U.S. v. Edelkind

• Decision Date: 15 April 2008
• Docket Number: No. 06-30777.,06-30777.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jamie EDELKIND, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

525 F.3d 388

UNITED STATES of America, Plaintiff-Appellee, v. Jamie EDELKIND, Defendant-Appellant.

No. 06-30777.

United States Court of Appeals, Fifth Circuit.

April 15, 2008.

Camille Ann Domingue, Asst. U.S. Atty. (argued), Lafayette, LA, for U.S.

Rebecca L. Hudsmith, Fed. Pub. Def. (argued), Lafayette, LA, for Edelkind.

Appeals from the United States District Court for the Western District of Louisiana.

Before REAVLEY, SMITH and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

Defendant-appellant Jamie Edelkind ("Edelkind") appeals his conviction for having "wilfully fail[ed] to pay a support obligation with respect to a child who resides in another State, if such obligation has remained unpaid for a period longer than 2 years, or is greater than $10,000" in violation of 18 U.S.C. § 228(a)(3). Edelkind presents four issues on appeal: (1) whether the statute of limitations bars his conviction; (2) whether the district court abused its discretion in delaying the trial in violation of the Speedy Trial Act, 18 U.S.C. §§ 3161, et seq.; (3) whether the district court erred in its jury instructions on "wilfulness"; and (4) whether there was sufficient evidence for the conviction.¹ For the following reasons, we reject appellant's arguments. The conviction is AFFIRMED.

BACKGROUND

Jamie Edelkind, a computer technology expert, married Suzanne Boudreaux in 1988, who gave birth to their son, Sage, in 1993. The family lived primarily in Atlanta, Georgia, and Edelkind operated his own business. They had a lavish lifestyle. Edelkind and Boudreaux separated as a precursor to divorce in 1997, and they entered into a Settlement Agreement in 1998. The Settlement Agreement required that, aside from a few months early on, Edelkind would pay $1,400 a month in child support. However, litigation over various aspects of the divorce and agreement ensued. See, e.g., Edelkind v. Boudreaux, 271 Ga. 314, 519 S.E.2d 442, 443-44 (1999). On September 15, 1999, with the issues finally resolved, a Georgia court entered a Final Judgment and Decree of Divorce in 1999. It incorporated by reference the terms of the 1998 Settlement Agreement, and the decision was made retroactive to 1998 ("1998 Judgment"). In the 1998 Judgment, the court found Edelkind "in willful contempt" of his child support obligations, and ordered him to repay his arrearage of $7,000 plus $300 of interest. The Georgia court found that Edelkind "has wholly failed to pay any amounts as child support to [Boudreaux] in the past five months while by his own testimony maintaining an affluent lifestyle and standard of living."

While litigation was pending before the Georgia courts, in 1998, Boudreaux and Sage moved to Louisiana. Edelkind lived in Georgia until 1999 when he moved to Massachusetts after marrying his new wife, Linda, in 1998. After Boudreaux moved to Louisiana, Edelkind stopped paying child support.

In 1999, Edelkind sent a number of checks to satisfy his arrearage, all of which were returned for insufficient funds, and Boudreaux sought assistance from the state of Louisiana to obtain child support for Sage. Also in 1999, Edelkind declared bankruptcy, and Boudreaux eventually received a check from the bankruptcy court amounting to $9,622.97.

Edelkind continued to enjoy a lavish lifestyle in Massachusetts with his new wife, with whom he had three children. He lived in a mansion, drove expensive cars, hired two nannies, and sent his children to private schools. He marketed himself as a technology expert who owned several important patents. While these assets, including the home and cars, were paid for using his wife's name and accounts, Edelkind was heavily involved in the management of their joint finances.² Throughout this time, Edelkind did not fulfill his child support obligations and evaded garnishment by opening up bank accounts without using his social security number.

Boudreaux's efforts to enforce the child support obligations culminated in a 2003 hearing in a Louisiana state court for which both Bordeaux and Edelkind were present with counsel. At the hearing, Edelkind testified about his earning capacity and work history. After examining the evidence and testimony, the Louisiana state court found that "[i]f Mr. Edelkind would have conducted himself in an honest and forthright manner in his business and legal dealings, he would have no problem obtaining employment" and thereby fulfill his child support obligations. The Louisiana court entered a judgment in November 2003 ("2003 Judgment"), holding that Edelkind owed nearly $70,000 in back child support, and would have to pay approximately $1,500 a month from then on. To reach those sums, the Louisiana court recalculated the amount owed, based on findings regarding Edelkind's and Boudreaux's earning capacities. In so doing, the court rejected a litany of Edelkind's excuses, including ongoing troubles with the Securities & Exchange Commission. The court found Edelkind was "in contempt of court for his wilful and contumacious violation of the orders of the Court for failure to pay child support." It said the "arrearages in child support are particularly egregious." It also found that Edelkind "has put all of his assets beyond his creditors, including his ex-wife." Based on these findings, the court sentenced Edelkind to 90 days in jail, unless he would make an immediate payment of $25,000. After that hearing, Edelkind paid the $25,000, but after the hearing, he still did not consistently pay the child support that he owed.

