United States Court of Appeals
For the First Circuit
No. 09-2482
UNITED STATES,
Appellee,
v.
PETER MITRANO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Howard, Selya, and Thompson,
Circuit Judges.
Judith H. Mizner, Assistant Federal Public Defender, for
appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief, for
appellee.
September 23, 2011
THOMPSON, Circuit Judge. Peter Mitrano appeals from his
conviction on charges of willful failure to pay child support,
raising claims concerning the sufficiency of the evidence, the jury
instructions, and the calculation of his sentence. Finding no
merit in his arguments, we affirm.
BACKGROUND
Mitrano married Virginia Kelly in the District of
Columbia in 1984. They had three children, born in 1985, 1986, and
1991. The family lived together in Virginia until Mitrano and
Kelly separated in 1991. They were divorced in Virginia in 1992.
At the time of the divorce, a Virginia court entered a custody
order granting Mitrano primary custody of the children. The
children lived with him during the week and with Kelly on weekends.
In 1993, Mitrano and the children moved to New Hampshire. Shortly
afterwards, Kelly followed. The family lived together in the same
house, although Mitrano and Kelly did not reconcile as husband and
wife.
In 2000, Kelly moved out of the house and filed an action
in New Hampshire seeking sole custody of the children. Around that
time, Mitrano moved back to Virginia. While the custody action was
pending in New Hampshire, Mitrano complied with a temporary order
requiring him to pay weekly child support. Kelly obtained
temporary custody of the children in early 2001. In 2002, the New
Hampshire court issued a final order awarding Kelly sole custody of
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the children and requiring Mitrano to pay $1,406 per week in child
support, plus $300 per week toward past medical expenses. Mitrano
has paid no child support since issuance of the final order.1
Mitrano attempted to appeal the child support order to
the New Hampshire Supreme Court, but the court declined to hear the
appeal. He sought and was denied review by the U.S. Supreme Court.
Mitrano then filed suits and appeals in four states (New Hampshire,
Vermont, Virginia, and Maryland) and in two federal courts (the
District of New Hampshire and the Eastern District of Virginia).
In each case he argued that the child support order was invalid
because the New Hampshire court lacked subject matter jurisdiction.
He lost every case and appeal.
On August 20, 2008, Mitrano was indicted for willfully
failing to pay child support in violation of 18 U.S.C. § 228(a)(3).
He was tried before a jury in the District of New Hampshire. At
trial, Kelly testified that Mitrano worked as a patent lawyer and
was a licensed engineer, that he owned two properties in Virginia
(one of which generated rental income), and that he owned two
Porsche automobiles and another vehicle. She also testified that
before the child support order entered, Mitrano supported the
family in New Hampshire, took the children on multiple vacations,
and bought generous gifts (including a horse) for the children.
1
In 2004, a New Hampshire court sent Kelly $14,000, which
had been posted to secure Mitrano’s release after he was arrested
on an unrelated matter.
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Another witness indicated that Mitrano rented a law office in
Boston from 1998 through 2008 and regularly paid his rent (which
ranged from approximately $500 to $826 per month during the ten-
year period). A tenant who had lived in one of Mitrano’s Virginia
properties testified that he paid Mitrano $300 to $550 monthly rent
in cash from 2005 to 2008. He said that other tenants rented
additional rooms in the house during that time period.
The government also introduced filings from Mitrano’s
2008 bankruptcy proceeding in the Eastern District of Virginia.2
The bankruptcy filings valued one of Mitrano’s unencumbered
Virginia properties at $550,000 and a second Virginia property at
$900,000, encumbered only by a secured claim of $156,426.87.
Records introduced through a representative of the New Hampshire
Department of Health and Human Services Office of Child Support
showed that Mitrano owed child support in excess of $400,000 for
the years 2005 through 2008.
At the close of the evidence, Mitrano moved for a
judgment of acquittal under Fed. R. Crim. P. 29. The district
court denied his motion. He was convicted, sentenced to serve 24
months in prison, and ordered to pay restitution in the full amount
of past due child support (including interest). He filed a timely
notice of appeal. Before this court, Mitrano challenges the
2
The bankruptcy petition was ultimately dismissed, in part
because it had been filed in bad faith.
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sufficiency of the evidence, the trial court’s decision to instruct
the jury on willful blindness, and the calculation of his sentence.
SUFFICIENCY OF THE EVIDENCE
We review the denial of a Rule 29 motion for judgment of
acquittal de novo. United States v. Perez-Melendez, 599 F.3d 31,
40 (1st Cir. 2010); see also United States v. Azubike, 564 F.3d 59,
64 (1st Cir. 2009) (“We review preserved challenges to sufficiency
of the evidence de novo.”).
