pleading by Ahmed Hamdy Eissa

United States Court of Appeals, Case No.: No. 96-1181
United States of America, Appellee,
Ahmed Amer, Appellant

This appeal concerns several issues arising from a conviction for violation of the International Parental Kidnapping Crime Act ("IPKCA" or "the Act"), 18 U.S.C. (s) 1204. The IPKCA bars a parent from removing a child from the United States or retaining outside the United States a child who has been in the United States, with the intent to obstruct the other parent's right to physical custody. We have not previously considered this statute.
The specific questions raised are (i) whether the IPKCA is unconstitutionally vague, (ii) whether it is overbroad in intruding upon the free exercise of religion, (iii) whether it incorporates the affirmative defenses found in the Hague Convention on the Civil Aspects of International Parental Child Abduction ("Hague Convention"), (iv) whether the sentencing court properly imposed, as a condition of the convicted defendant's term of supervised release, a requirement that the defendant return the still-retained children to the United States, and (v) whether the sentencing court properly applied a three-level enhancement for substantial interference with the administration of justice.
On March 14, 1996 Ahmed Amer was convicted, after a jury trial, of one count of international parental kidnapping in violation of the IPKCA and sentencing him to twenty-four months' imprisonment and a one-year term of supervised release with the special condition that he effect the return of the abducted children to the United States.

Ahmed Amer ("Ahmed") and Mona Amer ("Mona"), Egyptian citizens and adherents of the Islamic faith, were married in Egypt in 1980. While still in Egypt, Mona gave birth to the couple's first child, a boy named Amachmud. In 1985, Ahmed, seeking employment, left his wife and first child in Egypt, came to the United States, and settled in Queens, NY. In 1987, Mona and Amachmud joined Ahmed in Queens. Mona did not work. Ahmed worked as a cook in several diners in the city and in 1989, the couple had a second child, a girl named Maha. In 1991, the couple's third child was born. A son named Omar. The two children born in the United States, Maha and Omar, became American citizens upon their birth. In 1991 Ahmed became a naturalized United States citizen, but retained his Egyptian citizenship. Mona obtained permanent resident alien status in this country the following year. In 1992, the entire Amer family returned to Egypt for one month to visit family.

During 1990, the marriage of Ahmed and Mona began to deteriorate. Ahmed regularly physically and verbally abused Mona. Finally, in 1994, Mona asked Ahmed to leave the family apartment. The couple did not, however, divorce or become legally separated. The three children remained with Mona and Ahmed came to visit, usually once a week, whenever he wished. Mona supported herself with public assistance (welfare) and the help of friends. Each time Ahmed would see Mona, he would continue to abuse her. He would try to persuade her to move back to Egypt with him, suggesting that the children would receive a better education and that the family would benefit by living close to relatives. Mona, at one point, agreed to this, however, she changed her mind and eventually told Ahmed that neither herself or the children would be returning to Egypt. Ahmed threatened to kill her for her refusal, but she still refused.

On January 27, 1995, Ahmed came to the family apartment in Queens to have dinner with Mona and the children. After dinner, Mona left the apartment to do some shopping and upon her return Ahmed and the children were gone. The next morning, Mona learned that Ahmed had taken the children to Egypt. Mona had not seen her children since that time. Records showed that on the evening of January 27th, Ahmed and the three children boarded a flight from JFK Airport to Egypt. Once in Egypt, Ahmed took the children to his mother's home, about 10 minutes from Mona's parents home. After a few days, the children visited Mona's family. Amachmud, Maha and Omar continue to reside in Egypt with Ahmed's mother.

In February 1995, Mona filed a complaint in Queens Family Court seeking custody of the children. The court awarded her full legal custody of the three children and issued a warrant for Ahmed's arrest. At about the same time, Ahmed obtained an order from an Egyptian court compelling Mona to return to the "conjugal home" in Egypt. After a period of 3 months, when Mona failed to return to Egypt, the Egyptian court in May 1995 awarded Ahmed custody of the three children. Additionally, Mona no longer has custody rights to the twelve-year-old Amachmud under Egyptian law, which provided that a mother loses all rights to her male child when he reaches the age of ten. In June 1995 Ahmed left the children in his mother's care and returned to the United States. He was apprehended the following month in New Jersey. The eventual indictment, issued in the Eastern District of New York, charged that "[o]n or about and between January 27, 1995 and August 4, 1995, . . .the defendant Ahmed Amer did knowingly and intentionally remove and retain children who had been in the United States, to wit [Amachmud] Amer, Maha Amer and Omar Amer, outside the United States with the intent to obstruct the lawful exercise of parental rights," in violation of the IPKCA. A jury on the sole count of the indictment convicted Ahmed. Judge Amon imposed a sentence of twenty-four months' imprisonment and a one-year term of supervised release, with the special condition that Ahmed effect the return of the three children to the United States. At the time of this appeal, the children remain in Egypt.

