UNITED STATES оf America, Appellee, v. Michelle MILLER, also known as Michelle Favreau, also known as Michelle Brodeau, Defendant-Appellant.
Docket No. 08-1152-cr.
United States Court of Appeals, Second Circuit.
Argued: March 30, 2009. Decided: Nov. 23, 2010.
626 F.3d 682
The argument that the redacted information constitutes “guidelines” information, instead of information about “techniques and procedures,” requires us to address the difference between the two categories. While difficulties may arise in unusual cases, the basic distinction is apparent. The term “guidelines“—meaning, according to Webster‘s Third New International Dictionary (1986), “an indication or outline of future policy or conduct“—generally refers in the context of Exemption 7(E) to resоurce allocation. For example, if a law enforcement agency concerned with tax evasion directs its staff to bring charges only against those who evade more than $100,000 in taxes, that direction constitutes a “guideline.” The phrase “techniques and procedures,” however, refers to how law enforcement officials go about investigating a crime. See Webster‘s Third New International Dictionary (1986) (defining “technique” as “a technical method of accomplishing a desired aim“; and “procedure” as “a particular way of doing or of going about the accomplishment of something“). For instance, if the same agency informs tax investigators that cash-based businesses are more likely to commit tаx evasion than other businesses, and therefore should be audited with particular care, focusing on such targets constitutes a “technique or procedure” for investigating tax evasion. Our in camera review of the entire Forman Memorandum leads us to conclude that the redacted portions constitute “techniques and procedures” for law enforcement investigation.
Because we find that DHS properly withheld the information under Exemption (b)(7)(E), we need not consider the other arguments put forth by the Project. Accordingly, the judgment of the district court granting partial summary in favor of DHS is hereby AFFIRMED.
Nancy J. Creswell, Assistant United States Attorney (Gregory L. Waples, Assistant United States Attorney, on the brief), for Thomas D. Anderson, United States Attorney for the District of Vermont, Burlington, VT, for Appellee.
Before: STRAUB, B.D. PARKER, and LIVINGSTON, Circuit Judges.*
Judge STRAUB dissents in a separate opinion.
DEBRA ANN LIVINGSTON, Circuit Judge:
Defendant-Appellant Michelle Favreau1 (“Favreau“) appeals from a judgment of the United States District Court for the District of Vermont (Sessions, J.) entered February 29, 2008, following a jury trial, convicting her of one count of international parental kidnapping in violation of
BACKGROUND
Michelle Favreau and Keith Miller (“Miller“) met in high school in Bennington, Vermont, and, several years later, entered a relationship. On March 3, 1994, Favreau gave birth to the couple‘s only child, Robert Keith Miller (“Robbie“), and the two were subsequently married. In March 1999, however, the couple divorced and, pursuant to a divorce decree entered by the Vermont Family Court with the consent of all parties, Favreau was awarded legal custody of Robbie. Millеr was awarded visitation rights.
Relations between Favreau and Miller degenerated, however, and on April 25, 2000, Favreau obtained an ex parte temporary abuse prevention order from the Probate and Family Court Department of the Massachusetts Trial Court in Pittsfield, Massachusetts (“Massachusetts Family Court“) where she had moved with Robbie following the divorce. That order gave Favreau full custody of Robbie on a temporary basis, pending an adversarial hearing. On June 2, following a hearing attended by both parties, the court extended the order for a year, thereby barring Miller from seeing Robbie during that period. Miller moved for reconsideration, however, and, on June 15, 2000, the court modified
The first visit was held according to the terms of the Massachusetts order. Shortly after the first visit, however, Favreau began moving Robbie around the state and country in an effort to stay away from Miller, whom she did not inform of her whereabouts. On May 23, 2001, without notifying Miller, Favreau took Robbie across the Vermont border into Canada. Favreau conceded, at her criminal trial, that shе knew at the time she took Robbie across the border that Miller was entitled to at least five additional supervised visits pursuant to the June 15, 2000 order.
