United States v. Wenjing Liu , 654 F. App'x 149 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4381
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WENJING LIU, a/k/a Linda Liu,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:14-cr-00372-CMH-1)
Argued: May 11, 2016 Decided: June 21, 2016
Before TRAXLER, Chief Judge, and NIEMEYER and KEENAN, Circuit
Judges.
Affirmed by unpublished opinion. Judge Keenan wrote the
opinion, in which Chief Judge Traxler and Judge Niemeyer joined.
ARGUED: Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant. Christopher John
Catizone, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Acting
Federal Public Defender, Frances H. Pratt, Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Dana J. Boente, United
States Attorney, Rebeca H. Bellows, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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BARBARA MILANO KEENAN, Circuit Judge:
Wenjing “Linda” Liu was convicted by a jury of attempted
international parental kidnapping in violation of the
International Parental Kidnapping Crime Act (IPKCA), 18 U.S.C.
§ 1204. On appeal, Liu contends that the district court erred:
(1) in excluding certain witnesses’ testimony concerning Liu’s
statements about her travel plans; and (2) by denying two
requested jury instructions.
Upon our review, we are unable to consider the merits of
the court’s exclusion of Liu’s statements to the various
witnesses, because Liu failed to proffer the content of the
excluded testimony. Additionally, we hold that Liu’s mother’s
statements regarding her travel plans were inadmissible hearsay,
and that the district court’s jury instructions substantially
covered the content of the rejected instructions. Therefore, we
affirm the district court’s judgment.
I.
The relevant facts are largely undisputed. Liu was born in
Tianjin, China, and she moved to the United States around 2000.
In 2007, Liu married William Jerome Ruifrok III, a United States
citizen, in Loudoun County, Virginia. Ruifrok and Liu have a
son, WLR, who was born in 2010 in Tianjin, China. WLR traveled
between China and the United States several times between 2010
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and 2014, and occasionally remained in China for months at a
time under the care of Liu’s mother.
When the marriage between Liu and Ruifrok deteriorated, the
couple separated in November 2013. After several months of
negotiation about custody arrangements for WLR, Liu and Ruifrok
reached an agreement, which was memorialized in a “Final Custody
Order” entered in May 2014 by the Juvenile and Domestic
Relations District Court of Loudoun County, Virginia. The Final
Custody Order granted Liu primary physical custody and granted
Ruifrok visitation rights every weekend. The Final Custody
Order also required that either parent traveling with WLR
outside the United States obtain “the express written and
notarized consent of the other party, provided in advance [of]
the trip.”
Soon after the Final Custody Order was entered in May 2014,
Liu and Ruifrok had various disagreements regarding Ruifrok’s
visitation with WLR. Ultimately, Liu stopped responding to
Ruifrok’s requests in July 2014, and Ruifrok was unable to
exercise his visitation rights in July or August 2014.
On August 28, 2014, Liu purchased tickets from United
Airlines (United) for Liu, Liu’s mother, and WLR to travel from
Washington Dulles International Airport (Dulles) to Beijing,
China. They were scheduled to depart one week later, on
September 4, 2014 at 12:20 p.m. Liu purchased a “round-trip”
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ticket for herself and “one-way” tickets for WLR and Liu’s
mother.
Liu did not notify Ruifrok about her travel plans with WLR
until after arriving at Dulles on the morning of the scheduled
flight. At 11:00 a.m. on September 4, 2014, Liu informed
Ruifrok by email that she had learned “last midnight” that her
grandmother was dying and, therefore, she and WLR needed to
travel to China as soon as possible. Two minutes later, Ruifrok
responded via email, “[WLR] is not going, u cant take him to
school[.] I will pick him up.” An hour after Ruifrok
responded, and 20 minutes before the plane departed, Liu
replied:
I already booked the tickets for him. We have to
leave today. It’s too urgent! I’ll notice you when I
know when we can be back. Because I have to replace
his birth certificate too.
