08-1818-cr
USA v. Kerley
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2007
(Argued June 13, 2008 Decided September 25, 2008)
Docket No. 07-1818-cr
----------------------------------------------------
United States of America
Appellee,
v.
Clifford Kerley
Defendant-Appellant.
----------------------------------------------------
Before: JACOBS, Chief Judge, POOLER, Circuit Judge, and
RESTANI, * Judge
Defendant-Appellant Clifford Kerley appeals from a
judgment, entered after a jury trial in the United States
District Court for the Southern District of New York
(Loretta A. Preska, Judge), convicting him of two counts of
willful failure to pay a child support obligation in
violation of 18 U.S.C. § 228(a)(3) (2000). Affirmed in
part, vacated in part, and remanded for resentencing.
*
The Honorable Jane A. Restani, Chief Judge of the
United States Court of International Trade, sitting by
designation.
COLLEEN P. CASSIDY, Federal
Defenders of New York, Inc.,
Appeals Bureau (Barry D.
Leiwant, Attorney-in-Charge),
New York, NY for Defendant-
Appellant.
HARRY A. CHERNOFF, Assistant
United States Attorney
(Katherine Polk Failla,
Assistant United States
Attorney, on the brief), for
Michael J. Garcia, United States
Attorney for the Southern
District of New York, New York
NY for Appellee.
RESTANI, Judge:
This appeal arises from a conviction of two counts
of willful failure to pay a child support obligation in
violation of 18 U.S.C. § 228(a)(3). A jury found defendant-
appellant Clifford Kerley guilty of failing to make support
payments for his twin daughters in accordance with a court
order. The issues on appeal are whether (1) the district
court erroneously precluded his good faith defense, (2) the
second count was multiplicitous, and (3) the district court
incorrectly applied the United States Sentencing Guidelines
(“Guidelines”). Several questions of first impression are
presented, including (1) whether violation of a single child
support order which covers two children gives rise to one or
2
two violations of 18 U.S.C. § 228; (2) in what circumstances
the child victim of a failure to pay child support is a
“vulnerable victim” for the purpose of an enhancement under
U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 3A1.1(b)(1)
(2006); and (3) whether the “loss amount” of a failure to
pay child support includes all arrears or only the amount
the defendant could have paid out of his income. For the
following reasons, we affirm the conviction on the first
count, we vacate the conviction on the second count, and we
remand for resentencing.
BACKGROUND
In 1988, Kerley and Judith Lopez engaged in an
extramarital affair that resulted in the birth of twin
girls. 1 The relationship ended before the children were
born, and Lopez received public assistance after the
children’s births. In 1990, the Commissioner of Social
Services of the City of New York commenced a proceeding
against Kerley, seeking child support payments. Kerley
1
The twins were born in 1989. Kerley relies on
Lopez’s testimony that she became pregnant in 1987 as
support for his good faith belief in lack of paternity, but
he admitted that the affair occurred in 1988, and nothing
indicates that he ever challenged our prior statement to
that effect, see United States v. Kerley, 416 F.3d 176, 177
(2d Cir. 2005).
3
denied paternity and requested a blood test. The New York
State Family Court scheduled a blood test for May 2, 1990,
and a hearing on the issue of paternity for July 6, 1990,
but apparently Kerley did not appear on either day. On July
6, the Family Court entered filiation orders as to the
children and a default support order directing Kerley to
make monthly child support payments of $737 for both
children.
Without making any payments, Kerley moved to
Indiana with his wife and their children in 1991. In 1995,
after receiving notice that he owed support payments, Kerley
filed a pro se motion in New York State Family Court seeking
to reopen the matter to vacate the filiation and support
orders. He claimed that this was the first time he became
aware of the support obligation. In an affidavit, he stated
that he arrived late to the July 6 hearing and denied
filiation. The Family Court denied the motion.
In 1996, the New York City Office of Child Support
Enforcement began garnishing Kerley’s wages. 2 The
garnishments ceased in 1997, apparently due to a merger
involving the employer, but resumed in 2000. In June 2000,
2
A wage garnishment also occurred in 1992.
