"Past due obligations" is any amount (A) determined under a court order
an order of an administrative process pursuant to the law of a State to be
from a person for the support and maintenance of a child or of a child and
parent with whom the child is living; and (B) that has remained unpaid for a
period longer than one year, or is greater than $5,000. 18 U.S.C.
"Willfulness," according to the legislative history has the same
as it has for purposes of Federal criminal tax law. Thus, willfulness is
intentional violation of a known legal duty. Cheek v. United States,
U.S. 192, 111 S.Ct. 604, 610 (1991). H. Rep. No. 102-771, 102d Cong., 2d
With respect to ability to pay, the legislative history states:
the government must establish beyond a reasonable doubt, that at
time payment was due the [defendant] possessed sufficient funds to enable
meet his obligation or that the lack of sufficient funds on such date was
by (or was the result of) a voluntary and intentional act without
in view of all the financial circumstances of the [defendant].
H. Rep. No. 102-771, 102d Cong., 2d Sess. at 6.
Willfulness cannot be presumed from non-payment alone. The government
required to prove that the defendant, as of the date specified as the date
offense, willfully failed to pay an outstanding amount.
Criminal culpability is not obviated by partial payment of support
obligations because the statute defines past due support obligation as "any
amount." However, partial payment may be relevant to inability to pay,
would negate willfulness. The circumstances of any case in which partial
has been made, including the relationship of the amount of partial payment
total arrearage and ability to pay the arrearage, should be considered
[cited in USAM 9-74.100]