NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 6 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-30126

Plaintiff-Appellee, D.C. No. 3:19-cr-00121-001-SLG

v.

MEMORANDUM*

LEO JAMES CHAPLIN,

Defendant-Appellant.

Appeal from the United States District Court for the District of Alaska Sharon L. Gleason, District Judge, Presiding

Argued and Submitted April 13, 2022 Seattle, Washington

Before: BOGGS,** HAWKINS, and FORREST, Circuit Judges.

Leo James Chaplin, an American citizen, met his wife MDS1 in the Philip-

pines. The two moved to the United States, married, had two children, and lived in

Alaska while taking occasional family vacations to the Philippines. In 2014, while

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Danny J. Boggs, Senior Circuit Judge of the United States Court of Appeals for the Sixth Circuit, sitting by designation. 1 Chaplin’s now-ex wife is referred to by her initials throughout. experiencing relationship difficulties, Chaplin convinced MDS and their minor chil-

dren (ages five and eight) to accompany him to the Philippines, where he absconded

with the children under false pretenses and hid them from MDS—or prevented her

from seeing them—for more than four years. When Chaplin took the children, MDS

filed for divorce and custody in Alaska, and Chaplin did the same in the Philippines.

Amidst the custody proceedings, an Alaska court ordered Chaplin to return

the children. When he refused (and repeatedly prevented MDS from visiting them

abroad), MDS’s attorney referred the case to the FBI, which issued a warrant for

Chaplin’s arrest for violating the International Parental Kidnapping Crime Act, 18

U.S.C. § 1204(a). Chaplin was arrested, extradited, and found guilty in federal court

in a bench trial. Chaplin now appeals on the ground that the government failed to

prove its case, and we affirm. A reasonable trier of fact could, as here, have found

him guilty.

The parties present a single question on appeal: whether there was sufficient

evidence for the district court to find that Chaplin violated the Act. The Supreme

Court has defined the standard as “whether ‘after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’” United States v. Nevils,

598 F.3d 1158, 1163–64 (9th Cir. 2010) (quoting Jackson v. Virginia, 443 U.S. 307,

319 (1979)).

2 Chaplin points to two elements of the crime of international parental kidnap-

ping that he claims were not sufficiently proved in this case. A person is guilty under

the statute if he, in relevant part, “retains a child (who has been in the United States)

outside the United States with intent to obstruct the lawful exercise of parental

rights.” 18 U.S.C. § 1204(a). Chaplin argues that (1) he did not “retain[ ]” the chil-

dren by denying MDS access to them in the Philippines, because he never prevented

them from leaving the country, and (2) he did not intentionally “obstruct the lawful

exercise of parental rights” by filing for custody before a Philippine court, because

MDS could have done the same but chose not to. However, Chaplin is incorrect on

both points.

1. The parties agree on the meaning of the verb “retain,” but differ on

whether Chaplin’s actions constituted retention. See United States v. Cummings,

281 F.3d 1046, 1050 n.3 (9th Cir. 2002) (noting, in the context of international pa-

rental kidnapping, that “Webster’s Dictionary defines ‘retain’ to mean ‘to hold back,

keep, restrain’” (quoting Merriam-Webster’s Collegiate Dictionary 999 (10th ed.

1996))).

Contrary to what Chaplin claims, a person may be guilty of international pa-

rental kidnapping—may be retaining a child abroad—even if not “actively” prevent-

ing the child from traveling to the United States. The act of retention may be satis-

fied when a defendant passively declines to abide by lawful demands to return a

3 child. Here, when the Alaska Superior Court ordered Chaplin to return the children

to MDS, he refused. The Alaska court therefore ordered Chaplin to show cause why

he should not be held in contempt and again ordered the children returned in March;

when Chaplin remained recalcitrant, the court held him in contempt and ordered the

children returned for a third time in May. Chaplin was again sanctioned and again

ordered to return the children in July. He never complied with the Alaska court’s

various orders.

Chaplin’s consistent refusal to abide by lawful court orders, as well as the

evidence presented at trial that the children never returned to the United States after

they left in November 2014, show that, at the very least, a reasonable fact finder

could find that he “retained” the children under § 1204(a). See Jackson, 443 U.S. at

319.

