[ PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
_____________ ELEVENTH CIRCUIT
SEPTEMBER 21, 2007
No. 06-13784 THOMAS K. KAHN
_____________ CLERK
D.C. Docket No. 04-00039-PO-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES PERRY FIELDS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Georgia
____________
(September 21, 2007)
Before CARNES, WILSON and HILL, Circuit Judges.
HILL, Circuit Judge:
James Perry Fields was convicted of willfully failing to pay a past due
support obligation to his child who resided in another state, in violation of 18
U.S.C. § 228(a)(1) (2000). Fields appeals his conviction. For the following
reasons, we shall reverse the conviction.
I.
James Perry Fields and Claire Holland, both attorneys, married in 1979.
The couple resided in Glynn County, Georgia. In 1984, Holland gave birth to a
son. In 1987, the couple divorced. The Georgia divorce decree ordered Fields to
pay Holland $600.00 per month in child support until the boy’s eighteenth
birthday. The decree also required each parent to keep the other fully informed of
the child’s health and whereabouts while having possession of him, during
custody or visitation.
In 1988, Holland moved to Atlanta, taking the child. Fields alleges that she
failed to keep him informed of their whereabouts, and in 1994, the Superior Court
of Glynn County entered a contempt order against Holland for her failure to meet
her obligations under the divorce decree. Fields quit paying his child support
obligation around this time.
2
Sometime after 1994, Holland took the boy and left Georgia, moving from
Atlanta to Orlando, Florida. Subsequently, they moved to Alabama, Washington,
D.C., and then back to Orlando. During this time, the only way Fields was able to
contact Holland was to send mail to her Atlanta address listing in the Georgia Bar
directory. The mail was forwarded to her then-current address.1
In 2004, the government charged Fields with violating the Child Support
Recovery Act (the “CSRA”), which criminalizes the “willful failure to pay a past
due child support obligation with respect to a child who resides in another State.”
18 U.S.C.A. § 228(a)(1). Upon conviction by the magistrate judge, Fields
appealed to the district court, arguing that, because the CSRA punishes only the
“willful” failure to pay support to an out-of-state child, he could not be convicted
of violating the statute without proof he knew his son resided in another state.2
The district court assumed, for purposes of the appeal, that Fields did not
have such knowledge, but affirmed his conviction nonetheless. The court held
that the statute’s requirement that the child reside in another state is merely
jurisdictional, mandating proof only that the child resided in another state, not that
1
The magistrate judge found that Holland was “taking measures to hide her wherabouts.”
2
Fields consented to be tried by a magistrate judge without a jury. The magistrate held
that the government need not prove Fields knew his son resided in another state. Fields appealed
to the district court, as required by18 U.S.C. § 3402.
3
the defendant knew this fact, citing United States v. Feola, 420 U.S. 671(1975);
United States v. Monts, 311 F.3d 993 (10th Cir. 2002) and United States v. Lewko,
269 F.3d 64 (1st Cir. 2001). We review this conclusion of law de novo. United
States v. Brehm, 442 F.3d 1291, 1299 (11th Cir. 2006).
II.
Courts of appeals have held that the elements of the CSRA are (1) a willful
(2) failure to pay (3) a past due support obligation (4) to a child who resides in
another state. United States v. Namey, 364 F.3d 843, 847 (6th Cir. 2004); United
States v. Russell, 186 F.3d 883 (8th Cir. 1999); United States v. Johnson, 114 F.3d
476, 482 (4th Cir. 1997). We have held that the “willfulness” element of the CSRA
requires the government to prove that the “law imposed a duty on the defendant,
that the defendant knew of this duty, and that he voluntarily and intentionally
violated that duty.” United States v. Williams, 121 F.3d 615, 621 (11th Cir. 1997);
United States v. Brand, 163 F.3d 1268, 1275 (11th Cir. 1998).
Fields argues that the statute’s “willfulness” requirement applies to both the
“failure to pay” and to the “child who resides in another State” elements. Thus, he
contends that the government was required to prove both that he knew he had a
legal duty to pay a past due support obligation, and that he knew that the duty to
pay was to a child who resides in another state. The government argues that no
4
mental state is required with respect to the latter element because it is “merely
jurisdictional,” requiring an interstate nexus only to permit Congress to
criminalize the failure to pay child support.
