United States v. Namey ( 2004 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 United States v. Namey No. 02-4100
ELECTRONIC CITATION: 2004 FED App. 0104P (6th Cir.)
File Name: 04a0104p.06 ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF:
John B. Gibbons, John J. Gill, Cleveland, Ohio, for
Appellant. Phillip J. Tripi, ASSISTANT UNITED STATES
UNITED STATES COURT OF APPEALS ATTORNEY, Cleveland, Ohio, for Appellee.
FOR THE SIXTH CIRCUIT _________________
_________________
OPINION
UNITED STATES OF AMERICA , X _________________
Plaintiff-Appellee, - WILLIAM W SCHWARZER, Senior District Judge. John
-
- No. 02-4100 T. Namey, Jr., appeals his conviction on eight counts of
v. - violating 18 U.S.C. § 228(a) for “willfully fail[ing] to pay a
> support obligation with respect to a child who resides in
, another State.”1 We have jurisdiction pursuant to 28 U.S.C.
JOHN T. NAMEY , JR. -
Defendant-Appellant. - § 1291, and we affirm.
N FACTUAL AND PROCEDURAL HISTORY
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland. Namey and his former wife, Pamela Lancaster, were
No. 01-00541—Donald C. Nugent, District Judge. divorced in May 1992; Lancaster was awarded custody of the
couple’s three children and Namey was ordered to pay them
Argued: March 17, 2004 $201 per week in child support. Following the divorce,
Namey moved his belongings to property he owned on East
Decided and Filed: April 15, 2004 Jefferson Street in Ashtabula, Ohio (“the Jefferson property”).
He lived and worked at this address for several years.
Before: ROGERS and COOK, Circuit Judges; Namey, a practicing physician, had his medical license
SCHWARZER, Senior District Judge.* suspended in 1994 and subsequently revoked in 1998.
_________________ In 1995, Namey began commuting periodically to Farrell,
Pennsylvania to care for his ailing parents. In or around 1997,
COUNSEL Namey moved to Farrell on a more permanent basis. In 1999,
he entered into a land contract to sell the Jefferson property
ARGUED: John B. Gibbons, Cleveland, Ohio, for
Appellant. Phillip J. Tripi, ASSISTANT UNITED STATES
1
Namey also ap pealed sev eral asp ects of the district co urt’s
sentencing decision. Because Namey is being released from custod y in
*
April 200 4, those issues are mo ot. However, we find Namey’s challenges
The Honorable William W Schwarzer, Senior United States District are without merit. United States v. Delgado, 350 F.3d 520 , 524 n.4 (6th
Judge for the Northern District of California, sitting by designation. Cir. 2003).
1
No. 02-4100 United States v. Namey 3 4 United States v. Namey No. 02-4100
and received a down payment. When the buyer defaulted, he vague. United States v. Hill, 167 F.3d 1055, 1063 (6th Cir.
entered into a new sales contract under which he received 1999).
payments. Namey moved all of the furniture from the
Jefferson property to Pennsylvania. When the common meaning of a word provides adequate
notice of the prohibited conduct, the statute’s failure to define
From 1992 to 1999, Namey carried on a romantic the term will not render the statute void for vagueness.
relationship with JoAnna Dunford. He gave Dunford lavish United States v. Haun, 90 F.3d 1096, 1101 (6th Cir. 1996).
gifts, took her on trips, and provided her with living expenses. Where a term “has a commonly accepted meaning, an
Namey had power of attorney over his parents’ assets, and at ordinary person would be able to recognize whether the
times used the money for personal purposes. conduct in question is criminal.” Id. The term “reside” has
a commonly accepted meaning. Dictionaries define “reside”
In 1995, an Ohio court found that Namey owed $5,577.33 as “[t]o live in a place for a permanent or extended time,”
in past-due child support. Namey did not pay that amount, WEBSTER’S II NEW COLLEGE DICTIONARY 943 (2001), or to
nor any other child support, until 1998, despite the efforts of “[l]ive, dwell . . . to have a settled abode for a time . . . .”
the Ashtabula County Child Support Agency. A state civil BLACK ’S LAW DICTIONARY (5th ed. 1979). An ordinary
court found on several occasions that Namey was deliberately person would understand that a person resides where the
avoiding employment and it increased his monthly obligation person regularly lives or has a home as opposed to where the
to $694. In 1998, Namey made several “purge” payments to person might visit or vacation.
avoid jail sentences threatened in state contempt orders.
