the support of all elizabeth pollock of the federal defender's office on behalf of nicole eason this is a very interesting case legally since it appears that there is very little precedent and from any circuit that addresses this type of factual situation but before we get started talking about how these facts are applied under the current law i want to make sure we're talking about the same facts in the brief that the government filed a new theory was advanced one that i don't recall from trial in which the transcripts bear out was fair if passing in passing raised during a couple of moments in the transcript there really was no argument to the jury that the minor victims alleged in this case were girl who was kidnapped or allegedly kidnapped the convictions were reversed but she was a fifteen year old with the mental capacity of a seven year old and she was the person who was lied to deceived convince to come and live in the celestial marriage and then the  court asked the question well could she then be held against her will if she was a minor and the court found in that case no evidence that she was not capable of forming consent and said that if there were a particular issue regarding the age of the victim not being able to have a cognizable will then that would be directed to the jury to find as an element and in all of the cases i'm no look my my problem is that he doesn't show horrors i understand there's a legal matter you don't matter what a minor wheel is about where he or she lives the legal decision is made by the parent or guardian minor can think what she wants but she has no authority to make a binding decision i understand what that what you're saying and i think that that is not the factual situation in and in kidnapping cases because when a person when a defendant kidnaps a child by invading meant or by carrying away or in any other fashion the defendant the criminal is addressing their conduct to that child and saying hey get in my car i have a treat for you or or just lifting them up and carry on and when i hear there's a straightforward case plan if somebody goes to the airport  and the trial is going to take an unaccompanied flight to los angeles the airline promises to provide somebody to accompany the truck to somebody else impartial nates the airline employee gets custody of the trial by trick and then doesn't deliver the child in los angeles right the child is not tripped the child is relying on his or her parents your view is that can't be kidnapping because the trick is played on the parent rather than the child you know and that seems well it's implausible there's a second element that is required under the kidnapping statute and that is that the child be held against their will and not using separate element it is we first have to figure out whether tricking the parent to get the parent to give up custody to this fake airline employee can satisfy the invigoration test and you can't answer that by talking about held against will so let's talk about the environment part ok would be that the child's custody was procured by fraud based on a misrepresentation of the airline employee to the chairman or the airline employee my hypothetical was that somebody pretends to be an airline employee tricks the parent into giving up custody to that person and then doesn't return him in los angeles as the early employee would have done that would be deception by fraud so in that case yes i agree that the still kidnapping it's kidnapping if they took the child in a way that meets the definitions under the statute and what the statute says is that a defendant must kidnap decoys invade the etc the victim then hold the parents or whatever didn't want to very much or couldn't handle that's true until the group cross country preying on these people and then i don't know what the child thinks when they get somewhere else apparently it was good where they were many statute state statutes but it is not kidnapping because in order for it to be a kidnapping the victim him or herself must be in bagel to court carried away etc and held against their will this is a totally different circumstance because we're talking about the fraud that the psychological deception that led the parent to give up the child albeit under false pretenses voluntarily what your honor is referring to a different because it's an actual kidnapping statute is meant i don't understand the difference matching the baby and saying to the parents oh there's something terribly wrong with here with your child i can see it on his face you know saying but there's two sections of the statute that must be satisfied if and that was sort of like the example of the government used in closing that if a mother was sick and tired on the street and a person pulled up to her car and said oh your child is thinking i know there's  no that's not true in this case at all so it cannot be all that extends to a situation where let's say a parent receives a brochure from a summer camp and it's got beautiful pictures and they send an e mail and it says oh this is a wonderful summer camp send your child here it's going to cost two thousand dollars but the camp itself is terrible and there's nowhere just when and the kids are dirty and they have to share bunks and it's a miserable situation and the camp has lied to the parents to get the children to come to the camp but all the time adoption laws it could be any number of things it could be fraud on the on the state for procuring illegal benefits but it isn't kidnapped because at all times these parents kidnapping implies that a person is detained against their will held can find hidden somehow what happened in this case is that yes the parents were lied to and they sent their children to live with the easton's but at all times the parents knew where the children were located had access to them by telephone and computer and when they found out the truth which was that the users were not who they represent themselves to be the parents came and picked them up that's not kidnapping they're not holding them or confining them against their will or hiding