Ruifrok notified the Dulles airport police that Liu was
violating a court order by leaving the country with WLR. The
airport police contacted the Federal Bureau of Investigation
(FBI) and the Loudoun County prosecutor, obtained a copy of the
Final Custody Order, and confirmed that Liu and WLR were on the
flight that had departed to Beijing.
After being notified of the situation, United personnel
ordered the airplane’s pilot to redirect the plane, which at
that time was over Canadian airspace, back to Dulles. About
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5:15 p.m., the flight landed at Dulles, where Liu, WLR, and
Liu’s mother were escorted off the aircraft. The FBI arrested
Liu as she disembarked. At the time of her arrest, Liu’s
luggage contained a copy of the Final Custody Order, as well as
WLR’s passport that bore a Chinese visa issued on August 27,
2014.
A federal grand jury in the Eastern District of Virginia
indicted Liu on one count of attempted international parental
kidnapping, in violation of 18 U.S.C. § 1204. The IPKCA
prohibits, in relevant part, any attempt to “remove[] a child
from the United States . . . with intent to obstruct the lawful
exercise of parental rights.” 18 U.S.C. § 1204(a).
At trial, the government argued that Liu intentionally
violated the Final Custody Order with the purpose of obstructing
Ruifrok’s parental rights. Liu presented evidence that she
intended the trip to China to be a temporary visit, that the
purpose of the trip was unrelated to Ruifrok’s parental rights,
and that she did not understand her obligations under the Final
Custody Order.
Liu also attempted to elicit testimony from friends and
associates about the reasons she gave them for making the trip.
When Liu’s counsel asked Janet Outtrim, Liu’s housemate, about
Liu’s travel plans, the government objected on the ground that
the statements were inadmissible hearsay. Liu’s counsel
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responded that these statements were admissible under the “state
of mind” exception to the hearsay rule, but failed to proffer
the substance of the testimony sought to be admitted. The
district court ruled that Outtrim could testify about Liu’s
actions but “not the reasoning behind [them].” In response,
Liu’s counsel pursued a different line of questioning that
permitted Outtrim to testify that Liu had not made any effort to
keep her travel plans a secret, and that she had left most of
her personal property and WLR’s clothes at Outtrim’s home.
Liu’s counsel also asked Danica Hu, Liu’s real estate
agent, about Liu’s expressed intent to buy a home and to enroll
WLR in a school in northern Virginia. After the government
objected to this question, Liu’s counsel rephrased the inquiry,
eliciting testimony that Hu continued to assist Liu through
September 4, 2014, to help Liu find a home near “a good school
for the child.” However, Liu’s counsel did not proffer to the
court the substance of the testimony excluded by the court’s
ruling.
Ying Zhao, Liu’s work colleague, also testified. After the
district court sustained the government’s objection to any
statements Liu made to Zhao about her travel plans, Zhao
testified that Liu had purchased a ticket to a business seminar
to be held in Virginia on September 27, 2014, and that Liu’s job
functions could not be performed from China. Again, Liu’s
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counsel did not proffer for the record the content of the
excluded testimony.
Liu also attempted to elicit testimony from FBI Special
Agent Tonya Sturgill, who spoke to Liu’s mother after the
airplane returned to Dulles. At that time, Liu’s mother
purportedly stated that she had intended to return to the United
States with WLR within a few months. The district court ruled
that this statement was inadmissible hearsay.
In her proposed jury instructions submitted before trial,
Liu asked the court to clarify for the jury that the government
was required to prove that she “intended to obstruct Ruifrok’s
lawful exercise of his visitation rights with WLR, not merely
that [she] intended to travel internationally with WLR without
William Ruifrok’s consent.” At the close of evidence, Liu
accordingly requested an instruction stating that the government
must prove that Liu’s “specific purpose” or a “significant”
motivation for Liu’s actions was an intent to obstruct Ruifrok’s
“exercise of physical custody.” In response, the government
agreed that more than a de minimis showing of intent was
required, but argued that inserting a “significant purpose”
element of proof would overstate the statutory requirement.
