PUBLISH UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. BOGDANA ALEXANDROVNA MOBLEY, a/k/a BOGDANA ALEXANDROVNA OSIPOVA, Defendant - Appellant. No. 19-3122

_________________________________ Appeal from the United States District Court for the District of Kansas (D.C. No. 6:17-CR-10142-EFM-1)

_________________________________ Katryna Lyn Spearman (Joshua Sabert Lowther with her on the briefs), of Lowther Walker LLC, Atlanta, Georgia, for Defendant-Appellant. Jason W. Hart, Assistant United States Attorn ey (Stephen R. McAllister, United States Attorney, with him on the briefs), Wichita, Kans as, for Plaintiff-Appellee.

_________________________________ Before HOLMES , SEYMOUR , and PHILLIPS , Circuit Judges.

_________________________________ PHILLIPS , Circuit Judge.

_________________________________ FILED United States Court of Appeals Tenth Circuit 

### August 21, 2020 Christopher M. Wolpert Clerk of Court2 In April 2014, a pregnant B ogdana Alexandrovna Osipova 1 took her young son and daughter to Russia, l eaving behind ongoing divorce proceedings in Kansas. By doing so, Osipova deprived Brian Mobley, her soon-to-be ex-husband and the father of her daughter and unborn child, of his joint-custody rights under the Kansas court’s temporary custodial order. In Russia, Osipova soon gave birth to a girl and instituted her own divorce proceedings. The Russian court ordered Mobley to pay monthly child support. But by then the Kansas cour t had already awarded Mobley full custody of their two daughters, and he steadfastly refused Osipova’s reque sts that he pay the Russian court-ordered child support. Ev entually, in September 2017, Osipova

returned alone to the United St ates on an ill-fated quest to modify the Kansas order. The FBI promptly arrested Osipova, a nd she has been incarcerated since. The government prosecuted Osipova fo r international parental kidnapping, 18 U.S.C. § 1204, and extor tionate interstate communicat ions, 18 U.S.C. § 875(b). A jury convicted Osipova, and the district court sentenced her to three years on her parental-kidnapping conviction (the statut ory maximum) and to seven years on each

of her extortionate-communications c onvictions, all to run concurrently. On appeal, Osipova argues that the federal district judge should have

dismissed the indictment and recused himself from her se ntencing. We reject these arguments. But Osipova also argues that in sufficient evidence supp orts her § 875(b) convictions and that the court erred by aw arding Mobley restitution for attorney’s

1 We use the name that Bogdana is curre ntly using, her maiden name, Osipova, rather than her married name, Mobley, to avoid confusion.3 fees he incurred attempting to obtain phys ical custody of their two daughters. On these arguments, Osipova succeeds. Exercising jurisdiction under 18 U.S.C. § 3742(a)(1) and 28 U.S.C. § 129 1, we affirm in part and reverse in part. We vacate Osipova’s § 875(b) conv ictions and the restituti on order, and remand for resentencing. BACKGROUND Osipova was born in Russia. In 2003, as an adult, sh e immigrated to New York

where she married. This firs t marriage ended in a divorce in 2008 but produced a son over whom Osipova has full custody. In June 2011, Osipova briefly joined the Air

Force Reserve where she met Mobley, her recruiter, and they struck up a romantic relationship. When the Air Force transfer red Mobley to Wichita, Kansas, Osipova followed, and they married there in January 2013. That same month, they had a daughter, S.M. But fourteen months later Mobley filed fo r divorce. The Kansas state court entered a temporary order awarding th e parents joint custo dy over S.M. Under this order, Osipova retained the marital residence at M obley’s expense and Mobley had to pay child support. But Osipova, then about six months pr egnant with their second child, did not want a divorce. According to Mobley, she thr eatened to return to Russia with S.M. if he did not drop the divorce. Though Mobley was concerned that Osipova would take S.M., he proceeded with th e divorce. Then, “[o]n or about April 2, 2014,” Osipova, about seven months pregnant, flew to Russia with S.M. and her son. Appellant’s App. at 17. About two months later, Osipova gave birth to a girl.4 Meanwhile, the Kansas divorce proceed ings continued. Two weeks after Osipova left for Russia (so before she gave bi rth), the Kansas court held a hearing, at which Osipova’s counsel was present. Th e court awarded Mobley full custody of S.M. And in December 2014, after Osipova ga ve birth, the court granted the divorce, awarded Mobley primary physical and sole legal custody of both girls, and ordered Osipova to return the gi rls to Mobley’s custody. Osipova did not heed this order. By then, a Russian court had already granted her a divorce. And, in the spring of 2015, the Russian court awarded Osipova child sup port and residential cu stody of the girls. Mobley’s position in the military preven ted him from traveling to Russia, so

he tried to establish and ma intain a relationship with hi s daughters via telephone and video calls. In January 2015, he went to Po land to meet Osipova and the girls at the Poland–Russia border, but Osipova showed up alone. After this, M obley continued to use technology to try to communicate with his daughters—then, a toddler and an infant—and Osipova conditi oned the requested communi cations on his paying the Russian court-ordered child support. But M obley refused to financially support his daughters unless Osipova returned them to the United States. From November 2016 until her arrest, Osipova denied Mobley di rect communication with their daughters. In September 2017, Osipova left her child ren in Russia and traveled to Kansas to petition the court for sole legal custody of her daughters. The FBI quickly arrested her on a federal criminal complaint that charged international parental kidnapping, 18 U.S.C. § 1204, for allegedl y removing S.M. to and reta ining her in Russia. About two weeks later, a federal grand jury issu ed an indictment ch arging a single count,5 international parental kidnapp ing. Nine months later, the government filed a fivecount superseding indictme nt (the “indictment”) th at added four counts of

extortionate interstate communications , 18 U.S.C. § 875(b), based on Osipova’s allegedly threatening to kidna p S.M. (by continuing to re tain her in Russia) while intending both to obstruct Mobley’s parental rights and to extort money or things of

value. On the eve of her trial, Osipova moved to dismiss the indi ctment “because of its lack of specificity.” A ppellant’s App. at 21. The Ka nsas federal district court denied Osipova’s motion, concluding that the indictment met the applicable legal requirements and that Osipova faced no pr ejudice. So Osipova went to trial, conceding her guilt on the international- parental-kidnapping count but adamantly denying any intent to extort money or things of value in exchange for placing S.M. in Mobley’s physical custody in the United St ates. Osipova also ma intained that her communications lacked any “threat to kidnap,” an element of the charged

extortionate-communication crime. See 18 U.S.C. § 875(b). The jury returned guilty verdicts on the international-parental-k idnapping count and on two of the four extortionate-communication counts. Osipova timely moved the court to acquit her of

the extortionate-communication convictions or , alternatively, to grant a new trial on those counts (2 and 3), agai n arguing that her communicati ons lacked any threat to kidnap and implicitly denying any intent to extort. The relevant communications are provided here:6 Count 2 (Skype messages from August 27, 29, and 30, 2015) Mobley (August 27): “Can I please Skype with the kids?” Osipova: “Can you please pay for the girls’ Montessori class?” Mobley: “So you are saying that I cann ot see my children unless I give you money?” Osipova: “So I am saying that we live in Russia. I am 100 percent in compliance with Russian court orde rs, in which I have full custody and you have visitati on rights. You are also ordered to pay onethird of your total income to me as child support for [redacted] and [redacted] every month until they reach thei r 18th birthday. You are supposed to start making paym ents in November of 2014. Now is August 2015 and I didn’t receiv e not one payment from you. You missed 10 child support payments by now. And it’s no[t] going to go away. It’ll just going to built up! You can and should see your children, Brian! You also shouldstart to make child support payments ASAP. Mobley (August 29): “Can I Skype with the kids?” Osipova: “Yes, you can. You can also transfer the child support to my PayPal.” Mobley: “When can I talk to them?” Osipova: “As soon as you’ll start making child support payments.” Mobley: “And I told you that I am not sending yo u a dime until you bring them back to the U.S. I am done sendi ng you money.” Osipova: “And that’s the an swer to your question then.” Osipova (August 30): “If you want us ba ck in the U.S. next year, you’ll have to provide housing, car, and return all of my furniture, unless you’ll decide to buy us a new one, then you can keep mine.” 2

