United States Court of Appeals
For the First Circuit
No. 00-2200
UNITED STATES OF AMERICA,
Appellee,
v.
WALTER J. MOLAK, JR.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Michael J. Lepizzera, Jr. on brief for appellant.
Margaret E. Curran, United States Attorney, Donald C.
Lockhart and Terrence P. Donnelly, Assistant United States
Attorneys, on brief for appellee.
January 9, 2002
SELYA, Circuit Judge. Lawyers can — and often do —
wrangle over the meaning of even the most pedestrian language.
So it is here: the appellant insists that the term "child," as
used in the Child Support Recovery Act, 18 U.S.C. § 228 (1994 &
Supp. V 1999) (the Act), encompasses only persons under 18 years
of age. For its part, the government advocates a less
restrictive definition. Writing on a pristine page — no federal
appellate court has heretofore construed the meaning of the
disputed term — we reject the appellant's cramped construction
and affirm the judgment below.
The facts are for all practical purposes conceded.
Defendant-appellant Walter J. Molak, Jr. married Dorothy Caron
in 1962. The couple had two sons (born in 1966 and 1969,
respectively), but no long-term future; divorce proceedings
commenced in 1972. The next year, the Rhode Island Family Court
entered a final decree that incorporated the terms of a property
settlement agreement and dissolved the marriage. Pertinently,
the property settlement agreement obligated the appellant to pay
child support of $30 per child per week and to assume
responsibility for "the continuing education of the said minor
children . . . including their college fees."
Over the next decade, the appellant made few if any
child support payments. In 1982 — after the Family Court had
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found him in contempt and issued a warrant for his arrest — the
appellant left Rhode Island. He eventually relocated to Florida
where he continued to spurn his child support obligations even
though he had the wherewithal to defray them.
On February 12, 1993, the Family Court found that the
appellant owed $87,163 on account of child support obligations
and ordered him to pay that sum. The Rhode Island Supreme Court
affirmed the arrearage order. Molak v. Molak, 639 A.2d 57 (R.I.
1994) (per curiam). Although that judgment was served upon the
appellant and registered with the Florida courts, he made no
payments.
On February 9, 2000, a federal grand jury in the
District of Rhode Island returned a two-count indictment against
the appellant. The misdemeanor count charged that during a
period ending June 10, 1993, he "willfully fail[ed] to pay a
support obligation with respect to a child who resides in
another State, [although] such obligation has remained unpaid
for a period longer than 1 year, or is greater than $5,000." 18
U.S.C. § 228(a)(1). The felony count charged that during the
period from June 24, 1998 forward, he "willfully fail[ed] to pay
a support obligation with respect to a child who resides in
another State, [although] such obligation has remained unpaid
for a period longer than 2 years, or is greater than $10,000."
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Id. § 228(a)(3). In time, the appellant pleaded guilty to these
charges.
At the disposition hearing, held on September 11, 2000,
the district court began with the base offense level specified
in USSG §2B1.1(a); adjusted it upward because the appellant had
willfully failed to pay more than $70,000 in child support, see
id. §2B1.1(b)(1)(E); adjusted it downward for acceptance of
responsibility, see id. §3E1.1(a); noted the absence of any
previous criminal record; and established a guideline sentencing
range (GSR) of six to twelve months. The court imposed a six-
month incarcerative term, to be followed by one year of
supervised release. The court also ordered the appellant to pay
$67,163 in restitution (an amount derived by subtracting $20,000
paid by the appellant subsequent to his arrest from the figure
mentioned in the Family Court judgment). This timely appeal
followed.
In this venue, the appellant argues that the lower
court erred in calculating the amount of loss (and, therefore,
in establishing the GSR) as well as in determining the amount of
restitution owed. The gist of these related arguments is that
although the Family Court held him liable for $87,163 in
outstanding child support, that sum included amounts that
accrued after his sons turned 18 (e.g., college costs, unpaid
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child support for the period through the date of each son's
college graduation). In the appellant's view, the Act required
the district court to subtract from the Family Court's figure
the education costs incurred and the unpaid support accrued for
each child after that child turned 18.1
The appellant has a second string to his bow. He notes
that the $87,163 figure used by the Family Court includes
interest and costs, and he asseverates that such items do not
come within the purview of the Act. Accordingly, the district
court should have eliminated those portions of the Family Court
award in calculating both the amount of loss and the amount of
restitution due.
The government's response is twofold. First, it says
that we need not consider the appellant's importunings because
the case is moot. Second, it maintains that, in all events,
those importunings are groundless.
We begin with the question of mootness. Citing Spencer
v. Kemna, 523 U.S. 1 (1998), the government argues that because
the appellant has fully served his six-month prison sentence,
1
This argument does not implicate the question of guilt as
the appellant concedes that the support order in his case
included enough pre-age-18 support to trigger the statutory
thresholds that make his offenses federal crimes. See 18 U.S.C.
§ 228(a)(1) (establishing $5,000 minimum for misdemeanor
offenses); id. § 228(a)(3) (establishing $10,000 minimum for
felony offenses).
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this appeal is moot. The government's premise is correct — the
appellant no longer is incarcerated — but its conclusion does
not follow.
