Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 08 CR 437-Matthew F. Kennelly, Judge.
The opinion of the court was delivered by: Cudahy, Circuit Judge.
Before CUDAHY, WOOD, and EVANS, Circuit Judges.
In 2008, a grand jury returned a one-count indictment charging Maurice Bell with willful failure to pay child support from February 2000 to June 2007, in violation of the Deadbeat Parents Punishment Act of 1998 (DPPA), 18 U.S.C. § 228(a)(3). Bell moved to dismiss the indictment as barred by the statute of limitations, but the district court denied the motion. After a jury trial, Bell was convicted and subsequently sentenced to a term of 24 months' imprisonment and ordered to pay restitution in the amount of $83,890.37. He now appeals because he contends that the district court erred by denying his motion to dismiss his indictment, by improperly instructing the jury and in calculating enhancements of his sentence. We affirm in part, and reverse and remand for re-sentencing in part.
In 1996, the state of Illinois determined that Bell was the father of C.W., a son born to Brooke Wolf-Lindsey (Wolf). The Illinois Department of Public Aid then ordered Bell to pay Wolf child support of $520/month. By 1999, he owed her more than $14,000, and the Circuit Court of DuPage County, Illinois, ordered him to pay child support of an additional $104/month, to cover some of his arrearage. Bell then left the state.
He spent the subsequent years with a series of women in Arizona and California, and worked as a mortgage broker, among other occupations. According to his friends out west, Bell lived big-driving luxury cars, golfing, flashing rolls of hundred dollar bills and filling custom-built closets with tailored clothes. Although the women he dated claimed that they financed this lifestyle (some took him to small claims court to recoup their loans), he had access to more than $300,000 in funds from gambling proceeds, loans from friends and his regular earnings, but he paid less than $16,000 in child support during that time, through wage garnishment. As of May 2007, Bell owed his son $65,219.84 in unpaid child support and accumulated interest.
Bell was indicted for violation of 18 U.S.C. § 228 based on his failure to pay child support as ordered from 2000 to 2007. He moved to dismiss the indictment because he contended that the government's cause of action accrued in 2000 and, therefore, that the applicable statute of limitations ran in 2005. The district court denied the motion based on its holding that § 228 is a continuing offense. At trial, the district court did not require the government to prove that the defendant knew that his actions violated a federal statute. Instead, it defined willfulness as charged to require proof that the defendant violated a known legal duty. After Bell was convicted at trial, he moved for a judgment of acquittal or for a new trial in part because he contended that the district court erred in failing to accept his jury instruction. The district court denied this post-trial motion. At sentencing, the district court applied a two-level enhancement for a violation of a judicial or administrative order based on the "distinct harms" involved in the conduct addressed respectively by the base-offense level and by the enhancement.
An appellate court reviews a district court's interpretation of a statute and the Sentencing Guidelines de novo and its factual findings for clear error. See, e.g., United States v. Webber, 536 F.3d 584, 599 (7th Cir. 2008) (de novo review applies to whether a district court's jury instructions "fairly and accurately summarize the law") (internal citation omitted); United States v. Katalinic, 510 F.3d 744, 746 (7th Cir. 2007). Whether the district court followed proper sentencing procedure is a legal question reviewed de novo. United States v. Smith, 562 F.3d 866, 872 (7th Cir. 2009).
1. 18 U.S.C. § 228 is a Continuing Offense
If a criminal statute contains no explicit statute of limitations, the generic, federal five-year statute applies. See 18 U.S.C. § 3282(a). Bell contends that, in 2000, when his child-support arrearage exceeded $10,000, the statute of limitations began to run and thus the government's indictment should have been dismissed as untimely. The government responds that 18 U.S.C. § 228 is a continuing offense and is not completed until the offense expires. See United States v. Yashar, 166 F.3d 873, 875-76 (7th Cir. 1999). This is an issue of first impression for our circuit.
Typically, an offense accrues when each element of the offense has occurred. Continuing offenses do not follow this rule, but continue until the defendant ceases the offending conduct (or an indictment is returned)-for example at the last act in furtherance of a conspiracy. See id. at 876. To determine whether an offense is "continuing," courts examine whether the language of a criminal statute compels that conclusion or whether the nature of the crime is such that Congress must ...