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UNITED STATES v. MATTICE

September 16, 1998

UNITED STATES OF AMERICA, Plaintiff,
v.
LESTER MATTICE, a/k/a Donald L. Mattice, Defendant.



The opinion of the court was delivered by: LARIMER

DECISION AND ORDER

 In an indictment filed October 15, 1997, defendant Lester Mattice ("defendant") was charged with willfully failing to pay child support in violation of the Child Support Recovery Act of 1992 ("CSRA"), 18 U.S.C. § 228. Defendant consented to proceed before a magistrate judge, pursuant to 18 U.S.C. § 3401, in this misdemeanor case.

 On January 23, 1998, after a two-day bench trial, Magistrate Judge Jonathan W. Feldman found defendant guilty of violating 18 U.S.C. § 228. On April 2, 1998, Judge Feldman sentenced defendant to a ninety-day term of imprisonment, followed by a one-year term of supervised release, and ordered full restitution in the amount of $ 57,271.28. Defendant timely appealed his conviction and sentence to this Court, pursuant to 18 U.S.C. § 3402.

 FACTUAL BACKGROUND

 Defendant married Josephine Galena in 1974. T at 99. *fn1" The couple had three children and then separated in August 1978. T at 99-100. By order dated October 19, 1978, New York State Supreme Court Justice John A. Mastrella granted Josephine Mattice temporary alimony in the amount of $ 70 per week and temporary child support in the amount of $ 80 per week. Gov't Ex. 1. On June 4, 1982, New York State Supreme Court Justice Wilmer J. Patlow granted Mrs. Mattice a divorce and child support in the amount of $ 20 per week per child. Gov't Ex. 6. Justice Patlow also entered judgment against defendant in the amount of $ 11,550 for arrears in child support that were due under Justice Mastrella's prior order. Id.

 In the instant action, the Government successfully prosecuted the defendant under 18 U.S.C. § 228 for failing to pay these child support obligations.

 DISCUSSION

 On appeal, defendant maintains that: (1) there was insufficient evidence to convict him of violating 18 U.S.C. § 228; and (2) the trial judge abused his discretion in ordering full restitution.

 A. Sufficiency of the Evidence

 In challenging the sufficiency of the evidence, a defendant bears a heavy burden. United States v. Giraldo, 80 F.3d 667, 673 (2d Cir. 1996); United States v. Rosenthal, 9 F.3d 1016, 1024 (2d Cir. 1993). An appellate court must view the evidence in the light most favorable to the Government, drawing all possible inferences in its favor. United States v. Allah, 130 F.3d 33, 45 (2d Cir. 1997), cert. denied, 141 L. Ed. 2d 718, 118 S. Ct. 2347 (1998); United States v. Rea, 958 F.2d 1206, 1221 (2d Cir. 1992). Further, where there is conflicting testimony, the reviewing court must defer to the fact finder's assessments of credibility. United States v. Desimone, 119 F.3d 217, 223 (2d Cir. 1997); United States v. Wallace, 59 F.3d 333, 338 (2d Cir. 1995). In essence, the appellate court must affirm the conviction so long as, from the inferences reasonably drawn, the trier of fact might fairly have concluded guilt beyond a reasonable doubt. United States v. Perez, 144 F.3d 204, 208 (2d Cir. 1998); United States v. Skowronski, 968 F.2d 242, 247 (2d Cir. 1992).

 Defendant maintains there was insufficient evidence adduced at trial to prove that he willfully failed to pay a past due support obligation. Specifically, defendant argues that the evidence failed to establish that: (1) he knew there was a court order requiring him to pay child support; (2) he actually failed to support his children; (3) he possessed sufficient funds to pay his past due support obligation in full; and (4) he knew it was a violation of federal law to fail to pay child support.

 1. Knowledge of a Court Order

 Defendant argues that the Government failed to prove he knew there was a court order requiring him to pay child support. I find this argument to be completely without merit.

 The evidence at trial clearly demonstrated that defendant actively participated in the separation and divorce proceedings where the issue of child support was litigated. For example, in the proceedings to determine temporary alimony and child support, defendant, who was represented by counsel, submitted an affidavit requesting that the award be limited to $ 400 per month. Gov't Ex. 2. Defendant also appeared at Special Term when the matter was argued and was present in open court when Justice Mastrella awarded Josephine Mattice temporary alimony in the amount of $ 70 per week and temporary child support in the amount of $ 80 per week. T at 109-10. Defendant also was personally served with the pleadings in his divorce action, which specifically requested not only future child support, but also a judgment for past due child support. T at 68-79.

 Additionally, Mrs. Mattice spoke with defendant several times over the years regarding child support and at one point even notified him that his current obligation had been reduced, pursuant to the judgment of divorce, to $ 20 per week per child. T at 119-20. Finally, defendant's wages were garnished from October 1991 through June 1992, and he was notified that this garnishment was for family support obligations he owed Josephine Mattice. T at 177-87. Judge Feldman found this evidence credible ...


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