[00:00:10] Speaker 00:
I should have mentioned we will take a break after the third argument, and we now proceed with our second, which is United States v. Hira Wahaj, and it is Docket 23-2170. Ms. Donnelly, please proceed when you're ready. Thank you.

[00:00:49] Speaker 01:
May it please the court. My name is Katayoun Donnelly, Colorado Attorney Registration Number 38439, and I represent Hojra Wahaj.

[00:00:58] Speaker 01:
The government wants to keep an aunt in prison for the rest of her life.

[00:01:03] Speaker 02:
Could you pull the microphone up a little?

[00:01:05] Speaker 01:
Sure. Thank you, Your Honor. I always have this problem. Can you hear me now?

[00:01:09] UNKNOWN:
Great.

[00:01:10] Speaker 01:
The government wants to keep an aunt in prison for the rest of her life for consensually accompanying her brother, who lawfully and voluntarily took his own son across state lines.

[00:01:23] Speaker 01:
The government's theory that this taking was unlawful because the child's mother did not consent is precisely the kind of overbroad interpretation of the federal kidnapping statute that the United States Supreme Court warned against in Chatwin.

[00:01:40] Speaker 01:
The act of one parent taking a child from the physical custody of another parent, absent a court order granting legal custody to that other parent, is not unlawful within the meaning of the federal or state statutes.

[00:01:57] Speaker 02:
Which state? Any state. Well, the states are split on this, aren't they?

[00:02:03] Speaker 01:
No, they're not, Your Honor.

[00:02:07] Speaker 01:
I would submit to the court that courts across the country have consistently held this from 1916 to 2015, from the D.C. Circuit to the 10th Circuit to Georgia to New Mexico. It is the uniform rule across American law.

[00:02:25] Speaker 01:
And the government's theory in this case requires every single one of those courts to have been wronged.

[00:02:34] Speaker 04:
I'm sorry, to have what?

[00:02:36] Speaker 01:
The government's theory requires that every single one of those courts to have been wrong in ruling that taking of one parent without, in the absence of a court order, does not constitute kidnapping.

[00:02:52] Speaker 02:
And so your argument is that we don't have an unlawful seizure here. And therefore, we can't have the kidnapping. Exactly, Your Honor. Whether it's the parent or anyone else. Correct.

[00:03:05] Speaker 00:
Even if the victim can't consent here by age of the child?

[00:03:12] Speaker 01:
Even if the victim can consent?

[00:03:14] Speaker 00:
Cannot.

[00:03:14] Speaker 01:
Cannot. No, Your Honor, you're absolutely right. So those are critical issues. The consent issue, who is and can consent, and then that is talking about the authorization to actually to take, right? Because if you do not have the consent, then it is not a lawful taking.

[00:03:34] Speaker 01:
And the issue here is that it is undisputed, the government has acknowledged actually in the briefings, that we do not have any dispute that a three-year-old could not have consented to the taking. So the only person that we are looking at is the parent. And the question becomes, when you have competing rights of parents who are fit, whose rights have not been in any shape or form restricted by any court of law, What happens?

[00:04:00] Speaker 01:
And as we have submitted to the court, and I'm excited, and actually I have further citations if the court is willing to take them, and I apologize. I came across a New Mexico case and a Tenth Circuit case. In a Tenth Circuit case, that is Anderson v. Cramlett, 789 F2.

[00:04:22] Speaker 01:
that is where the court actually was discussing this particular issue in the context of defamation. So somebody had made a statement that my spouse kidnapped my child. And the question became whether that was true. For the purpose of deciding whether that was defamation, and as we all know, the truth of the matter is a complete defense to defamation, the 10th Circuit Court got engaged in the determination as to whether under Colorado law there was kidnapping.

[00:04:56] Speaker 01:
And the court concluded that the state court and the state legislature, actually, I apologize, has never criminalized the act of one parent in the absence of a court order taking the child. So every single case that has been cited to this court has involved, anytime that you're talking about unlawful taking, you're talking about existing court order that has been violated. And I can tell the court, I have spent hours on this, I have not come across a single case that you do not have an existing court order And as the court is aware, that is for a reason, that we have a due process principle, the notification, the fact that a criminal statute has to provide notice to the public before we can hold them and find them liable.

