10-4969-cr

United States v. Saliba

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. 

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

Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,

on the 6th day of December, two thousand twelve.

Present: AMALYA L. KEARSE,

CHESTER J. STRAUB,

ROSEMARY S. POOLER,

Circuit Judges.

_____________________________________________________

UNITED STATES OF AMERICA

Appellee,

 -v- 10-4969-cr

PIERRE F. SALIBA, 

Defendant-Appellant.

_____________________________________________________

Appearing for Appellant: Lawrence D. Gerzog, New York, NY

 

Appearing for Appellee: Justin D. Lerer, (David C. James, on the brief), Assistant United

States Attorneys, for Loretta E. Lynch, United States Attorney,

Eastern District of New York, NY

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

(Irizarry, J.).
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ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED. 

Defendant-Appellant Pierre Saliba appeals from a judgment entered on December 3,

2010, convicting him of international parental kidnapping, in violation of the International

Parental Kidnapping Crime Act (“IPKCA”), 18 U.S.C. § 1204(a). On appeal, defendant

principally asserts (i) IPKCA is unconstitutionally vague as applied to defendant’s conduct; (ii)

the evidence was insufficient to support defendant’s conviction under IPKCA; (iii) the district

court’s evidentiary rulings and jury instructions were incorrect; and (iv) the district court erred

by admitting evidence that revealed defendant’s prior incarceration. We assume the parties’

familiarity with the underlying facts, procedural history, and specification of issues for review. 

This Court reviews attacks on the constitutionality of a statute de novo and as a question

of law. United States v. Murphy, 979 F.2d 287, 289 (2d Cir. 1992). In order to survive a

vagueness challenge, a penal statute must “define the criminal offense with sufficient

definiteness that ordinary people can understand what conduct is prohibited and in a manner that

does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S.

352, 357 (1983). In accordance with this standard, this Circuit has already decided in United

States v. Amer, that IPKCA withstands vagueness challenges of the kind raised here. 110 F.3d

873, 877-79 (2d Cir. 1997); see id. at 878 (rejecting the contention that the fact that § 1204(a)

does not specify the length of time that a child must have been in the United States makes the

phrase “who has been in the United States” vague as applied to a defendant who abducted three

children, one of whom “had resided in New York for eight years, and [two of whom] had lived in

New York since their birth”). Although Amer noted that “the phrase ‘has been in the United

States’ might reflect some uncertainty as applied to extreme situations,” and that “there might be

room for argument as to whether foreign children who were merely visiting the United States on

a week-long vacation would be protected by the Act,” 110 F.3d at 878, this plainly is not such a

case. Saliba’s daughter was born in the United States and is thus a United States citizen; she

lived in Brooklyn for the first four months of her life; and she had been living in the United

States for nearly four months when she was abducted by Saliba. His conduct is clearly covered

by the Act, and we reject his vagueness argument. 

This Court reviews sufficiency of the evidence de novo. United States v. Abu-Jihaad, 630

F.3d 102, 134 (2d Cir. 2010). “[V]iewing the evidence in the light most favorable to the

prosecution,” the question is whether “any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

(1979). Applying this deferential standard, we conclude the evidence here was sufficient to find

“intent to obstruct . . . parental rights,” 18 U.S.C. § 1204(a), where defendant absconded with his

child for eight years, to Lebanon, without notice to or the consent of the child’s mother. See

United States v. Sardana, 101 F. App’x 851, 853-54 (2d Cir. 2004) (finding the evidence

sufficient where defendant “surreptitiously” removed his child “for several months” to India). 

We grant district courts “wide latitude” in admissibility determinations, SR Int’l Bus. Ins.

Co. v. World Trade Ctr. Props., LLC, 467 F.3d 107, 119 (2d Cir. 2006), and this Court reviews

such evidentiary rulings for abuse of discretion, reversing only for “manifest error.” Cameron v.

City of New York, 598 F.3d 50, 61 (2d Cir. 2010). We find the district court did not abuse its

discretion in excluding prejudicial background evidence such as the child’s mother’s ability to
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parent, which is not relevant with regard to the IPKCA charge. See Amer, 110 F.3d at 880-82

(affirming exclusion of evidence that the mother was a “poor parent” under IPKCA); Sardana,

101 F. App’x at 853-54 (same). 

In applying Federal Rules of Evidence 403 and 404 “[d]istrict courts have broad

discretion [as] to balanc[ing]” whether potentially prejudicial evidence should be admitted and

“we will not disturb that balancing unless there is a clear showing of abuse of discretion.” 

United States v. Bermudez, 529 F.3d 158, 161 (2d Cir. 2008) (internal citations omitted). Here,

we conclude that the district court did not abuse its discretion when it allowed evidence as to

defendant’s prior incarceration where such evidence was only briefly mentioned by one witness

and for no longer than necessary to authenticate a recording. See United States v. Deandrade,

600 F.3d 115, 118-19 (2d Cir. 2010) (finding it not necessary to reverse convictions involving

references to a defendant’s incarceration when those references were “fleeting”). 

In sum, because we find appellant’s arguments without merit, the judgment of the district

court hereby is AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk