United States v. Muench

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 97-2304 09/10/98
THOMAS K. KAHN
CLERK
D. C. Docket No. 1:96-CR-26-001

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

STEPHEN MUENCH,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Florida

(September 10, 1998)

Before HATCHETT, Chief Judge, DUBINA and CARNES, Circuit Judges.

DUBINA, Circuit Judge:
 In this criminal case prosecuted under the Child Support Recovery Act (“CSRA”),

18 U.S.C.A. § 228 (West Supp. 1998), Appellant Steven Muench (“Muench”) appeals the

district court’s order denying Muench’s motion to dismiss for improper venue. Muench

also challenges the district court’s order requiring him to pay restitution.

I. FACTUAL BACKGROUND

Muench and his wife divorced in Texas in 1983. The divorce decree ordered that

Muench make monthly payments of $300.00 for the support of his two children. By court

order, Muench was to send these payments to the Child Support Office for Dallas County,

Texas. Sometime after the divorce, Muench’s former wife moved to Florida with the

children. Muench remained in Texas.

A. STATE COURT PROCEEDINGS

In 1988, Muench’s former wife filed an action in a Florida state court seeking an

order to enforce Muench’s child support obligation, and a Florida court entered such an

order pursuant to the Uniform Reciprocal Enforcement Support Act (“URESA”), finding

that Muench had willfully failed to pay $8,090.00 in court ordered child support. In

1992, the same court entered another URESA order which found that Muench was in

arrears for $20,060.00 for past due child support. In 1994, in compliance with URESA, a

Texas state court found Muench in arrears in child support and ordered him to pay his

current obligation of $300.00 per month, plus $150.00 per month for reimbursement of

medical and dental expenses, and an additional $200.00 per month towards the arrearage.

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In total, from 1983 to January 23, 1997, Muench failed to pay $29,626.50 in court ordered

child support.

B. FEDERAL PROSECUTION

In 1996, Muench was indicted in the United States District Court for the Northern

District of Florida for intentionally, willfully, and unlawfully failing to pay in excess of

$5,000.00 in child support, as ordered by a Texas state court, from October 25,1992,

through October 5, 1995, in violation of the CSRA, 18 U.S.C.A. § 228. Muench filed a

motion to dismiss the indictment on the grounds that venue did not lie in the Northern

District of Florida, arguing that venue was proper only in Texas, where the child support

order in question was issued. The district court denied Muench’s motion to dismiss.

Muench entered a guilty plea to the indictment, reserving the right to appeal the

court’s denial of the motion to dismiss. At sentencing, Muench objected to the

$29,626.50 restitution award recommended in the Presentence Investigation Report

(“PSI”) on the basis that an award of this amount would result in an ex post facto

application of the CSRA because approximately $20,000.00 of the arrearage was for child

support due prior to October 25, 1992, the date the CSRA became effective.

The district court sentenced Muench to a six-month term of incarceration and

ordered him to pay $29,776.50 in restitution. After Muench filed this appeal, the district

court stayed his sentence pending a ruling by this court.

II. ISSUES

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A. Whether the district court erred in denying Muench’s motion to dismiss for

improper venue.

B. Whether the district court’s restitution order, which required Muench to pay

restitution for child support that accrued prior to the CSRA’s effective date,

violated the Ex Post Facto Clause of the United States Constitution.

III. STANDARD OF REVIEW

A district court’s denial of a motion to dismiss for improper venue is subject to de

novo review. United States v. Crawford, 115 F.3d 1397, 1405 (8th Cir.), cert. denied, 118

S.Ct. 341 (1997). We also review ex post facto challenges de novo. Thompson v. Nagle,

118 F.3d 1442, 1447 (11th Cir. 1997), cert. denied, 118 S.Ct. 1071 (1998).

IV. DISCUSSION

A. VENUE

The Constitution contains two provisions safeguarding the venue rights of a

criminal defendant. Article III, § 2, cl.3 states that “Trial of all Crimes . . . shall be held

in the State where the said Crimes shall have been committed.” The Sixth Amendment

requires that criminal trials be held before “an impartial jury of the State and district

wherein the crime shall have been committed.” Accordingly, Rule 18 of the Federal

Rules of Criminal Procedure provides that “prosecution shall be had in a district in which

the offense was committed.”

