U.S. v. Ballek

• Decision Date: 11 March 1999
• Docket Number: No. 97-30326,97-30326
• Citation: 170 F.3d 871
• Parties: 99 Cal. Daily Op. Serv. 1805, 1999 Daily Journal D.A.R. 2325 UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey A. BALLEK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 871

170 F.3d 871

99 Cal. Daily Op. Serv. 1805, 1999 Daily

Journal D.A.R. 2325

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey A. BALLEK, Defendant-Appellant.

No. 97-30326.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 18, 1998.

Decided March 11, 1999.

Carlton F. Gunn, Assistant Federal Public Defender, Anchorage, Alaska, for the defendant-appellant.

Stephan A. Collins, Assistant United States Attorney, Anchorage, Alaska, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Alaska; John W. Sedwick, District Judge, Presiding. D.C. No. CR-97-00049-JWS.

Before: ALDISERT, ^* WALLACE and KOZINSKI, Circuit Judges.

KOZINSKI, Circuit Judge.

The district court found defendant guilty of willfully failing to pay child support, in violation of the Child Support Recovery Act (CSRA), 18 U.S.C. § 228 (1994) (amended 1998). The court based its finding of willfulness on defendant's failure to seek available employment, which would have earned him enough money to meet his child support obligations. Among the questions we consider is whether, so construed, the CSRA violates the constitutional prohibition against slavery.

I

Ballek and his wife were married in Alaska in 1976 and subsequently had four children. For over a decade Ballek supported his family through his work as a general building contractor. After an acrimonious divorce in 1988, the state court awarded custody of the children to the mother and ordered Ballek to pay $500 a month plus half of their medical expenses as child support. The court further provided that the payment would be reduced to $395 if Ballek's wife and children moved out of state.

During the following nine years, Ballek made only one voluntary child support payment. After a bench trial, the district judge sentenced Ballek to six months imprisonment, and ordered him to pay $56,916.71 in past due child support as restitution.

II

The CSRA is violated by willful failure to pay a known child support obligation. The district court found that, at relevant times, Ballek did not have the means to pay child support. The court nevertheless found that Ballek acted willfully because he failed to maintain gainful employment that would have enabled him to meet his child support obligations. Ballek challenges this finding as unsupported by the evidence, as contrary to the statute and as violating the Thirteenth Amendment. ¹ Because sufficiency of the evidence turns on our construction of the statute, we consider it last.

"Whoever willfully fails to pay a past due support obligation with respect to a child who resides in another State" violates the CSRA. 18 U.S.C. § 228(a) (1994) (amended 1998). The term "willfully" in this phrase can be read one of two ways: having the money and refusing to use it for child support; or, not having the money because one has failed to avail oneself of the available means of obtaining it. In determining whether the statute is limited to the former meaning of "willfully" or extends to the latter, we note that the obligation in question is not an ordinary debt; it is an award imposed by a state court to ensure the sustenance and well-being of the obligor's children. In making such an award, the state courts take into account a variety of factors, including the non-custodial parent's other obligations and his ability to pay child support; if circumstances change, the obligor can return to court and seek to have the amount reduced. See Alaska Stat. § 25.24.170 (Michie 1998); Curley v. Curley, 588 P.2d 289, 291 n. 2 (Alaska 1979).

Given this means-testing, which is an integral aspect of every child support award, a non-custodial parent should never be confronted with a situation where he is ordered to make child support payments he cannot afford. A non-custodial parent who does not have the funds to satisfy the child support award, and who does not obtain a reduction or remission of the award because of inability to pay, will almost certainly be engaged in willful defiance of the state court's child support order. Given that the CSRA was passed to assist the state courts in enforcing child support decrees, we are confident that Congress did not mean to let absentee parents evade their parental obligations by refusing to accept gainful employment or take other lawful steps to obtain the necessary funds.

The CSRA's clear-cut legislative history supports this construction. The House Report accompanying H.R. 1241, which eventually became the CSRA, addressed the meaning of "willfully fails to pay." See H.R.Rep. No. 102-771, at 6 (1992). The Report notes that "[t]his language has been borrowed from the tax statutes that make willful failure to collect or pay taxes a Federal crime." Id. The Report then instructs that "the willful failure standard of [the CSRA] should be interpreted in the same manner that Federal courts have interpreted [the] felony tax provisions." Id. The Report quotes with approval from our opinion in United States v. Poll, 521 F.2d 329 (9th Cir.1975), where we held that, for purposes of proving willful failure to pay,

the Government must establish beyond a reasonable doubt that at the time payment was due the taxpayer possessed sufficient funds to enable him to meet his obligation or that the lack of sufficient funds on such date was created by (or was the result of) a voluntary and intentional act without justification in view of all the financial circumstances of the taxpayer.

