United States Court of Appeals

For the First Circuit

No. 09-2482

UNITED STATES,

Appellee,

v.

PETER MITRANO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Howard, Selya, and Thompson, 

Circuit Judges.

Judith H. Mizner, Assistant Federal Public Defender, for

appellant.

Seth R. Aframe, Assistant United States Attorney, with whom

John P. Kacavas, United States Attorney, was on brief, for

appellee.

September 23, 2011
THOMPSON, Circuit Judge. Peter Mitrano appeals from his

conviction on charges of willful failure to pay child support,

raising claims concerning the sufficiency of the evidence, the jury

instructions, and the calculation of his sentence. Finding no

merit in his arguments, we affirm.

BACKGROUND

Mitrano married Virginia Kelly in the District of

Columbia in 1984. They had three children, born in 1985, 1986, and

1991. The family lived together in Virginia until Mitrano and

Kelly separated in 1991. They were divorced in Virginia in 1992. 

At the time of the divorce, a Virginia court entered a custody

order granting Mitrano primary custody of the children. The

children lived with him during the week and with Kelly on weekends. 

In 1993, Mitrano and the children moved to New Hampshire. Shortly

afterwards, Kelly followed. The family lived together in the same

house, although Mitrano and Kelly did not reconcile as husband and

wife.

In 2000, Kelly moved out of the house and filed an action

in New Hampshire seeking sole custody of the children. Around that

time, Mitrano moved back to Virginia. While the custody action was

pending in New Hampshire, Mitrano complied with a temporary order

requiring him to pay weekly child support. Kelly obtained

temporary custody of the children in early 2001. In 2002, the New

Hampshire court issued a final order awarding Kelly sole custody of

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the children and requiring Mitrano to pay $1,406 per week in child

support, plus $300 per week toward past medical expenses. Mitrano

has paid no child support since issuance of the final order.1

Mitrano attempted to appeal the child support order to

the New Hampshire Supreme Court, but the court declined to hear the

appeal. He sought and was denied review by the U.S. Supreme Court. 

Mitrano then filed suits and appeals in four states (New Hampshire,

Vermont, Virginia, and Maryland) and in two federal courts (the

District of New Hampshire and the Eastern District of Virginia). 

In each case he argued that the child support order was invalid

because the New Hampshire court lacked subject matter jurisdiction.

He lost every case and appeal.

On August 20, 2008, Mitrano was indicted for willfully

failing to pay child support in violation of 18 U.S.C. § 228(a)(3). 

He was tried before a jury in the District of New Hampshire. At

trial, Kelly testified that Mitrano worked as a patent lawyer and

was a licensed engineer, that he owned two properties in Virginia

(one of which generated rental income), and that he owned two

Porsche automobiles and another vehicle. She also testified that

before the child support order entered, Mitrano supported the

family in New Hampshire, took the children on multiple vacations,

and bought generous gifts (including a horse) for the children. 

In 2004, a New Hampshire court sent Kelly $14,000, which 1

had been posted to secure Mitrano’s release after he was arrested

on an unrelated matter.

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Another witness indicated that Mitrano rented a law office in

Boston from 1998 through 2008 and regularly paid his rent (which

ranged from approximately $500 to $826 per month during the tenyear period). A tenant who had lived in one of Mitrano’s Virginia

properties testified that he paid Mitrano $300 to $550 monthly rent

in cash from 2005 to 2008. He said that other tenants rented

additional rooms in the house during that time period.

The government also introduced filings from Mitrano’s

2008 bankruptcy proceeding in the Eastern District of Virginia.2

The bankruptcy filings valued one of Mitrano’s unencumbered

Virginia properties at $550,000 and a second Virginia property at

$900,000, encumbered only by a secured claim of $156,426.87. 

Records introduced through a representative of the New Hampshire

Department of Health and Human Services Office of Child Support

showed that Mitrano owed child support in excess of $400,000 for

the years 2005 through 2008.

At the close of the evidence, Mitrano moved for a

judgment of acquittal under Fed. R. Crim. P. 29. The district

court denied his motion. He was convicted, sentenced to serve 24

months in prison, and ordered to pay restitution in the full amount

of past due child support (including interest). He filed a timely

notice of appeal. Before this court, Mitrano challenges the

The bankruptcy petition was ultimately dismissed, in part 2

because it had been filed in bad faith.

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sufficiency of the evidence, the trial court’s decision to instruct

the jury on willful blindness, and the calculation of his sentence.

SUFFICIENCY OF THE EVIDENCE

We review the denial of a Rule 29 motion for judgment of

acquittal de novo. United States v. Perez-Melendez, 599 F.3d 31,

40 (1st Cir. 2010); see also United States v. Azubike, 564 F.3d 59,

64 (1st Cir. 2009) (“We review preserved challenges to sufficiency

of the evidence de novo.”).

