INTERNATIONAL TRAVEL: PRIVILEGE OR CONSTITUTIONAL RIGHT?

When individuals are convicted of a crime, they often face many restrictions. Offenders on probation are ordinarily required to maintain law-abiding conduct, live at a directed place, obey the orders of the probation officer, and not leave their jurisdiction. It is important for offenders to understand the restrictions that probation imposes, including limitations on the ability to travel. The criminal defendant must have a clear understanding of the conditions of his or her probation, including all travel restrictions. It is common for probation not to allow the offender to leave the state without receiving express written consent from his or her probation officer. Each person sentenced to probation must follow the conditions of probation or risk imprisonment.

Before leaving the state or country, the defendant must speak with his or her parole officer about potential plans to confirm if their travel is permitted. If the plans are not approved, and the defendant travels anyway, this action can result in the defendant being found to have violated the terms and conditions of his or her probation, and they can be subject to penalties related to the violation. The purpose of probation is to limit a person’s movement and to keep them in one state for surveillance. To comply with these measures, the subject must report any attempt at travel; even driving from one city to another requires a subject to report to their assigned supervisor. Despite these limitations, the offender can still attempt to bypass travel restrictions by simply crossing the border because there is no U.S. border control at points of exit.

An example of a violation of probation is shown in the film “The Shawshank Redemption” directed by Frank Darabont. The character Ellis Boyd ‘Red’ Redding (played by Morgan Freeman) , violates the probation by traveling to Fort Hancock, Texas, and crossing the border into Mexico. There is no border control at the exit from the U.S., and his name is not on the restriction list. Boyd would most likely have been returned to prison for a lesser offense, yet he will not be punished for leaving the United States because no one prevented it. Some might object to this by stating that there is an extradition procedure with Mexico, but in the best-case scenario, it may take many years, and in the worst-case scenario, it may never happen.

Now, I would like to share with you the true story of Ms. Bogdana Osipova-Mobley. This case is widely available online, but very few people know how it ended and what resulted from the ruling. Osipova was born in Russia, and in 2003she immigrated to New York as an adult, where she married. Her first marriage ended in divorce in 2008 but produced a son over whom Osipova had full custody. In June 2011, Osipova briefly joined the U.S. Air Force Reserve, where she met and began a romantic relationship with her recruiter Mobley. When the Air Force transferred Mobley to Wichita, Kansas, Osipova followed him, and they married there in January 2013. That same month, they had a daughter, Sophia Mobley. But fourteen months later, Mobley filed for divorce. The Kansas state court entered a temporary order awarding joint custody over Sophia Mobley. Under this order, Osipova retained the marital residence at Mobley's expense, and Mobley had to pay child support.

In April 2014, a pregnant Osipova took her young son and daughter to Russia, leaving behind ongoing divorce proceedings in Kansas. By doing so, Osipova deprived Brian Mobley, her soon-to-be ex-husband and the father of her daughter and unborn child, of his joint-custody rights under the Kansas court's temporary custodial order. In Russia, Osipova soon gave birth to a girl and instituted her divorce proceedings. The Russian court ordered Mobley to pay monthly child support, but by then, the Kansas court had already awarded Mobley full custody of their two daughters, and he steadfastly refused Osipova's requests to pay the Russian court-ordered child support. Eventually, in September 2017, Osipova returned alone to the United States on an ill-fated quest to modify the Kansas order. The FBI promptly arrested Osipova.

The government requested that the court sentence Osipova to 87 months imprisonment—the high end of the U.S. Sentencing Guidelines Manual's advisory range of 70–87 months. Osipova faced a statutory maximum of three years on her international-parental-kidnapping conviction and twenty years on her extortionate communications convictions. See 18 U.S.C. §§ 875 (b), 1204 (a). She asked for a three-year sentence, arguing that anything greater would be over-representative because the conduct which constitutes the extortion counts are almost factually identical to kidnapping. The court sentenced Osipova to three years on the international parental-kidnapping count and seven years on the extortionate communication counts, all to run concurrently.

In an opinion dated August 21, 2020, The United States Court of Appeals for the Tenth Circuit concluded that according to the common-law definition of kidnapping, no reasonable jury could determine Osipova was guilty of transmitting threats to kidnap in violation of § 875(b). Accordingly, her convictions for those counts should be vacated.

Bogdana Osipova-Mobley was released from prison in November 2020. On March 19, 2021, despite her stay of probation and prohibition to leave the country, she left the United States and returned to Russia. Nobody stopped her at the border because there was no border control. This is a massive omission of the legislature that nullifies the efforts of thousands of people, including state and local police, federal agents such as the FBI, prosecutors, judges, and other actors.