U.S. v. Novak. (Lawyers Weekly No. 10-01-0563, 13 pp.) (Hamilton, J.) No. 08-5224, June 15, 2010; USDC at Richmond, Va. 4th Cir.
Holding: A dad who had a long-term consulting contract in Virginia but said he maintained residence in New York, where he continued to pay a mortgage and visited his child who was ill despite his divorce litigation with her mom who was wife No. 4, “resided” in Virginia for venue purposes under a statute that criminalized his failure to pay child support for a child from a prior marriage; the 4th Circuit upholds his conviction under 18 U.S.C Sect. 228 and two-year sentence for failure to pay over $200,000 in back support.
Defendant first contends the trial court erred when it failed to instruct the jury that it had to find that he intended to remain in Virginia to find that he “resided” there. The term “resided” is undefined in 18 U.S.C. Sect. 228 and the parties dispute its meaning.
Two circuits have published decisions defining “resided” in the Sect. 228 context, and both of these decisions agree that the government is not required to prove an intent to remain in a state to establish that a person resided in such state. Given the commonly understood difference in meaning between residence and domicile, the purposes behind Sect. 228 and the absurd results that arise from requiring an intent to remain to establish that the defendant resided in the state, we agree with the analysis of the courts in U.S. v Venturella, 391 F.3d 120 (2d Cir. 2004) and U.S. v. Namey, 364 F.3d 843 (6th Cir. 2004), and adopt the reasoning of these cases as our own.
We conclude the district court did not err when it defined “resided” as the “act or fact of living in a given place permanently or for an extended period of time,” and that the evidence was sufficient, for purposes of venue, to establish that defendant resided in the Eastern District of Virginia during the time period alleged.
Defendant also claimed the trial court erred in its jury instruction because it allowed the jury to find venue based on a period in which he did not make payments on advice of counsel (after February 2005), not upon a period of which he willfully failed to make payments. His theory that the jury could have found that he did not willfully fail to pay support because of advice of counsel is foreclosed by the jury verdict. He cannot show any harm even if we assume the district court’s instruction was erroneous.