                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4381


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

WENJING LIU, a/k/a Linda Liu,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.  Claude M. Hilton, Senior
District Judge. (1:14-cr-00372-CMH-1)


Argued:   May 11, 2016                    Decided:   June 21, 2016


Before TRAXLER, Chief Judge, and NIEMEYER and KEENAN, Circuit
Judges.


Affirmed by unpublished opinion.        Judge Keenan wrote the
opinion, in which Chief Judge Traxler and Judge Niemeyer joined.


ARGUED: Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant. Christopher John
Catizone, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.    ON BRIEF: Geremy C. Kamens, Acting
Federal Public Defender, Frances H. Pratt, Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant.     Dana J. Boente, United
States Attorney, Rebeca H. Bellows, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
BARBARA MILANO KEENAN, Circuit Judge:

      Wenjing “Linda” Liu was convicted by a jury of attempted

international    parental        kidnapping      in     violation        of    the

International Parental Kidnapping Crime Act (IPKCA), 18 U.S.C.

§ 1204.   On appeal, Liu contends that the district court erred:

(1) in excluding certain witnesses’ testimony concerning Liu’s

statements   about     her    travel    plans;   and    (2)   by    denying    two

requested jury instructions.

      Upon our review, we are unable to consider the merits of

the   court’s   exclusion       of   Liu’s    statements      to   the   various

witnesses,   because    Liu    failed    to   proffer   the   content     of   the

excluded testimony.          Additionally, we hold that Liu’s mother’s

statements regarding her travel plans were inadmissible hearsay,

and that the district court’s jury instructions substantially

covered the content of the rejected instructions.                  Therefore, we

affirm the district court’s judgment.

                                        I.

      The relevant facts are largely undisputed.              Liu was born in

Tianjin, China, and she moved to the United States around 2000.

In 2007, Liu married William Jerome Ruifrok III, a United States

citizen, in Loudoun County, Virginia.              Ruifrok and Liu have a

son, WLR, who was born in 2010 in Tianjin, China.                  WLR traveled

between China and the United States several times between 2010



                                        3
and 2014, and occasionally remained in China for months at a

time under the care of Liu’s mother.

     When the marriage between Liu and Ruifrok deteriorated, the

couple    separated       in    November          2013.         After   several      months    of

negotiation about custody arrangements for WLR, Liu and Ruifrok

reached an agreement, which was memorialized in a “Final Custody

Order”     entered      in     May     2014       by      the    Juvenile      and    Domestic

Relations District Court of Loudoun County, Virginia.                                The Final

Custody Order granted Liu primary physical custody and granted

Ruifrok    visitation          rights      every       weekend.         The   Final    Custody

Order     also    required          that    either        parent     traveling       with     WLR

outside     the    United       States       obtain        “the     express     written       and

notarized consent of the other party, provided in advance [of]

the trip.”

     Soon after the Final Custody Order was entered in May 2014,

Liu and Ruifrok had various disagreements regarding Ruifrok’s

visitation       with   WLR.         Ultimately,           Liu    stopped     responding       to

Ruifrok’s    requests          in    July    2014,        and    Ruifrok      was    unable    to

exercise his visitation rights in July or August 2014.

     On    August       28,     2014,       Liu       purchased     tickets     from    United

Airlines (United) for Liu, Liu’s mother, and WLR to travel from

Washington       Dulles      International             Airport     (Dulles)     to    Beijing,

China.      They     were       scheduled         to     depart     one    week      later,    on

September 4, 2014 at 12:20 p.m.                         Liu purchased a “round-trip”

                                                  4
ticket    for   herself        and    “one-way”       tickets    for     WLR    and   Liu’s

mother.

     Liu did not notify Ruifrok about her travel plans with WLR

until after arriving at Dulles on the morning of the scheduled

flight.      At       11:00    a.m.   on     September     4,    2014,    Liu    informed

Ruifrok by email that she had learned “last midnight” that her

grandmother       was    dying   and,      therefore,     she     and    WLR    needed    to

travel to China as soon as possible.                    Two minutes later, Ruifrok

responded via email, “[WLR] is not going, u cant take him to

school[.]         I     will   pick     him    up.”       An     hour    after    Ruifrok

responded,      and      20    minutes       before     the     plane    departed,       Liu

replied:

     I already booked the tickets for him.    We have to
     leave today. It’s too urgent! I’ll notice you when I
     know when we can be back.  Because I have to replace
     his birth certificate too.

