United States v. Clenney

United States Court of Appeals
Fifth Circuit
F I L E D
December 28, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-11530
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DAVID LEE CLENNEY,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
______________________________
Before GARWOOD, SMITH, and DEMOSS,
Circuit Judges.
PER CURIAM:
David Clenney took his son Jacob from the
United States to Belize to avoid handing cus-
tody over to the child’s mother, Heather Car-
michael, on a scheduled date. Clenney was
arrested, extradited to the United States, and
indicted in the Northern District of Texas for
international parental kidnaping in violation of
18 U.S.C. § 1204. Clenney resided in the
Southern District of Texas, Carmichael in the
Northern District of Texas. The government
contended that venue was proper in the North-
ern District because Carmichael’s parental
rights were affected there.
Clenney filed a motion to dismiss the indict-
ment for improper venue, arguing that none of
the acts complained of in the indictment
implicated jurisdiction in the Northern District.
The district court denied the motion, accepting

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the government’s theory that venue was prop-
er in the district in which Carmichael exer-
cised her parental rights. Clenney entered a
guilty plea, conditioned on his right to appeal
the denial of his motion to dismiss. The dis-
trict court accepted the conditional plea and
sentenced Clenney.
Venue issues are generally reviewed for
abuse of discretion. We effectively review this
judgment de novo, however, because “a dis-
trict court by definition abuses its discretion
when it makes an error of law.” United States
v. Delgado-Nunez, 295 F.3d 494, 496 (5th
Cir. 2002) (quoting Koon v. United States,
518 U.S. 81, 100 (1996)).
The statute of conviction does not have an
express venue provision. The parties agree
that because Clenney was charged with a sin-
gle, continuing offense committed in multiple
districts, venue is appropriate, under 18 U.S.C.
§ 3237(a), in any district in which the offense
was begun, continued or completed. On
appeal, the government asserts two alternative
ways it can establish venue in the Northern
District of Texas: (1) that Carmichael’s paren-
tal rights were affected there, because she was
a resident of that district; and (2) that Jacob’s
primary residence was in the Northern District
and the criminal conduct unlawfully restrained
him from being there.
Under United States v. Rodriguez- Moreno,
526 U.S. 275, 279 (1999), to determine
whether venue is appropriate, we perform a
two-step inquiry: “[A] court must initially
identify the conduct constituting the offense
(the nature of the crime) and then discern the
location of the commission of the criminal
acts.” To identify the conduct constituting the
offense, we scrutinize the statute of convic-
tion, which provides in relevant part:
(a) Whoever removes a child from the
United States, or attempts to do so,
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.
18 U.S.C. § 1204.1
The government argues that venue exists
under the terms of the statute because “the in-
tent to obstruct the lawful exercise of parental
rights” is an element of the offense, and Car-
michael’s parental rights were violated in the
Northern District. We disagree, because this
element merely speaks to the offender’s mens
rea as he commits the conduct essential to the
crime; it is plainly not an “essential conduct
element” as required by Rodriguez-Moreno.2
Moreover, even if the intent to obstruct paren-
tal rights were an essential conduct element of
this crime, that intent was formed and existed
solely in the mind of Clenney, who never set
foot in the Northern District; the intent ele-
ment is a mental state that cannot have been
1 Title 18 U.S.C. § 3238 governs the venue of
offenses “committed . . . out of the jurisdiction of
any particular State or district.” There is, how-
ever, no evidence or claim in this case that suggests
that the Northern District of Texas would be an
appropriate venue even if that section were applica-
ble.
2 “[W]e have never before held, and decline to
do so here, that verbs are the sole consideration in
identifying the conduct that constitutes an offense
. . . . In our view, the Third Circuit overlooked an
essential conduct element of the . . . offense . . . .
[W]e interpret [the relevant statute] to contain two
distinct conduct elements . . . .”). Rodriguez-Mor-
eno, 526 U.S. at 280 (emphasis added).

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“committed” anywhere but where he was phy-
sically present.
Finally, the government’s assertion that
venue was proper in the Northern District be-
cause Jacob was a resident of that district and
was retained outside that district is without
merit. For the statute to be violated, there is
no essential conduct element that requires a
person to remove or retain a child outside of
the area of his primary residence.
Because venue was inappropriate in the
Northern District of Texas, the judgment of
conviction is REVERSED, and this matter is
REMANDED so that Clenney may withdraw
his guilty plea pursuant to the terms of his plea
agreement, and for further proceedings as
appropriate.

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