A trial court must enter a judgment of acquittal when,

viewing the evidence in the light most favorable to the verdict, it

is insufficient to sustain a conviction. See Fed. R. Crim. P.

29(a). “If a reasonable jury could have found that the government

had proven each element of the crime beyond a reasonable doubt, we

will affirm the conviction.” Perez-Melendez, 599 F.3d at 40

(quoting United States v. Angulo-Hernandez, 565 F.3d 2, 7 (1st Cir.

2009)). “We have described this standard of review as

‘formidable,’ and defendants challenging convictions for

insufficiency of evidence face an uphill battle on appeal.” Id.

(quoting United States v. Lipscomb, 539 F.3d 32, 40 (1st Cir.

2008)) (internal quotation marks omitted).

Willfulness

Mitrano first contends there was insufficient evidence to

support his conviction for “willfully” failing to pay child

support. The willfulness standard used in 18 U.S.C. § 228 was

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borrowed from the statutes criminalizing willful failure to pay

taxes. United States v. Smith, 278 F.3d 33, 37 (1st Cir. 2002). 

Accordingly, courts should interpret willfulness in the context of

child support obligations in the same way that courts have

interpreted it in the context of felony tax provisions. Id. at 38. 

Willfulness is “a voluntary and intentional act in the context of

a defendant's ability to pay.” Id. (emphasis omitted). It is not

a crime to fail to comply with the statute based on a good faith

misunderstanding of its requirements. See Cheek v. United States,

498 U.S. 192, 200 (1991). Mere disagreement with the law, however,

is not a defense. Id. at 202 n.8.

Mitrano argues that he did not willfully fail to pay

child support because he had a good faith belief that the

underlying child support order was invalid. See United States v. 3

Kerley, 544 F.3d 172, 177 (2d Cir. 2008) (“A defendant found to

have acted willfully may negate willfulness by showing . . . that,

because of a misunderstanding of the law, he had a good faith

belief that he was not violating the legal duty.”) (citing Cheek,

498 U.S. at 202). “A good faith belief need not be objectively

reasonable to negate willfulness.” Id. Mitrano stresses the

Mitrano did not testify at trial. His belief came into 3

evidence through Kelly’s testimony. She testified that “[h]e

always said he didn’t have to pay, that this order is void as a

matter of law, and no one agreed with him, but he always said it’s

void as a matter of law. He didn’t say he couldn’t pay. He said

he doesn’t have to pay.”

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strength of his belief, which he says shows the absence of the

willfulness required under 18 U.S.C. § 228. He also argues that

continuing to maintain his position in the face of its rejection by

a multitude of courts is not inconsistent with holding a good faith

belief, citing United States v. Booker, 543 U.S. 220 (2005), as an

example of a case in which a position which previously had been

rejected by many courts ultimately prevailed.

But whether Mitrano actually held a good faith belief

that the child support order was invalid was a question for the

jury. He was trained and had worked as an attorney, and he admits

that he knew of the child support order. He even attached it as an

exhibit to some of his court pleadings. Further, he was aware that

numerous state and federal trial and appellate courts had rejected

his theory that the New Hampshire court lacked subject matter

jurisdiction to issue a valid child support order.

Given the number of courts that repudiated Mitrano’s

claims and appeals, we find that the jury reasonably could have

refused to accept that Mitrano actually held a good faith belief

that the child support order was void. See Cheek, 498 U.S. at 203-

04 (“Of course, the more unreasonable the asserted beliefs or

misunderstandings are, the more likely the jury will consider them

to be nothing more than simple disagreement with known legal

duties”); United States v. Cruz-Arroyo, 461 F.3d 69, 74 (1st Cir.

2006) (jury “acted well within its proper province” by rejecting a

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“somewhat fanciful claim” advanced by the defendant). The jury

also could have reasonably concluded that even if Mitrano had a

good faith belief that the order was void, it was only because he

intentionally avoided re-evaluating his position in light of all

the courts which rejected it – in other words, as we discuss later,

he willfully blinded himself to his legal duty to pay child

support.

The evidence, viewed in the light most favorable to the

jury verdict, was more than sufficient for a reasonable jury to

conclude beyond a reasonable doubt that Mitrano willfully failed to

pay his child support.

