USA – FEDERAL – 1997

United States America v Amer (2nd Cir. 1997)— Fed.3d —; Docket Number 96-1181
1 International Abduction [USA 1997]


No 298 — August Term 1996
Argued: October 16, 1996 Decided: March 26, 1997
Docket No. 96-1181




Before: NEWMAN, Chief Judge, CARDAMONE and McLAUGHLIN,
Circuit Judges.

Appeal from the March 14, 1996, judgment of the United
States District Court for the Eastern District of New
York (Carol Bagley Amon, Judge) convicting appellant of
international parental kidnapping,in violation of 18
U.S.C.  1204.


Henry H. Rossbacher, Los Angeles, Cal. (Tracy W. Young,
Rossbacher & Associates, Los Angeles, Cal.; Harry C.
Batchelder, Jr., New York, N.Y., on the brief), for

Timothy Macht, Asst. U.S. Atty., Brooklyn, (Zachary W.
Carter, U.S. Atty., Peter A. Norling, Asst. U.S. Atty.,
Brooklyn, N.Y., on the brief), for appellee.

JON O. NEWMAN, Chief Judge:

001 This appeal concerns several issues arising from a
conviction for violation of the International Parental
Kidnapping Crime Act (“IPKCA” or “the Act”), 18 U.S.C. 
1204. The IPKCA bars a parent from removing a child from
the United States or retaining outside the United States
a child who has been in the United States, with the
intent to obstruct the other parent’s right to physical
custody. We have not previously considered this statute.
The specific questions raised are (i) whether the IPKCA
is unconstitutionally vague, (ii) whether it is
overbroad in intruding upon the free exercise of
religion, (iii) whether it incorporates the affirmative
defenses found in the Hague Convention on the Civil
Aspects of International Parental Child Abduction
(“Hague Convention”), (iv) whether the sentencing court
properly imposed, as a condition of the convicted
defendant’s term of supervised release, a requirement
that the defendant return the still-retained children to
the United States, and (v) whether the sentencing court
properly applied a three-level enhancement for
substantial interference with the administration of

002 These issues of first impression arise on an appeal
by Ahmed America from the March 14, 1996, judgment of
the District Court for the Eastern District of New York
(Carol Bagley Amon, Judge), convicting him, after a jury
trial, of one count of international parental kidnapping
in violation of the IPKCA and sentencing him to
twenty-four months’ imprisonment and a one-year term of
supervised release with the special condition that he
effect the return of the abducted children to the United
States. We affirm.


003 Ahmed America (“Ahmed”) and Mona America (“Mona”),
Egyptian citizens and adherents of the Islamic faith,
were married in Egypt in 1980. Four years later, while
still in Egypt, Mona gave birth to the couple’s first
child, a boy named Amachmud. In 1985, Ahmed, seeking
employment, left his wife and newborn son in Egypt and
moved to the United States. Ahmed eventually settled in
Queens, New York. In 1987, Mona and Amachmud joined
Ahmed in Queens. Mona stayed home to take care of the
child while Ahmed worked as a cook in various diners in
the city. In 1989, the couple had another child, a girl
named Maha. In 1991, the couple’s third child, a son
named Omar, was born.

004 The two children born in the United States, Maha
and Omar, became American citizens upon their birth. In
1991, Ahmed became a naturalized United States citizen,
though he continued to retain his Egyptian citizenship.
Mona obtained permanent resident alien status in this
country the following year. Also in 1992, the entire
America family returned to Egypt for one-month visit,
which was the only time that anyone in the family
returned to Egypt prior to the episode on which the
indictment is based.

005 During the early 1990s, the Amers’ marriage began
to deteriorate. Ahmed and Mona quarreled frequently over
Ahmed’s bigamous marriage to another woman, Mona’s
decision to work outside the home, and her decision to
apply for welfare. Ahmed regularly abused Mona both
verbally and physically. In April 1994, Mona asked Ahmed
to leave the family apartment. He obliged and moved into
a friend’s apartment. The couple did not, however,
divorce or become legally separated. The three children
remained with Mona at the Queens home. No formal custody
arrangement was made. Ahmed visited the children
whenever he wished, usually once each week. During this
period, Mona supported herself with public assistance
and loans from friends.

006 Although he was no longer living in the family
home, Ahead continued to abuse Mona when he saw her. He
also began to try to persuade her to move back to Egypt
with him, suggesting that the children would receive a
better education there and that the family would benefit
from living among close relatives. Although Mona at one
point appeared to agree, she eventually told Ahmed that
neither she nor the children would return to Egypt.
Ahmed threatened to kill Mona for her refusal, but she
would not agree to leave the United States or to allow
him to take the children from this country.