Namey argues that the term “reside” may have two separate
Namey was indicted on the federal charge in November meanings, with one equating to the definition of residence and
2001. The indictment alleged that Namey owed almost the other equating to “domicile.” The argument is without
$40,000 in unpaid child support for the period September 23, merit. We have made it clear that residence and domicile are
1997, to April 2, 2001, in violation of 18 U.S.C. § 228(a). At distinct concepts:
the close of the prosecution’s case at trial, Namey moved for
acquittal under Federal Rule of Criminal Procedure 29. The Generally, an individual’s “domicile” is his “true, fixed,
court denied the motion and the jury convicted on all counts. and permanent home and principal establishment.” It is
Namey timely appealed. the place to which he returns whenever he is absent.
“Residence,” in contrast, requires both physical presence
DISCUSSION and an intention to remain some indefinite period of
time, but not necessarily permanently. Thus, domicile is
I. an individual’s permanent place of abode where he need
not be physically present, and residence is where the
Namey’s first contention is that the statute is individual is physically present much of the time. An
unconstitutionally vague and has led to arbitrary enforcement. individual consequently may have several residences, but
He argues that the failure of the statute to define “resides” led only one domicile.
to an arbitrary result, pointing to evidence of his continued
economic and familial ties to Ohio. We review de novo the Eastman v. Univ. of Michigan, 30 F.3d 670, 672-73 (6th Cir.
legal question whether a criminal statute is unconstitutionally 1994) (citations omitted).
No. 02-4100 United States v. Namey 5 6 United States v. Namey No. 02-4100
Nothing in the statute or its legislative history suggests that Faasse, 265 F.3d at 485; see also United States v. H., No.
Congress intended that the prosecution must prove a 01CR0457, 2001 WL 1646465 at *8-9 (E.D.N.Y. Dec. 17,
defendant’s domicile. The House Judiciary Committee report 2001). One Congressman characterized the bill as making “it
accompanying the bill that became 18 U.S.C. § 228 reflects a crime for a parent to cross state lines in order to avoid
Congress’s broad purpose to address the problem of making court-ordered child support payments.” 138 Cong.
collection of child support payments “involv[ing] children Rec. H7326 (1992). Another described the bill as remedying
whose non-custodial parent lives in a state different from the the problem of “parents who make a mockery of state law by
child.” H.R. Rep. No. 102-771, at 5-6 (1992) (quoted in fleeing across state lines to avoid enforcement actions by
United States v. Faasse, 265 F.3d 475, 485 (6th Cir. 2001)) State courts and child support agencies.” Id. The concerns
(emphasis added); see also H.R. 1241, 102d Cong., Statement expressed in the legislative record have little to do with the
of Summary and Purpose (1992) (stating that H.R. 1241, parent’s intent to make the new state his or her domicile or
which became § 228, was intended to “address[] the growing permanent home—rather, it is the prolonged absence from the
problem of interstate enforcement of child support.”). child’s home state that concerned Congress. A parent who
Congress sought to deal with child support evaders who flee dwells, but is not domiciled, in a different state from his
across state lines because “interstate extradition and children is nonetheless absent from the child’s state, and
enforcement . . . remains a tedious, cumbersome and slow enforcement presents difficulties. Given Congress’s concern
method of collection.” H.R. 1241, 102d Cong., Statement of with enforcement, it would make no sense to read the statute
Summary and Purpose (1992). as imposing the strict domicile test, which excludes parents
who merely reside in another state but present the same
The House Judiciary Committee, which authored a report enforcement difficulties as if they were domiciled there.