4
Kerley quit his job and, between then and July 2002, changed
jobs several times. The Government contended that he did so
to avoid the wage garnishments, but Kerley claimed that a
1999 injury prevented him from carrying out his job
functions. By the time of his arrest on July 29, 2002,
Kerley owed over $106,000 in arrears. The only support
payments made were from wage and tax garnishments.
Kerley waived indictment, and the Government
charged him in an information with one count of failure to
pay a support obligation. During an innocence proffer,
Kerley told the Government that he did not make payments
because he did not believe he was the father of the
children. Before trial, Kerley moved to dismiss the
information, arguing that the support order was
jurisdictionally defective. The district court granted the
motion, United States v. Kerley, No. 02-cr-1529, 2004 WL
1555119 (S.D.N.Y. July 9, 2004), but we reversed and
remanded the matter, United States v. Kerley, 416 F.3d 176,
184 (2d Cir. 2005). On remand, the Government filed a
superseding indictment charging Kerley with two counts of
the offense.
At trial, the disputed issue was whether Kerley’s
5
failure to make the support payments was willful. 3 The
Government argued that Kerley was able to make the payments,
but arranged his financial circumstances to avoid the
obligation. The Government presented evidence to show that
Kerley changed jobs and remained unemployed to avoid the
wage garnishments, and that Mrs. Kerley’s income provided
Kerley with a comfortable lifestyle. Although the parties
stipulated that Mrs. Kerley’s income could not be used to
pay the obligation, the court allowed it to be used as
evidence of Kerley’s financial circumstances.
Kerley stated that he did not make the payments
because he believed that he was in compliance with the
support order. He testified that in 1996, an Indiana
attorney advised him that the wage garnishments put him in
compliance with the order. 4 He also testified that he
thought “something happened” with his 1995 motion when the
wage garnishments stopped in 1997. Trial Tr. 258:20 (Aug.
1, 2006).
3
The relevant period was from June 24, 1998, when
18 U.S.C. § 228(a)(3) came into effect, and July 29, 2002,
the date of Kerley’s arrest.
4
Interestingly, Kerley testified that he also asked
about joint custody.
6
The jury found Kerley guilty of both counts of the
offense. Applying the Guidelines, the district court
sentenced Kerley to forty-one months of imprisonment for
both counts. 5 Kerley appeals. We have jurisdiction under
28 U.S.C. § 1291.
DISCUSSION
Kerley argues that the district court improperly
precluded his good faith defense, that the conviction on the
second count is based on a multiplicitous indictment, and
that the district court incorrectly applied Guidelines
enhancements.
A. Good Faith Defense
Kerley argues that he sought to present at trial
his good faith belief that he was not the father of the
children and therefore thought he did not have to make
support payments, but that the district court precluded him
from presenting this defense. He contends that the district
court erred in refusing to instruct the jury on the good
faith defense upon the ground that any good faith had to be
objectively reasonable, and further erred in instructing the
5
The Guidelines sentencing range should have been
calculated at forty-six to fifty-seven months, but the
Government miscalculated the sentence.
7
jury to disregard his theory of the defense. The arguments
lack merit.
Preliminarily, we reject the Government’s claim
that because Kerley negotiated and resolved the objections
he initially raised, he waived his challenge to the district
court’s instruction on willfulness. In “accepting” the
court’s proposed charge, counsel for Kerley stated, “I would
prefer the language in my instructions, but your Honor
rules, so I will sit down.” Trial Tr. 54:13–15 (July 31,
2006). The objection is preserved.
Similarly, contrary to the Government’s
contention, it is unclear that Kerley never asserted belief
in lack of paternity as the theory for his good faith
defense. He claims that he abandoned his good faith
argument because of the district court’s rulings and jury
instructions. The record shows that Kerley intended to
present evidence that he did not believe the paternity
finding and at one point tried to overturn it. See Trial
Tr. 25:24—27:7, 71:10—75:4 (July 31, 2006); Notice of Mot.
to Vacate Default Order. For purposes of this disposition,
we treat the defense as preserved.
We review challenges to jury instructions de novo.