Count 3 (Skype message from November 21, 2015): Osipova: “We are not going to play yo ur games, Brian. I didn’t hide kids from you. You know where we liv e and you can have relationship with them. However, we have onl y few options that we are going to go. Since your children reside in Russia and Russi an family court appointed for the children certain child support, which you are not

2 The record and the government’s exhib it contain no context for this message. We cannot tell whether Osipova was res ponding to something Mobley said, or whether she messaged him this out of the bl ue after the previous day’s conversation. Context is important, and we lack it, as did the jury.7 paying for the whole year now, yo u can go ahead and start honoring the court order and support our ch ildren. The second route is that you can figure out and offer your amount of money as a child support for your two daughters thatI raise on my very own without a penny from their father (you) th e amount that you will be paying every month to raise our daughters. And I don’t care if you save anything and put it in their account for when they grow up. I am talking about child support that you should pay now every month until they reach 18 years old. If we come to an agreement or if you decide to go ahead an d honor the Russian ch ild support order we can establish schedule that will beconvenient for our daughters and you to Skype on regular basis, maybe meet in Poland every half a year or so, et cetera. And, of cour se, there is one more route, which is if you decide to neglect our daughters and not be financially involved in theirs upbringing, we will not have any further communication with you. And it will be all your fault. Now I want you to understand that I don’t care which route you choose. I don’t need a penny from you, but your daughters do.” Appellant’s App. at 116:16–117:1, 117:15–18 , 117:21–25, 118:15–23, 119 :1–5, 119:16– 120:19 (as read at trial by Mobley) (interna l quotation marks omitted). The district court concluded that, because Osipova sent these messages while retaining S.M. in Russia, a reasonable jury could conclude that Osipova had communicat ed a “threat to kidnap,”

which the court had instructed was a threat to “continu[e] to retain [S.M.] outside of the

United States with the intent to obstruct the lawful exercise of parental rights.” 3 Id. at 250

& n.5. So the court denied her motions.

3 The district court “added a descrip tion of kidnapping” to its § 875(b) instruction that it said it had pulled “largely” from the government’s proposed instruction. Appellant’s App. at 165:9–10. The governme nt’s proposed instruction listed as authority Tenth Circuit Criminal Pattern Jury Instructions Nos. 1.39 and 2.37 (2011). See United States’ Proposed Jury Instructions at 8, United States v. Mobley , No. 17-10142-EFM, 2019 WL 1384294 (D. Kan. Mar. 27, 2019). Tenth Circuit Criminal Pattern Instruction No . 1.39 defines “inter state and foreign commerce,” and Instruction No. 2.37 is the § 875(b) instruction. Neither of these instructions define the term “kidnap,” let alone define it as the government proposed.8 Then, about two months before Osipova’s sentencing hearing, her mother sent the court an e-mail asking whether it had received a letter Osipova had sent it. 4 On March 29, 2019, the judge responded to the mother by e-mail as follows: I received the letter, but under our procedures really can only respond as the Court to matters filed on the record by her attorney. As you know, her sentencing is se t for May 20. Her attorneys have been told several times that the sentencing will go very differently then depending on whether the children are ba ck in the U.S. or not. But I hope everyone realizes that once sentencing is pronounced on that date, there is no authority to change or modify th at sentence later, even if positive developments occur thereafter. Id. at 255. On June 4, 2019, two days before her rescheduledsentencing hearing, Osipova moved for the judge’s recusal under 28 U.S.C. § 455, arguing that this e-mail was an ex parte communication violating the Code of Conduct for U.S. Judges Canon 3(A)(4) and that it evinced the judge’s extreme bias re ndering him incapable of treating her fairly. The court denied the motion, concluding that the e-mail neither evinced bias nor was an

See Tenth Circuit Criminal Pattern Jury In structions Nos. 1.39, 2.37. Only two circuits have defined “kidnap” in their § 875( b) pattern jury instructions and, notably, neither supports the dist rict court’s definition. See Fifth Circuit Criminal Pattern Instruction No. 2.39 (2019) (“For the defini tion of ‘kidnap’ see Note to Instruction No. 2.54 on 18 U.S.C. § 1201(a).”); id. No. 2.54 (“To ‘kidnap’ a person means to unlawfully hold, keep, detain, or confine th e person against his [her] will and without his [her] consent. Involuntariness or co ercion in connection with the victim’s detention is an essential part of the offe nse.” (brackets in original)); Eighth Circuit Criminal Pattern Instruction No. 6.18.875B (2017) (“A person is ‘kidnapped’ when [he][she] is [kept][confined][detained] wi thout [his][her] consent and transported across a state line while [kep t][confined][detained].” (b rackets in original)).

4 The record does not include Osipova’s letter.9 ex parte communication, and that, even if it were an ex parte co mmunication, recusal

would be unwarranted. On June 6, the court sentenced Osipova —who had not secured the girls’ return

from Russia in the few weeks after the judge’s warning to her mother that Osipova’s sentencing “will go very differe ntly” if the girls were notin the United States. The government requested that the court orde r Osipova to pay Mobl ey restitution under 18 U.S.C. § 3663 for his attorney’s fees in curred in his unsuccessful attempt to bring the girls to the United States. Osipova obj ected, asserting that the court could not legally order restitution for these fees, beca use they were unrelat ed to the prosecution or the investigation of her offense. The court overruled her objec tion, concluding that the fees “are directly rela ted to the offense of convi ction,” and awarded Mobley $18,100 in restitution for the fees. Appellee’s Suppl. App. vol. I at 174:14–19. The government also requested that th e court sentence Osipova to 87 months’ imprisonment—the high end of the U.S. Se ntencing Guidelines Manual’s advisory range of 70–87 months. 5 Osipova faced a statutory ma ximum of three years on her international-parental-kidnapp ing conviction and of twenty years on her extortionatecommunications convictions. See 18 U.S.C. §§ 875(b), 1204(a). So she asked for a three-year sentence, argui ng that anything beyond that is “overrepresentative”

because “the conduct which constitutes the extortion counts are al most factually the

5 At the beginning of the sentencing hear ing, Osipova withdrew her objections to the Guidelines range, so the court adopted the prob ation officer’s calculation contained in the presenten ce investigation report.10 same as [the] kidnappi ng.” Appellee’s Suppl. A pp. vol. I at 222:22–223:1. The court sentenced Osipova to three years on the in ternational-parental-kidnapping count and seven years on the extortionate-communica tion counts, all to run concurrently. Osipova timely appealed. DISCUSSION Osipova asserts that the di strict court erred in fourways: (1) by not dismissing the indictment, (2) by sustaining her extor tionate-communications convictions, (3) by not recusing itself over the e-mail sent to her mother, and (4) by awarding Mobley restitution for his attorney’s fees. After identifying our st andard of review for each issue, we address th e issues in turn.

I. Standards of Review We generally review a district court’ s denial of a motion to dismiss an

indictment for an abuse of discretion. See, e.g. , United States v. Stevens , 881 F.3d 1249, 1252 (10th Ci r. 2018) (quoting United States v. Ambort , 405 F.3d 1109, 1116 (10th Cir. 2005)). But “when th e sufficiency of a charge is challenged, we review the

district court’s d ecision de novo.” 6 Ambort , 405 F.3d at 1116 (quoting United States

6 Osipova asserts that the district cour t concluded that “a jury could find [her] messages to be true threats” under the Fi rst Amendment and refused to dismiss the indictment (a decision we w ould review de novo). Appellant ’s Opening Br. at 8. But the record belies this assert ion. Osipova never raised a true-threat argument in the district court, and the c ourt did not address the issu e. She argued only that the indictment was not specific enough, and that is the is sue the court decided—finding the indictment sufficient and so refusing to dismiss it. To the extent she means to raise a forfeited true-threat argument on app eal for the first time , she has waived it by failing to explain how it su rvives plain-error review. See United States v. Garcia , 936 F.3d 1128, 1131 (10th Cir. 2019) (stating that arguments not raised before the district11 v. Giles , 213 F.3d 1247, 1248–4 9 (10th Cir. 2000)) (internal quotation marks omitted). “We review the sufficiency of the ev idence de novo to determine whether a rational jury could find the defendant guilty beyond a reasonable doubt.” United

States v. Hammers , 942 F.3d 1001, 1012 (10th Cir. 2019) (citation omitted). But to decide Osipova’s sufficiency -of-the-evidence issu e, we must first determine what constitutes a “threat to kidnap” under § 875(b), a question of statutory interpretation

that we review de novo. See United States v. Sturm , 672 F.3d 891, 897 (10th Cir. 2012) (citation omitted).

