*Hon. John R. Gibson, of the Eighth Circuit, sitting by

designation.

United States Court of Appeals

For the First Circuit

No. 00-2403

UNITED STATES OF AMERICA,

Appellee,

v.

DAVID A. A. SMITH,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Torruella, Circuit Judge,

John R. Gibson,* Senior Circuit Judge,

and Lipez, Circuit Judge.

Leo T. Sorokin, Federal Defender Office, for appellant.

Donald K. Stern, United States Attorney, with whom

Antoinette E. M. Leoney, Assistant United States Attorney was on

brief, for appellee.
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February 1, 2002

JOHN R. GIBSON, Senior Circuit Judge. David Smith appeals

from the judgment following his conviction for willfully failing

to pay child support in violation of 18 U.S.C. § 228 (1994 &

Supp. IV 1998). He contends that the district court erred in

defining willfulness in its jury instructions by omitting

language Smith requested and by including language to which he

now objects. We conclude that the jury instructions were

adequate and we affirm the judgment.

Smith married Joyce Poirier in 1983. Their daughter

Jade was born in 1985. When he married Poirier, Smith was

attending Harvard Business School. He completed his master’s

degree in business administration in 1983, and he had earlier

studied for two years at the Fletcher School of Law and

Diplomacy at Tufts University. Smith and Poirier separated in

1986 and divorced in 1988. Smith voluntarily began paying child

support upon the couple’s separation, and the Massachusetts

judgment of divorce ordered that Smith continue child support

payments in the amount of $72 per week.

From 1988 to 1993, Smith worked overseas on various

economic development projects. He continued to make child
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support payments during this time, although he and Poirier

disagree about whether he paid the correct amounts following

modifications of the support order. Poirier testified that she

successfully moved for modification in January 1990 to $257 per

week and again in January 1992 to $335 a week. Smith

acknowledged the 1990 increase, which he characterized as an

agreement with Poirier rather than a court order, but he denied

knowing that his obligation increased in January 1992. Poirier

testified that she moved for contempt when Smith did not provide

$335 a week, and that he was present at the contempt hearing in

July 1992. Smith, on the other hand, described a new agreement

with Poirier whereby he would continue paying $257 a week in

child support and set aside an additional $75 a week for Jade’s

college education.

In early 1993, Smith returned to the United States to

live in Washington, D.C. He remained there through May 1996.

His consulting work was sporadic at best, and he invested and

lost $20,000 in a dry cleaning business, so his income did not

provide him enough money to meet his expenses. Nevertheless, he

continued to fulfill his support obligations by relying on

savings he had accumulated while he was working abroad.

In the spring of 1995 Smith married Marisela de Torres,

a native of Venezuela, and together they moved to Venezuela in
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May 1996. They began a business selling English-language books,

first used and then new, operating from a house they rented and

lived in. They later planned to rent a smaller house to reduce

their expenses, but the house was not ready when their lease

expired and they moved into Smith’s mother-in-law’s apartment in

June 1997. They were unable to sell books from the apartment,

and their retail business plummeted. When Smith went to the

United States in July to vacation with Jade and bring her back

to Venezuela for a visit, his income had dropped precipitously.

When he returned with Jade to Venezuela in August, he learned

that a $12,000 certificate of deposit he had in a bank in

Bolivia was inaccessible because he could not get in touch with

the bank. By that point he had no other savings and virtually

no income, and he asked Poirier to agree to a reduced level of

support. She refused and instead filed a motion seeking to have

Smith held in contempt. That motion was heard and ruled on in

October 1997. Neither party was represented by counsel, and the

Massachusetts trial court ordered Smith to pay the arrears. He

paid the past due amounts two days after the hearing by

borrowing the money from his brother, and at the same time Smith

filed a motion to modify his support obligation. The trial

court agreed that Smith could pay $100 per week for thirteen

weeks, at which point he would resume his regular payments.
1At the conclusion of Smith’s direct testimony, his counsel

read into evidence the following stipulation:

Members of the jury, the parties, the United States

government and Mr. Smith, stipulate and agree that

during the month of May 2000, David Smith borrowed

$10,000 from his brother, Michael Smith, of Camden,

Maine, to pay to Joyce Poirier for child support. The

$10,000 has been deposited with the federal court,

this Court, and the Court is in the process of issuing

a check directly to Ms. Poirier. Ms. Poirier has

neither received the money and Ms. Poirier is unaware

that the $10,000 is coming.

2The statute requires the court to order restitution upon

conviction “in an amount equal to the total unpaid support

obligation as it exists at the time of sentencing.” 28 U.S.C.

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Smith complied with the order for the thirteen weeks,

but he paid only one month’s support following that time.

