United States v. Williams

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4055
GREGORY LAMONT WILLIAMS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-99-162)
Argued: September 29, 2000
Decided: January 22, 2001
Before LUTTIG and WILLIAMS, Circuit Judges, and
Frederick P. STAMP, Jr., Chief United States District Judge
for the Northern District of West Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Reginald Moore Barley, Richmond, Virginia, for Appel-
lant. Sara Elizabeth Flannery, Special Assistant United States Attor-
ney, Richmond, Virginia, for Appellee. ON BRIEF: Helen F. Fahey,
United States Attorney, Richmond, Virginia, for Appellee.
2 UNITED STATES v. WILLIAMS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Gregory Lamont Williams appeals his conviction for willful failure
to pay past due child support obligations in violation of the Deadbeat
Parents Punishment Act (DPPA), 18 U.S.C.A. § 228(a)(3) (West
Supp. 2000). Williams argues that his conviction violates the Ex Post
Facto Clause of the United States Constitution, U.S. Const. art. 1, § 9,
cl. 3; that the evidence was insufficient to support the district court’s
finding that his failure to pay was "willful"; and that the indictment
failed adequately to allege a violation of the DPPA. The Government,
while not cross-appealing, argues that the district court’s restitution
order was too small. We affirm Williams’s conviction but decline to
disturb the district court’s restitution order.
I.
Williams and Velma Jackson-Williams ("Jackson-Williams") were
married on August 26, 1978 in Henrico County, Virginia. Two chil-
dren were born of the marriage — Ryan Christopher, born April 29,
1982, and Shannon Renee, born May 28, 1984.1 Williams and
Jackson-Williams were divorced on August 6, 1986 by the Circuit
Court of Henrico County, Virginia. The divorce decree, which incor-
porated a property settlement, ordered Williams to pay $400 per
month in child support, plus one-half of the children’s health insur-
ance premiums and one-half of all of the children’s medical and den-
tal expenses not covered by insurance (hereinafter all support
obligations will be referred to as "child support"). The child support
order was increased several times by the Virginia state court, reaching
$700 per month on June 18, 1991. In late 1992, after several years of
1
Ryan Williams was born with a congenital heart disorder and was
placed on the list for a heart transplant in 1997. He died on March 9,
1999.
UNITED STATES v. WILLIAMS 3
controversies involving Williams’s slow payments of child support,
Jackson-Williams learned that Williams had moved to Michigan; she
called him in February of 1993 to discuss his overdue child support.2
In 1993, the State of Virginia filed a petition with the Michigan
Circuit Court under the Uniform Reciprocal Enforcement of Support
Act, Mich. Comp. Laws Ann. §§ 780.151-780.183 (West 1998), seek-
ing collection of arrearages due, payment of medical expenses, and
prospective enforcement of the Virginia child support order. On Janu-
ary 24, 1994, the Michigan court entered an Order for Support in the
amount of $75.75 per week, consisting of $65 per week in child sup-
port payments, $10 per week toward accumulated arrearages, and
$.75 in court fees. The order did not mention the issue of medical
expenses and did not directly address the existing Virginia order. Wil-
liams became delinquent under the terms of the Michigan order, and
in 1995 he was ordered to pay an additional $35 per week towards his
arrearages under that order. Williams failed to make these payments,
and in April of 1995, a bench warrant was issued for failure to pay
his obligations under the Michigan order. By this time, however, Wil-
liams had moved to Tennessee after Joan Williams, whom he married
in 1995, accepted a job in that state. During 1995 he paid no child
support to either jurisdiction. In the summer of 1996, after locating
Williams in Tennessee, the State of Virginia filed a petition in the
Tennessee state courts under the Uniform Interstate Family Support
Act (UIFSA), Tenn. Code Ann. §§ 36-5-2001 to 36-5-2902 (1999),
seeking enforcement of the Virginia order and collection of arrearages
under the Virginia order. Williams made two payments in 1996
through the Michigan courts, totaling approximately $6,700. No pay-
ments were made in 1997.
