1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-30777

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JAMIE EDELKIND

Defendant-Appellant

Appeals from the United States District Court

For the Western District of Louisiana

Before REAVLEY, SMITH, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

Defendant-appellant Jamie Edelkind (“Edelkind”) appeals his conviction

for having “wilfully fail[ed] 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” in violation of 18 U.S.C. §

228(a)(3). Edelkind presents four issues on appeal: (1) whether the statute of

limitations bars his conviction; (2) whether the district court abused its

discretion in delaying the trial in violation of the Speedy Trial Act, 18 U.S.C. §§

3161, et seq.; (3) whether the district court erred in its jury instructions on

United States Court of Appeals

Fifth Circuit

F I L E D

April 15, 2008

Charles R. Fulbruge III

Clerk
No. 06-30777

1 Edelkind concedes the fifth issue he raises that the statute of conviction, 18 U.S.C. §

228, violates the Commerce Clause is foreclosed by United States v. Bailey, 115 F.3d 1222,

1224-26 (5th Cir. 1997), but he wishes to preserve it for Supreme Court review.

2

“wilfulness”; and (4) whether there was sufficient evidence for the conviction.1

For the following reasons, we reject appellant’s arguments. The conviction is

AFFIRMED.

BACKGROUND

Jamie Edelkind, a computer technology expert, married Suzanne

Boudreaux in 1988, who gave birth to their son, Sage, in 1993. The family lived

primarily in Atlanta, Georgia, and Edelkind operated his own business. They

had a lavish lifestyle. Edelkind and Boudreaux separated as a precursor to

divorce in 1997, and they entered into a Settlement Agreement in 1998. The

Settlement Agreement required that, aside from a few months early on,

Edelkind would pay $1,400 a month in child support. However, litigation over

various aspects of the divorce and agreement ensued. See, e.g., Edelkind v.

Boudreaux, 519 S.E.2d 442, 443-44 (Ga. 1999). On September 15, 1999, with

the issues finally resolved, a Georgia court entered aFinal Judgment and Decree

of Divorce in 1999. It incorporated by reference the terms of the 1998

Settlement Agreement, and the decision was made retroactive to 1998 (“1998

Judgment”). In the 1998 Judgment, the court found Edelkind “in willful

contempt” of his child support obligations, and ordered him to repay his

arrearage of $7,000 plus $300 of interest. The Georgia court found that Edelkind

“has wholly failed to pay any amounts as child support to [Boudreaux] in the

past five months while by his own testimony maintaining an affluent lifestyle

and standard of living.” 

While litigation was pending before the Georgia courts, in 1998,
No. 06-30777

2 He was later convicted of bank fraud in relation to the re-financing of his home. See

United States v. Edelkind, 467 F.3d 791, 793-94 (1st Cir. 2006), cert. denied, 75 USLW 3530

(U.S. Apr. 2, 2007) (No. 06-9793). 

3

Boudreaux and Sage moved to Louisiana. Edelkind lived in Georgia until 1999

when he moved to Massachusetts after marrying his new wife, Linda, in 1998.

After Boudreaux moved to Louisiana, Edelkind stopped paying child support.

In 1999, Edelkind sent a number of checks to satisfy his arrearage, all of

which were returned for insufficient funds, and Boudreaux sought assistance

from the state of Louisiana to obtain child support for Sage. Also in 1999,

Edelkind declared bankruptcy, and Boudreaux eventually received a check from

the bankruptcy court amounting to $9,622.97.

Edelkind continued to enjoy a lavish lifestyle in Massachusetts with his

new wife, with whom he had three children. He lived in a mansion, drove

expensive cars, hired two nannies, and sent his children to private schools. He

marketed himself as a technology expert who owned several important patents.

While these assets, including the home and cars, were paid for using his wife’s

name and accounts, Edelkind was heavily involved in the management of their

joint finances.2 Throughout this time, Edelkind did not fulfill his child support

obligations and evaded garnishment by opening up bank accounts without using

his social security number.

