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U.S. 9th Circuit Court of Appeals
USA v BALLEK
9730326
UNITED STATES OF AMERICA, No. 97-30326 Plaintiff-Appellee, D.C. No. v. CR-97-00049-JWS JEFFREY A. BALLEK, OPINION Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
Argued and Submitted
September 18, 1998--Portland, Oregon
Filed March 11, 1999
Before: Ruggero J. Aldisert,* J. Clifford Wallace and
Alex Kozinski, Circuit Judges.
Opinion by Judge Kozinski
_________________________________________________________________
_________________________________________________________________
COUNSEL
Carlton F. Gunn, Assistant Federal Public Defender, Anchor-
age, Alaska, for the defendant-appellant.
Stephan A. Collins, Assistant United States Attorney, Anchor-
age, Alaska, for the plaintiff-appellee.
_________________________________________________________________
OPINION
KOZINSKI, Circuit Judge.
The district court found defendant guilty of willfully failing
to pay child support, in violation of the Child Support Recov-
ery Act (CSRA), 18 U.S.C. S 228 (1994) (amended 1998).
The court based its finding of willfulness on defendant's fail-
ure to seek available employment, which would have earned
him enough money to meet his child support obligations.
Among the questions we consider is whether, so construed,
the CSRA violates the constitutional prohibition against slav-
ery.
I
Ballek and his wife were married in Alaska in 1976 and
subsequently had four children. For over a decade Ballek sup-
ported his family through his work as a general building con-
tractor. After an acrimonious divorce in 1988, the state court
awarded custody of the children to the mother and ordered
Ballek to pay $500 a month plus half of their medical
expenses as child support. The court further provided that the
payment would be reduced to $395 if Ballek's wife and chil-
dren moved out of state.
During the following nine years, Ballek made only one vol-
untary child support payment. After a bench trial, the district
judge sentenced Ballek to six months imprisonment, and
ordered him to pay $56,916.71 in past due child support as
restitution.
II
The CSRA is violated by willful failure to pay a known
child support obligation. The district court found that, at rele-
vant times, Ballek did not have the means to pay child sup-
port. The court nevertheless found that Ballek acted willfully
because he failed to maintain gainful employment that would
have enabled him to meet his child support obligations. Ballek
challenges this finding as unsupported by the evidence, as
contrary to the statute and as violating the Thirteenth
Amendment.2 Because sufficiency of the evidence turns on
our construction of the statue, we consider it last.
[1] "Whoever willfully fails to pay a past due support obli-
gation with respect to a child who resides in another State"
violates the CSRA. 18 U.S.C. S 228(a) (1994) (amended
1998). The term "willfully" in this phrase can be read one of
two ways: having the money and refusing to use it for child
support; or, not having the money because one has failed to
avail oneself of the available means of obtaining it. In deter-
mining whether the statute is limited to the former meaning
of "willfully" or extends to the latter, we note that the obliga-
tion in question is not an ordinary debt; it is an award imposed
by a state court to ensure the sustenance and well-being of the
obligor's children. In making such an award, the state courts
take into account a variety of factors, including the non-
custodial parent's other obligations and his ability to pay child
support; if circumstances change, the obligor can return to
court and seek to have the amount reduced. See Alaska Stat.
S 25.24.170 (Michie 1998); Curley v. Curley, 588 P.2d 289,
291 n.2 (Alaska 1979).
[2] Given this means-testing, which is an integral aspect of
every child support award, a non-custodial parent should
never be confronted with a situation where he is ordered to
make child support payments he cannot afford. A non-
custodial parent who does not have the funds to satisfy the
child support award, and who does not obtain a reduction or
remission of the award because of inability to pay, will almost
certainly be engaged in willful defiance of the state court's
child support order. Given that the CSRA was passed to assist
the state courts in enforcing child support decrees, we are
confident that Congress did not mean to let absentee parents
evade their parental obligations by refusing to accept gainful
employment or take other lawful steps to obtain the necessary
funds.
