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United States v. Bell, 09-2555 (7th Cir. 2010).

In 2008, a grand jury returned a one-count 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.

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.

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, 129 S. Ct. 246 (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 continually evade court processes. See id. at 394-95. 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.

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 that the 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.” 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. §§ 7202, 7203. See H.R. Rep. 102-771, at 6 (1992) (discussing willfulness for purposes of the CSRA).

The House Report explains, with reference to then-current cases involving criminal federal tax laws, that the willfulness element of a federal tax felony requires the “intentional violation of a known legal duty” and implies a “bad purpose or evil motive.” See id. This legislative history does not suggest that the defendant must know of the specific statute that he is violating–only that he knows of the legal duty (the duty to support the child) that he is violating.

Bell, however, takes this bit of legislative history and invokes oft-cited dicta from Bryan v. United States, in which the Supreme Court distinguished the standard for willfulness applicable to a statute like the one criminalizing dealing in firearms without a license from the much more demanding “willfully” standard applicable to evaders of complex tax statutes. 524 U.S. 184, 194 (1998) (citing Cheek v. United States, 498 U.S. 192 (1991)). The Supreme Court reasoned that in cases where the statute is particular complex and capable of criminalizing the conduct of the unwary taxpayer, a more exacting definition of willfulness should apply. See Bryan, 524 U.S. at 194-95; see also United States v. Starnes, 583 F.3d 196, 210-12 (3d Cir. 2009) (distinguishing Bryan, Ratzlaf, and Cheek).

As the Second Circuit has explained, violation of a child-support order is not apparently innocent conduct, and it is fitting that the defendant need not know of the specific federal law he is violating. See United States v. Mattice, 186 F.3d 219, 226 (2d Cir. 1999) (Sotomayor, J.) (noting also that the tax statutes discussed in Bryan prescribe the legal duty imposed by those specific tax statutes).

Bell contends that Mattice is rarely cited outside the Second Circuit and therefore has weak persuasive value. Regardless whether the case is frequently cited, we find it persuasive. As Bryan clarified, in most tax cases, the government must prove that the defendant knew the facts that constitute the offense and that his conduct was unlawful, but it need not prove that he knew that he was violating a specific statute to prove a willful violation. See Bryan, 524 U.S. at 194-95 Likewise, in the present case, the government was not required to prove that Bell knew he was violating a federal statute.

The district court required that the government prove that Bell violated his known legal duty to pay child support. The court instructed the jury: An act is done willfully if it is done voluntarily and intentionally with the purpose of avoiding a known duty under a state court order to pay a child support obligation. In determining whether the defendant acted willfully in failing to pay, you must consider whether the defendant had the ability to pay some portion of the past due child support obligation. Ability to pay means that the defendant had the ability, after meeting his basic subsistence needs, to pay some portion of the past due child support obligation.In so doing, it did not err and the district court properly denied Bell’s motions based on the definition of willfulness.

3. Applying a two-level enhancement for violating a court order is impermissible double counting.

The Sentencing Guidelines specify that, for violations of § 228, the applicable offense level is set by cross-reference to § 2B1.1 for theft, property destruction and fraud. See U.S.S.G. § 2J1.1 cmt. n. 2. Incorporation of a guideline by cross-reference requires incorporation of “the entire offense guideline (i.e., the base-offense level, specific offense characteristics, cross references, and special instructions).” U.S.S.G. § 1B1.5(a). The cross-reference, U.S.S.G. § 2B1.1, carries a base offense level of six. The district court increased Bell’s offense level by two, pursuant to the specific offense characteristic § 2B1.1(b)(8)(C), because he violated a court order in the commission of the offense. Bell’s total offense level was therefore 14, which included a six-level enhancement for the amount of the arrearage.

Bell complained that the enhancement for a violation of a court order was impermissible double counting because Bell’s violation of the order was an element of the offense of conviction. The district court disagreed and explained that the Sentencing Commission must have been aware that § 2B1.1(b)(8)(C) would apply to every violation of § 228 and intended that result.

The DPPA criminalizes the acts of a person who “willfully fails to pay a support obligation with respect to a child.” See, e.g., 18 U.S.C. § 228(a)(1)-(3). A “support obligation” is defined as “any amount determined under a court order or an order of an administrative process pursuant to the law of a State . . . to be due from a person for the support and maintenance of a child or of a child and the parent with whom the child is living.” 18 U.S.C. § 228(f)(3). Consequently, violation of a judicial or administrative order is an element of the offense. The two-level enhancement, § 2B1.1(b)(8)(C), applies if a defendant “violat[es] . . . any prior, specific judicial or administrative order, injunction, decree, or process not addressed else-where in the guidelines.”

In this case, Bell failed to pay a child-support obligation in violation of an order issued by the Circuit Court of DuPage County in 1999. This conduct, of course, was charged in the indictment as part of his violation of the DPPA.

Impermissible double counting occurs when the same conduct justifies two upward adjustments under the Sentencing Guidelines or the same underlying facts that establish an element of the base offense are used to justify an upward enhancement. See United States v. Haynes, 582 F.3d 686, 710 (7th Cir. 2009). Double counting does not occur if the adjustment addresses a sufficient additional or separate aspect of the defendant’s conduct, even if overlapping conduct supports both the underlying level and the adjustment. See United States v. Blum, 534 F.3d 608, 612 (7th Cir. 2008).

When the guidelines establish an offense level for a statute that defines a single crime, a sentencing court should presume that the specified offense level accounts for every element of that crime. See United States v. Sinclair, 74 F.3d 753, 763 (7th Cir. 1996) (noting that the enhancement for abuse of trust  was not impermissible double counting because the statute addressed two crimes, only one of which involved abuse of trust, and therefore the base-offense level did not account for that conduct); but see United States v. Stevenson, 6 F.3d 1262, 1270 (7th Cir. 1993) (defendant who violated 21 U.S.C. § 845(b)(2) by employing a minor could not also receive a § 3B1.1 enhancement for occupying a leadership role).

The question we must answer is what conduct is addressed by the cross-referenced base-offense level and whether Bell’s conduct in violating the DPPA may be permissibly teased into severable “aspects” for purposes of sentencing. In our view, there is no reason to believe conduct that always inflicts multiple distinct harms may validly receive a punishment enhanced on account of one of the harms.

Under our circuit precedent, therefore, the district court engaged in double counting by applying the cross-reference for § 228 and then enhancing it for conduct that constitutes an element of the offense–violation of a court order. Consequently, to apply both the cross-reference for § 228 and the enhancement for violation of a court or administrative order is impermissible double counting.

For the foregoing reasons, the district court is Affirmed in part, and Vacated and Remanded for re-sentencing.

For the full opinions visit the 7th Circuit Court of Appeals Web Site

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