Opinion
No. FST-116172
July 15, 2003
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS
This case was remanded for further proceedings according to law by the Supreme Court. The remand was ordered as a result of the Supreme Court's decision in State v. Vakilzaden, 251 Conn. 656, 742 A.2d 767 (1999).
The Supreme Court summarized the procedural history of the case.
On December 11, 1997, the defendant, Anthony Vakilzaden, was charged with one count of custodial interference in the first degree in violation of General Statutes § 53a-97 (a) (2) and one count of conspiracy to commit custodial interference in the first degree in violation of General Statutes §§ 53a-48 and 53a-97 (a) (2). The charges arose from a criminal complaint that the defendant aided and abetted his nephew, Orang Fabriz, in interfering with the custodial rights of Lila Mirjavadi, the wife of Fabriz, with respect to their child, Saba Fabriz. The defendant moved to dismiss the charges filed against him based on the theory that Fabriz, as the child's father, was a joint custodian of Saba. The trial court granted the defendant's motion to dismiss, relying on this court's decision in Marshak v. Marshak, 226 Conn. 652, 628 A.2d 964 (1993). The trial court concluded that the State had not demonstrated that Mirjavadi was the sole custodian of the child at the time of the alleged interference.
The State appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).
Id., 657-58.
After the initial argument before a five-member panel, the Court, sua sponte, ordered supplemental briefs and argument en banc on the supplemental issues.
(1) "Is the defendant liable for custodial interference ([General CT Page 8190-b Statutes] § 53a-98) under the circumstances of the present case, where both parents have joint legal custody, but the defendant-parent's physical access is limited to specified visitation, and the defendant deprives the other parent of physical custody of the child?"
and
(2) "To what extent does Marshak v. Marshak, 226 Conn. 652 [ 628 A.2d 964] (1993), control this case? Should Marshak be reconsidered?"
Id., 656, n. 1.
The Supreme Court, in its Vakilzaden opinion, summarized its holding in Marshak v. Marshak, as follows.
In Marshak, the plaintiff wife brought a civil action seeking damages against several defendants for conspiracy to interfere with her custodial rights to her children arising from the defendants' actions in helping her husband remove the children from her custody. Her husband subsequently fled the country with the children. Id., 654-58. On the basis of authority from other jurisdictions and § 700 of the Restatement (Second) of Torts, the trial court found three of the four defendants liable to the plaintiff for having conspired with her husband and for having aided and abetted him to commit the tort of child abduction, and awarded monetary damages to the plaintiff. Id., 660, 662-63. On appeal, we reversed the trial court's judgment, concluding that the defendant4 was not liable to the plaintiff because the plaintiff's husband had joint legal custody of the children at the time of the alleged acts in question. Id., 666. Joint custody was based wholly on the fact that the parties were still married at the time of the abduction,5 and that neither party had filed for dissolution of the marriage, nor had they sought any type of court intervention affecting custody. Id., 669. In Marshak, we stated that "a factual predicate for any tort related to child abduction . . . is the unlawful custody of a child." Id. Thus, having determined that where joint custody was inferred from their marital status, we reversed the judgment in favor of the plaintiff as there could be no unlawful custody at the time of the defendants actions. Id., 669-70.
Vakilzaden, supra, 659-60.
In its Vakilzaden decision, the Supreme Court overruled its holding in Marshak, and held that:
We conclude that Marshak should be overruled, and that the dismissal of CT Page 8190-c the criminal information in the present case was improper on that ground. We therefore reverse the trial court's judgment dismissing the information and remand the case for further proceedings according to law.
Id., 660.
After the case was returned and re-docketed, the defendant filed a Motion to Dismiss the charges claiming that "re — prosecution of the defendant based on the holding in State v. Vakilzaden, 251 Conn. 656, 742 A.2d 767 (1999), would violate the Ex Post Facto Clause of the U.S. Constitution, the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution, and the Due Process Clause of the Constitution of the State of Connecticut."
The principal ground for the claim is that re-prosecution would violate the defendants right to fair notice of a criminal prohibition under the Due Process Clause of the Fourteenth Amendment as defined in Boule v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 1894 (1964).
In the Vakilzaden decision, the Supreme Court summarized the facts that the State had indicated that it would have been able to prove, with regard to custody, had the case gone to trial as follows.
Mirjavadi and Fabriz, both Iranian citizens, were married in their homeland in 1990. They have one daughter, Saba. In September 1995, when Saba was one and one-half years old, the family traveled together to the United States on a temporary visa. Mirjavadi and Fabriz separated approximately one month after their arrival in the United States. Mirjavadi retained physical custody of their daughter and moved into her brother's home in Stamford. Fabriz moved in with his uncle, the defendant, who, at the time in question, was a resident of New Jersey.
