United States of America v. John T. Namey, Jr.

*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0104P (6th Cir.)
File Name: 04a0104p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN T. NAMEY, JR.
Defendant-Appellant.
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No. 02-4100
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 01-00541—Donald C. Nugent, District Judge.
Argued: March 17, 2004
Decided and Filed: April 15, 2004
Before: ROGERS and COOK, Circuit Judges;
SCHWARZER, Senior District Judge.*
_________________
COUNSEL
ARGUED: John B. Gibbons, Cleveland, Ohio, for
Appellant. Phillip J. Tripi, ASSISTANT UNITED STATES
2 United States v. Namey No. 02-4100
1Namey also ap pealed several asp ects of the district co urt’s
sentencing decision. Because Namey is being released from custod y in
April 200 4, those issues are mo ot. However, we find Namey’s challenges
are without merit. United States v. Delgado, 350 F.3d 520 , 524 n.4 (6th
Cir. 2003).
ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF:
John B. Gibbons, John J. Gill, Cleveland, Ohio, for
Appellant. Phillip J. Tripi, ASSISTANT UNITED STATES
ATTORNEY, Cleveland, Ohio, for Appellee.
_________________
OPINION
_________________
WILLIAM W SCHWARZER, Senior District Judge. John
T. Namey, Jr., appeals his conviction on eight counts of
violating 18 U.S.C. § 228(a) for “willfully fail[ing] to pay a
support obligation with respect to a child who resides in
another State.”1 We have jurisdiction pursuant to 28 U.S.C.
§ 1291, and we affirm.
FACTUAL AND PROCEDURAL HISTORY
Namey and his former wife, Pamela Lancaster, were
divorced in May 1992; Lancaster was awarded custody of the
couple’s three children and Namey was ordered to pay them
$201 per week in child support. Following the divorce,
Namey moved his belongings to property he owned on East
Jefferson Street in Ashtabula, Ohio (“the Jefferson property”).
He lived and worked at this address for several years.
Namey, a practicing physician, had his medical license
suspended in 1994 and subsequently revoked in 1998.
In 1995, Namey began commuting periodically to Farrell,
Pennsylvania to care for his ailing parents. In or around 1997,
Namey moved to Farrell on a more permanent basis. In 1999,
he entered into a land contract to sell the Jefferson property

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No. 02-4100 United States v. Namey 3
and received a down payment. When the buyer defaulted, he
entered into a new sales contract under which he received
payments. Namey moved all of the furniture from the
Jefferson property to Pennsylvania.
From 1992 to 1999, Namey carried on a romantic
relationship with JoAnna Dunford. He gave Dunford lavish
gifts, took her on trips, and provided her with living expenses.
Namey had power of attorney over his parents’ assets, and at
times used the money for personal purposes.
In 1995, an Ohio court found that Namey owed $5,577.33
in past-due child support. Namey did not pay that amount,
nor any other child support, until 1998, despite the efforts of
the Ashtabula County Child Support Agency. A state civil
court found on several occasions that Namey was deliberately
avoiding employment and it increased his monthly obligation
to $694. In 1998, Namey made several “purge” payments to
avoid jail sentences threatened in state contempt orders.
Namey was indicted on the federal charge in November
2001. The indictment alleged that Namey owed almost
$40,000 in unpaid child support for the period September 23,
1997, to April 2, 2001, in violation of 18 U.S.C. § 228(a). At
the close of the prosecution’s case at trial, Namey moved for
acquittal under Federal Rule of Criminal Procedure 29. The
court denied the motion and the jury convicted on all counts.
Namey timely appealed.
DISCUSSION
I.
Namey’s first contention is that the statute is
unconstitutionally vague and has led to arbitrary enforcement.
He argues that the failure of the statute to define “resides” led
to an arbitrary result, pointing to evidence of his continued
economic and familial ties to Ohio. We review de novo the
legal question whether a criminal statute is unconstitutionally
4 United States v. Namey No. 02-4100
vague. United States v. Hill, 167 F.3d 1055, 1063 (6th Cir.
1999).
When the common meaning of a word provides adequate
notice of the prohibited conduct, the statute’s failure to define
the term will not render the statute void for vagueness.
United States v. Haun, 90 F.3d 1096, 1101 (6th Cir. 1996).
Where a term “has a commonly accepted meaning, an
ordinary person would be able to recognize whether the
conduct in question is criminal.” Id. The term “reside” has
a commonly accepted meaning. Dictionaries define “reside”
as “[t]o live in a place for a permanent or extended time,”
WEBSTER’S II NEW COLLEGE DICTIONARY 943 (2001), or to
“[l]ive, dwell . . . to have a settled abode for a time . . . .”
BLACK’S LAW DICTIONARY (5th ed. 1979). An ordinary
person would understand that a person resides where the
person regularly lives or has a home as opposed to where the
person might visit or vacation.
Namey argues that the term “reside” may have two separate
meanings, with one equating to the definition of residence and
the other equating to “domicile.” The argument is without
merit. We have made it clear that residence and domicile are
distinct concepts:
Generally, an individual’s “domicile” is his “true, fixed,
and permanent home and principal establishment.” It is
the place to which he returns whenever he is absent.
“Residence,” in contrast, requires both physical presence
and an intention to remain some indefinite period of
time, but not necessarily permanently. Thus, domicile is
an individual’s permanent place of abode where he need
not be physically present, and residence is where the
individual is physically present much of the time. An
individual consequently may have several residences, but
only one domicile.
Eastman v. Univ. of Michigan, 30 F.3d 670, 672-73 (6th Cir.
1994) (citations omitted).