The district court adopted the government’s interpretation of the statute,
holding that the “child who resides in another State” element is only a
jurisdictional hook, relying upon Monts and Lewko. Both of these courts,
however, addressed only the constitutionality of the CSRA as an exercise of
Congress’ commerce power, holding that proof of the out-of-state residence of the
child was sufficient to confer federal jurisdiction. See Monts, 311 F.3d at 997;
Lewko, 269 F.3d at 68. Neither court addressed the separate question – raised here
– whether defendant’s knowledge of the child’s out-of-state residence is required
for conviction under the statute, because in neither Monts nor Lewko was this issue
presented.3
The Supreme Court has made clear, however, that a jurisdictional element
may be more than”merely jurisdictional.” In examining the federal statute
criminalizing assault on a federal officer, the Court noted that a jurisdictional
element may require proof that “the existence of the fact that confers federal
3
In both these cases, the non-paying parent knew the child resided out-of-state. Monts,
311 F.3d at 995; Lewko, 269 F.3d at 65-66.
5
jurisdiction . . . be one in the mind of the actor at the time he perpetrates the act
made criminal by the federal statute.” Feola, 420 U.S. at 677. In deciding
whether the assault statute requires proof not only that the victim was a federal
officer (the fact conferring federal jurisdiction), but also that the defendant knew
this fact, the Court said that labeling the federal agent element “jurisdictional”
begs the question whether “it is jurisdictional only.” 420 U.S. at 678 (emphasis
added).
The issue, then, with respect to the proper interpretation of the CSRA is
whether its jurisdictional element is jurisdictional only; or does the statute’s
requirement for willfulness apply to this element, mandating that the existence of
the fact that confers federal jurisdiction – the child’s out-of-state residence – be in
the mind of the CSRA defendant when he fails to pay his past-due child support
obligation.4
The answer cannot be found in the language of the statute. The CSRA
criminalizes a willful failure to pay a support obligation with respect to a child
who resides in another state. Whether the requirement for “willfulness” applies
only to the “failure to pay,” or whether it also applies to the “child who resides out
4
Although citing Feola, the district court appears to have concluded that Mont and Lewko
resolved all issues in the case.
6
of state” element, is not apparent on the face of the statute.
In reviewing a similarly-worded statute, the Supreme Court noted that the
scope of an adverb dictating the requisite intent that is followed by multiple
elements of the offense is virtually always ambiguous. Liparota v. United States,
471 U.S. 419, 425 n.7 (1985) (“‘As a matter of grammar the statute is ambiguous;
it is not at all clear how far down the sentence the word ‘knowingly’ is intended to
travel – whether it modifies “sells,” “sells a security,” or “sells a security without a
permit.’”) (quoting W. LaFave & A. Scott, Criminal Law § 27 (1972)). In United
States v. Hayes Int’l Corp., we relied upon Liparota to find a similarly-worded
statute ambiguous. 786 F.2d 1499, 1502 (11th Cir. 1986).
In the absence of any plain meaning of the statutory language, we look to
the legislative history of the statute to determine whether Congress provided any
guidance concerning its intent. See Liparota, 471 U.S. at 424 (“The definition of
the elements of a criminal offense is entrusted to the legislature, particularly in the
case of federal crimes, which are solely creatures of statute”). For example, in
Feola, the federal assault statute contained no strict scienter requirement
indicating whether the element conferring federal jurisdiction – the federal status
of the officer assaulted – need be known by the defendant at the time of the
assault. 420 U.S. at 678-79. In considering the issue, the Court wrote:
7
If the primary purpose is to protect federal law enforcement
personnel, that purpose could well be frustrated by the imposition of a
strict scienter requirement. On the other hand, if [the statute] is seen
primarily as an anti-obstruction statute, it is likely that Congress
intended criminal liability to be imposed only when a person acted
with the specific intent to impede enforcement activities. Otherwise,
it has been said: ‘Were knowledge not required in obstruction of
justice offenses described by these terms, wholly innocent (or even
socially desirable) behavior could be transformed into a felony by the
wholly fortuitous circumstance of the concealed identity of the person
resisted.’