007 On January 27, 1995, Ahmed came to the family
apartment in Queens to have dinner with Mona and the
children. After dinner, Mona left the house to do some
shopping. When she returned two hours later, Ahmed and
the children were gone. The next morning Mona learned
that Ahmed had taken the children to Egypt. Mona has not
seen her children since that time.

008 Records from Egypt Air showed that on the evening
of January 27th, Ahmed and the three children boarded a
flight from JFK Airport to Egypt. After arriving in
Egypt, Ahmed took the children to his mother’s home,
which is about ten minutes from the home of Mona’s
parents. The children visited with Mona’s parents a few
days after their arrival in Egypt. Amachmud, Maha, and
Omar continue to Preside in Egypt with Ahmed’s mother.

009 In February 1995, Mona filed a complaint in Queens
Family Court Seeking custody of the children. The court
awarded her full legal custody of the three children and
issued a warrant for Ahmed’s arrest. At around the same
time, Ahmed obtained an order from an Egyptian court
compelling Mona to return to the “conjugal home” in
Eqypt. After Mona failed to return to Egypt within
three months, the Egyptian court in May 1995 awarded
Ahmed custody of the three children. Additionally, Mona
no longer has custody rights to twelve-year-old Amachmud
under Egyptian law, which provides that a mother loses
all rights to her male child when he reaches the age of

010 In June 1995 Ahmed left the children in his
mother’s care and returned to the United States. He was
apprehended the following month in New Jersey. The
eventual indictment, issued in the Eastern District of
New York, charged that “[o]n or about and between
January 27, 1995 and August 4, 1995, . . . the defendant
Ahmed America did Knowingly and intentionally remove and
retain children who had been in the United States, to
wit Amachmud] America, Maha America and Omar America,
outside the United States with the intent to obstruct
the lawful exercise of parental rights,” in violation of
the IPKCA. Ahmed was convicted by a jury on the sole
count of the indictment. Judge Amon imposed a sentence
of twenty-four months’ imprisonment and a one-year term
of supervised release, with the special condition that
Ahmed effect the return of the three children to the
United |States. At the time of this appeal, the children
remain in Egypt.


011 The IPKCA was enacted in December 1993, but has
apparently |been sparingly used. We have found no
published decision- of a |federal court construing this
statute. The IPKCA provides, in |relevant part:

(a) Whoever removes a child from the
United States 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 shall be fined under
this title or imprisoned not more than
3 years, or both.

(b) As used in this section —

(1) the term “child” means a person
who has not attained the age of 16
years; and

(2) 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 legally binding
agreement of the parties.

18 U.S.C. S 1204. Ahmed raises two constitutional
challenges to the Act: that it is vague and also
overbroad in its intrusion upon free exercise rights. He
also contends that the District Court erred in not
allowing him to present certain “affirmative defenses”
found in |the Hague Convention during the trial, in
imposing a special condition of his term of supervised
release, and in enhancing his offense level. We discuss
each contention in turn.

I. Vagueness

012 Ahmed contends that three aspects of the Act render
it void For vagueness by failing to give a “person of
ordinary intelligence la reasonable opportunity to know
what is prohibited” under the Act. See Grayned v. City
of Rockford, 408 U.S. 104, 108 (1972). First, he
asserts that the term “retains,” 18 U.S.C.  1204(a), is
vague because the Act does not define the duration or
length of time that a child must be “retain[ed]” outside
the United States in order to constitute a violation of
the IPKCA. Second, he contends that the parenthetical
phrase “([child] who has been in the United States),”
id., is vague because the IPKCA does not specify the
length of time that a child must have been in the United
States before the IPKCA will be triggered by the child’s
removal or retention. Third, he argues that the phrase
“lawful exercise of parental rights,” id., is vague
because the Act does not provide any guidance as to
whether parental rights are to be defined by state law,
federal law, Egyptian law, customary international law,
or “positive law promulgated by the United Nations.”

013 The “void-for-vagueness doctrine requires that a
penal statute define the criminal offense with
sufficient definiteness that ordinary people can
understand whet ‘conduct is prohibited and in a manner
that does not encourage arbitrary and discriminatory
enforcement.” Kolender v. Lawson, 461 U.S. 352, 357
(1983). To succeed, however, the proponent of the
vagueness argument “must demonstrate that the law is
impermissibly vague in all of its applications.”
Village of Hoffman Estates v. Flipside. Hoffman Estates
Inc., 455 U.S. 489, 497 (1982). Specifically, a
challenger “who engages in some conduct that is clearly
proscribed [by the challenged statute cannot complain of
the vagueness of the law as applied to the conduct of
others.” Id. at 495; see Parker v. Levy, 417 U.S. 733,
756 (1974); Brache v. County of Westchester, 658 F.2d
47, 51 (2d Cir. 1981); Laurence H. Tribe, American
Constitutional Law  12-31 at 1034 (2d ed. 1988).