Once in Canada, Favreau applied to become a permanent resident, and, after obtaining that status, on September 11, 2002, applied for custody of Robbie in the Superior Court of Quebec, seeking to cancel all of Miller‘s visitation rights and to obtain child support. Miller, who was served by mail with papers in the Canadian proceeding, moved to dismiss that action for lack of jurisdiction. The Canadian Superior Court denied that motion, finding that its exercise of jurisdiction was in the best interests of the child and granted Favreau custody pending resolution of the case. Proсeedings in that court thus continued, and, on February 3, 2005, the Quebec court awarded Favreau custody. Miller appealed that decision, but the Canadian appellate court affirmed it that October.
In Favreau‘s absence, however, Miller had begun parallel court proceedings in the United States to try to regain custody of Robbie. First, in early 2002, Miller requested that the Massachusetts family court transfer jurisdiction over custody matters back to Vermont, which it did on the ground that Favreau‘s whereabouts were unknown. Miller then moved in Vermont Family Court to modify custodial rights and to enforce his existing parental rights. Miller also sought to have Favreau held in contempt for violating the court orders already in place. On September 13, 2002 the Vermont court issued a written order granting full custody of Robbie to Miller pending a further evidentiary hearing and holding Favreau in contempt of court. It also issued a bench warrant for Favreau‘s arrest.
The U.S. Attorney‘s Office for the District of Vermont then began to pursue a federal criminal prosecution, and, on December 2, 2002, Favreau was indicted in the United States District Court for the District of Vermont on one count of international parental kidnapping in violation of
In January 2006, Favreau returned to Vermont, leaving Robbie in Canada, and was arrested by federal marshals. She was then transferred to state custody based on the Vеrmont contempt charge, where she proceeded to move to dismiss that charge on the ground that the Vermont Family Court lacked subject matter jurisdiction over the case when it issued its September 2002 order. The state court denied this motion. Favreau then moved in the Vermont court for relief from the judgment of contempt and for recognition of the Canadian custody order, but that court denied those requests as well. Favreau then appealed to the Vermont Supreme Court.
Favreau‘s federal trial took place on July 11 and 12, 2007. At trial, the government relied on at least two court orders effective during the period of the indictment to establish Miller‘s parental rights—the June 2000 Massachusetts Family Court order providing for six supervised visits, and the September 2002 Bennington Family Court order, issued in Favreau‘s absence, granting Miller full custody. It further adduced testimony establishing that Favreau left the country and remained out of the country with the intent to frustrate those rights. Favreau, who testified on her own behalf, attempted to establish two statutory affirmative defenses: first, that she acted “within the provisions of a valid court order granting [her] custody ... at the time of the offense,” and, second, that she was “fleеing an incident of domestic violence.”
On August 22, 2008—more than a year after Favreau‘s trial—the Vermont Supreme Court determined that, although the Vermont Family Court had jurisdiction over Robbie‘s custody proceedings in September 2002 when it granted full custody to Miller and held Favreau in contempt, it should have declined to exercise that jurisdiction and deferred instead to the Canadian courts. See Miller v. Miller, 184 Vt. 464, 965 A.2d 524, 531-35 (2008). The Vermont Supreme Court therefore reversed the portion of the family court‘s order denying Favreau‘s request for recognition of the Canadian judgment. Id. at 537.
DISCUSSION
I.
Before this Court, Favreau contends, first, that the district court erred in excluding evidence of her appeal of the Vermont Family Court‘s September 2002 order to the Vermont Supreme Court, which was pending at the time of her trial.3 Because we afford district courts “wide latitude in determining whether evidence is admissible,” SR Int‘l Bus. Ins. Co. v. World Trade Ctr. Props., LLC, 467 F.3d 107, 119 (2d Cir. 2006) (internal quotation
We find no such abuse of discretion—let alone “manifest error“—on these facts. Under the Federal Rules, evidence is relevant if it has “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.”
To establish its case, the government was required to prove: (1) that Robbie had previously been in the United States; (2) that Favreau took Robbie from the United States to another country (or kept Robbie from returning to the United States from another country); and (3) that Favreau acted with the intent to obstruct the lawful exercise of Miller‘s parental rights. See
The argument is without merit. As a preliminary matter, at the time Favreau went to Canada, the Vermont order at issue did not exist. Her appeal of that order, thus, could not possibly be probative of Miller‘s rights “at the time that [Favreau] went to Canada with her son.” Nor, however, could it be probative as to Miller‘s parental rights during the period of the indictment—i.e., from June to December 2002. Those rights, as noted above, stemmed from at least two different court orders—the June 2000 Massachusetts Family Court order granting Miller at least six supervised visits, and the September 2002 Vermont Family Court order granting Miller full custody. There is no contention that the pending appeal of the latter, Vermont order was of any relevance to consideration of the rights created by the Massachusetts order. Instead, Favreau argues that the pending appeal was relevant to consideration of rights created by the second court order—i.e., the order she was appealing. Even with respect to this order, we disagree.