[00:05:48] Speaker 02:
And in this case, it's undisputed. that there was no court order here until the pickup order after they were already in New Mexico. Am I correct on that?

[00:06:00] Speaker 01:
Again, Your Honor, this case has thousands of pages. I have gone through them. That is my understanding, and I let Ms. Walters to correct me if I'm wrong. There has never been any allegation. And I had done my best to provide you the details of the citation to the record where the mom acknowledges that we went there with the police. The police officer told me And the rest of us, that there's nothing I can do because of the fact that there is no open custody case and there is no court order.

[00:06:33] Speaker 01:
That you are two parents, both of you have equal rights, and he can do as he wishes unless and until the court of law tells him that he can't.

[00:06:43] Speaker 04:
Wouldn't your theory have carried out?

[00:06:47] Speaker 04:
to its full extent, mean that if two parents share custody and there's no court order in place and one parent decides to pay someone to have the child kidnapped, that parent has consented. I think you're suggesting that's their right. and that person that they pay couldn't be convicted of the kidnapping, aren't you? That just can't be.

[00:07:21] Speaker 04:
They're participating in this, whether they're being paid or they're assisting, and your suggestion is that makes no difference because there's consent involved.

[00:07:36] Speaker 01:
So Your Honor, I think the 10th Circuit case in Anderson is very much actually touching on that issue as to how easy it is to call something kidnapping, especially when you're dealing with parents, right? They go to court all the time. They accuse each other of different things and loosely use the term kidnapping. Just because somebody uses the term in its loose definition does not make it so. And that is the distinction between the unlawful taking and taking, the lawful taking.

[00:08:08] Speaker 01:
So in the case of parents who do not have a pending case, there is no such a thing as kidnapping.

[00:08:15] Speaker 04:
So would you answer my question then?

[00:08:18] Speaker 04:
Could a parent hire someone to kidnap their child? The parent cannot. Because you've consented. A parent with custody and no court order in place.

[00:08:27] Speaker 01:
Your Honor, again.

[00:08:29] Speaker 01:
yet but let me answer your question very directly no you can't that would be legal why why yeah that would be legal to kidnap because you are using the term kidnapping as it as a legal conclusion that there is kidnapping so example if well let me interrupt you because your whole argument is based on the premise that if both parents have equal rights to the child if the child is taken with one parent's permission

[00:08:58] Speaker 02:
there's no unlawful seizure, so it's not a kidnapping. So I don't understand how your argument logically makes the difference between whether my sister helps me for free or I pay somebody to help me.

[00:09:14] Speaker 01:
So let me put it this way, and I completely understand. I think this is the most difficult piece of this. If...

[00:09:23] Speaker 01:
My husband is here in the courtroom. Our son is at school. We don't have any pending cases. We are not in a custody dispute. If I hire someone, to go and pick up my son from school with the intention to take my son to another state, go across the state lines, and that person knows that I am going to take my son across state lines and they come with me, there is no kidnapping because there is no court order preventing me or the person I'm hiring or the person I'm asking to do this for me as a favor to come with me and with my child.

[00:09:58] Speaker 01:
Go ahead.

[00:10:00] Speaker 02:
That's a different answer than what you just gave Judge Moritz.

[00:10:04] Speaker 01:
Because I was trying to make a point that it is not kidnapping, but Judge Moritz used the term kidnapping. So if it is kidnapping, if it is unlawful, right, the only time that this would be an issue is that the same thing, but we have a pending court case. we have a determination of custody that tells me today I do not have the right to have my child with me. So if today, while I don't have that right, and I know that for the next month I do not have the right, the court order says that during the next month my husband has all rights to have my child with him.

[00:10:41] Speaker 01:
If under these circumstances I do that, then that is unlawful, and whoever who helps me could potentially be on the hook. The question will, of course, become whether that is under state law or federal law. And we have this other whole thing that the course in Chatwin has reminded us, Your Honors, that the federal kidnapping statute was for a specific purpose. We did not want to involve our federal courts and federal resources with these very complicated issues related to relationships between parents.