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No. 02-4100 United States v. Namey 5
Nothing in the statute or its legislative history suggests that
Congress intended that the prosecution must prove a
defendant’s domicile. The House Judiciary Committee report
accompanying the bill that became 18 U.S.C. § 228 reflects
Congress’s broad purpose to address the problem of
collection of child support payments “involv[ing] children
whose non-custodial parent lives in a state different from the
child.” H.R. Rep. No. 102-771, at 5-6 (1992) (quoted in
United States v. Faasse, 265 F.3d 475, 485 (6th Cir. 2001))
(emphasis added); see also H.R. 1241, 102d Cong., Statement
of Summary and Purpose (1992) (stating that H.R. 1241,
which became § 228, was intended to “address[] the growing
problem of interstate enforcement of child support.”).
Congress sought to deal with child support evaders who flee
across state lines because “interstate extradition and
enforcement . . . remains a tedious, cumbersome and slow
method of collection.” H.R. 1241, 102d Cong., Statement of
Summary and Purpose (1992).
The House Judiciary Committee, which authored a report
accompanying the bill that became 18 U.S.C. § 228,
stated that the Committee had found that interstate
collection of child support was “the most difficult to
enforce” and accounted for an “unacceptably high”
deficit in child support payments. H.R. Rep. No.
102-771, at 5-6 (1992). According to the report,
approximately one-third of child support cases involve
children whose non-custodial parent lives in a state
different from the child and whose custodial parent must
therefore rely on interstate payments of child support.
Among this group relying on interstate payment,
fifty-seven percent of the custodial parents reported
receiving child support payments “only occasionally,
seldom or never.” Id. at 5. After noting that “at least 42
states have made willful failure to pay child support a
crime,” the report concluded that “the ability of those
states to enforce such laws outside their own boundaries
is severely limited.” Id. at 5-6.
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Faasse, 265 F.3d at 485; see also United States v. H., No.
01CR0457, 2001 WL 1646465 at *8-9 (E.D.N.Y. Dec. 17,
2001). One Congressman characterized the bill as making “it
a crime for a parent to cross state lines in order to avoid
making court-ordered child support payments.” 138 Cong.
Rec. H7326 (1992). Another described the bill as remedying
the problem of “parents who make a mockery of state law by
fleeing across state lines to avoid enforcement actions by
State courts and child support agencies.” Id. The concerns
expressed in the legislative record have little to do with the
parent’s intent to make the new state his or her domicile or
permanent home—rather, it is the prolonged absence from the
child’s home state that concerned Congress. A parent who
dwells, but is not domiciled, in a different state from his
children is nonetheless absent from the child’s state, and
enforcement presents difficulties. Given Congress’s concern
with enforcement, it would make no sense to read the statute
as imposing the strict domicile test, which excludes parents
who merely reside in another state but present the same
enforcement difficulties as if they were domiciled there.
In H., on which Namey relies, the district court interpreted
§ 228 as “requiring domicile, not mere residence, in another
state when the parent responsible for payments leaves the
state of the child’s domicile temporarily and without changing
his domicile from that of the child.” 2001 WL 1646465 at
*10. The court reasoned that it seemed unlikely that parents
who maintain their domicile in the same state as does the
child but a residence elsewhere would fill the description of
persons identified as the targets of the statute, i.e., persons
against whom support orders are difficult to enforce. We are
not persuaded by this reasoning. Aside from the fact that it
ignores the plain language of the statute, it substantially
undermines its effectiveness. Under the H. court’s reading, a
noncustodial defaulting parent long absent from the state of
his child’s residence would avoid prosecution unless it were
proved that he intended to remain permanently in another
state. There is no evidence that this is what Congress
intended.

