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April 14, 1998


The opinion of the court was delivered by: FACCIOLA



 This matter was before me for a bench trial. At the conclusion of the government's case, the defendant moved for a judgment of acquittal, and I asked the parties to brief the legal issues raised by the government's evidence. They have now done so and I conclude that the defendant's motion should be granted.

 This is the prosecution of a so-called "deadbeat dad" whom the government alleges willfully failed to pay a court-imposed obligation to support his child in violation of 18 U.S.C. § 228. *fn1" The government has proceeded upon the theory that its evidence, showing the receipt of a certain amount of income during a certain period of time or representations by the defendant of his actual income, suffice to show that the defendant's not paying the support obligation was willful. *fn2" The government, however, rested without eliciting any evidence of the actual expenses the defendant, an independent contractor, had to pay in his business and for his subsistence and housing. Nor did the government produce any evidence that would permit the finder of fact to project those expenses from available sources, such as the statistics collected by government agencies upon which economists rely to calculate the cost of living in a given geographical area. In my view, the absence of such evidence would require me to speculate as to whether or not the defendant had the ability to pay the support obligation. I am therefore compelled to find that the government's proof is too insubstantial to permit the inference that the defendant's not paying his obligation was willful.

 To understand that conclusion, I must begin with the facts of this case.



 The defendant and his former wife were married in 1977. Subsequently, the defendant started a restaurant in New York, and his wife worked with him in that restaurant. A child was born on October 11, 1980. Unfortunately, their marriage and the business failed simultaneously. When the defendant was still represented by counsel, the New York court entered a support order, pendite lite, requiring the defendant to pay $ 35 per week. Defendant did not appear at the hearing which culminated in the final divorce decree and no counsel entered an appearance for him. Instead, counsel who had represented him reported to the New York court that he had not paid them and could not be located. The New York court proceeded in his absence, imputed to him an earning capacity of $ 60,000 to $ 75,000 a year and ordered him to pay $ 250 per week for the support of his child. It also ordered him to pay almost $ 26,000 in arrearages and approximately $ 10,000 in attorneys fees which had accumulated since the order, pendite lite. Gov. Exs. 10 and 11.

 In a letter dated June 27, 1983 the defendant indicated he was enclosing "the alimony and support checks thru [ sic ] this current week June 30, 1983." Gov. Ex. 7. *fn3" He transmitted to his wife medical insurance policies to be filled out and provided his wife with a new New York address. By a July 21, 1983 letter, the defendant sought information about his son. Accompanying the July 21 letter were two checks totaling $ 2030. Gov. Exs. 6 and 6A.

 The final divorce decree was entered on May 1, 1986. In December 1987, defendant wrote his former wife to tell her that he was trying to "put his life back in order after complete and utter chaos." Gov. Ex. 12. He provided her with a California address and begged her to write him. On January 10, 1988, he wrote his wife again. He had sent his son Christmas gifts and expressed the hope that they fit. He had learned that his former wife had remarried and wished her well. He expressed a desire to "catch up on [the] economical side of what I owe you." Gov. Ex. 13. He also urged his wife to communicate with him about his son. She did not, however, and in his next letter, he expressed his frustration that he never learned if the gifts he had sent fit his son and were what he needed. He again expressed his desire to contribute to his son's emotional and financial stability. Gov. Ex. 14. On April 23, 1988, he again, by letter, begged his former wife to write him and to permit their son to write to him. Gov. Ex. 15. His wife responded on May 5, 1988, chastising the defendant for his failure to exercise his visitation rights for 7 years. *fn4" She asked the defendant for the $ 63,000 she was owed. She suggested that it was possible to work out a way in which the defendant might be able to see their child. Gov. Ex. 16. The defendant, in his next letter, thanked his wife for her letter and acceded to her request that he not come to see his son until she could secure professional guidance as how best to introduce the child to his father. The defendant, indicating that the last thing he wanted to do was "to pop into [the child's] life and then out again as quickly as I came in" for fear that this would cause the child emotional problems, asked his wife to propose a solution according to which he would remain in Washington for a certain period of time and see the child during that period of time. Gov. Ex. 17 (dated May 31, 1988). By the next letter, dated July 10, 1988, however, the defendant had learned that his wife would not permit him to see the child. He warned her that he would take legal action in the Family Court in Maryland to establish his right to see the child. Gov. Ex. 18. On July 29, 1988 the defendant expressed his willingness to meet with a Dr. Jacobson, a child psychologist his former wife insisted that he consult so that the doctor could recommend whether and under what circumstances he should see the child.