[3] The CSRA's clear-cut legislative history supports this
construction. The House Report accompanying H.R. 1241,
which eventually became the CSRA, addressed the meaning
of "willfully fails to pay." See H.R. Rep. No. 102-771, at 6
(1992). The Report notes that "[t]his language has been bor-
rowed from the tax statues that make willful failure to collect
or pay taxes a Federal crime." Id. The Report then instructs
that "the willful failure standard of [the CSRA] should be
interpreted in the same manner that Federal courts have inter-
preted [the] felony tax provisions." Id. The Report quotes
with approval from our opinion in United States v. Poll, 521
F.2d 329 (9th Cir. 1975), where we held that, for purposes of
proving willful failure to pay,
the Government must establish beyond a reasonable
doubt that at the time payment was due the taxpayer
possessed sufficient funds to enable him to meet his
obligation or that the lack of sufficient funds on such
date was created by (or was the result of) a volun-
tary and intentional act without justification in view
of all the financial circumstances of the taxpayer .
Id. at 333 (emphasis added). By quoting Poll, the drafters of
the House Report clearly embraced a meaning of the term
"willfully" that goes beyond merely failing to pay when one
has the funds available, and extends to the situation where the
defendant has acted willfully in not having funds available.
Our interpretation follows that of the Eleventh Circuit, the
only other court of appeals to have addressed this question.
See United States v. Williams, 121 F.3d 615, 620-21 (11th
Cir. 1997).
[4] Ballek argues that the statute, so construed, runs afoul
of the prohibition against slavery or its close cousin, the pro-
hibition against imprisonment for debt. Imprisoning someone
for failure to pay a debt can run afoul of the Thirteenth
Amendment. See, e.g., Pollock v. Williams,
322 U.S. 4
(1944). However, not all forced employment is constitution-
ally prohibited. Where the obligation is one that has tradition-
ally been enforced by means of imprisonment, the
constitutional prohibition does not apply. See, e.g., Robertson
v. Baldwin,
165 U.S. 275
, 287-88 (1897) (imprisonment for
sailors who desert their ships); Arver v. United States, 245
U.S. 366, 390 (1918) (imprisonment for refusal to perform
military service); Butler v. Perry,
240 U.S. 328
, 332-33
(1916) (imprisonment for failure to do roadwork).
[5] We conclude that child-support awards fall within that
narrow class of obligations that may be enforced by means of
imprisonment without violating the constitutional prohibition
against slavery.3 We start with the self-evident observation
that the relationship between parent and child is much more
than the ordinary relationship between debtor and creditor.
The parent is responsible for bringing the child into the world
and in so doing assumes a moral obligation to provide the
child with the necessities of life, and to ensure the child's wel-
fare until it is emancipated and able to provide for itself.
When parents neglect their children, this raises more than a
private legal dispute. It is a matter of vital importance to the
community, and every state now enforces, by means of crimi-
nal sanctions, the parent's obligation to support children
within his custody. See Alaska Stat. S 11.51.120 (Michie
1998); see also Frances W.H. Kuchler, Law of Support 34 (3d
ed. 1980).
[6] The state's strong concern for the welfare of minor chil-
dren is also manifested by the fact that parental obligations at
the dissolution of a marriage are not left to private agreement.
