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Re: Kenneth Miller - Looking for the easy way out!

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  • rlbaty50
    Ken filed a brief of about 25 pages to go along with his motion to dismiss. As I see it, it boils down to about 3 main points: 1. Ken claims he did nothing in
    Message 1 of 2 , Mar 2 11:38 AM
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      Ken filed a brief of about 25 pages to go along with his motion to dismiss. As I see it, it boils down to about 3 main points:

      1.

      Ken claims he did nothing in Vermont and so
      the Vermont Federal District Court is an
      inappropriate venue to use to charge him.

      2.

      Ken claims he did nothing subsequent to the
      Vermont court order and so can not have
      done anything in violation of the statute
      under which he was charged.

      3.

      Ken claims that, under Virginia law, nothing
      he did was illegal.

      I guess the Government will be filing its response to the motion later this month and we'll see what the rebuttal is.

      Sincerely,
      Robert Baty

      --------------Ken Miller's Motion----------------

      IN THE UNITED STATES DISTRICT COURT
      FOR THE DISTRICT OF VERMONT

      UNITED STATES OF AMERICA

      v.

      KENNETH L. MILLER

      CRIMINAL NO.: 2:11-CR-161-1

      MOTION TO DISMISS
      FOR FAILURE TO STATE AN OFFENSE,
      OR, IN THE ALTERNATIVE,
      FOR IMPROPER VENUE

      AND NOW comes the Defendant, Kenneth L. Miller,
      by and through his counsel, Dennis E. Boyle,
      Esquire, and moves this Court, pursuant to
      Federal Rule of Criminal Procedure 12(b)(3)(A)
      and (B), to dismiss the Indictment against him:

      1.

      On November 18, 2011, a Criminal Complaint was
      filed against Kenneth L. Miller, charging him
      with violating 18 U.S.C. § 1204 and 18 U.S.C. § 2.

      2.

      On December 15, 2011, a one count Indictment was
      filed against Ken Miller, alleging that, "[f]rom
      on or about September 21, 2009 to on or about
      September 23, 2009, in the District of Vermont
      and elsewhere, defendant KENNETH L. MILLER aided
      and abetted Lisa Miller in the removal of a child
      from the United States with the intent to obstruct
      the lawful exercise of parental rights," in violation
      of 18 U.S.C. § 1204 and 18 U.S.C. § 2.

      Failure to State an Offense

      3.

      18 U.S.C. § 1204 prohibits the removal or attempted
      removal of a child from the United States "with intent
      to obstruct the lawful exercise of parental rights."
      As used within this statute, the term "parental rights"
      is defined as joint or sole physical custody, including
      visiting rights, "whether arising by operation of law,
      court order, or legally binding agreement of the parties."
      18 U.S.C. § 1204. One who aids or abets can be punished
      as a principal. 18 U.S.C. § 2.

      4.

      To establish its case, the government is required to
      prove: (1) that the defendant had previously been in
      the United States; (2) that the defendant [aided or
      abetted in taking] the child from the United States
      to another country (or kept the child from returning
      to the United States from another country); and (3)
      that the defendant acted with the intent to obstruct
      the lawful exercise of the parental rights of the
      other parent. United States v. Miller, 626 F.3d 682,
      688 (2d Cir. 2010).

      5.

      However, "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." United States v. Amer, 110
      F.3d 873, 884 n. 1 (2d Cir. 1997).

      6.

      The Indictment is facially defective in that it fails to
      allege that Lisa Miller could not remove a child from the
      United States or that she lacked parental rights or
      authorization to remove a child from the United States.

      7.

      According to the Criminal Complaint, which contains more
      information, Lisa Miller traveled to Nicaragua with her
      daughter when it was completely legal for them to travel
      -before custody was awarded to Janet Jenkins.

      8.

      Because Lisa Miller was allowed to travel, Ken Miller
      violated no law by allegedly assisting her in making
      travel arrangements.

      9.

      In addition, "parental rights" are defined by the law of
      the state "in which the child was habitually resident
      immediately before the removal or retention." Amer, 110
      F.3d at 878 (emphasis added).

      10.