We “review a district court’s denial of a motion to recuse or disqualify a judge

for abuse of discretion.” Mathis v. Huff & Puff Trucking, Inc. , 787 F.3d 1297, 1308 (10th Cir. 2015) (citation om itted). “[A] court abuses its discretion only when it makes a clear error of judgment, exceeds th e bounds of permissibl e choice, or when its decision is arbitrary, capricious or whimsical, or results in a manifestly unreasonable judgment.” Id. at 1309 (alteration in original) (citation and internal quotation marks omitted). “We review the legality of a restitution order de novo , which involves reviewing the underlying factua l findings for clear error a nd the amount of restitution imposed for abuse of discretion.” United States v. Howard , 887 F.3d 1072, 1077 (10th Cir. 2018) (quoting United States v. Battles , 745 F.3d 436, 460 (10th Cir.

court are forfeited and must meet our plain- error standard, but th at failure to argue for plain error waives the issue (citations omitted)).12 2014)) (internal quotation marks omitted). Osipova challenges the restitution order only as a matter of law, waiv ing any appellate challenge to the underlying factual findings or to the specific amount imposed (so we do not consid er these issues). See,

e.g. , Burke v. Regalado , 935 F.3d 960, 1014 (10th Cir. 2019) (“Issues not raised in the opening brief are deemed abandoned or waived.” (citation and internal quotation marks omitted)). II. The Indictment Is Sufficient. Osipova asserts that the indictment is insufficient for not including “the essential facts of the offense, the m eans by which [she] allegedly committed the offense, or an assertion that those m eans were unknown to the Government[.]” Appellant’s Opening Br. at 11. “We test th e indictment solely on the basis of the allegations made on its face, and such al legations are to be taken as true.” Ambort , 405 F.3d at 1116 (quoting United States v. Reitmeyer , 356 F.3d 1313, 1316–17 (10th Cir. 2004)) (internal quotation marks omitted ). “[T]he question is not whether the government has presented sufficient evid ence to support the charge, but solely whether the allegations in the indictment, if true, are sufficient to establish a violation of the charged offense.” 7 United States v. Todd , 446 F.3d 1062, 1068 (10th Cir. 2006) (citations omitted). We apply a two-part test to determ ine the indictment’s sufficiency:

7 In this Part, we are deciding only wh ether the indictment suffices under the government’s definition of § 875(b)’s “threat to kidnap.” We later decide whether the government has properly charged a crime with this definition. See infra Part III.13 “First, the indictment must contai n the elements of the offense and sufficiently apprise the defendant of wh at [s]he must be prepared to meet; second, it must be such as to show to what extent [s]he may plead a former acquittal or conviction as a bar to furt her prosecution for the same cause.” United States v. Wells , 873 F.3d 1241, 1254 (10th Cir. 2017) (quoting United States v.

Berres , 777 F.3d 1083, 1089 (10th Cir. 2015)). “[W]here the indictment quotes the language of a statute and includes the date , place, and nature of illegal activity, it ‘need not go further and allege in detail the factual proof that will be relied upon to support the charges.’” United States v. Redcorn , 528 F.3d 727, 733 (10th Cir. 2008) (quoting United

States v. Dunn , 841 F.2d 1026, 1029 (10th Cir. 1988)). Here, Count 1 of the indictment alleges: On or about April 2, 2014, and conti nuing through the date of the filing of this Indictment, in the District of Kansas and elsewhere, the defendant . . . removed a child from the United States and retained a child outside the United States with intent to obstruct the lawful exerci se of another’s parental rights, in violation of Title 18, United States Code Section 1204. Appellant’s App. at 17. Count 2 alleges: Between August 27 and August 30, 2015 , as part of the continuing offense in Count 1, the defendant . . . transm itted in interstate and foreign commerce a communication containing a threat to kidna p, that is, to continue to retain a child outside the United Stat es with the intent to obstruct the lawful exercise of another’s parental rights, and the defe ndant did so with the intent to extort from any person any money or thing of value, in violation of Title 18, United States Code Section 875(b). Id. at 18. Counts 3 through 5are identical to Count 2 in their allegations except for the alleged date of the offense. See id. at 18–19 (count 3 charging “On or about November 21, 2015”), 19 (count 4 charging “On or about December 17, 2015”), 19–20 (count 5 charging “On or about December 5–6, 2016”).14 As Osipova concedes, the indictment in cludes the elements of the offenses charged. The first count’s language is nearly identical to that of the internationalparental-kidnapping statute. See 18 U.S.C. § 1204(a). Coun ts 2 through 5 track the extortionate-communications statute excep t for (erroneously, as later discussed) defining kidnap as “to continue to retain a child outside the Un ited States with the

intent to obstruct the lawful exerci se of another’s parental rights.” Compare Appellant’s App. at 18–20, with 18 U.S.C. § 875(b). The indictment “contains the date, place, and nature of the charged illegal activity. It is thus entirely sufficient to give [Osipova] fair notice and enable [her ] to determine whether to raise a double jeopardy defense.” Redcorn , 528 F.3d at 734. That is all the law requires. See id. Osipova’s argument to the contrary is unavailing. Osipova argues that the parental-kidnapp ing count lacks specificity because it excludes the name of the removed child, the means of removal (or that the means were unknown to the government), the location to which Osip ova removed the child, the person whose parental rights she intended to obstruct, and the basis of that person’s acquiring parental rights. Likewise, she ar gues that the extortionate-communications counts lack specificity because they exclude the location from which she sent the alleged threats, the location at which the alleged threats were received, the means of sending the alleged threats, the language of the alleged threats, the name of the retained child, the

location at which she retainedthe child, the person to whomshe sent the threats, the person whose rights she intended to obstruct , and the basis of that person’s acquiring parental rights. Osipova’s argument for more specificity, however, amounts to a request15 for the facts that the government would rely on to support the charges. Our precedent is clear that the indictment is sufficient without such factual proof. Redcorn , 528 F.3d at 733 (citation omitted). Moreover, Osipova has not claimed prej udice from any lack of specificity in the indictment. In fact, her counsel admitte d at the motion hearing that “[t]here’s litigation history which would put [Osipova] and her attorneys on notice what she’s to defend.” Appellee’s Suppl. App. vol. I at 45:3–5. “[I]nadequacy of an indictment requires reversal only if it prejudiced the defendant.” United States v. Harrold , 796 F.2d 1275, 1278 (10th Cir. 1986) (citation omitted); see also United States v. Doe , 572 F.3d 1162, 1175 (10th Cir. 2009) (applying harmless -error review). We thus

affirm the district court’s denial of Osipova’s motion to dismiss the indictment. III. Osipova’s 18 U.S.C. § 875(b) Co nvictions Rest on an Erroneous Interpretation of the “Th reat to Kidnap” Element. Osipova asserts that the government failed to intr oduce sufficient evidence to

sustain her extortionate-communicati on convictions—partic ularly that the government failed to prove that she made a threat to kidnap. She first argues that her messages to Mobley did not communicate a thre at to continue to retain S.M. outside the United States, 8 because she never offered to return S.M. to the United States. This argument assumes, however, th at the district court’s de finition of “kidnap” was

8 The district court instruct ed the jury that under § 875(b), “[t]o ‘kidnap’ any person includes continuing to retain them ou tside of the United States with the intent to obstruct the lawful exercise of parent al rights.” Appellant’s App. at 187:19–21.16 correct, i.e., that § 875(b)’s use of “kidna p” encompasses the d ecades-later-enacted separate § 1204 crime of “inter national parental kidnapping.” But noting the exclusion of parental kidnapping from the federal kidnapping statute, 18 U.S.C. § 1201, 9 we questioned at oral argument whether § 875(b)’s “kidnap” is so malleable. We thus ordered supplementa l briefing on that general question. In her supplemental brief, Osi pova asserts that “applying the ordinarymeaning canon of statutory interpretation” to § 875(b)’s “kidnap” shows that it “does not include parental retenti on.” Appellant’s Suppl. Br. at 1. The government responds that “the plain language” of § 875(b) i ndicates otherwise, with no “exceptions or exclusions for certain pe rpetrators or victims.” 10 Appellee Suppl. Resp. Br. at 1–2. But the government does not cite a single case involving a prosecu tion for a threat to kidnap under § 875(b) based on an “international parental kidnapping” under § 1204; a single case or pattern jury instructi on using its definition of “kidnap” in a prosecution under § 875(b); or a single case involving a § 875(b) charge involving an

9 Section 1201 applies to “[w]hoever unlaw fully seizes, conf ines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a mi nor by the parent thereof , when” one of the various jurisdictional hooks is satisfied. (emphasis added).

