Monday, June 21, 2010

No Intent to Remain Needed to Establish Venue for Child Support Prosecution

US v. Novak: Novak was the father of two children, one living in California from a previous marriage and one in New York with his (then current) wife. Between 1993 and 2008, he failed to pay more than $120,000 in child support for the California child (plus interest). In August 2004, after his wife had filed for divorce, Novak moved to Virginia to fulfill a consultancy contract that would terminate at the end of 2004. He remained in Virginia, however, until August, 2007, when he was arrested and charged in the EDVA with willfully failing to pay child support under 18 USC 228(a)(3). At trial, venue was a key issue, whether Novak "resided" in EDVA. Novak argued that he lived in New York and only worked in Virginia - he returned to New York weekly to visit his daughter, continued to pay for the marital home, and kept most of his possessions there. The jury was instructed that to "reside" means "living in a given place permanently or for an extended period of time." Novak was convicted.

On appeal, Novak made two venue-related arguments against his conviction, both of which the Fourth Circuit rejected. First, he argued that the district court erred by failing to instruct the jury that it had to find that he intended to remain in Virginia in order to find that he resided there. The court concluded that the plain meaning of "reside" did not include an intent to remain in a particular place, differentiating it from the concept of domicile. Second, Novak argued that the district court erred by failing to instruct the jury specifically that he had to reside in EDVA during a time when he willfully failed to make child support payments. Even assuming that there was error in the instruction, the court held that it was harmless.

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