MONTPELIER, Vt. — A Mennonite pastor from Virginia convicted of helping a woman flee the country rather than share custody of her daughter with her former lesbian partner says his federal conviction should be thrown out because no part of the crime occurred in Vermont, where he was arrested, prosecuted and found guilty.
Attorneys for Kenneth Miller argued in documents filed with the 2nd U.S. Circuit Court of Appeals that the effort to get Lisa Miller and her daughter Isabella out of the country began in Virginia and ended in New York state when the pair crossed the Rainbow Bridge to Canada in September 2009 before flying to Nicaragua.
The documents, filed Monday in New York, said Miller’s right to be tried before a jury near his home could be traced to England’s Magna Carta in 1215, the basis for much of the U.S. Constitution.
In cases where U.S. laws are broken outside the United States, the defendant can be prosecuted where he is arrested. Attorneys for Miller, who is no relation to Lisa Miller, said in the filings that appeals courts across the country have reached different opinions about the venue of cases that occur in the United States and outside the country.
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“Affirming appellant’s conviction will create a significant loophole in federal venue law, opening the door to unregulated venue shopping in a wide range of cases…,” the documents say. “Strategic decisions will be developed to try cases in more favorable districts rather than where offenses were committed.”
The criminal case stemmed from a custody battle decided by a Vermont family court. Miller turned himself in to federal authorities in Vermont in December 2011, and was sentenced in March to 27 months in prison. His sentencing has been delayed pending his appeals.
U.S. Attorney Tristram Coffin in Vermont said Wednesday he had not seen the appeal but would make the same argument as his office made to the trial court – that Miller’s criminal actions became complete once the mother and child left the U.S. and were therefore subject to prosecution where Miller was arrested.
“The crime was not completed until they entered Canada,” Coffin said.
Miller, 47, of Stuarts Draft, Va., was convicted last summer of aiding Lisa Miller and her daughter Isabella flee to Nicaragua from their home in Virginia to escape a custody dispute Lisa Miller was having with her former lesbian partner, Janet Jenkins of Fair Haven.
Lisa Miller and Jenkins were joined in a Vermont civil union in 2000 and Isabella was born to Lisa in 2002. The couple split in 2003 and a Vermont family court gave custody of Isabella to Lisa Miller with regular visitation for Jenkins. Lisa Miller sought full custody after moving to Virginia and renouncing homosexuality. Two months later she fled the country with Isabella, and a Vermont judge gave custody of the girl to Jenkins.
Lisa Miller and Isabella are believed to be living in Nicaragua.
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