testifying on the wiretapping charge,” trial counsel was ineffective because he made no motion to sever the charges. On this basis, Rahe-man invites us to “vacate the convictions and remand the matter for two separate trials on each charge.... ”
We decline the invitation. This circuit has held “with a regularity bordering on the monotonous that fact-specific claims of ineffective assistance cannot make their debut on direct appeal of criminal convictions, but, rather, must originally be presented to, and acted upon by, the trial court.”
United States v. Mala,
Here, for reasons we need not elaborate upon, the record is insufficiently developed to allow for meaningful review on direct appeal. Accordingly, Raheman must pursue his claim in the traditional fashion. 16
III.
For the reasons stated above, we affirm the convictions, vacate the forthwith order, and remand for resentencing for the imposition of any conditions of supervised release that the district court may deem appropriate in light of this opinion.
It is so ordered.
Notes
. On December 23, 2002, subsequent to filing his notice of appeal, Raheman filed a motion to set aside his conviction pursuant to 28 U.S.C. § 2255. That motion is pending in the district court.
. Raheman has also raised several pro se arguments, each of which we have considered. Because these arguments are without merit, we summarily reject them.
. Mass. Gen. L. ch. 265, § 26A provides as follows:
Whoever, being a relative of a child less than eighteen years old, without lawful authority, holds or intends to hold such a child permanently or for a protracted period, or takes or entices a child from his lawful custodian ... shall be punished by imprisonment....
(emphasis added).
. Regarding the parental kidnapping charge, the district court instructed the jury, in pertinent part, as follows:
Now, what are these "parental rights” that we’ve been talking about? I’m about to instruct you on that.
The term “parental rights,” with respect to a child, means the right to physical custody of the child, whethеr joint or sole, and includes visitation rights.
The right to physical custody or visitation can arise in three ways: by operation of law, by court order, or by a legally binding agreement. The right to physical custody is the right to actual possession and control of a child.
In Massachusetts, both parents have joint custody of a minor child prior to the intervention of a court. 'The law of Massachusetts recognizes both parents' equal rights to custody of their children.... Prior to a court order, both parents have lawful custody of their children.' Both parents’ right to physical custody continues unless and until it is terminated by specific legal proceedings. Because there was no court order from any court and no legally binding agreement between the parties, on November 26, 1997, both Dr. Raheman and Ms. Ali had the right to physical custody of their children.
(emphasis added).
. Even if this were a structural error, Rahe-man would still not be entitled to "automatic reversal” because he failed to preserve his objection. In
Johnson v. United States,
. After providing the definition of parental rights, the court instructed that Ali had parental rights over the children as a matter of law.
. Following this testimony, Ali was asked whether Raheman had made any comments about restraining orders. Raheman objected, the district court overruled his objection, and Ali responded:
He said to me that, if you thought that you could go to the police and get a restraining ■ order against me, that’s not going to help you because a restraining order comes into effect only when it’s violated and then it could be too latе.
Raheman thereafter objected and moved for a mistrial. At a sidebar conference, the judge expressed some concern about the graphic nature of both the restraining-order evidence and the threat evidence already admitted, stating at one point that she might have ex-eluded the evidence under Rule 403 had she known its nature in advance. The court thereafter denied Raheman’s mistrial motion but struck the restraining-order testimony, instructing the jury that such evidence had "nothing to do with this particular proceeding.” The court did not, however, strike the threat evidence that had earlier been admitted.
Thus, our task is to decide whether the admission of the remaining threat evidence was within the court's discretion. For the reasons set forth in the text, we conclude that it was. We also reject Raheman's contention that the district court erred in denying his motion for a mistrial.
. For support, Raheman notes that "[t]he trial occurred in Boston less than one year after the terror attacks of September 11, 2001.”
. Raheman argues again that this error was ''structural” and therefore we should not apply plain error review. As we explained above, plain error applies even if the alleged error is properly classified as structural.
See supra
at 47 n. 5;
see also United States v. Pérez-Ruiz,
.This statute was recently amended, but Raheman's trial occurred before the amendments took effect. We refer throughout to the pre-amendment version of the statute.
. 18 U.S.C. § 251 l(l)(a) states, in pertinent part:
Except as otherwise specifically provided in this chapter any person who intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication ... shall be punished as provided in subsection (4).
. 18 U.S.C. § 2511(4) provides, in pertinent part:
(a) [W]hoever violates subsection (1) of this section shall be fined under this title or imprisoned not more than five years, or both.
(b) If the offense is a first offense under paragraph (a) of this subsection and is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, and the wire or electronic communication with respect to which the offense under paragraph (a) is a radio communication that is not scrambled, encrypted, or transmitted using modulation techniques the essential parameters of which have been withheld from the public with the intention of preserving the privacy of such communication, then—
(i) if the communication is not the radio portion of a cellular telephone communication, a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit, a public land mobile radio service communication or a paging service communication, and the conduct is not that described in subsection (5), the offender shall be fined under this title or imprisoned not more than one year, or both; and
(ii) if the communication is the radio portion of a cellular telephone communication, a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit, a public land mobile radio service communication or a paging service communication, the offender shall be fined under this title.
. The district court was presented with information that, under Islamic law, a mother has a right of physical custody only until daughters reach puberty and sons reach the age of seven.
. Had Congress intended it to be one, it easily could have so provided.
. "The Defendant shall forthwith take all reasonable measures within his control to return the children to the United States so that the Middlesex Probate Court (or other appropriate court) may determine child custody issues ...(emphasis added).
. Indeed, Raheman has already filed a § 2255 motion in the district court, alleging, inter alia, that trial counsel was ineffective. In an order dated January 22, 2003, the district court agreed to hear Raheman's collateral claims simultaneously with this court’s consideration of the direct appeal. (The district court explained its ruling as follows: ”[T]here are extraordinary circumstances here because of the immediate concerns about the custody of the children, which have not yet been resolved by the courts in India. As long as the federal claims are not fully resolved, proceedings in India may be delayed.”).
Raheman’s assertion to the contrary notwithstanding, it is of no import that the § 2255 motion was filed
pro se. See Ellis v. United States,