391 F.3d 120 (2nd Cir. 2004), 04-1219, United States v. Venturella

Docket Nº:04-1219-CR.
Citation:391 F.3d 120
Party Name:UNITED STATES of America, Appellee, v. Jo-Ann VENTURELLA, also known as Jo-Ann Ferretti, Defendant-Appellant.
Case Date:December 08, 2004
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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391 F.3d 120 (2nd Cir. 2004)

UNITED STATES of America, Appellee,

v.

Jo-Ann VENTURELLA, also known as Jo-Ann Ferretti, Defendant-Appellant.

No. 04-1219-CR.

United States Court of Appeals, Second Circuit

December 8, 2004

Argued: Sept. 30, 2004

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Mark J. Lesko, Assistant United States Attorney for the Eastern District of New York (Roslynn R. Mauskopf, United States Attorney, on the brief; Cecil C. Scott, Assistant United States Attorney, of counsel), Brooklyn, New York, for Appellee.

Michael P. Berkley, Law Office of Michael P. Berkley, P.C., Garden City, New York, for Defendant-Appellant.

Before: STRAUB, POOLER, and WESLEY, Circuit Judges.

WESLEY, Circuit Judge:

Under 18 U.S.C. § 228 (Supp. II 2003), a person owing more than $10,000 in child support may be punished by two years' imprisonment if she "willfully fails to pay [that child] support obligation with respect to a child who resides in another State." 18 U.S.C. § 228(a) (3), (c) (2) (emphasis added). Jo-Ann Venturella argues the term "resides" denotes "domicile." Specifically, she contends that the Government could not establish that she "resided" in Florida without proving she intended to live there permanently.

Background 1

Ms. Venturella and James Ferretti divorced in 1998. The New York Supreme Court, Suffolk County, awarded Ferretti custody of their children, seven-year-old James Ferretti, Jr., and five-year-old Justin Ferretti, and ordered Venturella to pay James Ferretti $450 in child support once every two weeks with the first payment due February 2, 1998.

Venturella refused to pay child support. The only payment received was an involuntary garnishment of her wages in mid-

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March of 1998. At that time, she earned over $75,000 a year teaching in a New York public school. Venturella thereafter informed her employer she would quit her job if she could not avoid paying child support.

Venturella succeeded in that regard by leaving first her job and then New York. She immediately asked the school district for an unpaid leave of absence and expressed concern about resuming teaching in New York for fear that "the child support garnishment would be taken out if she returned to work." In the fall of 1998, she took a job at the Broward Children's Center in Pompano Beach, Florida. When she applied for that job in October she listed her home address as Pembroke Pines, Florida. She began work at Broward in November. That same month, she applied for and was issued by the Florida Department of Highway Safety and Motor Vehicles a Florida-only driver's license, stating that she had "part-time residence, employment or military assignment in th[e] state." Venturella then applied for a teaching position with Huntington Learning Center in Pembroke Pines in late November, listing the same home address. She worked as a tutor for Huntington throughout December 1998 and January 1999.

Venturella lived in Florida--either in Pembroke Pines or Fort Lauderdale--until at least May 1999. Although there is some evidence that Venturella returned to New York on various occasions while she lived in Florida, a neighbor testified that from January 1999 through May of that year she saw Venturella at Venturella's home "all the time."

A grand jury indicted Venturella on the charge that, between January 1998 and October 27, 1999, she resided in Florida and knowingly and willfully failed to pay a past due support obligation greater than $10,000 with respect to her children who resided in New York, in violation of 18 U.S.C. § 228(a) (3). 2 The trial focused on where Venturella "resided," specifically, whether she resided in Florida at any time during that period. The parties vigorously disputed the proper interpretation of that term. 3 Venturella asked the district court to adopt the definition of "resides" enunciated in United States v. H., No. 01-0457, 2001 WL 1646465 (E.D.N.Y. Dec.17, 2001),

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which would require the jury to find that Venturella "left the State of New York with an intention not to return to the State of New York, and to live permanently in Florida." The Government asked the court to employ the definition of "residency" articulated by this Court in Rosario v. INS, 962 F.2d 220 (2d Cir. 1992). That definition has no reference to an intent to remain permanently or indefinitely and would have simply required the jury to determine whether Venturella had her "principal, actual dwelling place" in Florida.

