UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JONATHAN A. NOVAK, Defendant-Appellant.

No. 08-5254

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Issue:

• Whether the district court erred when it failed to instruct the jury that it had to find that Novak intended to remain in Virginia to find that he resided there?
• Whether the district court erred when it failed to instruct the jury that it had to find that Novak resided in the Eastern District of Virginia during a time when he willfully failed to pay child support?

The district court instructed the jury that it "must determine whether the United States has proved by a preponderance of the evidence . . . that during a time charged in the indictment when [Novak] failed to meet the support obligation he resided in the Eastern District of Virginia."

Defendant argues that the venue instruction should have required the jury to find that he "willfully fail[ed]," 18 U.S.C. § 228(a)(3), to meet the support obligation while he resided in the Eastern District of Virginia

The Court held that "for purposes of Novak's argument, we will assume, with-out deciding, that the district court was required in its venue instruction to instruct the jury that it had to find that Novak resided in the Eastern District of Virginia during a time when he willfully failed to pay child support. Such an assumption is of no help to Novak, however, because any error here is harmless for two reasons.

First, the jury found Novak "guilty as charged in Count One of the indictment." (J.A. 297). The indictment alleged a willful failure to pay a child support obligation from August 8, 2004 to July 20, 2005, and further alleged that Novak was a resident of the Eastern District of Virginia during that time frame. Therefore, Novak's theory that the jury could have found that he did not willfully fail to pay child support because of advice of counsel is foreclosed by the jury's verdict.

Second, Novak was not harmed by the instruction if he resided in Virginia prior to February 22, 2005, the date in which he suggests counsel advised him not to pay child support. If he resided in Virginia prior to February 22, 2005, then venue was proper.

His argument, then, hinges on his prevailing on his Part IIA argument that he did not "reside" in Virginia from August 8, 2004 to February 22, 2005, because during that time period he did not have the intent to make Virginia his permanent residence. For the reasons explained in Part IIA, Novak cannot prevail on this argument. Therefore, he cannot show any harm even if we assume the district court's instruction was erroneous."