11-3388-cr

United States v. Ly

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO

A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS

GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S

LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH

THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING

A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY

COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 3rd 2 day

3 of January, two thousand thirteen.

4

5 Present: PIERRE N. LEVAL,

6 ROSEMARY S. POOLER,

7 BARRINGTON D. PARKER,

8 Circuit Judges.

9

10 ________________________________________________

11

12 UNITED STATES OF AMERICA, 

13

14 Appellant,

15

16 v. No. 11-3388-cr

17

18 HUONG THI KIM LY, 

19

20 Defendant-Appellee.

21

22 ________________________________________________

23

24 For Appellant: Soumya Dayananda (Amy Busa, Assistant United States Attorneys, on

25 the brief), for Loretta E. Lynch, United States Attorney for the Eastern

26 District of New York, Brooklyn, NY

27

28 For Defendant-Appellee: Edward M. Kratt, New York, NY

29 ________________________________________________
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2 Appeal from the United States District Court for the Eastern District of New York

3 (Johnson, J.). 

4

5 ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

6 DECREED that the judgment of the district court dated July 22, 2011, be and hereby is

7 AFFIRMED.

8 The United States appeals from the district court’s grant of a new trial in the criminal trial

9 of Defendant Huong Thi Kim Ly. We assume the parties’ familiarity with the underlying facts

10 and procedural history.

11 “We review the decision of the district court to grant a new trial for abuse of discretion.”

12 United States v. Ferguson, 246 F.3d 129, 133 (2d Cir. 2001). Under Fed. R. Crim. P. 33, a

13 district court may grant a new trial to a defendant “if the interest of justice so requires,” which

14 we have explained means that “letting a guilty verdict stand would be a manifest injustice.”

15 Ferguson, 246 F.3d at 133-34.

16 We affirm the district court’s grant of a new trial. We believe the district court was

17 correct in its perception that its response to the jury’s request for a more helpful definition of

18 domestic violence, telling the jury no more than to use its common sense, failed to give the jury

19 appropriate guidance and potentially prejudiced defendant’s case. See United States v.

20 Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004). For example, the defendant testified to several

21 incidences of conduct, which constitute domestic violence within the meaning of the statute,

22 such as a slap in the face, but which the jury might erroneously have believed too trivial to be

23 considered violence. The court’s failure to explain the term “domestic violence” to the jury could

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 The district court appeared to believe, in addition, that the jury should have been

instructed that purely emotional abuse, involving neither incidence nor threat nor attempt of

physical harm or force, also qualifies as domestic violence, so that flight from such conduct

would constitute a defense to international child kidnapping under 18 U.S.C. § 1204. The court

relied in part on a website posting by the Department of Justice’s Office on Violence Against

Women, which defined “domestic violence” to include purely emotional, economic, or

psychologic abuse. See USDOJ: OFFICE ON VIOLENCE AGAINST WOMEN: CRIMES OF FOCUS:

DOMESTIC VIOLENCE, http://www.ovw.usdoj.gov/domviolence.htm (last updated August 2012).

It is by no means clear to us that Congress intended by § 1204 to make a spouse’s flight

from purely emotional abuse (such as, calling one’s spouse “stupid,” for example),

unaccompanied by any incidence or threat of physical force, a defense to kidnapping. Domestic

violence must include the use of physical force and any threats, explicit or implicit, including

gestures and psychological means, that create a reasonable fear of harm in the victim. In other

statutes, Congress has repeatedly used the term “violence” to mean physical harm or threatened

or attempted physical harm. For example, 18 U.S.C. § 16 defines a “crime of violence” as an

“offense that has as an element the use, attempted use, or threatened use of physical force against

the person or property of another,” or an offense “that, by its nature, involves a substantial risk

that physical force against the person or property of another may be used in the course of

committing the offense.” See also id. § 3156(a)(4) (same). That definition of “crime of violence”

is incorporated in several statutes into the term “domestic violence.” See, e.g., 8 U.S.C. §

1227(a)(2)(E)(i) (defining “crime of domestic violence” in context of immigration laws as a

“crime of violence (as defined in section 16 of Title 18)” against a person committed by a current

or former spouse or similarly-related individual); 18 U.S.C. § 2261(a) (defining “interstate

domestic violence” as a crime where a person with the requisite intent and relationship to the

victim “commits or attempts to commit a crime of violence”); id. § 3561(b) (defining “domestic

violence crime” as a “crime of violence” against a current or former spouse or similarly-related

individual); 42 U.S.C. § 13925(a)(6) (defining “domestic violence,” for purposes of subchapter

III of Chapter 136 of Title 42, as “crimes of violence” committed by a current or former spouse

or similarly-related individual).

We have no need to rule definitively on the issue at this time and do not do so. We urge

the district court to request full briefing of the issue before instructing the jury in the new trial.

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1 well have prejudiced the defense. We conclude that the court’s decision to grant a new trial was

within the court’s lawful discretion. Accordingly, we reject the government’s appeal.1 2

3 For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

4 FOR THE COURT:

5 CATHERINE O’HAGAN WOLFE, CLERK

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