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United States of v. Rafik M. Hanna

December 22, 2010

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
RAFIK M. HANNA, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 09 CR 00406-David H. Coar, Judge.

The opinion of the court was delivered by: Wood, Circuit Judge.

ARGUED SEPTEMBER 9, 2010-

Before WOOD, EVANS, and TINDER, Circuit Judges.

In the wake of his divorce, Dr. Rafik Hanna was ordered by an Illinois court to make child-support payments to his daughter. For the most part, he flouted this order. After several years of nonpayment and a move to Washington State, a federal grand jury in Chicago indicted Hanna on charges that he willfully failed to pay a support obligation to a child residing in another state, in violation of the Deadbeat Parents Punishment Act of 1998, 18 U.S.C. § 228 ("Section 228"). A jury convicted Hanna, and the district court sentenced him to two years' imprisonment and a year of supervised release; the court also ordered him to pay $247,843.99 in restitution. In this appeal, Hanna primarily attacks the sufficiency of the evidence on two points-his income and willfulness. Hanna adds that the district court should have instructed the jury on the U.S. Tax Code, that it abused its discretion by admitting unfairly prejudicial evidence, and that it erred by failing to alter the restitution order to reflect a support payment that he made after he was convicted. We conclude that the district court committed no reversible error and thus affirm the judgment.

I

When his daughter was born in 1996, Hanna was earning roughly $180,000 annually as a pathologist in Illinois. Shortly after her birth, Hanna and his wife sought a divorce, which was finalized in March 1999. In September 2001, an Illinois court ordered Hanna to make biweekly child-support payments of $967.38 through August 2014. At times, the court enforced its order by garnishing Hanna's wages. Hanna asserts that in 2002 he began having trouble finding steady employment. Around that time, he stopped working as a pathologist and left Illinois for the Pacific Northwest.

Hanna landed in Vancouver, Washington, a border-town suburb of Portland, Oregon. There, for a brief time, he maintained a checking account at Bank of America. But then the Washington State Division of Child Support sent him a number of notices informing him that he owed over $38,000 in back child-support payments. He elected not to respond to those notices, and so in December 2003, the Washington authorities attached the entire balance (just over $4,000) then in the account. Rather than replenishing it and thus making more money available to the state, Hanna closed it. A year later, after additional requests for payment, the state suspended Hanna's license to practice medicine in Washington.

In the meantime, Hanna was living quite well. Hanna took out a lease for a Lexus ES 300 in October 2002, and paid nearly $800 a month for the car through September 2005. In December 2003, just three months after losing his Washington medical license, he leased a Porsche Boxster S, putting $1,455 down and agreeing to pay $930 a month for five years. On the lease application, Hanna listed an annual income between $100,000 and $150,000. In August 2005 Hanna leased a third car (a Jaguar) for almost $950 per month, and in March 2008 Hanna took out a fourth lease of $1,100 a month for an Audi A6. All the while, Hanna spent significant sums on travel, gifts, and entertainment. He vacationed at spa resorts on Catalina Island in California, on Victoria Island in British Columbia, and at Sun-river in Oregon; he played golf at championship courses; he frequented the symphony and professional basketball games; he funded expensive shopping excursions for a new girlfriend at high-end clothiers such as Bebe and Nordstrom; and he even took a trip to Walt Disney World.

To support this lifestyle, Hanna maintained two accounts in Canada at the Bank of Nova Scotia. Between April 2005 and April 2009, those accounts took in over $500,000, a significant portion of which came from members of Hanna's family. Hanna explained that his family had supported him during this period because he had no income and was unable to secure "any form of substantial employment"-a condition explained in large part by the fact that other states followed Washington's lead and revoked the remainder of his medical licenses. Hanna's ability to spend freely, he maintains, was further limited by the gifts themselves because they came with "strings attached." The donors, according to Hanna, insisted that he use the funds only to cover his own support and his credit card payments; apparently they did not want him to keep current with his child-support obligations.

In May 2005, two weeks after his indictment, Hanna was arrested. Shortly thereafter, Special Agent Robin Bonn of the U.S. Department of Health and Human Services interviewed Hanna, who admitted that he had not met his child-support obligations even after receiving past-due notices and warnings about the possible suspension of his medial licenses. When asked why he had not paid, Hanna replied defiantly, "I am not going to use my life lines to pay child support. I'm using them to pay myself." At trial, Bonn testified about the interview. During closing arguments the government displayed Hanna's statement beneath side-by-side photographs of his daughter and a Porsche Boxster S. Hanna objected to the exhibit, but the district judge overruled the objection. In his closing argument, Hanna's lawyer referred to the U.S. Tax Code (alluding to Hanna's theory that "income" for purposes of child-support obligations is identical to "income" for purposes of federal taxes); the lawyer later tried unsuccessfully to persuade the district court to instruct the jury on tax law. The jury convicted, and the court then ordered the usual presentence investigation. Just a week before his sentencing hearing, Hanna suddenly paid $167,000 toward his child-support arrearage. As part of the sentence, the court ordered Hanna to pay $247,843.99 as restitution-the amount he owed in back support payment as of the day of his conviction, without in so many words taking into account the $167,000 payment. This appeal followed.

II

A

Hanna first presents two arguments based on the sufficiency of the evidence to support his conviction. Both derive from his assertion that between 2005 and 2009 he lived almost exclusively on gifts from family members. To succeed, Hanna must convince us that even when viewing the evidence in the light most favorable to the verdict, no rational jury could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Smith, 576 F.3d 681, 686 (7th Cir. 2009). Neither of Hanna's arguments comes close to meeting that standard.

First, Hanna asserts that there was insufficient evidence of his "income" to sustain his conviction. In his view, gifts do "not constitute income under the child support order" because they receive special treatment under the Internal Revenue Code; it thus follows, he asserts, that he could not have violated Section 228. Punishment under Section 228, however, has nothing to do with a defendant's income for tax purposes, and the word "income" is nowhere to be found in the statute. Section 228 punishes any person who "willfully fails to pay a support obligation with respect to a child who resides in another State, if such obligation has remained unpaid for a period longer than 2 years, or is greater than $10,000." 18 U.S.C. ยง 228(a)(3). State law determines which financial resources may be considered in setting a "support obligation" under the statute; we do not have before us the question ...


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