The district court rejected Liu’s proposed jury
instructions. As relevant to this appeal, the court instructed
the jury that the government was required to prove: (1) that Liu
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knowingly attempted to remove her child from the United States;
and (2) that she did so “with the intent to obstruct the lawful
exercise of parental rights.” With respect to the first
element, the district court explained that the term “knowingly”
meant that Liu was “aware of her actions, realized what she was
doing, and did not act because of ignorance, mistake, or
accident.” Regarding the second element, the district court
instructed that “parental rights” were rights to physical
custody of the child, which “includes visitation rights.”
Finally, the district court instructed the jury that the
government was required to prove “that the defendant acted with
the intent to obstruct the lawful exercise of parental rights,”
and that she “acted deliberately with the purpose of interfering
with parental rights of the other parent.”
During its deliberations, the jury submitted a question to
the court, asking whether the government was required to prove
that the defendant “knowingly . . . broke the law.” The
district court responded by reading again the language of the
statute and the court’s previous definition of the term
“knowingly,” and added that Liu did not have to know that “her
actions may be in violation of a criminal law or that she
intended to violate a criminal law.” After ten minutes of
additional deliberation, the jury returned a verdict of guilty.
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The district court sentenced Liu to serve a term of six
months’ imprisonment and a one-year term of supervised release.
Liu filed a motion for a new trial, which the court denied. Liu
later filed this timely appeal.
II.
A.
Liu first contends that the district court abused its
discretion in excluding testimony from the various witnesses
concerning statements she made about her travel plans. Liu
argues that her statements to these witnesses were admissible
under the state of mind hearsay exception in Rule 803(3) of the
Federal Rules of Evidence. Similarly, Liu argues that her
mother’s statements to FBI agents after disembarking from the
plane at Dulles were admissible under the same hearsay exception
as probative evidence of the mother’s intent.
We review a district court’s evidentiary rulings for abuse
of discretion. United States v. McLean, 715 F.3d 129, 143 (4th
Cir. 2013). Generally, the rule against admission of hearsay
prohibits a witness from testifying about statements made by
another when those statements are offered to prove the truth of
the matter asserted. Fed. R. Evid. 801(c), 802. An exception
to this general rule permits admission of a statement of a
declarant’s then-existing state of mind for such purposes as
showing her motive, intent, or plan. Fed. R. Evid. 803(3); see
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also Mut. Life Ins. Co. of N.Y. v. Hillmon, 145 U.S. 285, 296
(1892).
The determination whether a statement qualifies for
admission under the state of mind exception involves a fact-
sensitive inquiry. United States v. Rivera-Hernandez, 497 F.3d
71, 81 (1st Cir. 2007). Forward-looking statements of intent
are admissible, but backward-looking statements of memory are
not. Fed. R. Evid. 803(3); Shepard v. United States, 290 U.S.
96, 105–06 (1933). For this reason, statements describing a
declarant’s then-existing state of mind are admissible, but
statements about the declarant’s reasons for having that state
of mind are inadmissible. 1 4 Stephen A. Saltzburg et al.,
Federal Rules of Evidence Manual § 803.02[4][b] (11th ed. 2015).
The state of mind described also must be shown to have been
contemporaneous with the statement. See United States v. Hayat,
710 F.3d 875, 895–96 (9th Cir. 2013) (describing circumstances
1
In addition, statements admissible for one purpose, but
not for another, must be scrutinized for probative value and
risk of prejudice under Rule 403 of the Federal Rules of
Evidence. Consistent with this requirement, some courts
analyzing a statement under Rule 803(3) have inquired whether
the declarant had the motivation or opportunity to misrepresent
the relevant state of mind, such as when a criminal defendant,
knowing that he is under investigation, gives a non-spontaneous,
self-serving statement about his own state of mind. See Wagner
v. County of Maricopa, 747 F.3d 1048, 1052–53 (9th Cir. 2013);
United States v. LeMaster, 54 F.3d 1224, 1231 (6th Cir. 1995);
United States v. Neely, 980 F.2d 1074, 1083 (7th Cir. 1992).