014 This limiting principle defeats Ahmed’s vagueness
challenge. Even if the term “retains” or the phrase “has
been in the United States” might reflect some
uncertainty as applied to extreme situations, the
conduct for which Ahmed was prosecuted and convicted
falls squarely within the core of the IPKCA. First,
although it might be debatable whether a two- or
three-day retention outside the United States would be
sufficient to trigger the Act, there can be no doubt
that Ahmed’s retention of the three children from
January 27, 1995, to August 4, 1995, the period set out
in the indictment, was covered by the Act. Second,
although 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, no issue arises as to the duration of the stay of
the three America children in the United States. The
eldest child had resided in New York since leaving Egypt
in 1987, and the other two children were born in New
York in, respectively, 1989 and 1991, and have resided
in Tithe United States for their entire lives.

015 Finally, Amer’s argument as to the clarity of the
phrase “parental rights” fails because Congress made
clear in the legislative history of the Act that
“`parental rights’ are to be determined by reference to
State law, in accordance with the Hague Convention . . .
.” H.R. Rep. No. 103-390, at 4 (1993), reprinted in
1993 U.S.C.C.A.N. 2419, 2422 (“House Report”). Article
3 of the Hague Convention provides that parental rights
are to be defined by “the law of the state in which the
child was habitually resident [immediately before the
removal or retention.” Art. 3(a), Hague Convention,
opened for signature Oct. 25, 1980, 19 I.L.M. 1501,
T.I.A.S. No. 11670 (1980) (entered into force for the
United States, July 1, 1988); see Merritt L. McKeon,
International Parental Kidnapping: A New Law, a New
Solution, 30 Fam. L.Q. 235, 240 (1996). Although the
concept of the state of “habitual residence” might be
unclear at the margins, there is no doubt that, in this
case, New York is that place. At the time of their
abduction, Amachmud had resided in New York for eight
years, and Maha and Omar had lived in New York since
their birth. Moreover, there is no confusion under New
York law that Mona, as the biological mother, enjoys the
right to physical custody of her children unless and
until this right is terminated by law. See. e.g., In re
Michael B., 80 N.Y.2d 299, 308-09 [604 N.E.2d 122,
127-28 (1992).

016 Ahmed’s act of removing long-term residents of the
United States and retaining them for more than six
months in Egypt in order to frustrate their mother’s
lawful exercise of her right to physical custody under
New York law falls squarely within the coverage of the
IPKCA. Because “[o]ne to whose conduct a statute clearly
applies may not successfully challenge it for
vagueness,” Parker, 417 U.S. at 756, Ahmed’s first
argument cannot succeed.

II. Overbreadth/Free Exercise

017 Ahmed next contends that the IPKCA must be
invalidated because it punishes parents for engaging in
the constitutionally protected act of returning their
children to the land of the parents’ birth for religious
reasons. Although Ahmed styles this an “over-breadth”
argument, his real point is that the IPKCA infringes on
the free exercise of religion by proscribing removals of
children from the United States even when those acts are
dictated, or at least motivated, by “religious law.”
Ahmed contends that he returned his children to Egypt in
order to provide them with a proper Muslim upbringing,
and that punishing him for this act violates his rights
under the Free Exercise Clause.

018 This argument was not raised until this appeal and
is hence forfeited. See. e.g.., United States v.
Papadakis, 802 F.2d 618, 621 (2d Cir. 1986). At no point
during the pretrial, trial, or sentencing proceedings
did Ahmed argue that his act of removing and retaining
the children was religiously mandated or inspired. The
only explanations that the defense proffered to justify
Ahmed’s conduct were that (i) Mona was neglecting the
children, (ii) the children would be “better taken care
of in Egypt,” (iii) Ahmed had “finished this business]
in [the United States] and . . . wish[ed] to settle in
this) own Nation among [his] family and relatives,” and
(iv) “the schools over there were better.” Because Ahmed
failed to bring to the District Court’s attention the
claim that his taking the children to Egypt was
religiously motivated, thereby precluding the Government
the opportunity of disputing such a claim factually, he
has forfeited his free exercise challenge.

