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United States: Federal Appellate Court Affirms Conviction of International Parental Kidnapping for Unlawful Retention of Children in Yemen

(Dec. 2, 2020) On November 13, 2020, the U.S. Court of Appeals for the Second Circuit affirmed the conviction and sentence of Mahyoub Molhi Mohamed Houtar for international parental kidnapping under the International Parental Kidnapping Crime Act (IPKCA) and for passport fraud. (United States v. Houtar, New York, No. 19-3627, slip op. (Nov. 13, 2020).) Houtar had appealed his conviction primarily on the ground that the IPKCA was unconstitutionally vague as applied to him.

Background

Houtar and his ex-wife have two children, both of whom were born in the U.S. while the family resided in New York. In 2011, the family moved from the U.S. to Yemen. Over the next four years, Houtar and his wife divorced, separately left Yemen, and resumed living in New York (separately), having left the children with Houtar’s family in Yemen. (Slip op. at 4–5.)

In 2015, Houtar’s ex-wife filed for custody of the children in Kings County (New York) Family Court. The Family Court ordered Houtar to bring the children to the U.S. for an extended visit with his ex-wife, but he instead defied the order, fled to his family’s home in Yemen, and prevented his ex-wife from seeing the children for several years. Houtar had previously surrendered his U.S. passport to the Family Court, but during his abscondence he applied for a replacement U.S. passport at the embassy in Cairo, claiming his passport had been stolen. Houtar’s passport application triggered an Interpol notice, and he was eventually arrested and returned to the U.S. (Slip op. at 5–6.) Houtar pled guilty to two counts of international parental kidnapping for unlawfully retaining his children in Yemen and one count of passport fraud. (Slip op. at 6.)

Issue

On appeal, Houtar challenged his conviction for international parental kidnapping on the ground that the IPKCA was unconstitutionally vague as applied to him. He argued that he did not abduct his children from the U.S. to Yemen but rather retained them in Yemen after they had been residing in Yemen already. He argued that it was unforeseeable that he would be prosecuted under the IPKCA because his children were never abducted and had not been present in the U.S. for several years before the unlawful retention occurred. The court noted that it had never before considered whether the IPKCA would apply under circumstances such as those in the Houtar’s case. (Slip op. at 3–4.)

Law

The IPKCA is codified at 18 U.S.C. § 1204(a) and provides for criminal penalties for anyone who “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[.]” It is a seldom-used statute designed to deter parental kidnapping in cases where the Hague Convention on the Civil Aspects of International Child Abduction is inapplicable. (Slip. Op. at 9.)

A claim that a law is unconstitutionally vague (or “void for vagueness”) is a challenge under the Fifth Amendment’s Due Process Clause. A criminal statute can be found unconstitutionally vague if it fails to provide a person with fair notice of what is prohibited or is so standardless as to authorize or encourage discriminatory enforcement. To overcome a vagueness challenge, the statute must be found to have defined “the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” (Slip op. at 8.)

Outcome

The Court of Appeals focused on the text of the IPKCA, concluding that a plain-language reading of the statute “makes it a crime to retain a child outside of the United States when that retention is done with the intent to obstruct lawful parental rights, if the retained child has been in the United States.” The court found that the broad but unambiguous text of the IPKCA did not require a retained child to have been in the U.S. “immediately preceding the unlawful retention” in order for the statute to apply to an unlawful retention. (Slip op. at 13–14 (italics in original).) Houtar’s children had been in the U.S. for significant periods of time before the unlawful retention in Yemen. Accordingly, a “person of ordinary intelligence” would have had sufficient notice of the applicability of the IPKCA to circumstances like those that occurred in Houtar’s case. (Slip op. at 14.)

Houtar also challenged the enhancements that were applied to his sentence for substantial interference with justice (fleeing the jurisdiction) and fraudulent use of a passport; however, the court rejected both arguments and affirmed the sentence.