U.S.A v. Bell

• Decision Date: 16 March 2010
• Docket Number: No. 09-2555.,09-2555.
• Citation: 598 F.3d 366
• Parties: UNITED STATES of America,Plaintiff-Appellee, v. Maurice BELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

598 F.3d 366

UNITED STATES of America, Plaintiff-Appellee, v. Maurice BELL, Defendant-Appellant.

No. 09-2555.

United States Court of Appeals Seventh Circuit.

Argued Dec. 7, 2009.

Decided March 16, 2010.

Shoshana L. Gillers, Attorney (argued) Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Gary J. Ravitz, Attorney (argued), Ravitz & Palles, Chicago, IL, for DefendantAppellant.

Before CUDAHY, WOOD, and EVANS Circuit Judges.

CUDAHY, Circuit Judge.

In 2008, a grand jury returned a onecount indictment charging Maurice Bell with willful failure to pay child support from February 2000 to June 2007, in violation of the Deadbeat Parents Punishment Act of 1998 (DPPA), 18 U.S.C. § 228(a)(3). Bell moved to dismiss the indictment as barred by the statute of limitations, but the district court denied the motion. After a jury trial, Bell was convicted and subsequently sentenced to a term of 24 months' imprisonment and ordered to pay restitution in the amount of $83,890.37. He now appeals because he contends that the district court erred by denying his motion to dismiss his indictment, by improperly instructing the jury and in calculating enhancements of his sentence. We affirm in part, and reverse and remand for re-sentencing in part.

I. Background

In 1996, the state of Illinois determined that Bell was the father of C.W., a son born to Brooke Wolf-Lindsey (Wolf). The Illinois Department of Public Aid then ordered Bell to pay Wolf child support of $520/month. By 1999, he owed her more than $14,000, and the Circuit Court of DuPage County, Illinois, ordered him topay child support of an additional $104/ month, to cover some of his arrearage. Bell then left the state.

He spent the subsequent years with a series of women in Arizona and California and worked as a mortgage broker, among other occupations. According to his friends out west, Bell lived big—driving luxury cars, golfing, flashing rolls of hundred dollar bills and filling custom-built closets with tailored clothes. Although the women he dated claimed that they financed this lifestyle (some took him to small claims court to recoup their loans) he had access to more than $300,000 in funds from gambling proceeds, loans from friends and his regular earnings, but he paid less than $16,000 in child support during that time, through wage garnishment. As of May 2007, Bell owed his son $65,219.84 in unpaid child support and accumulated interest.

Bell was indicted for violation of 18 U.S.C. § 228 based on his failure to pay child support as ordered from 2000 to 2007. He moved to dismiss the indictment because he contended that the government's cause of action accrued in 2000 and therefore, that the applicable statute of limitations ran in 2005. The district court denied the motion based on its holding that § 228 is a continuing offense. At trial, the district court did not require the government to prove that the defendant knew that his actions violated a federal statute. Instead, it defined willfulness as charged to require proof that the defendant violated a known legal duty. After Bell w^ras convicted at trial, he moved for a judgment of acquittal or for a new trial in part because he contended that the district court erred in failing to accept his jury instruction. The district court denied this post-trial motion. At sentencing, the district court applied a two-level enhancement for a violation of a judicial or admin istrative order based on the "distinct harms" involved in the conduct addressed respectively by the base-offense level and by the enhancement.

II. Standard of Review

An appellate court reviews a district court's interpretation of a statute and the Sentencing Guidelines de novo and its factual findings for clear error. See, e.g., United States v. Webber, 536 F.3d 584. 599 (7th Cir.2008) (de novo review applies to whether a district court's jury instructions "fairly and accurately summarize the law") (internal citation omitted); United States v. Katalinic, 510 F.3d 744. 746 (7th Cir. 2007). Whether-the district court followed proper sentencing procedure is a legal question reviewed de novo. United States v. Smith, 562 F.3d 866, 872 (7th Cir.2009).

III. Discussion

1. 18 U.S.C. § 228 is a continuing offense.

If a criminal statute contains no explicit statute of limitations, the generic, federal five-year statute applies. See 18 U.S.C § 3282(a). Bell contends that, in 2000, when his child-support arrearage exceeded $10,000, the statute of limitations began to run and thus the government's indictment should have been dismissed as untimely. The government responds that 18 U.S.C. § 228 is a continuing offense and is not completed until the offense expires. See United States v. Yashar, 166 F.3d 873, 875-76 (7th Cir.1999). This is an issue of first impression for our circuit.

