United States Court of Appeals
For the First Circuit
No. 00-2403
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID A. A. SMITH,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Circuit Judge,
John R. Gibson,* Senior Circuit Judge,
and Lipez, Circuit Judge.
Leo T. Sorokin, Federal Defender Office, for appellant.
Donald K. Stern, United States Attorney, with whom
Antoinette E. M. Leoney, Assistant United States Attorney was on
brief, for appellee.
*Hon. John R. Gibson, of the Eighth Circuit, sitting by
designation.
February 1, 2002
JOHN R. GIBSON, Senior Circuit Judge. David Smith appeals
from the judgment following his conviction for willfully failing
to pay child support in violation of 18 U.S.C. § 228 (1994 &
Supp. IV 1998). He contends that the district court erred in
defining willfulness in its jury instructions by omitting
language Smith requested and by including language to which he
now objects. We conclude that the jury instructions were
adequate and we affirm the judgment.
Smith married Joyce Poirier in 1983. Their daughter
Jade was born in 1985. When he married Poirier, Smith was
attending Harvard Business School. He completed his master’s
degree in business administration in 1983, and he had earlier
studied for two years at the Fletcher School of Law and
Diplomacy at Tufts University. Smith and Poirier separated in
1986 and divorced in 1988. Smith voluntarily began paying child
support upon the couple’s separation, and the Massachusetts
judgment of divorce ordered that Smith continue child support
payments in the amount of $72 per week.
From 1988 to 1993, Smith worked overseas on various
economic development projects. He continued to make child
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support payments during this time, although he and Poirier
disagree about whether he paid the correct amounts following
modifications of the support order. Poirier testified that she
successfully moved for modification in January 1990 to $257 per
week and again in January 1992 to $335 a week. Smith
acknowledged the 1990 increase, which he characterized as an
agreement with Poirier rather than a court order, but he denied
knowing that his obligation increased in January 1992. Poirier
testified that she moved for contempt when Smith did not provide
$335 a week, and that he was present at the contempt hearing in
July 1992. Smith, on the other hand, described a new agreement
with Poirier whereby he would continue paying $257 a week in
child support and set aside an additional $75 a week for Jade’s
college education.
In early 1993, Smith returned to the United States to
live in Washington, D.C. He remained there through May 1996.
His consulting work was sporadic at best, and he invested and
lost $20,000 in a dry cleaning business, so his income did not
provide him enough money to meet his expenses. Nevertheless, he
continued to fulfill his support obligations by relying on
savings he had accumulated while he was working abroad.
In the spring of 1995 Smith married Marisela de Torres,
a native of Venezuela, and together they moved to Venezuela in
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May 1996. They began a business selling English-language books,
first used and then new, operating from a house they rented and
lived in. They later planned to rent a smaller house to reduce
their expenses, but the house was not ready when their lease
expired and they moved into Smith’s mother-in-law’s apartment in
June 1997. They were unable to sell books from the apartment,
and their retail business plummeted. When Smith went to the
United States in July to vacation with Jade and bring her back
to Venezuela for a visit, his income had dropped precipitously.
When he returned with Jade to Venezuela in August, he learned
that a $12,000 certificate of deposit he had in a bank in
Bolivia was inaccessible because he could not get in touch with
the bank. By that point he had no other savings and virtually
no income, and he asked Poirier to agree to a reduced level of
support. She refused and instead filed a motion seeking to have
Smith held in contempt. That motion was heard and ruled on in
October 1997. Neither party was represented by counsel, and the
Massachusetts trial court ordered Smith to pay the arrears. He
paid the past due amounts two days after the hearing by
borrowing the money from his brother, and at the same time Smith
filed a motion to modify his support obligation. The trial
court agreed that Smith could pay $100 per week for thirteen
weeks, at which point he would resume his regular payments.
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Smith complied with the order for the thirteen weeks,
but he paid only one month’s support following that time.
Poirier received no further support payments from Smith until
May 2000 when she received three checks, each in the amount of
$1,127. That same month, Smith borrowed an additional $10,000
from his brother Michael and deposited it with the federal
court. At the time of trial the court was in the process of
transferring that money to Poirier, who knew nothing about the
money until the court spoke of it. 1 Because the underlying
statute required the jury only to find that Smith’s obligation
had exceeded $10,000, see 18 U.S.C. § 228(a)(3), the government
did not argue the exact amount at issue. At sentencing,
however, the government argued that Smith owed Poirier
$49,880.50 in past-due child support payments.2
1
At the conclusion of Smith’s direct testimony, his counsel
read into evidence the following stipulation:
Members of the jury, the parties, the United States
government and Mr. Smith, stipulate and agree that
during the month of May 2000, David Smith borrowed
$10,000 from his brother, Michael Smith, of Camden,
Maine, to pay to Joyce Poirier for child support. The
$10,000 has been deposited with the federal court,
this Court, and the Court is in the process of issuing
a check directly to Ms. Poirier. Ms. Poirier has
neither received the money and Ms. Poirier is unaware
that the $10,000 is coming.