[00:11:15] Speaker 00:
Okay, you can tell we're at a really important crossroads here, and I want to pin down an answer because I'm not sure what the answer has been. If a parent hires someone else who goes and grabs the child and then hands him to the parent, is the third party who had no authority to do that other than from the parent scot-free?

[00:11:36] Speaker 01:
It depends on whether the parent had the legal authority to consent and to do the taking.

[00:11:41] Speaker 00:
Okay, so you're saying the third party is scot-free?

[00:11:45] Speaker 01:
If the parent has the authority, there is no kidnapping. Assume that they have the authority.

[00:11:49] Speaker 04:
Exactly. Assume the parent has the authority.

[00:11:50] Speaker 02:
Then there's no kidnapping. Because if the parent has the authority, whether they do it directly or with assistance, paid or unpaid, your position is... There is no unlawful seizure, which is what is required for kidnapping. Am I understanding your argument?

[00:12:07] Speaker 01:
Absolutely correct. You have said it beautifully. I have no further points to add, and I would like to reserve the remainder of my time.

[00:12:13] Speaker 00:
Is that something that can really be delegated?

[00:12:16] Speaker 00:
Go grab the child?

[00:12:18] Speaker 01:
Why not? We do that all the time with our nannies. We live in America. Every single working mom has someone who's going to grab their kid. to take them to different places.

[00:12:28] Speaker 01:
And that is why we don't want our federal courts to be involved in these matters unless we have a state court that is looking into the facts, if I may.

[00:12:35] Speaker 00:
Indeed. You may. Thank you.

[00:12:50] Speaker 02:
So let's jump right in.

[00:12:53] Speaker 02:
Sure.

[00:12:55] Speaker 00:
First of all, introduce yourself.

[00:12:56] Speaker 05:
For the record, I'm Tiffany Walters for the United States and all four of these consolidate cases.

[00:13:00] Speaker 02:
I'm sorry. Happy to answer your question.

[00:13:05] Speaker 02:
So let's say Judge Phillips has a daughter and he thinks it's high time that she went and bagged her first elk. But his wife is opposed to hunting. does not want that to happen. And so Judge Phillips goes to her school, and he grabs her with the help of his brother, and they take her to Utah for three weeks for an extended hunting trip.

[00:13:40] Speaker 02:
Did they kidnap her?

[00:13:42] Speaker 05:
I think it would depend on whether that three weeks window met the definition of holding. And I think that is the temporal limit.

[00:13:50] Speaker 02:
Well, what about an unlawful seizure? Let's focus on that. Is it an unlawful seizure for Judge Phillips, and I can't remember if I said brother or sister, to assist him in grabbing the daughter and taking her across state lines for a three-week hunting trip, not only without the permission of but against the intent and orders of the other spouse?

[00:14:20] Speaker 05:
I think it likely would be against the consent, and that would meet the unlawfulness piece, but I think the holding piece would restrict that.

[00:14:28] Speaker 02:
How is that an unlawful seizure? I mean, I think Congress was very clear they didn't want the kidnapping statute to be used in every custody dispute in the United States. And unless and until you have an order in place... Each parent has an equal right to that child. And so, you know, I don't know how the sister could be involved in an unlawful taking when Phillips has just decided it's time for his daughter to go out there and bag an elk.

[00:15:05] Speaker 05:
Well, and I do think that that would – I think this turns on the question of federal law. But if we look to Georgia law, I think, assuming this happened in Georgia, that this could violate the Georgia statute. Because the Georgia statute – and I'd like to go to the language of that specifically – provides that lawful authority is inherent in both natural parents. And then it provides that a person commits its offense of interstate interference with custody when, without lawful authority, that parent takes the child – away from a person with lawful custody.

[00:15:34] Speaker 02:
Yeah, and we found a subsequent case that said that without lawful authority means that there's a custody order in place that says you don't have lawful authority. I mean, why would we want life imprisonment for people who assist a parent who has custody, has a right equal to the other parent in a dispute in terms of where they take their children?

[00:16:02] Speaker 05:
Well, as to the lawful authority apiece, for Siraj to have lawful authority to do what he did, he would have needed a custody order granting him sole custody.