Typically, an offense accrues when each element of the offense has occurred. Continuing offenses do not follow this rule, but continue until the defendant ceases the offending conduct (or an indictment is returned)—for example at the last act in furtherance of a conspiracy. See id, at 876. To determine whether an offense is "continuing, " courts examine whether the language of a criminal statute compels that conclusion or whether the nature of the crime is such that Congress must have intended it to be treated as a continuing one. See id, at 875 (citing Toussie v. United States, 397 U.S. 112, 115, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970)). Examples of continuing offenses include the failure of a sex offender to register as well as escapes from incarceration. See United States v. Bailey, 444 U.S. 394, 413, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980) (escape from federal custody); United States v. Dixon, 551 F.3d 578, 582 (7th Cir.2008) (failure to register as a sex offender); but see Toussie, 397 U.S. at 119, 90 S.Ct. 858 (applying the rule of lenity to hold that failure to register for the draft is not a continuing offense).

We find persuasive a recent Fifth Circuit decision holding that the DPPA is a continuing offense. The Fifth Circuit, responding to the same arguments advanced by Bell, recently determined by examining the statute and its legislative history that § 228 defines a continuing offense. United States v. Edelkind, 525 F.3d 388, 393-95 (5th Cir.), cert, denied, -U.S.-, 129 S.Ct. 246, 172 L.Ed.2d 186 (2008). The Fifth Circuit noted that the language of the statute describes the offense continuing over a period of time either directly in terms of an accumulation of years of delinquency or indirectly in terms of an accumulation of money such that "Congress [ ] imagined the criminalized conduct to last continuously beyond a two-year period or the accumulation over $10,000." See id. at 394. In addition, the legislative history of the predecessor statute, the Child Support Recovery Act of 1992 (CSRA), suggests that Congress sought to remedy the problems of long-term child-support payment delinquency created by those who continu ally evade court processes. See id. at 39495. In addition, the Fifth Circuit noted that the majority of courts to address the nature of § 228 concluded that it is a continuing offense and that state courts routinely hold that state statutes criminalizing the willful failure to meet child-support obligations create continuing offenses. See id. at 393-94. We agree with the Fifth Circuit's well-reasoned analysis of the statute.

In addition, as the government points out, the penalties increase if the deadbeat parent has failed to pay child support for more than two years, suggesting that it would be nonsensical if the punishment increased for the first two years (or when the arrearage exceeded $10,000), but then fell to zero if the defendant successfully evaded the law for five years. Compare 18 U.S.C. § 228(a)(l)-(2) with § 228(a)(3).

Lastly, Bell suggests that United States v. Irvine compels the conclusion that the DPPA is not a continuing offense. 98 U.S. 450, 25 L.Ed. 193 (1878). In Irvine, an attorney was charged with wrongfully withholding his client's pension payment. See id. at 450. The Supreme Court determined that the offense was completed when the attorney failed to pay over the pension and therefore that the applicable statute of limitations had run when its term expired. See id. at 452. An attorney's withholding a pension, a discrete act, is different from a parent's failing to pay an ongoing support commitment accumulating month by month, to his child. We therefore hold that the district court properly denied Bell's motion to dismiss his indictment.

2. The district court did not err in instructing the jury as to the standard for willfulness.

Bell also contends that the district court should have instructed the jury thatthe government had to prove that a defendant must understand that he is violating a federal statute to be guilty under 18 U.S.C. § 228. This is also a matter of first impression for us.

Section 228, which creates an offense for a defendant who "willfully fails to pay a child support obligation, " does not define "willfully." "Willful" is a word of many meanings, and its definition is often influenced by its context. See United States v Wheeler, 540 F.3d 683, 689 (7th Cir.2008) (citing Ratzlaf v. United States, 510 U.S 135, 141, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994)). Willful may refer to a defendant's awareness of his conduct (suggesting intentionality) or simply that his conduct is illegal. See id.; see also United States v. Ladish Malting Co., 135 F.3d 484, 491-92 (7th Cir.1998) (equating willfulness with an awareness of the factual and legal requirements, although declining to decide whether reckless disregard of the regulations was sufficient). The legislative history of the DPPA suggests that Congress intended to draw the DPPA's concept of "willfulness" from federal tax statutes, 26 U.S.C. §8 7202, 7203. See H.R. Rep. 102-771, at 6 (1992) (discussing willfulness for purposes of the CSRA). The House Report explains, with...