Mirjavadi applied for political asylum and, in January 1996, brought an action for the dissolution of her marriage to Fabriz in the Superior Court for the judicial district of Stamford. On February 5, 1996, a hearing was held on Fabriz's motion seeking visitation rights with Saba. Fabriz notified the court that he was not seeking any form of custody, but, rather, an order of visitation. After making it clear that (1) physical custody of Saba would remain with Mirjavadi and (2) visitation with Fabriz would be supervised based on his risk of flight with Saba and his past abusive behavior, the trial court, Harrigan, J., ordered the parties to consult with the family relations division of the Superior Court and to report back to the court if and when the details of a visitation agreement between the parties had been reached. CT Page 8190-d
That same day, Fabriz and Mirjavadi informed the trial court that they had come to an agreement as to the terms of supervised visitation. The court entered the order for visitation pursuant to their agreement, which allowed Fabriz three hours of supervised visitation per week in the presence of appointed monitors.
On September 30, 1996, Fabriz, while accompanied by the defendant, purchased two one-way tickets to Istanbul, Turkey, for a flight departing from John F. Kennedy Airport in New York on October 5, 1996. The names listed on the tickets were Orang and Saba Fabriz. On October 5, 1996, at 2 p.m., Mirjavadi drove Saba to the Stamford Mall to turn Saba over to Fabriz for a regularly scheduled visit supervised by attorney Maria Varone, the appointed monitor. The defendant also was present.
Varone indicated to police that during the visit, Fabriz went into one of the mall stores with Saba while she remained outside the store talking with the defendant. Varone further stated that although she was not sure about the time as she was not wearing a watch, she estimated that between 4:15 and 4:30 p.m., she became concerned as to Fabriz's whereabouts. Fabriz never emerged from the store. Varone and the defendant searched for Fabriz and Saba to no avail. Mirjavadi returned to the mall at the scheduled time of 5 p.m. to retrieve Saba, at which time Varone informed Mirjavadi that Fabriz had disappeared with Saba. Mirjavadi has had no contact with Saba since October 5, 1996.
Id., 660-62.
Before addressing the issue of Due Process raised in the defendants motion, the State put forward several other points. The State, in its argument before this court, noted that in the majority opinion in Vakilzaden, Justice Berdon stated, before summarizing the facts which the State claimed it would be able to prove, that:
Marshak may be distinguishable from the present case on the ground that a court order permitting only limited, supervised visitation between a father and a child satisfies the sole custody requirement of Marshak. If a parent has sole custody, a person in the position of the defendant, who allegedly assisted the father in the abduction of the child, properly may be charged with the crime of custodial interference.
Although we could reinstate the information against the defendant on that basis, we do not stop there. We conclude that Marshak should be overruled, and that the dismissal of the criminal information in the present case was improper on that ground. CT Page 8190-e
Id., 660.
The State seemed to have argued that the Vakilzaden court ruled that the "visitation order satisfies the sole custody requirement of Marshak." The State contends that "[t]he fact that the Supreme Court went further and announced a new legal doctrine does not provide a windfall due process argument to the defendant."
The State misconstrued the Vakilzaden holding by taking the conjectural language from the opinion out of context. Contrary to the State's argument, the Vakilzaden court did not hold that the temporary visitation order in this case satisfies the sole custody requirement of Marshak. The court did not decide the case on the ground that the facts provable by the State met the sole custody requirement of Marshak.
This court agrees with the defendant that the Supreme Court decided the case on the ground that Marshak should be overruled as a "faulty" interpretation of the custodial interference statutes. Id., 664. The holding of the Vakilzaden Court was: "We conclude that Marshak should be overruled, and that the dismissal of the criminal information in the present case was improper on that ground." Id., 769.
As the defendant argues, If the Supreme Court did not have to reach the issue of the validity of Marshak because it found Fabriz the principal — not to have joint custodial status, the court would have made this fact clear and reinstated the information against the defendant on the basis that Mirjavadi had been awarded sole custody. It would not have fashioned what the State concedes is "a new rule" regarding criminal liability of joint custodians.
