I have been following International Parental Kidnapping Cases for well over the past two decades. It wasn’t until I read a guest column in the Rio Rancho Observer by Ronda Orchard, a former Sandoval County New Mexico Grand Juror that I started to understand the significance of the case: the United States of America, Plaintiff, v. Eileen Clark, Defendant (First Amended Motion to Dismiss Indictment as Violative of the Five Year Statute of Limitations, filed October 14, 2010.
To start to understand exactly what Eileen Clark did, one needs to review the timeline:
- International Parental Kidnapping Act of 1993 – Signed as Public Law 103-322 by President Clinton on September 2, 1993.
- February 1995 – Defendant Eileen Clark is living with her husband in New Mexico with their three minor children. Mr. Clark informs Eileen that that he intended to seek a separation or divorce. The next day, Eileen Clark kidnaps the children.
- June 1995 – A Sandoval County Grand Jury returned an indictment against the Defendant, Eileen Clark. In September, the FBI files a complaint and a UFAP Warrant is issued.
- May/June 1996 – The Sandoval County dismisses the case for lack of prosecution.
- 2003 – Section 18 U.S. Code Section 3283 – The International Parental Kidnapping Act of 1993 was amended to remove the statute of limitations for kidnapping a child under 18 years during the life of the child, or ten years after the offense, whichever is longer.
- May 2004 – The Defendant, Eileen Clark while in hiding in the UK with her three children, employs an attorney to address the 1995 charges and a district court judge in Sandoval County allows her to waive her appearance (how did that happen?)
- October 2004 – The state court quashes the bench warrant. In November, the United States moves to dismiss the UFAP charge. In March of 2005, a state District Attorney formally dismisses the 1995 charges against the Defendant.
- May 2005 – The state moves to re-indict Defendant on custodial interference charges. In June, the state issues a new bench warrant based on her failure to appear. In July, the United States files a new criminal complaint charging the Defendant based on the May 2005 state charge rather than the 1995 charge.
- October 2007 – One of Ms. Clark’s children reported to a medical clinic in the UK and indicated to medical personnel that he believed he and his sibling were missing children form the United States and featured on the website of the National Center for Missing and Exploited Children. Medical personnel informed London’s Metropolitan Police, who passed this information to the FBI.
- July 2008 – The defendant was positively identified in the UK living under assumed names. On December 3, 2008, the United States secured an indictment against Ms. Clark on the charge of International Parental Kidnapping, in violation of 18 U.S.C. Sec 1204(a). Based on a request from the United States, law enforcement officials in the UK arrest Eileen Clark.
In the October 2010 Motion, Ms. Clark’s Attorneys argue that her indictment must be dismissed because she was indicted more than thirteen years after her alleged criminal act. The statute of limitations should have started running on the date of her alleged crime, in 1995.
So in a chilling review of the timeline, in 2004 one year after the removal of the statue of limitations, Eileen Clark hires an attorney to try and get her charges dismissed. It appears that when Eileen Clark kidnapped her children in 1995, she may have been told that all she had to do was stay in hiding for 5 years with her children and the statute of limitation would prevent her from spending a single day in prison. But when the new law was amended, and more importantly when the astute District Attorney in Sandoval County dismissed the case and convened a Grand Jury in May 2005 to re-indict Eileen Clark, that was a critical step in closing the legal loophole that might have allowed Eileen Clark to get away with this crime. After reading Ronda Orchard’s Guest Column, I would imagine that Ms. Orchard served on. (I’ve personally never served on a Grand Jury but I admire Ronda Orchard and others that unselfishly dedicate their time to this civil duty.)
So below is one of the key legal issues raised by the court:
However, even if the five year statute of limitations applies to this charge, the relevant question is when the statute begins running. If the crime charged is a continuing offense, the statute of limitations does not begin running until the conduct has run its course. See United States v. Dunne, 324 F.3d 1158, 1164 (10th Cir. 2003). An offense is considered a continuing crime if either “the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one.” Toussie v. United States,397 U.S. 112, 115 (1970); United States v. Reitmeyer, 356 F.3d 1313, 1322 (10th Cir. 2004).
Finally, in the case of the United States of America vs. Eileen Clark and her motion to dismiss her parental kidnapping charges due to the Five Year Statute of Limitations, below is the ruling of the United State District Court.
Moreover, the facts of this case illustrate why it would make no sense to have a five year statute of limitations that runs from the time of kidnapping rather than from the time of discovery. The Government could not have sought an indictment on this charge until it was aware that Ms. Clark was in the U.K., because, until that time, it was not clear that Ms. Clark had removed her children from the country, thereby making her eligible for the charge.
Even if international parental kidnapping was not considered a continuing crime, it appears that the Indictment is still timely pursuant to another provision. 18 U.S.C. § 3290 provides that “[n]o statute of limitations shall extend to any person fleeing from justice.” Under United States v. Morgan, 922 F.2d 1495, 1497-99 (10th Cir. 1991), a person fleeing from justice in one jurisdiction (even on state charges) loses the benefit of the statute of limitations for any federal charge in any federal jurisdiction. For years, Ms. Clark was a fugitive on the 1995 state charges of custodial interference. She knew about the charges as evidenced by the fact that, in 2004, she hired an attorney to address them. Even if she could be considered to have had her fugitive status removed when the warrant for her arrest was quashed in 2004, the Indictment was still filed within five years of this date, and was therefore timely.
IT IS THEREFORE ORDERED that Defendant’s First Amended Motion to Dismiss Indictment as Violative of the Five Year Statute of Limitations [Doc. 11] is DENIED .
UNITED STATES DISTRICT JUDGE
For me, with all the support and media that Eileen Clark has received by the Media in the UK, it’s finally the time that we see some legal terms or legal language that starts to describe the criminal act that Eileen Clark committed. These are “continuing offense” or “continuing crime“. This is the victim of John Clark’s side of the story!
Thanks again to former Grand Juror Ronda Orchard helping us start this discussion.