United States of America v. Sarah M. Nixon

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2132
U NITED STATES OF A MERICA ,
Plaintiff-Appellee,
v.
SARAH M. NIXON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 15-CR-20057 — Colin S. Bruce, Judge.
____________________
A RGUED MAY 17, 2018 — D ECIDED A UGUST 28, 2018
____________________
Before BAUER , EASTERBROOK , and MANION, Circuit Judges.
EASTERBROOK , Circuit Judge. During contentious child-
custody proceedings, Sarah Nixon accused her former hus-
band G.G. of physically and sexually assaulting their daugh-
ter S. N.-G. (We respect the parties’ convention of using ini-
tials to refer to Nixon’s ex-spouse, because revealing his
name would enable readers to infer the identity of a minor.
From now on we refer to the daughter simply as S.) A state

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2 No. 17-2132
judge in Illinois limited G.G.’s parental rights (visitation re-
quired the presence of another adult) while these allegations
were being investigated. As the evidence in the custody pro-
ceedings wrapped up, Nixon concluded that, at the next
scheduled court date, the judge would terminate her paren-
tal rights and give G.G. full custody of the child. The evening
before the judge’s decision was to be announced Nixon left
for Canada with S. and remained there even after learning
that the judge had given G.G. sole custody. This led to Nix-
on’s conviction for international parental kidnapping. 18
U.S.C. §1204. She has been sentenced to 26 months in prison.
It is an affirmative defense that “the defendant was flee-
ing an incidence or pattern of domestic violence”. 18 U.S.C.
§1204(c)(2). Nixon presented evidence that G.G. physically
and sexually abused S. The prosecutor sought to demon-
strate that Nixon had fabricated this evidence and coached S.
to accuse her father of misconduct. On the stand at trial S.
professed love for her father and fear of being alone with her
mother. She expressed regret at having allowed her mother
to persuade her to accuse her father falsely. The jury evi-
dently believed S. The evidence was sufficient to find that
Nixon had not carried her burden on this defense.
Nixon submits, however, that the judge made a legal er-
ror by limiting her to showing physical (including sexual)
misconduct toward her or her daughter. She wanted to ar-
gue that both she and S. suffered emotional, psychological,
and financial abuse from G.G.—or at least that she reasona-
bly believed that she had suffered these kinds of abuse, even
if objectively she had not. She wanted to argue, for example,
that G.G. injured her emotionally by selling the house in

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No. 17-2132 3
which they had resided during their marriage and that G.G.
often belittled her.
The problem with this line of defense is the statutory text.
It speaks of “domestic violence” rather than abuse more
generally—and it requires the defendant to show real domes-
tic violence, not just a belief that violence occurred. Selling a
beloved house is not “violence”; neither is demeaning lan-
guage. The Supreme Court has held that proof of “domestic
violence” in 18 U.S.C. §921(a)(33)(A) does not require as
much physical contact, or as great a risk of physical injury,
as other parts of the Criminal Code that use the word “vio-
lence.” See United States v. Castleman, 572 U.S. 157 (2014). We
may assume that the phrase “domestic violence” elsewhere
in Title 18, including §1204, specifies the same kind of mod-
erate violence. But the Justices have never suggested that the
word “violence” in any part of the Criminal Code can be sat-
isfied by emotional, psychological, or financial abuse.
Imagine if the tables were turned, and a grand jury in-
dicted a husband for committing “domestic violence”, con-
trary to 18 U.S.C. §2261(a)(1), by failing to provide adequate
financial support for his wife or swearing at her in a child’s
presence. That might be detestable conduct, and could be
tortious, but would not be a federal felony exposing the hus-
band to five years in prison. Neither text nor context implies
that “violence” has a meaning in §1204(c)(2) different from
that in other provisions addressing domestic violence.
Indeed, we could not equate “violence” with “abuse”
without converting every child-kidnapping prosecution into
a replay of the child-custody proceedings, in which the de-
fendant would try to relitigate the domestic-relations case by
showing that he or she really should have received custody.

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4 No. 17-2132
Yet §1204 is designed to take the outcome of the domestic-
relations case as a given. It provides that the loser in a child-
custody proceeding must accept the decision (subject to ap-
peal within the state system) and may not spirit the child
across an international border. Allowing an “abuse” defense
would defeat that function by effectively subjecting the
child-custody decision itself to review in the criminal case.
Nixon presents two other legal arguments. First, she
maintains that the indictment is duplicitous (that is, charges
two crimes in a single count), which led to an erroneous jury
instruction. Second, she contends that at the moment she
crossed the Canadian border G.G. did not have any parental
rights with respect to S. We address these in turn.
Section 1204(a) reads:
Whoever removes a child from the United States, or attempts to
do so, or retains a child (who has been in the United States) out-
side the United States with intent to obstruct the lawful exercise
of parental rights shall be fined under this title or imprisoned not
more than 3 years, or both.
A one-count indictment charged Nixon with removing S. to
Canada and retaining her there with intent to obstruct G.G.’s
parental rights. The district judge treated remove and retain
as two means of committing a single crime, cf. Mathis v.
United States, 136 S. Ct. 2243 (2016), and told the jury that it
need not agree unanimously on which means Nixon used.
That’s the right instruction if remove and retain are different
means of committing a single crime but not if they are ele-
ments of two different crimes. See Richardson v. United States,
526 U.S. 813, 817 (1999).
Nixon did not ask the district court before trial to dismiss
the indictment as duplicitous. She raised the subject for the

