In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2555
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M AURICE B ELL,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CR 437—Matthew F. Kennelly, Judge.
A RGUED D ECEMBER 7, 2009—D ECIDED M ARCH 16, 2010
Before C UDAHY, W OOD , and E VANS, Circuit Judges.
C UDAHY, Circuit Judge. 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 Punish-
ment 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
2 No. 09-2555
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 indict-
ment, by improperly instructing the jury and in cal-
culating enhancements of his sentence. We affirm in part,
and reverse and remand for re-sentencing in part.
I. Background
In 1996, the state of Illinois determined that Bell was
the father of C.W., a son born to Brooke Wolf-Lindsey
(Wolf). The Illinois Department of Public Aid then
ordered Bell to pay Wolf child support of $520/month.
By 1999, he owed her more than $14,000, and the Circuit
Court of DuPage County, Illinois, ordered him to pay
child support of an additional $104/month, to cover some
of his arrearage. Bell then left the state.
He spent the subsequent years with a series of women
in Arizona and California, and worked as a mortgage
broker, among other occupations. According to his
friends out west, Bell lived big—driving luxury cars,
golfing, flashing rolls of hundred dollar bills and filling
custom-built closets with tailored clothes. Although the
women he dated claimed that they financed this lifestyle
(some took him to small claims court to recoup their
loans), he had access to more than $300,000 in funds from
gambling proceeds, loans from friends and his regular
earnings, but he paid less than $16,000 in child support
during that time, through wage garnishment. As of
May 2007, Bell owed his son $65,219.84 in unpaid child
support and accumulated interest.
No. 09-2555 3
Bell was indicted for violation of 18 U.S.C. § 228 based
on his failure to pay child support as ordered from 2000
to 2007. He moved to dismiss the indictment because
he contended that the government’s cause of action
accrued in 2000 and, therefore, that the applicable
statute of limitations ran in 2005. The district court
denied the motion based on its holding that § 228 is a
continuing offense. At trial, the district court did not
require the government to prove that the defendant
knew that his actions violated a federal statute. Instead,
it defined willfulness as charged to require proof that
the defendant violated a known legal duty. After Bell
was convicted at trial, he moved for a judgment of acquit-
tal or for a new trial in part because he contended that
the district court erred in failing to accept his jury in-
struction. The district court denied this post-trial motion.
At sentencing, the district court applied a two-level
enhancement for a violation of a judicial or administrative
order based on the “distinct harms” involved in the
conduct addressed respectively by the base-offense
level and by the enhancement.
II. Standard of Review
An appellate court reviews a district court’s interpreta-
tion of a statute and the Sentencing Guidelines de novo
and its factual findings for clear error. See, e.g., United
States v. Webber, 536 F.3d 584, 599 (7th Cir. 2008) (de novo
review applies to whether a district court’s jury instruc-
tions “fairly and accurately summarize the law”) (internal
citation omitted); United States v. Katalinic, 510 F.3d 744,
4 No. 09-2555
746 (7th Cir. 2007). Whether the district court followed
proper sentencing procedure is a legal question reviewed
de novo. United States v. Smith, 562 F.3d 866, 872 (7th
Cir. 2009).
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 con-
tinuing 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.
Typically, an offense accrues when each element of the
offense has occurred. Continuing offenses do not follow
this rule, but continue until the defendant ceases the
offending conduct (or an indictment is returned)—for
example at the last act in furtherance of a conspiracy.
See id. at 876. To determine whether an offense is “contin-
uing,” courts examine whether the language of a crim-
inal statute compels that conclusion or whether the
nature of the crime is such that Congress must have
intended it to be treated as a continuing one. See id. at 875
(citing Toussie v. United States, 397 U.S. 112, 115 (1970)).
No. 09-2555 5
Examples of continuing offenses include the failure of a
sex offender to register as well as escapes from incar-
ceration. See United States v. Bailey, 444 U.S. 394, 413 (1980)
(escape from federal custody); United States v. Dixon, 551
F.3d 578, 582 (7th Cir. 2008) (failure to register as a
sex offender); but see Toussie, 397 U.S. at 119 (applying
the rule of lenity to hold that failure to register for the
draft is not a continuing offense).
