Appeal from the United States District Courtfor the District of AlaskaJohn W. Sedwick, District Judge, PresidingArgued and SubmittedSeptember 18, 1998--Portland, OregonFiled March 11, 1999Before: Ruggero J. Aldisert,* J. Clifford Wallace andAlex Kozinski, Circuit Judges.Opinion by Judge Kozinski
______________________COUNSEL Carlton F. Gunn, Assistant Federal Public Defender, Anchor-age, Alaska, for the defendant-appellant.Stephan A. Collins, Assistant United States Attorney, Anchor-age, Alaska, for the plaintiff-appellee.
_____________________________OPINION KOZINSKI, Circuit Judge.The district court found defendant guilty of willfully failingto pay child support, in violation of the Child Support Recov-ery Act (CSRA), 18 U.S.C. S 228 (1994) (amended 1998).The court based its finding of willfulness on defendant's fail-ure to seek available employment, which would have earnedhim enough money to meet his child support obligations.Among the questions we consider is whether, so construed,the CSRA violates the constitutional prohibition against slav-ery.IBallek and his wife were married in Alaska in 1976 andsubsequently had four children. For over a decade Ballek sup-ported his family through his work as a general building con-tractor. After an acrimonious divorce in 1988, the state courtawarded custody of the children to the mother and orderedBallek to pay $500 a month plus half of their medicalexpenses as child support. The court further provided that thepayment would be reduced to $395 if Ballek's wife and chil-dren moved out of state.During the following nine years, Ballek made only one vol-untary child support payment. After a bench trial, the districtjudge sentenced Ballek to six months imprisonment, andordered him to pay $56,916.71 in past due child support asrestitution.IIThe CSRA is violated by willful failure to pay a knownchild support obligation. The district court found that, at rele-vant times, Ballek did not have the means to pay child sup-port. The court nevertheless found that Ballek acted willfullybecause he failed to maintain gainful employment that wouldhave enabled him to meet his child support obligations. Ballekchallenges this finding as unsupported by the evidence, ascontrary to the statute and as violating the ThirteenthAmendment.2 Because sufficiency of the evidence turns onour construction of the statue, we consider it last.[1] "Whoever willfully fails to pay a past due support obli-gation with respect to a child who resides in another State"violates the CSRA. 18 U.S.C. S 228(a) (1994) (amended1998). The term "willfully" in this phrase can be read one oftwo ways: having the money and refusing to use it for childsupport; or, not having the money because one has failed toavail oneself of the available means of obtaining it. In deter-mining whether the statute is limited to the former meaningof "willfully" or extends to the latter, we note that the obliga-tion in question is not an ordinary debt; it is an award imposedby a state court to ensure the sustenance and well-being of theobligor's children. In making such an award, the state courtstake into account a variety of factors, including the non-custodial parent's other obligations and his ability to pay childsupport; if circumstances change, the obligor can return tocourt and seek to have the amount reduced. See Alaska Stat.S 25.24.170 (Michie 1998); Curley v. Curley, 588 P.2d 289,291 n.2 (Alaska 1979).[2] Given this means-testing, which is an integral aspect ofevery child support award, a non-custodial parent shouldnever be confronted with a situation where he is ordered tomake child support payments he cannot afford. A non-custodial parent who does not have the funds to satisfy thechild support award, and who does not obtain a reduction orremission of the award because of inability to pay, will almostcertainly be engaged in willful defiance of the state court'schild support order. Given that the CSRA was passed to assistthe state courts in enforcing child support decrees, we areconfident that Congress did not mean to let absentee parentsevade their parental obligations by refusing to accept gainfulemployment or take other lawful steps to obtain the necessaryfunds.[3] The CSRA's clear-cut legislative history supports thisconstruction. The House Report accompanying H.R. 1241,which eventually became the CSRA, addressed the meaningof "willfully fails to pay." See H.R. Rep. No. 102-771, at 6(1992). The Report notes that "[t]his language has been bor-rowed from the tax statues that make willful failure to collector pay taxes a Federal crime." Id. The Report then instructsthat "the willful failure standard of [the CSRA] should beinterpreted in the same manner that Federal courts have inter-preted [the] felony tax provisions." Id. The Report quoteswith approval from our opinion in United States v. Poll, 521F.2d 329 (9th Cir. 1975), where we held that, for purposes ofproving willful failure to pay, 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 volun- tary and intentional act without justification in view of all the financial circumstances of the taxpayer .Id. at 333 (emphasis added). By quoting Poll, the drafters ofthe House Report clearly embraced a meaning of the term"willfully" that goes beyond merely failing to pay when onehas the funds available, and extends to the situation where thedefendant has acted willfully in not having funds available.Our interpretation follows that of the Eleventh Circuit, theonly other court of appeals to have addressed this question.See United States v. Williams, 121 F.3d 615, 620-21 (11thCir. 1997).[4] Ballek argues that the statute, so construed, runs afoulof the prohibition against slavery or its close cousin, the pro-hibition against imprisonment for debt. Imprisoning someonefor failure to pay a debt can run afoul of the ThirteenthAmendment. See, e.g., Pollock v. Williams,
322 U.S. 4
