U.S. v. Craig, 98-10162

• Decision Date: 15 January 1999
• Docket Number: No. 98-10162,98-10162
• Parties: (9th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVID HOWARD CRAIG, Defendant-Appellant. Argued and Submitted:
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1124

181 F.3d 1124 (9th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVID HOWARD CRAIG, Defendant-Appellant.

No. 98-10162

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted: January 15, 1999

Filed: June 29, 1999

John P. Balazs, Assistant Federal Public Defender (argued), Sacramento, California, for the defendant-appellant.

Benjamin B. Wagner, Assistant United States Attorney, (argued), Sacramento, California, for the plaintiff-appellee.

On Appeal From the United States District Court for the Eastern District of California. Lawrence K. Karlton, District Judge, Presiding. D.C. No. CR-97-00501-1-LKK

Before: Ruggero J. Aldisert,^* John T. Noonan and Stephen S. Trott, Circuit Judges.

ALDISERT, Circuit Judge:

This appeal by David Howard Craig of the restitution order imposed for his violation of the Child Support and Recovery Act (the "Act" or "CSRA"), 18 U.S.C. 228, requires us to decide whether restitution under the Act must be limited to the time period during which the defendant lives in a state different than that of his children and whether district courts should inquire into a defendant's ability to pay prior to ordering a restitution award. We also must determine whether the particular restitution order entered against Craig violated the Commerce Clause or the Due Process Clause of the Fifth Amendment.

We have jurisdiction to consider Craig's appeal pursuant to 28 U.S.C. 1291.

We conclude that restitution under the Act properly includes the entire past due support obligation, that district courts need not inquire into a defendant's ability to pay prior to ordering restitution and that the restitution award against Craig was not unconstitutional.

I.

Craig and his ex-wife were separated in 1992 and divorced in 1993. In 1992, the Superior Court of California entered an order requiring Craig to pay child support for his two daughters in the amount of $ 741 per month. Upon a finding that Craig's income had declined, the award subsequently was reduced to $ 649 per month. In July 1996, when Craig's older daughter turned 18 years of age, the amount was further reduced to $ 324.50 per month.

Craig failed to meet his child support obligation and, on June 7, 1993, the Placer County Superior Court issued a contempt order. Craig made five voluntary child support payments from June 1993 through November 1993, but made no payments thereafter. In mid-1995, Craig moved to Nevada while his daughters remained in California. In Nevada, Craig intermittently worked in construction but did not pay any portion of his child support obligation.

On January 3, 1997, Craig was indicted for violating the Act. The indictment charged that Craig:

from on or about July 31, 1995, and continuing through on or about December 20, 1996, resided in a different state with respect to his minor children..., and, having the ability to pay, did willfully fail to pay a known past due support obligation with respect to such children as ordered by the Superior Court of the State of California for the County of Placer.

ER at 1. Craig pleaded guilty to the crime on June 5, 1997, but specifically reserved his right to appeal the amount of the restitution award ordered by the magistrate judge. In the factual basis of his plea agreement, Craig admitted only that he was financially able to pay part of the past due child support obligation that he owed. In addition, he argued to the district court that restitution should be limited to the amount incurred during the period charged in the indictment, to-wit, July 31, 1995 to December 20, 1996. The magistrate judge disagreed and ordered restitution in the full amount of arrearage sought by the Placer County District Attorney's Office, including all amounts unpaid while Craig lived in California. Craig was ordered to pay $ 33,968.50.

Craig appealed the order of restitution to the district court, which denied Craig's appeal and affirmed the restitution order in its entirety. This appeal followed.

II.

We first address whether restitution under the Act must be limited to the dates specified within the indictment. This court reviews the legality of an order of restitution de novo. United States v. Baggett, 125 F.3d 1319, 1321 (9th Cir. 1997).

18 U.S.C. 228¹ states, in relevant part:

(c) Upon a conviction under this section, the court shall order restitution under section 3663 in an amount equal to the past due support obligation as it exists at the time of sentencing.

18 U.S.C. 228(c). The Act defines "past due support obligation" as any amount determined by court order to be due as child support that has remained unpaid for more than one year or is greater than $ 5,000. 18 U.S.C. 228(d)(1).

