United States Court of Appeals
For the First Circuit
No. 10-1370
UNITED STATES,
Appellee,
v.
DAVID C. CARLSON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Howard and Thompson, Circuit Judges.
Michael B. Whipple and The Hallett Law Firm on brief for
appellant.
Thomas E. Delahanty, II, United States Attorney and Margaret
D. McGaughey, Appellate Chief on brief for appellee.
May 9, 2011
Per Curiam. We have reviewed the record and the parties'
submissions, and we affirm.
The appellant, David C. Carlson ("Carlson"), was convicted of
failing to pay a legal child support obligation in violation of the
Child Support Recovery Act, 18 U.S.C. § 228(a)(3) ("CSRA"). He
argues that the district court erred in instructing the jury that
he could be found guilty of violating the CSRA so long as the jury
concluded beyond a reasonable doubt that he was able to pay at
least a portion of his child support obligation but failed to do
so. Carlson takes the position that the CSRA only imposes criminal
liability where the defendant is able to pay the entire amount of
child support due but fails to do so. We reject this reading of
the statute. In doing so, we are in accord with our sister
circuits who have decided the question. See United States v. Bell,
598 F.3d 366, 371 (7th Cir. 2010); United States v. Davis, 588 F.3d
1173, 1177 (8th Cir. 2009); United States v. Kukafka, 478 F.3d 531,
539 (3d Cir. 2007); United States v. Mattice, 186 F.3d 219, 228 (2d
Cir. 1999); United States v. Mathes, 151 F.3d 251 (5th Cir. 1998);
see also United States v. Smith, 278 F.3d 33, 40 n. 4 (1st Cir.
2002) (citing Mattice with approval).
Carlson also challenges the district court's jury instruction
explaining the requirement that the outstanding child support debt
be greater than $10,000 or remain unpaid for longer than two years.
See 18 U.S.C. § 228(a)(3). Carlson challenges the court's
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explanation of the "greater than $10,000" prong. We see no plain
error in the court's instruction, as it is undisputed that the
child support debt in question remained unpaid from the time the
divorce was finalized in 2004 until the defendant was arrested in
2008. See United States v. Matos-Luchi, 627 F.3d 1, 8-9 (1st Cir.
2010) (citation omitted). It was of no consequence, then, whether
the district court properly explained the "greater than $10,000"
prong to the jury. We see no basis in the record on which to
conclude that this challenge to the jury instructions was
preserved.
Affirmed. See 1st Cir. 27.0(c).
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