Rather, they are supervised by family courts which are
charged with the responsibility of securing the children's wel-
fare despite the estrangement of the parents. Experience
teaches that the natural bonds, which normally ensure that
children are cared for, are sometimes weakened when the
affinity between the parents comes to an end. The supervision
--and coercive power--of the court is often invoked to
prompt the non-custodial parent to continue providing sup-
port. The non-custodial parent's obligation to pay child sup-
port is thus derivative of the obligation to provide support in
a custodial setting, and such awards are routinely enforced by
imprisonment. See, e.g., Taylor v. Alaska, 710 P.2d 1019
(Alaska Ct. App. 1985) (affirming conviction of non-custodial
parent who without lawful excuse failed to provide support
for child). The state also has an interest in protecting the pub-
lic fisc by ensuring that the children not become wards of the
state. Cf. Butler,
240 U.S. at 333
("[The Thirteenth Amend-
ment] certainly was not intended to interdict enforcement of
. . . duties which individuals owe to the State . . . .") At least
one state Supreme Court has rejected the argument that
imprisonment for failure to work in order to earn enough
money to make child support payments violates state and fed-
eral prohibitions against slavery. See Moss v. Superior Court,
950 P.2d 59, 66 (Cal. 1998).
Were we to hold, as defendant urges us to, that enforcing
child support obligations by threat of imprisonment violates
the Thirteenth Amendment, we would undermine the well-
established practices in the state courts for policing compli-
ance with child support obligations. We would, effectively,
put children on the same footing as unsecured creditors. We
decline to interpret the Thirteenth Amendment in a way that
would so drastically interfere with one of the most important
and sensitive exercises of the police power--ensuring that
persons too young to take care of themselves can count on
both their parents for material support.
[7] We therefore turn to Ballek's argument that the record
does not support the district court's finding that he acted will-
fully in failing to pay child support. It clearly does. As the dis-
trict court found, Ballek earned good money as a contractor
before his divorce; on that income he was able to support a
family of six. After his divorce, Ballek abandoned construc-
tion, which he admitted is "what I know makes me money,"
and wandered from one low-paying job to another. He only
returned to the construction trade after he remarried and
moved in with his new wife and her three children. There is
ample evidence to support the district court's finding that Bal-
lek was capable of working as a contractor, and that there was
contracting work available, which would have paid him
enough to meet his child support obligation.
[8] The district court did not find that Ballek failed to seek
employment as a contractor so that he would be unable to
meet his support obligation, but this does not render the find-
ing of willfulness insufficient. The government need not
prove that defendant's failure to accept gainful employment
was caused by a desire to withhold payments from the spouse
and children, or any similar evil motive. Cf. United States v.
Pomponio,
429 U.S. 10, 12
(1976) (per curiam) (requisite
motive for willful tax violation is intentional violation of
known legal duty). It is just as much a violation of the CSRA
for a non-custodial parent to fail to pay child support where
his refusal to work is motivated by sloth, a change of life-
styles or pursuit of new career objectives. For most people,
bringing children into the world does limit life choices by
imposing certain long-term financial obligations. A parent
with minor children at home cannot quit work and become a
hobo or go back to school as the fancy moves him. Nor may
a non-custodial parent stop making child support payments
because he has decided to pursue a post-doctoral degree in
macrobiotics. A parent who is subject to an order for child
support must seek a modification of the order before making
such a lifestyle change. The family court judge can then deter-
mine whether such a change is consistent with the parent's
prior obligation to support the children. Where a parent does
not seek such a modification, but chooses (for whatever rea-
son) to eschew work that is otherwise available, he is subject
to imprisonment for failure to pay, both under state law and
under the CSRA.
III
Finally, Ballek contends that he was entitled to a jury trial
because, in addition to imprisonment, he was ordered to pay
restitution in the amount of $56,916.71. He argues that the
imposition of restitution exceeding $50,000 should convert an
otherwise petty offense into a serious one.4
[9] The Supreme Court has told us repeatedly, and in no
uncertain terms, that by far the most significant factor in
determining whether something is a petty offense is the maxi-
mum term of imprisonment. See, e,g., United States v.
Nachtigal,
507 U.S. 1, 3
(1993) (per curiam); Blanton v. City
of North Las Vegas,
489 U.S. 538, 541
-42 (1989). Where the
maximum term of imprisonment is six months or less, there
is a very strong presumption that the offense is petty and
defendant is not entitled to a jury trial. See Blanton, 489 U.S.
at 543. Other types of punishment in lieu of, or in addition to,
incarceration may have some bearing on the question, but
these punishments are normally considered far less signifi-
cant. See id. at 542-43.