Boudreaux’s efforts to enforce the child support obligations culminated in

a 2003 hearing in a Louisiana state courtfor which both Bordeaux and Edelkind

were present with counsel. At the hearing, Edelkind testified about his earning

capacity and work history. After examining the evidence and testimony, the

Louisiana state court found that “[i]f Mr. Edelkind would have conducted

himself in an honest and forthright manner in his business and legal dealings,

he would have no problem obtaining employment” and thereby fulfill his child
No. 06-30777

4

support obligations. The Louisiana court entered a judgment in November 2003

(“2003 Judgment”), holding that Edelkind owed nearly $70,000 in back child

support, and would have to pay approximately $1,500 a month from then on. To

reach those sums, the Louisiana court recalculated the amount owed, based on

findings regarding Edelkind’s and Boudreaux’s earning capacities. In so doing,

the court rejected a litany of Edelkind’s excuses, including ongoing troubles with

the Securities & Exchange Commission. The court found Edelkind was “in

contempt of court for his wilful and contumacious violation of the orders of the

Court for failure to pay child support.” It said the “arrearages in child support

are particularly egregious.” It also found that Edelkind “has put all of his assets

beyond his creditors, including his ex-wife.” Based on these findings, the court

sentenced Edelkind to 90 days in jail, unless he would make an immediate

payment of $25,000. After that hearing, Edelkind paid the $25,000, but after the

hearing, he still did not consistently pay the child support that he owed. 

On October 12, 2005, Edelkind was indicted for willfully failing to pay

child support in violation of 18 U.S.C. § 228, from December 1998 to the date of

the indictment. In late November 2005, the Government moved for a

continuance, asserting that it was still waiting for certain sealed records to be

provided by the Louisiana state courts, and that it was still verifying certain

pieces of evidence. Edelkind opposed this motion, but after a pre-trial

conference, the district court granted the motion. Edelkind then got a new

lawyer, and eventually moved for a continuance of his own, which was also

granted.

At trial, the foregoing story was presented. The Government also

presented statements Edelkind allegedly told the FBI when he was interviewed:

that Edelkind tried to hide money from Boudreaux by opening bank accounts
No. 06-30777

5

without using his social security number, and that he received compensation of

atleast $50,000 around mid-2000 to early-2001. The Government also presented

evidence that Edelkind could use “Linda’s” money as he saw fit, even though the

funds were in her name. Taking into account all of the support payments

actually made by Edelkind from January of 1999 forward, he owed nearly

$90,000 at time of trial. The only documented support that he voluntarily paid

since 1999 was $1,500 that he had a lawyer send.

After a series of pre-trial motions, the case was tried before a jury, and

Edelkind was convicted. Following trial, Edelkind moved for a judgment of

acquittal or new trial, which was denied. Edelkind was sentenced to 24 months

imprisonment, the statutory maximum, and ordered to pay restitution of

approximately $95,000. Edelkind filed a timely notice of appeal.

STANDARD OF REVIEW

We review questions of law relating to statutes of limitations de novo. See

United States v. Gunera, 479 F.3d 373, 376 (5th Cir. 2007). We review factual

findings supporting Speedy Trial Act rulings for clear error, and legal

conclusions de novo. See United States v. Stephens, 489 F.3d 647, 652 (5th Cir.

2007). Denials of proposed jury instructions are reviewed for abuse of discretion.

See United States v. Cain, 440 F.3d 672, 674 (5th Cir. 2006). If properly

preserved for appeal, we review sufficiency of the evidence claims de novo,

though “in the light most favorable to the verdict”; otherwise, we review them

under the “plain error”SSor “manifest miscarriage of justice”SSstandard. See

United States v. Morganfield, 501 F.3d 453, 461 (5th Cir. 2007) (internal

citations and quotations omitted).

ANALYSIS

I. Statute of Limitations
No. 06-30777

6

Edelkind contends that his willful failure to pay child support is not a

continuing offense, and, consequently, he could have been convicted for acts that

were outside the statute of limitations. The pertinent statute states that any

person who “wilfully 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” is guilty of a crime. 18 U.S.C.

§ 228(a)(3). 

The statute is subject to the general five-year statute of limitations

provided for under 18 U.S.C. § 3282(a), because section 228 does not contain a

specific limitations period. See United States v. Monts, 311 F.3d 993, 999 (10th

Cir. 2002). Edelkind argues that the crime is complete when the child support

payments reach 2 years or is greater than $10,000 and the statute of limitations

starts to run at that point. Here, the payments reached $10,000 at the latest, on

October 1, 1999. Edelkind argues that the statute of limitations period ended

on October 1, 2004, and therefore the October 12, 2005 indictment was untimely.