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 ac-
cumulation 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
6 No. 09-2555
offenses. See id. at 393-94. We agree with the Fifth
Circuit’s well-reasoned analysis of the statute.
In addition, as the government points out, the penalties
increase if the deadbeat parent has failed to pay child
support for more than two years, suggesting that it
would be nonsensical if the punishment increased for
the first two years (or when the arrearage exceeded
$10,000), but then fell to zero if the defendant successfully
evaded the law for five years. Compare 18 U.S.C.
§ 228(a)(1)-(2) with § 228(a)(3).
Lastly, Bell suggests that United States v. Irvine compels
the conclusion that the DPPA is not a continuing of-
fense. 98 U.S. 450 (1878). In Irvine, an attorney was
charged with wrongfully withholding his client’s pension
payment. See id. at 450. The Supreme Court determined
that the offense was completed when the attorney failed
to pay over the pension and therefore that the applicable
statute of limitations had run when its term expired.
See id. at 452. An attorney’s withholding a pension, a
discrete act, is different from a parent’s failing to pay
an ongoing support commitment accumulating month by
month, to his child. We therefore hold that the district
court properly denied Bell’s motion to dismiss his indict-
ment.
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
No. 09-2555 7
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.” “Willful” is a word of many
meanings, and its definition is often influenced by its
context. See United States v. Wheeler, 540 F.3d 683, 689
(7th Cir. 2008) (citing Ratzlaf v. United States, 510 U.S. 135,
141 (1994)). Willful may refer to a defendant’s awareness
of his conduct (suggesting intentionality) or simply that
his conduct is illegal. See id.; see also United States v.
Ladish Malting Co., 135 F.3d 484, 491-92 (7th Cir. 1998)
(equating willfulness with an awareness of the factual
and legal requirements, although declining to decide
whether reckless disregard of the regulations was suffi-
cient). The legislative history of the DPPA suggests that
Congress intended to draw the DPPA’s concept of “will-
fulness” 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
8 No. 09-2555
willfulness applicable to a statute like the one crim-
inalizing 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 defini-
tion 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 pre-
scribe the legal duty imposed by those specific tax stat-
utes).
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; United States v.
Fields, 500 F.3d 1327, 1332 (11th Cir. 2007) (discussing
§ 228); see also United States v. Kerley, 544 F.3d 172, 177 (2d
Cir. 2008) (relying on Mattice and explaining that the
statute allows for a defense based on the defendant’s
No. 09-2555 9
good faith belief that he was not violating a legal duty);
United States v. Harrison, 188 F.3d 985, 986 (8th Cir. 1999)
(interpreting willfulness under CSRA as “an intentional
violation of a known legal duty”); United States v. Mathes,
151 F.3d 251, 253 (5th Cir. 1998) (same). 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 willful-
ness.
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
10 No. 09-2555
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, pursu-
ant 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 district
court noted that even though a violation of a court order
is an element of the offense, the applicable guideline
would not take this conduct into account absent the
enhancement. In addition, it followed the reasoning of
the Eleventh and Second Circuits allowing the enhance-
ment because the additional two levels punished Bell
separately for the distinct harms imposed on the child
and his family as well as on the court system for viola-
tion of a court order. See United States v. Maloney, 406 F.3d
149, 153-54 (2d Cir. 2005); United States v. Phillips, 363 F.3d
1167, 1169 (11th Cir. 2004). Had Bell not received the two-
No. 09-2555 11
level enhancement, his sentencing range would have
been 12-18 months rather than 18-24 months. The DPPA
has a statutory cap of two years, and Bell was sentenced
to 24 months. See 18 U.S.C. § 228(c)(2).
The DPPA criminalizes the acts of a person who “will-
fully fails to pay a support obligation with respect to a
child.” See, e.g., 18 U.S.C. § 228(1)-(3). A “support obliga-
tion” 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 admin-
istrative 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); United States
v. Lallemand, 989 F.2d 936, 939 (7th Cir. 1993). Double
counting does not occur if the adjustment addresses a
12 No. 09-2555
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); United States v.