[10] Nevertheless, there clearly comes a point where poten-
tial punishment other than incarceration may be so severe that
the offense will no longer be considered petty. See, e.g.,
Twentieth Century Fox Film Corp., 882 F.2d at 663. This is
especially true if the punishment may be imposed in addition
to a term of imprisonment. At the same time, the possibility
of some non-custodial punishment, even in addition to a six-
month term of imprisonment, will not change the character of
the punishment sufficiently to render the offense serious. The
question is how intrusive or severe the additional punishment
may be. See Blanton,
489 U.S. at 543
. Where the additional
punishment could involve the imposition of a very large fine,
or a very long period of probation, or the forfeiture of sub-
stantial property, the severity of the total punishment may be
sufficiently great so as to turn what would otherwise be a
petty offense into a serious one.
[11] The matter is different, however, where the additional
punishment consists of restitution. Restitution does not
impose an additional obligation on the defendant; rather, it
recognizes the debt he already owes the victim. This is espe-
cially true where, as here, the debt is already liquidated by
way of a state-court judgment or decree. The imposition of a
restitution order as part of a federal criminal sentence does
cause some additional hardship to the defendant, and gives the
victim some additional enforcement mechanisms.5 But the
additional burden on the defendant is relatively minor, as it
merely reinforces his existing moral and legal duty to pay a
just debt. We therefore hold that the possibility that the dis-
trict court will order restitution, in addition to a six-month
maximum sentence, does not turn an otherwise petty offense
into a serious one, no matter how large the sum involved. Bal-
lek was not entitled to a jury trial.
AFFIRMED.
_______________________________________________________________
FOOTNOTES
2 Ballek raises his Thirteenth Amendment argument for the first time on
appeal. Because this is a purely legal question, we exercise our discretion
to overlook Ballek's waiver of the issue. See Resolution Trust Corp. v.
First Am. Bank, 155 F.3d 1126, 1129 (9th Cir. 1998).
3 The obligation of parents to support their children was recognized in
the United States long before the Thirteenth Amendment was adopted. See
2 James Kent, Commentaries on American Law 161 (Leonard W. Levy
ed., Da Capo Press 1971 (1827); Stanton v. Willson, 3 Day 37 (Conn.
1808) (non-custodial divorced father responsible for full financial mainte-
nance of children); see also Donna Schuele, Origins and Development of
the Law of Parental Child Support, 27 J. Fam. L. 807, 811 (1988-1989).
Passage of the Amendment did not diminish the states' commitment to
this obligation, and it has only grown over the years. Today, the obligation
is universally recognized and we are aware of no state where it is not
enforced by means of criminal sanctions.
4 Ballek's proposal for a $50,000 threshold is based on the Second Cir-
cuit's holding in United States v. Twentieth Century Fox Film Corp., 882
F.2d 656, 663 (2d Cir. 1989), that a criminal contempt fine on a corpora-
tion which exceeds $100,000 warrants a jury trial. Ballek argues that
because $100,000 constitutes ten times the $10,000 petty offense limit on
fines for organizations, see 18 U.S.C.SS 19, 3571(c)(6), (7) (West Supp.
1998), the threshold for individuals should likewise be ten times the
$5,000 petty offense limit on fines for individuals, see id. SS 19,
3571(b)(6), (7).
5 In addition to the lien upon the defendant's property that the United
States automatically receives by virtue of an order of restitution, see 18
U.S.C. S 3613(c) (West Supp. 1998), the custodial parent may also obtain
such a lien, see id. S 3664(m)(1)(B). Further, if the delinquent parent con-
tinues to willfully fail to pay his past due child support, or fails to make
bona fide efforts to meet his obligation, the United States may seek to
have him resentenced. See id. S 3614;S 3664(o)(2). the end
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