     Ruifrok notified the Dulles airport police that Liu was

violating a court order by leaving the country with WLR.                                 The

airport    police       contacted      the    Federal     Bureau    of    Investigation

(FBI) and the Loudoun County prosecutor, obtained a copy of the

Final Custody Order, and confirmed that Liu and WLR were on the

flight that had departed to Beijing.

     After      being     notified      of    the     situation,    United       personnel

ordered the airplane’s pilot to redirect the plane, which at

that time was over Canadian airspace, back to Dulles.                                 About


                                              5
5:15 p.m., the flight landed at Dulles, where Liu, WLR, and

Liu’s mother were escorted off the aircraft.                      The FBI arrested

Liu   as   she   disembarked.         At    the    time    of    her   arrest,    Liu’s

luggage contained a copy of the Final Custody Order, as well as

WLR’s passport that bore a Chinese visa issued on August 27,

2014.

      A federal grand jury in the Eastern District of Virginia

indicted Liu on one count of attempted international parental

kidnapping,      in   violation       of    18    U.S.C.    § 1204.         The   IPKCA

prohibits, in relevant part, any attempt to “remove[] a child

from the United States . . . with intent to obstruct the lawful

exercise of parental rights.”              18 U.S.C. § 1204(a).

      At   trial,     the    government         argued    that   Liu    intentionally

violated the Final Custody Order with the purpose of obstructing

Ruifrok’s    parental       rights.        Liu    presented      evidence      that   she

intended the trip to China to be a temporary visit, that the

purpose of the trip was unrelated to Ruifrok’s parental rights,

and that she did not understand her obligations under the Final

Custody Order.

      Liu also attempted to elicit testimony from friends and

associates about the reasons she gave them for making the trip.

When Liu’s counsel asked Janet Outtrim, Liu’s housemate, about

Liu’s travel plans, the government objected on the ground that

the     statements    were     inadmissible         hearsay.           Liu’s    counsel

                                            6
responded that these statements were admissible under the “state

of mind” exception to the hearsay rule, but failed to proffer

the   substance       of    the     testimony           sought    to    be    admitted.        The

district    court      ruled       that      Outtrim       could       testify    about       Liu’s

actions but “not the reasoning behind [them].”                                   In response,

Liu’s   counsel       pursued          a    different       line       of    questioning      that

permitted Outtrim to testify that Liu had not made any effort to

keep her travel plans a secret, and that she had left most of

her personal property and WLR’s clothes at Outtrim’s home.

      Liu’s    counsel           also      asked       Danica    Hu,     Liu’s    real    estate

agent, about Liu’s expressed intent to buy a home and to enroll

WLR in a school in northern Virginia.                                 After the government

objected to this question, Liu’s counsel rephrased the inquiry,

eliciting     testimony          that       Hu    continued      to     assist    Liu    through

September 4, 2014, to help Liu find a home near “a good school

for the child.”            However, Liu’s counsel did not proffer to the

court the substance of the testimony excluded by the court’s

ruling.

      Ying Zhao, Liu’s work colleague, also testified.                              After the

district      court    sustained            the    government’s             objection    to    any

statements      Liu    made        to      Zhao     about       her    travel     plans,       Zhao

testified that Liu had purchased a ticket to a business seminar

to be held in Virginia on September 27, 2014, and that Liu’s job

functions     could        not    be       performed      from     China.        Again,       Liu’s

                                                   7
counsel      did    not    proffer       for    the    record       the    content       of   the

excluded testimony.

       Liu also attempted to elicit testimony from FBI Special

Agent    Tonya      Sturgill,       who    spoke       to    Liu’s       mother     after     the

airplane      returned      to     Dulles.            At    that    time,       Liu’s    mother

purportedly stated that she had intended to return to the United

States with WLR within a few months.                         The district court ruled

that this statement was inadmissible hearsay.

       In her proposed jury instructions submitted before trial,

Liu asked the court to clarify for the jury that the government

was required to prove that she “intended to obstruct Ruifrok’s

lawful exercise of his visitation rights with WLR, not merely

that [she] intended to travel internationally with WLR without

William      Ruifrok’s      consent.”           At    the    close       of    evidence,       Liu

accordingly requested an instruction stating that the government

must    prove      that    Liu’s    “specific         purpose”       or    a    “significant”

motivation for Liu’s actions was an intent to obstruct Ruifrok’s

“exercise of physical custody.”                        In response, the government

agreed    that      more    than     a    de    minimis          showing      of   intent     was

required,       but   argued       that    inserting         a     “significant      purpose”

element of proof would overstate the statutory requirement.

