United States v. Molak

United States Court of Appeals
For the First Circuit

No. 00-2200

UNITED STATES OF AMERICA,

Appellee,

v.

WALTER J. MOLAK, JR.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Selya, Circuit Judge,

Stahl, Senior Circuit Judge,

and Lynch, Circuit Judge.

Michael J. Lepizzera, Jr. on brief for appellant.
Margaret E. Curran, United States Attorney, Donald C.
Lockhart and Terrence P. Donnelly, Assistant United States
Attorneys, on brief for appellee.

January 9, 2002
 SELYA, Circuit Judge. Lawyers can — and often do —

wrangle over the meaning of even the most pedestrian language.

So it is here: the appellant insists that the term "child," as

used in the Child Support Recovery Act, 18 U.S.C. § 228 (1994 &

Supp. V 1999) (the Act), encompasses only persons under 18 years

of age. For its part, the government advocates a less

restrictive definition. Writing on a pristine page — no federal

appellate court has heretofore construed the meaning of the

disputed term — we reject the appellant's cramped construction

and affirm the judgment below.

The facts are for all practical purposes conceded.

Defendant-appellant Walter J. Molak, Jr. married Dorothy Caron

in 1962. The couple had two sons (born in 1966 and 1969,

respectively), but no long-term future; divorce proceedings

commenced in 1972. The next year, the Rhode Island Family Court

entered a final decree that incorporated the terms of a property

settlement agreement and dissolved the marriage. Pertinently,

the property settlement agreement obligated the appellant to pay

child support of $30 per child per week and to assume

responsibility for "the continuing education of the said minor

children . . . including their college fees."

Over the next decade, the appellant made few if any

child support payments. In 1982 — after the Family Court had

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found him in contempt and issued a warrant for his arrest — the

appellant left Rhode Island. He eventually relocated to Florida

where he continued to spurn his child support obligations even

though he had the wherewithal to defray them.

On February 12, 1993, the Family Court found that the

appellant owed $87,163 on account of child support obligations

and ordered him to pay that sum. The Rhode Island Supreme Court

affirmed the arrearage order. Molak v. Molak, 639 A.2d 57 (R.I.

1994) (per curiam). Although that judgment was served upon the

appellant and registered with the Florida courts, he made no

payments.

On February 9, 2000, a federal grand jury in the

District of Rhode Island returned a two-count indictment against

the appellant. The misdemeanor count charged that during a

period ending June 10, 1993, he "willfully fail[ed] to pay a

support obligation with respect to a child who resides in

another State, [although] such obligation has remained unpaid

for a period longer than 1 year, or is greater than $5,000." 18

U.S.C. § 228(a)(1). The felony count charged that during the

period from June 24, 1998 forward, he "willfully fail[ed] to pay

a support obligation with respect to a child who resides in

another State, [although] such obligation has remained unpaid

for a period longer than 2 years, or is greater than $10,000."

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Id. § 228(a)(3). In time, the appellant pleaded guilty to these

charges.

At the disposition hearing, held on September 11, 2000,

the district court began with the base offense level specified

in USSG §2B1.1(a); adjusted it upward because the appellant had

willfully failed to pay more than $70,000 in child support, see

id. §2B1.1(b)(1)(E); adjusted it downward for acceptance of

responsibility, see id. §3E1.1(a); noted the absence of any

previous criminal record; and established a guideline sentencing

range (GSR) of six to twelve months. The court imposed a six-

month incarcerative term, to be followed by one year of

supervised release. The court also ordered the appellant to pay

$67,163 in restitution (an amount derived by subtracting $20,000

paid by the appellant subsequent to his arrest from the figure

mentioned in the Family Court judgment). This timely appeal

followed.