accompanying the bill that became 18 U.S.C. § 228,
stated that the Committee had found that interstate In H., on which Namey relies, the district court interpreted
collection of child support was “the most difficult to § 228 as “requiring domicile, not mere residence, in another
enforce” and accounted for an “unacceptably high” state when the parent responsible for payments leaves the
deficit in child support payments. H.R. Rep. No. state of the child’s domicile temporarily and without changing
102-771, at 5-6 (1992). According to the report, his domicile from that of the child.” 2001 WL 1646465 at
approximately one-third of child support cases involve *10. The court reasoned that it seemed unlikely that parents
children whose non-custodial parent lives in a state who maintain their domicile in the same state as does the
different from the child and whose custodial parent must child but a residence elsewhere would fill the description of
therefore rely on interstate payments of child support. persons identified as the targets of the statute, i.e., persons
Among this group relying on interstate payment, against whom support orders are difficult to enforce. We are
fifty-seven percent of the custodial parents reported not persuaded by this reasoning. Aside from the fact that it
receiving child support payments “only occasionally, ignores the plain language of the statute, it substantially
seldom or never.” Id. at 5. After noting that “at least 42 undermines its effectiveness. Under the H. court’s reading, a
states have made willful failure to pay child support a noncustodial defaulting parent long absent from the state of
crime,” the report concluded that “the ability of those his child’s residence would avoid prosecution unless it were
states to enforce such laws outside their own boundaries proved that he intended to remain permanently in another
is severely limited.” Id. at 5-6. state. There is no evidence that this is what Congress
intended.
No. 02-4100 United States v. Namey 7 8 United States v. Namey No. 02-4100
II. evidence for the jury to find that Namey resided outside of
Ohio. We find no error.
Namey’s second assignment of error is that the district
court erred in instructing the jury on the issue of residence. III.
The district court instructed that In his third assignment of error, Namey contends that the
district court erred in failing to grant his Rule 29 motion. He
Reside means to live, dwell, abide, sojourn, stay, remain, argues that state remedies remained available for enforcement
or lodge. To settle oneself in a place, to be stationed, to of the support orders but were ignored even though he was
remain or stay, to have a settled abode for a time . . . . A available for service of process in Ohio. Thus, he did not fall
person may reside in more than one state at one time. If within the class at whom the statute was aimed: “hard-core”
you find that the defendant resided in more than one state parents who flagrantly refuse to pay and against whom
during the period of this count of the indictment, and one traditional extradition procedures would have failed.
of such states was the same state his children resided,
you may find that the government has not proved this We review the district court’s denial of a motion for
element beyond a reasonable doubt. acquittal de novo, but we must affirm its decision if the
evidence, viewed in the light most favorable to the
Namey himself proposed the instruction of which he now government, would allow a rational trier of fact to find the
complains. Under the doctrine of invited error, a party may defendant guilty beyond a reasonable doubt. United States v.
not complain on appeal of errors he himself invited. United Nash, 175 F.3d 429, 433 (6th Cir. 1999). The elements of a
States v. Barrow, 118 F.3d 482, 490 (6th Cir. 1997). Even if § 228 offense are: “(1) a willful (2) failure to pay (3) a past
the doctrine were not to apply here, however, our review is due support obligation, defined as ‘any amount . . .
for plain error because Namey failed to object to the determined under a court order or an order of an
instruction at trial. United States v. Jones, 108 F.3d 668, 670 administrative process pursuant to the law of a state to be due
(6th Cir. 1997); FED R. CRIM . P. 52(b). . . . ,’ (4) with respect to a child who resides in another state.”
United States v. Johnson, 114 F.3d 476, 482 (4th Cir. 1997).
Namey argues that the instruction was error because he was There was sufficient evidence for the jury to find these
domiciled in Ohio and thus it was unclear whether the elements beyond a reasonable doubt. The statute does not
government proved that he resided in a state different from require proof that the defendant be a “hard-core” offender.
his children. For the reasons discussed above, the instruction
correctly defined “resides” for purposes of § 228(a) as CONCLUSION
residence rather than domicile.2 And there was sufficient
For the reasons stated, Namey’s conviction is
AFFIRMED.
2
W e express no opinion as to whether § 228(a) requires “complete
diversity” of resid ence–i.e., whether a defendant who resides in both the
state where his child resides and another state can be convicted under the
statute. W e note that any error in the district court’s instruction on this
point inured to Namey’s bene fit, as the jury was inform ed that the statute
requires complete diversity.