Sometime in 1996, Joan Williams accepted a job in California, and
in 1997, Williams joined her there. They jointly owned a residence in
California valued at $535,000. In 1998, the State of Virginia filed a
UIFSA petition with the California authorities seeking enforcement of
the Virginia order and collection of arrears. The California child sup-
port authorities initially requested a copy of the Michigan order,
2
Jackson-Williams testified in the district court proceedings below that
Williams told her that he had other commitments and could not make
child support payments.
4 UNITED STATES v. WILLIAMS
asserting that it was controlling, but they later concluded that because
neither party was living in Michigan, the Virginia order was control-
ling. However, because the State of Virginia took certain direct mea-
sures such as wage garnishment to achieve collection, California
closed its case on January 8, 1999.
On June 24, 1998, Congress enacted the DPPA, which provides
enhanced punishment for the interstate failure to pay child support
obligations. The DPPA established a penalty of up to two years in
prison, a fine and restitution for, inter alia, the willful failure to pay
a support obligation "with respect to a child who resides in another
State, if such obligation has remained unpaid for a period longer than
2 years, or is greater than $10,000." 18 U.S.C.A. § 228(a)(3) (West
2000).
On May 18, 1999, Gregory Williams was indicted by a Grand Jury
sitting in the Richmond Division of the United States District Court
for the Eastern District of Virginia for willfully failing to pay past due
child support obligations in violation of the DPPA. On August 27,
1999, the district court denied Williams’s Motion to Dismiss the
indictment, wherein he argued that the child support order entered by
the Virginia courts had been validly modified by the Michigan courts
and thus, the amount of arrearage was less than $10,000. After a
bench trial, the district court found Williams guilty and, after a hear-
ing, imposed a sentence of twenty-four months incarceration, a $100
fine, and $24,318.17 in restitution. Williams filed a timely appeal
challenging his conviction. Williams argues that the district court’s
reliance on arrearages that accrued before the effective date of the
DPPA violates the Ex Post Facto Clause of the Constitution, that the
evidence presented at trial was insufficient to support the district
court’s finding that his failure to pay after the effective date of the
DPPA was willful, and that the indictment failed adequately to allege
willful nonpayment of a support obligation two years overdue or in
an amount greater than $10,000. The Government argues, without a
cross-appeal, that the district court’s restitution order was erroneous
in that it used the Michigan court’s monthly support figure, rather
than that of the Virginia court, as the basis for calculating restitution.
We address each argument in turn.
UNITED STATES v. WILLIAMS 5
II.
A.
Williams argues first that the district court’s reliance on arrearages
that accrued before the effective date of the DPPA to establish the
requisite overdue amount or arrearage period "changes the legal con-
sequences of acts completed before [the statute’s] effective date,"
Weaver v. Graham, 450 U.S. 24, 31 (1981), thus violating the Ex Post
Facto Clause. We review de novo a district court’s ruling on whether
a statute violates the Ex Post Facto Clause. Plyler v. Moore, 129 F.3d
728, 734 (4th Cir. 1997).
Our decision in April of this year in United States v. Wilson, 210
F.3d 230 (4th Cir. 2000), is controlling on this issue. Wilson
addressed the application of the DPPA under circumstances in which
the $10,000 arrearage amount required by the statute3 could only be
satisfied by considering arrearages which accrued prior to the DPPA’s
date of enactment. See id. at 233 (noting that it was undisputed that
the defendant had not accrued more than $10,000 in support obliga-
tions after the enactment of the DPPA). We noted that "the essence
of the criminal act here is Wilson’s willful failure to pay; the exis-
tence of past due obligations in a sum greater than $10,000 merely
brings him within the scope of the statute." Id. at 234. We held that
because "Wilson was convicted and sentenced based on post-
enactment conduct, he was punished in accordance with the law as it
existed when the offense was committed . . . . His punishment for this
offense therefore does not violate the Ex Post Facto Clause." Id. at
235-36. Because the conduct prohibited by the DPPA is the willful
failure to pay overdue child support, the Ex Post Facto Clause is not
violated where the indictment alleges, and the government estab-
lishes, that such willful failure occurred after the enactment of the
DPPA. See id.; see also United States v. Russell, 186 F.3d 883, 886
(8th Cir. 1999) (holding that "the government’s reliance on . . . pre-
enactment accumulation of past due support obligations [to establish
3
In Wilson, the government elected not to argue that the two-year
arrearage prong was satisfied, instead proceeding exclusively on the
$10,000 prong of the statute. See United States v. Wilson, 210 F.3d 230,
233 (4th Cir. 2000).