2
The statute requires the court to order restitution upon
conviction “in an amount equal to the total unpaid support
obligation as it exists at the time of sentencing.” 28 U.S.C.
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Smith incurred other expenses and encountered other
obstacles during the two years he wasn’t paying support.
Marisela gave birth to their first child, Andres, on December 1,
1997. The following February, they were able to rent a room at
a church which they hoped would allow them to immediately re-
open their store, but the building needed more work than they
anticipated and the store did not open until April. Once
opened, they soon realized that the space was not large enough
to display and sell the books effectively, and in September they
employed a contractor to expand it by about 2,000 square feet.
The construction was not completed until October 1999, but they
operated out of the space anyway because they wanted to resume
sales. Business picked up considerably in late 1998, but in
January 1999 Marisela gave birth prematurely to their second
child, Althea. The Smiths had no medical insurance, and Althea
required intensive care in a private clinic at a cost of about
$2,000 per day. When they could no longer come up with the
money to pay for her care, they transferred her to a public
hospital by borrowing money from Marisela’s sister to pay the
remaining charges. They also borrowed from Marisela’s first
husband and from her mother for various expenses associated with
Althea’s care. Althea died on March 1, 1999.
§ 228(d).
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The financial result of this personal tragedy was that
the Smiths owed $90,000 to suppliers. It was not until they
paid their outstanding debts that the business began making more
money than they owed, and that is when Smith resumed his child
support payments in May 2000.
Smith was arrested when he entered the United States
on November 11, 1999. He was indicted and convicted by a jury
on one count of willfully failing to pay child support. The
district court sentenced him to six months incarceration, fined
him $2,000, and ordered Smith to pay restitution in the amount
of $49,880.50.
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I.
Smith argues that the district court erred by refusing
to give part of his proffered instruction on willfulness. The
language he offered required the government to prove that Smith
“did not have a good faith belief in his inability to pay.” He
argues that if he subjectively and in good faith believed that
he did not have the ability to pay, his failure to do so could
not constitute voluntary and intentional disobedience or
disregard of the law. We conduct a de novo review “to determine
whether the instructions, taken as a whole, show a tendency to
confuse or mislead the jury with respect to the applicable
principles of law.” United States v. Fulmer, 108 F.3d 1486,
1494 (1st Cir. 1997).
The government argues that Smith failed to object
timely and sufficiently to the instruction as given and that he
therefore failed to preserve his objection. The record reveals
otherwise. At the conclusion of the instructions the court
called a sidebar to confer with the attorneys, explaining to the
jury: “[B]efore I can let you go, I may have misstated something
under the law, or I may have left something out, and the lawyers
get a chance to call that to my attention now.” During the
sidebar, Smith’s attorney opined that “the government must prove
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beyond a reasonable doubt that he lacks the good faith belief
that he had the ability to pay.” When the court commented in
response that it was satisfied with the willfulness instruction
as given, Smith’s attorney stated: “Note my objection.” The
court replied: “Noted.” We conclude that Smith sufficiently
preserved his objection. See Fed. R. Crim. P. 30 (“No party may
assign as error any portion of the charge or omission therefrom
unless that party objects thereto before the jury retires to
consider its verdict, stating distinctly the matter to which
that party objects and the grounds of the objection.”).
Smith submitted a willfulness instruction that included
the following language:
To prove wilfulness, the government must
show beyond a reasonable doubt that Smith
had sufficient funds to enable him to pay
support in view of all of his financial
circumstances. In doing so, the government
must prove that Smith had sufficient funds
after meeting his basic subsistence needs.
You may consider Smith’s second family in
evaluating his basic subsistence needs. The
government must also show beyond a
reasonable doubt that Smith did not have a
good faith belief in his inability to pay
due to lack of funds. Smith’s belief need
not be reasonable as long as he believed it
in good faith.
This portion of the proffered instruction included citations to
cases and legislative history to support the requested language.
The instruction as given by the district court was somewhat
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different. It began with the directive that “surely willfully
means he’s got to know he’s got the order against him. He’s got
to know that.” It continued:
But more than that, to act willfully means a
voluntary, intentional violation of a known
legal duty. In other words, Mr. Smith must
have acted voluntarily and intentionally and
with the specific intent to do something
that the law forbids; that is to say, with a
purpose either to disobey or disregard the
law.