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 The CSRA criminalizes willful failure “to pay a past due support obligation with

respect to a child who resides in another state.” 18 U.S.C.A. § 228(a). Muench contends

that venue was not proper in this case in the Northern District of Florida because he was

in Texas when he failed to pay the past due child support and, most importantly, because

the indictment only charges him with a failure to pay in accordance with the Texas

court’s mandate which ordered him to send his support checks to a child support office in

Texas.

1. Prior venue decisions under the CSRA

Two other circuits have addressed the issue of venue under the CSRA, and both

have found that venue was proper in the district where the children entitled to receive the

support reside. In United States v. Crawford, 115 F.3d 1397 (8th Cir. 1997), the Eighth

Circuit determined that venue was appropriate both in the district where the child lived as

well as the district where the support payments were to be deposited. Id. at 1406.

Similarly, in United States v. Murphy, 117 F.3d 137 (4th Cir. 1997), the Fourth Circuit

held that venue was proper in the district where the defendant’s daughter lived. Id. at

140. We join our sister circuits and hold that venue was proper in this case in Florida

because that is where Muench’s children reside.

Crawford involved a factual scenario very similar to the present case. In Crawford,

a Texas court issued a child support order. Crawford’s former wife and two children later

moved to Missouri, while he continued to live in Texas and Louisiana, having no contact

with Missouri aside from the fact that his children lived there. 115 F.3d at 1398-99.

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When he was later indicted in the Eastern District of Missouri for violating the CSRA,

Crawford contended that the indictment should be dismissed for improper venue. Id. at

1403. The Eighth Circuit concluded that venue was proper in Missouri because

Crawford’s crime was a continuing offense that could be prosecuted where it was begun,

continued, or completed. Id. at 1405-06 (citing 18 U.S.C.A. § 3237(a) which provides

that venue is proper “in any district in which [a continuing] offense was begun, continued,

or completed”). The court explained:

For obvious reasons, it is difficult to conceptualize or to describe the place
where a crime was begun, continued, or completed when the crime itself
was an omission or failure to act. Nevertheless, if the crime of failing to
pay child support obligations occurs anywhere, it is fair to say that it occurs
where there is an absence of the required payment. Thus, the crime occurs
not only at the place where the payment was to be deposited, but also the
place where it was ultimately to be received by the would-be intended
recipient.

Id. at 1406. The Eighth Circuit emphasized that because the CSRA expressly

criminalizes failure to pay support to a child living in another state, the residence of the

child “clearly contributes to the nature of the crime,” providing a basis for venue where

the child resides. Id.

The Fourth Circuit also focused on the interstate nature of the CSRA in Murphy, in

which the divorce took place in Oklahoma, and the defendant’s former wife and daughter

moved to Virginia. See Murphy, 117 F.3d at 138. Murphy’s ex-wife sought assistance

from the Virginia child support authorities in collecting support from Murphy, who was

then living in Texas. The Virginia authorities contacted their Texas counterparts, and, in

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a URESA action, a Texas court ordered Murphy to pay his support into a Texas child

support office, which would transfer the funds to Virginia’s child support registry for

disbursement to Murphy’s ex-wife. Murphy eventually moved to Florida and then to

New York. He argued that venue was only proper in Florida, the state where he resided

when he failed to pay the past due child support, and in Texas, the state to which he was

required to make support payments. Id. at 139.

