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United States v. Homaune

United States District Court, District of Columbia

October 15, 2012

Kevin Hussain HOMAUNE, Defendant.

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Amy Helene Zubrensky, U.S. Attorney's Office, Washington, DC, for United States of America.


JAMES E. BOASBERG, District Judge.

Defendant Kevin Homaune and his former wife Jodi Reed have one daughter. In the summer of 2009, when Homaune and Reed were estranged but not divorced, the two agreed that he could take their child to Iran for six weeks to visit his family, then bring her back to Reed in the United States. Instead, Homaune and his daughter lived in Iran for more than two

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years despite Reed's continued protestations. As a result, he was charged with violating the little-used International Parental Kidnapping Crime Act, which proscribes retaining a child abroad (who has been in the United States) with the intent to obstruct a parent's lawful exercise of physical-custody rights.

Homaune has now filed two separate Motions to Dismiss, asserting that his prosecution suffers fro a litany of defects. The constitutional complaints: Congress lacked the power to pass the statute, delays in the prosecution violated his right to a speedy trial, the law gave no fair warning that his conduct was illegal, and the bare Indictment ran afoul of the Fifth and Sixth Amendments. The statutory complaints: Homaune's alleged conduct did not actually violate the statute, the delay between his arrest and his arraignment flouted the Speedy Trial Act, and the Court should at least order a bill of particulars. Although the cornucopia of objections here might suggest a kitchen-sink approach, these objections are in fact uniformly reasonable and weighty. At the end of the day, however, the Government has the better of each argument. The Court will therefore deny Homaune's Motions.

I. Background

While the Motions here focus on legal questions arising from the Indictment, the Court begins with a brief overview of the facts (undisputed, except as noted) to orient the reader. The ensuing procedural-background section will frame the speedy-trial analysis.

A. Factual Background

Homaune— a dual citizen of Iran and Canada— met Reed online while he was living in Canada. After Reed— an American citizen who lived near the Canadian border— became pregnant, the couple married in May 2002. Their daughter M.H. was born in November 2002.

Homaune and Reed stopped living together in February 2003. Although the couple never made formal legal arrangements to settle custody, M.H. remained with her mother while Homaune worked as a truck driver. M.H. and Reed eventually settled in Virginia. Reed sponsored Homaune's successful application for a Green Card so that he could regularly visit M.H. Usually he visited every few weeks, but at times the gaps between visits would stretch to months. When M.H. grew older, Homaune and M.H. sometimes took weekend- or week-long vacations together without Reed.

Reed and Homaune agreed to a longer excursion in 2009. With Reed's blessing, Homaune took M.H. to Iran on May 29, 2009, to meet his family. Homaune and Reed settled on a six-week trip, meaning that Homaune should have returned from Iran with M.H. on July 9. But Homaune and M.H. did not return then— or for the next two years. The parties' explanations for this lapse diverge. According to the Government, Homaune planned to keep M.H. and raise her in Iran. According to Homaune, Iranian officials barred him and M.H. from leaving the country. Who is correct will ultimately be determined at trial.

While Homaune and M.H. were in Iran, Reed obtained a custody order in 2010 from the Circuit Court for the County of Albemarle, Virginia, granting her full legal and physical custody of M.H. until further order of the Court. She also obtained an order of divorce from the same court.

In August 2011, Homaune traveled to Turkey with M.H., where they planned to meet Reed. (The parties disagree about whether Homaune intended to let M.H.

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return to the United States with Reed or simply to let M.H. visit with Reed in Turkey.) After he crossed the border, Turkish officials detained Homaune and returned M.H. to Reed.

B. Procedural Background

The Government filed a Sealed Criminal Complaint against Homaune on October 28, 2010, and secured an arrest warrant on November 1. It then sought and obtained a Red Notice from the international police organization INTERPOL, asking other countries to arrest Homaune so that the United States could extradite him.

Homaune was first detained in this case when he crossed into Turkey around August 4, 2011. According to Homaune, Turkish authorities held him for three nights. He claims that he was never told about an American warrant for his arrest or pending charges against him in the United States. The Government's efforts to extradite Homaune while he was in Turkey failed, although Homaune questions the competence of those efforts. Homaune returned to Iran about a week after he had arrived in Turkey.

Homaune next popped up in Germany on May 20, 2012. German officials again detained Homaune pursuant to the INTERPOL Red Notice, and the United States sought extradition the next day. This time, Homaune apparently learned of the charges. The parties agree that Homaune waived objections to extradition on May 24. According to the Government, however, he tried to revoke his waiver around June 5, forcing a German court to hold a hearing. Around June 11, the German court found his waiver irrevocable. German authorities transferred custody of Homaune to the U.S. Marshals Service in Germany on June 28. That same day, a Grand Jury in this District returned an Indictment charging him under the International Parental Kidnapping Crime Act. On June 29, 2012, Homaune was arraigned here, and he remains detained pending trial of this matter.

II. Analysis

The one-count Indictment charges Homaune with international parental kidnapping, in violation of 18 U.S.C. ยง 1204. That statute provides:

(a) Whoever removes a child from the United States, or attempts to do so, or retains a child (who has been in the United States) outside the United States with intent to obstruct the lawful exercise of parental rights shall be fined under this title or imprisoned not more than 3 years, or both.
(b) As used in this section—
(1) the term " child" means a person who has not attained the age of 16 years; and
(2) the term " parental rights", with respect to a child, means the right to physical custody of the child—
(A) whether joint or sole (and includes visiting rights); and
(B) whether arising by operation of law, court order, or legally binding agreement of the parties.

According to the Government, Homaune retained M.H. (who has been in the United States) in Iran with the intent to obstruct Reed's lawful exercise of parental rights. See Indictment, June 28, 2012.

The Court's analysis will begin with sections covering Defendant's challenges to the Indictment itself: Congress's authority under the Commerce Clause to enact such a law (Section A), whether Homaune's actions here can constitute a crime (Section B), and whether the Indictment is sufficient (Section C) or requires a bill of particulars (Section D). The Court will then move to Defendant's arguments about the

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delay before trial (Section E), coving claims under both the Speedy Trial Act (Section E.1) and the ...

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