Ability to Pay

Mitrano claims the government failed to introduce

sufficient evidence of his ability to pay child support. He

asserts that because the government failed to introduce bank

account records or tax statements showing his income and because it

introduced no evidence with respect to his subsistence needs, it

failed to meet its burden of proof. He notes that the jury was

instructed to determine his ability to pay by considering factors

including his subsistence needs, but that it heard no evidence as

to the specific amounts required to pay for his housing, food, and

other basic expenses. And he points to his bankruptcy filing,

which he claims shows that he was deeply in debt and had been

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relying on financial assistance from others. He concludes that the

jury’s verdict was supported by nothing more than speculation.

We have held that as an element of the crime, the

government has to prove that

at the time payment was due the [defendant] 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 the

financial circumstances of the [defendant]. 

Smith, 278 F.3d at 37. Significantly, however, the government only

needs to prove that the defendant was able to pay some portion of

his child support obligation. Id. at 40 n.5.

Evidence at trial included testimony about Mitrano’s

income-earning potential and assets. He was a patent lawyer and a

licensed engineer. Before issuance of the custody order, he

apparently had no difficulty supporting his family in a comfortable

manner. The jury was entitled to infer that he retained the

ability to earn substantial amounts of money after issuance of the

order. After he moved back to Virginia in 2000, he had enough

income to continue paying rent on office space in Boston. He also

collected rental income from one of his Virginia properties. His

Virginia properties together had a unencumbered net value in excess

of $1 million. He owned two Porsche automobiles and another

vehicle.

But Mitrano contends that in determining his ability to

pay child support, we can consider only his income, not his assets. 

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In support of this proposition, he cites to New Hampshire’s child

support guidelines and cases interpreting them. See N.H. Rev.

Stat. Ann. § 458-C; In re Jerome, 150 N.H. 626, 632, 843 A.2d 325,

330 (2004); In re Plaisted, 149 N.H. 522, 526, 824 A.2d 148, 151

(2003). Our determination as to whether the government met its

burden of demonstrating Mitrano’s ability to pay is not constrained

by state law governing the calculation of the amount of child

support a parent must pay. In the context of a challenge to the

sufficiency of the evidence, our review is limited to whether,

viewing the evidence in the light most favorable to the verdict, it

supports the jury’s conclusion that Mitrano had the ability to pay

at least some portion of his child support obligation. See Smith,

278 F.3d at 40 n.5. We find that it does.

Thus, in light of our holdings on willfulness and

Mitrano’s ability to pay, the district court properly denied his

motion for a judgment of acquittal.

JURY INSTRUCTION

As we have already noted, Mitrano argued at trial that he

did not willfully fail to pay his child support. To reflect this

defense theory, Mitrano’s counsel requested a jury instruction to

the effect that if the defendant believed in good faith that he was

not subject to the underlying order, even if he was mistaken, he

committed no crime. The district court agreed to give the good

faith instruction but stated that “the only way I can give your

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good faith and lack of knowledge of law instruction is if I give

willful blindness with it.” So the question before us is whether

the willful blindness instruction was appropriate.

Mitrano contends that because he conceded at trial that

he knew about the child support order, the district court should

not have instructed the jury on willful blindness. He says that

such an instruction is appropriate only in cases in which a

defendant intentionally avoids learning of a legal requirement. 

The government responds that the evidence supported the instruction

because it showed that Mitrano “undertook a deliberate course of

ignoring the multiple court rulings holding that the child support

order against him was valid and enforceable.”

“This Court has utilized both de novo and deferential

standards of review” when reviewing claims that a court erred in

providing the jury with a willful blindness instruction. Azubike,

564 F.3d at 66 n.5. The level of scrutiny may depend on the nature

of the challenge. See id. We need not determine the issue in this

case, because applying either standard, the evidence supported the

district court’s decision to charge the jury on willful blindness. 

See id.; United States v. Lizardo, 445 F.3d 73, 85 (1st Cir. 2006).

“A willful blindness instruction is appropriate if (1) a

defendant claims a lack of knowledge, (2) the facts suggest a

conscious course of deliberate ignorance, and (3) the instruction,

taken as a whole, cannot be misunderstood as mandating an inference

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of knowledge.” Azubike, 564 F.3d at 66. “In determining whether

the facts suggest the type of deliberate avoidance warranting a

willful blindness instruction, ‘we must consider whether the record

evidence reveals flags of suspicion that, uninvestigated, suggest

willful blindness.’” Id. (internal quotation marks omitted).

Mitrano challenges the first and second requirements set

forth in Azubike. He contends that because he did not claim

ignorance of the child support order or of the decisions rejecting

his attacks on its validity, the first requirement set forth in

Azubike is lacking here. His argument misses the mark. Although

Mitrano admitted knowing that the child support order existed, he

claimed a lack of knowledge as to its validity – in other words, he

claimed not to know that it created a legal and binding obligation

for him to pay child support.