In response, the Government contends that the violation is a continuing offense

and a “continuing offense, by its very nature, does not terminate until the date

of the indictment or the voluntary termination of the illegal activity.” United

States v. Alvarado-Santilano, 434 F.3d 794, 796 (5th Cir. 2005) (internal

quotation omitted). According to the Government, since Edelkind has never

fully paid his arrearage in child support payments, the offense terminated only

at the date of indictment. 

In United States v. Brazell, 489 F.3d 666, 668 (5th Cir. 2007), we stated,

“[a] defendant’s continual wilful failure to satisfy his child support debt . . .

constitutes a continuing offense.” Edelkind argues that Brazell does not control
No. 06-30777

7

this case for two reasons: (1) the statement is mere dictum; and (2) Brazell

concerned the application of a sentence enhancement for the continued failure

to pay child support while on probation but this case concerns the statute of

limitations period for failure to pay child support. See Brazell, 489 F.3d at 667-

68. Assuming arguendo that the language in Brazell has only persuasive value,

we still conclude that 18 U.S.C. § 228(a) is a continuing offense for statute of

limitations purposes. 

First, other Circuit decisions that have directly addressed this issue in

other legal contexts are in agreement with Brazell that section 228(a) is a

continuing offense. See, e.g., United States v. Russell, 186 F.3d 883, 886 (8th Cir.

1999) (Ex Post Facto Clause); United States v. Muench, 153 F.3d 1298, 1301

(11th Cir. 1998) (venue); United States v. Crawford, 115 F.3d 1397, 1405 (8th

Cir. 1997) (venue). Moreover, the majority of state courts that have addressed

this issue agree that the wilful failure to pay child support is a continuing

violation. See Harvill v. Texas, 13 S.W.3d 478, 481 (Tex. Ct. App. 2000)

(“Criminal nonsupport is a continuing offense.”); Wisconsin v. Monarch, 602

N.W.2d 179, 182 (Wis. Ct. App. 1999) (“These cases establish that the crime of

nonsupport continues until the last date the defendant intentionally fails to

provide child support that he or she is legally obligated to provide. The statute

of limitations runs from that point.”); Maryland v. James, 100 A.2d 12, 14 (Md.

1953); Minnesota v. Wood, 209 N.W. 529, 530 (Minn. 1926); see also Toussie v.

United States, 397 U.S. 112, 134 (1970) (White, J., dissenting) (“The ‘continuing

offense’ is hardly a stranger to American jurisprudence. The concept has been

extended to embrace such crimes as embezzlement, conspiracy, bigamy,

nuisance, failure to provide support, repeated failure to file reports . . . .”)
No. 06-30777

3 A strong majority of the state courts is significant in this context because Congress’s

driving concern when enacting 18 U.S.C. § 228(a) was to strengthen the enforcement of state

crimes of wilful failure to pay child support when a parent crosses state lines. See Bailey, 115

F.3d at 1225. 

4 The Child Support Recovery Act of 1992 (“CSRA”) created federal penalties for failure

to pay child support. This Act was later amended by the Deadbeat Parents Punishment Act

of 1998 (“DPPA”). See United States v. Kukafka, 478 F.3d 531, 534 (3d Cir. 2007). “The

(continued...)

8

(emphasis added) (citing Towns v. Georgia, 100 S.E. 575 (Ga. Ct. App. 1919); but

see People v. Monaco, 710 N.W.2d 46, 56-57 (Mich. 2006) (holding, by a divided

court, that Michigan’s legislature did not intend the criminal nonsupport of

children offense to be a continuing one).3

Second, the statutory language and Congressional intent support a

conclusion that a 18 U.S.C. § 228(a) violation is a continuing offense. See

Toussie, 397 U.S. at 114-15 (“[A] particular offense should never be construed as

a continuing one . . . unless the explicit language of the substantive criminal

statute compels such a conclusion, or the nature of the crime involved is such

that Congress must assuredly have intended that it be treated as a continuing

one.”). The nature of a continuing offense is that “each day's acts bring a

renewed threat of the substantive evil Congress sought to prevent.” Id. at 122.

From a plain reading of the statute, Congress clearly intended the offense to be

a continuing one. The statute punishes the failure to pay child support if such

an obligation “remained unpaid for a period longer than 2 years, or is greater

than $10,000.” 18 U.S.C. § 228(a) (emphasis added). Congress thereby imagined

the criminalized conduct to last continuously beyond a 2-year period or the

accumulation over $10,000. 