Again, as the defendant argued: "throughout its opinion in Vakilzaden, the court continued to accept the trial court's finding that Fabriz was a joint legal custodian of Saba at the time of the alleged interference. For example, in reciting the underlying facts as proffered by the State, the court noted only that the child's mother, Mirjavadi, "retained physical custody of their daughter . . ." Id., 660-61. The court did not say that the superior court had awarded sole custody to the mother, but only that the divorce court made "it clear that physical custody of Saba would remain with Mirjavadi" during the pending proceedings. Id., 661. Again, in discussing the evidence proffered by the State, the court assumed Fabriz and Mirjavadi shared joint custody of their child: "In short, the State has proffered sufficient evidence with which a jury could find beyond a reasonable doubt that the defendant conspired with Fabriz to deprive Mirjavadi of her lawful joint custody of Saba." Id., CT Page 8190-f 666. At no point did the Vakilzaden court hold that Mirjavadi had sole custody of Saba; nor did the court rule that Fabriz was not a joint legal custodian of Saba at the time of the alleged interference.
Parenthetically, both the State and the defendant, in their briefs, acknowledge that there was no order of custody entered by the trial court either before or at the time of the adoption of the visitation agreement. Nor was there any evidence of an order giving Mirjavadi sole custody on or before October 5, 1996.
The State also contended that Marshak involved a civil tort conspiracy claim and was not relevant to the allegations of criminal violations. Although Marshak involved an allegation of damages in a civil tort conspiracy by the defendant, James Ambadjes, in aiding a parent, Sheldon Marshak, to abduct his children from the mother, Karel Marshak, proof of such a conspiracy necessarily involved proof of the doing of a criminal act or a lawful act by criminal or unlawful means. Id., at 665. That meant a violation of the criminal custodial interference statutes: C.G.S. § 53a-97, stating:
(a) A person is guilty of custodial interference in the first degree when he commits custodial interference in the second degree as provided in Section 53a-98: (1) Under circumstances which expose the child or person taken or enticed from lawful custody or the child held after a request by the lawful custodian for his return to a risk that his safety will be endangered or his health materially impaired; or (2) by taking, enticing or detaining the child or person out of this State.
(b) Custodial interference in the first degree is a class D felony.
or C.G.S. § 53a-98, stating,
(a) A person is guilty of custodial interference in the second degree when: (1) Being a relative of a child who is less than sixteen years old and intending to hold such child permanently or for a protracted period and knowing that he has no legal right to do so, he takes or entices such child from his lawful custodian; (2) knowing that he has no legal right to do so, he takes or entices from lawful custody any incompetent person or any person entrusted by authority of law to the custody of another person or institution; or (3) knowing that he has no legal right to do so, he holds, keeps or otherwise refuses to return a child who is less than sixteen years old to such child's lawful custodian after a request by such custodian for the return of such child.
(b) Custodial interference in the second degree is a class A CT Page 8190-g misdemeanor.
In Marshak a unanimous court, sitting en banc, determined that there was no violation of the criminal custodial interference statutes by the defendant and by his principal because, at the time of the alleged actions of the defendant in aiding the children's father, Sheldon, that parent had joint legal custody of the children.
Sheldon had not yet violated either 53a-97 or 53a-98. Sheldon violated those provisions only after August 9, 1985, the date on which the court granted the plaintiff temporary custody of the children.
Id., 668.
The [trial] court found rather that the defendant's role had already "been played" by the time that sole custody of the children was first awarded to the plaintiff on August 9, 1985. The defendant's conduct, therefore, even if in pursuance of an agreement to assist Sheldon to take his children to Israel, was not, when completed, unlawful. Conduct that was not unlawful when consummated cannot be the basis for damages or continuing liability in order to accomplish what may appear to be a desirable result.
Id., 669-70.
The principal issue in the present motion is the Due Process question of fair warning. It is certainly a reasonable reading of Marshak that a unanimous Supreme Court, siting en banc, had ruled that until sole custody is awarded to one parent, both parents share joint custody of a child and the criminal statutes concerning custodial interference are not violated when one joint custodial parent abducts a child from the custody of the other joint custodial parent. In the Vakilzaden decision, a unanimous Supreme Court, again siting en banc, reversed that decision and in essence ruled that a joint custodial parent who abducts a child from the custody of the other joint custodial parent may be liable under the criminal custodial interference statutes.
Marshak was decided on July 27, 1993. The alleged acts of the defendant, Anthony Vakilzaden, occurred in 1996. Vakilzaden was decided on December 21, 1999. Would a person of ordinary intelligence in the defendant's position have had fair notice that in assisting his nephew to take control of his child and fly with her to Turkey in 1996, he would be liable under the criminal statutes concerning custodial interference, although there was no court order depriving his nephew of joint guardianship of the person of the child and there was no court order CT Page 8190-h granting sole custody to the child's mother?
The Supreme Court in Vakilzaden did not address the question of any alleged violation the defendant's due process right to fair notice as a result of its reversal of the holding in Marshak that a joint custodial parent could not be charged with violating the custodial interference statutes since it was not briefed by the parties nor was it one of the questions posed in the supplemental issues order.
