PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. No. 96-4628

JAMES DENNIS MURPHY, JR.,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

Samuel G. Wilson, Chief District Judge.

(CR-95-96-R)

Argued: May 5, 1997

Decided: June 26, 1997

Before WILKINSON, Chief Judge, and RUSSELL and

WILLIAMS, Circuit Judges.

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Reversed and remanded by published opinion. Chief Judge Wilkinson

wrote the majority opinion, in which Judge Russell and Judge Williams joined. Judge Williams wrote a concurring opinion.

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COUNSEL

ARGUED: Daniel Steven Goodman, Criminal Division, Appellate

Section, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. William H. Cleaveland, RIDER, THOMAS,

CLEAVELAND, FERRIS & EAKIN, Roanoke, Virginia, for Appellee. ON BRIEF: Robert P. Crouch, Jr., United States Attorney, Julie
C. Dudley, Assistant United States Attorney, Criminal Division,

Appellate Section, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Appellant.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

James Dennis Murphy was convicted before a magistrate judge in

the Western District of Virginia for willful failure to pay child support

in violation of the Child Support Recovery Act of 1992 ("CSRA"),

see 18 U.S.C. § 228. Murphy appealed his conviction to the district

court, contending that he had been tried in an improper venue. The

district court agreed, and ordered that the case against Murphy be dismissed. Murphy v. United States, 934 F. Supp. 736 (W.D. Va. 1996).

The United States appeals, arguing that both the language of 18

U.S.C. § 228 and the policies underlying the CSRA support the conclusion that the Western District of Virginia, the residence of Murphy's daughter, was a proper venue for Murphy's prosecution. We

agree, and accordingly reverse the judgment of the district court.

I.

Linda Troutt Murphy ("Linda Murphy") and James Dennis Murphy

("Murphy") divorced on April 15, 1985, in Oklahoma City, Oklahoma. Linda Murphy retained custody of the couple's four-year-old

daughter Erin. Pursuant to the Oklahoma divorce decree, Murphy was

obligated to pay $100 per month in child support. Shortly after the

divorce, both parents moved from Oklahoma -- Murphy to Texas,

and Linda Murphy to Roanoke, Virginia where she and Erin still

reside.

Murphy failed to pay support as required by the divorce decree.

Consequently, in 1988, Linda Murphy contacted the Roanoke office

of the Virginia Department of Social Services, Division of Child Support Enforcement ("Virginia DCSE"), seeking assistance in recovering the support payments and increasing their amount. After

confirming Dennis Murphy's address in Burleson, Texas, the Virginia

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DCSE requested that Texas take action under the Uniform Reciprocal

Enforcement Support Act ("URESA"). In response, the Texas Attorney General filed a URESA action against Murphy on behalf of Virginia and Linda Murphy. The case was captioned,"The Attorney

General of Texas ex rel. State of Virginia and Linda Troutt Murphy,

Petitioner, vs. James Dennis Murphy, Jr., Respondent."

In July 1990, the Texas court found that Murphy owed"the State

of Virginia and/or petitioner" past due child support. The court

ordered Murphy to make semimonthly payments of $112.00 to the

Johnson County Child Support Office in Cleburne, Texas. The order

clearly stated that the payments were for "disbursement to the Central

Registry for Child Support of the initiating State," i.e., Virginia.

Pursuant to the order of the Texas court, Murphy's employer, the

Smith County Sheriff's Department, withheld Murphy's child support

payments from his paychecks. However, in 1991, Murphy left his job

in Texas and ceased to make child support payments after July of that

year. Sometime later, Murphy called his former wife from Florida,

informing her that he had moved there and was working as a dog

trainer.

The Virginia DCSE was able to determine that Murphy was in fact

working in Jacksonville, Florida, and it attempted to initiate another

URESA action there on March 3, 1992. Murphy, however, left his

Jacksonville address before the Florida court was able to act on the

petition. Thereafter, the Virginia DCSE made numerous attempts to

track down Murphy and collect child support payments, but was

unsuccessful due to Murphy's pattern of frequent relocation.