10 The government ignores that § 875( b) uses the undefine d term “kidnap,” which itself could contain exclusions. For example, the Sixth Ci rcuit has concluded that a father could not be charged under § 87 5(c) (identical to § 875(b) except there is no intent-to-extort requirement) because he could not “legally be charged with kidnapping under state or federa l law,” meaning his threat to take his child was not a “threat to kidnap[.]” United States v. Landham , 251 F.3d 1072, 1081 (6th Cir. 2001).17 intent to extort money based on a demand fo r child support or restoration of property sold as part of a divorce proceed ing. Nor have we found any. Though Osipova did not challenge the district court’s and government’s interpretation of § 875(b)’s “kidnap” until her supplemental brief, we nonetheless review this interpretation. Osipova ha s asserted from the beginning that the government could not and di d not prove that she communi cated any threat to kidnap

S.M. under the district court’s a nd government’s interpretation. See, e.g. , Appellant’s App. at 214:24–217:24 (closing argum ent), 240–42 (motion for judgment of acquittal). And the government has contended th at it could and did meet its burden to show that Osipova communicated such a threat. See, e.g. , id. at 206:10–208:25 (closing statement); Br. for Appellee at 18–20. Thus, we have befo re us “a real case and controversy extending” to the issue wh ether the government produced sufficient evidence of § 875(b)’s “threat to kidnap” element 11 to uphold Osipova ’s convictions. U.S. Nat’l Bank of Or. v. I ndep. Ins. Agents of Am., Inc. , 508 U.S. 439, 446 (1993). And “[w]hen an issue or claim is properly be fore the court, the c ourt is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.” Kamen v. Kemper Fin. Servs., Inc. , 500 U.S. 90, 99 (1991) (citing Arcadia v. Ohio

Power Co. , 498 U.S. 73, 77 (1990)). Here, the m eaning of “kidnap” under § 875(b) is

11 In conducting our sufficiency-of-the-evi dence review, we must “determine whether a rational trier of fact could have found ‘the esse ntial elements of the crime beyond a reasonable doubt.’” United States v. Winder , 557 F.3d 1129, 1137 (10th Cir. 2009) (quoting United States v. Bowen , 527 F.3d 1065, 1076 (10th Cir. 2008)).18 “an issue ‘antecedent to . . . and ultimately dispositive of’ the dispute before” us, so we may consider it despite the parties’ failure to address it until we ordered supplemental briefing. U.S. Nat’l Bank of Or. , 508 U.S. at 447 (omission in original) (quoting Arcadia , 498 U.S. at 77; and citing Cardinal Chem. Co. v. Morton Int’l,

Inc. , 508 U.S. 83, 88 n.9 (1993)). So we turn to determining whether the word “kidnap” as used in § 875(b) encompasses “international parental ki dnapping” under § 120 4. We begin our analysis by examining the plain text of § 875(a)–(c), § 1201, a nd § 1204 to interpret § 875’s “kidnap” “with a view to [its] pl ace in the overall stat utory scheme” and “in light of the purposes Cong ress sought to serve.” Been v. O.K. Indus. , 495 F.3d 1217, 1227 (10th Cir. 2007) (citati ons and internal quotation marks omitted). “[I]t’s a

‘fundamental canon of statut ory construction’ that wo rds generally should be ‘interpreted as taking their ordinary, contemporary, comm on meaning . . . at the time Congress enacted the statute.’” Wis. Cent. Ltd. v. United States , 138 S. Ct. 2067, 2074 (2018) (omission in original) (quoting Perrin v. United States , 444 U.S. 37, 42 (1979)). But “where a federa l criminal statute uses a co mmon-law term of established meaning without otherwise defi ning it, the general practice is to give that term its common-law meaning,” Moskal v. United States , 498 U.S. 103, 114 (1990) (alteration, citation, and internal quot ation marks omitted), unless Congress has instructed us otherwise, see Morissette v. United States , 342 U.S. 246, 263 (1952). “The plain meaning of legisl ation should be conclusive, ex cept in the ‘rare cases [in which] the literal application of a statute will produce a result demonstrably at odds19 with the intentions of its drafters.’” United States v. Ron Pair Enters. , 489 U.S. 235, 242 (1989) (alteration in original) (quoting Griffin v. Oceanic Contractors, Inc. , 458 U.S. 564, 571 (1982)). We start with the language from the stat ute of the two dis puted convictions: (a) Whoever transmits in interstate or foreign commerce any communication containing any demand or request for a ransom or reward for the release of any kidnapped person, shall be fined under this title or imprisoned not more than twenty years, or both. (b) Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure th e person of another, shall be fined under this title or imprisoned not mo re than twenty years, or both. (c) Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any thre at to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both. 18 U.S.C. § 875(a)–(c). 12 The meaning of “kidnap” is not plain from this text alone. And Congress did not define “kidnap” in § 875 or in chapter 41, which houses § 875. “Kidnap” had an established meaning atcommon law. It “meant to take and carry away any person by force and against his will.” United States v. Marx , 485 F.2d 1179, 1186 (10t h Cir. 1973); see also United States v. Young , 512 F.2d 321, 323 (4th Cir. 1975) (“[A]t common law ‘kidnap’ mean t to take and carry a person by force and against his will.”). So unless Congress has instructed otherwise, we ascribe that meaning to § 875’s use of the term. See, e.g. , Moskal , 498 U.S. at 114; Morissette ,

12 We omit subsection (d) because it does not use the term “kidnap.”20 342 U.S. at 263. We now turn to the legi slative history and § 875’s role in the “overall statutory scheme” to determine if Congress has instru cted otherwise. A. The Common Heritage of §§ 875 and 1201 The following discussion shows that C ongress enacted as companions the predecessors and present versions of § 875, the extortionate-communications statute, and § 1201, the federal kidnappi ng statute. To demonstrate this, we first examine the history of § 1201’s and § 875’ s enactments. Then, we use this history to help us interpret the statutory langua ge Congress used in § 875. In 1932, Congress enacted 18 U.S.C. § 408 a, the first statutory predecessor to § 1201, in response to the Lindbergh kidnapping. 13 See Act of June 22, 1932, ch. 271, 47 Stat. 326 (codified at 18 U.S.C. § 408a) (current version at 18 U.S.C. § 1201);

Chatwin v. United States , 326 U.S. 455, 463 (1946). As the Supreme Court observed: Kidnaping by that time had become anepidemic in the United States. Ruthless criminal bands u tilized every known legal and scientific means to achieve their aims and to protect th emselves. Victims were selected from among the wealthy with great care and study. Details of the seizures and detentions were fully a nd meticulously worked out in advance. Ransom was the usual motive.