Poirier received no further support payments from Smith until

May 2000 when she received three checks, each in the amount of

$1,127. That same month, Smith borrowed an additional $10,000

from his brother Michael and deposited it with the federal

court. At the time of trial the court was in the process of

transferring that money to Poirier, who knew nothing about the

money until the court spoke of it.1 Because the underlying

statute required the jury only to find that Smith’s obligation

had exceeded $10,000, see 18 U.S.C. § 228(a)(3), the government

did not argue the exact amount at issue. At sentencing,

however, the government argued that Smith owed Poirier

$49,880.50 in past-due child support payments.2
§ 228(d).

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Smith incurred other expenses and encountered other

obstacles during the two years he wasn’t paying support.

Marisela gave birth to their first child, Andres, on December 1,

1997. The following February, they were able to rent a room at

a church which they hoped would allow them to immediately reopen their store, but the building needed more work than they

anticipated and the store did not open until April. Once

opened, they soon realized that the space was not large enough

to display and sell the books effectively, and in September they

employed a contractor to expand it by about 2,000 square feet.

The construction was not completed until October 1999, but they

operated out of the space anyway because they wanted to resume

sales. Business picked up considerably in late 1998, but in

January 1999 Marisela gave birth prematurely to their second

child, Althea. The Smiths had no medical insurance, and Althea

required intensive care in a private clinic at a cost of about

$2,000 per day. When they could no longer come up with the

money to pay for her care, they transferred her to a public

hospital by borrowing money from Marisela’s sister to pay the

remaining charges. They also borrowed from Marisela’s first

husband and from her mother for various expenses associated with

Althea’s care. Althea died on March 1, 1999.
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The financial result of this personal tragedy was that

the Smiths owed $90,000 to suppliers. It was not until they

paid their outstanding debts that the business began making more

money than they owed, and that is when Smith resumed his child

support payments in May 2000.

Smith was arrested when he entered the United States

on November 11, 1999. He was indicted and convicted by a jury

on one count of willfully failing to pay child support. The

district court sentenced him to six months incarceration, fined

him $2,000, and ordered Smith to pay restitution in the amount

of $49,880.50. 
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I.

Smith argues that the district court erred by refusing

to give part of his proffered instruction on willfulness. The

language he offered required the government to prove that Smith

“did not have a good faith belief in his inability to pay.” He

argues that if he subjectively and in good faith believed that

he did not have the ability to pay, his failure to do so could

not constitute voluntary and intentional disobedience or

disregard of the law. We conduct a de novo review “to determine

whether the instructions, taken as a whole, show a tendency to

confuse or mislead the jury with respect to the applicable

principles of law.” United States v. Fulmer, 108 F.3d 1486,

1494 (1st Cir. 1997).

The government argues that Smith failed to object

timely and sufficiently to the instruction as given and that he

therefore failed to preserve his objection. The record reveals

otherwise. At the conclusion of the instructions the court

called a sidebar to confer with the attorneys, explaining to the

jury: “[B]efore I can let you go, I may have misstated something

under the law, or I may have left something out, and the lawyers

get a chance to call that to my attention now.” During the

sidebar, Smith’s attorney opined that “the government must prove
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beyond a reasonable doubt that he lacks the good faith belief

that he had the ability to pay.” When the court commented in

response that it was satisfied with the willfulness instruction

as given, Smith’s attorney stated: “Note my objection.” The

court replied: “Noted.” We conclude that Smith sufficiently

preserved his objection. See Fed. R. Crim. P. 30 (“No party may

assign as error any portion of the charge or omission therefrom

unless that party objects thereto before the jury retires to

consider its verdict, stating distinctly the matter to which

that party objects and the grounds of the objection.”).

Smith submitted a willfulness instruction that included

the following language:

To prove wilfulness, the government must

show beyond a reasonable doubt that Smith

had sufficient funds to enable him to pay

support in view of all of his financial

circumstances. In doing so, the government

must prove that Smith had sufficient funds

after meeting his basic subsistence needs.

You may consider Smith’s second family in

evaluating his basic subsistence needs. The

government must also show beyond a

reasonable doubt that Smith did not have a

good faith belief in his inability to pay

due to lack of funds. Smith’s belief need

not be reasonable as long as he believed it

in good faith.

This portion of the proffered instruction included citations to

cases and legislative history to support the requested language.

The instruction as given by the district court was somewhat
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different. It began with the directive that “surely willfully

means he’s got to know he’s got the order against him. He’s got

to know that.” It continued:

But more than that, to act willfully means a

voluntary, intentional violation of a known

legal duty. In other words, Mr. Smith must

have acted voluntarily and intentionally and

with the specific intent to do something

that the law forbids; that is to say, with a

purpose either to disobey or disregard the

law.