In addition to this statutory language, Congress’ overriding concern when

enacting the bills4that resulted in 18 U.S.C. § 228 was two continuing harms --
No. 06-30777

(...continued)

DPPA is the successor to the Child Support Recovery Act . . . . The operative language of the

CSRA is substantively the same as the DPPA. Thus, cases interpreting and applying the CSRA

are applicable to this case, and we cite those cases herein as if they were DPPA cases.” United

States v. Kerley, 416 F.3d 176, 178 n.1 (2d Cir. 2005). The codification of these Acts is the

criminal statute in this case, 18 U.S.C. § 228. 

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(1) parents shirking the “burden” and the “moral, legal and financial obligations”

to their own children and (2) the negative effect on the custodial parents who

must continually renew their tedious efforts to enforce support orders against

out-of-state non-custodial parents. See H.R. Rep. No. 102-771, at 6 (1992) (“[T]he

burden of caring for these children will be placed on the shoulders of the parents

-- where it rightfully belongs.”); 144 Cong. Rec. H3042-01, H3045-46 (daily ed.

1998) (statement of Rep. Roukema); Id. at H3043 (statement of Rep. JacksonLee) (“In many instances, women or men with custody who have to rely upon the

civil process system time after time after time find that the parent that owes the

money does not pay child support many times.”); see also 138 Cong. Rec.

H7324-01, H7327 (daily ed. 1992) (statement of Rep. Hoyer) (noting the effect of

the law was to criminalize a person neglecting to pay his child support obligation

for over six years). Congress thereby intended the criminal penalties to prevent

the continuous harm to the custodial parent and his or her child’s welfare that

is renewed each day by the “deadbeat” parent’s daily failure to pay child support.

It is the nature of child support that it typically arrives periodically to cover the

living expenses of a child during the intervals between payments, so the failure

to continue to make payments does “bring a renewed threat of the substantive

evil Congress sought to prevent.” Toussie, 397 U.S. at 122. Moreover, Congress

intended the statute to penalize parents who intentionally flee across state lines

so as to continuously evade enforcement of child support orders by out-of-state

courts. E.g., 138 Cong. Rec. H7324-01, H7326 (daily ed. 1992) (statement of Rep.
No. 06-30777

5 Since we find Congress’s intent to be unambiguous, we do not need to follow the “rule

of lenity.” See United States v. Lamm, 392 F.3d 130, 134 (5th Cir. 2004) (“[Rule of lenity]

requires an ambiguity in a criminal statute be resolved in favor of the defendant when there

is a ‘grievous ambiguity or uncertainty’ in the statute.”) (citing Muscarello v. UnitedStates, 524

U.S. 125, 138-39 (1998) (citations omitted)). 

10

Hyde). Congress thereby characterized a 18 U.S.C. § 228 violation as an

intentional and continual evasion of court processes, which is generally a

continuous offense. See United States v. Merino, 44 F.3d 749, 754 (9th Cir.

1994). Like those who flee and evade court processes, the consistent failure to

pay ongoing child support obligations as ordered by state courts is a “threat to

the integrity and authority of the court, posed by a recalcitrant defendant who

refuses to abide by lawful court orders.” Id. 

Furthermore, under Edelkind’s theory, the crime is complete whenever

$10,000.01 is owed. Under his theory, if a defendant owes, for example, $11,000

a month in support, and refuses to pay, the crime is complete every single

month. In one year, the defendant could conceivably be responsible for twelve

separate crimes of $11,000, each carrying with it a potential sentence of up to 24

months for a total of a 264 months maximum. Under a “continuous offense”

approach, however, the defendant would only be accountable for one continuous

crime involving losses of $132,000, and would be subject to just a 24 month

maximum sentence. Congress clearly did not intend to attach lengthy jail-times

for this crime, but merely wanted to use the threat of a two-year maximum to

create an incentive for “deadbeat” parents to fulfill their ongoing obligations to

their children. See, e.g., 144 Cong. Rec. S5734-02, S5734 (daily ed. 1998)

(statement of Sen. Kohl).5

Againstthese authorities, Edelkind argues that underToussie and United

States v. Irvine, 98 U.S. 450 (1878), a section 228(a) violation should not be
No. 06-30777