However, at the time this motion first came before this court, our Supreme Court had earlier granted certification in the case of State v. Miranda, 262 Conn. 935-36 (2000).
In that case, a trial court had initially determined that the twenty-one-year-old defendant, who lived with his sixteen-year — old girlfriend and her two children but was not the father of either child, a boy, two years old, and a girl, the victim, four months old, had established a familial relationship with the child's mother and her two children, and that he had voluntarily assumed responsibility for the care and welfare of both children and that he considered himself the victim's stepfather. Being aware of and observing the horrible effects on the children of the mother's abusive conduct, the trial court concluded that the defendant had a legal duty to protect the health and well-being of the child based on the undisputed facts that he had. The trial court found the defendant guilty of one count of risk of injury to a child under C.G.S. § 53-21 and six counts of assault in the first degree under § 53a-59 (a) (3). The court imposed a total effective sentence of forty years imprisonment
On defendant's appeal, the Appellate Court affirmed the conviction for risk of injury to a child, but reversed the assault convictions, concluding that the defendant had no legal duty to act under the circumstances of this case. State v. Miranda, 41 Conn. App. 333, 341 (1996).
Granting the State's petition for certification, the Supreme Court concluded that, based on the trial court's findings, the defendant had assumed a legal duty to protect the victim from abuse. State v. Miranda, 245 Conn. 209 (1998). The Supreme Court reversed the judgment of the Appellate Court and remanded the case to that court for consideration of the defendant's remaining claims.
On remand, the Appellate Court affirmed the judgment of conviction of risk of injury to a child in violation of § 53-21, reversed the judgment of conviction of six counts of assault in the first degree under CT Page 8190-i § 53a-59 (a) (3), and remanded the case with direction to render judgment of not guilty as to the assault counts. State v. Miranda, supra, 56 Conn. App. 313-14. Specifically, the Appellate Court concluded that convicting the defendant of assault in the first degree under § 53a-59 (a) (3) would violate the defendant's due process rights because a person of ordinary intelligence in the defendants circumstances would not have known that he had a duty to protect the child. Id., 311-12.
Since one of the issues for which certification was granted in the Miranda case was "Did the Appellate Court properly conclude that the assault convictions deprived the defendant of due process of law under the fourteenth amendment to the United States constitution?," It seemed appropriate to this court to look to the Supreme Court's pending decision on this issue, since the very question of the Due Process fair notice requirement was at issue in Miranda. Of concern especially was the issue of whether there was a deprivation of the right of fair warning resulting from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language, as delineated in Bouie v. Columbia, 378 U.S. 347 (1964), and as confirmed in United States v. Lanier, 520 U.S. 259 (1997), namely, "although clarity at the requisite level may be supplied by judicial gloss on an otherwise uncertain statute, see, e.g., Bouie, supra, at 357-59; . . . due process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope, see, e.g., Marks v. United States, 430 U.S. 188, 191-92 (1977); Rabe v. Washington, 405 U.S. 313 (1972) (per curiam); Bouie, supra, at 353-54; . . ." United States v. Lanier, at 266-67 (some citations omitted). This issue was the basic concern in this Motion to Dismiss as well as in the Miranda case.
On March 2d 2000, the Supreme Court granted the certification for appeal. Because there appeared to be some delay in the Supreme Court's rendering of its decision, this court secured from the parties an indefinite waiver of the time requirements pending the Supreme Court's decision. On April 16, 2002, the Supreme Court did render a decision in State v. Miranda, 260 Conn. 93 (2002)
While the Miranda case, concerning the imposition of a criminal duty which had not previously been imposed under the statute in question, was not of assistance in determining the issue of Due Process fair warning in this case involving a reversal of a recent holding to the contrary, it did involve the issue of whether or not the Supreme Court's application of §§ 53a-59 (a) (3) in the earlier State v. Miranda decision ( 245 Conn. 209) was reasonably foreseeable. There, the Court determined that there was a common-law duty to act under the facts of that case and CT Page 8190-j construed §§ 53a-59 (a) (3) to encompass the defendant's failure to act.
The Supreme Court found support in the U.S. Supreme Court case of Rogers v. Tennessee, 532 U.S. 451, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001). As the court in Miranda summarized at page 104-05, in Rogers, a Tennessee jury found that the defendant was guilty of second degree murder when he stabbed his victim on May 6, 1994, wounding the victim's heart. The victim died on August 7, 1995. The victim's death "was caused by cerebral hypoxia secondary to a stab wound to the heart."
