PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-5254
JONATHAN A. NOVAK,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, Senior District Judge.
(3:08-cr-00173-REP-1)
Argued: May 14, 2010
Decided: June 15, 2010
Before DUNCAN, Circuit Judge, HAMILTON, Senior
Circuit Judge, and Arthur L. ALARCÓN, Senior Circuit
Judge of the United States Court of Appeals for the Ninth
Circuit, sitting by designation.
Affirmed by published opinion. Senior Judge Hamilton wrote
the opinion, in which Judge Duncan and Senior Judge
Alarcón joined.
COUNSEL
ARGUED: Robert James Wagner, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Richmond, Virginia, for
2 UNITED STATES v. NOVAK
Appellant. Richard Daniel Cooke, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Pub-
lic Defender, Frances H. Pratt, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant. Dana J.
Boente, United States Attorney, Alexandria, Virginia, for
Appellee.
OPINION
HAMILTON, Senior Circuit Judge:
Under 18 U.S.C. § 228(a)(3), any person that "willfully
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," may be fined or imprisoned up to two years, or
both. 18 U.S.C. §§ 228(a)(3) and (c)(2). Section 228 contains
a specific venue provision, providing that a prosecution under
§ 228(a) may be brought in, among other places, "the district
in which the obliger resided" during the time the person
described in § 228(a) (i.e., the person who willfully failed to
pay the support obligation) "failed to meet th[e] support obli-
gation." Id. §§ 228(e)(1) and (e)(2).
On appeal, Jonathan Novak challenges his § 228(a)(3) con-
viction, raising two challenges to the district court’s jury
instructions on venue. First, he contends the district court
erred when it failed to instruct the jury that it had to find that
he intended to remain in Virginia in order to find that he
resided in Virginia. Second, he contends the district court
erred when it failed to instruct the jury that it had to find that
he resided in the Eastern District of Virginia during a time
when he willfully failed to pay child support. Finding no
reversible error, we affirm.
UNITED STATES v. NOVAK 3
I
In early 1989, Novak began a relationship with Tina Miller
in California. After moving in together, Novak left for a job
in New York in May 1989. Miller then discovered she was
pregnant, and the couple married in August 1989. Novak con-
tinued to live in New York, while Miller remained in Califor-
nia. Shortly after the birth of the child in February 1990,
Miller sought to have her marriage to Novak annulled, and an
annulment was granted on July 3, 1990 by a California state
court. As part of the annulment, Novak was ordered to pay
child support in the amount of $658.00 per month. Some time
in 1993, Miller stopped receiving child support payments
from Novak. Through September 16, 2008, Novak had failed
to pay $120,479.77 in back child support and $110,499.38 in
interest, for a total balance due of $230,979.15.
Novak owned a house in Staten Island, New York with his
fourth wife, Linda, whom he married in 1995. Their four-year
old daughter developed a serious tumor in November 2003.
Linda filed for divorce after the diagnosis. In August 2004,
Novak took employment in Virginia on a consulting contract
with a company called GFS. The contract was guaranteed
through the end of 2004. Novak moved into a furnished apart-
ment provided by GFS in Richmond, Virginia. After he left
New York, Linda moved to evict Novak from the marital
home in the ongoing divorce proceeding. As a consequence,
he was ordered removed from the marital home on August 11,
2004. Novak’s company, the Novak Advisory Group, took
over the apartment lease from GFS in October 2004. Novak
signed the lease and was listed as the sole occupant. The lease
ran through December 2004. Novak traveled back to New
York at least once a week during this time period in order to
visit his daughter. His belongings and documents stayed in the
marital home, and Novak claims he never intended to move
to Virginia.1
1
Apparently, during the time frame alleged in the indictment, Novak
continued to make mortgage payments on the home in Staten Island, New
York.
4 UNITED STATES v. NOVAK
Novak’s consulting contract was extended in December
2004. Novak’s company then signed a lease for a fully fur-
nished, corporate apartment at The Gables apartment complex
in Richmond, Virginia. The lease was signed by Novak as the
sole occupant and ran from December 30, 2004 until April 29,
2005. A second lease agreement extended the lease until April
29, 2006. The property manager observed golf clubs at The
Gables apartment. Novak’s "driv[ing] history record," (J.A.
