United States v. Philip Zodhiates

Citation: Not availableDocket: 17-839-cr

Court: Court of Appeals for the Second Circuit; August 21, 2018; Federal Appellate Court

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Philip Zodhiates was convicted in the United States District Court for the Western District of New York for conspiring with Lisa Miller to unlawfully remove her child from the United States to Nicaragua, obstructing the parental rights of Miller’s civil union partner, Janet Jenkins. The conviction violated the International Parental Kidnapping Crime Act (IPKCA) under 18 U.S.C. §§ 371, 1204, and 2. Zodhiates appealed the conviction, arguing that the District Court improperly denied his motion to suppress cell phone location data obtained through a subpoena under the Stored Communications Act (SCA), claiming it violated the Fourth Amendment due to the lack of a warrant. He also contended that jury instructions and statements made by the prosecutor compromised his right to a fair trial. The appellate court found these arguments unpersuasive and affirmed the District Court's judgment.

The background indicates that Miller and Jenkins were in a civil union, with a custody dispute that evolved over time after their separation. After a series of court rulings, including a Vermont family court awarding custody to Jenkins due to Miller's obstruction of visitation rights, Miller ultimately lost custody in November 2009 after continued non-compliance with court orders.

In September 2009, Philip Zodhiates, a businessman connected to the Mennonite community, assisted Kenneth Miller, a Mennonite pastor, and Timothy Miller, another pastor, in kidnapping IMJ and fleeing to Nicaragua. Evidence from Zodhiates’ cell phone and email records demonstrated that he drove Miller and IMJ from Virginia to Buffalo, after which they crossed into Ontario and then traveled to Nicaragua, where Miller is now a fugitive and IMJ resides. Email communications indicated that Zodhiates helped them settle in Nicaragua by coordinating the removal of personal items from Miller's Virginia apartment and arranging for an acquaintance to deliver possessions to them in Nicaragua.

At the time of the kidnapping, Virginia law invalidated same-sex marriages performed outside the state, prohibiting these marriages from establishing familial rights. The Government initiated an investigation in 2010 when Miller's disappearance was noted, issuing subpoenas to nTelos Wireless for billing records pertaining to two cell phones frequently in contact with Kenneth Miller during September 2009. The subpoenas sought call records but did not request the content of calls or specific location data. nTelos provided records showing call details and general service locations, which helped link Zodhiates to Miller and establish communications among the conspirators, and these records were pivotal in Zodhiates’ trial.

Subsequently, Zodhiates, Kenneth Miller, and Timothy Miller were indicted for violating the International Parental Kidnapping Crime Act (IPKCA). Timothy Miller pleaded guilty after being deported, while Kenneth Miller remains at large. Zodhiates sought to suppress the cell phone evidence on Fourth Amendment grounds, arguing a reasonable expectation of privacy in his movements. The District Court denied this motion, citing precedent cases that indicated no reasonable expectation of privacy in cell phone location information, concluding that a warrant was unnecessary. At trial, the Government presented various phone records illustrating Zodhiates’ connections to Miller before the kidnapping, including travel records and communications with co-conspirators.

Near the end of the trial, the District Court presented a proposed jury charge, which stated that "parental rights" referred specifically to Janet Jenkins' visitation rights regarding IMJ, as defined by Vermont law at the time IMJ left the U.S. To establish that Zodhiates obstructed these rights, the jury needed to find he acted with intent to interfere with Jenkins' rights, considering all evidence of his actions. During rebuttal, the prosecutor claimed that Zodhiates' understanding of Virginia litigation was irrelevant, prompting the defense to request a curative instruction highlighting the relevance of Virginia law in determining Jenkins' parental rights. The defense argued that if Virginia law had determined Jenkins had no rights, Zodhiates could not have obstructed those rights under the international parental kidnapping statute. The District Court denied the defense's request, stating that the charge did not prevent the jury from considering both Vermont and Virginia litigation and that including explicit reference to Virginia could confuse the jury. Ultimately, the jury was instructed according to the initial proposed charge, leading to Zodhiates' conviction on both counts and a sentence of 36 months incarceration. Zodhiates appealed, contending errors related to the suppression of cell phone records and the denial of the curative charge, but the appeal was affirmed, with the court finding no error.

Zodhiates argues that the government violated his Fourth Amendment rights by obtaining his cell phone records through a subpoena rather than a warrant, asserting that the records are inadmissible. The review of the motion to suppress evidence involves de novo assessment of legal conclusions and clear error review of factual findings. The Supreme Court's decision in Carpenter v. United States established that individuals have a legitimate expectation of privacy regarding their physical movements as recorded through cell service location information, necessitating a warrant for such data. However, Zodhiates cannot suppress the records due to the "good faith" exception, which applies when government officials have an objectively reasonable belief that their conduct is lawful. Prior to Carpenter, the third party doctrine allowed the government to obtain phone records via subpoena, as individuals do not have a legitimate expectation of privacy in information voluntarily shared with third parties, as established in Miller and Smith. Courts, including the Second Circuit in United States v. Ulbricht, recognized that a warrant was not required for such records prior to Carpenter. Zodhiates references United States v. Jones, which held that prolonged location tracking requires a warrant, but this case is irrelevant since it was decided after the government's 2011 subpoena. Consequently, the District Court appropriately denied Zodhiates’ motion to suppress the cell location evidence. Prior to Carpenter, all five courts of appeal that reviewed the issue concluded that the Fourth Amendment's warrant requirement did not apply to historical cell site information based on Smith and Miller precedents.

Zodhiates argues that the District Court erred by not instructing the jury that, in evaluating his intent to obstruct parental rights under the International Parental Kidnapping Crime Act (IPKCA), those rights should be defined by Virginia law, as that was where the child lived prior to leaving the United States. Legal principles dictate that a defendant is entitled to have their case theory presented to the jury if it is supported by evidence. However, they are not entitled to have their exact language used. The court reviews jury instruction rejections for abuse of discretion and requires the appellant to prove that their proposed instruction accurately represented the law and that they were prejudiced by the given instructions. The District Court determined that Vermont family law defined parental rights in this case, despite the child's residence in Virginia, noting that a Vermont court order granted parental rights to Jenkins. Virginia courts recognized Vermont’s jurisdiction over the custody matter and were required to honor Vermont’s orders. Therefore, the District Court correctly instructed the jury on Vermont law regarding parental rights, as any instruction to the contrary would have been misleading. Zodhiates also attempts to reference the case United States v. Amer to support his claim that only Virginia law applies, but the court clarifies that Amer does not establish that parental rights under the IPKCA are exclusively defined by the child's habitual residence.

Zodhiates failed to demonstrate prejudice regarding the District Court’s charge, which allowed the parties to address the influence of Virginia or Vermont custody litigation on Zodhiates’ intent. The defense leveraged this opportunity, referencing the Virginia litigation multiple times during arguments, including specific emails and cross-examination discussions. Zodhiates later claimed error when the District Court denied his request for a curative instruction after the prosecutor asserted that the Virginia litigation was irrelevant to Zodhiates’ intent. The District Court appropriately deemed the prosecutor's comments as permissible interpretations of evidence rather than erroneous legal principles. It clarified that the prosecutor was entitled to argue the weight of the Virginia litigation in relation to Zodhiates’ intent, while the defense was free to assert its significance. Furthermore, the jury was instructed to consider both Virginia and Vermont litigation when assessing Zodhiates' knowledge and intent regarding Jenkins’ parental rights. Ultimately, the court found no error in the prosecutor's statements or the District Court's handling of the objections, affirming the judgment.