13 On March 1, 1932, Charles Augustus Lindbergh Jr., the son of the famous aviator, was stolen from his crib in his second-floor bedroom. See Lindbergh Kidnapping , FBI, https://www.fbi.gov/history/fa mous-cases/lindbergh-kidnapping (last visited Aug. 3, 2020). A search of the scene revealed, am ong other clues, a $50,000-ransom note and a broken ladder. Id. Two months and twelve ransom notes later, the baby’s body was found. Id. He apparently died th e night he was kidnapped. Id. ; see also Kidnapping and Trial, Minn. Historical Soc’ y, https://www.mnhs.org/ lindbergh/learn/kidnapping (las t viewed Aug. 3, 2020).21 Chatwin , 326 U.S. at 462–63. So Congress enac ted the Lindbergh Act “to cover every possible variety of kidnaping followe d by interstate transportation,” id. at 463, and to provide a federal criminal remedy for the physical harm and vi olence involved in kidnapping for ransom, see, e.g. , Amendments to the Federal Kidnaping Statute: Hearings on H.R. 4191 and H. R. 8722 Before the Subcomm. on Crime of the H. Comm. on the Judiciary , 93d Cong. 13, 20–21 (1974) (discu ssing the legislative history of the Lindbergh Act). The Act applied to “[w]hoever shall knowingly transport or cause to be transported, or aid or abet in transporting, in intersta te or foreign commerce, any person who shall have been unlawfully se ized, confined, inveigled, decoyed, kidnaped, abducted, or carried away by any means whatsoeverand held for ransom or reward[.]” Act of June 22, 1932, ch. 271, 47 Stat. 326. Th is plain language leads us to two conclusions. First, that Cong ress adopted the common-law meaning of “kidnap” in using that single term in the Act. See Morissette , 342 U.S. at 263. This is because “kidnap” had an established m eaning at common law and because Congress

did not instruct us otherwise. See id. Moreover, the common-law meaning, “to take and carry away any person by force and agai nst his will,” does not render any of the other delineated means superfluous. Marx , 485 F.2d at 1186; see also, e.g. , TRW Inc. v. Andrews , 534 U.S. 19, 31 (2001) (“It is ‘a cardinal principle of statutory

construction’ that ‘a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, orword shall be superfluous, void, or insignificant.’” (quoting Duncan v. Walker , 553 U.S. 167, 174 (2001))).22 And second, though Congress used the common-law meaning of “kidnap” in the Act, its use of other culp able acts listed in § 408a’s ve rb string criminalized much more than common-law “kidnap.” See Act of June 22, 1932, ch. 271, 47 Stat. 326. Congress’s delineation of alte rnative means of establishi ng a single element of the § 408a offense shows that Congress consider ed any one of these means to constitute, in a more general sens e, a “kidnapped person.” See United States v. Gillis , 938 F.3d 1181, 1204 (11th Cir. 2019) (determining that § 1201( a) provides “several methods of violating the statute [that] are all fa ctual means of accomplishing ‘kidnapping’ rather than separate elemen ts creating several distinct kidnapping offenses” (citations omitted)). This conclusion is plain from th e text. But we gain further support from Congress’s having titled § 408a “Kidnaped pe rsons; transportation, etc., of persons unlawfully detained,” 18 U.S.C. § 408a (1934) (bold removed); refe rring to it as “the kidnaping bill,” 75 Cong. Rec. 13,282 ( 1932); and enacting it to enable the apprehension of kidnappers who take their victims across state lines, 75 Cong. Rec. 13,284 (1932). See also 78 Cong. Rec. 8,127 (1934) (refe rring to § 408a as “the act forbidding the transportation of kidna ped persons in interstate commerce”); Chatwin , 326 U.S. at 463 (recognizing th at Congress used “[c]ompreh ensive language . . . to cover every possible variety of kidnaping followed by in terstate transportation”). Though a prosecutor might have thought th is first delineation of “kidnapped person” expansive enough to cover pare ntal kidnappings, Congress’s hinging the crime on being held for ransom or reward would have compromised that notion. See

United States v. Acevedo , 824 F.3d 179, 185 (1st Cir. 2016) (noting that “a parent23 abscond[ing] across state lines w ith his child in violation of a custody order” is a type of kidnapping “inherently unlik ely to involve ransoms”); United States v. Boettcher , 780 F.2d 435, 436 (4th Cir. 1985) (“The obvious purpose of such restricted scope for that crime (‘for reward or ransom’) was to eliminate from the statute’s coverage the kidnaping, conspiracy to ki dnap or aiding and abetting in the kidnaping by a parent of his or her child.”). Further, in the House debate over the Act, a Representative recognized this possibility: “I do not belie ve it is intended or desired to include punishment for kidnaping in cases where a mo ther or a father has taken a child away

where there has been a divor ce, or something of that kind. I hope an amendment providing for this will be included in the bill.” 75 Cong. Rec. at 13,286 (1932). He remarked that the Act was meant “to provi de the severest punish ment for people who kidnap and carry off people from one Stat e to another for ransom, for money.” Id. at 13,296. He opined, “There is not anybody who would want to send a parent to the penitentiary for taking possession of his or her own child, even though the order of

the court was violated and it was a technical kidnaping.” Id. In 1934, apparently to eliminate a ny possibility of such a prosecution, Congress amended the Act. After “and held for ransom or reward,” Congress added an exclusion: “or otherwise, except, in the case of a minor, by a parent thereof[.]” 14

14 The House Committee on the Judiciar y recommended adding this language, because it “will extend Federal jurisdiction under the act to persons who have been kidnaped and held, not only for reward, but for any other reason, except that a kidnaping by a parent of his ch ild is specifically exempted.” H.R. Rep. No. 1457, at 2 (1934).24 Act of May 18, 1934, ch. 301, 48 Stat. 781 (codified at 18 U. S.C. § 408a (1934) (current version at 18 U.S.C. § 1201 15 ); see also Gooch v. United States , 297 U.S. 124, 129 (1936) (noting the exclusion “i ndicate[s] legislativ e understanding that,” without it, “a parent, who carried his child away because of affection, might subject

himself to condemnation of th e statute” (citation omitted)). That same day, Congress

enacted a new statute—the first statutory predecesso r to § 875—applying to whoever, with intent to extort from any person, firm, association, or corporation any money or other thing of value, shall tran smit in interstate commerce, by any means whatsoever, any threat (1) to injure the person, property, or reputation of any person, or (2) to kidnap any person, or (3) to accuse any person of a crime, or (4) containing any demand or request for a ransom or reward for the rele ase of any kidnaped person[.] Act of May 18, 1934, ch. 300, 48 Stat. 781 (codified at 18 U. S.C. § 408d (1934)) (current version at 18 U.S.C. § 875). The House considered and passed in su ccession both statutes on the same day.

See 78 Cong. Rec. 8,127–28 (1934). In fact , the House consider ed them “kindred bills, known as the ‘crime bills[.]’” Id. at 8,775 (discussing, among other bills, S. 2252, “to amend the act forbidding th e transportation of kidnaped persons in interstate commerce,” and S. 2249, the extortionate-communications bill). And Congress designed § 408d “to bolster up th e Patterson Act passed in 1932, which

makes it a Federal offense to transmit threats through the ma il with intent to extort

15 Congress amended § 1201 in 1993 to define “parent”: “As used in this section, the term ‘parent’ does not incl ude a person whose pa rental rights with respect to the victim of an offense under this section have been terminated by a final court order.” Violent Crime Control and La w Enforcement Act of 1994, Pub. L. No. 103-322, sec. 320924, 108 St at. 1796, 2131 (codified at 18 U.S.C. § 1201(h)).25 any money or other thing of value” and ex tended federal control “over kidnapers.” Id. at 6,855. Congress’s considering § 408d contemporaneously with the parentalkidnapping exclusion and de signing § 408d as a compan ion to § 408a underscores that Congress intended § 408d’s “kidnap” to match the broad concept of kidnapping it criminalized in § 408a. See United States v. Jackson , 180 F.3d 55, 70 (2d Cir.), reh’g granted on other grounds , 196 F.3d 383 (2d Cir. 199 9) (“Given Congress’s contemporaneous consideration of the pred ecessors of § 875(d) and the Hobbs Act, both of which focused on extortion, we in fer that Congress’s concept of extortion was the same with respect to both statut es.”). Moreover, in 1948, when Congress revised Title 18 and moved § 408a to § 1201 and § 408d to § 875, Congress did not substantively change the statutes. See H.R. Rep. No. 152, at A67, A89–90 (1945). So, like § 408a and § 408d, § 1201 and § 875 are companions. We thus conclude that Congress intende d “kidnap” in § 875 to reference the broader definition of “kidnap” 16 it created in § 1201 and di d not use the term in its