them from their parents or preventing their parents from coming and picking them up kidnapping is when you lie to somebody or you or you carry somebody away against their were calling him one of your group kids they did and they searched online for places to get rid of them too and they came up with my client who had made false statements on the internet and she  and we never disputed that but the fact of the matter is is that this could end up applying to so many different situations whenever a person makes a representation to a parent and then the parent lets their child go somewhere with that person but the whole is always required it says any person who is any of those things and then that same person being the person held it doesn't say you can and bagel or decoys a third party and then a teen someone and then pull that third person and have that be kidnapping the person in the statute the person who is invaded the porter what have you is also the person who is helped and every single case in existence has recognized that when you're talking about what kidnapping is there simply is no who is incapable of being deceived can't you not without the rest of the  of sense because it implies that kidnapping a small baby is not kidnapping because the baby doesn't know this the something wrong going on that's not at all that is your position no it is not my position is the victim that must also be the person held my argument is that any of the elements of the kidnapping statute if apply to the victim it must be the same person who is subject to the kidnapping act and then also invaded the parents and held the minor victims that would satisfy the statute there's not only language in chatman to that fact suggesting that as judge easterbrook pointed out parents often in the last stand in for their minor children but it seems to me to cause problems for the prosecution on the hold portion because the victim has to be held against his will so once we decide that they will in question that the decision is being made by the parent doesn't it follow that you have to show that the child was killed against the parents will i think that's a a logical reading of the statute and i think the net result was there evidence in this case or was the jury told that to find kidnapping it had to find that the kids were held against the parents will on the on the whole element and no they were not specifically told that but there was plenty of evidence to that effect as we point out you know  we have to deal with the problems of jury verdicts right the jury was not told that in order to convict it had to find that the children were held against their parents will isn't that a problem no i  don't think so again because the language that the jury was charged with followed the statute but even if that was the problem our argument would be that it was harmless because there was plenty of evidence and again were considering the light the evidence in the light most favorable to the jury's verdict undisputed when the parents were foster parents ask you have the kids back the defendant promptly handed them back that is not disputed no when the parents of minor victim one sought to get mi but if the jury was never asked to resolve it so very difficult they were here after a jury verdict however and again the evidence being construed in the light most favorable to the jury verdict is that the the adopt parents had they known the truth would not have consented that is different from the in bigamy portion invading it was certainly what enabled the defendant to get custody of both minor victim one and minor victim two but once then the defendant has custody of each of the minor victims there has to be hold of me so i mental or physical restraint for some appreciable period of time after both of the minor victims were in the defendant's custody the defendant continued to send out deception deceptive communication suggesting that home study was coming suggesting that it could both cases it was about a home study or in one case it was a recommendation that was fabricated that's not in vegas meant to procure custody of the minor victims that's invasion meant to ensure that she can continue to hold the children and so that is what shows that the parents never consented or to the extent that they could have consented  procured through deception which is very clear is not in fact consent now i also want to back up to a point that the defendant's counsel here started with which is that the government never proceeded under a theory  that both the parents and the minor victims were invaded in fact that's not true that was a matter of argument at pages nine fifty two nine fifty two of the closing argument and ninety eight of the rebuttal i'm interested in how far you want to take this mean jones promises to smith to love honor and obey or as a result of which smith mary jones moves in with but those are lives he doesn't really love agreeing to obey or is that kidnapping i mean there's there's a deception but i don't see what the hold or what the ransom use or the psychological tricks to get her not to move out a month later the tricks wear thin and she moves out your whole argument is that psychological tricks are an off right show we have in my hypothetical there is just steps to get the second person to agree to live with the first person and psychological tricks to keep her there for a period is that the federal crime of kidnapping again assuming a jurisdictional element has been satisfied and of the hypothetical you know after after they marry they move to  india i think if that holding is it we can establish that it was for ransom or reward or otherwise if there's some benefit that flows through i think it is conceivably it meets the statutory elements i don't think there's any prosecutor that i'm that when one spouse lies to another about promises of law that obedience and they live together perhaps because those promises are continued that's kidnapping  congress use particularly comprehensive language because it understood that these kidnapping scenarios take all sorts of different look very