111), lists a Richmond, Virginia address as his address of
record from August 25, 2004, to October 31, 2005. A "certi-
fied vehicle record," (J.A. 112), shows that Novak purchased
a car on November 26, 2004 and subsequently registered it in
Glen Allen, Virginia.
Novak was arrested in New York on February 22, 2005, on
an indictment from the Eastern District of California for fail-
ure to pay child support. The charging period on the indict-
ment was from January 2002 through May 2004. Novak
requested to report to pretrial services in Virginia. According
to Novak, counsel advised him not to pay child support until
after he was found guilty. On October 27, 2005, Novak pled
guilty to one misdemeanor count of willfully failing to pay
child support, id. § 228(a)(1). He was sentenced to a period of
probation and ordered to pay child support starting January
12, 2006. Novak started paying $658.00 in monthly payments
in December 2005, and continued making monthly payments
until his arrest in connection with the case currently before the
court. Novak served his sentence of probation on the Califor-
nia conviction in Virginia. His probation officer testified that
he visited Novak at his apartment in Virginia and that Novak
would travel on the weekends to New York to see his daugh-
ter.
In August 2007, Novak was arrested in connection with the
case currently before the court. On April 2, 2008, Novak was
indicted in the Eastern District of Virginia for failure to pay
a past due child support obligation in an amount greater than
$5,000.00, id. § 228(a)(1). A superseding indictment, issued
UNITED STATES v. NOVAK 5
on July 8, 2008, increased the past due child support to
greater than $10,000.00, id. § 228(a)(3). A second supersed-
ing indictment, issued on August 13, 2008, specified the
charging period as on or about August 8, 2004 and continuing
to on or about July 20, 2005.
A two-day jury trial began on September 17, 2008.
Novak’s defense centered on challenging the government’s
contentions that (1) he willfully failed to pay child support
and (2) he resided in the Eastern District of Virginia at the
time he failed to pay. With regard to his willful failure, Novak
contended that he did not willfully fail to pay the child sup-
port during the time charged in the indictment because he lost
contact with Miller around the same time he stopped making
child support payments and could not locate her. He also con-
tended that, from February 2005 through July 20, 2005, he did
not willfully fail to make payments because he was advised
by counsel not to make such payments. With regard to
whether he resided in Virginia, Novak contended that he
resided in New York and simply worked in Virginia. In sup-
port of this contention, Novak stressed that he traveled to
New York every weekend to visit his daughter, he did not
bring any furniture or household items to Virginia, he left all
of his important papers in New York, he was arrested in Feb-
ruary 2005 in New York, and lived in New York full-time
after his work in Virginia concluded.
In its instructions to the jury, the district court gave specific
instructions on venue. After explaining that venue was not an
element of the offense and needed to be established by a pre-
ponderance of the evidence, the district court described the
requisite showing needed to establish that Novak resided in
the Eastern District of Virginia:
[The government must show] that during a time
charged in the indictment when the defendant failed
to meet the support obligation he resided in the East-
ern District of Virginia. Specifically, I think there
6 UNITED STATES v. NOVAK
isn’t any evidence, but that he was in the Richmond
area. I don’t think they contend he was anywhere
other than that area. The term "reside" . . . used in
this case to describe the location of the defendant
simply means the act or fact of living in a given
place permanently or for an extended period of time.
(J.A. 287-88).
Before the jury retired, the district court gave the jury two
verdict forms. The first dealt with the substantive offense and
required the jury to find, "We, the jury, unanimously find the
defendant, Jonathan A. Novak, guilty or not guilty as charged
in Count One of the indictment." (J.A. 290). The second form
required the jury to find, "We, the jury, unanimously find by
a preponderance of the evidence that the defendant, Jonathan
A. Novak, resided in the Eastern District of Virginia . . . dur-
ing the time charged in the indictment when he failed to meet
the child support obligation." (J.A. 291).
The jury convicted Novak on September 18, 2008. When
the jury returned its verdict, the first verdict form provided
that "We, the jury, unanimously find the defendant, Jonathan
A. Novak, guilty as charged in Count One of the indictment."
(J.A. 297). The second verdict form was described slightly
differently than it was before the jury retired for deliberations.