16 Congress initially focused the Lindbe rgh Act on the transportation of a kidnap victim in interstate or foreign co mmerce. But in 1972, Congress amended the Act to make the kidnap itself the focus. See Amendments to the Federal Kidnaping Statute: Hearings on H.R. 4191 and H.R. 8722 Before the Subcomm. on Crime of the H. Comm. on the Judiciary , 93d Cong. 29 (1974). In cons idering this amendment, Congress recognized that th e term “kidnap[] has ac quired a general meaning sufficient to encompass the operative term ‘seize s’, ‘confines’, etc.” Id. at 30 (quoting H. Rep. 92-1208, at 16 (1972)). But Congress nonetheless retained these operative terms. Id. These terms, combined with the intent “for ransom or reward or otherwise . . . , except in the case of a mi nor by the parent thereof,” have triggered the “kidnap” element of the Lindbergh Act si nce 1934, regardless of the Act’s focus. See 18 U.S.C. § 1201 (1972); 18 U.S.C. § 408a (1934); see also Gillis , 938 F.3d at 1203–04 (determining that this language provides seve ral means of accomplishing “kidnapping”).26 strict, common-law sense. 17 As companion statutes, § 875 and § 1201 must work together and not hinder the other. Im puting only the common- law definition of “kidnap” to § 875 as we di d to “kidnap” in § 1201’s verb string would undermine the work Congress put into broadening the crime in § 1201. So, instead, § 875’s “kidnap” must incorporate Congress’s generalized “kidnap” set out in § 1201’s verb string. And, as seen, the plain language and legisl ative history of § 1201 shows Congress’s intent to exclude parents from federal criminal sanctions for kidnapping and for threatening to ki dnap their children. 18 See also Boettcher , 780 F.2d at 437 (stating that, in enacting § 1201, “Congress never in tended to expose parents kidnaping their own minor child to criminal sanctions”) . The same must hold true for § 875’s “kidnap.”

17 We note that even had Congress adopted the common-law definition, Osipova’s messages would not have communicated a threat to kidnap, because she did not threaten to take S.M. against her will. When Osipova sent the messages, she had already taken S.M. to Russia and thus c ould not have threatened to take and carry away S.M. against S.M.’s wi ll. Nor does anything indicate that Osipova could or did forcefully remove the fourteen -month-old S.M. to Russia.

18 The government asserts that Congress’s reference to § 1201 in 18 U.S.C. § 878 (another threat/extor tion statute) and not in § 875 indicates Congress did not intend to include § 1201’s parental-kidna pping exception in § 875. We see no such intent. Section 878 also refere nces two other statutes to encompass those that, like § 1201, protect foreign offi cials, official guests, a nd internationally protected persons. These references ea sily delineate all the conduct Congress wanted § 878 to cover. Such references woul d not benefit the less-expansiv e § 875, especially because Congress enacted its pred ecessor as a companion to the Lindbergh Act.27 B. Section 875 Does Not Incorpor ate § 1204’s or the Government’s Definitions of Internatio nal Parental Kidnapping. In 1993, Congress passed the Internati onal Parental Kidnappi ng Crime Act of 1993, a statute meant “to deter the remova l of children from the United States to foreign countries in order to obstruct parental rights.” See H.R. Rep. 103-390, at 1 (1993). This statute created a new federal felony offense to work in tandem with the Hague Convention on International Parental Child Abduction and to make it easier for a left-behind parent to obtain the abduct ed child’s return fro m countries that are not signatories to the Convention. Id. at 3. But it left the Co nvention as “the option of

first choice.” Id. at 5. The statute c overs “[w]hoever 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[.]” § 1204(a). 19 This definition of “internati onal parental kidnapping” (as the government expanded in the indictment to include “continuing to retain” 20 ) is what the government seeks to transplant into § 875( b)’s “threat to kidnap” element. But, as shown in the last section, injecting the separate crime of “international parental kidnapping” into § 875(b)’s “kidnap” woul d unmoor the federal crime of kidnapping from its understood meaning since 1934 wh en Congress specifically excluded

19 We note that, unlike § 1201, § 1204 uses the word “kidnap” on ly in its title, not in its text, though bot h statutes are in the kidnap portion of the Code.

20 Section 1204 does not say “continue to retain.” The government makes no attempt to justify its revisi on of the statute to produce its definition of “kidnap.”28 parental kidnapping. 21 See supra Section III.A. And incorporating § 1204(a)’s

definition of “international parental kidnapping (let alone the government’s expanded definition) into § 875(b)’s use of “kidnap” would l ead to absurd results. First, we read § 1204 as providing thr ee means of accomplishing “international parental kidnapping” and notthree elements, namely, th e means of (1) removal, (2) attempted removal, and (3) retention. See United States v. Nixon , 901 F.3d 918, 921 (7th Cir. 2018) (agreeing with the distri ct court’s conclusion that “§ 1204(a) states multiple ways of committing a single crime”). 22 At the start of the trial, Osipova’s counsel admitted that Osipova had illegally removed S.M. to Russia. Appellant’s App. at 75:12–16 (“The evidence in this case will s how that on April the 2nd of 2014, [Osipova] took her and Mr. Mobl ey’s minor child [S.M.] outside of the

United States and retained the child outside of the United States, in Russia, where she is from, in violation of a court order.”). Thus, as we explain next, the jury had no

21 The government asserts that we should not “disturb [our] previous conclusion that the common usage of ‘k idnapping’ would encompass the taking of children without the consent of the other parent.” Appellee Suppl. Resp. Br. at 9 (citing Anderson v. Cramlet , 789 F.2d 840, 844 (10th Cir. 1986)). But it cites Anderson , a defamation case that ex amined the plain (not the legal) meaning of “kidnapping” and acknowledged that the te rm has “assumed a non-legal connotation” “in the area of child custody[.]” 78 9 F.2d at 844. We thus do not find Anderson illuminating for interpreting the meaning of § 875(b)’s “kidnap.” And even if we adopted Anderson ’s definition of kidnap for § 875( b)’s purposes, we would still vacate Osipova’s § 875(b) convictions because her messages did not threaten to take S.M. without Mobley’s consent—she alrea dy had S.M. when she sent the messages. See id.

22 In reaching the conclusion that § 12 04(a) provides three means of a single crime, Judge Easterbrook followed the Supreme Court’s framework given in Mathis v. United States , 136 S. Ct. 2243 (2016).29 reason to consider whether Osipova had vi olated § 1204(a) by a second means, that is, by unlawfully retaining S.M. in Russia. We interpret the retention means of the international-parental-kidnapping offense as mapping “retention” as used in the Hague Convention, which applies when a parent holds the child beyo nd the time the left-behind pare nt was legally entitled to

the child’s return. See, e.g. , de Silva v. Pitts , 481 F.3d 1279, 1282, 1285 (10th Cir. 2007) (Hague Convention case analyzing a father’s reten tion of his son past the agreed-to summer visit); Elisa Pérez-Vera, Explanatory Report , in 3 Acts and Documents of the Fourteenth Session, Child Abduction 426, 458–59 ¶ 108 (1980) (stating that the time limit be gins to run in retention cases on the date “on which the child ought to have been retu rned to its custodians or on which the holder of the right of custody refused to agree to an extension of the child’s stay”). Thus, the “retains a child” means of international-parental-kid napping is not in play when the parties agree that a parent has unlawfully rem oved a child from the United States. Second, kidnapping is a unitary crime th at continues until the victim is free. United States v. Rodriguez-Moreno , 526 U.S. 275, 281 (1999) . It makes no sense to

treat a “threat to kidnap,” which implies that the kidnapping has not yet occurred, as

a “threat to continue to retain,” which means th e kidnapping has ha ppened and is ongoing. So the government’s definition is at odds with § 875( b)’s plain language. An ongoing kidnapping, even one unde r § 1201, fits onl y under § 875(a). Third, if we accepted the government’s definition of § 875(b) “kidnap” as “continuing to retain [a pe rson] outside of the United St ates with the intent to30 obstruct the lawful exercise of parental rights,” Appellant ’s App. at 187:19–21, we would render § 875(a) superfluous , at least in this instance. As noted, § 875(a) covers

communications that contain “any demand or request for a ransom or reward for the release of any kidnapped person[.]” If a threat to conti nue to retain one’s child absent receiving extorted money fits unde r § 875(b), then why have § 875(a)? 23 We should avoid reading a statute in a way that would render Congress’ s language superfluous. E.g. , TRW Inc. , 534 U.S. at 31. Finally, the statutes’ disp arate penalties underscore the absurdity in adopting the government’s definition of “kidnap.” S ection 875(b) provides that the defendant “shall be fined” or “impris oned not more than twenty y ears, or both.” This makes sense when read together with § 1201, which for completed kidnappings provides a more severe penalty. See § 1201 (providing for “impris onment for any term of years or for life”). But this prop ortionality is lost when the government seeks to apply § 875(b) to § 1204, which caps any term of imprisonment at three years. We see no merit in the government’s position that Co ngress capped imprisonment for a parental kidnapping at three years but provided a twenty-year maximum under § 875(b) for merely threatening to commit that offense. This absurdity strengthens our conclusion

