United States v. Mathes ( 1998 )

Revised August 28, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-30679
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RICHARD D MATHES,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Middle District of Louisiana
_________________________________________________________________
August 13, 1998
Before WISDOM, KING, and DAVIS, Circuit Judges.
KING, Circuit Judge:
Defendant-appellant Richard D. Mathes appeals his conviction
under 18 U.S.C. § 228 for willful failure to pay child support.
For the reasons set forth below, we affirm.
I. FACTUAL & PROCEDURAL BACKGROUND
Defendant-appellant Richard D. Mathes and Lori Mayers
married in October 1987, and two children were born of the
marriage. In February 1991, Mathes and Mayers separated. On
March 22, 1992, Mayers obtained a judgment for child support in
the amount of $500 per month in the family court for East Baton
Rouge Parish, Louisiana. Mathes stipulated to the amount of the
support obligation. The judgment also stated that the amount of
child support Mathes was ordered to pay was “being set without
the necessity of either party having to show a change of
circumstances to have the same redetermined.” Although Mathes
knew of this judgment, he neither paid any child support after
entry of the judgment nor requested that the court redetermine
the amount of his obligation. Mathes and Mayers divorced in
January 1993.
On May 30, 1995, the family court rendered a judgment for
child support arrearages against Mathes in the amount of $19,000
and interest thereon, plus attorneys’ fees, curator’s fees, and
court costs. Mathes knew of this judgment and has paid no part
of it.
In July 1995, Mayers remarried, and her husband adopted
Mayers and Mathes’s children. Mathes appears to have voluntarily
relinquished his parental rights to allow the adoption, which
terminated his obligation of future support for his children.
Mayers and the children continue to reside in Louisiana.
Since the entry of the original judgment ordering him to pay
child support, Mathes has been frequently unemployed, unable to
work for several months due to an injury, and incarcerated for a
year. In 1993, Mathes relocated to Texas. In 1996, he worked
for a supermarket at $8.00 per hour and also received $168 per
month in disability benefits from the Veterans Administration;
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his total income for the year was approximately $13,000. After
moving to Texas, Mathes remarried and had a child with his new
wife.
On November 1, 1996, an indictment was returned charging
Mathes with willfully failing to pay a known child support
obligation during the period from February 1, 1996 to November 1,
1996 in violation of 18 U.S.C. § 228. Mathes was tried before a
magistrate judge. At the conclusion of the evidence, Mathes
moved for a judgment of acquittal on the basis that insufficient
evidence existed to support his conviction, and the district
court denied the motion. The court then found Mathes guilty,
sentenced him to five-months imprisonment, imposed a $10
assessment, and ordered restitution in the amount of $21,000.
Mathes filed a timely notice of appeal.
II. STANDARD OF REVIEW
On appeal, Mathes contends that the government adduced
insufficient evidence to sustain his conviction. Our standard of
review in evaluating the sufficiency of the evidence supporting a
conviction after a bench trial is whether the finding of guilt is
supported by substantial evidence, i.e., evidence sufficient to
justify the trial judge, as the trier of fact, in concluding
beyond a reasonable doubt that the defendant is guilty. United
States v. Garcia, 135 F.3d 951, 955 & n.4 (5th Cir.), cert.
denied, 118 S. Ct. 2386 (1998); United States v. Collazo, 117
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F.3d 793, 795 (5th Cir. 1997); United States v. Davis, 993 F.2d
62, 66 (5th Cir. 1993). “As an appellate court, it is not our
task to weigh the evidence or determine the credibility of
witnesses. We must view all evidence in the light most favorable
to the government and defer to all reasonable inferences drawn by
the trial court.” United States v. Ybarra, 70 F.3d 362, 364 (5th
Cir. 1995) (citation omitted).
III. DISCUSSION
The Child Support Recovery Act of 1992 (CSRA), 18 U.S.C.
§ 228, provides that “[w]hoever willfully fails to pay a past due
support obligation with respect to a child who resides in another
State” commits a criminal offense. Id. § 228(a). The statute
further provides that, as used in the section,
the term “past due support obligation” means any
amount--
(A) determined under a court order or an order of an
administrative process 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; and
(B) that has remained unpaid for a period longer than
one year, or is greater than $5,000.
Id. § 228(d). The statute renders a first offense punishable by
a fine, imprisonment not to exceed six months, or both. See id.
§ 228(b)(1).
Mathes contends that insufficient evidence exists to support
his conviction because the government did not offer substantial
evidence indicating that Mathes “willfully” failed to pay a past
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due child support obligation. In this regard, Mathes does not
dispute that he knew of the Louisiana family court judgment
imposing the child support obligation or that he failed to pay
it. Rather, he contends that (1) the government failed to
establish that he possessed the ability to pay the past due
support obligation during the period alleged in the indictment
and (2) the government failed to rebut his claim that he
possessed a good-faith belief that he had no legal duty to pay
the child support in question. We consider each of these
arguments in turn.