Shearer, 479 F.3d 478, 484 (7th Cir. 2007); United States v.
Parolin, 239 F.3d 922, 929 (7th Cir. 2001); United States v.
Wimberly, 60 F.3d 281, 288 (7th Cir. 1995) (allowing an
enhancement for the victim’s age, even though the base
offense incorporated the victim’s age, because the ap-
plicable sentencing guideline applied to other statutes
that did not necessarily involve young minors); United
States v. Sorenson, 58 F.3d 1154, 1161 (7th Cir. 1995) (holding
that a base-offense level reflecting an assault involving
a dangerous weapon may be enhanced based on the
defendant’s use of that weapon). 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) (defen-
dant 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 ad-
dressed by the cross-referenced base-offense level and
whether Bell’s conduct in violating the DPPA may be
No. 09-2555 13
permissibly teased into severable “aspects” for purposes
of sentencing. The government contends that the base-
offense level specified under the applicable guideline
provision punishes only certain aspects of Bell’s
conduct and the enhancement takes into account distinct
conduct in such a way that there is no double counting.
That is, the government argues that courts should not
assume that the base-offense level specified by the cross-
reference necessarily addresses all conduct included in
the elements of the offense. See United States v. Schmeilski,
408 F.3d 917, 919 (7th Cir. 2005) (defining double counting
as two or more upward adjustments “within the same
guidelines range, when both are premised on the same
conduct,” unless the “enhancements address distinct
aspects of the defendant’s conduct”).
The government notes that it is often the case that the
offense level for a specific crime will always permit the
inclusion of a particular enhancement. For example, in
the context of bank robbery, e.g., 18 U.S.C. § 2113(a),
every convicted bank robber is sentenced to a base-
offense level, § 2B3.1(a) (for “Robbery”), enhanced by a
specific offense characteristic of two levels for taking
money from a financial institution, § 2B3.1(b)(1). We
believe, however, that the difference between bank
robbery and violations of the DPPA is that there is no
analogous guideline provision for bank robberies that
cross-references another guideline provision where an
enhancement would apply to the circumstances of every
conviction under the statute.
The government contends that we have acknowl-
edged in dicta that “it may be possible, without double
14 No. 09-2555
counting, to apply an upward adjustment to all perpetra-
tors of a particular offense.” Lallemand, 989 F.2d at 939 (for
example, all postal carriers who steal mail would
receive an enhancement to the base-offense level for
theft for abuse of a position of trust). However, more
recently, we have explained that the use of an enhance-
ment based on conduct that encompasses an element of
the offense is double counting “only if the offense itself
necessarily includes the same conduct as the enhance-
ment.” See United States v. Beith, 407 F.3d 881, 889 (7th Cir.
2005) (quoting United States v. Senn, 129 F.3d 886, 897 (7th
Cir. 1997)) (both cases noting that when the substantive
offense punishes conduct beyond that undertaken by
defendant, imposing sentencing enhancements based
on defendant’s particular conduct in committing the
offense is not impermissible double counting).
Although the district court found its reasoning persua-
sive, the Second Circuit may define double counting
differently than this circuit. In Maloney, the Second Circuit
determined that the two-level enhancement for violation
of a child-support order was not impermissible double
counting because it addressed distinct harms—“theft” of
the child’s support and contempt for the judicial sys-
tem. 406 F.3d at 153-54; see also Phillips, 363 F.3d at 1169
(holding that the two-level enhancement was not double
counting in part because it reflected the heightened
seriousness of violating a court order). In contrast, we have
not embraced the “separate harms” theory of double
counting, focusing, as we have noted, on the conduct that
supports the enhancements. See, e.g., Blum, 534 F.3d at
612. In our view, there is no reason to believe conduct
No. 09-2555 15
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-refer-
ence 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.1
For the foregoing reasons, the district court is A FFIRMED
in part, and V ACATED and R EMANDED for re-sentencing.
1
Because this opinion creates a split between the circuits, it has
been circulated among all judges of this court in regular active
service under Circuit Rule 40(e). A majority did not favor
hearing the case en banc.
3-16-10