The defendant then appealed from his conviction, arguing that Tennessee's common-law year and a day rule precluded his conviction. The Supreme Court of Tennessee affirmed the petitioner's conviction, concluding that the original reasons for recognizing the year and a day rule no longer existed. The court therefore abolished the rule. In affirming the petitioner's conviction, the United States Supreme Court concluded that "[t]here is, in short, nothing to indicate that the Tennessee court's abolition of the rule in [the] petitioner's case represented an exercise of the sort of unfair and arbitrary judicial action against which the Due Process Clause aims to protect. Far from a marked and unpredictable departure from prior precedent, the court's decision was a routine exercise of common-law decision making in which the court brought the law into conformity with reason and common sense. It did so by laying to rest an archaic and outdated rule that had never been relied upon as a ground of decision in any reported Tennessee case." [ Rogers, supra]. The Supreme Court in Rogers reiterated that Bouie "restricted due process limitations on the retroactive application of judicial interpretations of criminal statutes to those that are unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue . . ."
The value of the Miranda decision for purposes of the present motion is what criteria were utilized in addressing a claim of lack of Due Process fair warning because of a retroactive application of a judicial interpretation of criminal statutes where that application is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.
In Miranda, the court stated:
With this legal framework in mind, we consider the State's claim that this court's application of §§ 53a-59 (a) (3) in State v. Miranda, supra, 245 Conn. 209, was reasonably foreseeable. In recognizing a common-law duty to act under the facts of this case and construing §§ CT Page 8190-k 53a-59 (a) (3) to encompass the defendant's failure to act, we employed the ordinary tools of statutory construction. We examined the plain language of §§ 53a-59 (a) (3), the text of our statutes, the common law of our State and other jurisdictions, other Connecticut statutes governing similar conduct, and treatises addressing this issue. These ordinary tools of statutory construction enabled us to conclude that "under the facts of this case, it is appropriate to recognize an affirmative duty to act and to impose criminal liability for the failure to act pursuant to that duty."
Id., 221.
The Marshak Court similarly used such tools to arrive at its conclusion. The Marshak court examined not only Sections 53a-97 and 53a-98 of the General Statutes (the custodial interference statutes), but also General Statutes 45a-606, which provides in relevant part: "The father and mother of every minor child are joint guardians of the person of the minor, and the powers, rights and duties of the father and the mother in regard to the minor shall be equal." It also examined 700 of the Restatement (Second) of Torts in resolving the issue of whether the criminal statutes on custodial interference were applicable to a parent who had joint custody of a child and whether under the circumstances of the case applicable to a non-parent who conspired with or aided the parent in abduction of his children.
There was a paucity of Connecticut cases interpreting the meaning of 53-97 and 53-98, but after examining the interaction of the several statutes considered, the Supreme Court clearly determined "[t]he absence of a specific finding by the trial court that the defendant had conspired with or aided the children's father at a time after the father had been stripped of any legal entitlement to custody of the children is fatal to the plaintiff's claim." Id., 665-68.
The Marshak court also found: "Moreover, although the legislature, by enacting 53a-97 and 53a-98 of the penal code, may have codified a duty not to interfere with the rights of a custodial parent, the breach of such a duty can occur only if in fact the provisions of those statutes have been violated. A contrary construction would expand the ambit of such provisions `by implication to create a liability which no language of the act purports to create.' Nowak v. Nowak, 175 Conn. 112, 125, 394 A.2d 716 (1978)." Id., 665.
The Marshak Court considered the many cases from other jurisdictions cited by the trial court to sustain its decision that James Ambadjes would be liable for child abduction, either as a third party other than CT Page 8190-l the parent or as an aider and abetter of the abducting parent, including cases specifically based on the several states criminal statutes. Id., 662-65. Nonetheless, the Marshak court found that in Connecticut a claim of conspiracy to abduct a child cannot be sustained against a third party who aided and abetted a parent in the abduction when it is not established that the third party's action had been in aid of a parent who had been stripped of any legal entitlement to custody. "The absence of a specific finding by the trial court that the defendant had conspired with or aided the children's father at a time after the father had been stripped of any legal entitlement to custody of the children is fatal to the plaintiff's claim." Id., 667-8.
It is clear that the Marshak court gave full consideration to the issue of criminal liability of a parent who abducts his own child and criminal liability of a person, not a parent, who conspires with or aids the parent in that abduction. The Supreme Court in Marshak clearly stated that unless the abducting parent had been stripped of legal entitlement to custody, there was no crime committed by either him or an aider in violation of the custodial interference statutes.
The Vakilzaden Court cited the Maine Supreme Court decision in State v. Butt, 666 A.2d 1225, 1227 (Me. 1995), and the Alaska Appellate Court's decision in Strother v. State, 891 P.2d 214, 219 (Alaska App. 1995) in support of its holding that the Custodial Interference statutes are designed to protect the custodial rights of both parents and, therefore, a joint custodian is not exempt from their application. However, the Marshak Court reviewed cases holding similar positions before it reached its conclusions.
