13-525-cr(L)
United States v. Bontzolakes

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 23rd
day of September, two thousand fourteen.

PRESENT:            JOSÉ A. CABRANES,
                    ROSEMARY S. POOLER,
                    RAYMOND J. LOHIER, JR.,
                                 Circuit Judges.


UNITED STATES OF AMERICA,

                    Appellee,

                               v.                                    No. 13-525-cr(L)
                                                                     No. 13-4182-cr(CON)
JACQUELINE BONTZOLAKES,

                    Defendant-Appellant.


FOR JACQUELINE BONTZOLAKES:                           JAYME L. FELDMAN, Of Counsel (Marianne
                                                      Mariano, on the brief), Federal Public
                                                      Defender’s Office, Buffalo, NY.

FOR UNITED STATES OF AMERICA:                         MONICA J. RICHARDS, Assistant United States
                                                      Attorney, for William J. Hochul, Jr., United
                                                      States Attorney for the Western District of
                                                      New York, Buffalo, NY.
       Appeal from a judgment of the United States District Court for the Western District of New
York (Billy Roy Wilson, Judge).*

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

         Defendant Jacqueline Bontzolakes appeals from the District Court’s January 28, 2013
judgment convicting her, after a jury trial, of two counts of international parental kidnapping, in
violation of 18 U.S.C. § 1204(a), and one count of making false statements, in violation of 18 U.S.C
§ 1001(a)(1), and sentencing her principally to 18 months’ imprisonment and 2 years’ supervised
release. Bontzolakes also appeals from the District Court’s October 22, 2013 order denying her
challenge pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), following our remand to the District
Court to conduct a “reconstruction hearing.” See United States v. Bontzolakes, 536 F. App’x 41 (2d Cir.
2013). We assume the parties’ familiarity with the underlying facts, the procedural history of the
case, and the issues on appeal.

                                                  DISCUSSION

                                               I. Batson Challenge

          We previously concluded that Bontzolakes established a prima facie case of sex discrimination
and that the District Court properly inquired into the Government’s sex-neutral justifications. See id.
at 43. We remanded to the District Court to conduct a “reconstruction hearing” as to the “the third
step of the Batson inquiry, which requires a district court to make ‘an ultimate determination on the
issue of discriminatory intent based on all the facts and circumstances.’” Id. at 43–44 (quoting United
States v. Alvarado, 923 F.2d 253, 256 (2d Cir. 1991)). Following a reconstruction hearing, “we will
accord deference to the reconstructing court’s credibility assessments.” Jordan v. Lefevre, 293 F.3d
587, 594 (2d Cir. 2002); see also Felkner v. Jackson, 131 S. Ct. 1305, 1307 (2011). “When the
reconstruction hearing has been conducted by the district judge, his findings of fact may not be set
aside unless they are clearly erroneous.” Jordan, 293 F.3d at 594. “[W]e have repeatedly said that a
trial court must somehow make clear whether [it] credits the non-moving party’s [sex]-neutral
explanation for striking the relevant panelist.” Dolphy v. Mantello, 552 F.3d 236, 239 (2d Cir. 2009)
(internal quotation marks omitted). Although the court must “explicitly adjudicat[e]” the issue of
pretext, Jordan v. Lefevre, 206 F.3d 196, 200 (2d Cir. 2000), the court need not “make intricate factual
findings in connection with its ruling in order to comply with Batson,” Messiah v. Duncan, 435 F.3d
186, 198 (2d Cir. 2006). See also McKinney v. Artuz, 326 F.3d 87, 100 (2d Cir. 2003) (“Although
reviewing courts might have preferred the trial court to provide express reasons for each credibility
determination, no clearly established federal law required the trial court to do so.”).


         *The Honorable Billy Roy Wilson, United States District Judge for the Eastern District of Arkansas, sitting by
designation.

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         Upon review of the record and relevant law, we conclude that the District Court did not
clearly err in crediting the Government’s sex-neutral explanations for exercising five of its
peremptory challenges against female jurors and denying Bontozlakes’s Batson challenge. The
District Court solicited and carefully listened to the Government’s sex-neutral justifications, as well
as Bontzolakes’s arguments that those justifications were pretextual. Given the domestic issues
central to this case, it was not impermissible for the District Court to credit the Government’s
explanations that the struck female jurors or their close family members were single parents,
convicted criminals, or had experienced divorce, custody fights, or child abuse. Nor was it
impermissible for the District Court to credit the Government’s explanation that one of the female
jurors had worked as a legal assistant for a lawyer. The District Court was entitled—and in the best
position—to find that the prosecutor’s statements “had a ring of truth to them,” were plausible
grounds for exercising the peremptory strikes, and were not a pretext for discrimination. See
Hernandez v. New York, 500 U.S. 352, 365 (1991) (“As with the state of mind of a juror, evaluation of
the prosecutor’s state of mind based on demeanor and credibility lies peculiarly within a trial judge’s
province.” (internal quotation marks omitted)).

                         II. Denial of Motion for Judgment of Acquittal

        We review a denial of a motion for judgment of acquittal de novo. See United States v. Persico,
645 F.3d 85, 104 (2d Cir. 2011). In doing so, we view “the evidence in the light most favorable to
the Government” and defer to the jury’s resolution of the weight of the evidence and the credibility
of the witnesses. Id. “The conviction must be upheld if ‘any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.’” Id. at 105 (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)).