In this venue, the appellant argues that the lower

court erred in calculating the amount of loss (and, therefore,

in establishing the GSR) as well as in determining the amount of

restitution owed. The gist of these related arguments is that

although the Family Court held him liable for $87,163 in

outstanding child support, that sum included amounts that

accrued after his sons turned 18 (e.g., college costs, unpaid

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child support for the period through the date of each son's

college graduation). In the appellant's view, the Act required

the district court to subtract from the Family Court's figure

the education costs incurred and the unpaid support accrued for

each child after that child turned 18.1

The appellant has a second string to his bow. He notes

that the $87,163 figure used by the Family Court includes

interest and costs, and he asseverates that such items do not

come within the purview of the Act. Accordingly, the district

court should have eliminated those portions of the Family Court

award in calculating both the amount of loss and the amount of

restitution due.

The government's response is twofold. First, it says

that we need not consider the appellant's importunings because

the case is moot. Second, it maintains that, in all events,

those importunings are groundless.

We begin with the question of mootness. Citing Spencer

v. Kemna, 523 U.S. 1 (1998), the government argues that because

the appellant has fully served his six-month prison sentence,

1
This argument does not implicate the question of guilt as
the appellant concedes that the support order in his case
included enough pre-age-18 support to trigger the statutory
thresholds that make his offenses federal crimes. See 18 U.S.C.
§ 228(a)(1) (establishing $5,000 minimum for misdemeanor
offenses); id. § 228(a)(3) (establishing $10,000 minimum for
felony offenses).

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this appeal is moot. The government's premise is correct — the

appellant no longer is incarcerated — but its conclusion does

not follow.

The Spencer Court reiterated the familiar bromide that

to avoid mootness, "[t]he parties must continue to have a

personal stake in the outcome of the lawsuit." Id. at 7

(citation and internal quotation marks omitted). The Court made

plain that an incarcerated prisoner's challenge to his

conviction always satisfies this requirement "because the

incarceration . . . constitutes a concrete injury." Id. The

Court did not imply, however, that the expiration of a prison

sentence necessarily divests the prisoner of a continuing stake

in the outcome of a challenge to his conviction. This case

shows quite clearly why it does not.

Although the appellant has fully served his jail time,

his sentence also included a one-year term of supervised

release. He is in the midst of the supervised release term — it

will not expire until March of 2002 — and, therefore, he is

still subject to that constraint. Just as a parolee would have

a continuing stake in the outcome of a challenge to the

underlying conviction and sentence because of the restriction

imposed by the terms of the parole, see Allen v. United States,

349 F.2d 362, 363 (1st Cir. 1965); see also Spencer, 523 U.S. at

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7 (dictum), so too a convicted defendant who is under an ongoing

sentence of supervised release has a continuing stake in the

outcome of a challenge to the underlying conviction and

sentence.

To cinch matters, the appellant is facing a restitution

order. The challenge that he seeks to mount directly affects

the extent of that order. The appellant thus has a demonstrable

pecuniary interest in the outcome of this appeal, and that

interest is enough to forfend the government's claim of

mootness.

Having found that a live controversy persists, we turn

to the merits of the appeal. The amount of loss is integral to

the sentence imposed. The sentencing guidelines contain an

entry for section 228 offenses that cross-references USSG §2J1.1

(governing contempt offenses) — but the Sentencing Commission

has not promulgated a guideline for section 2J1.1 offenses.

Thus, pursuant to USSG §2X5.1, a sentencing court must apply the

"most analogous" guideline. An application note to USSG §2J1.1

provides that "[f]or offenses involving the willful failure to

pay court-ordered child support (violations of 18 U.S.C. § 228),

the most analogous guideline is §2B1.1," and in that

transposition, "[t]he amount of loss is the amount of child

support that the defendant willfully failed to pay." USSG

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§2J1.1, cmt. (n.2). The lower court treated this note as

authoritative, see Stinson v. United States, 508 U.S. 36, 38

(1993); United States v. Piper, 35 F.3d 611, 617 (1st Cir.

1994), and crafted the appellant's sentence accordingly.