019 Moreover, there is no plain error, see Fed. R.
Crim. P. 152(b), even under the somewhat less stringent
version of plain-error analysis applicable to alleged
“errors of constitutional magnitude.” See United States
v. Torres, 901 F.2d 205, 228 (2d Cir. 1990) (quotations
and citation omitted). A neutral law of general
[applicability does not violate the Free Exercise Clause
simply because the law imposes an incidental burden on a
religious practice. Employment Division, Department of
Human Resources of Oregon v. Smith, 494 U.S. 872, 878-79
(1990). The IPKCA punishes conduct within its reach
without regard to whether the conduct was religiously
motivated. Because Ahmed does not even allege that the
IPKCA targets religious beliefs or was designed to
prohibit parental kidnappings motivated by the parents’
religious concerns, see Church of the Lukumi Babalu Ave.
Inc. v. Hialeah, 508 U.S. 520, 545-46 (1991), and
because the Act Punishes parental kidnappings solely for
the harm they cause, it does not violate the Free
Exercise Clause. FN1

III. Incorporation of Hague Convention Defenses

020 Ahmed contends that the District Court erred when
it refused to permit him to argue in his defense that he
was justified in removing and retaining the children in
Egypt under the Hague Convention. The Convention, he
asserts, affords him a defense where “there is a grave
risk that [the children’s] return would expose the
children] to physical or psychological harm or otherwise
place the child[ren] in an intolerable situation.” This
risk, he argues, arises from Mona’s allegedly neglectful
care. Ahmed also contends that the Hague Convention
allows him to argue in his defense that the |children’s
return would not be “permitted by the fundamental
principles of [Egyptian law] relating to the protection
of human rights and fundamental freedoms,” which
allegedly do not permit Muslim children to be denied
their right to an Islamic upbringing. Hague Convention,
Arts. 13(b) & 20. FN2 The District Court denied
Ahmed’s request because it found that the three
affirmative defenses specifically set forth in section
1204(c) of the Act are the only ones available to a
defendant facing an IPKCA prosecution:

(c) It shall be an affirmative defense
under !! this section that —

(1) the defendant acted within the
provisions of a valid court order
granting the defendant legal custody
or visitation rights and that order
was obtained pursuant to the Uniform i
Child Custody Jurisdiction Act and was
in effect at the time of the offense;

(2) the defendant was fleeing an
incidence or pattern of domestic

(3) the defendant had physical custody
of the child pursuant to a court order
granting legal custody or visitation
rights and failed to return the child
as a result of circumstances beyond
the defendant’s control, and the
defendant notified or made reasonable
attempts to notify the other parent or
lawful custodian of the child of such
circumstances within 24 hours after
the visitation period had expired and
returned the child as soon as

18 U.S.C.  1204(c). Since Ahmed did not qualify under
any of these subsections, the Court ruled that he could
not argue that he was justified in removing and
retaining the children because, among other things, Mona
was a poor parent or because Egyptian human rights laws
protected the right of Islamic children to a proper
religious education.

021 Ahmed argues that the District Court’s construction
conflicts with section 1204(d), which provides that the
Act “does not detract from The Hague Convention.” Id. 
1204(d) (emphasis added). As he reads the emphasized
language, the IPKCA must be construed to incorporate all
the defenses available in the Hague Convention because,
otherwise, the Act would “detract from” the Convention.
His point is that since the requested state in a Hague
Convention proceeding can decline the “left-behind”
parent’s request that the children be returned if the
return would “expose the children] to physical or
psychological harm,” “place the child[ren] in an
intolerable situation”, or result in the denial of their
religious freedoms, an abducting parent prosecuted under
the IPKCA must be allowed to present these same defenses
if the Act is not to “detract from” the Convention.

022 We note, as an initial matter of statutory
construction, that the IPKCA’s explicit listing of three
and only three, affirmative defenses is a strong
indication that the defenses arguably inferred from the
Hague Convention are not available in an IPKCA
prosecution, at least in the absence of a clear
indication that the Convention makes such defenses
available. In any event, our examination of the
relationship between the Hague Convention and the IPKCA
reveals that, at least in this case, refusing to allow
Ahmed to present Hague Convention defenses not found in
the IPKCA would not in any way “detract from” the

023 The Hague Convention, which was drafted in 1980
and, as of May 1995, had been ratified by forty-one
nations, see Antoinette Passanante, Note, International
Parental Kidnapping: The Call for an Increased Federal
Response, 34 Colum. J. Transnat’l L. 677, 692 & n.90
(1996), was adopted in order “to protect children
internationally from the harmful effects of their
wrongful removal or retention and to establish
procedures to ensure their prompt return to the State of
their habitual residence, as well as to secure
protection for rights of access.” Hague Convention,
preamble. It created a previously unavailable civil
remedy for the return of abducted children, whereby the
left-behind parent can request the designated “Central
Authority” of the state in which the abducted child is
retained to locate the child, institute proceedings to
effect its |return, assist in administrative
technicalities, and generally aid in the amicable
resolution of the kidnapping situation. Hague
Convention, Arts. 6 to 9. FN3 See Generally Susan L.
Barone, International Parental Child Abduction: A Global
Dilemma with Limited Relief — Can Something More Be
Done?, 8 N.Y. Int’l L. Rev. 95, 100-13 (1995); Lynda R.
Herring, Comment, Taking Away the Pawns: International
Parental Abduction & the Hague Convention, 20 N.C. J.
Int’l L. & Com. Reg. 137 (1994). The Convention also
provides that the respective Central Authorities of the
state of habitual residence (i.e., the state from which
the children have been removed) and the state to which
the children have been taken and retained “shall
co-operate with each other and promote co-operation
amongst the competent authorities in their respective
States to secure the prompt return of children.” Hague
Convention, Art. 7.

