UNITED STATES оf America, Plaintiff-Appellee, v. Michael Andrew GILL, Defendant-Appellant.
No. 00-10304.
United States Court of Appeals, Ninth Circuit.
Sept. 6, 2001
262 F.3d 929
Before: REINHARDT, TASHIMA, and BERZON, Circuit Judges.
Argued and Submitted April 9, 2001
IV. CONCLUSION
Therefore, we reverse and remand both counts for a new trial.11 Although we uphold the district court‘s decision that the search warrant for Bishop‘s residence was supported by probаble cause, we find the overall admissibility of the illegal seizure made at the illegal Oregon stop was not harmless error beyond a reasonable doubt. Highly persuasive evidence from the Oregon stop was proof of the overall evidence of the conspiracy, as well as of the substantive count on the establishment of a methamphetamine operation. The indictment charging the establishment by Bishop of a methamphetamine operation specifically includes the year of 1998, the same year of the illegal traffic stop. The traffic stop and the items seized in the Oregon illegal stop strongly support the questionable testimony of Holmes and Youngs, who both made deals with the Government.
The drug evidence seized at the residence and in the storage unit did not itself prove any conspiracy.12 A small amount of evidence seized at the storage unit might tend to inculpate Bishop as maintаining an establishment of a methamphetamine operation, but this evidence standing by itself is far from conclusive guilt as to that count.13 The lynchpin of guilt upon both counts was the much more incriminating evidence found in Bishop‘s automobile in June 1998 when the illegal search was made. The testimony of Youngs that the car trip was in furtherance of the conspiracy clearly was inadmissible as fruit of the illegal stop. See Ramirez-Sandoval, 872 F.2d at 1396 (holding that “the core inquiry is whether the police would have discovered the evidence if the misconduct had not occurred“) (citations omitted). We find that it is impossible to say that the admissibility of this evidence did not taint the prosecution‘s proof such that the defendant was denied a fair trial. We, therefore, reverse the convictions on both counts and remand for a new trial.
REVERSED and REMANDED.
Eric V. Kersten, Assistant Federal Public Defender, Fresno, California, for the defendant-appellant.
Stanley A. Boone, Assistant United States Attornеy, Fresno, California, for the plaintiff-appellee.
Opinion by Judge TASHIMA; Dissent by Judge REINHARDT
Michael Gill (“Gill“) appeals the restitution imposed for his willful failure to pay child support under the Child Support Recovery Act (“CSRA“),
I.
There is no dispute as to the facts relevant to this appeal. Gill and his ex-wife, Odettelynn Murphy, together had two children. They were born on August 4, 1981, and January 14, 1985. The couple divorced in November, 1987. On November 6, 1987, the San Joaquin County Superior Court, in California, ordered Gill to pay child support in the amount of $150 per child, per month, until the children reached the age of 18, wеre married, or were otherwise emancipated. The state child support order made no express mention of interest on delinquent payments. California law, however, mandates that “[u]nless the judgment provides otherwise, if a money judgment is payable in installments, interest commences to accrue as to each installment on the date the installment becomes due.”
The San Joaquin County Family Support Division administered the support order from 1987 to 1994; from 1994, the Fresno County Family Support Division has attempted to collect the child support. Gill voluntarily made intermittent payments in 1988 and 1989, totaling $1,300. Between 1991 and 1994, San Joaquin County also managed to intercеpt Gill‘s tax refunds. No further payments were collected after June, 1994. To date, payments and collections from Gill total approximately $2,926.69.1 Gill no longer resides in California.
On December 12, 1997, Gill was charged with one count of willfully failing to pay child support, in violation of
II.
Gill contends that only the principal amount of his delinquent child support, and not the accrued interest, can be included in the restitution order. We review the legality of a restitution order de nоvo. United States v. Craig, 181 F.3d 1124, 1126 (9th Cir.1999). Both the statutory text and legislative purpose of the CSRA, however, clearly refute Gill‘s position on appeal.
The mandatory restitution provision of the CSRA provides:
Upon a conviction under this section, the court shall order restitution under section 3663A in an amount equal to the total unpaid support obligation as it exists at the time of sentencing.
[A]ny amount determined under a court order or an order of an administrative process pursuant to the law of a State or of an Indian tribe 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.