11

deemed a continuing offense. Toussie concerned whether the requirement to

register for the draft constituted a continuing offense. In Toussie, the

Government “argued that [the crime] continued to be committed each day that

Toussie did not register,” 397 U.S. at 114, a proposition the Court rejected. The

draft registration statute did not, the Court ruled, expressly make the crime

continuing, and “[t]here is also nothing inherent in the act of registration itself

which makes failure to do so a continuing crime. Failing to register is not like

a conspiracy which the Court has held continues as long as the conspirators

engage in overt acts in furtherance of their plot.” Id. at 122. The fact that the

first draft registrations clearly were viewed as instantaneous events, i.e., the

registration period was limited to six days, and not a continuing process

indicated to the Court that “there is nothing inherent in the nature of failing to

register that makes it a continuing offense. “ Id. 

In Irvine, “[t]he defendant, Clark Irvine, [wa]s charged in the indictment

. . . , that on the twenty-fourth day of December, 1870, as the agent and attorney

of Mrs. Berkely, he wrongfully withheld from her the amount of her pension, to

wit, $525 . . . and continuously withheld it until the time of finding the

indictment in September, 1875.” 98 U.S. at 451. The question was whether

constant withholding of the money extended the statute of limitations. The

Court held it did not, stating that “[w]henever the act or series of acts necessary

to constitute a criminal withholding of the money have transpired, the crime is

complete, and from that day the Statute of Limitations begins to run againstthe

prosecution.” Id. at 452. “It is unreasonable to hold that twenty years after this

he can be indicted for wrongfully withholding the money, and be put to prove his

innocence after his receipt is lost, and when perhaps the pensioner is dead . . .

.” Id.
No. 06-30777

12

These cases are distinguishable. Unlike in Irvine and Toussie,the statute

here, does “clearly contemplate[] a prolonged course of conduct,” Toussie, 397

U.S. at 120, as it typically takes many months, if not years, of missed payments

to reach $10,000, and, in fact, the statute explicitly speaks of, in the alternate,

a “period longer than 2 years,” suggesting prolonged conduct. This is unlike

cases where a single act (such as withholding of a single pension payment, or

failing to register within the six-day period), is the basis for the crime, as the

obligation and potential harm here constantly increases by the imposition of a

series of clearly defined new duties SSi.e., the monthly duty to pay the new

month’s check SS coupled with a series of overtfailures to meetthose new duties.

In reaction to Toussie, Congress changed the registration statute so as to impose

a duty to register beyond the six-day time-frame. Like child support obligations,

Congress thereby imposed a continuing obligation to register for the draft.

Consistent with our holding today, courts consider the violation of the

continuous registration obligation as a continuing offense. See United States v.

Kerley, 838 F.2d 932, 935 (7th Cir. 1988); United States v. Jacob, 781 F.2d 643,

648-49 (8th Cir. 1986); United States v. Eklund, 733 F.2d 1287, 1297-298 (8th

Cir. 1984) (en banc) (noting that “failure to fulfill that continuing duty is a

continuing offense.”). Unlike Irvine, we are not applying the “continuous

offense” doctrine to the continued effects of a discrete and completed crime, i.e.,

the continued denial of receipt of one check after failing to deliver that one check

within the proscribed time period. Instead, here, the defendant is continuing to

renew his failure to fulfil his obligations every single month (and renewing its

harm) akin to a co-conspirator continuously renewing his support for and

furthering the harms of a criminal conspiracy. See, e.g., Bramblett v. United

States, 231 F.2d 489, 492-93 (D.C. Cir. 1956) (distinguishing Irvine from
No. 06-30777

6 Edelkind also contends the jury instruction was in error, because of the erroneous

instruction on the application of the statute of limitations to his offense, an argument that we

dismiss in this section. Because § 228(a) is a continuing offense statute, we need not decide

whether the jury could have found Edelkind guilty even if § 228(a) is not a continuing offense

statute as the defendant contends. 

13

conspiracies, which are considered continuing offenses). Our holding today that

a 18 U.S.C. § 228 violation is a “continuing offense” is consistent with Toussie

and Irvine.6

2. Speedy Trial Act

Under the Speedy Trial Act, 18 U.S.C. §§ 3161(c)(1), et seq., a defendant

should be brought to trial within 70 days of his indictment unless an exception

applies. One exception is: 

Any period of delay resulting from a continuance granted by any

judge on his own motion or at the request of the defendant or his

counsel or at the request of the attorney for the Government, if the

judge granted such continuance on the basis of his findings that the

ends of justice served by taking such action outweigh the best

interest of the public and the defendant in a speedy trial.