8
United States v. Bok, 156 F.3d 157, 160 (2d Cir. 1998). A
conviction will be reversed for refusal to give a requested
charge only if the requested instruction is “legally
correct, represents a theory of defense with basis in the
record that would lead to acquittal, and the theory is not
effectively presented elsewhere in the charge.” United
States v. Doyle, 130 F.3d 523, 540 (2d Cir. 1997) (citations
and quotations omitted). We review jury instructions as a
whole. United States v. Carr, 880 F.2d 1550, 1555 (2d Cir.
1989).
Under 18 U.S.C. § 228, “[a]ny person who . . .
willfully fails to pay a support obligation” is subject to a
fine, imprisonment, or both. 18 U.S.C. §§ 228(a)(3),
(c)(2). The willfulness standard is borrowed from the tax
statutes and is “interpreted in the same manner that the
Federal courts have interpreted [the] felony tax
provisions.” United States v. Mattice, 186 F.3d 219, 225
(2d Cir. 1999) (quoting H.R. Rep. No. 102-771, at 6 (1992)).
Therefore, “willfulness” under § 228 means a “voluntary,
intentional violation of a known legal duty.” Id.
(quotations omitted); see Cheek v. United States, 498 U.S.
192, 201 (1991) (interpreting willfulness standard in tax
9
statute). A defendant found to have acted willfully may
negate willfulness by showing ignorance of the law or that,
because of a misunderstanding of the law, he had a good
faith belief that he was not violating the legal duty. See
Cheek, 498 U.S. at 202. A good faith belief need not be
objectively reasonable to negate willfulness. See id.
The district court instructed the jury on
willfulness as follows:
The term willfully as it pertains to this
element means a voluntary, intentional
violation of a known legal duty. In
other words, the defendant must have
acted voluntarily and intentionally and
with the intent to do something the law
forbids. That is to say with a purpose
either to disobey or disregard the law,
not as a result of inadvertence, mistake
or some other innocent explanation. . . .
[Y]ou must . . . find the defendant
possessed the specific intent not to pay
the support obligation.
Trial Tr. 422:19—25, 424:10—12 (Aug. 2, 2006). Read as a
whole, the instructions captured the essence of a good faith
defense. The instructions do not imply a requirement that a
good faith defense must be objectively reasonable.
As to Kerley’s argument that the district court
instructed the jury to disregard his good faith defense, the
court actually instructed the jury neither to consider the
10
validity of the child support order nor to consider whether
the defendant was actually the father. 6 The court, however,
did not preclude the jury from considering Kerley’s state of
mind with regard to the mens rea required by the statute.
There was considerable evidence admitted as to Kerley’s
state of mind. The prosecution itself offered testimony as
to Kerley’s claim that he was not the father. Kerley’s
statement that he thought something had changed in New York
to cause wage garnishment to cease implied that he was
unsure of the status of the support order. While counsel
chose to emphasize Kerley’s negligence to counter the charge
of willfulness, the court did not limit the evidence and
counsel’s arguments to the extent Kerley now asserts. We
find no reversible error in this regard.
B. Multiplicitous Count
Kerley argues that the second count must be
vacated because it is multiplicitous and violates the Double
Jeopardy Clause. He contends that he violated only one
support order and that because § 228 does not clearly
6
Kerley also sought to introduce statements in an
affidavit in support of his good faith defense, but the
court excluded them on hearsay grounds. The exclusion of
those statements is not challenged on appeal.
11
authorize cumulative punishments for each child covered by a
support order, the “rule of lenity” requires that the
statute be interpreted to preclude multiple counts.
The district court concluded that “[t]he plain
language of the statute makes it clear that the crime is a
failure to pay support obligation with respect to a child”
and that the crime “is not in any manner keyed to the Court
order.” Sentencing Tr. 34:7—10. The court continued that
“[t]he requirement that each child be supported was embodied
in a single order cannot be the basis for a double jeopardy
argument” and therefore “the fact that there . . . are two
children[] makes it completely appropriate for there to be
two counts.” Id. at 34:12—16. We review the district
court’s interpretation of the statute de novo. See United
States v. Mitchell, 328 F.3d 77, 81 (2d Cir. 2003).