A trial court must enter a judgment of acquittal when,
viewing the evidence in the light most favorable to the verdict, it
is insufficient to sustain a conviction. See Fed. R. Crim. P.
29(a). “If a reasonable jury could have found that the government
had proven each element of the crime beyond a reasonable doubt, we
will affirm the conviction.” Perez-Melendez, 599 F.3d at 40
(quoting United States v. Angulo-Hernandez, 565 F.3d 2, 7 (1st Cir.
2009)). “We have described this standard of review as
‘formidable,’ and defendants challenging convictions for
insufficiency of evidence face an uphill battle on appeal.” Id.
(quoting United States v. Lipscomb, 539 F.3d 32, 40 (1st Cir.
2008)) (internal quotation marks omitted).
Willfulness
Mitrano first contends there was insufficient evidence to
support his conviction for “willfully” failing to pay child
support. The willfulness standard used in 18 U.S.C. § 228 was
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borrowed from the statutes criminalizing willful failure to pay
taxes. United States v. Smith, 278 F.3d 33, 37 (1st Cir. 2002).
Accordingly, courts should interpret willfulness in the context of
child support obligations in the same way that courts have
interpreted it in the context of felony tax provisions. Id. at 38.
Willfulness is “a voluntary and intentional act in the context of
a defendant's ability to pay.” Id. (emphasis omitted). It is not
a crime to fail to comply with the statute based on a good faith
misunderstanding of its requirements. See Cheek v. United States,
498 U.S. 192, 200 (1991). Mere disagreement with the law, however,
is not a defense. Id. at 202 n.8.
Mitrano argues that he did not willfully fail to pay
child support because he had a good faith belief that the
underlying child support order was invalid.3 See United States v.
Kerley, 544 F.3d 172, 177 (2d Cir. 2008) (“A defendant found to
have acted willfully may negate willfulness by showing . . . that,
because of a misunderstanding of the law, he had a good faith
belief that he was not violating the legal duty.”) (citing Cheek,
498 U.S. at 202). “A good faith belief need not be objectively
reasonable to negate willfulness.” Id. Mitrano stresses the
3
Mitrano did not testify at trial. His belief came into
evidence through Kelly’s testimony. She testified that “[h]e
always said he didn’t have to pay, that this order is void as a
matter of law, and no one agreed with him, but he always said it’s
void as a matter of law. He didn’t say he couldn’t pay. He said
he doesn’t have to pay.”
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strength of his belief, which he says shows the absence of the
willfulness required under 18 U.S.C. § 228. He also argues that
continuing to maintain his position in the face of its rejection by
a multitude of courts is not inconsistent with holding a good faith
belief, citing United States v. Booker, 543 U.S. 220 (2005), as an
example of a case in which a position which previously had been
rejected by many courts ultimately prevailed.
But whether Mitrano actually held a good faith belief
that the child support order was invalid was a question for the
jury. He was trained and had worked as an attorney, and he admits
that he knew of the child support order. He even attached it as an
exhibit to some of his court pleadings. Further, he was aware that
numerous state and federal trial and appellate courts had rejected
his theory that the New Hampshire court lacked subject matter
jurisdiction to issue a valid child support order.
Given the number of courts that repudiated Mitrano’s
claims and appeals, we find that the jury reasonably could have
refused to accept that Mitrano actually held a good faith belief
that the child support order was void. See Cheek, 498 U.S. at 203-
04 (“Of course, the more unreasonable the asserted beliefs or
misunderstandings are, the more likely the jury will consider them
to be nothing more than simple disagreement with known legal
duties”); United States v. Cruz-Arroyo, 461 F.3d 69, 74 (1st Cir.
2006) (jury “acted well within its proper province” by rejecting a
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“somewhat fanciful claim” advanced by the defendant). The jury
also could have reasonably concluded that even if Mitrano had a
good faith belief that the order was void, it was only because he
intentionally avoided re-evaluating his position in light of all
the courts which rejected it – in other words, as we discuss later,
he willfully blinded himself to his legal duty to pay child
support.
The evidence, viewed in the light most favorable to the
jury verdict, was more than sufficient for a reasonable jury to
conclude beyond a reasonable doubt that Mitrano willfully failed to
pay his child support.
Ability to Pay
Mitrano claims the government failed to introduce
sufficient evidence of his ability to pay child support. He
asserts that because the government failed to introduce bank
account records or tax statements showing his income and because it
introduced no evidence with respect to his subsistence needs, it
failed to meet its burden of proof. He notes that the jury was
instructed to determine his ability to pay by considering factors
including his subsistence needs, but that it heard no evidence as
to the specific amounts required to pay for his housing, food, and
other basic expenses. And he points to his bankruptcy filing,
which he claims shows that he was deeply in debt and had been
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relying on financial assistance from others. He concludes that the
jury’s verdict was supported by nothing more than speculation.