The IPKCA states "whoever removes a child from the United States 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 shall be fined under this title or imprisoned not more than 3 years, or both. Ahmed raises two constitutional challenges to 18 U.S.C. (s) 1204: that it is vague and also overbroad in its intrusion upon free exercise rights. He also contends that the District Court erred in not allowing him to present certain "affirmative defenses" found in the Hague Convention during the trial, in imposing a special condition of his term of supervised release, and in enhancing his offense level.

First Ahmed asserts that the term "retains" is vague in that it does not define the duration or length of time that a child must be "retain[ed]" outside the United States in order to constitute a violation of the IPKCA. Second, he contends that the parenthetical phrase "([child] who has been in the United States)," id., is vague because the IPKCA does not specify the length of time that a child must have been in the United States before the IPKCA will be triggered by the child's removal or retention. Third, he argues that the phrase "lawful exercise of parental rights," id., is vague because the Act does not provide any guidance as to whether parental rights are to be defined by state law, federal law, Egyptian law, customary international law, or "positive law promulgated by the United Nations." Specifically, a challenger "who engages in some conduct that is clearly proscribed [by the challenged statute] cannot complain of the vagueness of the law as applied to the conduct of others."

Upon appeal, Ahmed contended that the IPKCA must be invalidated because it punishes parents for engaging in the constitutionally protected act of returning their children to the land of the parents' birth for religious reasons. His real point is that the IPKCA infringes on the free exercise of religion by proscribing removals of children from the United States even when those acts are dictated, or at least motivated, by "religious law". He contends that to be the reason why he returned the children to Egypt, and that he should not be punished for that. The argument was not raised until this appeal, and is therefore forfeited. At no point, during the pretrial, trial, or sentencing proceedings did Ahmed argue that his act of removing and retaining the children was religiously mandated or inspired. The only issues brought forth during that time by Ahmed were (I) Mona was neglecting the children, (ii) the children would be "better taken care of in Egypt," (iii) Ahmed had "finished [his business] in [the United States] and . . . wish[ed] to settle in [his] own Nation among [his] family and relatives," and (iv) "the schools over there were better."

Construing the IPKCA against this background, we conclude that rejecting Hague Convention defenses in Ahmed's prosecution does not "detract from" the Convention. In the first place, Egypt, the country to which the Amer children have been removed and in which they are currently being retained, is not signatory to the Convention, and therefore are not bound by its requirements, and that a partial reason for the creation of the IPKCA was to exist as an "enforcement-gap-closing" function. Although it might be a close question whether a defendant should be permitted to raise Hague Convention defenses when, for instance, there is a parallel or ongoing civil proceeding under the Convention and its implementing legislation, we do not need to consider that question in this case.

The court rejected Ahmed's remaining arguments as either forfeited because not previously raised, or simply without merit. The judgment of the District Court is affirmed. The IPKCA does not generally prohibit relocation of children or even make it significantly more difficult to do so. It simply prohibits relocation in one very narrow circumstance, where to do so would violate the custodial rights of the other parent. The IPKCA does not "put substantial pressure on an adherent to modify his behavior and to violate his beliefs." Thomas v. Review Board of the Indiana Employment Sec. Div., 450 U.S. 707, 718 (1981). It is noted that the IPKCA itself does not expressly specify what should be done when a defendant refuses to return the abducted children to this country. The left-behind parent can also petition the designated Central Authority in the state of the child's habitual residence to aid the parent in seeking the return of the child from the state to which it has been abducted. Hague Convention, Arts. 8 & 9; see generally Mezo v. Elmergawi, 855 F. Supp. 59 (E.D.N.Y. 1994) This Circuit has also ruled that "because a revocation proceeding is 'not a proceeding designed to punish a criminal defendant for violation of a criminal law,' the defendant may be both punished for the supervised-release violation and prosecuted criminally for the same conduct without implicating principles of double jeopardy." United States v. Meeks, 25 F.3d 1117, 1122 (2d Cir. 1994) (citation omitted). Moreover, it is noted that the key assumption underlying this objection - that Ahmed's continued retention of the children following his release from prison would constitute the "same" offense for which he was convicted - is highly questionable. The indictment charged Ahmed with removing and retaining the children during the period "from January 27, 1995 to August 4, 1995." Because the IPKCA punishes both "removals" and "retentions," and because Ahmed has not been punished for his act of retaining the children after August 4, 1995, even a subsequent criminal prosecution for this new offense - the wrongful retention of children, who have been in the United States, outside the United States from August 4, 1995 to the present - may be permitted under the Double Jeopardy Clause.

Kim Girven

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