(1944). However, not all forced employment is constitution-ally prohibited. Where the obligation is one that has tradition-ally been enforced by means of imprisonment, theconstitutional prohibition does not apply. See, e.g., Robertsonv. Baldwin,
165 U.S. 275
, 287-88 (1897) (imprisonment forsailors who desert their ships); Arver v. United States, 245U.S. 366, 390 (1918) (imprisonment for refusal to performmilitary service); Butler v. Perry,
240 U.S. 328
, 332-33(1916) (imprisonment for failure to do roadwork).[5] We conclude that child-support awards fall within thatnarrow class of obligations that may be enforced by means ofimprisonment without violating the constitutional prohibitionagainst slavery.3 We start with the self-evident observationthat the relationship between parent and child is much morethan the ordinary relationship between debtor and creditor.The parent is responsible for bringing the child into the worldand in so doing assumes a moral obligation to provide thechild with the necessities of life, and to ensure the child's wel-fare until it is emancipated and able to provide for itself.When parents neglect their children, this raises more than aprivate legal dispute. It is a matter of vital importance to thecommunity, and every state now enforces, by means of crimi-nal sanctions, the parent's obligation to support childrenwithin his custody. See Alaska Stat. S 11.51.120 (Michie1998); see also Frances W.H. Kuchler, Law of Support 34 (3ded. 1980).[6] The state's strong concern for the welfare of minor chil-dren is also manifested by the fact that parental obligations atthe dissolution of a marriage are not left to private agreement.Rather, they are supervised by family courts which arecharged with the responsibility of securing the children's wel-fare despite the estrangement of the parents. Experienceteaches that the natural bonds, which normally ensure thatchildren are cared for, are sometimes weakened when theaffinity between the parents comes to an end. The supervision--and coercive power--of the court is often invoked toprompt the non-custodial parent to continue providing sup-port. The non-custodial parent's obligation to pay child sup-port is thus derivative of the obligation to provide support ina custodial setting, and such awards are routinely enforced byimprisonment. See, e.g., Taylor v. Alaska, 710 P.2d 1019(Alaska Ct. App. 1985) (affirming conviction of non-custodialparent who without lawful excuse failed to provide supportfor child). The state also has an interest in protecting the pub-lic fisc by ensuring that the children not become wards of thestate. Cf. Butler,
240 U.S. at 333
("[The Thirteenth Amend-ment] certainly was not intended to interdict enforcement of. . . duties which individuals owe to the State . . . .") At leastone state Supreme Court has rejected the argument thatimprisonment for failure to work in order to earn enoughmoney to make child support payments violates state and fed-eral prohibitions against slavery. See Moss v. Superior Court,950 P.2d 59, 66 (Cal. 1998).Were we to hold, as defendant urges us to, that enforcingchild support obligations by threat of imprisonment violatesthe Thirteenth Amendment, we would undermine the well-established practices in the state courts for policing compli-ance with child support obligations. We would, effectively,put children on the same footing as unsecured creditors. Wedecline to interpret the Thirteenth Amendment in a way thatwould so drastically interfere with one of the most importantand sensitive exercises of the police power--ensuring thatpersons too young to take care of themselves can count onboth their parents for material support.[7] We therefore turn to Ballek's argument that the recorddoes not support the district court's finding that he acted will-fully in failing to pay child support. It clearly does. As the dis-trict court found, Ballek earned good money as a contractorbefore his divorce; on that income he was able to support afamily of six. After his divorce, Ballek abandoned construc-tion, which he admitted is "what I know makes me money,"and wandered from one low-paying job to another. He onlyreturned to the construction trade after he remarried andmoved in with his new wife and her three children. There isample evidence to support the district court's finding that Bal-lek was capable of working as a contractor, and that there wascontracting work available, which would have paid himenough to meet his child support obligation.[8] The district court did not find that Ballek failed to seekemployment as a contractor so that he would be unable tomeet his support obligation, but this does not render the find-ing of willfulness insufficient. The government need notprove that defendant's failure to accept gainful employmentwas caused by a desire to withhold payments from the spouseand children, or any similar evil motive. Cf. United States v.Pomponio,
429 U.S. 10, 12