23 Obviously, the government could not prosecute under subsection (a), because no one could sensibly consider Osip ova’s requests for child support for S.M. as a ransom for her release. But the unava ilability of subsecti on (a) does not make subsection (b) available. As discusse d, subsection (b) concerns threats to kidnap. We reject the government’s attempt to morph subsection (b) into something it is not—a hybrid of a threat to kidna p someone already kidnapped.31 that Congress intended to exclude parental kidnapping from § 875(b)’s “threat to kidnap.” We thus conclude the government obt ained the § 875(b) c onvictions against Osipova by using an invalid definition of “kidnap.” Because Osipova could not legally be charged for ki dnapping under § 1201, the th reat-to-kidnap element of § 875(b) is not met. Osipova’s convictions on counts 2 and 3 cannot stand; we vacate

these convictions and remand for resentencing on count 1. IV. The Court’s E-Mail to Osipova’ s Mother Does Not Require Recusal. Osipova argues that the di strict judge’s e-mail to her mother required his recusal, because it wa s an ex parte communication viol ating the Judicial Code of Conduct and evinced his bias against Os ipova. The government contends that Osipova has waived this argument, becau se she invited any error by “repeatedly [seeking] to engage the trial court in ex parte communications.” Br. for Appellee

at 24. We need not resolve the waiv er issue, however, because Osipova’s disqualification argument fails on the merits . Further, “[w]e believe that it is especially appropriate to reach the merits of this issue because recusal-based arguments uniquely implicate the in tegrity of the justice system.” Wells , 873 F.3d at 1250 (citation omitted). We thus exercise our discretion to bypass the waiver issue

and reach the merits of Osi pova’s argument for recusal. Osipova moved for recusal under 28 U.S.C. § 455, which requires that a judge recuse from “any proceeding in which hi s impartiality might reasonably be questioned” or “[w]here he has a personal bias or pr ejudice concerning a party.”32 28 U.S.C. § 455(a), (b)(1). “Section 455 establishes ‘an objective standard: disqualification is appropriate only where th e reasonable person, we re he to know all the circumstances, would harbor doubt s about the judge’s impartiality.’” Wells , 873 F.3d at 1251 (quoting Mathis , 787 F.3d at 1310). “‘In c onducting this review, we must ask how these facts would appear to a well-informed, t houghtful and objective observer,’ who is ‘an average member of the public,’ not a ‘hypersensitive, cynical, and suspicious person.’” Id. (quoting Mathis , 787 F.3d at 1310). Though judges “have a strong duty to recuse when appropr iate,” they also have “a strong duty to sit,” and § 455 must not be so broadly construed as to make recusal mandated “upon the merest unsubstantiated suggesti on of personal bias or prejudice.” Id. (citation and internal quotation mark omitted). The judge here did not ex ercise his best judgment in e-mailing Osipova’s mother that her daughter’s sentence woul d depend on whether th e two girls were

back in the United States before the senten cing hearing. But considering the mother’s previous, numerous communications to the judge and the e-mail’s content, an objective observer would likely not reasonabl y question the judge’s impartiality. The

e-mail communicated four th ings: (1) the judge had recei ved Osipova’s letter about which her mother had inquired, (2) the date set for sentencing, (3) an inference that the girls’ return would lighten Osipova’s sentence, and (4) the judge could not modify Osipova’s sentence afte r he imposed it. Contrary to Osipova’s assertions, this e-mail did not show that the judge had determined a specific sentence. The e-mail also did not communicate any information th at Osipova did not already know. So the33 e-mail provides no reasonable basis for quest ioning the judge’s impartiality. We thus

affirm the court’s denial of Os ipova’s motion to disqualify. V. Mobley’s Attorney’s Fees Are Not Recoverable in Restitution. Finally, Osipova argues thatMobley’s attorney’s fees were not related to the government’s investigation or prosecution and, thus, we re not recoverable under 18 U.S.C. § 3663. Section 3663 authorizes a district court to order that the defendant make restitution to any victim of her offense. See § 3663(a)(1)(A). The order may, “in any case, reimburse the victim for lost income and n ecessary child care, transportation, and other expe nses related to participati on in the investigation or prosecution of the offense or attendance at proceedings related to the offense[.]” § 3663(b)(4). Here, the district court awarded Mobley $18,100 in restitu tion for attorney’s

fees incurred in “h is efforts to retrieve the ch ildren from Russia, which were substantially frustrated by the defendant’s establishment (after her arrest) of a guardianship in Russia.” 24 Br. for Appellee at 33. The c ourt concluded that these fees “are directly related to the offense of conviction.” Appellee’s Suppl. App. vol. I at 174:16–17. And the government maintains th at the fees “were di rectly related to

the defendant’s criminal c onduct and continuing obstructi on” in using “the Russian courts to thwart repatriation of th e children.” Br. for Appellee at 34.

24 Osipova does not dispute how Mobl ey incurred these attorney’s fees.34 But § 3663 does not authorize restituti on for all expenses incurred by a victim that are “directly related to ” the defendant’s offense. S ection 3663 delineates specific

authorizations for restitution orders and the one relied on here, subsection (b)(4), is not met by expenses that are merely “related to” the offense. More is required: the expenses must be “related to participation in the investigation or prosecution of the

offense or attendance at proceedings related to th e offense[.]” § 3663(b)(4) (emphasis added). The terms “investigati on,” “prosecution,” and “proceedings” are limited to the government’s i nvestigation, the government ’s criminal prosecution, and criminal proceedings. Lagos v. United States , 138 S. Ct. 1684, 1688 (2018). 25 And, to qualify for restitution, the expens es must be “caused by the specific conduct

25 Lagos interpreted the meaning of thes e terms as used in 18 U.S.C. § 3663A(b)(4), which require s reimbursement “for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” Though § 3663(b)(4) is discreti onary and uses “related to” where the mandatory § 3663A(b)(4) uses “incurred during,” the Cour t’s textual analysis of § 3663A(b)(4) in Lagos applies equally to § 3663(b) (4). The Court concluded “investigation” refers to government inves tigations because the word “is directly linked by the word ‘or’ to the word ‘prosecution,’ with wh ich it shares the article ‘the’”—a linkage that is also presen t in § 3663(b)(4). 138 S. Ct. at 1688; see § 3663(b)(4) (“the investigati on or prosecution”). The Cour t applied “[a] similar line of reasoning” to conclude “that the imme diately following reference to ‘proceedings’ also refers to criminal pro ceedings in particular,” reas oning that also applies to § 3663(b)(4)’s identical la nguage. 138 S. Ct. at 1688; see § 3663(b)(4) (“or attendance at proceedings”). Moreover, th e same awkwardness the Court found in interpreting “‘participation’ to refer to a vic tim’s role in its own private investigation, and the word ‘attendance’ to refer to a vi ctim’s role as a party in noncriminal court proceedings” applies equally to § 3663(b)(4). 138 S. Ct. at 1688; see § 3663(b)(4) (also using “participation in the investig ation” and “attendance at proceedings”).35 that is the basis of th e offense of conviction.” Hughey v. United States , 495 U.S. 411, 413 (1990). The attorney’s fees that Mobley incurred do not satisfy § 3663(b)(4)’s requirements. The government has presente d no evidence that Mobley’s attorney’s fees were related to his participation in its investigation or prosecution of Osipova. Instead, the government contends that the fees were the resu lt of Mobley’s attempt to bring his daughters back to the United States. There is no evidence that the government directed or sanc tioned this action. In fact , the government admitted at oral argument that it never asked Mobley to incur these fees and that it was engaged with the Department of State in its own attempt to secure the girls’ retu rn. Moreover, the girls’ return had no impact on the gove rnment’s investigati on or prosecution of Osipova. 26 Making the girls “whole” by reuniting them with a father they would consider a stranger was in no way “part and parcel” to the criminal prosecution, as the government contends. Oral Arg. at 30:26–55. So Mobley ’s attempt to secure the

