UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BOGDANA ALEXANDROVNA MOBLEY, a/k/a BOGDANA ALEXANDROVNA OSIPOVA, Defendant - Appellant.
No. 19-3122
United States Court of Appeals for the Tenth Circuit
August 21, 2020
Before HOLMES, SEYMOUR, and PHILLIPS, Circuit Judges.
PUBLISH. FILED United States Court of Appeals Tenth Circuit. Christopher M. Wolpert, Clerk of Court. Appeal from the United States District Court for the District of Kansas (D.C. No. 6:17-CR-10142-EFM-1). Katryna Lyn Spearman (Joshua Sabert Lowther with her on the briefs), of Lowther Walker LLC, Atlanta, Georgia, for Defendant-Appellant. Jason W. Hart, Assistant United States Attorney (Stephen R. McAllister, United States Attorney, with him on the briefs), Wichita, Kansas, for Plaintiff-Appellee.
In April 2014, a pregnant Bogdana Alexandrovna Osipova1 took her young son and daughter to Russia, leaving behind ongoing divorce proceedings in Kansas. By doing so, Osipova deprived Brian Mobley, her soon-to-be ex-husband and the father of her daughter and unborn child, of his joint-custody rights under the Kansas court‘s temporary custodial order. In Russia, Osipova soon gave birth to a girl and instituted her own divorce proceedings. The Russian court ordered Mobley to pay monthly child support. But by then the Kansas court had already awarded Mobley full custody of their two daughters, and he steadfastly refused Osipova‘s requests that he pay the Russian court-ordered child support. Eventually, in September 2017, Osipova returned alone to the United States on an ill-fated quest to modify the Kansas order. The FBI promptly arrested Osipova, and she has been incarcerated since.
The government prosecuted Osipova for international parental kidnapping,
On appeal, Osipova argues that the federal district judge should have dismissed the indictment and recused himself from her sentencing. We reject these arguments. But Osipova also argues that insufficient evidence supports her
BACKGROUND
Osipova was born in Russia. In 2003, as an adult, she immigrated to New York where she married. This first marriage ended in a divorce in 2008 but produced a son over whom Osipova has full custody. In June 2011, Osipova briefly joined the Air Force Reserve where she met Mobley, her recruiter, and they struck up a romantic relationship. When the Air Force transferred
But Osipova, then about six months pregnant with their second child, did not want a divorce. According to Mobley, she threatened to return to Russia with S.M. if he did not drop the divorce. Though Mobley was concerned that Osipova would take S.M., he proceeded with the divorce. Then, “on or about April 2, 2014,” Osipova, about seven months pregnant, flew to Russia with S.M. and her son. Appellant‘s App. at 17. About two months later, Osipova gave birth to a girl.
Meanwhile, the Kansas divorce proceedings continued. Two weeks after Osipova left for Russia (so before she gave birth), the Kansas court held a hearing, at which Osipova‘s counsel was present. The court awarded Mobley full custody of S.M. And in December 2014, after Osipova gave birth, the court granted the divorce, awarded Mobley primary physical and sole legal custody of both girls, and ordered Osipova to return the girls to Mobley‘s custody. Osipova did not heed this order. By then, a Russian court had already granted her a divorce. And, in the spring of 2015, the Russian court awarded Osipova child support and residential custody of the girls.
Mobley‘s position in the military prevented him from traveling to Russia, so he tried to establish and maintain a relationship with his daughters via telephone and video calls. In January 2015, he went to Poland to meet Osipova and the girls at the Poland-Russia border, but Osipova showed up alone. After this, Mobley continued to use technology to try to communicate with his daughters—then, a toddler and an infant—and Osipova conditioned the requested communications on his paying the Russian court-ordered child support. But Mobley refused to financially support his daughters unless Osipova returned them to the United States. From November 2016 until her arrest, Osipova denied Mobley direct communication with their daughters.