The Fourth Circuit determined that because the statute makes it an offense to fail

to pay child support with respect to a “child who resides in another state,” venue was

proper in Virginia, where Murphy’s child resided. Id. at 140. The Murphy court

emphasized that proper venue should promote a statute’s aims, and that the CSRA

concerns enforcement of parental obligations across interstate lines. Id. at 140. Thus,

“[l]imiting venue to the state where the order commanding payment was entered or to the

state where the delinquent parent resides would do nothing but frustrate Congress’

intention in passing this Act.” Id. at 141. We agree with the Fourth Circuit that

under the CSRA, “the duty to pay runs to the defendant’s child,” and, therefore, the

child’s residence is a proper venue for criminal prosecution under the statute. See id. at

140. The place that suffers the effects of a crime deserves consideration for venue

purposes. United States v. Reed, 773 F.2d 477, 482 (2nd Cir. 1985) (holding that venue in

perjury and obstruction of justice case was proper in the district in which the proceeding

to be obstructed was pending, even though the unlawful acts took place elsewhere). The

victims of Muench’s crime under the CSRA are in Florida. Therefore, the United States

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Attorney for the Northern District of Florida has a particularly strong interest in

prosecuting Muench for his failure to pay past due child support.

2. The failure to act cases

Muench contends that because his indictment was based upon a failure to act,

venue lies in the district where he was required to perform his duty to pay child support.

The child support order required that he send monthly checks to the Child Support Office

in Dallas County, Texas. Muench relies on a line of Supreme Court precedents that

establish that in cases in which the violation consists of a failure to file a required

statement or to report to a specified location, venue lies in the place designated for

performance. See Travis v. United States, 364 U.S. 631, 636 (1961) (stating that “[w]hen

a place is explicitly designated where a paper must be filed, a prosecution for failure to

file lies only at that place”); Johnston v. United States, 351 U.S. 215, 220 (1956) (holding

that venue for prosecution of conscientious objectors who failed to report for work lay in

the district where the work was to be performed); United States v. Lombardo, 241 U.S.

73, 78 (1916) (concluding that venue was proper only in the District of Columbia for

prosecution based on a Washington State resident’s failure to file a statement required by

a statute that designated the District of Columbia as the place of filing).

Muench argues that under Travis, Johnston, and Lombardo, venue lies only in

Texas because that is where he was obligated to send his support checks. Although we

consider this to be Muench’s strongest argument, we conclude that it fails because the

failure to act cases upon which Muench relies are distinguishable from this prosecution

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under the CSRA. Proper venue “‘must be determined from the nature of the crime

alleged and the location of the act or acts constituting it.’” United States v. Cabrales, ---

U.S. --- , --- ,118 S.Ct. 1772, 1776 (1998) (quoting United States v. Anderson, 328 U.S.

669, 703 (1946)). Unlike this case, the failure to act cases did not involve statutes

designed to protect victims who reside in another state. As the Fourth Circuit in Murphy

explained, “[v]enue considerations are quite different where, as here, the action at issue is

payment to an intermediary whose function is to forward the payment to a third party.”

117 F.3d at 140 (distinguishing Johnston, 351 U.S. at 200). In each of the failure to act

cases cited by Muench, there were only two possible venues, the place where the

defendant was present when he failed to act, and the place designated for the required

performance. See Murphy, 117 F.3d at 140. Here, the statute itself refers to another

location, the state where the child resides. See 18 U.S.C.A. § 228. Accordingly, we agree

with the district court that venue is proper in Florida, where the intended recipients of

Muench’s past due child support live.

Muench also relies on an example the Supreme Court used in Lombardo to

illustrate the point that in failure to act cases in which the statute of conviction designates

a particular place for performance, venue lies at the place designated by law. 241 U.S. at

77-78. The Court explained that

[i]t may be that where there is a general duty it may be
considered as insistent both where the `actor’ is and the
`subject’ is, to borrow the government’s apt designation, as in
the case of the duty of a father to support his children; and if
the duty have criminal sanction, it may be enforced in either

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 place. The principle is not applicable where there is a place
explicitly designated by law.

Id. Muench contends, based on this passage, that venue is only proper in Texas, where he

was obligated to send child support checks. To the contrary, the passage says a child

support criminal sanction may be enforced “in either place,” meaning where the father

fails to pay support or where the child due the support resides. That is what the Supreme

Court said.