024 The Convention includes no criminal punishment for
the abducting parent, nor does it provide for the
resolution of the underlying custody dispute. Its sole
objective is to “restore the factual situation that
existed prior to a child’s removal or retention.”
Herring, supra, at 147; see Hague Convention, Art. 19
(“A decision under this Convention concerning the return
of the child shall not be taken to be a determination on
the merits of any custody issue.”). The United States
became a party to the Convention on July 1, 1988, see
Exec. Order No. 12,648, 53 Fed. Reg. 30,637 (1988), and
Congress subsequently enacted the International Child
Abduction Remedies Act, 42 U.S.C.  11601-11610, to
implement the Convention. The designated Central
Authority in the United States is the Department of
State. 53 Fed. Reg. at 30,637.

025 The Hague Convention!s mechanisms are triggered,
however, only when both the country to which the child
is abducted and the country from which they are taken
are parties to the Convention As Article 35 plainly
states, “This Convention shall apply as between
Contracting States . . . .” See also Hague Convention,
Art. 1 (object of convention is to “ensure that rights
of custody and of access under the law of one
Contracting State are effectively respected in the other
Contracting States”). This requirement that both the
“left-behind” and the “retaining” countries are
signatories to the Convention is also implicit in its
very operation. Because the Convention functions solely
through the designated Central Authorities in the
respective states, and because only contracting parties
will have designated such authorities, the Convention
can operate only between two signatory states. See id.,
Arts. 6 & 7; Mezo v. Elmernawi, 855 F.Supp. 59, 62
(E.D.N.Y. 1994); Mohsen v. Mohsen, 715 F. Supp. 1063,
1065 (D. Wyo. 1989).

026 Because the Convention does not apply when children
habitually resident in the United States (and who are
often American citizens) are abducted from this country
and retained in a non-contracting country, the
perception arose that something was needed to deter
parents from removing and retaining their children in
these “safe haven” countries, and thus to close the gap
left open by the unfortunate fact that few countries
have signed on to the Convention. As the IPKCA’s
legislative history shows, it was against this backdrop
that the Act was enacted:

There is an international civil
mechanism relating to these cases, the
Hague Convention . . . . for which
Congress passed implementing
legislation in 1988. As a result of
this convention, the signatories will
recognize the custody decrees of other
signatories, thereby facilitating the
return of abducted children. However,
most countries are not signatories to
the Convention. thus leaving
individual countries to take whatever
legal unilateral action they can to
obtain the return of abducted
children. Creating a federal felony
offense responds to these problems . .
. .

House Report at 3, 1993 U.S.C.C.A.N. at 2421 (emphasis
added). Nonetheless, Congress continued to believe that
the civil mechanism of the Hague Convention, when
available, was the preferred route for resolving the
complex and difficult problems surrounding inter-
national child abductions. It thus provided a “Sense of
Congress” resolution to accompany the Act:

It is the sense of the Congress that,
inasmuch as use of the procedures
under the Hague Convention . . . has
resulted in the return of many
children, those procedures, in
circumstances in which they are
applicable, should be the option of
first choice for a parent who seeks
the return of a child who has been
removed from the parent.

Pub. L. No. 103-173,  2(b), 107 Stat. 1998 (1993)
(emphasis added); see Statement by President Clinton
upon Signing the IPKCA], 29 Weekly Comp. Pres. Doc. 2493
(Dec. 6, 1993), reprinted in 1993 U.S.C.C.A.N. at 2424-1
(“[The Act] reflects the Congress’ awareness that the
Hague Convention has resulted in the return of many
children and the Congress’ desire to ensure that the
creation of a Federal Child abduction felony offense
does not and should not interfere with the Convention’s
continued successful operation. ù ù . [The Act] should
be read and used in a manner consistent with the
Congress, Strong expressed preference for resolving
these difficult cases, if flat all possible, through
civil remedies.”). In that spirit, section 1204 (d) of
the IPKCA provides that the Act “does not detract from
the Hague Convention.” 18 U.S.C.  1204(d).