Id.
After examining the statute’s legislative history, the Court concluded that
Congress intended the statute to protect both federal officers and federal functions,
and that interpreting the statute not to have a “strict scienter” requirement would
be consistent with both purposes. Id. at 679.
With respect to the CSRA, however, Congress not only included a “strict
scienter” requirement in the statute by the insertion of the “willfully” element, but
expressly stated its intention that conviction under the statute require the same sort
of specific intent to commit the crime that is required for conviction under a tax
statute. See H.R. Rep. No. 102-77, at 6 (1992) (citations omitted). The House
Report states that the CSRA’s “willfully fails to pay” language was “borrowed
from the tax statutes that make willful failure to collect or pay taxes a Federal
crime,” and that “the willful failure standard of [the CSRA] should be interpreted
8
in the same manner that Federal courts have interpreted these felony tax
provisions.” Id.
The House Report specifically cites United States v. Birkenstock, 823 F.2d
1026, 1028 (7th Cir. 1987) as illustrative of the sort of scienter it intended the
CSRA’s “willful” element to require. In Birkenstock, the Seventh Circuit held that
the federal tax statutes are specific intent crimes, requiring for conviction not only
that the defendant intended the act charged, but also that he intended to violate the
law. 823 F.2d at 1028. The court said that “[t]he willfulness element . . . requires
proof of an ‘intentional violation of a known legal duty.’” Id. (quoting United
States v. Pomponio, 429 U.S. 10, 12 (1976)).5
But what is the legal duty imposed by the CSRA that must be known to the
defendant? The government argues that the legal duty Fields violated –
undisputedly known to him – was to pay the state court-ordered child support
5
In consulting this legislative history to assist us in ascertaining congressional intention
behind the insertion into the CSRA of the “willful” element, we do not mean to abdicate our
judicial duty to determine “what the statute itself says,” as Judge Carnes’ emphasizes in his
concurrence. We find nothing with which to disagree in the concurrence; but find the concern
expressed there to be inapplicable to the case before us, in which the committee report “explicitly
recognizes and addresses [the] interpretive problem” at issue, and there is no indication in the
legislative history that “the report is not a reliable indicator of congressional intent.” In such a
case, we may consider the report in reaching our conclusions about congressional intent. See
Feola, 420 U.S. at 680-81 (relying upon a committee report consisting almost in its entirety of a
letter from the Attorney General to the Chairman of the Senate Committee on the Judiciary
urging passage of the federal assault statute and stating that it was “needed for the protection of
Federal officers and employees”).
9
obligation. There is no doubt that this knowledge is required, and we have
previously so held. See Brand, 163 F.3d at 1275 (“the plain language of the state
court order was therefore sufficient to charge Brand with knowledge of his duty to
pay”). See also United States v. Mathes, 151 F.3d 251, 255 (5th Cir. 1998)
(knowledge of duty to pay element of crime); United States v. Crawford, 115 F.3d
1397 (8th Cir. 1997) (sufficient evidence that Crawford knew he was required to
make support payments pursuant to court order). In none of these cases, however,
did the defendant contend that, in addition to knowing he had a duty to pay
support to his child, he also had to know that he had a duty to a child who resided
in another state.6 This is what Fields contends – that the legal duty imposed by the
CSRA that must be known to him is to pay the child who resides in another state.
The question, then, is whether the CSRA imposes a legal duty to pay a child
support obligation – as the government contends – or whether it imposes a legal
duty to pay a child support obligation to a child who resides in another state? So
6
In most of these cases, it is the non-paying parent who has left the jurisdiction of the
court-ordered obligation. In fact, the ability to enforce state-ordered support obligations across
state lines to reach the “deadbeat dad” who has fled the jurisdiction was the impetus for the
statute. See Deadbeat Parents Punishment Act, 18 U.S.C. § 228(a)(3). See United States v.
Hopper, 899 F. Supp. 389, 394 (S.D. Ind. 1995) (“It appears that the CSRA was aimed at
providing a tool for enforcement authorities to prosecute ‘runaway’ parents who flee a
jurisdiction to avoid state enforcement of child support obligations”). The statute has been held,
however, to apply equally to the case where the child leaves the jurisdiction of the state-ordered
obligation. Id. See also United States v. Mussari, 95 F.3d 787, 790 (9th Cir. 1996).