[00:16:09] Speaker 02:
No, he wouldn't. I mean, you can take your child across state lines. Is that a kidnapping? Not just taking him across state lines. I don't want the kids to go to Disneyland because they don't have good grades. And, you know, the father says... Well, I do want them to go to Disneyland and take them to California. Are they kidnapped?

[00:16:31] Speaker 05:
Well, I mean, you're taking them away from, you're not taking them away permanently from the person who has lawful custody. Here he takes him without any court order across state lines, without the authority to do so, and holds him permanently. And then the fact that the Georgia court.

[00:16:44] Speaker 02:
What's the limiting principle? Is it across state lines? Yes. So Judge Phillips' sister would be liable because they went to Utah?

[00:16:53] Speaker 05:
I think holding is the limiting principle. And just before I move to that, I just want to say that the Georgia court, in fact, issued an arrest warrant, which makes me think, and I think is good evidence, that the Georgia courts thought what he did was unlawful. But then going to the limiting principle question.

[00:17:06] Speaker 02:
But you conceded in the papers that there was no order in place until the pickup order in New Mexico.

[00:17:16] Speaker 05:
Correct, but I don't think that that is the marker of the time at which his actions became unlawful. The arrest warrant talks about his absconding with a child on December 1st.

[00:17:25] Speaker 00:
Is there a citation? You started to say there's a Georgia statute. Are you relying on some feature of Georgia law to say, indeed, it was unlawful? And if so, what is it?

[00:17:37] Speaker 05:
Well, I think it is the statute which requires a...

[00:17:42] Speaker 05:
which prohibits taking without lawful authority, and then also the arrest warrant.

[00:17:46] Speaker 00:
Okay. Without lawful authority sounds a lot like you need to have a custody order in place.

[00:17:54] Speaker 05:
I think if we also look to New Mexico law, New Mexico law is even clearer that no custody order is required, and this court has addressed it in Rios v. Rydell.

[00:18:01] Speaker 00:
Well, he's already in New Mexico, though.

[00:18:04] Speaker 05:
That's true. But New Mexico would find custodial interference if the child was kept or or detained in New Mexico as well.

[00:18:12] Speaker 00:
Well, we're kind of on the front end of the statute, the unlawfulness. We haven't even gotten to the case of a minor by a parent. And you need to get over that unlawful hurdle. And you might tell that there's some resistance to that on the basis of lack of a court order. And so the ball is in your court. This is your chance. Tell us why it's unlawful.

[00:18:33] Speaker 05:
I would also like to say that reading into the lawfulness, the requirement of a court order, really also means that any time a parent consents to the kidnapping, it's lawful, which doesn't give a lot of work for the parental exception in the statute.

[00:18:47] Speaker 02:
I mean, it looks like from the fact that that parental exception... Yeah, it does, because if the parent does have a lawful, is acting...

[00:18:57] Speaker 02:
They have a custody order that they're violating. Under the statute, they still can't be prosecuted for kidnapping, but the person who helps them can.

[00:19:06] Speaker 02:
Correct. So there's work to do.

[00:19:09] Speaker 05:
I suppose, but it seems duplicative in a way. How is it duplicative? Well, because it suggests that the parent, I mean, in the situation where the parent does have custody, that the parental exception wouldn't really have a role to play because it would be lawful. But I'd like to go back to the limiting principle question.

[00:19:27] Speaker 00:
I don't know if that follows. It could be unlawful, and yet the parent is accepted from prosecution.

[00:19:34] Speaker 05:
That could be.

[00:19:35] Speaker 00:
Which is an affirmative defense, and that's your position, right?

[00:19:38] Speaker 05:
That is an affirmative defense for the parent, but not for those that assist the parent.

[00:19:43] Speaker 00:
Which brings us back to unlawfulness. And if all you have is... There was an arrest warrant that was issued later and nothing inside that, namely a statute or a Georgia Supreme Court case that says you don't have to have a lawful custody order and there can still be an unlawful taking. I'm all ears. That would be really important to have.