6 UNITED STATES v. WILLIAMS
$10,000 in past-due child support under the DPPA] does not violate
the Ex Post Facto Clause").
Williams relies heavily upon United States v. Mussari, 152 F.3d
1156 (9th Cir. 1998), a case decided under the Child Support Recov-
ery Act (CSRA), the DPPA’s predecessor statute. The indictment at
issue in Mussari, however, explicitly alleged willful failure to pay
during a period beginning prior to the enactment of the CSRA. See
id. at 1158. The Ninth Circuit found that the district court had uncon-
stitutionally convicted Mussari of willfully failing to pay at times
prior to the enactment of the CSRA. Because the district court "drew
no distinction" between willful failure to pay prior to and following
the enactment of the CSRA, the district court "applied the statute
retroactively" to criminalize incidents of nonpayment that were com-
plete prior to the CSRA’s enactment. Id. The Ninth Circuit suggested
that an indictment limited to an allegation that the willful failure
occurred only after the CSRA’s enactment would pose no Ex Post
Facto problem. See id. As this Circuit noted in Wilson, Mussari is
thus inapplicable to a situation such as this one, in which the indict-
ment alleged that the willful failure to pay occurred exclusively after
the enactment of the DPPA. See Wilson, 210 F.3d at 235. Thus, we
hold that the district court did not err in rejecting Williams’s Ex Post
Facto claim.
B.
Williams next asserts, for the first time at oral argument, that the
evidence was insufficient to support the district court’s finding that
his failure to pay overdue child support was willful. It is the practice
of this Court, subject to certain exceptions not applicable here,4 not
to consider contentions that the parties have not raised in the briefs,
but instead have made for the first time at oral argument. See Goad
v. Celotex Corp., 831 F.2d 508, 512 n.12 (4th Cir. 1987) (declining
4
For example, arguments alleging a lack of subject matter jurisdiction
may be raised for the first time at oral argument, since such claims are
never waived and may be considered sua sponte even if never raised by
the parties. See Quinn v. Haynes, ___ F.3d ___, No. 99-7520, slip op. at
6 (4th Cir. Dec. 6, 2000) (addressing question of subject-matter jurisdic-
tion that was not raised by any party).
UNITED STATES v. WILLIAMS 7
to consider a point because it was not raised in the briefs); cf. 11126
Baltimore Boulevard, Inc. v. Prince George’s County, 58 F.3d 988,
993 n.7 (4th Cir. 1995) (deeming an issue abandoned on appeal where
it was mentioned in the table of contents of a party’s brief but was
not substantively briefed). See also Jacobsen v. Harris, 869 F.2d
1172, 1174 (8th Cir. 1989) (stating that the court need not reach the
merits of an argument raised for the first time at oral argument). Thus,
we do not address the merits of Williams’s sufficiency of the evi-
dence argument.
C.
Williams further argues that the indictment was defective, in that
it did not allege with adequate specificity the components of the
amount of overdue child support which Williams was charged with
willfully failing to pay. Williams, however, did not attack the speci-
ficity of the indictment below, nor did he request a bill of particulars
to address the lack of detail to which he now objects. A defendant
who contends that he or she was not fairly apprised of the charges in
question should request a bill of particulars under Federal Rule of
Criminal Procedure 7(f). Failure to do so causes this Court to "con-
strue[ ] [the indictment] more liberally . . . so that if the indictment
contains allegations which clearly express what was meant to be
charged . . . any technical deficiency [is] cured by the conviction and
judgment." United States v. Caldwell, 544 F.2d 691, 695 (4th Cir.