Favreau‘s argument ignores the basic principle that any “lawful parental rights” created by the second order came into existence when the order was issued. Indeed, it is a well-established “basic proposition that all orders and judgments of courts must be complied with promptly” and that while a party has a right to appeal the order, “absent a stay, he must comply promptly with the order pending appeal.” Maness v. Meyers, 419 U.S. 449, 458 (1975); McDonald v. Head Crim. Ct. Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988) (“An order issued by a court must be оbeyed, even if it is later shown to be erroneous.“). Here, no stay of the order was ever requested or issued. Accordingly, as of September 13, 2002, Favreau was required to comply with the Vermont court order which gave Miller lawful parental rights to full custody, rights Favreau frustrated by keeping Robbie outside the United States.
The fact that Favreau was appealing that order was not evidence to the contrary. Indeed, it could not be evidence to the contrary, because the pendency of the appeal could not itself negate the existence of Miller‘s parental rights while the order was still in effect, which it was during the period of the indictment. Instead, the pending appeal could, at most, exprеss Favreau‘s disagreement with those rights. Cf. United States v. Kraeger, 711 F.2d 6, 7 (2d Cir. 1983) (per curiam) (“[A] good-faith misunderstanding of the law may negate willfulness but a good-faith disagreement with the law does not.” (internal quotation marks omitted)). Because her disagreement with those rights—as expressed by the appeal—was neither relevant to their existence during the period of the indictment nor a legal defense to the crime charged, the district court correctly concluded that the pending appeal was not relevant and was thus inadmissible.
As discussed above, Favreau moved in limine prior to trial to introduce two pieces of evidence: first, evidence of her pending appeal of the Vermont family court order, and, second, evidence of the Canadian court order granting Favreau full custody of Robbie. After a hearing, the district court denied the motion with respect to the pending appeal, rejecting Favreau‘s theory that it was relevant as a challenge to the validity of that order. With respect to the Canadian custody order, the court permitted Favreau to introduce evidence of her application for custody in the Canadian court because of its potential relevance to Favreau‘s defense that she lacked the requisite criminal intent under the statute. However, it precluded any mention of the order itself, finding that such evidence would be irrelevant and confusing. See
Finally, even were we to find “manifest error,” we would deem that error harmless. As noted, even manifestly erroneous evidentiary rulings are insufficient to warrant reversal if they do not “affect substantial rights.”
We therefore affirm the district court‘s decision to exclude as irrelevant evidence of the pending Vermont Supreme Court appeal.
II.
Favreau argues, next, that the district court should have granted a continuance until the Vermont decision was handed down. We will overturn a district court‘s decision to deny a continuance “only for an abuse of discretion.” Farias v. Instructional Sys., Inc., 259 F.3d 91, 100 (2d Cir. 2001). A defendant must thus show both arbitrariness and prejudice in order to obtain reversal of the denial of a continuance. Id.
For substantially the reasons set forth above, we find that Favreau has failed to establish either. Specifically, we conclude that Favreau has not established prejudice because neither the aрpeal nor its ultimate outcome were relevant to the existence of Miller‘s rights during the period of the indictment while the Vermont order was still in effect and Favreau was accordingly bound by it. Favreau thus cannot establish that awaiting the Vermont Supreme Court decision would either have given Favreau grounds to move to dismiss the indictment or strengthened her case at trial. Nor does Favreau identify any basis for concluding that the district court‘s decision—which, like its evidentiary ruling, came after extensive oral argument—was in any way “arbitrary.”
We therefore conclude that the district court did not abuse its discretion in denying the continuance.
III.