(1976) (per curiam) (requisitemotive for willful tax violation is intentional violation ofknown legal duty). It is just as much a violation of the CSRAfor a non-custodial parent to fail to pay child support wherehis refusal to work is motivated by sloth, a change of life-styles or pursuit of new career objectives. For most people,bringing children into the world does limit life choices byimposing certain long-term financial obligations. A parentwith minor children at home cannot quit work and become ahobo or go back to school as the fancy moves him. Nor maya non-custodial parent stop making child support paymentsbecause he has decided to pursue a post-doctoral degree inmacrobiotics. A parent who is subject to an order for childsupport must seek a modification of the order before makingsuch a lifestyle change. The family court judge can then deter-mine whether such a change is consistent with the parent'sprior obligation to support the children. Where a parent doesnot seek such a modification, but chooses (for whatever rea-son) to eschew work that is otherwise available, he is subjectto imprisonment for failure to pay, both under state law andunder the CSRA.IIIFinally, Ballek contends that he was entitled to a jury trialbecause, in addition to imprisonment, he was ordered to payrestitution in the amount of $56,916.71. He argues that theimposition of restitution exceeding $50,000 should convert anotherwise petty offense into a serious one.4[9] The Supreme Court has told us repeatedly, and in nouncertain terms, that by far the most significant factor indetermining whether something is a petty offense is the maxi-mum term of imprisonment. See, e,g., United States v.Nachtigal,
507 U.S. 1, 3
(1993) (per curiam); Blanton v. Cityof North Las Vegas,
489 U.S. 538, 541
-42 (1989). Where themaximum term of imprisonment is six months or less, thereis a very strong presumption that the offense is petty anddefendant is not entitled to a jury trial. See Blanton, 489 U.S.at 543. Other types of punishment in lieu of, or in addition to,incarceration may have some bearing on the question, butthese punishments are normally considered far less signifi-cant. See id. at 542-43.[10] Nevertheless, there clearly comes a point where poten-tial punishment other than incarceration may be so severe thatthe offense will no longer be considered petty. See, e.g.,Twentieth Century Fox Film Corp., 882 F.2d at 663. This isespecially true if the punishment may be imposed in additionto a term of imprisonment. At the same time, the possibilityof some non-custodial punishment, even in addition to a six-month term of imprisonment, will not change the character ofthe punishment sufficiently to render the offense serious. Thequestion is how intrusive or severe the additional punishmentmay be. See Blanton,
489 U.S. at 543
. Where the additionalpunishment could involve the imposition of a very large fine,or a very long period of probation, or the forfeiture of sub-stantial property, the severity of the total punishment may besufficiently great so as to turn what would otherwise be apetty offense into a serious one.[11] The matter is different, however, where the additionalpunishment consists of restitution. Restitution does notimpose an additional obligation on the defendant; rather, itrecognizes the debt he already owes the victim. This is espe-cially true where, as here, the debt is already liquidated byway of a state-court judgment or decree. The imposition of arestitution order as part of a federal criminal sentence doescause some additional hardship to the defendant, and gives thevictim some additional enforcement mechanisms.5 But theadditional burden on the defendant is relatively minor, as itmerely reinforces his existing moral and legal duty to pay ajust debt. We therefore hold that the possibility that the dis-trict court will order restitution, in addition to a six-monthmaximum sentence, does not turn an otherwise petty offenseinto a serious one, no matter how large the sum involved. Bal-lek was not entitled to a jury trial.AFFIRMED.
___________________________FOOTNOTES 2 Ballek raises his Thirteenth Amendment argument for the first time onappeal. Because this is a purely legal question, we exercise our discretionto overlook Ballek's waiver of the issue. See Resolution Trust Corp. v.First Am. Bank, 155 F.3d 1126, 1129 (9th Cir. 1998).3 The obligation of parents to support their children was recognized inthe United States long before the Thirteenth Amendment was adopted. See2 James Kent, Commentaries on American Law 161 (Leonard W. Levyed., Da Capo Press 1971 (1827); Stanton v. Willson, 3 Day 37 (Conn.1808) (non-custodial divorced father responsible for full financial mainte-nance of children); see also Donna Schuele, Origins and Development ofthe Law of Parental Child Support, 27 J. Fam. L. 807, 811 (1988-1989).Passage of the Amendment did not diminish the states' commitment tothis obligation, and it has only grown over the years. Today, the obligationis universally recognized and we are aware of no state where it is notenforced by means of criminal sanctions.4 Ballek's proposal for a $50,000 threshold is based on the Second Cir-cuit's holding in United States v. Twentieth Century Fox Film Corp., 882F.2d 656, 663 (2d Cir. 1989), that a criminal contempt fine on a corpora-tion which exceeds $100,000 warrants a jury trial. Ballek argues thatbecause $100,000 constitutes ten times the $10,000 petty offense limit onfines for organizations, see 18 U.S.C.SS 19, 3571(c)(6), (7) (West Supp.1998), the threshold for individuals should likewise be ten times the$5,000 petty offense limit on fines for individuals, see id. SS 19,3571(b)(6), (7).5 In addition to the lien upon the defendant's property that the UnitedStates automatically receives by virtue of an order of restitution, see 18U.S.C. S 3613(c) (West Supp. 1998), the custodial parent may also obtainsuch a lien, see id. S 3664(m)(1)(B). Further, if the delinquent parent con-tinues to willfully fail to pay his past due child support, or fails to makebona fide efforts to meet his obligation, the United States may seek tohave him resentenced. See id. S 3614;S 3664(o)(2). the end