[00:20:08] Speaker 05:
Certainly. And I'd actually like to step back a step because I think the kidnapping statute doesn't require a predicate state law violation and No, but it requires an unlawful seizure. Right, and the unlawfulness is determined by the lack of consent of the parents and the fact that one parent doesn't consent.

[00:20:24] Speaker 02:
So any time one parent takes the kid somewhere without the permission or against the wishes of the other parent, we have a federal kidnapping with life imprisonment.

[00:20:35] Speaker 05:
No, I think the holding has the work to do there.

[00:20:38] Speaker 02:
Well, what about, you know, you tell us that Georgia Code 16554C is what makes them lawful, but we've got Brazil versus state from interpreting that code, which states, however, a custodial parent cannot be in violation of the statute in the absence of a custody order giving the parent the exact notice of the line which may not be transgressed.

[00:21:05] Speaker 05:
Is that the Brassell case? Yes. I think that case was dealing with the interpretation of a custody order as to what was reasonable visitation. And we're talking about, in that case, a two-day variance on one side or the other. And in those cases where you're on the margins of what is reasonable, I think that still stays within the context of the state law custody violation.

[00:21:27] Speaker 02:
Well, it says in the absence of a custody order, you don't have notice that you can't do it.

[00:21:34] Speaker 05:
I would beg to differ that Siraj had notice that he could not just unilaterally take his child from his mother who also had custody and keep him forever without going to court.

[00:21:43] Speaker 00:
Well, what's the notice?

[00:21:45] Speaker 05:
The notice is the wrongfulness of the action, that you cannot take a child from his parent without consent, without some sort of court involvement. And he knew that that was the process.

[00:21:55] Speaker 00:
In other words, because you say, or because it makes sense. But we're looking for some legal basis that we can pound a nail into and hold something.

[00:22:04] Speaker 00:
You started to say that if one parent doesn't consent, and I guess that that's the person who's primarily been in custody, even though not legally... and the other parent takes the child, that the law says that that's an unlawful act. Opposing counsel said, in that situation, all of the cases say that it's not an unlawful act. Therefore, what are your cases that say that that's unlawful? And if you've got them, then you're in business.

[00:22:35] Speaker 00:
And if you don't have them, then you need to explain how you still are in business. Right.

[00:22:39] Speaker 05:
So I think...

[00:22:42] Speaker 05:
as you're citing the Adams case in the Georgia court, that is an older case under a prior statute. There was a subsequent way, the Smith case, that actually upheld a kidnapping conviction against the father. So I don't think that there is an exception.

[00:22:53] Speaker 02:
In every one of those cases, and we pulled them all up and looked at them, there was a violation of custody. There was an order in place or parental rights had been terminated or in one case, the child, it was, I mean, a young mother who was snatched was emancipated and no longer under any parental control. So I think if you look at every one of those cases, they are not this case.

[00:23:24] Speaker 05:
I would point the court to Boettcher. I think that's the closest case. And that sort of deals with the hired hand situation that the court was referring to at defense counsel. In that case, both mom and dad had custody orders in different states. Dad had kidnapped child from mother and mother hired people to help her kidnap the child back. And in that case, it doesn't directly address the issue, but it contemplates the possibility that the government was using the charging of the mother as leverage to get at these co-defendants. So it contemplates the possibility of prosecuting them.

[00:23:51] Speaker 02:
That case didn't deal. It was just whether the mother was immune from prosecution, and they did not decide. anything about the people who assisted her. And they made a statement that addressed a totally different point. that never ruled on whether there would be liability for the hired kidnappers. Would you agree that's an accurate statement of the case?

[00:24:19] Speaker 05:
I don't think it helps you. I think it supports the general idea, but it doesn't hold on the issue.

[00:24:26] Speaker 05:
And I would also point out that the defendant hasn't identified any case that specifically says in this situation that the father could do this and gets off scot-free. Or not the father, I'm sorry.

[00:24:35] Speaker 02:
They have identified a whole series of cases that say... unless and until there is an order in place, both parents have equal rights to the child. Now, it is very likely that what was done was wrong, it was immoral, it was dangerous, but I don't know that it's an unlawful seizure.

