D.C. No.CR-97-00501-1-LKK
No. 98-10162


On Appeal From the United States District Court
for the Eastern District of California
Lawrence K. Karlton, District Judge, Presiding

Argued and Submitted
January 15, 1999--San Francisco, California

Filed June 29, 1999

Before: Ruggero J. Aldisert,* John T. Noonan and
Stephen S. Trott, Circuit Judges.

Opinion by Judge Aldisert


John P. Balazs, Assistant Federal Public Defender (argued),
Sacramento, California, for the defendant-appellant.

Benjamin B. Wagner, Assistant United States Attorney,
(argued), Sacramento, California, for the plaintiff-appellee.


ALDISERT, Circuit Judge:

This appeal by David Howard Craig of the restitution order
imposed for his violation of the Child Support and Recovery
Act (the "Act" or "CSRA"), 18 U.S.C.S 228, requires us to
decide whether restitution under the Act must be limited to
the time period during which the defendant lives in a state dif-
ferent than that of his children and whether district courts
should inquire into a defendant's ability to pay prior to order-
ing a restitution award. We also must determine whether the
particular restitution order entered against Craig violated the
Commerce Clause or the Due Process Clause of the Fifth

We have jurisdiction to consider Craig's appeal pursuant to
28 U.S.C. S 1291.

We conclude that restitution under the Act properly
includes the entire past due support obligation, that district
courts need not inquire into a defendant's ability to pay prior
to ordering restitution and that the restitution award against
Craig was not unconstitutional.


Craig and his ex-wife were separated in 1992 and divorced
in 1993. In 1992, the Superior Court of California entered an
order requiring Craig to pay child support for his two daugh-
ters in the amount of $741 per month. Upon a finding that
Craig's income had declined, the award subsequently was
reduced to $649 per month. In July 1996, when Craig's older
daughter turned 18 years of age, the amount was further
reduced to $324.50 per month.

Craig failed to meet his child support obligation and, on
June 7, 1993, the Placer County Superior Court issued a con-
tempt order. Craig made five voluntary child support pay-
ments from June 1993 through November 1993, but made no
payments thereafter. In mid-1995, Craig moved to Nevada
while his daughters remained in California. In Nevada, Craig
intermittently worked in construction but did not pay any por-
tion of his child support obligation.

On January 3, 1997, Craig was indicted for violating the
Act. The indictment charged that Craig:
      from on or about July 31, 1995, and continuing
      through on or about December 20, 1996, resided in
      a different state with respect to his minor children
      . . . , and, having the ability to pay, did willfully fail
      to pay a known past due support obligation with
      respect to such children as ordered by the Superior
      Court of the State of California for the County of

ER at 1. Craig pleaded guilty to the crime on June 5, 1997,
but specifically reserved his right to appeal the amount of the
restitution award ordered by the magistrate judge. In the fac-
tual basis of his plea agreement, Craig admitted only that he
was financially able to pay part of the past due child support
obligation that he owed. In addition, he argued to the district
court that restitution should be limited to the amount incurred
during the period charged in the indictment, to-wit, July 31,
1995 to December 20, 1996. The magistrate judge disagreed
and ordered restitution in the full amount of arrearage sought
by the Placer County District Attorney's Office, including all
amounts unpaid while Craig lived in California. Craig was
ordered to pay $33,968.50.

Craig appealed the order of restitution to the district court,
which denied Craig's appeal and affirmed the restitution order
in its entirety. This appeal followed.


We first address whether restitution under the Act must be
limited to the dates specified within the indictment. This court
reviews the legality of an order of restitution de novo. United
States v. Baggett, 125 F.3d 1319, 1321 (9th Cir. 1997).

18 U.S.C. S 2281 states, in relevant part:
      (c) Upon a conviction under this section, the court
      shall order restitution under section 3663 in an
      amount equal to the past due support obligation as it
      exists at the time of sentencing.

18 U.S.C. S 228(c). The Act defines "past due support
obligation" as any amount determined by court order to be
due as child support that has remained unpaid for more than
one year or is greater than $5,000. 18 U.S.C. S 228(d)(1).
Craig contends that the order of restitution--in an amount
exceeding those child support payments that became delin-
quent during the period charged in the indictment--is outside
the court's limited authority to order restitution. He bases this
argument on the Act's incorporation of the Victim Witness
Protection Act, 18 U.S.C. S 3663, which limits restitution to
the amount of damages suffered by the victim as a result of
the criminal conduct charged in the indictment. See Hughey
v. United States, 495 U.S. 411, 413 (1990) ("[T]he language
and structure of the [Victim Witness Protection ] Act make
plain Congress' intent to authorize an award of restitution
only for the loss caused by the specific conduct that is the
basis of the offense of conviction.").