2. Even though there was sufficient evidence of retention, Chaplin cannot

be guilty of international parental kidnapping unless his retention was done “with

intent to obstruct the lawful exercise of parental rights.” 18 U.S.C. § 1204(a). The

parental right in question, as defined by the statute, is “the right to physical custody

of the child whether joint or sole (and includes visiting rights); and whether arising

by operation of law, court order, or legally binding agreement of the parties.” 18

U.S.C. § 1204(b)(2). Here, the district court looked to the Hague Convention on

International Child Abduction to determine which jurisdiction’s child-custody laws

4 controlled.2 The Hague Convention, in turn, defines parental rights by reference to

“the law of the State3 in which the child was habitually resident immediately before

the removal or retention”—in this case, Alaska. Convention on the Civil Aspects of

International Child Abduction art. 3(a), Oct. 25, 1980, T.I.A.S. No. 11670.

Chaplin now asserts that the filing of his Philippine child-custody petition op-

erated to contest the Alaska court’s jurisdiction, and that therefore the district court

should not have looked to Alaska law to determine parental rights. The timeline,

however, partially belies his argument. According to Chaplin’s brief, “by the time

[he] began retaining the children from leaving the Philippines, he was doing so pur-

suant to the pending child custody petition in the Philippines.” He is incorrect. As

2 The Hague Convention provides civil remedies for returning children to their coun- try of residence after unlawful parental kidnapping, but does not (as is the case with § 1204(a)) prescribe criminal penalties. Convention on the Civil Aspects of Inter- national Child Abduction art. 1, Oct. 25, 1980, T.I.A.S. No. 11670; see also 18 U.S.C. § 1204(d) (stating that the Act “does not detract from The Hague Conven- tion”). While the United States has signed and ratified the Convention, the Philip- pines only acceded to it in 2016. Hague Conference on Private International Law, Status Table: Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, available at https://www.hcch.net/en/instruments/conven- tions/status-table/?cid=24 (last visited May 16, 2022). Because the United States has not yet declared its acceptance of the Philippines’ accession, the agreement is not in force as between the two countries, and no civil remedy was available in this case. See id. art. 39. 3 Although the term “State” in the Convention refers to signatory countries, the family law of the United States is determined by looking to the laws of one of the United States, and the legislative history makes clear that the Convention as applied to § 1204(a) should be read to refer to United States state law. H.R. Rep. No. 103-390, at 4 (1993).

5 the indictment makes clear, the government alleged Chaplin began retaining the chil-

dren for purposes of § 1204(a) “on or about November 24, 2014”—the date they left

the United States, and just a few days before Chaplin absconded with the children—

not three months later when Chaplin filed for custody. The district court said as

much when it adjudicated Chaplin guilty, stating that “[i]n November 2014, there

was no evidence of a court order . . . so one then looks to what were the parental

rights to physical custody by operation of Alaska law.”

Under Alaska law, “when a child is entrusted to joint custodians,” which is

assumed for married parents “[u]ntil a court orders otherwise,” “neither custodian

may take exclusive physical custody of the child in a manner that defeats the rights

of the other.” Strother v. State, 891 P.2d 214, 223 (Alaska Ct. App. 1995). To defeat

the other parent’s rights means “unlawfully ‘keeping’ the child from the other par-

ent.” Id. at 224. It is clear, then, that Chaplin’s conduct while in the Philippines but

prior to his child custody petition—when, a few days after the family arrived, Chap-

lin took the children away and concealed them—was sufficient evidence of obstruc-

tion of MDS’s then-existing parental right of joint custody under Alaska law. See

ibid. (concluding that the defendant violated his spouse’s right to joint custody when,

among other things, “for several weeks he was successful in keeping both his own

whereabouts and the child’s whereabouts hidden from his wife”). The trier of fact

was therefore provided with facts sufficient to find that Chaplin committed

6 international parental kidnapping during the period specified in the indictment.

The government thus presented sufficient evidence for the district court to find

Chaplin guilty of the crime of international parental kidnapping.

AFFIRMED.

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