In September 2017, Osipova left her children in Russia and traveled to Kansas to petition the court for sole legal custody of her daughters. The FBI quickly arrested her on a federal criminal complaint that charged international parental kidnapping,
international parental kidnapping. Nine months later, the government filed a five-count superseding indictment (the “indictment“) that added four counts of extortionate interstate communications,
On the eve of her trial, Osipova moved to dismiss the indictment “because of its lack of specificity.” Appellant‘s App. at 21. The Kansas federal district court denied Osipova‘s motion, concluding that the indictment met the applicable legal requirements and that Osipova faced no prejudice. So Osipova went to trial, conceding her guilt on the international-parental-kidnapping count but adamantly denying any intent to extort money or things of value in exchange for placing S.M. in Mobley‘s physical custody in the United States. Osipova also maintained that her communications
Count 2 (Skype messages from August 27, 29, and 30, 2015)
Mobley (August 27): “Can I please Skype with the kids?”
Osipova: “Can you please pay for the girls’ Montessori class?”
Mobley: “So you are saying that I cannot see my children unless I give you money?”
Osipova: “So I am saying that we live in Russia. I am 100 percent in compliance with Russian court orders, in which I have full custody and you have visitation rights. You are also ordered to pay one-third of your total income to me as child support for [redacted] and [redacted] every month until they reach their 18th birthday. You are supposed to start making payments in November of 2014. Now is August 2015 and I didn‘t receive not one payment from you. You missed 10 child support payments by now. And it‘s no[t] going to go away. It‘ll just going to built up! You can and should see your children, Brian! You also should start to make child support payments ASAP.
Mobley (August 29): “Can I Skype with the kids?”
Osipova: “Yes, you can. You can also transfer the child support to my PayPal.”
Mobley: “When can I talk to them?”
Osipova: “As soon as you‘ll start making child support payments.”
Mobley: “And I told you that I am not sending you a dime until you bring them back to the U.S. I am done sending you money.”
Osipova: “And that‘s the answer to your question then.”
Osipova (August 30): “If you want us back in the U.S. next year, you‘ll have to provide housing, car, and return all of my furniture, unless you‘ll decide to buy us a new one, then you can keep mine.”2
Count 3 (Skype message from November 21, 2015):
Osipova: “We are not going to play your games, Brian. I didn‘t hide kids from you. You know where we live and you can have relationship with them. However, we have only few options that we are going to go. Since your children reside in Russia and Russian family court appointed for the children certain child support, which you are not
paying for the whole year now, you can
go ahead and start honoring the court order and support our children. The second route is that you can figure out and offer your amount of money as a child support for your two daughters that I raise on my very own without a penny from their father (you) the amount that you will be paying every month to raise our daughters. And I don‘t care if you save anything and put it in their account for when they grow up. I am talking about child support that you should pay now every month until they reach 18 years old. If we come to an agreement or if you decide to go ahead and honor the Russian child support order we can establish schedule that will be convenient for our daughters and you to Skype on regular basis, maybe meet in Poland every half a year or so, et cetera. And, of course, there is one more route, which is if you decide to neglect our daughters and not be financially involved in theirs upbringing, we will not have any further communication with you. And it will be all your fault. Now I want you to understand that I don‘t care which route you choose. I don‘t need a penny from you, but your daughters do.”
Appellant‘s App. at 116:16-117:1, 117:15-18, 117:21-25, 118:15-23, 119:1-5, 119:16-120:19 (as read at trial by Mobley) (internal quotation marks omitted). The district court concluded that, because Osipova sent these messages while retaining S.M. in Russia, a reasonable jury could conclude that Osipova had communicated a “threat to kidnap,” which the court had instructed was a threat to “continu[e] to retain [S.M.] outside of the United States with the intent to obstruct the lawful exercise of parental rights.”3 Id. at 250 & n.5. So the court denied her motions.
Then, about two months before Osipova‘s sentencing hearing, her mother sent the court an e-mail asking whether it had received a letter Osipova had sent it.4 On
I received the letter, but under our procedures really can only respond as the Court to matters filed on the record by her attorney.