[1] It is clear from the language of the statute, however,
that the criminal conduct in a case pursuant to the Child Sup-
port and Recovery Act is the willful failure to pay a past due
child support obligation. Section 228(a) states:

      Whoever willfully fails to pay a past due support
      obligation with respect to a child who resides in
      another State shall be punished as provided in sub-
      section (b).

In United States v. Mussari, 95 F.3d 787, 791 (9th Cir. 1996)
("Mussari I"), cert. denied, 117 S. Ct. 1567 (1997), we deter-
mined that the Act "intervene[s] and forbid[s] frustration of
the obligation's satisfaction" once the preexisting support
obligation "comes to wear an interstate face. " This suggests
that the federal statute comes into play at the moment there
is an interstate character to the debt. The federal statute is not
triggered by the accrual of debt subsequent to the interstate
character of the support obligation. A child support obligation
thus is a state-incurred debt that becomes a federal crime at
the time the parent or minor relocates to another state.

[2] Because the criminal conduct charged in the indictment
includes the willful non-payment of child support prior to the
time period specified in the indictment, the statutory language
of S 228(c)--"at the time of sentencing"--evinces Congress'
desire to charge the parent for all unpaid child support,
including support that accrued before the indictment was
issued. Rather than delineate the period of restitution, the time
period charged in the indictment merely provides the jurisdic-
tional basis for a federal court to order restitution for the total
amount of arrearage, including state-incurred debt. Not
imposing restitution to include amounts that accrued outside
the period of the indictment would appear to render the clause
"as it exists at the time of sentencing" a nullity. See Wilshire
Westwood Assocs. v. Atlantic Richfield Corp. , 881 F.2d 801,
804 (9th Cir. 1989) (holding that it is improper to construe
plain language in way that renders words or clauses a nullity).
Accordingly, a restitution order that awards the entire past due
support obligation does not run afoul of S 3663's requirement
that restitution be limited to the amount of damages suffered
by the victim as a result of the criminal conduct charged in the

This outcome is consistent with the Act's legislative his-
tory, which indicates that Congress enacted the statute to help
states collect billions of dollars of uncollected child support
by creating a federal mechanism to enforce state child support
orders regardless of a parent's flight from state to state. See
138 Cong. Rec. H11071, H11071-11072 (daily ed. Oct. 3,
1992) (statements of Reps. Hyde, Hoyer, Mazzoli). More spe-
cifically, the Act was enacted to counter parents' efforts to
evade state jurisdiction. See United States v. Sage, 92 F.3d
101, 103-104 (2d Cir. 1996) (recounting genesis of the Act).
Thus, the Act was not enacted merely to allow the federal
courts to impose restitution for the period of time during
which the parent was in interstate flight. Rather, the Act must
be read to mandate that a federal court order restitution of the
entire past due child support obligation.


We next address whether the district court erred by order-
ing restitution in the full amount of the past due child support
obligation without inquiring into Craig's ability to pay. The
district court determined that Craig's guilty plea constituted
an admission of his willful failure to pay a known past due
child support obligation.

In the factual basis of his plea agreement, Craig admitted
only that he was partially able to pay the past due child sup-
port obligation that he owed. He argues that this "partial
admission" does not suffice to establish willfulness on his
part. Accordingly, he seeks a federal court hearing to deter-
mine that portion of his child support obligation that he
"could . . . have afforded to pay." Br. of Appellant at 18.

Thus, in addition to arguing that his total obligation to pay
was limited to the support payments that accrued between the
dates charged in the indictment, Appellant argues that the fed-
eral district court should have conducted a hearing, similar to
a state family court, to determine his ability to pay. He cannot
point to any specific decision of this court that would entitle
him to such relief but instead relies on a statement in United
States v. Mussari, 152 F.3d 1156, 1157 (9th Cir. 1998)
("Mussari II"): "[W]hat follows is dicta. . . . Enactment of the
statute did not turn Mussari instantly into a federal offender.
His willfulness had to be measured by what capacity he had
to pay after the date of the statute's enactment."
Subsequent to the briefing and oral argument in this case,
we decided United States v. Ballek, 170 F.3d 871 (9th Cir.
1999), which directly contradicts Appellant's argument by its
instruction that a federal defendant in a prosecution under 18
U.S.C. S 228 is required to apply to the state court that issued
the child support order for any reduction of the obligation.
Because a state court considers a parent's ability to pay in
making support awards, we interpreted the term "willfully" to
include those situations in which a defendant has insufficient
funds to pay the support obligation because of the parent's
own failure to avail himself or herself of necessary means.
The court stated that, "[g]iven this means-testing . . . , a non-
custodial parent should never be confronted with a situation
where he is ordered to make child support payments he cannot
afford." Ballek, 170 F.3d at 873.