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in which a description of past intent could also be understood
as communicating present intent).
Given the “fact-sensitive” inquiry necessary for
application of the state of mind exception, Rivera-Hernandez,
497 F.3d at 81, it is paramount that the proponent inform the
court in an offer of proof the substance of the evidence sought
to be admitted, unless that substance is apparent from the
context of the request. Fed. R. Evid. 103(a)(2). The purpose
behind this requirement is twofold. First, an offer of proof
informs the trial court of the content of the evidence and of
its relevance to the case, which enables the court to make an
informed evidentiary ruling. See, e.g., Henry v. Wyeth Pharms.,
Inc., 616 F.3d 134, 151–52 (2d Cir. 2010); Perkins v. Silver
Mountain Sports Club & Spa, LLC, 557 F.3d 1141, 1147 (10th Cir.
2009); Polack v. Comm’r of Internal Revenue, 366 F.3d 608, 612
(8th Cir. 2004). Second, the offer of proof permits the
appellate court to evaluate whether the exclusion of evidence
affected the substantial rights of the party seeking its
admission. See, e.g., Perkins, 557 F.3d at 1147; Polack, 366
F.3d at 612.
In the present case, Liu failed to proffer the specific
statements that she sought to introduce into evidence, and the
context in which the statements arose did not render apparent
the substance of the excluded evidence. Without offers of proof
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concerning the excluded testimony, the record does not provide
sufficient detail to determine whether Liu’s statements to
Outtrim, Hu, and Zhao were admissible under the state of mind
exception. Liu did not proffer details about the substance of
the excluded statements, or about the times or contexts in which
the statements at issue were made. Therefore, we are unable to
determine whether the statements described Liu’s “then-existing”
state of mind. See Fed. R. Evid. 803(3). Nor are we able to
determine whether the statements were cumulative or unfairly
prejudicial, or whether an expressed intent to return WLR to the
United States at an indefinite time had probative value with
respect to the critical issue of Liu’s intent to obstruct
Ruifrok’s parental rights. See Fed. R. Evid. 403. Accordingly,
in the absence of the necessary proffers, we cannot determine
whether the district court abused its discretion in excluding
Liu’s statements regarding her intent and the purpose of her
international travel.
Next, we disagree with Liu’s contention that the district
court should have admitted her mother’s statements about their
travel plans. After Liu was arrested, FBI Special Agent Tonya
Sturgill questioned Liu’s mother, who explained that she
intended to return to the United States with WLR “in just a few
months.” Although proffered to the district court, the mother’s
statements were inadmissible because they were statements about
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past intent or memories. Rule 803(3) explicitly excludes
hearsay statements about memories offered “to prove the fact
remembered.” Fed. R. Evid. 803(3); Shepard, 290 U.S. at 105–06.
Liu’s mother’s statements were made after the aircraft returned
to Dulles and after Liu was arrested. Any statements about
Liu’s mother’s travel plans would have described her state of
mind hours or days earlier, rather than a “then-existing” state
of mind. See Fed. R. Evid. 803(3). Accordingly, we conclude
that the district court did not abuse its discretion by
excluding from evidence Liu’s mother’s statements.
B.
Liu also challenges the district court’s decision refusing
two of her proposed jury instructions. We review the adequacy
of the court’s jury instructions for abuse of discretion.
United States v. Sonmez, 777 F.3d 684, 688 (4th Cir. 2015). In
order to establish that a district court abused its discretion
in rejecting proposed jury instructions, a defendant “must
demonstrate that her proposed instructions (1) were correct, (2)
were not substantially covered by the charge that the district
court actually gave to the jury, and (3) involved some point so
important that the failure to give the instructions seriously
impaired the defendant’s defense.” Id. (internal quotation
marks and brackets omitted).
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According to Liu, the district court should have given the
jury a separate explanation that the “parental rights” Liu was
accused of obstructing included only physical custody rights,
and did not include Liu’s failure to obtain Ruifrok’s consent to
travel with WLR to China. Liu also argues that under the IPKCA,
the obstruction of parental rights must have been the
“principal, but-for, or driving reason” for her actions, and
that the district court should have instructed the jury to this
effect.