The statute pursuant to which the defendant was prosecuted in Lombardo

required the filing of a statement with the Commissioner General of Immigration in the

District of Columbia. Id. at 74-75. Thus, we understand the Court’s reference to “the

place explicitly designated by law,” to mean the criminal statute under which the

defendant was prosecuted. See id. at 78. In this case, the statute of conviction does not

designate a specific place for prosecution, and as a result prosecution is proper “in either

place.”

Muench’s argument is based on the fact that the indictment referred to a Texas

court order that required him to pay support into a Texas state office. We do not think

that venue in prosecutions under the CSRA should be controlled by the state court orders

that designate payment of child support in a particular location. Procedures regarding

where child support payments are processed are likely to vary from state to state and from

case to case. For example, in Murphy, the defendant sent payments to a child support

office in Texas which forwarded them to a Virginia child support registry for

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disbursement to the dependent children who lived in Virginia. See 117 F.3d at 138. The

concurring opinion in Murphy reasoned that venue was proper in Virginia only because

that is where the child support payments were designated for disbursement, explaining

that the fact that the children lived in Virginia would not on its own support a finding of

proper venue. See id. at 141-42 (Williams, J., concurring) (citing Johnston, 351 U.S. at

220). We agree with the majority in Murphy that the district where the children reside is a

proper venue for prosecutions under the CSRA. See id. at 141. The CSRA specifically

refers to the state where the victim of the crime resides, making it a crime to fail to pay

past due child support to a child or children in another state. See 18 U.S.C.A. § 228.1 It

follows that venue is proper in the state where the children live.

3. 18 U.S.C.A. § 3237 and continuing offenses:

This case raises the issue of whether Muench’s crime was a continuing offense

such that it falls within the venue provision set out in 18 U.S.C.A. 3237 which states that

“any offense against the United States begun in one district and completed in another, or

committed in more than one district, may be inquired of and prosecuted in any district in

which such offense was begun, continued, or completed.” 18 U.S.C.A. § 3237(a). The

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While this appeal was pending, Congress clarified its intent that a prosecution
under the CSRA can be brought in the district where the child resides. A recent
amendment to 18 U.S.C.A. § 228 added a venue provision that states that an action
prosecuted under this statute may be brought, among other places, in the district where
the child entitled to support resided during a period in which the defendant failed to pay
support. Deadbeat Parents Punishment Act of 1998, Pub. L. No. 105-187, 112 Stat. 618
(Approved June 24, 1998).

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district court applied 18 U.S.C.A. § 3237, finding that Muench’s crime was a continuing

offense that could be tried in either Texas or Florida. Likewise, the Eighth Circuit

determined that a violation of the CSRA was a continuing offense subject to 18 U.S.C.A.

§ 3237. Crawford, 115 F.3d at 1406.2

In United States v. Cabrales, 118 S.Ct. 1772 (1998), the Supreme Court recently

dealt with the question of whether the violation charged in a money laundering case

constituted a continuing offense for purposes of 18 U.S.C.A. § 3237. The defendant in

Cabrales purportedly laundered the proceeds of a Missouri drug conspiracy in Florida.

Id. at 1775. Because the government indicted Cabrales for a transaction that took place

entirely in Florida, the Court held that the violation charged was not a continuing offense

and that venue in Missouri was improper under the circumstances. Id. at 1776

(explaining that the statutes defining the violations interdict only the financial

transactions and not the anterior crimes that yielded the laundered funds). It was

“immaterial” to the money laundering prosecution whether the defendant knew the

location of the crimes that generated the money to be laundered, as long as she knew that

the funds “derived from ‘specified unlawful activity.’” Id. The Court stated that the

Missouri venue of the drug trafficking activity that generated the money to be laundered

In Murphy, the Fourth Circuit did not discuss whether or not a violation of the
2

CSRA is a continuing offense. See 117 F.3d at 139-41. Rather, the Murphy court
analyzed the question of proper venue in terms of the Fourth Circuit’s test for venue cases
which calls for an inquiry into the pertinent verbs that define the criminal offense. Id.

