Petition for certiorari filed at, 08/11/2014
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS. (D.C. No. 2:11-CR-20059-KHV-1).
Jabari Brooks Wamble, Assistant United States Attorney, Kansas City, Kansas, (Barry R. Grissom) United States Attorney, Kansas City, Kansas, with him on the brief) for Plaintiff-Appellee.
Tim Burdick, Federal Public Defender, Kansas City, Kansas for Defendant-Appellant.
Before TYMKOVICH, BALDOCK, and PHILLIPS, Circuit Judges.
PHILLIPS, Circuit Judge.
A Kansas jury convicted David Fuller of willfully failing to pay more than $50,000 of
past-due child support. Both after the government's case-in-chief and at the close of all evidence, Fuller moved for acquittal. The district court reserved ruling on the motions and then, several weeks after the verdict, issued a single order denying both. On appeal, Fuller challenges the district court's denial of his first motion. He raises two arguments: (1) that the court erred by relying on an unconstitutional statutory presumption of his " ability to pay" child support, and (2) that without the presumption the government's evidence was insufficient to prove that he " willfully" failed to pay. We find that the district court did not rely on the presumption and that the government presented sufficient evidence that Fuller had willfully failed to pay his child-support obligation. Accordingly, we affirm.
In 1976, David Fuller met Delores Jones while they were both working at King Radio, an aviation parts supplier in Ottawa, Kansas. After marrying and divorcing, the two were again married in 1983. Fuller and Ms. Jones had three children--in 1985, 1988, and 1991. The couple argued during the marriage about Fuller's meager earnings as a musician amid the pressing financial realities of raising three children. While Ms. Jones believed that Fuller was a talented musician, she testified that she always thought that once they had children Fuller would help her raise them financially and otherwise. She felt that Fuller had chosen his music over his family because on countless occasions Fuller would not come home after music gigs until the next morning. As a result, she often ran late in getting the children to day care and herself to work.
Tired of Fuller's act, Ms. Jones obtained a divorce in 1994. At the divorce hearing, which Fuller did not attend, Ms. Jones said she didn't believe that Fuller had the means to pay child support due to his lifestyle as a musician. She felt that he maybe could do so if he would work a regular job, but she knew " that wasn't going to happen." R. vol. 2, at 70. By the time of the divorce, she felt that she " couldn't ... support him financially anymore." Id. at 49. The divorce court ordered that Fuller pay a total monthly child support obligation of $347.
Over the years after the divorce, Fuller played music and Ms. Jones provided for the children. In August 1996, Ms. Jones sought help in collecting child support from Kansas Social and Rehabilitation Services, but she gave up when told that she needed to hire an attorney. Although Fuller claimed to have paid scattered sums to Ms. Jones in the early years, he failed to pay any child support as ordered by the state court. By the time of his federal trial, he owed $54,478.36 in unpaid child support.
During its case-in-chief, the government called as witnesses Ms. Jones, business owners who paid Fuller to perform music, and child support personnel who detailed their years-long efforts to ...