United States v. Salih Zeki Uces

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 10, 2018
• Docket: 17-13893
• Status: Unpublished

Opinion

Case: 17-12894 Date Filed: 08/10/2018 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

Nos. 17-12894; 17-13893 Non-Argument Calendar ________________________

D.C. Docket No. 3:16-cr-00182-MMH-PDB-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

SALIH ZEKI UCES,

Defendant - Appellant.

________________________

Appeals from the United States District Court for the Middle District of Florida ________________________

(August 10, 2018)

Before MARTIN, JORDAN, and JILL PRYOR, Circuit Judges.

PER CURIAM: Case: 17-12894 Date Filed: 08/10/2018 Page: 2 of 9

A jury convicted Salih Uces of one count of international parental

kidnapping, see 18 U.S.C. § 1204, for removing or retaining his daughter outside

of the United States with the intent to obstruct the parental rights of his daughter’s

mother, Esra Memili. Mr. Uces raises two issues on appeal. First, he argues that

the district court constructively amended the indictment by including the term

“knowingly” in the jury instructions as an element of § 1204. He contends that the

addition of this term allowed him to be convicted “based solely on his knowingly

removing or retaining his child” without regard to the “intent to obstruct another’s

parental rights.” Second, he argues that, because he and Ms. Memili had equal

parental rights, a conviction for removing the child is legally insufficient and,

therefore, he should receive a new trial. After careful review, we affirm.

I

We address first Mr. Uces’ contention that the district court constructively

amended the indictment by inserting the term “knowingly” into the jury

instructions. No objection was made at trial, so we review only for plain error.

See United States v. Madden, 733 F.3d 1314, 1321 (11th Cir. 2013). Mr. Uces

must demonstrate that “(1) an error occurred, (2) the error was plain, and (3) the

error affected substantial rights.” United States v. Felts, 579 F.3d 1341, 1344 (11th

Cir. 2009) (citing United States v. Olano, 507 U.S. 725, 732 (1993)). “There can

be no plain error where there is no precedent from the Supreme Court or this Court

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directly resolving an issue.” United States v. Sammour, 816 F.3d 1328, 1337 (11th

Cir. 2016) (alterations adopted). “A constructive amendment occurs when the

essential elements of the offense contained in the indictment are altered to broaden

the possible bases for conviction beyond what is contained in the indictment.”

Madden, 733 F.3d at 1318 (quotation marks omitted).

The crime of international parental kidnapping occurs when one “removes a

child from the United States . . . or retains a child (who has been in the United

States) outside the United States with the intent to obstruct the lawful exercise of

parental rights.” 18 U.S.C. § 1204. Mr. Uces’ indictment tracked that statutory

language. See D.E. 12. When instructing the jury, the district court explained that

Mr. Uces could be found guilty if the government proved the following elements

beyond a reasonable doubt:

First, that the child was previously in the United States;

Second, that Salih Zeki Uces, either:

(a) knowingly took the child from the United States to another country; or

(b) beginning on or about September 16, 2016, until on or about November 10, 2016, knowingly retained the child outside the United States; and

Third, that Salih Zeki Uces, acted with the intent to obstruct the lawful exercise of another person’s parental rights.

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D.E. 61 at 7–8. The district court also instructed the jury on the meaning of

various terms, including the term knowingly, which was defined as “voluntarily

and intentionally and not because of a mistake or by accident” but did not require

that Mr. Uces knew that “he was violating a criminal law.” Id. at 12.

During deliberations, the jury asked two questions, with the second question

specifically focusing on when “the act of intent to obstruct the lawful exercise of a

person’s parental rights [has] to occur.” D.E. 58-1 at 5. The district court

responded that it was “not entirely sure what you are referring to as ‘the act of

intent’” and provided an additional instruction:

Consistent with [the prior jury instruction], Mr. Uces can be found guilty of this offense only if:

A. the Government proves beyond a reasonable doubt 1. that the child was previously in the United States; 2. that Mr Uces knowingly took the child from the United States to another country, and 3. that in doing so, he acted with the intent to obstruct the lawful exercise of another person’s parental rights;

Or

B. the Government proves beyond a reasonable doubt 1. that the child was previously in the United States; 2. that beginning on or about September 16, 2016, until on or about November 10, 2016, Mr. Uces knowingly retained the child outside the United States, 3. that in doing so, Mr. Uces acted with the intent to obstruct the lawful exercise of another person’s parental rights.

Id. at 6.

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Although he did not object to any of these instructions at trial, Mr. Uces now

contends that the insertion of the term “knowingly” constructively amended the

indictment and would allow the jury to convict him solely for knowing removal or

retention without the intent to obstruct Ms. Memili’s parental rights. We disagree.

Accepting this argument would require us to violate two cardinal rules. First, it

asks us to assume that the jury completely ignored the instruction on the intent to

obstruct the parental rights element, when “we must presume that juries follow

their instructions.” United States v. Roy, 855 F.3d 1133, 1186 (11th Cir. 2017) (en

banc). See also Olano, 507 U.S. at 740 (“We presume that jurors, conscious of the

gravity of their task, attend closely the particular language of the trial court’s

instructions in a criminal case and strive to understand, make sense of, and follow

the instructions given them.”) (alterations adopted). Second, it asks us to look at

the jury instructions in isolation. To the contrary, “instructions must be evaluated

not in isolation but in the context of the entire charge” and “there is no reason for

reversal even though isolated clauses may, in fact, be confusing, technically

imperfect, or otherwise subject to criticism.” United States v. Gonzalez, 834 F.3d

1206, 1222 (11th Cir. 2016). See also United States v. Park, 421 U.S. 658, 674–75

(1975) (“[I]n reviewing jury instructions, our task is to view the charge itself as

part of the whole trial. Often statements taken from the charge, seemingly

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prejudicial on their face, are not so when considered in the context of the entire

record of the trial.”) (quotation marks omitted).