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No. 17-2132 5
first time during a mid-trial conference devoted to jury in-
structions. That delay forfeited her current argument. Rule
12(b)(3)(B)(i) of the Federal Rules of Criminal Procedure
provides that any defect in the indictment—including “join-
ing two or more offenses in the same count (duplicity)”—
that can be raised by pretrial motion must be so raised, and
that failure to raise the point before trial forfeits it unless
there is “good cause” (Rule 12(c)(3)) for the omission. Nixon
has not argued that she had good cause for deferring a du-
plicity objection until mid-trial.
Rule 12(b)(3) serves multiple important functions. A pre-
trial decision permits the United States to appeal from an
order that, because of the Double Jeopardy Clause, cannot be
appealed after trial. It permits the parties to brief the issue
with care, rather than address a complex legal issue on the
fly during a trial. It prevents game playing. Many a defend-
ant is tempted to seek an acquittal knowing that she has a
legal issue in her pocket that will lead to a new trial if the
jury convicts. All defendants would love to enjoy a trial that
they can win but not lose. Finally, with respect to duplicity
in particular, Rule 12(b)(3)(B)(i) calls on defendants to
choose their risk: they can insist on a multi-count indictment,
and thus require jury unanimity on how the offense was
committed, but the price is that they may end up with two
convictions, each with its own three-year term of imprison-
ment. A claim of duplicity can be a double-or-nothing strat-
egy for a defendant.
Rule 12(b)(3) is mandatory but not jurisdictional. Its ben-
efits may be waived or forfeited. See Hamer v. Neighborhood
Housing Services, 138 S. Ct. 13, 17 (2017). The prosecutor did
not invoke Rule 12(b)(3) in the district court or mention it in

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6 No. 17-2132
the appellate brief. An Assistant United States Attorney re-
quested the benefit of this rule once a judge pointed out the
problem at oral argument, but that came too late. Nixon for-
feited her legal position, and the United States then forfeited
the benefit of Nixon’s forfeiture. See Walker v. Weatherspoon,
No. 17-2665 (7th Cir. Aug. 13, 2018), slip op. 3–4.
As it happens, however, we agree with the district
judge’s conclusion on the merits: §1204(a) states multiple
ways of committing a single crime. Removal, attempted re-
moval, and retaining a child outside the United States are all
means of defeating a state court’s custody decision. The
maximum punishment of three years should not be elevated
to nine if a creative prosecutor charges removal, attempted
removal, and retention in separate counts. Section 1204(a) is
one subsection; it does not have the standard indicators,
such as separately enumerated subdivisions, that multiple
crimes are being created. We have not found any comparable
statute in which specification of related means has been
treated as creating separate crimes, and under the approach
that Mathis took to burglary statutes the list in §1204(a) just
identifies three different means.
For what it may be worth, we add that any error was
harmless beyond a reasonable doubt. Uncontested evidence
shows that Nixon removed S. from the country in anticipa-
tion of an adverse decision and kept her in Canada after
learning of the adverse decision. Nothing in the evidence at
trial would have permitted a rational juror to find removal
but not retention, or retention but not removal.
Now for the parental-rights issue. Section 1204(a) penal-
izes a cross-border abduction in derogation of another per-
son’s “parental rights”. The phrase is a defined term:

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No. 17-2132 7
the term “parental rights”, with respect to a child, means the
right to physical custody of the child—
(A) whether joint or sole (and includes visiting rights); and
(B) whether arising by operation of law, court order, or le-
gally binding agreement of the parties.
18 U.S.C. §1204(b)(2). The district judge told the jury that
G.G. had “parental rights” with respect to S. as a matter of
law when Nixon removed S. from the United States. Nixon
did not ask the district judge to leave this question to the ju-
ry but contends in this court that the judge got the answer
wrong. (Some passages in her brief also could be read to
contend that parental rights must be decided by the jury, but
any such argument had to be raised first in the district court,
when there was time to put the issue to the jury.)
Nixon maintains that G.G. lacked parental rights when
she crossed into Canada because, while investigating Nix-
on’s charge that G.G. had sexually molested S., the state
judge forbade G.G. from being in a room with S. unless Dr.
Helen Appleton (a child psychologist evaluating the charge
of sexual contact) was present. The district judge ruled that
G.G. retained “visiting rights” with respect to S., and as “pa-
rental rights” include visiting rights there was no room for
dispute. And that is correct.
The limitation on visitation was a result of an agreement
between the parents. G.G. promised not to see S. unless Dr.
Appleton was present; Nixon understood that this would
protect S. (if G.G. was indeed a sexual predator) and facili-
tate Appleton’s assessment of how G.G. and S. related to
each other. At the time the parents reached this agreement
(which was implemented by the state judge), G.G. had visit-
ing rights by order of the state domestic-relations court. The

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8 No. 17-2132
agreement did not rescind those rights. G.G. had a right to
see his daughter; that a third party would be present does
not make this right something other than “visiting rights”.
See, e.g., United States v. Miller, 626 F.3d 682, 688 (2d Cir.
2010) (a parent’s entitlement to supervised visits with a child
created “parental rights”).
Conditions on the exercise of parental rights do not abro-
gate them. Take a simple hypothetical: a state court’s order
provides that X is entitled to custody of daughter Z on
weekdays, while Y has custody on weekends. If Y spirited Z
out of the country on a weekend, Y could not plausibly ar-
gue that this was lawful because X lacked visiting rights on
Saturdays and Sundays. The removal would infringe X’s
rights on the other five days. Similarly, Nixon’s removal of S.
from the United States infringed G.G.’s right to see S.
Nixon presents a number of additional arguments about
the district court’s exclusion of some evidence she wanted to
introduce. Most of these contentions fail in light of the three
legal decisions covered in this opinion. The others need not
be discussed separately; the district court did not abuse its
discretion.
A FFIRMED

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