18 U.S.C. § 3161(h)(8)(A). The statute also goes on to list the types of factors the

court must consider in granting a continuance, including: “[w]hether the case is

so unusual or so complex. . . that it is unreasonable to expect adequate

preparation . . . within the time limits established by this section.” §

3161(h)(8)(b)(ii). The district court has “discretion SS within limits and subject

to specific procedures SS to accommodate limited delays for case-specific needs.”

Zedner v. United States, 547 U.S. 489, 499 (2006). In prior cases, we have

concluded that a district court’s finding that a case is complex constitutes a

sufficient ground to satisfy the statutory requirements for a continuance. United

States v. Bieganowski, 313 F.3d 264, 282 & n.15 (5th Cir. 2002). For this court
No. 06-30777

14

to overturn a factual finding, such as the district court’s factual finding that the

case is complex, it must be for “clear error.” Stephens, 489 F.3d at 652. 

At a pre-trial conference, the Government explained that the case was

complex, involved voluminous documents (some not yet received, because they

were under seal), and would involve “other crimes evidence” under Rule 404(b).

The district court agreed that the case was complex, because many documents

were involved. The district court also agreed that the Government was in good

faith still waiting on documents after taking judicial notice of the fact that the

Louisiana courts were still recovering from Hurricanes Katrina and Rita. During

the continuance hearing, Edelkind’s counsel also acknowledged that “the case

[was] becoming complicated.” At oral argument, Edelkind’s appellate counsel

agreed with this statement, and conceded thatthe factual and procedural history

of the case was “long and complicated.” Thus, there is sufficient basis for the

district court’s conclusion that the case is complex; there is no clear error. 

3. Jury Instruction on “Wilfulness”

Edelkind argues that the district court abused its discretion in declining

to offer his proposed jury instruction regarding wilfulness. “The district court

retains substantial latitude in formulating its jury charge, and we will reverse

only if the requested instruction is substantially correct; was not substantially

covered in the charge as a whole; and ifthe omission ofthe requested instruction

seriously impaired the defendant’s ability to present a given defense.” Cain, 440

F.3d at 674 (internal quotations and citations omitted). Any error is subject to

harmless error review. United States v. Nguyen, 493 F.3d 613, 622 (5th Cir.

2007). 

Edelkind argues that the court abused its discretion when it declined to

charge the jury that if they “f[ou]nd that the defendant had a good faith belief
No. 06-30777

15

that he is not obligated to pay a portion of his child support, such a belief is a

defense to a ‘finding of wilfulness’ even if that belief is unreasonable.” Instead,

the district court merely stated that “wilfully . . . means that the act was

committed voluntarily and purposely, with the specific intent to do something

the law forbids; that is to say, with bad purpose either to disobey or disregard

the law. . . .” Moreover, the court said that “[i]f you find that it was proven that

the defendant had money which he used to pay other expenses beyond living

expenses instead of paying his child support, then the wilful element is

satisfied.” The district court also noted that “this element is satisfied if you find

that the defendant had the ability to pay part of his child support, even if he did

not have the entire amount which he was ordered to pay,” or that “the

defendant[’s] lack of funds to pay was the result of his voluntary and intentional

acts done without justification.”

Edelkind does not present a valid argument as to how “the omission of

the requested instruction seriously impaired the defendant’s ability to present

a given defense.” Cain, 440 F.3d at 674. Edelkind testified that he believed the

1998 Judgment was invalid because, according to his belief, Boudreaux had

violated the judgment by mortgaging their previous home. Edelkind now

suggests that the failure to give the proposed instruction impaired his ability to

contend that he had a good-faith, albeit unreasonable, belief that he did not

wilfully violate the child support order because he believed the order was no

longer binding. However, this defense, as a matter of law, is not a valid defense.

Edelkind’s proposed instruction would apply if his defense had involved

ignorance of what the law actually required. See United States v. Mathes, 151

F.3d 251, 254-55 (5th Cir. 1998). Here, Edelkind’s defense does not involve the

ignorance of whatthe law actually required when the law itself was unclear, but
No. 06-30777

7 The Government and Edelkind dispute whether the sufficiency of evidence challenge

should be reviewed de novo or under a plain error standard. We do not need to decide this

issue, because our conclusion that there is sufficient evidence for the conviction is valid even

under the de novo standard. 