As you know, her sentencing is set for May 20. Her attorneys have been told several times that the sentencing will go very differently then depending on whether the children are back in the U.S. or not. But I hope everyone realizes that once sentencing is pronounced on that date, there is no authority to change or modify that sentence later, even if positive developments occur thereafter.
Id. at 255. On June 4, 2019, two days before her rescheduled sentencing hearing, Osipova moved for the judge‘s recusal under
ex parte communication, and that, even if it were an ex parte communication, recusal would be unwarranted.
On June 6, the court sentenced Osipova—who had not secured the girls’ return from Russia in the few weeks after the judge‘s warning to her mother that Osipova‘s sentencing “will go very differently” if the girls were not in the United States. The government requested that the court order Osipova to pay Mobley restitution under
The government also requested that the court sentence Osipova to 87 months’ imprisonment—the high end of the U.S. Sentencing Guidelines Manual‘s advisory range of 70-87 months.5 Osipova faced a statutory maximum of three years on her international-parental-kidnapping conviction and of twenty years on her extortionate-communications convictions. See
same as [the] kidnapping.” Appellee‘s Suppl. App. vol. I at 222:22-223:1. The court sentenced Osipova to three years on the international-parental-kidnapping count and seven years on the extortionate-communication counts, all to run concurrently. Osipova timely appealed.
DISCUSSION
Osipova asserts that the district court erred in four ways: (1) by not dismissing the indictment, (2) by sustaining her extortionate-communications convictions, (3) by not recusing itself over the e-mail sent to her mother, and (4) by awarding Mobley restitution for his attorney‘s fees. After identifying our standard of review for each issue, we address the issues in turn.
I. Standards of Review
We generally review a district court‘s denial of a motion to dismiss an
“We review the sufficiency of the evidence de novo to determine whether a rational jury could find the defendant guilty beyond a reasonable doubt.” United States v. Hammers, 942 F.3d 1001, 1012 (10th Cir. 2019) (citation omitted). But to decide Osipova‘s sufficiency-of-the-evidence issue, we must first determine what constitutes a “threat to kidnap” under
We “review a district court‘s denial of a motion to recuse or disqualify a judge for abuse of discretion.” Mathis v. Huff & Puff Trucking, Inc., 787 F.3d 1297, 1308 (10th Cir. 2015) (citation omitted). “[A] court abuses its discretion only when it makes a clear error of judgment, exceeds the bounds of permissible choice, or when its decision is arbitrary, capricious or whimsical, or results in a manifestly unreasonable judgment.” Id. at 1309 (alteration in original) (citation and internal quotation marks omitted).
“We review the legality of a restitution order de novo, which involves reviewing the underlying factual findings for clear error and the amount of restitution imposed for abuse of discretion.” United States v. Howard, 887 F.3d 1072, 1077 (10th Cir. 2018) (quoting United States v. Battles, 745 F.3d 436, 460 (10th Cir. 2014)). Osipova challenges the restitution order only as a matter of law, waiving any appellate challenge to the underlying factual findings or to the specific amount imposed (so we do not consider these issues). See, e.g., Burke v. Regalado, 935 F.3d 960, 1014 (10th Cir. 2019) (“Issues not raised in the opening brief are deemed abandoned or waived.” (citation and internal quotation marks omitted)).
II. The Indictment Is Sufficient.
Osipova asserts that the indictment is insufficient for not including “the essential facts of the offense, the means by which [she] allegedly committed the offense, or an assertion that those means were unknown to the Government[.]” Appellant‘s Opening Br. at 11. “We test the indictment solely on the basis of the allegations made on its face, and such allegations are to be taken as true.” Ambort, 405 F.3d at 1116 (quoting United States v. Reitmeyer, 356 F.3d 1313, 1316-17 (10th Cir. 2004)) (internal quotation marks omitted). “[T]he question is not whether the government has presented sufficient evidence to support the charge, but solely
We apply a two-part test to determine the indictment‘s sufficiency:
“First, the indictment must contain the elements of the offense and sufficiently apprise the defendant of what [s]he must be prepared to meet; second, it must be such as to show to what extent [s]he may plead a former acquittal or conviction as a bar to further prosecution for the same cause.”