“An indictment is multiplicitous when it charges a
single offense as an offense multiple times, in separate
counts, when, in law and fact, only one crime has been
committed.” United States v. Chacko, 169 F.3d 140, 145 (2d
Cir. 1999). Where a statutory offense is charged as two
separate counts, we must determine “whether Congress
intended the counts to constitute separate ‘units of
12
prosecution.’” United States v. Handakas, 286 F.3d 92, 98
(2d Cir. 2002) (alterations omitted) (quoting Bell v. United
States, 349 U.S. 81, 82—83 (1955)), overruled on other
grounds by United States v. Rybicki, 354 F.3d 124 (2d Cir.
2003). If Congress leaves a statute ambiguous as to the
proper unit of prosecution, “the ambiguity should be
resolved in favor of lenity.” Bell, 349 U.S. at 83. Under
the rule of lenity, courts may not “turn[] a single
transaction into multiple offenses . . . .” Id. at 84.
Section 228 criminalizes willful failure to pay “a
support obligation with respect to a child . . . .” 18
U.S.C. § 228(a)(3). The statute defines “support
obligation” as “any amount determined under a court order
. . . to be due from a person for the support and
maintenance of a child . . . .” Id. § 228(f)(3). The
statute does not specify whether failure to pay a support
obligation with respect to multiple children constitutes
multiple offenses. See id. § 228. The parties have not
cited any relevant legislative history to support such a
reading. It is not so clear to us that Congress meant to
distinguish “support obligation” and “court order” as the
Government suggests and the district court concluded, and it
13
is possible that Congress proceeded under the assumption
that each court order would mandate payment for only one
child. See, e.g., id. §§ 228(a)(3), (f)(3). 7 We have
stated that “as a matter of statutory construction, we are
reluctant to turn a single transaction into multiple
offenses. We therefore impute to Congress the intent to
impose separate punishments for the same underlying conduct
only when Congress has clearly articulated that intent.”
United States v. Salameh, 261 F.3d 271, 278 (2d Cir. 2001)
(quotations, citations and alterations omitted); see also
United States v. Santos, 128 S. Ct. 2020, 2026 (2008) (“When
interpreting a criminal statute, we do not play the part of
a mind reader. . . . ‘Probability is not a guide which a
court, in construing a penal statute, can safely take.’”
(alteration omitted) (quoting United States v. Wiltberger, 5
Wheat. 76, 105 (1820))). Because Congress failed to specify
the proper unit of prosecution, the rule of lenity requires
that we interpret the statute in favor of Kerley. 8 See
7
Here, the court order itself is ambiguous as to
whether Kerley owed one support obligation in the sum of
$737 monthly or two separate obligations in the amount of
$368.50 for each child.
8
The Government’s argument that Congress’s use of “a”
(continued...)
14
Bell, 349 U.S. at 83 (holding that transportation of two
women on the same trip and in the same vehicle in violation
of the Mann Act constituted a single offense). We vacate
the conviction on the second count and remand the matter to
the district court for resentencing on the basis of a
conviction for one count. 9
C. Sentencing
Kerley challenges the court’s application of the
“vulnerable victim,” “loss amount,” and “obstruction of
justice” Guidelines enhancements. We review the district
court’s findings of fact for clear error and accord
deference to the court’s application of the Guidelines to
the facts. United States v. Dupre, 462 F.3d 131, 144 (2d
Cir. 2006). We review the district court’s interpretation
of the Guidelines de novo. United States v. Maloney, 406
8
(...continued)
instead of “any” renders the statute unambiguous lacks
merit. Contrary to the Government’s argument, the Bell
court’s finding that the statute at issue there was
ambiguous did not hinge on the use of the word “any.” See
Bell, 349 U.S. at 81–84. The Government’s argument that
such an interpretation of the statute at issue here would
provide a more lenient result in favor of the defendant is
unpersuasive.
9
We need not consider Kerley’s prosecutorial
vindictiveness claim in light of our disposition of the
issue under the rule of lenity.
15
F.3d 149, 151—52 (2d Cir. 2005).
1. “Vulnerable Victim” Enhancement
Kerley argues that the circumstances here do not
warrant application of the vulnerable victim enhancement.