Mitrano’s argument with respect to the second Azubike

requirement fares no better. He asserts that because there was no

evidence showing that he had failed to consult current law, the

facts did not suggest that he engaged in a conscious course of

deliberate ignorance. Admittedly, he did not claim ignorance of

the child support order, or of the decisions rejecting his

position. But he did, and still does, claim ignorance of the fact

that the child support order imposes on him a legally binding

obligation to pay child support. Claiming not to know of the legal

obligation after it had been determined in twelve decisions issued

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by six different courts in four different states and two federal

districts, acting over a course of more than seven years, clearly

suggested that Mitrano engaged in a “conscious course of deliberate

ignorance.” See Azubike, 564 F.3d at 66. Accordingly, the

district court properly charged the jury on willful blindness.

SENTENCING

Mitrano contends that the district court erroneously

calculated his sentence. Specifically, he argues that there was no

evidentiary basis to conclude that he could have paid the entire

amount of outstanding child support, and that therefore it was

plain error for the court to conclude that he willfully failed to

pay the entire sum. He stresses that the jury was not asked to

make a specific finding as to the amount he could have paid, and

that his conviction could have been premised on his failure to meet

any past due obligation that had been outstanding for more than two

years. He faults the district court for relying on the total

amount owed (as calculated in the Presentence Investigation

Report). Ultimately, he complains that using the entire amount due

as the amount he willfully failed to pay yielded an improper

guideline sentencing range which influenced the judge to sentence

him to the statutory maximum.

Mitrano did not object to the guidelines calculation at

sentencing and therefore we review for plain error. United States

v. McCoy, 508 F.3d 74, 80 (1st Cir. 2007). To vacate his sentence

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under the plain error standard, Mitrano must show that “(1) an

error occurred; (2) the error was clear and obvious; (3) the error

affected the defendant’s substantial rights; and (4) the error

impaired the fairness, integrity, or public reputation of the

judicial proceedings.” United States v. Gonzalez-Castillo, 562

F.3d 80, 82 (1st Cir. 2009) (quoting United States v. MangualGarcia, 505 F.3d 1, 15 (1st Cir. 2007)). The third factor, whether

the error affected the defendant’s substantial rights, “translates,

in the sentencing context, into the requirement of ‘a reasonable

probability that, but for the error, the district court would have

imposed a different, more favorable sentence.’” Id. at 83 (quoting

United States v. Perazza-Mercado, 553 F.3d 65, 78 (1st Cir. 2009)). 

The government bears the burden of proving loss by a

preponderance of the evidence. United States v. Curran, 525 F.3d

74, 78 (1st Cir. 2008). In calculating the amount of loss, the

district court needs to make only a reasonable estimate of the

amount of loss. Id. A party “dissatisfied with the sentencing

court’s quantification of the amount of loss in a particular case

must go a long way” to have it set aside. Id. at 79 (internal

quotation marks omitted) (quoting United States v. Rostoff, 53 F.3d

398, 407 (1st Cir. 1995)).

The Sentencing Guidelines define the loss amount as “the

amount of child support that the defendant willfully failed to

pay.” U.S.S.G. § 2J1.1 cmt n.2. As we have just described, the

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evidence showed that Mitrano had sufficient income-earning

potential and assets to pay his child support obligation, but that

he made no payments. The district court could properly have relied

on that evidence to find that the government met its burden of

showing by a preponderance of the evidence that Mitrano willfully

failed to pay the entire amount of overdue child support. 

Accordingly, it did not err by using the entire amount due to

calculate Mitrano’s guideline sentencing range.4

As for the specific calculations, the child support order

required Mitrano to pay $1,406 per week, plus $300 per week toward

medical expenses. The indictment covered the period from February

1, 2005 through August 20, 2008. Mitrano made no payments. The

Presentence Investigation report calculated the amount of loss as

$430,234.32, and the district court used that amount to calculate

Mitrano’s sentence of 24 months. The amount is consistent with the

New Hampshire Department of Health and Human Services Office of

Child Support’s calculation of the amount of child support that

Mitrano failed to pay.

Mitrano’s reply brief contends that the district court 4

erred by including interest in the amount of loss used to calculate

his sentence. We need not reach the issue because it made no

difference in this case. Mitrano was sentenced to 24 months, the

statutory maximum sentence under 18 U.S.C. § 228(c)(2), based on

U.S.S.G. § 5G1.1. He has failed to show a reasonable probability

that he would have received a lower sentence if interest had been

excluded from the loss amount calculation. See Gonzalez-Castillo,

562 F.3d at 83.

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For the reasons set forth above, we find no plain error

in Mitrano’s sentencing.

CONCLUSION

We affirm the district court judgment.

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