The appellant challenges the automatic equation of the

amount of loss with the amount of child support that a defendant

fails to pay. His thesis is that, as used in the Act, the term

"child" refers to a person under the age of 18, with the result

that Congress intended both loss and restitution under the Act

to encompass only those support obligations applicable to the

period prior to a child's eighteenth birthday. Because the

correctness of that thesis turns on a question of statutory

interpretation, we afford de novo review. Protective Life Ins.

Co. v. Dignity Viatical Settlement Partners, 171 F.3d 52, 54

(1st Cir. 1999).

As with any exercise in statutory construction, we

start with the language of the statute.2 With certain conditions

not material here (e.g., place of residency, total amount of

indebtedness), the Act criminalizes a willful failure to pay "a

2
The indictment straddles the period before and after June
24, 1998 (the effective date of the amendments contained in the
Deadbeat Parents Punishment Act of 1998, Pub L. No. 105-187, 112
Stat. 618 (1998)). For simplicity's sake, we refer to the
amended version of the Act, but our comments apply equally to
the earlier version.

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support obligation with respect to a child." 18 U.S.C. §

228(a)(3). In addition to other penalties, the Act directs the

court to "order restitution . . . in an amount equal to the

total unpaid support obligation as it exists at the time of

sentencing." Id. § 228(d). Importantly, the Act defines the

term "support obligation" as used in these antecedent sections

to mean "any amount determined under a court order . . .

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." Id. § 228(f)(3).

Although the Act does not define the term "child," that

omission is itself revealing. In ordinary usage as it pertains

to support obligations, the term "child" is not age-specific,

and there is nothing in the text of the Act to suggest that

Congress intended "child" to mean a person under the age of 18.

Common sense suggests that, had Congress intended to use the

term in so specialized a manner, it would have done so

explicitly (or, alternatively, used the word "minor" to clarify

the point). Because Congress used the more generic term "child"

without any words of limitation, we find appealing the

conclusion that Congress did not intend to confine "child" in

this context to a person of a particular age.

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 This conclusion becomes irresistible when one considers

two ancillary matters. First, Congress used the term "child" as

part of its definition of "support obligation" in section

228(f)(3). That juxtaposition makes it highly probable that

Congress intended the term "child" to refer to any child covered

by the court-ordered support obligation at issue in a given

case. This interpretation is consonant not only with the rule

that proof of a state-court child support order is sufficient,

in and of itself, to prove the existence of a support obligation

within the meaning of the Act, but also with the related rule

that a defendant in a federal case cannot relitigate the facts

underlying such a support order. See United States v. Johnson,

114 F.3d 476, 482 (4th Cir. 1997) (holding state-court child

support order conclusive and barring attempt to revisit issue of

parentage).

Second, Congress specifically defined the amount of

child support owed as "any amount determined under a court

order." 18 U.S.C. § 228(f)(3). Congress's decision to make the

amount specified in the state-court child support order

controlling lends credence to the notion that it intended to tie

the meaning of the term "child" to the particular state-court

child support order that the defendant had disregarded. This

sensible approach reflects the wise view that the states are in

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a better position than the federal government to decide, on a

case by case basis, who is a proper beneficiary of a child

support order and at what point in a child's life that

assistance should terminate.

The case at bar illustrates the point. Even though the

duty of support under Rhode Island law generally ends when a

child turns 18, there are certain recognized exceptions to that

rule. See, e.g., Pierce v. Pierce, 770 A.2d 867, 870-72 (R.I.

2001) (holding that it is within the discretion of the Family

Court to order child support beyond a child's eighteenth

birthday); see also R.I. Gen. Laws § 15-5-16.2(b). Moreover,

the Rhode Island courts will uphold more expansive terms if the

divorcing parties expressly agree to them. E.g., Cooke v.

