United States v. Murphy ( 1997 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 96-4628
JAMES DENNIS MURPHY, JR.,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, Chief District Judge.
(CR-95-96-R)
Argued: May 5, 1997
Decided: June 26, 1997
Before WILKINSON, Chief Judge, and RUSSELL and
WILLIAMS, Circuit Judges.
_________________________________________________________________
Reversed and remanded by published opinion. Chief Judge Wilkinson
wrote the majority opinion, in which Judge Russell and Judge Wil-
liams joined. Judge Williams wrote a concurring opinion.
_________________________________________________________________
COUNSEL
ARGUED: Daniel Steven Goodman, Criminal Division, Appellate
Section, UNITED STATES DEPARTMENT OF JUSTICE, Washing-
ton, D.C., for Appellant. William H. Cleaveland, RIDER, THOMAS,
CLEAVELAND, FERRIS & EAKIN, Roanoke, Virginia, for Appel-
lee. ON BRIEF: Robert P. Crouch, Jr., United States Attorney, Julie
C. Dudley, Assistant United States Attorney, Criminal Division,
Appellate Section, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellant.
_________________________________________________________________
OPINION
WILKINSON, Chief Judge:
James Dennis Murphy was convicted before a magistrate judge in
the Western District of Virginia for willful failure to pay child support
in violation of the Child Support Recovery Act of 1992 ("CSRA"),
see 18 U.S.C. § 228. Murphy appealed his conviction to the district
court, contending that he had been tried in an improper venue. The
district court agreed, and ordered that the case against Murphy be dis-
missed. Murphy v. United States, 934 F. Supp. 736 (W.D. Va. 1996).
The United States appeals, arguing that both the language of 18
U.S.C. § 228 and the policies underlying the CSRA support the con-
clusion that the Western District of Virginia, the residence of Mur-
phy's daughter, was a proper venue for Murphy's prosecution. We
agree, and accordingly reverse the judgment of the district court.
I.
Linda Troutt Murphy ("Linda Murphy") and James Dennis Murphy
("Murphy") divorced on April 15, 1985, in Oklahoma City, Okla-
homa. Linda Murphy retained custody of the couple's four-year-old
daughter Erin. Pursuant to the Oklahoma divorce decree, Murphy was
obligated to pay $100 per month in child support. Shortly after the
divorce, both parents moved from Oklahoma -- Murphy to Texas,
and Linda Murphy to Roanoke, Virginia where she and Erin still
reside.
Murphy failed to pay support as required by the divorce decree.
Consequently, in 1988, Linda Murphy contacted the Roanoke office
of the Virginia Department of Social Services, Division of Child Sup-
port Enforcement ("Virginia DCSE"), seeking assistance in recover-
ing the support payments and increasing their amount. After
confirming Dennis Murphy's address in Burleson, Texas, the Virginia
2
DCSE requested that Texas take action under the Uniform Reciprocal
Enforcement Support Act ("URESA"). In response, the Texas Attor-
ney General filed a URESA action against Murphy on behalf of Vir-
ginia and Linda Murphy. The case was captioned,"The Attorney
General of Texas ex rel. State of Virginia and Linda Troutt Murphy,
Petitioner, vs. James Dennis Murphy, Jr., Respondent."
In July 1990, the Texas court found that Murphy owed"the State
of Virginia and/or petitioner" past due child support. The court
ordered Murphy to make semimonthly payments of $112.00 to the
Johnson County Child Support Office in Cleburne, Texas. The order
clearly stated that the payments were for "disbursement to the Central
Registry for Child Support of the initiating State," i.e., Virginia.
Pursuant to the order of the Texas court, Murphy's employer, the
Smith County Sheriff's Department, withheld Murphy's child support
payments from his paychecks. However, in 1991, Murphy left his job
in Texas and ceased to make child support payments after July of that
year. Sometime later, Murphy called his former wife from Florida,
informing her that he had moved there and was working as a dog
trainer.
The Virginia DCSE was able to determine that Murphy was in fact
working in Jacksonville, Florida, and it attempted to initiate another
URESA action there on March 3, 1992. Murphy, however, left his
Jacksonville address before the Florida court was able to act on the
petition. Thereafter, the Virginia DCSE made numerous attempts to
track down Murphy and collect child support payments, but was
unsuccessful due to Murphy's pattern of frequent relocation.