The Spencer Court reiterated the familiar bromide that
to avoid mootness, "[t]he parties must continue to have a
personal stake in the outcome of the lawsuit." Id. at 7
(citation and internal quotation marks omitted). The Court made
plain that an incarcerated prisoner's challenge to his
conviction always satisfies this requirement "because the
incarceration . . . constitutes a concrete injury." Id. The
Court did not imply, however, that the expiration of a prison
sentence necessarily divests the prisoner of a continuing stake
in the outcome of a challenge to his conviction. This case
shows quite clearly why it does not.
Although the appellant has fully served his jail time,
his sentence also included a one-year term of supervised
release. He is in the midst of the supervised release term — it
will not expire until March of 2002 — and, therefore, he is
still subject to that constraint. Just as a parolee would have
a continuing stake in the outcome of a challenge to the
underlying conviction and sentence because of the restriction
imposed by the terms of the parole, see Allen v. United States,
349 F.2d 362, 363 (1st Cir. 1965); see also Spencer, 523 U.S. at
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7 (dictum), so too a convicted defendant who is under an ongoing
sentence of supervised release has a continuing stake in the
outcome of a challenge to the underlying conviction and
sentence.
To cinch matters, the appellant is facing a restitution
order. The challenge that he seeks to mount directly affects
the extent of that order. The appellant thus has a demonstrable
pecuniary interest in the outcome of this appeal, and that
interest is enough to forfend the government's claim of
mootness.
Having found that a live controversy persists, we turn
to the merits of the appeal. The amount of loss is integral to
the sentence imposed. The sentencing guidelines contain an
entry for section 228 offenses that cross-references USSG §2J1.1
(governing contempt offenses) — but the Sentencing Commission
has not promulgated a guideline for section 2J1.1 offenses.
Thus, pursuant to USSG §2X5.1, a sentencing court must apply the
"most analogous" guideline. An application note to USSG §2J1.1
provides that "[f]or offenses involving the willful failure to
pay court-ordered child support (violations of 18 U.S.C. § 228),
the most analogous guideline is §2B1.1," and in that
transposition, "[t]he amount of loss is the amount of child
support that the defendant willfully failed to pay." USSG
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§2J1.1, cmt. (n.2). The lower court treated this note as
authoritative, see Stinson v. United States, 508 U.S. 36, 38
(1993); United States v. Piper, 35 F.3d 611, 617 (1st Cir.
1994), and crafted the appellant's sentence accordingly.
The appellant challenges the automatic equation of the
amount of loss with the amount of child support that a defendant
fails to pay. His thesis is that, as used in the Act, the term
"child" refers to a person under the age of 18, with the result
that Congress intended both loss and restitution under the Act
to encompass only those support obligations applicable to the
period prior to a child's eighteenth birthday. Because the
correctness of that thesis turns on a question of statutory
interpretation, we afford de novo review. Protective Life Ins.
Co. v. Dignity Viatical Settlement Partners, 171 F.3d 52, 54
(1st Cir. 1999).
As with any exercise in statutory construction, we
start with the language of the statute.2 With certain conditions
not material here (e.g., place of residency, total amount of
indebtedness), the Act criminalizes a willful failure to pay "a
2
The indictment straddles the period before and after June
24, 1998 (the effective date of the amendments contained in the
Deadbeat Parents Punishment Act of 1998, Pub L. No. 105-187, 112
Stat. 618 (1998)). For simplicity's sake, we refer to the
amended version of the Act, but our comments apply equally to
the earlier version.
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support obligation with respect to a child." 18 U.S.C. §
228(a)(3). In addition to other penalties, the Act directs the
court to "order restitution . . . in an amount equal to the
total unpaid support obligation as it exists at the time of
sentencing." Id. § 228(d). Importantly, the Act defines the
term "support obligation" as used in these antecedent sections
to mean "any amount determined under a court order . . .
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." Id. § 228(f)(3).
Although the Act does not define the term "child," that
omission is itself revealing. In ordinary usage as it pertains
to support obligations, the term "child" is not age-specific,
and there is nothing in the text of the Act to suggest that
Congress intended "child" to mean a person under the age of 18.
Common sense suggests that, had Congress intended to use the
term in so specialized a manner, it would have done so
explicitly (or, alternatively, used the word "minor" to clarify
the point). Because Congress used the more generic term "child"
without any words of limitation, we find appealing the
conclusion that Congress did not intend to confine "child" in
this context to a person of a particular age.
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This conclusion becomes irresistible when one considers
two ancillary matters. First, Congress used the term "child" as
part of its definition of "support obligation" in section
228(f)(3). That juxtaposition makes it highly probable that
Congress intended the term "child" to refer to any child covered
by the court-ordered support obligation at issue in a given
case. This interpretation is consonant not only with the rule
that proof of a state-court child support order is sufficient,
in and of itself, to prove the existence of a support obligation
within the meaning of the Act, but also with the related rule
that a defendant in a federal case cannot relitigate the facts
underlying such a support order. See United States v. Johnson,
114 F.3d 476, 482 (4th Cir. 1997) (holding state-court child
support order conclusive and barring attempt to revisit issue of
parentage).
