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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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Nos. 17-12894; 17-13893
Non-Argument Calendar
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D.C. Docket No. 3:16-cr-00182-MMH-PDB-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SALIH ZEKI UCES,
Defendant - Appellant.
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Appeals from the United States District Court
for the Middle District of Florida
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(August 10, 2018)
Before MARTIN, JORDAN, and JILL PRYOR, Circuit Judges.
PER CURIAM:
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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.
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