26 The government states that Mobley’s attorney’s fees “were incurred ‘during participation in the . . . prosecution of the offense’” because “[l]ocating and (hopefully) retrieving the children was a central part of the government’s investigation and prosecution effort.” Br. for Appellee at 36 (omission in original). But Mobley already knew where the girls we re—Russia—so he did not need to incur attorney’s fees to locate th em. Further, the girls’ return to the United States was not necessary for the prosecution to proceed, so the government’s assertion that their return was “central” to its effo rt is questionable. Finally, that the statute allows for childcare expenses incurred during participati on in the investigation or prosecution of the offense but not Mobley’s attorney’s fees does not “make no sense” or “discredit the judicial system,” becau se the latter fees were not incurred during such participation as required by the stat ute (while the former would be). Id. at 37; see § 3663(b)(4).36 return of his daughters did not assist the government in its investigation or prosecution of Osipova. This means Mobley ’s attorney’s fees are not recoverable under subsection (b)(4). Moreover, Mobley’s loss caused by Osipova’s conduct underlying her

conviction was the loss of hi s daughters. Mobley incurred attorney’s fees only to try to recover his loss, i.e., obtain the return of his daughters. In United States v.

Diamond , 969 F.2d 961, 968 (10th Cir. 1992), we opined that “[i]n the absence of specific statutory authority for an award of attorney’s fees and expenses, we believe Hughey is decisive as it limits the substan tive boundaries of restitution under the [statute] to the sp ecific conduct underlying the offense of conviction.” (citing Hughey , 495 U.S. at 413). “Expenses generate d in recovering a victim’s losses, therefore, generally are t oo far removed from the underlying criminal conduct to

form the basis of a restitution order.” Id. In United States v. Patty , 992 F.2d 1045, 1049 (10th Cir. 1993), we “construe[d] Diamond as holding that attorney fees incurred by the victim to recover his prop erty are not directly related to the

defendant’s criminal conduc t and thus are not recovera ble in restitution.” (citation omitted). But we recognized that “[t]here ma y be a situation . . . where attorney fees under the [Victim Witness Protection Act] are directly related to a defendant’s criminal conduct because they were ‘sustained by [the] victim as a result of the

offense.’” Id. (third alteration in original) (quo ting 18 U.S.C. § 3664). Though we

decided Diamond and Patty before Congress enacted subsection (b)(4) in 1994, we37 still find their logic applicab le here, where § 3664(b)(4) does not expressly authorize granting Mobley restitution fo r his attorney’s fees. The government asserts § 3664(b)(4) doe s authorize restitution for Mobley’s attorney’s fees and for suppor t cites an international-pa rental-kidnapping case that allowed similar fees, United States v. Cummings , 281 F.3d 1046 (9th Cir. 2002). In Cummings , the Ninth Circuit allowed restitution for attorney’s fees incurred in the

left-behind mother’s attempt to recover custody of her children, concluding that the “attorney’s fees are expenses related to the government’s investigation and prosecution of Cummings for wrongfully reta ining his children in a foreign country, thereby interfering with thei r mother’s parental rights. ” 281 F.3d at 1052. The court determined that, under its pre cedent, the “incurred attorney ’s fees are [not] ‘wholly separate’ from the government ’s prosecution of Cummings.” Id. at 1053. But as discussed, § 3663(b)(4) requires participation in the prosecution, not merely a relationship to it. So while we agre e that the girls’ retu rn is related to the international-parental-kidnapping offense, we do not see how seeking their return equates to participation in the investig ation or prosecution of the offense. The government already knew the gi rls were in Russia and did notneed to return them to Mobley’s custody to obtain a conviction ag ainst Osipova. So, with no evidence that Mobley’s attorney’s fees we re “related to participati on in the investigation or prosecution of the offense,” § 3663(b)(4), we decline to re ach the same conclusion as

the Ninth Circuit’s in Cummings . We thus conclude that th e district court’s restitution order was unauthorized by la w and must be vacated.38 CONCLUSION For the foregoing reasons, we vacate Osip ova’s 18 U.S.C. § 875(b) convictions

and the restitution order and remand for resentencing. We otherwise affirm.19-3122, United States v. Mobley HOLMES , J., Concurring. In all material respects, I agree with the outcome and reasoning of the majority’s opinion, except for Part III, which addresses th e sufficiency of the evidence with respect to Ms. Osipova’s convictions u nder 18 U.S.C. § 875(b). As to that part, I concur in the judgment only. Thus, like the majority, I believe that Ms. Osipova’s § 875(b) convictions—that is, her convictions on counts 2 and 3 of the supe rseding indictment— must be vacated. In summary fashio n, I explain my reasoning below. “[W]e must decide whether there was suffi cient evidence presen ted at trial for a reasonable jury, properly instructed , to have found beyond a reasonable doubt” that Ms. Osipova was guilty of the two § 875(b) offenses. United States v. Wyatt , 964 F.3d 947, 951 (10th Cir. 2020) (emphasis added). Ther efore, our court is not bound by the jury instructions actually given at trial in reso lving a properly preserved sufficiency-of-theevidence challenge. Ms. Osipovaproperly preserved such a challenge. That said, in adhering to the well-settled principle of party presentation, it is neither required nor

advisable for our court to sua sponte adjudicate independently qu estions pertaining to the proper governing law, in every instance where it is confront ed with a sufficiency-of-theevidence challenge. See, e.g. , Greenlaw v. United States , 554 U.S. 237, 243 (2008) (“In our adversary system, in both civil and criminal cases, in the first in stance and on appeal, we follow the principle of party presentation. That is, we rely on the parties to frame the issues for decision and assign to courts the ro le of neutral arbiter of matters the parties present.”); United States v. Tee , 881 F.3d 1258, 1269 (10th Cir. 2018) (“We ordinarily2 consider only the grounds pr esented by the appellant, wary of searching out our own reasons to reverse when the ground is not presented by the appellant[.]”). The parties’ briefing must reveal a real controversy conc erning the governing law. And, though it only emerged through the partie s’ supplemental briefing, su ch a controversy is present

here. With respect to that controversy, I cannot agree with the majority’s determination that the term “kidnap” in § 875(b) incorporates the conduct proscribed by the federal kidnapping statute, 18 U.S.C. § 1201—and, more specifically, incorporates the parentalkidnapping exclusion of that statute. The pl ain terms of § 875(b) don’t say that. And the majority’s wide-sweeping discussion of the st atutory and legislative history of §§ 875(b) and 1201 does not persuasively indicate that Congress intend ed such an incorporation. See generally Thomas v. Reeves , 961 F.3d 800, 817 n.45 (5 th Cir. 2020) (en banc) (Willett, J., concurring) (per curiam) (discussi ng “the important dis tinction” between the concepts of “statutory” and “legislative” history). I would give the term “kidnap” as used in § 875(b) its common-law meaning. See, e.g. , Moskal v. United States , 498 U.S. 103, 114 (1990) (“[W]here a federal criminal statute uses a common-law term of established meaning without otherwise defining it, the ge neral practice is to give that term its common-law meaning.” (quoting United States v. Turley, 352 U.S. 407, 411 (1957))). And we have stated what that meaning is: “[ u]nder common law[,] ‘k idnap’ meant to take and carry away any person by force and against his will.” United States v. Marx , 485 F.2d 1179, 1186 (10th Cir. 1973); accord United States v. Young , 512 F.2d 321, 323 (4th Cir. 1975). As the majority ad verts to in footnote 17 of its opinion, when one applies the3 common-law definition of “kidnap,” no reasona ble jury could determine—with respect to counts 2 and 3—that Ms. Osipova was guilty of transmitting threats to kidnap in violation of § 875(b). Accordingly, her co nvictions for those counts should be vacated and her

case should be remanded to the district court for further proceedings. On the foregoing basis, I concur.