U.S. v. Brand, 97-4336

• Decision Date: 31 December 1998
• Docket Number: No. 97-4336,97-4336
• Citation: 163 F.3d 1268
• Parties: 12 Fla. L. Weekly Fed. C 408 UNITED STATES of America, Plaintiff-Appellee, v. Abraham R. BRAND, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1268

163 F.3d 1268

12 Fla. L. Weekly Fed. C 408

UNITED STATES of America, Plaintiff-Appellee, v. Abraham R. BRAND, Defendant-Appellant.

No. 97-4336.

United States Court of Appeals, Eleventh Circuit.

Dec. 31, 1998.

J. David Bogenschutz, Ft. Lauderdale, FL, for Defendant-Appellant.

Dawn Bowen, Asst. U.S. Atty., Adalberto Jordan, Miami, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before HATCHETT, Chief Judge, and RONEY and LAY ^*, Senior Circuit Judges.

HATCHETT, Chief Judge:

We address issues of first impression in this appeal from a conviction under the Child Support Recovery Act of 1992 (CSRA or Act), Pub.L. No. 102-521, § 2, 106 Stat. 3403 (1992) (current version at 18 U.S.C.A. § 228). ¹ After a trial before a magistrate judge in the Southern District of Florida, appellant Abraham Brand was found guilty of willfully failing to pay a past due support obligation, in violation of the CSRA. Upon conviction, the magistrate judge ordered Brand to pay in excess of $4 million in restitution to his ex-wife. Brand now challenges his conviction, arguing that his failure to pay was not willful, and that the state court order that formed the basis of his support obligation under the Act is invalid. Brand also challenges the restitution order, arguing that the magistrate judge calculated the restitution amount improperly and, alternatively, that he is unable to pay. We reject Brand's contentions and affirm his conviction and sentence.

I. FACTS

A. The Marriage

Abraham Brand and Margrethe Stabell married in June of 1977. Three children were born to this union: a girl in 1980, a boy in 1982 and another girl in 1983. During the marriage, Brand was a successful entrepreneur, and the family lived luxuriously in a 43-room waterfront home on Long Island, New York. They had a private beach, a private tennis court, live-in nannies and housekeepers, a nine-passenger airplane and several expensive cars, including a Rolls Royce limousine and a Ferrari. On their tenth wedding anniversary, Brand bought Margrethe a $100,000 diamond ring. ²

The couple separated in 1989. Brand moved Margrethe and the children to Florida; Brand stayed in New York, sold the Long Island home for $2.7 million and moved into one of the units in an apartment building that he purchased for $2.3 million. Later that year, Brand filed for divorce. ³

In December 1992, a Florida Circuit Court judge entered an order dissolving the Brands' marriage. Neither Brand nor his lawyer were present at the final hearing. The court noted that it had previously ordered Brand incarcerated for failing to pay $13,463 to Margrethe, which was "intended to support his children and wife" temporarily during the pendency of the divorce proceedings. Despite this sanction, Brand failed to pay the money or to report to the Broward County Jail to serve his sentence. The state circuit judge awarded sole parental responsibility and custody of the Brands' three minor children to Margrethe.

With respect to financial distribution, the court concluded that Brand had assets worth $8,295,679 as of 1992. The court awarded Margrethe a 1986 Mercedes Benz automobile and all of Brand's interest in two condominium units "as ... lump sum alimony, maintenance and support of the minor children, as well as providing a residence for the same[.]" The judge's order also contained the following language:

4. As and for additional lump sum alimony, maintenance and support of the wife and to provide security for the minor children in the style to which they have become accustomed, Husband shall pay to the Wife the sum of Three Million Nine Hundred Thirty Five Thousand ($3,935,000.00) Dollars, thirty (30) days from the date hereof....

5. As and for child support Husband shall pay to the Wife the sum of Two Thousand Five Hundred ($2,500.00) [Dollars] per month provided that the sums stated in Paragraph 4 have in fact been paid to the Wife. Husband shall pay this amount on January 1, 1993, and shall postmark such payments on the first day of each and every month thereafter. Upon each child reaching the age of 18, either party may apply for appropriate modification of child support.

B. Brand's Failure to Pay

Brand did not appeal or otherwise challenge the 1992 order dissolving his marriage. During the course of the next four years, Brand paid only about $10,000 to Margrethe pursuant to his obligation under the order. Meanwhile, he charged thousands of dollars to his American Express card-$28,749 in 1993 and just under $10,000 in 1994. Most of the charges were for restaurants and travel to places such as the Cayman Islands, Las Vegas, Chicago and China. The payments to American Express in 1993 came from the bank account of Patricia Pan, Brand's girlfriend, who lived with him in an apartment at Trump Tower in New York City. At that time, the average rent for a one-bedroom apartment in Trump Tower was between $4,000 and $5,000 per month.