By January 1, 1993, Murphy owed nearly $6,000 in back child support, and on August 1, 1994, the Virginia DCSE placed him on Virginia's "Ten Most Wanted" list of parents who had failed to pay child

support. At this time, Murphy was living in New York. There, a journalist contacted Murphy, seeking to question him about his placement

on the "Ten Most Wanted" list. After this incident, Murphy contacted

the Virginia DCSE, which informed him that his case had been

referred to the United States Attorney for criminal prosecution. However, the Virginia DCSE indicated that it would advise the U.S. Attor-

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ney's office not to take further action if Murphy promptly began to

make payments.

Despite this warning, Murphy continued to avoid his child support

obligations. As a result, on December 28, 1994, the U.S. Attorney

filed a criminal complaint and arrest warrant for Murphy in the

United States District Court for the Western District of Virginia.

Meanwhile, Murphy had moved back to Florida, where he was

arrested in January 1995.

On May 22, 1995, Murphy was tried for violations of the CSRA

in the United States District Court for the Western District of Virginia. Prior to the bench trial before the magistrate, Murphy's counsel

objected that the case was being tried in an improper venue. The magistrate judge rejected this objection and found Murphy guilty of willfully refusing to make child support payments. See 18 U.S.C. § 228.

Murphy was sentenced to five years probation, subject to the condition that he make all required child support payments.

Murphy appealed the magistrate's decision to the district court. The

district court agreed with Murphy that venue was improper in the

Western District of Virginia, "[b]ecause Murphy was directed to pay

the child support in Texas and was never ordered to make payments

in Virginia." Murphy, 934 F. Supp. at 738. The district court

remanded the case to the magistrate with instructions to dismiss for

improper venue. Id. at 740. The United States appeals.

II.

The United States Constitution guarantees an accused the right to

be tried where a crime was committed. U.S. Const. art. III, § 2, cl. 3.

The Sixth Amendment further directs that criminal defendants have

a right to be tried in "the State and district wherein the crime shall

have been committed." U.S. Const. amend. VI. These constitutional

commands are reflected in Fed. R. Crim. P. 18, which provides that

"[e]xcept as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in which the offense was committed."

However, as Murphy concedes, and as our precedent clearly holds,

"[t]he Constitution does not limit venue to a single district." United

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States v. Newsom, 9 F.3d 337, 338 (4th Cir. 1993) (citing United

States v. Lombardo, 241 U.S. 73, 77 (1916)). Rather, it "requires only

that venue be determined from the nature of the crime and the location of the acts constituting it." United States v. Cofield, 11 F.3d 413,

419 (4th Cir. 1993). Where, as in this instance, Congress has not provided an express venue provision in conjunction with a criminal statute, this circuit has looked to the verbs defining the criminal offense

and the purpose underlying the criminal statute to determine proper

venue. Cofield, 11 F.3d at 417; Newsom , 9 F.3d at 339.

A.

Murphy's contention throughout has been that a prosecution

brought in the Western District of Virginia would violate both Rule

18 and the constitutional guarantees it was designed to implement.

Murphy was accused of violating the CSRA, which makes "willfully

fail[ing] to pay a past due support obligation with respect to a child

who resides in another State" a federal crime. 18 U.S.C. § 228(a). He

argues that since the offense in this case is "failure to pay," it can

occur only in the state where the payment originated or in the state

to whose court order he was subject. Thus, he concludes that venue

would be limited to Florida -- the state from which he failed to pay

child support, and Texas -- the state to which he was required to

make support payments pursuant to court order.

Murphy's contention, however, ignores the statute's use of the verb

"resides," which clarifies that the failure to pay is with respect to a

"child who resides in another state." It also ignores the fact that both

of the statute's verbs clearly indicate that the duty to pay runs to the

defendant's child. Murphy "failed to pay" the child support with

respect to his child, and the person who "resides" in another state is

also his child. Thus, the language of the statute strongly supports the

conclusion that the child's residence is a proper venue for prosecution

under 18 U.S.C. § 228. At best, Murphy's argument supports the conclusion that the situs of his crime was not limited to a single venue.

However, this circuit has already recognized that a failure to pay or

a failure to file can often occur in more than one location. See United

States v. Garman, 748 F.2d 218, 221 (4th Cir. 1984) (willful failure

to file tax return was "a crime committed in more than one district").