1.
We first address Liu’s argument that the district court
abused its discretion by declining to give her preferred
instruction regarding the IPKCA’s definition of “parental
rights.” 2 See 18 U.S.C. § 1204(b)(2). The term “parental
rights” is defined in the statute as meaning “the right to
physical custody of the child,” including “visiting rights,” and
2We disagree with the government’s contention that Liu
failed to preserve this issue for appeal. Liu proposed a jury
instruction defining “parental rights,” which the parties
debated during the charge conference, explicitly referencing
Ruifrok’s rights to “visitation” and “physical custody.”
Moreover, after reading the instructions to the jury, the
district court asked the parties whether they had any objections
“[o]ther than the objections we’ve already dealt with.” When
Liu’s counsel raised the “intent” issue again, the district
court responded “[y]ou don’t have to do that,” indicating that
the district court would not revisit its earlier rulings. On
these facts, we conclude that Liu properly preserved this issue
for appeal.
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can be defined “by operation of law, court order, or legally
binding agreement.” 18 U.S.C. § 1204(b)(2)(A); see also United
States v. Fazal-Ur-Raheman-Fazal, 355 F.3d 40, 45 (1st Cir.
2004) (looking to Massachusetts law to define “parental rights”
in the absence of any court orders or binding agreements).
In this case, both parties agree that the “parental rights”
at issue included Ruifrok’s right, conferred by a court order
and a legally binding agreement executed by Liu and Ruifrok, to
visit WLR every weekend. Liu asked the district court to
emphasize that the term “parental rights” in the IPKCA refers to
only physical custody rights, and does not include non-custodial
rights such as the right to notification before travel or the
right to deny consent for international travel. The district
court denied Liu’s request to give this additional jury
instruction.
Instead, the district court instructed the jury that
“parental rights” means “the right to physical custody, whether
joint or sole, and includes visitation rights.” Thus, Liu’s
proposed description of “parental rights” was “substantially
covered” by the instructions given to the jury. Sonmez, 777
F.3d at 688. The district court’s jury instructions made clear
to the jury that the parental rights at issue were only physical
visitation rights. Accordingly, the district court did not
16
abuse its discretion in declining to instruct the jury using
Liu’s preferred definition. 3
2.
Liu also challenges the sufficiency of the district court’s
jury instructions on the element of “intent to obstruct.” Liu
argues that the government was required to prove that she acted
with a “significant purpose” of obstructing Ruifrok’s visitation
rights, and that the district court’s instructions did not
address this concept.
Rather than giving Liu’s proposed jury instruction, the
district court instructed the jury that the government must
prove beyond a reasonable doubt that “the defendant [acted] with
the intent to obstruct the lawful exercise of parental rights.”
The district court elaborated that “you must find that the
defendant acted deliberately with the purpose of interfering
with the parental rights of the other parent.” By instructing
the jury in this manner, the district court “substantially
covered” the content of Liu’s proposed instruction that the
government was required to prove that Liu intended by her
3We also observe that the government’s closing argument
emphasized that the only parental rights at issue were Ruifrok’s
physical visitation rights. The government explained that the
term “parental rights” referred to Ruifrok’s right “to see his
son every weekend” and on certain holidays. The government also
stated many times in its argument that Liu was accused of
obstructing Ruifrok’s right to weekend visitation.
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actions to interfere with Ruifrok’s parental rights. See
Sonmez, 777 F.3d at 688. Therefore, we hold that the district
court did not abuse its discretion in refusing Liu’s
“significant purpose” instruction.
III.
For these reasons, we do not reach the merits of the issue
whether the district court abused its discretion in excluding
testimony from the various witnesses about Liu’s stated travel
plans. Further, we hold that the district court did not abuse
its discretion in excluding Liu’s mother’s statements, or by
denying Liu’s proposed jury instructions. We therefore affirm
the district court’s judgment.
AFFIRMED
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