Cooke, 623 A.2d 455, 455-56 (R.I. 1993); Ervin v. Ervin, 458

A.2d 342, 344 (R.I. 1983); Siravo v. Siravo, 424 A.2d 1047,

1050-51 (R.I. 1981).

Domestic relations and family matters are, in the first

instance, matters of state concern, Ankenbrandt v. Richards, 504

U.S. 689, 695-97 (1992), and it would be odd for Congress to

second-guess the determinations of the state courts as to the

appropriate scope of child support obligations. There is no

evidence that Congress intended to chart so curious a course;

rather, the structure of the Act and its legislative history

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indicate that Congress left such "scope" determinations to the

states while focusing on a national problem — the flouting of

child support orders by parents who flee across state lines.

See United States v. Bongiorno, 106 F.3d 1027, 1030 (1st Cir.

1997) (citing legislative history).

The case law is not very helpful, but what there is of

it favors reading the term "child" without any age limitation.

The cases make clear that Congress, in passing the Act, did not

intend to interfere with or modify the matrimonial laws of the

several states. See id. at 1033-34. With rare exceptions, this

means that federal courts, in prosecutions under the Act, should

accept state-court support orders as they are written and avoid

relitigating matters already decided in the family courts.

E.g., United States v. Brand, 163 F.3d 1268, 1276-80 (11th Cir.

1998); United States v. Black, 125 F.3d 454, 463-64 (7th Cir.

1997); Johnson, 114 F.3d at 481-82.

If this court were to accept the appellant's premise

that Congress used the term "child" to mean only offspring under

the age of 18, federal courts (and sometimes juries) would have

to slice and dice state-court child support orders to determine

which portions of those orders relate to pre-age-18 support and

which do not. This task often would be difficult if not

impossible because various categories of support may be

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intermixed, items may straddle a child's eighteenth birthday, or

the support order may refer only to a lump sum. We will not

lightly presume that Congress meant to involve the federal

courts in the arduous task of dissecting state-court child

support orders whenever a child's eighteenth birthday

intervened. We therefore reject the appellant's contention that

the term "child," as used in the Act, is limited to a child

under the age of 18.

We turn briefly to the appellant's other arguments.

Just as there is no principled basis for excluding court-ordered

child support relating to periods after a child's eighteenth

birthday from the statutory calculation, there is also no basis

for excluding interest and costs. In the instant case, these

items are embedded in the 1993 Family Court order and they are

part and parcel of what is needed to put the appellant's former

wife and his children in the financial position that they would

have enjoyed had he honored his obligations and made timely

child support payments. Consequently, the district court did

not err in refusing to back interest and costs out of the amount

of loss.

The same reasoning defeats the appellant's claim that

the district court erred in fixing the amount of restitution.

The Act requires that "[u]pon conviction . . . the court shall

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order restitution . . . in an amount equal to the total unpaid

support obligation as it exists at the time of sentencing." 18

U.S.C. § 228(d). The Act defines "support obligation" in

relevant part as meaning "any amount determined under a court

order . . . 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." Id. §

228(f)(3). This language is plain and unambiguous. It affords

no latitude for excluding post-age-18 support, interest, or

costs from the required computation. 3 Since the amount

determined under the 1993 Family Court order was $87,163, the

sentencing court appropriately keyed the restitutionary

obligation to that figure and, after crediting the appellant for

the $20,000 payment that he had made, correctly fixed the amount

of the restitution order at $67,163.

We need go no further. Giving the words of the Act

their natural meaning and striving to effectuate Congress's

discerned intent, we reject the appellant's minimalist

interpretation of the statute of conviction. For aught that

3Indeed, the Ninth Circuit recently has held that a
restitution order in a prosecution brought under the Act may
include interest even if the underlying court support order did
not order payment of interest so long as state law provides for
interest. United States v. Gill, 264 F.3d 929, 932-33 (9th Cir.
2001).

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appears, the district court read the Act correctly and

accurately determined both the amount of loss and the amount of

restitution due.

Affirmed.

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