751 F.3d 1150
10th Cir.2014Background
- David Fuller was indicted and convicted under 18 U.S.C. § 228(a)(3) for willfully failing to pay over $50,000 in past-due interstate child support; jury convicted and district court sentenced him to probation and restitution.
- At the close of the government’s case, Fuller moved for acquittal under Fed. R. Crim. P. 29(a), arguing the government had not shown his ability to pay; the district court reserved ruling and later denied both this and a post-trial motion in a single order.
- The indictment charged felony liability (Deadbeat Parents Punishment Act) for obligations unpaid more than two years or over $10,000; Congress also added a rebuttable presumption in § 228(b) that an existing support order implies ability to pay.
- Fuller argued on appeal that (1) the district court impermissibly relied on the statutory presumption of ability to pay, and (2) without that presumption the government presented insufficient evidence of willfulness.
- The Tenth Circuit examined the government’s evidence at the close of its case and concluded the district court relied on evidence of willful underemployment (not the statutory presumption) to deny the Rule 29 motion.
- The court held willfulness under § 228(a) can be proven either by possession of sufficient funds at payment time or by intentional acts that created an inability to pay (e.g., voluntary underemployment); the record supported conviction on the underemployment theory.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court relied on the § 228(b) rebuttable presumption of ability to pay when denying Fuller’s Rule 29 motion | The court impermissibly relied on the statutory presumption to infer Fuller’s ability to pay | The court did not rely on the presumption; it relied on evidence of willful underemployment | The court did not rely on the presumption; it based denial on evidence of intentional underemployment |
| Whether the statutory presumption in § 228(b) is constitutionally required for conviction | Presumption is necessary to prove ability to pay and thus willfulness | Ability to pay is not an element; presumption need not be applied and its constitutionality need not be decided here | Court declined to decide constitutionality because it did not rely on the presumption |
| What constitutes "willfully" failing to pay under 18 U.S.C. § 228(a) | Willfulness requires actual possession of sufficient funds to pay | Willfulness may be shown either by possessing funds or by intentional acts causing inability to pay (e.g., voluntary underemployment) | Willfulness includes intentional acts that create inability to pay; government may prove willfulness via underemployment theory |
| Whether the government’s case-in-chief proved willfulness beyond a reasonable doubt | Government failed to show ability to pay from earnings evidence | Government presented sufficient circumstantial evidence of voluntary underemployment and ability to earn more | At close of government’s case, the evidence was sufficient to permit the jury to find willful failure to pay based on underemployment |
Key Cases Cited
- United States v. Cooper, 654 F.3d 1104 (10th Cir. 2011) (standard of review for Rule 29 acquittal)
- United States v. White, 673 F.2d 299 (10th Cir. 1982) (evidence viewed in light most favorable to government on sufficiency review)
- U.S. v. Poll, 521 F.2d 329 (9th Cir. 1975) (tax-felony willfulness framework comparing possession of funds vs. voluntary acts creating inability to pay)
- United States v. Ballek, 170 F.3d 871 (9th Cir. 1999) (willful underemployment can establish criminal liability under child-support statute)
- United States v. Edelkind, 525 F.3d 388 (5th Cir. 2008) (government need only prove ability to pay some portion of past-due support)
- United States v. Mattice, 186 F.3d 219 (2d Cir. 1999) (relevant obligation is any past-due amount; proof that defendant could pay some portion suffices)