       The      district         court         rejected          Liu’s        proposed        jury

instructions.         As relevant to this appeal, the court instructed

the jury that the government was required to prove: (1) that Liu

                                                8
knowingly attempted to remove her child from the United States;

and (2) that she did so “with the intent to obstruct the lawful

exercise     of     parental        rights.”          With      respect        to     the    first

element, the district court explained that the term “knowingly”

meant that Liu was “aware of her actions, realized what she was

doing,    and      did    not    act    because          of    ignorance,        mistake,      or

accident.”         Regarding the second element, the district court

instructed        that    “parental      rights”          were     rights        to     physical

custody      of    the    child,       which        “includes      visitation           rights.”

Finally,     the     district        court     instructed          the     jury       that    the

government was required to prove “that the defendant acted with

the intent to obstruct the lawful exercise of parental rights,”

and that she “acted deliberately with the purpose of interfering

with parental rights of the other parent.”

       During its deliberations, the jury submitted a question to

the court, asking whether the government was required to prove

that   the      defendant       “knowingly          . . .      broke     the     law.”        The

district court responded by reading again the language of the

statute      and    the       court’s    previous             definition       of     the     term

“knowingly,” and added that Liu did not have to know that “her

actions    may     be    in    violation       of    a    criminal       law    or     that    she

intended     to    violate      a   criminal        law.”        After     ten      minutes     of

additional deliberation, the jury returned a verdict of guilty.



                                               9
      The district court sentenced Liu to serve a term of six

months’ imprisonment and a one-year term of supervised release.

Liu filed a motion for a new trial, which the court denied.                                  Liu

later filed this timely appeal.

                                              II.

                                              A.

      Liu    first    contends         that    the    district          court    abused      its

discretion    in     excluding      testimony         from    the       various      witnesses

concerning    statements         she    made       about    her    travel       plans.       Liu

argues that her statements to these witnesses were admissible

under the state of mind hearsay exception in Rule 803(3) of the

Federal     Rules    of    Evidence.          Similarly,          Liu       argues   that    her

mother’s statements to FBI agents after disembarking from the

plane at Dulles were admissible under the same hearsay exception

as probative evidence of the mother’s intent.

      We review a district court’s evidentiary rulings for abuse

of discretion.        United States v. McLean, 715 F.3d 129, 143 (4th

Cir. 2013).         Generally, the rule against admission of hearsay

prohibits a witness from testifying about statements made by

another when those statements are offered to prove the truth of

the matter asserted.             Fed. R. Evid. 801(c), 802.                     An exception

to   this   general       rule    permits      admission      of        a    statement      of   a

declarant’s then-existing state of mind for such purposes as

showing her motive, intent, or plan.                       Fed. R. Evid. 803(3); see

                                              10
also Mut. Life Ins. Co. of N.Y. v. Hillmon, 145 U.S. 285, 296

(1892).

       The    determination        whether    a    statement     qualifies     for

admission under the state of mind exception involves a fact-

sensitive inquiry.         United States v. Rivera-Hernandez, 497 F.3d

71, 81 (1st Cir. 2007).             Forward-looking statements of intent

are admissible, but backward-looking statements of memory are

not.       Fed. R. Evid. 803(3); Shepard v. United States, 290 U.S.

96, 105–06 (1933).          For this reason, statements describing a

declarant’s        then-existing    state    of   mind    are   admissible,    but

statements about the declarant’s reasons for having that state

of   mind    are    inadmissible. 1     4    Stephen     A.   Saltzburg   et   al.,

Federal Rules of Evidence Manual § 803.02[4][b] (11th ed. 2015).

The state of mind described also must be shown to have been

contemporaneous with the statement.               See United States v. Hayat,

710 F.3d 875, 895–96 (9th Cir. 2013) (describing circumstances



       1
       In addition, statements admissible for one purpose, but
not for another, must be scrutinized for probative value and
risk of prejudice under Rule 403 of the Federal Rules of
Evidence.     Consistent with this requirement, some courts
analyzing a statement under Rule 803(3) have inquired whether
the declarant had the motivation or opportunity to misrepresent
the relevant state of mind, such as when a criminal defendant,
knowing that he is under investigation, gives a non-spontaneous,
self-serving statement about his own state of mind. See Wagner
v. County of Maricopa, 747 F.3d 1048, 1052–53 (9th Cir. 2013);
United States v. LeMaster, 54 F.3d 1224, 1231 (6th Cir. 1995);
United States v. Neely, 980 F.2d 1074, 1083 (7th Cir. 1992).