Smith claims that this instruction was inadequate. He
maintains that his failure to make the required payments could
not have been "willful" if he genuinely believed that he did not
have the ability to pay. He argues: "The district court
instructed the jury that it could find willfulness based on a
determination that Smith had financial resources that he 'could
have' marshaled and used. . . . Erroneously, the instruction
told the jury it could convict Smith if the jury found he could
have paid even if the jury also found that Smith believed in
good faith he lacked the ability to pay."
Smith relies on the legislative history of 28 U.S.C.
§ 288 to support his interpretation of the government's proper
burden of proof. Section 288 was enacted as part of the Child
Support Recovery Act of 1992, Pub. L. No. 102-521, 106 Stat.
3403. The Act’s legislative history provides guidance in
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interpreting the operative language of the mens rea required for
conviction:
[“Willfully fails to pay”] has been borrowed
from the tax statutes that make willful
failure to collect or pay taxes a Federal
crime, 26 U.S.C. §§ 7202, 7203. Thus, the
willful failure standard of H.R. 1241 should
be interpreted in the same manner that
Federal courts have interpreted these felony
tax provisions. In order to establish
willfulness under those provisions[,] the
Government must establish, beyond a
reasonable doubt, that at the time payment
was due the taxpayer 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 of the
financial circumstances of the taxpayer.
U.S. v. Poll, 521 F.2d 329, 333 (9th Cir.
1975).
H.R. Rep. No. 102-771, at 6 (1992). Smith also relies
on Cheek v. United States, 498 U.S. 192 (1991), a criminal tax
case in which the Supreme Court rejected the notion that the
taxpayer’s claimed good-faith belief as to his or her legal duty
to pay taxes and file returns must be objectively reasonable.
Id. at 203. In Cheek, the taxpayer argued that he had a
misunderstanding of the law which created a good-faith belief on
his part that he did not owe the taxes or need to file the
returns at issue, and thus he did not knowingly fail to do so.
The narrow issue was whether the district court had erred in
instructing the jury not to consider evidence of the taxpayer’s
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subjective beliefs in determining whether he had acted
willfully. Id. at 206-07. As the Court described the issue:
In the end, the issue is whether, based on
all the evidence, the Government has proved
that the defendant was aware of the duty at
issue, which cannot be true if the jury
credits a good-faith misunderstanding and
belief submission, whether or not the
claimed belief or misunderstanding is
objectively reasonable.
Id. at 202. Smith asserts that the effect of Cheek is to
mandate a jury instruction that he cannot be convicted unless
the jury finds beyond a reasonable doubt that he did not
subjectively and in good faith believe that he had insufficient
funds to pay child support. We conclude that this argument is
flawed.
The legislative history tells us that Congress borrowed
the “willfully fails to pay” standard from the tax statutes, and
that it should be interpreted “in the same manner that Federal
courts have interpreted these felony tax provisions.” H.R. Rep.
No. 102-771, at 6. The report then quotes the passage from
Poll, 521 F.2d at 333, which addresses willfulness as a
voluntary and intentional act in the context of a defendant’s
ability to pay. Poll is silent on the issue raised in Cheek,
that of a taxpayer’s knowledge of his or her duty to pay.
Were we to apply Cheek to this case, the issue would
be whether Smith had a subjective good-faith belief that he had
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no legal duty to pay Poirier. In other words, Smith would have
to argue that he believed, in good faith, that the child support
order was invalid or that it was somehow inapplicable to him.
Smith does not advance that argument,3 however, and therefore
Cheek is not applicable.4
The district court instructed the jury that “willfully
means a voluntary, intentional violation of a known legal duty.
In other words, Mr. Smith must have acted voluntarily and
intentionally and with the specific intent to do something that
the law forbids; that is to say, with a purpose either to
disobey or disregard the law.” The court went on to describe
the two ways in which the government could satisfy its burden,
which we discuss in Part II of this opinion. We conclude that
the instructions, taken as a whole, did not tend to confuse or
mislead the jury. The district court’s refusal to give Smith’s
proffered instruction was not in error.
II.
3
During oral argument, Smith’s counsel was asked if he was
suggesting that he did not understand what the source of his
legal duty was. He replied: “No, not at all.”
4
The jury was instructed as to this issue: “[S]urely
willfully means he’s got to know he’s got the order against him.
He’s got to know that. If they enter an order but he’s off in
some other country and never knows it, well, it’s not criminal
because he hasn’t willfully failed to obey the order.”