Id. at 333 (emphasis added). By quoting Poll, the drafters of the House Report clearly embraced a meaning of the term "willfully" that goes beyond merely failing to pay when one has the funds available, and extends to the situation where the defendant has acted willfully in not having funds available. Our interpretation follows that of the Eleventh Circuit, the only other court of appeals to have addressed this question. See United States v. Williams, 121 F.3d 615, 620-21 (11th Cir.1997).

Ballek argues that the statute, so construed, runs afoul of the prohibition against slavery or its close cousin, the prohibition against imprisonment for debt. Imprisoning someone for failure to pay a debt can run afoul of the Thirteenth Amendment. See, e.g., Pollock v. Williams, 322 U.S. 4, 64 S.Ct. 792, 88 L.Ed. 1095 (1944). However, not all forced employment is constitutionally prohibited. Where the obligation is one that has traditionally been enforced by means of imprisonment, the constitutional prohibition does not apply. See, e.g., Robertson v. Baldwin, 165 U.S. 275, 287-88, 17 S.Ct. 326, 41 L.Ed. 715 (1897) (imprisonment for sailors who desert their ships); Arver v. United States, 245 U.S. 366, 390, 38 S.Ct. 159, 62 L.Ed. 349 (1918) (imprisonment for refusal to perform military service); Butler v. Perry, 240 U.S. 328, 332-33, 36 S.Ct. 258, 60 L.Ed. 672 (1916) (imprisonment for failure to do roadwork).

We conclude that child-support awards fall within that narrow class of obligations that may be enforced by means of imprisonment without violating the constitutional prohibition against slavery. ² We start with the self-evident observation that the relationship between parent and child is much more than the ordinary relationship between debtor and creditor. The parent is responsible for bringing the child into the world and in so doing assumes a moral obligation to provide the child with the necessities of life, and to ensure the child's welfare until it is emancipated and able to provide for itself. When parents neglect their children, this raises more than a private legal dispute. It is a matter of vital importance to the community, and every state now enforces, by means of criminal sanctions, the parent's obligation to support children within his custody. See Alaska Stat. § 11.51.120 (Michie 1998); see also Frances W.H. Kuchler, Law of Support 34 (3d ed.1980).

The state's strong concern for the welfare of minor children is also manifested by the fact that parental obligations at the dissolution of a marriage are not left to private agreement. Rather, they are supervised by family courts which are charged with the responsibility of securing the children's welfare despite the estrangement of the parents. Experience teaches that the natural bonds, which normally ensure that children are cared for, are sometimes weakened when the affinity between the parents comes to an end. The supervision--and coercive power--of the court is often invoked to prompt the non-custodial parent to continue providing support. The non-custodial parent's obligation to pay child support is thus derivative of the obligation to provide support in a custodial setting, and such awards are routinely enforced by imprisonment. See, e.g., Taylor v. Alaska, 710 P.2d 1019 (Alaska Ct.App.1985) (affirming conviction of non-custodial parent who without lawful excuse failed to provide support for child). The state also has an interest in protecting the public fisc by ensuring that the children not become wards of the state. Cf. Butler, 240 U.S. at 333, 36 S.Ct. 258 ("[The Thirteenth Amendment] certainly was not intended to interdict enforcement of ... duties which individuals owe to the State....") At least one state Supreme Court has rejected the argument that imprisonment for failure to work in order to earn enough money to make child support payments violates state and federal prohibitions against slavery. See Moss v. Superior Court, 17 Cal.4th 396, 71 Cal.Rptr.2d 215, 222, 950 P.2d 59, 66 (1998).

Were we to hold, as defendant urges us to, that enforcing child support obligations by threat of imprisonment violates the Thirteenth Amendment, we would undermine the well-established practices in the state courts for policing compliance with child support obligations. We would, effectively, put children on the same footing as unsecured creditors. We decline to interpret the Thirteenth Amendment in a way that would so drastically interfere with one...