By January 1, 1993, Murphy owed nearly $6,000 in back child sup-
port, and on August 1, 1994, the Virginia DCSE placed him on Vir-
ginia's "Ten Most Wanted" list of parents who had failed to pay child
support. At this time, Murphy was living in New York. There, a jour-
nalist contacted Murphy, seeking to question him about his placement
on the "Ten Most Wanted" list. After this incident, Murphy contacted
the Virginia DCSE, which informed him that his case had been
referred to the United States Attorney for criminal prosecution. How-
ever, the Virginia DCSE indicated that it would advise the U.S. Attor-
3
ney's office not to take further action if Murphy promptly began to
make payments.
Despite this warning, Murphy continued to avoid his child support
obligations. As a result, on December 28, 1994, the U.S. Attorney
filed a criminal complaint and arrest warrant for Murphy in the
United States District Court for the Western District of Virginia.
Meanwhile, Murphy had moved back to Florida, where he was
arrested in January 1995.
On May 22, 1995, Murphy was tried for violations of the CSRA
in the United States District Court for the Western District of Vir-
ginia. Prior to the bench trial before the magistrate, Murphy's counsel
objected that the case was being tried in an improper venue. The mag-
istrate judge rejected this objection and found Murphy guilty of will-
fully refusing to make child support payments. See 18 U.S.C. § 228.
Murphy was sentenced to five years probation, subject to the condi-
tion that he make all required child support payments.
Murphy appealed the magistrate's decision to the district court. The
district court agreed with Murphy that venue was improper in the
Western District of Virginia, "[b]ecause Murphy was directed to pay
the child support in Texas and was never ordered to make payments
in Virginia." Murphy, 934 F. Supp. at 738. The district court
remanded the case to the magistrate with instructions to dismiss for
improper venue. Id. at 740. The United States appeals.
II.
The United States Constitution guarantees an accused the right to
be tried where a crime was committed. U.S. Const. art. III, § 2, cl. 3.
The Sixth Amendment further directs that criminal defendants have
a right to be tried in "the State and district wherein the crime shall
have been committed." U.S. Const. amend. VI. These constitutional
commands are reflected in Fed. R. Crim. P. 18, which provides that
"[e]xcept as otherwise permitted by statute or by these rules, the pros-
ecution shall be had in a district in which the offense was committed."
However, as Murphy concedes, and as our precedent clearly holds,
"[t]he Constitution does not limit venue to a single district." United
4
States v. Newsom, 9 F.3d 337, 338 (4th Cir. 1993) (citing United
States v. Lombardo, 241 U.S. 73, 77 (1916)). Rather, it "requires only
that venue be determined from the nature of the crime and the loca-
tion of the acts constituting it." United States v. Cofield, 11 F.3d 413,
419 (4th Cir. 1993). Where, as in this instance, Congress has not pro-
vided an express venue provision in conjunction with a criminal stat-
ute, this circuit has looked to the verbs defining the criminal offense
and the purpose underlying the criminal statute to determine proper
venue. Cofield, 11 F.3d at 417; Newsom , 9 F.3d at 339.
A.
Murphy's contention throughout has been that a prosecution
brought in the Western District of Virginia would violate both Rule
18 and the constitutional guarantees it was designed to implement.
Murphy was accused of violating the CSRA, which makes "willfully
fail[ing] to pay a past due support obligation with respect to a child
who resides in another State" a federal crime. 18 U.S.C. § 228(a). He
argues that since the offense in this case is "failure to pay," it can
occur only in the state where the payment originated or in the state
to whose court order he was subject. Thus, he concludes that venue
would be limited to Florida -- the state from which he failed to pay
child support, and Texas -- the state to which he was required to
make support payments pursuant to court order.
Murphy's contention, however, ignores the statute's use of the verb
"resides," which clarifies that the failure to pay is with respect to a
"child who resides in another state." It also ignores the fact that both
of the statute's verbs clearly indicate that the duty to pay runs to the
defendant's child. Murphy "failed to pay" the child support with
respect to his child, and the person who "resides" in another state is
also his child. Thus, the language of the statute strongly supports the
conclusion that the child's residence is a proper venue for prosecution
under 18 U.S.C. § 228. At best, Murphy's argument supports the con-
clusion that the situs of his crime was not limited to a single venue.