Gill suggests that the accrued interest may not be included as part of his “support obligation” within the meaning of the CSRA because such interest was not “determined under” the state court order, which made no express mention of interest. We disagree. The plain wording of the statute defines “support obligation” more specifically as that amount “detеrmined under a court order ... pursuant to
Gill‘s statutory interpretation argument would interpret “determined under” a state court support order to mean “determined in” or “determined by” that order. We do not believe that such a reading is appropriate. As the Seventh Circuit has stated:
These are not the words Congress chose to use.... Congress could have explicitly required that there be a specific arrearagе order entered by a state court or agency which establishes the exact amount owed by the wayward parent. Congress instead required that there be a state court order which creates the underlying obligation due by the non-paying parent.... The CSRA does not envision a formal state order or agency ruling of arrearage as a prerequisite to the exercise of federal jurisdiction.
United States v. Black, 125 F.3d 454, 464 (7th Cir.1997) (emphasis added). While Gill does not suggest that an arrearage order is necessary to include the aggregate amount of his delinquent principal payments in the restitution order (or to exercise federal jurisdiction), the rationale of Black applies here as well. Just as the cumulative principal arrearage of his state support obligation is “determined under” the court order mandating periodic payments, so too is accrued interest “determined under” the court order. When those payments arе not made on the specified dates, state law automatically imposes interest on the delinquent principal. In other words, the court order need only create an underlying obligation pursuant to state law; it need not explicitly determine the exact amount due in arrears as long as state law makes the cumulative delinquent principal, and any interest accrued thereon, enforceable solely on the basis of that pre-existing obligation.
Such an understanding is supported by our language in Craig, where restitution was ordered for all of the defendant‘s unpaid child support, even though it extended beyond only those payments that became delinquent during the period charged in the indictment. See Craig, 181 F.3d at 1126-27. We indicated that “the statutory language of § 228(c) [the mandatory restitution provision under the CSRA as codified prior to amendment in 1998]—‘at the time of sentencing‘—evinces Congress’ desire to charge the parent for all unpaid child support.” Id. at 1127 (emphasis added). We concluded that “thе Act must be read to mandate that a federal court order restitution of the entire past due child support obligation.” Id. Accordingly, the definition of the term “support obligation” should be interpreted to allow federal courts to order restitution in the amount of the “total unpaid” child support debt that is due “at the time of sentencing.”
Moreover, this understanding of “support obligation” is also consistent with the reference in the mandatory restitution provision tо
As we have previously stated, “[w]hat matters is that an obligation, already imposed by state law, comes to wear an interstate faсe. Then, and only then, does the CSRA intervene and forbid frustration of the obligation‘s satisfaction.” United States v. Mussari, 95 F.3d 787, 791 (1996) (upholding constitutionality of CSRA against commerce clause challenge). In enacting the CSRA, Congress expressly recognized that the collection of unpaid child support from out-of-state deadbeat parents had outgrown state enforcement mechanisms. See H.R.Rep. No. 102-771, at 6 (1992) (“the ability of those states [that passed laws making the willful failure to pay child support a crime] to enforce such laws outside their own boundaries is severely limited ... [because] interstate extradition and enforcement in fact remains a tedious, cumbersome and slow method of collection.“).
The CSRA was meant to address the problem “by taking the incentive out of moving interstate to avoid payment.” Id.; see also Black, 125 F.3d at 458 (discussing the legislative history of CSRA). Interpreting the terms of the statute so as to prevent restitution for the accrued interest on delinquent сhild support payments—when the interest is mandatorily imposed pursuant to state law—would both frustrate the objective of interstate collection and preserve the incentive for moving out of state when the state-incurred obligation is significant enough (as is the case here, where accrued interest accounts for over one-third of the total delinquent support obligation). To adopt such an interpretation would not only contradict the plain language of the statute, but also “would create an additional obstacle to compliance, contrary to the manifest purposes of the Act.” United States v. Collins, 921 F.Supp. 1028, 1031–32 (W.D.N.Y.1996).
III.
We hold that Gill‘s restitution order properly included the interest accrued on his delinquent child support payments, as required by state law and incorporated into the terms of the CSRA. Thus, the sentence, including the restitution order, is
AFFIRMED.