The second form was described as finding, "[W]e, the jury,
unanimously find by a preponderance of the evidence that the
defendant, Jonathan A. Novak, resided in the Eastern District
of Virginia for an extended period of time during the time
charged in the indictment, and he failed to meet the child sup-
port obligation." (J.A. 297-98).2
At sentencing, the district court sentenced Novak to
twenty-four months’ imprisonment. The district court also
2
The actual verdict forms were lost at some point in time between the
trial and sentencing.
UNITED STATES v. NOVAK 7
ordered Novak to pay $230,058.70 in back child support and
interest. Novak timely appealed on December 17, 2008. On
appeal, Novak raises two challenges to the district court’s
instructions on venue: (1) he contends the district court erred
when it failed to instruct the jury that it had to find that he
intended to remain in Virginia to find that he resided there;
and (2) he contends the district court erred when it failed to
instruct the jury that it had to find that he resided in the East-
ern District of Virginia during a time when he willfully failed
to pay child support.
II
In United States v. Johnson, we recognized that two provi-
sions in the Constitution govern venue in criminal cases. 510
F.3d 521, 523-24 (4th Cir. 2007). First, Article III provides
that criminal trials "shall be held in the State where the said
Crimes shall have been committed." U.S. Const. art. III, § 2,
cl. 3. Second, the Sixth Amendment requires that, "[i]n all
criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed." U.S.
Const. amend. VI. These constitutional provisions are
designed to protect a criminal defendant from "‘bias, disad-
vantage, and inconvenience in the adjudication of the charges
against him.’" Johnson, 510 F.3d at 524 (quoting United
States v. Ebersole, 411 F.3d 517, 524 (4th Cir. 2005)).
In accordance with these provisions of the Constitution,
Congress may, in its discretion, prescribe specific venue
requirements for a particular crime. Johnson, 510 F.3d at 524.
If Congress does so, "‘that provision must be honored (assum-
ing, of course, that it satisfies the constitutional minima).’" Id.
(quoting United States v. Salinas, 373 F.3d 161, 164 (1st Cir.
2004)). In this case, Congress has enacted a specific venue
provision in § 228 (§ 228(e)), and there is no suggestion that
§ 228(e) fails to meet the minimum requirements required by
the Constitution. Accordingly, the issues raised by Novak
8 UNITED STATES v. NOVAK
concern the adequacy of the district court’s jury instructions
on venue. Our review of the district court’s jury instructions
is for an abuse of discretion. United States v. Jeffers, 570 F.3d
557, 566 (4th Cir. 2009). In reviewing jury instructions, we
will not reverse a conviction so long as the instructions, taken
as a whole, adequately state the controlling legal principles.
Id. at 566-67. Finally, the government must establish venue
by a preponderance of the evidence. Ebersole, 411 F.3d at
524.
A
Novak first contends that the district court erred when it
failed to instruct the jury that it had to find that he intended
to remain in Virginia to find that he "resided" there. The par-
ties agree that venue in this case is proper in "the district in
which the obliger resided." 18 U.S.C. § 228(e). The district
court defined "resided" as "the act or fact of living in a given
place permanently or for an extended period of time." (J.A.
288). The term "resided" is undefined in § 228 and the parties
dispute its meaning. Novak argues that the term "resided"
includes an intent to remain in the Eastern District of Vir-
ginia. The government argues that Novak’s definition is more
appropriate for the term "domicile," that the term "resided" is
distinct from the term "domicile," and that § 228 was
designed to account for this difference by eliminating any
intent requirement.3
Two circuits have published decisions defining the term
"resided" in the § 228 context, and both of these decisions
agree that the government is not required to prove an intent
to remain in a state to establish that a person resided in such
state. See United States v. Venturella, 391 F.3d 120 (2d Cir.
3
Of note, Novak concedes that, if the government was not required to
prove that he intended to remain in Virginia to establish venue, there is
sufficient evidence in the record to establish that he resided in the Eastern
District of Virginia during the time period alleged in the indictment.