However, this circuit has already recognized that a failure to pay or
a failure to file can often occur in more than one location. See United
States v. Garman, 748 F.2d 218, 221 (4th Cir. 1984) (willful failure
to file tax return was "a crime committed in more than one district").
5
Murphy's reliance on other "failure to act" cases in support of his
position is misplaced. Those cases are not on point because they
involve situations in which there are only two possible venues, one
in which the defendant is located, and the other in which the defen-
dant was to complete the performance of a legal obligation. For exam-
ple, in Johnston v. United States, 351 U.S. 215 (1956), the Supreme
Court addressed the issue of venue where defendant conscientious
objectors failed to obey orders to report for civilian work in various
districts. The Court held that "the venue of these violations . . . lies
in the district where the civilian work was to be performed." Id. at
220.
Venue 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. The facts in United States v. Blecker, 657
F.2d 629 (4th Cir. 1981), for example, are much closer to the situation
at hand than those in Johnston. In Blecker, the defendant was con-
victed of mail fraud and presenting false claims to the United States.
The defendant had prepared the claims in one district, submitted them
to a private intermediary in another district, whereupon the intermedi-
ary paid the claims and submitted them for reimbursement to a gov-
ernment agency in a third district. We held that venue was appropriate
in all three districts: where the false claims were prepared; where the
intermediary had transmitted the claims for reimbursement; and
where the claims were actually received by the government. Id. at
632-33. Likewise, in Garman, we held that in a prosecution for a will-
ful failure to file an income tax return, venue was proper either in the
District of Maryland, where the defendant could have filed, or in the
Eastern District of Pennsylvania, where the return eventually would
have been processed if it had been filed in Maryland. 748 F.2d at 220-
21.
Factually, this case is analogous to the situations we confronted in
Blecker and Garman. Texas merely served as an intermediate collec-
tion point for payment of child support which would be forwarded to
Virginia. As the statute clearly indicates, Murphy's"failure to pay"
was "with respect to a child who resides in" Virginia. 18 U.S.C.
§ 228. The Texas court order reflects the operative statutory verbs,
noting that "the State of Virginia and/or Petitioner is entitled to a
judgment for the amount of unpaid court-ordered child support," and
6
that Murphy's payments were for "disbursement to the Central Regis-
try for Child Support of" Virginia. The fact that Texas served as a col-
lection point for Murphy's child support payments simply does not
support the conclusion that venue is improper in the district for which
those payments were ultimately destined -- the Western District of
Virginia.
B.
Murphy's argument also overlooks the fact that this circuit has con-
sistently held that proper venue must promote the aims of a criminal
statute, not eviscerate them. Cofield, 11 F.3d at 417 (proper venue
should promote legislative purpose); Newsom, 9 F.3d at 339 (same).
Meeting parental responsibilities is what the CSRA is all about. Con-
gress enacted this statute to address "the problem of interstate
enforcement of child support by taking the incentive out of moving
interstate to avoid payment." H.R. Rep. No. 771, 102d Cong., 2d
Sess. 6 (1992). Limiting venue to the state where the order command-
ing payment was entered or to the state where the delinquent parent
resides would do nothing but frustrate Congress' intention in passing
this Act.
We need look no farther than this case for an example. While we
do not reject Texas as a permissible venue here, it would be especially
troublesome to limit venue to that state as suggested by the district
court. Murphy, 934 F. Supp. at 740. Neither Murphy himself, his for-
mer wife, his daughter, nor the social workers involved in the case
lived in Texas at the time of the criminal prosecution. The enforce-
ment of the CSRA would be much more burdensome if all these wit-
nesses were forced to travel to Texas as Murphy suggests. The main
witnesses, Linda Murphy and the social workers who assisted her, are
all Virginia residents. Bringing noncompliant parents to account is
facilitated if venue lies where nonpayment has its main effect -- in
Virginia, the residence of the child. See United States v. Billups, 692
F.2d 320, 332 (4th Cir. 1982) ("The protected interest is in Virginia
. . . and other basic venue considerations must flow from that real-
ity."). If we were to adopt Murphy's position, we would only encour-
age delinquent parents to follow Murphy's itinerant pattern to avoid
obligations to their children and the legal consequences of their acts.
7
Murphy, however, contends that these considerations are irrelevant.