We have held that as an element of the crime, the
government has to prove that
at the time payment was due the [defendant] possessed
sufficient funds to enable him to meet his obligation or
that the lack of sufficient funds on such date was
created by (or was the result of) a voluntary and
intentional act without justification in view of all the
financial circumstances of the [defendant].
Smith, 278 F.3d at 37. Significantly, however, the government only
needs to prove that the defendant was able to pay some portion of
his child support obligation. Id. at 40 n.5.
Evidence at trial included testimony about Mitrano’s
income-earning potential and assets. He was a patent lawyer and a
licensed engineer. Before issuance of the custody order, he
apparently had no difficulty supporting his family in a comfortable
manner. The jury was entitled to infer that he retained the
ability to earn substantial amounts of money after issuance of the
order. After he moved back to Virginia in 2000, he had enough
income to continue paying rent on office space in Boston. He also
collected rental income from one of his Virginia properties. His
Virginia properties together had a unencumbered net value in excess
of $1 million. He owned two Porsche automobiles and another
vehicle.
But Mitrano contends that in determining his ability to
pay child support, we can consider only his income, not his assets.
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In support of this proposition, he cites to New Hampshire’s child
support guidelines and cases interpreting them. See N.H. Rev.
Stat. Ann. § 458-C; In re Jerome, 150 N.H. 626, 632, 843 A.2d 325,
330 (2004); In re Plaisted, 149 N.H. 522, 526, 824 A.2d 148, 151
(2003). Our determination as to whether the government met its
burden of demonstrating Mitrano’s ability to pay is not constrained
by state law governing the calculation of the amount of child
support a parent must pay. In the context of a challenge to the
sufficiency of the evidence, our review is limited to whether,
viewing the evidence in the light most favorable to the verdict, it
supports the jury’s conclusion that Mitrano had the ability to pay
at least some portion of his child support obligation. See Smith,
278 F.3d at 40 n.5. We find that it does.
Thus, in light of our holdings on willfulness and
Mitrano’s ability to pay, the district court properly denied his
motion for a judgment of acquittal.
JURY INSTRUCTION
As we have already noted, Mitrano argued at trial that he
did not willfully fail to pay his child support. To reflect this
defense theory, Mitrano’s counsel requested a jury instruction to
the effect that if the defendant believed in good faith that he was
not subject to the underlying order, even if he was mistaken, he
committed no crime. The district court agreed to give the good
faith instruction but stated that “the only way I can give your
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good faith and lack of knowledge of law instruction is if I give
willful blindness with it.” So the question before us is whether
the willful blindness instruction was appropriate.
Mitrano contends that because he conceded at trial that
he knew about the child support order, the district court should
not have instructed the jury on willful blindness. He says that
such an instruction is appropriate only in cases in which a
defendant intentionally avoids learning of a legal requirement.
The government responds that the evidence supported the instruction
because it showed that Mitrano “undertook a deliberate course of
ignoring the multiple court rulings holding that the child support
order against him was valid and enforceable.”
“This Court has utilized both de novo and deferential
standards of review” when reviewing claims that a court erred in
providing the jury with a willful blindness instruction. Azubike,
564 F.3d at 66 n.5. The level of scrutiny may depend on the nature
of the challenge. See id. We need not determine the issue in this
case, because applying either standard, the evidence supported the
district court’s decision to charge the jury on willful blindness.
See id.; United States v. Lizardo, 445 F.3d 73, 85 (1st Cir. 2006).
“A willful blindness instruction is appropriate if (1) a
defendant claims a lack of knowledge, (2) the facts suggest a
conscious course of deliberate ignorance, and (3) the instruction,
taken as a whole, cannot be misunderstood as mandating an inference
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of knowledge.” Azubike, 564 F.3d at 66. “In determining whether
the facts suggest the type of deliberate avoidance warranting a
willful blindness instruction, ‘we must consider whether the record
evidence reveals flags of suspicion that, uninvestigated, suggest
willful blindness.’” Id. (internal quotation marks omitted).
Mitrano challenges the first and second requirements set
forth in Azubike. He contends that because he did not claim
ignorance of the child support order or of the decisions rejecting
his attacks on its validity, the first requirement set forth in
Azubike is lacking here. His argument misses the mark. Although
Mitrano admitted knowing that the child support order existed, he
claimed a lack of knowledge as to its validity – in other words, he
claimed not to know that it created a legal and binding obligation
for him to pay child support.