United States v. Wells, 873 F.3d 1241, 1254 (10th Cir. 2017) (quoting United States v. Berres, 777 F.3d 1083, 1089 (10th Cir. 2015)). “[W]here the indictment quotes the language of a statute and includes the date, place, and nature of illegal activity, it ‘need not go further and allege in detail the factual proof that will be relied upon to support the charges.‘” United States v. Redcorn, 528 F.3d 727, 733 (10th Cir. 2008) (quoting United States v. Dunn, 841 F.2d 1026, 1029 (10th Cir. 1988)).
Here, Count 1 of the indictment alleges:
On or about April 2, 2014, and continuing through the date of the filing of this Indictment, in the District of Kansas and elsewhere, the defendant . . . removed a child from the United States and retained a child outside the United States with intent to obstruct the lawful exercise of another‘s parental rights, in violation of Title 18, United States Code Section 1204.
Appellant‘s App. at 17. Count 2 alleges:
Between August 27 and August 30, 2015, as part of the continuing offense in Count 1, the defendant . . . transmitted in interstate and foreign commerce a communication containing a threat to kidnap, that is, to continue to retain a child outside the United States with the intent to obstruct the lawful exercise of another‘s parental rights, and the defendant did so with the intent to extort from any person any money or thing of value, in violation of Title 18, United States Code Section 875(b).
Id. at 18. Counts 3 through 5 are identical to Count 2 in their allegations except for the alleged date of the offense. See id. at 18-19 (count 3 charging “On or about November 21, 2015“), 19 (count 4 charging “On or about December 17, 2015“), 19-20 (count 5 charging “On or about December 5-6, 2016“).
As Osipova concedes, the indictment includes the elements of the offenses charged. The first count‘s language is nearly identical to that of the international-parental-kidnapping statute. See
Osipova argues that the parental-kidnapping count lacks specificity because it excludes the name of the removed child, the means of removal (or that the means were unknown to the government), the
Moreover, Osipova has not claimed prejudice from any lack of specificity in the indictment. In fact, her counsel admitted at the motion hearing that “[t]here‘s litigation history which would put [Osipova] and her attorneys on notice what she‘s to defend.” Appellee‘s Suppl. App. vol. I at 45:3-5. “[I]nadequacy of an indictment requires reversal only if it prejudiced the defendant.” United States v. Harrold, 796 F.2d 1275, 1278 (10th Cir. 1986) (citation omitted); see also United States v. Doe, 572 F.3d 1162, 1175 (10th Cir. 2009) (applying harmless-error review). We thus affirm the district court‘s denial of Osipova‘s motion to dismiss the indictment.
III. Osipova‘s 18 U.S.C. § 875(b) Convictions Rest on an Erroneous Interpretation of the “Threat to Kidnap” Element.
Osipova asserts that the government failed to introduce sufficient evidence to sustain her extortionate-communication convictions—particularly that the government failed to prove that she made a threat to kidnap. She first argues that her messages to Mobley did not communicate a threat to continue to retain S.M. outside the United States,8 because she never offered to return S.M. to the United States. This argument assumes, however, that the district court‘s definition of “kidnap” was
correct, i.e., that
But noting the exclusion of parental kidnapping from the federal kidnapping statute,
intent to extort money based on a demand for child support or restoration of property sold as part of a divorce proceeding. Nor have we found any.
Though Osipova did not challenge the district court‘s and government‘s interpretation of
“an issue antecedent to . . . and ultimately dispositive of the dispute before” us, so we may consider it despite the parties’ failure to address it until we ordered supplemental briefing. U.S. Nat‘l Bank of Or., 508 U.S. at 447 (omission in original) (quoting Arcadia, 498 U.S. at 77; and citing Cardinal Chem. Co. v. Morton Int‘l, Inc., 508 U.S. 83, 88 n.9 (1993)).