Six years after Marshak was decided and without any intervening criminal case determining the extent of that decision, our Supreme Court overruled itself and arrived at a completely different holding, enlarging the scope of the Custodial Interference statutes.
Indeed, an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids. An ex post facto law has been defined by this Court as one "that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action," or "that aggravates a crime, or makes it greater than it was, when committed." Calder v. Bull, 3 Dall. 386, 390.4 If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction. Cf. Smith v. Cahoon, 283 U.S. 553, 565. The fundamental CT Page 8190-m principle that "the required criminal law must have existed when the conduct in issue occurred," Hall, General Principles of Criminal Law (2d ed. 1960), at 58-59, must apply to bar retroactive criminal prohibitions emanating from courts as well as from legislatures. If a judicial construction of a criminal statute is "unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue," it must not be given retroactive effect. Id., at 61.
Boule v. City of Columbia, 374 U.S. 347, 353-4 (1964).
In a footnote, the Vakilzaden majority author states:
fn9 Indeed, the Connecticut legislature addressed a similar concern during its debate on the custodial interference statute. The legislative history supports the supposition that joint custodians are subject to prosecution under the statute. During the legislative debate on the 1995 amendments to the custodial interference statutes, when the word "detaining" was added to subsection (a) (2) of § 53a-97; see Public Acts 1995, No. 95-206, § 1; Representative Dale W. Radcliffe, now a judge of the Superior Court, stated: "It seems to me the situation in which this statute would usually be involved is a situation where a parent, having joint custody, takes a child across the state line." 38 H.R.Proc., Pt. 11, 1995 Sess., p. 4160.
However, Representative Radcliffe went on to assert: "In situations where a child is taken out-of-state without intent to return, I suggest the specific intent is already been formed. It is already custodial interference and this really isn't going to add to that." Before the amendment, C.G.S. 53a-97 read, in pertinent part:
(a) A person is guilty of custodial interference in the first degree when he commits custodial interference in the second degree as provided in Section 53a-98: . . . (2) by taking or enticing the child or person out of this state.
After the amendment, subdivision (2) read: "(2) by taking, enticing or detaining the child or person out of this state."
The Vakilzaden court cited no report of the Committees, no debate on the amendment, or any other legislative history to indicate it was relying on this addition to the statute as a basis for its decision.
In essence, the Vakilzaden Court decided it had made a mistake in Marshak. CT Page 8190-n
"Quite simply, the legal premise underlying our holding in Marshak was faulty. We were wrong to conclude that a joint custodian could never, under any scenario, be liable for custodial interference." Vakilzaden, supra, at 664.
The actions of the defendant in Marshak, James Ambadjes, and the defendant in the present case, Anthony Vakilzaden, are not only egregious, but similar.
The facts found in Marshak established that James Ambadjes and Sheldon Marshak appeared to be close friends. Sheldon operated a paint and building supply business in Waterbury. The Ambadjes lived in Waterbury where he had owned and operated a body shop known as Ambas Auto Works. Sheldon and the defendant frequently had conducted business together. Sheldon had occasionally taken his children to the defendant's house, and the defendant had stored a number of motor vehicles on the Marshak property. The Ambadjes were in the process of buying a lot from the Marshaks next to the Marshak residence in Cheshire.
On August 5, 1985, Karal Marshak told her husband that she wanted a divorce and on August 6, 1985, she consulted a lawyer for the first time. Also on August 6, Sheldon went to the Ambas Auto Works and asked the defendant if he would drive him and his children to John F. Kennedy International Airport in New York the next day. The defendant agreed. Sheldon then returned home at approximately 7 p.m. on August 6 and began an altercation with his wife and after a protracted argument involving ripping phones from the wall, gathered his children and ordered them into his car and drove off.
That evening, after visiting with his mother, Sheldon drove to Ambadjes's house with the four children and remained there for forty-five minutes to one hour.
At 2:30 the next morning, August 7, Sheldon called the plaintiff. He told her that he was in New York and that he intended to take the children to the Bronx Zoo that day. He also said that he was going to get some counseling from a rabbi and return home the following evening. Instead, at approximately 7:45 that morning, Sheldon again went to Ambadjes's house with his children. Later that morning James Ambadjes drove Sheldon and the children to the John F. Kennedy International Airport in Sheldon's car. En route to the airport, they stopped at the United States state department office in Stamford in order to obtain passports for the children. There James Ambadjes apparently signed an affidavit identifying Sheldon so that Sheldon was able to obtain the passports. Ambadjes then drove to New York and dropped Sheldon and the CT Page 8190-o children off at the airport where they boarded a plane for a flight to Tel Aviv, Israel. After leaving Sheldon and the children at the airport, Ambadjes drove Sheldon's car back to Waterbury and parked it in front of his own house.