differently and granted that broad language may capture things that would not  as i could imagine ever be prosecuted but it was designed to capture a situation like this where a defendant is reaching across the country using the internet fabricating a preying on the most vulnerable of victims and now judgment and you raised the question sort of what was the rol of the adoptive parents here and there certainly was some testimony to suggest or some evidence to suggest they may not have you know what their relationship to the minor victims is not a particularly good one but here we are at a point and the district court acknowledged that as well and said listen maybe they some you know there was some criminal conduct on their behalf but here a construe in the evidence as we do we're considering the conduct of the defendant and the defendant doesn't dispute the overwhelming amount of investment and then finally to get back to this point that indignant was directed also at the minor victims i cited earlier places in the argument the court can go and look at in the closing argument where the where the government raise that deceiving the kid this is normal this is what usual even though they're sexually abusing them doing all sorts of things they see the problem here is not only that this is what i consider pretty horrible they also got four hundred eighty months in prison this is a pretty big conviction and pretty big sentence and it's not necessarily i deserve it just that you know we've got to sort this out and make sure it's into the kidnapping issues are going to brings up she's trying to say hey this is g and you're saying it is and it would be in the narrow viewpoint based on all of these and since we're talking about that i look at the kid and her disabled they have kidnapping twenty year concurrent sentences on those count two is for transportation of two with the intent to engage in unlawful sexual activity under illinois law that was the source of the forty year four we argue that the courtship should affirm those but none of the kidnapping arguments apply to that count to conviction which drives the sentence so even you know even where the court to find some trouble with those convictions that would not affect the defendant's four hundred eighty month talking briefly about that that the evidence of upholding here as i mentioned in the recall appeal with judge easterbrook there's there was evidence that it was against the consent of the parents it was also it it's the consent or the holding of the minor victims the fact that they could go to school is the sensually are irrelevant i mean the defendant targeted them because they were minors and vulnerable she used physical abuse against minor victim one she essentially stifled the communications of minor victim to unit in our view that is the degree of psychological force that would achieve the holder would establish the whole element under the final point unless of course that the court has questions there are uncomfortable ramifications to the different ways to protect that she thought but you know argue the fact that defendants would allow a situation where a six month old a parent of a six month old who is looking to pirate a nanny says you know who gets fabricated documentation from the nanny hires the nanny on that basis drives the baby to the nann person lies to a mother of a six month old gets custody of a six month old and then says you have to pay me a ransom or i'm not getting the kid back that would meet the requirements of the statute because the child i'm totally unable to even form a thought at that point your honor brought up the issue of whether or not this would be applicable in child bride situations which is interesting because that is exactly the factor of chapman the leading case from after the after the lindbergh baby was kidnapped in the law was passed that was a fifteen year old with the mental that the victim referred to under the statute is the same and if you look at chat right which shows you have no investment and no carrying away but a later ransom demand which is on your view there is no kidnapping if it i didn't challenge the sense that i challenge the basis of count tooth conviction based on the argument with regards to counts one and three so for example there was a lot of extraneous evidence admitted under rule for a for b concerning the motive and intent for both the kidnapping and the travel with intent now if you'll recall from the record there was one incident one alleged digital kind of and of minor victim one having on one occasion the rest of the abuse was perpetrated by the other defendant who is not an issue in this case so the argument is that if legally you cannot kidnap this is not a kidnapping case then all of the evidence that was admitted to prove intent motive at several with regards to the kidnapping which was also conflated with the intent motiv her travel with intent then there is simply no clear basis that evidence would have been admitted at trial and we need a remained to address that so if we did not challenge the length of the sentence but we did challenge the basis for the evidence that was admitted to pro court reverses the kidnapping invitations a retrial is warranted on the transportation of a minor charge where multitudinous evidence was admitted show the defendant's mot r well what happened was there was a lot of evidence admitted with regards to other children throughout the course of the trial we objected to the admission of that evidence on grounds of four or b and prejudice the court the district court admitted much of that evidence for two reasons one to show motive and intent for the kidnappings and second to show motive and intent for the trouble with intent that evaluation was based on all three counts combined if the first two count go away and the kidnapping counts are reversed then there was a lot of evidence that was conceivably admitted with regards to counts one and three which should not have been admitted which would have swayed the jury with regards to count two and we have no way of knowing that so that's why i