Finally, Favreau claims that there was insufficient evidence presented as to her intent. Whilе we review such a claim de novo, a defendant challenging the
Viewing the evidence in the light most favorablе to the government, Favreau does not meet her burden. The government‘s evidence of Favreau‘s intent was based on, among other things, her knowledge of Miller‘s parental rights as recognized in the initial divorce decree of March 1999 and the June 15, 2000 Massachusetts Family Court order. As noted, Favreau‘s testimony indicated that, when she crossed into Canada with Robbie in May 2001, she knew about the June 15 Massachusetts Family Court order granting visitation rights to Miller. Moreover, she testified that, at the Canadian border, Favreau presented the June 2 abuse prevention order, even though she knew it had been superseded by the June 15 order. Accordingly, there was sufficient evidence for a jury to find that, during the indictment period, Favreau remained in Canаda with Robbie despite knowledge of Miller‘s parental rights. On that record, a rational jury could have inferred Favreau‘s intent to obstruct Miller‘s parental rights.
CONCLUSION
For all of the foregoing reasons, the judgment of the district court is AFFIRMED.
STRAUB, Circuit Judge, dissenting:
The majority today finds that the District Court properly excluded evidence of Michelle Favreau‘s pending appeal to the Vermont Supreme Court as irrelevant to Favreau‘s defense to charges of international parental kidnapping. Because I believe the excluded evidence tends to show that Favreau lacked the specific intent required by the international parental kidnapping statute, I would find that the evidence was relevant and that the District Court erred in exсluding it. Therefore, I respectfully dissent.
Under the “very low standard” set by the Federal Rules of Evidence, United States v. Al-Moayad, 545 F.3d 139, 176 (2d Cir. 2008), evidence is relevant and therefore admissible if it has “any tendency” to make “any fact” in issue more or less probable than it would be without the evidence,
An essential element of the international parental kidnapping charge against Favreau is that Favreau removed Robbie from the United States, or retained him outside of the United States, “with intent to obstruct the lawful exercise of [Keith Miller‘s] parental rights.”
That there are several steps to demonstrating the relevance of the Vermont appeal does not mean that the evidence is irrelevant under Rule 401. See Quattrone, 441 F.3d at 188; Ravich, 421 F.2d at 1204 n.10. The appeal at issue was from a Vermont lower court order denying Favreau‘s motion for recognition of a Canadian order that granted Favreau custody of Robbie. The existence of Favreau‘s appeal of the Vermont lоwer court order suggests that Favreau attempted to use the Canadian proceedings to vindicate her own parental rights in Vermont. The fact that Favreau attempted to vindicate her own rights in the Vermont courts, together with the admitted evidence of the Canadian court proceedings, makes it more likely that she originally brought Robbie to Canada and retained him there with the intent of obtaining custody of Robbie in Canada and of then using the Canadian proceedings to vindicate her own parental rights in the United States. In turn, the fact that Favreau originally took Robbie to Canada and retained him there with the intent of vindicating her own rights both in Canada and in the United States makes it less likely that she took this step with the intent of obstructing Miller‘s parental rights. Therefore, the Vermont appeal has some tendency to make a fact in issue less probable and, as a result, is relevant evidence under Rule 401.
Furthermore, the facts of this case do not preclude Favreau from arguing that she did not have the intent required by the statute. Contrary to the majority‘s suggestion, Maj. Op. at 690, the mere facts that (1) Miller had existing parental rights, (2) Favreau knew of those rights, and (3) Favreau took Robbie to Canada do not сonclusively prove that Favreau took Robbie to Canada with the specific intent of obstructing Miller‘s parental rights. While, as the majority suggests, Maj. Op. at 691, a jury could infer from those facts that Favreau intended to obstruct Miller‘s rights, the inference a jury might reasonably draw from Favreau‘s knowledge has no bearing in determining the relevance of the excluded evidence. The question is simply whether admitting evidence of the Vermont appeal “affects the mix of material information” available to the jury on the question of Favreau‘s intent. Quattrone, 441 F.3d at 188. Again, what relative weight to give to the excluded evidence is the jury‘s role, not ours. See Sir Speedy, 957 F.2d at 1038; see also Josephberg, 562 F.3d at 487-88.