                                        11
in which a description of past intent could also be understood

as communicating present intent).

       Given           the    “fact-sensitive”           inquiry      necessary      for

application of the state of mind exception, Rivera-Hernandez,

497 F.3d at 81, it is paramount that the proponent inform the

court in an offer of proof the substance of the evidence sought

to   be    admitted,         unless   that    substance      is    apparent   from   the

context of the request.               Fed. R. Evid. 103(a)(2).             The purpose

behind this requirement is twofold.                      First, an offer of proof

informs the trial court of the content of the evidence and of

its relevance to the case, which enables the court to make an

informed evidentiary ruling.                 See, e.g., Henry v. Wyeth Pharms.,

Inc., 616 F.3d 134, 151–52 (2d Cir. 2010); Perkins v. Silver

Mountain Sports Club & Spa, LLC, 557 F.3d 1141, 1147 (10th Cir.

2009); Polack v. Comm’r of Internal Revenue, 366 F.3d 608, 612

(8th      Cir.    2004).        Second,      the   offer    of     proof   permits   the

appellate court to evaluate whether the exclusion of evidence

affected         the    substantial     rights      of     the    party    seeking   its

admission.         See, e.g., Perkins, 557 F.3d at 1147; Polack, 366

F.3d at 612.

       In the present case, Liu failed to proffer the specific

statements that she sought to introduce into evidence, and the

context in which the statements arose did not render apparent

the substance of the excluded evidence.                     Without offers of proof

                                              12
concerning the excluded testimony, the record does not provide

sufficient      detail   to     determine      whether       Liu’s   statements     to

Outtrim, Hu, and Zhao were admissible under the state of mind

exception.      Liu did not proffer details about the substance of

the excluded statements, or about the times or contexts in which

the statements at issue were made.                  Therefore, we are unable to

determine whether the statements described Liu’s “then-existing”

state of mind.         See Fed. R. Evid. 803(3).              Nor are we able to

determine    whether     the    statements      were    cumulative     or    unfairly

prejudicial, or whether an expressed intent to return WLR to the

United States at an indefinite time had probative value with

respect    to   the    critical    issue       of    Liu’s    intent   to    obstruct

Ruifrok’s parental rights.             See Fed. R. Evid. 403.          Accordingly,

in the absence of the necessary proffers, we cannot determine

whether the district court abused its discretion in excluding

Liu’s statements regarding her intent and the purpose of her

international travel.

     Next, we disagree with Liu’s contention that the district

court should have admitted her mother’s statements about their

travel plans.         After Liu was arrested, FBI Special Agent Tonya

Sturgill     questioned        Liu’s    mother,      who     explained      that   she

intended to return to the United States with WLR “in just a few

months.”     Although proffered to the district court, the mother’s

statements were inadmissible because they were statements about

                                          13
past   intent       or   memories.      Rule          803(3)    explicitly    excludes

hearsay statements about memories offered “to prove the fact

remembered.”        Fed. R. Evid. 803(3); Shepard, 290 U.S. at 105–06.

Liu’s mother’s statements were made after the aircraft returned

to Dulles and after Liu was arrested.                          Any statements about

Liu’s mother’s travel plans would have described her state of

mind hours or days earlier, rather than a “then-existing” state

of mind.       See Fed. R. Evid. 803(3).                 Accordingly, we conclude

that    the    district     court    did        not    abuse    its    discretion   by

excluding from evidence Liu’s mother’s statements.

                                           B.

       Liu also challenges the district court’s decision refusing

two of her proposed jury instructions.                       We review the adequacy

of   the   court’s       jury   instructions           for   abuse     of   discretion.

United States v. Sonmez, 777 F.3d 684, 688 (4th Cir. 2015).                          In

order to establish that a district court abused its discretion

in   rejecting       proposed    jury   instructions,            a    defendant   “must

demonstrate that her proposed instructions (1) were correct, (2)

were not substantially covered by the charge that the district

court actually gave to the jury, and (3) involved some point so

important that the failure to give the instructions seriously

impaired      the   defendant’s      defense.”           Id.    (internal     quotation

marks and brackets omitted).



                                           14
      According to Liu, the district court should have given the

jury a separate explanation that the “parental rights” Liu was

accused of obstructing included only physical custody rights,

and did not include Liu’s failure to obtain Ruifrok’s consent to

travel with WLR to China.              Liu also argues that under the IPKCA,

the   obstruction      of        parental        rights    must       have    been    the

“principal, but-for, or driving reason” for her actions, and

that the district court should have instructed the jury to this

effect.