027 Construing the IPKCA against this background, we
conclude that rejecting Hague Convention defenses in
Ahmed’s prosecution does not “detract from” the
Convention. In the first place, Egypt, the country to
which the America children have been removed and in
which they are currently being retained, is not a
signatory to the Convention. See Passanante, supra, at
692 n.90 (listing parties to convention); Mezo, 855 F.
Supp. at 61 (“[N]either Egypt nor Libya are signatories
to the Hague Convention and are therefore not bound by
its requirements.”). Second, because the civil mechanism
of. the Convention is therefore unavailable to Mona to
effect the return of her children, the United States’
criminal prosecution of Ahmed for the abduction and
retention of the children under the IPKCA cannot in any
way “detract from” the Hague Convention within the
meaning of section 1204(d), and, indeed, perfectly
fulfills the “enforcement-gap-closing” function for
which the IPKCA was partially enacted. Although it
might be a close question whether a defendant should be
permitted to raise Hague Convention defenses when, for
instance, there is a parallel or ongoing civil
proceeding under the Convention and its implementing
legislation, we do not need to decide that question in
this case. The District Court acted properly in
restricting Ahmed to the three available affirmative
defenses found in section 1204(c) of the Act.

IV. Special Condition of Supervised Release

028 Ahmed next objects to the District Court’s
imposition of the following special condition of
supervised release: “[T]he defendant [must] effect the
return of the children to the United States to Mona
America.” He contends that (a) the District Court
exceeded its authority under the Sentencing Guidelines
provisions concerning appropriate conditions of
supervised release, (b) this condition is inconsistent
with the Sentencing Commission’s intent that the
abducting parent not be punished for the length or
duration of his retention of the children, (c)
re-imprisonment following a violation of the condition
would constitute double jeopardy, (d) the condition is
impossible to meet, and (e) the condition violates the
Egyptian court order granting Ahmed custody over the
children. We discuss each objection in turn. FN4

029 (a) Guidelines limitations. Ahmed contends that the
“return” condition exceeds the sentencing court’s
authority under 18 U.S.C. S 3583 and U.S.S.G. 
5D1.3(b). Although sentencing courts have “broad
discretion to tailor conditions of supervised release to
the goals and purposes outlined in  5D1.3(b),” this
provision does not provide sentencing courts with
“untrammeled discretion” in this regard. United States
v. Abrar, 58 F.3d 43, 46-47 (2d Cir. 1995).
Specifically, section 5D1.3(b) provides:

The court may impose other conditions
of supervised release, to the extent
that such conditions are reasonably
related to (1) the ~nature and
circumstances of the offense and the
history and characteristics of the
defendant, and (2) the need for the
sentence imposed to I afford adequate
deterrence to criminal conduct, to
protect the public from further crimes
of the defendant, and to provide the
defendant with needed educational or
vocational training, medical care, or
other correctional treatment in , the
most effective manner.

See 18 U.S.C.  3553(a)(2) and 3583(d). This Circuit
has ruled that “despite the continuous use of the . . .
conjunctive ‘and’ in  5D1.3(b), taking into account the
authorizing statutes, a condition may be imposed if it
is reasonably related to any one or more of the
specified factors.” Abrar, 58 F.3d at 46.

030 The “return” condition is obviously closely related
to “the , nature and circumstances of the offense” of
child abduction and “the history and characteristics” of
Ahmed. Indeed, it is difficult to imagine a condition
more closely tailored to the crime and the criminal in
question than this one. Moreover, the requirement that
Ahmed return the children serves the goal of general
deterrence. As the_District Court put it,

It seems that often in cases such as
this, a vindictive parent may be
willing to possibly face a modest
prison term in order to keep the
children from the spouse. But if the
parent recognizes that the Court has a
legal mechanism to additionally order
the return of the children, then
recognizing that may well serve as an
additional deterrent.

The condition also serves the function of specific
deterrence. It deters Ahmed both from committing the
offense of the unlawful retention of the children in
Egypt after his release from prison, and from attempting
to kidnap his children again after they have been
returned to the United States.

031 (b) Punishment for extent of retention. Ahmed
contends that the special condition essentially punishes
him for the length or duration of his retention of the
children because someone who retained abducted children
for only a short period would not face this condition.
He argues that this allegedly length-based “enhancement”
is inconsistent with the Sentencing Commission’s intent,
and points to an analogous provision of the Guidelines
— section 2A4.1 governing non-parental kidnapping
offenses prosecuted under, among other statutes, 18
U.S.C.  1201 — as support. In that guideline, there is
a specific offense characteristic that enhances a
kidnapper’s sentence based on the length of time that he
held the victim. U.S.S.G.  2A4.1(b)(4)(A)-(B)
(increasing offense level by two if victim not released
within thirty days and by one if victim not released
within seven days). Ahmed argues that the absence of a
comparable specific offense enhancement in the guideline
governing IPKCA offenses, section 2J1.2, means that the
sentencing court cannot impose any “penalties,” even
under the guise of a special condition l of supervised
release, upon a defendant based on the duration of his |
|retention of the victims.