        Upon de novo review, we conclude that the District Court properly denied Bontzolakes’s
motion for judgment of acquittal. In making her affirmative defense, Bontzolakes was required to
prove that she was “fleeing an incidence or pattern of domestic violence.” 18 U.S.C. § 1204(c)(2).
Bontzolakes was allowed to present ample evidence of her “history as a victim of physical and sexual
domestic violence,” including her testimony that she was abused as a child by her mother’s
boyfriend, and as an adult by the father of one of her daughters, Mr. Green. Appellant’s Br. 39. Her
testimony was evaluated by an expert, Dr. Charles Ewing, who “determined Ms. Bontzolakes was
credible and was ‘surely’ affected by a pattern of domestic violence.” Id. As it was entitled to do, the
jury simply did not credit defendant’s version of the facts over that of the prosecution. As the
District Court found, a reasonable jury could have concluded that the abuse from Mr. Green was
too remote in time for her to be “fleeing” the abuse. And a reasonable jury could also have
concluded that the filing of “countless petitions” in family court by the two fathers of defendants’
children did not constitute a sufficient “incidence or pattern of domestic violence.” Accordingly, the
District Court’s denial was entirely proper.



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                                      III. Evidentiary Rulings

         We review evidentiary rulings for abuse of discretion. United States v. Mercado, 573 F.3d 138,
141 (2d Cir. 2009). “To find such abuse, we must conclude that the trial judge’s evidentiary rulings
were arbitrary and irrational.” Id. (internal quotation marks omitted). Furthermore, we will reverse
only if the government is unable to demonstrate that the error was harmless. United States v. Madori,
419 F.3d 159, 168 (2d Cir. 2005).

        The District Court did not abuse its discretion in precluding evidence that an uncle of one of
the daughters had been convicted of rape and was a registered sex offender. The District Court
found that there was no evidence that the uncle had ever harmed or threatened the child in any way,
and it was entitled to preclude the evidence as either irrelevant or more prejudicial than probative.

        The District Court also did not abuse its discretion in precluding one of the daughter’s
school records, which contained reports of suspected child abuse. The District Court allowed
extensive witness testimony on the subject, and any error in denying admission of the school records
was harmless.

        Finally, the District Court did not abuse its discretion in denying defendant’s request to
subpoena a witness “to testify about an incident when Mr. Green assaulted [defendant] in 2001.”
Appellant’s Br. 52. As the District Court found, this testimony was “remote,” having occurred nine
years prior to the offense conduct, and involved only one incident the witness overheard on the
phone. Moreover, it was duplicative of defendant’s own testimony that the witness had overheard
the same incident.

        On this record, we cannot find that the District Court abused its discretion.

                                IV. Reasonableness of the Sentence

        We review criminal sentences for “reasonableness” under a deferential abuse-of-discretion
standard. United States v. Cavera, 550 F.3d 180, 189–90 (2d Cir. 2008) (en banc). A sentence is
procedurally unreasonable if the district court “fails to calculate (or improperly calculates) the
Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the
§ 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to explain
the chosen sentence.” United States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013) (internal quotation marks
omitted). A sentence is substantively unreasonable “only in exceptional cases where the trial court’s
decision cannot be located within the range of permissible decisions.” Cavera, 550 F.3d at 189
(internal quotation marks omitted). See generally United States v. Park, 758 F.3d 193, 199–201 (2d Cir.
2014).

        The District Court did not commit procedural error in applying a three-level enhancement
for “substantial interference with the administration of justice” pursuant to U.S.S.G. § 2J1.2(b)(2).

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The record shows that Bontzolakes fled the country with her children a week before a custody
hearing was scheduled to take place in family court. See United States v. Amer, 110 F.3d 873, 885 (2d
Cir. 1997) (finding that “self-help” act of removing children to avoid custody proceeding could serve
as basis for substantial-interference enhancement); see also United States v. Newman, 614 F.3d 1232,
1236–38 (11th Cir. 2010) (same). Contrary to defendant’s assertion, this enhancement is supported
by the particular facts of this case and does not result in a “per se” application to anyone convicted
of 18 U.S.C. § 1204. See Newman, 614 F.3d at 1237.

        The District Court also did not fail to adequately explain its principal sentence of 18 months’
imprisonment, which fell far below the guidelines range of 30 to 37 months. The District Court
accepted extensive submissions from Bontzolakes and stated that it had considered “all the letters
and the statements.” It stated further that it had considered all of the § 3553(a) factors, particularly
highlighting the need for deterrence. It was not required to “utter robotic incantations repeating
each factor that motivates a sentence.” Park, 758 F.3d at 197 (internal quotation marks omitted).

        Finally, the District Court’s below-guidelines sentence of 18 months’ imprisonment was also
substantively reasonable. Considering the totality of the circumstances, including the nature of
defendant’s criminal activity and the District Court’s emphasis on deterrence, we cannot conclude
on this record that the District Court’s sentence was outside “the range of permissible decisions” or
otherwise an abuse of discretion. Id. at 200; Cavera, 550 F.3d at 189.

                                          CONCLUSION

       We have considered all of the arguments raised by defendant on appeal and find them to be
without merit. For the reasons stated above, we AFFIRM the District Court’s January 28, 2013
judgment.


                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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