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Murphy's reliance on other "failure to act" cases in support of his

position is misplaced. Those cases are not on point because they

involve situations in which there are only two possible venues, one

in which the defendant is located, and the other in which the defendant was to complete the performance of a legal obligation. For example, in Johnston v. United States, 351 U.S. 215 (1956), the Supreme

Court addressed the issue of venue where defendant conscientious

objectors failed to obey orders to report for civilian work in various

districts. The Court held that "the venue of these violations . . . lies

in the district where the civilian work was to be performed." Id. at

220.

Venue considerations are quite different where, as here, the action

at issue is payment to an intermediary whose function is to forward

the payment to a third party. The facts in United States v. Blecker, 657

F.2d 629 (4th Cir. 1981), for example, are much closer to the situation

at hand than those in Johnston. In Blecker, the defendant was convicted of mail fraud and presenting false claims to the United States.

The defendant had prepared the claims in one district, submitted them

to a private intermediary in another district, whereupon the intermediary paid the claims and submitted them for reimbursement to a government agency in a third district. We held that venue was appropriate

in all three districts: where the false claims were prepared; where the

intermediary had transmitted the claims for reimbursement; and

where the claims were actually received by the government. Id. at

632-33. Likewise, in Garman, we held that in a prosecution for a willful failure to file an income tax return, venue was proper either in the

District of Maryland, where the defendant could have filed, or in the

Eastern District of Pennsylvania, where the return eventually would

have been processed if it had been filed in Maryland. 748 F.2d at 220-

21.

Factually, this case is analogous to the situations we confronted in

Blecker and Garman. Texas merely served as an intermediate collection point for payment of child support which would be forwarded to

Virginia. As the statute clearly indicates, Murphy's"failure to pay"

was "with respect to a child who resides in" Virginia. 18 U.S.C.

§ 228. The Texas court order reflects the operative statutory verbs,

noting that "the State of Virginia and/or Petitioner is entitled to a

judgment for the amount of unpaid court-ordered child support," and

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that Murphy's payments were for "disbursement to the Central Registry for Child Support of" Virginia. The fact that Texas served as a collection point for Murphy's child support payments simply does not

support the conclusion that venue is improper in the district for which

those payments were ultimately destined -- the Western District of

Virginia.

B.

Murphy's argument also overlooks the fact that this circuit has consistently held that proper venue must promote the aims of a criminal

statute, not eviscerate them. Cofield, 11 F.3d at 417 (proper venue

should promote legislative purpose); Newsom, 9 F.3d at 339 (same).

Meeting parental responsibilities is what the CSRA is all about. Congress enacted this statute to address "the problem of interstate

enforcement of child support by taking the incentive out of moving

interstate to avoid payment." H.R. Rep. No. 771, 102d Cong., 2d

Sess. 6 (1992). Limiting venue to the state where the order commanding payment was entered or to the state where the delinquent parent

resides would do nothing but frustrate Congress' intention in passing

this Act.

We need look no farther than this case for an example. While we

do not reject Texas as a permissible venue here, it would be especially

troublesome to limit venue to that state as suggested by the district

court. Murphy, 934 F. Supp. at 740. Neither Murphy himself, his former wife, his daughter, nor the social workers involved in the case

lived in Texas at the time of the criminal prosecution. The enforcement of the CSRA would be much more burdensome if all these witnesses were forced to travel to Texas as Murphy suggests. The main

witnesses, Linda Murphy and the social workers who assisted her, are

all Virginia residents. Bringing noncompliant parents to account is

facilitated if venue lies where nonpayment has its main effect -- in

Virginia, the residence of the child. See United States v. Billups, 692

F.2d 320, 332 (4th Cir. 1982) ("The protected interest is in Virginia

. . . and other basic venue considerations must flow from that reality."). If we were to adopt Murphy's position, we would only encourage delinquent parents to follow Murphy's itinerant pattern to avoid

obligations to their children and the legal consequences of their acts.

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Murphy, however, contends that these considerations are irrelevant.

He argues that finding venue in the district where the child resides

would permit the guardian of the child to move the child from venue

to venue, thus creating a "moving target" which would allow for a

criminal prosecution anywhere in the country. He concludes that such

a rule would vitiate the Constitution's safeguard against the unfairness and hardship of facing criminal charges in distant and unexpected locations.