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No. 02-4100 United States v. Namey 7
2W e express no opinion as to whether § 228(a) requires “complete
diversity” of resid ence–i.e., whether a defendant who resides in both the
state where his child resides and another state can be convicted under the
statute. W e note that any error in the district court’s instruction on this
point inured to Namey’s benefit, as the jury was inform ed that the statute
requires complete diversity.
II.
Namey’s second assignment of error is that the district
court erred in instructing the jury on the issue of residence.
The district court instructed that
Reside means to live, dwell, abide, sojourn, stay, remain,
or lodge. To settle oneself in a place, to be stationed, to
remain or stay, to have a settled abode for a time . . . . A
person may reside in more than one state at one time. If
you find that the defendant resided in more than one state
during the period of this count of the indictment, and one
of such states was the same state his children resided,
you may find that the government has not proved this
element beyond a reasonable doubt.
Namey himself proposed the instruction of which he now
complains. Under the doctrine of invited error, a party may
not complain on appeal of errors he himself invited. United
States v. Barrow, 118 F.3d 482, 490 (6th Cir. 1997). Even if
the doctrine were not to apply here, however, our review is
for plain error because Namey failed to object to the
instruction at trial. United States v. Jones, 108 F.3d 668, 670
(6th Cir. 1997); FED R. CRIM. P. 52(b).
Namey argues that the instruction was error because he was
domiciled in Ohio and thus it was unclear whether the
government proved that he resided in a state different from
his children. For the reasons discussed above, the instruction
correctly defined “resides” for purposes of § 228(a) as
residence rather than domicile.2 And there was sufficient
8 United States v. Namey No. 02-4100
evidence for the jury to find that Namey resided outside of
Ohio. We find no error.
III.
In his third assignment of error, Namey contends that the
district court erred in failing to grant his Rule 29 motion. He
argues that state remedies remained available for enforcement
of the support orders but were ignored even though he was
available for service of process in Ohio. Thus, he did not fall
within the class at whom the statute was aimed: “hard-core”
parents who flagrantly refuse to pay and against whom
traditional extradition procedures would have failed.
We review the district court’s denial of a motion for
acquittal de novo, but we must affirm its decision if the
evidence, viewed in the light most favorable to the
government, would allow a rational trier of fact to find the
defendant guilty beyond a reasonable doubt. United States v.
Nash, 175 F.3d 429, 433 (6th Cir. 1999). The elements of a
§ 228 offense are: “(1) a willful (2) failure to pay (3) a past
due support obligation, defined as ‘any amount . . .
determined under a court order or an order of an
administrative process pursuant to the law of a state to be due
. . . ,’ (4) with respect to a child who resides in another state.”
United States v. Johnson, 114 F.3d 476, 482 (4th Cir. 1997).
There was sufficient evidence for the jury to find these
elements beyond a reasonable doubt. The statute does not
require proof that the defendant be a “hard-core” offender.
CONCLUSION
For the reasons stated, Namey’s conviction is
AFFIRMED.

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