BROOKLYN, N.Y. (CN) – A Vietnamese movie star convicted of kidnapping her 4-year-old daughter and taking her to Vietnam will get a new trial because Congress did not define “domestic violence” in the law under which she was charged, a federal judge ruled.
Just before Christmas 2010, a jury found Huong Thi Kim Ly guilty of international parental kidnapping. The 1993 federal law allowed defendants to argue that they were “fleeing an incidence or pattern of domestic violence” to prove their innocence.
In his 24-page order, Senior U.S. District Judge Stephen Johnson said that case law had not parsed the phrase “domestic violence” for 18 years.
Judge Johnson acknowledged that his instructions may have led jurors to overlook Kim Ly’s claims that her husband abused her sexually and emotionally.
“Obviously, we’re very pleased with the decision,” Kim Ly’s attorney Edward Kratt told Courthouse News. “We were very disappointed with the jury’s verdict.”
If prosecutors decide to reopen the case, a new jury will hear how a courtship in Vietnam ended years later in a Brooklyn federal courthouse.
In August 2000, New York City resident Tony Lam says he traveled to Ho Chi Minh City, where he met Kim Ly, a film star from an influential Vietnamese family. They dated a short time before becoming engaged, then moved to Manhattan in January 2001, where they lived on the Lower East Side and in Chinatown.
Kim Ly became pregnant shortly after she arrived, and the couple got married in Las Vegas on Feb. 6, 2001.
In October Kim Ly gave birth to a daughter, with whom she fled in November 2005.
After 2 years of custody battles in New York and Vietnam, Lam met with FBI Agent Timothy Wittman, who arrested Kim Ly after she returned to the United States to renew her permanent resident visa in May 2008.
Lam and Kim Ly both testified during a 4-day trial in December 2010, and jurors requested both transcripts early in deliberations.
When jurors asked Judge Johnson to define “domestic violence,” he replied: “Ladies and gentlemen, we are dealing with a statute that was passed by Congress, and that is 18 USC Section 1204, and when Congress passed this law they mentioned the term domestic violence but they never defined what domestic violence was. There is no case law on what is domestic violence so you have to use your common sense, what you think domestic violence is. OK?”
With the holidays approaching, jurors wrote a note saying they were deadlocked after day one. The judge told them to get back to work.
“Ladies and gentlemen, we have been on trial for 4 days,” Johnson said, according to court transcripts. “Everybody has worked hard, the prosecution, the defense – you’ve only had it for a day and a half. I’m asking you to go back and just try again. Kick it around.”
They adjourned early that day, and the judge joked, “finish your Christmas shopping and spend a lot of money.”
The next day, Dec. 16, 2010, jurors returned a guilty verdict.
After they left, Judge Johnson told the lawyers: “I’ll tell you that I have grave reservations about the decision, but I respect what the jury has done,” according to transcripts.
Kim Ly faced up to 3 years in prison, but her sentencing was postponed pending her motion for acquittal or a new trial.
On Friday (July 22), Judge Johnson ordered a new trial because of the vagueness of his definition of “domestic violence.”
“According to the government, the ordinary meaning of ‘domestic violence’ requires the court to separate the two terms: ‘domestic,’ involving the members of the same family or household, and ‘violence,’ the use of physical force. But that is not the only definition,” Johnson wrote in his order for a new trial.
Citing “Black’s Law Dictionary,” Johnson continued, “For example, domestic violence is also defined as ‘the creation of a reasonable fear that physical injury or harm will be inflicted, by a parent or a member or former member of a child’s household, against a child or against another member of the household.'” (Emphasis in original.)
He added, “Defendant’s proposed definition of emotional, sexual, or physical violence encompassed the broad definition of domestic violence and, therefore, was legally correct.”
Kratt, Kim Ly’s attorney, said it was “pretty surprising” to find that the term is still undefined.
“The government argues that violence is violence,” Kratt said. “I argued, based on my experience, that it’s clearly more complicated than that.”
Kratt said Kim Ly’s electronic monitoring was lifted on Friday.