This case involves parental kidnapping by a father in Florida who took his son out of the country on a 32 foot sail boat. In U.S. v. Martikainen the defendant pleaded guilty to the charge of international parental kidnapping (18 U.S.C. §1204(a)), for leaving his the United States with his son. His sentence was enhanced under §3C1.2 for “recklessly creating a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer.” The Eleventh Circuit Court of Appeals reversed the federal sentence enhancement imposed under the Federal Sentencing Guidelines.
Here is what the father did. Following a contentious battle with his ex-wife over visitation with his son, Martikainen, was under court order to have only supervised visitation with the child. Martikainen purchased the sail boat he painted grey. Not long after, during a supervised visit with his child, he absconded with his son while the supervisor was in the restroom. He drove his son to a marina where he boarded the sailboat, which he had purchased a few days after the court initially entered the order, and headed to the Gulf of Mexico towards the Yucatan Peninsula. In route, the Coast Guard found them and monitored his direction for hours before finally boarding the boat. Martikainen fully cooperated with the agents in turning over the child.
While the court agreed that Martikainen’s conduct did create a substantial risk of death or serious bodily injury to his son for these reasons:
• he had no license as a boat captain,
• no experience as a sailor,
• the boat was painted grey,
• the boy had no life jacket when found.
However, the court found that this sentencing guidelines provision is only applicable where the defendant knows he is fleeing from a law enforcement officer who is in pursuit.
While there was evidence Martikainen endangered his son taking on this sailing expedition, there was no evidence he was fleeing any particular law enforcement officer or that he was aware the Coast Guard was in pursuit until they found him. This important fact meant the enhancement did not apply. A defense lawyer with expertise in the field of federal criminal defense can find a legal challenge to the incorrect application of the sentencing guidelines.