032 Even if the absence of a specific offense
enhancement for length of retention under the IPKCA
guideline somehow implies that this factor cannot be
used to “enhance” a defendant’s sentence, which is
doubtful, Ahmed’s argument fails because the special
condition is not based on the duration of the retention,
but on the fact of his continued retention of the
children. Regardless of how long Ahmed has held the
children in Egypt, the special condition requires him to
return the children if the retention continues during
the term of supervised release. This condition is
therefore not inconsistent with the Sentencing
Commission’s alleged intent not to penalize an IPKCA
offender based on the duration of the retention.

033 (c) Double jeopardy. Ahmed argues that further
imprisonment for failing to abide by this special
condition, i.e., revoking his supervised release if he
refuses to return the children after his release from
prison, would violate the Double Jeopardy Clause by
exposing him to multiple punishments for the same
offense for which he was convicted. Even if this
objection is ripe, which we do not think it is, no
double jeopardy violation will occur if Ahmed is
subsequently re-imprisoned for violating the special
condition. Ahmed fails to realize that “the entire
sentence, including the period of supervised release, is
the punishment for the original crime, and ‘it is the
original sentence that is executed when the defendant is
returned to prison after a violation of the terms of his
release.” United States v. Soto-Olivas, 44 F.3d 788, 79O
(9th Cir. 1995) (citation omitted). Because revocation
of supervised release for the violation of a condition
of release is “not new punishment for a new crime,” id.
at 792, but “part of the whole matrix of punishment
which arises out of a defendant’s original crime[]
United States v. Paskow, 11 F.3d 873, 883 (9th Cir.
1993), double jeopardy protection would be not violated
if and when Ahmed’s term of supervised release is
revoked for his failure to return the children to the
United States. FN5

034 (d) Impossibility. Ahmed contends that the special
condition is unfair and would be impossible for him to
meet because (i) he cannot arrange for the return of the
children while he is in prison, and (ii) he will be in
violation of the condition as soon as he is released
from prison in March 1998 (excluding good-time credit)..
This objection is premature, and need not be considered
at this time. Any potential unfairness to Ahmed arising
from an attempt to revoke his term of supervised release
immediately upon his release from prison can be
evaluated if and when such revocation occurs. In any
event, the District Judge has already indicated her
willingness to provide Ahmed with a reasonable period of
time following his release from prison to effect the
return of the children, and the Judge has authority
under 18 U.S.C.  3583(e) to modify or revoke the
conditions and term of supervised release to account for
any unforeseen or changed circumstances. See United
States v. Lussier, 104 F.3d 32, 36 (2d Cir. 1997).

035 (e) Conflict with Egyptian order. Ahmed argues that
the special condition conflicts with an Egyptian court’s
May 1995 order granting Ahmed custody over the America
children. This objection misconstrues the force and
nature of the condition requiring Ahmed to return the
children to the United States. Similar to the IPKCA, and
indeed the Hague Convention, the District Court’s
command that Ahmed return the children does not seek to
settle any underlying custody dispute that might exist
between Mona and Ahmed, but merely attempts to restore
the status quo prior to Ahmed’s criminal removal and
retention of the children, and thus to deny him the
“legal advantage [he gained] from the abduction to or
retention in the country where the children] tare]
located.” Herring, supra, at 147. Whatever arguable
conflict with his claimed rights under the Egyptian
custody order might arise from requiring return of the
children to the United States cannot validly be asserted
by Ahmed inasmuch as he brought the children to Egypt
(and thereby obtained his claimed Egyptian custody
rights) in violation of United States law. WMHFN1

V. Substantial Interference with Administration of

036 Finally, Ahmed argues that the District Court erred
in imposing a three-level enhancement under section
2J1.2(b)(2) for “substantial interference with the
administration of justice.” Application Note 1 to this
guideline states:

“Substantial interference with the
administration of justice” includes a
premature or improper termination of a
felony investigation; an indictment,
verdict, or any judicial determination
based upon perjury, false testimony,
or other false evidence; or the
unnecessary expenditure of substantial
governmental or court resources.

U.S.S.G.  2J1.2, comment. (n.1) (emphasis added). Ahmed
reads this Note as providing an exhaustive list of acts
constituting “substantial interference,” and contends
that because he has done nothing that falls within the
specified conduct, the District Court erred in imposing
the three-level enhancement. He further argues that this
enhancement, by its very terms, is triggered only when
the defendant has disrupted an ongoing proceeding of
some sort, and that because no such proceeding existed
when he abducted the children in January 1995, the
enhancement cannot be applied to him.

037 We disagree first with Ahmed’s construction of
Application Note 1. The term “includes” clearly
indicates that the subsequent listing of acts warranting
this enhancement is not exclusive, and that other acts
— if similarly or even more disruptive of the
administration of justice — could serve as bases for
the section 2J1.2(b)(2) enhancement.

