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September 25, 2008

Second Circuit talks through federal crime of failure to pay child support

As some experts in federal criminal law may know, it is a federal crime to willfully fail to pay child support.  Though I suspect that this crime is frequently committed, I also suspect that it is only rarely prosecuted in federal court.  Whatever the prosecutorial particulars, one such federal prosecution has produced an interesting ruling today from the Second Circuit in US v. Kerley, No. 08-1818 (2d Cir. Sept. 25, 2008) (available here). Here is the first paragraph from the Kerley opinion:

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 defendantappellant 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 ortwo 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.

September 25, 2008 at 11:25 AM | Permalink

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This crime is being prosecuted more and more frequently, as a search of WESTLAW demonstrates. One of my favorite cases where interstate non-payment of child support was prosecuted is the Eleventh Circuit's opinion in U.S. v. Fields, 500 F.3d 1327 (11th Cir.2007). In Fields, both the former husband and former wife were attorneys! Under the ethics rules, conviction of any felony will result in disbarment, so how is an attorney convicted under this statute ever supposed to be able to catch up and pay if his means of earning a living is taken away? Luckily for Mr. Fields, the 11th Circuit reversed his conviction, finding that the real reason he could not pay was that his ex-wife removed the child to another state and hid her location from him. So, all attorneys who owe child support out there, be aware. Jim Gormley

Posted by: Jim Gormley | Sep 26, 2008 2:08:16 PM

This crime is being prosecuted more and more frequently, as a search of WESTLAW demonstrates. One of my favorite cases where interstate non-payment of child support was prosecuted is the Eleventh Circuit's opinion in U.S. v. Fields, 500 F.3d 1327 (11th Cir.2007). In Fields, both the former husband and former wife were attorneys! Under the ethics rules, conviction of any felony will result in disbarment, so how is an attorney convicted under this statute ever supposed to be able to catch up and pay if his means of earning a living is taken away? Luckily for Mr. Fields, the 11th Circuit reversed his conviction, finding that the real reason he could not pay was that his ex-wife removed the child to another state and hid her location from him. So, all attorneys who owe child support out there, be aware. Jim Gormley

Posted by: Jim Gormley | Sep 26, 2008 2:08:53 PM

Great link to article on collection of child support:

http://www.ewebwire.com/freepressrelease/article/nevada-guilty-of-racial-profiling-in-child-support-cases-181-1.html


(eWebWire.com) January 29, 2010 — WORLD WIDE WEB, January 29, 2010 (FOR IMMEDIATE RELEASE) — Nevada ranks 54th in its rate of child support collection. They have consistently ranked near the bottom of the nation in payment collections. To say their child support enforcement system is broken is not accurate. It’s beyond abysmal. Nevada also hugged the bottom of state rankings in establishing paternity for children in support cases, obtaining court orders for support payments and running cost-effective collections and enforcement programs.

Assemblywoman Barbara Buckley, D-Las Vegas, called Nevada’s national standings for child support collection “pathetic.” Children in the state are not receiving the money they are entitled to by court order, Buckley said, which means they may be deprived of things as basic as medical care and shelter. “It is frustrating for all the custodial parents, we are worse than Guam, Puerto Rico and the Virgin Islands.”
One mother has spoken out claiming that Nevada ranks so low because they only target African- Americans and Latinos. Ms Collins a single mom of three feels many of these fathers are out of work and unable to pay so any enforcement measures are useless. In her case the father of her three children is a white male, gainfully employed in an Executive Position, owns a sprawling 2 acre ranch in Las Vegas and drives a Bentley. In spite of this Ms. Collins claims that the Nevada District Attorney has made little effort to collect not only the current child support but the $22,794.12 in arrears the father of her children owes. Ms Collins further added that Nevada does not pursue white offenders and goes out of their way to keep white deadbeat dads out of jail.

Nevada has a number of tools to collect child support arrears. Bank accounts can be levied to collect past due support, wages can be garnished, property can be levied even a notice of the delinquency could be filed with the IRS who would divert any income tax refund to the DA to apply to the debt. Nevada can also suspend a driver’s license due to unpaid child support or even suspend an occupational license if a parent owes child support.
In spite of this Ms Collins claims none of these enforcement methods are used to collect child support for her children. “I have a court ordered wage assignment but it’s not worth the paper it’s written on.” The father of her three children Richard Bernstein is the CEO and President of Mars Venus Coaching. Ms Collins added that although Mr. Bernstein testified in a Los Angeles court that the company is owned by John Gray the world famous author of “Men are from Mars Women are from Venus” the DA refuses to take any action against Mr. Gray for failing to honor a court ordered wage assignment. Ms. Collins believes Nevada has done nothing because Mr. Bernstein along with Mr. Gray are both white.

Ms Collins pointed out that the Nevada DA went after Dr. Conrad Murray (Michael Jackson's personal physician) with a vengeance claiming that he’d shown a pattern of failing to abide by child support orders. At the time Dr. Murray owed just $13,311.47 for missed child support payments. Ms Collins believes if Dr. Murray was white it would be no different from the father of her children and further stated “They only pursued him because he is African American. I am owed over $22,000.00 in back child support, Mr. Bernstein was previously convicted in a Los Angeles court for failing to pay child support that definitely shows a pattern but because he is white it puts him above the law in Nevada. Ms Collins also added my children deserve better they are entitled to the same rights as everyone else regardless of the color of their skin. If their father worked for a company owned by a minority the DA would definitely pursue that company to make sure that they honored a wage assignment for child support.
Ms Collins conveyed that she provided the Nevada District Attorney with copies of press releases for Mars Venus Coaching posted all over the internet listing Mr. Bernstein’s name as being responsible for selling franchises in China, Poland, Nevada and Arizona in just six weeks. In spite of this Ms Collins said her children failed to receive a penny in court ordered child support during that period.

This may very well be the reason Nevada consistently ranks near the bottom of the nation in payment collection. Last year the state collected about 52 percent of the payments owed. The national average is about 61 percent. A Nevada state task force is looking at ways to improve the collection of delinquent child support payments after a legislative audit found deficiencies. A good start might be looking into why Nevada is not pursuing white deadbeat parents that are gainfully employed, have assets and show a pattern of failing to pay support after being convicted.

Posted by: AmericanGIRL | Mar 18, 2010 11:34:28 AM

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