REINHARDT, Circuit Judge, dissenting:
The majority opinion adopts a harsh interpretation of the Child Suppоrt Recovery Act (“CSRA“) that fails to comport with the statutory language. It is important to note at the outset that the CSRA is a criminal statute. Given its proper construction, it does not permit the inclusion of accrued interest or any other item not referred to in the underlying court order when the sentence and order of restitution are being determined. Accordingly, Mr. Gill‘s sentence, including the restitution order, should be reversed and his case remanded for further proceedings.
When defining the “support obligation” to be paid, the CSRA provides that it is “any amount determined under a court order....”
Contrary to the majority‘s assertion, an interpretation of the CSRA that follows its plain language does not work any great hardship or create any unnecessary “obstacle[s] to compliance” with the statute. Maj. Op. at 933. Rather, it only requires that judges who issue child support orders provide in those orders for all payments thаt are to constitute support obligations. If interest payments are to be included, it is simple enough to do so. The judge issuing the order has the clear authority to define the obligation, and the concomitant scope of the remedy under the federal statute, by setting forth the amounts that constitute the “support obligation.” He can simply list interest among the amounts to be paid. Whether or not, in a particular case, the failure to keep current with intеrest on child support payments can result in federal criminal punishment can be determined only pursuant to the terms of the particular state court order, not by an examination of other sources which impose separate or additional financial obligations on the defendant.
The majority‘s reliance on the phrase “pursuant to the law of a State” to justify its interpretation is unwarranted. My colleagues construe the “pursuant to the law оf a State” language in
Had it been Congress‘s intention to have “pursuant to the law of a State” modify “determined,” it could simply have omitted the phrase “court order or an order of an administrative process” from the statute and defined the support obligation as “any amount determined pursuant to the lаw of a State.” Then the amounts provided for under both court orders and state statutes would have been covered. By providing instead that the support obligation amount is to be determined “under a court order or an order of an administrative process pursuant to the law of a State,” Congress was accomplishing two goals: it was limiting the amounts that constitute support obligations to those covered by the terms of the order and it was making it clear thаt the order, whether judicial or administrative, must be made pursuant to state law—in other words, it must be valid and legally enforceable. The majority‘s interpretation
Congress‘s use of the phrase “pursuant to the law of a State” elsewhere in the statutory scheme also shows that the phrase was intended to modify “court order or an order of an administrative process” and not “amount determined.” When describing the sentencing options for failure-to-pay-child-support offenders in
Moreover, the cases cited by the majority fail to support a broader statutory interpretation. My colleagues’ reliance on United States v. Black, 125 F.3d 454 (7th Cir.1997), is misplaced. While Black does suggest that a state court need not specifically delineate the exact amount to be paid in its order, nowhere does the case suggest that new categories of payment—such as interest—may be added to the child support order. United States v. Craig, 181 F.3d 1124 (9th Cir.1999), the other case upon which the majority relies, is similarly unhelpful. As the majority recognizes, see Maj. Op. at 932, Craig concludes that a federal court should order restitution of “the entire past due child support obligation.” Craig, 181 F.3d at 1127. This reference to “support obligation” merely brings us back to the statutory definition in
Because the CSRA does not authorize criminal punishment for the failure to pay interest or other amounts not provided for in the state court order, I cannot join the majority‘s opinion. However, even if one were persuaded that the majority‘s reading of the CSRA had some merit, it is apparent that an interpretation of the statute that precludes the addition of such interest payments is also reasonable; accordingly, the rule of lenity should apply. See, e.g., People v. Materne, 72 F.3d 103, 106 (9th Cir.1995) (noting that the rule of lenity applies “where a criminal statute is vague enough to deem both the defendant‘s and the government‘s interpretations of it as reasonable“); United States v. LeCoe, 936 F.2d 398, 402 (9th Cir.1991) (“[T]he court [should] not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.“).
For all these reasons, I would reverse Mr. Gill‘s sentence, including the restitution order, and remand for further рroceedings consistent with an interpretation of the statute that comports with its plain terms. Accordingly, I respectfully dissent.
Notes
[T]he term “support obligation” means any amount determined under a court order or an order of an administrative process pursuant to the law of a State or of an Indian tribe 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.
(b) The court may provide ... that the defendant ... (20) comply with the terms of any court order or order of an administrative procеss pursuant to the law of a State, the District of Columbia, or any other possession or territory of the United States, requiring payments by the defendant for the support and maintenance of a child or of a child and the parent with whom the child is living....