US v. Wenjing Liu

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 1:14-cr-00372-CMH-1 Copies to all parties and the district court/agency. [999860802].. [15-4381]

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UNPUBLISHED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Affirmed by unpublished opinion.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,

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Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2

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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

witnesses,

exclusion

because

excluded testimony.

Liu

of

Liu’s

failed

to

statements
proffer

to

the

the

content

various
of

the

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

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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
Order

visitation
also

outside

rights

required

that

United

every

States

the

weekend.

either

parent

obtain

“the

The

Final

traveling

Custody
WLR

written

express

with

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
Ruifrok’s

with

WLR.

requests

Ultimately,

in

July

2014,

Liu
and

stopped
Ruifrok

responding
was

unable

to
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
China.

Dulles

They

International

were

scheduled

Airport

to

September 4, 2014 at 12:20 p.m.
4

depart

(Dulles)
one

to

week

Beijing,

later,

on

Liu purchased a “round-trip”

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ticket

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for

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herself

and

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“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,

travel to China as soon as possible.

she

and

WLR

needed

to

Two minutes later, Ruifrok

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

I

will

responded,

and

20

pick

him

minutes

up.”

before

An
the

hour
plane

after

Ruifrok

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.
airport

police

contacted

the

Federal

Bureau

of

The

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.

5

About

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5:15 p.m., the flight landed at Dulles, where Liu, WLR, and
Liu’s mother were escorted off the aircraft.
Liu

as

she

disembarked.

At

the

time

of

The FBI arrested
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.”
At

trial,

the

18 U.S.C. § 1204(a).

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
6

hearsay.

Liu’s

counsel

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responded that these statements were admissible under the “state
of mind” exception to the hearsay rule, but failed to proffer
the

substance

district

of

court

the

testimony

ruled

that

sought

Outtrim

to

be

could

admitted.

testify

actions but “not the reasoning behind [them].”
Liu’s

counsel

pursued

a

different

line

of

The

about

Liu’s

In response,

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.
district
statements

court
Liu

sustained
made

to

the
Zhao

government’s
about

her

After the

objection
travel

to

plans,

any
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
7

from

China.

Again,

Liu’s

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did

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not

proffer

for

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the

record

the

content

of

the

excluded testimony.
Liu also attempted to elicit testimony from FBI Special
Agent

Tonya

airplane

Sturgill,

returned

who

to

spoke

Dulles.

to
At

Liu’s
that

mother

time,

after

Liu’s

the

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.”
agreed

that

required,

more

but

than

argued

a

that

de

In response, the government

minimis

inserting

showing
a

of

intent

“significant

was

purpose”

element of proof would overstate the statutory requirement.
The

district

instructions.

court

rejected

Liu’s

proposed

jury

As relevant to this appeal, the court instructed

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

accident.”

that

of

Finally,

act

because

of

ignorance,

mistake,

or

Regarding the second element, the district court

instructed
custody

not

the

“parental

the

child,

district

rights”

which

were

“includes

court

instructed

rights

to

physical

visitation

rights.”

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

intended

to

be

in

violate

violation
a

of

criminal

a

criminal

law.”

law

After

or

ten

that

she

minutes

of

additional deliberation, the jury returned a verdict of guilty.

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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

discretion

in

excluding

concerning

statements

that

the

testimony

she

made

district
from

about

the

her

court

abused

various

travel

its

witnesses

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.
Cir. 2013).

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

this

general

rule

Fed. R. Evid. 801(c), 802.
permits

admission

of

a

An exception
statement

of

a

declarant’s then-existing state of mind for such purposes as
showing her motive, intent, or plan.
10

Fed. R. Evid. 803(3); see

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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 factsensitive 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).
declarant’s

For this reason, statements describing a

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

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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

context of the request.

substance

is

apparent

Fed. R. Evid. 103(a)(2).

behind this requirement is twofold.

from

the

The purpose

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

admission.

substantial

rights

of

the

party

seeking

its

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.
12

Without offers of proof

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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.
determine

See Fed. R. Evid. 803(3).

whether

the

statements

were

Nor are we able to

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

Ruifrok’s parental rights.

of

Liu’s

intent

See Fed. R. Evid. 403.

to

obstruct

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.
Sturgill

After Liu was arrested, FBI Special Agent Tonya

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
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intent

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or

memories.

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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).

that

district

the

court

did

not

Accordingly, we conclude
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.
of

the

court’s

jury

instructions

We review the adequacy

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.”

marks and brackets omitted).

14

Id.

(internal

quotation

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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.
the

obstruction

of

Liu also argues that under the IPKCA,

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

instruction

discretion

by

declining

regarding

the

IPKCA’s

rights.” 2

See

rights”

defined

is

18

U.S.C.
in

the

to

definition

§ 1204(b)(2).
statute

give

as

The
meaning

her

preferred

of

“parental

term

“parental

“the

right

to

physical custody of the child,” including “visiting rights,” and
2

We 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.

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can be defined “by operation of law, court order, or legally
binding agreement.”
States

v.

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

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.
court

denied

Liu’s

request

to

give

this

The district

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.”
proposed

description

of

“parental

rights”

was

Thus, Liu’s

covered” by the instructions given to the jury.

“substantially

F.3d at 688.

Sonmez, 777

The district court’s jury instructions made clear

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

rights.

Accordingly,

16

the

district

court

did

not

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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

instruction,

the

address this concept.
Rather
district

than

court

giving

Liu’s

instructed

proposed

the

jury

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

defendant

court

acted

elaborated

deliberately

that

with

“you

the

must

purpose

find
of

that

the

interfering

with the parental rights of the other parent.”

By instructing

the

“substantially

jury

covered”

in
the

government

this

manner,

content

was

of

required

the

Liu’s
to

district
proposed

prove

3

that

court

instruction
Liu

intended

that

the

by

her

We 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

Appeal: 15-4381

actions

Doc: 48

to

Filed: 06/21/2016

interfere

with

Sonmez, 777 F.3d at 688.
court

did

not

abuse

Pg: 18 of 18

Ruifrok’s

parental

rights.

See

Therefore, we hold that the district
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

18