In July of 1995, Margrethe taped a telephone conversation she had with Brand. Margrethe told him that she "had terrible financial problems." Brand replied that he had not sent her any money because she would "just use it with the lawyers against [him]." Brand then told Margrethe that he had "no way of paying" what was required of him under the state court order, regardless of "whether they bill[ed][him] for ... a hundred thousand ... or four million." When the conversation turned to the monthly child support payments, however, Brand said that he would "be glad to send [her] that," but that he had not previously paid it "because the lawyers [we]re trying to put [him] into jail in order to collect four and a half million dollars that [he] d[idn't] have."

Later in the conversation, Brand offered to give Margrethe $20,000 to $25,000 if she would come to New York to "talk." Apparently leery of Brand's motives, Margrethe asked if she would "have to sign any papers." He assured her that if she would "just come to New York," he would "have [a] check for [her]." Margrethe therefore traveled to New York the following month to meet with Brand. When she arrived, Brand presented her with an agreement proposing to settle their dispute for approximately $200,000. Brand "got angry" when Margrethe refused to sign the document without consulting her lawyer. Brand never gave Margrethe the $20,000 to $25,000 he had promised.

C. Brand's Arrest

Brand's failure to comply with the 1992 state court order resulted in his arrest in April 1996. Corporal Troy Keenhold, the arresting officer, had stopped Brand's vehicle near Allentown, Pennsylvania, for a traffic violation. During the course of casual conversation, Brand mentioned that he "had some business in New York." Keenhold then discovered that Brand was wanted for a family offense on a Federal Bureau of Investigation warrant issued in Florida. When Keenhold told Brand why he was being taken into custody, Brand responded that "the only thing he could think of was that [it] had to do with his divorce and the fact that he owed child support...in Florida." While being transported to the police station, Brand remarked that because this was "a civil matter with his wife," he felt that "if he left the State of Florida he could not be touched." At the time of his arrest, Brand was wearing a Rolex watch that had an appraised replacement value of $6,000.

D. The Federal Prosecution

In June 1996, the United States Attorney for the Southern District of Florida filed an information charging Brand with violating the CSRA, which proscibes the willful failure to pay "past due support obligations" with respect to children residing in another state. See 18 U.S.C.A. § 228(a). The CSRA defines a "past due support obligation" as any amount that (1) is owed pursuant to a state court order; (2) remains more than a year overdue or is greater than $5,000; and (3) is intended for "support and maintenance of a child or of a child and the parent with whom the child is living[.]" See 18 U.S.C.A. § 228(d)(1).

Brand pleaded not guilty and consented to a trial before a magistrate judge. He subsequently moved to dismiss the information, arguing that the underlying state court order was invalid because it was unconstitutionally vague with respect to delineating what Brand owed as his "support obligation" for purposes of his compliance with the CSRA. The magistrate judge denied the motion and, on September 3, 1996, the case proceeded to trial without a jury.

1. Brand's Trial

The government presented its case through exhibits and the testimony of eight witnesses: Margrethe, Corporal Keenhold (the arresting officer), Joseph Tenhagen (a jewelry appraiser), Kenneth Annibale (one of Brand's former business partners), Philip Unterberg (a sales representative from a security systems company), Philip Disque (a lawyer and certified public accountant), Jessica Rohm (a real estate broker), and Robert Passero (a financial auditor with the United States Attorney's Office). The defense case consisted of the introduction into evidence of a transcript and order from a mid-1996 hearing before the circuit judge, wherein she attempted to clarify the financial distribution portion of the underlying dissolution order. ⁴ Brand did not testify.

The evidence adduced at trial largely involved Brand's finances and assets following the entry of the state circuit judge's 1992 order. That evidence may be summarized as follows:

a. Audio Marketing International

Brand was a 60 percent equity partner of Audio Marketing International d/b/a Goldmund's (Audio Marketing) until the company's dissolution in 1995. Audio Marketing was a distributor for a "high-end audio [equipment] manufacturer." From mid-1993 to March 1995, approximately $135,000 was deposited into Audio Marketing's bank account. Kenneth Annibale, a 40 percent equity partner, was an authorized signatory on that account. Brand instructed Annibale to write company checks to ...