038 Second, we believe that the District Court properly
found that Ahmed’s “self-help” act of removing the
children from New York could serve as a basis for this
enhancement. Although the abduction did not interfere
with an ongoing proceeding, this act prevented proper
legal proceedings from occurring by taking matters
completely outside the purview of the administration of
justice. As the District Judge stated,

[Ahmed’s] conduct . . . was[,] by
analogy, more egregious than that
referred to in “Application Note 1],
because rather than terminating a
judicial proceeding by his actions, he
made certain that the action was one
that would never be commenced. It is a
situation in which he deemed himself
the judge, and then he made the
decision . . . . The defendant . . .
wholly ignored the lawful process, and
acting in the form of a vigilante, if
you will, took matters into his own


039 We reject Ahmed’s remaining arguments as either
forfeited because not previously raised, or simply
without merit. The judgment of the District Court is

1. Ahmed also raises the possibility that the IPKCA
violates the Religious Freedom Restoration Act
(“RFRA”), 42 U.S.C.  2000bb to 2000bb-4, by
proscribing religiously motivated removals and
retentions of children. Because this argument was
not raised in the District Court, it too is
forfeited. In any event, Ahmed fails to meet the
threshold requirement of an RFRA claim. He cannot
show that the IPKCA “substantially burden[sl” a
religious practice. Cf. Chaffer v. Reno, 55 F.3d
1517, 1522 (11th Cir. 1995). Even if we assume,
for the sake of argument, that Ahmed in fact
removed the children to Egypt in order to provide
them with a religious education, there is nothing
in the record to suggest that the children could
not receive proper training in the tenets of Islam
in the United States, or that they must go to
Egypt to become religiously educated Muslims.
Moreover, the IPKCA does not generally prohibit
relocation of children or even make it
significantly more difficult to do so. It simply
prohibits relocation in one very narrow
circumstance, where to do so would violate the
custodial rights of the other parent. The IPKCA
does not “put substantial pressure on an adherent
to modify his behavior and to violate his
beliefs.” Thomas v. Review Board of the Indiana
Employment Sec. Div., 450 U.S. 707, 718 (1981).

2. Other justifications for the removal and continued
retention of abducted children available under the
Hague Convention include: (1) where the abducting
parent can establish that the child was removed
over one year ago and is now “settled in its new
environment,” Art. 12; (2) where the abducting
parent can establish that the “left-behind” parent
is either not acting under a right of custody or
gave consent to the abducting parent to remove or
retain the child, Art. 13(a); and (3) where the
abducted child “objects to being returned and has
attained an” age and decree of maturity at which
it is appropriate to take account of its views,”
Art. 13. See Generally Lynda R. Herring, Comment,
Taking Away the Pawns: International Parental
Abduction & the Hague Convention, 20 N.C. J. Int’l
L. 8 Com. Reg. 137, 149-50 (1994).

3. The left-behind parent can also petition the
designated Central Authority in the state of the
child’s habitual residence to aid the parent in
seeking the return of the child from the state to
which it has been abducted. Hague Convention,
Arts. 8 & 9; see Generally Mezo v. Elmerqawi, 855
F. Supp. 59 (E.D.N.Y. 1994).

4. We note that the IPKCA itself does not expressly
specify what should be done when a defendant
refuses to return the abducted children to this
country. See Passanante, supra, at 694.

5. This Circuit has also ruled that “because a
revocation proceeding is ‘not a proceeding
designed to punish a criminal defendant for
violation of a criminal law,’ the defendant may be
both punished for the supervised-release violation
and prosecuted criminally for the same conduct
without implicating principles of double
jeopardy.” United States v. Meeks, 25 F.3d 1117,
1122 (2d Cir. 1994) (citation omitted); see also
United States v. Grisanti, 4 F.3d 173, 176 (2d
Cir. 1993) (jeopardy dons not attach during
parole, probation, or bail revocation hearings).

Moreover, we note that the key assumption
underlying this objection — that Ahmed’s
continued retention of the children following his
release from prison would constitute the “same”
offense for which he was convicted — is highly
questionable. The indictment charged Ahmed with
removing and retaining the children during the
period “from January 27, 1995 to August 4, 1995.”
Because the IPKCA punishes both “removals” and
“retentions,” and because Ahmed has not been
punished for his act of retaining the children
after August 4, 1995, even a subsequent criminal
prosecution for this new offense — the wrongful
retention of children, who have been in the United
States, outside the United States from August 4,
1995 to the present — may be permitted under the
Double Jeopardy Clause.

WMHFN1: To clarify and/or emphasize this point:
The order obtained in Egypt was not made in
accordance with the requirements of the Uniform
Child Custody Jurisdiction Act (UCCJA) in that
Egypt could not meet any of the requirements for
jurisdiction under the UCCJA and Egypt was also
prohibited from going forward based on a prior
action pending in a court that did have
jurisdiction under the UCCJA.