[00:25:03] Speaker 05:
I would again point the court to the Georgia arrest warrant, which suggests that the Georgia courts thought it was unlawful for him to abscond with a child. And I think in New Mexico, there's also not a requirement for a custody order, and I'd point the court back to the Rios v. Riddell case in that regard. Huzra also pointed to the fact that the officer was on the scene, but at that stage, we are just days into this, and both parties are still in Georgia. So I don't think that, first, the opinion of that individual officer would control the situation, but also the fact that It may be that the father could take the child within the state and that they could work things out is one thing, but to take him across state lines and hold him indefinitely with the goal of depriving the mother completely of her parental rights is not lawful under either federal law or under state law.

[00:25:52] Speaker 02:
If we disagree with you, do we have to reverse the conviction?

[00:25:59] Speaker 02:
If you disagree that this taking... We think there was insufficient evidence of an unlawful seizure.

[00:26:06] Speaker 05:
Unlawfulness is an element of the statute, so yes.

[00:26:11] Speaker 02:
And that would be all of the co-defendants who were convicted of kidnapping?

[00:26:16] Speaker 05:
Yeah, so the kidnapping convictions, yes.

[00:26:19] Speaker 02:
And conspiracy? Yes.

[00:26:21] Speaker 00:
Well, can it be unlawful for one and not another?

[00:26:27] Speaker 05:
In what context?

[00:26:30] Speaker 00:
Any context that you want to sustain your conviction. But I guess what I'm thinking is just because you have three, four, five people involved, you say they're all in the same basket. That's going to be your rule?

[00:26:46] Speaker 05:
I don't know that.

[00:26:47] Speaker 05:
I don't want to speak to a situation where you have a hired gun. I don't see a distinction there, but I don't want to say that on some other facts. But in this case, I don't know that Huzra, Sukana, and Lucas are differently situated from each other as to the lawfulness issue.

[00:27:01] Speaker 00:
Well, I guess, and it's counterfactual, but if the father here had said, head to New Mexico. I've got some business I need to attend in in South Carolina. I'll be along shortly. That'd be a different situation, wouldn't it? It doesn't.

[00:27:16] Speaker 05:
Yeah, I think so. And again, I'd point the court back to the Murphy case, which requires a holding. And that requires more than an incidental holding. Murphy looks to Chatwin and says that you have to have a physical or mental restraint for an appreciable period of time. So these sort of temporary custodial disputes at the edges, I think, would not fall under that. It would have to require something more beyond the incremental requirements to violate the custody statute. And here, we don't need to decide where that line, excuse me, where that line is, because it's so far beyond that.

[00:27:49] Speaker 05:
Like, this is not a dispute as to the parameters of custody. That could have been resolved if Siraj chose to take him to Georgia court and address it. But instead of doing that, he avoided the courts, escaped Georgia's jurisdiction, and took him to New Mexico where he hid and kept the child until the child died. And defendants are arguing that, I'm sorry, I'm over time. Can I?

[00:28:12] Speaker 02:
I have a question. What if the facts were reversed and the mom was concerned about the danger to the child based on these beliefs and she took the child without permission with the help of her family and hid the child in another state? Is her sister liable for federal kidnapping?

[00:28:38] Speaker 05:
I think in that case we'd be in the realm of potentially necessity defense, and it would depend on the extent of that.

[00:28:44] Speaker 02:
I'm not asking about affirmative defenses. Is it kidnapping under the federal statute?

[00:28:49] Speaker 05:
I think that could be kidnapping, but it would be subject to defense.

[00:28:51] Speaker 04:
Just briefly, unlawfulness also— She's talking about the sister, though, not the mother, right?

[00:28:55] Speaker 05:
Yeah, no, not the mother.

[00:28:56] Speaker 04:
The sister wouldn't have the affirmative defense.

[00:28:59] Speaker 05:
She's saying direct. No, but necessity or something like that.

[00:29:02] Speaker 04:
I see. Okay.

[00:29:03] Speaker 05:
And I would point the court to unlawfulness is also used in the context of the murder statute 1111 and 1112. And in those cases, it's not asking for a separate predicate crime.

[00:29:12] Speaker 02:
But if not necessity, then it would be kidnapping. Yes. For the sister to help the mom move the kid out of state to protect him. from what eventually happened to him here.