Craig contends that the order of restitution - in an amount exceeding those child support payments that became delinquent during the period charged in the indictment - is outside the court's limited authority to order restitution. He bases this argument on the Act's incorporation of the Victim Witness Protection Act, 18 U.S.C. 3663, which limits restitution to the amount of damages suffered by the victim as a result of the criminal conduct charged in the indictment. See Hughey v. United States, 495 U.S. 411, 413, 109 L. Ed. 2d 408, 110 S. Ct. 1979 (1990) ("The language and structure of the [Victim Witness Protection] Act make plain Congress' intent to authorize an award of restitution only for the loss caused by the specific conduct that is the basis of the offense of conviction.").

It is clear from the language of the statute, however, that the criminal conduct in a case pursuant to the Child Support and Recovery Act is the willful failure to pay a past due child support obligation. Section 228(a) states:

Whoever willfully fails to pay a past due support obligation with respect to a child who resides in another State shall be punished as provided in subsection (b).

In United States v. Mussari, 95 F.3d 787, 791 (9th Cir. 1996) ("Mussari I"), cert denied, 117 S. Ct. 1567 (1997), we determined that the Act "intervenes and forbids frustration of the obligation's satisfaction" once the preexisting support obligation "comes to wear an interstate face." This suggests that the federal statute comes into play at the moment there is an interstate character to the debt. The federal statute is not triggered by the accrual of debt subsequent to the interstate character of the support obligation. A child support obligation thus is a state-incurred debt that becomes a federal crime at the time the parent or minor relocates to another state.

Because the criminal conduct charged in the indictment includes the willful non-payment of child support prior to the time period specified in the indictment, the statutory language of 228(c) - "at the time of sentencing" - evinces Congress' desire to charge the parent for all unpaid child support, including support that accrued before the indictment was issued. Rather than delineate the period of restitution, the time period charged in the indictment merely provides the jurisdictional basis for a federal court to order restitution for the total amount of arrearage, including state-incurred debt. Not imposing restitution to include amounts that accrued outside the period of the indictment would appear to render the clause "as it exists at the time of sentencing" a nullity. See Wilshire Westwood Assocs. v. Atlantic Richfield Corp., 881 F.2d 801, 804 (9th Cir. 1989) (holding that it is improper to construe plain language in way that renders words or clauses a nullity). Accordingly, a restitution order that awards the entire past due support obligation does not run afoul of 3663's requirement that restitution be limited to the amount of damages suffered by the victim as a result of the criminal conduct charged in the indictment.

This outcome is consistent with the Act's legislative history, which indicates that Congress enacted the statute to help states collect billions of dollars of uncollected child support by creating a federal mechanism to enforce state child support orders regardless of a parent's flight from state to state. See 138 Cong. Rec. H11071, H11071-11072 (daily ed. Oct. 3, 1992) (statements of Reps. Hyde, Hoyer, Mazzoli). More specifically, the Act was enacted to counter parents' efforts to evade state jurisdiction. See United States v. Sage, 92 F.3d 101, 103-104 (2d Cir. 1996) (recounting genesis of the Act). Thus, the Act was not enacted merely to allow the federal courts to impose restitution for the period of time during which the parent was in interstate flight. Rather, the Act must be read to mandate that a federal court order restitution of the entire past due child support obligation.

III.

We next address whether the district court erred by ordering restitution in the full amount of the past due child support obligation without inquiring into Craig's ability to pay. The district court determined that Craig's guilty plea constituted an admission of his willful failure to pay a known past due child support obligation.

In the factual basis of his plea agreement, Craig admitted only that he was partially able to pay the past due child support obligation that he owed. He argues that this "partial admission" does not suffice to establish willfulness on his part. Accordingly, he seeks a federal court hearing to determine that portion of his child support obligation that he "could... have afforded to pay." Br. of Appellant at 18.

Thus, in addition to arguing that his total obligation to pay was limited to the support payments that accrued between the dates charged in the indictment, Appellant argues that the federal district court should have conducted a hearing, similar to a state family court, to determine his ability to pay. He cannot point to any specific decision of this court that would entitle him to such relief but instead relies on a statement in United States v. Mussari, 152 F.3d 1156, 1157 (9th Cir. 1998) ...