[3] We made it clear in Ballek that a parent who considers
himself or herself unable to pay an order of child support
must seek a modification of the order from the state court and
not from the federal district court in a CSRA prosecution:

      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 determine whether such a change is consistent
      with the parent's prior obligation to support the chil-

Id. at 875 (emphasis added). Accordingly, a "non-custodial
parent who does not have the funds to satisfy the child sup-
port 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 sup-
port order." Id. at 873 (emphasis added); see also United
States v. Bailey, 115 F.3d 1222, 1232 (5th Cir. 1997) ("A
CSRA prosecution turns only on the defendant's violation of
a state court order. It does not turn on the fairness of the
order, the reasons underlying the state court's issuance of the
order . . . or any other matter involving relitigation of a family
law issue."), cert. denied, 118 S. Ct. 866 (1998).

[4] By analogy, the reasoning of Ballek is equally applica-
ble to excuses presented by David Howard Craig for non-
payment of his child support order. In his guilty plea, Craig
admitted that he knew of his past due support obligation. ER
at 9. His contention that he was unable to pay seems to place
the blame for all of his financial woes on his ex-wife's shoul-

      His ex-wife refused to return the tools, business
      records, and other work supplies that had remained
      in the home. . . . Craig's credit was also affected by
      the financial consequences of the divorce. . . . He
      lost his truck. . . . As a result of these circumstances
      he was unable to maintain his business, and therefore
      was unable to make the ordered child support pay-
      ments. He lost his contractor's license as a result of
      non-payment, which further impaired his ability to
      earn a living. . . . In the years since the divorce Mr.
      Craig moved repeatedly in search of work, living
      from hand to mouth and sometimes relying upon his
      parents for support. . . . He held numerous short-term
      construction jobs, providing intermittent income.

Br. of Appellant at 5 (citations omitted). Although he con-
tended that he was unable to pay the entire award, Craig did
not seek a modification of the child support order in state
court, which had reduced Craig's monthly support obligation
on two prior occasions.

[5] We are confident that a competent state tribunal would
have made a proper evaluation of his mournful apologia had
it been presented to a family court prior to his federal indict-
ment. He chose not to do so. Accordingly, by the time he was
the subject of a federal indictment, it was too late to avoid the
consequences by pleading financial inability to pay the state
court order.

We conclude that the teachings of Ballek reflect an explicit
rejection of the obitum dictum's suggestion in Mussari II that
incorporation of the Victim Witness Protection Act, 18 U.S.C.
S 3663, requires a federal court to consider "the financial
resources of the defendant" in ordering an award of restitution
under the Act. In Ballek, we decided that it is the responsibil-
ity of the federal defendant to make his or her presentation to
the state family court to demonstrate that he or she lacks the
financial resources to meet the support obligations imposed
by the state court system. In Ballek, we did not ignore the
incorporation of S 3663 into the Child Support Recovery Act;
rather, we made the judgment that in considering the alloca-
tion of judicial competencies, the state court system is better-
equipped to exercise expertise in child support cases relating
to "the financial resources of the [parent], the financial needs
and earning ability of the [parent] and the[parent's]
dependents." 18 U.S.C. S 3663(a)(1)(B)(i)(II).


[6] Finally, we hold that the restitution order in this case
did not violate the Commerce Clause or the Due Process
Clause of the Fifth Amendment. We review de novo the con-
stitutionality of the district court's interpretation of this stat-
ute. United States v. DeLaCorte, 113 F.3d 154, 155 (9th Cir.

[7] Although this court has held that the Act itself does not
violate the Commerce Clause, see Mussari I, 95 F.3d at 790-
791, Craig contends that the Act as applied in this case vio-
lates the Commerce Clause by ordering restitution beyond the
offense charged against him. As we held above, however, the
Act criminalizes willful nonpayment of a preexisting child
support debt at a time when the debtor is in a state different
from his or her children. Because the restitution order did not
exceed the amount Craig owed as a result of the offense
charged against him, there is no Commerce Clause violation.

[8] In addition, Craig's due process rights were not violated
by the magistrate judge's order, which awarded restitution
without considering Craig's ability to pay. Craig's guilty plea
constituted an admission of all elements of the offense
charged. United States v. Cazares, 121 F.3d 1241, 1246-1247
(9th Cir. 1997). Moreover, the Act provided Craig with fair
warning that restitution in the full amount of the past due
child support obligation would be required upon conviction.
See, e.g., United States v. Crawford, 115 F.3d 1397, 1403 (8th
Cir. 1997). Accordingly, there was no due process violation
and the restitution award was not unconstitutional.



1 All references to the Act are to the prior version, 18 U.S.C. S 228
(1994 & Supp. IV 1998), in effect at the time of Craig's conviction.