The term “knowingly” may have indeed been unnecessary. As Mr. Uces

notes, it is unlikely that a parent could act with the requisite intent to obstruct

parental rights without knowingly removing or retaining his or her child outside

the United States. Such removals are unlikely to happen by mistake or accident.

Its inclusion did not, however, broaden the bases for conviction because the jury

was consistently reminded that it could only convict Mr. Uces if it found that he

“acted with the intent to obstruct the lawful exercise of another person’s parental

rights.” See D.E. 61 at 7–8 (original jury instruction); D.E. 58-1 at 6 (response to

jury question). Beyond this, Mr. Uces has not pointed to any precedent that would

establish that the inclusion of “knowingly” was error, so he has not met his burden

to show plain error. See Sammour, 816 F.3d at 1337.

II

We next address Mr. Uces’ argument that a conviction based on the theory

of “removal” is legally insufficient because he and Ms. Memili had equal parental

rights. Mr. Uces admits that the alleged error was not objected to at trial, so we

review for plain error. See Madden, 733 F.3d at 1321. The government contends

that Mr. Uces’ argument is actually a challenge to the sufficiency of the evidence

which, because he did “not move for acquittal or otherwise preserve an argument

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regarding the sufficiency of the evidence” we “will reverse the conviction only

where doing so is necessary to prevent a manifest miscarriage of justice.” United

States v. Fries, 725 F.3d 1286, 1291 (11th Cir. 2013). Under either theory, Mr.

Uces’ challenge fails.

First, the fact that Mr. Uces had equal parental rights does not render the

removal theory legally insufficient. “Congress enacted the International Parental

Kidnapping Crime Act in 1993 to ‘deter the removal of children from the United

States to foreign countries in order to obstruct parental rights.’” United States v.

Newman, 614 F.3d 1232, 1235 (11th Cir. 2010) (quoting H.R. Rep. No. 103-390,

at 1 (1993)). The statute makes clear that it prohibits both removal and retention of

a child outside the United States if it is done “with the intent to obstruct the other

parent’s lawful exercise of his or her parental rights.” Id. at 1236 (citing 18 U.S.C.

§ 1204(a)) (emphasis added). Mr. Uces’ argument that there can be no violation of

§ 1204 because he had equal parental rights misreads the statute. The statute

criminalizes his intent to obstruct Ms. Memili’s parental rights—i.e., time sharing

and access to her daughter—without regard to whether or not Mr. Uces also had

equal parental rights. See 18 U.S.C. § 1204(b)(2) (defining “parental rights” to

include “the right to physical custody of the child [ ] whether joint or sole (and

includes visiting rights)”) (emphasis added). See also United States v. Fazal-Ur-

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Raheman-Fazal, 355 F.3d 40, 46 (1st Cir. 2004) (“That [parents] shared custody of

their children is of no import under [§ 1204].”).

Second, construing this challenge as one to the sufficiency of the evidence,

ample evidence supports the jury’s guilty verdict. Mr. Uces asked to have the

couples’ daughter stay with him for the weekend of September 16, 2016, and sent

Ms. Memili a reservation for a Red Roof Inn in Jacksonville, where he said they

would be staying. See D.E. 98 at 172–73, 183. In fact, Mr. Uces had already

purchased tickets to Turkey, see D.E. 100 at 88, and told the hotel not to disclose

that he did not check in, see D.E. 99 at 65. Other evidence at trial is inconsistent

with Mr. Uces’ theory that the trip was a mere vacation. Mr. Uces’ computer

revealed web browsing history on child custody laws, child abduction, and

international treaties. See id. at 188–90. He did not book a return flight to

Jacksonville and did not board his return flight from Turkey to New York. See id.

at 159–64. He also had given his brother power of attorney to sell his car in the

United States and terminated the rental agreement on his safety deposit box right

before flying to Turkey. See id. at 170, 198. See United States v. Miller, 626 F.3d

682, 691 (2d Cir. 2010) (sufficient evidence to support conviction under § 1204

where evidence was presented to show that the defendant remained in Canada

despite knowledge of court orders granting husband parental rights).

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Because sufficient evidence viewed in the light most favorable to the jury’s

verdict supports Mr. Uces’ conviction, it is clear that he has failed to show that

there has been a manifest miscarriage of justice. See Fries, 725 F.3d at 1291

(noting that the manifest miscarriage of justice standard “requires us to find either

that the record is devoid of evidence of an essential element of the crime or ‘that

the evidence on a key element of the offense is so tenuous that a conviction would

be shocking’”) (quoting United States v. Milkintas, 470 F.3d 1339, 1343 (11th Cir.

2006)).

III

For the foregoing reasons, we affirm Mr. Uces’ conviction.

AFFIRMED.