Ayn Traylor-Sadberry
As matter of first impression
in First Circuit, Court holds that abducting parent can be convicted under federal
International Parental Kidnapping Crime Act (IPKCA) for conduct that is not
considered criminal under state family law
Fazal Raheman, then living in the
U.S., and Saihba Ali married in India in May 1990. They moved to Massachusetts
where their daughter was born in 1992. Four years later, a son arrived. The
marriage was not going well, though. In 1997, Ali and the children moved into a
separate apartment.
Raheman secretly installed a
video camera in Ali’s bedroom, had a private investigator follow her around,
asked his nephew to move into Ali’s apartment building to spy on her, and
tapped Ali’s telephone. In November 1997, he traveled to his former home in
Nagpur, India, enrolled his daughter in school there and filed a custody
petition in the Nagpur Family Court.
Later he went back to the U.S.
Under the pretext of taking the children to a museum, Raheman took them back to
India. Ali contacted the police and obtained an emergency custody order in a
Massachusetts court. Raheman obtained his own custody order from the Nagpur
Family Court.
In July 2001, a federal grand
jury indicted Raheman under the International Parental Kidnapping Crime Act
(IPKCA), 18 U.S.C. Section 1204. It provides in part that “(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 the United States with the intent to
obstruct the lawful exercise of parental rights shall be fined under this title
or imprisoned not more than 3 years, or both.”
Federal authorities arrested
Raheman in the U.S. and convicted him of kidnapping. Raheman noted an appeal.
The U.S. Court of Appeals for the First Circuit affirms in part, vacates in
part and remands for resentencing.
On appeal, Raheman argued, inter
alia, that the evidence failed to show a crime under the IPKCA because the
alleged conduct was not criminal under Massachusetts law. Disagreeing, the
Court finds that such a prosecution comports with the language and intent of
the statute. Massachusetts law does not criminalize any of Raheman’s actions
because no proceedings had been pending at that time. This, however, does not
prevent Congress from acting on its own basis.
“In 1993, by virtue of its
commerce power ..., and to ‘deter the removal of children from the United
States to foreign countries in order to obstruct parental rights,’ Congress
passed the International Parental Kidnapping Crime Act to create a new ‘federal
felony offense ....’ H.R. Rep. No. 103-390, at 1 (1993) ... The legislative
history explains that IPKCA was enacted as a domestic response to issues left
unaddressed by international law:”
“‘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. ... 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 ...’” [Slip op. 9-10]
The Court then turns to the issue
of first impression in the First Circuit: whether IPKCA authorizes the
conviction of a parent for conduct that is not criminal under State law. “That
IPKCA looks to state family law for purposes of defining ‘parental rights,’ ...
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,’ ... Congress went further than Massachusetts, which does not
criminalize such conduct absent a prior court proceeding.”
“Nowhere in the text of the
statute or the legislative history does Congress limit the criminal prohibition
in 18 U.S.C. Section 1204(a) to only those acts that are criminal under state
law. ... 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. ...” [Slip op. 12-14]
*[Editorial Note: The legislative
history is presumably referring to the Hague Convention on the Civil Aspects of
International Child Abduction [T.I.A.S. 11670, in force for U. S. on July 1,
1988].
Citation: United States v.
Fazal-ur-Raheman-Fazal, 355 F.3d 40 (1st Cir. 2004).
*** Ayn Traylor-Sadberry is a domestic relations, probate & criminal attorney in Birmingham, Alabama. Ms. Traylor-Sadberry received her B.A. degree in 1966 from the University of Oklahoma, her M.A. in 1973 from the University of Oklahoma, and her Juris Doctor from Howard University in 1981. She was admitted as an attorney in Alabama in 1989. Website: www.TraylorSadberry.com