10
put, the answer is obvious. The state court orders the child support obligation. No
federal court can do so. Congress may criminalize the failure to perform that
state-ordered obligation when, and only when, the child resides in another state.
In enacting the CSRA, Congress created a new legal duty – the duty to pay when
the child resides out of state – and criminalizes the failure to do so. Since
Congress has indicated that, like the tax laws, it intended the CSRA to punish only
the violation of a known legal duty, we conclude that, in order to prove a willful
violation of the statute, the government must prove that the defendant knew his
child resided in another state and he refused to pay.
This interpretation of the statute finds support in Bryan v. United States, 524
U.S.184, 194 (1998), in which the Supreme Court clarified the requisite mens rea
to satisfy a non-tax statute containing a willfulness element. The Court first said
that, unlike the more technical tax laws, knowledge of the specific statute may not
be necessary to prove its willful violation. Id. at 194-95. Always required,
however, is “knowledge of the facts that constitute the offense.” Id. at 193.
Unless the defendant has knowledge of the facts constituting the offense, he
cannot be said to have acted with the requisite willfulness to violate the law. Id. at
196. See Morisette v. United States, 342 U.S. 246, 271 (1952) (willfulness
requires knowledge of the facts, though not necessarily the law, that made the
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conduct a crime). In this case, it is assumed that Fields did not know that his child
resided in another state. Therefore, he did not have knowledge of the facts
constituting the offense and could not have had the requisite willfulness to support
his conviction.
This conclusion is buttressed by the fact that Fields’ failure to pay his child
support obligation was not a crime at all in the state that ordered it – Georgia.
Georgia has not criminalized such a failure. Therefore, the only crime Fields may
have committed was a newly-created federal one, which he had no way of
knowing he was committing unless he knew that his child resided out of state.7
The “danger of ensnaring individuals engaged in apparently innocent
conduct,” is exactly the reason that knowledge of a legal duty imposed by the tax
code is required in order to convict the felony tax defendant. Bryan, 524 U.S. at
194. It is also a danger recognized by the Court in Feola. As the Court said there,
without a scienter requirement, “wholly innocent behavior” can be “transformed
into a felony by [a] wholly fortuitous circumstance” – in this case, the removal of
the child from the state by the custodial parent. While it is true that the failure to
7
This is not to say that Fields had to have knowledge of the CSRA statute itself. In
rejecting this argument, the Second Circuit has held that, unlike many tax statutes, knowledge of
the specific statute is not required for conviction under the CSRA. United States v. Mattice, 186
F.3d 219, 226 (2d Cir. 1999). While we express no opinion on this issue, we note that it is
distinct from the question of whether knowledge of the child’s out-of- state residence is required
and was not addressed in Mattice.
12
pay child support is not “innocent” conduct, nor is it criminal conduct in Georgia.
This Georgia civil obligation becomes a federal crime only when the custodial
parent moves, secretly or openly, to another state. Holland removed this child
from Georgia after some support payments were past due. This removal was
neither Fields’ doing, nor known to him – indeed, as the magistrate found, the
removal was hidden from him. Nonetheless, Holland’s removal of the child from
Georgia caused Fields’ prior conduct to become criminal. In such circumstances,
it cannot be said that his violation of the statute was willful, and the statute must
not be interpreted to permit such a result.
III.
The district court upheld Fields’ conviction because it interpreted the CSRA
to permit his conviction without his knowledge of the out-of-state residence of the
child to whom support is owed. Because we hold that the statute requires such
knowledge, we reverse the judgment of the district court and reverse Fields’
conviction.
REVERSED.
13
CARNES, Circuit Judge, concurring:
I join the judgment of this Court and all of the majority’s opinion, except its
statements equating a committee of the House of Representatives with the entire
Congress. In one place the opinion says that Congress “expressly stated its
intention” about the willfulness requirement of the Child Support Recovery Act in
the report of the House Judiciary Committee about that legislation. Maj. Op. at 8.
In another place the opinion refers to what “Congress has indicated” and it does
so in a way that appears to equate the House Judiciary Committee with Congress.
Maj. Op. at 10–11.