UNITED STATES v. NOVAK 9
2004); United States v. Namey, 364 F.3d 843 (6th Cir. 2004).
Both opinions rest on the commonly understood difference in
meaning between residence and domicile, the intent of § 228,
and the absurd results that arise from requiring an intent to
remain requirement. Venturella, 391 F.3d at 125-28; Namey,
364 F.3d 845-46.
With regard to the commonly accepted meaning of the term
"reside," the court in Namey noted:
The term "reside" has a commonly accepted mean-
ing. Dictionaries define "reside" as "[t]o live in a
place for a permanent or extended time," Webster’s
II New College Dictionary 943 (2001), or to "[l]ive,
dwell . . . to have a settled abode for a time. . . ."
Black’s Law Dictionary (5th ed. 1979). An ordinary
person would understand that a person resides where
the person regularly lives or has a home as opposed
to where the person might visit or vacation.
Namey, 364 F.3d 845; see also Venturella, 391 F.3d at 125
("Residence is the act or fact of living in a given place for
some time, while domicile is a person’s true, fixed, principal,
and permanent home, to which that person intends to return
and remain even though currently residing elsewhere.") (cita-
tions, alterations, and internal quotation marks omitted).
With regard to § 228’s legislative history, the court in Ven-
turella noted that the legislative history confirmed that § 228
was designed to target a parent who simply resides in another
state and is not concerned with the parent’s state of domicile:
The legislative history of the [Child Support Recov-
ery Act] clearly shows that Congress understood
that: (1) § 228 would apply to those "interstate"
cases where a parent "lived" out-of-state, and (2) one
of the major problems in interstate enforcement was
an inability to garnish out-of-state wages effectively.
10 UNITED STATES v. NOVAK
The [Child Support Recovery Act] would reinforce
State garnishment laws by creating a strong incen-
tive for parents to work in-state (or, of course, not to
default willfully on their child support obligations).
These concerns suggest that Congress expected the
CSRA to cover out-of-state residents. No one ever
mentioned domicile, any unique element of domi-
cile, or any concern particular to domicile.
391 F.3d at 130-31. Similarly, the Namey court recognized
that the
concerns expressed in the legislative record have lit-
tle to do with the parent’s intent to make the new
state his or her domicile or permanent home—rather,
it is the prolonged absence from the child’s home
state that concerned Congress. A parent who dwells,
but is not domiciled, in a different state from his
children is nonetheless absent from the child’s state,
and enforcement presents difficulties.
364 F.3d at 846.
With regard to absurdity, Venturella describes a number of
scenarios which made patent that requiring an intent to reside
would lead to absurd results. Consider this example set forth
in Venturella:
Consider Annabelle and Barry, both of whom have
child support obligations regarding their respective
children in New York and are in default on those
obligations in excess of $10,000. Annabelle lives
only in New York. Barry lives only in Florida. If we
assume that "resides" does not require an intent to
remain, then, quite logically, only Barry has criminal
exposure under § 228.
However, if we assume that "resides" requires an
intent to remain, we must query the intents of Anna-
UNITED STATES v. NOVAK 11
belle and Barry. Assume now, additionally, that
Annabelle is from Richmond, Virginia, intends to
return there, owns a home there, and has never had
any intention of remaining permanently in New
York. In fact, she hates New York and is quite vocal
about it. Assume also that Barry is living in Florida
only because he could not find work in New York,
but that Barry is from New York City, thinks that
life outside "the City" is boring, and intends to return
there when the year is out. If "resides" denotes domi-
cile, then Annabelle may fall within the proscriptions
of § 228, simply because she loves Richmond and
has ties to her old home. Barry, on the other hand,
may escape the reach of § 228, because he desper-
ately hopes to return to New York at the end of the
year. That Annabelle may be prosecuted over Barry
on the basis of her longing for Richmond is prepos-
terous. It is also at odds with the focus of the stat-
ute—to offer federal criminal penalties against
parents who willfully fail to honor their child support
obligation and live in another State. Regional affec-
tions may be many things, but rarely are they crimi-
nal.