So we turn to determining whether the word “kidnap” as used in
with the intentions of its drafters.‘” United States v. Ron Pair Enters., 489 U.S. 235, 242 (1989) (alteration in original) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)).
We start with the language from the statute of the two disputed convictions:
(a) Whoever transmits in interstate or foreign commerce any communication containing any demand or request for a ransom or reward for the release of any kidnapped person, shall be fined under this title or imprisoned not more than twenty years, or both.
(b) Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than twenty years, or both.
(c) Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.
“Kidnap” had an established meaning at common law. It “meant to take and carry away any person by force and against his will.” United States v. Marx, 485 F.2d 1179, 1186 (10th Cir. 1973); see also United States v. Young, 512 F.2d 321, 323 (4th Cir. 1975) (“[A]t common law ‘kidnap’ meant to take and carry a person by force and against his will.“). So unless Congress has instructed otherwise, we ascribe that meaning to
342 U.S. at 263. We now turn to the legislative history and
A. The Common Heritage of §§ 875 and 1201
The following discussion shows that Congress enacted as companions the predecessors and present versions of
In 1932, Congress enacted 18 U.S.C. § 408a, the first statutory predecessor to
Kidnaping by that time had become an epidemic in the United States. Ruthless criminal bands utilized every known legal and scientific means to achieve their aims and to protect themselves. Victims were selected from among the wealthy with great care and study. Details of the seizures and detentions were fully and meticulously worked out in advance. Ransom was the usual motive.
Chatwin, 326 U.S. at 462–63. So Congress enacted the Lindbergh Act “to cover every possible variety of kidnaping followed by interstate transportation,” id. at 463, and to provide a federal criminal remedy for the physical harm and violence involved in kidnapping for ransom, see, e.g., Amendments to the Federal Kidnaping Statute: Hearings on H.R. 4191 and H.R. 8722 Before the Subcomm. on Crime of the H. Comm. on the Judiciary, 93d Cong. 13, 20–21 (1974) (discussing the legislative history of the Lindbergh Act).
The Act applied to “[w]hoever shall knowingly transport or cause to be transported, or aid or abet in transporting, in interstate or foreign commerce, any person who shall have been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away by any means whatsoever and held for ransom or reward[.]” Act of June 22, 1932, ch. 271, 47 Stat. 326. This plain language leads us to two conclusions. First, that Congress adopted the common-law meaning of “kidnap” in using that single term in the Act. See Morissette, 342 U.S. at 263. This is because “kidnap” had an established meaning at common law and because Congress did not instruct us otherwise. See id. Moreover, the common-law meaning, “to take and carry away any person by force and against his will,” does not render any of the other delineated means superfluous. Marx, 485 F.2d at 1186; see also, e.g., TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is ‘a cardinal principle of statutory construction’ that ‘a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.‘” (quoting Duncan v. Walker, 553 U.S. 167, 174 (2001))).
And second, though Congress used the common-law meaning of “kidnap” in the Act, its use of other culpable acts listed in
Though a prosecutor might have thought this first delineation of “kidnapped person” expansive enough to cover parental kidnappings, Congress‘s hinging the crime on being held for ransom or reward would have compromised that notion. See United States v. Acevedo, 824 F.3d 179, 185 (1st Cir. 2016) (noting that “a parent abscond[ing] across state lines with his child in violation of a custody order” is a type of kidnapping “inherently unlikely to involve ransoms“); United States v. Boettcher, 780 F.2d 435, 436 (4th Cir. 1985) (“The obvious purpose of such restricted scope for that crime (‘for reward or ransom‘) was to eliminate from the statute‘s coverage the kidnaping, conspiracy to kidnap or aiding and abetting in the kidnaping by a parent of his or her child.“). Further, in the House debate over the Act, a Representative recognized this possibility: “I do not believe it is intended or desired to include punishment for kidnaping in cases where a mother or a father has taken a child away where there has been a divorce, or something of that kind. I hope an amendment providing for this will be included in the bill.” 75 Cong. Rec. at 13,286 (1932). He remarked that the Act was meant “to provide the severest punishment for people who kidnap and carry off people from one State to another for ransom, for money.” Id. at 13,296. He opined, “There is not anybody who would want to send a parent to the penitentiary for taking possession of his or her own child, even though the order of the court was violated and it was a technical kidnaping.” Id.
