Support Hose

United States v. Kerley, No. 08-1818-cr (2d Cir. September 25, 2008) (Jacobs, Pooler, CJJ, Restani, JCIT)

Clifford Kerley was convicted, after a jury trial, of two counts of willfully evading a child support obligation – one for each of his twin daughters – in violation of 18 U.S.C. § 228(a)(3). On appeal, he successfully argued that the indictment against him was multiplicitous, because it charged him in two counts, even though he had been subject to a single support order. He also prevailed on his argument that the “vulnerable victim” enhancement should not apply.

1. Multiplicity

An indictment is multiplicitous when it charges a single offense as an offense multiple times, in separate counts, when in law and fact, only one crime has been committed. Kerley’s argument that he only committed a single violation of § 228(a)(3) turned on whether the “unit of prosecution” for that offense is the support order or the child.

The circuit concluded that the statute was ambiguous. As worded, the unit of prosecution could be either. It therefore invoked the rule of lenity to interpret the statute in Kerley’s favor. Since he was subject to a single support order, albeit one that covered two children, the court dismissed the second count.

2. Vulnerable Victim

The court also agreed that vulnerable victim enhancement did not apply on the facts of Kerleys’ case. The government’s primary claim was that their economic circumstances made them vulnerable. The court disagreed. Their poverty did not render them less capable of avoiding Kerleys’ nonpayment; in fact, state and local authorities were actively pursuing Kerley on their behalf.

More generally, Kerley did not select these victims because of their vulnerability. He chose to refuse to support them not because of “who they were” but simply because he did not care about them.