391 F.3d at 127.
Likewise, the Sixth Circuit in Namey explained:
A parent who dwells, but is not domiciled, in a dif-
ferent state from his children is nonetheless absent
from the child’s state, and enforcement presents dif-
ficulties. . . . [I]t would make no sense to read the
statute as imposing the strict domicile test, which
excludes parents who merely reside in another state
but present the same enforcement difficulties as if
they were domiciled there.
364 F.3d at 846.
12 UNITED STATES v. NOVAK
Given the commonly understood difference in meaning
between "resided" and "domicile," the purposes behind § 228,
and the absurd results that arise when one requires an intent
to remain to establish that the defendant resided in the state,
we agree with the analysis of the courts in both Venturella
and Namey and adopt the reasoning of these cases as our own.
Accordingly, we conclude that the district court did not err
when it defined "resided" as "the act or fact of living in a
given place permanently or for an extended period of time,"
(J.A. 288), and that the evidence was sufficient, for purposes
of venue, to establish that Novak resided in the Eastern Dis-
trict of Virginia during the time period alleged in the indict-
ment.
B
The district court instructed the jury that it "must determine
whether the United States has proved by a preponderance of
the evidence, . . . that during a time charged in the indictment
when [Novak] failed to meet the support obligation he resided
in the Eastern District of Virginia." (J.A. 287-88).4 Novak
argues that the venue instruction should have required the jury
to find that he "willfully fail[ed]," 18 U.S.C. § 228(a)(3), to
meet the support obligation while he resided in the Eastern
District of Virginia.5 Novak posits that the instruction was
4
As noted earlier, the government must establish venue by a preponder-
ance of the evidence. Ebersole, 411 F.3d at 524.
5
Although the term "willful" does not appear in § 228(e), Novak makes
his argument through § 228(e)(1)’s reference to § 228(a), which does con-
tain a willful component. Section 228(e)(2) allows for venue in "the dis-
trict in which the obliger resided during a period described in paragraph
(1)." 18 U.S.C. § 228(e)(2). An "obliger" is defined in § 228(e)(1) as "a
person described in subsection (a)." Id. § 228(e)(1). The "period described
in paragraph (1)," id. § 228(e)(2), is "a period during which [an obliger]
failed to meet that support obligation," id. § 228(e)(1). Taken together,
§ 228(e)(2) allows for venue in the district in which a person described in
subsection (a) resided during a period during which a person described in
subsection (a) failed to meet that support obligation. The "person
described in subsection (a)," id. § 228(e)(1), is any person who "willfully
fails to pay a support obligation," id. § 228(a)(3).
UNITED STATES v. NOVAK 13
erroneous because it "allowed the jury to find venue based on
a period in which Mr. Novak did not make payments on
advice of counsel (after February 2005), not upon a period in
which he willfully failed to make payments." Appellant’s Br.
at 20.
For purposes of Novak’s argument, we will assume, with-
out deciding, that the district court was required in its venue
instruction to instruct the jury that it had to find that Novak
resided in the Eastern District of Virginia during a time when
he willfully failed to pay child support. Such an assumption
is of no help to Novak, however, because any error here is
harmless for two reasons. First, the jury found Novak "guilty
as charged in Count One of the indictment." (J.A. 297). The
indictment alleged a willful failure to pay a child support obli-
gation from August 8, 2004 to July 20, 2005, and further
alleged that Novak was a resident of the Eastern District of
Virginia during that time frame. Therefore, Novak’s theory
that the jury could have found that he did not willfully fail to
pay child support because of advice of counsel is foreclosed
by the jury’s verdict. Second, Novak was not harmed by the
instruction if he resided in Virginia prior to February 22,
2005, the date in which he suggests counsel advised him not
to pay child support. If he resided in Virginia prior to Febru-
ary 22, 2005, then venue was proper. His argument, then,
hinges on his prevailing on his Part IIA argument, that he did
not "reside" in Virginia from August 8, 2004 to February 22,
2005, because during that time period he did not have the
intent to make Virginia his permanent residence. For the rea-
sons explained in Part IIA, Novak cannot prevail on this argu-
ment. Therefore, he cannot show any harm even if we assume
the district court’s instruction was erroneous.
III
For the reasons stated herein, the judgment of the district
court is affirmed.
AFFIRMED