No committee of either house of Congress is the whole of it, and no
committee of either house speaks for the legislative branch or all of its members,
or even for a majority of them. The reports of committees are not instructions or
statements from Congress. They are not part of the law. When the meaning of a
statute is unclear and resort to the usual canons of construction do not solve the
interpretative problem, courts sometimes consult congressional committee reports
for some evidence of the meaning of the problematic language. That we do so is a
reflection of our desire to consider all possible sources of information; it is not a
testament of the reliability of committee reports as indicators of the intent of the
whole legislative body.
14
For one thing, there often will not be a common congressional intent behind
ambiguous language. The problem with a statute’s wording and the issue that
wording presents may not have been recognized and brought up for discussion
while the bill was being considered, or the language may have been deliberately
engineered for ambiguity in order to paper over disagreement about an issue.
Even when a committee report explicitly recognizes and addresses an
interpretative problem, the report is not always a reliable indicator of
congressional intent. In the best case scenario a committee report may indicate
what a majority of that committee’s members thought about a particular issue that
was less than artfully addressed in the bill itself, but in many cases the report
indicates only what a few members, or some staffers, or some lobbyists, thought or
wished the bill said.
For an illustration of why we should not view committee reports as
instructions from Congress, one can hardly do better than this enlightening
exchange between two Senators, quoted in an opinion that Justice Scalia wrote
when he was on the D.C. Circuit Court of Appeals:
Mr. ARMSTRONG. . . . My question, which may take [the chairman
of the Committee on Finance] by surprise, is this: Is it the intention of
the chairman that the Internal Revenue Service and the Tax Court and
other courts take guidance as to the intention of Congress from the
committee report which accompanies this bill?
15
Mr. DOLE. I would certainly hope so. . . .
Mr. ARMSTRONG. Mr. President, will the Senator tell me whether
or not he wrote the committee report?
Mr. DOLE. Did I write the committee report?
Mr. ARMSTRONG. Yes.
Mr. DOLE. No; the Senator from Kansas did not write the committee
report.
Mr. ARMSTRONG. Did any Senator write the committee report?
Mr. DOLE. I have to check.
Mr. ARMSTRONG. Does the Senator know of any Senator who
wrote the committee report?
Mr. DOLE. I might be able to identify one, but I would have to
search. I was here all during the time it was written, I might say, and
worked carefully with the staff as they worked. . . .
Mr. ARMSTRONG. Mr. President, has the Senator from Kansas, the
chairman of the Finance Committee, read the committee report in its
entirety?
Mr. DOLE. I am working on it. It is not a bestseller, but I am working
on it.
Mr. ARMSTRONG. Mr. President, did members of the Finance
Committee vote on the committee report?
Mr. DOLE. No.
Mr. ARMSTRONG. Mr. President, the reason I raise the issue is not
16
perhaps apparent on the surface, and let me just state it: . . . . The
report itself is not considered by the Committee on Finance. It was
not subject to amendment by the Committee on Finance. It is not
subject to amendment now by the Senate.
....
. . . If there were matter within this report which was disagreed to by
the Senator from Colorado or even by a majority of all Senators, there
would be no way for us to change the report. I could not offer an
amendment tonight to amend the committee report.
. . . [F]or any jurist, administrator, bureaucrat, tax practitioner, or
others who might chance upon the written record of this proceeding,
let me just make the point that this is not the law, it was not voted on,
it is not subject to amendment, and we should discipline ourselves to
the task of expressing congressional intent in the statute.
Hirschey v. F.E.R.C. , 777 F.2d 1, 7 n.1 (D.C. Cir. 1985) (Scalia, J., concurring)
(quoting 128 Cong. Rec. S8659 (daily ed. July 19, 1982)) (alterations in original).
We should never forget that the law is what the statute itself says after it is
approved by both houses of the legislature and signed by the President. Aldridge
v. Williams, 44 U.S. (3 How.) 9, 24 (1845) (“The law as it passed is the will of the
majority of both houses, and the only mode in which that will is spoken is in the
act itself . . . .”). Committee reports are not voted on by the house in which they
originate, much less by the other house; they are not statements from Congress as
a whole; they are not signed into law by the President; they are not the law.
17