Murphy's concern is not well-founded. Murphy was not dealing

with a phantom family. He was fully aware that his daughter resided

in Virginia, and in fact contacted his ex-wife and daughter there

repeatedly. He was further aware of an enforceable court order directing that child support payments be forwarded from Texas to Erin's

residence in Virginia. Indeed, Murphy's objection is particularly

problematic considering that it was Murphy himself who created a

"moving target" by fleeing from location to location to avoid his obligations to his daughter, whose residence has remained fixed throughout in the Western District of Virginia.

III.

For the foregoing reasons, the judgment of the district court is

reversed, and the case is remanded for reinstatement of Murphy's

conviction.

REVERSED AND REMANDED

WILLIAMS, Circuit Judge, concurring:

I agree with the majority's conclusion that venue is proper in the

Western District of Virginia. However, because this case raises an

important issue of first impression in the federal courts,* I write separately to express my view on two points. First, under the CSRA venue

does not lie wherever the child resides. Rather, venue is proper here

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*The United States Court of Appeals for the Eighth Circuit is currently

considering this issue. See United States v. Crawford, No. 96-2808 (8th

Cir.) (argued Nov. 18, 1996) (determining whether venue is proper in the

district where the child resided).

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because the Western District of Virginia is the place where the child

support payments are designated for disbursement. Second, despite

suggestions to the contrary in our precedent, legislative purpose

should not be allowed to circumvent the constitutional requirement

that venue lies where the crime is committed.

I.

I do not read the majority opinion as stating that venue is proper

under the CSRA wherever the child resides. Here, Murphy was

charged with "willfully fail[ing] to pay a past due support obligation

with respect to a child in another state." 18 U.S.C.A. § 228(a). Willfully failing to pay is not an act, rather it is a failure to act. It is well

established that "where the crime charged is a failure to do a legally

required act, the place fixed for its performance fixes the situs of the

crime." Johnston v. United States, 351 U.S. 215, 220 (1956).

The 1990 Texas court order requiring Murphy to pay child support

clearly stated that Murphy owed the past due child support to "the

State of Virginia and/or petitioner." Because the payments were for

"disbursement to the Central Registry for Child Support of the initiating State," Virginia was the ultimate place fixed for Murphy's performance. For this reason, the Western District of Virginia was a proper

venue for Murphy's prosecution.

II.

As the majority opinion correctly notes, the United States Constitution guarantees an accused the right to be tried where the crime is

committed. See U.S. Const. art. III, § 2, cl. 3 (requiring that the "the

trial of all Crimes . . . shall be held in the State where the said crimes

shall have been committed"); U.S. Const. amend. VI (requiring that

the trial of all crimes shall be held in the "State and district wherein

the crime shall have been committed"). The Constitution, however,

does not provide any help in determining where a crime is committed.

That determination must be made "from the nature of the crime

alleged and the location of the act or acts constituting it." United

States v. Anderson, 328 U.S. 699, 703 (1946); see also Travis v.

United States, 364 U.S. 631, 635-37 (1961).

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In United States v. Cofield, 11 F.3d 413 (4th Cir. 1993), we stated

that "the nature of the crime alleged" could be determined by

"look[ing] at the purpose of the statute as evidenced by its legislative

history." Id. at 416. Our analysis in Cofield was based, I believe, on

a misreading of the Supreme Court's directive in Anderson. Although

we must consider "the nature of the crime alleged" in determining

venue, I believe that this phrase requires an exhaustive inquiry into

the precise conduct proscribed by Congress rather than a dubious

inquiry into the purpose of the statute as evidenced by its legislative

history. Otherwise, legislative purpose could be used to circumvent

the constitutional requirement that venue lie where the crime is committed. For example, venue could be improperly fixed for the convenience of the prosecution or the accused. See Johnston, 351 U.S. at

220-21 (noting that because the Constitution fixes venue in the place

where the crime was committed, any "variation from that rule for

[the] convenience of the prosecution or the accused is not justified").

Proper venue analysis should consider congressional purpose only to

the extent it was actually given effect in the statutory text.

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