In 1934, apparently to eliminate any possibility of such a prosecution, Congress amended the Act. After “and held for ransom or reward,” Congress added an exclusion: “or otherwise, except, in the case of a minor, by a parent thereof[.]”14
Act of May 18, 1934, ch. 301, 48 Stat. 781 (codified at
whoever, with intent to extort from any person, firm, association, or corporation any money or other thing of value, shall transmit in interstate commerce, by any
means whatsoever, any threat (1) to injure the person, property, or reputation of any person, or (2) to kidnap any person, or (3) to accuse any person of a crime, or (4) containing any demand or request for a ransom or reward for the release of any kidnaped person[.]
Act of May 18, 1934, ch. 300, 48 Stat. 781 (codified at
The House considered and passed in succession both statutes on the same day. See 78 Cong. Rec. 8,127–28 (1934). In fact, the House considered them “kindred bills, known as the ‘crime bills[.]‘” Id. at 8,775 (discussing, among other bills, S. 2252, “to amend the act forbidding the transportation of kidnaped persons in interstate commerce,” and S. 2249, the extortionate-communications bill). And Congress designed
any money or other thing of value” and extended federal control “over kidnapers.” Id. at 6,855. Congress‘s considering
We thus conclude that Congress intended “kidnap” in
strict, common-law sense.17 As companion statutes,
B. Section 875 Does Not Incorporate § 1204‘s or the Government‘s Definitions of International Parental Kidnapping.
In 1993, Congress passed the International Parental Kidnapping Crime Act of 1993, a statute meant “to deter the removal of children from the United States to foreign countries in order to obstruct parental rights.” See H.R. Rep. 103-390, at 1 (1993). This statute created a new federal felony offense to work in tandem with the Hague Convention on International Parental Child Abduction and to make it easier for a left-behind parent to obtain the abducted child‘s return from countries that are not signatories to the Convention. Id. at 3. But it left the Convention as “the option of first choice.” Id. at 5. The statute covers “[w]hoever removes a child from the United States, or attempts to do so, or retains a child (who has been in the United States) outside the United States with intent to obstruct the lawful exercise of parental rights[.]”
parental kidnapping.21 See supra Section III.A. And incorporating
First, we read
reason to consider whether Osipova had violated
We interpret the retention means of the international-parental-kidnapping offense as mapping “retention” as used in the Hague Convention, which applies when a parent holds the child beyond the time the left-behind parent was legally entitled to the child‘s return. See, e.g., de Silva v. Pitts, 481 F.3d 1279, 1282, 1285 (10th Cir. 2007) (Hague Convention case analyzing a father‘s retention of his son past the agreed-to summer visit); Elisa Perez-Vera, Explanatory Report, in 3 Acts and Documents of the Fourteenth Session, Child Abduction 426, 458–59 ¶ 108 (1980) (stating that the time limit begins to run in retention cases on the date “on which the child ought to have been returned to its custodians or on which the holder of the right of custody refused to agree to an extension of the child‘s stay“). Thus, the “retains a child” means of international-parental-kidnapping is not in play when the parties agree that a parent has unlawfully removed a child from the United States.