      It is not questioned that IMJ has habitually resided in
      Virginia. Therefore, IMJ's parental rights are defined
      by Virginia law, not Vermont law.

      11.

      Under Virginia law, Janet Jenkins could have no parental
      rights to IMJ, for "a civil union . . . entered into by
      persons of the same sex in another state or jurisdiction
      shall be void in all respects in Virginia and any
      contractual rights created thereby shall be void and
      unenforceable." Va. Code Ann. § 20-45.3.

      12.

      Therefore, for purposes of 18 U.S.C. § 1204, Janet Jenkins
      had no parental rights with which anyone could have
      interfered by helping Lisa Miller and IMJ go to Nicaragua.

      13.

      Because there are no parental rights that could be violated
      here, Ken Miller cannot be convicted for aiding in their
      violation under 18 U.S.C. §§ 1204 and 2.

      14.

      Therefore, the charges against Ken Miller should be
      dismissed.

      15.

      Even if Vermont law determined parental rights in this
      case, the Government has not alleged how parental rights
      were violated by the fact that IMJ traveled to Nicaragua.

      16.

      The Government has not alleged that Janet Jenkins attempted
      to exercise her visitation rights after Ken Miller's alleged
      actions, or that she was denied her visitation rights because
      of Ken Miller's alleged actions.

      17.

      There is no law or order prohibited IMJ from going to
      Nicaragua, and there is no allegation that Lisa's and IMJ's
      travel to Nicaragua has interfered with any rights.

      18.

      For example, Janet Jenkins could have visited IMJ in Nicaragua,
      or Janet Jenkins could have obtained an order preventing Lisa
      Miller and IMJ from traveling to Nicaragua. But there are no assertions Janet
      Jenkins did anything of the sort.

      19.

      Thus, the charges against Ken Miller should be dismissed.

      Improper Venue

      20.

      Under the U.S. Constitution, criminal prosecution is only
      proper in the state and district where the crime has allegedly
      been committed. U.S. Const. art. III; U.S. Const. amend. VI;
      Fed. R. Crim. P. 18.

      21.

      To determine the proper venue for a criminal case, "a court
      must initially identify the conduct constituting the offense
      (the nature of the crime) and then discern the location of
      the commission of the criminal acts." United States v.
      Rodriguez-Moreno, 526 U.S. 275, 279 (1999).

      22.

      Venue is only proper in any of the locations where an
      "essential conduct element" of the offense is completed. Id.
      at 280-82.

      23.

      To determine the "essential conduct elements," the court
      "look[s] at `the key verbs which define the criminal offense
      in the statute.'" United States v. Brennan, 183 F.3d 139,
      145 (2d Cir. 1999) (quoting United States v. Chestnut,
      533 F.2d 40, 46-47 (2d Cir. 1976)).

      24.

      "The Government bears the burden of proving, by a
      preponderance of the evidence, that venue exists." United
      States v. Naranjo, 14 F.3d 145, 146 (2d Cir. 1994).

      25.

      In this case, "removing, attempting to remove, or retaining"
      a child from the United States are the verbs defining the
      conduct of the offense.

      26.

      Yet Ken Miller is not even alleged to have committed any
      conduct in Vermont, much less remove or assist in removing
      a child from Vermont.

      27.

      In the time surrounding the events of this case, Ken Miller
      was in Virginia, a fact pointed out by the Government in its Affidavit of
      Probable Cause.

      28.

      According, venue is improper in Vermont, and this Court
      should dismiss the Indictment and the Criminal Complaint
      against Ken Miller.

      WHEREFORE, the Defendant, Kenneth L. Miller, respectfully
      requests that this Court dismiss the Indictment and the
      Criminal Complaint.

      BOYLE, AUTRY & MURPHY
      /s/ Dennis E. Boyle__________
      Dennis E. Boyle, Esquire
      Supreme Court I.D. No. 49618
      4660 Trindle Road, Suite 200
      Camp Hill, PA 17011

      JARVIS, MCARTHUR & WILLIAMS
      Brooks McArthur, Esquire
      95 St. Paul Street, Suite 2E
      Burlington, VT 05401

      Counsel For: Kenneth L. Miller
      Dated: February 29, 2012

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