A. Inability to Pay
The CSRA does not define the term “willfully.” However, the
statute’s legislative history provides some indication of what
Congress meant by the term. See Ashland Chem. Inc. v. Barco
Inc., 123 F.3d 261, 266 (5th Cir. 1997) (“Where a statute is
silent or ambiguous as to an issue, we next look to the
legislative history for guidance as to the intent of the
legislators.”). The report of the House Committee on the
Judiciary addressing the CSRA explains the statute’s scienter
requirement as follows:
The operative language establishing the requisite
intent under [the CSRA] is “willfully fails to pay.”
This language 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 [the CSRA] should be
interpreted in the same manner that Federal courts have
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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 C[i]r. 1975). The
willfulness element in the tax felony statutes requires
proof of an intentional violation of a known legal
duty, and thus describes a specific intent crime. U.S.
v. Birkenstock, 823 F.2d 1026, 1028 (7th Cir. 1987).
The word “willfully” under the tax felony statutes
imports a bad purpose or evil motive. U.S. v. Bishop,
412 U.S. 346, 361 (1973). The Committee intends that
the willful failure standard of [the CSRA] be given
similar effect as the willful failure standard
contained in these tax felony provisions.
H.R. REP. NO. 102-771, at 6 (1992), available in 1992 WL 187429;
United States v. Williams, 121 F.3d 615, 621 (11th Cir. 1997)
(“In light of the Committee Report, and the similarity between
the CSRA and the tax statutes that criminalize willful failure to
pay money, we conclude it is proper to rely on cases construing
the intent element in those tax statutes when construing the
CSRA’s willfulness standard.”), cert. denied, 118 S. Ct. 1398
(1998).
Mathes contends that the evidence adduced at his trial is
insufficient to establish beyond a reasonable doubt that either
(1) he possessed sufficient funds during the period alleged in
the indictment to pay his past due support obligation in its
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entirety or (2) his possession of insufficient funds was the
result of actions on his part specifically intended to render him
unable to pay his support obligation. However, Mathes admitted
at trial that, during the period alleged in the indictment, he
could have paid some amount toward his support obligation.
During direct examination by defense counsel, Mathes testified as
follows:
Q: Mr. Mathes, do you have the ability to pay over
$20,000 and support your current family?
A: No way.
Q: Do you have the ability to pay anything in excess
over what it takes to support your current family?
A: Some.
Q: How much?
A: I really don’t know. There is some money left
over from the bills that I pay, the earnings that
I make, and then I pay the bills. Yes, there is
some money left over, but not $500 a month. Way
under that.
We conclude that Mathes’s acknowledgment that he could have
paid some amount toward his past due support obligation precludes
his financial condition from serving as a bar to criminal
liability. Mathes’s interpretation of the CSRA as requiring
proof beyond a reasonable doubt that, during the period alleged
in the indictment, the defendant had the ability to pay the
entire amount of past due child support owed possesses no basis
in the language of the statute. The CSRA defines “support
obligation” to include “any amount . . . determined under a court
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order . . . to be due from a person for the support and
maintenance of a child . . . that has remained unpaid for a
period longer than one year.” 18 U.S.C. § 228 (emphasis added).
Mathes’s legal obligation to pay Mayers approximately $20,000 in
child support arrearages necessarily encompassed an obligation to
pay any lesser-included amount that Mathes was capable of paying.
Thus, while Mathes may not have willfully failed to pay the full
amount of child support arrearages that he owed, he could have
willfully failed to pay the lesser amount that he was capable of
paying; that lesser amount fits the CSRA’s definition of support
obligation, which includes any amount due pursuant to court order
that has remained unpaid for longer than a year.
Were we to conclude otherwise, child support obligors would
be able to insulate themselves from criminal liability by simply
failing to make child support payments until the total amount
past due is an amount that they are incapable of paying in one
lump sum. Construing the CSRA so that it creates such a perverse
incentive for extended nonpayment would surely flout Congress’s
purpose for enacting the statute: to remedy “the growing problem
of interstate enforcement of child support by punishing certain
persons who intentionally fail to pay their child support
obligations.” H.R. REP. NO. 102-771, at 4 (1992). We therefore
conclude that Mathes’s financial condition did not preclude the
district court from finding beyond a reasonable doubt that he
willfully failed to pay a past due support obligation.
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B. Good-Faith Belief that No Obligation Existed
Mathes next argues that the government failed to negate his
good-faith belief that he did not owe the $20,000 in child
support arrearages that the Louisiana family court ordered him to
pay Mayers. In support of this contention, Mathes points to his
testimony at trial that he discussed his child support obligation
with a Texas lawyer and his probation officer and that each of
them expressed a belief that he did not owe the child support
obligation because he had relinquished his parental rights.
Additionally, Mathes notes that Ken Seago, his Louisiana
probation officer, testified that Mathes “indicated to [him] that
he didn’t feel like he owed anything because he had given up his
parental rights.”