 On August 6, 1989, the defendant, for the first time, challenged that he was the child's father after receiving pictures of his son. Gov. Ex. 20. On March 7, 1990 the defendant advised his former wife of a medical condition he had and indicated he would be sending her his family's medical history for the child's wellbeing. Gov. Ex. 21. On May 7, 1990 he begged his former wife to communicate with him in reference to a discussion they had had concerning the child. Gov. Ex. 22. On June 8, 1990, the defendant wrote his wife to tell her that he had made the most difficult decision of his life, to return to Washington to battle for his child's custody. He told her that he was giving up a lucrative career in California. He chastised his wife for not permitting his family to get to know the child. Gov. Ex. 23. On November 27, 1990 he wrote his wife to say that he was going to take a job in Michigan if he could not find a job in Washington. He told her that he had sent his resume to Washington businesses. He also expressed interest in another California restaurant chain because it had a business in Washington which would bring him frequently to the Washington area. Gov. Ex. 24. Ultimately, defendant returned to the D.C. area, motivated (at least in part) by a desire to have a relationship with the child.

 In 1993, the defendant and the child's mother met with a therapist to see if arrangements could be made that would permit the defendant to see the child. According to the mother, when the therapist brought up the defendant's unfulfilled support obligations, the defendant became angry and refused to ever meet with the psychologist again. Trans. at 61. According to a pleading the defendant filed in a Maryland court, the mother demanded $ 25,000 as a condition of seeing the child. Gov. Ex. 31 (Complaint in the Montgomery County Declaratory Judgment action at 4).

 The mother of the child, who lives in Montgomery County, Maryland, availed herself of the Uniform Reciprocal Enforcement of Support Act ("URESA") and sought enforcement of the New York divorce decree in October 1994. Trans. at 61. Defendant countered by bringing an action in Maryland, challenging his paternity. He ultimately submitted to DNA testing, however. When the DNA test established that he was the father of the child, the portion of the petition seeking a declaratory judgment that he was not the child's father was dismissed or denied. Gov. Ex. 31.

 In the meanwhile, pursuant to URESA, the D.C. Superior Court ordered the defendant to pay monthly on his support obligation. Since the entry of that order, approximately $ 1500 has been deducted each month from the income he was paid from REMAX, the company with whom he is associated as a licensed real estate agent. The defendant is presently paying his support obligation, although there is, of course, a substantial arrearage from the many years in which no payment was made. The child is a teenager and headed toward college. As I understand the situation, he has never seen his father, except for one 15-minute interval. According to the last pleading filed in the Maryland court action which commenced with the defendant's petition for a declaration that he was not the child's father, the mother agreed to some visitation rights and the parties await an order from the Maryland court establishing what those rights are. Thus, the defendant is paying his support obligation and will soon see his son.


 That this matter is in a federal court is startling. The federal courts have invariably refused to permit their diversity jurisdiction to be used in matters of divorce and child custody, acknowledging the natural primacy of state courts in such matters and their broad equitable powers, created by statute or common law, to act in the best interest of the child. Ankenbrandt v. Richards, 504 U.S. 689, 119 L. Ed. 2d 468, 112 S. Ct. 2206 (1992). That the case is in a federal court is the result of a statute passed by Congress which criminalizes the failure to pay child support. More particularly, thanks to 18 U.S.C. § 228, it is now a federal crime to fail to pay the child support for a child who lives in a different ...

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