1976). Here, the indictment alleged a specific sum of overdue child
support and stated the basis for this figure: the monthly sum decreed
in the last Virginia order plus one-half of the children’s medical
expenses, also decreed in the Virginia order. Williams argues that the
failure to itemize the medical expenses in the indictment is a fatal
defect, but he cites no authority for the proposition that an indictment
alleging nonpayment of a child support obligation must include a
detailed itemization of the sort he proposes. We thus conclude that the
indictment adequately alleged a violation of the DPPA and adequately
informed Williams of the charges against him. Any valid objection to
the failure to itemize the overdue medical expenses was waived by
Williams’s failure to request a bill of particulars or challenge the
indictment as insufficiently specific below.
8 UNITED STATES v. WILLIAMS
III.
Finally, the Government contends that the district court’s restitu-
tion order, which was based on the lower monthly support figure
embodied in the Michigan order, was incorrect. The Government
argues, as it did in the district court, that the Michigan order did not
validly modify the Virginia order and that, in any event, the district
court’s restitution award is inconsistent because it is based upon the
medical-expense obligation embodied in the Virginia order, coupled
with the monthly support payment contained in the Michigan order.
Thus, while conceding that it "did not appeal [Williams’s] sentence"
(Appellee’s Br. at 15), the Government nevertheless asks that this
Court modify the district court’s restitution award to reflect the higher
Virginia monthly support order.
Federal Rule of Appellate Procedure 4(b)(1)(b) provides that
appeals by the government in a criminal case must be filed within 30
days of the later of the entry of the judgment appealed from or the fil-
ing of the defendant’s notice of appeal. In the civil context, this Court
has held that an appellee who has not cross-appealed "could not[ ]
seek relief which enlarges that given him by the district court’s judg-
ment . . . . Under the circumstances, we may only affirm that result."
Pritchett v. Alford, 973 F.2d 307, 315 (4th Cir. 1992) (citing United
States v. American Railway Express, 265 U.S. 425, 435 (1924)); see
also Tug Raven v. Trexler, 419 F.2d 536, 548 (4th Cir. 1969) (stating
a "rule of practice" that "ordinarily an appellee . . . cannot secure
alteration or modification of a judgment unless he has taken his own
appeal."). Other courts have applied these principles in the context of
criminal appeals. See United States v. Coscarelli, 149 F.3d 342, 343
(5th Cir. 1998) (en banc) (holding that where the government has
appealed a sentence but the defendant has not cross-appealed, "an
appellate court simply has no authority to grant [the defendant] relief
that would expand his rights under the judgment."); cf. United States
v. Morales, 108 F.3d 1213, 1222-26 (10th Cir. 1997) (relying on the
timeliness of the government’s filing of its cross-appeal to refuse a
motion to dismiss the cross-appeal, implying that the timely filing of
a cross-appeal by the government is at least ordinarily a prerequisite
to the consideration of a request for relief that goes beyond modifying
the judgment below.). We thus conclude that the failure of the Gov-
UNITED STATES v. WILLIAMS 9
ernment to cross-appeal bars us from addressing its request that the
restitution amount be increased.
IV.
In conclusion, we find that Williams’s Ex Post Facto argument is
foreclosed by Fourth Circuit precedent, that his attacks on the suffi-
ciency of the evidence may not be raised for the first time at oral
argument, and that any defects in the indictment were cured by Wil-
liams’s failure to request a bill of particulars or to object to the indict-
ment as insufficiently specific. We find that the Government’s request
for an increase in the restitution amount is barred by its failure to
cross-appeal. The judgment of the district court is, therefore,
affirmed.
AFFIRMED