                                            1.

      We first address Liu’s argument that the district court

abused    its   discretion        by    declining         to   give    her    preferred

instruction     regarding         the    IPKCA’s      definition        of    “parental

rights.” 2      See   18   U.S.C.       § 1204(b)(2).          The     term   “parental

rights”   is    defined     in    the   statute      as    meaning     “the   right    to

physical custody of the child,” including “visiting rights,” and

      2We disagree with the government’s contention that Liu
failed to preserve this issue for appeal.    Liu proposed a jury
instruction defining “parental rights,” which the parties
debated during the charge conference, explicitly referencing
Ruifrok’s   rights  to  “visitation”  and   “physical   custody.”
Moreover, after reading the instructions to the jury, the
district court asked the parties whether they had any objections
“[o]ther than the objections we’ve already dealt with.”      When
Liu’s counsel raised the “intent” issue again, the district
court responded “[y]ou don’t have to do that,” indicating that
the district court would not revisit its earlier rulings.      On
these facts, we conclude that Liu properly preserved this issue
for appeal.



                                            15
can be defined “by operation of law, court order, or legally

binding agreement.”          18 U.S.C. § 1204(b)(2)(A); see also United

States   v.     Fazal-Ur-Raheman-Fazal,          355    F.3d    40,    45    (1st    Cir.

2004) (looking to Massachusetts law to define “parental rights”

in the absence of any court orders or binding agreements).

     In this case, both parties agree that the “parental rights”

at issue included Ruifrok’s right, conferred by a court order

and a legally binding agreement executed by Liu and Ruifrok, to

visit    WLR    every     weekend.      Liu    asked    the    district       court   to

emphasize that the term “parental rights” in the IPKCA refers to

only physical custody rights, and does not include non-custodial

rights such as the right to notification before travel or the

right to deny consent for international travel.                         The district

court    denied     Liu’s     request     to     give    this    additional          jury

instruction.

     Instead,       the    district     court     instructed         the     jury    that

“parental rights” means “the right to physical custody, whether

joint or sole, and includes visitation rights.”                            Thus, Liu’s

proposed       description    of     “parental    rights”      was    “substantially

covered” by the instructions given to the jury.                             Sonmez, 777

F.3d at 688.       The district court’s jury instructions made clear

to the jury that the parental rights at issue were only physical

visitation      rights.      Accordingly,        the    district      court    did    not



                                          16
abuse its discretion in declining to instruct the jury using

Liu’s preferred definition. 3

                                                2.

      Liu also challenges the sufficiency of the district court’s

jury instructions on the element of “intent to obstruct.”                                  Liu

argues that the government was required to prove that she acted

with a “significant purpose” of obstructing Ruifrok’s visitation

rights,      and    that     the    district         court’s      instructions      did    not

address this concept.

      Rather       than    giving       Liu’s      proposed      jury    instruction,       the

district     court       instructed       the      jury    that    the     government      must

prove beyond a reasonable doubt that “the defendant [acted] with

the intent to obstruct the lawful exercise of parental rights.”

The   district       court    elaborated           that    “you     must    find   that    the

defendant     acted       deliberately          with    the      purpose    of   interfering

with the parental rights of the other parent.”                              By instructing

the   jury    in     this    manner,         the     district      court    “substantially

covered”     the     content       of   Liu’s        proposed     instruction       that   the

government         was    required      to    prove       that    Liu    intended    by    her

      3We also observe that the government’s closing argument
emphasized that the only parental rights at issue were Ruifrok’s
physical visitation rights.   The government explained that the
term “parental rights” referred to Ruifrok’s right “to see his
son every weekend” and on certain holidays. The government also
stated many times in its argument that Liu was accused of
obstructing Ruifrok’s right to weekend visitation.



                                                17
actions    to   interfere     with    Ruifrok’s   parental    rights.    See

Sonmez, 777 F.3d at 688.         Therefore, we hold that the district

court     did   not   abuse     its     discretion   in      refusing   Liu’s

“significant purpose” instruction.

                                      III.

     For these reasons, we do not reach the merits of the issue

whether the district court abused its discretion in excluding

testimony from the various witnesses about Liu’s stated travel

plans.    Further, we hold that the district court did not abuse

its discretion in excluding Liu’s mother’s statements, or by

denying Liu’s proposed jury instructions.             We therefore affirm

the district court’s judgment.

                                                                    AFFIRMED




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