Over Venturella's objection, the district court adopted the Government's definition. 4 The jury found Venturella guilty. The court sentenced her to fifteen months' imprisonment followed by one year of supervised release. 5 Venturella appeals from the judgment of conviction and we now affirm.

Discussion

Venturella argues (1) the district court's jury instruction defining "resides" was erroneous and prejudicial, (2) § 228 is unconstitutionally vague as applied, (3) the district court's failure to charge the jury on a "dual residency" defense constituted plain error, and (4) she was denied the effective assistance of counsel. The first three arguments are without merit, and we decline to resolve the fourth.

1. The "Resides" Instruction Properly Adopted A Definition Based on Residency Rather Than Domicile

The parties do not dispute that § 228(a) (3) applies "where the child and obligated parent reside in separate States." United States v. Sage, 92 F.3d 101, 107 (2d Cir. 1996). Venturella, however, contends that the district court "erred in failing to instruct the jury that the term 'residence' [sic] as used in 18 U.S.C. § 228 should be interpreted synonymously with the term 'domicile,' " and, specifically, that the court erred in permitting the jury to find that Venturella could "reside" in Florida

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even if she did not intend to live there permanently. We disagree.

"Well-established principles of construction dictate that statutory analysis necessarily begins with the 'plain meaning' of a law's text and, absent ambiguity, will generally end there." Collazos v. United States, 368 F.3d 190, 196 (2d Cir. 2004). Although "resides" usually denotes residence, see, e.g., United States v. Namey, 364 F.3d 843, 845 (6th Cir. 2004), cert. denied, --- U.S. ----, 125 S.Ct. 302, --- L.Ed.2d ---- (2004), it may also denote domicile, see, e.g., WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1931 (2002) (defining "reside," as, in part, "[to] have one's residence or domicile"). For the most part, " 'residence' and 'domicile' are two perfectly distinct things." 6 Delaware, L. & W.R. Co. v. Petrowsky, 250 F. 554, 560 (2d Cir. 1918). Residence is "[t]he act or fact of living in a given place for some time," while domicile is "a person's true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere." BLACK'S LAW DICTIONARY 501, 1310 (7th ed.1999). In Rosario, we explained the terms' "different common law meanings":

Domiciliaries are those who have a fixed, permanent and principal home and to which, whenever absent, they always intend to return. At the opposite end of the scale are transients, those persons who are just passing through a locality. In between these notions of permanence and transience are residents. Residency means an established abode, for personal or business reasons, permanent for a time. A resident is so determined from the physical fact of that person's living in a particular place. One may have more than one residence in different parts of this country or the world, but a person may have only one domicile. A person may be a resident of one locality, but be domiciled in another.

Rosario, 962 F.2d at 224 (internal citations omitted). Accordingly, while residence generally does not require an intent to remain or return, domicile does. Yet as "resides" can mean either "residence" or "domicile," definitions alone do not resolve the dispute.

Of course, we cannot abandon our inquiry simply because the determinative word is susceptible to two definitions. See United States v. Dauray, 215 F.3d 257, 262 (2d Cir. 2000). As Judge Learned Hand noted in Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945), aff'd, 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945), "one of the surest indexes of a mature and developed jurisprudence" is "not to make a fortress out of

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the dictionary." Thus, where a statutory term is reasonably susceptible to two or more meanings, we turn to the canons of statutory construction. See Natural Res. Def. Council, Inc. v. Muszynski, 268 F.3d 91, 98 (2d Cir. 2001).

"Use of the same language in various enactments dealing with the same general subject matter ... is a strong indication that the statutes should be interpreted to mean the same thing." Hargrave v. Oki Nursery, Inc., 646 F.2d 716, 720 (2d Cir. 1980). We have found only one other federal provision using the term "resides" to define a crime, 18 U.S.C. § 922, and that provision uses the term as § 228 does--to set forth an interstate element. In § 922, "resides" denotes residency. The statute provides, inter alia, that it shall be unlawful:

for any person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector to transport into or receive in the State where he resides (or if the person is a corporation or other business entity, the State where it maintains a place of business) any firearm purchased or otherwise obtained by such person outside that State, except that this paragraph (A) shall not preclude any person who lawfully acquires a firearm by bequest or intestate succession in a State other than his state of residence from transporting the firearm into or receiving it in that State, if it is lawful...

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