As noted earlier, the legislative history of the CSRA
indicates that cases construing the willfulness requirement of 26
U.S.C. §§ 7202 and 7203, statutes which criminalize the willful
failure to file federal income tax returns, provide information,
collect taxes, or pay taxes, are relevant in construing the
willfulness requirement of the CSRA. See H.R. REP. NO. 102-771,
at 6 (1992); Williams, 121 F.3d at 621. The Supreme Court has
held that, in order to sustain a conviction under these tax
statutes, the government must prove beyond a reasonable doubt
“that the defendant knew of th[e] duty [to file a return, provide
information, collect taxes, or pay taxes], and that he
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voluntarily and intentionally violated that duty.” Cheek v.
United States, 498 U.S. 192, 201 (1991). The Court went on to
state that “carrying this burden requires negating a defendant’s
claim of ignorance of the law or a claim that because of a
misunderstanding of the law, he had a good-faith belief that he
was not violating any of the provisions of the tax laws.” Id. at
202. Thus, “if [a defendant] assert[s] that he truly believed
that [he was not violating any provision of the Internal Revenue
Code] . . . , and the [trier of fact] believe[s] him, the
Government [has] not . . . carried its burden to prove
willfulness, however unreasonable the court might deem such a
belief.” Id. (emphasis added); United States v. Wisenbaker, 14
F.3d 1022, 1025 (5th Cir. 1994). Other circuits have applied
Cheek’s willfulness standard in CSRA cases, and we now do the
same. See Williams, 121 F.3d at 621; United States v. Crawford,
115 F.3d 1397, 1407 (8th Cir. 1997).
Applying Cheek’s definition of willfulness to this case, we
conclude that substantial evidence supports the district court’s
conclusion that Mathes willfully failed to pay a past due support
obligation. Mathes acknowledged at trial that he was aware of
the Louisiana court’s original March 22, 1992 judgment ordering
Mathes’s payment of child support as well as the May 30, 1995
judgment for arrearages.
The district court, as the trier of fact, was free to, and
expressly did, discredit Mathes’s testimony that he had been told
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by a Texas attorney and by his probation officer that his
relinquishment of his parental rights extinguished his obligation
to pay child support that had previously accrued. See United
States v. Ayala, 887 F.2d 62, 67 (5th Cir. 1989) (“This Court
recognizes that it is the sole province of the trier of fact to
weigh the evidence and the credibility of the witnesses.”
(internal quotation marks omitted)). Furthermore, Mathes
testified that the Texas attorney with whom he purportedly spoke
told him that he was unfamiliar with the laws of Louisiana.
Reliance on counsel’s advice excuses a criminal act
only to the extent it negates willfulness and to negate
willfulness counsel’s advice must create (or
perpetuate) an honest misunderstanding of one’s legal
duties. If a person is told by his attorney that a
contemplated course of action is legal but subsequently
discovers . . . reason to doubt the advice, he cannot
hide behind counsel’s advice to escape the consequences
of his violation.
United States v. Benson, 941 F.2d 598, 614 (7th Cir. 1991),
mandate recalled and amended in other respects by 957 F.2d 301
(7th Cir. 1992). Moreover, Mathes admitted that he did not even
show the attorney the judgment ordering payment of child support
or the judgment for arrearages. As such, even assuming that the
attorney gave Mathes the advice that he claims, the fact that
Mathes did not fully disclose all of the pertinent facts to the
attorney would support the district court’s determination that
Mathes did not in good faith rely on the advice of counsel. See
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United States v. Schmidt, 935 F.2d 1440, 1449 (4th Cir. 1991).1
Finally, the district court could properly infer that Seago’s
testimony that Mathes “didn’t feel like he owed anything because
he had given up his parental rights” indicated that Mathes did
not believe that he ought to have to pay the past due support but
not that he believed that he possessed no legal duty to do so.
Cf. Cheek, 498 U.S. at 203-04 (“Of course, the more unreasonable
the asserted beliefs or misunderstandings are, the more likely
the [trier of fact] will consider them to be nothing more than
simple disagreement with known legal duties imposed by the tax
laws and will find that the Government has carried its burden of
proving knowledge.”). Substantial evidence thus supports the
district court’s conclusion that Mathes knew of his duty to pay
the past due child support and voluntarily and intentionally
violated that duty. See Collazo, 117 F.3d at 795 (“We must view
all evidence in the light most favorable to the government and
defer to all reasonable inferences drawn by the trial court.”).
1
Mathes’s failure to show the attorney the judgment
ordering child support or the judgment for arrearages is rendered
even more salient by Mathes’s later clarification of the advice
he supposedly received. Mathes testified that the attorney told
him that “[t]he way [he] seen it, there was nothing in th[e]
papers [that he actually showed the attorney, which consisted of
the divorce decree and documents related to the adoption] that
said I owed child support.”
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IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
judgment of conviction and sentence.
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