Worried that her husband had not returned with the children, the plaintiff called Ambadjes at approximately 1:30 a.m. on August 8. Ambadjes told the plaintiff that he had not seen Sheldon in several days. Mrs. Marshak again called Ambadjes on August 9 and pleaded with him to tell her where Sheldon and the children had gone. Again, Ambadjes denied knowing where they were. On August 9, Mrs. Marshak filed a dissolution of marriage complaint, secured an ex parte protective order and received an order of temporary sole custody of the children.
In the present case, the relationship of the defendant has been described previously in this memorandum, he is the uncle of Orang Fabriz. Fabriz went to live with the defendant in New Jersey, after Fabriz's wife, Lila Mirjavadi, separated from him and moved, together with their daughter Saba, into her brother's home in Stamford, filed for divorce and moved for political asylum.
The State's allegation of conspiracy have been summarized by the Vakilzaden court as follows.
In this case, the State asserts that it will be able to prove that the defendant was present during the family court hearings, he was often present with Fabriz for the supervised visits with Saba, he assisted Fabriz with the purchase of plane tickets to Turkey, he facilitated Fabriz's getaway from the mall the day he took Saba, and he interfered with the police investigation, ensuring that Fabriz was not detained by the police.
At the time of Anthony Vakilzaden's actions, the holding in Marshak v. Marshak, 226 Conn. 652, was the applicable law and a parent who had not been stripped of his custodial rights — a joint custodian — would not have violated the custodial interference statutes in abducting has child nor could one who had assisted, aided or conspired with that parent have violated the custodial interference statutes. If the Supreme Court had not overruled Marshak, this defendant would have been tried under the Marshak standards. Under Vakilzaden, the defendant will now have to be tried under standards which would hold a parent who allegedly abducts his child and one who allegedly aids or conspires in that abduction liable under the custodial interference statutes, whether or not that parent had joint custody. CT Page 8190-p
In Vakilzaden, the court has predicted the outcome.
In this case, the State asserts that it will be able to prove that the defendant was present during the family court hearings, he was often present with Fabriz for the supervised visits with Saba, he assisted Fabriz with the purchase of plane tickets to Turkey, he facilitated Fabriz's getaway from the mall the day he took Saba, and he interfered with the police investigation, ensuring that Fabriz was not detained by the police. In short, the State has proffered sufficient evidence with which a jury could find beyond a reasonable doubt that the defendant conspired with Fabriz to deprive Mirjavadi of her lawful joint custody in Saba. Accordingly, in the interest of justice, this court's decision in Marshak v. Marshak, supra, 206 Conn. 652 [ 226 Conn. 652], is overruled. State v. Vakilzaden, 251 Conn. 656, at 666.
Such a ruling however does not comport with the Supreme Court of the United States ruling concerning a retroactive application under the Due Process Clause of the Fifth Amendment in the case of Marks v. United States, 430 U.S. 188 (1997).
In Marks, the petitioners were convicted of transporting obscene materials in violation of 18 U.S.C. § 1465, and with conspiracy to transport such materials, 18 U.S.C. § 371. The conduct that gave rise to the charges covered a period through February 27, 1973. At the time of the petitioner's conduct, the definition of material considered pornographic had been stated in Memoirs v. Massachusetts, 383 U.S. 413 (1966). That standard was that "expressive material is constitutionally protected unless it is `utterly without redeeming social value.'" 383 U.S., at 418.
The trial of the petitioners did not begin until the October 1973. In the interim, on June 21, 1973, the U.S. Supreme Court decided Miller v. California, 413 U.S. 15 (1973), and its companion cases, Paris Adult Theatre I v. Slatan, 413 U.S. 49 (1973); Kaplan v. California, 413 U.S. 115 (1973); United States v. 12,200-ft. Reels of Film, 413 U.S. 123 (1973); United States v. Orito, 413 U.S. 139 (1973).
Miller established in lieu of the Memoirs standard "whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Miller, at 25.