To the extent that the enhancement applies to child support
cases, we agree that its requirements have not been met.
The vulnerable victim enhancement applies where
“the defendant knew or should have known that a victim of
the offense was a vulnerable victim.” U.S.S.G.
§ 3A1.1(b)(1). A “vulnerable victim” is defined as one “who
is unusually vulnerable due to age, physical or mental
condition, or who is otherwise particularly susceptible to
the criminal conduct.” Id. § 3A1.1 cmt. n.2. The
vulnerability “must bear some nexus to the criminal conduct”
and “the defendant generally must have singled out the
vulnerable victims from a larger class of potential
victims.” United States v. McCall, 174 F.3d 47, 50 (2d Cir.
1998). An inquiry into a victim’s vulnerability must be
“individualized” and must not be based on “broad
generalizations about victims based upon their membership in
a class . . . .” Id.
The district court found that the twins were
16
particularly susceptible to the criminal conduct because
their mother was a recent immigrant without financial
resources or family support. The court noted that Kerley
was aware of this situation and distinguished this case from
those where “the custodial parent has adequate resources.”
Sentencing Tr. 26:2—3. The court concluded that Kerley
targeted the children for nonpayment because they were
“destitute and unable to pursue” him. Id. at 26:7.
The circumstances relied upon by the district
court are insufficient to distinguish these children from
the typical subjects of child support cases. The children
were not rendered less capable of avoiding nonpayment by
their condition of poverty, as state and local authorities
were pursuing Kerley on their behalf. To the extent that
one of the children has a disability, as alleged by the
Government, there is no evidence that Kerley knew or should
have known of the disability, or that Kerley targeted her
because of the disability. Instead, the evidence shows that
Kerley refused to make payments because he was interested
only in his own situation and his immediate family. Kerley
did not maliciously refuse to support his twin daughters
because of who they were; his crime was that he failed to
17
consider them at all. There was no nexus between the twins’
individual circumstances and Kerley’s failure to fulfill the
support order, and therefore the vulnerable victim
enhancement does not apply.
2. “Loss Amount” Enhancement
Kerley argues that the district court erred in
deeming the total arrears as the loss amount for Guidelines
purposes. He claims that the loss amount should be the
amount that he was able to pay and that, according to the
evidence, it should be substantially less than the court’s
calculated amount of $152,491. 10 This argument lacks
merit. 11
10
Under the enhancement, the base offense level
increases in proportion to the loss amount as follows:
(A) $5,000 or less no increase
(B) More than $5,000 add 2
(C) More than $10,000 add 4
(D) More than $30,000 add 6
(E) More than $70,000 add 8
(F) More than $120,000 add 10
(G) More than $200,000 add 12
U.S.S.G. § 2B1.1(b)(1).
11
Kerley also argues that the court erroneously
applied the “unconstitutional” presumption that he was able
to pay the total arrears. Section 228 provides that “the
existence of a support obligation . . . creates a rebuttable
presumption that the obligor has the ability to pay the
(continued...)
18
The Guidelines define “loss amount” as “the amount
of child support that the defendant willfully failed to
pay.” U.S.S.G. § 2J1.1 cmt n.2. The failure to pay is
willful to the extent that the defendant had the ability to
pay. See Mattice, 186 F.3d at 228—29. The extent of the
ability to pay depends on the income left over “after
meeting [the] basic subsistence needs . . . .” Id. at 229.
The district court found that Kerley could have
paid the total arrears. The court reasoned that
Mrs. Kerley’s earnings provided Kerley with “a very
comfortable way of life with respect to all necessities,”
and that Kerley, an “able[-]bodied person,” could easily
have earned a higher income. Sentencing Tr. 16:3—4, 14.
From the way he organized his financial situation, the court
concluded, all his income could be deemed disposable income.
(...continued)
support obligation.” 18 U.S.C. § 228(b). Some courts have
found this presumption to be unconstitutional. See United
States v. Edelkind, No. 05-60067, 2006 WL 1453035 (W.D. La.