[00:29:25] Speaker 05:
I think that the necessity would prevent it from having liability, but yes, it would be unlawful.

[00:29:31] Speaker 03:
You could charge it. I'm sorry. You're saying you could charge it.

[00:29:35] Speaker 05:
I think that would be a question where likely prosecutorial discretion would come into play and that would not be charged, but there would be a defense in that case if there was a necessity to take the child.

[00:29:47] Speaker 00:
Thank you, counsel.

[00:29:48] Speaker 05:
Thank you.

[00:30:00] Speaker 00:
To keep the time even, you can have another couple of minutes, but I'll be guarding that.

[00:30:06] Speaker 01:
Thank you. I'm hoping I will not need that, and that will be the first for me, Your Honors.

[00:30:13] Speaker 01:
As I was reviewing the 260-page brief that was done by the government, it was surprising there was not a single mention of Brussels.

[00:30:24] Speaker 01:
But it is telling because the government did not want to deal with the fact that the Supreme Court of Georgia has made it absolutely clear that unless and until there is a line that has been drawn and then transgressed, there is no kidnapping.

[00:30:43] Speaker 01:
And as to New Mexico, we submitted to the court the New Mexico cases that have applied the New Mexico statute.

[00:30:52] Speaker 01:
Interestingly enough, and I don't want to get into the weeds of this, but for those who practice in this area, UCCJEA specifically says that in these circumstances, the Georgia law would apply because the matter is there. And New Mexico court, in a case called State v. Left End, and that is 2015 NMCA, 117 at paragraph 19, specifically repeats the holding of Brassell by the Georgia Supreme Court.

[00:31:23] Speaker 01:
They're all consistent. And in Lafland, the court says the right to custody enjoyed by the person injured by the crime in this case must be established by proving the existence of a court order.

[00:31:40] Speaker 01:
And every single case from 1916, the D.C. Circuit, saying that there is no such a thing as a kidnapping by a parent in absence of a court order, to this 2015 case by the New Mexico courts. And actually, in this case also, New Mexico acknowledges that the law and the venue is proper where the parent who's claiming that the child has been taken from them unlawfully.

[00:32:07] Speaker 02:
What case are you referring to?

[00:32:09] Speaker 01:
And I apologize, Your Honor. This was not cited. It is state versus left-hand. L-E-F-T-H-A-N-D, 2015 NMCA 117, paragraph 19. I'm sorry, I didn't get the site.

[00:32:27] Speaker 01:
2015-NMCA-117 at paragraph 19. Thank you. Sure. And that addresses both the venue fact and the fact that Georgia law would apply and the fact that, again, in New Mexico, applying the very New Mexico statute that the government has cited, 30-4-4B, it says that in applying B, you have to look at A. A requires court order. There's not a single case anywhere in the country, and for a good reason, again, that criminal statutes, you cannot have criminalization of an act without notice.

[00:33:06] Speaker 01:
And in this case, when you have the jury instruction that goes to the jury, it is pretty much admission of the liability by the court's finding as to a pure question of law. It says, if you find that the kid was taken against...

[00:33:22] Speaker 01:
the consent of the mom, there is liability. There is no question for the jury. There is nothing for the jury to find. It was here. This is liability for kidnapping. And our submission to the court has been that if there is no kidnapping, then by definition you can't have an unlawful conduct that lies within the substantive kidnapping and conspiracy to kidnap by the sister. So our submission to the court is that, you know, looking at the courts across the country that have consistently held, literally from 1916 to 2015, that the taking is not unlawful.

[00:34:00] Speaker 01:
that this is really uniform, what the government is asking you is to step out of your judicial role. Criminalization is legislative, not judicial function, and the government is telling you, and this overbought theory is asking you to come and act as legislatures, whether it's state on behalf of state or federal government, and criminalize this action.

[00:34:27] Speaker 01:
Therefore, we are asking the court to please reverse and send it back with instructions to enter a judgment of acquittal.

[00:34:35] Speaker 00:
Very well. Thank you, counsel, for your arguments today. And the case submitted, counsel are excused.