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was “of no moment” to the crime charged. Id. Thus, venue in Missouri was improper.

Id.

In contrast to the situation in Cabrales, the contested venue in this case, Florida, is

highly material to the violation charged due to the fact that the CSRA criminalizes failure

to pay past due child support owed to a child who resides in another state. Venue in a

criminal case, though a constitutional matter, requires an inquiry into what conduct the

statute proscribes. See id. at 1775. If Muench’s children did not live outside the State of

Texas, there would have been no violation of the CSRA. Muench’s offense was a

continuing offense because it was completed when his children in Florida failed to

receive their past due support. Justice Frankfurter’s statement for the Court in United

States v. Johnson , 323 U.S. 273, 275 (1944), is relevant to this point. There he said, “By

utilizing the doctrine of a continuing offense, Congress may, to be sure, provide that the

locality of a crime shall extend over the whole area through which force propelled by an

offender operates.” Id. at 275. Muench’s failure to pay child support is a continuing

offense, and the force of that failure is felt nowhere with more impact than where the

child due those support payments resides. Muench has never argued that he was unaware

that his children lived in Florida, and we do not believe that any fairness concerns arise

from prosecuting him where his children experienced the effects of his offense.

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 Congress enacted the CSRA to address the difficulties associated with interstate

collection of child support. See H.R. Rep. No. 771 (1992), 1992 WL 187429.3 As the

district court noted, this case presents an excellent example of the statute operating as it

was intended by filling “the gaps created by competing state enforcement mechanisms.”

(R.1-25-10). Over an eight-year period, Texas and Florida state agencies have been

unable to collect child support from Muench. Muench’s former wife has obtained a total

of four state court orders requiring payment of support, none of which have been obeyed.

Proper venue should promote a criminal statute’s goals, not eviscerate them. Murphy,

117 F.3d at 140. With this in mind, we hold that venue was proper in this case in Florida,

where the victims of Muench’s crime reside.

B. EX POST FACTO CLAUSE

The district court did not err in ordering Muench to pay the full amount of child

support owed, including the amounts that accrued prior to the effective date of the CSRA.

Muench challenges this award under the Ex Facto Clause of the Constitution. A law is

prohibited as ex post facto if it (1) punishes as a crime an act previously committed,

3
We agree with the district court that Congress did not pass the CSRA merely to
aid collection of child support in cases where the parent with the duty to pay child support
moves to another state to avoid this obligation. See (R.1-25-10). Muench still lives in
Texas, where the initial order of support issued. Although there are references in the
legislative history of the CSRA to the scenario involving a parent who relocates to evade
collection efforts, we read the legislative history to indicate that the statute was passed to
deal with the problems associated with interstate collection of child support in general.
See H.R. Rep. No. 771 (1992). More importantly, the language of the statute itself does
not limit violations of the CSRA to situations in which the parent owing support moves to
a different state. See 18 U.S.C.A. § 228.

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which was innocent when done; (2) makes the punishment for a crime more burdensome

after its commission; or (3) deprives a defendant of any defense available according to

law at the time when the act was committed. Collins v. Youngblood, 497 U.S. 37, 42

(1990).

The district court’s restitution award does not create an ex post facto problem

because the CSRA criminalizes failure to pay child support that was past due after the

CSRA became effective. United States v. Hampshire, 95 F.3d 999, 1006 (10th Cir. 1996),

cert. denied, — U.S. — , 117 S.Ct. 753 (1997). Muench did not violate the CSRA by

failing to make regular payments prior to October 25, 1992; he violated the statute by not

making payments after the law’s enactment. See 18 U.S.C.A. § 228(a) (providing for

punishment for anyone who “willfully fails to pay a past due support obligation”).

V. CONCLUSION

For the foregoing reasons, we affirm the district court’s orders denying Muench’s

motion to dismiss for improper venue and requiring him to pay restitution.

AFFIRMED.

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