On October 12, 2005, Edelkind was indicted for willfully failing to pay child support in violation of 18 U.S.C. § 228, from December 1998 to the date of the indictment. In late November 2005, the Government moved for a continuance, asserting that it was still waiting for certain sealed records to be provided by the Louisiana state courts, and that it was still verifying certain pieces of evidence. Edelkind opposed this motion, but after a pre-trial conference, the district court granted the motion. Edelkind then got a new lawyer, and eventually moved for a continuance of his own, which was also granted.

At trial, the foregoing story was presented. The Government also presented statements Edelkind allegedly told the FBI when he was interviewed: that Edelkind tried to hide money from Boudreaux by opening bank accounts without using his social security number, and that he received compensation of at least $50,000 around mid-2000 to early-2001. The Government also presented evidence that Edelkind could use "Linda's" money as he saw fit, even though the funds were in her name. Taking into account all of the support payments actually made by Edelkind from January of 1999 forward, he owed nearly $90,000 at time of trial. The only documented support that he voluntarily paid since 1999 was $1,500 that he had a lawyer send.

After a series of pre-trial motions, the case was tried before a jury, and Edelkind was convicted. Following trial, Edelkind moved for a judgment of acquittal or new trial, which was denied. Edelkind was sentenced to 24 months imprisonment, the statutory maximum, and ordered to pay restitution of approximately $95,000. Edelkind filed a timely notice of appeal.

STANDARD OF REVIEW

We review questions of law relating to statutes of limitations de novo. See United States v. Gunera, 479 F.3d 373, 376 (5th Cir.2007). We review factual findings supporting Speedy Trial Act rulings for clear error, and legal conclusions de novo. See United States v. Stephens, 489 F.3d 647, 652 (5th Cir.2007). Denials of proposed jury instructions are reviewed for abuse of discretion. See United States v. Cain, 440 F.3d 672, 674 (5th Cir.2006). If properly preserved for appeal, we review sufficiency of the evidence claims de novo, though "in the light most favorable to the verdict"; otherwise, we review them under the "plain error" — or "manifest miscarriage of justice" — standard. See United States v. Morganfield, 501 F.3d 453, 461 (5th Cir.2007) (internal citations and quotations omitted).

ANALYSIS

I. Statute of Limitations

Edelkind contends that his willful failure to pay child support is not a continuing offense, and, consequently, he could have been convicted for acts that were outside the statute of limitations. The pertinent statute states that any person who "wilfully fails to pay a support obligation with respect to a child who resides in another State, if such obligation has remained unpaid for a period longer than 2 years, or is greater than $10,000" is guilty of a crime. 18 U.S.C. § 228(a)(3).

The statute is subject to the general five-year statute of limitations provided for under 18 U.S.C. § 3282(a), because section 228 does not contain a specific limitations period. See United States v. Monts, 311 F.3d 993, 999 (10th Cir.2002). Edelkind argues that the crime is complete when the child support payments reach 2 years or is greater than $10,000 and the statute of limitations starts to run at that point. Here, the payments reached $10,000 at the latest, on October 1, 1999. Edelkind argues that the statute of limitations period ended on October 1, 2004, and therefore the October 12, 2005 indictment was untimely. In response, the Government contends that the violation is a continuing offense and a "continuing offense, by its very nature, does not terminate until the date of the indictment or the voluntary termination of the illegal activity." United States v. Alvarado-Santilano, 434 F.3d 794, 796 (5th Cir.2005) (internal quotation omitted). According to the Government, since Edelkind has never fully paid his arrearage in child support payments, the offense terminated only at the date of indictment.

In United States v. Brazell, 489 F.3d 666, 668 (5th Cir.2007), we stated, "[a] defendant's continual wilful failure to satisfy his child support debt ... constitutes a continuing offense." Edelkind argues that Brazell does not control this case for two reasons: (1) the statement is mere...