Re: Kenneth Miller - Looking for the easy way out!
- 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:
Ken claims he did nothing in Vermont and so
the Vermont Federal District Court is an
inappropriate venue to use to charge him.
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.
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.
--------------Ken Miller's Motion----------------
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF VERMONT
UNITED STATES OF AMERICA
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:
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.
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
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.
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).
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).
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.
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.
Because Lisa Miller was allowed to travel, Ken Miller
violated no law by allegedly assisting her in making
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).
It is not questioned that IMJ has habitually resided in
Virginia. Therefore, IMJ's parental rights are defined
by Virginia law, not Vermont law.
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.
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.
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.
Therefore, the charges against Ken Miller should be
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.
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.
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.
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.
Thus, the charges against Ken Miller should be dismissed.
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.
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).
Venue is only proper in any of the locations where an
"essential conduct element" of the offense is completed. Id.
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)).
"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).
In this case, "removing, attempting to remove, or retaining"
a child from the United States are the verbs defining the
conduct of the offense.
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.
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
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
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