16

an unreasonable self-beliefthat a known court order was invalid and thereby not

binding on him. In Bailey, we explicitly rejected any defense against a section

228 prosecution by challenging the validity of the underlying state court order.

115 F.3d at 1232. We said:

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, the

defendant’s relationship with his children or former spouse, or any

other matter involving relitigation of a family law issue. Moreover,

there is no language in the CSRA allowing the federal court to look

beyond the four corners of the state child support order or

permitting the defendant to collaterally attack the state court order

in federal court.

Id.; see also Kerley, 416 F.3d at 178 (“Every circuit that has addressed the issue

has stated that defendants in DPPA prosecutions cannot collaterally challenge

the substantive merits of the underlying support order.”). Accordingly, the

omission of Edelkind’s proposed jury instruction did not seriously impair

Edelkind’s presentation of the given defense because it was not a valid defense

as a matter of law. 

4. Sufficiency of Evidence

“We review a claim of insufficient evidence by viewing all of the evidence,

and all reasonable inferences that may be drawn from it, in the light most

favorable to the verdict.” United States v. Jimenez, 509 F.3d 682, 690 (5th Cir.

2007).7 The defendant’s main argument is that Boudreaux’s actions and other

events outside of his control rendered him unable to pay the child support
No. 06-30777

17

payments, and therefore the jury should not have concluded that he wilfully

failed to pay child support. Mathes, 151 F.3d at 254; see also United States v.

Mattice, 186 F.3d 219, 228 (2d Cir. 1999) (“[I]f a defendant is unable to pay even

some of his past due child support obligations, his failure to pay cannot be either

voluntary or intentional and thus cannot be willful within meaning of [18 U.S.C.

§ 228(a)].”). Edelkind also suggests the evidence of his ability to pay erroneously

relies on his current wife, Linda’s, ability to pay the child support payments. 

We have said that “while [the defendant] may not have willfully failed to

pay the full amount of child support arrearages that he owed, he could have

willfully failed to pay the lesser amount that he was capable of paying; that

lesser amount fits the CSRA’s definition of support obligation, which includes

any amount due pursuant to court order that has remained unpaid . . .” Mathes,

151 F.3d at 254. Moreover, as the Ninth Circuit has noted, “Congress did not

mean to let absentee parents evade their parental obligations by refusing to

accept gainful employment or take other lawful steps to obtain the necessary

funds.” United States v. Ballek, 170 F.3d 871, 873 (9th Cir. 1999); see also United

States v. Williams, 121 F.3d 615, 621 (11th Cir. 1997) (“[A]lthough Appellant

lacks the funds to pay [his child-support obligations], it is due solely to his

decision to take steps specifically calculated to eliminate his ability to do so.”).

Furthermore, “[i]t makes no difference from what source [the defendant] . . .

received income. What matters is that he . . . had income, in whatever form he

wishes to characterize it.” United States v. Harrison, 188 F.3d 985, 987 (8th Cir.

1999) (quoting United States v. Black, 125 F.3d 454, 465-66 (7th Cir.1997)). 

There is also some deference to a state court’s assessment of the defendant’s

ability to pay. See, e.g., United States v. Craig, 181 F.3d 1124, 1129 (9th Cir.

1999). Moreover, even after the 2003 Judgment, Edelkind never sought a
No. 06-30777

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modification of the child-support order based on his alleged inability to pay. Id.

at 1128-29 (“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 indictment. 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.”).

Here, a state court in 2003 had determined after a hearing that Edelkind

had the ability to pay his child support obligations and his arrearage; it also

found his litany of excuses unavailing. Subsequently, he never sought to modify

his child support obligations. The Government presented evidence that

Edelkind was highly educated, had gainful employment for significant amounts

of time at high salaries, had alleged that he had important patents, and lived a

life with a high standard of living. He was, thus, more than capable of accepting

gainful employment to pay at least some significant portion of his child support

obligations. There is also evidence that he intentionally avoided paying his

child-support obligation (presumably, he thus believed he was capable of paying

at least some portion of it) by purposely moving money around so as to avoid

garnishment. There is sufficient evidence to support the verdict. 

CONCLUSION

For these reasons, the judgment of the District Court is AFFIRMED.