He argues that finding venue in the district where the child resides
would permit the guardian of the child to move the child from venue
to venue, thus creating a "moving target" which would allow for a
criminal prosecution anywhere in the country. He concludes that such
a rule would vitiate the Constitution's safeguard against the unfair-
ness and hardship of facing criminal charges in distant and unex-
pected locations.
Murphy's concern is not well-founded. Murphy was not dealing
with a phantom family. He was fully aware that his daughter resided
in Virginia, and in fact contacted his ex-wife and daughter there
repeatedly. He was further aware of an enforceable court order direct-
ing that child support payments be forwarded from Texas to Erin's
residence in Virginia. Indeed, Murphy's objection is particularly
problematic considering that it was Murphy himself who created a
"moving target" by fleeing from location to location to avoid his obli-
gations to his daughter, whose residence has remained fixed through-
out in the Western District of Virginia.
III.
For the foregoing reasons, the judgment of the district court is
reversed, and the case is remanded for reinstatement of Murphy's
conviction.
REVERSED AND REMANDED
WILLIAMS, Circuit Judge, concurring:
I agree with the majority's conclusion that venue is proper in the
Western District of Virginia. However, because this case raises an
important issue of first impression in the federal courts,* I write sepa-
rately to express my view on two points. First, under the CSRA venue
does not lie wherever the child resides. Rather, venue is proper here
_________________________________________________________________
*The United States Court of Appeals for the Eighth Circuit is currently
considering this issue. See United States v. Crawford, No. 96-2808 (8th
Cir.) (argued Nov. 18, 1996) (determining whether venue is proper in the
district where the child resided).
8
because the Western District of Virginia is the place where the child
support payments are designated for disbursement. Second, despite
suggestions to the contrary in our precedent, legislative purpose
should not be allowed to circumvent the constitutional requirement
that venue lies where the crime is committed.
I.
I do not read the majority opinion as stating that venue is proper
under the CSRA wherever the child resides. Here, Murphy was
charged with "willfully fail[ing] to pay a past due support obligation
with respect to a child in another state." 18 U.S.C.A. § 228(a). Will-
fully failing to pay is not an act, rather it is a failure to act. It is well
established that "where the crime charged is a failure to do a legally
required act, the place fixed for its performance fixes the situs of the
crime." Johnston v. United States, 351 U.S. 215, 220 (1956).
The 1990 Texas court order requiring Murphy to pay child support
clearly stated that Murphy owed the past due child support to "the
State of Virginia and/or petitioner." Because the payments were for
"disbursement to the Central Registry for Child Support of the initiat-
ing State," Virginia was the ultimate place fixed for Murphy's perfor-
mance. For this reason, the Western District of Virginia was a proper
venue for Murphy's prosecution.
II.
As the majority opinion correctly notes, the United States Constitu-
tion guarantees an accused the right to be tried where the crime is
committed. See U.S. Const. art. III, § 2, cl. 3 (requiring that the "the
trial of all Crimes . . . shall be held in the State where the said crimes
shall have been committed"); U.S. Const. amend. VI (requiring that
the trial of all crimes shall be held in the "State and district wherein
the crime shall have been committed"). The Constitution, however,
does not provide any help in determining where a crime is committed.
That determination must be made "from the nature of the crime
alleged and the location of the act or acts constituting it." United
States v. Anderson, 328 U.S. 699, 703 (1946); see also Travis v.
United States, 364 U.S. 631, 635-37 (1961).
9
In United States v. Cofield, 11 F.3d 413 (4th Cir. 1993), we stated
that "the nature of the crime alleged" could be determined by
"look[ing] at the purpose of the statute as evidenced by its legislative
history." Id. at 416. Our analysis in Cofield was based, I believe, on
a misreading of the Supreme Court's directive in Anderson. Although
we must consider "the nature of the crime alleged" in determining
venue, I believe that this phrase requires an exhaustive inquiry into
the precise conduct proscribed by Congress rather than a dubious
inquiry into the purpose of the statute as evidenced by its legislative
history. Otherwise, legislative purpose could be used to circumvent
the constitutional requirement that venue lie where the crime is com-
mitted. For example, venue could be improperly fixed for the conve-
nience of the prosecution or the accused. See Johnston, 351 U.S. at
220-21 (noting that because the Constitution fixes venue in the place
where the crime was committed, any "variation from that rule for
[the] convenience of the prosecution or the accused is not justified").
Proper venue analysis should consider congressional purpose only to
the extent it was actually given effect in the statutory text.
10