Wednesday, May 14, 2008

Failure to Pay Child Support Obligation is a Continuing Offense

United States v. Edelkind, No. 06-30777 (5th Cir. Apr. 15, 2008) (Reavley, Smith, Dennis)

Title 18 U.S.C. § 228(a)(3) makes is a crime to "willfully fail[] 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 two years, or is greater than $10,000[.]" The statute of limitations for this offense is five years. When does the SOL begin to run?

Edelkind, who was convicted of this offense, argued that the crime is complete as soon as the arrearage reaches two years or $10,000, and that the SOL begins running at that point. He made this argument because his unpaid child support obligation reached $10,000 in October 1999, at the latest, meaning that under his interpretation of the offense the SOL expired in October 2004. He wasn't indicted until October 2005.

The Government argued that § 228(a)(3) is a continuing offense and does not terminate until the obligation is paid or the person is indicted. The court agreed, for several reasons. First, other federal courts of appeals, as well of a majority of state courts that have addressed this issue, treat failure-to-pay as a continuing offense. "A strong majority of the state courts is significant in this context because Congress’s driving concern when enacting 18 U.S.C. § 228(a) was to strengthen the enforcement of state crimes of wilful failure to pay child support when a parent crosses state lines."

Second, statutory language and legislative history indicate that Congress intended this to be a continuing offense. "The nature of a continuing offense is that 'each day's acts bring a renewed threat of the substantive evil Congress sought to prevent.'" The statute's reference to a period "longer than" two years and to an amount "greater than" $10,000 demonstrates that "Congress . . . imagined the criminalized conduct to last continuously beyond a 2-year period or the accumulation over $10,000." Also, statements in legislative history show that Congress sought to target parents who shirk their legal and financial obligations to their children, as well as the burden on custodial parents who have to constantly seek to have support orders enforced.

Finally, the court pointed out that under Edelkind's proposed interpretation of the statute, what Congress intended to be a single crime could potentially become a number of crimes.
[I]f a defendant owes, for example, $11,000 a month in support, and refuses to pay, the crime [would be] complete every single month. In one year, the defendant could conceivably be responsible for twelve separate crimes of $11,000, each carrying with it a potential sentence of up to 24 months for a total of a 264 months maximum. Under a “continuous offense” approach, however, the defendant would only be accountable for one continuous crime involving losses of $132,000, and would be subject to just a 24 month maximum sentence. Congress clearly did not intend to attach lengthy jail-times for this crime, but merely wanted to use the threat of a two-year maximum to create an incentive for “deadbeat” parents to fulfill their ongoing obligations to their children.



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