Smith claims that this instruction was inadequate. He

maintains that his failure to make the required payments could

not have been "willful" if he genuinely believed that he did not

have the ability to pay. He argues: "The district court

instructed the jury that it could find willfulness based on a

determination that Smith had financial resources that he 'could

have' marshaled and used. . . . Erroneously, the instruction

told the jury it could convict Smith if the jury found he could

have paid even if the jury also found that Smith believed in

good faith he lacked the ability to pay." 

Smith relies on the legislative history of 28 U.S.C.

§ 288 to support his interpretation of the government's proper

burden of proof. Section 288 was enacted as part of the Child

Support Recovery Act of 1992, Pub. L. No. 102-521, 106 Stat.

3403. The Act’s legislative history provides guidance in
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interpreting the operative language of the mens rea required for

conviction:

[“Willfully fails to pay”] has been borrowed

from the tax statutes that make willful

failure to collect or pay taxes a Federal

crime, 26 U.S.C. §§ 7202, 7203. Thus, the

willful failure standard of H.R. 1241 should

be interpreted in the same manner that

Federal courts have interpreted these felony

tax provisions. In order to establish

willfulness under those provisions[,] the

Government must establish, beyond a

reasonable doubt, that at the time payment

was due the taxpayer possessed sufficient

funds to enable him to meet his obligation

or that the lack of sufficient funds on such

date was created by (or was the result of) a

voluntary and intentional act without

justification in view of all of the

financial circumstances of the taxpayer.

U.S. v. Poll, 521 F.2d 329, 333 (9th Cir.

1975).

H.R. Rep. No. 102-771, at 6 (1992). Smith also relies

on Cheek v. United States, 498 U.S. 192 (1991), a criminal tax

case in which the Supreme Court rejected the notion that the

taxpayer’s claimed good-faith belief as to his or her legal duty

to pay taxes and file returns must be objectively reasonable.

Id. at 203. In Cheek, the taxpayer argued that he had a

misunderstanding of the law which created a good-faith belief on

his part that he did not owe the taxes or need to file the

returns at issue, and thus he did not knowingly fail to do so.

The narrow issue was whether the district court had erred in

instructing the jury not to consider evidence of the taxpayer’s
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subjective beliefs in determining whether he had acted

willfully. Id. at 206-07. As the Court described the issue:

In the end, the issue is whether, based on

all the evidence, the Government has proved

that the defendant was aware of the duty at

issue, which cannot be true if the jury

credits a good-faith misunderstanding and

belief submission, whether or not the

claimed belief or misunderstanding is

objectively reasonable.

Id. at 202. Smith asserts that the effect of Cheek is to

mandate a jury instruction that he cannot be convicted unless

the jury finds beyond a reasonable doubt that he did not

subjectively and in good faith believe that he had insufficient

funds to pay child support. We conclude that this argument is

flawed.

The legislative history tells us that Congress borrowed

the “willfully fails to pay” standard from the tax statutes, and

that it should be interpreted “in the same manner that Federal

courts have interpreted these felony tax provisions.” H.R. Rep.

No. 102-771, at 6. The report then quotes the passage from

Poll, 521 F.2d at 333, which addresses willfulness as a

voluntary and intentional act in the context of a defendant’s

ability to pay. Poll is silent on the issue raised in Cheek,

that of a taxpayer’s knowledge of his or her duty to pay.

Were we to apply Cheek to this case, the issue would

be whether Smith had a subjective good-faith belief that he had
3During oral argument, Smith’s counsel was asked if he was

suggesting that he did not understand what the source of his

legal duty was. He replied: “No, not at all.”

4The jury was instructed as to this issue: “[S]urely

willfully means he’s got to know he’s got the order against him.

He’s got to know that. If they enter an order but he’s off in

some other country and never knows it, well, it’s not criminal

because he hasn’t willfully failed to obey the order.”

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no legal duty to pay Poirier. In other words, Smith would have

to argue that he believed, in good faith, that the child support

order was invalid or that it was somehow inapplicable to him.

Smith does not advance that argument,3 however, and therefore

Cheek is not applicable.4

The district court instructed the jury that “willfully

means a voluntary, intentional violation of a known legal duty.

In other words, Mr. Smith must have acted voluntarily and

intentionally and with the specific intent to do something that

the law forbids; that is to say, with a purpose either to

disobey or disregard the law.” The court went on to describe

the two ways in which the government could satisfy its burden,

which we discuss in Part II of this opinion. We conclude that

the instructions, taken as a whole, did not tend to confuse or

mislead the jury. The district court’s refusal to give Smith’s

proffered instruction was not in error.