Second, kidnapping is a unitary crime that continues until the victim is free. United States v. Rodriguez-Moreno, 526 U.S. 275, 281 (1999). It makes no sense to treat a “threat to kidnap,” which implies that the kidnapping has not yet occurred, as a “threat to continue to retain,” which means the kidnapping has happened and is ongoing. So the government‘s definition is at odds with
Third, if we accepted the government‘s definition of
Finally, the statutes’ disparate penalties underscore the absurdity in adopting the government‘s definition of “kidnap.” Section 875(b) provides that the defendant “shall be fined” or “imprisoned not more than twenty years, or both.” This makes sense when read together with
that Congress intended to exclude parental kidnapping from
We thus conclude the government obtained the
IV. The Court‘s E-Mail to Osipova‘s Mother Does Not Require Recusal.
Osipova argues that the district judge‘s e-mail to her mother required his recusal, because it was an ex parte communication violating the Judicial Code of Conduct and evinced his bias against Osipova. The government contends that Osipova has waived this argument, because she invited any error by “repeatedly [seeking] to engage the trial court in ex parte communications.” Br. for Appellee at 24. We need not resolve the waiver issue, however, because Osipova‘s disqualification argument fails on the merits. Further, “[w]e believe that it is especially appropriate to reach the merits of this issue because recusal-based arguments uniquely implicate the integrity of the justice system.” Wells, 873 F.3d at 1250 (citation omitted). We thus exercise our discretion to bypass the waiver issue and reach the merits of Osipova‘s argument for recusal.
Osipova moved for recusal under
The judge here did not exercise his best judgment in e-mailing Osipova‘s mother that her daughter‘s sentence would depend on whether the two girls were back in the United States before the sentencing
V. Mobley‘s Attorney‘s Fees Are Not Recoverable in Restitution.
Finally, Osipova argues that Mobley‘s attorney‘s fees were not related to the government‘s investigation or prosecution and, thus, were not recoverable under
Here, the district court awarded Mobley $18,100 in restitution for attorney‘s fees incurred in “his efforts to retrieve the children from Russia, which were substantially frustrated by the defendant‘s establishment (after her arrest) of a guardianship in Russia.”24 Br. for Appellee at 33. The court concluded that these fees “are directly related to the offense of conviction.” Appellee‘s Suppl. App. vol. I at 174:16–17. And the government maintains that the fees “were directly related to the defendant‘s criminal conduct and continuing obstruction” in using “the Russian courts to thwart repatriation of the children.” Br. for Appellee at 34.
But
that is the basis of the offense of conviction.” Hughey v. United States, 495 U.S. 411, 413 (1990).
The attorney‘s fees that Mobley incurred do not satisfy
return of his daughters did not assist the government in its investigation or prosecution of Osipova. This means Mobley‘s attorney‘s fees are not recoverable under subsection
Moreover, Mobley‘s loss caused by Osipova‘s conduct underlying her conviction was the loss of his daughters. Mobley incurred attorney‘s fees only to try to recover his loss, i.e., obtain the return of his daughters. In United States v. Diamond, 969 F.2d 961, 968 (10th Cir. 1992), we opined that “[i]n the absence of specific statutory authority for an award of attorney‘s fees and expenses, we believe Hughey is decisive as it limits the substantive boundaries of restitution under the [statute] to the specific conduct underlying the offense of conviction.” (citing Hughey, 495 U.S. at 413). “Expenses generated in recovering a victim‘s losses, therefore, generally are too far removed from the underlying criminal conduct to form the basis of a restitution order.” Id. In United States v. Patty, 992 F.2d 1045, 1049 (10th Cir. 1993), we “construe[d] Diamond as holding that attorney fees incurred by the victim to recover his property are not directly related to the
The government asserts
But as discussed,
CONCLUSION
For the foregoing reasons, we vacate Osipova‘s
19-3122, United States v. Mobley
HOLMES, J., Concurring.
In all material respects, I agree with the outcome and reasoning of the majority‘s opinion, except for Part III, which addresses the sufficiency of the evidence with respect to Ms. Osipova‘s convictions under
“[W]e must decide whether there was sufficient evidence presented at trial for a reasonable jury, properly instructed, to have found beyond a reasonable doubt” that Ms. Osipova was guilty of the two
With respect to that controversy, I cannot agree with the majority‘s determination that the term “kidnap” in
On the foregoing basis, I concur.