The Marks Court found that:
Petitioners argued in the District Court that they were entitled to jury instructions not under Miller, but under the more favorable CT Page 8190-q formulation of Memoirs v. Massachusetts, 383 U.S. 413 (1966) (plurality opinion). Memoirs, in their view, authoritatively stated the law in effect prior to Miller, by which petitioners charted their course of conduct. They focused in particular on the third part of the Memoirs test. Under it, expressive material is constitutionally protected unless it is "utterly without redeeming social value." 383 U.S., at 418. Under Miller the comparable test is "whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." 413 U.S., at 24. Miller, petitioners argue, casts a significantly wider net than Memoirs. To apply Miller retroactively, and thereby punish conduct innocent under Memoirs, violates the Due Process Clause of the Fifth Amendment — much as retroactive application of a new statute to penalize conduct innocent when performed would violate the Constitution's ban on ex post facto laws, Art. I, § 9, cl. 3; § 10, cl. 1. The District Court overruled these objections and instructed the jury under the Miller standards. Petitioners were convicted, and a divided Court of Appeals for the Sixth Circuit affirmed. 520 F.2d 913 (1975). We now reverse.
Id., at 190-91.
The Sixth Circuit Court of Appeals apparently reasoned that the Memoirs decision never commanded the assent of more than three Justices at any one time, and it apparently concluded from this fact that Memoirs never became the law. The Marks Court corrected that error, stating that: "The view of the Memoirs plurality . . . constituted the holding of the Court and provided the governing standards"
In Marks, the Supreme Court stated:
The Ex Post Facto Clause is a limitation upon the powers of the Legislature, see Calder v. Bull, 3 Dall. 386 (1798), and does not of its own force apply to the Judicial Branch of government. Frank v. Mangum, 237 U.S. 309, 344 (1915). But the principle on which the Clause is based — the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties — is fundamental to our concept of constitutional liberty. See United States v. Harriss, 347 U.S. 612, 617 (1954); Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939). As such, that right is protected against judicial action by the Due Process Clause of the Fifth Amendment. In Bouie v. City of Columbia, 378 U.S. 347 (1964), a case involving the cognate provision of the Fourteenth Amendment, the Court reversed trespass convictions, finding that they rested on an unexpected construction of the State trespass statute by the State Supreme Court:
[A]n unforeseeable judicial enlargement of a criminal statute, applied CT Page 8190-r retroactively, operates precisely like an ex post facto law such as Art. I, § 10, of the Constitution forbids . . . If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction.
Id., at 353-54.
Similarly, in Rabe v. Washington, 405 U.S. 313 (1972), we reversed a conviction under a state obscenity law because it rested on an unforeseeable judicial construction of the statute. We stressed that reversal was mandated because affected citizens lacked fair notice that the statute would be thus applied.
Relying on Bouie, petitioners assert that Miller and its companion cases unforeseeably expanded the reach of the federal obscenity statutes beyond what was punishable under Memoirs.
Id., at 191-93.
The Supreme Court agreed.
Memoirs therefore was the law. Miller . . . marked a significant departure from Memoirs. And there can be little doubt that the third test announced in Miller — whether the work "lacks serious literary, artistic, political, or scientific value" — expanded criminal liability. The Court in Miller expressly observed that the "utterly without redeeming social value" test places on the prosecutor "a burden virtually impossible to discharge under our criminal standards of proof" 413 U.S., at 22. Clearly it was thought that some conduct which would have gone unpunished under Memoirs would result in conviction under Miller."
Id., at 194.
The relief afforded to the petitioners, was stated by the Marks Court.
We therefore hold, in accordance with Bouie, that the Due Process Clause precludes the application to petitioners of the standards announced in Miller v. California, to the extent that those standards may impose criminal liability for conduct not punishable under Memoirs. Specifically, since the petitioners were indicted for conduct occurring prior to our decision in Miller, they are entitled to jury instructions requiring the jury to acquit unless it finds that the materials involved CT Page 8190-s are "utterly without redeeming social value." At the same time we reaffirm our holding in Hamling v. United States, 418 U.S., at 102, that "any constitutional principle enunciated in Miller which would serve to benefit petitioners must be applied in their case."
Accordingly, the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.
Id., at 196-97
Applying this rationale to the present case, the conduct of Anthony Vakilzaden occurred when the holding of Marshak v. Marshak was the law and a joint custodian of a child who had not been stripped of his custodial rights could not be prosecuted for abduction under the custodial interference statutes nor could any third person who conspired with or aided that parent in his conduct.
Ordinarily, the State would be ordered to proceed to trial under the standards set forth in Marshak. That course has been foreclosed by the Supreme Court's overruling of Marshak. It would be a denial of the "fair warning" due process requirement of the Fifth State's Due Process provisions ("We have held that the due process clauses of both the United States and Connecticut constitutions have the same meaning and impose similar limitations . . ." State v. Brigandi, 186 Conn. 521, 542 (1982)) to require the defendant to be tried under the present standards announced in Vakilzaden.
The Motion to Dismiss is granted.
Nigro, J.T.R.
July 15, 2003
CT Page 8190-t