Second, Congress specifically defined the amount of
child support owed as "any amount determined under a court
order." 18 U.S.C. § 228(f)(3). Congress's decision to make the
amount specified in the state-court child support order
controlling lends credence to the notion that it intended to tie
the meaning of the term "child" to the particular state-court
child support order that the defendant had disregarded. This
sensible approach reflects the wise view that the states are in
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a better position than the federal government to decide, on a
case by case basis, who is a proper beneficiary of a child
support order and at what point in a child's life that
assistance should terminate.
The case at bar illustrates the point. Even though the
duty of support under Rhode Island law generally ends when a
child turns 18, there are certain recognized exceptions to that
rule. See, e.g., Pierce v. Pierce, 770 A.2d 867, 870-72 (R.I.
2001) (holding that it is within the discretion of the Family
Court to order child support beyond a child's eighteenth
birthday); see also R.I. Gen. Laws § 15-5-16.2(b). Moreover,
the Rhode Island courts will uphold more expansive terms if the
divorcing parties expressly agree to them. E.g., Cooke v.
Cooke, 623 A.2d 455, 455-56 (R.I. 1993); Ervin v. Ervin, 458
A.2d 342, 344 (R.I. 1983); Siravo v. Siravo, 424 A.2d 1047,
1050-51 (R.I. 1981).
Domestic relations and family matters are, in the first
instance, matters of state concern, Ankenbrandt v. Richards, 504
U.S. 689, 695-97 (1992), and it would be odd for Congress to
second-guess the determinations of the state courts as to the
appropriate scope of child support obligations. There is no
evidence that Congress intended to chart so curious a course;
rather, the structure of the Act and its legislative history
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indicate that Congress left such "scope" determinations to the
states while focusing on a national problem — the flouting of
child support orders by parents who flee across state lines.
See United States v. Bongiorno, 106 F.3d 1027, 1030 (1st Cir.
1997) (citing legislative history).
The case law is not very helpful, but what there is of
it favors reading the term "child" without any age limitation.
The cases make clear that Congress, in passing the Act, did not
intend to interfere with or modify the matrimonial laws of the
several states. See id. at 1033-34. With rare exceptions, this
means that federal courts, in prosecutions under the Act, should
accept state-court support orders as they are written and avoid
relitigating matters already decided in the family courts.
E.g., United States v. Brand, 163 F.3d 1268, 1276-80 (11th Cir.
1998); United States v. Black, 125 F.3d 454, 463-64 (7th Cir.
1997); Johnson, 114 F.3d at 481-82.
If this court were to accept the appellant's premise
that Congress used the term "child" to mean only offspring under
the age of 18, federal courts (and sometimes juries) would have
to slice and dice state-court child support orders to determine
which portions of those orders relate to pre-age-18 support and
which do not. This task often would be difficult if not
impossible because various categories of support may be
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intermixed, items may straddle a child's eighteenth birthday, or
the support order may refer only to a lump sum. We will not
lightly presume that Congress meant to involve the federal
courts in the arduous task of dissecting state-court child
support orders whenever a child's eighteenth birthday
intervened. We therefore reject the appellant's contention that
the term "child," as used in the Act, is limited to a child
under the age of 18.
We turn briefly to the appellant's other arguments.
Just as there is no principled basis for excluding court-ordered
child support relating to periods after a child's eighteenth
birthday from the statutory calculation, there is also no basis
for excluding interest and costs. In the instant case, these
items are embedded in the 1993 Family Court order and they are
part and parcel of what is needed to put the appellant's former
wife and his children in the financial position that they would
have enjoyed had he honored his obligations and made timely
child support payments. Consequently, the district court did
not err in refusing to back interest and costs out of the amount
of loss.
The same reasoning defeats the appellant's claim that
the district court erred in fixing the amount of restitution.
The Act requires that "[u]pon conviction . . . the court shall
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order restitution . . . in an amount equal to the total unpaid
support obligation as it exists at the time of sentencing." 18
U.S.C. § 228(d). The Act defines "support obligation" in
relevant part as meaning "any amount determined under a court
order . . . 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." Id. §
228(f)(3). This language is plain and unambiguous. It affords
no latitude for excluding post-age-18 support, interest, or
costs from the required computation. 3 Since the amount
determined under the 1993 Family Court order was $87,163, the
sentencing court appropriately keyed the restitutionary
obligation to that figure and, after crediting the appellant for
the $20,000 payment that he had made, correctly fixed the amount
of the restitution order at $67,163.
We need go no further. Giving the words of the Act
their natural meaning and striving to effectuate Congress's
discerned intent, we reject the appellant's minimalist
interpretation of the statute of conviction. For aught that
3Indeed, the Ninth Circuit recently has held that a
restitution order in a prosecution brought under the Act may
include interest even if the underlying court support order did
not order payment of interest so long as state law provides for
interest. United States v. Gill, 264 F.3d 929, 932-33 (9th Cir.
2001).
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appears, the district court read the Act correctly and
accurately determined both the amount of loss and the amount of
restitution due.
Affirmed.
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