Likewise, the fact that evidence of the pending Vermont appeal came into existence after the indictment period does not mean that it is irrelevant.2 Cf. Mangual-Santiago, 562 F.3d at 428-29; Kelley, 551 F.3d at 175-76; Alahmad, 211 F.3d at 542. The relevance of subsequent evidence of an alternative motive is clearly demonstrated if we imagine that Robbie had a rare medical condition that could only be treated in Canada. Imagine that, knowing of Miller‘s parental rights and knowing that they would be obstructed, Favreau nevertheless took Robbie to Canada intending that Robbie receive the medical treatment he needed. Assume further that a medical report was issued years after Favreau brought Robbie to Canada that confirmed that Robbie did in fact have the rare medical condition. The report would certainly be probative of Favreau‘s intent in trаnsporting Robbie to Canada, even though the report, like the pending Vermont appeal, came into existence after the charged period. Such a report would make it more likely that Favreau transported Robbie to Canada with the intent of obtaining medical treatment and not with the alternative intent of ob-
For all of the reasons explained above, I would find that the pending Vermont appeal was relevant. Furthermore, because the District Court ruled that this evidence, which was relevant to an essential element of the crime of international parental kidnapping, was irrelevant, I would find that the District Court committed “manifest error” and exceeded its allowable discretion.3 The majority notes that the abuse-of-discretion standard for evidentiary rulings allows for a “range of permissible decisions,” Manley, 337 F.3d at 245, by the District Court. However, as discussed above, evidence of the Vermont appeal tended to make a fact in issue—namely, Favreau‘s criminal intent—less likely. The evidence was therefore admissible on the face of Rules 401 and 402. A finding that relevant evidence is inadmissible as irrelevant is not a permissible decision under the Federal Rules of Evidence. Furthermore, the evidence was relevant not just to any issue, but rather to the central issue in the case—Favreau‘s intent. See Weiss v. Chrysler Motors Corp., 515 F.2d 449, 459 (2d Cir. 1975) (“Since we have found that the exclusion of [the evidence] was critical because of its relevance to the central issue of the case, its exclusion is manifest error.“). For all of these reasons, the District Court‘s exclusion of the evidence was manifest error.
Likewise, with regard to whether the District Court‘s error was harmless, an error committed at trial is less likely to be harmless if it speaks directly to a critical element of the prosecution‘s case. See Wray v. Johnson, 202 F.3d 515, 526 (2d Cir. 2000) (noting that a prominent factor in harmless error analysis is whether the trial error “bore ‘on an issue that [was] plainly critical to the jury‘s decision‘” (quoting Hynes v. Coughlin, 79 F.3d 285, 291 (2d Cir. 1996))). In this case, the improperly excluded evidence went to the most critical element of the crime charged—Favreau‘s intent—and, therefore, I would find that the District Court‘s error was not harmless.
The majority‘s reasoning in finding that any potential error was harmless is not persuasive. The majority finds that the government “was able to conclusively establish the elements of the crime based solely on the June 2000 Massachusetts Family Court order,” Maj. Op. at 690, and therefore concludes that any error in excluding the Vermont appeal was harmless. Of course, neither the Massachusetts order nor the Vermont order conclusively establishes the elements of the crime of international parental kidnapping. As explained above, the fact that Favreau brought Robbie to Canada while she knew of the court orders does not conclusively show that Favreau had the requisite criminal intent in bringing Robbie to Canada. As a result, Favreau should be permitted to introduce evidence tending to show that she did not intend to obstruct Miller‘s parental rights—namely, evidence of the Vermont
In sum, I find that the District Court exceeded its allowable discretion by excluding evidence of the Vermont appeal, and, as a result, I would vacate Favreau‘s conviction and remand the case for further proceedings as appropriate, including a new trial. Because I would vacate the conviction on those grounds, I need not reach Favreau‘s other arguments on appeal.
Catherina Lorena CENZON-DECARLO, Plaintiff-Appellant, v. MOUNT SINAI HOSPITAL, A New York Not-for-Profit Corporation, Defendant-Appellee.*
Docket No. 10-0556-cv.
United States Court of Appeals, Second Circuit.
Argued: Nov. 10, 2010. Decided: Nov. 23, 2010.
626 F.3d 695
* The Clerk of the Court is directed to amend the official caption in accordance with this Opinion.