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Smith also argues that the district court committed
error by instructing the jury that it could consider other
people’s assets in determining whether he had willfully failed
to pay child support. Because Smith failed to object to this
aspect of the instruction during trial, our review, as Smith
concedes, will be for plain error. He must show that: 1) an
error occurred; 2) the error is clear or obvious under the
current law; and 3) the error substantially and adversely
affects his rights. United States v. Roberts, 119 F.3d 1006,
1014 (1st Cir. 1997). We evaluate the alleged error in light of
the record as a whole, keeping in mind that Smith’s hurdle is
high. Id. Even if the three foregoing requirements are met, a
remedy is appropriate only if the error “seriously affect[s] the
fairness, integrity or public reputation of the judicial
proceedings.” United States v. Young, 470 U.S. 1, 15 (1985).
After defining “willful” in the permissible manner
discussed in Part I, supra, the district court further
instructed the jury that it could find that Smith had willfully
failed to pay in “either of two ways.”
One way they can prove it is that he, he,
Mr. Smith, had access to resources beyond
the basic necessities of life, disposable
income, beyond the basic necessities of
life, which he could have marshaled and used
to pay the child support, and knowing he had
those resources and that they were available
to him, he willfully failed to do it.
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As to the second way, the district court told the jury:
[A] second way is that he willfully refused
or took himself out of the workforce or
reduced his ability. Since she’s got two
ways to prove it, but each way has to
satisfy you beyond a reasonable doubt, you
can of course analyze both ways. But since
a verdict must be unanimous, you’re all
going to have to agree upon which way. . . .
But you can’t return a guilty verdict if
some of you think one thing and some of you
think something else. You’ve got to
unanimously agree on your analysis.
Smith argues that Massachusetts law does not require
a non-custodial parent to borrow money to pay child support and
that the instruction allowed the jury to convict him for non-
criminal conduct by finding that he had “access to resources”
from other people that he could have “marshaled” to pay support.
Recognizing the applicable standard of review, Smith argues that
his rights were substantially and adversely affected by the
instruction, especially in light of the government’s closing
argument. The prosecutor referred to: Smith’s mother-in-law
supporting him and letting him live with her rent-free; Smith’s
stepdaughter being cared for by other family members while he
failed to pay support; and Smith borrowing money from his
brother to pay $10,000 toward his support obligation. Smith
asserts that the government “drove home the argument that the
jury should convict Smith for failing to persuade his mother-in-
law or brother to pay his child support” with this excerpt from
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its rebuttal:
[A]pparently he had resources from his
family members to help him with his support.
He certainly knew where to borrow the money
when he had his obligation to his child
Althea. Because that’s what we do as
parents.
The government denies that this comment was intended to urge the
jury to convict Smith for failing to borrow money to pay his
support obligations. Rather, the government claims that it was
merely reacting to defense counsel’s protestations that Smith
had tried everything he could to meet his support obligations
but he was still forced to beg to keep his business going and
borrow to pay for his hospitalized daughter’s care.
We conclude that the instruction was not plain error.
While the court’s words could be construed to have the meaning
Smith advances, our review of the record as a whole reveals that
Smith’s rights were not substantially and adversely affected.
Smith’s defense in this case was that he did not have the money
to pay Poirier because his business was not profitable and he
had extraordinary medical expenses. Smith’s lawyer told the
jury in his opening statement that “David didn’t want to fail to
pay,” and Smith and his wife testified about the financial
support they got from her mother. Smith introduced the evidence
that he borrowed money from his brother to make past-due support
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payments and from his sister and others to pay medical bills for
his premature baby. He testified that he did have income from
the book business during the years 1997 through 1999, and yet he
completely stopped paying support. In the context of the record
as a whole, the instruction directed the jury to determine that
Smith had the ability to pay before it could find that he
willfully failed to pay.5 The district court did not instruct
the jury that it could find willful failure to pay in the event
Smith did not borrow money. Cf. United States v. Harrison, 188
F.3d 985, 987 (8th Cir. 1999) (pointing out that willful failure
to pay is not dependent upon source of obligor’s income, but on
existence of income in any form). The instruction did not
constitute plain error.
For the foregoing reasons, we affirm the amended
judgment of the district court.
Affirmed.
5 It is important to note that “analogy to the tax statutes
. . . suggests that the government must demonstrate only that
the defendant was able to pay some portion of his past due child
support obligations in order to establish liability under the
[Child Support Recovery Act].” United States v. Mattice, 186
F.3d 219, 228 (2d Cir. 1999) (emphasis in original). Although
Smith was entitled to and did introduce evidence of insufficient
income as a defense, the jury found that the government had
established beyond a reasonable doubt that his failure to pay
was willful. See id. at 228-29.
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