Mitrano’s argument with respect to the second Azubike
requirement fares no better. He asserts that because there was no
evidence showing that he had failed to consult current law, the
facts did not suggest that he engaged in a conscious course of
deliberate ignorance. Admittedly, he did not claim ignorance of
the child support order, or of the decisions rejecting his
position. But he did, and still does, claim ignorance of the fact
that the child support order imposes on him a legally binding
obligation to pay child support. Claiming not to know of the legal
obligation after it had been determined in twelve decisions issued
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by six different courts in four different states and two federal
districts, acting over a course of more than seven years, clearly
suggested that Mitrano engaged in a “conscious course of deliberate
ignorance.” See Azubike, 564 F.3d at 66. Accordingly, the
district court properly charged the jury on willful blindness.
SENTENCING
Mitrano contends that the district court erroneously
calculated his sentence. Specifically, he argues that there was no
evidentiary basis to conclude that he could have paid the entire
amount of outstanding child support, and that therefore it was
plain error for the court to conclude that he willfully failed to
pay the entire sum. He stresses that the jury was not asked to
make a specific finding as to the amount he could have paid, and
that his conviction could have been premised on his failure to meet
any past due obligation that had been outstanding for more than two
years. He faults the district court for relying on the total
amount owed (as calculated in the Presentence Investigation
Report). Ultimately, he complains that using the entire amount due
as the amount he willfully failed to pay yielded an improper
guideline sentencing range which influenced the judge to sentence
him to the statutory maximum.
Mitrano did not object to the guidelines calculation at
sentencing and therefore we review for plain error. United States
v. McCoy, 508 F.3d 74, 80 (1st Cir. 2007). To vacate his sentence
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under the plain error standard, Mitrano must show that “(1) an
error occurred; (2) the error was clear and obvious; (3) the error
affected the defendant’s substantial rights; and (4) the error
impaired the fairness, integrity, or public reputation of the
judicial proceedings.” United States v. Gonzalez-Castillo, 562
F.3d 80, 82 (1st Cir. 2009) (quoting United States v. Mangual-
Garcia, 505 F.3d 1, 15 (1st Cir. 2007)). The third factor, whether
the error affected the defendant’s substantial rights, “translates,
in the sentencing context, into the requirement of ‘a reasonable
probability that, but for the error, the district court would have
imposed a different, more favorable sentence.’” Id. at 83 (quoting
United States v. Perazza-Mercado, 553 F.3d 65, 78 (1st Cir. 2009)).
The government bears the burden of proving loss by a
preponderance of the evidence. United States v. Curran, 525 F.3d
74, 78 (1st Cir. 2008). In calculating the amount of loss, the
district court needs to make only a reasonable estimate of the
amount of loss. Id. A party “dissatisfied with the sentencing
court’s quantification of the amount of loss in a particular case
must go a long way” to have it set aside. Id. at 79 (internal
quotation marks omitted) (quoting United States v. Rostoff, 53 F.3d
398, 407 (1st Cir. 1995)).
The Sentencing Guidelines define the loss amount as “the
amount of child support that the defendant willfully failed to
pay.” U.S.S.G. § 2J1.1 cmt n.2. As we have just described, the
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evidence showed that Mitrano had sufficient income-earning
potential and assets to pay his child support obligation, but that
he made no payments. The district court could properly have relied
on that evidence to find that the government met its burden of
showing by a preponderance of the evidence that Mitrano willfully
failed to pay the entire amount of overdue child support.
Accordingly, it did not err by using the entire amount due to
calculate Mitrano’s guideline sentencing range.4
As for the specific calculations, the child support order
required Mitrano to pay $1,406 per week, plus $300 per week toward
medical expenses. The indictment covered the period from February
1, 2005 through August 20, 2008. Mitrano made no payments. The
Presentence Investigation report calculated the amount of loss as
$430,234.32, and the district court used that amount to calculate
Mitrano’s sentence of 24 months. The amount is consistent with the
New Hampshire Department of Health and Human Services Office of
Child Support’s calculation of the amount of child support that
Mitrano failed to pay.
4
Mitrano’s reply brief contends that the district court
erred by including interest in the amount of loss used to calculate
his sentence. We need not reach the issue because it made no
difference in this case. Mitrano was sentenced to 24 months, the
statutory maximum sentence under 18 U.S.C. § 228(c)(2), based on
U.S.S.G. § 5G1.1. He has failed to show a reasonable probability
that he would have received a lower sentence if interest had been
excluded from the loss amount calculation. See Gonzalez-Castillo,
562 F.3d at 83.
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For the reasons set forth above, we find no plain error
in Mitrano’s sentencing.
CONCLUSION
We affirm the district court judgment.
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