II.
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Smith also argues that the district court committed

error by instructing the jury that it could consider other

people’s assets in determining whether he had willfully failed

to pay child support. Because Smith failed to object to this

aspect of the instruction during trial, our review, as Smith

concedes, will be for plain error. He must show that: 1) an

error occurred; 2) the error is clear or obvious under the

current law; and 3) the error substantially and adversely

affects his rights. United States v. Roberts, 119 F.3d 1006,

1014 (1st Cir. 1997). We evaluate the alleged error in light of

the record as a whole, keeping in mind that Smith’s hurdle is

high. Id. Even if the three foregoing requirements are met, a

remedy is appropriate only if the error “seriously affect[s] the

fairness, integrity or public reputation of the judicial

proceedings.” United States v. Young, 470 U.S. 1, 15 (1985).

After defining “willful” in the permissible manner

discussed in Part I, supra, the district court further

instructed the jury that it could find that Smith had willfully

failed to pay in “either of two ways.”

One way they can prove it is that he, he,

Mr. Smith, had access to resources beyond

the basic necessities of life, disposable

income, beyond the basic necessities of

life, which he could have marshaled and used

to pay the child support, and knowing he had

those resources and that they were available

to him, he willfully failed to do it.
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As to the second way, the district court told the jury:

[A] second way is that he willfully refused

or took himself out of the workforce or

reduced his ability. Since she’s got two

ways to prove it, but each way has to

satisfy you beyond a reasonable doubt, you

can of course analyze both ways. But since

a verdict must be unanimous, you’re all

going to have to agree upon which way. . . .

But you can’t return a guilty verdict if

some of you think one thing and some of you

think something else. You’ve got to

unanimously agree on your analysis.

Smith argues that Massachusetts law does not require

a non-custodial parent to borrow money to pay child support and

that the instruction allowed the jury to convict him for noncriminal conduct by finding that he had “access to resources”

from other people that he could have “marshaled” to pay support.

Recognizing the applicable standard of review, Smith argues that

his rights were substantially and adversely affected by the

instruction, especially in light of the government’s closing

argument. The prosecutor referred to: Smith’s mother-in-law

supporting him and letting him live with her rent-free; Smith’s

stepdaughter being cared for by other family members while he

failed to pay support; and Smith borrowing money from his

brother to pay $10,000 toward his support obligation. Smith

asserts that the government “drove home the argument that the

jury should convict Smith for failing to persuade his mother-inlaw or brother to pay his child support” with this excerpt from
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its rebuttal:

[A]pparently he had resources from his

family members to help him with his support.

He certainly knew where to borrow the money

when he had his obligation to his child

Althea. Because that’s what we do as

parents.

The government denies that this comment was intended to urge the

jury to convict Smith for failing to borrow money to pay his

support obligations. Rather, the government claims that it was

merely reacting to defense counsel’s protestations that Smith

had tried everything he could to meet his support obligations

but he was still forced to beg to keep his business going and

borrow to pay for his hospitalized daughter’s care.

We conclude that the instruction was not plain error.

While the court’s words could be construed to have the meaning

Smith advances, our review of the record as a whole reveals that

Smith’s rights were not substantially and adversely affected.

Smith’s defense in this case was that he did not have the money

to pay Poirier because his business was not profitable and he

had extraordinary medical expenses. Smith’s lawyer told the

jury in his opening statement that “David didn’t want to fail to

pay,” and Smith and his wife testified about the financial

support they got from her mother. Smith introduced the evidence

that he borrowed money from his brother to make past-due support
5It is important to note that “analogy to the tax statutes

. . . suggests that the government must demonstrate only that

the defendant was able to pay some portion of his past due child

support obligations in order to establish liability under the

[Child Support Recovery Act].” United States v. Mattice, 186

F.3d 219, 228 (2d Cir. 1999) (emphasis in original). Although

Smith was entitled to and did introduce evidence of insufficient

income as a defense, the jury found that the government had

established beyond a reasonable doubt that his failure to pay

was willful. See id. at 228-29.

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payments and from his sister and others to pay medical bills for

his premature baby. He testified that he did have income from

the book business during the years 1997 through 1999, and yet he

completely stopped paying support. In the context of the record

as a whole, the instruction directed the jury to determine that

Smith had the ability to pay before it could find that he

willfully failed to pay.5 The district court did not instruct

the jury that it could find willful failure to pay in the event

Smith did not borrow money. Cf. United States v. Harrison, 188

F.3d 985, 987 (8th Cir. 1999) (pointing out that willful failure

to pay is not dependent upon source of obligor’s income, but on

existence of income in any form). The instruction did not

constitute plain error.

For the foregoing reasons, we affirm the amended

judgment of the district court.

Affirmed.