May 18, 2006); United States v. Casey, 05CR330, 2006 WL
277092 (D. Neb. Feb. 3, 2006) United States v. Pillor, 387
F. Supp. 2d 1053 (N.D. Cal. 2005); United States v. Morrow,
368 F. Supp. 2d 863 (C.D. Ill. 2005); United States v.
Grigsby, 85 F. Supp. 2d 100 (D. R.I. 2000). We need not
decide the constitutionality or propriety of the application
of the presumption because, as will be seen, the evidence
shows that Kerley had the ability to pay the total arrears.
19
The court found incredible Kerley’s injury claim, and
concluded that he changed jobs and stayed unemployed to
avoid the wage garnishments.
The district court’s findings are not erroneous.
Although Kerley correctly argues that his total gross income
could not all be deemed disposable income, as he paid taxes
on his gross income, and that the district court improperly
considered his subsistence needs and personal expenses as
being provided by his wife’s earnings, the evidence shows
that he could have earned a higher income but chose not to
do so. Further, Kerley’s failure to seek a reduction or
remission of the support obligation suggests willfulness.
See Mattice, 186 F.3d at 229 (“A non-custodial parent who
does not have the funds to satisfy the child support award,
and who does not obtain a reduction or remission of the
award because of inability to pay, will almost certainly be
engaged in willful defiance of the state court’s child
support order.” (quoting United States v. Ballek, 170 F.3d
871, 873 (9th Cir. 1999))). The district court did not err
in deeming the total arrears as the loss amount.
3. “Obstruction of Justice” Enhancement
Kerley argues that the district court’s finding of
20
willful perjury in support of its application of the
obstruction of justice enhancement was unsupported because
his testimony was “plausible, not contradicted, and
corroborated by Mrs. Kerley’s testimony.” Appellant’s Br.
57. This argument also lacks merit.
The obstruction of justice enhancement applies
where a “defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of
justice with respect to the investigation, prosecution, or
sentencing of the instant offense,” U.S.S.G. § 3C1.1,
including perjury, United States v. Dunnigan, 507 U.S. 87,
93—94 (1993). To apply the enhancement on grounds of
perjury, the district court must find that “all of the
factual predicates for a finding of perjury” have been
shown. United States v. Ben-Shimon, 249 F.3d 98, 102 (2d
Cir. 2001) (quoting Dunnigan, 507 U.S. at 95). The court
must “find that the defendant gave ‘false testimony
concerning a material matter with the willful intent to
provide false testimony, rather than as a result of
confusion, mistake or faulty memory . . . .’” United States
v. Zagari, 111 F.3d 307, 328 (2d Cir. 1997) (quoting
Dunnigan, 507 U.S. at 94).
21
The district court found that Kerley’s reasons for
changing jobs, his injury claim, testimony regarding the
Indiana attorney’s legal advice, and claims that he arrived
late to the July 6 hearing were perjurious. The court based
its findings on Kerley’s attitude and demeanor, inconsistent
explanations, and failure to raise the defenses during the
innocence proffer, and a lack of supporting evidence. The
district court made no clear error as to its factual
findings. 12 Further, the perjured testimony is material, as
it goes to the issue of willfulness.
CONCLUSION
For the foregoing reasons, we conclude that the
district court did not err in its rulings as to the good
faith defense, and that the rule of lenity requires that we
vacate the conviction on the second count of the offense.
We also conclude that although the district court correctly
12
The district court found a contradiction between
Kerley’s claim that his wife accompanied him on July 6 when
he attempted to appear for a hearing, and Kerley’s prior
claim that he failed to appear for the blood test because he
did not want his wife to know about the paternity
allegation. This finding is somewhat problematic. Kerley
did not give specific testimony as to timing, although it is
possible that he told his wife of the allegation between
May 2 and July 6. Nonetheless, because the other findings
are not erroneous, the obstruction of justice enhancement
stands.
22
applied the loss amount and obstruction of justice
enhancements under the Sentencing Guidelines, the court
erred in concluding that the vulnerable victim enhancement
was applicable. Accordingly, we vacate the conviction on
the second count and remand to the district court for
resentencing in accordance with this opinion.
23
United States v. Kerley
Court: Court of Appeals for the Second Circuit
Date filed: 2008-09-25
Citations: 544 F.3d 172
Copy Citations